In 2004, the IDEA was amended to provide for the possibility that school districts and state educational agencies might be able to collect attorney’s fees from parents and parent attorneys if the due process complaint or subsequent litigation was found to be “frivolous, unreasonable, or without foundation”. Apparently, the courts have found one case that falls into that category and have awarded attorney’s fees to a prevailing state educational agency.
In R.W. v. Georgia Department of Education, et al., 48 IDELR 279 (N.D.Ga.2007), the court dismissed the case brought against various state agencies within the State of Georgia by a parent attorney who had tried and failed to use the same tactics against the same state agencies twice before. She alleged that it was the policy, custom, and practice of the state agencies of denying due process to children because the Administrative Law Judges (ALJ’s) who heard the due process hearings would allegedly sleep through hearings, call children and attorneys names, and allow school districts to violate the procedural regulations of IDEA. She also claimed that the state agencies had instructed the ALJ’s to rule against her and her clients. She did not allege, however, that any of these things had happened in the case of R.W., the plaintiff in this case, and her claims against the state agencies were dismissed for lack of standing.
When the state agencies requested that the court award attorney’s fees to compensate them for having to defend this frivolous litigation, the only response submitted by the parent’s attorney was to cite her educational background and work history and claim (in incendiary rhetorical style) that she personally had first-hand knowledge of the gross procedural violations being committed by the Georgia system. The court found this response grossly inadequate and agreed that an award of attorney’s fees would be appropriate.
This does appear to be an extreme case, where the parent’s attorney had filed the same frivolous claims twice before and it was only on the third filing that attorney’s fees were awarded. And, it is difficult to tell whether the same result would have been reached if the parent’s attorney had made a more principled attempt to defend her lawsuit on its merits and show that it was not frivolous. Having said that, the case does breathe some life into the 2004 IDEA provision allowing the award of attorney’s fees to school districts and provides a benchmark for “how frivolous” such a claim needs to be to merit such an award.