Ninth Circuit Also Determines that Student’s Representation By Paternal Grandmother Did Not Disqualify Him From Seeking Fees.
The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(i)(3)(B) allows lower courts to award reasonable attorney’s fees as part of the costs to a prevailing party who is the parent of a child with a disability (given that the parents are generally the plaintiffs in these cases). Also, the Ninth Circuit has adopted a bright line rule prohibiting IDEA fees for attorney-parents providing legal services for their own child in IDEA proceedings. (Ford v. Long Beach Unified Sch. Dist., 461 F.3d 1087, 1090-91 (9th Cir. 2006).) This statutory fee grant and bright line rule were at issue in the next case we review.
In Weissburg v. Lancaster School Dist., Case No. 08-55660 (9th Cir. Jan. 14, 2010) (for publication), the Ninth Circuit dealt with a situation where parents successfully obtained a ruling on behalf of their son that he was entitled to placement in a school with a teacher to teach students with the primary disabilities of mental retardation and autism, even though he did obtain a free and appropriate public education for mental retardation. Son was represented by his paternal grandmother in the dispute, who moved for an award of fees under IDEA. The district judge denied them, finding that the change in disability classification did not change the legal relationship between Edward and the school district.
The fee denial was reversed on appeal.
The Ninth Circuit concluded that the change in eligibility category did materially alter the legal relationship between the parties because it entitled Edward to placement in a classroom with a teacher qualified to teach both mental retardation and autism. Beyond that, it found that the representation by the paternal grandmother did not run afoul of the Ford bright line rule, because other relatives are not as uniquely involved as parents under IDEA (who are considered the enforcers of their children’s education rights).