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No Attorneys' Fees for Parents of Child Not Yet Determined Eligible Under the IDEA

January 4, 2011

The 5th Circuit Court of Appeals recently denied a parents' request for attorneys' fees in a case where the child had not yet been determined to be a “child with a disability,” notwithstanding the fact that the parents had prevailed, in part, at an administrative due process hearing. See T.B. v. Bryan Indep. Sch. Dist., No. 08-20201 (5th Cir. Dec. 20, 2010). In this case, after the student had been diagnosed with ADHD in 3rd grade, he was referred for a comprehensive evaluation by the district. Following the individualized evaluation, the district determined that the student was not for special education services. In 6th grade, the student was involved in a number of disciplinary infractions which resulted in the parents deciding to withdraw the student from school. The parents subsequently filed for an administrative due process hearing, alleging that the district failed to appropriately evaluate and identify the student and offer an appropriate program. As a result of the due process hearing, the hearing officer ordered the district to conduct an updated evaluation of the student and determine eligibility for special education. The hearing officer declined to order any further remedy. The parents appealed, seeking attorneys’ fees, and the federal district court ruled that because the parents had prevailed on their child find claims, they were entitled to recover attorneys’ fees. The 5th Circuit, while sympathetic to the parents’ claims, disagreed. The 5th Circuit vacated the district court’s award of attorneys’ fees, noting that the plain language of the IDEA is clear that an award of attorneys’ fees is only available to a parent who is both the “prevailing party” and the parent of a “child with a disability.” In this case, since “there was never a determination that the child needed special education, the Court of Appeals ruled that the student had not yet been determined to be a “child with disability,” and the parents were therefore not entitled to attorneys’ fees.

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