plaintiffs appellants, -...

Case No. 12-57315

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

C.W., a minor, by her Mother, K.S., Guardian Ad Litem; K.S., Guardian Ad Litem,

Plaintiffs – Appellants,

v.

Capistrano Unified School District,

Defendant – Appellee.

Appeal from The United States District Court

for the Central District of California

The Honorable David O. Carter, Presiding

Brief of Amici Curiae Disability Rights Legal Center, Disability Rights

California, Public Counsel Law Center, Children’s Rights Clinic at

Southwestern Law School, Pepperdine University School of Law Special

Education Advocacy Clinic, and University of San Diego Legal Clinics in

Support of Plaintiffs-Appellants and Reversal of the Fee Award

YOUTH & EDUCATION LAW PROJECT

William S. Koski (CA SBN 166061)

Carly J. Munson (CA SBN 254598)

Mills Legal Clinic, Stanford Law School

559 Nathan Abbott Way

Stanford, California 94305

Telephone: (650) 724-1900

Facsimile: (650) 723-4426

DISABILITY RIGHTS LEGAL CENTER

Paula D. Pearlman (CA SBN 109038)

Michelle Uzeta (CA SBN 164402)

Anna Rivera (CA SBN 239601)

800 S. Figueroa Street, Suite 1120

Los Angeles, California 90017

Telephone: (213) 736-1031

Facsimile: (213) 736-1428

Counsel for Amici Curiae

Case: 12-57315 06/06/2013 ID: 8658852 DktEntry: 14 Page: 1 of 41

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TABLE OF CONTENTS

Page

INTERESTS OF AMICI CURIAE...........................................................................1

STATEMENT PURSUANT TO FRAP 29(c)(5) .....................................................5

SUMMARY OF THE ARGUMENT........................................................................6

ARGUMENT.............................................................................................................7

I. THE IDEA IS EXPLICITLY DESIGNED TO PROTECT

AND INCLUDE PARENTS AND RELIES UPON THEM

TO ENFORCE THE STATUTORY SCHEME..............................................8

II. SANCTIONING THIS AWARD OF ATTORNEYS FEES TO

CAPISTRANO WILL UNDERMINE THE INTEGRITY AND

EXECUTION OF THE IDEA.......................................................................12

A. This Award of Attorneys Fees Would Chill Parent Participation

in the Special Education Process at a Time When the Statute Is

Already Under-Enforced..........................................................................12

B. This Award of Attorneys Fees Would Prevent Parents From

Obtaining Legal Representation, Disproportionately Impacting

Poor and Minority Families and Widening the Enforcement Gap...........16

III. AFFIRMING THE DISTRICT COURT’S AWARD OF ATTORNEYS

FEES WOULD UNDERMINE CONGRESS’S EXPRESS INTENTION

THAT THE IDEA’S FEE-SHIFTING PROVISION BE TREATED

LIKE THAT OF A CIVIL RIGHTS STATUTE..........................................21

A. Courts Must Effectuate Congress’s Clear Decision to Model the IDEA’s

Fee-Shifting Provision on the Christiansburg Garment Standard...........21

B. Courts Must Not Let Whether Parents Prevail Cloud Their Application

of the Christiansburg Garment Standard……………………………… 28

IV. CONCLUSION.............................................................................................30


ii

TABLE OF AUTHORITIES

Federal Cases Page

Aguirre v. L.A. Unified Sch. Dist.,

461 F.3d 1114 (9th Cir. 2006)........................................................................... 22

Board of Educ. v. Rowley,

458 U.S. 176 (1982)...................................................................................8, 9, 10

Christiansburg Garment Co. v. Equal Emp’t Opportunity Comm’n,

434 U.S. 412 (1978)....................................................................................passim

Coates v. Bechtel,

811 F.2d 1045 (7th Cir. 1987)............................................................................13

Doe ex rel. Doe v. Attleboro Pub. Sch.,

No. 1:12-CV-10266-DJC, 2013 WL 1002249 (D. Mass. Mar. 14, 2013)..........24

Fort Ord Toxics Project, Inc. v. Cal. E.P.A.,

189 F.3d 828 (9th Cir. 1999) .............................................................................24

G.M. v. Saddleback Valley Sch. Dist.,

No. SACV 11-1449 DOC, 2012 WL 5947213 (C.D. Cal. Nov. 26, 2012)........30

Harris v. Maricopa Cnty. Sup. Crt.,

631 F.3d 963 (9th Cir. 2011)............................................................................. 29

Hawkins v. Berkeley Unified Sch. Dist.,

250 F.R.D. 459 (N.D. Cal. 2008) ......................................................................25

Hughes v. Rowe,

449 U.S. 5 (1980) ..............................................................................................28

Int’l Bhd. of Teamsters v. Silver State Disposal Serv., Inc.,

109 F.3d 1409 (9th Cir. 1997)............................................................................29

Jones v. Cont’l Corp.,

789 F.2d 1225 (6th Cir.1986) ............................................................................25


iii

Page

Jones v. Tex. Tech. Univ.,

656 F.2d 1137 (5th Cir. 1981) ...........................................................................25

Kathleen H. v. Mass. Dep’t of Educ.,

154 F.3d 8 (1st Cir. 1998) ..................................................................................22

Larez v. Holcomb,

16 F.3d 1513 (9th Cir. 1994) .............................................................................29

Mitchell v. Office of L.A. Cnty. Superintendent of Sch.,

805 F.2d 844 (9th Cir. 1986) .............................................................................14

Morgan Hill Concerned Parents Assoc. v. Cal. Dep’t. of Educ.,

2013 WL 1326301 (E.D. Cal. Mar. 29, 2013) ...................................................15

Mr. L. v. Sloan,

449 F.3d 405 (2d Cir. 2006) ..............................................................................24

Newman v. Piggie Park Enters., Inc.,

390 U.S. 400 (1968) ..........................................................................................11

Oakstone Cmty. Sch. v. Williams,

No. 2:11-CV-1109, 2012 WL 4051322 (S.D. Ohio Sept. 13, 2012) .................24

Parks Sch. of Business, Inc. v. Symington,

51 F.3d 1480 (9th Cir. 1995) .............................................................................29

R.P. ex rel. C.P. v. Prescott Unified Sch. Dist.,

631 F.3d 1117 (9th Cir. 2011) ....................................................................passim

Riddle v. Egensperger,

266 F.3d 542 (6th Cir. 2001) .............................................................................25

Sagan v. Sumner Bd. of Educ.,

501 Fed. Appx. 537 (6th Cir. 2012) ..................................................................24

Schaffer ex rel. Schaffer v. Weast,

546 U.S. 49 (2005) ..............................................................................................9


iv

Page

Smith v. Robinson,

468 U.S. 992 (1984) ..........................................................................................22

Sullivan v. Sch. Bd. of Pinellas Cnty.,

773 F.2d 1182 (11th Cir. 1985) .........................................................................25

Takao Ozawa v. United States,

260 U.S. 178 (1922) ..........................................................................................24

Taylor P. ex rel. Chris P. v. Miss. Dep’t. of Elementary & Secondary Educ.,

No. 06-4254-CV-C-NKL, 2007 WL 2907825 (W.D. Mo. Oct. 3, 2007)...........24

Townsend v. Holman Consulting Corp.,

929 F.2d 1358 (9th Cir. 1991) ...........................................................................27

Winkelman ex rel. Winkelman v. Parma City Sch. Dist.,

550 U.S. 516 (2007) ............................................................................................8

Statutes and Rules

Pub. L. No. 94-142, § 1 (1975) ...............................................................................11

Pub. L. No. 99-372, 100 Stat. 796 (1986) ..............................................................22

20 U.S.C. §§ 1400, et seq..........................................................................................1

20 U.S.C. § 1400(c)(7) ...........................................................................................18

20 U.S.C. § 1400(c)(10)-(13)........ .........................................................................18

20 U.S.C. § 1400(d)(1)(A) ........................................................................................8

20 U.S.C. § 1411(a)(2), (d)(3)(a) ............................................................................18

20 U.S.C. § 1414.......................................................................................................9

20 U.S.C. § 1415.....................................................................................................10

20 U.S.C. § 1415(a)(1)(D).........................................................................................9


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Page

20 U.S.C. § 1415(b)(1) .............................................................................................9

20 U.S.C. § 1415(f)-(h) ..........................................................................................10

20 U.S.C. § 1415(i)(3)(B)(i)(I) ...................................................................10, 22, 29

20 U.S.C. § 1415(i)(3)(B)(i)(II) ..............................................................................23

20 U.S.C. § 1415(i)(3)(B)(i)(III) ......................................................................23, 26

29 U.S.C. § 794e........................................................................................................3

42 U.S.C. § 1988.....................................................................................................22

42 U.S.C. §§ 6000, et seq..........................................................................................3

42 U.S.C. §§ 10801, et seq........................................................................................3

34 C.F.R. § 300.502(a) .............................................................................................9

Fed. R. Civ. P. 11.....................................................................................................29

Other Authorities

131 Cong. Rec. 21,391 (1985) ................................................................................11

150 Cong. Rec. 11,453 (2004) ..........................................................................23, 26

About COPAA, Council of Parent Attorneys & Advocates,

http://www.copaa.org/?page=about....................................................................17

Brief for the Autism Soc’y of Am. et al. as Amici Curiae in Support of

Petitioners, Winkelman ex rel. Winkelman v. Parma City Sch. Dist.,

550 U.S. 516 (2007) (No. 05-983), 2006 WL 3740367.....................................17

Elisa Hyman, Dean Hill Rivkin, & Stephen A. Rosenbaum, How IDEA Fails

Families Without Means: Causes and Corrections From the Frontlines of

Special Education, 20 J. Gender, Soc. Pol’y & L. 107 (2011).....................10, 19


vi

Page

Eloise Pasachoff, Special Education, Poverty, and the Limits of Private

Enforcement, 86 Notre Dame L. Rev. 1413 (2011) ...............................18, 19, 20

Equity and Excellence Commission, 75 Fed. Reg. 48,661 (Aug. 11, 2010),

available at https://federalregister.gov/a/2010-19800........................................18

FY 2013 Income Limits Documentation System, Hous. Urban Dev.,

http://www.huduser.org/portal/datasets/il/il2013/2013summary.odn (select

“Orange County, CA HUD Metro FMR Area” on drop down menu; then

follow “Select HMFA Income Limits Area” hyperlink) ...................................13

James R. Newcomer & Perry A. Zirkel, An Analysis of Judicial Outcomes of

Special Education Cases, 65 Exceptional Children 469 (1999).........................14

Legal Servs. Corp., Documenting the Justice Gap in America: The Current Unmet

Civil Legal Needs of Low-Income Americans 1 (Sept. 2009) ............................17

Margaret M. Wakelin, Challenging Disparities in Special Education: Moving

Parents from Disempowered Team Members to Ardent Advocates, 3 Nw. J. L.

& Soc. Pol’y 263 (2008) ....................................................................................20

Mark Galanter, Why the “Haves” Come out Ahead: Speculations on the Limits of

Legal Change, 9 L. & Soc’y Rev. 95 (1974) .....................................................20

Nat’l Council on Disability, Back to School on Civil Rights (2000)...........10, 13, 15

Order Granting Def.’s Mot. for Att’y Fees, C.W., et al. v. Capistrano Unified

School District, No. 12-57315 (C.D. Cal. Dec. 5, 2012), ECF No. 55..............13

Patricia A. Massey and Stephen A. Rosenbaum, Disability Matters: Toward A Law

School Clinical Model for Serving Youth with Special Education Needs,

11 Clinical L. Rev. 271 (2005) ....................................................................14, 15

Ruth Colker, California Hearing Officer Decisions (Pub. L. & Legal Theory

Working Paper Series No. 185, 2013), available at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2201589.....................14, 17

S. Rep. No. 99-112 (1985) ......................................................................................11


vii

Page

U.S. Dep’t. of Educ., Thirtieth Annual Report to Congress On the Implementation

of the Individuals with Disabilities Education Act 163 (2008), available at:

http://www2.ed.gov/about/reports/annual/osep/2008/parts-b-c/index.html.......15


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INTERESTS OF AMICI CURIAE

Amici curiae are non-profit organizations dedicated to ensuring that children

with disabilities are provided the free and appropriate public education guaranteed

by the Individuals with Disabilities Education Act (“IDEA”).1 Amici represent

low-income and traditionally under-served families in administrative due process

proceedings and litigation against school districts to enforce rights afforded by the

IDEA.

Although the instant case directly involves only one student, C.W., the

Court’s decision in this matter will significantly affect the landscape of the special

education process and could prevent countless other students and parents,

including amici’s clients, from exercising the due process protections guaranteed

by the IDEA. In addition, if this Court upholds the underlying fee order, amici

may no longer be able to help students and parents pursue meritorious claims or

defend themselves against cases brought by plaintiff school districts, and the

IDEA’s purpose and enforcement mechanisms will be vitiated.

As amici’s collective advocacy work spans the entire State of California,

amici offer valuable insights about on-the-ground, widespread policy implications

of this matter. Amici are extremely familiar with special education history,

legislation, case law, and policy as they apply to this case. Among amici are

1 Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400, et seq.


2

individuals who are scholars in this area and the co-author of a prominent special

education law treatise. In addition, amici have participated as amici curiae in

significant disability and educational law cases decided by this Court. Amici

believe that their expertise and perspective can help the Court understand more

fully the grave ramifications of upholding the underlying fee order.

This brief is submitted with the consent of all parties pursuant to Federal

Rule of Appellate Procedure 29(a).

Amici curiae include:

Disability Rights Legal Center: The Disability Rights Legal Center

(“DRLC”) is a non-profit legal organization that was founded in 1975 to represent

and serve people with disabilities. Individuals with disabilities continue to struggle

against ignorance, prejudice, insensitivity, and lack of legal protection in their

endeavors to achieve fundamental dignity and respect. The DRLC assists people

with disabilities in attaining the benefits, protections, and equal opportunities

guaranteed to them under the Rehabilitation Act of 1973, the Americans with

Disabilities Act, the IDEA, and other state and federal laws. Its mission is to

champion the rights of people with disabilities through education, advocacy, and

litigation. The DRLC is a recognized expert in the field of disability rights.

Disability Rights California: Disability Rights California is a non-profit

agency mandated under federal law to advance the legal rights of Californians with


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disabilities, including children enrolled in special education programs.2 Disability

Rights California legal staff provide free referral and advice, as well as

representation in individual and class action cases. Its work includes representing

youth from low-income families in administrative hearings and appeals in state and

federal court brought under the IDEA.

Public Counsel Law Center: Public Counsel Law Center (“Public

Counsel”) is the largest pro bono law office in the nation. The Children’s Rights

Project at Public Counsel provides legal representation, advocacy, and social work

support to low-income children and families, specializing in complex cases

involving multiple legal issues. Public Counsel ensures that youth with

disabilities, particularly court-involved youth, have access to a free and appropriate

public education under the IDEA through court-based legal clinics, direct

representation, local and state policy advocacy, and impact litigation.

Children’s Rights Clinic at Southwestern Law School: The Children’s

Rights Clinic (“CRC”) was founded with the mission of teaching law students

practical lawyering skills while providing high quality legal education to low-

income families in Los Angeles County in the areas of special education and

school discipline. The CRC represents children with disabilities and their families

2 Protection and Advocacy for Individuals with Developmental Disabilities, 42

U.S.C. §§ 6000, et seq.; Protection and Advocacy for Individuals with Mental

Illness, 42 U.S.C. §§ 10801, et seq.; Protection and Advocacy for Individual

Rights, 29 U.S.C. § 794e.


4

to ensure that they receive the free and appropriate public education that they are

entitled to under the IDEA and the Rehabilitation Act of 1973.

Pepperdine University School of Law Special Education Advocacy

Clinic: The Pepperdine University School of Law Special Education Advocacy

Clinic (“PSEAC”) has provided free advocacy and legal services to children with

disabilities and their parents in matters related to the IDEA, the Rehabilitation Act

of 1973, and other state and federal laws for more than ten years. PSEAC also

provides free teaching and training services to parents, educational agencies,

professional organizations, and others relative to special education law issues, and

the development of the knowledge and skills necessary for collaborative decision

making in its processes. In addition, PSEAC provides advocacy relative to legal

and public policy under the IDEA.

University of San Diego Legal Clinics: The University of San Diego

(“USD”) Legal Clinics, Education and Disability Clinic, was founded in 2003 with

the dual purpose of training upper division law students in the practice of education

and disability law, while providing free legal services to lower income families in

San Diego County. It is one of eleven such client clinics at the USD School of

Law. These clinics, some of which began over forty years ago, are dedicated to

representing clients in diverse areas of law – clients who could not otherwise

possibly afford legal representation. The Education and Disability Clinic offers


5

legal advice and representation for claims under the IDEA, the Rehabilitation Act

of 1973, and California’s Lanterman Act. At any given time, this clinic has 25 to

30 open cases, working with the parents of children with disabilities.

STATEMENT PURSUANT TO FRAP 29(c)(5)

No counsel for either party authored this brief in whole or in part, and no

party, party’s counsel, or person or entity other than amici curiae, their members,

and their counsel contributed money that was intended to fund the preparation or

submission of this brief.


6

SUMMARY OF ARGUMENT

The instant award of attorneys fees to Capistrano Unified School District

(“Capistrano”) contravenes the express language and intent of the IDEA,

disregards controlling legal standards, and creates a dangerously murky threshold

for use in future determinations.

Congress drafted the IDEA with the understanding that parents play a

critical role in the education of their children with disabilities. Parents are essential

to the effectuation of the IDEA, both endowed with responsibility and bestowed

with their own legal rights. In this brief, amici explain how affirming the District

Court’s decision would greatly restrict parents’ ability to utilize the IDEA’s

procedural safeguards, thereby directly undermining Congress’s expressed intent.

Because the IDEA is already under-enforced, society and courts cannot afford to

lose parents’ ardent efforts to secure the free and appropriate public education

guaranteed by the IDEA for their children.

Although awarding attorneys fees to prevailing school districts may be

justified in the rare instance of abusive and egregious litigation, this is not that

case.3 Rather, the award below is a misapplication of the IDEA’s fee-shifting

3 In order to avoid duplicative briefing, amici will not focus on facts or merits of

the instant case. Rather, amici are uniquely situated to discuss this issue within the

broader context of IDEA application and enforcement, and the corresponding

policy implications.


7

provision and controlling case law. This Court has the responsibility to preserve

the integrity of the IDEA by reversing the order of the District Court.

ARGUMENT

Affirming the District Court’s ruling would create troubling consequences

that reach far beyond this individual case. As discussed below, the practice of

awarding fees against parents in an unreasonable and unpredictable manner

jeopardizes the structural integrity of the IDEA, which relies heavily upon parental

involvement and enforcement.

Although awarding attorneys fees against parents may be warranted in

certain extreme cases, it is critical that courts follow the clear language and intent

of the IDEA when awarding such fees, and apply the applicable Christiansburg

Garment standard with care.4 If courts do not, special education advocacy

organizations such as amici will be unable to assess the risk of representing parents

in even the most important and meritorious special education matters. Poor and

minority populations, who are already disproportionately underrepresented in

IDEA proceedings, would be particularly harmed by the unavailability of legal

representation.

4 Christiansburg Garment Co. v. Equal Emp’t Opportunity Comm’n, 434 U.S. 412

(1978). As discussed below, Christiansburg Garment provides the controlling

standard to be used when determining whether a prevailing school district may

recover attorneys fees in IDEA matters.


8

Affirming the District Court’s order would drastically chill amici’s efforts to

advance and protect the rights of students with disabilities, and risk the undoing of

decades of important civil rights work in the education arena.

I. THE IDEA IS EXPLICITLY DESIGNED TO PROTECT AND

INCLUDE PARENTS AND RELIES UPON THEM TO ENFORCE

THE STATUTORY SCHEME.

The purpose of the IDEA is “to ensure that all children with disabilities have

available to them a free and appropriate public education . . . and that the rights of

children with disabilities and parents of such children are protected.”5 To this end,

the IDEA affords parents substantive rights, “protections that apply throughout the

[special education planning] process,”6 and “general procedural safeguards that

protect the informed involvement of parents in the development of education for

their child.”7

Yet the IDEA is not a self-executing statute; it requires action by school

districts, educators, and parents alike. School districts, as government actors, must

meet “significant requirements” when it comes to “executing and developing

educational programs for handicapped children.”8 One such responsibility is to

collaborate with the parents of students with disabilities, who play an essential role

5 20 U.S.C. § 1400(d)(1)(A).

6 Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524

(2007). 7 Id.

8 Bd. of Educ. v. Rowley, 458 U.S. 176, 183 (1982).


9

in the education of their children.9 The United States Supreme Court has noted

that “[t]he core of the statute . . . is the cooperative process that it establishes

between parents and schools.”10

The IDEA includes parents in the special education process in countless

ways, including, but not limited to, naming parents as equal members of their

children’s Individualized Education Program (“IEP”) teams,11

requiring school

districts to obtain parental consent before implementing special education

services,12

and allowing parents to seek independent educational evaluations at

public expense.13

By emphasizing the inclusion of parents, Congress has

established a system that values and relies upon parents’ ability to facilitate and

support the education of their children.

Explicitly foreseeing that parents might, on occasion, be excluded from the

9 Id. at 205-06.

10 Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005) (citing Rowley, 458

U.S. at 205-06). 11

The term “IEP” refers to both a meeting and a document, which together form

the procedural cornerstones of the special education system. IEP team meetings

are the central vehicle for determining whether and how to provide a student with

special education services. IEP team members include special and general

education teachers, administrators, parents, and others with specialized and

particular knowledge of the student. This team identifies a student’s needs,

develops corresponding goals, determines what services are necessary to achieve

those goals, and decides the student’s school placement. These decisions are then

memorialized in a resulting IEP document. The team reconvenes at least annually

to review and update a student’s IEP document. See 20 U.S.C. § 1414. 12

20 U.S.C. § 1415(a)(1)(D). 13

20 U.S.C. § 1415(b)(1); 34 C.F.R. § 300.502(a).


10

IEP process or disagree with the school district regarding the appropriate education

for their children, Congress created a detailed scheme of statutory remedies to

enable parents to rectify such situations.14

These remedies include a number of

safeguards that require affirmative action by parents. Most relevant to this case, in

order to ensure the integrity of the statutory scheme, Congress has provided parents

the right to pursue claims in an administrative due process hearing and the right to

appeal an adverse hearing decision to either state or federal court.15

Parents who

prevail in due process hearings at either level may recover reasonable attorneys

fees from school districts.16

These safeguards profit from the fact that “parents and guardians will not

lack ardor in seeking to ensure that handicapped children receive all of the benefits

to which they are entitled by the Act.”17

Indeed, “[p]arents of children with

disabilities are uniquely situated to identify and raise the legal issues related to

persistent noncompliance with IDEA.”18

When crafting the IDEA, Congress

capitalized on parents’ natural attunement and commitment to their children’s

education. Through its chosen method of enforcement, Congress has functionally

14

See, generally 20 U.S.C. § 1415. 15

20 U.S.C. § 1415(f)-(h); see also Elisa Hyman, Dean Hill Rivkin, & Stephen A.

Rosenbaum, How IDEA Fails Families Without Means: Causes and Corrections

From the Frontlines of Special Education, 20 J. Gender, Soc. Pol’y & L. 107, 112

(2011). 16

20 U.S.C. § 1415(i)(3)(B)(i)(I). 17

Rowley, 458 U.S. at 208-09. 18

Nat’l Council on Disability, Back to School on Civil Rights 370 (2000).


11

deputized parents as private attorneys general who are necessary to achieve proper

effectuation of the IDEA.

As the United States Supreme Court has held, “the plaintiff is the chosen

instrument of Congress to vindicate ‘a policy that Congress considered of the

highest priority.’”19

Because of its choice to deputize parents, when courts address

IDEA claims, parents should be appreciated as the chosen instruments of Congress.

This choice also implicitly acknowledges that relying on government actors alone

will not always be sufficient to provide a free and appropriate public education to

children with special education needs. For this reason, Congress legislated in such

a way that ensures “that handicapped children and their parents or legal guardians

[will] be able to participate in the due process system and have access to the full

range of remedies to protect their educational rights on an equal par with the

school districts.”20

This choice to frame the IDEA’s enforcement mechanisms

around the rights and responsibilities of parents demonstrates that Congress not

19

Christiansburg, 434 U.S. at 418 (citing Newman v. Piggie Park Enters., Inc.,

390 U.S. 400, 402 (1968)). The court when on to say that “. . . when a district

court awards counsel fees to a prevailing plaintiff, it is awarding them against a

violator of federal law.” However, “these policy considerations which support the

award of fees to a plaintiff are not present in the case of a prevailing defendant.”

Piggie Park, 390 U.S. at 402. 20

131 Cong. Rec. 21,391 (1985) (statement of Sen. Edward M. Kennedy)

(emphasis added). The IDEA was initially passed as the Education for All

Handicapped Children Act of 1975, Pub. L. No. 94-142, § 1 (1975), but was

renamed in 1990. Members of Congress specified that their “original intent was

that due process procedures, including the right to litigation if that became

necessary, be available to all parents.” S. Rep. No. 99-112, at 2 (1985).


12

only believes in the intrinsic value of parental participation, but also believes it to

be necessary to achieving the goals of the IDEA.

II. SANCTIONING THIS AWARD OF ATTORNEYS FEES TO

CAPISTRANO WILL UNDERMINE THE INTEGRITY AND

EXECUTION OF THE IDEA.

Given that parents play a necessary and critical role to achieve proper

enforcement of the IDEA, their participation should be encouraged, not stymied.

As discussed below, awarding attorneys fees against parents in circumstances such

as in the instant matter will vitiate the structure and purpose of the IDEA by

preventing many from seeking redress at either the administrative or judicial level.

By properly confining awards of attorneys fees to school districts for only the most

egregious of circumstances, courts can buttress parent participation, and therefore

the IDEA itself.

A. Confirming this Award of Attorneys Fees Would Chill Parent

Participation in the Special Education Process at a Time When the

Statute Is Already Under-Enforced.

Proper effectuation and enforcement of the IDEA hinges on parents

affirmatively invoking their rights and safeguards. Parents will no longer be

willing to take these important steps if doing so puts them at unreasonable and

unpredictable risk of paying attorneys fees to a prevailing school district.

Already, the high cost of legal services prevents many parents from

obtaining representation in IDEA matters because “[t]heir financial situations . . .


13

typically do not permit sustained private legal action, and not enough public

resources are available to assist them.”21

Requiring parents to pay prevailing

school districts’ attorneys fees under anything but the most egregious of

circumstances would compound this problem by making the financial risk of

pursuing – or in this case defending against – IDEA claims prohibitively

expensive. Parents, particularly poor parents such as amici’s clients, would be

“extremely reluctant to initiate litigation for fear of being charged with a fee award

vastly exceeding the expected recovery, and in some cases their ability to pay.”22

For example, here the District Court has ordered C.W. to pay more than

$94,000 dollars to Capistrano.23

The median annual income in Orange County,

California, where Capistrano is located, is only $84,100.24

Families that amici

would serve in that same geographical area would collectively earn, at most,

$45,750 to support a family of four.25

Many would earn far less with much larger

households. For amici’s clients, incurring fee awards like the one imposed by the

District Court would be absolutely devastating. The unreasonable and

unpredictable risk of liability for attorneys fees created by the District Court’s

21

Nat’l Council on Disability, supra note 18, at 370. 22

Coates v. Bechtel, 811 F.2d 1045, 1049 (7th Cir. 1987). 23

Order Granting Def.’s Mot. for Att’y Fees, Dec. 5, 2012, ECF No. 55. 24

FY 2013 Income Limits Documentation System, Hous. Urban Dev.,

http://www.huduser.org/portal/datasets/il/il2013/2013summary.odn (select

“Orange County, CA HUD Metro FMR Area” on drop down menu; then follow

“Select HMFA Income Limits Area” hyperlink) (last visited Jun. 2, 2013). 25

Id.


14

order—especially considering parents’ unfavorable odds26

—would dissuade most

parents amici serve from pursuing valid IDEA claims. Chilling parental

enforcement of the IDEA comes with a high price but no gain. As this Court

acknowledged, “[t]he chilling effect upon civil rights plaintiffs would be

disproportionate to any protection defendants might receive against the prosecution

of meritless claims.”27

Chilling parent participation is also especially dangerous considering that the

IDEA is already an under-enforced statute. Although parents are the frontline

enforcers of the IDEA, the statute also requires states to monitor the provision of

special education services in school districts. Unfortunately, California has failed

to comply with the IDEA’s standards for over two decades due to “federal-level

ineffectiveness.”28

“Despite the establishment of state corrective action plans,

resulting from several years of federal monitoring between 1980 and 1996, the

26

See Ruth Colker, California Hearing Officer Decisions (Pub. L. & Legal Theory

Working Paper Series No. 185, 2013), available at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2201589 (finding that, overall,

parents prevail in California administrative hearings only thirty-six percent of the

time, and only five percent of the time without attorney representation). See also

James R. Newcomer & Perry A. Zirkel, An Analysis of Judicial Outcomes of

Special Education Cases, 65 Exceptional Children 469, 474 (1999) (finding that, in

a nationwide survey, school districts prevailed in sixty percent of administrative

due process proceedings). 27

Mitchell v. Office of L.A. Cnty. Superintendent of Sch., 805 F.2d 844, 848 (9th

Cir. 1986). 28 Patricia A. Massey and Stephen A. Rosenbaum, Disability Matters: Toward A

Law School Clinical Model for Serving Youth with Special Education Needs, 11

Clinical L. Rev. 271, 276 (2005).


15

California school system continues to be plagued by a variety of problems that

stand in the way of the core IDEA entitlement[s].”29

In fact, the California

Department of Education is currently facing suit in federal court for its alleged

failure to adequately monitor school districts and ensure that students with

disabilities receive a free and appropriate public education pursuant to the IDEA.30

Yet this problem is by no means unique to California. In its 2008 annual

report to Congress, the United States Department of Education found that only nine

states met the requirements for the provision of services to school-aged children

under the IDEA.31

The remaining states were determined to need either assistance

or intervention.32

Without adequate governmental enforcement, the primary burden to

effectuate and enforce the IDEA falls on parents. In a report to the White House,

the National Research Council found that “as a result of twenty-five years of non-

enforcement by the Federal Government, parents are still a main enforcement

vehicle for ensuring compliance with the IDEA.”33

Parents are the backstop on

29

Id. 30

Morgan Hill Concerned Parents Assoc. v. Cal. Dep’t. of Educ., 2013 WL

1326301 (E.D. Cal. Mar. 29, 2013). 31

U.S. Dep’t. of Educ., Thirtieth Annual Report to Congress On the

Implementation of the Individuals with Disabilities Education Act 163 (2008),

available at: http://www2.ed.gov/about/reports/annual/osep/2008/parts-b-

c/index.html. 32

Id. 33

Nat’l Council on Disability, supra note 18, at 351.


16

which IDEA enforcement depends. If an unreasonable and uncertain threat of

attorneys fees chills their utilization of the IDEA’s procedural safeguards, the

practical reality would mean not just under-enforcement, but non-enforcement.

B. Confirming this Award of Attorneys Fees Would Prevent Parents From

Obtaining Legal Representation, Disproportionately Impacting Poor

and Minority Families and Widening the Enforcement Gap.

Increasing the risk of school district fee awards by weakening the certain

and reasonable standard established by the IDEA would inevitably shrink the

already low number of attorneys that represent parents in IDEA matters, such as

amici.

In Prescott, the Court accurately noted that, just as parents would be

dissuaded, “[l]awyers would be improperly discouraged from taking on potentially

meritorious IDEA cases if they risked being saddled with a six-figure judgment for

bringing a suit where they have a plausible, though ultimately unsuccessful,

argument.”34

Lowering the IDEA’s threshold for awarding fees against parents, as

the District Court has done here, would prevent special education advocacy

organizations like amici from fulfilling their missions because they could not

afford the financial risk. Amici are representative of a significant portion of the

special education advocacy bar, which is predominantly comprised of legal service

34

See R.P. ex rel. C.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1126 (9th Cir.

2011).


17

organizations and non-profit firms.35

These attorneys are few in number and

constrained by limited funding to support the provision of free or significantly

reduced cost legal services to traditionally disadvantaged and underserved

populations, such as poor and minority parents.36

Special education advocacy organizations throughout the nation have

already reported turning away anywhere from sixty to ninety-seven percent of

requests for substantive legal advocacy.37

Without the help of attorneys, parents

will have to either abandon meritorious claims or proceed pro se, with little hope

of succeeding at either the administrative or judicial level.38

This will leave

parents that choose to proceed unrepresented at even greater risk of incurring fee

awards, and will burden the courts with unsavvy pro se litigants.

35

The special education advocacy bar also includes some solo practitioners and

small for-profit firms, and a few pro bono attorneys at large law firms. See About

COPAA, Council of Parent Attorneys & Advocates (last visited May 17, 2013),

http://www.copaa.org/?page=about. 36

A 2009 Legal Services Corporation national study found that there is one legal

aid attorney available for every 6,415 low-income people. In contrast, “there is

one attorney providing personal legal services . . . for every 429 people in the

general population who are above the LSC poverty threshold.” Legal Servs. Corp.,

Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of

Low-Income Americans 1 (Sept. 2009). 37

Brief for the Autism Soc’y of Am. et al. as Amici Curiae in Support of

Petitioners at 6-8, Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S.

516 (2007) (No. 05-983), 2006 WL 3740367. See Also Legal Servs. Corp., supra

note 36 (finding that programs funded by the Legal Services Corporation must turn

away fifty percent of people seeking legal assistance due to insufficient resources). 38

Colker, supra note 26 (finding that unrepresented parents prevail only five

percent of the time, a thirty-one percent drop from the rate of represented parents).


18

In addition to circumscribing parents’ ability to secure legal representation

in IDEA matters, affirming the District Court’s murky threshold for awarding

attorneys fees against parents would undermine Congress’s distinct efforts to

distribute educational resources equitably.39

The plain language of the IDEA

reveals Congress’s belief that “[a] more equitable allocation of resources is

essential for the Federal Government to meet its responsibility to provide an equal

educational opportunity for all individuals.”40

To achieve the goal of evenly

allocating educational resources across diverse populations, the IDEA, among

other things, focuses extra efforts on students whose first language is not English.41

It also funnels more federal funding to states with larger populations of low-

income students.42

Additionally, the recently established Equity and Excellence

Commission is tasked with considering “how the Federal government can increase

educational opportunity by improving school funding equity.”43

These affirmative

steps by Congress demonstrate that equitable distribution of educational resources

is a high priority.

39

See Eloise Pasachoff, Special Education, Poverty, and the Limits of Private

Enforcement, 86 Notre Dame L. Rev. 1413, 1417 (2011). 40

20 U.S.C. § 1400(c)(7). 41

Id. at § 1400(c)(10)-(13). 42

Id. at § 1411(a)(2), (d)(3)(a). 43

See Equity and Excellence Commission, 75 Fed. Reg. 48,661 (Aug. 11, 2010),

available at https://federalregister.gov/a/2010-19800.


19

Despite the IDEA’s efforts to achieve equitable distribution, wealthy

families routinely use the IDEA’s private enforcement mechanisms more than poor

parents.44

This is not because a greater number of special education students come

from wealthier families. In fact, the majority of children eligible for special

education services are from low-income families: one quarter of IDEA-eligible

children live below the poverty line and two-thirds live in households with

incomes of fifty thousand dollars or less.45

Rather, the disparity in IDEA

enforcement stems from the fact that “families with more financial (and perhaps

more educational) resources are better situated to pursue their rights under the

IDEA.”46

If the number of attorneys providing free or discounted legal services

decreases—as it inevitably would with an increased risk of fee awards against

parents—even fewer poor and minority parents would be able to pursue IDEA

claims, worsening the existing enforcement disparity.

This enforcement disparity is particularly alarming because poor and

minority parents may have the greatest need for legal representation in IDEA

proceedings. Informational and positional asymmetries between parents and

44

Pasachoff, supra note 39, at 1418. 45

Hyman, Rivkin, & Rosenbaum, supra note 15, at 112. These numbers are due,

in part, to the overrepresentation of minority students in special education

programs. See Margaret M. Wakelin, Challenging Disparities in Special

Education: Moving Parents from Disempowered Team Members to Ardent

Advocates, 3 Nw. J. L. & Soc. Pol’y 263, 270 (2008). 46

Pasachoff, supra note 39, at 1427.


20

school districts disadvantage all parents in special education matters, but especially

those parents who have less education, sophistication, and English-language

fluency. “The balance of power in [the special education] relationship is

significantly tipped towards the parties with knowledge”47

and school districts,

being repeat players in the special education system, have both institutional and

experiential knowledge.48

In addition, “[i]n high-poverty and minority schools . . .

parent advocacy is less likely to occur and parents are more likely to feel

intimidated by the IDEA’s due process system.”49

Compared to wealthier parents,

low-income parents may have more trouble recognizing when their rights under the

IDEA have been violated.50

Because parents in poor and minority communities are

more vulnerable to the IDEA’s predisposition to favor repeat players such as

school districts, they are in greater need of access to legal representation.

Amici work with these at-risk populations and serve these parents who are

otherwise unable to afford or access legal services. Yet amici, like parents, could

not swallow steep awards of attorneys fees and would have to turn away an even

47

Id. 48

Marc Galanter coined the term “repeat players” to refer to institutional actors in

our legal system who have more experience and lower stakes. See Mark Galanter,

Why the “Haves” Come out Ahead: Speculations on the Limits of Legal Change, 9

L. & Soc’y Rev. 95, 97 (1974). At the other end of the spectrum are “one-

shotters” who have less experience and higher stakes. Id. In the context of the

IDEA, school districts are repeat players and parents are one-shotters. 49

Wakelin, supra note 45, at 271. 50

Pasachoff, supra note 39, at 1439.


21

greater percentage of requests for legal assistance if the Court endorses the District

Court’s low and murky threshold for fee awards against parents. By curtailing

access to legal representation for those who need it the most, upholding the District

Court’s order would undermine the integrity of the IDEA’s enforcement

mechanisms and subvert its admirable equalizing efforts.

III. AFFIRMING THE DISTRICT COURT’S AWARD OF ATTORNEYS

FEES WOULD UNDERMINE CONGRESS’S EXPRESS INTENTION

THAT THE IDEA’S FEE-SHIFTING PROVISION BE TREATED

LIKE THAT OF A CIVIL RIGHTS STATUTE.

The fee-shifting provision of the IDEA is notably pegged to a well-settled

civil rights standard. This was no accident; when amending the IDEA to allow for

the collection of attorneys fees, Congress made very clear that it intended the

Christiansburg Garment standard to apply to prevailing school districts.

Congress’s choice has two important implications. First, the IDEA’s fee-shifting

provision must be treated like that of a civil rights statute. Second, ultimate

success on the merits cannot be the yardstick against which the value of a parent’s

claim is measured for fee-shifting purposes.

A. Courts Must Effectuate Congress’s Clear Decision to Model the IDEA’s

Fee-Shifting Provision on the Christiansburg Garment Standard.

Congress’s efforts to evoke civil rights statutes in the fee-shifting provision

of the IDEA are readily apparent in both the IDEA’s legislative history and the

statutory text.


22

Prevailing parents have been able to recover attorneys fees under the IDEA

since 1984.51

The relevant amendment came in direct response to the United States

Supreme Court’s decision in Smith v. Robinson, which held that fees were

unavailable under the IDEA.52

Congress, finding this decision to be inequitable,

immediately amended the statute to allow prevailing parents to recover “reasonable

attorneys’ fees” from school districts.53

As this Court has observed, “the IDEA's

fee-shifting provision . . . is nearly identical to [Section] 1988.”54

More recently,

in Prescott this Court reiterated its commitment to interpreting the IDEA within

this clear civil rights framework.55

The parallel language unquestionably

establishes that “[t]he standards governing the award of attorneys’ fees under

[Section] 1988 are applicable to awards under the IDEA.”56

Like this general civil

rights provision, parents need only prevail under the IDEA—nothing more—in

order to recover their attorneys fees.

51

See 20 U.S.C. § 1415(i)(3)(B)(i)(I). 52

468 U.S. 992, 1021 (1984). 53

See Handicapped Children’s Protection Act of 1986, Pub. L. No. 99-372, 100

Stat. 796 (codified as amended at 20 U.S.C. § 1415 (2006)). 54

Aguirre v. L.A. Unified Sch. Dist., 461 F.3d 1114, 1117 (9th Cir. 2006)

(emphasis added) (referencing 42 U.S.C. § 1988). 55

631 F.3d at 1124 (citing Aguirre, 461 F.3d at 1117) (“We’ve previously noted

that the language of the IDEA’s fee-shifting statute is ‘nearly identical’ to 42

U.S.C. § 1988, the general fee-shifting provision for federal civil rights cases.”). 56

Kathleen H. v. Mass. Dep’t of Educ., 154 F.3d 8, 14 (1st Cir. 1998) (referencing

42 U.S.C. § 1988).


23

It was not until 2004 that Congress modified the IDEA to allow prevailing

school districts to seek reasonable attorneys fees and, even then, it circumscribed

their ability to seek fees to two narrow sets of circumstances: (1) when the attorney

of a parent pursues a cause of action that is frivolous, unreasonable, or without

foundation; or (2) when the parent’s cause of action was presented for any

improper purpose.57

First, the IDEA’s fee-shifting provision allows prevailing school districts to

collect fees from “the attorney of a parent who files a complaint or subsequent

cause of action that is frivolous, unreasonable, or without foundation, or against the

attorney of a parent who continued to litigate after the litigation clearly became

frivolous, unreasonable, or without foundation.”58

In crafting this prong of the fee-

shifting provision, Congress deliberately bound it to the standard used in civil

rights cases:

“[T]his bill incorporate [sic] for the first time, well established civil rights

guidelines setting forth the rare circumstances when school districts can

recover fees from parents or their attorney’s [sic]. These standards were

developed in Christiansburg Garment Co., v. EEOC, 1978.”59

57

20 U.S.C. § 1415(i)(3)(B)(i)(II)-(III). 58

Id. at § 1415(i)(3)(B)(i)(II). Notably, this prong does not allow the recovery of

fees from parents themselves. 59

150 Cong. Rec. 11,453 (2004) (statement of Sen. Edward M. Kennedy). In

Christiansburg Garment, the United States Supreme Court held that while parents

in Title VII cases need only prevail to seek reasonable attorneys fees, a court may

only “award attorney’s fees to a prevailing defendant . . . upon a finding that the


24

Although the Christiansburg Garment standard is well established, this

prong of the IDEA’s fee-shifting provision has not been extensively litigated.

Those courts that have interpreted this prong of the IDEA have endorsed

application of the Christiansburg Garment standard.60

This Court, in particular,

acknowledged that standard in Prescott.61

Similarly, the Second Circuit explicitly

acknowledged the judiciary’s responsibility to effectuate Congress’s intentions in

this manner when administering the IDEA:

“[w]ith respect to prevailing-defendant educational agencies . . . Congress

explicitly adopted the standard . . . established in Christiansburg Garment.

. . . [I]n interpreting fee-shifting statutes and determining the applicable

standard for cabining judicial discretion to award attorney’s fees, the

Supreme Court has considered the policies and goals of the relevant

statute.”62

This approach appreciates that the objective of interpreting any federal statute is to

effectuate congressional intent.63

As such, courts facing attorneys fees requests

plaintiff's action was frivolous, unreasonable, or without foundation, even though

not brought in subjective bad faith.” 434 U.S. at 421. 60

See, e.g., Sagan v. Sumner Bd. of Educ., 501 Fed. Appx. 537, 541 (6th Cir.

2012); Doe ex rel. Doe v. Attleboro Pub. Sch., No. 1:12-CV-10266-DJC, 2013 WL

1002249 at *12 (D. Mass. Mar. 14, 2013); Oakstone Cmty. Sch. v. Williams, No.

2:11-CV-1109, 2012 WL 4051322 at *4 (S.D. Ohio Sept. 13, 2012); Taylor P. ex

rel. Chris P. v. Miss. Dep’t. of Elementary & Secondary Educ., No. 06-4254-CV-

C-NKL, 2007 WL 2907825 at *40 (W.D. Mo. Oct. 3, 2007). 61

Prescott, 631 F.3d at 1125. 62

Mr. L. v. Sloan, 449 F.3d 405, n.2 (2d Cir. 2006). 63

See Takao Ozawa v. U. S., 260 U.S. 178, 194 (1922) (“It is the duty of this Court

to give effect to the intent of Congress.”); Fort Ord Toxics Project, Inc. v. Cal.

E.P.A., 189 F.3d 828, 834 (9th Cir. 1999) (“Our job is to effectuate Congressional

intent as expressed in the statutory text.”).


25

under this prong of the IDEA’s fee-shifting provision should follow this Court’s

lead by effectuating Congressional intent through appropriate application of

Christiansburg Garment.64

Although demanding, the Christiansburg Garment standard provides courts

with adequate recourse for addressing those few claims that are utterly without

merit or brought for an intentionally improper purpose. When a court believes it is

facing such a claim, the proper question is “whether the case is so lacking in

arguable merit as to be groundless or without foundation.”65

Answering this

question involves a very fact-specific inquiry and these decisions “are to be made

on a case-by-case basis.”66

There is no hard and fast rule for evaluating these

situations;67

“[a]n award of attorney fees against a losing plaintiff in a civil rights

action is an extreme sanction, and must be limited to truly egregious cases of

misconduct.”68

In the context of the IDEA, the Christiansburg Garment standard allows for

awards to prevailing school districts only when the specific facts of a particular

case are so egregious as to warrant this drastic remedy. As legislative history

64

See Hawkins v. Berkeley Unified Sch. Dist., 250 F.R.D. 459, 464 (N.D. Cal.

2008) (noting that when amending the IDEA, “Senator Kennedy specifically

recited the Christiansburg standard”). 65

Jones v. Tex. Tech. Univ., 656 F.2d 1137, 1145 (5th Cir. 1981). 66

Sullivan v. Sch. Bd. of Pinellas Cnty., 773 F.2d 1182, 1189 (11th Cir. 1985). 67

Id. 68

Riddle v. Egensperger, 266 F.3d 542, 547 (6th Cir. 2001) (citing Jones v. Cont’l

Corp., 789 F.2d 1225, 1232 (6th Cir.1986)).


26

indicates, “[d]efendants can only get fees against a parent’s attorney if the case is

wholly without legal merit and against parents only in the most egregious case

where the parent acts in bad faith, knowingly filing a complaint for the sole

purpose of embarrassing or harassing the school district.”69

By adopting the

Christiansburg Garment standard into the IDEA, Congress has imposed a heavy

burden on those school districts attempting to collect attorneys fees under this

prong of the IDEA’s fee-shifting provision. That burden has not been met in the

instant case.

Second, the IDEA’s fee-shifting provision sets forth another, even more

limited category of cases in which prevailing school districts may seek and recover

fees. Specifically, school districts may seek fees “against the attorney of a parent,

or against the parent, if the parent’s complaint or subsequent cause of action was

presented for any improper purpose, such as to harass, to cause unnecessary delay,

or to needlessly increase the cost of litigation.”70

This is the only prong of the fee-

shifting provision that allows for awards against parents themselves. Perhaps for

that very reason, this prong requires an even greater showing by a prevailing

school district.

69

150 Cong. Rec. 11,453 (2004) (statement of Sen. Edward M. Kennedy)

(emphasis added). 70

20 U.S.C. § 1415(i)(3)(B)(i)(III).


27

As this Court articulated in Prescott, “[a]s a matter of law, a non-frivolous

claim is never brought for an improper purpose.”71

Accordingly, when analyzing

whether a parent’s claim is improper, courts must first determine whether the claim

is potentially meritorious. If so, it cannot be improper. Thus, as a matter of law, a

prevailing school district must always satisfy the Christiansburg Garment test,

regardless of which prong of the fee-shifting provision it is attempting to invoke.

If able to clear this stringent threshold, a prevailing district must then show that the

claim was intentionally brought to harass, waste time or impose costs on the school

district.72

Put another way, the IDEA requires that courts must be absolutely sure

that a parent’s claim is utterly without merit and truly vexatious before awarding

fees to prevailing school districts under the third prong. Here, the district brought

the underlying administrative case against the parent and student. Given the

IDEA’s purpose and framework, it is hard to see how a defendant parent could be

found to have brought a claim on appeal that is utterly without merit and for the

purposes of vexatious and intentional harassment.

71

631 F.3d at 1126 (citing Townsend v. Holman Consulting Corp., 929 F.2d 1358,

1362 (9th Cir. 1991). 72

Although the District Court found “frivolity” to be present, it failed to

appropriately apply the Christiansburg Garment standard to determine whether the

defendant parent’s claims were so utterly lacking merit, thus undermining its

analysis of the school district’s right to fees under both prongs of the IDEA’s fee-

shifting provision.


28

Prevailing school districts’ ability to seek attorneys fees may be of recent

vintage, but the applicable legal standard is not. The Christiansburg Garment test

sets a high and well-established bar, which Congress purposefully imported into

the IDEA. This standard permeates and controls both prongs that allow prevailing

school districts to collect fees against parents. Recognizing that awarding fees

against parents is counterintuitive to the IDEA’s underlying purpose, Congress has

reserved such awards for only the most extreme and egregious situations to ensure

courts only reprimand true abuse of the judicial system. No such abuse has

occurred in this case, leaving this Court with the opportunity – and duty – to

correct the District Court’s misapplication of a well-settled standard.

B. Courts Must Not Let Whether Parents Prevail Cloud Their Application

of the Christiansburg Garment Standard.

Courts must make a clear distinction between a claim that fails and a claim

that is frivolous under Christiansburg Garment. A claim cannot be frivolous

simply because the parent fails to state a claim for relief or because no reasonable

jury could find in her favor.73

Similarly, “district court[s] [must] resist the understandable temptation to

engage in post hoc reasoning by concluding that, because a plaintiff did not

ultimately prevail, his action must have been unreasonable or without

73

Hughes v. Rowe, 449 U.S. 5, 15-16 (1980) (“Allegations that, upon careful

examination, prove legally insufficient to require a trial are not, for that reason

alone, ‘groundless’ or ‘without foundation’ as required by Christiansburg.”).


29

foundation.”74

“This kind of hindsight logic could discourage all but the most

airtight claims, for seldom can a prospective plaintiff be sure of ultimate

success.”75

Fee awards against losing plaintiffs are therefore inappropriate where there

is no clear law on the issue or there exists a reasonable argument for extending or

changing existing law.76

“Even when unsuccessful, such suits provide an

important outlet for resolving grievances” and “create[] respect for law.”77

It is for this reason that fees are available in civil rights cases to all

prevailing plaintiffs, but only to defendants who face frivolous suits.78

“This

policy was adopted expressly in order to avoid discouraging civil rights plaintiffs

from bringing suits, and thus ‘undercut[ting] the efforts of Congress to promote the

vigorous enforcement of’ the civil rights laws.”79

74

Christiansburg Garment, 434 U.S. at 421-22. 75

Id. at 422. 76

Int’l Bhd. of Teamsters v. Silver State Disposal Serv., Inc., 109 F.3d 1409, 1412

(9th Cir. 1997) (quoting Parks Sch. of Business, Inc. v. Symington, 51 F.3d 1480,

1489 (9th Cir. 1995) (refusing to award attorneys fees where the Ninth Circuit had

not applied the underlying legal doctrine on which defendant prevailed in a

published opinion for more than a decade, and where there was a “dearth of case

law defining the precise contours of the exceptions to the doctrine.”)); Larez v.

Holcomb, 16 F.3d 1513, 1522 (9th Cir. 1994) (“[W]e must exercise extreme

caution in sanctioning attorneys under Rule 11, particularly where such sanctions

emerge from an attorney’s efforts to secure the court’s recognition of new rights.”). 77

Harris v. Maricopa Cnty. Sup. Crt., 631 F.3d 963, 971 (9th Cir. 2011). 78

Compare 20 U.S.C. § 1415(i)(3)(B)(i)(I), with id. § 1415(i)(3)(B)(i)(II)-(III). 79

Harris, 631 F.3d at 971 (quoting Christiansburg Garment, 434 U.S. at 422).

Civil rights organizations such as amici advance the law by taking calculated risks


30

Allowing a failed argument or the ultimate outcome of a case to distort the

analysis of a school district’s right to recover attorneys fees, and worse using such

factors to invite school districts to seek fees, as this District Court has done twice

in recent months,80

undermines and misinterprets Congress’s clear intent to

generally protect parents as chosen instruments of Congress.

IV. CONCLUSION

When designing the IDEA, Congress chose to erect a statutory scheme that

first rests upon collaboration between school districts and parents, and second

relies upon parents to take action as functional private attorneys general if and

when that collaboration fails. Because of long-standing government under-

enforcement, parents have become the pillars on which the successful execution of

the IDEA rests. Indeed, without the necessary private enforcement by parents, the

purpose and integrity of the entire statute is at risk.

Affirming the District Court’s order would obfuscate the clear language of

the IDEA and corresponding Christiansburg Garment standard, and leave parents

and amici with a murky threshold for measuring the risk inherent in bringing even

the most meritorious and carefully selected cases. Such action would drastically

chill amici’s efforts to advance and protect the rights of students with disabilities,

and amici are careful to ensure that only viable arguments to advance the law are

brought. 80

See G.M. v. Saddleback Valley Sch. Dist., No. SACV 11-1449 DOC, 2012 WL

5947213 (C.D. Cal. Nov. 26, 2012).


31

and risk the undoing of decades of important civil rights work in the education

arena. For these reasons, amici respectfully request that this Court reverse and

vacate the instant award of attorneys fees to Capistrano.

Dated: June 6, 2013 Respectfully submitted,

By: s/ .

Carly J. Munson

YOUTH & EDUCATION LAW PROJECT

MILLS LEGAL CLINIC

STANFORD LAW SCHOOL

559 Nathan Abbott Way

Stanford, CA 94305

Telephone: (650) 724-1900

Attorneys for Amici Curiae


32

Certificate of Compliance

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tables, certificates, disclosures, and prefatory interests of amici.

June 6, 2013 By: s/ .

Carly J. Munson


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