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Published in Print: June 16, 1999, as Court Lets Stand Ruling on Lawyer-Parent's Legal Fees

Court Lets Stand Ruling on Lawyer-Parent's Legal Fees

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The U.S. Supreme Court declined last week to hear the appeal of a Maryland lawyer-parent who sought an award of attorney's fees in his legal battle with a school district over his son's special education plan.

The parent, identified only as John Doe, represented his family in the dispute with the Baltimore County district over services for his autistic son, identified only as Tom Doe.

Under the federal Individuals with Disabilities Education Act, federal courts may award attorney's fees to the parents of children with disabilities who are the "prevailing party" in a legal action brought under the law.

The Does sought to have the district pay to place their son in a special program for autistic children known as a Lovass program, after its developer. According to the Doe family's court papers, it is a specialized program usually favored by parents of autistic children but "avoided like the plague by 99 percent of the school districts in the United States."

The district declined to pay for the program, and a hearing officer upheld its position. A state appeals panel, however, ruled that the Lovass program was appropriate for Tom Doe, and it ordered that the family be reimbursed more than $10,000 in program costs and $2,000 in expert-witness fees for the administrative hearings.

But a federal district court rejected Mr. Doe's request for attorney's fees under the IDEA. Both the district court and a panel of the U.S. Court of Appeals for the 4th Circuit, based in Richmond, Va., held that Congress did not intend for parents who happen to be lawyers to be reimbursed for legal fees under the law.

The appeals panel noted that the Supreme Court ruled in a 1991 case that lawyers who represent themselves in civil rights cases cannot win attorney's fees under a federal law that is similar to the relevant provision of the IDEA.

The appeals court panel said the purpose behind those "fee shifting" provisions was to "encourage the effective prosecution of meritorious claims." That purpose is best pursued by hiring independent lawyers, the court said.

"Attorney-parents are generally incapable of exercising sufficient independent judgment on behalf of their children to ensure that reason, rather than emotions will dictate the conduct of the litigation," the appellate panel said.

Most parents will "of course fight for their children" in IDEA proceedings, "with or without a statutory award of fees for their services," the court added. "To permit an attorney-parent to recover statutory fees for representing his child in IDEA proceedings is thus not necessary to ensure a parent's efforts on behalf of his child."

The Does were seeking some $7,200 in legal fees for Mr. Doe's work.

The Supreme Court declined without comment on June 7 to hear the appeal in Doe v. Board of Education of Baltimore County (Case No. 98-1613).

Principal's Case

The court declined the same day to review another case involving legal fees in a school board dispute.

In Miller v. Board of Trustees, Ririe Joint School District No. 252 (No. 98-1625), lawyers for the National Education Association and the Idaho Education Association sought fees for representing an elementary school principal who was fired by the Ririe, Idaho, district.

The case involved Nikkie Miller, who was terminated by the Ririe school board in 1997. Ms. Miller's lawyers argued they were entitled to fees because their lawsuit was partially successful. They succeeded in having two school board members removed from the termination proceedings because they had made comments that had cast doubt on their ability to act as impartial adjudicators.

Both a state trial court and the Idaho Supreme Court rejected the request.

The U.S. Supreme Court declined without comment to review the case.

Vol. 18, Issue 40, Page 16

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