In El Paso Independent School District v. Berry, the Fifth Circuit Court of Appeals recently upheld the District Court’s decision to award the School District $10,000 in attorneys’ fees against a parent whose attorney continued to litigate claims for unnecessary special education services.

In 2007, El Paso Independent School District determined that a student no longer qualified for speech therapy services under the Individuals with Disabilities Education Improvement Act (IDEA). Although the District agreed to the parent’s request for a reevaluation, the student’s mother nevertheless filed a due process complaint against the District. The District continued to find the student ineligible for special education services, but recommended that the student undergo a full evaluation to determine if the student qualified for services under any other disabilities. The District also made multiple settlement offers to the student’s mother, including offers to provide the mother with all of the relief she requested in the due process complaint. The mother refused to consent to the full evaluation for the student and rejected all of the District’s settlement offers.

The District moved to dismiss the mother’s due process complaint as moot because it offered all of her requested relief, and filed a counterclaim seeking to reevaluate the student without his mother’s consent. The hearing officer granted the District’s motion to dismiss the complaint, and the District Court affirmed the dismissal. The hearing officer denied the District’s request to reevaluate the student; however, the District Court reversed this decision and permitted the District to reevaluate the student. Although the mother’s attorney never disputed the District’s findings on the student’s lack of eligibility for services, he continued with the litigation and appealed the District Court’s decisions. On appeal, the Fifth Circuit affirmed both of the District Court’s rulings against the mother. The School District then filed a motion to recover its attorneys’ fees from the mother, which the District Court granted, and the Fifth Circuit affirmed.

Although the federal regulations only permit school districts to recover attorneys’ fees in limited situations, the Fifth Circuit found the School District was entitled to recover fees in this case because the parent’s attorney continued to litigate claims after they clearly became frivolous, unreasonable and without foundation. Finding that the School District was the “prevailing party,” both courts found the District was entitled to fees because the parent’s attorney continued to litigate moot claims, advised the parents to reject the District’s settlement offers of full relief despite the moot claims, and refused to cooperate with the School District’s attempts to resolve the dispute without litigation and provide the student with an appropriate education.

While this case is not binding on Illinois school districts, it is nevertheless instructive as it is among the small but growing number of cases awarding attorneys’ fees to school districts in special education litigation.