Inevitably, most public school boards will face a parent’s request for an educational due process hearing related to their child’s special education services. In every due process case, there are multiple opportunities to settle the dispute, including the statutory resolution session and mediation provided by the Ohio Department of Education. When approaching these settlement opportunities, districts naturally hope to resolve the parent’s issues at the lowest possible cost.

One issue that is often overlooked or ignored when drafting settlement proposals is a parent or guardian’s attorney fee demands. Recently, in Brighthaupt v. District of Columbia (D.C.C., 2014), the district’s settlement offer included $300 for attorney fees. At that point in the litigation, the parent’s attorney had worked 15.4 hours on the case, advancing the claim the school board denied her client’s child a free and appropriate public education. The settlement offer was acceptable  in all respects (additional therapies and an independent educational evaluation), save for the offer related to attorney fees. The court ruled that the parent was substantially justified in rejecting the settlement offer based solely upon the attorney fee issue because of the attorney’s experience in the field of special education law and the fact the school district should have known its offer was unreasonable. Ultimately, the school board was ordered to pay an additional $24,000 in attorney fees after a hearing.

The Brighthaupt case does not mean a parent’s demand for attorney fees must be approved without discussion and/or negotiation. It simply means that a settlement offer that does not reasonably address a parent/guardian’s demand for attorney fees exposes the district to liability for those fees later should the due process hearing ensue.