Parents' Attorneys Beware - Guidance on Fee Shifting

In a case out of the Second Circuit Court of Appeals addressing a fee shifting provision similar to the IDEA, which allowed prevailing parties to recover counsel fees under the Fair Labor Standard's Act, the Court found that an attorney could not recover fees for time for which he did not keep contemporaneous time records.

In the case of Scott v. City of New York (2d Cir. 2011), the Court denied the request of the prevailing party's fees for time the attorney spent on the case, but did not contemporaneously keep records of.  The only leeway the Court gave was to allow the attorney to recover for time that he spent in court or in conferences with the court for which there was a record of the appearance and a means by which to determine the length of time for the appearance. 

This could have implications in other fee shifting cases, including IDEA and Section 504 cases, in the same manner.  This case should be a warning to counsel for parents who intend to seek fees to keep accurate and contemporaneous time records and offers schools district counsel a possible weapon to attack fee demands. 

UPDATE ON CHANGE IN CALENDAR CASE

Back in October, I reported on a case out of Hawaii where school districts changed the school calendar to have Furlough Fridays in a money saving effort.  Parents of a number of special education students filed suit claiming the change amounted to a change in programing under IDEA, without parental consent.  While not yet ruling on the merits, the U.S. District Court has at least hinted at what the answer might be on this question.  The Court has refused to issue a preliminary injunction to stop Furlough Fridays, finding that it believes the plaintiffs were unlikely to succeed on their claims.  Thus, we have a hint of where the Court may be going, but a final decision may be some way off. 

IS A CHANGE IN THE SCHOOL CALENDAR A CHANGE IN PROGRAMING?

In Hawaii, students will now be getting seventeen Fridays off this year and seventeen next year in an effort to save money through a furlough of teachers.  However, several lawyers representing a group of students who qualify for special education have filed a suit trying to stop the plan.  The argument is that by taking seventeen days out of the school year, this is a change in programs and services the disabled children receive.  Given that the parents of these students were not consulted prior to this change, the suit alleges it violates the rights of the parents under IDEA.  The suit seeks a temporary restraining order and the first furlough day is this Friday.  Thus, we may know very shortly if in fact such a change in scheduling is a change that requires parental consent under the IDEA. 

Commonwealth Court finds Office of Dispute Resolution Manual is Not Binding

The Pennsylvania Commonwealth Court has held that the Office of Dispute Resolution Manual does not have the force of law.  In the case of Bethlehem Area School District v. Diane Zhou  the Commonwealth Court denied the request of a parent of a gifted student to have the transcript of a Gifted Due Process Hearing translated into Mandarin Chinese.  In reaching this conclusion, the Commonwealth Court found that the reliance upon ODR's Manual to support a right to the requested translation was insufficient, as the same does not have the force of law.  The Court found that only the properly adopted regulations had the force of law.  While the regulations at issue have since changed, and now require the provision of a transcript to the parents in gifted due process hearings, as has long been the case in special education matter, it is not clear what effect the ruling could have on other parts of the ODR Manual which are not contained in the more formal regulations regarding these cases. 

SUPREME COURT CLOSES OUT ITS TERM BY REFUSING TO HEAR TWO SCHOOL RELATED CASES

The United States Supreme Court finished out its term last week by refusing to hear two cases related to schools.

First, in the case of Truth v. Kent School District the Court was asked to rule on whether a school district could refuse to recognize a Christian club named "Truth."  The school refused to recognize the group on the basis that its name might be a concern and that members were required to sign a statement of Christian faith, which violated the district's non-discrimination policy.  The club filed suit claiming the action violated the Equal Access Act and the First Amendment, but two lower courts disagreed.  The Supreme Court declined to hear the appeal, which means the lower court decisions stand. 

Next, in the case of Winkelman v. Parma City School District, the Court refused to hear an appeal of parents who were seek tuition reimbursement and raised issues of whether or not a court may look beyond the four corners of an IEP to determine if it is appropriate.  The trial court looked beyond the IEP in its decision and denied tuition reimbursement, with the decision being upheld by the Sixth Circuit Court of Appeals.  This is the second time the Winkelman's attempted to go to the Supreme Court, the last time they were successful and the Court found that they could proceed without counsel and represent the student in Court.  This subsequent appeal was on the merits of the case.