Change in Classification May Merit Attorney’s Fees

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Change in Child’s Classification Qualifies Parents As Prevailing Party
Posted on June 17, 2010 by

The U.S. Court of Appeals for the 9th Circuit held that the change in a student’s classification was sufficient to confer prevailing party status on the parents, even in light of of the fact that the student received appropriate special education services despite the misclassification of his disability. As such, the parents could recover attorney’s fees from a California school district. Further, the court held that the child’s representation by his attorney grandmother did not preclude an award of fees under the IDEA. Weissburg v. Lancaster Sch. Dist., 53 IDELR 249 (9th Cir. 2010).

As long as the child receives appropriate services, the label affixed to a child’s disability is generally not important for FAPE purposes. However, this case demonstrates that a change in classification may be enough to support an award of attorney’s fees, even without the denial of FAPE. Because of the misclassification, the child here did not have the legal right to instruction by a teacher with autism certification. Although his teacher was in fact certified to instruct students with autism, the change in the student’s legal rights allowed the parents to claim prevailing party status.

In California, the law requires that special education teachers be certified to instruct students with particular disabilities. Because the student’s classification was changed from a child with mental retardation to a child with autism, the child had the legal right to instruction by a teacher with autism certification. However, since the teacher had dual certification in mental retardation and autism, the court acknowledged the child did not lose educational opportunities as a result of the misclassification. The court pointed out that the misclassification could have resulted in the child being instructed by a teacher who did not have autism certification. “Although [the student] did, in fact, receive placement in the proper classroom, the school district refused to recognize his additional primary disability of autism, and thus his legal right to such placement, until his eligibility category was changed,” wrote U.S. Circuit Judge Harry Pregerson. Accordingly, the 9th Circuit ruled that the parents were prevailing parties for purposes of attorney’s fees.

In addition, the court held that the child’s representation by his grandmother, a practicing attorney, did not preclude a fee award. The court acknowledged its prior decision in Ford v. Long Beach Unified Sch. Dist., 42 IDELR 92 (9th Cir. 2006), that attorney-parents cannot recover fees for representing their own children in IDEA actions. However, the court explained that the bright-line rule was adopted to ensure that students had objective representation. Reasoning that grandparents and other relatives “are not so uniquely invested in IDEA proceedings,” the 9th Circuit held that the fee restriction adopted in Ford does not apply to relatives other than the child’s parents.

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