FAPE Litigation Under IDEA Statute: Who is a prevailing party?

When parents sue to assert their child’s right to a free and appropriate public education (FAPE) under the Individuals With Disabilities Education Act (IDEA, 20 USC §§ 1400-1491), they are entitled to recover attorney’s fees and costs if they are a “prevailing party.”

In Weissburg v. Lancaster School District, the Ninth Circuit confronted two interesting issues. First, the court ruled that parents can still be prevailing parties even if there is no finding that their child was denied a FAPE. The essence of being a “prevailing party” is that the litigation results in changing the parties’ relationship. In the Weissburg case, the student was teenager Edward Weissburg, who suffered from autism and mental retardation. The school district did not classify him as autistic, but granted him special education services when they did find that he suffered from mental retardation. Edward’s parents sued, contending that he was also entitled to special services under the autism classification. An administrative law judge concluded that there had been no denial of a FAPE, but that Edward was, indeed, entitled to services under the autism classification as well as under the mental retardation classification. But because of the finding that there had been no FAPE denial, the ALJ (and later a district court judge) refused to award attorneys fees. The Ninth Circuit reversed, holding that because the litigation resulted in a change in the parties’ relationship – with Edward now eligible to receive services under the autism classification – the Weissburgs were entitled to recover attorney’s fees. The second issue arose because the Weissburgs’ attorney was Edward’s grandmother. Previous rulings from the Ninth Circuit had established a “bright line” rule that parents who serve as attorneys in FAPE cases under the IDEA statute are not eligible to claim attorney’s fees. The rule was established, said the court, to “better serve Congress’ intent to ensure that children with disabilities benefit from the judgment of an independent third party when their rights under IDEA are violated.” But the court declined to extend that rule to grandparents who provide legal representation to their grandchildren. A copy of the court’s decision is attached.