A recent ruling by the Eastern District of virginia (EDVA) has established that school divisions can pursue attorney’s fees from special education advocates who repeatedly file frivolous or improper challenges. This decision clarifies the application of the Individuals with Disabilities Education Act (IDEA) in Virginia’s unique special education framework.
Under the IDEA, students with disabilities are guaranteed a Free Appropriate Public Education (FAPE), delivered through an Individualized education Program (IEP). Parents have the right to challenge an IEP via a due process hearing. The IDEA permits the prevailing party, whether a parent or a school division, to seek reasonable attorney’s fees.
While the IDEA allows courts to award attorney’s fees against an attorney for bringing a “frivolous, unreasonable, or without foundation” challenge, or against a parent for bringing a challenge for an “improper purpose,” school divisions rarely pursue these fees, even when they prevail.
Virginia’s implementation of the IDEA allows non-attorney advocates to represent parents in due process hearings,a practice that does not constitute the unauthorized practice of law in the state.The EDVA’s ruling in Powhatan County School Board v. Halvorsen, et al. addressed whether the IDEA’s attorney’s fees provisions, which specifically mention “attorneys” and “parents,” also extend to these recognized advocates.
The Court resolute that the IDEA’s attorney’s fees provision can indeed apply to advocates,viewing them as “an agent and representative of the parents.” Consequently,the EDVA not only awarded the Powhatan County School Board $330,544.48 in attorney’s fees plus interest against an advocate but also permanently barred the advocate from further participation in due process hearings for the same family.
The Court found that the advocate had employed a “scorched earth” strategy, filing numerous due process hearing requests across multiple cases. These repetitive and duplicative filings significantly burdened the school division, leading to the substantial legal costs.
