NSBA and CSBA Urge Court to Use Fairness Principles in Awarding Attorneys’ Fees in Special Education Litigation

March 25, 2015

Alexandria, Va. (March 25, 2015) – The National School Boards Association joined the California School Boards Association and its Education Legal Alliance today in filing a “friend of the court” (amicus) brief in the U.S. Court of Appeals for the Ninth Circuit in support of the school district in the case of K.G. v. Irvine Unified Sch. Dist.

At issue in the case is whether an attorney representing a student with disabilities may recover legal fees under the Individuals with Disabilities Education Act (IDEA) from a school district when the fees were incurred during litigation in which the legal positions of the student and school district were not adverse. The Ninth Circuit’s decision has the potential to affect all school districts in the nine-state circuit – Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington – in IDEA proceedings in which the attorney achieves a technical victory against the school district but no meaningful benefit for the student or parents. In their brief NSBA and CSBA argue that courts should award attorneys’ fees based on equitable considerations and not automatically to parties that achieve no real change in their legal position.

In this case, the student with disabilities, “KG,” was a ward of the state of California. The student’s attorney brought suit against the state department of education, the county department of education, and Irvine Unified School District, seeking funding for the student’s out of state residential placement.  All three defendants agreed that one of them was obligated to fund the placement, but disputed which of them was legally responsible. In an earlier ruling, the Ninth Circuit assigned the responsibility to the state consistent with the student’s contention throughout almost all the litigation that the state was ultimately responsible. After numerous appeals, this decision was reconsidered and the school district was ordered to fund the placement. The student’s attorney then sought to recover legal fees from the school district, including for proceedings she pursued after the student had graduated from high school. After initially denying the request, the district court reversed course and ordered the school district to pay the attorney $175,000.

“A school district’s responsibility to pay attorney’s fees under the IDEA should be determined in keeping with existing fairness principles and common sense,” said Thomas J. Gentzel, Executive Director, National School Boards Association. “School districts’ limited financial resources must be used to advance their educational mission, not fund litigation costs.”

The IDEA permits an award of fees to a “prevailing” party based on equitable considerations that shift the burden of legal fees to the party deemed to have committed a legal wrong, for example, failure to provide a free appropriate public education (FAPE).

“We are urging the Ninth Circuit to follow established law,” said Vernon M. Billy, CEO & Executive Director of the California School Boards Association. “School districts should not have to fear paying unwarranted attorneys’ fee awards when making educational decisions about placements and services for children with disabilities.”

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The National School Boards Association (NSBA) is the leading advocate for public education and supports equity and excellence in public education through school board leadership. NSBA represents state school boards associations and their more than 90,000 local school board members throughout the U.S. Learn more at:

The California School Boards Association (CSBA) is the non-profit education association representing the elected officials who govern public school districts and county offices of education. With a membership of nearly 1,000 educational agencies statewide, CSBA brings together school district governing boards and county boards of education to advocate for effective policies that advance the education and well-being of the state’s more than 6 million school-age children. CSBA provides policy resources and training to members, and represents the statewide interests of public education through legal, political legislative, community and media advocacy.

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