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Thursday, July 31, 2008

Issues remained live for hearing when there is no agreement at the resolution session

EL PASO INDEP. SCHOOL DIST. V. RICHARD R.,591 F.3d 417 (5th Cir. 2009): This is a potentially very important case. Some school district attorneys have aggressively resisted resolving cases in a fashion that could give rise to the right to attorney fees for the parent. The effect of this strategy is to infringe upon the parents’ right to counsel, at least for those parents that can not afford an attorney. In New York State, the SRO has, on a number of occasions, upheld district motions to dismiss in cases where there were no settlement agreements, but where the district had purportedly expressed a willingness to address the parents’ concerns. These NY decisions have perpetuated a doctrine depriving the parents and kids of due process. Two of these cases are presently on appeal in the Western District of New York. In this Texas case, the federal court held that a hearing officer properly refused to dismiss the hearing request. The court vindicated the parents’ right to reject a settlement offer and proceed to hearing. The rationale of the court’s decision was twofold. First that the proposed agreement did not confer federal court jurisdiction and was thus unenforceable in federal court by the parents and second, that the proposed agreement did not give rise to prevailing party status, and would have precluded the parents’ right to attorney fees. The court upheld the hearing officer’s decision in favor of the parents, thus conferring prevailing party status upon the parents.

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