Ruben A.'s purpose in filing his administrative due process complaint was to compel EPISD to undertake actions it was already legally bound to take. EPISD had failed to evaluate R.A. more than ten months after it was informed such evaluations were necessary. Only Ruben A.'s administrative action compelled the evaluations. By failing to properly evaluate R.A., R.A.'s IEP was based on inadequate information, which meant he was not receiving a FAPE. EPISD's settlement offers never acknowledge its failure to evaluate R.A. The numerous proposed settlement agreements variously required Ruben A. to waive his right to a due process hearing; to “acquit” EPISD of any claims; to dismiss his due process complaint with prejudice; to release EPISD from paying any of Ruben A.'s attorney's fees; or to accept only $750.00 in attorney's fees.
In light of EPISD's failures, Ruben A. was justified in rejecting EPISD's efforts to deny liability or to make Ruben A. waive any right to attorney's fees under the IDEA. He was entitled to proceed to an impartial due process hearing. Furthermore, the Administrative Record reveals EPISD rejected Ruben A.'s proposed consent order, which could have otherwise ended this matter earlier, prior to the due process hearing. Likewise, EPISD rebuffed Ruben A.'s efforts to enter into mediation. When viewing these facts in isolation, just as EPISD asks the Court to view Ruben A.'s rejections of EPISD's proposed settlement offers, EPISD appears to be the one protracting this litigation. In fact, one could reasonably conclude it was only EPISD's refusal to enter into Ruben A.'s proposed consent order or into mediation, which led to the due process hearing and the instant litigation. Similarly, had EPISD refrained from filing an untimely counterclaim; asserting issues, which the Court had already decided, such as subject matter jurisdiction; filing frivolous motions, such as its motion to strike Ruben A.'s Motion for Attorney's Fees, this litigation may have ended much sooner.
A parent, whose child has suffered as a result of a school district's failings, should not be strong-armed into compromising a valid claim, for which the parent has had to seek legal counsel, because a school district purports to offer all the proposed relief listed in the administrative due process complaint. Not only does the IDEA provision setting forth the procedure for filing a due process complaint envision that there can be relief or remedies available that are not alleged in a due process complaint, courts have recognized this to be the case.FN49 Ruben A. did not protract this litigation and he was justified in rejecting a settlement offer, for which the parties could not reach an agreement.
In rejecting EPISD's proposed settlement offers and pursuing his administrative due process claim to its procedural end, Ruben A. secured a judgment, which bears judicial imprimatur. It holds EPISD accountable for its statutory violations, including finding EPISD failed to properly and adequately evaluate R.A. and EPISD denied R.A. a FAPE; orders EPISD to properly evaluate R.A.; requires EPISD to conduct an additional evaluation, which only became apparent after Ruben A. filed his administrative due process complaint, which compelled EPISD to undertake the overdue evaluation; and forces EPISD to convene an ARD Committee to consider the new evaluations and develop a new IEP for R.A. Likewise, Ruben A. did not have to waive his statutory right to attorney's fees in obtaining the warranted relief. Hence, Ruben A. received more relief than what was offered to him in EPISD's proposed settlement agreements, and therefore, IDEA'S bar for attorney's fees does not apply to him.
Law Offices of H. Jeffrey Marcus P.C.
Thursday, October 1, 2009
As previously noted in this blog, certain attorneys in New York State have successfully moved to dismiss parents’ hearing requests by offering to settle without attorney fees or in one case, by offering to have the CSE revisit the issues raised by the parents (SRO 06-109, 07-122, 08-008). SRO Paul Kelly has uniformly sided with the districts on these cases. The federal courts that have addressed the issue have sided with the parent. In the latest and strongest worded of such decisions, the Western District of Texas federal court last week decided Ruben A. v. El Paso Independent School Dist., 657 F.Supp.2d 778, 2009 WL 3094859(W.D.Tex. Sep 25, 2009). The relevant section follows: