Tuesday, June 30, 2015

DC Circuit Court Affirms Parents Right to Counsel

The D.C. Court of Appeals issued a decision on June 25th, Price v. DC, affirming the rights of families to secure counsel.  The D.C. Court of Appeals agreed with the parent and COPAA’s Amicus positions and determined that the fee shifting provisions apply to court appointed attorneys in the D.C. Superior Court system and payment through the court appointed panel does not bar attorneys from utilizing the fee shifting statute at a prevailing rate for representation on behalf of families who otherwise could not afford to retain counsel.

COPAA’s amicus brief, written by Michael Kirkpartick from Georgetown University Law Center detailed COPAA’s position, and the Court largely agreed:  The IDEA, 20 U.S.C. § 1400 et seq., was first enacted in 1975, after Congress determined that children with disabilities were routinely denied educational opportunities afforded to children without disabilities. The IDEA ensures that each child with a disability receives a comprehensive evaluation of his or her unique needs, and a “free appropriate public education.” Id. § 1412(a)(1)(A). To further this goal, Congress added a fee-shifting provision to the IDEA in 1986, providing for an award of reasonable attorneys’ fees “to a prevailing party who is the parent of a child with a disability.” Id. § 1415(i)(3)(B)(i). Congress made clear that fees awarded under the IDEA, as with other civil rights fee-shifting statutes, “shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished.” Id. § 1415(i)(3)(C). Even with the IDEA’s fee-shifting provision, however, structural challenges still exist and prevent low-income families of students with disabilities from enforcing their rights under the IDEA.
Informational asymmetries also exist which render low-income parents less likely to recognize that their child’s school is out of compliance with the IDEA or that remedies are available. As a result, poor parents utilize the IDEA’s private enforcement mechanism less often than their wealthier counterparts, and poor students are less likely to receive the appropriate special education services required by the IDEA. Even when families are able to recognize that the IDEA enforcement mechanisms should be utilized, they are less likely to be able to locate and secure legal representation.  This is in part because private attorneys are sometimes reluctant to take IDEA cases on a purely fee-shifting contingency basis because school districts often make settlement offers which force clients client to sacrifice statutory fees in exchange for the educational services their children need. This problem is particularly prevalent in the District of Columbia, where more than thirty percent of children live in poverty and where the public school system has a long history of noncompliance with the IDEA.  This case is an important validation for families, many who live in poverty, and their ability to access counsel for special education cases. 

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