349 F.3d 469 (7th Cir. 2003), 02-3928, T.D. v. LaGrange School Dist. No. 102

Docket Nº:02-3928
Citation:349 F.3d 469
Party Name:T.D. v. LaGrange School Dist. No. 102
Case Date:November 14, 2003
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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349 F.3d 469 (7th Cir. 2003)

T.D., Plaintiff-Appellee,


LAGRANGE SCHOOL DISTRICT NO. 102, Defendant-Appellant.

No. 02-3928.

United States Court of Appeals, Seventh Circuit

November 14, 2003

Argued May 20, 2003.

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Kevin C. Newsom (Argued), Covington & Burling, Washington, DC, for Plaintiff-Appellee.

Darcy L. Kriha (Argued), Franczek Sullivan, Chicago, IL, for Defendant-Appellant.

Before COFFEY, KANNE, and DIANE P. WOOD, Circuit Judges.

KANNE, Circuit Judge.

Congress enacted the Individuals With Disabilities Education Act ("IDEA") with the primary purpose of ensuring that a "free appropriate public education" is available to all children with disabilities. 20 U.S.C. § 1400(d)(1)(A) (2003). To facilitate this goal, the IDEA requires schools to have in place procedures that allow parents to make complaints regarding "any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education" to their child. Id. § 1415(b)(6). If the parents' concerns cannot be satisfactorily resolved through informal channels, the IDEA provides parents a right to mediation or an impartial due process hearing conducted by the appropriate state educational agency. Id. § 1415(e)(1), (f)(1). If parents are still unsatisfied following a due process hearing, they may then bring a civil action in federal or state court. Id. § 1415(i)(2)(A). To ease the financial burden on parents making claims, the IDEA contains a fee-shifting provision that allows attorney's fees to the parents of a child with a disability who are the "prevailing party" in any action or proceeding brought under the IDEA. Id. § 1415(i)(3)(B).

In this appeal we address whether the plaintiff, T.D., is a prevailing party under this fee-shifting provision and whether T.D. is thereby eligible for attorney's fees. 1 The district court, finding that the Supreme Court's recent decision in Buckhannon Bd. & Care Home v. W.Va. Dep't of Health & Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), did not apply to the IDEA, held that T.D. was entitled to attorney's fees. We hold that Buckhannon does apply to the IDEA, but find that T.D. is still entitled to a portion of his attorney's fees. We also find that the district court erred in finding that T.D. was entitled to receive reimbursement under the IDEA for his expert witness fees.

I. History

A. Background

T.D., born June 24, 1991, is a strong-willed child, who was diagnosed with Attention Deficit Hyperactivity Disorder at an early age. His parents enrolled him in private pre-schools and elementary schools through the early part of 1997. On February 4, 1997, during T.D.'s kindergarten year, he was dismissed from a parochial school after the school determined that it did not have the special-education resources needed to properly educate him. The parochial school offered to refer T.D. to the local public school for services, but at that time his parents refused to allow the parochial school to make the referral.

A week after T.D. was dismissed from the parochial school, his parents took him to the University of Chicago's Hyperactivity, Attention, and Learning Problems Clinic for an independent evaluation. That

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evaluation recommended, inter alia, that T.D. attend a school with a low teacher: student ratio and noted that the best setting for T.D. would likely be a private, therapeutic day school.

In March and April of 1997, T.D.'s mother spoke at various times with the public school district's Director of Special Ed, Mary Ann Cusick. During these conversations, T.D.'s. mother sought information about the school district's special-education programs and apparently expressed some reluctance to enroll T.D. in the school district, based on T.D.'s older brother's experience there. At some point during this period, T.D.'s mother visited the local public school that T.D. would attend. During this visit, she met with the principal and the kindergarten teacher, and the school provided her with further information about the special-education services that would be available to T.D. within the context of the regular classroom setting. At no point during March or April of 1997, did the school district request written consent to conduct a case-study evaluation of T.D. to determine his potential eligibility for various special-education programs.

In September 1997, T.D.'s parents enrolled him in the first grade at Acacia Academy, a private therapeutic day school. Acacia, however, would only allow T.D. to attend full-time if his parents hired a one-on-one aide to accompany him. After a short period of attending only part-time, T.D.'s parents hired an aide and thereafter T.D. attended full-time.

B. Due Process Administrative Proceedings

On August 25, 1997, approximately five months after T.D.'s mother first contacted the public school district officials, T.D.'s parents requested, through their attorney, a due process hearing before a state administrative hearing officer as provided for by § 1415(f) of the IDEA. In their hearing request, T.D.'s parents alleged that the school district had (i) "fail[ed] to evaluate T.D. despite actual notice that he may require special-education services;" (ii) "fail[ed] to notify" them that the school district "had decided not to conduct a case study evaluation;" (iii) "fail[ed] to consider their independent evaluation;" and (iv) "fail[ed] to appropriately advise them of the placement options for T.D. within the public school setting" other than "full inclusion placements, in a regular classroom setting." T.D.'s parents claimed that as a result of these failures the school district had denied T.D. the "free, appropriate public education" guaranteed by the IDEA.

Part of the relief requested by T.D.'s parents was that the school conduct an evaluation to determine T.D.'s eligibility under the IDEA for special-education services. On October 15, 1997, the hearing officer conducted a pre-hearing conference on this issue, after which the hearing officer determined that a case-study evaluation was necessary and ordered the school to conduct the evaluation. Following this order, on November 20, 1997, the school conducted the evaluation and convened an Individualized Education Program ("IEP") conference, as required by the IDEA § 1414. As a result of the evaluation and conference, T.D. was determined to have an "Emotional/Behavioral Disorder" and a "Speech and/or Language Impairment," and was found eligible for special-education services from the school district. The school district recommended that T.D. be placed at the local public school in a regular-education classroom, with supplemental special-education services to address T.D.'s special needs. T.D.'s parents rejected the recommended placement.

The administrative due process hearing commenced on December 5, 1997. The parents sought: (i) reimbursement for

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their placement of T.D. at Acacia for the 1997-1998 academic year; (ii) reimbursement for the one-on-one aide to assist T.D. at the private school; (iii) reimbursement for T.D.'s transportation to and from Acacia; and (iv) reimbursement for the independent evaluation they had obtained from the University of Chicago.

In a ruling rendered on December 10, 1997, the hearing officer made findings that as of the last week of March 1997, the school district knew that T.D. might require special-education services and should have requested the parent's written consent to conduct a case-study evaluation of T.D. at that time. Further, pursuant to the case study, the school should have identified the student's needs and formulated program and service options. It was not until the hearing officer ordered the evaluation that these things were accomplished. The hearing officer found that the school district's failings contributed to the parents need to place T.D. in the private school and to obtain a one-on-one aide. Therefore, the hearing officer ordered the school district to reimburse T.D.'s parents for their out-of-pocket costs for the one-on-one aide, a cost of about $1130 per month and for the costs of transportation to the school, a cost of about $5 per ride, from September 17 until the school district could provide the appropriate services. As to T.D.'s educational placement, however, the hearing officer found that the private school in which T.D. was enrolled could not adequately meet his needs. Therefore, he denied reimbursement for the private school tuition, and he ordered that T.D. be transferred to a regular mainstream classroom at the local public school with supplemental special-education services.

C. District Court Proceedings and Settlement

T.D. appealed to federal district court, seeking reversal of the proposed placement in a regular classroom, asking instead for continued placement at the private day school. Further, he sought reimbursement of the tuition already paid by his parents for the day school. He also asked for the relief already granted by the hearing officer, namely the reimbursement of the one-on-one aide cost and transportation costs. Finally, he sought attorney's fees and costs.

Both parties moved for summary judgment, but before the district court ruled, the parties settled. The settlement agreement provided that T.D. would be placed in a self-contained behavior disordered program (as opposed to a regular classroom) in a public school. The school district agreed to reimburse T.D.'s parents for tuition and all costs in any way resulting from or relating to T.D.'s attendance at the private day school, a total of $52,000. The parties did not reach an agreement regarding attorney's fees, specifically leaving the issue...

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