Menu Close

(6.67) If I lose my special education due process hearing, will I have to pay the district’s attorneys’ fees?

(6.67) If I lose my special education due process hearing, will I have to pay the district’s attorneys’ fees?

Print this Page

It is unlikely that you will have to pay a district’s attorneys’ fees when the district prevails in a special education hearing. However, fees may be awarded to a “prevailing party” (the side that wins some or all issues) if the case is found to be “frivolous, unreasonable, or without foundation” — even if the suit was not brought “in subjective bad faith” or if the case was brought for any “improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.”[1] Losing a case does not necessarily mean the case was frivolous, unreasonable, or without foundation. 

For a case to be found to have been brought for an improper purpose, such as to harass the defendant, the Ninth Circuit Court of Appeals (which controls California) appears to require that the case also be found to be frivolous.[2] However, in another Ninth Circuit case, the court determined that “substantial evidence” of either harassment or frivolousness could be enough to award attorneys’ fees to the prevailing party.[3] Harassment must be more serious than just annoyance and will be objectively, rather than subjectively, determined. A series of complaints against the same defendant based on propositions of law which have already been rejected in cases involving that same defendant may constitute harassment.[4]

Instances in which parents/guardians/other education rights holders are required to pay a district’s attorney’s fees following an unsuccessful special education due process hearing are rare. You should not file a case that has no factual or legal basis and should not take actions designed only to delay or drive up the district’s costs in defending your case.

  1. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978); 20 U.S.C. Secs. 1415(i)(3)(B)(i)(II) and (III); 34 C.F.R. Sec. 300.517; Cal. Ed. Code Sec. 56507(b)(2).[↩]
  2. Townsend v. Holman Consulting Co., 929 F.2d 1358, 1362 (9th Cir. 1990).[↩]
  3. Marsch v. Marsch, 36 F.3d 825 (9th Cir. 1994).[↩]
  4. Zladivar v. City of Los Angeles, 780 F.2d 823, 831-32 (9th Cir. 1986), reversed on other grounds by Cooter and Gell v. Hartmax Corp., 496 U.S. 384 (1990).[↩]