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

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

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.” [ChristiansburgGarmentCo. 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).] 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. [Townsend v. HolmanConsultingCo., 929 F.2d 1358, 1362 (9th Cir. 1990).] 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. [Marsch v. Marsch, 36 F.3d 825 (9th Cir. 1994).] 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. [Zladivar v.City ofLosAngeles, 780 F.2d 823, 831-32 (9th Cir. 1986), reversed on othergrounds by CooterandGell v. Hartmax Corp., 496 U.S. 384 (1990).]

Instances in which parents are required to pay a district’s attorney’s fees following an unsuccessful special education due process hearing are rare.  Youshould not file a case that hasnofactual or legalbasis and should not takeactionsdesignedonly to delay or drive up the district’scosts in defendingyourcase.