     Case: 11-40518   Document: 00511960578     Page: 1     Date Filed: 08/17/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                     FILED
                                                                   August 17, 2012

                                  No. 11-40518                      Lyle W. Cayce
                                                                         Clerk

S. H., by next friend A. H., by next friend E. H.,

                                      Plaintiff - Appellant Cross-Appellee
v.

PLANO INDEPENDENT SCHOOL DISTRICT,

                                      Defendant - Appellee Cross-Appellant



PLANO INDEPENDENT SCHOOL DISTRICT,

                                      Plaintiff - Appellee Cross-Appellant

v.

A. H., as next friend S. H.; E. H., as next friend S. H.,

                                      Defendants - Appellants Cross-Appellees



                 Appeals from the United States District Court
                       for the Eastern District of Texas
                            U.S.D.C. No. 4:08-cv-96


Before KING, PRADO, and HAYNES, Circuit Judges.
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                                       No. 11-40518

PER CURIAM:*
       S.H., a child with severe autism and speech impairment, sought to recover
the cost of his private schooling from Plano Independent School District through
a due process hearing before a special education hearing officer. S.H. alleged
that the School District had denied him a free appropriate public education in
violation of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et
seq. The hearing officer ordered the School District to reimburse S.H. for
educational expenses incurred during the summer of 2006 before S.H. began
classes at the School District and for the first nine weeks of the 2006–2007
school year. The hearing officer denied reimbursement for the period of time
that followed. S.H. and the School District each filed suit in federal district court
challenging various aspects of the hearing officer’s decision. The district court
consolidated the lawsuits and ultimately affirmed the decision of the hearing
officer, except that it reduced the compensation awarded to S.H. The district
court also denied S.H.’s motion for attorneys’ fees. S.H. appealed several aspects
of the district court’s judgment, and the School District filed a cross-appeal
raising several challenges as well. For the reasons stated below, we AFFIRM
the judgment of the district court.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       The child at issue, S.H.,1 was born on May 21, 2003 and was diagnosed
with severe autism on October 12, 2004. At the end of 2005, S.H. began
attending Wayman Learning Center (“WLC”), a private school, where he


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
       1
         S.H. acted through his parents in this litigation, and as a procedural matter, Plano
Independent School District brought suit against S.H.’s parents. For simplicity’s sake, we
refer to S.H.’s parents and S.H. collectively as “S.H.,” unless otherwise noted or made
apparent from context.

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                                  No. 11-40518

received a program of applied behavior analysis—a method for teaching autistic
children—on a one-on-one basis.
      S.H.’s parents requested a meeting with Plano Independent School District
(“PISD”) to develop an Evaluation and Review Plan for S.H. The meeting was
held on April 7, 2006, and PISD completed a Full Individual Evaluation (“FIE”)
of S.H. on May 12, 2006. PISD’s evaluation confirmed that S.H. was at the
severe end of the autism scale. The FIE recommended, inter alia, that S.H.’s
Admission, Review, and Dismissal Committee (“ARDC”) assess S.H.’s eligibility
for special education services because of his autism and speech impairment.
      On May 18, 2006, an ARDC developed an Individual Education Plan
(“IEP”) for S.H. that recommended that S.H. receive special education five days
a week for two and a half hours each day at PISD’s Beaty Early Childhood
School (“Beaty”) in an integrated pre-kindergarten classroom beginning in
August 2006. The May 18, 2006 IEP did not recommend Extended School Year
(“ESY”) services during the summer preceding the 2006–2007 school year.
      At the beginning of the 2006–2007 school year, S.H.’s parents enrolled S.H.
in both Beaty and WLC. S.H. attended Beaty three days per week, as opposed
to the five days recommended in his IEP. On days S.H. did attend classes at
Beaty, he was often at least fifteen minutes late. Within the first three weeks
of the 2006–2007 school year, PISD held another ARDC meeting on August 25,
2006 to review and modify the May 18, 2006 IEP at the suggestion of S.H.’s
teacher and speech pathologist, who recognized the need to place S.H. in a
smaller, more restrictive educational environment.
      Several additional ARDC meetings were held, with the last occurring on
September 5, 2007. Ultimately, S.H.’s parents did not agree with the ARDC’s
recommendations and decided not to use any of the services PISD offered. The
recommended services were “(1) in-home training for three hours per week for
two weeks to be followed by one hour sessions per week through May 13, 2008,

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(2) parent training for three hours, and (3) occupational therapy for 840 minutes
per year of direct services and 840 minutes per year of staff consultation.” S.H.’s
parents chose not to re-enroll S.H. at Beaty for the 2007–2008 school year.
        On July 27, 2007, S.H. requested a due process hearing under the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.
S.H. alleged, inter alia, that he had not progressed during the 2006–2007 school
year and that PISD improperly failed to provide ESY services from his third
birthday on May 21, 2006, until the 2006–2007 school year began in August
2006.
        A Special Education Hearing Officer (“SEHO”) conducted a due process
hearing on September 24 and 26, 2007, and October 25, 2007. The SEHO issued
a decision on November 27, 2007 but later withdrew that decision and issued an
amended decision on January 7, 2008. In the amended decision, the SEHO
found that procedural defects in the composition of the May 18, 2006 ARDC
meeting resulted in the denial of a free appropriate public education (“FAPE”)
to S.H. According to the SEHO, as a consequence of the deficiencies in the
composition of the ARDC, S.H. did not receive ESY services during the summer
of 2006 or appropriate placement at the beginning of the 2006–2007 school year.
The SEHO concluded that the deficiencies in the May 18, 2006 IEP were
corrected by the IEP developed at the August 25, 2006 ARDC meeting, but found
that S.H. did not show educational progress until the first nine weeks of the
2006–2007 school year had passed. Consequently, the SEHO ordered PISD to
reimburse S.H.’s parents for the educational expenses they incurred at WLC
during the summer of 2006 and the first nine weeks of the 2006–2007 school
year. Ultimately, the amount the SEHO awarded S.H. was $20,475.00, which
reflected 315 hours of educational services at the rate of $65 per hour. The
SEHO further concluded that S.H. made educational progress and received a
FAPE at all other relevant periods of time.

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      S.H., by next friends A.H and E.H., filed a lawsuit against PISD on March
24, 2008, and PISD filed suit against A.H. and E.H. as next friends of S.H. on
April 8, 2008. Both S.H. and PISD challenged various aspects of the SEHO’s
decision. S.H. also sought to recover attorneys’ fees. The two actions were
consolidated on May 30, 2008. The district court agreed with the SEHO that the
May 18, 2006 ARDC was not composed of the required members and that this
defect resulted in a denial of a FAPE for S.H. during the summer of 2006, as well
as the first three weeks of the 2006–2007 school year. The court did not require
a showing of actual progress (which the SEHO found was apparent after the first
nine weeks of the 2006–2007 school year) to support the conclusion that S.H.
received adequate educational opportunities under the IDEA, and thus the court
reduced the compensation awarded to S.H.’s parents to $14,625.00.
      Regarding S.H.’s education during the 2006–2007 school year, the district
court applied 19 Texas Administrative Code § 89.1096(f) in rejecting S.H.’s
challenge to the implementation of his IEPs. Section 89.1096(f) limits parents’
ability to raise such challenges when they choose to enroll a child in public and
private schools. The court concluded that the parents’ decision to enroll S.H. in
both WLC and Beaty made the due process hearing an inappropriate forum
under Texas law for raising such a challenge.
      With regard to S.H.’s motion for attorneys’ fees, the district court
determined that S.H. was a prevailing party but was nonetheless not entitled to
an award of fees. S.H. had rejected PISD’s offer to settle the case for $15,500.00,
which was greater than the amount that S.H. was ultimately awarded. Thus,
the court concluded that the attorneys’ fees S.H. incurred after the settlement
offer were not recoverable under 20 U.S.C. § 1415(i)(3)(D)(i) and that none of the
exceptions to the fee bar applied. The court further concluded that fees were not
recoverable for work performed before PISD offered to settle because S.H.
unreasonably protracted the final resolution of the controversy.

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      On appeal, S.H. contends that (1) the district court erroneously applied 19
Texas Administrative Code § 89.1096(f) in determining the amount of
compensation to award S.H.; (2) the district court erred by reducing the amount
of relief awarded by the SEHO; and (3) the district court erred in denying an
award of attorneys’ fees to S.H. PISD filed a cross-appeal asserting that (1) the
district court’s judgment awarding relief to S.H. should be reversed because all
claims related to the May 18, 2006 ARDC meeting are barred by the statute of
limitations; (2) the judgment awarding relief to S.H. should be reversed because
there were no procedural defects regarding the composition of the May 18, 2006
ARDC; (3) the district court erred by granting S.H. relief because, even if there
were a defect in the composition of the May 18, 2006 ARDC, it did not harm
S.H.; and (4) S.H. failed to prove that he was entitled to ESY services for the
summer of 2006, and thus no relief should have been awarded compensating
S.H. for expenses incurred during this period. For the reasons stated below, we
affirm the judgment of the district court.
                                II. DISCUSSION
      A state receiving federal assistance under the IDEA must assure that “[a]
free appropriate public education is available to all children with disabilities
residing in the State between the ages of 3 and 21.” 20 U.S.C. § 1412(a)(1)(A).
“The free appropriate public education that a disabled student is entitled to
receive under the IDEA must be tailored to his particular needs by means of an
individual educational program . . . .” Cypress–Fairbanks Indep. Sch. Dist. v.
Michael F., 118 F.3d 245, 247 (5th Cir. 1997) (internal quotation marks omitted).
The education must be offered in an integrated environment, alongside non-
disabled children to the greatest extent possible. Id. In Texas, an ARDC
prepares a student’s IEP. Id.
      “Our role under the IDEA is purposefully limited. Congress left the choice
of educational policies and methods where it properly belongs—in the hands of

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                                    No. 11-40518

state and local school officials.” White v. Ascension Parish Sch. Bd., 343 F.3d
373, 377 (5th Cir. 2003) (citation and internal quotation marks omitted). A
federal district court’s review of a special education hearing officer’s decision in
a due process hearing is “virtually de novo.” Michael F., 118 F.3d at 252 (citation
and internal quotation marks omitted). The district court “must receive the
record of the administrative proceedings and is then required to take additional
evidence at the request of any party . . . ultimately reach[ing] an independent
decision based on a preponderance of the evidence.”          Id. (citations omitted).
“The burden of proof in an administrative hearing challenging an IEP is properly
placed upon the party seeking relief.” Schaffer v. Weast, 546 U.S. 49, 62 (2005).
      “[This court] review[s] de novo, as a mixed question of law and fact, the
district court’s decision that the local school’s IEP was appropriate and that the
alternative placement was inappropriate under IDEA.” Teague Indep. Sch. Dist.
v. Todd L., 999 F.2d 127, 131 (5th Cir. 1993) (citation omitted). “The district
court’s findings of underlying fact . . . are reviewed for clear error.” Michael F.,
118 F.3d at 252.       In addition, “[this court] review[s] the district court’s
interpretation of Texas law de novo.” Gen. Univ. Sys., Inc. v. Lee, 379 F.3d 131,
153 (5th Cir. 2004). Finally, “[i]n the absence of an error of law, this Court
reviews the district court’s award for damages for clear error only.”
Dresser–Rand Co. v. Virtual Automation Inc., 361 F.3d 831, 843 (5th Cir. 2004).
A. Dual Enrollment and 19 Texas Administrative Code § 89.1096
      Under Texas law, when parents elect to enroll a child in both public and
private school, it affects the parents’ ability to challenge the implementation of
the child’s IEP. According to 19 Texas Administrative Code § 89.1096(c),
“[p]arents of an eligible student ages 3 or 4 shall have the right to ‘dual enroll’
their student in both . . . public school and . . . private school,” subject to certain
conditions.    However, under § 89.1096(f), “[t]he procedures in 34 CFR,
§§ 300.300, 300.504, 300.507, 300.508, and 300.510-300.518 (relating to due

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process hearings) do not apply to complaints regarding the implementation of
the components of the student’s IEP that have been selected by the parent and
the district under subsection (c).”
      On appeal, S.H. contends that he was never dually enrolled in WLC and
Beaty under 19 Texas Administrative Code § 89.1096(c) and consequently that
the district court erred by denying reimbursement for the private school portion
of his “dual enrollment.” S.H. highlights that “Gail Wayman, the director of
WLC, was never invited by [PISD], nor ever attended, any of the ARD[C]
meetings held in May, 2006, August, 2006, or March 2007 to provide input.”
However, § 89.1096(c) does not require the involvement of teachers or other staff
of the private school where part of an IEP will be implemented, but instead
contemplates cooperation between the child’s parents and the school district.
Thus, the failure to involve Gail Wayman does not indicate that § 89.1096(f) is
inapplicable.
      S.H. further contends that he was never dually enrolled within the
meaning of § 89.1096(c) because S.H.’s parents and PISD did not collaborate in
the development of any IEPs implemented at WLC. Section 89.1096(c)(2) states
that “[t]he parent and the district shall determine which special education
and/or related services will be provided to the student and the location where
those services will be provided.” Similarly, § 89.1096(f) makes due process
hearings inapplicable to “[c]omplaints regarding the implementation of the
components of the student’s IEP that have been selected by the parent and the
district under subsection (c).” According to S.H., “[t]here is no documentation of
any discussions regarding 19 T.A.C. §89.1096(c) dual-enrollment for S.H. in any
ARD[C] meeting or in any other document.” S.H. contends that the lack of
development of IEPs that would be implemented in part at WLC prevents
§ 89.1096(f) from applying.



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       Despite S.H.’s arguments to the contrary, we conclude that the district
court properly determined that S.H. was dually enrolled at Beaty and WLC and
that § 89.1096(f) prevented his challenges related to the implementation of IEPs
during the period of dual enrollment. S.H.’s parents initially agreed with the
recommendations of S.H.’s ARDCs, which provided that S.H. would receive
special education and related services at PISD. See 19 TEX. ADMIN. CODE
§ 89.1096(c) (“The public school district where a student resides is responsible
for providing special education and related services to a student whose parents
choose dual enrollment.”). Thus, a collaborative process between S.H.’s parents
and PISD did occur with regard to IEPs developed for S.H., and the resulting
IEPs called for the exclusive provision of services at Beaty. Nonetheless, the
parents of S.H. decided to enroll S.H. in both WLC and Beaty. In light of the
unilateral decision by S.H.’s parents to enroll S.H. in both public and private
school, S.H. cannot now contend that he was not dually enrolled.2
       S.H. further contends that “Tex. Admin. Code §89.1096(f) is in direct
conflict with IDEA regulations, 34 C.F.R. § 300.148(b).” Section 300.148(b)
provides that “[d]isagreements between the parents and a public agency
regarding the availability of a program appropriate for the child, and the
question of financial reimbursement, are subject to the due process procedures
in §§ 300.504 through 300.520.” According to S.H., “[t]he Hearing Officer’s and
District Court’s decisions effectively bar dually-enrolled children and their
parents from access to due process hearings . . . which was never contemplated
by Congress.”




       2
         Similarly, we reject S.H.’s contention that he was not dually enrolled because WLC
provided its own educational materials in contravention of § 89.1096(c)(3). To the extent there
was a lack of coordination between the schools, it stemmed from the parents’ unilateral
decision to depart from the recommendations of the IEPs developed for S.H.

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      However, contrary to S.H.’s assertions, the district court’s decision does
align with the IDEA and governing caselaw. The purpose of the IDEA is “to
ensure that all children with disabilities have available to them a free
appropriate public education that emphasizes special education and related
services designed to meet their unique needs and prepare them for further
education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A)
(emphasis added). The regulations implementing the IDEA also stress that
parents must consent to the provision of services or the district “[w]ill not be
considered to be in violation of the requirement to make FAPE available to the
child because of the failure to provide the child with further special education
and related services.” 34 C.F.R. § 300.300(b)(4)(iii). In the instant case, S.H.’s
parents decided to access only a portion of the services that were determined
necessary by the ARDC, even after committee members voiced concerns that
failure to access the recommended services would be detrimental to S.H. As
noted in Loren F. v. Atlanta Independent School System, 349 F.3d 1309 (11th
Cir. 2003), “[e]ven where a FAPE is not provided, courts can nevertheless deny
reimbursement if a parent’s own actions frustrated the school’s efforts.” Id. at
1312; see also 20 U.S.C. § 1412(a)(10)(C)(i) (“Subject to subparagraph (A), this
subchapter does not require a local educational agency to pay for the cost of
education, including special education and related services, of a child with a
disability at a private school or facility if that agency made a free appropriate
public education available to the child and the parents elected to place the child
in such private school or facility.”). Thus, the district court’s application of
§ 89.1096(f) does not conflict with the IDEA and does not provide ground for
reversal.
B. The District Court’s Reduction of the Relief Awarded by the SEHO
      The SEHO concluded that S.H. was entitled to reimbursement for the
educational expenses incurred at WLC during the summer of 2006 and the first

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nine weeks of the 2006–2007 school year. Both the SEHO and district court
found that S.H.’s May 18, 2006 IEP was inappropriate but was corrected by the
IEP developed by the ARDC on August 25, 2006.                       The SEHO awarded
compensation through October 12, 2006 based on the finding that S.H. did not
achieve actual educational progress until that time.3 However, the district court
determined that S.H. was not entitled to reimbursement for the six weeks
following the development of the corrective August 25, 2006 IEP.
       S.H. argues that the district court erroneously denied reimbursement for
the period between the implementation of the corrective IEP and the date that
S.H. demonstrated educational progress. According to S.H., he was entitled to
reimbursement for the period of time until he showed an actual benefit from an
IEP. He contends that the district court’s conclusion rests on a misconstruction
of the Supreme Court’s decision in Board of Education of the Hendrick Hudson
Central School District v. Rowley, 458 U.S. 176 (1982), and this court’s decision
in Cypress–Fairbanks Independent School District v. Michael F., 118 F.3d 245
(5th Cir. 1997). S.H. argues that those cases require that a student show an
actual benefit from special education to support the conclusion that a student is
receiving the educational opportunities required by the IDEA.
       We conclude the district court applied the correct standard in assessing
S.H.’s entitlement to reimbursement and correctly determined that S.H was not



       3
         After issuing an initial decision, the SEHO granted S.H.’s request that the parties be
allowed to file requests for amended findings of fact and conclusions of law. The parties filed
these requests, and on the basis of the arguments the requests set out, the SEHO issued an
amended decision reducing its award of compensation to S.H. from $33,962.50 to $20,475.00.
On appeal, S.H. argues for the first time that the SEHO did not have the ability to reconsider
his initial judgment based on an October 28, 2010 Office of Special Education Programs
(“OSEP”) Letter. However, we conclude that the letter does not indicate the SEHO
inappropriately amended his decision. The OSEP Letter targeted a policy that allowed
reconsideration in a manner that was inconsistent with the time-line requirements of the
IDEA. Here, however, the SEHO’s amended decision issued within the deadlines set out in
the IDEA. See 34 C.F.R. § 300.510(a)–(c).

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entitled to compensation for expenses incurred in the six weeks following the
implementation of his corrective IEP. “Our review of the adequacy of an IEP is
limited to two questions: First, has the state complied with the procedural
requirements of IDEA?      Second, ‘is the [IEP] developed through the Act’s
procedures reasonably calculated to enable the child to receive educational
benefits?’” Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 293 (5th
Cir. 2009) (emphasis added and citation omitted) (quoting Rowley, 458 U.S. at
206–07). Further, the Supreme Court has stated:
      We think that the congressional emphasis upon full participation of
      concerned parties throughout the development of the IEP, as well
      as the requirements that state and local plans be submitted to the
      Secretary for approval, demonstrates the legislative conviction that
      adequate compliance with the procedures prescribed would in most
      cases assure much if not all of what Congress wished in the way of
      substantive content in an IEP.
Rowley, 458 U.S. at 206. Moreover, the Court noted that Congress explicitly
found that “in many instances the process of providing special education . . . to
handicapped children is not guaranteed to produce any particular outcome.” Id.
at 192 (citation and internal quotation marks omitted). This court has observed
that the “IDEA does not entitle a disabled child to a program that maximizes the
child’s potential. Instead, IDEA guarantees a basic floor of opportunity . . . .”
Michael Z., 580 F.3d at 292 (citations and internal quotation marks omitted).
Thus, the provision of a FAPE does not necessarily require the achievement of
particular educational outcomes. The focus instead is on whether there is an
IEP in place that was reasonably calculated to provide the student with
appropriate opportunities to learn.
      S.H. contends that this court’s decision in Richardson Independent School
District v. Michael Z., 580 F.3d 286 (5th Cir. 2009), demonstrates that actual
educational progress must be shown to support the conclusion that a child is
being provided with a FAPE. In Michael Z., the court concluded that the district

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court did not err by considering a student’s actual progress when assessing
whether the district had provided the student with a FAPE. Id. at 293–94.
However, the Michael Z. court was merely applying the factors set out in
Michael F. for determining “whether an IEP is reasonably calculated to provide
meaningful educational benefits under IDEA.” Id. at 293. The factors in
Michael F. are: “(1) the program is individualized on the basis of the student’s
assessment and performance; (2) the program is administered in the least
restrictive environment; (3) the services are provided in a coordinated and
collaborative manner by the key ‘stakeholders’; and (4) positive academic and
non-academic benefits are demonstrated.” Michael F., 118 F.3d at 253. Thus,
although positive educational outcomes can signal that an IEP is appropriate
under the IDEA, the appropriateness of S.H.’s IEP ultimately turns on whether
it was reasonably calculated to provide an educational benefit and does not hinge
on the showing of an actual positive outcome.4 Consequently, we conclude that
the district court properly applied the reasonably-calculated standard from
Rowley in the instant case, and correctly determined that S.H. was entitled to
compensation for the first three weeks of school, as opposed to the first nine.
C. Attorneys’ Fees
       “[This court] review[s] an award of attorneys’ fees for abuse of discretion
and the factual findings upon which the award is based for clear error.” Jason
D. W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 208 (5th Cir. 1998) (citations
omitted). “In any action or proceeding brought under [the IDEA], the court, in
its discretion, may award reasonable attorneys’ fees as part of the costs to a

       4
        According to S.H., Congress emphasized the importance of educational outcomes when
it re-enacted the IDEA in 2004. However, as set out above, this court has addressed
challenges to the appropriateness of IEPs following the IDEA’s re-enactment and has
continued to conduct its analysis using the reasonably-calculated standard of Rowley. See
Michael Z., 580 F.3d at 293. Similarly, other circuits have concluded that the framework of
analysis set out by Rowley remains intact. See, e.g., J.L. v. Mercer Island Sch. Dist., 592 F.3d
938, 951 (9th Cir. 2010) (“Congress did not . . . indicate that it sought to supersede Rowley.”).

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prevailing party who is the parent of a child with a disability.” 20 U.S.C.
§ 1415(i)(3)(B)(i)(I). This court “has specifically held that in IDEA cases, a
prevailing party is one that attains a remedy that both (1) alters the legal
relationship between the school district and the handicapped child and (2)
fosters the purposes of the IDEA.” Jason D. W., 158 F.3d at 209 (citation
omitted). In addition, “a litigant must attain some judicial imprimatur on a
material alteration of the legal relationship in order to be a prevailing party.”
El Paso Indep. Sch. Dist. v. Richard R., 591 F.3d 417, 422 (5th Cir. 2009). “An
administrative hearing officer’s order provides the requisite ‘judicial imprimatur’
for a party to be considered a ‘prevailing party’ for attorney’s fee purposes,
despite the fact that the administrative hearing officer does not have the
authority to award attorney’s fees.” Id. at 422 n.4. Nonetheless, under 20 U.S.C.
§ 1415(i)(3)(D)(i),
      [a]ttorneys’ fees may not be awarded and related costs may not be
      reimbursed in any action or proceeding under this section for
      services performed subsequent to the time of a written offer of
      settlement to a parent if—
             (I) the offer is made within the time prescribed by Rule 68 of
             the Federal Rules of Civil Procedure or, in the case of an
             administrative proceeding, at any time more than 10 days
             before the proceeding begins;
             (II) the offer is not accepted within 10 days; and
             (III) the court or administrative hearing officer finds that the
             relief finally obtained by the parents is not more favorable to
             the parents than the offer of settlement.

See also Gary G. v. El Paso Indep. Sch. Dist., 632 F.3d 201, 207 (5th Cir. 2011)
(“IDEA provides that a party may not recover attorneys’ fees for services
performed subsequent to a written settlement offer being made, if the relief
obtained is not more favorable than that offer.” (citing 20 U.S.C.
§ 1415(i)(3)(D)(i))).



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                                         No. 11-40518

       However, even if a prevailing party would be prohibited from recovering
attorneys’ fees under § 1415(i)(3)(D), “an award of attorneys’ fees and related
costs may be made to a parent who is the prevailing party and who was
substantially justified in rejecting the settlement offer.”                          20 U.S.C.
§ 1415(i)(3)(E). Further, even when a prevailing party would otherwise be
barred from recovering fees incurred after an offer for settlement was made
under § 1415(i)(3)(D), “the [IDEA] permits an award of attorney’s fees for work
performed prior to the written offer of settlement.” Richard R., 591 F.3d at 424.
Nonetheless, a court must reduce the amount of attorneys’ fees awarded if it
finds that “the parent, or the parent’s attorney, during the course of the action
or proceeding, unreasonably protracted the final resolution of the controversy.”
§ 1415(i)(3)(F)(i).
       PISD made an offer to settle in the amount of $15,500.00 on September 13,
2007. S.H. did not accept the offer, and a due process hearing occurred on
September 24 and 26, 2007, and October 25, 2007. Ultimately, the district court
awarded S.H. $14,625.00.             The district court concluded that S.H. was a
prevailing party but was not entitled to an award of attorneys’ fees.5 The court
determined that the fee bar under § 1415(i)(3)(D)(i) applied because S.H. rejected
an offer for settlement that was more favorable than the relief finally awarded.
The court also determined that the exception to the fee bar under § 1415(i)(3)(E)
did not apply because S.H. was not substantially justified in rejecting PISD’s
settlement offer. The district court declined to award attorneys’ fees incurred



       5
         PISD contests the district court’s determination that S.H. was a prevailing party
because he received an award that was less than the amount offered in settlement. However,
we reject PISD’s argument in light of this court’s recent decision in Gary G. v. El Paso
Independent School District, 632 F.3d 201 (5th Cir. 2011). In Gary G., this court determined
that “a party who rejects a settlement offer and obtains from an administrative hearing officer
or the district court no more educational benefit than the settlement offered is . . . a prevailing
party.” Id. at 206–07 (citation and internal quotation marks omitted).

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                                      No. 11-40518

prior to the offer for settlement, finding that S.H.’s rejection of PISD’s offer for
settlement unreasonably protracted the litigation.
       S.H. contends that the district court erred in applying the fee bar under
§ 1415(i)(3)(D)(i) because PISD was required to renew its offer to settle while the
case was pending before the district court. S.H. argues that, because PISD only
offered to settle once (eleven days prior to the administrative hearing) and did
not renew its offer, S.H.’s rejection of the offer was substantially justified.6
However, we reject S.H.’s argument, as PISD was not required to renew its offer
for the fee bar to apply. See § 1415(i)(3)(D)(i)(I) (stating that the bar to recovery
of fees applies when an “offer is made within the time prescribed by Rule 68 of
the Federal Rules of Civil Procedure or, in the case of an administrative
proceeding, at any time more than 10 days before the proceeding begins.”
(emphasis added)); see also M.L. v. Fed. Way Sch. Dist., 401 F. Supp. 2d 1158,
1165 (W.D. Wash. 2005) (rejecting the argument that an offer to settle made
prior to an administrative hearing had to be renewed during proceedings before
a district court in order to support the fee bar under § 1415(i)(3)(D)(i)); Dell v.
Bd. of Educ., 918 F. Supp. 212, 216 (N.D. Ill. 1995).
       S.H. argues that he was substantially justified in rejecting PISD’s offer to
settle because the relief awarded by the SEHO (i.e., $33,962.50, which the SEHO
later reduced to $20,475.00) was greater than the amount PISD offered in
settlement. However, the recovery of fees incurred after an offer of settlement
is barred when “the relief finally obtained by the parents is not more favorable
to the parents than the offer of settlement.” 20 U.S.C. § 1415(i)(3)(D)(i)(III)
(emphasis added). S.H. asserts that the relief ordered by the SEHO and the


       6
         On appeal, S.H. also asserts that PISD’s offer to settle would not have been
enforceable, and that, as a consequence, he was substantially justified in rejecting it.
However, because S.H. failed to raise this argument before the district court, the argument
is waived. See Benefit Recovery, Inc. v. Donelon, 521 F.3d 326, 329 (5th Cir. 2008) (“We will
not consider arguments or evidence that was not presented to the district court.”).

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                                  No. 11-40518

district court should both be considered “final,” meaning that if either amount
exceeds the amount offered in settlement, the fee bar should not apply.
However, the plain language of § 1415(i)(3)(D)(i)(III) indicates that the fee bar
applies unless the settlement offer exceeds the amount of relief awarded by “the
court or administrative hearing officer.” (emphasis added).        Consequently,
because PISD offered more compensation in settlement than the district court
ultimately awarded to S.H., the district court correctly determined that the bar
for post-settlement-offer fees applies.
      S.H. contends that the district court erred by declining to award attorneys’
fees incurred prior to PISD’s offer to settle. The district court found that S.H.
had unreasonably protracted the litigation by rejecting PISD’s settlement offer
and applied § 1415(i)(3)(F)(i) in denying the recovery of any fees. The rejection
of a settlement offer, even one that offers more favorable relief than
administrative or judicial proceedings ultimately award, does not necessarily
constitute unreasonable protraction. See Gary G., 632 F.3d at 210–11. However,
“[t]his court and a number of other courts have held that failing to settle can
constitute protraction.” Jason D. W., 158 F.3d at 211 (citations omitted); see also
Richard R., 591 F.3d at 430 (holding that the rejection of a settlement offer
constituted unreasonable protraction and prohibited an award of attorneys’ fees
incurred prior to the offer to settle); Shelly C. v. Venus Indep. Sch. Dist., 878
F.2d 862, 863 (5th Cir. 1989). In opposing S.H.’s motion for attorneys’ fees
before the district court, PISD highlighted that a finding of protraction can be
based on the failure to settle. PISD further urged that “an award of any amount
of attorneys’ fees to [S.H.] would be completely unreasonable” because of the
wasted time and energy caused by S.H.’s rejection of PISD’s offer to settle.
However, in S.H.’s response to PISD’s opposition, S.H. did not even mention the
issue of needless protraction, let alone explain why its rejection of PISD’s



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                                        No. 11-40518

settlement offer did not unreasonably protract the dispute.7 In finding that S.H.
had unreasonably protracted the controversy, the district court stated that it had
been “left to speculate as to why the Plaintiffs rejected the Defendant’s
settlement offer” and “declined to do so.” In light of S.H.’s failure to explain his
rejection of PISD’s offer before the district court, the fact that PISD offered S.H.
more than he was awarded by the district court, and our review of the record, we
conclude that the district court did not abuse its discretion in denying S.H.’s
motion to recover attorneys’ fees incurred prior to PISD’s offer to settle.8
D. The Statute of Limitations
       PISD contends that the district court erred by failing to conclude that the
statute of limitations barred S.H.’s claims. We review the district court’s
determination that the statute of limitations did not bar S.H.’s claims de novo.
Newby v. Enron Corp., 542 F.3d 463, 468 (5th Cir. 2008). Under 20 U.S.C.
§ 1415(f)(3)(C),
       [a] parent or agency shall request an impartial due process hearing
       within 2 years of the date the parent or agency knew or should have
       known about the alleged action that forms the basis of the


       7
         For the first time on appeal, S.H. suggests that his rejection of the settlement offer
did not constitute unreasonable protraction because PISD’s offer did not include attorneys’
fees. However, S.H. waived this argument by failing to raise it before the district court. See
Benefit Recovery, Inc., 521 F.3d at 329.
       8
         We agree fully with Judge Haynes’s emphasis on the importance of the recovery of
attorneys’ fees in education-related litigation, as set out in her partial dissent. We also agree
with Judge Haynes that a more thorough analysis, in the district court’s opinion and order on
attorneys’ fees, of S.H.’s entitlement to attorneys’ fees incurred prior to PISD’s offer to settle
would have been desirable. Nonetheless, our cases make clear that a party’s rejection of an
offer to settle can be dispositive on the issue of whether that party has engaged in
unreasonable protraction, serving as fair notice to S.H. that addressing that issue was
important. Thus, after PISD emphasized the waste of time (thirty-two months) and resources
that followed S.H.’s rejection of the settlement offer and sought a total denial of fees on that
basis, the district court appropriately looked to S.H. to explain its reasons for the rejection.
Under these circumstances, it is hard to fault the district court (particularly operating, as we
do, under an abuse of discretion standard) for declining to award pre-offer fees to S.H. when
no such explanation was provided.

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                                  No. 11-40518

      complaint, or, if the State has an explicit time limitation for
      requesting such a hearing under this subchapter, in such time as
      the State law allows.
Under 19 Texas Administrative Code § 89.1151(c), “[a] parent or public
education agency must request a due process hearing within one year of the date
the complainant knew or should have known about the alleged action that serves
as the basis for the hearing request.”
      The district court awarded relief to S.H. based on procedural violations
that occurred at the May 18, 2006 ARDC meeting. However, S.H. filed his
request for a due process hearing on July 27, 2007, which was more than one
year and two months after the meeting at issue. Thus, PISD contends that
S.H.’s claims are time barred.
      Both the district court and SEHO concluded that 34 C.F.R. § 300.511(f)(2)
prevented the application of Texas’s one-year statute of limitations. Section
300.511(f)(2) provides that the limitations period “does not apply to a parent if
the parent was prevented from filing a due process complaint due to—[t]he [local
education agency]’s withholding of information from the parent that was
required under this part to be provided to the parent.” Like the SEHO, the
district court concluded that S.H.’s parents were prevented from filing a timely
due process complaint because PISD did not include the appropriate individuals
in the May 18, 2006 ARDC meeting.
      PISD contends that the district court erred in concluding that the statute
of limitations was inapplicable under 34 C.F.R. § 300.511(f)(2), the regulation
implementing § 1415(f)(3)(D)(ii). PISD notes that district courts have stated
that § 1415(f)(3)(D)(ii) addresses the requirement under § 1415(d)(1)(A) that a
school district provide parents with a copy of the procedural safeguards under
the IDEA. See, e.g., El Paso Indep. Sch. Dist. v. Richard R., 567 F. Supp. 2d 918,
943 (W.D. Tex. 2008) (discussing the requirement that the district provide


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                                  No. 11-40518

“parents a complete explanation of the IDEA procedural safeguards”). PISD
asserts that it provided all the required information because S.H.’s parents were
repeatedly informed of procedural safeguards under the IDEA, including
explanations of the limitations periods in which they could request a due process
hearing. PISD argues that, as a consequence, the exception in § 1415(f)(3)(D)(ii)
does not apply.
      However, we conclude that the district court and SEHO correctly
determined that S.H.’s claims were not barred by the statute of limitations. As
we discuss in detail below, the May 18, 2006 ARDC was not duly constituted and
was missing a statutorily-required member. The resulting deficiencies in the
May 18, 2006 IEP formed the basis for relief in this case. S.H.’s parents initially
agreed with the decisions made by the May 18, 2006 ARDC, but as the district
court noted, S.H.’s “parents were unfamiliar with the IDEA’s procedures and
services.” Furthermore, we agree with the district court’s conclusion that, had
the required members attended the May 18, 2006 ARDC meeting, the
deficiencies in the May 18, 2006 IEP would have been made clear sooner. See
also Rowley, 458 U.S. at 206 (“[A]dequate compliance with the procedures
prescribed would in most cases assure much if not all of what Congress wished
in the way of substantive content in an IEP.”). Thus, as the district court
concluded, the failure to include the required members in the May 18, 2006
ARDC constituted the withholding of required information, and the inadequate
composition of the ARDC prevented S.H. from filing a timely request for a due
process hearing.
      PISD cites several district court cases that it asserts support its position
that the exception under § 1415(f)(3)(D)(ii) only applies in instances where the
school district fails to provide a copy of procedural safeguards. In particular,
PISD highlights D.C. v. Klein Independent School District, 711 F. Supp. 2d 739
(S.D. Tex. 2010). In D.C., the plaintiffs sought to invoke the exception to the

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                                  No. 11-40518

statute of limitations under § 1415(f)(3)(D)(ii). Id. at 745–46. As is true in the
instant case, the parents alleged deficiencies in the composition of the child’s
ARDC. Id. The district court nonetheless held that the plaintiffs’ claims were
barred by the statute of limitations. Id. at 746–49. PISD suggests that D.C.
indicates that procedural defects in the composition of the ARDC did not amount
to a witholding of required information and cannot form the basis for the
application of the exception under § 1415(f)(3)(D)(ii).
      However, unlike the record in the instant case, the record in D.C. showed
that the plaintiffs knew about the deficiencies in the relevant IEP more than a
year prior to seeking a due process hearing. Id. at 745 (describing evidence that
plaintiffs “were expressing their belief that the IEP was inappropriate” more
than a year before requesting a due process hearing). Thus, in D.C., it could not
be said that deficiencies in the composition of an ARDC prevented parents from
learning about deficiencies in the student’s IEP, making D.C. distinguishable
from the instant case. The other cases PISD cites are similarly distinguishable.
See C.H. v. Nw. Indep. Sch. Dist., 815 F. Supp. 2d 977, 983–87 (E.D. Tex. 2011)
(assessing the applicability of the statute of limitations where it was not alleged
that a deficiently constituted ARDC prevented parents from timely requesting
a due process hearing); Richard R., 567 F. Supp. 2d at 942–49 (same). Thus, the
non-binding authority PISD cites as support does not provide grounds for
reversing the district court’s judgment in this case.
E. The Composition of the May 18, 2006 ARDC
      PISD contends that the composition of the May 18, 2006 ARDC did not
violate procedural requirements of the IDEA because the Act “does not require
school districts to have a representative from a private school attend and
participate in an ARD committee meeting unless the school district itself is
placing or referring a child to a private school in order to receive special
education services the district deems are necessary for the child but which it

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                                      No. 11-40518

determines it cannot provide directly.”           PISD argues that all individuals
required to be present under the IDEA were in attendance. The attendees were
Jean Belcher, a special language evaluator who served as PISD’s representative
and was able to interpret the instructional implications of evaluation results;
Stephanie Craft, a diagnostician;9 Debbie Jennings, one of PISD’s school
psychologists; and S.H.’s parents.
       Both the SEHO and the district court found that the composition of the
May 18, 2006 ARDC did not meet procedural requirements. Under 20 U.S.C.
§ 1414(d)(1)(B), absent exceptions not applicable here, an ARDC is composed of:
       (i) the parents of a child with a disability;
       (ii) not less than 1 regular education teacher of such child (if the
       child is, or may be, participating in the regular education
       environment);
       (iii) not less than 1 special education teacher, or where appropriate,
       not less than 1 special education provider of such child;
       (iv) a representative of the local educational agency who—
               (I) is qualified to provide, or supervise the provision of,
               specially designed instruction to meet the unique needs of
               children with disabilities;
               (II) is knowledgeable about the general education curriculum;
               and
               (III) is knowledgeable about the availability of resources of the
               local educational agency;
       (v) an individual who can interpret the instructional implications of
       evaluation results, who may be a member of the team described in
       clauses (ii) through (vi);
       (vi) at the discretion of the parent or the agency, other individuals
       who have knowledge or special expertise regarding the child,
       including related services personnel as appropriate; and
       (vii) whenever appropriate, the child with a disability.




       9
         Ms. Craft purportedly served in the role of S.H.’s special education teacher at the
ARDC meeting. However, she was not S.H.’s teacher, and there were no plans that she would
serve in this role. At the time of the ARDC meeting, PISD had not employed Ms. Craft as a
special education teacher at all.

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                                  No. 11-40518

In concluding that the ARDC was not properly constituted, the district court
focused on the absence of a regular education teacher, as well as a representative
from WLC.
      We agree with the district court that May 18, 2006 ARDC was
procedurally defective because it excluded a required member. The inclusion of
a representative from WLC as an “individual[] who ha[s] knowledge or special
expertise regarding the child” was discretionary under § 1414(d)(1)(B)(vi).
However, the ARDC must include at least one teacher “of [the] child” under
§ 1414(d)(1)(B)(ii). On May 18, 2006, S.H. was enrolled exclusively at WLC and
had yet to attend any classes at PISD. Thus, a teacher of S.H. would have been
one from WLC or possibly (we need not decide) a teacher from PISD who would
soon function in that role. The exclusion of any such teachers prevented the May
18, 2006 ARDC from being duly constituted under the IDEA.
F. Harm to S.H.
      PISD contends that, even if the May 18, 2006 ARDC meeting was
procedurally defective, no relief should have been awarded to S.H. because any
procedural defects did not harm him.
      Under 20 U.S.C. § 1415(f)(3)(E)(ii),
      [i]n matters alleging a procedural violation, a hearing officer may
      find that a child did not receive a free appropriate public education
      only if the procedural inadequacies—
             (I) impeded the child’s right to a free appropriate public
             education;
             (II) significantly impeded the parents’ opportunity to
      participate in the decisionmaking process regarding the
      provision of a free appropriate public education to the parents’
             child; or
             (III) caused a deprivation of educational benefits.




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                                       No. 11-40518

PISD contends that there was no harm to S.H. because the May 18, 2006 ARDC
already received considerable information from WLC.10 PISD asserts that it
used information from Gail Wayman to develop S.H.’s initial IEP and that S.H.’s
parents were fully aware of S.H.’s development and both attended and played
prominent roles in the May 18, 2006 ARDC meeting.
       Despite the information that the May 18, 2006 ARDC possessed regarding
S.H., the district court did not err in concluding that procedural defects in the
composition of the May 18, 2006 ARDC resulted in a loss of educational
opportunity to S.H. As the district court found, the harm was S.H.’s failure to
receive ESY services for the summer of 2006 and S.H.’s inappropriate initial
placement in an integrated pre-kindergarten classroom during his initial weeks
at PISD. The ARDC concluded that S.H. was not eligible for ESY services
because S.H. was a new student and PISD did not have specific data regarding
S.H.’s potential regression over the course of the summer of 2006. However, S.H.
was severely autistic and had been receiving instruction at WLC prior to the
summer of 2006. We agree with the district court’s assessment that, if a
representative from WLC had been included in the May 18, 2006 ARDC, the
representative would have provided information demonstrating S.H.’s eligibility
for ESY services. Further, the district court did not erroneously determine that,
had the May 18, 2006 ARDC been duly constituted, the ARDC would not have
placed S.H. in an integrated classroom. Thus, although the district court’s
determinations regarding impact of including a representative from WLC are



       10
          PISD notes that in Cone v. Randolph County Schools, 302 F. Supp. 2d 500, 507
(M.D.N.C. 2004), “[t]he court conclude[d] that no procedural violation has occurred since all
statutorily-required persons were part of the IEP team, especially where the IEP team had
access to the information any non-required parties might have provided.” In Cone, however,
“all statutorily-required persons were part of the IEP team” and “[t]he only remaining category
of potential participants [we]re those that might be invited at the discretion of the parents or
the local education agency.” Id. (citing 20 U.S.C. § 1414(d)(1)(B)(vi)).

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                                 No. 11-40518

necessarily speculative, they are well supported by the record, and we will not
disturb them here.
G. S.H.’s Entitlement to ESY Services
      PISD argues that S.H. did not meet his burden of proof regarding his
entitlement to ESY services during the summer of 2006. PISD asserts that ESY
services are only appropriate “to prevent ‘severe and substantial regression’ so
that the benefits over the school year would not be ‘significantly jeopardized.’”
(quoting Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153,
1158 (5th Cir. 1986)).      PISD also cites 19 Texas Administrative Code
§ 89.1065(2), which provides:
      The need for ESY services must be documented from formal and/or
      informal evaluations provided by the district or the parents. The
      documentation shall demonstrate that in one or more critical areas
      addressed in the current individualized education program (IEP)
      objectives, the student has exhibited, or reasonably may be expected
      to exhibit, severe or substantial regression that cannot be recouped
      within a reasonable period of time. Severe or substantial regression
      means that the student has been, or will be, unable to maintain one
      or more acquired critical skills in the absence of ESY services.
PISD contends that there was no information available at the time of the May
18, 2006 ARDC meeting that would show that S.H. met this requirement for
entitlement to ESY services.      PISD further notes that, under 19 Texas
Administrative Code § 89.065(9), “[d]istricts are not eligible for reimbursement
for ESY services provided to students for reasons other than those set forth in
this section.”
      Even though there was no specific data documenting actual regression
during breaks from instruction available to the May 18, 2006 ARDC, we agree
with both the SEHO and district court that S.H. was nonetheless entitled to ESY
services during the summer of 2006. Eligibility for ESY services does not depend
exclusively on whether a student has exhibited regression. Instead, eligibility


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                                 No. 11-40518

can be based on whether the student “reasonably may be expected to
exhibit . . . substantial regression.” 19 TEX. ADMIN. CODE § 89.1065(2). S.H. had
been diagnosed with autism that was at the severe end of the scale. He had also
been receiving instruction at WLC prior to the summer of 2006. Thus, it is
reasonable to expect that S.H. would exhibit “substantial regression that cannot
be recouped within a reasonable period of time.” Id. Further, a subsequent
ARDC determined that extensive ESY services were needed during the summer
of 2007. This conclusion further suggests that ESY services were, in fact,
appropriate under the law during the summer of 2006. Thus, we conclude that
the district court did not err in determining that S.H. met his burden of
demonstrating entitlement to ESY services during the summer of 2006, and we
affirm the judgment of the district court awarding relief based on PISD’s failure
to make these services available.
                              III. CONCLUSION
         For the reasons stated above, we AFFIRM the judgment of the district
court.




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                                  No. 11-40518


HAYNES, Circuit Judge, concurring and dissenting:
      I concur in the entirety of the majority opinion and judgment of the court
save and except the second portion of Section II.C., addressing the recovery of
attorneys’ fees for time spent prior to the rejection of the settlement offer. I
respectfully dissent from the judgment affirming that portion of the district
court’s order.
      The importance of attorneys’ fees recovery in education-related litigation
far exceeds that suggested by the relatively brief discussion presented by the
majority opinion and underlying district court order, so I begin by placing the
issue in context. Faced with the challenges of raising a child with a disability,
parents often depend on public educational authorities for assistance in
“ensuring equality of opportunity, full participation, independent living, and
economic self-sufficiency for” their child. 20 U.S.C. § 1400(c)(1). Congress
intended for the IDEA to promote these outcomes, id. § 1400(d) (listing the
IDEA’s purposes), and added the attorneys’ fees and related costs provisions now
found in 20 U.S.C. § 1415 to increase parents’ participation in and access to the
IDEA’s remedial scheme. See Handicapped Children’s Protection Act of 1986,
Pub. L. No. 99-372, 100 Stat. 796 (1986) (enacting, inter alia, attorneys’ fees
award provision), abrogating Smith v. Robinson, 468 U.S. 992 (1984) (holding
that, because the IDEA’s predecessor statute lacked an attorneys’ fees provision,
such awards could not be obtained by enforcing education-related rights through
other civil rights statutes that permitted awards); cf. R. Shep Melnick, Taking
Remedies Seriously: Can Courts Control Public Schools?, in From Schoolhouse
to Courthouse 40 (Joshua M. Dunn & Martin R. West eds., 2009) (“Schoolhouse”)
(observing that the “combination of attorneys’ fees and monetary damages
significantly increased incentives for private parties to file suits” under federal
civil rights statutes, fostered the development of “a private bar . . . to litigate

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                                       No. 11-40518

[such] cases,” and “had the effect not just of increasing the number of cases filed
but also of augmenting the political support for this enforcement mechanism”).1
       As many parents unfortunately discover, the quest to procure a free
appropriate public education for their child is anything but free, and it certainly
is not easy. The IDEA’s complex procedural requirements and opaque, jargon-
laden provisions easily could discourage even the most dedicated parents from
“going it alone.” Although the IDEA provides parents a right to use attorneys
or other specialized individuals in resolving special education disputes, 20 U.S.C.
§ 1415(h)(1), it is difficult to find—let alone afford—attorneys to take these
cases, especially in those areas where such help is most needed. See Lynn M.
Daggett, Special Education Attorney’s Fees, 8 U.C. Davis J. of Juvenile L. & Pol’y
1, 24-29 (2004) (noting disparity in number of IDEA disputes brought in
different states, in urban vs. rural districts, and by socioeconomic status).
       Some of the children who qualify for services under the IDEA come from
underprivileged families lacking in resources to pursue a complex process. See,
e.g., Kelly D. Thomason, Note, The Costs of a “Free” Education, 57 Duke L.J. 457,
483-84 (2007). It nonetheless falls to such families to prove the inadequacy of
a school district’s actions and to bear the cost of the experts inevitably required
to make such a case. See Arlington Cent. Sch. Dist. v. Murphy, 548 U.S. 291,
293-94 (2006) (expert costs); Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 51
(2005) (IEP burden). On top of all this, although Congress intended for the




       1
         Congress enacted the Handicapped Children’s Protection Act explicitly in response
to the Supreme Court’s ruling in Smith v. Robinson. See, e.g., Bd. of Educ. v. Diamond ex rel.
Diamond, 808 F.2d 987, 993-94 (3d Cir. 1987) (discussing attorneys’ fees amendment);
Handicapped Children’s Protection Act of 1985: Hearing on S. 415 Before the Subcomm. on the
Handicapped of the S. Comm. on Labor and Human Res., 99th Cong. 1 (1985) (opening
statement of Sen. Weicker) (“Today we are accepting [the Supreme Court’s] invitation to
revisit the matter[s] [at issue in Smith].”).

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                                        No. 11-40518

IDEA to provide relatively quick resolution to special education disputes,2 this
more than six year-old case exemplifies the tragic reality that such controversies
have a tendency to mature more slowly than the children at issue. See, e.g.,
Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 484 (7th Cir. 2012) (ending
eleven-year-old dispute over school district’s alleged systemic violations of
IDEA’s “child-find” provision by decertifying class).
       Against this backdrop, the IDEA comprehensively addresses attorneys’
fees in §1415(i)(3). First, in subparagraph (B), it states that attorneys’ fees may
be awarded “to a prevailing party who is the parent of a child with a disability.”
Id. § 1415(i)(3)(B)(i)(I). The district court found, and the majority opinion
affirms, that S.H.’s parents fall in this category. I agree.




       2
         See Schaffer, 546 U.S. at 58-59 (discussing various IDEA provisions intended to make
the resolution of special education disputes cost-effective and expeditious, such as mediation
and pre-hearing “resolution sessions”); El Paso Indep. Sch. Dist. v. Richard R., 591 F.3d 417,
426 (5th Cir. 2009) (“Early resolution through settlement is favored under the IDEA.”).
        Parents that resolve their disputes outside of administrative and judicial channels
pursuant to these policy preferences, however, may not be able to recover attorneys’ fees. This
circuit recently joined several others in extending to the IDEA context the Supreme Court’s
limitation of “prevailing party” status to those who “obtain[] a judgment on the merits, a
consent decree, or some similar form of judicially sanctioned relief.” Richard R., 591 F.3d at
422 (citing Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532
U.S. 598, 603-04 (2001), superseded by statute on other grounds, OPEN Government Act of
2007, Pub. L. No. 110-175, § 4(a), 121 Stat. 2524 (Freedom of Information Act context)); see
also id. at 422 nn.3-4 (collecting cases and noting that “[a]n administrative hearing officer’s
order provides the requisite ‘judicial imprimatur’” to support prevailing party status). At least
one circuit has extended Buckhannon to preclude an IDEA plaintiff from recovering attorneys’
fees after resolving her dispute via private settlement. See Smith v. Fitchburg Pub. Schs., 401
F.3d 16, 27 (1st Cir. 2005).
        Even if a private settlement provides for attorneys’ fees, moreover, it may not be
judicially enforceable. See 20 U.S.C. § 1415(f)(1)(B)(iii) (limiting judicially-enforceable
settlements under the IDEA to settlements reached at a “resolution session”); cf. Christina A.
ex rel. Jennifer A. v. Bloomberg, 315 F.3d 990, 992-93 (8th Cir. 2003) (holding that district
court’s approval of settlement, although required by the relevant statute, did not confer
“prevailing party” status because the court did not “establish the terms of the agreement”; the
district court’s approval therefore did not constitute “judicial imprimatur” on the same level
as a consent decree or judgment, as required by Buckhannon).

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                                       No. 11-40518

       Next, subparagraph (D) prohibits awarding fees for services performed
“subsequent to the time of a written offer of settlement” if certain conditions are
met. Id. § 1415(i)(3)(D). I have no quarrel with the majority opinion’s conclusion
that the offer here meets the conditions set by the statute: the District made a
settlement offer more than ten days prior to the administrative hearing; S.H. did
not accept it; and the district court ultimately found that S.H. obtained less
favorable relief than that originally offered by the District. Id. § 1415(i)(3)(D)(i).
       Subparagraph (E) then sets out an exception to this prohibition for a
prevailing-party parent “who was substantially justified in rejecting [a]
settlement offer.” Id. § 1415(i)(3)(E). The district court and the majority opinion
correctly reject S.H.’s two arguments for “substantial justification”—that the
District had to renew its offer after the lawsuit was filed and that the award
from the administrative hearing officer was greater than the settlement offer.3
       No one disputes, however, that subparagraphs (D) and (E) apply only to
“services performed subsequent to the time of a written offer of settlement.” Id.
§ 1415(i)(3)(D)(i) (emphasis added). Thus, fees for services performed prior to
the time of the offer in question—i.e., before September 13, 2007—are not
excluded by subparagraph (D)’s prohibition. As a result, S.H. need not show that


       3
         The fact that a hearing officer awards greater relief does not alone suffice to show
substantial justification. When substantial justification is at issue, a parent must give an
explanation for why the settlement offer did not provide the relief she believed was necessary
to provide her child a free appropriate public education. It may be, for example, that the offer
failed to include certain compensatory services or reimbursement for private instruction
during a time period when the educational agency denied the child a free appropriate public
education.
        The arguments made in the administrative proceeding that led to a higher award may
also show that a parent was “substantially justified” in rejecting a settlement offer. A parent
generally should not be penalized, for example, for making a good faith argument urging a
novel application of an unclear point of law that could result in the parent’s obtaining of
greater relief than that offered via settlement. In such a situation, even if the parent
ultimately lost on that uncertain point, he may still have been substantially justified in
making the argument and pursuing greater relief. I ultimately side with the majority opinion
on this issue because S.H. failed to provide any such explanation or analyses.

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                                         No. 11-40518

he was “substantially justified in rejecting” the District’s settlement offer in
order to recover pre-offer fees.4
       Instead, a separate subparagraph—(F)—addresses the possibility of
reducing pre-offer fees: “Except as provided in subparagraph (G), whenever the
court finds that . . . the parent, or the parent’s attorneys, during the course of the
action or proceeding, unreasonably protracted the final resolution of the
controversy . . . the court shall reduce, accordingly, the amount of the attorneys’
fees awarded under this section.” Id. § 1415(i)(3)(F)(i). This provision says
nothing about a written settlement offer or substantial justification. Nor does
it address the complete disallowance of attorneys’ fees. It provides only for an
appropriate reduction of attorneys’ fees based upon, among other things,
unreasonable protraction. Id. § 1415(i)(3)(F).
       The district court and the majority opinion, however, do not distinguish
between these separate provisions. The entirety of the district court opinion
addressing pre-offer fees is as follows:
       With respect to attorneys’ fees for work performed prior to the
       resolution meeting, the “IDEA states that a court shall reduce fees
       ‘whenever the court finds that the parent or the parent’s attorney
       . . . unreasonably protracted the final resolution of the controversy,’”
       [El Paso Indep. Sch. Dist. v. Richard R., 591 F.3d 417, 429 (5th Cir.
       2009) (quoting 20 U.S.C. § 1415(i)(3)(F)(i))]. The court, then, must
       determine whether the Plaintiffs’ rejection of the Defendant’s
       settlement offer unreasonably protracted the final resolution of the
       controversy such that a further reduction in the fee award is
       warranted. See id. The court notes that the parties did not address
       this issue. The court, therefore, is left to speculate as to why the
       Plaintiff rejected the Defendant’s settlement offer. The court
       declines to do so and finds that the Plaintiffs’ rejection of the
       Defendant’s settlement offer unreasonably protracted the final



       4
          I use the term “pre-offer fees” to refer to attorneys’ fees incurred for time spent prior
to the time of the written offer that the District presented here and that we have found meets
the standard for such offers.

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                                       No. 11-40518

       resolution of the controversy. Based on the foregoing, [recovery of
       Plaintiffs’ pre-offer fees] is hereby DENIED.
S.H. ex rel. A.H. v. Plano Indep. Sch. Dist., No. 4:08-CV-96, 2011 U.S. Dist.
LEXIS 32260, *10-11 (E.D. Tex. Mar. 28, 2011) (emphasis added). With little
analysis, the majority opinion affirms this conclusion.
       The district court’s analysis, however, conflates the post-offer-fees bar in
subparagraph (D) and its “substantially-justified” exception in subparagraph (E)
with the separate “unreasonable-protraction” provision in subparagraph (F),
which makes no reference to settlement or substantial justification. If Congress
intended to incorporate those requirements into the unreasonable-protraction
inquiry, it could have done so. As a matter of statutory construction, we must
assume that Congress intended different standards to apply to the fee-reduction
provisions in subparagraph (F) than the fee-bar provisions in subparagraphs (D)
and (E). “‘[W]here Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in the disparate inclusion or
exclusion.’” Russello v. United States, 464 U.S. 16, 23 (1983) (quoting United
States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)).
       Yet, the district court failed to separate these two distinct analyses. The
district court cited Richard R. in support of the conclusion that “unreasonable
rejection” of a settlement offer equals “unreasonable protraction.” In Richard R.,
however, the school district offered everything the parents asked for plus
attorneys’ fees.5 Richard R., 591 F.3d at 420-21. There was simply nothing to


       5
          We previously declined to find unreasonable protraction in a case where both parties
took steps that delayed resolution of the dispute and where the plaintiff rejected a settlement
offer that would have provided almost triple the amount of relief ultimately obtained, but no
attorneys’ fees. See Gary G. v. El Paso Indep. Sch. Dist., 632 F.3d 201, 210-11 (5th Cir. 2011).
The majority opinion determines that S.H. waived this argument by failing to raise it in the
district court. As more fully discussed below, however, neither side raised protraction in the
district court, and, in any event, the burden of proving protraction fell to the District. Thus,

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                                        No. 11-40518

litigate after the offer, yet Richard R’s attorney rejected the offer based on an
untenable position that the attorney previously had acknowledged as invalid.
Id. at 428 & n.12.
       No one suggests that this case is anything like Richard R. The parents
and the District had legitimate disputes over how best to provide S.H. with a
free appropriate public education and to construct an IEP tailored to that end.
The hearing officer and the district court agreed that S.H. deserved relief in the
form of reimbursement for private instruction. That the district court ultimately
awarded slightly less than the settlement offer does not render S.H.’s parents
unreasonable in their pursuit of more relief for their severely autistic son.
       For its part, the majority opinion states: “However, ‘[t]his court and a
number of other courts have held that failing to settle can constitute
protraction.’” (quoting Jason D.W. ex rel. Douglas W. v. Houston Indep. Sch.
Dist., 158 F.3d 205, 211 (5th Cir. 1998); citing Shelly C. ex rel. Shelbie C. v.
Venus Indep. Sch. Dist., 878 F.2d 862, 863 (5th Cir. 1989)).6 Jason D.W. made
that point with little analysis and ultimately found the parents’ position
inadequately briefed. Shelly C. concluded that fact issues existed as to the
reasonableness of fees and the unreasonableness of protraction without
discussing what allegedly constituted protraction. See 878 F.2d at 864. Neither
case held—as the district court did here—that simply rejecting a settlement offer
for less relief than ultimately obtained is tantamount to unreasonable
protraction.7




I disagree that this argument is waived.
       6
           The majority opinion also cites to Richard R., which was discussed above.
       7
         The primary debate in Jason D.W. was over whether “unreasonable protraction” refers
only to the administrative proceeding or also to the litigation over attorneys’ fees.

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                                        No. 11-40518

       Certainly, rejecting a reasonable settlement offer is one factor that can be
considered in analyzing unreasonable protraction. But—other than in a Richard
R.-like situation where the school district offers everything asked for and then
some—it is not the sole factor. See, e.g., Ector Cnty. Indep. Sch. Dist. v. VB, 420
F. App’x 338, 347-48 (5th Cir. 2011) (unpublished) (discussing factors to consider
in determining “unreasonable protraction,” including the parents’ good faith, and
affirming award of attorneys’ fees); see also Jordan S. v. Bd. of Educ., No. 11-C-
8362, 2012 U.S. Dist. LEXIS 89259, at *7-9 (N.D. Ill. Jun. 28, 2012) (analyzing
parents’ overall conduct in the litigation in determining “unreasonable
protraction”); Corpus Christi Indep. Sch. Dist. v. D.H., No. C-11-167, 2012 U.S.
Dist. LEXIS 79214, at *19-20 (S.D. Tex. Jun. 7, 2012) (applying nuanced
analysis to “unreasonable protraction” question). Instead, the district court
should analyze unreasonable protraction in the context of the overall conduct of
the litigation, including the parents’ good faith, the reasonableness of the legal
position taken and arguments made, participation in efforts to resolve the
litigation, the issues prevailed upon, and the type and amount of relief
ultimately obtained.8 No such analysis was conducted here.


       8
          See also J.T. ex rel. A.T. v. Medford Bd. of Educ., 118 F. App’x 605, 606-07 (3d Cir.
2004) (unpublished) (affirming unreasonable-protraction finding in light of parents’ and
parents’ attorney’s consistent failure to provide requested documents, refusal to cooperatively
work with school district, and unilateral termination of key IEP meeting); Neosho R-V Sch.
Dist. v. Clark, 315 F.3d 1022, 1030-31 (8th Cir. 2002) (declining to find unreasonable
protraction where district court had already limited attorneys’ fee award; the relief offered via
settlement differed from that ultimately obtained; and the school district never offered to
settle the specific issue on which the plaintiff prevailed); Holmes v. Millcreek Twp. Sch. Dist.,
205 F.3d 583, 594 (3d Cir. 2000) (concluding that fee award was excessive because parents
were no longer prevailing parties on certain issues and two separate state administrative
authorities had found that the parents and their attorney “‘contributed to’ the needlessly
‘protracted proceedings’”); Phelan v. Bell, 8 F.3d 369, 375 n.6 (6th Cir. 1993) (holding that
plaintiff did not unreasonably protract proceedings by rejecting a proposed IEP that was later
used as the basis for final relief; “merely pursuing the proceedings to a final decision did not
unreasonably protract the[] proceedings”); Johnson v. Bismarck Pub. Sch. Dist., 949 F.2d 1000,
1004 (8th Cir. 1991) (affirming unreasonable protraction finding in case where plaintiff’s
attorney failed to attend meetings with school district officials and filed suit without making

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                                     No. 11-40518

       I have two other concerns with the district court’s handling of this issue:
the placement of the burden of proof and the complete denial—rather than
reduction—of pre-offer fees. First, although § 1415(i) does not expressly state
a burden of proof, “‘[p]erhaps the broadest and most accepted idea is that the
person who seeks court action should justify the request . . . .’” Schaffer, 546
U.S. at 56 (citation omitted). Accordingly, the party with the burden of proof
under subparagraph (F) should be the party claiming that an attorneys’ fees
award should be reduced because of another party’s engaging in “unreasonable
protraction.” Here, that is the District.
       Although we have not specifically addressed the burden of proof in this
context, the analysis above dovetails with the extant law in this area. Courts
calculate attorneys’ fees awards under the IDEA using the “lodestar” method.
See, e.g., Gary G. v. El Paso Indep. Sch. Dist., 632 F.3d 201, 205 (5th Cir. 2011);
Damian J. v. Sch. Dist. of Phila., 358 F. App’x 333, 335-37 (3d Cir. 2009)
(unpublished). The lodestar amount is presumptively reasonable, but may be
further adjusted using this circuit’s twelve well-known Johnson factors. See,
e.g., Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 800 & n.18 (5th Cir.
2006) (citing Johnson v. Ga. Hwy. Express, Inc., 488 F.2d 714, 717-19 (5th Cir.
1974)); see also Holmes v. Millcreek Twp. Sch. Dist., 205 F.3d 583, 595-96 (3d
Cir. 2000) (applying some Johnson factors to reduce attorneys’ fee award in
IDEA case, without citing Johnson). Under the lodestar approach, the burden
of proving that the properly calculated lodestar amount should be reduced falls
to the party opposing the fee award. See, e.g., Robinson v. City of Harvey, 489
F.3d 864, 872 (7th Cir. 2007) (citation omitted). Since the effect of the District’s
argument is to reduce—indeed, eliminate—the attorneys’ fees here, it has the
burden to prove “unreasonable protraction.”


any “attempt[s] at informal negotiation” or “even telling District officials what relief he
thought [the plaintiff] deserved”).

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                                       No. 11-40518

       The district court implicitly concluded that no evidence was presented on
unreasonable protraction and, indeed, found that no one had raised this issue at
all. S.H., 2011 U.S. Dist. LEXIS 32260, at *10-11.9 Where there is a vacuum of
evidence and argument on a specific issue, the party with the burden to prove
the issue at trial loses. See, e.g., Mo. Pac. R.R. Co. v. Harbison-Fischer Mfg. Co.,
26 F.3d 531, 536 (5th Cir. 1994); see also Celotex Corp. v. Catrett, 477 U.S. 322-
24 (1986). Accordingly, rather than ruling against S.H., the district court either
should not have addressed subparagraph (F) or should have concluded that the
District failed to offer evidence sufficient to prove unreasonable protraction. The
absence of evidence and argument below meant that the District should have
lost on this point, not won.
       This leads me to the final point with which I part ways with the majority
opinion—the complete denial of fees.               Where it applies, subparagraph (F)
operates to reduce fees “accordingly.” 20 U.S.C. § 1415(i)(3)(F). Neither the
district court nor the majority opinion explains why the prevailing-party parents
here deserve a fee award of zero. Given the allocation of the burden of proof and
the IDEA’s text, I disagree with barring the recovery of any fees—even had S.H.


       9
         The majority opinion cites to a statement in the District’s response to the motion for
attorney’s fees that mentions “protraction” and stated that any award would be “completely
unreasonable.” However, the district court concluded that neither party raised the issue of
unreasonable protraction. That is probably because the District’s passing reference to
“protraction” was in the context of arguing that S.H. was not a “prevailing party,” a point on
which the District lost. The District never argued that S.H. unreasonably protracted and did
not cite to subparagraph (F)(i). Instead, in a separate section from which the “completely
unreasonable” quote comes, it cited to subparagraph (F)(iii), a separate provision dealing with
“excessive” time spent “considering the nature of the action” (to which S.H. did respond) which
would not have alerted S.H. or the court to a claim of unreasonable protraction under (F)(i).
        That lack of discussion and citation is in stark contrast to the District’s lengthy
discussion of the effect of a settlement offer on post-offer fees and citation to the correct
provision. The district court rightly could expect the plaintiff to provide any “substantial
justification” in response to this attack on post-offer fees. However, as to pre-offer fees and
unreasonable protraction, the district court correctly concluded that “the parties did not
address this issue.” For exactly that reason (among others), the district court improperly
reached the question of “unreasonable protraction.”

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                                         No. 11-40518

unreasonably protracted these proceedings—without analyzing whether that
result is the appropriate reduction.10
       However inadvertently, the attorneys’ fee ruling here only further
steepens an already-uphill climb parents face in this area by turning every
settlement offer into a game of high-stakes poker between school districts and
the parents of special-needs children.11               See Thomason, supra, at 484-85
(discussing the rarity of IDEA due process hearings and the minute amount of
special education funds (0.3%) actually spent on IDEA disputes).12 In addition
to cash, experts, and perseverance, parents with legitimate arguments for more
benefits for their special-needs child apparently must also arm themselves with
a crystal ball accurate within mere percentage points of what a “final”
adjudicator might actually award.13 If they are wrong, either the lawyer does
not get paid or the parents get saddled with a bill they likely cannot


       10
          Neither party briefed the portion of subparagraph (F)’s exception that provides that
the fee-reduction provision “shall not apply” if “there was a violation of [§ 1415].” 20 U.S.C.
§ 1415(i)(3)(G). This exception seems to apply given our conclusion that the District violated
§ 1415. I agree, however, with the majority opinion’s implicit conclusion that this argument
is forfeited. S.H. briefly argued for a different (and here inapplicable) exception under
subparagraph (G) that applies if a school district unreasonably protracts proceedings.
       11
           School districts, of course, come to the table with public funds and “in-house” experts.
See, e.g., Murphy, 548 U.S. at 314 (Breyer, J., dissenting) (“The costs of experts may not make
much of a dent in a school district’s budget, as many of the experts they use in IDEA
proceedings are already on the staff.” (citing Oberti v. Bd. of Educ., 995 F.2d 1204, 1219 (3d
Cir. 1993))). They may also recover attorneys’ fees from parents and their attorneys in certain
situations. See 20 U.S.C. § 1415(i)(3)(B)(i)(II)-(III).
       12
          See also Samuel R. Bagenstos, The Judiciary’s Now-Limited Role in Special
Education, in Schoolhouse at 129 (noting that three of the largest school districts in the
nation, including San Antonio ISD, “were not required to pay any plaintiffs’ attorneys’ fees in
IDEA cases during [the 1999-2001 school years]”).
       13
         The difference between the settlement offer amount and the amount ultimately
awarded is only $875, which equates to 13.5 hours of private instruction at the Wayman
Learning Center. In other words, S.H. eventually obtained almost 95% of what the settlement
offer would have provided. Had he received a dollar more than the settlement offer, the fee-
bar at §1415(i)(3)(D) would not even be in play.

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                                       No. 11-40518

afford—providing disincentives for lawyers to take these types of cases and for
parents to exercise their IDEA-given right to disagree with the school district’s
provision of services in the future.14 Cf. Angela L. v. Pasadena Indep. Sch. Dist.,
918 F.2d 1188, 1192 (5th Cir. 1990) (observing that the failure of the IDEA’s
predecessor to provide for attorneys’ fees awards made it “difficult” for the
“[p]arents of handicapped children, often already burdened by the prohibitive
costs of medical care and equipment,” to “pursue expensive litigation against
school districts”); Daggett, supra, at 24 (noting disparate rates of success
achieved by parents who obtained counsel and those who did not).
       The IDEA itself does not require this outcome—quite the opposite. Cf.
Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 533 (2007)
(“[W]e find nothing in the [IDEA] to indicate that when Congress required States
to provide adequate instruction to a child ‘at no cost to parents,’ it intended that
only some parents would be able to enforce that mandate.”). “The statute
instead takes pains to ‘ensure that the rights of children with disabilities and
parents of such children are protected.’” Id. (quoting 20 U.S.C. § 1400(d)(1)(B)).
The result here, however, frustrates that goal. Accordingly, I would vacate the
portion of the district court’s order denying pre-offer fees and remand for an
award of those fees under the lodestar method. From the majority opinion’s
failure to do so, I respectfully dissent.




       14
         This outcome falls perhaps most heavily on those parents who are not wealthy
enough to pay for their child’s special education needs themselves but also not financially poor
enough to qualify for pro bono legal services. See Thomason, supra, at 484.

                                              38
