Opposition Brief — Knox County Board of Education v. Rynes ex rel. Rynes

cre

ers

In The

Stuf: rveme Cou of the United States

October Term, 1995

KNOX COUNTY BOARD OF EDUCATION,

Petitioner,

DS.

RAYMOND RYNES, by his parent and next friend,

DEBORAH RYNES and DEBORAH RYNES,

Individually,

Respondents.

Brief in Opposition to Petition for Writ of Certiorart to the United States

Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION

E. PATRICK HULL

Counsel of Record for Respondents

P.O. Box 1388

Kingsport, Tennessee 37662

(423) 247-6151

~ Supreme Court, U.S

4

Contents Page

TABLE OF CONTENTS

po PAG Be oy: Sa ea eee ae i

pe OR RS Fo tei. log: Se ea rear i

CONSTITUTIONAL AND STATUTORY PROVISIONS

I dd cb. te bb Od pa See Fae ad ew ae abe Os ]

EPMA EAMURIEOR GIP BEER GARE occ te ccc eweccwecenes 3

SUSEPAMRE CIE PAMASOIBEEIN RD cc estes sev cesacass 4

SI te Aa ane ca bea 3s oe a eS ee oe 6

Se RS SY ey er a ae ay ae 10

TABLE OF AUTHORITIES

Cases Cited:

Brown v. Griggsville Community Unit School Dist. No. 4,

Fo ee Re Le. ) a reer ie 5, 6,7

Farrar v. Hobby, 506 U.S. , 113 S. Cr. 566, 121 L.Ed.2d

| RES On a aan re ne mre ee 4,5, 6,8

Krichinsky v. Knox County Schools, 963 F. 2d 847, 850 (6th Cir.

RR ek dae Fae ale roi ek <a wane eee 9

Statutes Cited:

Ck ae rer er re eee mr 3

Contents Page

20 USA. 4 MGIROND) icccke ivan eee 5,8

20 USA. | S45RE) GD oil oiceesxtenayree eee 8

20 U.S.C. SI4IGIGNEND) 2 as ices event sthaseepeiae 3

43 UBA. OG UPGO «bse oc reces iscneane eee 9

Other Authorities Cited:

SG CPR, G OOOMOe seen enanvescd tention 7

4 CER, § FOOPOGG ised hcacsdetiecee ewe 4

Sen. Rep. No. 99-372, 99th Cong., Ist Sess. 2 (1986) ... 10

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

A. 20 U.S.C. § 1415(b)(2) (Procedural Safeguards)

(b) Required procedures; hearing

(2) Whenever a complaint has been received under paragraph

(1) of this subsection, the parents or guardian shall have an

opportunity for an impartial due process hearing which shall

be conducted by the State educational agency or by the local

educational agency or intermediate educational unit, as

determined by State law or by the State educational agency.

No hearing conducted pursuant to the requirements of this

paragraph shall be conducted by an employee of such agency

or unit involved in the education or care of the child.

B. 20 U.S.C. § 1415(e)(2)

(e) Civil action; jurisdiction

(2) Any party aggrieved by the findings and decision made

under subsection (b) of this section who does not have the

right to an appeal under subsection (c) of this section, and

any party aggrieved by the findings and decision under

subsection (c) of this section, shall have the right to bring a

civil action with respect to the complaint presented pursuant

to this section, which action may be brought in any State

court of competent jurisdiction or in a district court of the

United States without regard to the amount in controversy.

In any action brought under this paragraph the court shall

receive the records of the administrative proceedings, shall

hear additional evidence at the request of a party, and, basing

its decision on the preponderance of the evidence, shall grant

such relief as the court determines is appropriate.

C. 20 U.S.C. § 1415(e)(4)(B)(Civil action; jurisdiction;

attorney fees):

(B) In any action or proceeding brought under this

subsection, the court, in its discretion, may award reasonable

attorneys’ fees as part of the costs to the parents or guardian

of a child or youth with a disability who is the prevailing

party. |

D. 34 C.F.R. § 300.343 (Meetings)

(a) General

Each public agency is responsible for initiating and

conducting meetings for the purpose of developing,

reviewing, and revising the IEP of a child with a disability

(or, if consistent with State policy and at the discretion of the

LEA, and with the concurrence of the parents, an

individualized family service plan described in section 677(d)

of the Act for each child with a disability, aged 3 through 5). |

(b) [Reserved]

(c) Timeline |

A meeting to develop an IEP for a child must be held within

30 calendar days of a determination that the child needs spe-

cial education and related services.

(d) Review

Each public agency shall initiate and conduct

meetings to review each child’s IEP periodically and, if

appropriate, revise its provisions. A meeting must be held

for this purpose at least once a year.

E. 34 C.F.R. § 300.344(a) (Participants in meetings)

(a) General

The public agency shall ensure that each meeting includes

the following participants:

(1) A representative of the public agency, other than the child’s

teacher, who is qualified to provide, or eapernee the

provision of, special education.

(2) The child’s teacher.

(3) One or both of the child’s parents, subject to Sec. 300.345.

(4) The child, if appropriate.

(5) Other individuals at the discretion of the parent or agency.

STATEMENT OF THE CASE

Plaintiffs /respondents disagree with the Statement of the Case

in the Petition and submit the following additional statement.

(The terms “plaintiffs” and “defendant” will be used to refer to

the parties).

The case arises under the Individuals with Disabilities

Education Act (IDEA), 20 U.S.C. 1400, et seq. The original

issue was whether Raymond Rynes, a deaf child, would attend

Tennessee School for the Deaf (TSD) or a Knox County school.

This issue was resolved in favor of the plaintiffs in an agreed

order. District Court Memorandum and Order at Ptr. App. 5.

The only issue remaining is whether the plaintiff/parent is the

“prevailing party” within the meaning of 20 U.S.C.

§1415(e)(4)(B).

The District Court found that litigation between the parties

began in 1990 when the defendant decided to place Raymond in

a school other than TSD. Pnor to that time, the defendant had

continuously placed Raymond at TSD. Plaintiffs requested a due

process hearing. That proceeding was concluded by the entry of

an agreed order which allowed Raymond to attend TSD.

District Court Memorandum and Order at Ptr. App. 6.

In 1991, defendant again attempted to force Raymond to

leave TSD. This resulted in a second due process hearing, in which

the Judge ruled in favor of the defendant on the placement issue

but ordered modifications of the program offered by the

defendant. Final Order of the Tennessee State Department of

Education at Ptr. App. 13.

Plaintiffs appealed to the United States District Court for

the Eastern District of Tennessee. In the District Court, an agreed

order was entered which provided that Raymond would

continue his education at TSD. District Court Memorandum

and Order at Ptr. App. 5. This was precisely the relief on the

merits which plaintiffs sought.

Defendant’s decision to settle the case by allowing Raymond

to attend TSD, came during a private discussion among

members of its staff. Plaintiffs were not advised of the meeting

and obviously did not attend.

The District Court held:

“There is no doubt what the plaintiffs hoped to achieve by

requesting a hearing and then appealing the findings of the

ALJ was for continued placement at TSD for Raymond. This

result has been achieved ...”. District Court Memorandum

and Order at Ptr. App. 9.

The District Court found the parent to be the “prevailing

party” and awarded attorneys’ fees. Judgment of the District

Court at Ptr. App. 3.

Defendant appealed the attorneys’ fee award. The Court of

Appeals for the Sixth Circuit affirmed the decision of the District

Court, from the bench, without a written opinion. Order of the

United States Court of Appeals for the Sixth Circuit filed June 1,

1995, at Ptr. App. 1. The defendant filed a Petition for Re-Hear-

ing and Suggestion for Re-Hearing En Banc, which was

overruled. Order of the United States Court of Appeals for the

Sixth Circuit filed July 7, 1995 at Ptr. App. 27.

SUMMARY OF ARGUMENT

THE DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

IS CORRECT AND THIS CASE MEETS NONE OF

THE CRITERIA ESTABLISHED BY THIS COURT

FOR THE GRANTING OF A WRIT OF

CERTIORARI.

This Court has recently issued a thorough, comprehensive

opinion governing attorney fee litigation. Farrar v. Hobby, 506

US. , 113 S.Ct. 566, 121 L.Ed. 2d 494 (1992). The fact

that the instant case has no importance as a precedent is

emphasized by the fact that the Court of Appeals decided it

without writing an opinion. The parent/plaintiff in this case

clearly meets the criteria of Farrar, and no additional issues are

present beyond those decided in Farrar.

Defendant purports to demonstrate a conflict between the

instant case and Brown v. Griggsville Community Unit School Dist.

No. 4, 12 F.3d 681 (7th Cir. 1993). This case is distinguishable

from Brown on a number of grounds. In Brown, the case was

resolved before a hearing, at a meeting of the child’s IEP team,

causing the parents to withdraw their request for a hearing. This

case was resolved by entry of an agreed order in the District Court,

after litigation in a due process hearing and in the District Court.

Also, in this case, the settlement did not take place at a meeting

of the child’s IEP team. This case is also distinguishable from

Brown upon other factual grounds.

The plaintiffs took the only option available to them to

contest the defendant’s proposed placement of the child. They

followed the procedure set out in the Individuals with

Disabilities Education Act. 20 U.S.C. Sec. 1415(b)(2). They

achieved the relief they sought in the District Court.

The decisions of the District Court and the Court of Appeals

are correct. Holding to the contrary would require the

conclusion that a parent who contests a decision of school

authorities, and goes through extended litigation, only to have

the authorities simply change position during the litigation, would

be denied attorneys fees. Such a decision would shift the

tremendous cost of attorneys’ fees and litigation to a victorious

parent through no fault of the parent. Such a conciusion is

contrary to established precedent, and common sense. It also

would create a chilling effect upon parents who disagreed with

decisions of school authorities. It would mean that poor parents

who could not afford to pay attorneys’ fees could not afford to

exercise their rights under the Individuals with Disabilities

Education Act.

ARGUMENT

THE DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

IS CORRECT AND THIS CASE MEETS NONE OF

THE CRITERIA ESTABLISHED BY THIS COURT

FOR THE GRANTING OF A WRIT OF

CERTIORARI.

This Court has recently issued a thorough, comprehensive

opinion governing attorney fee litigation. Farrar v. Hobby, 506

U.S. ___, 113 S.Ct. 566, 121 L.Ed. 2d 494 (1992). Another

opinion, so soon on the heels of Farrar, is unnecessary. The

instant case has no precedential importance, nothing to add to

Farrar, and no interest to anyone but the litigants. The case was

of such little significance to the Court of Appeals that no opinion

was written. None of this Court’s criteria for granting certiorari

are present. Additionally, this case would not be an appropriate

one in which to answer issues which may have arisen in the wake

of Farrar, since the plaintiff/parent in this case clearly meets the

criteria set out in Fir~rar, and, therefore, no such issues exist.

Defendant’s basis for requesting the writ is that it claims there

is a conflict among the Courts of Appeals. The “conflict” for

which Defendant searches simply does not exist. Defendant’s

attempts to demonstrate such a conflict between this case and

Brown v. Griggsville Community Unit School Dist. No. 4, 12 F. 3d

681 (7th Cir 1993) fail upon closer examination. There are

several major distinctions between the cases. In Brown, the

plaintiffs achieved their goal simply by filing a due process

request and waiting for over a year, during which time there was

no contact between the parties. Brown, 12 F. 3d at 682. There

was no decision or order by any Judge on the merits. In reality

there was no litigation; in fact, the parents withdrew their request

for a hearing shortly after a meeting of the child’s IEP team was

convened and an agreement was reached. Id. In this case, there

has been extensive litigation and decisions at the administrative

level, the District Court, the Court of Appeals, and the case is

now before this Court.

A second distinction is that in Brown, the decision that

resolved the disagreement was made as provided by law at a

meeting of the child’s IEP team. In this case, the decision to

settle the litigation did not take place in a meeting of the child’s

IEP team, but rather was a unilateral one made in a private

discussion among members of the defendant’s staff. The

decision in this case was not made in a meeting required by the

IDEA, and not by the IEP team as required by the IDEA. The

IEP team meeting is required annually and the parents have a

right to attend and be involved in the team’s decision. 34

C.F.R. §300.343; 34 C.F.R. §300.344(a). Defendant’s

allegation that its decision to settle this case was made as part of

a federally mandated meeting pursuant to 34 C.F.R. $300.343 is

simply incorrect.

A third distinction between this case and Brown, is that in

Brown, the progress of the student, which caused the parties to

agree, was a matter of objective determination. Brown, F.3d at

685. That is, in Brown, the child’s progress in school was

measured by testing. It was therefore established that the child

had made a measured amount of progress, and a certain

placement was appropriate.

In this case, the alleged reason for the settlement of the case

is subjective. There are no objective criteria which require

placement at one school or another. The decision to allow the

student to remain at TSD was, at best, an exercise of discretion

by members of the defendant’s staff. Plaintiffs dispute defendant’s

contention that the settlement of the case was due to a change in

circumstances in mid-litigation. Plaintiffs contend that the same

circumstances were evident from the beginning, and that the

change of position was a legal maneuver intended to avoid

payment of attorney’s fees.

The instant case is also distinguishable from Brown in that, in

Brown, the school system made one reversal of position at an

IEP meeting which rendered the case moot. In this case, the

defendant has made a confusing series of position changes over a

period of years. The defendant began by placing Raymond at

TSD. In 1990, it changed its position, which led to the first

administrative hearing. In the midst of that proceeding, it changed

its position and settled the case. In 1991 it changed its position

again, triggering this case. In 1993 it changed its position again.

The defendant has continually used the tactic of “changing

position” as a legal maneuver.

Defendant sets out several other cases which have been

decided before and after Farrar. These cases contain issues not

present in the instant case, and have no bearing on the Court’s

consideration of the Petition.

This case was triggered when the defendant, over plaintiffs

objection, proposed to change the placement of the student. At

that time, plaintiffs had only two choices: (1) accept the

defendant’s decision; or (2) request a hearing. Plair.tiffs took the

only option available to contest the decision. 20 U.S.C.

§1415(b)(2).

When they were not satisfied with the due process decision,

plaintiffs filed a complaint in the District Court. Again, this is

what they were directed to do by Congress and the only choice

available, other than to accept a decision with which they

disagreed. 20 U.S.C. §1415(e)(2).

In the District Court, plaintiffs obtained the relief they sought.

There is no suggestion that plaintiffs caused a delay or took

inappropriate action. Plaintiffs suggest that it would be startling

to any parent of a disabled child to find that she could follow

proper procedure, achieve the result she sought, and not be the

prevailing party.

Defendant’s argument rests upon the notion that if student’s

condition changes during litigation, in a way that favors the

parent’s position, the school system should be relieved of paying

attorneys’ fees, since, defendant argues, it is the change in the

student, rather than the litigation which may tip the scales in

favor of the parent. Defendant’s notion, is of course, erroneous.

These cases all deal with young children who are constantly

changing. Some changes will favor the parent and some the school

system. This is simply the natural course of litigation, not a

reason to deny attorney’s fees.

Defendant’s statement that, “This unprecedented decision

represents such a departure from past Court practice and is so

novel that this Court should exercise its power of supervision

...”, Pet. at 23, is unwarranted. It is hard to imagine an easier

case. Defendant’s convoluted labyrinth of logic only attempts to

complicate the obvious.

Defendant claims that, “... [a] judicial defining of the IDEA

‘prevailing party’ is needed . . .”, Pet. at 13, and suggests that

precedents under 42 U.S.C. $1988 have no applicability to IDEA

cases. Defendant overlooks the holding of the Sixth Circuit Court

of Appeals in a case in which this defendant was involved,

Krichinsky v. Knox County Schools, 963 F. 2d 847 (6th Cir. 1992).

The Court held that the legislative history of the Handicapped

Children’s Protection Act indicates that the term “prevailing

party” is intended to have the same meaning as similar terms in

other legislation. Id. at 849. Cases decided under 42 U.S.C.

§1988, are applicable precedents to cases under the IDEA.

Defendant’s theory compels the conclusion that it would have

been impossible trom the outset for the plaintiff/parent to have

been the prevailing party. Defendant argues that it was the

passage of time which caused it to “change its position”. This

compels the conclusion that plaintiffs’ victory was inevitable, and

therefore, defendant argues, the parent should not be

considered the prevailing party. The flaw in defendant’s theory is

evident. Certainly Congress did not intend to pass an act

providing for attorneys fees for parents who are the prevailing

parties, in cases in which it would be impossible for the parents

to be the prevailing parties. Defendant’s argument that it alone

has the right to decide, on a subjective basis, whether a child has

changed sufficiently to justify the defendant’s changing its

position makes a mockery of the IDEA’s fee shifting provisions.

Under the defendant’s theory, a parent (like Ms. Rynes in

this case) could expend thousands of dollars pursuing a winning

case only to be left “holding the bag” after a school system change

of mind. In fact, under the defendant’s theory, parents with meri-

torious claims, whose positions would be most likely to be vindi-

cated, would be the most likely to be denied attorneys fees.

The legislative history of the attorneys’ fees provisions of the

10

IDEA is illuminating. The legislative history discloses that, “Con-

gress’ original intent was that due process procedures,

including the right to litigation, . . . be available to all parents.”

Sen. Rep. No.99-372, 99th Cong., Ist Sess. 2 (1986). The

defendant’s proposed construction of the Act is contrary to this

purpose.

Under defendant’s theory, Ms. Rynes would suffer financially

for exercising her rights. According to defendant, the only way

this could have been avoided would have been for Ms. Rynes to

have concluded at the outset that she could not afford to

exercise her rights. If this Court were to adopt defendant’s theory,

poor parents would often have to conclude that they could not

afford to exercise their rights under the IDEA. Such a chilling

effect is directly contrary to the purposes of the Act.

CONCLUSION

This case does not meet the criteria for the granting of a Writ

of Certiorari. The reason defendant petitions this Court is that it

disagrees with the decisions of the District Court and the Court

of Appeals. The precedent which the defendant asks this Court

to establish is contrary to common sense, prior cases and the

letter and spirit of the Individuals with Disabilities Education

Act. The petition should be denied.

Plaintiffs point out that since the District Court’s award of

fees and costs, they have been through an appeal to the Court of

1]

Appeals for the Sixth Circuit and the preparation of this brief,

and have incurred considerable additional expenses and fees.

Plaintiffs ask that this Court remand this case to the appropriate

Court for the awarding of additional fees and expenses.

Respec Submitted

E. PATRICK HULL

Counsel for Respondents

P.O. Box 1388

Kingsport, TN 37662 |

(423) 247-6151 |