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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2139%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 943

## Text

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 |

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2139%3A2. Public record. Not legal advice.