F. Edie v. River Falls School ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2877
EDIE F. and MICHAEL F., as parents
of and on behalf of their minor child,
CASEY F.,
Plaintiffs-Appellants,
v.
RIVER FALLS SCHOOL DISTRICT,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99-C-354-C--Barbara B. Crabb, Judge.
Argued January 24, 2001--Decided March 8, 2001
Before FLAUM, Chief Judge, and EVANS and WILLIAMS,
Circuit Judges.
EVANS, Circuit Judge. We’re sure it’s very
frustrating at times to be the parents of a child
with special needs. In this case, the parents of
a boy named Casey were apparently frustrated with
his school progress, so they turned to mediation
with the River Falls (Wisconsin) School District
over his individualized education plan. After
reaching a settlement, the parents filed this
suit for attorneys fees pursuant to the
Individuals With Disabilities Act (IDEA), 28
U.S.C. sec. 1400 et seq. District Judge Barbara
B. Crabb, however, found that the parents did
not, in the process, receive the kind of success
necessary to annoint them as "prevailing
parties," and so the fee request was denied. This
appeal followed.
Casey was diagnosed with attention deficit
disorder (ADD), and he received special education
services for learning disabilities throughout his
tenure in grade school. In preparation for his
move to high school, the River Falls School
District had Casey reevaluated by a school
psychologist, a step prompted by increasing
concern over Casey’s insubordination, aggressive
behavior, and frequent absences from school.
In order to create an educational plan that
would address Casey’s learning disabilities and
behavioral problems, the school convened a team
of educators, including the school’s vice-
principal, a counselor, two learning disability
teachers, and three other teachers. We will delve
into a bit of detail about the efforts to meet
Casey’s needs (several different plans are
involved) because the response of the District,
and the basis for Judge Crabb’s decision to deny
fees, is best understood in context.
Over the summer, before high school started,
the District team formulated an individualized
educational plan (IEP) for Casey. It was noted
that Casey was functioning below grade level in
reading and writing and that he required frequent
monitoring. His emotional and social behavioral
problems, however, were not thought to be severe
enough to warrant placing him in an emotional
disabilities program. Thus, the School District
allowed him to remain in regular classes while
attending learning disability study halls.
Moreover, Casey received special consideration in
his regular classes. He was given additional time
to complete assignments and tests, he could have
test questions read aloud, and he was given step-
by-step written instructions in class.
In September 1996, shortly after Casey started
high school, his mother wrote to Gerald Boock,
the School District’s director of special
education, requesting a review of Casey’s IEP.
She also asked that the District employ an expert
in ADD and hyperactivity to review Casey’s
program. Although Boock agreed to review the
plan, he did not believe that an ADD specialist
was necessary so early in the school year because
Casey seemed to be doing OK during his first few
months of high school.
Despite his initial resistance to an outside
expert, Boock eventually brought in a special
education director from another school district
to review Casey’s records and attend meetings
that resulted in the creation of a revised plan
for Casey’s freshman year. Casey’s parents and
the District agreed on several modifications,
including an additional 3 hours of learning
disability services for spelling, math, and
writing. Moreover, the school gave him additional
counseling regarding his social skills. The
revised plan also included a five-page list of
short-term objectives consisting of tasks Casey
was to finish, when they were to be completed,
and what consequences would follow if he fell
short of the goals. Finally, the parties agreed
to appropriate disciplinary measures that would
not interfere with his schooling, including early
morning and in-school detentions, during which
the school would provide additional learning
disability services.
During the summer before his sophomore year,
District officials and Casey’s parents again met
and approved a new individualized education plan
for the year. In an effort to find subjects that
might interest Casey more and motivate him to
attend class, the District agreed to have him
complete an interest inventory and take a variety
of courses in subjects like art, mechanics, and
food. The school also agreed to provide learning
disability support in the form of tutoring, test
modification, and increased monitoring for math
and intermediate biology classes. As for
disciplinary measures, he was to serve lunch
detentions when he was tardy and be rewarded if
he was on time for 3 days in a row.
Again, a list of short-term objectives was
formulated, encouraging Casey not to miss more
than 4 days per term, to take his prescription
medication for ADD regularly, to reduce
tardiness, and to complete assignments. The
sophomore plan also focused on helping Casey make
the transition from high school to work. He was
offered a course in employability. The school
agreed to help him find a job and, if employment
was found, to adjust his school schedule so he
could work part-time.
Again, within months of starting the school
year, in October 1997, Casey’s parents requested
a review of the educational plan that they had
helped formulate over the summer. Again the
District agreed to review and modify the plan. As
before, Casey’s failure to attend classes, his
negative attitude, and his poor work habits
hampered his school performance. In an effort to
set attainable goals, Casey’s academic
requirements were further reduced. In the second
term of his sophomore year, 50 percent of his
course work was to consist of PASS programs
designed for mastering basic skills in segments,
and he could work at his own pace with the help
of a tutor. Similar reductions of regular classes
and increased percentages of PASS programs were
put into place for the third and fourth terms of
the school year.
Moreover, at his mother’s request, all punitive
measures for missing school were removed from his
sophomore program, and incentives--a point system
with rewards--were added. In hopes of reducing
absenteeism, Casey was encouraged to select
courses of particular interest to him. He was
enrolled in driver’s education, physical
education, pottery, food, and general mechanics
along with hands-on versions of integrated math
and word studies. For the latter two classes he
received support from a learning disabilities
teacher.
The District hoped that a combination of
shortened school days, credit for out-of-school
employment, high-activity courses, and self-
selected subjects would motivate Casey to attend
school more regularly. Finally, as part of his
school-to-work transition, the District arranged
for an evaluation with a representative from the
state Department of Vocational Rehabilitation to
perform a functional vocational evaluation and to
help Casey formulate employment objectives, adult
living goals, and daily living skills. Despite
these modifications and incentives, Casey was
absent from 60 percent of his classes during his
sophomore year.
As it had done for the past two summers, in
June 1998 the District began creating the third
individualized educational program for Casey’s
junior year. With input from Casey’s parents, the
District agreed that Casey would continue with
the PASS programs, working 1 hours per day with
a certified teacher. In addition, he was to
attend physical education classes for 85 minutes
daily. Thus, including lunch, Casey would attend
about 4 hours of school a day and be free to work
off-campus for 3 hours. Casey’s case manager
found him a job at a grocery store.
Because Casey was still deficient in spelling,
writing, math, and reading, the District also
offered off-site private tutoring, which the
parents rejected because Casey preferred to stay
on campus with his friends. The District noted
that Casey had earned no credits towards
graduation during his sophomore year and that,
despite several modifications to his school
program intended to make school more appealing,
he continued to frequently skip classes.
On June 4, 1998, Casey’s parents wrote to the
Department of Public Instruction, asking for a
due process hearing to address Casey’s failure to
attend school and the school’s inability to
resolve this problem. In particular, Casey’s
parents requested an independent educational
evaluation (IEE), a transition planning
consultant, and modifications to Casey’s
individualized education plan that would
capitalize on his strengths. His parents believed
the current program was too punitive and failed
to provide positive reinforcements.
After hearing of their request for a due
process hearing, the District agreed to mediate
the dispute with Casey’s parents. Both sides
retained counsel. After mediation, the District
agreed to pay for an independent education
evaluation and a transition consultant. On their
part, Casey’s parents agreed to release Casey’s
medical records, which the school had never had
access to before.
The new IEE agreed with the diagnosis of the
earlier evaluation, finding that Casey had been
correctly diagnosed with attention deficit-
hyperactivity disorder and problems with eye-hand
coordination. The new evaluation also agreed with
the overall educational methodology employed by
the District and stressed the need for frequent
feedback and effective medication management. The
evaluator suggested that Casey be tutored off-
campus to help him concentrate on his studies.
Although the new evaluation stressed the need for
setting limits and clearly identifying the
consequences of negative behavior, it did not
comment on the use of punitive measures or the
incentive structure employed by the school.
At the end of March 1999 the parties entered
into a settlement agreement that incorporated the
suggestions of the IEE into a new IEP. The
modifications included a further reduction in the
number of credits Casey would need to graduate
and a more detailed list of classroom
adjustments. The new plan continued to provide
Casey with a short school day. To accommodate
Casey’s difficulty in getting up early, his first
class was scheduled to begin at 9:40 a.m. and his
day ended at 2:30 p.m. Finally, the School
District offer of off-site tutoring, rejected the
last time around, was offered again based on the
independent evaluator’s recommendation, and this
time the parents agreed to allow Casey to be
tutored off-campus in a one-on-one format.
Unfortunately, despite all the efforts of the
School District and Casey’s parents, the new plan
was ineffective. Casey worked at the grocery
store for one day before quitting. He continued
to cut classes, and even with significantly
reduced educational requirements, failed to
progress in school and, of course, graduate.
We review a district court’s decision to deny
attorneys fees under the IDEA in a highly
deferential manner. Monticello Sch. Dist. No. 25
v. George L., 102 F.3d 895, 907 (7th Cir. 1996).
We will reverse the trial court’s decision only
for an abuse of discretion. Id. To find an abuse
of discretion we must conclude that no reasonable
person could agree with the ruling--that it was
fundamentally wrong. Roy v. Austin Co., 194 F.3d
840, 843 (7th Cir. 1999).
The IDEA provides that in any action or
proceeding brought under the Act, "the court, in
its discretion, may award reasonable attorneys’
fees as part of the costs to the parents of a
child with a disability who is the prevailing
party." 20 U.S.C. sec. 1415(i)(3)(B). Where the
parties have resolved their dispute voluntarily
via settlement rather than litigation, we apply
what we have called a two-prong catalyst rule.
Krocka v. City of Chicago, 203 F.3d 507, 517 (7th
Cir. 2000).
To win attorneys fees, parents must show: (1)
that their lawsuit was "causally linked to the
achievement of the relief obtained," and (2) that
"the defendant must not have acted wholly
gratuitously," namely, that plaintiffs’ claim was
not frivolous, unreasonable, or groundless. Zinn
v. Shalala, 35 F.3d 273, 274 (7th Cir. 1994). To
establish the first prong, those seeking
attorneys fees must show more than "but for"
causation; rather, their suit must have been a
cause, "in the same sense in which we speak of
’cause’ in tort and criminal law," enabling them
to attain their litigious objectives. Brown v.
Griggsville Cmty. Unit Sch. Dist. No. 4, 12 F.3d
681, 685 (7th Cir. 1993). Finally, a district
court’s determination of causation is a factual
finding that we review only for clear error.
Johnson v. Lafayette Fire Fighters Ass’n, 51 F.3d
726, 730 (7th Cir. 1995). Under this standard, we
will not find a district court’s choice between
two permissible views of the facts to be clearly
erroneous. United States v. Huerta, 2001 WL
87637, *4 (7th Cir. Ind.).
On appeal, the parents argue that their claim
was not frivolous because the District was
legally obligated to provide Casey with a second
independent educational evaluation and that, by
requesting a due process hearing, they were able
to secure real educational benefits which would
not have accrued without legal action. We doubt
that this is true.
First, on the basis of this record, we do not
believe Casey’s parents were legally entitled to
a second IEE because they did not significantly
disagree with the first evaluation. Thus, the
School District acted gratuitously in paying for
an evaluation the second time around.
"A parent has the right to an independent
educational evaluation at public expense if the
parent disagrees with an evaluation obtained by
the public agency." 34 C.F.R. sec. 300.502(b)(1).
Casey’s initial IEE was conducted in May 1996
before he started high school. This evaluation
affirmed a prior diagnosis that he suffered from
ADD and hyperactivity. Based on this report, the
School District, with his parents’ input, created
an IEP as required by the IDEA. In June 1998,
when Casey’s parents requested a due process
hearing, they did not identify an area of
disagreement with either Casey’s diagnosis or the
educational methodology used by the school.
Instead, they expressed frustration over Casey’s
frequent absences, noting that in the past year
he had spent more time out of school than in.
They complained that Casey had not "been
successful in his current placement," and that
the school staff had not taken the initiative to
capitalize on his strengths, but rather had
relied excessively on punitive measures. They
requested new approaches to an old problem.
Citing Board of Education of Murphysboro v.
Illinois Board of Education, 41 F.3d 1162 (7th
Cir. 1994), the parents argue that to be entitled
to a new evaluation they need only show that they
disagreed with the nature and extent of special
education and related services provided for
Casey. In that case, the school district favored
mainstreaming disabled children with nondisabled
students to promote modeling, and the parents of
the disabled child disagreed, arguing that their
child’s language skills were regressing under
mainstreaming. Id. at 1165. Here, there is no
such disagreement. Rather, Casey’s parents wanted
something done about his absences and objected to
the use of punitive measures. As for the lack of
incentives, the School District had already
addressed that issue in October 1997 when, at the
request of Casey’s mother, it removed all
punitive measures and added positive
reinforcements to his program. Moreover, the new
IEE made no mention of punitive measures even
though this was one of the two issues that
prompted Casey’s parents to request a due process
hearing in the first place. Thus, the new IEE did
not identify the incentive structure as a
deficiency in Casey’s IEP.
In requesting a new IEE, Casey’s parents were
not advocating an alternative approach which the
school refused to accept, nor were they opposing
an existing methodology. What they disagreed with
were the results of the educational plan, not the
diagnosis or the rehabilitative process. They
wanted more and better. They wanted their child
to succeed, to attend school regularly, and to
gracefully transition from school to work. A
laudable aim, but not one that is mandated by the
IDEA. What the IDEA provides are procedural
protections to ensure that parents have a voice
in the education of their special-needs children.
It does not, and cannot, guarantee particular
results. Thus, plaintiffs’ claim for attorneys
fees cannot rest on the fact that the District
agreed to pay for a second IEE. Krocka v. City of
Chicago, 203 F.3d 507, 518 (7th Cir. 2000)
("Where a plaintiff has ’obtained benefits to
which we now know he was never entitled,’ the
granting of that relief does not provide grounds
for awarding attorney’s fees.") (quoting Hunger
v. Leininger, 15 F.3d 664, 670 (7th Cir. 1994)).
Plaintiffs also charge that in 1997 they
repeatedly asked for an IEE and received one only
after they requested a due process hearing, thus
establishing that they were the prevailing party
in mediation. However, repeating a groundless
claim does not increase its legitimacy. The
parents were not entitled to a second IEE in 1997
or in 1998 when they requested a due process
hearing.
Even were we to find that Casey was entitled to
a second IEE at state expense, this relief would
not warrant an award of attorneys fees. As we
have stated before, an award of attorneys fees
for a grant of interim relief would be wrong.
Hunger, 15 F.3d at 670. The second IEE was just
such relief. It had no inherent, stand-alone
value. It did not disagree with the prior
evaluation, nor did it chart a new course or
provide new insights on how to craft a successful
educational plan for Casey. Jodlowski v. Valley
View Cmty. Unit Sch. Dist., 109 F.3d 1250, 1254
(7th Cir. 1997) (reversing attorneys fees award,
where parent obtained independent evaluation at
public expense, reasoning that IEE was "species
of interim relief," had no intrinsic value, and
merely facilitated child’s reentry into school).
Such interim relief cannot create a right to
attorneys fees.
Rather, the second IEE served to affirm that
the School District had correctly assessed
Casey’s condition and implemented an appropriate
IEP. The second IEE did not dispute the findings
of the initial IEE. The only substantive--and
marginal at that--change was that after the
second IEE, Casey was tutored off-campus. This
option, however, had been offered to Casey’s
parents in the summer of 1998, before his junior
year. The parents cannot now claim that by
requesting a due process hearing they forced the
District to give them an adjustment they rejected
months before.
Finally, we consider the District’s decision to
provide a transition consultant and to further
modify Casey’s IEP. Plaintiffs argue that these
changes constituted real educational benefits for
Casey that the District would never have agreed
to had they not requested a due process hearing.
We leave aside the issue of whether these
modifications amounted to real educational
benefits or just a third round of tweaking.
Instead, we turn to the issue of causation and
agree with Judge Crabb’s factual finding that the
plaintiffs failed to establish that their request
for a hearing caused these modifications. Twice,
in Casey’s freshman and sophomore years, his
parents requested a review of his educational
plans, and the District agreed, making
substantive changes on both occasions. Nothing in
the record indicates that this level of
cooperation would not have been repeated a third
time. Nonetheless, the parents insist that
without mediation the modifications would not
have occurred. At best, this is "but for"
causation, and as we have stated before, an award
of attorneys fees requires more. Brown v.
Griggsville Cmty. Unit Sch. Dist. No. 4, 12 F.3d
681, 685 (7th Cir. 1993). Here, Casey’s parents
resorted to litigation, calling in attorneys even
though they did not disagree about most
substantive issues and had no meaningful
independent or contrary recommendations.
Moreover, they repeatedly participated in
formulating the educational plans that they later
found wanting. Clearly, as parents they have a
right to champion their son’s cause, but the
right to have their attorneys fees picked up by
the taxpayers is more circumspect.
Where, in an effort to appease frustrated
parents, a school district provides services that
are not required by law, an award of attorneys
fees adds injury to injury. Brown, 12 F.3d at
684. We do not want to discourage school
districts from being cooperative, creative, and
responsive, as we think the River Falls District
was here. By awarding attorneys fees when
districts settle disputes by gratuitously
providing additional services, we would be doing
just that. Here, the parents and the District
repeatedly revised Casey’s independent
educational plans in hopes of encouraging him to
do better. Despite their best efforts, the plans
were unsuccessful. Although this creates a
frustrating situation, it does not entitle
Casey’s parents to claim prevailing party status,
so the judgment of the district court is
AFFIRMED.