Parents Want School to Pay Fees in Dispute Over Son's Condition

a prevailing party because the court entered declaratory judgment provid- instruction. second, we consider whether the weissburgs are ineligible tives are not so uniquely invested in idea proceedings. see tant relative represents the child. accordingly, we hold that cation. see 20 u.s.c. � 1412(a)(3)(b) ("nothing in [the party. to hold otherwise would be contrary to supreme court although attorney-parents will provide independent, emotion- after the consolidated due process hearing, the administra- classification. conclusion that the school district had not denied edward a as a prevailing party, even though edward was not denied a v. d.c. no. opinion qualified to teach students with the primary disabilities of 1 precedent, which provides that "[t]he touchstone of the pre- counsel which achieves some of the benefit the parties sought in disability classification, edward did not have a legal right to 1994)). this success must materially alter the legal relation- ment on appeal. see dream palace v. county of maricopa, 384 f.3d 990, district issued an assessment that classified edward as men- rizes teaching the primary disability of the pupils . . . ."). assessment of edward's disability classification at public of law, does not affect or rely upon the factual record developed by the her grandchild in proceedings brought under the idea. ii. the idea authorizes attorneys' fees for legal ser- not give a student the legal right to a proper disability classifi- f.3d at 1498 and park v. anaheim union high sch. dist., 464 alters the legal relationship between the parties because it united states court of appeals autistic and maintained that edward qualified for special edu- the school district argues that the teacher credentialing argument is mental retardation and autism. although edward did, in fact, for the foregoing reasons, the district court's judgment in [7] here, edward was represented by his paternal grand- child in proceedings brought under the idea. id. at 1090-91. moreover, an exception to waiver exists when "the issue is purely one children with disabilities must possess a credential that autho- for attorneys' fees under the idea because edward's grand- ("school district") under the individuals with disabilities edu- behavior. during the 2005-2006 and 2006-2007 school years, mother, diane b. weissburg, represented him. in ford v. legal representation for their child. cf. s.n., 448 f.3d at 605 cial role that parents play in enforcing their children's the weissburgs filed a due process complaint under 20 educational rights under the idea). accordingly, even 1161weissburg v. lancaster school district the district court concluded that the weissburgs were not under [the idea]."). the district court erred, however, in fail- for the central district of california to a grandparent who provides legal representation to his or 1164 weissburg v. lancaster school district when the alj granted partial relief, even though the alj found no denial (rejecting the argument that a rule denying recovery of attor- legal relationship of the parties . . . ." tex. state teachers lishes between parents and schools, and identifying the spe- ship between the parties. id. (citing parents of student w., 31 ass'n v. garland indep. sch. dist., 489 u.s. 782, 792-93 the district court erred in concluding that the weissburgs were october 8, 2009--pasadena, california f.3d 1025, 1034-37 (9th cir. 2006)). b. prevailing on an eligibility category determination education teachers must possess credentials specific to a the court. determined that edward had not been denied a free and appro- lenges to individualized education plans, even though it would only i. the weissburgs are a prevailing party under the idea assessment, the school district concluded that edward was not from receiving attorneys' fees to situations where a more dis- rgk-manrivera, in her official capacity as attorneys' fees. accordingly, the weissburgs are free to make any argu- or (3) an individual acting in the place of a natural or adoptive parent v. puyallup sch. dist., no. 3, 31 f.3d 1489, 1498 (9th cir. extend our bright-line rule that prohibits attorney-parents for the ninth circuit (1989). although the denial of a fape is a common basis for seven-year-old child with developmental disabilities who is 1160 weissburg v. lancaster school district 1005 (9th cir. 2004). accordingly, we may consider the credentialing school district is not prejudiced because it briefed the merits of this argu- v. wal-mart stores, inc., 279 f.3d 883, 888 n.4 (9th cir. 2002) (citing dent with autism. [3] although the idea does not confer a legal right to 1166 weissburg v. lancaster school district child lives, or an individual who is legally responsible for the child's wel- tive law judge ("alj") concluded that the june 14, 2006 iii. conclusion edward was represented by his grandmother. united states v. patrin, 575 f.2d 708, 712 (9th cir. 1978)). here, the cre- complaint was consolidated with the weissburgs' complaint. weissburgs are a prevailing party, which is a question of law that does not fape. we hold that the weissburgs are a prevailing party neys' fees to parents would create an arbitrary distinction court "may award reasonable attorneys' fees as part of the diane b. weissburg, diane bargara weissburg law offices, parties, and will not prejudice the party against whom it is raised." janes filed january 14, 2010 1993) (holding that parent was a prevailing party when her lawsuit here, it is undisputed that edward's teacher was qualified to 4 he nonetheless received the educational benefits to which he appeal from the united states district court qualifies the weissburgs for attorneys' fees under the idea receive attorneys' fees when a non-parent relative provides (describing the "cooperative process" that the idea estab- cation under the idea as mentally retarded. shortly thereaf- who have a special role under the idea as cation act ("idea"), 20 u.s.c. � 1415(i)(3)(b), on behalf of argued and submitted tled to attorneys' fees under 20 u.s.c. � 1415(i)(3)(b). ally detached representation in some cases, a bright-line pro- (including a grandparent, stepparent, or other relative) with whom the argument. or foster parents; (2) a guardian, unless the child is a ward of the state; retardation and autism. nevertheless, the question is whether of a fape); hall v. detroit pub. sch., 823 f. supp. 1377 (e.d. mich. the change in edward's disability classification altered the marina del rey, california, for the plaintiffs-appellants. we adopted a bright line rule prohibiting attorneys' fees for a prevailing party because a change in disability classification their child, edward weissburg ("edward"). edward is a tion was "flawed" because edward should have been eligible edward was not classified as autistic, as he should have been, 1165weissburg v. lancaster school district receive placement in the proper classroom, the school district the enforcers of their children's education rights, other rela- costs . . . to a prevailing party who is the parent of a child with 601 (2d cir. 2006); woodside v. sch. dist. of phila. bd. of idea] requires that children be classified by their disability ent because the change in disability classification legally entitles we review de novo whether a party is a prevailing party. lexis 24263, at *10 (d. conn. mar. 17, 2006) (holding that parent was carol j. grogan, schools legal service, bakersfield, califor- it is claims that are deemed waived or forfeited, not arguments."). schaffer ex rel. schaffer v. weast, 546 u.s. 49, 53-54 (2005) assessment, but conducted its own comprehensive assessment so long as each child who has a disability listed in [� 1401] r. gary klausner, district judge, presiding mother. she is not his legal guardian, and there is no evidence accord s.n. ex rel. j.n. v. pittsford cent. sch. dist., 448 f.3d accordingly, the alj's of edward's disability on june 14, 2006. after conducting its ment of a child. 20 u.s.c. � 1415(b)(6)(a). attorney-parents who provide legal services for their own between parents and more distant relatives because the idea sitive the alj's conclusion that edward had not been denied 2:07-cv-01921-lancaster school district; janis provides a clear statutory definition of "parent"). ing that a hearing officer possesses jurisdiction to consider safety chal- classification and educational needs was appropriate. this to obtain the weissburgs qualify as prevailing parties under the idea the alj's decision, the school district refused to recognize his opinion by judge pregerson before: harry pregerson, stephen reinhardt and edward to instruction by teachers qualified to teach students tally retarded, but concluded that he did not display autistic ter, the school district filed a due process complaint1 under many other circumstances.2 for publication grandmother in these idea proceedings. classification as autistic, and thus his legal right to such the weissburgs repeatedly challenged this classification with [2] the district court correctly determined that idea does 2 action for attorneys' fees against lancaster school district eligible for special education under the idea. in 2005, the plaintiffs-appellants, no. 08-55660 pregerson, circuit judge: fape should not determine whether the weissburgs are enti- [1] at the threshold, we note that a student need not be alone did not materially alter the legal relationship between long beach unified sch. dist., 461 f.3d 1087 (9th cir. 2006), 979, 992, 997 (n.d. ill. 2002) (holding that parents were prevailing parties the school district because the weissburgs' psychologist had for attorneys' fees under the idea because edward's grand- educ., 248 f.3d 129 (3d cir. 2001); doe v. bd. of educ. of depend on the factual record. see v.s., 484 f.3d at 1232. moreover, the a disability." 20 u.s.c. � 1415(i)(3)(b). "a prevailing party and are thereby eligible for attorneys' fees at the discretion of children with disabilities benefit from the judgment of an school district declined to change edward's eligibility classi- neys' fees for the representation provided by edward's favor of the school district is reversed. the case is hereby child's primary disability.3 they represent their children themselves, a parent is eligible to deprived of a fape for his parents to qualify as a prevailing fication from mentally retarded to autistic. ment in support of that claim on appeal. see yee v. city of escondido, 503 autism classifications. despite the misclassification, the alj see, e.g., koswenda v. flossmoor sch. dist. no. 161, 227 f. supp. 2d f.3d 811, 825 (9th cir. 2007) (quoting parents of student w. remanded to the district court for a calculation of the fee defendants-appellees. to qualify as a prevailing party from a student's disability classification. for example, special ent. accordingly, the weissburgs are eligible to receive attor- mother, a practicing attorney, represented him. we decline to for special education under both the mental retardation and [5] we next consider whether the weissburgs are ineligible eligibility category was changed. accordingly, we hold that vices provided by a family member who is not a par- under the idea, any party may request a due process hearing when with both mental retardation and autism. although edward concluded that he was autistic, but not mentally retarded. the a "parent" is defined under the idea to include: (1) natural adoptive, tal retardation and autism. before his classification was changed, edward could have been placed under the care and � 80046.5 ("credential holders who are authorized to serve autism, and thus his legal right to such placement, until his was entitled under idea. waived because it was not raised below. this argument fails. although the alj's conclusion that the school district misclassified edward balt. county, 165 f.3d 260 (4th cir. 1998). we held that, did, in fact, receive instruction by a qualified teacher, prior to and who, by reason of that disability, needs special education [6] we decline to extend this limitation on attorneys' fees the first question presented in this appeal is whether the that she was acting in the place of his natural or adoptive par- the weissburgs are eligible for attorneys' fees even though and related services is regarded as a child with a disability benefit the student in the future). [4] we hold that a change in eligibility category materially legal relationship between the parties. absent the change in director of student services of opinion u.s.c. � 1415(b)(6)(a), in which they requested a private not a prevailing party entitled to attorneys' fees under the edward and the school district. the district court found dispo- a. the denial of a fape is not required for a parent is one who `succeed[s] on any significant issue in litigation 1157 idea. 1163weissburg v. lancaster school district instruction of a teacher who was not qualified to teach a stu- 1167weissburg v. lancaster school district a determination that its assessment of edward's eligibility 3 though parents are not eligible to receive attorneys' fees when connecticut dep't of educ., no. 3:97 cv 1202 (pcd), 2006 u.s. dist. hibition would better serve congress' intent to ensure that unlike parents,4 1088, 1095 (9th cir. 1991) ("[t]he supreme court has made clear [that] classification. for the reasons set forth below, we hold that proper disability classification, legal ramifications do arise u.s. 519, 534 (1992). see also united states v. pallares-galan, 359 f.3d lancaster school district, expense. the school district declined to provide a private f.3d 1230, 1232 (9th cir. 2007). the idea provides that the enabled her son to receive a timely hearing); lillbask ex rel. mauclaire v. dentialing argument is related to the ultimate question of whether the vailing party inquiry must be the material alteration of the violated. ford, 461 f.3d at 1090-91. see cal. code regs. tit. 5, weissburgs did not raise this argument below, they did assert a claim for priate public education (fape). in other words, even though alters the legal relationship between the parties fare. 20 u.s.c. � 1401(23). kim mclane wardlaw, circuit judges. bringing the suit.' " van duyn v. baker sch. dist. 5j, 502 joseph weissburg; adria instruction by a teacher qualified to teach a student with men- assessment was appropriate, but that the disability classifica- nia, for the defendants-appellees. a fape because the idea does not provide a right to proper joseph and adria weissburg ("weissburgs") brought an entitles edward to placement in a classroom with a teacher ing to consider the legal ramifications of a change in disability refused to recognize his additional primary disability of teach children whose primary disabilities included mental independent third party when their rights under the idea are award. there is a dispute about the identification, evaluation, or educational place- weissburg, conferring prevailing party status, attorneys' fees are awarded see v.s. v. los gatos-saratoga joint union high sch., 484 1162 weissburg v. lancaster school district