Virginia Lawyers Weekly VA Lawyers Weekly
In a rare move, a Virginia public school system is suing a student’s parents and the parents’ attorney for an award of attorneys’ fees under the federal special education law.
The Roanoke County School Board contends the parents filed a “frivolous and unfounded” complaint asking the board to pay for their son’s tuition at a “private, elite, college-preparatory school,” despite the son’s straight-A record in the public schools.
The school division is taking advantage of a provision of federal law that allows judges to order parents and their attorneys to pay schools’ legal bills for defending frivolous special ed complaints. The school board says the parents should be forced to reimburse about $190,000 in attorneys’ fees and costs.
Two actions
The student, identified as M.G., was diagnosed with dyslexia, according to pleadings in the case. After his removal from a remediation program at his public elementary school, his parents placed him in a program that offered similar services at a private school, according to the parents’ pleading.
The school division contends the parents agreed in writing to stop special education services at the public school. The parents say they did so only after being misled into thinking that special education services were not available unless the student was reading below grade level.
The student’s father is a surgeon. The mother is a former school teacher. Represented by attorney Melissa K. Waugh of Lynchburg, the parents filed unsuccessful complaints seeking reimbursement for their son’s education costs at the private school. The mother also declared she was advocating – not just for her children – but for “all students and families in Roanoke County,” according to the school board’s pleadings.
Besides criticizing the parents’ claims as unfounded, the school board pointed to the parents’ legal strategy. The parents made separate complaints under both Section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act.
The school board accused the family of improperly trying to “re-do” or “re-try” the first action.
Waugh contends the dual complaints were necessary because of a 2017 U.S. Supreme Court decision requiring that parents exhaust all IDEA administrative remedies before filing any Section 504 claims in federal court.
Claims rejected
Both of the “due process” complaints were heard by Richmond attorney John V. Robinson acting as a hearing officer. Robinson rejected the parents’ claims, according to the school board.
“The Parent’s contention that she was somehow hoodwinked or misled by the School Board is without merit,” Robinson wrote, according to the school board pleadings.
Robinson wrote that he was “sympathetic to the School Board’s frustration at the time, resources, and energy it has had to expend in opposing the Section 504 and this IDEA proceeding,” the school board quoted.
Waugh and the parents contend the hearing officer improperly judged the weight of the evidence in ruling on a motion to strike in the first proceeding.
The family now has two actions pending in federal court charging violations of Section 504, the Americans with Disabilities Act and the IDEA.
One effect of the schools’ fee-shifting action was to multiply the number of lawyers involved in the family’s disputes with the school system.
The family hired a new attorney – John P. Fishwick Jr. – to handle their court actions seeking educational relief. The family hired Richmond lawyer Carolyn V. Davis to defend the fee action. Waugh is represented by Abingdon’s William W. Eskridge in the fee complaint.
None of the attorneys involved offered comment on the record.
No discovery has taken place and no trial date is set in the fee action.
