IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50709

ECTOR COUNTY INDEPENDENT SCHOOL DISTRICT,

Plaintiff–Appellant

v.

VB, a Minor Child by Next Friend MB,

Defendant–Appellee

Appeal from the United States District Court for the

Western District of Texas, Midland–Odessa Division

(7:07-CV-92)

Before BARKSDALE, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:

*

Ector County Independent School District (“ECISD”) contests attorney’s

fees awarded to VB, a Minor Child by Next Friend MB (“VB”), under the

Individuals with Disabilities Education Act (“IDEA”). See 20 U.S.C. § 1400 et

seq. In a September 8, 2009 order adopting the magistrate judge’s report and

recommendation, the district court found that VB was a prevailing party under

20 U.S.C. § 1415 because VB received a favorable decision at an administrative

due process hearing. VB was thus eligible to receive attorney’s fees under the

United States Court of Appeals

Fifth Circuit

F I L E D

March 25, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 10-50709

IDEA. In its July 6, 2010 order, the district court awarded $39,470 in attorney’s

fees and costs.

There are two issues on appeal: (1) whether VB is a prevailing party, and

(2) whether VB’s award should be reduced because VB unreasonably protracted

litigation. We affirm the district court’s determinations that VB is a prevailing

party and that VB’s attorney’s fees award need not be reduced for unreasonable

protraction of litigation.

I. FACTUAL AND PROCEDURAL BACKGROUND

At the time of the hearing that is the subject of this appeal, VB was an

ECISD student at Nimitz Junior High School. ECISD is a public school district

subject to the IDEA. Under the IDEA, ECISD is required to provide its special

education students with a free, appropriate public education. VB has attentiondeficit hyperactivity disorder. VB had been receiving special education services

from ECISD since 2003. Starting late in the 2005–2006 school year, VB’s parent

expressed concerns about VB’s individual education plan (“IEP”). VB’s parent

met with the Admission, Review, and Dismissal Committee (“ARDC”), the

committee that develops and administers a student’s IEP, and ECISD

administrative staff without satisfactory results.

On February 23, 2007, VB submitted a due process complaint to the Texas

Education Agency pursuant to 20 U.S.C. § 1415(b)(6), requesting an impartial

due process hearing. In the Due Process Complaint, VB requested (1) an

independent educational evaluation; (2) appropriate support services, including

a functional behavioral assessment, behavior intervention plan, and counseling;

(3) appropriate support services in a least restrictive placement; (4) appropriate

IEP goals and objectives; and (5) one year of compensatory educational services

or an amount of compensatory educational services deemed appropriate by the

Special Education Hearing Officer.

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After a due process complaint is filed, but before a due process hearing can

be held, the IDEA mandates a quiet period of thirty days, during which certain

resolution activities must take place, including a resolution meeting. 20 U.S.C.

§ 1415(f)(1)(B). If the resolution meeting resolves the issues, the parties shall

execute a legally binding agreement that is (1) “signed by both the parent and

a representative of the agency who has authority to bind the agency”; and (2)

“enforceable in any . . . court of competent jurisdiction . . . .” § 1415(f)(1)(B)(iii).

ECISD and VB’s parent attended a resolution meeting on March 10, 2007. At

the resolution meeting, ECISD offered to schedule another ARDC meeting to

request an independent education evaluation, prepare a functional behavior

assessment, prepare a behavior intervention plan, discuss and create a plan for

how VB will access counseling services, and discuss and review any needed

modifications to VB’s IEP. VB’s parent requested time to consult her attorney

before agreement. No settlement was reached at the meeting.

ECISD scheduled an ARDC meeting for March 22, 2007, to effectuate the

offer made at the resolution meeting, but VB’s parent refused to attend the

meeting on the advice of VB’s attorney. The thirty-day resolution period

elapsed. A state administrative due process hearing was held on July 16, 2007.

On September 19, 2007, the Special Education Hearing Officer (“SEHO”) ordered

ECISD to (1) reimburse VB for the cost of a private evaluation of VB by Dr. Sam

Hill; (2) obtain a complete functional behavior assessment of VB by a qualified

licensed specialist in school psychology and obtain from the specialist

recommendations for appropriate eligibility and services, including a specific

behavior intervention plan or counseling services; (3) convene an ARDC meeting

within ten school days of completing the functional behavior assessment to

consider and schedule appropriate services for VB; and (4) conduct an evaluation

of VB’s eligibility for services under the learning-disabled classification,

including recommendations for appropriate individualized curriculum content

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and modifications, and present the results and recommendations of the

evaluation to the ARDC within thirty days of receipt of the results of the

functional behavior assessment.

On September 28, 2007, ECISD filed a complaint in state court, which was

removed to federal court, for review of the SEHO’s order. It requested (1) a

declaratory judgment that ECISD has provided VB a free, appropriate public

education and that the complaints brought against ECISD are not well taken;

and (2) an award of attorney’s fees and costs. ECISD argued that VB should be

denied prevailing party status because VB had never presented his complaints

to ECISD before filing his state due process complaint, or in the alternative

because VB unreasonably and needlessly protracted the litigation by refusing to

attend the ARDC meeting that would have implemented an alleged agreement

made at the meetings.

VB filed a responsive brief arguing that ECISD had only offered another

ARDC meeting at the resolution meeting, and had not offered any sought-after

services, and thus that no legally binding agreement resulted from the resolution

meeting. VB additionally argued that the SEHO’s order provided more relief

than was offered at the resolution meeting. VB requested that ECISD’s claims

be denied and that VB be granted attorney’s fees.

In a September 8, 2009 order, the district court, adopting the magistrate

judge’s recommendation, denied ECISD’s request for attorney’s fees and

declaratory judgment. The district court also determined that VB was the

prevailing party. In doing so, the district court noted that the parties did not

reach a binding written settlement agreement at the resolution meeting, and

that VB was under no duty to agree to ECISD’s proposal when it did not tender

specific terms but merely reflected ECISD’s willingness to consider and

recommend the requested actions to the ARDC. It also noted that VB’s parent

did not have to attend the ARDC meeting despite the stated goal of the Texas

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Education Agency to have these disputes resolved at the lowest levels. Though

an ARDC meeting is one of six options for possibly resolving disputes, another

being a due process hearing, the district court refused to penalize VB for

proceeding directly to a due process hearing instead of attend the ARDC

meeting.

Thereafter, VB moved for attorney’s fees. VB asserted that VB was a

prevailing party who received a favorable decision by the SEHO, and that a

reasonable award for attorney’s fees would be $45,703.50. In its July 6 order,

the district court granted in part and denied in part VB’s application for

attorney’s fees, awarding $39,470 in total. It found that VB’s parent was

substantially justified in rejecting ECISD’s offer from the resolution meeting

because there was no evidence that a written offer was made or signed, only

evidence of meeting minutes reflecting that ECISD would schedule an ARDC

meeting to “consider implementation” of the requested relief. Additionally, the

district court found that the relief obtained at the due process hearing was more

favorable than the offer made at the resolution meeting. It found that ECISD

had only offered to discuss recommendations for actions at an ARDC meeting,

whereas the SEHO’s orders required ECISD to take concrete actions by a certain

date, “thus mandating relief to occur,” including a functional behavioral

assessment that ECISD determined was unnecessary subsequent to the

resolution meeting. The district court found that VB did not unreasonably

protract litigation because VB had no obligation to sign a proposal that was not

a real agreement between the parties. Finding no other reason to reduce fees

except that the hourly rate should be calculated using the hourly rate prevailing

in the community, the district court awarded $39,470.

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II. STANDARD OF REVIEW

We review the district court’s decision on the amount of attorney’s fees for

an abuse of discretion. El Paso Indep. Sch. Dist. v. Richard R., 591 F.3d 417, 425

n.9 (5th Cir. 2009). We review the factual findings upon which the award is

based for clear error. Id. We review the conclusions of law underlying the

award de novo. Dearmore v. City of Garland, 519 F.3d 517, 520 (5th Cir. 2008);

Bailey v. Mississippi, 407 F.3d 684, 686 (5th Cir. 2005).

III. DISCUSSION

ECISD appeals the district court’s decision to award attorney’s fees to VB,

arguing that VB is not a prevailing party or that in the alternative VB’s award

should be reduced because VB unreasonably protracted litigation. ECISD

argues that though VB’s parent attended one unsuccessful resolution meeting,

VB’s parent unreasonably refused to attend a second ARDC meeting, which

would have provided all the relief requested by VB’s parent and awarded by the

SEHO, thereby protracting litigation. We disagree and therefore affirm the

district court’s orders and judgment.

A party must be a “prevailing party” to receive an award for attorney’s fees

under the IDEA. Richard R., 591 F.3d at 421 (quoting 20 U.S.C.

§ 1415(i)(3)(B)(i) (“the court, in its discretion may award reasonable attorneys’

fees . . . to a prevailing party”)). Even if the court determines that a party is a

prevailing party under the IDEA, this “does not automatically entitle him to

recover the full amount that he spent on legal representation.” Jason D.W. ex

rel. Douglas W. v. Hous. Indep. Sch. Dist., 158 F.3d 205, 209 (5th Cir. 1998).

Prevailing party status only makes a party eligible to receive attorney’s fees

under the IDEA. Gary G. v. El Paso Indep. Sch. Dist., 632 F.3d 201, 208 (5th

Cir. 2011).

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A. Prevailing Party Status

A party achieves prevailing party status when it attains (1) “a remedy that

alters the legal relationship between the parties and fosters IDEA’s purposes”;

and (2) “some judicial imprimatur on a material alteration of the legal

relationship.” Id. at 207. “An administrative hearing officer’s order provides the

requisite ‘judicial imprimatur’ for a party to be considered a ‘prevailing party’ for

attorney’s fee purposes, despite the fact that the administrative hearing officer

does not have the authority to award attorney’s fees.” Id. (quoting Richard R.,

591 F.3d at 422 n.4) (internal quotation marks omitted).

VB is a prevailing party. VB obtained a remedy from the SEHO that

altered the legal relationship between the parties and fostered the IDEA’s

purposes. ECISD was to reimburse the cost of a private evaluation of VB; obtain

a complete functional behavior assessment of VB from a licensed specialist in

school psychology, and from that specialist obtain recommendations for

appropriate eligibilities and services; convene an ARDC meeting within ten days

of the assessment to schedule appropriate services for VB; conduct an evaluation

of VB’s eligibility for services for the learning disabled and recommend

curriculum content and modifications, and report back to the ARDC within

thirty days of receiving the behavior assessment results. With his decision, the

SEHO obligated ECISD to take specific actions, including a functional behavior

assessment that ECISD had previously determined was unnecessary, within

certain deadlines. This remedy furthered the IDEA’s purposes because it

required ECISD to take specific steps to ensure that VB would receive a free,

appropriate public education that the SEHO found VB had been denied. As we

noted above, the SEHO’s order provides the requisite “judicial imprimatur” for

a party to be considered a prevailing party.

ECISD makes three arguments as to why we should not designate VB a

prevailing party. We disagree with all three. First, ECISD argues that VB

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never notified ECISD of VB’s desired relief before filing the due process

complaint. There is no statutory provision or regulation requiring VB to notify

the school district of a request for relief before filing a request for a due process

hearing. Section 89.1150 of the Texas Administrative Code states that it is the

policy and intent of the Texas Education Agency “to encourage and support the

resolution of any dispute” about a disabled child’s free appropriate public

education “at the lowest level possible.” 19 TEX. ADMIN. CODE § 89.1150(b).

Additionally, the provision lists meetings or conferences with the ARDC,

teachers, and various school district officials as possible options for resolving

disputes in addition to requesting a due process hearing. Id. at § 89.1150(c). As

the district court noted, however, the section does not favor or prioritize the

order in which these potential options should be used for resolving disputes. See

id.

The Texas Education Agency previously proposed adding such a

requirement in 2001; the language for the proposed rule § 89.1152(b) would have

read:

Pursuant to the policy to encourage and support the resolution of

any dispute at the lowest level possible, and in a prompt, efficient,

and effective manner, no issue may be raised at a due process

hearing unless it was first raised at an admission, review, and

dismissal (ARD) committee meeting. Hearing officers shall dismiss

any hearing request upon satisfactory proof that the issues raised

in the hearing were not first presented to the ARD committee.

The Texas Education Agency eventually withdrew the proposed rule on March

29, 2002, after receiving a letter from the U.S. Department of Education’s Office

of Special Education Programs (“OSEP”) in response to the agency’s request for

an analysis of the proposed rule. Letter to Lenz, 37 IDELR 95 (OSEP March 6,

2002). In its letter to the state agency, the OSEP opined that the “Texas

proposed rule impermissibly imposes additional prior notice requirements on

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parties. Parents and school districts do not have the right under the IDEA to

limit issues raised in a hearing to only the issues that were previously raised as

part of an ARD committee meeting.” Id. The OSEP letter further noted that

the “IDEA identifies with great specificity the circumstances under which a

parent or a school district is required to provide prior notice” and that Texas’s

proposed rule “would impose additional procedural hurdles on the right to a due

process hearing that are not contemplated by the IDEA.” Id. We find this letter

and the fact that Texas has refused to impose such a requirement in its

regulations persuasive. We find that there is no requirement that a parent

notify ECISD before instituting a complaint for a due process hearing.

Second, ECISD argues that the SEHO’s order did not change its behavior

because ECISD was willing to provide all of the relief that the SEHO granted if

VB’s parent had attended the scheduled March 22 ARDC meeting. ECISD’s

second argument is without merit because there is no evidence that ECISD was

willing to provide all of the relief that the SEHO granted if VB’s parent attended

the scheduled March 22 ARDC meeting. The meeting minutes from the

resolution meeting document that ECISD proposed to schedule an ARDC

meeting to consider various recommendations on how to implement VB’s various

requests. Assuming the accuracy of the meeting minutes, this vague offer

without specific terms and reflecting mere recommendations for the ARDC to

consider is far less than the concrete actions to be completed by certain deadlines

that the SEHO ordered.

Finally, ECISD argues that designating VB a prevailing party would not

promote the purposes of the IDEA because VB did not give ECISD the

opportunity to resolve VB’s parent’s concerns before initiating the due process

proceeding, and because VB’s parent protracted litigation by refusing to attend

the scheduled March 22 ARDC meeting. This argument is without merit. Even

if we presumed that ECISD offered the same amount of relief that the SEHO

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ordered or that VB protracted litigation, VB is still a prevailing party. ECISD

is conflating the inquiry required to determine whether a party is a prevailing

party with the inquiry required to determine the appropriate amount for

attorney’s fees. It is true that in an unpublished case we have previously stated

that parties that have extended litigation may be denied prevailing party status.

Michael T. v. El Paso Indep. Sch. Dist., 37 F. App’x 714, 714 (5th Cir. 2002). But

as we noted in Gary G., Michael T. was decided during the pre-Buckhannon era,

when attorney’s fee decisions were decided under a “clear error” standard of

review, and our Court reached its decision in Michael T. primarily because of the

standard of review and because we used “‘prevailing party’ as being synonymous

with ‘attorney’s fees.’” Gary G., 632 F.3d at 207; see also Buckhannon Bd. & Care

Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001). But as

our Court noted in Gary G., “prevailing party” is not always synonymous with

“attorney’s fees.” Gary G., 632 F.3d at 207.

Whether a party is a prevailing party is a separate question from what

amount of attorney’s fees the party is entitled to receive. Id. The provisions of

20 U.S.C. §§ 1415(i)(3)(D) through (G) present situations in which courts may

not award attorney’s fees or must reduce attorney’s fees, such as when a plaintiff

rejects a settlement offer that would have provided more relief than that

awarded by the SEHO, or where the party unreasonably protracts the resolution

of the case. But as the First, Third, Seventh, and D.C. Circuits have held, these

provisions “do not inform anything about the meaning of the term ‘prevailing

party’ in the IDEA because they are relevant only after a plaintiff has been

deemed a ‘prevailing party’.” Alegria v. Dist. of Columbia, 391 F.3d 262, 266

(D.C. Cir. 2004) (emphasis added) (citing T.D. v. LaGrange Sch. Dist. No. 102,

349 F.3d 469, 476 (7th Cir. 2003)); see also Doe v. Boston Pub. Sch., 358 F.3d 20,

26–27 (1st Cir. 2004); John T. v. Del. Cnty. Intermediate Unit, 318 F.3d 545, 557

(3d Cir. 2003).

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Undoubtedly the purposes of the IDEA are not fostered by awarding

attorney’s fees to a party who unreasonably delayed resolution of the dispute.

But in determining whether a party is a “prevailing party” and thereby eligible

to receive attorney’s fees at all, we examine whether the remedy the party

obtained fosters the IDEA’s purposes. Gary G., 632 F.3d at 207 (citing Richard

R., 591 F.3d at 421–22). Here, the remedy is the SEHO’s decision. As we stated

above, this decision fostered the IDEA’s purposes by ordering concrete actions

to be completed by set deadlines, thereby ensuring VB would receive the free

appropriate public education that the SEHO found VB had been denied.

Accordingly, we agree with the district court that VB is a prevailing party.

B. Amount of Attorney’s Fees

In the alternative, ECISD argues that the award for attorney’s fees and

costs should be reduced to the amount incurred before the resolution meeting

because VB unreasonably protracted the final resolution of the controversy by

not informing the school district of the subject of the due process complaint

before filing the complaint and by refusing to attend the March 22 ARDC

meeting.

1

“A finding that a party is a prevailing party only makes him eligible to

receive attorneys’ fees under the IDEA; it does not automatically entitle him to

recover the full amount that he spent on legal representation.” Gary G., 632

F.3d at 208 (quoting Jason D.W., 158 F.3d at 209) (first emphasis added). As we

mentioned above, the IDEA features several provisions that prohibit an

attorney’s fees award to a prevailing party or require the judge to reduce the

ECISD does not contest the district court’s finding that ECISD had not made any 1

written offer of settlement at the March 6 resolution meeting, but merely faxed over the

meeting minutes and agenda. Thus, we do not consider whether fees should have been

reduced under § 1415(i)(3)(D)(i), which prohibits the district court from awarding attorney’s

fees under the IDEA to a student’s parent for legal services performed subsequent to the time

of a written offer of settlement to a parent if the district court finds certain facts.

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award. Richard R., 591 F.3d at 423. Section 1415(i)(3)(F)(i) states that “the

court shall reduce, accordingly, the amount of the attorneys’ fees awarded under

this section” whenever the court finds that “the parent, or the parent’s attorney,

during the course of the action or proceeding, unreasonably protracted the final

resolution of the controversy.” 20 U.S.C. § 1415(i)(3)(F)(i).

2

As we stated above, we find ECISD’s contention that § 89.1150 of the

Texas Administrative Code establishes a framework for determining if a party

has unduly protracted litigation unavailing. The language of § 89.1150

(1) merely lists potential options for resolving disputes—such as a request for

due process hearing or meetings with the ARDC, teachers, and school district

officials; and (2) does not favor any particular option or require that the solutions

be attempted in a certain order. Consequently, we reject ECISD’s argument that

VB’s parent had to notify the school district of the subject of VB’s due process

complaint before filing it. Thus, the only question that remains is whether the

refusal of VB’s parent to attend the March 22 ARDC meeting on the advice of

VB’s attorney unreasonably protracted the final resolution of the controversy.

ECISD argues that it “had a right to schedule an ARD Committee meeting

and had a right to expect VB would participate in good faith.” In support of such

a finding, ECISD points to the current language of § 89.1185(m)(1) of the

administrative rules of the Texas Education Agency, and the language of

subsection (n) of the same section, which had been in place during the resolution

period and due process hearing:

(m) At the request of either party, the hearing officer shall include,

in the final decision, specific findings of fact regarding the following

issues:

A court may not apply § 1415(i)(3)(F) and reduce an attorney’s fees award “if the 2

court finds that the State or local educational agency unreasonably protracted the final

resolution of the action or proceeding or there was a violation of [§ 1415].” Here, there is no

allegation that ECISD unreasonably protracted the final resolution of this dispute.

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(1) whether the parent or the school district unreasonably

protracted the final resolution of the issues in controversy in the

hearing . . .

. . . .

(n) In making a finding regarding the issue described in subsection

(m)(1) of this section, the hearing officer shall consider the extent to

which each party had notice of, or the opportunity to resolve, the

issues presented at the due process hearing prior to the date on

which the due process hearing was requested. If, after the date on

which a request for a due process hearing is filed, either the parent

or the school district requests that a meeting of the admission,

review, and dismissal (ARD) committee of the student who is the

subject of the due process hearing be convened to discuss the issues

raised in the request for a due process hearing, the hearing officer

shall also consider the extent to which each party participated in the

ARD committee hearing in a good faith attempt to resolve the

issue(s) in dispute prior to proceeding to a due process meeting.

19 TEX. ADMIN. CODE § 89.1185 (amended to be effective November 16, 2003, 28

TEX. REG. 9830).

Contrary to ECISD’s assertions, the language of § 89.1185(m)(1) and (n)

does not create such a right. The subsections only speak to the SEHO’s

procedural duty to consider whether an ARDC meeting had been requested by

one of the parties or attended by the parties in good faith when either party

requests the SEHO to do so. ECISD has not indicated or produced any evidence

that either party requested a finding under (n) from the SEHO. We cannot find

any error with the district court’s conclusion in its September 8 order that “the

Texas Administrative Code does not require the SEHO to make findings on this

matter.”

ECISD further argues that VB’s parent’s attendance at an ARDC meeting

was essential because the ARDC is the only committee that may adjust an IEP.

Though it may be true that the ARDC is the only committee that may adjust an

IEP, this is not helpful in our reasonableness determination if there is no

expectation or requirement that a parent attend further meetings after a

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resolution meeting. The district court did not err in finding that VB’s parent’s

refusal to attend the ARDC meeting did not show bad faith or conflict with the

purposes of the IDEA. ECISD did not present—nor did our search of relevant

statutes, state and federal regulations, and case law find—any requirement that

a student’s parent attend any meetings after the resolution meeting. This is in

contrast to the explicit statutory requirement that the parties attend a

resolution meeting. 20 U.S.C. § 1415(f)(1)(B). VB fulfilled this requirement

when his parent attended the March 10 meeting.

ECISD also argues we should find VB’s parent’s actions unreasonable

because they do not promote the purposes of the IDEA. It is true that the

legislative history indicates that the goal of the provisions requiring a quiet

period is one of fairness; Congress wanted “to be sure that a district is aware of

a problem and has a chance to resolve it in a less formal manner before having

to spend the time and resources for a due process hearing.” S. REP. No. 108-185,

at 39 (2003). But the same Senate Report states that “[t]he purpose is not to

make parents go to another IEP meeting to explain an issue that has already

reached an impasse with the district.” Id. VB’s parent had met with the ARDC

and ECISD officials to discuss concerns with VB’s IEP prior to the due process

complaint. VB had also met with ECISD officials at the resolution meeting.

Even if ECISD did not have notice of VB’s specific issues at the time the

complaint was filed, ECISD did have notice by the time of the resolution meeting

from the due process complaint. ECISD had the opportunity to come to the

resolution meeting with a settlement offer that covered all requested relief, just

as El Paso Independent School District did in Richard R. See 591 F.3d at 428

(“[El Paso Independent School District] offered R.R. all of his requested

educational relief at the resolution meeting.”). ECISD did not do so here;

instead, ECISD offered yet another meeting to discuss vague recommendations

concerning VB’s educational relief.

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This is not to say that a district court never has discretion to reduce an

attorney’s fees award under § 1415(i)(3)(F)(i) when a parent or a parent’s

attorney has refused to attend a meeting subsequent to the resolution meeting.

For example, a district court would be within its discretion to reduce an

attorney’s fees award if the parent or the parent’s attorney has refused to attend

a second meeting, and (1) the meeting was scheduled at a mutually reasonable

time; (2) the parent or the parent’s attorney was given sufficient notice; and

(3) there was a reasonable expectation of obtaining substantial relief for the

child at the meeting. But, this was not the case here. VB’s parent had no

reasonable expectation that VB would receive the relief requested in the due

process complaint if VB’s parent attended the March 22 ARDC meeting. The

minutes of the March 10 resolution meeting indicate that ECISD would make

“recommendations” to the ARDC, that the ARDC would “discuss” access to

counseling services, and that it would suggest that the ARDC “review

modifications” to VB’s IEP. The meeting minutes do not indicate that the ARDC

was likely to implement the relief VB had requested. Additionally, it does not

appear that the controversy would have been resolved at the March 22 ARDC

meeting. As the district court noted and the SEHO’s findings of fact reflect,

ECISD later determined that a functional behavior assessment—one of the

specific requests for relief that VB had made in the due process complaint—was

unnecessary.

It is beyond dispute that VB’s parent's failure to attend the ARDC meeting

(at the advice of counsel) did nothing to advance IDEA’s purpose, which is for

school districts and parents to work together to resolve their differences and

“achieve a level of meaningful education for students.” Gary G., 632 F.3d at 209

(citation omitted). By failing to attend the ARDC meeting, VB’s parent

hindered, rather than advanced, efforts to obtain a meaningful education for VB.

“Parental participation in the development of an IEP is the cornerstone of the

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IDEA.” J.W. ex rel. J.E.W. v. Fresno Unified Sch. Dist., 626 F.3d 431, 447 (9th

Cir. 2010) (citation omitted); see also White ex rel. White v. Ascension Parish Sch.

Bd., 343 F.3d 373, 378 (5th Cir. 2003). We also recognize this court’s ability to

adjust attorney’s fees in an IDEA action, based upon a finding that the district

court abused its discretion in awarding fees. See Gary G., 632 F.3d at 210–11;

see also Holmes v. Millcreek Twp. Sch. Dist., 205 F.3d 583, 596 (3d Cir. 2000).

But, given the delicate balance of state and federal regulation of this area of the

law, we are wary of reading a new requirement into the statute; given the facts

of the instant case, we decline to do so here. Consequently, we cannot find that

the district court clearly erred in holding in its order that: (1) ECISD offered no

“resolute actions” at the resolution meeting, but merely offered to refer all

actions to the ARDC for discussion; (2) VB “had reason to believe that a

‘discussion’ of behavioral assessment might not ever lead to actuality”; and (3)

VB did not lack “good faith in his dealings with [ECISD].” On these facts, the

district court did not abuse its discretion in deciding that it need not reduce VB’s

attorney’s fees award under 20 U.S.C. § 1415(i)(3)(F)(i) for unreasonable

protraction of litigation.

AFFIRMED.

16

Case: 10-50709 Document: 00511424883 Page: 16 Date Filed: 03/25/2011