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The 3rd U.S. Circuit Court of Appeals last week raised the bar for parents seeking attorney fees after challenging a school board’s action concerning behaviorally challenged children. A three-judge panel, in J.O. v. Orange Township Board of Education, No. 00-3792, ruled that a mother whose child was removed from school because of behavioral problems was not entitled to fees under the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq., where an administrative law judge imposed only a temporary remedy. Although a party does not need to achieve all its goals or ultimately win the case to be considered the prevailing party for purposes of a fee award under the IDEA, the denial of fees was not an abuse of discretion where the ALJ never considered the merits, the court said. “The ALJ’s order explicitly provides that it is effective only until an appropriate placement could be found for [the child] or until a ‘further Order of an [ALJ], or until the issuance of a final decision in this matter,’” wrote Judge Dolores Sloviter, joined by Judges Arthur Alarcon and Maryanne Trump Barry. Plaintiffs’ lawyer Ruth Lowenkron, of the Newark, N.J.-based Education Law Center, argued that her clients were prevailing parties because the ALJ blocked the school board from removing the child permanently from school. She argued that this was substantial relief, noting that one of the main goals of the IDEA was to prevent “unconscionable exclusions of children with disabilities from schools.” But when the plaintiffs sought fees in federal court, U.S. District Judge William Bassler concluded that the ALJ’s decision to reinstate the child at school amounted to a “stay-put” order and that a family is not entitled to attorney fees when only given interim relief. Sloviter agreed. “A temporary restraining order is a ‘stay put,’ equitable remedy that has as its essential purpose the preservation of the status quo while the merits of the cause are explored through litigation. As such, a temporary restraining order cannot constitute the type [of] merit-based relief that affords a plaintiff prevailing party status.” Lowenkron says the ruling renders the IDEA fee-award provision “meaningless,” adding, “This creates an enormous bar to children with disabilities.” Cynthia Ham, an attorney for the school board, says the district and circuit courts reached the proper decision. “The plaintiffs were arguing that C.O. was being improperly disciplined,” says Ham, an associate at Florham Park, N.J.’s Schwartz Simon Edelstein Celso & Kessler. “The ALJ never entertained that argument. If he had, that would have gone to the merits of the case.”

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