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US Court of Appeals for the Third Circuit/Amicus
Drinker, Biddle & Reath
The ACLU-NJ has agreed to sign on to an amici brief, along with the Education Law Center, in a case regarding the right to obtain attorneys fees under the Individuals with Disabilities Education Act (“IDEA”). The ACLU-NJ previously joined ELC in an amici brief in a similar case (called J.O. v. Orange Brd of Ed). In J.O., the Third Circuit ruled that, under IDEA, J.O. was not entitled to fees because the order ensuring that the child stayed in school was in essence a “preliminary injunction” order and not a final success on the merits. (After a US Supreme Court decision called Buckhannon, a party can only be awarded attorneys’ fees if it is successful on the final merits of the case.) The trial court in the current case has now gone even further to erode what should be consider a valid final order. The judge ruled that, even though Clementon entered into a consent order which granted (1) a return to school, (2) compensatory education, (3) reimbursement of pychologist's costs and (4) an independent educational evaluation, it was all de minimus and, therefore, undeserving of an award of attorneys’ fees.
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