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Capo on the Hook for Attorney's Fees

UPDATED: A special education lawsuit on behalf of an autistic student has been floating around the federal court system for years.

The is on the hook for attorney fees in a special education lawsuit that’s been bouncing through the federal court system for years.

The U.S. Ninth Circuit Court of Appeals ruled Wednesday that an original decision an administrative law judge made in 2006 was the correct one. That decision faulted the district for not providing a free and appropriate education between January and June 2005 before it made tweaks to the autistic student’s individual education plan.

The parents took the case to federal court and have twice appealed to the Court of Appeals. The latest decision rules that the district ultimately did offer a free and appropriate educational plan but that it still needs to pay for the family’s attorney’s fees.

A spokesman for Capo Unified was not immediately available for comment.

The plaintiff is a now-almost 10-year-old boy who is severely autistic. The courts protect his privacy by referring to him as L.M.

L.M.’s parents “have spared no expense to obtain private in-home treatment for their developmentally disabled son,” states an earlier decision. Capistrano Unified “balked” at the idea of continuing the in-home educational plan at public expense and offered an alternative plan, one that included enrolling him at Palisades Elementary in Capo Beach.

The matter ended up before an administrative law judge in California who conducted a four-day evidentiary hearing to resolve the dispute, the ruling for which favored the student in part and the district in part, according to the recent ruling.

Still, the administrative law judge had complete discretion to award attorney’s fees to the parents, even if they did not get everything they were seeking in their lawsuit, Wednesday’s ruling states.

“The district court correctly identified the relevant law and facts and reasonably concluded that the parents were the prevailing party at the administrative hearing,” the three-judge panel ruled. “Although the parents were not successful at gaining reimbursement for the entire time period at issue, the parents were successful at establishing that the school district’s initial IEP offer was invalid.”

A Long Beach attorney and parent of two autistic children himself, Bruce Bothwell, represented the family. His wife, Claire Bothwell, is on the board of directors for the National Autism Association

He said the ruling pertains only to those costs associated with the administrative law hearing. While he was hesitant to say how much that would cost the district, it's not in the seven figures, Bothwell said. 

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