Attorneys' fees again denied in FAPE litigation.

Byline: Barry Bridges

Exercising her discretion to revisit a former ruling on attorneys' fees, a Superior Court judge has again held that the parents of a hearing-impaired student cannot recover attorneys' fees they incurred in securing special education services for their son.

In December, Judge Netti C. Vogel held that the Lincoln School District must furnish a "free and appropriate education" to D. Doe in a way that was consistent with his parents' choice to enroll him in a private school. The district was accordingly ordered to furnish a teacher of the deaf to assist Doe during his academic day at The Gordon School.

At the time, Vogel also denied the parents' request for attorneys' fees as the prevailing parties in the lawsuit, setting the stage for their instant motion to "modify or suspend" that portion of the ruling.

Treating the motion as one to vacate under Superior Court Civil Rule 60(b), Vogel reached the same result through her interpretation of G.L. 16-24-1. That statute requires school districts to ensure that disabled students in private schools receive "the same free and appropriate education as it provides to children in public schools."

While sympathetic to the "compelling" argument that parents should not have to absorb out-of-pocket expenses for attempting to vindicate the rights of their disabled child, Vogel said she was constrained by the "clear and unambiguous" language of the statutein this case, its clarity through silence.

The judge reviewed Rhode Island precedent to the effect that if a statute is to be read as creating an exception to the "American rule" that each litigant pay his own attorneys' fees, that statute must be explicit.

"In the instant matter, [the parents] contend that although 16-24-1 is silent regarding attorneys' fees, the statute is remedial and must...

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