The district court concluded that K.S. demonstrated her improper purpose by her “attempt to extort fees from District to which Mother was not legally entitled in exchange for Mother foregoing an appeal.” The district court stated: “In short, Mother's offer to ransom her child's IDEA appeal in exchange for money to which her non-attorney advocate was not entitled shows that the purpose of this appeal was not to vindicate the rights of her disabled child.” There is no basis in the record for this finding. First, a reading of the terms of the settlement offer reveals no attempt by K.S. to “ransom” the appeal in exchange for any improper gain. In that settlement offer, K.S. sought both the District's funding of an IEE and the attorney's fees and costs incurred by the Special Education Law Firm. Her settlement offer—clearly contingent upon her child receiving the IEE that K.S. believed C.W. deserved—cannot be characterized as an effort to improperly extort funds. Second, from the start, all K.S. sought was a proper OT recommendation for her child. When the District refused to provide the requested recommendation, she defended against the District's due process complaint, and then, prior to appealing the adverse decision, provided, through the settlement offer, an option to avoid further litigation should the District agree to fund the IEE that she sought for C.W. When the District refused to settle the dispute, K.S. appealed. The record fails to reflect the one-sided effort to “unnecessarily increase the litigation costs incurred by District until it acquiesced to lining the pockets of her non-attorney advocate” described by the district court. Nor do the July 2011 letters counsel exchanged reflect “clearly abusive litigation activity”; they were, rather, a sideshow by overzealous advocates. Aetna Life Ins., 855 F.2d at 1476. Furthermore, the district court's order shows a degree of frustration with K.S. and her counsel. (“Finally, Mother's latest salvo against this Court is entirely consistent with her strategy throughout this appeal of casting unfounded aspersions on the expertise or reasoning of others to deflect from her own shortcomings.”) District Court's Order, p. 14. To the extent that the district court's frustration with K.S. and counsel colored its legal conclusions that these claims were brought for an improper purpose, this was error. As already discussed, no evidence supports an alleged improper purpose. Instead, the record compels the conclusion that K.S. was simply attempting to “vindicate the rights of [her] disabled child.” R.P., 631 F.3d at 1127. K.S.'s steadfast determination to ensure that her child received the appropriate OT is not an improper purpose justifying an award of attorney's fees. Indeed, we have made clear that “anger is a legitimate reaction by parties who believe that their rights have been violated or ignored.” Id. at 1127.

The ADA intimidation claim and the § 1983 claim lack any legal foundation and “the result is obvious.” Karam, 352 F.3d at 1195. The ADA intimidation claim filed under 42 U.S.C. § 12203(b) had an outcome that was clear at the time it was filed. Section 12203(b) states: “It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter. ” (emphasis added). By its own terms, protection under the ADA against intimidation does not extend to a plaintiff's attempts to exercise rights granted or protected by the IDEA—the basis of K.S.'s claim in this case. See Morse v. N. Coast Opportunities, Inc., 118 F.3d 1338, 1343 (9th Cir.1997) (“Because [Plaintiff's] § 1983 complaint against [Defendant] is completely barred by the terms of the statute, we find that her claim is ‘unreasonable’ and ‘meritless.’ ”).

If a parent prevails under the standards set forth in the IDEA and Burlington, the school board must pay for the cost of the non-public education in order to satisfy its legal obligation to provide a free appropriate education. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12 (1993). The “[r]eimbursement merely requires the school board to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper [plan].” Burlington, 471 U.S. 359, 370-371 (1985)

OFFICE OF CHIEF COUNSEL October 06, 2008 Number: INFO 2009-0124