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December 28, 1984

Nancy BONAR, on behalf of Douglas BONAR, an infant, Karen Amey, on behalf of Scott Amey, and infant, Martha Hamann, on behalf of Susan Hamann, an infant, Lynne C. Sommerstein, on behalf of Michelle L. Sommerstein, an infant, Donna Dougherty, on behalf of Richard Dougherty, an infant, Rita Evelt, on behalf of John Evelt, an infant, Individually and on behalf of all other similarly situated individuals, Plaintiffs,
Gordon AMBACH, as New York State Commissioner of Education, Defendant.

The opinion of the court was delivered by: CURTIN

CURTIN, Chief Judge.


 This matter is before the court for the third time on the question of attorneys' fees. In an order dated September 29, 1982, I found that the plaintiffs were "prevailing parties," in that the commencement of this action resulted in a settlement favorable to the plaintiffs. I also held that an award of attorneys' fees pursuant to 42 U.S.C. § 1988 was proper.

 Counsel then submitted affidavits outlining the time spent in preparing the case. Defendants opposed the award both in terms of the amount sought and the propriety of any award under the circumstances of this case. I declined to change my conclusion that the plaintiffs were prevailing parties, and I awarded fees to plaintiffs' counsel. See, order of December 20, 1983, Item 80.

 Counsel subsequently sought a modification of that order, requesting the court to award fees for legal work done in connection with preparing the motion. Defense counsel once again challenged the propriety of any fees.Once again, I decline to alter my conclusion that the plaintiffs "prevailed" in this lawsuit.

 The parties were last in court this spring to argue the issue of additional attorneys' fees. Since that time, the Supreme Court decided the cases of Smith v. Robinson, 468 U.S. 992, 104 S. Ct. 3457, 82 L. Ed. 2d 746 (1984); and Irving Independent School District v. Tatro, 468 U.S. 883, 104 S. Ct. 3371, 82 L. Ed. 2d 664 (1984). These cases prompted further written submissions from counsel in July. The court now decides that counsel for plaintiffs are entitled to the attorneys' fees awarded in the order dated December 20, 1983, plus those requested for work done in preparing the motion.

 Smith v. Robinson, supra, involved several diverse claims made at various times by a young learning disabled boy and his parents.The clearest statement made by the Court in Smith is that

 [W]here the [Education of the Handicapped Act, 20 U.S.C. §§ 1400, et seq. ] is available to a handicapped child asserting a right to a free appropriate public education, based either on the EHA or on the Equal Protection Clause . . ., the EHA is the exclusive avenue through which the child and his parents . . . can pursue their claims.

 104 S. Ct. at 3470. The EHA does not have a provision for attorney's fees. Therefore, the availability of the EHA to assert an equal protection claim precludes the use of 42 U.S.C. §§ 1983, 1988 to recover attorney's fees on an equal protection theory.

 The Court also pointed out the general agreement among courts that the EHA may not be used as the basis of an action under 42 U.S.C. § 1983. Id., 104 S. Ct. at 3468 n. 11, citing, inter alia, Quackenbush v. Johnson City School District, 716 F.2d 141, 145-47 (2d Cir.1983).

 The Court was less specific in its discussion about the use of section 1983 as a means to assert due process claims in a case relating to rights secured by the EHA. The petitioners in Smith attempted to use section 1983 to mount a due process challenge to the partiality of an officer who conducted a hearing concerning the child's educational placement. The Court did not decide the question of whether this was proper in view of the detailed procedural provisions in the EHA. However, the Court did indicate that use of section 1983 to "force agencies to provide [plaintiffs] the process they were constitutionally due" was fully consistent with the intention of Congress to deny attorney's fees to those who succeed through resort to the procedures set forth in the EHA. 104 S. Ct. at 3470-71 n. 17.

 The Court also assumed the propriety of a fee awarded by the district court for work done in connection with obtaining an order enjoining a school district from dropping the learning disabled student from an educational program without first providing a hearing.

 Petitioners challenged the refusal of the School Board to grant them a full hearing before terminating Tommy's funding. Petitioners were awarded fees against the School Board for their efforts in obtaining an injunction to prevent that due process deprivation. The award was ...

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