end, the bill specifically excludes the payment of attorneys'
fees for attorney participation in IEP meetings." H.R. Rep.
105-95, 1997 USCCAN 78, 1997 WL 258948.
Clearly, the 1997 amendment was intended to discourage attorney
participation in routine IEP meetings. The presence of attorneys
in such situations was no doubt thought to contribute to an
adversarial atmosphere that might inhibit the parties from
working together to develop an agreeable plan. The court cannot
agree, however, that the amendment was intended to prohibit
completely any award of attorneys fees in cases where the IEP
meetings is held in direct response to an attorney's request for
an impartial hearing. In such cases, the IEP meeting may have
been convened to settle the parties' dispute and would likely not
have been held at all, but for the attorney involvement.
Relying on a case decided prior to the 1997 amendment of the
IDEA, which held that the pre-amendment statute prohibited an
award for attorney involvement in routine IEP meetings, the
District argues that the 1997 amendment must be construed in a
broader fashion or it would be unnecessary and meaningless.
Specifically, the District notes the holding of the court in
Shanahan v. Board of Educ. of Jamesville-Dewitt School
District, 953 F. Supp. 440, 443 (N.D.N.Y. 1997). There, the court
applied the pre-1997 IDEA and held that the statute did not allow
for recovery of attorney fees for time spent in meetings held to
prepare an IEP. Accord Fenneman v. Town of Gorham, 802 F. Supp. 542,
545-46 (D.Maine 1992).
Arguing that Shanahan represented the clear law prior to
1997, the District contends that the 1997 amendment must be
construed to broaden what was already the law prior to 1997 to
prohibit an award of attorneys fees where, as here, a dispute is
resolved in the absence of a court or administrative order, by
convening a CSE meeting and formulating the requested IEP.
In the court's view, the District's interpretation of the 1997
amendment is far too broad and is therefore rejected. First, it
is by no means clear that Shanahan and Fenneman (upon which
Shanahan relied) represented the uniformly applied law
throughout the country prior to the 1997 amendment to the
attorneys' fee provision of the IDEA. It is entirely likely that
prior to 1997 some courts may have awarded fees in connection
with attorney participation in IEP meetings. The 1997 amendment
was likely intended to clarify the intent of Congress with
respect to attorney involvement in such meetings. Construction of
the amendment to clarify the law in this regard by no means
renders the amendment unnecessary.
Moreover, adoption of the District's position frustrates the
policy behind the attorneys' fee provision of the IDEA — a
provision that is to be construed liberally and "generously."
See Texas State Teachers Association v. Garland Independent
School District, 489 U.S. 782, 792, 109 S.Ct. 1486, 103 L.Ed.2d
866 (1989); G.M., v. New Britain Board of Education,
173 F.3d 77, 81 (2d Cir. 1999); K.R., as Natural Mother and On Behalf of
M.R. v. Board of Educ. of Brentwood School District, 66
F. Supp.2d at 449 (E.D.N.Y. 1999).
The District's construction of the IDEA would discourage
attorney involvement in any case that could be settled by
convening a CSE meeting to prepare an IEP on behalf of an
aggrieved student. Rather than seeking to settle disputes in this
manner, it would be in the interests of attorneys representing
families to continue to litigate rather than seeking to resolve
the matter in the most expeditious and efficient manner.
Ultimately, this would increase the cost to school districts and
families and would unnecessarily delay the proceedings. On the
other hand, allowing for an award of fees in cases such as this
furthers the purposes of prompting attorneys to aid in the
prosecution of student
rights under the IDEA while also encouraging early settlements of
IV. Plaintiffs Have Stated A Claim For an Award of Attorneys
Applying the above-referenced principles to Plaintiffs'
complaint, the court has no difficulty holding that Plaintiffs
have set forth a viable claim for attorneys fees pursuant to the
IDEA. As noted, fees are available in cases where an impartial
hearing was requested but the case is resolved prior to the
hearing. See, e.g., K.R., as Natural Mother and On Behalf of
M.R. v. Board of Educ. of Brentwood School District, 66
F. Supp.2d at 448 (E.D.N.Y. 1999); Shanahan v. Board of Educ. of
Jamesville-Dewitt School District, 953 F. Supp. 440, 443
(N.D.N.Y. 1997). This remains the law even after the 1997
amendments to the attorneys' fee provision of the IDEA.
Plaintiffs seek reimbursement for counsel fees spent in
challenging the District's decisions to suspend M.R. and the
refusal to properly classify him as a student in need of special
education services. Counsel became involved in the matter after
M.R.'s suspension and twice requested that impartial hearings be
held. The only reason such hearings were not held was that the
District acceded to each of the demands set forth by plaintiffs'
counsel and thereby resolved the issues before the hearings.
Thus, after counsel became involved, the District agreed to hold
a CSE meeting and ultimately agreed to classify M.R. precisely as
requested by plaintiff's counsel.
Finally, the court notes that plaintiffs do not seek fees in
connection with their attorney's presence at the CSE meetings
held to develop and modify M.R.'s IEP. Plaintiffs' counsel was
present at neither the November nor December CSE meetings.
Instead, as set forth in counsel's detailed invoice, fees sought
to be reimbursed relate to attorney work performed in connection
with investigation of the case, discussions with opposing
counsel, client meetings and preparation of requests for
impartial hearings. Such expenses are clearly reimbursable under
V. Plaintiffs' Status as Prevailing Parties
The procedural posture of this case makes it inappropriate, at
this juncture, to rule on the issue of whether Plaintiffs are
prevailing parties within the meaning of the IDEA. Defendants'
motion to dismiss was based only on the 1997 amendment to the
IDEA. Having denied the motion on that ground, Plaintiffs' case
The court notes, however, that the documents presently before
the court appear to indicate that Plaintiffs fall into the
category of litigants entitled to reimbursement of fees. As
noted, it was not until counsel became involved that the District
agreed to convene a meeting of the CSE on behalf of M.R. While
the District refused to classify M.R. as a student in need of
special education services at the initial CSE meeting, the second
CSE meeting resulted in the classification of M.R. exactly as
requested by Plaintiffs. Had it not been for the attorney
involvement, it is doubtful that any CSE meeting would have been
held and virtually certain that M.R. would not have been
classified as requested by his parents. Under these
circumstances, it would be easy to find that Plaintiffs'
attorney's actions were a "material contributing factor" in
bringing about the desired result. Clearly, the attorney
involvement appears to have been a "catalyst" in bringing about
the relief sought.
Nonetheless, this is an issue that has not been briefed and the
District's characterization of the CSE meetings on behalf of M.R.
as being held "in response to a parental request," appears to
take issue with Plaintiffs' counsel's apparent characterization
as the "catalyst" in bringing about a favorable settlement of
this matter. In light of this apparent disagreement and the fact
that the issue has been neither
raised nor briefed, the court will not decide the prevailing
party issue and declines to order an award of fees at this time.
The court holds only that Plaintiffs have stated a claim for
relief under the IDEA and that defendant's motion must therefore
Defendant's motion to dismiss plaintiffs' complaint is denied.
The parties are to contact the court within twenty days of the
date of this Memorandum and Order to advise the court as to
whether the fee issue in this case can be resolved. In the event
that the issue cannot be resolved, the parties will be ordered to
contact the Magistrate Judge assigned to this matter to agree
upon a discovery schedule.