Appeal from a judgment of the United States District Court for the Western District of New York (Telesca, J.) awarding attorneys' fees in an action brought to compel compliance with federal and State laws governing the identification, evaluation and placement of handicapped students. Affirmed in part and remanded in part. Judge Miner concurs in a separate opinion.
Van Graafeiland, Pratt and Miner, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge
This is an appeal from a judgment of the United States District Court for the Western District of New York (Telesca, J.) awarding attorneys' fees to appellees in a class action brought to compel compliance with federal and State laws governing the identification, evaluation and placement of handicapped students, after the action was settled favorably to appellees. The district court's decision directing the entry of judgment is reported in 648 F. Supp. at 1452. We affirm the awarding of fees, but direct that the amount thereof be reduced to account for the time of appellees' lawyers attributable to appellees' claim against the State defendants, who did not participate in the settlement.
This action deals primarily with the Education of the Handicapped Act, 20 U.S.C. § 1401 et seq., whose evolution and major provisions are summarized in Board of Education v. Rowley, 458 U.S. 176, 179-84, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1982). A detailed analysis of the Act's provisions is contained in the Regulations of the Offices of the Department of Education, 34 C.F.R. Pt. 300 and App. C.
A key mechanism in the functioning of the Act is the "Individualized Education Program" (IEP), 20 U.S.C. § 1401(19). This Program contemplates a meeting between parents and school personnel for the purpose of jointly deciding what a handicapped child's needs are, what services will be provided to meet those needs, and what the anticipated outcome will be, together with a written record of the decision made at the meeting. 34 C.F.R. Pt. 300, App. C § 60. Since the IEP is intended as a guideline for the educational processes to be followed in the case of the student involved, its formulation is surrounded by due process safeguards, including adequate notice, appropriate hearings, and the right of appeal. 20 U.S.C. § 1415; 34 C.F.R. Subpt. E §§ 300.500-300.514. Indeed, the statute and the Department of Education regulations specifically provide for a "due process" hearing if proper identification, evaluation or educational placement procedures are not conducted. 20 U.S.C. § 1415(b)(2); 34 C.F.R. § 300.506; see also id. Pt. 300, App. C §§ 11, 32, 35.
Although section 1415 has been described as a "bill of rights of parents", Vander Malle v. Ambach, 673 F.2d 49, 52 (2d Cir. 1982) (quoting Stemple v. Board of Educ., 623 F.2d 893, 898 (4th Cir. 1980), cert. denied, 450 U.S. 911, 101 S. Ct. 1348, 67 L. Ed. 2d 334 (1981)), prior to 1986 it contained no provision for the discretionary payment of attorneys' fees. In Smith v. Robinson, 468 U.S. 992, 82 L. Ed. 2d 746, 104 S. Ct. 3457 (1984), the Court held that, although the successful plaintiffs had included with their section 1415 claim causes of action under the Civil Rights Act, 42 U.S.C. § 1983, and the Rehabilitation Act of 1973, 29 U.S.C. § 794, both of which permit awards of attorneys' fees, see 42 U.S.C. § 1988 and 29 U.S.C. § 794a(b), the Education of the Handicapped Act was the "exclusive avenue" through which the plaintiffs could pursue their claim and their request for attorneys' fees. Id. at 1013. Congress promptly amended section 1415 by permitting awards for fees in actions under that section, see subsection (e), and removing the restrictions imposed in the Smith opinion against proceeding under other statutes protecting the rights of handicapped children, see subsection (f). This removal of restrictions was not without its limitations, however. Subsection (f) provides that before the filing of a civil action under other laws seeking relief that also is available under subchapter II of the Act, 20 U.S.C. §§ 1411-1420, the procedures under subsections (b)(2) and (c) of § 1415, which provide for a hearing and administrative appeal, shall be exhausted to the same extent as would be required had the action been brought under that subchapter.
Appellants contend that the several subsections of section 1415, when read together, create an exhaustion of administrative remedies requirement. They argue that an action under the Act can be maintained only to challenge a final decision of a State administrative agency relating to the evaluation or placement of a specific handicapped student. They say that, since there has been no such exhaustion in the instant case, subsection (f) precludes the awarding of attorneys' fees. Relying largely on legislative history, which we need not repeat herein, the district court rejected that argument. 648 F. Supp. at 1456-58. Under the facts of the instant case, the district court was correct.
As found by District Judge Elfvin to whom this case was assigned first, appellees' claims are systemic in that the wrongdoing complained of is inherent in the program for the education of handicapped children that appellants adopted and is not directed against any specific child. 648 F. Supp. at 1457. The alleged systemic wrongs that appellees challenged are summarized in their brief as follows
1. Failing to evaluate students suspected of having a handicapping condition and to classify those students at a Committee on the Handicapped (COH) meeting within 30 days after a referral of the child to the COH.
2. Placing students in special education programs without either performing the evaluations required by law or developing Individualized Education Programs (IEPs) with parental participation as required by law.
3. Failing to give parents notice containing information about the testing to be performed on their child, their procedural rights in the COH process and the recommendations and reasoning of the COH.
4. Obtaining parental consent for special education placements prior to required testing of the child and prior to notifying ...