The opinion of the court was delivered by: WOLIN
In the instant action this Court is faced with the narrow question of whether plaintiffs, who prevailed at an administrative hearing, are now entitled to bring a separate action for an award of attorney's fees and expert witness fees incurred in connection with said administrative hearing. For the following reasons, this Court concludes that plaintiff may bring a separate action for fees.
The facts are not in dispute. Plaintiffs, Jim and June Chang, are the parents of plaintiff Jason Chang (collectively, the plaintiffs). Jason is a five year-old child who has been classified as pre-school handicapped for purposes of providing him programs and services pursuant to N.J. Stat. Ann. 18A:46-6.1. During the 1986-87 academic year, the defendant, Glen Ridge Board of Education (the "Board"), placed Jason in a pre-school handicapped program operated by the Verona Board of Education at its F.N. Brown School.
The Changs, dissatisfied with the placement of Jason, requested of the Board that he be transferred to the Eden Institute, a private school located in Princeton. The Board denied the Changs' request. Subsequently, the Changs instituted a due process administrative hearing pursuant to the provisions of the Education of All Handicapped Children Act ("EHA"), 20 U.S.C. §§ 1400 et seq.
The Changs have now instituted this action in federal court strictly for the purposes of recovering attorney's fees and expert witness fees incurred by them in connection with the administrative hearing. Claiming that the Changs are not entitled to recover those fees because they prevailed completely at the administrative level, the Board now moves for dismissal of the Complaint for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). Subsequently, the Changs have cross-moved for summary judgment pursuant to Fed.R.Civ.P. 56(a); they claim that because they were successful within the meaning of the EHA, they are entitled to fees.
As noted, the sole issue presented in this case is whether Congress, in the EHA, intended to permit parents or guardians to recover attorney's fees and expert witness fees when they prevail completely at the administrative level.
The Education for all Handicapped Children Act, 20 U.S.C. §§ 1400 et seq., was originally enacted in 1975. Most simply stated, the goal of the EHA as originally enacted was to "ensure that handicapped children are given access to public education by providing federal money to assist state and local agencies in educating these handicapped children." Moore v. District of Columbia, 666 F. Supp. 263, 264 (D.D.C. 1987). Despite the enforcement provisions of the EHA, the statute did not provide for attorney's fees. Accordingly, the Supreme Court held that attorney's fees were not available to those plaintiffs who prevailed at the administrative level and subsequently brought an independent action for fees under the EHA because:
Congress did not explain the absence of a provision for a damages remedy and attorney's fees in the EHA. Several references in the statute itself and in its legislative history, however, indicate that the omissions were in response to Congress' awareness of the financial burden already imposed on states by the responsibility of providing education for handicapped children. As noted above, one of the stated purposes of the statute was to relieve this financial burden.
Smith v. Robinson, 468 U.S. 992, 1020, 104 S. Ct. 3457, 3473, 82 L. Ed. 2d 746 (1984).
Subsequently, and as predicted by the Smith dissent,
in August 1986, Congress amended the EHA by enacting the Handicapped Children's Protection Act of 1986 ("HCPA"), 20 U.S.C. §§ ...