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E.M. v. MILLVILLE BD. OF EDUC.

April 28, 1994

E.M., individually, and as guardian ad litem for L.M., a minor, Plaintiffs,
v.
MILLVILLE BOARD OF EDUCATION, Defendant.



The opinion of the court was delivered by: STANLEY S. BROTMAN

 BROTMAN, District Judge:

 Presently before the court are plaintiffs' motion, *fn1" and defendant's cross-motion, for summary judgment. For the reasons set forth below, plaintiffs' motion is granted, and defendant's motion is denied.

 I. Factual and Procedural Background

 L.M., an autistic student, attended kindergarten from 1991-92 and "transitional" first grade classes at Reich School from 1992-93 in the Millville School District ("District"). On May 20, 1993, during an Individualized Educational Placement Conference ("IEP") with L.M.'s mother, E.M., the District proposed transferring L.M. to the Mount Pleasant School where she would enter a regular first grade class with Resource Center support. E.M. objected to the change of placement, and requested that L.M. remain at Reich School and be placed in a regular second grade class for the 1993-94 school year. The District denied her request, and on May 25, 1993, the Millville Director of Special Education sent a letter to E.M. confirming the denial.

 E.M. subsequently made a Request for Mediation under N.J.A.C. 6:28-2.6, but never sought an administrative hearing. A mediation conference was held on June 17, 1993 at which E.M. sought continued placement for L.M. at the Reich School in a regular second grade class, with one half day Resource Center support and a Personal Aide. E.M. also sought outside training and technical assistance for the teaching staff in "facilitated communication," an alternative teaching methodology.

 The parties successfully mediated the conflict, and signed a Notice of Agreement on June 17, 1993. Under the terms of the Agreement, L.M. would continue attending the Reich School in a regular first grade class with Resource Room support for up to one half day. She would also continue to be serviced by her Personal Aide. The Resource Center teacher, classroom teacher, aide, and other designated or interested school personnel were required to utilize the District's in-house training program in facilitated communication to assist in the development of L.M.'s communication skills.

 Plaintiffs asked defendant to reimburse their attorney and expert fees pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Defendant refused, and plaintiffs then filed suit in this court.

 Plaintiffs have moved, and defendant has cross-moved, for summary judgment. The following issues are before the court: (1) Whether mediation in accordance with N.J.A.C. 6:28-2.6 is an "action or proceeding" within the meaning of 20 U.S.C. § 1415(e)(4)(B) of the IDEA; (2) If so, whether plaintiffs are a "prevailing party" within the meaning of the IDEA and therefore entitled to reimbursement of reasonable attorney's fees and costs; (3) If so, what is the amount of the attorney's fees and costs to be reimbursed.

 II. Legal Discussion

 A. Is Mediation an "action or proceeding" under the IDEA?

 The IDEA was enacted "to assure that all children with disabilities have available to then . . . a free appropriate public education which emphasizes special education and related services designed to meet their unique needs [and] to assure that the rights of children with disabilities and their parents or guardians are protected." 20 U.S.C. § 1400(c). Under the IDEA, states are required to establish certain procedural safeguards for children with disabilities and their parents, including allowing parents who dispute their child's IEP to obtain an impartial due process hearing. 20 U.S.C. § 1415; Field v. Haddonfield Bd. of Educ., 769 F. Supp. 1313, 1319 (D.N.J. 1991). On their own accord, states may provide mediation to resolve the dispute and avoid the time and expense of an administrative hearing. 34 C.F.R. § 300.506; Masotti v. Tustin Unified Sch. Dist. Bd. of Educ., 806 F. Supp. 221, 223 (C.D. Cal. 1992). In New Jersey, either the school or the parent may request mediation as an intermediate step before the administrative hearing. N.J.A.C. 6:28-2.6. Either party may be accompanied and advised by legal counsel or educational experts. Id.

 The IDEA provides, in pertinent part, that:

 
In any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents or guardian of a handicapped child or youth who is the prevailing party.

 20 U.S.C. § 1415(e)(4)(B).

 Most courts, including those in this district, permit parents who prevail through settlement to recover attorneys fees, even if an administrative hearing was never held. See, e.g., Barlow-Gresham Union High School District No. 2 v. Mitchell, 940 F.2d 1280 (9th Cir. 1991); Shelly C. v. Venus Indep. School District, 878 F.2d 862 (5th Cir. 1989), cert. denied, 493 U.S. 1024, 107 L. Ed. 2d 748, 110 S. Ct. 729, reh'g denied, 494 U.S. 1013, 108 L. Ed. 2d 488, 110 S. Ct. 1312 (1990); Field v. Haddonfield ...


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