Justice, money or both: IDEA and the need for a definitive cause of action for counsel fees

Abstract Federal law allows either the parents or the opposing school district to reclaim attorney's fees upon winning a due process hearing. However, the Circuits of the United States Courts of Appeals are divided on if a fees action is either ancillary or independent from the special education litigation due to Congressional silence. When the Circuits adopted different state limitation periods from state law, it created varying results across the nation. This note explores the Circuit divide and proposes an amendment to federal legislation creating a definitive statutory period and considers a pendente lite approach to the hearing discovery process.