Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
GARY v. CRONIN
June 10, 1980
GARY B., BY HIS FATHER AND NEXT FRIEND, DONALD B., ET AL., PLAINTIFFS,
JOSEPH M. CRONIN, STATE SUPERINTENDENT OF EDUCATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: McGARR, Chief Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs in this action are emotionally disturbed children
who allege that they attend private schools because the Illinois
public schools do not have special education facilities for them.
They seek declaratory and injunctive relief with respect to a
rule adopted by the Governor's Purchased Care Review Board
("GPCRB"). Defendants are various state education officials, five
of whom seek dismissal. For the reasons stated herein,
defendants' motion to dismiss is granted in part and denied in
part. (The court previously announced that defendants' motion
would be denied in toto. Sua sponte, the court has reconsidered
and concludes that certain of plaintiffs' claims must be
The complaint alleges that the challenged rule, Rule 3.21(c) of
the GPCRB, excludes counseling and therapeutic services from
being considered special education or related services, which the
state must provide for handicapped children. It further alleges
that the state's failure to provide these services: 1) deprives
plaintiffs of the free appropriate education guaranteed by the
Education for All Handicapped Children Act of 1975 ("EAHCA"),
20 U.S.C. § 1401-1461 (1976), and the regulations promulgated
pursuant to EAHCA; 2) amounts to discrimination in violation of
section 504 of the Rehabilitation Act of 1973 ("Rehabilitation
Act"), 29 U.S.C. § 794 (1976), and the regulations promulgated
pursuant thereto; 3) violates the Due Process and Equal
Protection Clauses of the United States Constitution and Article
X of the Illinois Constitution; and 4) violates Article XIV of
the Illinois School Code, Ill.Rev.Stat. Ch. 122, §§ 14-1.01 to
14.01 (1977 and Supps. 1977-78).
Defendants advance numerous contentions in support of their
motion to dismiss. Basically, they argue that: 1) plaintiffs do
not have standing; 2) the court does not have subject matter
jurisdiction; 3) plaintiffs have not stated claims for which
relief may be granted; 4) plaintiffs have failed to exhaust
administrative remedies; 5) this is an appropriate case for
abstention; and 6) the Department of Education is an
indispensable party whose absence requires dismissal. Each of
these assertions will be discussed.
Defendants contend that plaintiffs lack standing to bring this
action because Rule 3.21 applies only to the schools. Therefore,
defendants maintain, this dispute is between the state and the
Defendants cite Windward School v. New York, 551 Educ.
Handicapped L.Rep. 221 (S.D.N.Y. 1978), in support of their
argument. In that case, the plaintiffs (handicapped children,
their parents, and a private school) apparently sought an order
enjoining the State of New York from disapproving the school as
a publicly funded special education facility, without first
conducting a due process hearing pursuant to 20 U.S.C. § 1415
(1976). The court refused to grant a preliminary injunction,
finding that there was not a reasonable likelihood of success on
the merits because it was doubtful that § 1415 applied when an
entire school was disapproved. 551 Educ. Handicapped L.Rep. at
223. The court also stated that approving a school for public
solely the state's determination; thus, the issue could not
logically be the subject of a hearing between the local school
district and the parents. Id. at 222-23.
This case differs fundamentally from the Windward School case.
In Windward School, the state was not attempting to cut off the
children's right to special education or related services. The
district court specifically noted that the state was providing
other schools that were "adequate to meet the needs of the
individual child." Id. at 223. In this case, plaintiffs allege
that they are being completely deprived of publicly funded
therapeutic counseling services; thus, unlike New York in the
Windward School case, Illinois allegedly is not providing
Moreover, plaintiffs here, as handicapped students, would be
the beneficiaries of the counseling services provided by the
schools. Thus, the state's refusal to pay for such services means
that the children or their parents must either incur the costs or
go without the counseling services. Plaintiffs, therefore, do
have "a personal stake in the outcome of the controversy," Baker
v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663
(1962), and defendants' argument on standing must be rejected.
II. Subject Matter Jurisdiction
The complaint avers that this court has jurisdiction pursuant
to 20 U.S.C. § 1415 (1976) and 28 U.S.C. § 1331, 1343 (1976).
Defendants challenge this jurisdictional statement. The court
finds that jurisdiction is based on 28 U.S.C. § 1331(a),
1343(3), (4) (1976).
A. 28 U.S.C. § 1331(a) (1976).
Under 28 U.S.C. § 1331(a) (1976), the district courts have
original jurisdiction over all civil actions in which the amount
in controversy exceeds $10,000 and which arise under the
Constitution, laws, or treaties of the United States. Defendants
contend that the amount in controversy in this case does not
exceed $10,000, thereby precluding jurisdiction under § 1331. The
Plaintiffs seek injunctive relief; thus, the jurisdictional
amount is measured by "the value of the right to be protected or
the extent of the injury to be prevented." United States v.
Chicago, 549 F.2d 415, 424 (7th Cir.), cert. denied sub nom.
Adams v. Chicago, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155
(1977). The complaint alleges that plaintiffs are deprived of
counseling services which range in cost from $4,000 to $5,400 per
year. The value of the right to be protected is not limited to
the cost of the services for only one year, however. Rather, as
plaintiffs are under age twenty-one (the age of majority under
Ill.Rev.Stat. Ch. 122 §§ 14-1.02 to .08 (1977) and
20 U.S.C. § 1412(2)(B) (1976)), should they prevail on the merits, they may
benefit for several years. Counseling services for two or three
years certainly will exceed $10,000. Moreover, plaintiffs allege
that they are being deprived of a free appropriate education. The
value of education is, of course, difficult to assess, but the
court is willing to assume it exceeds $10,000. Accordingly, the
court finds that the requisite amount in controversy is present.
The court also finds that plaintiffs have raised a substantial
federal question, i.e., whether Illinois is complying with EAHCA,
the Rehabilitation Act, and the Constitution. Hence, plaintiffs
have satisfied the second requirement under § 1331(a), i.e., that
the action arise under the Constitution, laws, or treaties of the
United States. Therefore, the court has jurisdiction pursuant to
28 U.S.C. § 1331(a) (1976).
B. 28 U.S.C. § 1343 (1976).
Defendants argue that this action does not involve an Act of
Congress providing for equal rights or protecting civil rights.
The court rejects defendants' argument.
Defendants rely on Chapman v. Houston Welfare Rights
Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979),
to support their position. In Chapman, the Supreme Court held
that jurisdiction under 28 U.S.C. § 1343(3), (4) (1976) does not
encompass "a claim that a state welfare regulation is invalid
because it conflicts with the Social Security Act." 441 U.S. at
603, 99 S.Ct. at 1908. In reaching that conclusion, the Court
found that neither 42 U.S.C. § 1983 (1976) nor the Social
Security Act, 42 U.S.C. § 301, et seq. (1976), is an act of
Congress providing for equal rights within the meaning of §
1343(3) or providing for the protection of civil rights within
the meaning of § 1343(4). 441 U.S. at 618, 621, 623, 99 S.Ct. at
1916, 1917, 1918.
Although the Court was not considering and made no finding with
respect to EAHCA, defendants contend that the Chapman holding
applies in this case. Support for defendants' position is found
in the Court's statement that:
The Congress that enacted § 1343(3) was primarily
concerned with providing jurisdiction for cases
dealing with racial equality; the Congress that
enacted § 1343(4) was primarily concerned with
providing jurisdiction for actions dealing with the
civil rights enumerated in 42 U.S.C. § 1985, and
most notably the right to vote. While the words of
these statutes are not limited to the precise claims
which motivated their passage, it is inappropriate to
read the jurisdictional provisions to encompass new
claims which fall well outside the common
understanding of their terms.
441 U.S. at 621, 99 S.Ct. at 1917 (footnote omitted). The Court
also stated, however, that "while an Act of Congress must in fact
deal with equal or civil rights to support jurisdiction under §
1343, it need not be stated only in terms of racial equality."
Id. at 622-23 n. 41, 99 S.Ct. at 1916-17 n. 41. Hence, it is
clear that while the Court wished to emphasize the limits of
jurisdiction under § 1343, it did not intend to restrict § 1343
to actions under statutes dealing with racial equality or with
those rights protected by 42 U.S.C. § 1985 (1976) (which provides
a remedy in damages for deprivations of civil rights resulting
from a conspiracy).
The issue here, then, is simply whether EAHCA and/or the
Rehabilitation Act provide for equal rights or the protection of
civil rights within the meaning of § 1343 as interpreted by the
Chapman Court. The court concludes that EAHCA is such an act.
The purpose of EAHCA is:
. . to assure that all handicapped children have
available to them . . . a free appropriate public
education which emphasizes special education and
related services designed to meet their unique needs,
to assure that the rights of handicapped children and
their parents or guardians are protected, to assist
States and localities to provide for the education of
all handicapped children, and to assess and assure
the effectiveness of efforts to educate handicapped
Pub.L. 94-142, § 3(c), 89 Stat. 775 (1975). The legislative
history also indicates that the Act was intended to provide for
equal rights. For example, the Senate Report states:
S.Rep.No.94-168, 94th Cong., 1st Sess. 9, reprinted in 1975 — 2
U.S.Code Cong. and Adm.News 1425, 1433. Moreover, statements made
by various senators during the Conference Report on the Senate
bill (which was passed in lieu of the House bill) support the
finding that EAHCA provides for equal rights. Note, for example,
the remarks of Senator Williams (author of the Senate bill and
chairperson of the Labor and Public Welfare Committee):
The Constitution provides that all people shall be
treated equally, but we know that, while all
youngsters have an equal right to education, those
who live with handicaps have not been accorded this
right. This measure fulfills the promise of the
Constitution that there shall be equality of
education for all people, and that handicapped
children no longer will be left out.
121 Cong.Rec. 37409, 37413 (1975).
Given the Act's purpose and history, the court can only
conclude that EAHCA provides for equal rights and the protection
of civil rights within the meaning of § 1343(3), (4).
Accordingly, the court has jurisdiction over the EAHCA claims
pursuant to 28 U.S.C. § 1343(3), (4) (1976). Accord, Cruz v.
Collazo, 84 F.R.D. 307 (D. Puerto Rico 1979).
III. Stating A Claim For Which Relief May Be Granted
Defendants argue that the complaint should be dismissed
pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state a
claim for which relief may be granted. They make this assertion
with respect to plaintiffs' claims under EAHCA, the
Rehabilitation Act, the Fourteenth Amendment, and the Illinois
Constitution. The court finds that the complaint states a claim
for relief under EAHCA, the Rehabilitation Act, and the Equal
Protection Clause of the Fourteenth Amendment, but not under the
Due Process Clause of the Fourteenth Amendment or the Illinois
Defendants contend that plaintiffs fail to state a claim under
EAHCA because Rule 3.21 "does not operate to deny handicapped
children an education but only to limit what may reasonably be
considered as `related services' to special education programs."
Defendants DeVito and Miller's Memorandum of Law in Support of
Their Motion to Dismiss at 42 (filed March 18, 1980)
("Defendants' Memo"). Defendants' own words focus on the issue in
this case: whether counseling and therapeutic services are
There is no dispute that plaintiffs are entitled to a free
appropriate education. EAHCA defines "free appropriate education"
as special education and related services. If counseling and
therapeutic services are related services, then they are
components of the free appropriate education to which plaintiffs
are entitled. By asserting that they are not related services,
defendants are arguing the merits of the case. The court, of
course, does not decide the merits on a motion to dismiss. It
only determines whether the allegations in the complaint, taken
as true, state a claim for relief. Here, the complaint alleges
that counseling and therapeutic services are related services.
Related services are to be provided under 20 U.S.C. § 1412, 1414
(1976). Plaintiffs, therefore, have stated a claim under EAHCA.
B. The Rehabilitation Act
Defendants contend that plaintiffs have failed to state a claim
under § 504 of the Rehabilitation Act. That section provides: "No
otherwise qualified handicapped individual in the United
States . . . shall, solely by reason of his handicap, be excluded
from the participation in, be denied the benefits of, or be
subjected to discrimination under
any program or activity receiving Federal financial
assistance. . . ." 29 U.S.C. § 794 (1976) (amended 1978). At
least one court has found that the Act imposes a duty on school
districts to devise a program that enables each individual
handicapped student to receive a free appropriate education. Doe
v. Marshall, 459 F. Supp. 1190, 1191 (S.D.Tex. 1978). That case,
however, was decided before the Supreme Court's ruling in
Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct.
2361, 60 L.Ed.2d 980 (1979), which should be considered here.
In Davis, the Court found that section 504 did not compel a
nursing school to significantly change its program and lower its
standards in order to admit a deaf applicant. 442 U.S. at 413-14,
99 S.Ct. at 2370-71. The respondent argued that one of HEW's
regulations (45 C.F.R. § 84.44) required extensive modifications
of the school's program in order to accommodate respondent's
special needs. 442 U.S. at 409-10, 99 S.Ct. at 2368-69. After
rejecting respondent's interpretation of the regulation, the
Court found that if the regulation did require substantial
adjustments beyond those necessary to eliminate discrimination,
it would be invalid. Id.
The Court reached this conclusion by analyzing the
Rehabilitation Act. Writing for the Court, Justice Powell noted
that Congress recognized "the distinction between the evenhanded
treatment of qualified handicapped persons and affirmative
efforts to overcome the disabilities caused by handicaps." Id. at
410, 99 S.Ct. at 2369. Because section 501(c) of the Act only
encourages state agencies to implement affirmative action
policies, whereas sections 501(b) and 503(a) require federal
agencies to take affirmative action to hire the handicapped, the
Court decided that section 504 was not intended "to impose an
affirmative action obligation on all recipients of ...