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June 10, 1980


The opinion of the court was delivered by: McGARR, Chief Judge.


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 dismissed.)

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.

I. Standing

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 schools.

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 funding was 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 alternative services.

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 court disagrees.

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).

Plaintiffs also allege, and defendants also dispute, that jurisdiction is based on 28 U.S.C. § 1343. Because subsections one and two of that statute deal with conspiracy, which has not been alleged here, the court assumes plaintiffs are relying only on subsections three and four. Under subsection three, the district courts have jurisdiction over actions which have been brought to redress the deprivation, under color of state law, of any right, privilege or immunity secured by the Constitution or by any Act of Congress providing for equal rights. 28 U.S.C. § 1343(3) (1976). Subsection four provides that the district courts have jurisdiction over actions which have been brought to "recover damages or secure equitable or other relief under any Act of Congress providing for the protection of civil rights. . . ." Id. (4).

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:

  This Nation has long embraced a philosophy that the
  right to a free appropriate public education is basic
  to equal opportunity and is vital to secure the
  future and the prosperity of our people . . . It is
  this Committee's belief that the Congress must take a
  more active role under its responsibility for equal
  protection of the laws to guarantee that handicapped

  children are provided equal educational opportunity.
  It can no longer be the policy of the Government to
  merely establish an unenforceable goal requiring all
  children to be in school. [The bill] takes positive
  necessary steps to ensure that the rights of children
  and their families are protected.

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 Constitution.


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 related services.

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 ...

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