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PARKS v. PAVKOVIC

March 19, 1982

RICHARD PARKS, MARILYN PARKS, AND LESTER PARKS, BY HIS PARENTS AND NEXT FRIENDS, RICHARD PARKS AND MARILYN PARKS, ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
IVAN PAVKOVIC, DIRECTOR, DEPARTMENT OF MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES, EDWARD COPELAND, CHAIRMAN, ILLINOIS STATE BOARD OF EDUCATION, RUTH LOVE, SUPERINTENDENT, CHICAGO PUBLIC SCHOOLS, PATRICIA BARGER, REPRESENTATIVE, DEPARTMENT OF MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES, ROBERT MANDEVILLE, DIRECTOR, BUREAU OF THE BUDGET, WILLIAM KEMPINERS, DIRECTOR, DEPARTMENT OF PUBLIC HEALTH, JEFFREY MILLER, DIRECTOR, DEPARTMENT OF PUBLIC AID, GREGORY COLER, DIRECTOR, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, ROBERT GRANZEIER, ACTING DIRECTOR, DEPARTMENT OF VOCATIONAL REHABILITATION, DONALD GILL, STATE SUPERINTENDENT OF EDUCATION, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Marshall, District Judge.

  MEMORANDUM OPINION

Plaintiffs in this action are Lester Parks and his parents and next friends, Richard and Marilyn Parks.*fn1 Lester is currently 17 years old, and has autistic characteristics, moderate mental retardation, severe emotional disturbances, speech and language impairments, and behavioral disorders. Because of these handicaps, Lester qualifies as a handicapped child entitled to the protections of the Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1401-61 (1976), see id. § 1401(1) ("The term `handicapped children' means mentally retarded, . . . speech impaired, . . . seriously emotionally disturbed [children] . . . who by reason thereof require special education and related services."), and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Supp. II 1978), see id. § 706(7)(B) ("[T]he term `handicapped individual' means . . . any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such impairment, or (iii) is regarded as having such an impairment."). Lester is in need of special education and related services in a residential facility due to the severity of his handicaps. In early 1980, Lester resided in a facility called the New Hope Living and Learning Center, which provided Lester with educational and other services enabling him to receive an education which he would not have been able to receive in a nonresidential public school. At the time, however, Lester's parents feared that New Hope was in danger of closing.*fn2 As a result, they requested help from the Chicago Board of Education ("CBE") in locating and placing Lester in a new facility suitable for his educational needs. CBE never did find an appropriate placement for Lester.

At some point, it appears that someone requested that the Illinois Department of Mental Health and Developmental Disabilities ("DMHDD") also locate and place Lester in a suitable facility, for in July, 1980, DMHDD placed Lester in Willowglen Academy, a residential treatment facility in Milwaukee, Wisconsin. Lester has remained at Willowglen ever since. Plaintiffs do not challenge DMHDD's placement of Lester; to the contrary, they appear to be satisfied with the education Lester is receiving at Willowglen. What they do challenge, however, is the failure of various state agencies and CBE to assume the full cost of Lester's placement at Willowglen.*fn3 Plaintiffs allege that Lester has a right, under the Education for All Handicapped Children Act ("EHA") and § 504 of the Rehabilitation Act*fn4 to a free appropriate public education, and that this right has been denied by defendants' refusal to assume all the costs associated with Lester's education. The specific allegations, as yet undenied by defendants, are that: (1) DMHDD refuses to assume $100 per month of the costs of Lester's placement at Willowglen, denominating that amount "responsible relative liability." Thus, for every month since July, 1980, the "Individual Care Grant" Lester receives from DMHDD has been reduced by $100. (2) DMHDD has reduced its funding of Lester's placement further by refusing to pay for amounts it claims are attributable to "clothing and allowance." DMHDD refused to pay $17.24 per month for this reason from July, 1980 through December, 1980, and has refused to pay $1.42 per day from January 1, 1981 through December 31, 1981 on the ground that this amount was attributable to "clothing, medical supplies and purchased services."*fn5 (3) DMHDD has not yet approved a 1982 rate for Lester's expenses at Willowglen, and is paying those expenses at a lower, 1981 rate.*fn6 (4) DMHDD has refused to pay Lester's speech therapy costs, payable to "Bell Therapy," incurred prior to August 17, 1981. (5) DMHDD, CBE and the Illinois State Board of Education ("ISBE") have refused to pay Lester's special education and related services expenses for periods prior to the time Lester and Willowglen were approved for funding. Willowglen was not approved until September, 1981, and Lester was not approved until January 22, 1982. There is some dispute as to why this delay occurred. The state defendants blame Willowglen for its failure to obtain earlier approval. As to the failure to approve Lester for funding prior to January 22, 1982, there is no explanation in the record. Whatever the reasons, there is no allegation that Lester is at fault for either delay. (6) ISBE, and apparently DMHDD and CBE as well, have refused to pay for Lester's tuition at rates in excess of the rate approved for Willowglen by the Governor's Purchased Care Review Board ("GPCRB"). GPCRB is responsible under state law for ensuring that the state meets its obligations to provide handicapped students with an appropriate education by promulgating appropriate guidelines and standards. See Ill.Rev.Stat., ch. 122, § 14-7.02 (1979). The current GPCRB-approved rate does not meet Lester's actual expenses at Willowglen.

Sometime in 1981, Lester's parents requested a due process hearing from CBE at which they would be able to air their complaints about CBE's alleged failure to provide Lester with an appropriate free education. There is some dispute as to exactly when the hearing was requested. What is agreed is that a hearing was held on December 1, 1981, and a decision rendered on December 8, 1981. The hearing officer decided that CBE had breached its duty to provide Lester with an appropriate free public education, and required CBE to assume Lester's costs in the future.*fn7 However, the officer declined to order CBE to assume responsibility for costs assessed to Lester's parents in the past; the decision has prospective force only. Plaintiffs appealed the officer's decision on January 5, 1982. Apparently because of a delay caused by CBE,*fn8 the case has not been decided yet by ISBE, despite the fact that federal law requires ISBE to reach a final decision within 30 days of receipt of plaintiffs' request for review. See 34 C.F.R. § 300.512(c).

At the present time, Lester has an outstanding bill at Willowglen in the amount of $2,154.53.*fn9 Because of the unpaid bill, Willowglen has issued a discharge notice to Lester which will become effective on March 25, 1982. The notice was issued on January 25, 1982. Plaintiffs, no longer feeling capable of waiting until their appeal was decided by ISBE, filed the instant action. Named as defendants were Ivan Pavkovic, Director of DMHDD, Edward Copeland, Chairman of ISBE, Dr. Ruth Love, Superintendent of CBE, Robert Mandeville, Director of the Illinois Bureau of Public Aid, Gregory Coler, Director of the Illinois Department of Children and Family Services, Robert Granzeier, Acting Director of the Illinois Department of Vocational Rehabilitation, Donald Gill, Illinois State Superintendent of Education, William Kempiners, Director of the Illinois Department of Public Health, and Patricia Barger, an employee of DMHDD. Defendants Mandeville, Miller, Coler, Granzeier, Gill, Barger and Kempiners are members of GPCRB. This court's jurisdiction rests on 28 U.S.C. § 1331 (West Supp. 1981) and 20 U.S.C. § 1415(e) (1976). Currently before the court is plaintiffs' motion for preliminary injunctive relief requiring defendants to pay Lester's outstanding bill so that Lester will not be discharged from Willowglen prior to trial on the merits.

I

While defendants agree that Lester is handicapped and entitled to the protections of the EHA, they do not agree that he has a private right of action to enforce the provisions of the Act by means of the instant suit. There is authority for the proposition that there is no private right of action, under the ERA, to obtain judicial review on the merits of the decisions of state and local educational agencies regarding the provision of a free appropriate public education to handicapped children. See McCowen v. Hahn, No. 78 C 4233, slip op. at 8-11 (N.D.Ill. July 27, 1981); Miener v. Missouri, 498 F. Supp. 944 (E.D.Mo. 1980) rev'd in relevant part, 673 F.2d 969 (8th Cir. 1982); Loughran v. Flanders, 470 F. Supp. 110, 114 (D.Conn. 1979). However, this position has been rejected by two courts of appeal, including the court of appeals for this circuit. See Miener v. Missouri, 673 F.2d 969, at 975 (8th Cir. 1982); Anderson v. Thompson, 658 F.2d 1205, 1210 n. 7 (7th Cir. 1981).*fn10 These cases hold that the EHA, in 20 U.S.C. § 1415 (1976), explicitly creates a private right of action, and permits plaintiffs in those actions to obtain review, on the merits, of the relevant educational agencies' decisions regarding the provision of a free appropriate public education to the plaintiffs.

In § 1415(b)(1)(E), the EHA requires that state and local educational agencies provide handicapped children and their parents with

  an opportunity to present complaints with respect
  to any matter relating to the identification,
  evaluation, or educational placement of the
  child, or the provision of a free appropriate
  public education to such child.

Since the statute is phrased in the alternative, it is clear that the complaint can be addressed solely to the alleged failure to provide a free appropriate public education.*fn11 Lester's parents presented such a complaint, and received a hearing as required by § 1415(b)(2), and then appealed as was their right under § 1415(c). Having taken these steps, Lester and his parents are explicitly provided with

  the right to bring a civil action with respect to
  the complaint presented pursuant to this section,
  which action may be brought in any State court of
  competent jurisdiction or in a district court of
  the United States without regard to the amount in
  controversy. Id. § 1415(e)(2).

The EHA explicitly provides both a right to present a complaint regarding the provision of a free appropriate public education for Lester, and to obtain review in this court in order to protect that right. See 121 Cong.Rec. 37414-16 (1975) (remarks of Sen. Williams); 121 Cong.Rec. 37031 (1975) (remarks of Rep. Mink). See also Sen.Rep.No.94-168, 94th Cong., 1st Sess. 26 (1975), reprinted in [1975] U.S.Code Cong. & Ad.News 1425, 1450 (1975) [hereinafter cited as Sen. Rep.].*fn12 Defendants' private right of action argument is without merit.*fn13

II

Closely related to the private right of action question is the question whether plaintiffs have properly exhausted their administrative remedies as required by the EHA.*fn14 Defendants do not argue the point. Nevertheless, the exhaustion question is sufficiently jurisdictional so as to require us to consider it on our own motion.

While § 1415(e)(2) of the EHA creates a private right of action, that right is only granted to a party "aggrieved" by the findings of the state agency. However, plaintiffs have not yet received a decision from ISBE on their appeal from the findings of the CBE hearing officer. This raises the question of whether plaintiffs are entitled to proceed in this court until ISBE has acted on their appeal, i.e., are they, as yet, "aggrieved."

Exhaustion of administrative remedies is not required under the EHA when their pursuit would be futile or meaningless as a practical matter. 121 Cong.Rec. 37416 (1975) (remarks of Sen. Williams); Ezratty v. Puerto Rico, 648 F.2d 770, 774 (1st Cir. 1981); Monahan v. Nebraska, 645 F.2d 592, 597 (8th Cir. 1981); H.R. v. Hornbeck, 524 F. Supp. 215, 219-22 (D.Md. 1981); Garrity v. Gallen, 522 F. Supp. 171, 220-21 (D.N.H. 1981); Sessions v. Livingston Parish School Board, 501 F. Supp. 251, 254 (M.D.La. 1980); Larry P. v. Riles, 495 F. Supp. 926, 963 (N.D.Cal. 1979); Doe v. Koger, 480 F. Supp. 225, 228 (N.D.Ind. 1979); Armstrong v. Kline, 476 F. Supp. 583, 601-02 (E.D.Pa. 1979), aff'd in part and remanded sub nom. Battle v. Pennsylvania, 629 F.2d 269 (3d Cir. 1980), cert. denied, 452 U.S. 968, 101 S.Ct. 3123, 69 L.Ed.2d 781 (1981); Harris v. Campbell, 472 F. Supp. 51, 54 (E.D.Va. 1979); Loughran v. Flanders, 470 F. Supp. 110, 112 (D.Conn. 1979); New York Association for Retarded Children, Inc. v. Carey, 466 F. Supp. 479, 486 (E.D.N.Y. 1978), aff'd, 612 F.2d 644 (2d Cir. 1979). For two reasons, this doctrine applies to the instant case.

First, because of the press of time, plaintiffs have had no practical opportunity to obtain a decision from ISBE. They have done everything possible to obtain speedy administrative review, but have been unable to do so through no fault of their own. In fact, it is defendants who are at fault, because of their failure to decide plaintiffs' administrative appeal within the time specified by federal law. Moreover, the exhaustion rule of the EHA was intended to preserve the status quo by ensuring that no change in the child's placement occurs pending administrative appeal. See New York Association for Retarded Children v. Carey, 466 F. Supp. at 486, see generally 20 U.S.C. § 1415(e)(3) (1976); Stemple v. Board of Education, 623 F.2d 893 (8th Cir. 1980), cert. denied, 450 U.S. 911, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981). Here, the purpose of the exhaustion requirement would be undermined by remanding plaintiffs to their administrative remedies, since it appears that they will be unable to obtain a decision before the time that Willowglen discharges Lester, and alters the status quo. When the press of time makes exhaustion impractical, it is not required by the EHA. See North v. District of Columbia Board of Education, 471 F. Supp. 136, 141 n. 8 (D.D.C. 1979).

III

In order to obtain preliminary relief, plaintiffs must demonstrate the presence of four factors: reasonable likelihood of success on the merits; that plaintiffs' remedy at law is inadequate or that plaintiffs will be irreparably harmed if they fail to obtain preliminary relief; that the threatened injury to plaintiffs outweighs the threatened harm to defendants if the injunction does not issue; and that the granting of a preliminary injunction will serve the public interest. O'Connor v. Board of Education, 645 F.2d 578, 580 (7th Cir.), cert. denied, ___ U.S. ___, 102 S.Ct. 641, 70 L.Ed.2d 619 (1981).

A

On the merits, the essence of plaintiffs' claim is that defendants have abrogated their duty to provide Lester with a free appropriate public education by failing to meet fully the costs of Lester's placement at Willowglen. Under the EHA, it is clear that Lester has a right to a free appropriate public education. The statutory preamble states that, "It is the purpose of this Act to assure that all handicapped children have available to them, within the periods specified . . . a free appropriate public education." Pub.L.No.94-142, § 3(a), (c), 89 Stat. 775 (1975). The Act goes on to state that participating states must provide a free appropriate public education to all children ages three to eighteen by September 1, 1978, and to all children ages three to twenty-one by September 1, 1980. 20 U.S.C. § 1412(2)(B) (1976). Local educational agencies in participating states are also required to provide a free appropriate public education. Id. § 1414(a)(1)(C)(ii). The legislative history makes it clear that Congress intended states to adhere to the deadlines provided in the Act. See House Rep.No.94-332, 94th Cong., 1st Sess. 15 (1975); Sen. Rep., supra at 3, 17-18, 45, U.S.Code Cong. & Ad.News 1975, 1427, 1440-41, 1468. The history of the Act makes it clear that participating states "must have a policy in current effect which assures that all handicapped children have the right to a free appropriate public education." Sen.Rep. at 45, U.S.Code Cong. & Ad.News 1975, 1468 (emphasis in original). See House Rep.No. 94-332, 94th Cong., 1st Sess. 15 (1975); 121 Cong.Rec. 37420 (1975) (remarks of Sen. Hathaway); 121 Cong.Rec. 37418 (1975) (remarks of Sen. Biden); 121 Cong.Rec. 37417 (1975) (remarks of Sen. Schweiker); 121 Cong.Rec. 37414 (1975) (remarks of Sen. Williams); 121 Cong.Rec. 37030 (1975) (remarks of Rep. Daniels); 121 Cong.Rec. 37028 (1975) (remarks of Rep. Ford); 121 Cong.Rec. 23704 (1975) (remarks of Rep. Brademas); 121 Cong.Rec. 19492 (1975) (remarks of Sen. Williams); 121 Cong.Rec. 19483 (1975) (remarks of Sen. Randolph). In sum, as one court stated, the mandate of the Act requiring the provision of a free appropriate public education "is quite unequivocal." Tatro v. Texas, 625 F.2d 557, 563 (5th Cir. 1980).*fn15

The requirement of a free appropriate public education includes the guarantee that when a handicapped child is placed at a residential facility such as Willowglen, the ...


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