The opinion of the court was delivered by: Shadur, District Judge.
William S. ("William"), a minor child, by his mother and
next friend Geraldine S. ("Geraldine"), has brought this class
action against a number of state and local educational
officials and entities.*fn1 William contends
he and other class members*fn2 are handicapped children
entitled to an education paid for by defendants, including
appropriate "related services" necessary to enable them to
meet with success in school. William asserts defendants have
refused to provide him those "related services," owing to a
state policy of distinguishing between "educational" and
"non-educational" costs and refusing to fund the latter. That
refusal, William argues, violates:
Defendants have moved to dismiss the complaint on various
grounds. In addition, the local school district defendants
have filed a cross-claim against the State Board and its
officials and a third-party claim against a number of state
agencies implicated by William's claim for "related
In that respect, the State Board and its
officials have moved to dismiss the cross-complaint, and the
other state agencies providing "related services" have moved
to dismiss the third-party complaint.
For the reasons contained in this memorandum opinion and
order, all the motions to dismiss are denied.
William is a nine year old suffering from severe multiple
handicaps: moderate to profound bilateral hearing loss, mild
to moderate functional mental retardation, and spastic
quadriplegia affecting his left side. William suffers three to
four grand mal seizures per day, though he is on medications
that suppress, at least somewhat, the outward symptoms of the
In 1977 William was living with Geraldine within the
jurisdiction of School District 25, Arlington Heights,
Illinois. District 25 determined it could not provide a
program appropriate to William's needs, as required by federal
and state laws and regulations. Consequently William was
placed at St. John's School for the Deaf in Milwaukee for the
1977-78 academic year at District 25's expense. When the
placement at St. John's proved "highly successful" for
William, the placement and District 25's funding continued for
another year. During 1978 and early 1979 William made
"considerable progress" at St. John's in the development of
communication and self-help skills.
All went well until Geraldine moved from Arlington Heights
to Barrington, Illinois, within Community Unit District 220
("District 220"). In June 1979 District 220 told Geraldine it
would not pay to continue William's placement at St. John's,
so that William would have to attend a public school program.
On October 25, 1980 District 220 held an EAHCA hearing to
give William's parents the opportunity to contest the
District's conclusions that:
District 220's hearing officer formally found William was "a
multiply handicapped child" who required "a complete
Communication Program, Physical Therapy, Occupational Therapy
and Behavior Modification," involving a "non educational
residential placement" not an educational one. That decision
was based on Rule 8.03 of the Emergency Rules and Regulations
To Govern the Operation and Administration of
Special Education. In effect the hearing officer absolved
District 220 from responsibility for William's placement,
except for its purely "educational" components.
"Noneducational" costs were to be borne by state agencies other
than the State Board of Education or District 220.
Geraldine appealed the hearing officer's decision to the
State Superintendent, as permitted by federal and state rules.
Concerned that their son — still at RIHAP — "was languishing in
an inappropriate program and potentially harmful environment,
subject to irreparable physical and mental damage," William's
parents placed him at the Institute of Logopedics in Wichita,
Kansas, at their own expense.
On appeal the State Superintendent set aside the hearing
officer's recommendation on grounds not here relevant. But
William alleges the Superintendent's decision made clear the
policy of not providing the "related services" William needs
to receive a viable education:
The Local School District's representatives are
not responsible for recommending or providing
services needed by the child as the result of
non-educationally related family difficulties.
Again in accord with federal and state rules, the State
Superintendent ordered another multidisciplinary meeting to
develop an Individualized Education Plan for William. William
argues such a pursuit of administrative remedy is fruitless in
his case, since "the implication is clear that the statewide
policy of dividing children into `educational' vs.
`non-educational' components prevents the most appropriate and
beneficial placement from being made."
This is so, William urges, because District 220 and the
State Board of Education and its oficials — by refusing to fund
"non-educational" components — force recourse to other state
agencies, who often will not or cannot fund them. As a result,
handicapped children like William are denied an education
altogether, for residential placements will not accept children
when only their educational component will be funded. In that
case the sole alternative, available only to well-to-do
parents, is parental funding of "non-educational" components.
William asserts violations of his rights and those of
children similarly situated under a number of state and
federal provisions. This opinion will address in turn the
several motions to dismiss the complaint for failure to state
a cause of action and on standing grounds, as well as
preliminary damage issues.
Private Actions Under EAHCA
Defendants do not contest that William is handicapped and
entitled to EAHCA's protections. Nor do they cavil with the
facts that special education in Illinois is funded in part
with federal funds appropriated under EAHCA, and that to
retain such funding the state and its officials must comply
with the federal statute and regulations.*fn5
In part those regulations require provision of "related
services" to a handicapped child when necessary to enable the
child to benefit from special education. 34 C.F.R. § 300.13.
Only where the states provide such "related services" — like
physical therapy, occupational therapy and psychiatric help —
can many handicapped children learn at all, and thereby receive
what EAHCA promises: "a free appropriate public education."
Kruelle v. New Castle County School District, 642 F.2d 687, 694
(3d Cir. 1981); Tatro v. State of Texas, 625 F.2d 557, 563-64
(5th Cir. 1980); North v. D.C. Board of Education, 471 F. Supp. 136,
141 (D.D.C. 1979).
Whether the education defendants' policy denies "a free
appropriate education" under EAHCA will be tested later in
this litigation. For the present the education defendants'
motion to dismiss advances the sole contention that EAHCA
creates no private right of action to enforce its substantive
guarantees. That argument must be rejected.
Defendants rely upon Judge Getzendanner's decision in
McCowen v. Hahn, No. 78 C 4233 (N.D.Ill., filed July 27, 1981).
In sum they argue that while 20 U.S.C. § 1415 certainly allows
parents the opportunity to challenge a school district's
recommended program for an individual child (cf. Anderson v.
Thompson, 658 F.2d 1205 (7th Cir. 1981)) parental remedies go
no farther: They may not sue to enforce EAHCA's substantive
requirements. If states are violating EAHCA, defendants assert
the appropriate remedy is a funding cut-off by the federal
government, or even an action for an injunction preventing such
funding. See McCowen, slip op. at 13.
This Court finds Judge Marshall's recent ruling in Parks v.
Pavkovic, 536 F. Supp. 296 (N.D.Ill. 1982) more persuasive.
Defendants' argument ignores the broad and clear language of
20 U.S.C. § 1415(b)(1)(E) requiring that state and local
educational agencies provide handicapped children and their
parents with (emphasis added):
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.
If such complaints are not favorably acted upon by the state
or local agency, Section 1415(e)(2) specifically gives the
parents the right to bring a civil action in federal district
court. As Judge Marshall noted in Parks, at 301, Section
1415(b)(1)(E) is phrased in the alternative, and it is thus
clear the complaint may be addressed solely to the alleged
failure to provide a free appropriate public education.
EAHCA specifies what is meant by "a free appropriate public
education": It includes "special education and related
services." 20 U.S.C. § 1401(18). "Related services" means,
20 U.S.C. § 1401(17) (emphasis added):
transportation, and such developmental, corrective,
and other supportive services (including speech
pathology and audiology, psychological services,
physical and occupational therapy, recreation, and
medical and counseling services, except that such
medical services shall be for diagnostic and
evaluation purposes only) as may be required to
assist a handicapped child to benefit from special
education . . .
In short EAHCA does precisely what Judge Marshall concluded
it does. It explicitly provides both a right to present a
complaint that William is not being provided a free
appropriate public education and a right to obtain review in
Defendants further contend that Pennhurst State School &
Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d
694 (1981) blocks William's EAHCA claim. Pennhurst held that
one section, 42 U.S.C. § 6010, of the Developmentally Disabled
Assistance and Bill of Rights Act of 1975 was merely a
statement of congressional policy for treatment of the
handicapped, rather than a condition imposed by Congress for
grants of federal funds.
Pennhurst, 451 U.S. at 17, 101 S.Ct. at 1539, teaches that if
Congress wants to condition federal funds on certain state
behavior, it must do so unambiguously. EAHCA § 1412 does just
In order to qualify for assistance under this
subchapter in any fiscal year, a State shall
demonstrate . . . that the following conditions
are met: (1) The State has in effect a policy
that assures all handicapped children the right
to a free appropriate public education.
1284-87 (7th Cir. 1977), held Section 504 creates both
"affirmative rights" and a private cause of action. To invoke
Section 504 a plaintiff must allege that he is an "otherwise
handicapped person" and "an intended beneficiary of the federal
financial assistance received." Simpson v. Reynolds Metal Co.,
, 1227 (7th Cir. 1980). William is certainly a
"handicapped person" under 29 U.S.C. § 706(7)(B). And he is the
intended beneficiary of funds available through EAHCA.
Only one element of a Section 504 cause of action may be
disputed here: whether William has been excluded from or
denied the benefits of EAHCA "solely by virtue of his
handicap." That nexus is plain. William alleges he has been
effectively denied any education at all because the state
refuses to fund "related services," a precondition to his
ability to learn. William's need is, of course, solely a
result of the severity of his handicap. Whatever causal link
need be established between harm and handicap under Section
504, it is present here. Cf. McCowen, slip op. at 19.
Defendants cite no cases to buttress their motion to dismiss
William's Equal Protection Clause claim. Education is a
fundamental interest for Fourteenth Amendment equal protection
purposes. See Brown v. Board of Education, 347 U.S. 483, 74
S.Ct. 686, 98 L.Ed. 873 (1954); see also Mills v. Board of
Education, 348 F. Supp. 866 (D.D.C. 1972); Pennsylvania Ass'n
for Retarded Children v. Pennsylvania, 334 F. Supp. 1257
(E.D.Pa. 1971) (three judge court), modified 343 F. Supp. 279
To withstand a motion to dismiss, William need only allege
he and others in his category have been deprived of the right
to education, while other non-handicapped children enjoy that
right. That places the burden on the state either (a) to rebut
the allegation of deprivation or (b) to justify the
deprivation by asserting some legitimate state interest.
Neither can be accomplished through a motion to dismiss.
Defendants have not argued William's state law claims (under
both the Illinois School Code and Art. I, § 2 of the state
Constitution) do not state a cause of action. They have rather
contended such claims must be dismissed under United Mine
Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16
L.Ed.2d 218 (1966). Because this opinion has sustained the
federal claims, the pendent state claims may remain in the case
William's Complaint alleges sufficient facts to bring him
within the Anderson exception, at least at this stage. To
recover the expenses of the unilateral placement in Wichita,
William will of course have to flesh out the "exceptional
circumstance" with proof.
There remains, however, the question whether William may
recover the $525,000 he seeks in "general damages" under
Complaint Counts I and II.*fn6 Anderson, 658 F.2d at 1213-14,
forecloses such a recovery under EAHCA, for the exceptional
circumstance "damages" permitted there were reimbursement for
the costs of services and not tort damages. This Court has
already held that Section 504 may not be used to "take an end
run" around Anderson and that ". . . Anderson compels the
conclusion that [plaintiffs] may not seek damages under Section
504 for a claimed wrongful exclusion from the benefits of
EAHCA" (emphasis in original). Reineman v. Valley View
Community School District, 527 F. Supp. 661, 664-65 (N.D.Ill.
1981). Any other result would create an exception to Anderson
that would swallow up its rule, because Section 504 is always
available where a plaintiff claims a wrongful exclusion from
William's Section 504 claim is precisely one of wrongful
exclusion: He asserts he was deprived of the benefits of a
federally-assisted program, EAHCA, solely on account of his
handicap. No other type of discrimination is alleged; no other
federal program is implicated. Anderson and Reineman therefore
apply with full force to bar William's general damage claim
under either EAHCA or Section 504.
William's prima facie equal protection claim poses a wholly
different problem. General damages are normally recoverable
for violation of equal protection rights by state officials,
42 U.S.C. § 1983, as are attorneys' fees and costs under
42 U.S.C. § 1988. That result should not be changed by the fact
that Congress did not desire to create a general damage remedy