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United States District Court, Northern District of Illinois, E.D

March 31, 1982


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:

    (1) Illinois' obligations under two federal
  statutes, the Education for All Handicapped
  Children Act of 1975 ("EAHCA"), 20 U.S.C. § 1401-61,
  and Section 504 of the Rehabilitation Act
  of 1973, 29 U.S.C. § 794;

    (2) William's right to equal protection of the
  laws under both the federal and state
  constitutions; and

    (3) Illinois' own commitment to handicapped
  children in Article 14 of the Illinois School
  Code, Ill.Rev.Stat. ch. 122, ¶¶ 14-1.01-14-14.01.

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 services."*fn3 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 seizures.

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.

During that summer William attended a summer school program operated by Special Education District of Lake County (SEDOL), a cooperative serving District 220 among others. William's residential attendance in the summer program was insisted upon by District 220; but when William returned home from the program the progress he had shown at St. John's had ceased, and he had become more destructive, aggressive and uncontrollable. During that same summer William's left leg was operated on to lengthen a tendon. Since the surgery William has needed intense, regular and ongoing physical therapy.

After the SEDOL summer program fiasco, Geraldine tried to place William in a number of private programs, among them those at Michael Reese Hospital, Chicago Read Mental Health Center, the Misericordia Program, the Augustana Nursery and the Glenkirk School for the Handicapped. All those facilities, except the Michael Reese Respite Program (a short-term diagnostic facility), concluded William was not an appropriate candidate for their programs, due to the severity and multiplicity of his handicaps. Both the Respite Program and Chicago Read recommended residential placement for William, rather than hospitalization or any other disposition.

Between July 1979 and July 1980 William lived with his mother in Barrington. During the 1980 spring term William attended Hawthorne School, a special education school served by SEDOL. Throughout the period William's behavior worsened, occasionally culminating in "acts of violence" toward his mother and 10 year old brother. Finally, in July 1980 William's parents placed him in the state's Department of Mental Health and Developmental Disabilities/Regional Intake and Habilitation Program (RIHAP) in Tinley Park, Illinois. But the RIHAP placement was unsatisfactory to them, largely because the program was more custodial than treatment-oriented.

On September 15, 1980 District 220 held a multidisciplinary conference, as required by EAHCA, to consider the issues involved in William's placement. Those present included William's parents, RIHAP and SEDOL staff members and the parents' representative. It was the multidisciplinary team conclusions that:

    (1) William was a qualified handicapped child
  eligible for special education services.

    (2) Residential placement in a community
  "homelike environment" was necessary for William
  to achieve any possible degree of success in

    (3) Should such an environment not prove
  workable, the best alternative was residential
  placement in a private, non-public comprehensive
  treatment center.

Based on the team's recommendations, Geraldine agreed to a "trial placement" of William with specialized, state-licensed parents who were caring for one multiply-handicapped child and three mentally handicapped children. After two days, however, the foster parents concluded they "would not be able to provide Billy with the degree and intensity of supervision that he needs." Following William's discharge from the foster home placement, Geraldine returned William to RIHAP.

On October 25, 1980 District 220 held an EAHCA hearing to give William's parents the opportunity to contest the District's conclusions that:

    (1) It was not District 220's responsibility to
  provide a residential placement to a handicapped
  child when the reasons for such placement were
  not "educational."

    (2) If William were placed in a "homelike"
  setting within District 220 boundaries, the
  District could provide an appropriate
  "educational" program but was not required to
  service "noneducational" needs.

    (3) Responsibility for serving "noneducational"
  needs of handicapped children rested with another
  state agency, not the local school district.

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 this Court.

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 that:

  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.

Pennhurst is therefore not applicable to William's cause of action, for the provision of "a free appropriate public education" is an express condition for Illinois' receipt of federal funds under EAHCA.

Rehabilitation Act § 504

Defendants also say William cannot state a valid claim under Rehabilitation Act § 504, 29 U.S.C. § 794:

  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

Lloyd v. Regional Transportation Authority,
548 F.2d 1277, 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., 629 F.2d 1226, 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.

Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), urged on the Court by defendants, has no relevance. Southeastern held Section 504 did not compel affirmative action in the sense of extensive modifications of a nursing program to overcome plaintiff's deafness. William asks no "extensive modification" — or indeed any modification at all. Instead he seeks funding for services already offered in the marketplace.

Equal Protection

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 (1972).

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.

State Law Claims

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 as well.


Defendants have moved to dismiss — or more properly to strike — William's damage claims. Unquestionably William has a prima facie right to one category of damages: reimbursement for his placement at the Institute of Logopedics. True enough EAHCA § 1415(e)(3) provides:

  During the pendency of any proceedings conducted
  pursuant to this section, unless the State or
  local educational agency and the parents or
  guardian otherwise agree, the child shall remain
  in the then current educational placement of such
  child. . . .

See Stemple v. Board of Education, 623 F.2d 893 (4th Cir. 1980). But Anderson v. Thompson, 658 F.2d 1205, 1213-14 (7th Cir. 1981), held that recovery of expenses was available in "exceptional" circumstances, one of which was a situation in which a child's physical health would have been endangered by remaining in his or her present placement.

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 EAHCA's benefits.

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 under EAHCA.

William's EAHCA and Section 504 claims involve different legal issues from his equal protection claim, and they will involve different kinds of proof at trial. Under EAHCA and Section 504, for example, William has an unquestioned entitlement to special education and related services. Thus the key issue those claims present is whether "related services" include the things William claims he needs in order to learn. But William does not have a clear entitlement to special education of any kind under the Equal Protection Clause. Indeed this action seeks to establish that very entitlement as a constitutional matter.

Reineman's holding thus proceeded from the fact that without EAHCA there would be no viable Section 504 claim at all. In contrast, EAHCA's existence has no impact whatever on William's equal protection claim. No possibility of an "end run" exists in that respect. This Court therefore concludes that Congress did not intend, by passing EAHCA, to do away with the general damage remedy under the Equal Protection Clause and Section 1983 for handicapped children who claim unequal treatment of their right to an education.*fn7

Defendants also invoke the Eleventh Amendment to block any general damage award in favor of William, Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358 (1979); Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974). But the individual defendants have not been sued in their "official capacities." Shashoua v. Quern, 612 F.2d 282, 284 (7th Cir. 1979) teaches that the Eleventh Amendment applies only where no personal involvement by the state official is claimed.*fn8 William's Complaint alleges ample personal involvement by all individual defendants.*fn9

"Local" Defendants' Cross-Claim

District 220, Slocum and SEDOL have cross-claimed against Gill, Muirhead and the State Board*fn10 on a simple theory: They say they have refused to pay for "non-educational" placements under EAHCA because the state education officials and the State Board have threatened not to reimburse them for such funding. Because in effect they have been faithfully following orders, they ask reimbursement from the state defendants for any damages awarded to William. They also seek a concomitant declaratory judgment as to which agency, state or local, is responsible to pay for "noneducational" placements if such placements must indeed be funded.

Though the state defendants have moved to dismiss the cross-complaint for failure to state a cause of action, they have failed to adduce serious arguments in support of their motion. In any event, EAHCA places responsibility on "the State" to adopt "a policy that assures all handicapped children the right to a free appropriate public education" (20 U.S.C. § 1412(1)) and to develop the plan to implement that policy (id. at § 1412(2)(B)). Illinois' School Code provides for reimbursement to local districts by the State Board according to a formula in Ill.Rev.Stat. ch. 122, § 14-7.02. If William should prevail in this action, the local school district defendants would plainly have a cause of action against the State Board and its officials. Accordingly the motion to dismiss the cross-complaint is denied.

"Local" Defendants' Third-Party Complaint

District 220, Slocum and SEDOL have also filed a third-party complaint against a number of state agencies that provide "related services." They allege those agencies are parties to a "Memorandum of Understanding" under which they agreed to participate in placement of handicapped children in residential facilities where the placement was for "non-educational" reasons. That agreement is claimed to be merely reflective of the third-party defendants' obligations to handicapped children under a variety of Illinois statutes and regulations. See, e.g., Ill.Rev.Stat. ch. 91 1/2, ¶¶ 100-7.1, 100-7.2, 100-11.1, 100-19; Ill. Rev.Stat. ch. 23, ¶¶ 5005, 5005a. Allegedly the state agencies have failed to live up to their agreement and the separate legal obligations requiring them to participate in such placements.

Third-party defendants move to dismiss on a variety of grounds, none requiring extended discussion. They first assert third-party plaintiffs' failure to state a claim. But the existence of the Memorandum, statutes and regulations establishes a prima facie case for requiring the third-party defendants' participation in placements. In fact the Memorandum alone is enough to defeat the motion, for the inference favorable to third-party plaintiffs is that the Memorandum is a binding agreement mandating the cooperation of the listed state agencies in "non-educational" placements of handicapped children.

Nor do third-party defendants' jurisdictional and procedural arguments fare better. Fed.R.Civ.P. 14(a) certainly allows this Complaint, since third-party defendants may all be "liable to" the local school districts — may be required to provide services to handicapped children with "non-educational" difficulties — if William prevails in the main action. And the denial in third-party plaintiffs' Answer of this Court's jurisdiction over them does not inhibit their impleading third-party defendants that would be in the case if the jurisdictional arguments were rejected.


All motions to dismiss — by defendants, by cross-defendants and by third-party defendants — are denied. Each party that has not previously answered the complaint, cross-complaint or third-party complaint, as the case may be, is ordered to file such an answer on or before April 30, 1982. Plaintiff is ordered to address the issue of class certification expeditiously, as contemplated by Fed.R.Civ.P. 23(c)(1). This action is set for a further status report May 7, 1982 at 9 a.m.

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