MEMORANDUM OPINION AND ORDER
This case presents claims under the Education for All
Handicapped Children Act (EAHCA), 20 U.S.C. § 1411-20, Section
504 of the Rehabilitation Act (§ 504), 29 U.S.C. § 794, and the
equal protection and due process clauses of the Fourteenth
Amendment. The plaintiffs are Mark R., a child handicapped within
the meaning of EAHCA by severe behavioral disorders, and his
parents. Defendants are several school districts and their
superintendents and a special education cooperative and its
director (the local defendants), and the Illinois State Board of
Education and its superintendent (the state defendants).
In Count I of the Second Amended Complaint, plaintiffs allege
violations of EAHCA and § 504 and seek reimbursement for the
expenses they incurred in placing Mark R. in a private
residential school. In Count II, they allege that defendants
wilfully and in bad faith violated the two statutes and request
$300,000 in damages. In Count III, plaintiffs allege that Mark R.
is entitled under Illinois law to a free appropriate public
education, that this is a property interest, and that defendants
have refused to provide this in violation of due process and
equal protection. They seek to recover $250,000 in damages.
Defendants have moved to dismiss all the counts on various
At the outset, it is helpful to point out what this case does
not involve. It does not involve any claim for injunctive relief
or for the future educational placement of Mark R. It also does
not involve any question as to what services the state is
required to provide, unlike William S. v. Gill, 536 F. Supp. 505
(N.D.Ill. 1982), and Parks v. Pavkovic, 536 F. Supp. 296 (N.D.Ill.
1982). Rather this case involves only a claim for reimbursement
and other damages stemming from an allegedly improper placement
As on any motion to dismiss, the court must accept the
well-pleaded facts in the complaint as true. Those facts as shown
by the complaint and the exhibits to it are as follows.
In 1978-79, Mark R. was attending eighth grade in Arbor Park
Middle School. He began to exhibit increasingly disruptive
behavior and to fall behind in his studies. School officials
informed the parents that if he remained at Arbor Park he would
not graduate and suggested they place him in a private military
school, which they did.
Mark R. began high school at Tinley Park H.S. in the Bremen
School District the following year but he soon lapsed into the
same type of problem behavior. On the advice of the school
psychologist, the parents admitted him to Barclay Hospital, a
private psychiatric hospital in October, 1979. The school
district contributed to the cost of Mark R.'s placement at
In February, 1980, Mark R.'s need for hospitalization was
lessening and a staff conference was held to determine where he
should be placed. As a result of this conference, the high school
recommended placement in Libra School in Riverdale, Illinois,
which would provide a day care program only. The parents
disagreed with this recommendation and with the manner in which
the school had rejected any consideration of a residential
placement, and in March, 1980, they requested a hearing before an
impartial hearing officer.
At the same time, the parents removed Mark R. from Barclay and
enrolled him in the DeSisto School in Stockbridge, Massachusetts.
They did this on the recommendation of the Barclay staff but
without the official consent of the local or state defendants.
Most importantly, they did this before any due process hearing
had taken place.
The hearing did not take place until May, at which time the
officer ruled favorably for the parents. The school district
filed a notice of appeal in June, 1980, but then no further
action was taken, at least in part because the parents and the
school officials were trying to negotiate a settlement.
In the fall of 1980, Mark R. was returned to Barclay because
his behavior at DeSisto had deteriorated. In November, a second
staff conference was held and the school district agreed that
Mark R. should return to DeSisto. The only issue thus remaining
was whether the school district should reimburse the parents for
the costs of placing Mark R. in DeSisto between March and
In June, 1981, the State Board of Education issued its final
order, later amended, in which it ruled that the parents were not
entitled to reimbursement. Plaintiffs' complaint challenges this
In their first count, plaintiffs seek reimbursement for the
costs of Mark R.'s education at DeSisto between March and
October, 1980.*fn1 In Anderson v. Thompson, 658 F.2d 1205, 1213-14
(7th Cir. 1981), the Court indicated that in certain
circumstances a claim for reimbursement is cognizable under
EAHCA. The Court stated, in dictum:
Although we hold that [EAHCA] was not intended
generally to provide a damage remedy for an incorrect
placement decision, we can envision at least two
exceptional circumstances in which a limited damage
award might be appropriate. In those situations it is
likely that Congress, though generally requiring that
a child remain in his current placement,
20 U.S.C. § 615(e)(3) [sic], would have intended that
parents take action to provide the necessary services
for their children without awaiting the outcome of
lengthy administrative and judicial
proceedings. . . . Congress, which so explicitly
expressed its concern for the needs and rights of
handicapped children, could not have intended a child
to remain in a placement in which there was a serious
risk of injury to that child's physical health. . . .
[And] Congress could not have intended . . . that
parents would keep their child in an inappropriate
situation in a case in which the school district was
acting in bad faith. (emphasis added)
In the quoted language, the Court indicates that generally,
when parents and the state disagree as to a proposed placement,
the child is to remain in his or her current placement.*fn2 The
Seventh Circuit states that parents may properly be reimbursed
when they change their child's placement without the state's
approval if the current placement creates a physical risk or if
the current placement is inappropriate and the school district
fails to follow the statutory procedures in an egregious fashion.
Neither circumstance is present here.
In their complaint, plaintiffs allege that Mark R. displayed
behavior which physically endangered himself and others and that
one of their reasons for choosing DeSisto was a concern for his
safety. They argue that reimbursement is justified "where the
child's physical health would have been jeopardized if the
parents had not made alternative arrangements to those offered by
the school system." Plaintiffs' Memo at 16. This argument
fundamentally misstates the first exceptional circumstance.
The Anderson court suggested that parents were justified in
moving their child
when the child's current, not the proposed, placement endangered
his health. Plaintiffs do not allege that Mark R.'s placement at
Barclay Hospital, his then current educational placement,
involved a serious risk of injury to his physical health. Their
objections go to the Libra day care program, the proposed
Plaintiffs attempt to fit within the first exception by further
arguing that when the school district recommended placement at
Libra, they were put in the difficult position of finding their
own placement or placing Mark R. in a program that created the
risk of injury. But this argument ignores the fact that the
parents were not really faced with a "Hobson's choice." They had
a third option; one, moreover, that is mandated by EAHCA. That
is, they could have left Mark R. at Barclay Hospital while they
challenged the proposed placement at Libra. Had they done this,
the school district could not have compelled his transfer to
Libra. 20 U.S.C. § 1415(e)(3).
Alternatively, plaintiffs allege that the various defendants
acted "wilfully and in bad faith." Aside from this conclusory
allegation, however, plaintiffs do not allege facts establishing
bad faith as defined by the Seventh Circuit. In Anderson, the
court defined bad faith in these types of cases to mean a
"fail[ure] to comply with the procedural provisions of Section
615 in an egregious fashion." 658 F.2d at 1214. The only
procedural noncompliance alleged by plaintiffs is the state
defendants' failure to render a timely decision on the
state-level appeal, as required by regulation,
34 C.F.R. § 300.512.*fn3
At the time plaintiffs moved Mark R. from Barclay to DeSisto,
however, defendants had not violated any of the procedural
safeguards of § 615. They could not have done so, because the
parents moved the child before invoking those safeguards. Even
assuming the state defendants' delay constituted bad faith, it
occurred months after the parents moved Mark R. and cannot be
used retroactively to justify that move. The parents' precipitous
action foreclosed any reliance on Anderson's second exception.
In Stemple v. Board of Education of Prince George's County,
623 F.2d 893 (4th Cir. 1980), cert. denied, 450 U.S. 911, 101 S.Ct.
1348, 67 L.Ed.2d 334 (1981), the Fourth Circuit held that the
parents' action in changing the educational placement of their
child, without the approval of the school system and contrary to
the "duty" imposed by § 615(e)(3), barred any right to
reimbursement. Although the Anderson Court disagreed that §
615(e)(3) created a "duty," it did not disapprove of the Fourth
Circuit's conclusion that parents who move their child without
the school system's consent and in the absence of exceptional
circumstances do so at their own expense and that they forfeit
any right to reimbursement.*fn4
Under the Seventh Circuit's interpretation of appropriate
relief, reimbursement is not warranted here because Mark R.'s
removal from his current placement was not prompted by any
exceptional circumstance. Furthermore, to allow reimbursement in
a case such as this would clearly frustrate the detailed
procedural scheme set forth in § 615, which contemplates that as
a general rule during the pendency of the administrative process
both the school and the parents will maintain the
status quo.*fn5 For these reasons, the court concludes that
plaintiffs have failed to state a claim for reimbursement under
As limited damages in the form of reimbursement are not
available in this case under EAHCA, they are also unavailable
under § 504. The question of damages under § 504 was not at issue
in Anderson. In Reineman v. Valley View Community School
District, 527 F. Supp. 661, 665 (N.D.Ill. 1981), however, the
court reasoned that the damage limitations under EAHCA should
apply to § 504 when the claim is for an exclusion of benefits
under EAHCA.*fn7 The court stated:
If Reinemans, barred from a damage claim under EAHCA
itself under Anderson, could take an end run around
Anderson by claiming damages [under § 504] . . . that
exception to Anderson would swallow up its rule.
Reineman cannot do indirectly via Section 504 what
Anderson teaches may not be done directly.
This court concurs in this analysis and dismisses Count I in its
The motion to dismiss Count II does not require extended
discussion. In this count, plaintiffs seek a general damage award
for defendants' alleged willful failure to provide Mark R. with
a free appropriate public education. In Anderson, the Seventh
Circuit absolutely foreclosed under EAHCA any claim for the tort
liability damages sought here, 658 F.2d at 1213 n. 12. And in
Reineman, this prohibition was extended to similar damage claims
under § 504. The count is dismissed in its entirety.
In Count III, plaintiffs allege that defendants' conduct
violated the Constitution and seek damages under
42 U.S.C. § 1983.*fn8 Handicapped children are entitled under
Illinois law to a "free appropriate public education,"
Ill.Rev.Stat. ch. 122, ¶ 14-8.02, and this entitlement is
protected under the Fourteenth Amendment.
Plaintiffs allege that the Arbor Park school district and its
superintendent denied Mark R. this right without due process or
equal protection based on Arbor Park's representation, in the
middle of Mark R.'s eighth grade year, that he would probably not
graduate. Faced with this possibility and on Arbor Park's
recommendation the parents placed Mark R. in a military academy.
These allegations do not make out a constitutional violation on
the part of the Arbor Park defendants.
In a case involving very similar facts, the court in Rettig v.
Kent City School District, 539 F. Supp. 768 (1981), found no
[T]he Kent City School District never actually
excluded Tom [the plaintiff]. . . . The Rettigs chose
instead to enroll Tom in private schools. . . . Since
the plaintiffs elected to obtain educational
placement in a private school there cannot now be a
valid claim that the Kent City School District
refused to provide an educational opportunity.
Because plaintiffs withdrew Mark R. from Arbor Park prior to the
school's taking any adverse action, they cannot now assert that
the school denied him the right to an education.
The same reasoning forecloses any constitutional claim with
regard to the allegations in paragraphs 21 through 24, which
cover Mark R.'s withdrawal from Tinley Park H.S. and admission to
Barclay. The Bremen school district did not expel Mark R.; the
parents voluntarily admitted him to Barclay on the recommendation
of the school psychologist.
Based on the recommendation of placement at the Libra School,
plaintiffs allege that the local defendants (excluding the Arbor
Park defendants) refused to provide Mark R. with a free
appropriate public education. Plaintiffs' claim is that
defendants made an improper placement decision in rejecting a
residential program. This is not a constitutional violation.
Plaintiffs must allege more than simply that these defendants
In Reineman v. Valley View Community School District,
527 F. Supp. 661 (N.D.Ill. 1981), the complaint alleged that the
defendants had failed to classify the plaintiff as a special
education student. The court stated:
Count V appears to claim that plaintiffs' due process
rights were violated by William's misclassification.
That claim does not require extended discussion.
Plaintiffs have been unable to cite any authority
supporting a constitutional right to proper
Id. at 665. Similarly, here plaintiffs cannot contend that they
have a constitutional right to a proper placement.