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