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June 29, 1982


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


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 grounds.

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 decision.

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 Barclay.

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 October.

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 ruling.

Count I

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 ...

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