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April 12, 1983


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


This action is brought pursuant to the Education for all Handicapped Children Act of 1975, 20 U.S.C. § 1401 et seq. ("EAHCA"), and its implementing regulations; § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, the due process clause of the Fourteenth Amendment to the United States Constitution and the Illinois Handicapped Children's Act, Ill.Rev.Stat., ch. 122, § 14-1.01, et seq. Plaintiffs, John A., a minor, and his mother, Valerie, seek declaratory and injunctive relief against defendant, Donald Gill, Illinois Superintendent of Education. Plaintiffs claim that John has not received a free appropriate public education to which he is entitled because of delays by defendant in resolving the state level administrative appeal regarding the appropriate placement for him. Plaintiffs, on behalf of themselves and a purported class of all handicapped children not receiving a free, appropriate education by reason of these delays, request a declaratory judgment that defendant's conduct violates their rights under the aforementioned statutes and constitutional provision. Plaintiffs also request that defendant be enjoined to issue decisions promptly on any appeals pending for more than thirty days since the filing of this complaint and to issue all future decisions on appeals within thirty days from the date the defendant receives a request for review.

Defendant seeks dismissal of this action on the following five grounds: that the EAHCA creates no substantive rights to a free appropriate public education, that the EAHCA creates no procedural rights to a final state agency decision within thirty days, that § 504 of the Rehabilitation Act creates no substantive rights to a free appropriate public education, that due process does not impose such strict time limits on the state in rendering final decisions on the appropriateness of a handicapped child's placement, and that plaintiffs' state law claim must be dismissed, for lack of pendent jurisdiction, in the absence of any cognizable federal claim.

For the reasons stated herein, defendant's motion to dismiss is denied.


Plaintiff, John A., was, on the filing of this complaint, a twelve-year old child diagnosed as having severe emotional and behavioral disorders. In the fall of 1980, Lyons Elementary School District # 103, the school district responsible for John's special education, advised his mother that it wanted to place him in a self-contained classroom for behavior-disordered students. John's mother objected to the proposed placement because she had been advised by experts who had examined John that the appropriate placement for him would be in a highly structured residential program.

Pursuant to the EAHCA, 20 U.S.C. § 1415(b)(1)(E), and the Illinois Handicapped Children Act, Ill.Rev.Stat., ch. 122, § 14-8.02, John's mother requested an administrative hearing to determine the appropriate placement for John. A hearing was held, and on November 20, 1980, the hearing officer determined that the school district's proposed placement was not appropriate to John's needs. The officer ruled that a "highly structured residential facility with intense support systems" was the appropriate placement for John. (Compl., Ex. A.)

On December 5, 1980, the Lyons School District requested a review of the hearing officer's determination pursuant to the procedural provisions of the EAHCA and the Illinois statute, and urged that the appeal "progress with all possible speed." (Compl., Ex. B.) Defendant acknowledged receipt of the appeal letter and requested a transcript of the hearing and John's records. By January 20, 1981, defendant had received all of the relevant documents, but as of May 1, 1981, the date plaintiffs' complaint was filed, defendant had not yet rendered a decision on the appeal nor had he informed the parties as to the disposition of the appeal.

According to plaintiffs, as a result of the delay in the appeal, John had not been placed in the appropriate educational setting. Plaintiffs further allege that John's behavior and emotional problems had deteriorated to the extent that he was admitted to the Madden Mental Health Center in March of 1981. Plaintiffs' claim that the hospital is an inappropriate placement and has had an injurious effect upon John.


Before reaching the merits of defendant's motion to dismiss, a threshold question of jurisdiction must be addressed.*fn2 Under Article III of the United States Constitution the judicial power of the courts extends only to cases or controversies between the parties in an action. Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). When a case or controversy ceases to exist between the parties the dispute becomes moot, and a court, as a general rule, may not entertain the action.

In Sosna, the Supreme Court established two exceptions to the mootness doctrine. First, if the plaintiff sues on behalf of a class and the suit is properly certified as a class action, the class acquires a legal status separate from that of the named plaintiff. 419 U.S. at 399, 95 S.Ct. at 557. Thus, although the named plaintiff's claim has been resolved, a class action will not be dismissed if the controversy remains live as to the members of the class he was certified to represent. Id. at 402, 95 S.Ct. at 558-59. Second, where a claim is by nature time-bound in the sense that it will inevitably become moot before it can be resolved through normal judicial processes,*fn3 dismissal for mootness can be avoided under the "capable of repetition yet evading review" exception. Id. at 400-01, 95 S.Ct. at 558.

In the present case the controversy between the named plaintiffs and defendant has been resolved. As stated in a June 19, 1981 letter from plaintiffs' attorney to the court withdrawing their motion for a preliminary injunction, "It has become unnecessary to pursue this motion as defendant has provided the relief requested therein." Since plaintiffs' claims are thus moot, the court must consider whether they fit into either of the aforementioned exceptions.

This case does not fall within the class action exception because no class has been certified. See Indianapolis School Commissioners v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975) (purported class action dismissed where claims of named plaintiffs were moot and plaintiffs failed to comply with requirements of Fed.R.Civ.P. 23(c)). But see Susman v. Lincoln American Corp., 587 F.2d 866 (7th Cir. 1978), cert. denied, 445 U.S. 942, 100 S.Ct. 1337, 63 L.Ed.2d 775 (1980), (suggesting that unilateral action by defendants mooting named plaintiffs' claims prior to class certification does not require dismissal of action). However, the "capable of repetition yet evading review" exception does apply to the named plaintiff.*fn4 John was twelve years old in 1981 when this complaint was filed. He is therefore presently fourteen years old with approximately three to four years remaining in the state educational system. There is no indication that the state has changed its policies regarding decisions on appeals challenging educational placements. Under these circumstances, where the challenged procedures are still operative, plaintiff's status as a handicapped student makes it likely that those procedures may be utilized in the future, and the time limits inherent in his claims raise doubts as to the availability of judicial mechanisms to resolve the controversy, the court will retain jurisdiction over this technically moot dispute. See Sherry v. New York State Ed. Dept., 479 F. Supp. 1328, 1334-35 (W.D.N.Y. 1979)


The EAHCA offers states federal financial assistance in providing educational services for handicapped children. In order to be eligible for such funding recipient states must, inter alia, develop a plan to assure that "a free appropriate public education will be available for all handicapped children," 20 U.S.C. § 1412(2)(B), and "establish and maintain procedures in accordance with [the requirements of the EAHCA] . . . to assure that handicapped children and their parents . . . are guaranteed procedural safeguards with respect to the provision of free appropriate public education. . . ." 20 U.S.C. § 1415(a); see 20 U.S.C. § 1412(5)(A). The EAHCA's procedural requirements are set forth in § 615 of the Act, 20 U.S.C. § 1415. Recipient states must provide "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 education to such child." 20 U.S.C. § 1415(b)(1)(E). Whenever such a complaint is received the local educational agency involved must conduct an impartial due process hearing. 20 U.S.C. § 1415(b)(2). Any party to this hearing may appeal a decision to the proper state education agency which, in turn, must conduct an impartial review of the local agency's decision. 20 U.S.C. § 1415(c). If any of the parties is dissatisfied with the final decision by the state education agency, judicial review may be obtained. During the pendency of these proceedings the handicapped child is to remain in his then current educational placement unless the parties agree otherwise. 20 U.S.C. § 1415(b)(3).

The EAHCA imposes certain duties on the federal Commissioner of Education. Under § 617 of the Act, 20 U.S.C. § 1417(b), "In carrying out the provisions of this subchapter, the Commissioner . . . shall issue . . . amend, and revoke, such rules and regulations as may be necessary." Pursuant to that duty, the Commissioner issued regulations requiring that

  The state educational agency shall insure that not
  later than 30 days after receipt of a request for

(1) a final decision is reached in the review; and

    (2) a copy of the decision is mailed to each of the

34 C.F.R. § 300.512.

The State of Illinois, a recipient of federal funds under the EAHCA, has provided for the required administrative review in a statute which essentially tracks the language of § 1415 and the regulation. Ill. Rev.Stat. ch. 122, § 14-8.02 (1981). In particular, the statute requires that "(i) No later than 30 days after perfection of the appeal by receipt of the ...

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