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JOHN A. BY AND THROUGH VALERIE A. v. GILL
April 12, 1983
JOHN A., BY AND THROUGH HIS MOTHER AND NEXT FRIEND, VALERIE A., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
DONALD GILL, ILLINOIS SUPERINTENDENT OF EDUCATION, DEFENDANT.
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
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
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.
PRELIMINARY JURISDICTIONAL QUESTIONS
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
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 ...