individuals. The Court stressed the need for Congress to
clearly express all conditions imposed upon states in return
for federal funds. The court concluded that states cannot be
held to conditions not expressly and unambiguously imposed in
In Board of Education v. Rowley, supra, the Court made
similar observations about the EHA. In finding that the EHA
does not require states to maximize the potential of each
handicapped child, the court noted that any other view would be
"contrary to the fundamental proposition that Congress, when
exercising its spending power, can impose no burden upon the
states unless it does so unambiguously". 102 S.Ct. at 3042, n.
11. The court further stated that it would not ignore the
statutory language and legislative intent to find that Congress
had imposed upon the states a burden of unspecified
proportions, to be revealed only through a case-by-case
adjudication in the courts. Id. Thus, the court recognized the
unfairness of imposing large financial burdens on states on the
basis of broad interpretations of ambiguous language in funding
statutes like the EHA.
From the decisions in Rowley andPennhurst, it is clear that
the Courts may not expansively interpret provisions of funding
statutes such as the EHA to require states to provide any
services which are not explicitly required by the statute. This
reasoning compels the court to reject plaintiffs' arguments for
an expansive interpretation of § 1401(17), and to conclude that
states may properly consider psychiatric services as medical
services and therefore not "related services" which the state
must provide as part of a free appropriate education. A
contrary ruling in this case would result in imposing a great
indeterminate financial burden on the states, and would divert
the limited funds available for special education to subsidize
the high cost of psychiatric care for a relatively small number
of mentally disturbed children, without any indication that
Congress intended such a result.
The decision in Board of Education v. Rowley, supra, is also
significant to this case for its holding that the EHA does not
require states to maximize the potential of each handicapped
child. The Court has thus recognized the difference between
requiring an appropriate education and requiring the most
appropriate education. The EHA does not require states to
provide the most appropriate learning environment, but instead
requires states to provide meaningful access to an appropriate
education which does not exceed the conditions explicitly
imposed in the Act to qualify for funds.
Unfortunately, the funding available for special education
does not permit, and the EHA does not require, that states
place each handicapped child in an environment most ideally
suited to his or her particular needs at no cost to the
parents. The parents of each child are free to pursue such a
laudable goal, but states are not required to expend scarce
resources to guarantee that such goals are always achieved.
Therefore, although the Institute of Living or another
psychiatric hospital might provide the most ideal learning
environment for Darlene, the state is not required under the
Act to pay the cost of her placement in such an institution.
It is important in this case to recognize that Darlene has
not been denied access to the special education and related
services provided for in the EHA merely because she has been
denied placement at a psychiatric hospital. First, Darlene's
parents have been free to convene a new Multidisciplinary
Staffing Conference to determine other appropriate placements
for Darlene at institutions approved by the SBE and the
Governor's Board, but they have chosen instead to pursue this
litigation.*fn5 In addition,
Darlene's placement at the Institute is not entirely
prohibited by the state rules. Although the rules prohibit
reimbursement for the cost of her residential placement at the
Institute, under the "Home or Hospital Program" established
under the rules, the local school district may provide
instructional services to hospitalized children and be
eligible for reimbursement for such services by the SBE.
District 211 personnel have in fact established such a
placement for Darlene during the pendency of this action.
Thus, alternatives are available to Darlene to obtain a free
appropriate education which do not require the state to pay
the full cost of a placement at a psychiatric hospital.
Accordingly, the court finds that neither the rules and
regulations prohibiting approval of placements in psychiatric
hospitals, nor the decision of the state agencies not to
approve Darlene's residential placement at a psychiatric
hospital, violate any rights Darlene may have under the EHA.
She has therefore failed to state a valid claim for relief
under the EHA.
Plaintiff also alleges that defendants have violated § 504 of
the Rehabilitation Act, 29 U.S.C. § 794, by denying her
placement at the Institute of Living. Section 504 provides:
No otherwise qualified handicapped individual in
the United States, . . . shall, solely by reason
of his handicap, be excluded from the
participation in, be denied benefits of, or be
subjected to discrimination under any program or
activity receiving Federal financial assistance.
In support of her claim of violation of § 504, plaintiff points
to regulations promulgated under § 504, which require that
schools receiving federal funds provide a free appropriate
education to handicapped students. 34 C.F.R. § 104.33.
The Seventh Circuit has held that the Rehabilitation Act
creates substantive rights, and that a private cause of action
exists to enforce those rights. Lloyd v. Regional
Transportation Authority, 548 F.2d 1277 (7th Cir. 1977).
However, in light of the court's conclusion above that
defendants have not violated plaintiff's rights under the EHA,
the court declines to hold that § 504 of the Rehabilitation
Act, a broad brush statute enacted to prohibit discrimination
against the handicapped, imposes a greater duty on states to
provide educational services to handicapped than the EHA, an
act specifically addressed to special education which
explicitly details the educational services states must provide
to receive federal funds. Congress could not have intended to
impose such a great financial burden on states by the general
sweeping language of § 504 without an explicit requirement, see
Board of Education v. Rowley, supra, and Pennhurst v.
Halderman, supra, and plaintiff has cited no authority for such
In interpreting § 504, the Supreme Court has indicated that
Congress intended § 504 to prohibit only affirmative acts of
discrimination against the handicapped. Southeastern Community
College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980
(1979). The Court in Southeastern found that Congress did not
intend § 504 to impose affirmative action obligations on all
recipients of federal funds. The Court observed that the
language and structure of the act reflect that Congress
recognized a distinction between equal treatment of handicapped
persons and affirmative efforts to overcome the disabilities of
the handicapped, stating that:
Section 504 does not refer at all to affirmative
action . . . A comparison (with other provisions)
demonstrates that Congress understood
accommodation of the needs of handicapped
individuals may require affirmative action and
knew how to provide for it in those instances
where it wished to do so.
442 U.S. at 411-12, 99 S.Ct. at 2369.