United States District Court, Northern District of Illinois, E.D
July 1, 1983
MAX M. AND HIS PARENTS, MR. AND MRS. M., PLAINTIFFS,
JAMES R. THOMPSON, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Bua, District Judge.
This case presents claims under the Education For All
Handicapped Children Act (EAHCA),*fn1 Section 504 of the
Rehabilitation Act (§ 504),*fn2 the equal protection and due
process clauses of the fourteenth
amendment,*fn3 the Illinois School Code,*fn4 and the
Illinois State Constitution.*fn5 The plaintiffs are Max M.,
a child handicapped within the meaning of the EAHCA, and his
parents. The defendants consist of three different groups,
designated the State Defendants, the Intermediate Defendants,
and the Local Defendants.*fn6
In Count I, plaintiffs allege violations of the EAHCA, § 504,
the equal protection clause, the Illinois School Code, and
Article X, § 1 of the Illinois Constitution. Plaintiffs seek
injunctive relief, compensatory services (remedial education
for Max), reimbursement for expenses incurred, and one million
dollars in damages. In Count II, brought only against the State
Defendants, plaintiffs challenge the ISBE's state-level
administrative review process. They seek to enjoin the review
procedures alleged to be inconsistent with the EAHCA, and again
pray for reimbursement and damages. Each group of defendants
has moved to dismiss the complaint on various grounds. In
addition, several individual defendants have moved to be
dismissed. The motions to dismiss have been referred to a
magistrate whose report and recommendations, as well as
plaintiffs' objections, are now before this Court.
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.
Max M. entered New Trier High School in the fall of 1977. On
January 3, 1978, Max was referred to the District # 203
Department of Special Education for evaluation. This referral
was the result of Max' poor academic performance,
disorganization, difficulty in writing, and anxiety. On
January 18, 1978, the head social worker for District # 203
recommended that Max receive outside psychotherapy. On
February 6, 1978, Dr. Robert Traisman, consulting clinical
psychologist for District # 203, submitted his evaluation of
Max, in which intensive psychotherapy was recommended.
District # 203 did not offer to provide the services. Max'
academic performance and social behavior continued to
deteriorate. On July 25, 1978, Max' parents formally requested
that District # 203 provide therapy to Max for the next school
In Max' sophomore year, an individualized education plan
(I.E.P.), which did not include therapy, was developed without
participation by Max' parents. Max' condition worsened.
On May 15, 1981, District # 203 notified Mr. and Mrs. M. of
its decision to issue Max a diploma. On May 21, Mr. and Mrs.
M. submitted a request for a due process hearing to District
# 203. Subsequently, District # 203 issued Max a diploma.
On October 13, 1981, a state-appointed hearing officer
conducted a hearing concerning Mr. and Mrs. M.'s allegations
of violations of Max' right to a free appropriate public
education. The hearing officer ordered the diploma revoked,
with services to continue based upon a new I.E.P. District #
203 appealed the decision to the Illinois State Board of
Education, which, on February 19, 1982, reversed the decision
of the hearing officer. Plaintiffs' complaint challenges this
I. Count I
The EAHCA is a funding statute under which states receive
federal funds to assist them in providing educational services
to the handicapped. Any state educational agency receiving
funds under the EAHCA must establish procedures whereby
handicapped children and their parents may protect their
rights to a "free appropriate public education." 20 U.S.C. § 1415(a).
Section 1415(b)(1)(E) requires the state to 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
public education to such child." The parents must have an
opportunity for an impartial due process hearing by the local
agency. 20 U.S.C. § 1415(b)(2). Thereafter, an aggrieved party
may seek review of the local agency's decision by an impartial
officer at the state agency level. Finally, judicial review is
available to any party aggrieved by the final decision of the
state level agency. 20 U.S.C. § 1415(e)(2).
2. Statute of Limitations
Defendants assert that plaintiffs' claim under the EAHCA is
barred by the statute of limitations. The Court disagrees.
Since the EAHCA contains no limitations period, the Court
must apply the most closely analogous state statute of
limitations. Hark v. School District of Philadelphia,
505 F. Supp. 727 (E.D.Pa. 1980). In so doing, the Court must
"characterize the essential nature of the federal claim in
terms of the format which the various state statutes of
limitation establish." Tokarcik v. Forest Hills School
District, 665 F.2d 443 (3d Cir. 1981), cert. denied sub nom.,
Scanlon v. Takarcik, ___ U.S. ___, 102 S.Ct. 3508, 73 L.Ed.2d
1383 (1982). Defendants characterize the nature of this claim
as review, and argue that the proper limitations period is 35
days as provided in the Illinois Administrative Review Act,
Ill.Rev.Stat. ch. 110, § 3-103 (IARA). Plaintiffs characterize
this claim as an original action, and assert that the proper
limitations period is five years as provided in Ill.Rev.Stat.
ch. 110, § 13-205.*fn7
Relatively few decisions consider whether a short
limitations period contained in an administrative review act
should be applied to the EAHCA. Plaintiffs cite Monahan v.
Nebraska, 491 F. Supp. 1074 (D.Neb. 1980), modified and remanded
on other grounds, 645 F.2d 592 (8th Cir. 1981); Department of
Education, State of Hawaii v. Carl D., 695 F.2d 1154 (9th Cir.
1983); and the Tokarcik case. These cases identify several
factors for determining whether the state administrative act is
sufficiently analogous to justify application of its
limitations period. These factors are:
(a) Whether the Court may engage in de novo
evaluation of the administrative proceeding;
Monahan at 1084; Tokarcik at 450; Carl D. at
(b) Whether the Court may fashion its own remedy
or is bound to either affirm, reverse, or remand
the order of the administrative agency;
Tokarcik at 450.
(c) Whether the same standard of review governs
the state-prescribed judicial review as is
contained in the EAHCA; Monahan at 1084-85;
Tokarcik at 450.
In applying these criteria to the IARA, this Court finds that
the Act is not sufficiently analogous to justify application
of its 35-day limitations period. The Court's analysis is set
(a) May the Court engage in de novo evaluation of
the administrative proceeding?
The IARA specifically bars the introduction of any new
evidence in support of or opposition to any finding, order, or
decision of the administrative agency. Ill.Rev.Stat. ch. 110,
§ 3-110. Inquiry is limited to information contained in the
record. Conversely, the EAHCA allows the Court to consider
additional evidence, at the request of either party, to
facilitate an independent review. 20 U.S.C. § 1415(e)(2). The
scope of inquiry under the EAHCA is therefore much broader than
that permitted by the IARA.
(b) May the Court fashion its own remedy, or must
it affirm, reverse, or remand the decision of the
The IARA allows the Court only to affirm, reverse or remand
the decision of the administrative agency. Ill.Rev.Stat. ch.
110, § 3-111. In contrast, the EAHCA empowers the Court to
"grant such relief as the court determines is appropriate."
20 U.S.C. § 1415(e)(2).
(c) Do the two acts embody the same standard of
They do not. The IARA requires that the findings and
conclusions of the administrative agency be held prima facie
true and correct, thereby creating a presumption in favor of
the agency. Ill.Rev.Stat. ch. 110, § 3-110. In stark contrast,
the EAHCA requires that the Court make an independent decision
based upon a preponderance of the evidence.
20 U.S.C. § 1415(e)(2).
In support of their position, defendants erroneously cite
Carl D., a case which, as the Court has noted, is also cited by
plaintiffs. In that case, the Ninth Circuit held that the
30-day limitations period of the Hawaii Administrative
Procedures Act applied to a suit under the EAHCA. Careful
analysis of the opinion reveals that it actually supports
plaintiffs' position. The Court applied the aforementioned
factors, but, because the Hawaii statute provided for the
introduction of new evidence, and had a standard of review
actually broader than that of the EAHCA, the Court found the
two acts sufficiently analogous. Carl D., 695 F.2d at 1157. The
IARA contains no such provisions, and is easily
The distinctions between the IARA and the EAHCA are
determinative of the issue. "State statutes of limitation
designed to govern judicial proceedings in which the Court
merely reviews the administrative record to determine if the
agency decision is supported by substantial evidence should
not be applied to federal proceedings in which the Court is
empowered to make an independent determination based on
evidence not found in the administrative record."
Monahan, 491 F. Supp. at 1085. This Court concurs in this
analysis, and holds that the 35-day limitations period under
the IARA does not apply to a federal claim under 20 U.S.C. § 1415,
since the review procedures prescribed by the IARA are
not analogous to an action brought under the EAHCA.
The question remains whether plaintiffs' claim for damages
under the EAHCA may go forward. The decision in Anderson v.
Thompson, 658 F.2d 1205 (7th Cir. 1981), severely limits such a
claim. Anderson holds that no private action for damages lies
under the EAHCA absent "exceptional circumstances." Two
examples of such circumstances were suggested, in dicta, by the
Seventh Circuit. Damages, limited to reimbursement, might be
appropriate either 1) where "the court determines that the
services in dispute were necessary to protect the physical
health of the child," Id. at 1213, or 2) where the school
agency has "acted in bad faith by failing to comply with the
procedural safeguards of [20 U.S.C. § 1415] in an egregious
fashion." Id. at 1214. The Anderson court's rationale for its
severe limitation of the damage remedy was based on its
interpretation of the legislative intent behind the EAHCA. The
Court believed, and this Court fully concurs, that the
"appropriate relief" contemplated by § 1415 is generally
injunctive in nature, "the statutory language giving the
district judge wide latitude to fashion an I.E.P. for
the child." Id. Again, however, this is in the absence of the
aforementioned exceptional circumstances. Thus the Court must
determine whether the complaint's allegations, taken as true,
cause this case to fall within those circumstances.
There is no question that the first exception is
inapplicable, since it is not contended that the disputed
services were necessary to protect Max' physical health.*fn8
Regarding the second exception, however, plaintiffs allege
that District 203*fn9 1) failed to notify Max' parents of
their right to review its psychological evaluations of Max, 2)
failed to inform Max' parents of their right to an independent
evaluation, to counsel, or to a due process hearing, 3) held
staffings concerning Max' special educational placement
without notifying his parents or giving them an opportunity to
participate, and 4) completed the 1980-81 I.E.P. without
parental notification (all in violation of § 1415(b)(1)). In
addition, plaintiffs assert that these violations were
intentional, willful and reckless. Taking the allegations as
true, plaintiffs have stated a claim for reimbursement under
the EAHCA, given the bad faith exception of Anderson.
Therefore, the motion to dismiss is denied in this respect, and
the claim against District # 203, see n. 9, may go forward. It
should be emphasized, however, that Max M.'s damage award, if
bad faith is proven, cannot exceed $8,855, the amount
plaintiffs have expended in providing services to Max M. under
his I.E.P., Complaint, ¶ (iii), p. 23, Anderson, 658 F.2d at
4. Remedial Education
Plaintiffs, in addition to requesting damages as discussed
above, seek to have this court
order defendants to assume the financial
responsibility for the placement of Max M. in a
private residential facility which provides
special education and related services to address
Max' learning disabilities, emotional disorders,
and vocational deficits as defined in an
Individual Education Plan reflective of the views
of the independent evaluators who have tested
Max, with such placement to continue until goals
contained in that I.E.P. are fulfilled or Max
turns twenty-three (23), whichever comes sooner.
Complaint, ¶ (ii), p. 23. The crux of this request is
plaintiffs' belief that because the school district acted
wrongfully and failed even to address the goals of Max'
independently prepared I.E.P. prior to awarding him his
diploma, Max must now receive compensatory or remedial services
which will undo the effects of those past wrongful acts. After
careful consideration, the Court has concluded that this claim
is barred as an improper request under the EAHCA.
In an analogous situation, the Court in Miener v. State of
Missouri, 673 F.2d 969 (8th Cir. 1982), held that a claim for
compensatory services was barred under the eleventh amendment
as an improper damage claim for a past breach of legal duty.
The Court first discussed Edelman v. Jordan, 415 U.S. 651, 94
S.Ct. 1347, 39 L.Ed.2d 662 (1974) in which the Supreme Court
established the appropriate test for determining when the
eleventh amendment bar is applied. Simply put, the amendment is
invoked when the relief sought is retroactive rather than
prospective in nature. The Miener court, applying Edelman to
the claim before it, reasoned as follows:
"An award of tuition reimbursement would clearly
be barred as an award of damages for past breach
of legal duty under [the Edelman] test. (citation
omitted). We view the request for compensatory
services as practically indistinguishable from a
request for such reimbursement. Compensatory
services, like the award of a money judgment,
would be measurable against past educational
deprivation. The expenditure of state monies to
provide compensatory services would not, in other
words, ensure "compliance in the future with a
substantive federal question determination."
Edelman v. Jordan, 415 U.S. at 688, 94 S.Ct. at
Miener, 673 F.2d at 982. This Court fully concurs with this
As has already been stated, Miener was decided in an eleventh
amendment context. Therefore, it clearly bars the Count I claim
against the state defendants, see Section II, infra. The
Court's analysis of the distinction between prospective
(injunctive) and retroactive (monetary) relief is applicable to
the claims against the intermediate and local defendants as
well, however. As has already been stated, except in very
narrow circumstances, damages are disallowed under the EAHCA.
And, as the Anderson court made clear, even if the special
circumstances which give rise to a damage claim are present, as
they may be in this case, the monetary relief afforded is
limited to reimbursement for services already received.
Anderson v. Thompson, 658 F.2d at 1214.
Reimbursing Max M.'s family for their out-of-pocket expenses
is a very different matter, however, from providing Max M.
with educational services which would meet the goals of his
independently prepared I.E.P. Since this Court believes that
the Miener court was correct in finding that the latter remedy
is more like retroactive than prospective relief, to allow such
services would be to reopen a door that was closed by the
Seventh Circuit in Anderson. The remedy requested would be in
the nature of a general damage award, a form of relief which
the Anderson court clearly believed was barred by the EAHCA.
Monetary relief, if it is to be afforded at all to Max M.'s
family, is properly limited to reimbursement.
B. The § 504 Claim
The limitation on damages required by the EAHCA also is not
expanded by § 504. In Reineman v. Valley View Community School
District # 365-U, 527 F. Supp. 661, 664-665 (N.D.Ill. 1981), the
Court reasoned that the damage limitation under the EAHCA
should apply to § 504 when the claim is for an exclusion of
benefits under the EAHCA. The Reineman court stated: "If [the]
Reinemans, barred from a damage claim under EAHCA itself under
Anderson, could take an end run around Anderson by claiming
damages [under § 504] . . . that exception to Anderson would
swallow up its rule. [The] Reinemans cannot do indirectly via §
504 what Anderson teaches may not be done directly." Id.,
accord, Mark R. v. Board of Education, Bremen Community High
School, 546 F. Supp. 1027, 1032 (N.D.Ill. 1982).
This Court concurs in the analysis of the above-cited
opinions and dismisses plaintiffs' § 504 claim.
C. The Statutory § 1983 Claim
Although not clearly articulated in plaintiffs' complaint or
brief in opposition to the motions to dismiss, plaintiffs
apparently allege that they state a claim cognizable under
42 U.S.C. § 1983, arising out of alleged violations of the EAHCA.
Presumably, their assertion is that a violation of the EAHCA,
in and of itself, results in a § 1983 claim entitling
plaintiffs to general damages. This argument has been clearly
and unequivocally rejected by the Seventh Circuit which
reasoned that, because the EAHCA provides an exclusive remedy,
§ 1983 is inapplicable. Anderson v. Thompson, 658 F.2d 1205,
1215-1217, citing Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct.
2502, 2504, 65 L.Ed.2d 555 (1980) (§ 1983 provides cause of
action for state deprivations of "rights secured" by "the laws"
of the United States); and Pennhurst State School and Hospital
v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67
L.Ed.2d 694 (1981) (§ 1983 not available where governing
statute provides exclusive remedy for violation of its terms);
see also Thiboutot, 448 U.S. at 22,
n. 11, 100 S.Ct. at 2514, n. 11 (Powell, J., dissenting);
Miener v. State of Missouri, 673 F.2d 969, 975-977 (8th Cir.
1982). As a result, plaintiffs' statutory § 1983 claim is
D. The Equal Protection Claim
Although Anderson specifically rejected the notion that §
1983 provided redress for alleged violations of the EAHCA
standing alone, the Court left open the question of whether a
damage remedy might exist under § 1983 where the basis of the
allegation is not necessarily a violation of the EAHCA, for
which there is no general damage remedy, but of the
Constitution. Anderson, 658 F.2d at 1217, n. 19; see also Mark
R. v. Board of Education, Bremen Community High School District
# 228, 546 F. Supp. 1027, 1032, n. 8 (N.D.Ill. 1982). Plaintiffs
have asserted two constitutional claims based on the equal
protection and due process clauses of the fourteenth amendment.
The equal protection claim is contained in Count I of the
complaint and is treated here. The due process claim is
contained in Count II and is treated in the Court's discussion
of the other claims asserted in that count, Section II(B),
Plaintiffs assert that defendants have failed to provide Max
with educational opportunities provided to other handicapped
and non-handicapped children. Superficially, this appears to
state an equal protection claim. The substance of plaintiffs'
claim, however, is not disparate treatment, but rather their
assertion that Max' placement decision was wrongfully made,
with the result that his educational classification was
erroneous. Thus exposed, plaintiffs' claim does not in fact
relate to equal protection at all, but instead challenges the
school's placement decision. Such a claim cannot go forward.
Reineman, 527 F. Supp. at 665, Mark R., 546 F. Supp. at 1033.
In Reineman, the parents of a handicapped high school child
brought an action against school officials, seeking recovery
for alleged deprivation of constitutional rights. The Reineman
Court dismissed the equal protection claim, noting that
"[p]laintiffs have been unable to cite any authority supporting
a constitutional right to proper classification." Reineman, 527
F. Supp. at 665. Following this reasoning was the Court in Mark
R., which held that an allegation of improper educational
placement is not sufficient to state an equal protection claim.
Mark R., 546 F. Supp. at 1033.
This Court concurs in this reasoning, and dismisses
plaintiffs' equal protection claim.
E. The State Law Claims in Count I
Plaintiffs allege violations of the Illinois School Code,
Ill.Rev.Stat. ch. 122, § 14-1.01, et seq., and of the Illinois
Constitution, Article X, § 1. Since the claims "derive from a
common nucleus of operative facts" and are such that the
plaintiffs "would be expected to try them all in one judicial
proceeding," this Court has jurisdiction over these state
claims under the principle of pendent jurisdiction. United Mine
Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16
L.Ed.2d 218 (1966).
States receiving federal funds under the EAHCA are required
to establish procedures whereby handicapped children and their
parents may protect their rights to a free appropriate public
education. 20 U.S.C. § 1415(a). Illinois, pursuant to this
directive, enacted § 14-1.01 of the Illinois School Code. The
state act's language, while not duplicating the language of the
EAHCA verbatim, parallels the EAHCA in substance. As with the
EAHCA, the state act's concern appears to be ensuring proper
educational placement for handicapped children. Absent
persuasive argument to the contrary, it must be assumed that §
14-1.01 of the Illinois School Code, a mere creature of the
EAHCA, is a reflection of the EAHCA on the state level. As
such, it can confer no more rights than can the EAHCA itself.
Since damages are allowed only in limited form under the EAHCA,
the Court does not believe that expanded monetary relief is
provided by § 14-1.01 of the Illinois School Code. Plaintiffs'
claim for damages under the Illinois School Code therefore is
Plaintiffs also allege a violation of the Illinois
Constitution, Article X, § 1. Illinois Courts have held that
Article X requires only that the state provide a tuition-free
education. See, e.g., Hamer v. Board of Education of School
District # 109, 9 Ill. App.3d 663, 292 N.E.2d 569 (2d Dist.
1973). No cases have been cited which indicate that a
tuition-free education includes the provision of psychotherapy,
nor does this Court believe that the Illinois constitution can
be read to require such services. Thus, plaintiffs have not
stated a claim for relief under Article X of the Illinois
Constitution, and that portion of the complaint is dismissed.
F. Remaining Injunctive Relief
In light of the above discussion, all that remains of
plaintiffs' claims in Count I is 1) a request for limited
damages (reimbursement) resulting from the local defendants'
alleged "bad faith" violation of the EAHCA, and 2) a request
for injunctive relief in the form of rescission of Max M.'s
diploma. It is the Court's belief that because of its
disposition of plaintiffs' request for remedial education,
Section I(A)(4), supra, plaintiffs' additional request for
rescission of the diploma has become a mere vestige of the
original overall prayer for relief. Rescission of Max M.'s
diploma simply makes no sense in light of the Court's decision
that it cannot properly compel the school district to provide
Max M. with compensatory education. Therefore, the claim for
rescission is dismissed.
II. Count II
A. The EAHCA and § 504 Claims
In Count II, plaintiffs have merely restated their EAHCA and
§ 504 claims. This Court's treatment of those claims in Count I
is fully applicable to Count II.
B. The Due Process Claim
As has already been stated, plaintiffs, pursuant to
42 U.S.C. § 1983, assert in Count II that the state-level
administrative review of the local-level due process hearing
violated the due process clause of the fourteenth amendment.
Specifically, plaintiffs object to the fact that the reviewing
body comprised attorneys who were on the ISBE's staff. Because
these attorneys were ISBE employees, plaintiffs contend their
objectivity was so compromised that they could not impartially
review the local-level due process hearing decisions.*fn10
This resulted, it is argued, in a violation of plaintiffs'
constitutional rights. Although there may be some merit to
plaintiffs' claim, see, Grymes v. Madden, 672 F.2d 321, 323
(3rd Cir. 1982), it nevertheless must be dismissed because of
the lack of any available remedy.
First, since the claim is asserted only against the state
defendants, any damage claim is barred by the eleventh
amendment. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39
L.Ed.2d 662 (1974), see Section I(A)(4), supra. That amendment
bars a federal court from hearing a suit seeking to recover
damages which will come from the general revenues of the state.
Id. at 668, 94 S.Ct. at 1358. Even though the State of Illinois
is not named in this action, recovery of damages against the
named officials would come from state revenues. "[W]hen the
action is in essence one for recovery of money from the state,
the state is the real, substantial party in interest. Id.
at 663, 94 S.Ct. at 1355, quoting Ford Motor Co. v. Department
of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389
(1945). Thus, plaintiffs' due process claim is dismissed to the
extent that it prays for money damages.
Secondly, plaintiffs' claim for injunctive relief must be
dismissed as moot. As has already been stated, plaintiff has
received his diploma, which means that any reform in the
administrative process would have no effect as to him.
Additionally, plaintiffs' suit is not brought as a class
action. Since plaintiffs' claim is neither 1) capable of
repetition, nor 2) brought on behalf of, not only Max, but Max
and others similarly situated, the Court believes that a
finding of mootness is required as to the due process claim.
Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532
C. The State Law Claims in Count II
Based upon the rationale set forth in Count I, see, Section
I(E), supra, plaintiffs' state law claims in Count II are
Since nothing remains of Count II, it is dismissed in its
The remaining motions before the Court are the motions to
dismiss filed by various individual defendants. All those
motions are granted except those of 1) New Trier High School
District # 203, 2) The New Trier School District # 203 Board
of Education, 3) Roderick Bickert, sued in his official
capacity as Superintendent of School District 203, and 4)
James Walter, sued in his official capacity as Director of
Special Education of School District 203. These parties, who
are the only defendants left in the suit, are not dismissed in
light of plaintiffs' sole remaining claim; namely their Count
I prayer for reimbursement for costs expended in providing
services to Max M. under his I.E.P. That sum, allegedly due
because of defendants' "bad-faith" in carrying out the
procedural requirements of the act, is claimed to be $8,855.
If defendants are shown to have acted in bad faith, the latter
figure will be the maximum damage award.
IT IS SO ORDERED.