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July 16, 1984


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


William S. ("William"), a handicapped minor child, by his mother and next friend, Geraldine S. ("Geraldine"), sues various state and local educational officials and entities,*fn1 asserting his statutory and constitutional rights to an appropriate education. This Court has issued three published opinions in this case (and some unpublished ones as well), permitting the litigation to advance very near the trial stage:

    1. "Opinion I," 536 F. Supp. 505 (N.D. Ill. 1982) denied
  defendants' Fed.R.Civ.P. ("Rule") 12(b)(6) motion to dismiss.
    2. "Opinion II," 98 F.R.D. 463 (N.D. Ill. 1983) granted
  William's Rule 23 motion for class certification.*fn2
    3. "Opinion III," 572 F. Supp. 509 (N.D.Ill. 1983) (a) denied
  defendants' Rule 56 summary judgment motion and Rule 23 class
  decertification motion but (b) found, pursuant to Rule 56(d),
  certain of William's theories were not supported sufficiently
  to advance to trial.
  On January 19, 1984, prompted by this Court's having warned many important legal issues remained unresolved and were subject to a finding defendants' nonassertion of any such issues had waived them, defendants filed a mislabeled "Supplementary Motion for Summary Judgment."*fn3 After completion of briefing on that motion but before this Court had rendered its decision, William reported he had changed his residence from Barrington to Arlington Heights, outside the area served by District 220. Defendants again moved for decertification or dismissal because of William's new status, and their issue-narrowing motion was continued while the parties briefed the consequences of William's move.

Now the dynamics of change have forced a fresh look at several levels. Not only is the viability of William's own theories of recovery in question, but the individual mootness problems triggered by William's move to a new home also challenge the adequacy of his theories to support continued litigation by the class. And because this Court has ruled on a summary judgment motion and has now given the parties the opportunity to submit whatever additional evidence they desire on the issues, the adequacy of the evidence to bring those theories to trial is also up for decision. For the reasons stated in this memorandum opinion and order this Court rules:

    1. All William's theories in support of damages (as opposed
  to prospective relief) for himself and the class lack
  sufficient support either in law or in evidence. Those damage
  claims are therefore stricken pursuant to Rule 16.
    2. William's remaining theory in support of prospective
  relief for himself is moot.
    3. As permitted by Rule 23(c)(1), the class is decertified
  for William's failure to offer sufficient evidence to support
  his theory of prospective relief for the class.

Statutory and Regulatory Background*fn4

Under the Education for All Handicapped Children Act of 1975 ("EAHCA"), 20 U.S.C. § 1401-1461, every handicapped child between the ages of three and twenty-one is guaranteed "a free appropriate public education." That federal mandate contemplates that a designated "State educational agency" assume primary responsibility in each participating state for providing "appropriate public education," including "special education and related services," at public expense. 20 U.S.C. § 1401(7), 1412(6); 34 C.F.R. § 300.340. "Related services" in turn are those "required to assist a handicapped child to benefit from special education." 34 C.F.R. § 300.13. Thus the placement of a handicapped child in a public or private residential program (as William has sought before and throughout this litigation) may qualify as a "related service."

As Illinois' "State education agency," ISBE is responsible for insuring that all Illinois agencies (including local school districts) that provide special education or related services comply with EAHCA (20 U.S.C. § 1412(6), 34 C.F.R. § 300.600(a)(2)). ISBE is not relieved from its ultimate responsibilities in that area by the possibility of financial or in-kind assistance from other government or private agencies. 34 C.F.R. § 104.33(c)(1). Illinois' School Code imposes similar obligations on ISBE. See Ill. Rev.Stat. ch. 122, ¶¶ 14-7.02, 14-8.01. In addition Illinois Constitution Art. X. § 1 declares education through the secondary level shall be free and of high quality.

William challenges defendants' policy (the "Policy") of disclaiming any obligation to finance "related services" that primarily serve the handicapped student's noneducational needs, even when such services are also critical to his or her ability to benefit from an education. That disclaimer had its genesis in the August 1980 Memorandum of Understanding (the "Memorandum") executed by ISBE and several other state agencies that provide noneducational assistance to disabled individuals. That Memorandum (1) defines categories of handicapped children whose needs are considered primarily "noneducational" and (2) absolves ISBE and local school districts from any financial responsibility as to the noneducational facets of residential placements, regardless of whether another state agency supplies the requisite funding.

State defendants concede the existence of the Policy but argue it does not interfere with ISBE's performance of its state and federal law duties. Local school districts attempt to make "related services" available to handicapped children whose needs are primarily noneducational, as defined in the Memorandum, by convening a "multidisciplinary staff conference" to evaluate the needs of each such child.*fn5 Multidisciplinary staff conferences are attended by "representatives of the appropriate state agencies" who "provide technical assistance and a preliminary assessment of the eligibility of the student to services of that state agency" (Gill Aff. ¶ 2).

William's Claims

William is a twelve-year-old suffering from severe multiple handicaps: moderate to profound bilateral hearing loss, mild to moderate functional mental retardation and spastic quadriplegia affecting his left side. William suffers up to three to four grand mal seizures per day, though he is on medications that at least to some degree suppress the outward symptoms of the seizures (Geraldine Dep. 96-97, 103).

When William moved to District 220 with his mother Geraldine, District 220 eventually convened a multidisciplinary staff conference to consider his case.*fn6 As Opinion III, 572 F. Supp. at 515 found, William's multidisciplinary staff conference did indeed lead to an offer to William of free residential placement, the only question open for trial on that score being whether that proffered placement was "appropriate." Geraldine was of the opinion it was not, and she placed William at the Institute of Logopedics (the "Institute") in Wichita, Kansas.

When it became clear William could not obtain state funding for his placement at the Institute, William (through Geraldine) filed a two-count complaint, the current version of which is the Second Amended Complaint (the "Complaint"):

    1. Count I seeks on behalf of William and a class of
  similarly situated handicapped children declaratory and
  injunctive relief that would essentially prevent defendants
  from continuing to adhere to the Policy.
    2. Count II seeks reimbursement for the cost of William's
  placement at the Institute, an injunction requiring
  defendants to fund that placement until William turns ...

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