The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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published opinions in this case (and some unpublished ones as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
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 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,
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 ...