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United States District Court, Northern District of Illinois, E.D

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 This Court has issued three published opinions in this case (and some unpublished ones as well), permitting the litigation to advance very near the trial stage: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 22,
  attorneys' fees and $500,000 in damages.

Both counts charge defendants' Policy-based refusal to fund William's placement at the Institute violates William's rights to:

    1. a free appropriate education — a right claimed under (a)
  EAHCA, (b) Ill. Const. Art. X, § 1 and (c) Ill. School Code
  Art. XIV, Ill.Rev.Stat. ch. 122, ¶ 14-1.01; and

    2. educational opportunities commensurate with those
  furnished to non-handicapped

  children and other handicapped children — a right originally
  claimed under both (a) Rehabilitation Act § 504, 29 U.S.C. § 794
  and (b) the Equal Protection Clause of the Fourteenth

Opinion III narrowed William's options by declaring (1) he cannot recover damages under EAHCA (572 F. Supp. at 516-17) and (2) he has no cause of action for denial of appropriate residential placement under the Rehabilitation Act (id. at 517). That has left state law and Equal Protection Clause theories in support of both prospective relief and damages, and the EAHCA theory in support of prospective relief.

1. State Law Claims

Defendants' attack on William's state law theories at the summary judgment stage was a throwaway. Apparently they assumed if the federal law claims passed muster, summary judgment would be inappropriate anyway. In any event they urged only that this Court dismiss William's state law claims along with the federal under United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). Having approved federal theories of relief, Opinion III, 572 F. Supp. at 518 retained the state theories as well.

Now the state law component of this case has evaporated. Since Opinion III was issued in September 1983, Pennhurst State School & Hospital v. Halderman, ___ U.S. ___, 104 S.Ct. 900, 921, 79 L.Ed.2d 67 (1984) has unequivocally declared federal courts cannot enforce state law against the state and its agents. William's attempts to distinguish Pennhurst cannot be reconciled with its broad language.*fn7 Consequently his state law claims are dismissed without prejudice pursuant to Rule 16.

2. Equal Protection Claims

Opinion I, 536 F. Supp. at 511 refused to reject William's equal protection theory under Rule 12(b)(6), stating:

  To withstand a motion to dismiss, William need only allege he
  and others in his category have been deprived of the right to
  education, while other non-handicapped children enjoy that
  right. That places the burden on the state either (a) to rebut
  the allegation of deprivation or (b) to justify the deprivation
  by asserting some legitimate state interest.

Opinion III, 572 F. Supp. at 517-18 then denied summary judgment to defendants on William's equal protection claims because defendants had come forward with neither (1) a valid explanation of why William had not met his burden nor (2) any evidence to meet the state's burden.*fn8

Now, in attempting to narrow the issues for trial, defendants have belatedly produced some evidence of the state's legitimate interest in its classification scheme. That finally enables this Court to lay the requirements of the Equal Protection Clause alongside William's asserted showing of unequal treatment, to see whether the latter measures up to the former.

In Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) the Supreme Court explained the equal protection analysis associated with the denial of educational opportunities. It said (id. at 223, 102 S.Ct. at 2398, citing San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28-39, 93 S.Ct. 1278, 1293-1300, 36 L.Ed.2d 16 (1973)):

  Nor is education a fundamental right; a State need not justify
  by compelling necessity

  every variation in the manner in which education is provided to
  its population.

However it went on to say (id. 457 U.S. at 223, 224, 102 S.Ct. at 2398, 2399) the denial of "a basic education" imposes heavy "costs to the Nation and to the innocent children who are its victims." Thus it concluded (id. at 224, 102 S.Ct. at 2398) such a policy of denial of education "can hardly be considered rational unless it furthers some substantial goal of the State."

Plyler thus appears to teach the outright denial of educational opportunities to the handicapped would have to be supported by a substantial state interest. But William has not shown any such absolute denial. Rather William has shown a single individual (William himself) was sent before a multidisciplinary staff conference (instead of being served by District 220 alone) because his needs were classified as "primarily non-educational." That conference then procured for its one individual (William) an offer of free residential placement (it may be inferred for current purposes, without deciding the issue, that placement was not an "appropriate" one). Additionally, William's belated current submission (see n. 15) arguably shows some delays in placement decisions as to a few other children (a matter discussed later in this opinion).

But William has not shown other handicapped children were denied "appropriate" educational placement because of the threshold primarily-educational vs. primarily-non-educational needs determination, nor has he even shown his own situation would have been any different had his educational placement decision not begun with the determination whether his needs were primarily educational or non-educational. In short William has shown the Policy does divide the handicapped into two groups for different treatment. That mere difference, though, is not enough: William has tendered no evidence demonstrating the Policy usually (or even ever) leads to worse treatment for the group to which he belongs once final placement decisions are made.

William's efforts to characterize his presentation differently are to no avail. He refuses to address state defendants' showing of a state interest because he says (Feb. 8 Mem. 8) it "is irrelevant to a determination of whether the state has a substantial interest in refusing placements which are not solely for educational purposes." But that is simply a mischaracterization by William of his own lack of showing. He has not demonstrated the state refuses non-educational placements; instead he has shown the local school district refuses non-educational placements. There is no evidence the former denial ever occurs. In the only example before this Court (William's own case), the state did in fact offer a non-educational placement. Yet it is only a refusal by the state to do the latter that state defendants must justify.

State defendants have indeed put forward a legitimate state interest, sufficient to justify the Policy under the Equal Protection Clause. Gill Aff. ¶ 4 states:

  [The Policy] serves to draw upon the professional expertise of
  employees of the various state code agencies affected to
  provide appropriate programs and placements for handicapped
  children of this State. It further serves to make available a
  wider variety of placements for handicapped children to better
  accommodate their needs. In addition, Affiant believes that it
  is far more appropriate for mental health professionals and
  trained social service workers to make recommendations and
  decisions that will affect removal of children from their homes
  or placement in treatment facilities, hospitals or other
  similar institutions.

That asserted justification is administrative in nature. It would not constitute a "substantial state interest" if the Policy were in fact applied as William urges — to deny education. Plyler however makes clear equal protection analysis is more flexible than that. Here William has not shown an absolute denial of education, prohibited in Plyler. Instead he has shown William and others like him must pursue placement by seeking grants from a variety of state agencies rather than obtaining needed financing and services directly from a single source, their local school district.

Where William has failed is in showing — as he promised by his class definition — such children do not ultimately receive those grants. Thus the Policy works a deprivation in a very limited sense: inability to look only to the school district for all needs, and perhaps some delay occasioned by the complexity of the non-educational needs of the handicapped. But that deprivation is amply justified by the state's interest in limiting the authority of local school districts to their areas of expertise, and by related concerns as stated in Gill's affidavit.*fn9

William has thus lost in this area as well. His claims on behalf of both himself and the class are denied pursuant to Rule 16 — in this instance with prejudice.

3. EAHCA Claims

Finally William argues defendants denied him and his class their right to a free appropriate education under EAHCA. Originally William sought damages for himself but not the class under that theory, but Opinion III, 572 F. Supp. at 516-17 rejected William's claim to such damages. Thus both William and the class are now limited to prospective relief under EAHCA.

William's status has changed, mooting his claim for prospective relief. When William moved from Barrington to Arlington Heights, local defendants lost all prospective duties and obligations toward him. State defendants still have obligations to William under EAHCA, but the entire case against them would have to change for William to show he is entitled to prospective relief in his current situation. William has no evidentiary basis for claiming they have denied his right to an appropriate education as to any request for special education and related services in Arlington Heights. Even were that not so, he has not exhausted administrative remedies in that locality as required by Timms v. Metropolitan School District, 722 F.2d 1310, 1316-17 (7th Cir. 1983).

Moreover William's problem is not "capable of repetition yet evading review," so as to permit his personal stake in the controversy to survive his move from Barrington. William argues he would be a beneficiary of a declaration the Policy is invalid. That contention fails under City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), which held a citizen could not obtain an order enjoining police against using "chokeholds" after being subjected to one unless (id. 103 S.Ct. at 1669) he himself "faced a real and immediate threat of again being illegally choked." Without that kind of personalized showing the capable-of-repetition doctrine simply does not apply in favor of an individual seeking an injunction. Here, as already explained in the "Equal Protection Claims" section of this opinion, William has not demonstrated the Policy generally imposes on handicapped children in his present community the type of problem he has experienced in Barrington.*fn10

William founders independently on the second prong of the test: "evading review." William was nine when this action was filed and is about twelve today. Had he not moved, his case could have gone to trial in the near future. If (contrary to his past experience) he is denied appropriate education in Arlington Heights, he should be able to assert and adjudicate his claim within the time EAHCA protects him. Consequently he simply does not fit the mold of claimants whose adverse experiences "evade review." See Lyons, 103 S.Ct. at 1669.

William himself is thus out of court. But that does not necessarily require dismissal of a class action. Sosna v. Iowa, 419 U.S. 393, 399-403, 95 S.Ct. 553, 557-559, 42 L.Ed.2d 532 (1975). Nonetheless the propriety of continued class certification must be evaluated in light of the conclusions already reached: the mootness of William's individual EAHCA claim, the required dismissal without prejudice of William's and the class's state law claims, and the invalidity of their Equal Protection Clause claims. All those things considered, this Court must also conclude William's evidentiary presentation as to other class members is not adequate to warrant continued class certification.*fn11

William simply has not shown any of his fellow class members have been denied their substantive rights under EAHCA to a free appropriate education. True, he has shown the Policy often is responsible for refusals by local school districts to pay for "related services." And in his own case he has demonstrated, though such a refusal did not deprive him of "related services" altogether, the services offered might not have permitted him to receive an appropriate education. As discussed in this opinion's "Equal Protection Claims" section, that bare showing creates no reasonable inference any of William's fellow class members have been denied appropriate education by the Policy. William has proved nothing at all about the experience of a typical class member affected by the Policy.

William's most recent evidentiary submission (see n. 15) suggests even though class members may ultimately receive appropriate educational placement, the delay occasioned by the Policy to some few of them may violate EAHCA. That potential theory is really nonpersuasive on its merits (even apart from the dubiousness of its being advanced at this late stage of the litigation*fn12):

    1. As a matter of proof, a showing that some handicapped
  children experience delays in obtaining educational placement
  is only half the story. William would also have to establish
  (and he has not even addressed the subject) the
  non-educational needs of such children would not occasion the
  same kinds of delay even in the absence of the Policy. Gill
  Aff. ¶ 4 illustrates that — Policy or no Policy —
  non-educational placement decisions may require the
  assemblage of people with expertise not possessed by local
  school districts.

    2. Even if it could be said William had proved something by
  showing a few class members have experienced delay, he has
  not shown such delay has amounted to a denial of a free
  appropriate education in violation of EAHCA. Georgia
  Association of Retarded Citizens v. McDaniel, 716 F.2d 1565
  (11th Cir. 1983) illustrates the correct approach to pursuing
  procedural EAHCA grievances by a class. There (id. at
  1574-75) plaintiffs presented evidence the challenged
  procedure denied appropriate education to the class in
  general. Thus even though the claim of the named plaintiff
  had become moot, id. at 1571, under Sosna principles the
  class obtained an injunction against the challenged procedure
  and the injunction was upheld on appeal.

    3. Even apart from the just-described flaws, William's small
  number of scattered examples would fail the "numerosity"
  component of class certification.

So neither William's original nor his new theories of EAHCA violations pass muster under his showing (or more accurately, lack of showing) on behalf of the class.*fn13 It should be stressed this does not betoken any firm conviction the Policy is lawful under EAHCA. Rather dismissal is necessitated because William has not garnered sufficient evidence about any purported class member but himself. This is a problem of adequacy of class representation, to be disposed of under Rule 23 rather than Rule 56.

William's absence of proof on behalf of the class poses still another problem of class representation. After all the class is defined as handicapped children denied services.*fn14 William's failure to demonstrate any handicapped children ultimately were denied those services is a failure of proof the class has any members. William urges the class has numerous members because the Policy has been used by local school districts to deny funding to handicapped children in the first instance.*fn15 But that limited showing does not establish those children never received funding or related services from any state agency — especially in light of William's own experience. Finally, even were the few instances of possible delay adduced by his last submission legally sufficient (as they are not), he would still fail the numerosity test.

In short, decertification is within the discretion of this Court for any of three reasons:

    1. This is a class action in which the named plaintiff's
  claim has become moot. What remains of the controversy is not
  "an appropriate one for passing on . . . [statutory]
  questions" (Doe v. Fahner, 516 F. Supp. 514, 515 (N.D.Ill.
  1981)), because formal discovery is complete and evidence on
  whether the class should be afforded relief is inadequately

    2. Decertification under Rule 23 is appropriate because
  William is no longer an adequate class representative — not
  because his lawyers have not prosecuted this action
  diligently and skillfully (they have), but because they were
  unprepared for the possibility they would have to rely on
  evidence of denial of appropriate education to children other
  than William.

    3. Decertification also is appropriate because evidence does
  not support the class's claims of numerosity.

Accordingly the class is decertified. Though this Court has decided the Policy has not been shown to violate EAHCA, no res judicata impact on putative class members is appropriate.*fn16


This action is dismissed. That result is occasioned by the following rulings in this opinion:

    1. Defendants' issue-narrowing motion is granted in part, not
  in its mislabeled Rule 56 garb but under Rule 16:

      (a) All William's state law claims are stricken without
    prejudice as to both William and the class.

      (b) William's Equal Protection Clause claims are denied
    with prejudice as to both William and the class.*fn17

    2. William's individual EAHCA claim for prospective relief is
  dismissed as moot.

    3. As permitted by Rule 23(c)(1), the class is decertified
  because William has failed:

      (a) to perform as an adequate class representative by
    garnering evidence about the class from which it could

    fairly be determined whether the Policy violates EAHCA and

      (b) to establish that the class is sufficiently (or at all)

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