The opinion of the court was delivered by: Bua, District Judge.
This order concerns the defendants' motion under
Fed.R.Civ.P. 59(e) to amend this Court's order in Max M. v.
Thompson, 585 F. Supp. 317 (N.D.Ill. 1984) (Max M. II), wherein
this Court reinstated the plaintiffs' claim against all
defendants for compensatory educational services under the
Education for All Handicapped Children Act (EAHCA). For the
reasons stated herein, defendants' motion is granted in part
and denied in part.
The plaintiffs' original complaint presented claims which,
although grounded on several statutes, were basically derived
from the Education For All Handicapped Children Act (EAHCA),
20 U.S.C. § 1401 et seq. (1976).*fn1 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 right to a "free and appropriate
public education." 20 U.S.C. § 1415(A) (1976). The relevant
been set forth in Max M. II and need not be restated in detail
for purposes of this order.
The plaintiffs are Max M., a child handicapped within the
meaning of the EAHCA, and his parents. The plaintiffs named as
defendants in the original complaint three sets of defendants
designated as the "State Defendants," the "Intermediate
Defendants," and the "Local Defendants." The State Defendants
included: (1) James R. Thompson, Governor of Illinois; (2) the
Illinois State Board of Education (ISBE); (3) Donald Gill, the
Illinois Superintendent of Education; and (4) Edward Copeland,
the Chairperson of the Illinois State Board of Education. The
Local Defendants were: (1) New Trier High School District #
203 (District # 203); (2) the New Trier District # 203 Board
of Education; (3) Ronald Bickert, Superintendent of Schools in
District # 203, and (4) James Wolter, Director of Special
Education for District # 203. The final group of defendants,
the Intermediate Defendants, included: (1) the North Suburban
Special Education District (NSSED); and (2) Stanley Bristol,
Superintendent of the NSSED.
In this Court's published order of July 1, 1983, Max M. v.
Thompson, 566 F. Supp. 1330 (N.D.Ill. 1983), (Max M. I) the
plaintiffs' claims were addressed.*fn2 In Max M. I, this Court
dismissed all claims against all defendants except for the
claim against the Local Defendants under § 1415(e)(2) of the
EAHCA for reimbursement of the $8,855 expended by Mr. and Mrs.
M. for Max' psychiatric psychotherapy. Max M., at 1340.
Thereafter, in light of intervening Seventh Circuit precedent,
the plaintiffs moved for reconsideration of their previously
dismissed compensatory education and procedural due process
claims. In an order entered on April 23, 1984, this Court
resurrected the plaintiffs' claim for compensatory remedial
educational services against all State, Intermediate and Local
Defendants, but denied plaintiffs' request to have their
procedural due process claim reinstated. Max M. v. Thompson,
585 F. Supp. 317 (N.D.Ill. 1984). The impetus for this Court's
new ruling with regard to the compensatory education claim was
supplied by the recent Seventh Circuit decision in Timms v.
Metropolitan School District of Wabash County, 722 F.2d 1310
(7th Cir. 1983). The Timms decision, as intervening and
controlling precedent, served to recharacterize the plaintiffs'
request for compensatory education as a claim for prospective
rather than retroactive relief. This recharacterization of the
nature of the requested relief removed the plaintiffs' claim
for compensatory education from the impediments discussed in
Max M. I and provided a new basis for sustaining the
plaintiffs' motion on the issue of relief.
The State, Intermediate, and Local defendants oppose this
Court's order reinstating the plaintiffs' claim for
compensatory educational services. Essentially, the defendants
contend that irrespective of the determinations made in
Max M. II, the claim for compensatory education was waived by
the plaintiffs through their failure to raise the second issue
at the administrative hearing stage. The defendants also argue
that the issue of compensatory education has become moot
because Max has passed the age of 21 and is no longer eligible
for EAHCA benefits. At a second level, the individual State
Defendants argue that the plaintiffs have failed to allege
sufficient acts of wrongdoing against them, and that as a
matter of law, all named State Defendants should be released
from this action. Alternatively, the State Defendants argue
that irrespective of the Court's holding in Max M. II, the
State Defendants carry no responsibility under the EAHCA for
the decisions of the Local Defendants to provide educational
services. Thus, the State Defendants contend they are not the
proper defendants in an action for a local school district's
alleged failure to provide adequate educational services to a
handicapped child. Thus, four issues are presented in the
defendants' motion for
reconsideration: (1) whether the plaintiffs failed to raise
their claim for compensatory educational services at the state
level administrative proceedings, thus affecting a waiver of
such relief; (2) whether the plaintiffs' claim for
compensatory educational services has become mooted because
Max has exceeded the age under which EAHCA benefits are
assured; (3) whether the plaintiffs' have alleged sufficient
wrongdoing on the part of the individual State Defendants; and
(4) whether the EAHCA accords ultimate responsibility to the
State Defendants to assure the proper provision of educational
services to handicapped children. Before addressing the issues
raised, this Court will review the history of the plaintiffs'
claim for compensatory education in Max M. I and Max M. II.
A. COMPENSATORY EDUCATION CLAIM IN MAX M. I
In Max M. I, this Court denied plaintiffs' requests for
compensatory remedial educational services*fn3 and injunctive
relief prohibiting the appointment of state employees to the
state review panel. In stating their claim for compensatory
education, the plaintiffs contended in their initial complaint
that such relief was required to undo the harm caused to Max
which resulted from his being deprived of intensive
psychotherapy while at New Trier High School. In the absence of
any authority from the Court of Appeals for the Seventh Circuit
on the question of compensatory services, this Court looked to
the Eighth Circuit decision in Miener v. State of Missouri,
673 F.2d 969 (8th Cir. 1982). In Miener, the Eighth Circuit ruled
that claims for compensatory services were essentially
retroactive rather than prospective in nature. The Miener Court
reasoned that compensatory services were indistinguishable from
reimbursement, since such relief would be measured against past
educational deprivation. Miener's characterization of a claim
for compensatory services as retroactive provided the first
step in two distinct lines of reasoning in Max M. I, one of
which led to dismissing the claim against the State Defendants.
The other led to the dismissal of the claim against the Local
and Intermediate Defendants.
With regard to the State Defendants, the nature of the
plaintiffs' claim raised an Eleventh Amendment bar. In
establishing that the plaintiffs' claim for compensatory
services was retroactive in nature, this Court relied on the
U.S. Supreme Court decision of Edelman v. Jordan, 415 U.S. 651,
94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). In Edelman, the Supreme
Court held that when the relief sought from a state is
retroactive rather than prospective in nature, the Eleventh
Amendment immunizes the state from suit. Id. at 688, 94 S.Ct.
at 1368. Thus, the plaintiffs' claim for compensatory services
was dismissed against the State Defendants.
Although no Eleventh Amendment bar operated to insulate the
Local and Intermediate Defendants from the plaintiffs' claim,
the Miener characterization of compensatory services as
retrospective relief again provided the first step in this
Court's analysis of the case as to such defendants. The second
step was provided by the Seventh Circuit in Anderson v.
Thompson, 658 F.2d 1205 (7th Cir. 1981). In Anderson, the Court
explored the legislative intent behind 20 U.S.C. § 1415(e)(2)
(1978), the EAHCA provision permitting private actions. The
Anderson Court concluded that the purpose of § 1415(e)(2) was
to offer prospective relief for the period of time during which
a handicapped student would remain eligible to receive EAHCA
benefits. Anderson, 658 F.2d at 1213-14. Only in narrowly
defined "exceptional circumstances"*fn4 was retroactive
relief, like reimbursement,
to be available under the EAHCA. Id. The threshold requirement
for such retroactive relief under Anderson is that the claim be
limited to reimbursement for plaintiffs' out-of-pocket expenses
incurred in obtaining services already received. Id. at 1214.
Thus, in view of the Miener and Anderson holdings, this Court
dismissed the plaintiffs' compensatory education claim because
under Miener, the claim was not prospective in nature and under
Anderson, it was not a claim for out-of-pocket expenditures.
Max M., 566 F. Supp. at 1337.
B. COMPENSATORY EDUCATION CLAIM IN MAX M. II
Shortly after this Court's order in Max M. I, the Seventh
Circuit ruled on the issue of compensatory services under the
EAHCA in Timms v. Metropolitan School District of Wabash
County, 722 F.2d 1310 (7th Cir. 1983). In Timms, the plaintiffs
requested compensatory educational services for their
handicapped child, Sarah. Contesting the Individualized
Educational Program (IEP) developed for Sarah, the parent
plaintiffs sought full day rather than part-time special
education for their daughter. Full time instruction was granted
in September of 1980, but one month later, Sarah reached the
EAHCA age eligibility cut-off and was refused further
educational services. The Timmses brought suit seeking relief
in the form of compensatory education for the shortened
Addressing the plaintiffs' claim, the Seventh Circuit
recognized that Sarah's age would moot the plaintiffs' request
for injunctive relief unless compensatory education is a
permissible remedy under the EAHCA for the past inappropriate
placement, so as to extend the state's obligation to provide
a free appropriate education past its usual termination.
Timms, 722 F.2d at 1314. The Timms court noted the Eighth
Circuit holding in Miener which compared a claim for
compensatory educational services to a claim for a damage award
and characterized the request for educational services as
retrospective in nature. However, the Timms court refused to
adopt the Miener reasoning stating, "Whether the two remedies
are indistinguishable is not so clear to us." Id. at
1315. Instead, the Seventh Circuit relied on the U.S. Supreme
Court desegregation case, Milliken v. Bradley, 433 U.S. 267, 97
S.Ct. 2749, 53 L.Ed.2d 745 (1977) to come to the conclusion
that the plaintiffs' request for compensatory educational
services was a claim which was prospective in nature. Although
the plaintiffs' claim for compensatory services in Timms was
ultimately denied on other grounds, this Court determined in
Max M. II that the position taken in dicta by the Timms court
was not a causal aside, but a considered conclusion by the
Seventh Circuit entitled to considerable deference.
Reconsidering Max M. I in light of the Timms decision, this
Court reinstated the plaintiffs' claim for compensatory
educational services against all defendants. The
recharacterization of the relief requested as prospective in
nature removed the bar of the Eleventh Amendment which had
insulated the State Defendants under Edelman v. Jordan,
415 U.S. 651, 688, 94 S.Ct. 1347, 1368, 39 L.Ed.2d 662 (1974).
Moreover, the Local and Intermediate Defendants were no longer
immune from action under the limitation on retroactive relief
set out in Anderson v. Thompson. The plaintiffs' claim,
characterized as prospective under Timms, now rested squarely
within the sphere of claims intended under the EAHCA.