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MAX M. v. THOMPSON

September 4, 1984

MAX M., AND HIS PARENTS, MR. & MRS. M., PLAINTIFFS,
v.
JAMES R. THOMPSON, ET AL., DEFENDANTS.



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

  ORDER

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.

I. BACKGROUND

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 facts have 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.

II. THE ISSUES

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.

III. DISCUSSION

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 1979-1980 year.

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.

C. THE WAIVER ISSUE

All defendants assail the plaintiffs' reinstated claim for compensatory education alleging that the Ms failed to raise this request for relief at the administrative review level. The defendants contend that no specific requests for special education for Max were ever made to the state review boards, nor did ...


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