United States District Court, Southern District of Illinois, East St. Louis Division
November 6, 1987
JOHNNY DOE, A MINOR, BY HIS MOTHER AND NEXT FRIEND, MS. JANE DOE, PLAINTIFF,
BELLEVILLE PUBLIC SCHOOL DISTRICT NO. 118 AND THE BOARD OF EDUCATION OF BELLEVILLE PUBLIC SCHOOL DISTRICT NO. 118, DEFENDANTS.
The opinion of the court was delivered by: Foreman, Chief Judge:
MEMORANDUM AND ORDER
This matter is before the Court on defendants' Motion to
Dismiss (Document No. 4a). The basis for the motion is that
the plaintiff has failed to exhaust his administrative
remedies as required by The Education for All Handicapped
Children Act (EAHCA), 20 U.S.C. § 1415(e)(2). See also Smith v.
Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984);
Timms v. Metro. Sch. Dist. of Wabash County, Ind.,
722 F.2d 1310 (7th Cir. 1983).
Plaintiff Johnny Doe is a six-year-old male child who was
diagnosed as having Hemophilia B as an infant. Subsequent to
that diagnosis, made in August of 1986, he was diagnosed as
having Acquired Immune Deficiency Syndrome (AIDS). During the
1986-87 school year, Johnny attended kindergarten at a public
school in Harmony School District No. 175. Sometime before the
end of that school year, Johnny and his mother moved to a new
school district where, by virtue of the timing of the move, he
was required to enroll in the first grade in Belleville
District No. 118.
School officials were notified that Johnny was a hemophiliac
and that he had been diagnosed as having AIDS. Subsequent to
that notification it appears the Board of Education decided
that it needed to formulate a "policy" to serve as their basis
in placing him. The final version of this policy, titled
"Policy Regarding Children With Chronic Communicable
Diseases," was adopted by the Board on July 21, 1987.
Following the guidelines set forth in the policy, the Board
appointed an interdisciplinary Placement Evaluation Committee
which supplied a factual analysis of plaintiff's case to the
Board for its use in determining appropriate placement for
him. On August 25, 1987, the Board met in executive session
with plaintiff's mother and her attorney and thereafter
unanimously decided to exclude Johnny from the normal
classroom and, instead, to provide him with a tutor in his
home. It is this exclusion that plaintiff alleges gives rise
to his claim of discrimination in violation of Section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794.
The defendants urge this Court that it lacks subject matter
jurisdiction over the case by virtue of plaintiff's alleged
failure to exhaust his state law administrative remedies as
required by 20 U.S.C. § 1415(e)(2) and the law of this Circuit.
See Timms, supra, 722 F.2d 1310. The plaintiff, on the other
hand, contends that he is not "handicapped," as that term is
statutorily defined in EAHCA, and thus is not afforded a remedy
by that Act. Consequently, plaintiff argues that he is not
required to exhaust his administrative remedies because his
claim does not arise under EAHCA, but rather under the
Rehabilitation Act. Exhaustion of remedies is not
required under the Rehabilitation Act. Timms, supra, at 1318,
Because defendants' argument relies on the applicability of
EAHCA to the plaintiff, the Court must determine if
plaintiff's diagnosis of AIDS brings him within the statutory
definition of a handicapped individual and is, therefore,
subject to the exhaustion requirement.*fn1 EAHCA defines
"handicapped children" as children who are:
mentally retarded, hard of hearing, deaf, speech
or language impaired, visually handicapped,
seriously emotionally disturbed, orthopedically
impaired, or other health impaired children, or
children with specific learning disabilities, who
by reason thereof require special education and
20 U.S.C. § 1401(a)(1). [Emphasis added.]
In this case the parties agree that the only category into
which Johnny fits is that of "other health impaired children."
That phrase is defined as children who have:
[l]imited strength, vitality or alertness due to
chronic or acute health problems such as a heart
condition, tuberculosis, rheumatic fever,
nephritis, asthma, sickle-cell anemia,
hemophilia, epilepsy, lead poisoning, leukemia, or
diabetes, which adversely affects a child's
34 C.F.R. § 300.5(b)(7). [Emphasis added.]
In applying these definitions to the plaintiff, the Court
concludes that three tests must be met before the provisions
of EAHCA can be made to apply in this case: 1) there must be
limited strength, vitality, or alertness due to chronic or
acute health problems, 2) which adversely affects a child's
educational performance, and 3) which requires special
education and related services. Here, the record reveals
virtually no evidence that plaintiff suffers from limited
strength, vitality, or alertness.*fn2 Furthermore, given such
evidence as is in the record of Johnny's limited strength,
there is virtually no evidence that this limitation has
adversely affected his educational performance.*fn3
The Court also finds it noteworthy that, while the
defendants assert that Johnny's hemophilia brings him within
the statutory definition of "other health impaired children,"
the health impairment they are apparently concerned with is
Johnny's AIDS virus.*fn4 AIDS is not listed as an example of
an acute or chronic health problem in the statute.
Furthermore, the United States Department of Education,
directly addressing the applicability of EAHCA to AIDS
victims, has opined that a child with AIDS might be considered
"handicapped" under EAHCA, depending upon his or her condition.
2 EHA Rulings, Education for the Handicapped Law Report (EHLR)
(CRR) 211:343 (Oct. 26, 1984). More significantly, the
Department's opinion concludes that a child with AIDS is not
considered to be "handicapped," as the term is defined in the
EAHCA, unless he or she needs special education. Id., at
211:344. With respect to the availability of special education
programs for children with AIDS, the opinion states:
Children with AIDS could be eligible for special
education programs under the
category of `other health impaired,' if they have
chronic or acute health problems which adversely
affect their educational performance.
Based on the Department of Education's opinions and the
tenor of the statutory language, the Court concludes that
EAHCA would apply to AIDS victims only if their physical
condition is such that it adversely affects their educational
performance; i.e., their ability to learn and to do the
required classroom work. There is no such showing at the
present time, and it seems clear that the only reason for the
Board's determination that Johnny needs "special education" is
the fact that he has a contagious disease — AIDS. In the
Court's opinion, given the facts of this case as they now
exist, the provisions of EAHCA would not apply to the plaintiff
at this time.
This conclusion is further buttressed by the Board's own
actions. For example, at no time did the Board or its counsel
advise the plaintiff that Johnny's placement was being treated
as an individual education program (IEP) under EAHCA. More
significantly the "policy" promulgated by the Board did not
provide the rather detailed procedural safeguards mandated by
EAHCA. In fact, the policy itself states that any appeal
procedures otherwise available to an individual (such as those
provided in EAHCA), which are contrary to those expressly set
forth in the policy, are not applicable. Also, there appears
to have been no policy at all regarding placement of children
with contagious diseases until the plaintiff attempted to
enroll in the district.*fn5 Thus, the policy appears to be
more an ad hoc reaction to plaintiff's case than a
well-established plan promulgated by the district under the
auspices of EAHCA.
For these reasons, the Court is of the opinion that the
Board itself did not consider Johnny's situation one to which
EAHCA would apply. That being the case, the Court finds that
the plaintiff is not required to exhaust his administrative
remedies, and that it has subject matter jurisdiction over
this case by virtue of 28 U.S.C. § 1331.
Finally, even assuming arguendo that EAHCA does apply and
exhaustion is required, it is well established that a plaintiff
need not exhaust administrative remedies where the exercise of
those remedies would be futile. Riley v. Ambach, 668 F.2d 635,
641 (2nd Cir. 1981). Furthermore, exhaustion is not required if
the only available administrative remedy is plainly inadequate.
Riley, supra, id.
Here, it is abundantly clear from the record that exhaustion
would be futile. This conclusion is reached for a variety of
reasons, not the least of which is the Board's failure to
follow the Illinois Department of Public Health's guidelines
for placing children with contagious diseases. The Board's
failure to follow the guidelines apparently resulted in the
director of that agency writing a letter to the editor of a
local newspaper critical of the Board's decision.
Additionally, and more importantly, there is the fact that the
Board and its counsel apparently advised the plaintiff that
his only mechanism for appeal of their decision was the
monthly review provision set forth in the policy.*fn6
An even cursory review of the language of that provision
reveals it to be plainly inadequate. It provides no mechanism
for an independent review of an individual's
case by any entity other than the Board, which of course made
the original decision. Furthermore, it vests the medical
decision-making in the school district nurse as opposed to a
doctor and, in any event, does not seem to require expertise
in infectious or contagious diseases on the nurse's part.
These defects, when coupled with the language exempting the
policy from other appellate mechanisms inconsistent with its
terms, convince the Court that as a practical matter no
meaningful administrative remedies exist for this plaintiff.
Thus, the Court finds that even if EAHCA does apply,
exhaustion in this case would not be required because it would
indeed be futile.*fn7
For the above-stated reasons, the Court is of the opinion
that defendants' Motion to Dismiss (Document No. 4a) should
be, and hereby is, DENIED.
IT IS SO ORDERED.