reimbursement. Moreover, that offer came rather late in the game, i.e., almost a year after the first administrative proceeding and less than a month before our ruling on the motion for a preliminary injunction. We have no doubt that an interagency agreement as required by section 1413(a)(13) might have obviated the problem and need for this litigation altogether.
Nevertheless, the lack of an interagency agreement was not the only cause of this litigation. A contributing cause was the School District's own position that residential placement was inappropriate for Devin. This position, however, was not an unreasonable one. On the contrary, both the Level I Hearing Officer and the Level II Review Officer concurred with the School District's recommendation. More importantly, it was also the position the School District maintained throughout the course of this litigation even after ISBE offered full reimbursement for the costs of residential placement. We find it inconceivable that the School District would have prolonged this litigation through both administrative and judicial proceedings unless it truly believed residential placement was inappropriate for Devin.
We therefore conclude that both the School District's position that residential placement was inappropriate for Devin and the lack of an interagency agreement were contributing causes of this litigation and the School District's damages before August 24, 1994. Any damages incurred after ISBE offered to fund residential placement resulted solely from the School District's own litigation position for which it may not recover. We must now determine how to apportion the damages incurred prior to August 24, 1994 based on our conclusion that all parties, ISBE, DMHDD, and the School District, were responsible for this litigation.
The Illinois Appellate Court addressed a similar issue in Community Consol. School Dist. No. 54 v. Illinois State Bd. of Education, 216 Ill. App. 3d 90, 576 N.E.2d 250, 159 Ill. Dec. 581 (Ill.App.Ct. 1991).
In that case, the local school district (the "District") recommended that Patrick S., a handicapped child of primary school age, be placed in a restrictive special education class. Similar to the instant case, Patrick's parents disagreed with the placement believing that Patrick's special education needs required residential placement. A Level I Hearing Officer subsequently agreed and ordered that Patrick receive residential placement funded by the District. A Level II Review Officer affirmed that decision.
After losing at both administrative levels, the District filed a declaratory action in the Circuit Court of Cook County against ISBE and DMHDD seeking judicial review of the Level II decision or, in the alternative, a declaration of funding responsibility of ISBE and DMHDD of the placement decisions were upheld. Patrick's parents subsequently filed an emergency motion to implement residential placement. Circuit Court Judge Marjan P. Staniec granted the motion and ordered the District to pay tuition and ISBE and DMHDD to share the costs of room and board. Judge Staniec also ordered the District to pay the attorney's fees of the parents at prevailing parties. The District then moved to allocate attorney's fees to ISBE and DMHDD in whole or in part. Judge Staniec, however, refused to apportion fees finding that the District had unreasonably prolonged the proceedings leading to Patrick's placement.
On appeal, the District argued that it only disputed the necessity of Patrick's residential placement because of ISBE's and DMHDD's refusal to accept responsibility for the cost thereof. The Court disagreed and found both parties at fault. "The School District was responsible for this litigation in light of the fact that it challenged Patrick's need for residential placement. Furthermore, DMHDD refused to assume financial responsibility for the cost of residential placement thereby compelling the School District to continue to litigate through administrative and judicial appeals." Community Consol. School Dist. No. 54, 216 Ill. App. 3d at 96. The Court therefore determined that responsibility for fees should be apportioned. Id. at 94. "Given the interrelationship between their responsibilities with respect to Patrick's residential placement and focusing on the relative degree of culpability among the agencies, we conclude that the School District, ISBE, and DMHDD, are each equally responsible for the attorneys fees." Id. at 96.
We find the reasoning in Community Consol. School Dist. No. 54 compelling in the instant case. The attorney's fees in question were incurred both as a result of the State Agencies' failure to comply with the IDEA and the School District's opposition to Devin's residential placement. Considering the relative fault of each party, equal apportionment is a fair and equitable division of the damages incurred before August 24, 1994. Accordingly, we grant the School District's motion for summary judgement on Count I of the cross-claim and third-party complaint and deny the State Agencies' cross-motion. We hereby order that ISBE and DMHDD shall each reimburse the School District for one third (1/3) of the attorney's fees incurred by Barbara Z. prior to August 24, 1994 when ISBE offered to fund residential placement.
II. Rehabilitation Act of 1973
Count II of the cross-claim alleges that the lack of an interagency agreement as required by section 1413(a)(13) of the IDEA violates section 504 of the Rehabilitation Act of 1973, which states in relevant part:
No otherwise qualified individual with a disability in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
29 U.S.C. § 794(a). "The basic purpose of § 504... is to ensure that handicapped individuals are not denied jobs or other benefits because of the prejudicial attitudes or ignorance of others." School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 284, 94 L. Ed. 2d 307, 107 S. Ct. 1123 (1987), rehearing denied, 481 U.S. 1024, 95 L. Ed. 2d 519, 107 S. Ct. 1913 (1987); see also Smith v. Robinson, 468 U.S. 992, 82 L. Ed. 2d 746, 104 S. Ct. 3457 (1984)(§ 504 protects handicapped persons of all ages from discrimination in a variety of programs and activities receiving federal financial assistance). A plaintiff basing her claim upon the Act must establish that (1) she is an individual with handicaps; (2) she is otherwise qualified; (3) she is excluded from programs solely because of the handicap; and (4) the programs from which she is excluded are operated from an agency that is federally funded. Byrne v. Board of Educ., School of West Allis-West Milwaukee, 979 F.2d 560, 563 (7th Cir. 1992)(citing Taub v. Frank, 957 F.2d 8, 10 (1st Cir. 1992); Gilbert v. Frank, 949 F.2d 637, 640 (2nd Cir. 1991)).
In the present case, the School district cites no authority in support of its claim that it may recover attorney's fees under the Rehabilitation Act for a violation of the IDEA. In fact, the School District does not address this claim at all in its briefs beyond summarily concluding that it is entitled to summary judgment. Likewise, we see no reason to discuss it in detail here. The Rehabilitation Act protects disabled persons, not school districts. The School District may not bring a claim under the Rehabilitation Act for a violation of the IDEA. Accordingly, we grant the State Agencies' motion for summary judgment as to Count II of the cross-claim and deny the School District's cross-motion.
III. 42 U.S.C. § 1983
Count III of the cross-claim and Count II of the third-party complaint allege a violation of 42 U.S.C. § 1983, which provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.