Anderson v. ThompsonAnderson v. Thompson
1 At issue in this appeal is whether the district court, in reviewing a state administrative decision regarding the special education program for a handicapped student under the Education for All Handicapped Children Act (EAHCA),
2 * Monica Anderson, a Wisconsin resident and daughter of plaintiffs-appellants James E. and Shirley A. Anderson, has been diagnosed as a child with exceptional educational needs, requiring under the EAHCA,
3 The plaintiff-parents brought action in the district court pursuant to section 615(e)(2) of the EAHCA,
4 Monica began her education at St. Francis Children‘s Activity and Achievement Center (St. Francis), a private institution devoted to the education of children with special educational needs. She attended the school full-time during the 1972-73 school year and the following year, attended St. Francis and a West Allis public school kindergarten each on a part-time basis. Under Wisconsin law, a child must be tested if there is a reasonable chance to believe that the child has exceptional educational needs. Monica was examined by a West Allis multi-disciplinary team (M-team), skilled in assessing needs for special education. In June 1974, the M-team recommended alternative placements for her, either in a classroom for the educable mentally retarded with eventual mainstreaming into the regular first grade, or in a regular first grade class with transitional teacher help plus a reassessment by a learning disability teacher during the 1974-75 school year. Plaintiffs declined that placement and decided to enroll her exclusively at St. Francis.
5 In the fall of 1975 plaintiffs consented to a reevaluation by the M-team. The team studied her over a period of four months and filed a report in March 1976 which identified Monica as having exceptional educational needs in the areas of speech and language and further undifferentiated exceptional educational needs. In June a supplemental West Allis M-team filed a report consisting of occupational and physical therapy evaluations and reports prepared by West Allis special education teachers. The supplemental report recommended a diagnostic placement for Monica in a West Allis classroom for the educable mentally retarded.
6 The Andersons again refused the recommended placement and continued to send Monica to the private school. They obtained an independent M-team evaluation of their daughter which diagnosed her as having needs in the areas of speech and language as well as learning disabilities and emotional disturbance. Pursuant to
7 Plaintiffs next appealed to State Superintendent Thompson pursuant to
8 Plaintiffs commenced the instant action pursuant to
9 The district court first considered the scope of review of a state administrative decision regarding placement of a child with special educational needs under
10 In light of the current evidence, the district court found, contrary to the Superintendent‘s determination, that Monica did have an exceptional educational need in the area of emotional disturbance. The court noted, however, that the disagreement on that issue amounted to nothing more than a labeling problem and that the plaintiffs had not offered evidence to show that a diagnosis of emotional disturbance mandated any differences in programming. 495 F.Supp. at 1263.
11 In developing an appropriate placement for the then-coming school year, the district court considered the defendant‘s proposed individualized education program,3 as well as the plaintiffs’ evidence as to Monica‘s current needs and the plaintiffs’ alternative recommended program. The court concluded that Monica should initially be placed in a public school classroom on a part-time basis.4 To ease the transition from St. Francis, she would still attend the private school but gradually decrease her attendance there and move to full-time attendance in the public school. The court also ordered the school district to pay all costs associated with the transition.
12 The district judge then considered the nature of the relief authorized by section 615(e)(2),
II
13 Only the Fourth Circuit has faced the issue of whether a prevailing plaintiff can recover damages under section 615,
14
During the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child, or, if applying for initial admission to a public school, shall, with the consent of the parents or guardians be placed in the public school program until all such proceedings have been completed.
15
16 That provision, the court concluded, created a duty on the part of a parent, who avails himself of the hearing and review provisions of section 615, to keep his child in the current placement, absent agreement otherwise. Conceding that the statutory duty might not be enforceable by the state, the court held that “it certainly negates any right on the part of parents, in violation of the duty and in the absence of agreement, to elect unilaterally to place their child in private school and recover the tuition costs thus incurred.” Stemple, 623 F.2d at 897.5
17 The facts in our case differ from those in Stemple. Monica Anderson was attending private and public schools, each on a half-time basis, when the school authorities first assessed her special needs and decided on a placement. In our case, therefore, Monica‘s parents were complying at least in part with the dictates of section 615(e)(3) by keeping Monica at St. Francis which was her then-current half-time placement. As a result, section 615(e)(3), applied as the Fourth Circuit suggests, does not preclude reimbursement.6 In fact, in any case in which a child is already receiving services that the school authorities subsequently determine they are not required to provide, reimbursement is not precluded by section 615(e)(3). Moreover, because we are certain that parents have the right to move their handicapped children to private schools, we view section 615(e)(3) as expressing a congressional preference rather than as creating a statutory duty. In short, we do not think that the issue of a damage remedy in our case can be resolved on the basis of section 615(e)(3), although we do find support in that provision for our conclusion that damages were not intended in most cases.
18 Our inquiry instead focuses on whether section 615(e)(2), authorizing aggrieved parents to bring a civil action and district courts to provide “such relief as the court determines is appropriate,”
19 The availability of a damage remedy for incorrect placements under
A.
20 Statutory interpretation begins with the language of the statute itself. Cannon v. University of Chicago, 441 U.S. 677, 689, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979). We must examine the meaning of the words and the context in which those words appear. District of Columbia v. Carter, 409 U.S. 418, 420, 93 S.Ct. 602, 604, 34 L.Ed.2d 613 (1973), citing Puerto Rico v. Shell Co. (P.R.), Ltd., 302 U.S. 253, 258, 58 S.Ct. 167, 169, 82 L.Ed. 235 (1937). Plaintiffs contend that the plain language of section 615(e)(2) entitles them to damages here because Congress gave aggrieved parties the right “to bring a civil action” and provided district courts with the power to “grant such relief as the court determines is appropriate.”8 Plaintiffs maintain that “appropriate” relief includes damages. Further, they assert that no evidence exists showing that Congress intended to limit the remedies traditionally available to a court. When Congress wishes to limit a court‘s power to injunctive relief, it is argued, it has done so explicitly.
21 We do not agree that “appropriate” relief necessarily includes a damage remedy as well as injunctive relief for every incorrect placement. Where courts have construed “appropriate” relief expansively, as the plaintiffs suggest we do here, they have not relied solely on the statutory language but have also considered the congressional intent. See, e. g., Simmons v. Avisco, 350 F.2d 1012, 1019 (4th Cir. 1965); Int‘l Bro. of Boilermakers v. Brasewell, 388 F.2d 193, 199 (5th Cir.), cert. denied, 391 U.S. 935, 88 S.Ct. 1848, 20 L.Ed.2d 854 (1968); Int‘l Bro. of Boilermakers v. Rafferty, 348 F.2d 307 (9th Cir. 1965). Moreover, those district courts which have considered the meaning of the term “appropriate” in the statute at hand have agreed that the language in section 615(e)(2) does not itself expressly authorize a damage remedy. Tatro v. Texas, 516 F.Supp. 968 (N.D.Tex.1981); Monahan v. Nebraska, 491 F.Supp. 1074, 1094 (D.Neb.1980), aff‘d in part and rev‘d in part, 645 F.2d 592 (8th Cir. 1981) (issue of whether damages generally available not reached); Miener v. Missouri, 498 F.Supp. 944 (E.D.Mo.1980); Loughran v. Flanders, 470 F.Supp. 110, 114 (D.Conn.1979); Boxall v. Sequoia U. Sch. Dist., 464 F.Supp. 1104, 1112 (N.D.Cal.1979).9
22 Viewing the language of section 615(e)(2) in the context of section 615 leads us to believe that Congress did not envision appropriate relief generally to include a damage remedy. Instead, section 615(e)(2) appears to be the last of many procedural safeguards in a section aimed at ensuring proper placements and programs for handicapped children. Section 615, itself entitled “Procedural Safeguards,” requires state educational agencies “to establish and maintain procedures in accordance with (the requirements of this section) ... to assure that handicapped children and their parents ... are guaranteed procedural safeguards with respect to the provision of free appropriate education....” Required procedures include parental access to records, written notice concerning proposed changes or refusals to make changes, the opportunity to present complaints, and an impartial due process hearing by the state educational agency. If that hearing is conducted by a local or intermediate educational unit, an aggrieved party may appeal to the state educational agency for an impartial review and independent decision by the reviewing officer. The local and state hearings must allow for representation by counsel, presentation of evidence, confrontation, cross-examination and compulsory attendance of witnesses, a verbatim record, and written findings.
23 Neither the statutory language nor the context in which it appears demonstrates a congressional intent to create any type of educational malpractice action. Congress instead has designed a detailed and multi-level procedure through which an aggrieved parent can ultimately seek an “appropriate” program decision from the district court.
B.
24 The legislative history of the Act is silent on the question of whether a damage remedy was intended. In Loughran v. Flanders, 470 F.Supp. 110 (D.Conn.1979), the court commented on the Act and its predecessor,10 noting: “The legislative histories of these Acts share a common trait; each is devoid of even the slightest suggestion that Congress intended for it to serve as a vehicle through which to initiate a private cause of action for damages.” 470 F.Supp. at 114. The Senate Conference Report states simply that “any parent or guardian may present a complaint concerning any matter regarding the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to such child.” S.Rep.No.94-455, 94th Cong., 1st Sess. 49, reprinted in (1975) U.S.Code Cong. & Ad.News 1480, 1502. Plaintiffs argue that reference to “any matter regarding ... a free appropriate public education” indicates an explicit congressional intent to provide damages. As we read the Conference Report, however, a parent can bring “any matter” concerning the educational situation of his child before the district court in order to obtain the appropriate educational placement. Also, the plaintiffs point out that the Conference Report states that courts can grant “all appropriate relief.” The word “all,” they argue, indicates that damages were intended. S.Rep.No.94-455, 94th Cong., 1st Sess. 50, reprinted in (1975) U.S.Code Cong. & Ad.News 1480, 1503. By using the phrase “all appropriate relief,” we think that the conferees meant to emphasize that a district judge could adopt the program offered by the school district or the program advocated by the parents, or that he could take any other action and devise any program which in his view would ensure an appropriate individualized educational program. The Report makes no mention of damages, and there is no other evidence of any explicit intent to establish a damage remedy.
25 Nor do the concerns expressed by the Act‘s sponsors show an implicit intent to establish a damage remedy. In fact, our review of those concerns leads us to the opposite conclusion. See Woodwork Manufacturer‘s Assoc. v. NLRB, 386 U.S. 612, 640, 87 S.Ct. 1250, 1266, 18 L.Ed.2d 357 (1967) (“(I)t is the sponsors that we look to when the meaning of the statutory words is in doubt“); Federal Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 564, 96 S.Ct. 2295, 2304, 49 L.Ed.2d 49 (1975) (“(A) statement of one of the legislation‘s sponsors ... deserves to be accorded substantial weight in interpreting the statute.“).
26 It is clear that the overriding congressional concern was meeting the needs of handicapped children. The elaborate system of procedural safeguards contained in section 615 was thought to be the best method of assuring appropriate program decisions. Due process hearings were required, said Senator Thomas Stafford, to assure that the rights of the children would be protected. 121 Cong.Rec. 37412 (1975). Senator Harrison Williams praised the section because it would “assure that the state and local agencies did not make inappropriate decisions regarding the identification, evaluation, and educational placement of handicapped children.” 121 Cong.Rec. 37415 (1975). He noted that parents who disagreed with the state agency‘s decision could appeal to a state or federal district court to obtain appropriate relief and that the statute carefully provided for minimal disruption to the child during the decision-making process. See
27 The sponsors also expressly recognized the difficulty of diagnosing handicapped children. Congressman Albert Quie noted that “no one really knows what a learning disability is.” 121 Cong.Rec. 25531 (1975). Congressman William Lehman pointed out that “little is known about the field,” adding, “We are going to have to find what it is that is causing neurological impairment and learn the definition and the diagnosis of this dysfunction.” 121 Cong.Rec. 25531 (1975). We think it would be incongruous for Congress to subject school systems to liability for damages each time a court disagreed with the school district‘s program while at the same time admitting the uncertainty of diagnosis in the field. The district judge correctly reflected the views of the sponsors when he noted that his function was not “one of allocating blame among the parties for their past inabilities to agree on an educational program for Monica....” 495 F.Supp. at 1264. In fact, we believe that it would sometimes be difficult to determine who is the prevailing party, as when the district court‘s plan contains elements of both parties’ proposals or is wholly the product of neither.
28 Congress was also concerned about the lack of money available for education. Though aware of the tremendous need for programs for the handicapped, the sponsors were cognizant of budget constraints. Congressman John Brademas stated that despite state statutes and judicial opinions requiring a free education for the handicapped, the lack of state fiscal resources had made it impossible to implement the necessary programs. 121 Cong.Rec. 37025 (1975). Congressman Carl Perkins noted that educating handicapped children “created enormous financial burdens for already overburdened local and state educational resources.” 121 Cong.Rec. 37025 (1975). Although the EAHCA was enacted to provide the necessary funding, we think it unlikely that it was generally intended to provide more than prospective relief.
29 Finally, Congress foresaw that services for all handicapped children could not be provided immediately. The sponsors noted that there were then almost four million handicapped children receiving inadequate services and that it would take time to rectify the situation. Priorities were established so that children with the most severe needs would benefit from the first federal funds. 121 Cong.Rec. 37417 (1975). An appropriations timetable was formulated with congressional funding increased over a six-year period to allow for budget constraints and orderly implementation of services. Id. Again, Congress thought in terms of curing the problem by providing eventual prospective relief. Because Congress expected that initially many handicapped children could not be helped, it is unlikely that damages would have been intended to ensue for that failure.
30 In short, Congress enacted the EAHCA in order to aid the states in educating their handicapped children by providing the necessary funds. The legislative history shows an emphasis on procedural safeguards to ensure appropriate placements, a recognition that diagnosis of special education problems was difficult and uncertain, an awareness of severe budgeting constraints, and an acknowledgment that it would take time for all handicapped children to be helped. In those circumstances, and without even a word of discussion about damages, we infer that that remedy was not generally intended.
C.
31 In discerning the legislative intent, we also look at the “mischief to be corrected and the end to be attained.” Warner v. Goltra, 293 U.S. 155, 158, 55 S.Ct. 46, 47, 79 L.Ed. 254 (1934). A damage remedy is not, in our view, generally consistent with the goals of this statute. When a school district makes a good faith effort to provide a child with an appropriate education, we do not believe that as a general rule it is good policy to require that a school district pay money damages if it later turns out that a different programming decision should have been made. Moreover, in as new and undeveloped a field as special education, there is a need for flexibility and experimentation in programming for handicapped children. We take judicial notice of the fact that at the present time, problems of classification and treatment abound. Disagreements will arise and errors will be made. In short, we perceive that educational programs for the handicapped will suffer if school officials, for fear of exposing themselves to monetary liability for incorrect placements, hesitate to implement innovative educational reforms. See Loughran v. Flanders, 470 F.Supp. 110 (D.Conn.1979). For this reason, implying a general damage remedy would hinder rather than help the very children for whose benefit the statute was enacted.11
D.
32 Although we hold that the statute was not intended generally to provide a damage remedy for an incorrect placement decision, we can envision at least two exceptional circumstances in which a limited damage award might be appropriate. In those situations it is likely that Congress, though generally requiring that a child remain in his current placement,
33 The first such circumstance was addressed in Tatro v. Texas, 516 F.Supp. 968 (N.D.Tex.1981). There a child‘s physical health would have been endangered had the parents not made alternative arrangements to those offered by the school system. Congress, which so explicitly expressed its concern for the needs and rights of handicapped children, could not have intended a child to remain in a placement in which there was a serious risk of injury to that child‘s physical health. In our view, when a court subsequently determines that the services in dispute were necessary to protect the physical health of the child and also were services that should have been provided by the school district, the district court has the statutory authority to recompense parents for the costs of those services the school district failed to provide.
34 A second exceptional circumstance would exist when the defendant has acted in bad faith by failing to comply with the procedural provisions of section 615 in an egregious fashion. Those procedural provisions were Congress‘s way of assuring appropriate programming for handicapped children. See supra at 1210-1212. In the event of disagreement, Congress intended that parents could present a meaningful challenge to the school district‘s program and receive fair and impartial hearings. In essence, parents were to rely on compliance with the statute through two levels of administrative hearings before they could seek judicial relief. Congress could not have intended, however, that parents would keep their child in an inappropriate situation in a case in which the school district was acting in bad faith. In those circumstances, most parents could and likely would arrange unilaterally for the appropriate services. Should the parents finally prevail in their judicial action, in those circumstances money damages for the cost of these services should be awarded.
35 Because we find that a damage remedy was not intended for an incorrect program decision absent exceptional circumstances, damages are not appropriate in this case.13 The issue of danger to Monica‘s physical health was not raised. Moreover, the district court explicitly addressed whether the school district had acted in bad faith and concluded that it had not. We agree with that determination and therefore affirm the district court‘s decision denying damages.
IV
36 Plaintiffs contend that their action is also cognizable under
37 In Tatro v. Texas, 516 F.Supp. 968 (N.D.Tex.1981), the court addressed this issue and determined that Thiboutot compelled the conclusion that a section 1983 action was possible so long as exhaustion under
38 In Thiboutot, the Court considered the Social Security Act, which is like the EAHCA in that it contains an elaborate internal remedial scheme but which differs from the EAHCA in that it fails to provide a private right of action. Section 1983, the Court held, provided a cause of action for plaintiffs who alleged that they were harmed by violations of the Social Security Act and were otherwise without a remedy. Plaintiffs in our case are not without a remedy under the EAHCA because section 615(e)(2) provides an express private right of action. Thus in our case the plaintiffs are not dependent on a section 1983 action for relief.
39 Moreover, the Supreme Court suggested recently in Pennhurst State Sch. & Hosp. v. Halderman, --- U.S. ----, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), that despite Thiboutot, section 1983 is not applicable in situations ” ‘where the governing statute provides an exclusive remedy for violations of the Act.’ ” Pennhurst, 101 S.Ct. at 1545, quoting Thiboutot, 448 U.S. at 22 n.11, 100 S.Ct. at 2513 (dissent). We conclude for the reasons that follow that the EAHCA provides an exclusive remedy.
40 The Supreme Court has considered several factors in deciding whether a statutory remedy was intended to be exclusive. In Brown v. GSA, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), the Court examined the legislative history of section 717 of Title VII together with the “balance, completeness and structural integrity” of that Title,14 and concluded that Congress had intended to create an “exclusive, preemptive administrative and judicial scheme....” Brown, 425 U.S. at 829, 96 S.Ct. at 1966. Unlike the Social Security Act at issue in Thiboutot, but like the EAHCA, section 717 itself provided an aggrieved party with an express right of action.
41 In Brown, the issue was not whether the section 717 claim was cognizable under 1983, but whether other substantive statutes provided relief for violations of the same rights that were remedied in section 717. The Court noted that the legislative history of section 717 revealed a congressional concern for “the apparent inability of federal employees to engage the judicial machinery in cases of alleged employment discrimination.” Brown, 425 at 827, 96 S.Ct. at 1965. Congress believed that section 717 would protect the rights of federal employees for the first time. Moreover, a holding that section 717 rights were also remedied in other statutes, the Court stated, would have thwarted the carefully-designed administrative prerequisites of section 717.15 Because the right was thought by Congress to be newly-created and because section 717 established its own administrative and judicial enforcement system, section 717 was held to be an exclusive judicial remedy.
42 Recently, the Supreme Court, facing a situation similar to ours in Great American Fed. S. & L. Ass‘n v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), held “for the same basic reasons that underlay the Court‘s decision in Brown v. GSA,” that
43 The EAHCA, like the statutes at issue in Brown and Novotny, contains an elaborate administrative and judicial enforcement system. See supra at 1210-1212. Moreover, Congress when enacting the EAHCA also believed that the rights it was creating had heretofore been inadequately protected under federal law. (“Too long have the needs of these handicapped children been neglected.... The (EAHCA) promises handicapped children the educational opportunity that has long been considered the right of every other American child.” (Remarks of Sen. Randolph, 121 Cong.Rec. 37410 (1975)); “The goal of this legislation is to raise the quality of education for millions of handicapped children to a new standard of excellence and equal opportunity never before envisioned.” (Remarks of Sen. Taft, 121 Cong.Rec. 37412 (1975)); “(H)andicapped children no longer will be left out” (Remarks of Sen. Williams, 121 Cong.Rec. 27413 (1975)).17
44 The most compelling reason, however, for our conclusion that section 615(e)(2) is an exclusive remedy is that the relief it provides is inconsistent with section 1983 relief. Because we hold that the EAHCA does not contain a traditional damage remedy, section 615 cannot be given “unimpaired effectiveness” if a section 1983 action is available for EAHCA violations. Novotny, 442 U.S. at 378, 99 S.Ct. 2352.18 In Adickes v. Kress & Co., 398 U.S. 144, 150-151 n.5, 90 S.Ct. 1598, 1604-05, 26 L.Ed.2d 142 (1970), the Supreme Court discussed whether a section 1983 cause of action was possible in a case in which the governing statute did not provide damages. There the plaintiffs had asserted that a violation of the Public Accommodations Act could serve as a basis for recovery under section 1983. The Court concluded that it was “very doubtful” that a section 1983 action could be brought because the remedy provided by the Public Accommodations Act did not provide for damages and thus was intended to be the “exclusive means of enforcing the (Public Accommodations Act) rights.” 398 U.S. at 150-151, 90 S.Ct. at 1604-05.19 In the case before us, we have determined that section 615(e)(2) precludes damages absent exceptional circumstances. Because
45 In sum, the availability of a private right of action under the EAHCA, the detailed statutory administrative and judicial scheme, the fact that Congress intended the EAHCA to create new rights, and the absence of a traditional damage remedy, together compel our conclusion that the judicial remedy provided in the EAHCA was intended to be exclusive. The EAHCA does not itself provide for attorney‘s fees and plaintiffs cannot rely on section 1983 as a conduit to attorney‘s fees under section 1988.20
46 AFFIRMED.
Notes
Section 615(e)(2) of the Education of the Handicapped Act provides:
Any party aggrieved by the findings and decision made (by the state educational agency), shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy. In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.
Had we concluded that damages might be appropriate in this case, we would have remanded to the district court for a determination that the defendants had in fact violated the EAHCA. The district court never made that explicit finding, although he noted that the school district had not done all that it could have “to meet its obligations under state and federal law.” 495 F.Supp. at 1269
The plaintiffs, arguing that the defendants had violated the EAHCA, submitted pursuant to Circuit Rule 11 an opinion letter from the United States Department of Education which they contend supports their argument that individualized educational programs were required as of October 1, 1977. The defendants moved to strike that submission on the basis that it did not qualify under our Circuit Rule. The plaintiffs filed an objection to the motion to strike.
It is true that the district judge concluded that the Department of Health, Education and Welfare had extended to July 1, 1980 the date by which local educational agencies in Wisconsin were to comply with the individualized educational program requirements of the EAHCA. He went on to state, however:
Since the Court does not view its function in this case as one of allocating blame among the parties for their past inabilities to agree on an education program for Monica, the present significance of West Allis’ past omission to write short term instructional objectives and evaluation criteria for Monica lies only in its effect on West Allis’ ability to comply now with the federal requirement that an IEP for Monica be in effect prior to the commencement of the 1980-1981 school year.
The issue before us is whether a damage award is appropriate for violations of the EAHCA. Because we agree with the district court that damages are not recoverable here, we do not find it necessary to reach the issue about which the parties disagree.