BOARD OF EDUCATION OF OAK PARK & RIVER FOREST HIGH SCHOOL
DISTRICT 200, Plaintiff-Appellant,
v.
ILLINOIS STATE BOARD OF EDUCATION and Todd A. by and through
his parents Charlotte A. and Robert A.,
Defendants-Appellees.
No. 95-2373.
United States Court of Appeals,
Seventh Circuit.
Argued Feb. 16, 1996.
Decided March 27, 1996.
As Amended April 23, 1996.
Rehearing and Suggestion for Rehearing En Banc Denied July 25, 1996.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 6105--Brian Barnett Duff, Judge.
John A. Relisa (argued), Lisa A. Lopatka, Franczek, Sullivan, Mann, Crement, Hein & Relias, Chicago, IL, for Plaintiff-Appellant.
Susan Frederick Rhodes, Office of the Atty. Gen., Laura J. Miller, Northwestern University Legal Clinic, John Moynihan, Law Student (argued), Chicago, IL, for Defendants-Appellees.
Before POSNER, Chief Judge, and CUMMINGS and BAUER, Circuit Judges.
POSNER, Chief Judge.
The Individuals With Disabilities Education Act, 20 U.S.C. §§ 1400 et seq., entitles a disabled child to a free public education tailored to his special needs until he turns 21. Todd A., who is now 23, has been severely disabled all his life. Autistic and retarded, he cannot speak, or attend to his basic self-care needs; in most respects, he functions at the same level as a 3 or 4 year old, and in some at a lower level, since normal 3 or 4 year olds can speak. He and his parents became residents of the Oak Park and River Forest (Illinois) public high school district in 1987, when he was 15. Pursuant to the Act, the school district prepared an Individualized Education Program for Todd. 20 U.S.C. §§ 1401(a)(20), 1414(a)(5). Since he could not benefit from classroom instruction, the program prescribed vocational and "life skills" training for him, mostly at a store called Venture. His parents were dissatisfied with the training that he was receiving at Venture and in December of 1992 persuaded the school district to place him in ARRISE, a program for autistic persons that was founded by Todd's mother. In 1993, three weeks before Todd turned 21, his parents filed a complaint with the school district seeking a year (later two years) of compensatory education in the form of continuing Todd in the ARRISE program for that period at the school district's expense. Although the Act entitles disabled individuals to special educational assistance only until they reach the age of 21, a number of courts have held that if the assistance is inadequate (as Todd's parents contended was the case here, when he was in the Venture program) the individual may be awarded, in order to cure the inadequacy, additional special assistance after he reaches the age of 21. The Act does not say so. The only specific remedies that it mentions are attorneys' fees and interim relief (see below). But it authorizes the court to "grant such relief as the court determines is appropriate," 20 U.S.C. § 1415(e)(2), and these courts have assumed, consistent with the Supreme Court's generous reading of the provision in School Comm. of Town of Burlington v. Department of Education,
The Act provides that during any proceedings to enforce it "the child shall remain in the then current educational placement of such child" unless the parents agree otherwise. 20 U.S.C. § 1415(e)(3)(A). This is the "stay put" provision, on which see Honig v. Doe,
After an appellate hearing officer (see 20 U.S.C. § 1415(c)) ordered the school district to provide Todd with six months of compensatory education, the school district, as was its right, § 1415(e)(2), sought judicial review in the district court. Meanwhile, it was refusing to comply with the stay-put provision, which is to say refusing to foot Todd's bill at ARRISE, on the ground that the stay-put provision does not apply to a person who has reached his or her twenty-first birthday. Todd asked the district judge to order the school district to comply with the provision and the judge so ordered, whereupon the district wrote a check for some $30,000 to ARRISE, covering the cost of Todd's remaining in the program between October 1993, which was a month or two after his twenty-first birthday, and October 1995, which was a month or two after his twenty-third birthday. The reason for these lags is that although Todd turned 21 on August 21, 1993, the school district did not get around to stopping paying for him until October.
The appeal to this court is from the order directing the school district to comply with the stay-put provision; and we must first decide whether it is an appealable order. It is if it is either a preliminary injunction, 28 U.S.C. § 1292(a)(1), or what is called a "collateral order"--an order that finally determines an issue that is separate from the merits of the litigation (hence "collateral") and that cannot be effectively reviewed on appeal from the final judgment in the litigation. Cohen v. Beneficial Industrial Loan Corp.,
We need not decide whether the "stay put" provision itself is an injunction. There are such animals as statutory injunctions. The automatic stay in bankruptcy is the best known. 11 U.S.C. § 362. Another is the permanent statutory injunction against collecting from a debtor a debt that has been discharged in bankruptcy. 11 U.S.C. §§ 524(a)(2), (3); In re White Motor Credit,
The order is cryptic: "We [the royal we] order the District to comply with the [Individuals with Disabilities Education Act's] 'stay put' provision." But it is sufficiently clear and definite to be enforceable by the usual sanctions for violating an injunction--civil or criminal contempt--so that the order has not only the form of an injunction but also the bite that a real injunction has. The significance of our reference to "bite" lies in the fact that an injunction that is too vague to be enforced is not appealable. The defendant, being free to ignore it, is not hurt by it and so has no real controversy with the plaintiff within the meaning of Article III of the Constitution. E.g., DDI Seamless Cylinder Int'l, Inc. v. General Fire Extinguisher Corp.,
Alternatively, the order is appealable as a collateral order. It deals with an issue entirely separate from the merits of the underlying dispute. The issue is whether the stay-put provision ceases to operate when the disabled individual reaches the age of 21, while the merits concern whether Todd's Individualized Education Program was so poorly designed or implemented that it violated the Individuals With Disabilities Education Act and so entitled him to compensatory education. The order resolves the issue of the duration of Todd's stay-put protection with finality; the judge would have no occasion to revisit it later in the case. The third element of a collateral order, that it not be effectively reviewable at the end of the case, is also met, as it is conceded that if the parents lose the suit they will not be able to reimburse the school district for the expense of keeping Todd in the ARRISE program. Palmer v. City of Chicago,
Now there seems to be, though it is rarely emphasized, a fourth element of the collateral-order doctrine--that the issue ruled on by the district court be "important." E.g., Behrens v. Pelletier, --- U.S. ----,
But maybe "importance" does have reference to the need of the appellant rather than to the significance for society and the purpose is merely to make sure that the irreparable harm cross some minimum threshold of severity, since a harm could be at once irreparable and slight and if so it would not warrant a departure from the final decision rule. This was the point at issue between Justice Scalia, now writing for a majority in Behrens v. Pelletier (and muting the emphasis he had placed on the "importance" element in his concurring opinions in Gulfstream and especially Lauro Lines) and Justice Breyer, who in dissent suggested that a second ruling denying qualified immunity (a ruling on summary judgment, after an earlier ruling on a motion to dismiss had been denied and that denial had been appealed) was not important enough to warrant an immediate appeal. Compare --- U.S. at ----,
A moment's reflection will bring into view a further point--that if irreparable harm is to be weighed in this fashion, the applicability of the collateral-order doctrine in a particular case ought to depend on the likelihood of a reversal, as well. If that likelihood is slight, the appellant has, realistically, very little to lose if his appeal is not heard. This consideration suggests that if the error in the ruling sought to be appealed as a collateral order is plain, an appeal will lie, and likewise if it is strongly arguable that there was error--provided in either case that the appellant's stake in the appeal (holding the meritoriousness of the appeal constant) is substantial. If it is very unlikely that the appeal will succeed, perhaps because the issue on which the district judge ruled is one confided to the trial court's discretion, an appeal may not lie even if the appellant's stake is (otherwise) substantial; for the net stake, as it were--the stake discounted by the probability that the appellant will secure it by the appeal--will be small if that probability is truly slight.
We need not penetrate more deeply into this maze. The question whether stay-put relief can continue after the child reaches 21 is a clear-cut legal question of significant though not great monetary importance to the appellant and of great importance to the administration of the statute. And, as we shall see, the correct answer to the question--in favor of the appellant--is not open to serious doubt, so that this is not a case in which the benefit from taking an immediate appeal is actually very slight because although the stakes seem great the appeal is highly unlikely to succeed.
Alas, we are not yet through with the preliminaries; we are still toiling in the foothills of the issue that the appellant wants us to resolve. At the oral argument of the appeal the parents' lawyer told us that the litigation had become moot when Todd reached the age of 23 last August 21. For on that day he completed his second adult year in the ARRISE program, and all that he had sought by way of relief in these proceedings, which began--remember--with a complaint to the school district about the inadequate implementation of Todd's Individualized Education Program, was two more years in the ARRISE program at the school district's expense. He got what he asked for and therefore, counsel argues, the school district should abandon the suit. This is wrong. The school district has paid only through October of last year. If the stay-put order is valid, it owes for another five months at least. This point is independent of whether the underlying claim for compensatory education is moot. It also erases the issue of appealability. If the issue of compensatory education is moot because Todd has had his two extra years in the ARRISE program at the school district's expense, then the litigation in the district court is over except for the order directing the school district to comply with the stay-put provision. That then becomes an uncontroversially final, appealable decision.
The issue of compensatory education would not be moot if the school district were trying to get back its $30,000 by persuading us in this appeal that Todd was not entitled to those two years of compensatory education. Ordinarily to get an injunction you must post a bond and if the injunction is later reversed the person enjoined is entitled to recover his damages, at least up to the limit of the bond, caused by the wrongful injunction. Fed.R.Civ.P. 65(c); Coyne-Delany Co. v. Capital Development Bd.,
What is true and could be thought to make the school district's attack on the stay-put order moot is that in its effort to obtain an appellate determination of a recurring and important issue--how long the stay-put obligation lasts--the school district has missed an opportunity to cut its short-term financial loss by abandoning the suit. But this strategic choice does not make the lawsuit moot. A desire for a favorable precedent will not prevent a case from becoming moot, United States v. Fischer,
So we have jurisdiction and come at last to the merits--the merits, that is, of the district judge's interpretation of the stay-put provision, not the merits of Todd's claim for compensatory education. We think that the stay-put provision does indeed cease to operate when a child reaches the age of 21. Except for the judge-created remedial exception for claims for compensatory education, the entitlements created by the Individuals with Disabilities Education Act expire when the disabled individual turns 21. The purpose of the stay-put provision is to give the child's parents the choice of keeping the child in his existing program until their dispute with the school authorities is resolved. Once the child reaches the age at which he no longer is entitled to the protection of the Act, the stay-put provision, which is intended to prevent the child from losing benefits to which he is entitled, loses its rationale. Its continued application would confer benefits beyond the limit set by Congress.
The exception is where a claim for compensatory education is made. Compensatory education is a benefit that can extend beyond the age of 21. But to allow the stay-put provision, which operates automatically, to operate beyond the age of 21 would enable parents to obtain adult benefits for their child to which they had no entitlement by the simple expedient of filing a claim for compensatory education on the eve of their child's turning 21--exactly what happened here. The parents' lawyer concedes (indeed emphasizes, in his effort to show that the case is moot) that they have already received benefits in excess of what they are entitled to. They sought only two years of compensatory education, yet if the stay-put order is valid they are well into their third year.
We cannot think of a reason why Congress would want the stay-put provision used in this way, especially in a case in which the parents may be trying to get money for themselves as providers of compensatory education. The parents appeal to what they claim to be the plain meaning of the statute. They argue that in asking us to reject the district judge's reading the school district is asking us to rewrite the statute. It is not. With the exception of compensatory education, which is, as we said, indeed exceptional and nowhere expressly authorized by the statute, the statute's protections are limited to minors--the statutory domain is childhood disability--and so it is natural to presume that the limitation is carried into the stay-put provision, which is silent on the question.
Todd's parents express concern that unless the stay-put provision can follow the child into adulthood a school district that was afraid that a claim for compensatory education would be made might expel the child on his twenty-first birthday. It would do so, they argue, in the hope that once he was out of the system the parents would not pursue their claim for compensatory education because, if the claim was successful, to reap its benefits the parents would have to interrupt their child's current program and reinsert him into the school system from which he had been expelled. This seems rather a fanciful fear but in any event there is nothing to prevent parents who have a well-founded concern that the school district is employing such Machiavellian tactics from coupling their claim for compensatory education with a request for a preliminary injunction to prevent the school system from thwarting the claim by expelling the child. Cf. Pihl v. Massachusetts Dept. of Education, supra,
Todd's parents, curiously, deny the automaticity of the stay-put provision. They argue that 20 U.S.C. § 1415(e)(2) gives the judge an equitable discretion to waive the provision if the parents are abusing it in the way we suggested they might. Nothing in section 1415(e)(2) supports this interpretation, although the Supreme Court has recognized a residual equity power to lift the stay-put provision if necessary to prevent physical injury. Honig v. Doe,
REVERSED.