DEPARTMENT OF EDUCATION, STATE OF HAWAII, Plaintiff,
v.
KATHERINE D., a minor, By & Through her natural parents &
legal guardians, KEVIN & ROBERTA D.,
Defendants-Counterclaimants-Appellees,
Department of Education, State of Hawaii & Donnis Thompson,
in her capacity as Superintendent of Education,
Counterclaimants-Defendants-Appellants.
No. 82-4096.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Oct. 21, 1982.
Decided Nov. 7, 1983.
As Amended Feb. 24, 1984.
Chаrleen M. Aina, Honolulu, Hawaii, for counterclaimants-defendants-appellants.
Paul Alston, Honolulu, Hawaii, for defendants-counterclaimants-appellees.
Appeal from the United States District Court for the District of Hawaii.
Before CANBY, NORRIS and REINHARDT, Circuit Judges.
NORRIS, Circuit Judge:
The Department of Education of the State of Hawaii (DOE), appeals from a district court judgment,
* Facts
Katherine, who was born in 1976, suffers from cystic fibrosis and tracheomalacia, which cause her windpipes to be floppy instead of rigid. Since 1978, Katherine has worn a tracheostomy tube, which allows her to breathe and to expel mucus secretions from her lungs two or three times a day. She is unable to vocalize normally, but has received speech therapy and since February 1981 has been able to speak very softly.
In the summer of 1980, Katherine was certified by the DOE as eligible for special education services under the EAHCA. As required by the Act, the DOE offered an Individualized Educational Program (IEP) to Katherine prior to the beginning of the 1980-81 school year. Based on the recommendation of its physician, the DOE determined that the medical services Katherine might require could not be provided at a public school and therefore proposed a homebound program consisting of speech therapy and parent counseling. Katherine's parents rejected the IEP and initiated a due process hearing under the provisions of 20 U.S.C. Sec. 1415(b)(2). During the course of that proceeding, Katherine continued to attend St. Philomena's Child Care Center, where she had been enrolled since 1979. Katherine's attendance at this private preschool was contingent on the presence of her mother. Mrs. D. was a teacher at St. Philomena's and thus was always available to provide for Katherine's health needs.
In October 1980 the administrative hearing officer decided that the DOE's offer of a homebound program did not constitute a "free appropriate public education" as required by section 1412(1) of thе EAHCA because it did not provide for Katherine's placement in the "least restrictive environment" possible. He concluded that Katherine should continue to attend St. Philomena's and ordered the DOE to pay for her tuition there. The DOE refused to follow the hearing officer's order and, in November 1980, filed a petition for review by the district court under 20 U.S.C. Sec. 1415(e)(2). Katherine counterclaimed for enforcement of the hearing officer's order, attorneys' fees, and costs.
After the hearing officer had reached a decision, but before the trial in the district court, the DOE submitted an IEP for the 1981-82 school year to Katherine's parents. Under this IEP, the DOE proposed that Katherine attend Moanalua Elementary School and receive emergency health services, when needed, through the school's staff. The IEP outlined a plan to train the staff to dispense Katherine's medicаtion, suction her lungs, and reinsert her tube should it become dislodged. The first of two planned training sessions was conducted by Dr. Light, Katherine's physician, on September 9, 1981.
During this training session, Dr. Light formed the impression that the staff was reluctant to perform the necessary emergency health services for Katherine. He consequently recommended that Katherine not be sent to Moanalua.
A short time later, three unions representing Moanalua employees filed grievances with the DOE seeking clarification whether their contracts required them to perform health services for Katherine or similarly situated students. Those grievances had not been resolved by the time of trial.
The district court affirmed the findings of the hearing officer as to the 1980-81 school year and held that the DOE had not made an adequate offer for a "free appropriate public education" for eithеr 1980-81 or 1981-82. The district court thus ordered the DOE to reimburse Katherine's parents for the cost of enrolling her in private school during both years,1 and granted attorneys' fees to appellees. The DOE appeals on all counts.
II
Did the DOE Offer Katherine a "Free Appropriate Public Education"?
The EAHCA "both funds and regulates state assistance to handicapped students." Mountain View-Los Altos Union High School Dist. v. Sharron B.H.,
These provisions set forth the DOE's obligations in offering Katherine a special education program under the EAHCA. Noticeably absent from the Act is any requirement that the DOE provide the best possible education for the eligible handicapped child. Because budgetary constraints limit resources that realistically can be committed to these special programs, the DOE is required to make only those efforts to accommodate Katherine's needs that are "within reason." Tokarcik v. Forest Hills School Dist.,
furnishing handicapped children with only such services as are available to nonhandicapped children would in all probability fall short of the statutory requirement of "free appropriate public education"; to require, on the other hand, the furnishing of every special service necessary to maximize each handicapped child's potential is, we think, further than Congress intended to go.
Board of Education v. Rowley,
that the "basic floor of opportunity" provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.
Id. at 201,
We turn now to a consideration of the appropriateness of the IEP's the DOE offered to Katherine D.2 In determining whether the DOE's proposed programs met the statutory standard, we consider the two relevant school years separately because the programs offered in 1980-1981 and 1981-1982 were significantly different. We hold that the DOE's offer for 1980-81 was inadequate but that the 1981-82 plan offered Katherine a "free appropriate public education."
A. 1981-82 School Year3
For the 1981-82 school year, the DOE offered to enroll Katherine in a regular public school program and to train the school staff to respond to her medical needs. The district court held that this offer did not satisfy the EAHCA's "free appropriate public education" requirement because
the attitude of the school's personnеl toward the plan made it completely unworkable and ineffectual [and] the plan self-destructed with the filing of the grievance by the school administrators and teachers involved.
Appellees agree with the district court's conclusion, arguing that the 1981-82 plan was inadequate solely because school personnel were reluctant to administer the necessary emergency health services.
We do not agree with the district court that the 1981-82 IEP was so flawed that it failed to satisfy the statutory standard of a "free appropriate public education." The 1981-82 plan met the explicit requirements of the EAHCA and its implementing regulations.4 Katherine was to attend a regular public school and to receive emergency health services through the school's personnel when required. The district court's conclusion that staff reluctance made this plan unworkable is based upon only two pieces of evidence: first, the testimony by Katherine's physician that he overheard two unidentified teachers expressing hesitation about administering medical services to Katherine, and second, the grievance petition filed by three unions representing teachers and principals. This evidence was insufficient to support the district court's conclusion that the DOE would not provide the health services Katherine required.5
The grievance petitions sought clarification whether the services Katherine might require fell into the category of "medical services" that were outside the school staffs' contractual responsibilities. It is totally conjectural to assume from this, however, that the teachers would have refused to aid Katherine if ordered by their supervisors to perform the services pending final resolution of the griеvance. Nor is there any evidence that the teachers were not competent to provide the care Katherine would have required. Finally, there is no evidence that the school board would not have arranged for special personnel to provide the emergency services if the union ultimately prevailed in the contract dispute and the teachers were not required to comply with orders to attend to Katherine's needs.
In sum, the record before us contains insufficient evidence that Katherine would not have received emergency care when needed or that the DOE's proposed plan had "self-destructed." Taking that plan at face value and presuming, as we must in the absence of evidence to the contrary, that it would have been carried out competently and in good faith, we hold that the DOE offered Kаtherine a "free appropriate public education" for the 1981-82 school year.
B. 1980-81 School Year
For 1980-81, the DOE offered Katherine a homebound program consisting of one and one-half hours of speech therapy and forty minutes of parent counseling per week. No academic instruction was offered. Nor was any effort made to ensure that Katherine would be educated in a school "with children who are not handicapped." 20 U.S.C. Sec. 1412(5)(B). The DOE claimed in its own defense that Katherine's handicap was so severe "that education in regular classes with the use of supplementary aids and services [could not] be achieved satisfactorily." 20 U.S.C. Sec. 1412(5)(B). The district court disagreed, and held that "the home treatment program offered by the DOE in this case does not satisfy the concept of the 'least restrictive environment' prescribed by the federal regulаtions."
We agree with the district court. Katherine was clearly capable of participating in regular classes with nonhandicapped children. She had attended St. Philomena's for a full year prior to requesting admission to public school. As the DOE's proposal for the 1981-82 school year demonstrates, furthermore, services similar to those provided by Katherine's mother at St. Philomena's could have been made available in a public school setting without unduly burdening the school system. See supra p. 812. These services could have been provided by a "school nurse or other qualified person,"6 and thus fell squarely within the requirements of the Act. See 34 C.F.R. Sec. 300.13(b)(10) (1982).
For these reasons, we hold that because the DOE did not make adequate efforts to place Katherine in a regular educational environment, the 1980-81 IEP did not offer her a "free appropriate рublic education" within the meaning of the Act.
III
Tuition Reimbursement for the 1980-81 School Year
The hearing officer ordered the DOE to reimburse Katherine for her private school tuition for the 1980-81 school year, acting under his "power to order any educational program for the child," 42 Fed.Reg. 42,476, 42,512 (1977), and, if necessary, to require placement in a private school at no cost to the parent. Id. at 42,510; S.Rep. No. 168, 94th Cong., 1st Sess., reprinted in 1975 U.S.Code Cong. & Ad.News 1425, 1426. The district court affirmed. The DOE challenges the district court's affirmance of the hearing officer's award on two grounds:7 first, that reimbursement of tuition for Katherine's attendance at a private school during 1980-81 pending resolution of a dispute over the IEP for that year is not an available remedy under the EAHCA; and second, that any money judgment against the DOE is barred by the eleventh amendment.
A. Statutory Remedies
The DOE here insists that appellees are not entitled to reimbursement for Katherine's private school tuition for the 1980-81 school year because the remedies available for violations of the EAHCA are limited to prospective relief.8 Appellees in turn contend that the language of section 1415(e)(2) of the Act, giving the reviewing court authority to grant "such relief as ... is appropriate," supports the district court's retroactive award of the costs of Katherine's attendance at St. Philomena's during 1980-81.
The seminal case on the availability of reimbursement as a remedy under the EAHCA is Anderson v. Thompson,
[i]n those situations it is likely that Congress, though generally requiring that a child remain in his current placement, 20 U.S.C. Sec. 615(e)(3), would have intended that parents take action to provide the necessary services for their children without awaiting the outcome of lengthy administrative and judicial proceedings. Parents should then be compensated for the costs of obtaining thosе services that the school district was required to provide.
Id. at 1213 (footnote omitted).
We recognize that Katherine's situation does not fit the precise facts of either of the illustrative exceptions mentioned in Anderson.11 Nonetheless, we believe that the DOE's behavior in this case was just as exceptional, and that this case therefore also involves "exceptional circumstances." We hold that an unexplained failure to offer a child placement in a classroom with his peers when the child has clearly demonstrated his ability to function in a classroom environment entitles the child to recover the cost of a private school education until an appropriate program is devised.
The congressional preference for educating handicapped children in classrooms with their peers is made unmistakably clear in section 1412(5)(B) of the Act, which provides that "to the maximum extent appropriate," handicapped children should be integrated into a regular educational environment. Although the statute does not require "mainstreaming" in every case, it is fundamental to the scheme and purpose of the Act that handicapped children be provided the same educational opportunity and exposure as those children who are not so disadvantaged. See, e.g., Tokarcik v. Forest Hills School Dist.,
Hospitalized and homebound care should be considered to be among the least advantageous educational arrangements [and are] to be utilized only when a more normalized process of education is unsuitable for a student who has severe health restrictions.
Department of Education, Program Standards and Guidelines for Special Education and Special Services, Programs and Services for the Orthopedically Handicapped and Other Health Impaired, paras. 27, 29, 30. We thus believe that this is also a case where "Congress ... would have intended that parents take action to provide the necessary services for their children." Anderson,
Consequently, we find no error in the district court's award of the cost of Katherine's private school tuition for the 1980-81 sсhool year. Because the DOE failed to offer her a placement with her peers, notwithstanding her undisputed ability to function in a regular classroom environment, Katherine's continued attendance at St. Philomena's during the 1980-81 school year was the only feasible way her parents could assure her the benefits of the regular educational environment to which she was entitled.
Our holding is not inconsistent with those cases in which damages have been denied. As far as we can determine from often limited statements of fact, in no other case did a court consider a situation in which a state education agency offered a homebound program to a child who was clearly capable of functioning in a classroom setting. In Mountain View-Los Altos Union High School Dist. v. Sharron B.H.,
B. Eleventh Amendment Issue
The DOE also claims that the award of Katherine's school costs violates the eleventh amendment.12 We disagree. Because the State of Hawaii chose to participate in a federally funded and regulated program to provide special educational programs for its handicapped children, we hold that it waived its eleventh amendment immunity against suit.
The Supreme Court has made clear that a state waives its elеventh amendment immunity by engaging in an activity regulated by Congress when Congress has constitutional authority to enact the regulatory statute, and that statute authorizes suits against the state. See, e.g., Parden v. Terminal Ry. of Alabama State Docks Dept.,
Because, however, the states have "long enjoyed" the protection of the eleventh amendment, Employees v. Department of Public Health & Welfare of Missouri,
will find waiver only where stated "by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction."
Edelman v. Jordan,
when Congress has authorized suit against a class of defendants that includes states, and the state enters into the activity regulated by federal law.
Mills Music, Inc. v. Arizona,
We find that both prongs of the Mills Music test are satisfied in the instant case. Here, Congress conditioned the right to receive funds under the EAHCA on the state's amenability to suit in federal court. Section 1415(e)(2) provides that
[a]ny party aggrieved by the findings and decisions made under subsection (b) [providing for administrative review] ... shall have the right to bring a civil action ... in any State court of competent jurisdiction or in a district court of the United States ...
Since, inevitably, one of the parties to any EAHCA dispute will be a state agency, see 20 U.S.C. Sec. 1412, this authorization clearly extends to suits against states. We therefore hold that the DOE consented to suit when it аpplied for and received federal funds under 20 U.S.C. Sec. 1412. The State of Hawaii waived its eleventh amendment immunity and was amenable to suit by Katherine in federal court under the EAHCA.13
IV
Attorneys' Fees
Finally, we reverse the district court's award of attorneys' fees to appellees. While we recognize that the availability of attorneys' fees may be essential to enable many of the handicapped to avail themselves of statutory safeguards enacted for their benefit, we hold that appellees may not recover their fees under either of the statutes on which they rely: the Civil Rights Attorneys' Fees Award Act, 42 U.S.C. Sec. 1988 (1976), or the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794a(b) (Supp. III 1979).
A. 42 U.S.C. Sec. 1988
The Civil Rights Attorneys' Fees Award Act, 42 U.S.C. Sec. 1988, provides for an award of attorneys' fees only to those parties who prevail "in any action or proceeding to enforce a provision of section ... 1983 ... of this title."14 We hоld that appellees cannot recover under this provision because they cannot state a claim under 42 U.S.C. Sec. 1983.
The Supreme Court has consistently indicated that the benefits of an action under 42 U.S.C. Sec. 1983 are unavailable "where the governing statute provides an exclusive remedy for violation of its terms." Pennhurst State School and Hospital v. Halderman,
We hold that the complex provisions of section 1415 of the EAHCA, which establish detailed procedures for administrative and judicial review of the state's proposals to educate handicapped children, create a comprehensive and exclusive remedial scheme that precludes reliance upon a cause of action under section 1983. The Act evinces the "balance, completeness, and structural integrity" the Supreme Court has looked to in finding that a statute creates an exclusive remedial scheme. Brown v. GSA,
B. 29 U.S.C. Sec. 794a(b)
We apply a similar analysis to find that appellees can assert no claim under the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794a(b), and thus cannot recover their attorneys' fees by reliance on its provisions. 29 U.S.C. Sec. 794 provides in relevant part that "[n]o otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from the participation in ... any program ... receiving Federal financial assistance." Arguably, Katherine might have recovered under this provision had Congress not enacted the EAHCA to provide special education and health services for handicapped children. In the face of the comprehensive remedial provisions of the EAHCA, however, we must conclude that Congress foreclosed persons complaining of conduct protected by the EAHCA from asserting claims under the Rehabilitation Act. As noted above, the EAHCA establishes detailed procedures for administrative review of states' proposals for educating handicapped children. If aggrieved parties could gain direct access to the courts merely by asserting claims under the Rehabilitation Act, the EAHCA's administrative review requirements could easily be circumvented. As in Brown v. GSA,
In sum, we hold that Katherine prevailed in this litigation solely on the basis of her rights under the EAHCA, and that the comprehensive remedial provisions of that statute prevent her from recovering attorneys' fees under either 42 U.S.C. Sec. 1983 or the Rehabilitation Act, 29 U.S.C. Sec. 794а(b).
AFFIRMED in part and REVERSED in part.
REINHARDT, Circuit Judge, concurring in part and dissenting in part:
I dissent from the majority's rejection of the district court's finding that the Department of Education failed to offer Katherine a free appropriate public education for the 1981-82 school year. I cannot agree that the district court's finding in this regard was clearly erroneous. I concur in all other parts of Judge Norris's opinion.
The majority does not state clearly what it believes Katherine was required to show in the district court. Parts of the opinion indicate that reluctance on the part of the school's staff would be enough to render the school's plan unworkable, yet other parts suggest that only a showing of positive refusal to perform the required services would suffice.
I believe that under the circumstances the staff's reluctance to perform the required services rendered the plan inadequatе for purposes of the EAHCA. Katherine's physician testified that delay by the school staff in performing the emergency services would have been life-threatening to Katherine and that a cooperative attitude on the part of the teachers was essential to the effectiveness of the emergency plan. The district court credited the physician's testimony with regard to these factual issues; we are not free to disregard it here. A plan involving such a risk to a child's life cannot be considered adequate.
The filing of a grievance petition by the teachers' union and the conversations overheard by the physician support a finding that at least part of the school's staff was reluctant to perform the services and justify an inference that there might have been hesitation or delay at the crucial moment. The district court's holding that the attitude of the school's personnel rendered the plan inadequate was therefore not clearly erroneous.
Moreover, Katherine's parents were not required to show conclusively that the teachers would have refused to perform the emergency services when necessary. The Act certainly does not require parents to risk their child's life pending a conclusive showing that essential services would not be provided. In life-and-death situations such as the one involved here, a reasonable doubt whether the services would be provided is enough to justify parents in refusing to enroll their children in a school.
The evidence presented here may reasonably have led Katherine's parents to doubt whether the school's staff would have provided the services when they were needed. Katherine's physician, who was responsible for training the tеachers in the emergency procedures and who conducted an introductory training session, testified that the teachers were unwilling to perform the required services. His testimony was buttressed by the teacher's union's filing of a grievance petition. Although that evidence does not compel a conclusion that the teachers would have refused to perform the services if put to the test, it is certainly sufficient to raise a reasonable doubt in one's mind on that point.
In short, the district court's finding that the staff's attitude rendered the plan inadequate was not clearly erroneous. Accordingly, I would affirm the district court's conclusion that the Department of Education did not offer Katherine a free appropriate public education for the second year. Because the Department's prior EAHCA violation was not cured by the school's offer of the second plan, I would affirm the district court's award of damages for both years in accordance with our holding that, when exceptional circumstances are involved, the state must pay the cost of private school placement until an appropriate program is devised.
Notes
The district judge did not make clear whether he intended to extend his order of reimbursement to cover both the 1980-81 and the 1981-82 school years. Because we hold that the DOE's 1981-82 IEP offered a "free appropriate public education," we need not reach the question whether an award of Katherine's school costs for that year would have been justified
We apply a de novo standard of review to the questions whether the DOE's IEPs constituted a "free appropriate public education" within the meaning of the EAHCA and whether the Act provides for an award of damages and attorneys' fees. Because those determinations require us to weigh the values underlying the statute in deciding the legal sufficiency of the DOE's offers--we must, for instance, determine the weight to be assigned the explicit congressional preference that handicapped children be educated in classrooms with their peers, see infra p. 818 --we treat them as questions of law. Cf. Bonnette v. California Health and Welfare Agency,
Although the administrative hearing officer was never asked to consider whether the DOE's IEP for the 1981-82 school year constituted a "free appropriate public education," we hold that it was proper for the district judge to decide that question when the case came before him. Because Congress "intended the courts to make indеpendent program decisions based on a preponderance of the evidence," Anderson v. Thompson,
The question whether the 1981-82 offer satisfied the statutory requirements is judged by an absolute, not a comparative, standard. As noted in text, supra p. 813, Katherine was entitled only to an appropriate, not to the best, education at public expense. It is thus irrelevant to our determination whether a placement at St. Philomena's would have been superior to a public school placement in 1981-82. Thus, the fortuitous circumstance of Mrs. D.'s presence at St. Philomena's is not a factor that we can consider in evaluating the DOE's 1981-82 proposal
We apply the clearly erroneous standard of review to test the district court's factual finding that the school staff was unwilling to perform the required emergency health services for Katherine. As indicated in text, we do not accept this factual finding, even under the deferentiаl standard of review we apply to it
It is indisputable that even a lay person could have been trained to provide the services Katherine required. Indeed, Katherine's mother, who had had no medical training, had performed them for some time
The DOE also contends that appellees do not have standing to ask the court to award them the cost of Katherine's private schooling because, since the hearing officer decided in their favor, they are not "aggrieved parties" within the meaning of section 1415(e)(2). We reject this contention. Although the DOE relies on Colin K. v. Schmidt,
The DOE contends only that the retroactive award of Katherine's tuition for the period pending resolution of the dispute over the IEP is impermissible under the EAHCA. As to any prospective relief, the statute provides that a state education agency must pay the costs of private schooling concurrently with the child's enrollment if the agency or a hearing officer determines that a private school program is the appropriate placement to mеet EAHCA requirements. See 20 U.S.C. Sec. 1413(a)(4)(B)
In Mountain View-Los Altos Union High School Dist. v. Sharron B.H.,
These "exceptional circumstances" are best described in the cases in which they were first held to exist. In Tatro v. Texas,
Unlike the plaintiff in Tatro, Katherine was not physically incapable of accepting the DOE's offer for the 1980-81 school year. The DOE failed to provide her not with essential health services but rather with an adequate educational program in a classroom with her peers. See infra p. 818. Nor is the DOE guilty of the kind of procedural bad faith implicitly recognized as a basis for an award of damages in Monahan, Christopher T. and Boxall: the DOE was following the procedural safeguards of the EAHCA in pursuing administrative and judicial review of its placement offer
The eleventh amendment is not by its terms applicable to suits brought against a state by its own citizens. Nonetheless, "it is established that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." Employees v. Department of Public Health and Welfare,
Because we find that the DOE waived its eleventh amendment rights by consenting to the terms of the EAHCA, we do not reach the appellees' contentions that that immunity could also have been waived by the DOE's initiation of this suit, by the state's passage of its own tort claims act, or by Congress' authority to abrogate eleventh amendment immunity if it passes legislatiоn under Sec. 5 of the fourteenth amendment
The parties do not claim that any of the other statutory provisions to which 42 U.S.C. Sec. 1988 is applicable is implicated in this case
Nor can Katherine assert a viable cause of action under Sec. 1983 by relying on a claim that her right to equal protection was violated by the DOE's failure to offer her an adequate educational program. It is clear that where adequate alternative remedies remain available Congress may abrogate a statutory means for the enforcement of constitutional rights. The comprehensive nature of the remedies laid out in the EAHCA evinces a congressional intent to preclude reliance on either a statutory or a constitutional cause of action under Sec. 1983. It is arguable that where adequate alternative remedies for the vindication of constitutional rights are unavailable, Congress may not abrogate existing statutory means of enforcement. See Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv.L.Rev. 1362 (1953). Cf. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
Some district courts have held that attorneys' fees under the Rehabilitation Act will be available even in cases in which the prevailing party has relied primarily on the EAHCA to support his substantive claims. See, e.g., Patsel v. District of Columbia Board of Education,