Lauren Manecke, by and through her parents, legal guardians and next friends, Richard and Julia Manecke (“the Maneckes”), brought this action against the Pinellas County School Board (“the Board”). In their amended complaint, the plaintiffs alleged that the Board’s failure to provide them with a timely, impartial due process hearing violated their rights under § 504 of the Rehabilitation Act of 1973 (the Rehabilitation Act), 29 U.S.C. § 794, and 42 U.S.C. § 1983, and thus entitled them to reimbursement of funds spent to place Lauren in a private residential educational setting. The district court dismissed the amended complaint, holding that damages were not recoverable under either § 504 or § 1983.
Manecke v. School Board,
I. FACTUAL BACKGROUND
Lauren Manecke had suffered brain damage at birth. As a result, she was epileptic and also exhibited other mental and emotional handicaps. Despite these problems, Lauren had been enrolled in “regular” *914 school programs supplemented with special education classes until February, 1979, when her then current high sehool placement came to a halt.
Lauren left the high school with a thirty-two year old man with whom she was having a sexual relationship. She stayed with him away from her home for six days. Both before and after this episode, Lauren acted in a sexually provocative manner. It seems she employed sex as a means of asserting her independence and maturity.
When Lauren returned from her stay with the older man, her parents withdrew her from the high school she was attending and enrolled her in a small private school. Mrs. Manecke thereafter requested that the Board enroll Lauren in a county special education school. The Board agreed, and Lauren commenced attending classes at the Nina Harris School for exceptional children (“Nina Harris”) in September, 1979. Lauren was evaluated and classified as emotionally handicapped and physically impaired. Before she began at Nina Harris, an individual education program (“IEP”) for Lauren was developed by the Board in conjunction with her parents. See infra note 4 and accompanying text.
Lauren seemed to be adjusting well to Nina Harris: she was making adequate academic progress, appeared well-behaved, and participated in some extracurricular social activities. The quality of Lauren’s homelife, however, was rapidly deteriorating. She fought incessantly with family members, especially her mother and younger brother.
On December 19, 1979, Mrs. Manecke wrote Dr. Howard J. Hinesley, the Board’s Assistant Superintendent for Exceptional Student Education. In a two page typewritten letter, Mrs. Manecke expressed her concern over Lauren’s emotionally charged behavior, and the Maneckes’ desire to place Lauren in an out-of-state residential facility. 1 Mrs. Manecke attached to the typewritten letter a handwritten note requesting a due process hearing on the issue of Lauren’s appropriate educational placement.
Dr. Hinesley forwarded copies of the letter and request for due process hearing to the school district’s attorney. Dr. Hinesley assumed that the attorney’s office would take any necessary action relative to the due process hearing.
Mrs. Manecke sent a copy of her December 19, 1979, correspondence to the Florida Commission of Education. In response, Diane Wells, an administrator with that agency, instructed Dr. Hinesley to mediate the dispute between the Board and the Maneckes; he was specifically advised to avoid resort to more formal procedures. The Maneckes, Dr. Hinesley and Mr. Delp met on February 13, 1980. The Maneckes stated that because of Lauren’s intractability, they believed residential placement was necessary. Dr. Hinesley and Mr. Delp, however, expressed their belief that the Board was providing Lauren with an appropriate education at Nina Harris. Consequently, it was their position that the expense of residential placement need not be borne by the school board.
The Maneckes suggested that Dr. Hinesley and Mr. Delp meet with Dr. Andriola, Lauren’s treating neurologist, and Dr. John Mann, an adolescent psychologist. Dr. Hinesley acceded to this request, and, on March 12,1980, the meeting was held. The Maneckes asked if this meeting was their due process hearing and if their attorney should be present. Dr. Hinesley responded that the meeting was merely an informal effort to resolve the dispute over Lauren’s placement. Although Dr. Hinesley did not waiver in his belief that the Board was not required to pay for Lauren’s placement in a residential facility, he did end the meeting by promising to furnish the Maneckes with information concerning sundry residential facilities.
Immediately after this meeting, the Maneckes were contacted by the Devereux *915 School for exceptional children. They were told that Devereux, which is located in Texas, had a rare residential placement vacancy which Lauren could fill if she were promptly enrolled. The Maneckes agreed to Devereux’s terras and withdrew Lauren from Nina Harris on March 21, 1980. The Board was not informed why Lauren was removed from school. The Maneckes then enrolled Lauren in Devereux.
Mrs. Manecke later complained to the United States Office of Civil Rights (OCR) that the Board unlawfully refused to place Lauren in a residential facility because of her age. As a result of that agency’s mediation efforts, the Board, in July of 1980, sent Lauren’s parents a standard request for due process hearing form. Although the Maneckes received it, it was never returned to the Board. The OCR dropped the age discrimination charge in December, 1980. The OCR did, however, order the Board to hold a due process hearing. The hearing, scheduled for January 26, 1981, was cancelled by the Maneckes.
II. PROCEDURAL HISTORY
The gravamen of plaintiffs’ two-count amended complaint, brought under § 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the Civil Rights Act of 1871, 42 U.S.C. § 1983, was that the board’s failure to provide them with a due process hearing on the issue of Lauren’s educational placement within 45 days of Mrs. Manecke’s December 19, 1979 request, see 34 C.F.R. 300.512, necessitated their unilateral transfer of Lauren to a residential facility. The relief they sought was an order requiring the Board to reimburse them for Lauren’s tuition at Devereux and other expenses.
The Board did not answer the amended complaint; instead, it filed a motion to dismiss. The Board argued that: (1) § 504 did not authorize an award of damages to a private litigant; (2) even if it did, the Maneckes waived their rights under that statute; and (3) plaintiffs could not employ § 1983 as a basis for recovery because doing so constituted an “end run” around the administrative process established in the EHA.
The district court accepted the Board’s position on § 504, concluding that there is no private right of action for damages under that statute.
Manecke,
Because the court hinted that the plaintiffs could state a claim under the EHA, see id. at 790 n. 4, the plaintiffs moved for leave to amend the complaint to allege a violation of that Act. The court granted the motion, plaintiffs’ second amended complaint was filed, and a two-day bench trial was held on the EHA claim.
The district court, relying on
Powell v. Defore,
On appeal, the Maneckes essentially contend that: (1) the district court erred in dismissing the amended complaint brought *916 alternatively under § 504 and § 1983; (2) the district court erred in applying the Powell-Anderson test for damages under the EHA to the facts of this case; and (3) the district court exceeded its authority under the EHA by effectively conducting its own impartial due process hearing. After a brief overview of the EHA, we will address these contentions seriatim.
III. THE EHA 3
The EHA provides public school districts with federal funding for the education of handicapped children so long as the “[s]tate has in effect a policy that assures all handicapped children the right to a free appropriate public education.” 20 U.S.C. § 1412(1). A “free appropriate public education” is defined as “special education and related services” which,
inter alia,
are provided in conformity with the IEP.
4
Id.
§ 1401(18). The IEP serves to tailor the “free appropriate public education” mandated by the Act “to the unique needs of the handicapped child.”
Board of Education v. Rowley,
The EHA also contains a detailed procedural component. Any state or local agency receiving federal assistance under the Act must, in accordance with the requirements of 20 U.S.C. § 1415, establish and maintain procedural safeguards. Among these is the requirement that parents be given the opportunity to contest virtually any matter concerning the educational placement of the handicapped child, or the provision of a “free appropriate public education” to such child. Id. § 1415(b)(1)(E). Additionally, if the parents of a handicapped child decide to bring a complaint, they must be given an “impartial due process hearing.” Id. § 1415(b)(2). Federal regulations mandate that a hearing must be held and a final decision must be reached not later than 45 days after the public agency receives a request for a hearing. 34 C.F.R. § 300.512. Upon completion of the administrative process, any party dissatisfied with the administrative final decision may “bring a civil action with respect to the complaint” in either state or federal court. 20 U.S.C. § 1415(e)(2).
The Maneckes, relying on
Smith v. Robinson,
- U.S. -,
IV. (a) § 1983 AND THE EHA
The plaintiffs and the Board read Smith as supporting their respective positions on § 1983. A review of that case is therefore appropriate.
In
Smith
the plaintiffs brought suit under the EHA, § 504 of the Rehabilitation Act, and § 1983. The § 1983 claim was based on alleged violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The plaintiffs ultimately obtained relief on the basis of state law. Although the EHA does not provide for attorney’s fees to a prevailing party, the district court awarded plaintiffs fees and costs in the amount of $32,109. The court based the award on 42 U.S.C. § 1988, because plaintiffs had stated independent constitutional claims via § 1983, and on § 505 of the Rehabilitation Act, 29 U.S.C. § 794a(b), because plaintiffs had alleged a violation of § 504.
5
On appeal, the First Circuit reversed.
Smith v. Cumberland School Committee,
The Supreme Court affirmed the court of appeals, holding that the plaintiffs were not entitled to attorney’s fees under either § 1988 or § 505 of the Rehabilitation Act.
Smith,
The Court, after noting that, the plaintiffs’ unaddressed due process and equal protection claims, bought under § 1983, were virtually identical to the EHA claims, undertook a separate analysis of these independent constitutional claims. The Court recognized “the comprehensive nature of the procedures and guarantees set out in the EHA” as well as the intent of Congress “to place on local and state educational agencies the primary responsibility for developing a plan to accommodate the needs of each individual handicapped child.”
Smith,
The Court was more circumspect in the way it handled the unaddressed due process claim. The Court raised but did not decide the issue of “whether the procedural safeguards set out in the EHA manifest Congress’ intent to preclude resort to § 1983 on a due process challenge.” Id. It was not necessary to resolve this threshold issue because the due process claim simply had no bearing on the substantive issue of the lawsuit — which agency was required to pay for the education of the minor handicapped plaintiff — and therefore could not support the award of fees. Id. at 3471.
The Board urges that Smith supports the district court’s dismissal of the § 1983 claim. The Board, however, reads that decision more broadly than we do, and totally ignores the fact that the Court in Smith, admittedly in dicta, took pains to distinguish a due process claim from an equal protection claim.
Smith suggests that not all § 1983 claims are to be treated alike. Indeed, the Court expressly noted that the issue raised by an independent due process challenge “is not the same as that presented by a substantive equal protection claim to a free appropriate public education.” Id. at 3470 n. 17. Further, “unlike an independent equal protection claim, maintenance of an independent due process challenge to state procedures would not be inconsistent with the EHA’s comprehensive scheme.” Id. at 3471 n. 17. Finally, speaking specifically to the issue of attorney’s fees, the Court noted that Congress has not indicated “that agencies should be exempt from a fee award where plaintiffs have had to resort to judicial relief to force the agencies to provide them the process they were constitutionally due.” Id.
In our view, the approach the Supreme Court employed in Smith counsels holding that where, as here, a party is denied due process by effectively being denied access to “the carefully tailored administrative and judicial mechanism” found in the EHA, id. at 3468, that party may seek relief under § 1983. The thrust of the Court’s equal protection claim holding is unmistakable: Congress enacted the EHA, with its panoply of procedures, to clarify and make enforceable the handicapped child's right to a free appropriate public education. This right is grounded on the Equal Protection Clause. 6 Accord *919 ingly, a plaintiff asserting that equal protection right as a basis for relief understandably should do so via the EHA, with all that that implies. This rationale, however, breaks down in the facts of this case.
The EHA “establishes an enforceable substantive right to a free appropriate public education.” Id. Moreover, Congress intended “the carefully tailored administrative and judicial mechanism” set forth in the EHA to be the vehicle to enforce that right. Id. The plain language of the statute itself, however, suggests that Congress must not have intended the EHA to be the exclusive method to redress denial of access to that very mechanism.
The EHA provides that “[a]ny party aggrieved by the findings and decision” resulting from the administrative proceeding may bring an action with respect to the complaint presented initially to educational authorities. 20 U.S.C. § 1415(e)(2). Additionally, the court, when reviewing the administrative proceedings, “shall receive the records of the administrative proceedings, shall hear additional evidence [upon request], and, basing its decision on the preponderance of the evidence, shall grant ... relief.”
Id.
We believe that this language presupposes the existence of an administrative hearing or record. Moreover, the Supreme Court has instructed that this statutory language “is by no means an invitation to the [reviewing] courts to substitute their own notions of sound educational policy for those of school authorities.”
Rowley,
Post-Smith
case law supports our conclusion. In
Rose v. Nebraska,
Characterizing the § 1983 “due-process-type” claim as “parallel” to the EHA claim, the court affirmed the award of attorney’s fees. Id. at 1261. The court’s position was that Smith “rather strongly [implied] that an independent due-process claim, based on § 1983, [did] lie” under the facts before it. Id. at 1263. The court reasoned that “notwithstanding the fact that the same theory is also the basis for a claim under the [EHA] itself,” id., the clear implication of the Court’s discussion in Smith concerning a due process challenge is “that a § 1983 suit and a fee award are appropriate when a plaintiff claims that he is being denied *920 due process” because of the partiality of the EHA administrative hearing. Id.
A recent Fifth Circuit decision also is instructive. In
Teresa Diane P. v. Alief Independent School District,
The Fifth Circuit, relying on
Smith,
concluded that attorney’s fees could not be awarded: (1) for representation done in connection with the administrative procedures under the EHA; (2) for work attributable to the § 1983 claim based either on the EHA or an equal protection theory; or (3) for time spent on the Rehabilitation Act claim.
See infra
note 9. The court, however, treated the § 1983 procedural due process claim differently. Mindful of the distinction made by the Supreme Court in
Smith
between an equal protection claim and a due process claim, the Fifth Circuit held that “attorney’s fees may be appropriate in [EHA] cases where procedural due process claims are involved,”
Teresa Diane P.,
We find additional support for our decision in a recent Eleventh Circuit case. This court, in
Victoria L. v. District School Board,
This court, on the basis of
Smith,
concluded that the plaintiffs could not assert their equal protection claim under either the Rehabilitation Act or the Fourteenth Amendment since the EHA is the “ ‘exclusive avenue through which a plaintiff may assert an equal protection claim to a publicly financed special education.’ ”
Id.
at 372 (quoting
Smith,
We initially noted that in
Smith
the Supreme Court did not resolve the § 1983— EHA/exclusivity issue when a due process claim is involved.
Victoria L.,
In short, based on the language of the EHA itself, the Smith decision, and post- *921 Smith case-law, we hold that the district court erroneously dismissed plaintiffs’ § 1983 due process claim. We accordingly remand on that issue.
IV. (b) THE REHABILITATION ACT
The Maneckes next argue that the district court should not have dismissed their claim brought under § 504 of the Rehabilitation Act. We disagree.
“The Rehabilitation Act of 1973 establishes a comprehensive federal program aimed at improving the lot of the handicapped.”
Consolidated Rail Cory. v. Darrone,
No otherwise qualified handicapped individual in the United States ... shall, solely by reason of his handicap, be ex-eluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistanee....
29
U.S.C. § 794. Unlike the EHA, “§ 504 does not require affirmative action on behalf of handicapped persons, but only the absence of discrimination against those persons.”
Smith,
The district court ruled, as a matter of law, “that there is no private right of damages under Section 504 in this Circuit.”
Manecke,
In their amended complaint, the plaintiffs alleged, in the words of the district court, “the denial of an impartial hearing to determine Lauren’s residential placement.” Id. at 790 n. 4. They did not allege, however, that Lauren was excluded from participation in, denied the benefits of, or subjected to discrimination under a program or activity receiving federal funding. They accordingly failed to allege a violation of *923 § 504. We affirm the district court’s dismissal of plaintiffs’ § 504 claim.
V. REMAINING ISSUES
The Maneckes assert that the district court erred in applying to this case our decision in
Powell,
The Maneckes’ amended complaint alleged violations of § 504 of the Rehabilitation Act and § 1983. The district court dismissed both claims. Thereafter, a second amended complaint was filed under the EHA. Following a bench trial, the court dismissed the EHA claim. The court relied on Powell and Anderson. See supra note 2.
Both
Powell
and
Anderson
are distinguishable from this case in at least two respects. First, both of those cases antedated the Supreme Court’s
Smith
decision. Second, in both
Powell
and
Anderson
the plaintiffs were given the opportunity to use, and in fact did use, the state administrative process.
See Powell,
Further, as we read the EHA, a trial court generally should not decide in a trial on the merits whether or not a handicapped child has received a free appropriate public education under the EHA absent an administrative record of the sort contemplated by 20 U.S.C. § 1415. In the words of the Supreme Court, “the Act permits ‘[a]ny party aggrieved by the findings and decision’ of the
state administrative hearings
‘to bring a civil action’ in ‘any State court of competent jurisdiction or in a district court of the United States.’ ”
Rowley,
VI. DAMAGES
Given its rulings, the district court never reached the issue of reimbursement. Since a remand of the § 1983 claim is indicated, we make the following observations which the district court should find useful in determining the amount of reimbursement to be ordered, if any is to be ordered at all. We hasten to add that in making these comments, we do not intend to limit the trial court’s inquiry on the damages issue.
We are not remanding this case for an entry of judgment for a sum certain. Rather, on remand the district court’s task is to determine the damages that flow from the due process violation. Although the record before us has not been developed to any great extent on the damages issue, there are suggestions in it that cause us some concern.
Lauren was enrolled in Devereux from March 21, 1980, until December 31, 1981, when she graduated. The Maneckes seek reimbursement in the amount of $40,000 for tuition paid and related expenses. It seems, however, that Lauren did not begin her academic classes until September, 1980. The Board, in its Proposed Findings of Fact and Conclusions of Law, indicates that Lauren contracted mononucleosis shortly after she began at Devereux and was unable to attend any academic classes for March and April of 1980. Record, Vol. 2 at 384. Additionally, during the summer months of that year, Lauren apparently was not enrolled in any academic classes at all. Id. Although the parties have not briefed the issue, it seems to us that if these indeed are the facts, the Board may not be obliged under the EHA or any other statute to pay for boarding unaccompanied by academic classes. The district court should address itself to this question.
Perhaps more important is the Maneckes’ refusal to agree to a due process hearing after Lauren was removed from Nina Harris and enrolled in Devereux. The Maneckes received a form in July, 1980, which if completed, would serve as a formal request for a due process hearing. The form was not returned to the Board, and a hearing accordingly was not scheduled. Additionally, the Board, in consultation with counsel for the Maneckes, scheduled a due process hearing for January 26, 1981. The hearing was cancelled at the Maneckes’ request. As we view the case, there is a serious question that damages, if there were any, ceased accruing when the Board ceased violating the Maneckes’ due process rights. If the facts conform to the Board’s version, the Board may not be liable for any reimbursement.
VII. CONCLUSION
We hold that the district court erred when it dismissed plaintiffs’ § 1983 claim alleging a deprivation of due process by virtue of the Board’s failure to provide them with a timely impartial due process hearing. Lest our holding be broadly construed, we now emphasize its narrowness. We do not hold that § 1983 may be employed whenever a procedural deprivation occurs in the EHA context. We simply conclude that, under the facts of the instant case, the plaintiffs properly invoked § 1983. We affirm the district court’s dismissal of the § 504 claim, though for reasons not cited by the district court. We further hold that because of the district court’s § 1983 ruling, it improvidently addressed the EHA claim. On remand, the district court shall determine what damages, if any, the plaintiffs sustained as a result of the Board’s deprivation of their right to due process.
AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.
Notes
. This was not the first time that the Board was apprised of the Maneckes’ interest in residential schools; during the IEP conference held prior to Lauren’s enrollment in Nina Harris, Lauren's parents asked Mr. William Delp, Nina Harris’ Director of Admissions for Exceptional Students, for information about such facilities.
. In
Powell
we noted that “[a]s a general rule, compensatory damages are not available under the [EHA].”
Powell,
The district court concluded that continued placement at Nina Harris did not pose a threat to Lauren’s physical health. It also held that the Board was not acting in bad faith when it failed to provide the plaintiffs with a timely due process hearing. Accordingly, the district court ruled that plaintiffs were not entitled to damages under the EHA.
*916
The
Anderson
test for reimbursement referred to in
Powell
no longer is good law. In
Burlington School Comm. v. Dept. of Educ.,
— U.S. -,-,
It bears mentioning that the Court emphasized that court-ordered reimbursement is not the equivalent of an award of damages.
Id.
at -,
. Much has been written by the Supreme Court, this court, and the commentators about the genesis and substantive and procedural aspects of the EHA.
See, e.g., Burlington School Comm. v. Dept. of
Educ.,-U.S.-,
. The IEP is defined as a:
written statement for each handicapped child developed in any meeting by a representative of the local educational agency or an intermediate educational unit who shall be qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of handicapped children, the teacher, the parents or guardian of such child, and, whenever appropriate, such child, which statement shall include (A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives,
(C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs,
(D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.
20 U.S.C. § 1401(19).
. 29 U.S.C. § 794a(b) provides that:
In any action or proceeding to enforce or charge a violation of a provision of this sub-chapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.
. The Court repeatedly referred to Congress' desire to create a statutory avenue through which handicapped persons could secure what Congress perceived to be their equal protection right to a free appropriate education.
See Smith,
. The plaintiffs also rely on a
pre-Smith
case decided by the Second Circuit. In
Quackenbush v. Johnson City School Dist.,
The Second Circuit recognized that "the judicial review contemplated by § 1415(e)(2) is the exclusive means for reviewing a
final
adminis
*921
trative decision under the EHA,”
id.
at 147 (emphasis in original), yet rejected the defendants’ argument that the plaintiff could seek relief solely under the EHA. The plaintiff alleged that defendants’ conduct deprived her and her son of the chance to utilize the EHA’s procedural safeguards. The plaintiff and her son therefore moved to another school district and never filed an administrative complaint. In these circumstances, the
Quackenhush
court reasoned that judicial review was not expressly provided by the EHA because the plaintiff was not a "party aggrieved by the findings and decision” following an administrative due process hearing.
Id.; see
20 U.S.C. § 1415(e)(2). The court also consulted the legislative history of the EHA, and found that Congress had not indicated which remedy will lie for deprivation of § 1415 procedural safeguards.
Quackenhush,
Quackenhush
has been questioned in light of the recent
Smith
decision.
See DeLeon v. Susquehanna Community School Dist.,
We agree that Quackenhush supports our § 1983 holding in this case. We concur in principle with the conclusion implicit in the Second Circuit’s holding that § 1983 may be used to seek relief for a deprivation of due process rising to the level of denial of access to the impartial hearing mechanism. Beyond this, we need not, and therefore do not, express any opinion on the soundness of the Second Circuit’s opinion.
. What the law is concerning the available remedies for a violation of § 504 has been called a "murky question.”
Parks v. Pavkovic,
Congress, in 1978, amended the Rehabilitation Act and, pursuant to § 505(a)(2), 29 U.S.C. § 794a(a)(2), made available the "remedies, procedures, and rights” found in Title VI to anyone discriminated against in violation of § 504 of the Act. The district court understandably consulted circuit precedent on Title VI relief.
See Drayden v. Needville Indep. School Dist.,
642
*922
F.2d 129, 133 (5th Cir.1981) (Title VI relief limited to cessation of discriminatory activity; back-pay or other losses not recoverable). Relying on
Drayden,
the district court concluded that damages similarly could not be recovered under § 504.
Manecke,
After the district court dismissed the § 504 claim, however, this court decided
Powell,
Four months after this court decided
Powell,
the Supreme Court handed down
Guardians Ass’n v. Civil Serv. Comm'n.,
At least one circuit, the new Fifth, reads
Guardians,
as did the Court in
Darrone,
as fully applicable in the § 504 context. In
Marvin H. v. Austin Indep. School Dist.,
. In
Smith,
the Supreme Court rejected the plaintiffs’ claim that the attorney’s fees awarded by the district court were justified because they asserted a substantial claim under § 504. The Court reasoned that, in the facts of that case, § 504 added nothing to the substantive rights of the plaintiffs who were claiming a free appropriate public education. To allow the § 504 claim therefore would only frustrate Congress' intent in enacting the EHA: a § 504 plaintiff might circumvent the state administrative procedure established by the EHA, might be awarded damages where none would be available under the EHA, and, if successful, might be awarded attorney’s fees.
Smith,
The Maneckes contend that
Smith
does not require a dismissal of their § 504 claim because this case presents "a situation where the EHA is not available."
Smith,
. The Maneckes cannot be faulted for asserting an EHA violation in their second amended complaint. As we stated in Part IV(a), the district court erred in dismissing the Maneckes’ § 1983 claim. That dismissal effectively forced the Maneckes to amend their complaint to allege a violation of the EHA, the only remaining relevant statute arguably entitling them to the relief sought.