Timms v. Metropolitan School Dist. of Wabash County, Ind.

• Decision Date: 19 September 1983
• Docket Number: No. 82-3084,82-3084
• Citation: 718 F.2d 212
• Parties: 13 Ed. Law Rep. 951 Michael and Jane TIMMS, on behalf of their minor child, Sarah Timms, as parents and natural guardians, and Sarah Timms, individually, Plaintiff-Appellant, v. METROPOLITAN SCHOOL DISTRICT OF WABASH COUNTY, IND., et al., Defendants- Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 212

718 F.2d 212

13 Ed. Law Rep. 951

Michael and Jane TIMMS, on behalf of their minor child, Sarah Timms, as parents and natural guardians, and Sarah Timms, individually, Plaintiff-Appellant, v. METROPOLITAN SCHOOL DISTRICT OF WABASH COUNTY, IND., et al.,

Defendants- Appellees.

No. 82-3084.

United States Court of Appeals, Seventh Circuit.

Argued April 15, 1983.

Decided Sept. 19, 1983.

Ernest M. Beal, Jr., Peters, Terrill, Parrish & Larson, Fort Wayne, Ind., for plaintiff-appellant.

Byron L. Myers, Ice, Miller, Donadio & Ryan, Eric M. Cavanaugh, Deputy Atty. Gen., Indianapolis, Ind., for defendants-appellees.

Before CUDAHY and ESCHBACH, Circuit Judges, and SWYGERT, Senior Circuit Judge.

SWYGERT, Senior Circuit Judge.

Sarah Timms, through her guardians and parents Michael and Jane Timms, brought this action seeking declaratory, injunctive, and monetary relief for alleged violations of the Education for All Handicapped Children Act ("EAHCA"), 20 U.S.C. Secs. 1401-20, section 504 of the Rehabilitation Act, 29 U.S.C. Sec. 794 (1976), the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983 (1976 & Supp. IV), and the Equal Protection and Due Process Clauses of the fourteenth amendment. Defendants-appellees are the Metropolitan School District of Wabash County, Indiana (the "School District"), the Indiana State Board of Education, the Wabash-Miami Area Program for Exceptional Children, and Drs. Harold H. Negley and Edward Kasamis. For the reasons that follow, we affirm the district court's summary judgment in favor of defendants.

I

Sarah Timms is a profoundly mentally-handicapped twenty-one year old who has been institutionalized since the age of five. In September 1975, with the aid of the Indiana Department of Mental Health, Sarah was placed in the Vernon Manor Nursing Home in Wabash. From the fall of 1976 through the spring of 1980 Sarah received one to one-and-one-half hours of educational services per day. During this time Sarah exhibited a persistent pattern of "self-abusive" behavior which consisted of striking herself with her hands and arms, and which resulted in bruises and other injuries.

Mrs. Timms attended a case conference with the School District on March 27, 1979 for the purpose of developing an "individualized educational program" ("IEP") for her daughter. Mrs. Timms requested that Sarah be placed in a full-day instructional program (approximately five hours per day) in the hope that Sarah would respond to increased attention. The School District, however, offered to increase instruction only to one-and-one-half hours per day. The School District believed that Sarah would be unable to tolerate a full day's instruction, and perceived a correlation between Sarah's self-abusive behavior and increased activity.

Mrs. Timms filed objections to the proposed IEP and requested a hearing examiner be appointed to consider an appropriate program. ¹ Following an October 19, 1979 administrative hearing, the hearing officer recommended that Sarah be given a full day of instruction. The School District petitioned for review of this decision ² by the Commission on General Education of the Indiana State Board of Education (the "Commission"). The Commission, on review, ordered that further evaluation be undertaken to determine the relationship between type and level of activity and Sarah's self-abusive behavior. The Commission also ordered that the hearing officer report by May 1, 1980 concerning the progress made in the evaluation.

Before a report could be made plaintiffs filed suit on March 25, 1980 seeking both equitable and monetary relief. The equitable portion of plaintiffs' complaint asked that defendants be enjoined from excluding Sarah from a full-day educational program; plaintiffs also moved for a temporary restraining order and a preliminary injunction to restrain defendants from excluding Sarah from a full day of instruction. The district court ruled in favor of defendants on all equitable relief. On appeal, a panel of this court, in an unpublished order, 654 F.2d 726, vacated the district court's judgment and remanded for reconsideration. This court's April 13, 1981 order held that because the School District had voluntarily placed Sarah in a full-day instructional program as of September 1980, plaintiffs' claims for preliminary injunctive relief were then moot. Remand was necessary, however, to consider plaintiffs' claim for permanent injunctive relief, as well as claims for damages.

Following remand, both parties filed motions for summary judgment. The district court found for defendants on all claims. In a comprehensive opinion, it first held that the Timms' claims under the EAHCA must be dismissed for their failure to exhaust administrative remedies. The court pointed to the fact that the Timms filed suit before the additional evaluation of Sarah could be undertaken, as ordered by the Commission. The court also held that under Anderson v. Thompson, 658 F.2d 1205 (7th Cir.1981), the Timms were precluded from recovering damages in the form of "compensatory education," and that relief under the Rehabilitation Act was not available because the EAHCA is the exclusive remedy for violations of that Act. Finally, the court found without merit the Timms' allegations that they were denied equal protection and due process of law because Sarah was not placed immediately in a full-day educational program. The court reasoned that because Sarah was never excluded from instruction, no equal protection claim could be sustained; also because defendants had followed the prescribed procedural steps under Indiana law for evaluation of handicapped children, there had been no due process violation. This appeal followed.

II Injunctive Relief Under the EAHCA

With regard to plaintiffs' claim for the prospective aspect of injunctive relief for alleged violations of the EAHCA, (as opposed to compensatory education, discussed infra ), we find plaintiffs' request for an order prohibiting defendants from excluding Sarah from a full school day moot. It is settled that our jurisdiction requires "an actual controversy ... to exist at all stages of appellate review," Central Soya Co., Inc. v. Consolidated Rail Corp., 614 F.2d 684, 687 (7th Cir.1980), and that dismissal is required when "the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950, 23 L.Ed.2d 491 (1969). Plaintiffs' declaratory relief claim fails to present such a "live" controversy for two reasons. First, Sarah is now twenty years old, past the age at which the defendants are required to provide educational services. Under the EAHCA, a state must provide educational services to handicapped persons over the age of eighteen in the same proportion that such services are provided to non-handicapped persons. Plaintiffs do not contest that the defendants have satisfied this requirement.

Second, the exception to mootness implicated where conduct is "capable of repetition, yet evading review," is not relevant. This exception requires at least the possibility that "the same complaining party would be subjected to the same action." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975); Central Soya Co., Inc., supra, 614 F.2d at 689 ("there must be a reasonable degree of likelihood that this issue will be the basis of a continuing controversy between these two parties ") (emphasis in original). Again, because Sarah is past the age of eighteen, there is no possibility that she will be subject to the alleged mishandling in her IEP by defendants. Cases cited by plaintiffs are not helpful to their argument, involving as they do student-plaintiffs who would be entitled to continuing educational services in future years. See, e.g., Robert M. v. Benton, 634 F.2d 1139 (8th Cir.1980) (eight year old student); Espino v. Besteiro, 520 F.Supp. 905 (S.D.Tex.1981) (seven year old student); Selelyo v. Drury, 508 F.Supp. 122 (S.D.Ohio 1980) (first grade student). We therefore find plaintiffs' claim for injunctive relief moot. ³

Compensatory Education and Section 504 of Rehabilitation Act

Discussion of plaintiffs' claim for compensatory education under the EAHCA as well as claims for relief under the Rehabilitation Act necessarily begins with Anderson v. Thompson, 658 F.2d 1205 (7th Cir.1981). In Anderson this court held that, with two exceptions, monetary damages are not available under the EAHCA. Following a review of the Act's language and legislative history, Anderson recognized that "[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 a 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." 658 F.2d at 1213. We concluded that section 615(e)(2) of the EAHCA, 20 U.S.C. Sec. 1415(e)(2), "was intended in most cases to provide only injunctive relief as a final procedural safeguard that would ensure an appropriate educational program for a handicapped child." 658 F.2d at 1210.

Anderson also held that section 615(e)(2) of the EAHCA was the exclusive remedy for challenging allegedly erroneous placements of handicapped children. In holding that plaintiffs' action was not cognizable under 42 U.S.C. Sec. 1983, we found dispositive both the fact that the EAHCA contains elaborate administrative and judicial enforcement mechanisms, as well as the fact that the available relief under the two statutes was inconsistent. As such, plaintiffs there could not challenge an educational placement decision under section 1983. Against this backdrop, we consider plaintiffs' claims in the present case.

A

The Timms first seek injunctive relief in the form of compensatory education. Their...