Antkowiak by Antkowiak v. Ambach

• Citation: 838 F.2d 635
• Decision Date: 27 January 1988
• Docket Number: D,Nos. 132,222,s. 132
• Parties: 44 Ed. Law Rep. 129 Lara ANTKOWIAK, by her parent and natural guardian John M. ANTKOWIAK, Plaintiff-Appellee, Cross-Appellant, v. Gordon M. AMBACH, as Commissioner of the New York State Education Department, Defendant-Appellant, Cross-Appellee. ockets 87-7300, -7344.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 635

838 F.2d 635

44 Ed. Law Rep. 129

Lara ANTKOWIAK, by her parent and natural guardian John M ANTKOWIAK, Plaintiff-Appellee, Cross-Appellant, v. Gordon M. AMBACH, as Commissioner of the New York State Education Department, Defendant-Appellant, Cross-Appellee.

Nos. 132, 222, Dockets 87-7300, -7344.

United States Court of Appeals Second Circuit.

Argued Sept. 14, 1987.

Decided Jan. 27, 1988.

Bruce A. Goldstein, Buffalo, N.Y. (Bouvier, O'Connor, Cegielski & Levine, James R. Sheldon, Jr., Neighborhood Legal Services, Inc., Ronald M. Hager, State University of N.Y. at Buffalo School of Law, Legal Assistance Program, Buffalo, N.Y., of counsel) for plaintiff-appellee, cross-appellant.

Leslie Neustadt, Albany, N.Y. (Robert Abrams, Atty. Gen. of the State of N.Y., Albany, N.Y., of counsel) for defendant-appellant, cross-appellee.

Elizabeth L. Schneider, Monroe County Legal Assistance Corp., Rochester, N.Y., filed a brief for amicus curiae Western New York Disability Law Coalition.

Before CARDAMONE, WINTER and MINER, Circuit Judges.

MINER, Circuit Judge:

John M. Antkowiak commenced an action on behalf of his daughter, plaintiff-appellee Lara Antkowiak, in the United States District Court for the Western District of New York (Curtin, C.J.) against defendant-appellant Gordon M. Ambach, as Commissioner of the New York State Education Department ("SED"). The complaint asserted claims under the Education of the Handicapped Act ("EHA" or "the Act"), 20 U.S.C. Sec. 1400 et seq. (1982); the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 (1982); and 42 U.S.C. Sec. 1983 (1982) for violation of plaintiff's rights under the EHA and fourteenth amendment due process and equal protection clauses. Plaintiff sought declaratory and injunctive relief to effect a state placement of Lara at an unapproved out-of-state facility and reimbursement from the state for her private placement there.

After a bench trial, the district court granted judgment pursuant to the EHA in favor of plaintiff. Defendant appeals from this judgment. We reverse.

BACKGROUND

Since the age of ten, Lara Antkowiak has suffered from emotional disturbances and anorexia nervosa. She became anxious and upset about her schoolwork, although she was a bright child with an I.Q. of 143. Lara's schooling was disrupted by three lengthy stays at Strong Memorial Hospital ("Strong" or "the hospital") in Rochester between October 1983 and May 1985, necessitated by her condition. During this period, her ability to function educationally declined to the point that even efforts by the hospital's special education teacher to tutor her individually failed. Lara regularly refused to attend class. Even when she did, Lara stared out the window, was unresponsive, and occasionally became hostile.

In late 1984, Lara's parents, at the hospital staff's suggestion, applied to the Buffalo City School District Committee on the Handicapped ("COH") to arrange for an appropriate special education placement for Lara upon her discharge from Strong. After initially rejecting the application, the COH, upon further investigation, on February 27, 1985 found that Lara could not function in a regular classroom. Accordingly, the COH developed an individualized education plan ("IEP") for Lara and recommended placement for her at a residential educational facility. Rosalie Wiggle, coordinator of the COH, made six applications to in-state residential facilities, but each refused to accept Lara. The COH then applied to the Hedges Treatment Center ("Hedges") of the Devereux Foundation in Malvern, Pennsylvania, which accepted Lara. Therefore, on March 21, Ms. Wiggle applied to the SED for the Commissioner of Education's approval of a contract with Hedges.

Pursuant to an earlier telephone conversation, Edward McDonald, a regional associate of the SED in the Office for the Education of Children with Handicapping Conditions, notified Ms. Wiggle on April 17, 1985 that Lara's placement at Hedges would not be approved because the SED had imposed a moratorium on new admissions there. The regional associate recommended three approved in-state facilities, and Ms. Wiggle applied to them. Each declined to accept Lara.

While the COH was seeking a placement for Lara, Strong informed her parents that Lara no longer needed acute medical treatment and would be discharged by April 24. In response, on April 23 Dr. Antkowiak brought an action on behalf of his daughter in the Western District of New York, in which he sought an order forcing the SED to place Lara at Hedges and interim injunctive relief preventing Strong from discharging Lara until an alternative placement was found. Thereafter, Dr. Antkowiak visited two residential treatment facilities at the SED's suggestion, but each of them determined that they could not meet Lara's needs. Ms. Wiggle did not seek further recommendations from the regional associate after both the COH and the Antkowiaks had looked into those facilities suggested by the SED, because Dr. Antkowiak placed Lara in Hedges at his own expense on May 15, 1985. Lara received academic instruction in the Devereux Day School at Hedges. After Lara's placement, the complaint was amended, and Strong was dismissed as a defendant in the suit.

Plaintiff moved for a preliminary injunction to require the SED to approve Lara's placement. On November 4, 1985, the district court denied this motion. 621 F.Supp. 975 (W.D.N.Y.1985). Chief Judge Curtin found that Lara had not exhausted state administrative remedies first as the EHA requires, since the SED had made no formal adjudication of Lara's case in rejecting the COH's recommendation. Id. at 979. He ordered plaintiff to "immediately resume the [s]tate administrative process." Id. at 980.

The Antkowiaks thus sought a hearing through the board of education as required by law. See N.Y.Educ.Law Sec. 4404(1) (McKinney 1981). The school district and Lara's parents stipulated that Lara was emotionally disturbed and needed placement at Hedges. The hearing officer found Lara in need of a residential placement, agreed with the COH's recommendation and, on December 26, 1985, ordered Lara's placement at Hedges. On January 24, 1986, the SED advised the school district that the placement could not be approved. Although Hedges was by then once again on the SED's approved list, it was approved only for children at least 14 years old, and Lara was only 12. Further, the Devereux Day School at Hedges had never been approved by, or even sought approval from, the SED.

Plaintiff renewed the application for a preliminary injunction. The SED opposed the motion, contending that administrative remedies had not been exhausted through an appeal to the Commissioner. The district court found that neither the school board nor the Antkowiaks wanted to appeal the hearing officer's findings or decision, and thus neither was obligated to seek review by the Commissioner. See CIV-85- On February 11, 1986, the Commissioner issued an order to show cause why the hearing officer's decision should not be annulled. The district court deferred any further action pending the Commissioner's decision. CIV-85-532C, slip op. at 5 (W.D.N.Y. Feb. 27, 1987). On March 14, 1986, the Commissioner annulled the hearing officer's decision, finding that Lara had no "educationally handicapping condition" as defined in N.Y.Comp.Codes R. & Regs. tit. 8, Sec. 200.1(cc)(2), 638 F.Supp. at 1583 (Appendix 2) (Commissioner's Decision of March 14, 1986), because her medical condition was "clearly distinguishable from her educational needs," id. at 1584.

532C, slip op. at 4, 7 (W.D.N.Y. Feb. 3, 1986) (decision and order). Chief Judge Curtin found that the Antkowiaks had satisfied EHA exhaustion requirements and ordered the Commissioner to show cause why the injunction should not issue. Id.

Plaintiff moved for summary judgment in the district court, contending that the hearing officer's decision was final under the EHA. Chief Judge Curtin agreed, and on July 11, 1986, granted partial summary judgment as to the issues whether Lara was handicapped, whether she needed special education and related services, and whether her IEP appropriately recognized that need. 638 F.Supp. 1564, 1570-72 (W.D.N.Y.1986). The court found that the Commissioner's annullment rested on improper grounds and thus did not consider his decision. Id. at 1570. Issues of the availability of alternative placements, and the nature, suitability and approval status of Hedges' services were set for trial. Id. at 1572.

Following a bench trial, Chief Judge Curtin found that no other placement was identified as appropriate for Lara despite the court's repeated requests for a recommendation from the SED. 653 F.Supp. 1405, 1412 (W.D.N.Y.1987). The court also found that Hedges "is a suitable placement for Lara and meets most, if not all, of her needs." Id. at 1413. The court dismissed the importance of Hedges' unapproved status. Chief Judge Curtin noted that Lara, who had turned 14 one week before the decision, was now within the SED's approved age range for Hedges, and that there was "no indication that Lara is not receiving all the benefits and rights at Hedges that she would receive at" an in-state school. Id. at 1415. The related services that Hedges provided to Lara were found "necessary to enable her to derive any benefit from" the instruction she was receiving. Id. at 1416. The court therefore ordered the state to effect immediately the Hedges placement at state expense, id. at 1417, and, finding that Congress implicitly abrogated the states' eleventh amendment immunity in enacting the EHA, ordered the state to retroactively reimburse Lara's tuition at Hedges during the period of her private placement, id. at 1419.

Lara left Hedges in June 1987. Her parents enrolled her in a private school in Buffalo that was not a part of her original, and only, IEP from the COH. ¹

On appeal, the Commissioner contends that the district court exceeded its...