Anderson v. Thompson

Decision Date08 September 1981
Docket NumberNo. 1,No. 80-2364,1,80-2364
Citation658 F.2d 1205
PartiesJames E. ANDERSON and Shirley A. Anderson, individually and as parents of Monica S. Anderson, Plaintiffs-Appellants, v. Barbara THOMPSON, as State Superintendent of Public Instruction, and the West Allis-West Milwaukee Joint DistrictSchool Board, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Robert Burns, Chicago, Ill., for plaintiffs-appellants.

Michael J. Sachen, City Atty., West Allis, Wis., Daniel D. Stier, Dept. of Justice, Madison, Wis., for defendants-appellees.

Before SWYGERT, Senior Circuit Judge, SPRECHER, Circuit Judge, and THOMAS, Senior District Judge. *

SWYGERT, Senior Circuit Judge.

At issue in this appeal is whether the district court, in reviewing a state administrative decision regarding the special education program for a handicapped student under the Education for All Handicapped Children Act (EAHCA), 20 U.S.C. § 1415(e)(2), properly declined to award compensatory damages and attorney's fees. 495 F.Supp. 1256 (1980). We hold that Congress, though including within the EAHCA a private right of action which authorizes district courts to award appropriate relief, did not intend to provide an award of money damages in the absence of exceptional circumstances. We also hold that plaintiffs cannot recover attorney's fees because this action is not cognizable under 42 U.S.C. § 1983 and because the EAHCA does not provide for attorney's fees. Accordingly, we affirm the judgment of the district court.


Monica Anderson, a Wisconsin resident and daughter of plaintiffs-appellants James E. and Shirley A. Anderson, has been diagnosed as a child with exceptional educational needs, requiring under the EAHCA, 20 U.S.C. § 1401(16), a specially designed education tailored to meet her unique needs. She is now thirteen years old and for most of her education has been enrolled in a private school at her parents' expense. The instant dispute stems from plaintiffs' refusal to accept the placement decision of defendant-appellee State Superintendent of Public Instruction Barbara Thompson. Under the EAHCA, 20 U.S.C. §§ 1401 et seq., a state receiving federal funding for education must provide a "free appropriate public education," 20 U.S.C. § 1412(1), that meets the needs of a child diagnosed as having exceptional educational needs. 1

The plaintiff-parents brought action in the district court pursuant to section 615(e)(2) of the EAHCA, 20 U.S.C. § 1415(e)(2), challenging the educational program offered by the state and requesting the court to determine an appropriate program for Monica. They also sought as money damages the costs of their daughter's private education and their administrative appeals as well as the costs of this judicial action and attorney's fees. Plaintiffs here appeal from the district court's refusal to grant damages or attorney's fees despite the fact that the plaintiffs were found to be the prevailing parties.

Monica began her education at St. Francis Children's Activity and Achievement Center (St. Francis), a private institution devoted to the education of children with special educational needs. She attended the school full-time during the 1972-73 school year and the following year, attended St. Francis and a West Allis public school kindergarten each on a part-time basis. Under Wisconsin law, a child must be tested if there is a reasonable chance to believe that the child has exceptional educational needs. Monica was examined by a West Allis multi-disciplinary team (M-team), skilled in assessing needs for special education. In June 1974, the M-team recommended alternative placements for her, either in a classroom for the educable mentally retarded with eventual mainstreaming into the regular first grade, or in a regular first grade class with transitional teacher help plus a reassessment by a learning disability teacher during the 1974-75 school year. Plaintiffs declined that placement and decided to enroll her exclusively at St. Francis.

In the fall of 1975 plaintiffs consented to a reevaluation by the M-team. The team studied her over a period of four months and filed a report in March 1976 which identified Monica as having exceptional educational needs in the areas of speech and language and further undifferentiated exceptional educational needs. In June a supplemental West Allis M-team filed a report consisting of occupational and physical therapy evaluations and reports prepared by West Allis special education teachers. The supplemental report recommended a diagnostic placement for Monica in a West Allis classroom for the educable mentally retarded.

The Andersons again refused the recommended placement and continued to send Monica to the private school. They obtained an independent M-team evaluation of their daughter which diagnosed her as having needs in the areas of speech and language as well as learning disabilities and emotional disturbance. Pursuant to Wis.Stat. § 115.81, they appealed the recommended placement to the local school board. After twenty-one evenings of hearings, the hearing examiner issued a report to the West Allis school board concluding that Monica had a speech and language disability but was neither learning disabled, retarded, nor emotionally disturbed. He determined that the educable mentally retarded placement was appropriate because it offered all of the components necessary for the development of a program meeting her individual needs. The hearing officer's report was adopted by the school board.

Plaintiffs next appealed to State Superintendent Thompson pursuant to Wis.Stat. § 115.81. On October 7, 1977 Thompson issued her decision finding that Monica had exceptional educational needs in the areas of speech and language and learning disabilities but that she was not emotionally disturbed and that an educable mentally retarded placement was appropriate. Thompson stated that she made the placement recommendation despite the finding that Monica was not educably mentally retarded because that program could be developed to meet her individual needs. She also recommended that the West Allis M-team be reconvened with the consent of plaintiffs to develop further an appropriate program. The Andersons refused both the placement and further testing; they continued to send their daughter to St. Francis.

Plaintiffs commenced the instant action pursuant to 20 U.S.C. § 1415(e)(2) seeking review of Thompson's decision. They contended that the Superintendent had offered an inappropriate placement for Monica and that St. Francis was the only appropriate educational opportunity.

The district court first considered the scope of review of a state administrative decision regarding placement of a child with special educational needs under 20 U.S.C. 1415(e)(2). Plaintiffs argued that the court should identify Monica's current exceptional educational needs, order a proper placement, and devise a suitable program to meet her current needs. The defendants took the position that the court's role was limited to determining the propriety of Superintendent Thompson's decision, and therefore that the court should either implement that decision or remand for a new placement determination. The district court noted that Congress had intended the courts to make independent program decisions based on a preponderance of the evidence, 2 and accordingly proceeded to consider Monica's present situation, 495 F.Supp. at 1260. To freeze the evidence at the time the original decision was made, the judge reasoned, would frustrate the court's ultimate responsibility to provide Monica with a "free appropriate public education." Id. at 1261.

In light of the current evidence, the district court found, contrary to the Superintendent's determination, that Monica did have an exceptional educational need in the area of emotional disturbance. The court noted, however, that the disagreement on that issue amounted to nothing more than a labeling problem and that the plaintiffs had not offered evidence to show that a diagnosis of emotional disturbance mandated any differences in programming. 495 F.Supp. at 1263.

In developing an appropriate placement for the then-coming school year, the district court considered the defendant's proposed individualized education program, 3 as well as the plaintiffs' evidence as to Monica's current needs and the plaintiffs' alternative recommended program. The court concluded that Monica should initially be placed in a public school classroom on a part-time basis. 4 To ease the transition from St. Francis, she would still attend the private school but gradually decrease her attendance there and move to full-time attendance in the public school. The court also ordered the school district to pay all costs associated with the transition.

The district judge then considered the nature of the relief authorized by section 615(e)(2), 20 U.S.C. § 1415(e)(2). He concluded that section 615(e)(2) was aimed only at establishing a private right of action for injunctive relief to ensure suitable programming for handicapped children and did not create a damage remedy. The district court noted the absence of any mention of damages in either the legislative history or the actual wording of the Act. 495 F.Supp. at 1269. The court found that the defendants had not done all that they could have for Monica but had not acted in bad faith. Id. Although finding the plaintiffs to be the prevailing parties, the district judge did not permit plaintiffs to recover attorney's fees because attorney's fees were not specifically authorized by the EAHCA. Id.


Only the Fourth Circuit has faced the issue of whether a prevailing plaintiff can recover damages under section 615, 20 U.S.C. § 1415, and there the question arose in a fact situation somewhat different from ours. Stemple v. Board of Ed. of Prince George's Cty., 623 F.2d 893 (4th Cir. 1980), cert. denied, ...

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