Board of Educ. of Oak Park & River Forest High School Dist. 200 v. Illinois State Bd. of Educ.

• Decision Date: 25 July 1996
• Docket Number: No. 95-2373,95-2373
• Citation: 79 F.3d 654
• Parties: 108 Ed. Law Rep. 32, 15 A.D.D. 128 BOARD OF EDUCATION OF OAK PARK & RIVER FOREST HIGH SCHOOL DISTRICT 200, Plaintiff-Appellant, v. ILLINOIS STATE BOARD OF EDUCATION and Todd A. by and through his parents Charlotte A. and Robert A., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 654

79 F.3d 654

108 Ed. Law Rep. 32, 15 A.D.D. 128

BOARD OF EDUCATION OF OAK PARK & RIVER FOREST HIGH SCHOOL DISTRICT 200, Plaintiff-Appellant, v. ILLINOIS STATE BOARD OF EDUCATION and Todd A. by and through his parents Charlotte A. and Robert A. Defendants-Appellees.

No. 95-2373.

United States Court of Appeals Seventh Circuit.

Argued Feb. 16, 1996.

Decided March 27, 1996.

As Amended April 23, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied July 25, 1996.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 6105--Brian Barnett Duff, Judge.

John A. Relisa (argued), Lisa A. Lopatka, Franczek, Sullivan, Mann, Crement, Hein & Relias, Chicago, IL, for Plaintiff-Appellant.

Susan Frederick Rhodes, Office of the Atty. Gen., Laura J. Miller, Northwestern University Legal Clinic, John Moynihan, Law Student (argued), Chicago, IL, for Defendants-Appellees.

Before POSNER, Chief Judge, and CUMMINGS and BAUER, Circuit Judges.

POSNER, Chief Judge.

The Individuals With Disabilities Education Act, 20 U.S.C. §§ 1400 et seq., entitles a disabled child to a free public education tailored to his special needs until he turns 21. Todd A., who is now 23, has been severely disabled all his life. Autistic and retarded, he cannot speak, or attend to his basic self-care needs; in most respects, he functions at the same level as a 3 or 4 year old, and in some at a lower level, since normal 3 or 4 year olds can speak. He and his parents became residents of the Oak Park and River Forest (Illinois) public high school district in 1987, when he was 15. Pursuant to the Act, the school district prepared an Individualized Education Program for Todd. 20 U.S.C. §§ 1401(a)(20), 1414(a)(5). Since he could not benefit from classroom instruction, the program prescribed vocational and "life skills" training for him, mostly at a store called Venture. His parents were dissatisfied with the training that he was receiving at Venture and in December of 1992 persuaded the school district to place him in ARRISE, a program for autistic persons that was founded by Todd's mother. In 1993, three weeks before Todd turned 21, his parents filed a complaint with the school district seeking a year (later two years) of compensatory education in the form of continuing Todd in the ARRISE program for that period at the school district's expense. Although the Act entitles disabled individuals to special educational assistance only until they reach the age of 21, a number of courts have held that if the assistance is inadequate (as Todd's parents contended was the case here, when he was in the Venture program) the individual may be awarded, in order to cure the inadequacy, additional special assistance after he reaches the age of 21. The Act does not say so. The only specific remedies that it mentions are attorneys' fees and interim relief (see below). But it authorizes the court to "grant such relief as the court determines is appropriate," 20 U.S.C. § 1415(e)(2), and these courts have assumed, consistent with the Supreme Court's generous reading of the provision in School Comm. of Town of Burlington v. Department of Education, 471 U.S. 359, 369-70, 105 S.Ct. 1996, 2002-03, 85 L.Ed.2d 385 (1985), that this authorization encompasses the full range of equitable remedies and therefore empowers a court to order adult compensatory education if necessary to cure a violation. Parents of Student W. v. Puyallup School District, 31 F.3d 1489, 1497 (9th Cir.1994); Pihl v. Massachusetts Dept. of Education, 9 F.3d 184, 187-89 (1st Cir.1993). This is surely correct in light of the Burlington case, and while we treated the issue as an open one in Timms v. Metropolitan School District, 722 F.2d 1310, 1314-16 (7th Cir.1983), that was before Burlington. The defendants do not question the propriety of such relief.

The Act provides that during any proceedings to enforce it "the child shall remain in the then current educational placement of such child" unless the parents agree otherwise. 20 U.S.C. § 1415(e)(3)(A). This is the "stay put" provision, on which see Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988); Hunger v. Leininger, 15 F.3d 664, 667-68 (7th Cir.1994). Under it, Todd remains in the ARRISE program to this day--since the proceedings kicked off by his parents' claim for compensatory education have not yet wound up--even though he has now been there more than two years past his twenty-first birthday. Unless the school district's appeal succeeds (the significance of this qualification will become apparent shortly), Todd will have received, by virtue of the stay-put provision, more relief than his parents ever sought on his behalf.

After an appellate hearing officer (see 20 U.S.C. § 1415(c)) ordered the school district to provide Todd with six months of compensatory education, the school district, as was its right, § 1415(e)(2), sought judicial review in the district court. Meanwhile, it was refusing to comply with the stay-put provision, which is to say refusing to foot Todd's bill at ARRISE, on the ground that the stay-put provision does not apply to a person who has reached his or her twenty-first birthday. Todd asked the district judge to order the school district to comply with the provision and the judge so ordered, whereupon the district wrote a check for some $30,000 to ARRISE, covering the cost of Todd's remaining in the program between October 1993, which was a month or two after his twenty-first birthday, and October 1995, which was a month or two after his twenty-third birthday. The reason for these lags is that although Todd turned 21 on August 21, 1993, the school district did not get around to stopping paying for him until October.

The appeal to this court is from the order directing the school district to comply with the stay-put provision; and we must first decide whether it is an appealable order. It is if it is either a preliminary injunction, 28 U.S.C. § 1292(a)(1), or what is called a "collateral order"--an order that finally determines an issue that is separate from the merits of the litigation (hence "collateral") and that cannot be effectively reviewed on appeal from the final judgment in the litigation. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276, 108 S.Ct. 1133, 1136-37, 99 L.Ed.2d 296 (1988); Cassidy v. Cassidy, 950 F.2d 381, 383 (7th Cir.1991); In re Repetitive Stress Injury Litigation, 11 F.3d 368, 372 (2d Cir.1993); Powers v. Southland Corp., 4 F.3d 223, 231 (3d Cir.1993); Moretrench American Corp. v. S.J. Groves & Sons Co., 839 F.2d 1284, 1288-89 (7th Cir.1988); 15A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3911 (2d ed. 1991). The order here, commanding the school district to comply with the stay-put provision, is both. The freezing of the status quo during litigation is the traditional office of a preliminary injunction, Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 383 (7th Cir.1984); Republic of the Philippines v. Marcos, 862 F.2d 1355, 1361 (9th Cir.1988) (en banc); Tom Doherty Associates, Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 34 (2d Cir.1995); Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 196 (3d Cir.1990), and that is exactly what the stay-put provision, repeated in the judge's order, does. Several of the cases that we have cited for the "traditional office" note, it is true, the frequent ambiguity of the term "status quo," but in this case there is no ambiguity. Todd was in the ARRISE program and the state was paying; his parents wanted him to remain in the program at the state's expense--wanted, in other words, the status quo to continue undisturbed.

We need not decide whether the "stay put" provision itself is an injunction. There are such animals as statutory injunctions. The automatic stay in bankruptcy is the best known. 11 U.S.C. § 362. Another is the permanent statutory injunction against collecting from a debtor a debt that has been discharged in bankruptcy. 11 U.S.C. §§ 524(a)(2), (3); In re White Motor Credit, 761 F.2d 270, 274 (6th Cir.1985). Since Congress can attach criminal and civil penalties to the violation of statutory provisions, we suppose that it can make such violations punishable as contempts. It has been held to have done that with respect to violations of the automatic stay in bankruptcy, In re Skinner, 917 F.2d 444, 447 (10th Cir.1990) (per curiam); 2 Collier on Bankruptcy para. 362.11 (15th ed., Lawrence P. King ed. 1995), a form of statutory injunction as we have said. Not being a judicial order, a statutory injunction cannot be "appealed," though it can be challenged by the sort of declaratory or injunctive action brought by the school district. None of this matters. The judge entered an order commanding the school district to comply with the stay-put provision, and it is the only candidate for an appealable order.

The order is cryptic: "We [the royal we] order the District to comply with the [Individuals with Disabilities Education Act's] 'stay put' provision." But it is sufficiently clear and definite to be enforceable by the usual sanctions for violating an injunction--civil or criminal contempt--so that the order has not only the form of an injunction but also the bite that a real injunction has. The significance of our reference to "bite" lies in the fact that an injunction that is too vague to be enforced is not appealable. The defendant, being free to ignore it, is not hurt by it and so has no real controversy with the plaintiff within the meaning of Article III of the Constitution. E.g., DDI Seamless Cylinder Int'l, Inc. v. General Fire Extinguisher Corp., 14 F.3d 1163, 1166 (7th Cir.1994); Bates v. Johnson, 901 F.2d 1424, 1428 (7th Cir.1990). But the "injunction" here was unequivocal, except...