Doe by Gonzales v. Maher, Nos. 83-2613
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | Before SNEED, SCHROEDER and BRUNETTI; SNEED |
| Citation | 793 F.2d 1470 |
| Parties | 33 Ed. Law Rep. 124 John DOE, by his guardian ad litem Pauline GONZALES, Plaintiff/Appellee/Cross- Appellant, and Jack Smith, Plaintiff/Intervenor/Cross-Appellant, v. William MAHER, et al., Defendants/Appellants, and Wilson Riles, etc., et al., Defendants/Appellants/Cross-Appellees. |
| Decision Date | 11 July 1986 |
| Docket Number | 84-1984 and 84-2080,Nos. 83-2613 |
Page 1470
Plaintiff/Appellee/Cross- Appellant,
and
Jack Smith, Plaintiff/Intervenor/Cross-Appellant,
v.
William MAHER, et al., Defendants/Appellants,
and
Wilson Riles, etc., et al., Defendants/Appellants/Cross-Appellees.
Ninth Circuit.
Submitted Nov. 27, 1985.
Decided July 11, 1986.
Page 1475
Sheila Brogna, Toby E. Fishbein Rubin, William J. Taylor, Brobeck, Phleger & Harrison, San Francisco, Cal., for plaintiff/appellee/cross-appellant.
M. Mari Merchat, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, Cal., for amicus curiae.
Thomas M. Berliner, Asher Rubin, San Francisco, Cal., for defendants-appellants.
Appeal from the United States District Court for the Northern District of California.
Page 1476
Before SNEED, SCHROEDER and BRUNETTI, Circuit Judges.
SNEED, Circuit Judge:
The California Superintendent of Public Instruction (State Superintendent), the San Francisco Unified School District (SFUSD), the Superintendent of the SFUSD, and various other school officials appeal the expansive declaratory judgments rendered, and the injunctions imposed, by the district court pursuant to the Education for All Handicapped Children Act (EAHCA), 20 U.S.C. Secs. 1401-1461 (1982), and section 504 of the Rehabilitation Act (section 504), 29 U.S.C. Sec. 794 (1982), in favor of appellees John Doe and Jack Smith, two emotionally handicapped students. 1 Doe and Smith cross appeal the district court's dismissal of their damage claims against the State Superintendent.
We affirm in part, reverse in part, and modify in part.
I.
This is a case affected by deep and strong emotional currents and fundamental civic concerns. In brief, it concerns the education of children, particularly handicapped children. It teaches that those who serve by educating both the handicapped and the non-handicapped must accept an increment to their already not insubstantial bureaucratic yoke, that those who love their children must sometimes make sacrifices in order to accommodate the interests of other children and their equally loving parents, and that those of us who administer the law must recognize the limits of our capacity to achieve perfect justice.
Because our opinion is lengthy, understanding will be advanced by outlining its structure. It is divided into seven parts, not counting this introduction and a brief conclusion. These are as follows:
II. Facts and Procedural Background
III. Analysis of the Applicable Statutory Structure
IV. District Court Rulings Regarding Disciplinary Matters
V. District Court Rulings Regarding Placement Procedures
VI. District Court Rulings Regarding the Reduction of Smith's Schedule
VII. District Court Rulings Affecting Duties of the State
VIII. Disposition of Plaintiffs' Damage Claims
II.
FACTS AND PROCEDURAL BACKGROUND
Appellee John Doe is an emotionally disturbed child with aggressive tendencies in certain circumstances. This condition renders him handicapped within the meaning of both the EAHCA 2 and section 504 of the Rehabilitation Act. 3 All parties agree that he is entitled to whatever protections those statutes afford. Pursuant to an individualized educational program (IEP) designed for Doe in April 1980, the SFUSD placed him at the Louise Lombard School (Louise Lombard), a developmental center for the handicapped.
Page 1477
On November 6, 1980, Doe assaulted another student and broke a school window. When interviewed by the school principal, Henry Caruso, Doe admitted his misconduct. Caruso suspended Doe for five days, until November 14. On that date Doe, his mother, and their attorney met with Caruso to discuss the suspension. Caruso referred Doe to the Student Placement Committee (SPC), 4 with the recommendation that he be expelled. On the day of the conference with Caruso, the SPC notified Doe's mother by letter that it was recommending Doe's expulsion 5 from the SFUSD, but that she had the right to a conference with the SPC on November 25. The SPC also continued Doe's suspension indefinitely. This was done in reliance on former California Education Code Sec. 48903(h), which allowed an extension of suspension beyond five days pending the resolution of expulsion proceedings. 6
Doe's counsel by letter objected to the use of these procedures on the ground that they violated the EAHCA. He asked the SFUSD to cancel the expulsion hearing and convene an IEP team. The SFUSD ignored this request and Doe sought relief in the district court. On November 24, the day before the scheduled conference with the SPC, the SFUSD agreed to cancel the expulsion proceeding against Doe. The district court issued a temporary restraining order on December 2 that directed the SFUSD to readmit Doe to the Louise Lombard School. See Court Record (C.R.) item 11. On December 10, the court issued a preliminary injunction enjoining the SFUSD from excluding Doe from Louise Lombard while efforts were being made to find him an alternative placement pursuant to his IEP recommendation. See id. item 40. Doe finally returned to Louise Lombard on December 15.
Appellee Jack Smith, like appellee Doe, has a propensity for aggressive behavior and is emotionally handicapped within the meaning of the EAHCA and section 504. In February 1980, an IEP team recommended that Smith be given a special education placement in a regular school setting at A.P. Giannini School (A.P. Giannini). His then-current IEP stated that "[t]his program is on a trial basis dependent upon [Smith's] ability to adapt to a regular school." With this IEP, Smith entered A.P. Giannini in September 1980. Following a number of incidents of misbehavior on Smith's part, the school unilaterally decided on October 14 to reduce his program to a half-day schedule. At some point, his grandparents agreed to the reduction. However, school officials appear never to have apprised them of their right to challenge the reduction, or of the other safeguards available to them under the EAHCA.
On November 14, Smith made sexual comments to several female students. Smith admitted these acts to the school principal, who suspended him for five days and referred him to the SPC for expulsion. By a letter dated November 21, the SPC notified Smith's grandparents that it was recommending to the school board that Smith be expelled from the SFUSD and also that a conference was set for December 2. As in Doe's case and in reliance on former California Education Code Sec. 48903(h), the SPC also continued Smith's suspension pending resolution of the case.
On November 28, in a letter to the SPC, Smith's counsel objected to the expulsion proceedings. On December 1, the SPC cancelled the December 2 hearing and offered either to restore Smith to his half-day program
Page 1478
at A.P. Giannini or to provide him with home tutoring. Because the SPC refused to allow Smith to return to his full-day program as requested, his grandparents chose home tutoring. Home instruction began on December 10, and an IEP team convened on January 6, 1981. Smith's counsel became aware of Doe's suit and petitioned the district court for leave to intervene. The court granted the request on February 27, 1981.The claims raised by Doe and Smith are similar. Each complains of extended suspension pursuant to the initiation of expulsion proceedings. Smith complains of the reduction of his program to a half-day schedule. Each also asserts violations of the EAHCA, section 504 of the Rehabilitation Act, and various wrongs actionable under 42 U.S.C. Sec. 1983.
The claims against the SFUSD were predicated upon the direct action taken by district officials against Doe and Smith. The claims against Wilson Riles, the former State Superintendent of Public Instruction, were based on his alleged failure (1) to establish a policy regarding the discipline of handicapped students, (2) to monitor the SFUSD's compliance with the EAHCA, and (3) to intervene when the SFUSD deprived Doe and Smith of their rights under the EAHCA. The plaintiffs prayed for injunctive and declaratory relief, as well as damages, against all the defendants in their official and individual capacities.
On May 25, 1982, in the course of pretrial discovery, the district court issued an opinion stating, in part, that the Eleventh Amendment barred all recovery of damages against the State Superintendent, but that damages would be available against the SFUSD defendants under section 1983 and section 504. See C.R. item 155. On June 17, 1983, the court granted plaintiffs' motion for Partial Summary Judgment against the SFUSD defendants, and the parties promptly entered into a settlement whereby Doe and Smith released the SFUSD defendants from all damage liability in exchange for $1600 each. Finally, on December 2, 1983, the court issued a declaratory judgment and permanent injunction against the SFUSD. See C.R. item 272, reprinted in Appendix A, infra.
Litigation against the State Superintendent was more protracted. On July 11, 1983, the court denied the plaintiffs' summary judgment motion against the State Superintendent on the ground that several factual issues remained to be resolved. Sixteen days later, the court granted the State Superintendent leave to amend his complaint to plead good-faith immunity from the claims against him in his individual capacity and sovereign immunity from the claims against him in his official capacity. See C.R. item 252. Doe and Smith immediately filed a proposed discovery plan, but the court denied the proposal for the reason that the plaintiffs had not stated, and could not state, a claim against the State Superintendent in his individual capacity, and that further discovery would not serve to advance their claims against him in his official capacity. See C.R. item 265.
These skillful managerial steps by the district...
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