Doe v. Anrig, Civ. A. No. 79-909-Z(A)

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Writing for the Court: Diana S. Gondek, Boston, Mass., for School Committee of Westwood
• Citation: 561 F. Supp. 121
• Decision Date: 07 March 1983
• Docket Number: 79-2144-T(A) and 80-0359-Z(A).,Civ. A. No. 79-909-Z(A)
• Parties: John DOE, Jane Doe, Joseph Doe, Plaintiffs, v. Dr. Gregory ANRIG, Massachusetts Commissioner of Education, Defendant. John ANGIER, Judith Angier, and John Angier, Jr., Plaintiffs, v. Dr. Gregory ANRIG, Massachusetts Commissioner of Education, and the Wayland School Department, Defendants. TOWN OF BURLINGTON and the School Committee for the Town of Burlington, Plaintiffs, v. The DEPARTMENT OF EDUCATION OF the COMMONWEALTH OF MASSACHUSETTS and John Doe, as he is father and next friend of John Doe, Jr., Defendants.

561 F. Supp. 121

John DOE, Jane Doe, Joseph Doe, Plaintiffs,
v.
Dr. Gregory ANRIG, Massachusetts Commissioner of Education, Defendant.
John ANGIER, Judith Angier, and John Angier, Jr., Plaintiffs,
v.
Dr. Gregory ANRIG, Massachusetts Commissioner of Education, and the Wayland School Department, Defendants.
TOWN OF BURLINGTON and the School Committee for the Town of Burlington, Plaintiffs,
v.
The DEPARTMENT OF EDUCATION OF the COMMONWEALTH OF MASSACHUSETTS and John Doe, as he is father and next friend of John Doe, Jr., Defendants.

Civ. A. Nos. 79-909-Z(A), 79-2144-T(A) and 80-0359-Z(A).

United States District Court, D. Massachusetts.

March 7, 1983.

561 F. Supp. 122

COPYRIGHT MATERIAL OMITTED

561 F. Supp. 123

Anne M. Vohl, Burlington, Mass., David Berman, John F. Zamparelli, Town Counsel, Medford, Mass., for plaintiffs

Linda M. Irvin, Terry Jean Seligmann, Asst. Atty. Gen., Boston, Mass., for defendants.

Diana S. Gondek, Boston, Mass., for School Committee of Westwood.

Gerald B. Gallagher, Acton, Mass., David Rosenberg, Hill & Barlow, Boston, Mass., for defendant John Doe and John Doe, Jr.

Ellen Janos, Asst. Atty. Gen., Boston, Mass., for defendant Dept. of Educ.

Jeffery Jones, Palmer & Dodge, Boston, Mass., for Town of Wayland School Committee.

Bruce E. Mohl, Asst. Atty. Gen., Boston, Mass., Jim Oliver, Boston, Mass., John Graceffa, Weymouth, for Anrig.

OPINION

BAILEY ALDRICH, Senior Circuit Judge.^*

This opinion consolidates three cases raising questions of the right to reimbursement for tuition and travel expenses for handicapped children paid during review proceedings testing the correctness of the school committee's educational and placement decision. The statutes involved are the Education for All Handicapped Children Act (EAHCA), 20 U.S.C. §§ 1401 et seq., and its counterpart, Mass.G.L. c. 71B (Massachusetts law). The cases embraced are the Town of Burlington v. Department of Education, 1 Cir., 1981, 655 F.2d 428 (Burlington), here on remand; Doe v. Anrig, 1 Cir., 1982, 692 F.2d 800 (Westwood), also on remand; and Angier v. Anrig (Wayland), a new case. Burlington's child is Michael, Westwood's is John, and Wayland's is Junior. All are admittedly handicapped; their correct placement has been finally determined,¹ and the only remaining issue is reimbursement.

Facts

Burlington

During the school years 1977-78 and 1978-79 Michael experienced learning problems in the second and third grades at a

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public school, Memorial. An IEP was prepared for him in the spring of 1979 for a special program at another public school, Pine Glen. The father sought review by the Department of Education's Bureau of Special Education Appeals (BSEA). Prior to the commencement of the hearings in September, he transferred Michael, at his expense, to Carroll School, a private school specially qualified to teach handicapped children. In January, 1980 the BSEA upheld his decision and ordered the town to repay him for past, and to pay the future Carroll tuition, informing the town that it might seek review in either state or federal court. The town responded with an appeal to this court, naming the Department and the father, with one count seeking EAHCA review, and a pendent count seeking a state type review. It sought, unsuccessfully, a stay of the BSEA's order requiring it to make interim payments to Carroll, and appealed from that ruling. (Appeal # 1) When threatened by the Department with a cut-off of all special education funds, the town agreed, without prejudice, to make the current, but not past, payments. On the merits, the court thereafter granted summary judgment against plaintiff town on the state count, concluding that the BSEA's decision was supported by substantial evidence. The town appealed that order as well. (Appeal # 2) Subsequently defendants obtained a preliminary injunction enforcing the BSEA's order to reimburse past tuition without awaiting final determination. The town appealed therefrom. (Appeal # 3)

Thus there were three appeals which the court took, aided by a certification under F.R.Civ.P. 54(b), prior to a trial on the merits of the federal count as to the appropriateness of Michael's IEP. The court's first action was to order a dismissal, on the merits, of the pendent state count, Appeal # 2. The state standard of review of an agency decision is the customary one, requiring the petitioner to show the decision was unsupported by substantial evidence. The special federal review under section 1415(e)(2), a provision apparently drawn by proponents of judicial activism, calls for a full trial de novo, with additional evidence, the court to make its own factual determination based on a preponderance of the evidence.² Pointing out that a state type review could lead to an affirmance of the BSEA's decision, while an EAHCA review could produce a reversal, on Appeal # 2 the court held that such inconsistency would violate the federal act. The state count was accordingly dismissed, leaving the federal count for trial.

On Appeal # 1 the court upheld the denial of the stay, ruling that the town had not shown irreparable harm, viz., had not shown that the father would not be able to repay the tuition if he ultimately lost. Similarly, on Appeal # 3 the court ruled the father had not shown irreparable harm in not being reimbursed forthwith for past tuition. The whole tenor of the opinion in remanding for trial of the federal count on the merits was that reimbursement could be had, either by the father or by the town depending on the ultimate finding. Following

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remand and a trial, another judge of this court found the town's IEP to have been appropriate for all three years and, accordingly, ruled that the town was "not responsible for the cost of Michael's education at the Carroll School for the academic years 1979-80 through 1981-82." For reasons that will be come to, both parties, however, seek reimbursement for what they have paid

Westwood

John's disability — Down's Syndrome — was so severe that he had been maintained almost since birth at Crystal Springs School, a residential facility, at his parents' expense. In 1975 they sought an IEP, hoping to pass some of this expense on to the town. Westwood's first response was an IEP for non-residential placement in public school after a final transition year of continued residential placement. The parents objected to this, and the parties negotiated a cost-sharing agreement for continued placement at Crystal Springs. In September, 1977 the parents requested a new IEP, and on November 15 one was issued for non-residential placement in a public school, commencing immediately. The parents rejected this second IEP and appealed to the BSEA, which in due course found the IEP generally appropriate. The parents sought review in this court. At all times John remained at Crystal Springs. After trial, the district court's opinion stated that a residential placement was appropriate for the year 1977-78, and that the town was responsible for the tuition and expenses for that year. The judgment said nothing about reimbursement.

On appeal the court affirmed the district court's Crystal Springs placement decision, but discovered problems with respect to reimbursement. First, it held that section 1415(e)(3), requiring interim continuance of placement, had nothing to do with the eventual settling of accounts. The court then turned to section 1415(e)(2) and declined to construe its authorization language, to "grant such relief as ... is appropriate," as providing for reimbursement. Rather, the court ruled that although the parents would have been relieved of all expense had the town made the correct decision in the first place, they could not now be awarded reimbursement. For this it cited Anderson v. Thompson, 7 Cir., 1981, 658 F.2d 1205, a case, it so happened, from the visiting writing judge's circuit. The court stated that the First Circuit had never considered this issue before, making no mention of its apparent rulings in Burlington.

Again citing Anderson v. Thompson, the Westwood court indicated there could be two exceptions to its general ruling against reimbursement; one, if the change effected by the parents was necessary to protect the physical health of the child, and two, if "the school officials have acted in bad faith by egregiously failing to comply with the procedural provisions of the Act." 692 F.2d ante, at 811. Admittedly, neither exception was presented.

The court then turned to the pendent state claim, and observed that Massachusetts permitted reimbursement in some instances, citing Amherst-Pelham Regional School Committee v. Department of Education, 1978, 376 Mass. 480, 381 N.E.2d 922. Pointing out that the present circumstances were somewhat different, the court said that it would not decide the Massachusetts law itself, and remanded for that purpose. The court failed to note that in Burlington it had ordered the pendent state count dismissed because of conflict and consequent preemption.

Wayland

During the fall of 1977 Junior, a second grade student at Loker, a public school, was placed in a diagnostic IEP, and in December was given an IEP which the parents accepted for the time being although, contrary to the statutory requirements, they had been excluded from the hearing. The IEP called for continued placement, but with special services, at Loker. The winter of 1978 did not go smoothly, with Junior unable to perform school work adequately. Wayland recommended an outside summer program, at the parents' expense. Junior undertook a program at Carroll School. In August the parents rejected the 1977 IEP, and shortly

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thereafter enrolled Junior at Carroll for the 1978-79 school year. They requested funding for an independent evaluation of Junior at the Children's Hospital. When this was refused they proceeded with the evaluation nevertheless, and submitted it to Wayland on November 2, 1978. On...