Doe v. Anrig, Civ. A. No. 79-2145-G.

Citation500 F. Supp. 802
Decision Date07 November 1980
Docket NumberCiv. A. No. 79-2145-G.
PartiesJohn DOE et al., Plaintiffs, v. Dr. Gregory ANRIG et al., Defendants.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

Anne M. Vohl, Burlington, Mass., for plaintiffs.

Anne Josephson, Asst. Atty. Gen., Boston, Mass., Debbie Shanley, Braintree, Mass., for defendants.

MEMORANDUM AND ORDERS

GARRITY, District Judge.

This action is an appeal from an adverse ruling rendered by the Massachusetts Department of Education's Bureau of Special Education Appeals (Bureau) under the Education of the Handicapped Act, 20 U.S.C. § 1401 et seq. Plaintiffs, a child Joseph Doe with special educational needs and his parents, seek judicial review of a Bureau decision holding that the individual educational plans proposed by the Franklin Public Schools for the school years 1978-1979 and 1979-1980 were adequate and appropriate to meet Joseph's needs. In addition, plaintiffs seek judicial review of a 1977-1978 educational plan which they initially accepted, but later rejected. Plaintiffs have not sought administrative review by the Bureau of the 1977-1978 plan.

Defendants, State Commissioner of Education and Franklin School Committee, have moved to dismiss and for summary judgment for failure to exhaust administrative remedies in that plaintiffs did not seek review by the State Advisory Commission on Special Education (SAC) of the 1978-1979 and 1979-1980 educational plans and did not seek review by the Bureau of the 1977-1978 educational plan. Briefs were filed by all parties and the court heard oral argument.

The factual background is as follows: Programs for special educational needs of the student were prepared by the Franklin Public Schools and approved by his parents until he had completed the sixth grade. An education plan for his first year in junior high school was prepared by the school department and accepted by the parents in June 1977. However, during the summer of '77 their son experienced emotional difficulties and they changed their minds about his enrolling in the public junior high school. They did not formally reject the school department's plan but told school officials that they had found a program which they believed to be more suitable for their son at the Leland Hall School, a private day school for children with special needs, which has been approved by the Massachusetts Department of Education and is located in Norfolk, Massachusetts. The boy has been enrolled at Leland Hall from September 1977 until the present time.

At the beginning of the next school year, in the summer of 1978, the parents requested that the defendant school committee evaluate the boy's abilities and educational needs and, as a result, the committee proposed a program for him in the Franklin Public Schools for the 1978-79 school year. His parents requested an independent evaluation, which was conducted during the following winter. Thereafter the defendant committee proposed a public school program for the 1979-80 school year. These two plans, for the 1978-79 and 1979-80 academic years, were rejected by the parents, who appealed to the Bureau of Special Education Appeals of the State Department of Education. The parents presented the testimony of the psychologist who had conducted the independent evaluation and of teachers at the Leland Hall School, all of whom recommended that the boy continue in the special program there. The school committee offered testimony of witnesses, most of them school department employees, recommending a program at the public high school. The Bureau hearing officer found that the education plan proposed by the school committee was best for the boy, specifically "the least restrictive, adequate and appropriate education plan to meet his special needs".

When notified of the decision, the parents rejected the recommendation contained in the Bureau's decision. On the printed form sent to them the following sentence appears: "I understand this rejection automatically constitutes an appeal to the State Advisory Commission without my having to separately note such an appeal." The parents returned this form with that sentence stricken and the following sentence substituted: "I will appeal directly to the U.S. District Court."

Soon thereafter the complaint in the instant case was filed, alleging various factual and legal errors in the Bureau's decision. The complaint also alleges that plaintiffs' rights under the Act were violated with respect to the 1977-78 school year because the defendant school committee failed to notify them that their initial acceptance of the public education plan proposed by the school department for 1977-78 did not preclude them from thereafter rejecting it and obtaining review by the Bureau of Special Education Appeals. An affidavit1 filed by the mother states that she and her husband were led to believe by the school department personnel with whom they dealt that, once accepted, the plan was irrevocable.

The school committee's answer denied the allegations and asserted various special defenses, including failure to exhaust administrative remedies. It thereafter filed a motion for summary judgment on these grounds. The defendant Commissioner of the State Department of Education likewise moved to dismiss for failure to exhaust state administrative remedies.

For the reasons stated below, defendants' motions to dismiss are granted as to the 1977-78 school year. However, considering all the circumstances we shall defer ruling on the motions to dismiss as to the subsequent years until the position of the Department of Education2 can be adequately ascertained and presented in these proceedings.

As to the 1977-78 school year, plaintiffs claim that they should have been told more clearly that they had the right to revoke their initial acceptance of the educational plan for their son and to bring the matter before the state Bureau. They assert that any failure to exhaust administrative remedies was due to the defendant school committee's failure to notify them of their due process rights, and that the defendants therefore may not rely on the failure to exhaust in seeking dismissal of the action. However, the court lacks subject matter jurisdiction of this claim of plaintiffs. The only jurisdiction conferred by 20 U.S.C. § 1415 is to entertain civil actions brought by parties aggrieved by the findings and decisions of state administrative agencies. No such findings or decision were made by any state agency with respect to the 1977-78 academic year; and hence we lack jurisdiction. Stubbs v. Kline, W.D.Pa., 1978, 403 F.Supp. 110, 114. This portion of plaintiffs' claim is therefore dismissed.

Defendants' motions to dismiss as to subsequent academic years present more complex problems. The exhaustion requirement asserted by the defendants implicates considerations of comity and federalism and calls for a close examination of the interrelationship between the state and federal statutory and regulatory schemes governing the rights and responsibilities of the parties. Also, the instant case does not present the usual exhaustion issue, where plaintiffs are seeking substantive relief which defendants assert may be obtained from an administrative agency.3 Cf. Oscar Mayer & Co. v. Evans, 1979, 441 U.S. 750, 764-65, 99 S.Ct. 2066, 2075-76, 60 L.Ed.2d 609. Here defendants argue that access to a federal court, specifically authorized by a federal statute, should be postponed because of the availability of an unexhausted state procedure. They do not, of course, argue that the Massachusetts legislature could constitutionally limit access to the federal courts. See Poitra v. Demarrias, 8 Cir., 1974, 502 F.2d 23, 26; Markham v. City of Newport News, 4 Cir., 1961, 292 F.2d 711, 713-714.

The governing federal statute is the Education of the Handicapped Act. The principal provisions applicable here were added in 1975 by the passage of an amendment to that Act providing for Assistance for Education of All Handicapped Children, codified in 20 U.S.C. §§ 1411-1420. These provisions became effective October 1, 1977. Comprehensive regulations, which were promulgated on August 23, 1977, appear at 45 C.F.R. § 121a. Both the statute and the regulations delineate certain procedural safeguards which the state must afford parents and guardians of handicapped children, in order to obtain federal funds under the Act. 20 U.S.C. § 1415; 45 C.F.R. § 121a.500 et seq. The federal scheme also specifies the circumstances under which a party aggrieved by a state agency's decision may appeal to state or federal court. 20 U.S.C. § 1415(e); 45 C.F.R. § 121a.509-512.

The Massachusetts statutory framework likewise prescribes the procedural rights and judicial remedies of parties aggrieved by the Bureau's decision on a child's individual education plan. The principal statute involved is entitled Education of Children with Special Needs. This statute was added by chapter 766 of the Acts of 1972, which became effective September 1, 1974 and was codified in Mass. G.L. c. 71B. The crucial provisions, including those governing appeal procedures, appear in section 3. State regulations promulgated under c. 766 are codified in 603 C.M.R. § 28.00, and are dated September 1, 1978, which is approximately one year after the date of the federal regulations and the effective date of the federal statute. Chapter 4 of the state regulations at volume 16, pp. 322-329, deals with appeal procedures.

A difficulty in ruling upon the defendants' motions to dismiss for the 1978-79 and 1979-80 years arises from the federal law's apparent assumption of a state procedural scheme different from that enacted in Massachusetts and, to a lesser extent, from the failure of the Massachusetts statute and regulations to include any reference to the availability of an appeal to the federal court system. Specifically, the federal statute mandating various procedural safeguards, 20 U.S.C. § 1415, permits...

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