Doe v. Koger

• Decision Date: 03 December 1979
• Docket Number: Civ. A. No. S 79-14.
• Citation: 480 F. Supp. 225
• Parties: Jane DOE, on behalf of her minor son, Dennis Doe, Individually and on behalf of all other persons similarly situated, Plaintiffs, v. Kenneth J. KOGER, Individually and in his capacity as Superintendent of the School City of Mishawaka; John Shotts, Individually and as Director of Special Education for the School City of Mishawaka; Ronald Kronewitter, George Vernasco, Elvira Trimboli, Samuel Mercantini and Rosemary Spalding, Individually and in their official capacity as Members of the Board of School Trustees of the School City of Mishawaka; Harold H. Negley, in his official capacity as Indiana Superintendent of Public Instruction; and Gilbert Bliton, in his official capacity as Director of Special Education for the State Department of Public Instruction, Defendants.
• Court: U.S. District Court — Northern District of Indiana

480 F. Supp. 225

Jane DOE, on behalf of her minor son, Dennis Doe, Individually and on behalf of all other persons similarly situated, Plaintiffs, v. Kenneth J. KOGER, Individually and in his capacity as Superintendent of the School City of Mishawaka; John Shotts, Individually and as Director of Special Education for the School City of Mishawaka; Ronald Kronewitter, George Vernasco, Elvira Trimboli, Samuel Mercantini and Rosemary Spalding, Individually and in their official capacity as Members of the Board of School Trustees of the School City of Mishawaka; Harold H. Negley, in his official capacity as Indiana Superintendent of Public Instruction; and Gilbert Bliton, in his official capacity as Director of Special Education for the State Department of Public Instruction, Defendants.

Civ. A. No. S 79-14.

United States District Court, N. D. Indiana, South Bend Division.

November 21, 1979.

Supplemental Entry December 3, 1979.

Kyle M. Payne, Legal Services Program of Northern Indiana, Inc., South Bend, Ind., for plaintiffs.

Theodore L. Sendak, Atty. Gen. of Indiana, Ronald J. Semler, Deputy Atty. Gen., Indianapolis, Ind., James J. Olson, Mishawaka, Ind., for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, District Judge.

By his mother, Dennis Doe has brought this action challenging his expulsion from school. (By order of this Court, Dennis Doe and his mother, Jane Doe, have been granted permission to use alternative names.) The defendants are the Board of the School City of Mishawaka, certain officials of the school, and certain officials of the State Department of Public Instruction. The plaintiff complains that he was expelled in violation of the equal protection clause of the Fourteenth Amendment to the Constitution and in violation of the Education of the Handicapped Act (20 U.S.C. §§ 1401-1461) (Handicapped Act) and the regulations promulgated under the Handicapped Act (46 C.F.R. §§ 121a.1-121a.754).

This memorandum and order will dispose of several motions. The plaintiff has moved for certification of a class and for partial summary judgment. The state defendants have moved for dismissal or, in the alternative, for a stay pending the exhaustion of administrative remedies. The local defendants have moved for dismissal or, in the alternative, for summary judgment.

The parties agree on the basic factual background. Until October 18, 1978, Dennis attended the John Young School as a mildly mentally handicapped student. On October 18, 1978, the principal of John Young School suspended Dennis for disciplinary reasons and recommended that Dennis be expelled for the remainder of the school year. Pursuant to procedures provided for all Indiana public school disciplinary expulsions, an expulsion hearing was held on November 22, 1978, findings and recommendations were issues on December 1, 1978, and Dennis was formally expelled for the remainder of the school year on December 5, 1978. Within two days of Dennis's formal expulsion, Dennis's attorney contacted the local defendants, informing them that Dennis would appeal the expulsion, and requesting that there be held a Rule S-1 hearing. (Rule S-1 is a detailed promulgation issued by the Commission on General Education of the Indiana State Board of Education. Among other things Rule S-1 establishes certain specific procedures to be used in the placement of mildly mentally handicapped students and other students in need of special education.) On December 18, 1978, it was agreed between the parties that, pending further proceedings, Dennis would be placed in an interim educational program beginning January 3, 1979. On January 3, 1979, Dennis returned to school for the remainder of the school year. This federal court action followed.

CLASS CERTIFICATION ISSUES

The plaintiff has moved this Court for an order certifying a class consisting of "all children attending schools operated by the School City of Mishawaka who are in need of or will in the future be in need of special education within the meaning of the Education of the Handicapped Act." The plaintiff does not contend that a large number of special education students were actually suspended or expelled by the School City of Mishawaka during the 1978-79 school year; rather, he contends that relief should be granted on behalf of all special education students because they all face the possibility of disciplinary suspension or expulsion under the school's present policies. For purposes of ruling on this motion, this Court will consider separately the plaintiff's constitutional and statutory claims.

As to the constitutional claim asserted on behalf of the requested class, it is clear that the claim would have to be promptly dismissed. The requested class would have only a claim for a threatened violation of a constitutional right. This Court has no jurisdiction over a claim for a threatened violation of a constitutional right. Such a claim fails to satisfy the "case or controversy" requirement of Article III of the Constitution. O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971). A class should not be certified if it is clear that the claim of the class is void.

The only class which could possibly assert a constitutional claim would have to consist of all special education children actually suspended or expelled by the School City of Mishawaka. But, the plaintiff does not allege that class to be so numerous that joinder of all members is impractical. A class action may be pursued only if the class is so numerous that joinder of all members is impractical. Federal Rules of Civil Procedure 23(a)(1). As to the claim under the Constitution, the motion for an order certifying a class must be denied for failure to satisfy the numerosity requirement.

As to the claim under the federal statute and regulations, a class action would similarly have to be dismissed. The relief requested on behalf of the class is an order requiring the local and state defendants to change their suspension and expulsion policies. The Handicapped Act might allow such a class action to be brought. However, the Department of Health, Education and Welfare (HEW) has set up administrative procedures for the enforcement of its regulations (45 C.F.R. §§ 121a.580-121a.593), and the plaintiff has not sought redress through those administrative procedures. Until available administrative remedies have been exhausted, a claim may not be asserted in court. Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977).

It should be noted that HEW apparently has not set up administrative procedures for providing individual students with redress for a school's failure to comply with HEW regulations. It follows that exhaustion of administrative remedies would not be required of a class of plaintiffs seeking compensation for damages actually incurred because of violations of the Handicapped Act or regulations promulgated under that act. But the plaintiff does not allege that class to be so numerous that joinder of all members is impractical. Therefore, like the claim under the Constitution, the claim under the statute and the regulations cannot be certified a class action because the class does not satisfy the numerosity requirement. See Federal Rules of Civil Procedure 23(a)(1).

The motion for an order certifying a class must be denied.

EXHAUSTION ISSUES

The defendants have argued that the plaintiff should not be allowed to pursue this action because the plaintiff has failed to exhaust administrative remedies available within HEW. The plaintiff is seeking redress for violations of his substantive rights under the Handicapped Act. By bringing this action, the plaintiff has presupposed that the Handicapped Act provides substantive rights to students attending a school receiving funds under that act. The defendants have not challenged the plaintiff's presupposition, and this Court has no reason to doubt that the Handicapped Act does provide students substantive rights under the considerations outlined in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). The defendants have been unable to show this Court any HEW administrative procedures providing individual students with redress for violations of their substantive rights. The HEW administrative procedures available do not provide for the compensation of individual students whose Handicapped Act rights have been violated. Before an action may be brought in court, administrative remedies must be exhausted only if they are available. Lloyd v. Regional Transportation Authority, supra. There being no HEW administrative remedies providing for the compensation of individual students whose Handicapped Act rights have been violated, this Court must allow the plaintiff's action without requiring exhaustion of HEW administrative remedies.

The defendants have also argued that the plaintiff should not be allowed to pursue this action because the plaintiff has failed to exhaust administrative remedies available at the local and state levels. The plaintiff is challenging both his expulsion and the procedure by which he was expelled. The local and state administrative remedies available are basically appeals from the plaintiff's expulsion. The local and state administrative remedies available do not provide for a challenge to the procedure by which the plaintiff was expelled. Before an action may be brought in court, administrative remedies must be exhausted only if they are available. Lloyd v. Regional Transportation Authority, supra. Since the available local and state administrative remedies were not designed for the claim brought by the plaintiff, the plaintiff acted properly in bringing this action in this Court without exhausting the available local and state administrative remedies.

STATUTORY ISSUES

By various sections of the Handicapped Act and the HEW regulations promulgated under that Act, it is...