Gallagher v. Pontiac School Dist.

• Decision Date: 16 December 1986
• Docket Number: No. 85-1134,85-1134
• Citation: 807 F.2d 75
• Parties: 36 Ed. Law Rep. 553 Dennis GALLAGHER, Next Friend Miriam Gallagher, Plaintiff-Appellant, v. PONTIAC SCHOOL DISTRICT, the Oakland Co. Intermediate School Dist.; Clifford Coit, in his official capacity and Individually; Farmington School District, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 75

807 F.2d 75

36 Ed. Law Rep. 553

Dennis GALLAGHER, Next Friend Miriam Gallagher, Plaintiff-Appellant, v. PONTIAC SCHOOL DISTRICT, the Oakland Co. Intermediate School

Dist.; Clifford Coit, in his official capacity

and Individually; Farmington School

District, Defendants-Appellees.

No. 85-1134.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 30, 1986.

Decided Dec. 16, 1986.

Jon R. Garrett (argued), Garrett and Rogers, P.C., Detroit, Mich., for plaintiff-appellant.

Craig A. Anderson (argued), Detroit, Mich., David P. Smith (argued), Bloomfield, Mich., William W. Decker, Jr., Troy, Mich., Bryan Cermak (Argued), for defendants-appellees.

Before KEITH and WELLFORD, Circuit Judges, and TODD, District Judge. ^*

WELLFORD, Circuit Judge.

Plaintiff-appellant appealed the district court's denial of his claims of failure to provide an adequate education based on the due process and equal protection clauses of the fourteenth amendment and on two federal statues--The Education for All Handicapped Children Act of 1975 ("EAHCA") and the Rehabilitation Act Sec. 504 ("Sec. 504"). On appeal plaintiff seeks monetary damages under the EAHCA, Sec. 504 and 42 U.S.C. Sec. 1983. ¹ For the reasons stated below, we affirm the district court on all grounds and its judgment for all defendants.

I.

This case presents the unfortunate and sad circumstance of a young man, Dennis Gallagher, who is deaf and mentally handicapped, and his mother's effort to obtain educational assistance for him. Gallagher cannot speak and can communicate only through a very limited use of sign language. He was born on January 13, 1954. In the 1973-74 school year he entered the Oakland Training Institute program of defendant Oakland County Intermediate School District in his home area. He remained in this program through the academic year 1975-76. During the 1976-77 school year he was enrolled in defendant Farmington School District's special education program. From the 1977-78 school year until he reached the age of 25 in 1979, Gallagher was enrolled in defendant Pontiac School District's special education program. At no time was he ever excluded from attending any of defendants' schools or from participating in their special education programs. It is also important to note that Gallagher was never enrolled in a program that received federal financial assistance.

Plaintiff brought this action in December 1981 alleging that defendants had deprived him of any meaningful education, basing his claims on the various grounds previously indicated. The district court found in favor of defendants on all counts and this appeal ensued.

The United States Supreme Court, in Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), recently addressed an action to secure a "free appropriate education" for a handicapped child, based on the Education of the Handicapped Act (1983 amended title of the EAHCA), Sec. 504, and the due process and equal protection clauses of the Constitution. The Court found that "Congress intended the EHA to be the exclusive avenue through which a plaintiff may assert an equal protection claim to a publicly financed special education." Id. at 1009, 104 S.Ct. at 3468 (emphasis added). In narrowing the holding, the Court noted that when the EHA is applicable, the equal protection clause is not available as the basis for a claim. Id. at 1013, 104 S.Ct. at 3470. In addition, the Court held that a plaintiff may not enlarge on the remedies available under the EHA by resort to Sec. 504. Id. at 1021, 104 S.Ct. at 3474. The Court, however, left open the question whether Congress intended to preclude a due process challenge. Id. at 1013-14, 104 S.Ct. at 3470. Plaintiff asserts substantially the same claims that were asserted in Smith. We first determine whether the EAHCA is available to Gallagher. If the EAHCA is available, under Smith the equal protection and Sec. 504 claims are precluded.

II. EAHCA

20 U.S.C. Sec. 1401 et seq. ("EAHCA") is a comprehensive federal statutory scheme designed to guarantee a "free appropriate public education" to handicapped children. See 20 U.S.C. Sec. 1401, Declaration of Purpose, n. (c) (now codified at 20 U.S.C. Sec. 1400(c)). In this case the primary dispute regarding the EAHCA concerns the date the act went into effect. Plaintiff claims the act became effective in 1975; defendants contend it did not become effective until 1977.

The substantive provision of the EAHCA that requires public schools to provide a free appropriate education for handicapped children is found at 20 U.S.C. Sec. 1412(2)(B). Section 1412 reads, in pertinent part, as follows:

In order to qualify for assistance under this subchapter in any fiscal year, a State shall demonstrate to the Commissioner that the following conditions are met:

....

(2) The State has developed a plan [that] ... shall set forth in detail the policies and procedures which the State will undertake or has undertaken in order to assure that--

....

(B) a free appropriate public education will be available for all handicapped children between the ages of three and eighteen within the State not later than September 1, 1978, and for all handicapped children between the ages of three and twenty-one within the State not later than September 1, 1980, except that, with respect to handicapped children aged three to five and aged eighteen to twenty-one, inclusive, the requirements of this clause shall not be applied in any State if the application of such requirements would be inconsistent with State law or practice, or the order of any court, respecting public education within such age groups in the State[.]

20 U.S.C. Sec. 1412 (emphasis added). This section amended the EAHCA in 1975. The Historical Note in the United States Code Annotated and Public Law 94-142 both state expressly that this section was to take effect on October 1, 1977. See 20 U.S.C.A. Sec. 1412 Historical Note, 1975 Amendment; Pub.L. No. 94-142, 1975 U.S.Code Cong. & Ad.News (89 Stat.) 796. The sections that were to become effective immediately in 1975, clauses (A), (C), (D), and (E) of section 1412 paragraph 2, related to preparation for the 1977 effective date. ² Because we find that the requirement to have a free appropriate public education available did not become effective until 1977, defendants were not required to provide a free "appropriate" public education for any handicapped children before October 1, 1977. See Boxall v. Sequoia Union High School Dist., 464 F.Supp. 1104, 1112 (N.D.Cal.1979).

Dennis Gallagher was enrolled in the Oakland County Intermediate School District only through the academic year 1975-76. The EAHCA was not in effect until after he left the Oakland schools. He was enrolled in the Farmington School District only in the academic year 1976-77. The EAHCA became effective in October 1977, four months after Gallagher left Farmington. When he entered the Pontiac School District program in the fall of 1977, he was 23 years old. The EAHCA requires an appropriate public education only for handicapped children between the ages of 3 and 21. See 20 U.S.C. Sec. 1412(2)(B). Gallagher thus does not have a valid claim under the EAHCA, because the act did not require any of the defendants to provide an appropriate education to Gallagher at the time he was enrolled in their special education programs.

III. Constitutional Issues

A. Due Process

Plaintiff claims that defendants violated the due process clause by failing to provide him with education commensurate with his needs and by failing to abide by procedural safeguards. To establish a deprivation of an interest protected by the due process clause, plaintiff must show that he was excluded from defendants' programs. Plaintiff cites several cases that have recognized due process rights in an education context, but these cases are distinguishable on the basis that each cited case concerned an exclusion from school. See Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) (expulsion); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (temporary expulsion/suspension); Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 222 (1969) (suspension).

Plaintiff contends that he was in effect "excluded" from defendants' programs because he had no communicative skills and sat in the classroom unaware of what was happening. According to plaintiff he was thus "deprived" and "excluded" even though he was allowed to enter the classroom. Plaintiff's use of semantics in this regard, however, does not alter the substance of his claim, which is that he was provided no appropriate education. Courts have repeatedly rejected the notion that the due process clause secures a right to the most appropriate education. See, e.g., O'Connor v. Bd. of Educ. of School Dist. No. 23, 645 F.2d 578, 582 (7th Cir.), cert. denied, 454 U.S. 1084, 102 S.Ct. 641, 70 L.Ed.2d 619 (1981); Johnston v. Ann Arbor Public Schools, 569 F.Supp. 1502 1505-06 (E.D.Mich.1983); Davis v. Maine Endwell Cent. School Dist., 542 F.Supp. 1257, 1263; (N.D.N.Y.1982); Johnpoll v. Elias, 513 F.Supp. 430, 431-32 (E.D.N.Y.1980). We adhere to this view; plaintiff is not constitutionally entitled to the most appropriate education that might have assisted him in respect to his severe handicap.

Sound policy reasons support the proposition that the Constitution does not guarantee the most appropriate education.

The system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members, and Sec. 1983 was not intended to be a vehicle for federal-court corrections of errors in the exercise of that discretion which do not rise to the level of violations of specific constitutional guarantees.

Wood v. Strickland, 420 U.S. 308, 326, 95 S.Ct. 992, 1003, 43 L.Ed.2d 214 (1975). See also Epperson v. Arkansas, 393 U.S. 97, 104, ...