Gary B. v. Cronin

• Citation: 542 F. Supp. 102
• Decision Date: 23 March 1982
• Docket Number: No. 79 C 5383.,79 C 5383.
• Parties: GARY B., by his father and next friend, Donald B., et al., Plaintiffs, v. Joseph M. CRONIN, State Superintendent of Education, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

542 F. Supp. 102

GARY B., by his father and next friend, Donald B., et al., Plaintiffs, v. Joseph M. CRONIN, State Superintendent of Education, et al., Defendants.

No. 79 C 5383.

United States District Court, N. D. Illinois, E. D.

June 10, 1980.

On Motion for Preliminary Injunction July 17, 1980.

March 23, 1982.

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Schwartzberg, Barnett & Cohen, Susannah Smith, Wallace C. Winter, Legal Advocacy Service, Jeffrey Gilbert, Eighteenth St. Legal Service, Legal Asst. Foundation of Chicago, Chicago, Ill., for plaintiffs.

John M. Collins, Alan E. Grischke, Asst. Atty. Gen., Julia Dempsey, David Thompson, Bernetta Bush, William A. Wenzel, Ill. Sp. Asst. Atty. Gen., Eugene E. Gozdecici, Beverly J. Klein, Mayer, Brown & Platt, Chicago, Ill., for defendants.

R. A. Salomon, Marcia Doane, Schuyler, Ballard & Cohen, Chicago, Ill., for Robert DeVito, M.D.

Eugene J. Schiltz, Mark Weber, Mandel Legal Aid Clinic, Chicago, Ill., for petitioner Lester P. by his parents and next friends Richard P. and Marilyn P.

On Motion for Attorneys' Fees March 23, 1982.

MEMORANDUM OPINION AND ORDER

McGARR, Chief Judge.

Plaintiffs in this action are emotionally disturbed children who allege that they attend private schools because the Illinois public schools do not have special education facilities for them. They seek declaratory and injunctive relief with respect to a rule adopted by the Governor's Purchased Care Review Board ("GPCRB"). Defendants are various state education officials, five of whom seek dismissal. For the reasons stated herein, defendants' motion to dismiss is granted in part and denied in part. (The court previously announced that defendants' motion would be denied in toto. Sua sponte, the court has reconsidered and concludes that certain of plaintiffs' claims must be dismissed.)

The complaint alleges that the challenged rule, Rule 3.21(c) of the GPCRB, excludes counseling and therapeutic services from being considered special education or related services, which the state must provide for handicapped children. It further alleges that the state's failure to provide these services: 1) deprives plaintiffs of the free appropriate education guaranteed by the Education for All Handicapped Children Act of 1975 ("EAHCA"), 20 U.S.C. §§ 1401-1461 (1976), and the regulations promulgated pursuant to EAHCA; 2) amounts to discrimination in violation of section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794 (1976), and the regulations promulgated pursuant thereto; 3) violates the Due Process and Equal Protection Clauses of the United States Constitution and Article X of the Illinois Constitution; and 4) violates Article XIV of the Illinois School Code, Ill.Rev.Stat. Ch. 122, §§ 14-1.01 to 14.01 (1977 and Supps.1977-78).

Defendants advance numerous contentions in support of their motion to dismiss. Basically, they argue that: 1) plaintiffs do not have standing; 2) the court does not have subject matter jurisdiction; 3) plaintiffs have not stated claims for which relief may be granted; 4) plaintiffs have failed to exhaust administrative remedies; 5) this is an appropriate case for abstention; and 6) the Department of Education is an indispensable party whose absence requires dismissal. Each of these assertions will be discussed.

I. Standing

Defendants contend that plaintiffs lack standing to bring this action because Rule 3.21 applies only to the schools. Therefore, defendants maintain, this dispute is between the state and the schools.

Defendants cite Windward School v. New York, 551 Educ. Handicapped L.Rep. 221 (S.D.N.Y.1978), in support of their argument. In that case, the plaintiffs (handicapped children, their parents, and a private school) apparently sought an order enjoining the State of New York from disapproving the school as a publicly funded special education facility, without first conducting a due process hearing pursuant to 20 U.S.C. § 1415 (1976). The court refused to grant a preliminary injunction, finding that there was not a reasonable likelihood of success on the merits because it was doubtful that § 1415 applied when an entire school was disapproved. 551 Educ. Handicapped L.Rep. at 223. The court also stated that approving a school for public funding was solely the state's determination; thus, the issue could not logically be the subject of a hearing between the local school district and the parents. Id. at 222-23.

This case differs fundamentally from the Windward School case. In Windward School, the state was not attempting to cut off the children's right to special education or related services. The district court specifically noted that the state was providing other schools that were "adequate to meet the needs of the individual child." Id. at 223. In this case, plaintiffs allege that they are being completely deprived of publicly funded therapeutic counseling services; thus, unlike New York in the Windward School case, Illinois allegedly is not providing alternative services.

Moreover, plaintiffs here, as handicapped students, would be the beneficiaries of the counseling services provided by the schools. Thus, the state's refusal to pay for such services means that the children or their parents must either incur the costs or go without the counseling services. Plaintiffs, therefore, do have "a personal stake in the outcome of the controversy," Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), and defendants' argument on standing must be rejected.

II. Subject Matter Jurisdiction

The complaint avers that this court has jurisdiction pursuant to 20 U.S.C. § 1415 (1976) and 28 U.S.C. §§ 1331, 1343 (1976). Defendants challenge this jurisdictional statement. The court finds that jurisdiction is based on 28 U.S.C. §§ 1331(a), 1343(3), (4) (1976).

A. 28 U.S.C. § 1331(a) (1976).

Under 28 U.S.C. § 1331(a) (1976), the district courts have original jurisdiction over all civil actions in which the amount in controversy exceeds $10,000 and which arise under the Constitution, laws, or treaties of the United States. Defendants contend that the amount in controversy in this case does not exceed $10,000, thereby precluding jurisdiction under § 1331. The court disagrees.

Plaintiffs seek injunctive relief; thus, the jurisdictional amount is measured by "the value of the right to be protected or the extent of the injury to be prevented." United States v. Chicago, 549 F.2d 415, 424 (7th Cir.), cert. denied sub nom. Adams v. Chicago, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1977). The complaint alleges that plaintiffs are deprived of counseling services which range in cost from $4,000 to $5,400 per year. The value of the right to be protected is not limited to the cost of the services for only one year, however. Rather, as plaintiffs are under age twenty-one (the age of majority under Ill.Rev.Stat. Ch. 122 §§ 14-1.02 to .08 (1977) and 20 U.S.C. § 1412(2)(B) (1976)), should they prevail on the merits, they may benefit for several years. Counseling services for two or three years certainly will exceed $10,000. Moreover, plaintiffs allege that they are being deprived of a free appropriate education. The value of education is, of course, difficult to assess, but the court is willing to assume it exceeds $10,000. Accordingly, the court finds that the requisite amount in controversy is present.

The court also finds that plaintiffs have raised a substantial federal question, i.e., whether Illinois is complying with EAHCA, the Rehabilitation Act, and the Constitution. Hence, plaintiffs have satisfied the second requirement under § 1331(a), i.e., that the action arise under the Constitution, laws, or treaties of the United States. Therefore, the court has jurisdiction pursuant to 28 U.S.C. § 1331(a) (1976).

B. 28 U.S.C. § 1343 (1976).

Plaintiffs also allege, and defendants also dispute, that jurisdiction is based on 28 U.S.C. § 1343. Because subsections one and two of that statute deal with conspiracy, which has not been alleged here, the court assumes plaintiffs are relying only on subsections three and four. Under subsection three, the district courts have jurisdiction over actions which have been brought to redress the deprivation, under color of state law, of any right, privilege or immunity secured by the Constitution or by any Act of Congress providing for equal rights. 28 U.S.C. § 1343(3) (1976). Subsection four provides that the district courts have jurisdiction over actions which have been brought to "recover damages or secure equitable or other relief under any Act of Congress providing for the protection of civil rights...." Id. (4).

Defendants argue that this action does not involve an Act of Congress providing for equal rights or protecting civil rights. The court rejects defendants' argument.

Defendants rely on Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979), to support their position. In Chapman, the Supreme Court held that jurisdiction under 28 U.S.C. § 1343(3), (4) (1976) does not encompass "a claim that a state welfare regulation is invalid because it conflicts with the Social Security Act." 441 U.S. at 603, 99 S.Ct. at 1908. In reaching that conclusion, the Court found that neither 42 U.S.C. § 1983 (1976) nor the Social Security Act, 42 U.S.C. §§ 301, et seq. (1976), is an act of Congress providing for equal rights within the meaning of § 1343(3) or providing for the protection of civil rights within the meaning of § 1343(4). 441 U.S. at 618, 621, 623, 99 S.Ct. at 1916, 1917, 1918.

Although the Court was not considering and made no finding with respect to EAHCA, defendants contend that the Chapman holding applies in this case. Support for defendants' position is found in the Court's statement that:

The Congress that enacted § 1343(3) was primarily concerned with providing jurisdiction for cases dealing with racial

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