Hayes Through Hayes v. Unified School Dist. No. 377, 377 and A

• Decision Date: 06 June 1989
• Docket Number: No. 377 and A,Nos. 87-2290,87-2370 and 87-2372,377 and A,s. 87-2290
• Citation: 877 F.2d 809
• Parties: 54 Ed. Law Rep. 450 Dennis HAYES, a Minor and Sally Hayes, a Minor, Through Their Parents Walter HAYES and Lucy Hayes, as Best Friends, Plaintiffs-Appellants-Cross-Appellees, v. UNIFIED SCHOOL DISTRICT NO. 377, Atchison-Jefferson Educational Cooperative; Tanya Sherman, Teacher; Margaret L. Paul, School Psychologist; Beverly Jeffery, Para-professional; Harold Carlson, Principal; Robert L. Blunt, School District Superintendent; John McFarland, Director, P.S.A. Program; All individually and in their official Capacities as Employees and Agents of Defendants, Unified School Districttchison-Jefferson Educational Cooperative, Defendants-Appellees-Cross-Appellants. Tenth Circuit
• Court: U.S. Court of Appeals — Tenth Circuit

Page 809

877 F.2d 809

54 Ed. Law Rep. 450

Dennis HAYES, a Minor and Sally Hayes, a Minor, Through Their Parents Walter HAYES and Lucy Hayes, as Best Friends, Plaintiffs-Appellants-Cross-Appellees, v. UNIFIED SCHOOL DISTRICT NO. 377, Atchison-Jefferson Educational Cooperative; Tanya Sherman, Teacher; Margaret L. Paul, School Psychologist; Beverly Jeffery Para-professional; Harold Carlson, Principal; Robert L Blunt, School District Superintendent; John McFarland Director, P.S.A. Program; All individually and in their official Capacities as Employees and Agents of Defendants Unified School District No. 377 and Atchison-Jefferson Educational Cooperative, Defendants-Appellees-Cross-Appellants.

Nos. 87-2290, 87-2370 and 87-2372.

United States Court of Appeals,Tenth Circuit.

June 6, 1989.

Pantaleon Florez, Jr. of Irigonegaray, Eye & Florez, Topeka, Kan., for plaintiffs-appellants-cross-appellees.

J. Franklin Hummer, Patricia E. Baker, and Shelden Le Bron, Topeka, Kan., for defendants-appellees-cross-appellants.

Before LOGAN, MOORE and TACHA, Circuit Judges.

TACHA, Circuit Judge.

This is an appeal from the granting of the defendants' motion for summary judgment on an action brought under 42 U.S.C. Sec. 1983 and Kansas state law. ¹ The defendants cross-appeal, contending that the action should be dismissed because the plaintiffs failed to exhaust their administrative remedies under the relevant provision of the Education of the Handicapped Act (EHA), 20 U.S.C. Sec. 1415. ² Because the failure to exhaust administrative remedies is jurisdictional and our decision on that issue is dispositive, we do not review the merits of the district court's findings regarding the plaintiffs' substantive claims. We therefore reverse and remand to the district court with instructions to enter an order dismissing the cause.

I.

The relevant facts are undisputed. Prior to the commencement of the 1980-81 school year, the plaintiff-children, Dennis and Sally Hayes, were tested and evaluated to be candidates for the Personal/Social Adjustment Program (PSA program) through the Atchison-Jefferson Educational Cooperative in Unified School District No. 377. The children's mother, Mrs. Lucy Hayes, met with school personnel to discuss the placement of the children and signed a form agreeing to her children's placement in the PSA program. The signed form also included the following statement:

I understand the reason for the placement; that I may still request a hearing at any time; that I may request a re-evaluation of these students at any time; and that further reassignment, whether at my request or the school's, can take place only after re-evaluation.

Hayes Through Hayes v. Unified School Dist. No. 377, 669 F.Supp. 1519, 1526-27 (D.Kan.1987).

Dennis and Sally Hayes were placed in the PSA program for the 1980-81 school year. During that year both children behaved in a disruptive manner and violated school rules. Consequently, the children were required, at various times, to stay in a three-foot by five-foot room for "time-out" periods and in-school suspensions. ³

Neither of the children's parents requested a hearing at any time to institute a change in placement for the children or to object to the disciplinary use of the three-foot by five-foot room, Hayes, 669 F.Supp. at 1521, 1523, although a hearing procedure was available and at least one of the parents was aware of its existence, id. at 1523. Instead of pursuing their claims through the administrative hearing procedure, the plaintiffs brought state law claims and a federal section 1983 claim based on alleged violations of the United States Constitution.

II.

Before considering the plaintiffs' substantive claims we must determine whether these claims are properly before the court, or whether the plaintiffs were required first to exhaust their administrative remedies under the EHA. We begin our analysis by examining the provisions of the EHA.

Congress promulgated the EHA, as amended, in an effort to help state and local agencies meet the burden of providing public education to all handicapped children. See Board of Educ. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 3037, 73 L.Ed.2d 690 (1982). "In order to qualify for federal financial assistance under the Act, a state must demonstrate that it 'has in effect a policy that assures all handicapped children the right to a free appropriate public education.' " Id. at 180-81, 102 S.Ct. at 3037-38 (quoting 20 U.S.C. Sec. 1412(1)). A handicapped child's right to a "free appropriate public education" is implemented in part by the Act's requirement that an individualized educational program (IEP) reflecting the child's unique needs be developed for each handicapped child, 20 U.S.C. Secs. 1401(19), 1412(4), and reviewed at least annually, id. Sec. 1414(a)(5).

Additionally, "the Act imposes extensive procedural requirements upon states receiving federal funds under its provisions." Rowley, 458 U.S. at 182, 102 S.Ct. at 3038. In an effort to "maximize parental involvement in the education of each handicapped child," id. at 182 n. 6, 102 S.Ct. at 3038-39 n. 6, "the Act requires that parents be permitted 'to examine all relevant records with respect to the identification, education, and educational placement of the child, and ... to obtain an independent educational evaluation of the child,' " id. (quoting 20 U.S.C. Sec. 1415(b)(1)(A)). Further,

[p]arents or guardians of handicapped children must be notified of any proposed change in "the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to such child," and must be permitted to bring a complaint about "any matter relating to" such evaluation and education.

Id. at 182, 102 S.Ct. at 3038 (quoting 20 U.S.C. Secs. 1415(b)(1)(D), (E)) (footnote omitted); see Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 598, 98 L.Ed.2d 686 (1988). When a complaint arises, the Act also provides for procedures to resolve such complaints:

Complaints brought by parents or guardians must be resolved at "an impartial due process hearing," and appeal to the state educational agency must be provided if the initial hearing is held at the local or regional level. [20 U.S.C.] Secs. 1415(b)(2) and (c). Thereafter, "[a]ny party aggrieved by the findings and decision" of the state administrative hearing has "the right to bring a civil action with respect to the complaint ... in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy." [Id.] Sec. 1415(e)(2).

Rowley, 458 U.S. at 183, 102 S.Ct. at 3039.

In 1984 the Supreme Court concluded that the EHA was the exclusive avenue through which claims regarding a publicly financed special education could be pursued. See Smith v. Robinson, 468 U.S. 992, 1013, 1021, 104 S.Ct. 3457, 3469, 3473, 82 L.Ed.2d 746 (1984). Given the comprehensive nature of the statutory scheme, including the "elaborate procedural mechanism" established by the Act to protect the rights of handicapped children, id. at 1011, 104 S.Ct. at 3468, the Court denied the constitutional claims brought under 42 U.S.C. Sec. 1983 and statutory claims brought under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794, that could have been brought under the EHA. Smith, 468 U.S. at 1009-13, 1021, 104 S.Ct. at 3466-73, 3473. There being no provision for an award of attorneys' fees in the EHA, the court also rejected the claim for attorneys' fees. Id. at 1015-16, 104 S.Ct. at 3470-71.

Subsequent to the Smith decision, Congress passed the Handicapped Children's Protection Act of 1986, Pub.L. No. 99-372, 100 Stat. 796 (codified at 20 U.S.C. Sec. 1415), expressly amending the EHA to make attorneys' fees available to claimants prevailing under the Act, see 20 U.S.C. Sec. 1415(e)(4)(B), and to clarify that the EHA does not provide the exclusive remedy available to handicapped students, id. Sec. 1415(f). As the Fifth Circuit stated, "Congress read the Supreme Court's decision in Smith and acted swiftly, decisively, and with uncharacteristic clarity to correct what it viewed as a judicial misinterpretation of its intent." Fontenot v. Louisiana Bd. of Elementary & Secondary Educ., 805 F.2d 1222, 1223 (5th Cir.1986).

Section 3 of the Handicapped Children's Protection Act of 1986, codified at 20 U.S.C. Sec. 1415(f), provides as follows:

Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, title V of the Rehabilitation Act of 1973, or other Federal statutes protecting the rights of handicapped children and youth, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (b)(2) and (c) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

Although Congress' amendment of the EHA makes clear that the EHA is not the exclusive remedy available to handicapped students seeking public educational benefits, that amendment is equally clear in preserving the requirement that, if relief could be sought under the EHA, exhaustion of the Act's administrative remedies is necessary before any action is brought in federal court. See Mrs. W. v. Tirozzi, 832 F.2d 748, 756 (2d Cir.1987); J.G. by Mrs. G. v. Board of Educ., 830 F.2d 444, 446 (2d Cir.1987). "In other words, when parents choose to file suit under another law that protects the rights of handicapped children--and the suit could have been filed under the EHA--they are first required to exhaust the EHA's remedies to the same extent as if the suit had been filed originally under the EHA's provisions." Mrs. W., 832 F.2d at 756. The determination here of whether the plaintiffs are required to exhaust their administrative remedies under the EHA, therefore, turns on whether the...