Howell By Howell v. Waterford Public Schools

• Decision Date: 09 February 1990
• Docket Number: No. 89-CV-72004-DT.,89-CV-72004-DT.
• Citation: 731 F. Supp. 1314
• Parties: Joseph HOWELL by his parents Leo and Paulette HOWELL, Plaintiff, v. WATERFORD PUBLIC SCHOOLS and Dr. Alton W. Cowan, in his official capacity as Superintendent of Waterford Public School District, Defendants.
• Court: U.S. District Court — Western District of Michigan

731 F. Supp. 1314

Joseph HOWELL by his parents Leo and Paulette HOWELL, Plaintiff, v. WATERFORD PUBLIC SCHOOLS and Dr. Alton W. Cowan, in his official capacity as Superintendent of Waterford Public School District, Defendants.

No. 89-CV-72004-DT.

United States District Court, E.D. Michigan, S.D.

February 9, 1990.

Marsha Lynn Tuck, Birmingham, Mich., for plaintiff.

Richard E. Kroopnick, Birmingham, Mich., John T. Rogers and James G. Loumos, Bloomfield Hills, Mich., for defendants.

OPINION

DUGGAN, District Judge.

Plaintiff, a youth with several handicapping conditions, brings this lawsuit (by and through his parents) complaining of the special education services he presently receives. At issue, specifically, is the occupational and physical therapy given him. Essentially, plaintiff contends that such therapy is inadequate. He seeks, in part, injunctive relief and damages relying on the Education of the Handicapped Act, 20 U.S.C. § 1400 et seq. (referred to by the parties and various courts as the "EHA" or the "EAHCA") and § 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 794. Presently pending before the Court is defendants' "MOTION FOR PARTIAL DISMISSAL OF PLAINTIFF'S FIRST AMENDED COMPLAINT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT". For the reasons set forth below, the Court will grant the motion, in part.

Initially, it should be noted that concessions made and contentions raised by the parties at oral argument factor into the Court's analysis. Accordingly, it is appropriate to highlight such concessions and contentions.

Plaintiff acknowledged, through counsel, that this lawsuit primarily asks the Court to determine whether the therapy he receives is proper, i.e., in legal terms, whether he is receiving a "free appropriate public education". 20 U.S.C. § 1400(c).¹ However, plaintiff indicated that, in reaching this determination, the Court must resolve two "sub-issues", to-wit: (1) whether his curriculum included measurable goals and objectives which, plaintiff maintains, is required by law; and (2) whether attending therapists consulted with his treating physicians which, plaintiff also maintains, is required by law.

Defendants, in turn, argued that these "sub-issues" were not presented to and, thus, considered by administrative decision-makers below. Rather, such decision-makers addressed the following questions: (1) "What amount of physical and occupational therapy time is to be provided plaintiff each week?" and (2) "In what manner are the physical and occupational therapy services to be provided?" (Defendants' brief in support, at p. 3.)² Accordingly, defendants further argue, because the "sub-issues" were not administratively exhausted, this Court lacks subject matter jurisdiction over plaintiff's EHA and § 504 claims to the extent such claims are based on allegations other than those challenging the amount of therapy time provided or the manner in which therapy is provided.

The Court finds defendants' argument persuasive and holds that "claims" set forth in plaintiff's complaint, as amended, which challenge an aspect of his "individualized education program" other than the amount of therapy time provided or the manner in which therapy is provided are subject to dismissal.³ Plaintiff's contention, advanced in response to defendants' argument and discussed next, lacks merit.

Though not disputing that, generally, exhaustion is required of both EHA and § 504 claims, see 20 U.S.C. § 1415; Tirozzi, supra note 3, at 756, plaintiff maintained that exhaustion is excused where, as allegedly here, it would be "futile" to exhaust. In this vein, plaintiff observed that administrative proceedings can be lengthy and, consequently, the interests of the handicapped student are not always well-served. This Court does not believe exhaustion is futile simply because it may be time-consuming. As explained in Crocker v. Tennessee Secondary School Athletic Ass'n, 873 F.2d 933 (6th Cir.1989), the time spent in the administrative process is meaningful:

The policies underlying this exhaustion requirement are both sound and important. States are given the power to place themselves in compliance with the law, and the incentive to develop a regular system for fairly resolving conflicts under the Act. Federal courts — generalists with no expertise in the educational needs of handicapped students — are given the benefit of expert factfinding by a state agency devoted to this very purpose. Such a mechanism is necessary to give effect to a fundamental policy underlying the EHA: "that the needs of handicapped children are best accommodated by having the parents and the local education agency work together to formulate an individualized plan for each handicapped child's education." Smith v. Robinson, 468 U.S. 992 at 1012, 104 S.Ct. 3457 at 3468 82 L.Ed.2d 747 (1984). Were federal courts to set themselves up as the initial arbiters of handicapped children's educational needs before the administrative process is used, they would endanger not only the procedural but also the substantive purposes of the Act. And both states and the federal government have a recognized interest in providing enforcement of the Act that is not only just but efficient. Riley v. Ambach, 668 F.2d 635 at 640 (2d Cir.1981); Mitchell v. Walter, 538 F.Supp. 1111 at 1113 (S.D.Ohio 1982). See also McKart v. United States, 395 U.S. 185, 193-95, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969) (reasons for doctrine of exhaustion of administrative remedies include need to allow administrative agency to apply its expertise and to develop the facts, efficiency, and protection of the authority of the administrative process).

Id. at 935.⁴

Having determined, then, that plaintiff's claims shall be limited to those claims relating to the amount of therapy provided and the manner in which it is provided, the Court turns now to consider a second issue defendant's motion raises, namely, whether such allegations state a § 504 claim as tested by Fed.R.Civ.P. 12(b)(6).

A 12(b)(6) motion tests the legal sufficiency of a complaint, not the facts that support it. See 5 C. Wright & Miller, Federal Practice and Procedure, § 1356, p. 590 (West 1969). In practice, then,

when evaluating a motion to dismiss brought pursuant to rule 12(b)(6), the factual allegations in the complaint must be regarded as true. Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-75, 86 S.Ct. 347, 348-349, 15 L.Ed.2d 247 (1965). The claim should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).

Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983), cert. denied, 469 U.S. 826, 105 S.Ct. 105, 83 L.Ed.2d 50 (1984). See also Dugan v. Brooks, 818 F.2d 513, 516 (6th Cir.1987), citing Windsor. Applying this accepted rule, that is, viewed in a "light most favorable" to plaintiff, H.J. Inc. v. Northwestern Bell Tel. Co., ___ U.S. ___, 109 S.Ct. 2893, 2906, 106 L.Ed.2d 195 (1989), this Court is of the opinion that plaintiff's complaint pleads an actionable § 504 claim.

Section 504 of the Rehabilitation Act of 1973 reads, in part:

(a) Promulgation of rules and regulations

No otherwise qualified individual with handicaps in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.

29 U.S.C. § 794. Relying on Monahan v. Nebraska, 687 F.2d 1164 (8th Cir.1982), defendants contend⁵ that plaintiff's allegations, even if true, do not state a violation of § 504. In particular, defendants refer to the following passage:

The language of the statute is instructive. It prohibits exclusion, denial of benefits, and discrimination "solely by reason of ... handicap." Manifestly, in order to show a violation of the Rehabilitation Act, something more than a mere failure to provide the "free appropriate education" required by EAHCA must be shown. The reference in the Rehabilitation Act to "discrimination" must require, we think, something more than an incorrect evaluation, or a substantively faulty individualized education plan, in order for liability to exist. Experts often disagree on what the special needs of a handicapped child are, and the educational placement of such children is often necessarily an arguable matter. That a court may, after hearing evidence and argument, come to the conclusion that an incorrect evaluation has been made, and that a different placement must be required under EAHCA, is not necessarily the same thing as a holding that a handicapped child has been discriminated against solely by reason of his or her handicap. An evaluation, in other words, is not discriminatory merely because a court would have evaluated the child differently.

We do not read § 504 as creating general tort liability for educational malpractice, especially since the Supreme Court, in interpreting the EAHCA itself, has warned against a court's substitution of its own judgment for educational decisions made by state officials. We think, rather, that either bad faith or gross misjudgment should be shown before a § 504 violation can be made out, at least in the context of education of handicapped children. It is our duty to harmonize the Rehabilitation Act and the EAHCA to the fullest extent possible, and to give each of these statutes the full play intended by Congress. The standard of liability we suggest here accomplishes this result and also reflects what we believe to be a proper balance between the rights of handicapped children, the responsibilities of state

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