Hurry v. Jones

• Decision Date: 18 May 1984
• Docket Number: 83-1718,Nos. 83-1604,s. 83-1604
• Citation: 734 F.2d 879
• Parties: 17 Ed. Law Rep. 774 George HURRY, et al., Plaintiffs, Appellees, v. Dr. Jerome B. JONES, etc., et al., Defendants, Appellants. George HURRY, et al., Plaintiffs, Appellants, v. Dr. Jerome B. JONES, etc., et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 879

734 F.2d 879

17 Ed. Law Rep. 774

George HURRY, et al., Plaintiffs, Appellees, v. Dr. Jerome B. JONES, etc., et al., Defendants, Appellants.

George HURRY, et al., Plaintiffs, Appellants, v. Dr. Jerome B. JONES, etc., et al., Defendants, Appellees.

Nos. 83-1604, 83-1718.

United States Court of Appeals First Circuit.

Argued Feb. 8, 1984.

Decided May 18, 1984.

Sheldon Whitehouse, Charleston, W.Va., with whom Vincent J. Piccirilli, Providence, R.I., was on brief, for Dr. Jerome B. Jones, etc., et al.

Thomas A. Tarro, III, Providence, R.I., for George Hurry, et al.

Before COFFIN and ALDRICH, Circuit Judges, and GIGNOUX, ^* Senior District Judge.

COFFIN, Circuit Judge.

Defendants/appellants, who are school and transportation officials in Providence, appeal from a decision of the United States District Court for the District of Rhode Island awarding damages to George Hurry, a physically and mentally handicapped minor, and to his parents. The district court found that appellants' failure to provide George with door-to-door transportation to and from school violated both the Education for All Handicapped Children Act of 1975 (EAHCA) and the Rehabilitation Act of 1973. The court awarded $14,546.00 under the EAHCA and $5,000.00 under section 504 of the Rehabilitation Act; appellants challenge both awards. The court also indicated that it would award attorney's fees and costs, but it subsequently rejected plaintiffs' fee application. The Hurrys cross-appeal from the denial of attorney's fees. We find that the entire damage award under the Rehabilitation Act and all but $5,750.00 of the award under the EAHCA were improper, and we vacate those portions of the district court's judgment. We affirm the district court's decision to deny plaintiffs' fee application.

George Hurry (George) suffers from cerebral palsy and a degree of mental retardation, and is confined to a wheelchair by spastic quadriplegia. He has attended various special education programs in the Providence area. Until January 1976 the City of Providence provided him with door-to-door bus transportation to and from school. By January of 1976, however, George had reached a weight of 160 pounds, and the bus drivers deemed it unsafe to continue to carry him up and down the steep concrete steps that led from his front door to the street. Mr. and Mrs. Hurry began to transport George to and from school in their van.

Starting in June 1976 Mr. Hurry held a position that required him to work until 5:15 p.m. each day. Because Mrs. Hurry could not lift George from the van and carry him up the steps without her husband's aid, he had to wait in the van for several hours each day until Mr. Hurry left work. He frequently missed school when the weather was too hot or too cold to permit him to wait in the van. George began to complain of pain in his legs from the long periods he spent in the van. In December of 1977, Mr. and Mrs. Hurry stopped transporting him to school; George did not attend school again until the fall of 1979.

The Hurrys discussed their transportation problem with the Providence School Department, but the parties were unable to reach a satisfactory solution. Plans to construct a permanent wheelchair ramp at the Hurrys' home failed when the Mayor's office refused to provide public funding for the project unless multiple liens on the property were discharged. The Hurrys refused the School Department's offer of home instruction for George because they believed that this instruction would not provide their son with the "least restrictive environment" available. In September of 1978 the Rhode Island Protection and Advocacy System (RIPAS) requested that the Providence School Department conduct a hearing on the Hurrys' problem. When the School Department did not respond to the request within the statutory time limit, RIPAS contacted the State Commissioner of Education on November 7, 1978, to request a hearing. This second request likewise failed to produce the statutorily required hearing, and RIPAS filed this action in the Hurrys' behalf on December 19, 1978. By October 29, 1979, the parties had agreed on an Individual Educational Program for George that provided him with transportation to and from school and obviated the need for injunctive relief. ¹ RIPAS withdrew from the action at this point, but the Hurrys pursued claims for damages for the period during which George attended school only if they were able to transport him and for the period during which he did not attend school at all.

The Hurrys based their claims for damages on the EAHCA, the Rehabilitation Act, the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. Sec. 1983, the Fifth and Fourteenth Amendments of the United States Constitution, Article 12 of the Constitution of Rhode Island, and R.I.Gen.Laws Sec. 16-24-4. The court found, and the parties do not dispute, that further pursuit of administrative remedies would have been futile, and that the action was properly before the court. The court found that the Hurrys could not recover damages under the Developmentally Disabled Assistance and Bill of Rights Act, and that they had failed to make out their claims under the federal and state constitutions, Sec. 1983, and the state statutory provision. The Hurrys do not contest these conclusions. The court did award damages under the EAHCA and the Rehabilitation Act, and defendants challenge these awards on appeal.

I. Damages Under the Education for All Handicapped Children Act

The EAHCA provides that a state receiving federal assistance for education of the handicapped must assure "all handicapped children the right to a free appropriate public education". 20 U.S.C. Sec. 1412(1). The Act further provides that parties aggrieved by decisions affecting a handicapped child's education may bring a civil action in state or federal court, and that the court hearing such an action may grant "such relief as the court determines is appropriate". 20 U.S.C. Sec. 1415(e)(2).

A number of courts have interpreted the relief provision of the EAHCA as being limited to injunctive remedies, and have held that damages are not recoverable under the Act absent exceptional circumstances. See, e.g., Miener v. Missouri, 673 F.2d 969 (8th Cir.1982); Anderson v. Thompson, 658 F.2d 1205 (7th Cir.1981). After a lengthy analysis of the Act's legislative history, the Seventh Circuit concluded in Anderson:

"Congress ... would have intended that parents take action to provide the necessary services for their children without awaiting the outcome of lengthy administrative and judicial proceedings. Parents should then be compensated for the costs of obtaining those services that the school district was required to provide." 658 F.2d at 1213 (footnote omitted).

The court recognized two "exceptional circumstances" in which these limited reimbursement awards might be made. The first such circumstance exists when "the services in dispute were necessary to protect the physical health of the child"; the second arises when "the defendant has acted in bad faith by failing to comply with the procedural provisions of [Sec. 1415] in an egregious fashion". Id. at 1214.

The district court found that the circumstances of the Hurrys' case met the requirements of both Anderson exceptions. George received physical therapy as well as occupational training at school. A pediatrician specializing in the treatment of physically and mentally handicapped children testified that "George needed physical therapy on a daily basis, and without it George's bodily and motor functions would be adversely affected". Mr. Hurry testified that the ligaments and tendons in George's legs tightened during the period he was absent from school, and that the pain interfered with his sleep. The district court noted that "related services" such as transportation are included within the EAHCA's definition of a "free appropriate public education", 20 U.S.C. Sec. 1401(17) & (18), and that the School Department's failure to provide these services endangered George's physical health. In addition, the court found that "Defendants took approximately three years to meet their indisputable lawful obligation to provide transportation for George Hurry to and from school", and that "Defendants' repeated and gross lack of concern must be perceived as a bad faith failure to provide clearly mandated services". Hurry v. Jones, 560 F.Supp. 500, 507 (D.R.I.1983).

At the time the district court reached its decision, this circuit subscribed to the Anderson view that reimbursement is available to parties aggrieved by violations of the EAHCA only in exceptional circumstances. Doe v. Anrig, 692 F.2d 800 (1st Cir.1982) ("Doe v. Anrig I "). We have since adopted a more expansive view of reimbursement under the EAHCA, allowing reimbursement of interim educational and related expenses even when the "exceptional circumstances" identified in Anderson are not present. Doe v. Anrig, 728 F.2d 30 (1st Cir.1984) ("Doe v. Anrig II "); Doe v. Brookline School Committee, 722 F.2d 910 (1st Cir.1983). Under this approach, it is clear that the district court correctly found that the Hurrys are entitled to reimbursement under the EAHCA for the interim transportation services they provided until the parties agreed on an appropriate Individual Educational Program for George.

The regulations promulgated by the Rhode Island Board of Regents for Education to implement the EAHCA provide that handicapped children are to be given "door-to-door" transportation from the "street level entrance of dwelling". Our dissenting brother argues that the "street level" language in this regulation absolves the School Department of liability for its refusal to negotiate the Hurrys' steps. We do not believe that the issue of liability is properly before this court, so we do not find it necessary to interpret the Rhode Island regulations.

The district court found that the defendants ignored their ...