J.G. by Mrs. G. v. Board of Educ. of Rochester City School Dist., 998

• Decision Date: 29 September 1987
• Docket Number: D,No. 998,998
• Citation: 830 F.2d 444
• Parties: 42 Ed. Law Rep. 52 J.G., by his mother and next friend, MRS. G.; M.W., by her mother and next friend, Mrs. W.; A.M., by his mother and next friend, Mrs. M.; and K.M., by her mother and next friend, Mrs. M.; on behalf of themselves and all persons similarly situated, Plaintiffs-Appellees, v. The BOARD OF EDUCATION OF the ROCHESTER CITY SCHOOL DISTRICT; John Delvecchio, Archie Curry, Frank Willis, Irene Frusci, Josephine Genovese, Karen Grella, and Gary Smith, individually and in their official capacities as members of the Board of Education of the Rochester City School District; Laval M. Wilson, in his official capacity as Superintendent of the Rochester City Schools; Bernard S. Greenberger, individually and in his official capacity as Director of the Department of Special Education of the Rochester City Schools; Robert Lays, individually and in his official capacity as Assistant Director of the Department of Special Education of the Rochester City Schools; Joseph Salemi, individually and in his official capacity as Assistant Director of the Department of Special Education of the Rochester City Schools, Defendants- Appellants, and The New York State Department of Education, and Gordon M. Ambach, in his official capacity as Commissioner of the New York State Education Department, Defendants. ocket 86-9083.
• Court: U.S. Court of Appeals — Second Circuit

Page 444

830 F.2d 444

42 Ed. Law Rep. 52

J.G., by his mother and next friend, MRS. G.; M.W., by her

mother and next friend, Mrs. W.; A.M., by his mother and

next friend, Mrs. M.; and K.M., by her mother and next

friend, Mrs. M.; on behalf of themselves and all persons

similarly situated, Plaintiffs-Appellees, v. The BOARD OF EDUCATION OF the ROCHESTER CITY SCHOOL

DISTRICT; John Delvecchio, Archie Curry, Frank Willis,

Irene Frusci, Josephine Genovese, Karen Grella, and Gary

Smith, individually and in their official capacities as

members of the Board of Education of the Rochester City

School District; Laval M. Wilson, in his official capacity

as Superintendent of the Rochester City Schools; Bernard S.

Greenberger, individually and in his official capacity as

Director of the Department of Special Education of the

Rochester City Schools; Robert Lays, individually and in

his official capacity as Assistant Director of the

Department of Special Education of the Rochester City

Schools; Joseph Salemi, individually and in his official

capacity as Assistant Director of the Department of Special

Education of the Rochester City Schools, Defendants- Appellants,

and

The New York State Department of Education, and Gordon M.

Ambach, in his official capacity as Commissioner

of the New York State Education

Department, Defendants.

No. 998, Docket 86-9083.

United States Court of Appeals,

Second Circuit.

Argued April 13, 1987.

Decided Sept. 29, 1987.

Adam D. Kaufman, Rochester, N.Y., for defendants-appellants.

Elizabeth L. Schneider, Monroe County Legal Assistance Corp., Rochester, N.Y. (Bryan D. Hetherington, Rochester, N.Y., of counsel), for plaintiffs-appellees.

Before VAN GRAAFEILAND, PRATT and MINER, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the Western District of New York (Telesca, J.) awarding attorneys' fees to appellees in a class action brought to compel compliance with federal and State laws governing the identification, evaluation and placement of handicapped students, after the action was settled favorably to appellees. The district court's decision directing the entry of judgment is reported in 648 F.Supp. at 1452. We affirm the awarding of fees, but direct that the amount thereof be reduced to account for the time of appellees' lawyers attributable to appellees' claim against the State defendants, who did not participate in the settlement.

This action deals primarily with the Education of the Handicapped Act, 20 U.S.C. Sec. 1401 et seq., whose evolution and major provisions are summarized in Board of Education v. Rowley, 458 U.S. 176, 179-84, 102 S.Ct. 3034, 3037-39, 73 L.Ed.2d 690 (1982). A detailed analysis of the Act's provisions is contained in the Regulations of the Offices of the Department of Education, 34 C.F.R. Pt. 300 and App. C.

A key mechanism in the functioning of the Act is the "Individualized Education Program" (IEP), 20 U.S.C. Sec. 1401(19). This Program contemplates a meeting between parents and school personnel for the purpose of jointly deciding what a handicapped child's needs are, what services will be provided to meet those needs, and what the anticipated outcome will be, together with a written record of the decisions made at the meeting. 34 C.F.R. Pt. 300, App. C Sec. 60. Since the IEP is intended as a guideline for the educational processes to be followed in the case of the student involved, its formulation is surrounded by due process safeguards, including adequate notice, appropriate hearings, and the right of appeal. 20 U.S.C. Sec. 1415; 34 C.F.R. Subpt. E Secs. 300.500-300.514. Indeed, the statute and the Department of Education regulations specifically provide for a "due process" hearing if proper identification, evaluation or educational placement procedures are not conducted. 20 U.S.C. Sec. 1415(b)(2); 34 C.F.R. Sec. 300.506; see also id. Pt. 300, App. C Secs. 11, 32, 35.

Although section 1415 has been described as a "bill of rights for parents", Vander Malle v. Ambach, 673 F.2d 49, 52 (2d Cir.1982) (quoting Stemple v. Board of Educ., 623 F.2d 893, 898 (4th Cir.1980), cert. denied, 450 U.S. 911, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981)), prior to 1986 it contained no provision for the discretionary payment of attorneys' fees. In Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), the Court held that although the successful plaintiffs had included with their section 1415 claim causes of action under the Civil Rights Act, 42 U.S.C. Sec. 1983, and the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794, both of which permit awards of attorneys' fees, see 42 U.S.C. Sec. 1988 and 29 U.S.C. Sec. 794a(b), the Education of the Handicapped Act was the "exclusive avenue" through which the plaintiffs could pursue their claim and their request for attorneys' fees. Id. at 1013. Congress promptly amended section 1415 by permitting awards for fees in actions under that section, see subsection (e), and removing the restrictions imposed in the Smith opinion against proceeding under other statutes protecting the rights of handicapped children, see subsection (f). This removal of restrictions was not without its limitations, however. Subsection (f) provides that before the filing of a civil action under other laws seeking relief that also is available under subchapter II of the Act, 20 U.S.C. Secs. 1411-1420, the procedures under subsections (b)(2) and (c) of Sec. 1415, which provide for a hearing and administrative appeal, shall be exhausted to the same extent as would be required had the action been brought under that subchapter.

Appellants contend that the several subsections of section 1415, when read together, create an exhaustion of the administrative remedies requirement. They argue that an action under the Act can be maintained only to challenge a final decision of a State administrative agency relating to the evaluation or placement of a specific handicapped student. They say that, since there has been no such exhaustion in the instant case, subsection (f) precludes the awarding of attorneys' fees. Relying largely on legislative history, which we need not repeat herein, the district court rejected that argument. 648 F.Supp. at 1456-58. Under the facts of the instant case, the district court was correct.

As found by District Judge Elfvin to whom this case was assigned first, appellees' claims are systemic in that the wrongdoing complained of is inherent in the program for the education of handicapped children that appellants adopted and is not directed against any specific child. 648 F.Supp. at 1457. The alleged systemic wrongs that appellees challenged are summarized in their brief as follows:

1. Failing to evaluate students suspected of having a handicapping condition and to classify those students at a Committee on the Handicapped (COH) meeting within 30 days after a referral of the child to the COH.

2. Placing students in special education programs without either performing the evaluations required by law or developing Individualized Education Programs (IEPs) with parental participation as required by law.

3. Failing to give parents notice containing information about the testing to be performed on their child, their procedural rights in the COH process and the recommendations and reasoning of the COH.

4. Obtaining parental consent for special education placements prior to required testing of the child and prior to notifying parents of their procedural rights.

5. Failing to keep students in their current educational placement pending review by the COH and refusing to place newly enrolling handicapped students in school pending COH review.

6. Failing to place students in special education programs within a reasonable time after a COH recommendation and failing to develop a sufficient number of alternative placements to meet the educational needs of handicapped students.

7. Failing to provide handicapped students with an equal opportunity for participation in academic, nonacademic and extracurricular activities.

8. Failing to develop IEPs for handicapped students with the required parental involvement and placing students in special education programs before IEPs were developed.

9. Failing to inform parents of their right to present complaints and obtain impartial hearings and of how to obtain impartial hearings.

10. Failing to inform parents of the availability of residential placements for severely handicapped students and failing to make such placements available.

There can be little dispute that claims of generalized violations such as these lend themselves well to class action treatment. See, e.g., Jose P. v. Ambach, 669 F.2d 865, 867-68 (2d Cir.1982); Battle v. Pennsylvania, 629 F.2d 269 (3d Cir.1980), cert. denied, 452 U.S. 968, 101 S.Ct. 3123, 69 L.Ed.2d 981 (1981). It is equally clear that where, as here, plaintiffs assert the deprivation of their due process rights to proper notice and hearing, they cannot be faulted for the lack of an administrative hearing and appeal. Quackenbush v. Johnson City School Dist., 716 F.2d 141, 147-48 (2d Cir.1983), cert. denied, 465 U.S. 1071, 104 S.Ct. 1426, 79 L.Ed.2d 750 (1984). Exhaustion of administrative remedies is not required if adequate remedies are not reasonably available. Jose P. v. Ambach, supra, 669 F.2d at 869. The same is true where the wrongs alleged could not or would not have been corrected by resort to the administrative hearing process. McNeese v. Board of Educ., 373 U.S. 668, 674-75, 83 S.Ct. 1433, 1437, 10 L.Ed.2d 622 (1963); Vander Malle v. Ambach, supra, 673 F.2d at 52; Riley v. Ambach, 668 F.2d 635, 640-41 (2d Cir.1981).

An examination of the seventy-two page stipulation of settlement, the seventy-five page appendix of new forms and procedures required thereunder, and the district court's findings of fact and conclusions of law approving the settlement, discloses that this litigation went far beyond and...