Lester H. by Octavia P. v. Gilhool

• Decision Date: 24 October 1990
• Docket Number: No. 89-2046,89-2046
• Citation: 916 F.2d 865
• Parties: 63 Ed. Law Rep. 458 LESTER H., a minor, who sues by his mother and next friend, OCTAVIA P., and Octavia P., on her own behalf, v. Thomas K. GILHOOL, Secretary of Education, Commonwealth of Pennsylvania and The Chester Upland School District. Appeal of CHESTER UPLAND SCHOOL DISTRICT.
• Court: U.S. Court of Appeals — Third Circuit

Page 865

916 F.2d 865

63 Ed. Law Rep. 458

LESTER H., a minor, who sues by his mother and next friend, OCTAVIA P., and Octavia P., on her own behalf, v. Thomas K. GILHOOL, Secretary of Education, Commonwealth of

Pennsylvania and The Chester Upland School District.

Appeal of CHESTER UPLAND SCHOOL DISTRICT.

No. 89-2046.

United States Court of Appeals, Third Circuit.

Argued July 12, 1990.

Decided Sept. 27, 1990.

Rehearing and Rehearing In Banc Denied Oct. 24, 1990.

Leo A. Hackett (argued), Fronefield & deFuria, Media, Pa., for appellant.

Janet F. Stotland (argued), Education Law Center, Inc., Philadelphia, Pa., for appellees.

Before BECKER, HUTCHINSON and NYGAARD, Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

In this declaratory judgment action brought pursuant to the Education of the Handicapped Act ("EHA"), 20 U.S.C. Secs. 1401-1415, as amended, Education for All Handicapped Children Act of 1975, Pub.L. No. 94-142, and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 (1973), the district court awarded the plaintiff, Lester H., two and one half years of compensatory education beyond age 21, the statutory maximum specified in the EHA. App. at 31; 20 U.S.C. Sec. 1412(2)(B). The Chester Upland School District ("School District") appealed. ¹ We will affirm.

I.

The plaintiff, Lester H., is a profoundly retarded twelve-year-old with severe behavioral problems. Lester began his education within the School District in the fall of 1983. But even before Lester entered school, the District Director of Special Education determined that the School District could not provide an appropriate special education program for him. Parties' Stipulations ("Stipulations") at p 13, app. at 37. The School District, Lester's mother and the Delaware County Intermediate Unit ("IU") agreed that Lester should be placed at the Summit School, a special education day-facility, for that academic year. Stipulations at p 14, app. at 37. Octavia P., Lester's mother, signed a Notice of Recommended Assignment ("NORA") consenting to the Summit School placement. He remained at Summit throughout the year and progressed with his Individualized Education Program ("IEP"). Stipulations at p 17, app. at 38.

The next fall, Lester's behavior deteriorated significantly. In October 1984, the Director, Summit officials and Lester's teacher concluded that Summit could no longer provide an appropriate education for Lester and they recommended that he be placed in a residential program. Stipulations at pp 21, 28-9, app. at 39, 41-42. Nevertheless, Lester remained at Summit during the 1984-85 school year because the School District limited its efforts to place him to only one approved school, the Elwyn Institute, and one unapproved school, the Don Guanella School. Both schools rejected him. Stipulations at pp 38, 40, app. at 43-44. Lester was finally removed from Summit in August, 1985. Lester's mother signed a NORA consenting to in-home instruction while her child awaited appropriate residential placement. Stipulations at pp 48, 51, app. at 45. The School District then developed an in-home IEP for the 1985-86 academic year which provided Lester with only five hours of instruction per week. This IEP began on November 11, 1985 and, with revisions, continued until late June, 1986. Stipulations at p 54, app. at 46; p 64, app. at 47.

For the majority of Lester's home-bound instruction period, the School District did not request residential placement for him. In April, 1986, the School District applied to the Devereux Foundation and the Wordsworth Academy. Both schools rejected Lester. Finally, after prodding by Lester's counsel and the Pennsylvania Department of Education ("DoE"), the School District re-applied to Elwyn. Lester was admitted to Elwyn's Extended School Year day program in June, 1986 and his mother signed a NORA consenting to this placement. Stipulations at pp 59-64, app. at 47. He lasted only 34 days at Elwyn and was returned to in-home instruction. Stipulations at p 67, app. at 48.

During August and September, 1986, the School District applied to four schools. All four schools rejected Lester. Stipulations at pp 69-72, app. at 48-49. Lester's counsel then petitioned the Chief of the Bureau of Special Education of the DoE requesting that he assist in locating an appropriate special education program for Lester. Stipulations at p 73, app. at 49. In response DoE required the School District to provide it with a status report and suggested that the Director apply to the AuClair The EHA requires the School District to provide an appropriate education for Lester until he reaches age 21. The foundation of this case is that, for 2 1/2 years, the School District failed to do so. See generally 20 U.S.C. Sec. 1412; App. at 29. Before the School District placed Lester at AuClair, Octavia P., on behalf of her son, filed this declaratory judgment action against the Commonwealth of Pennsylvania, Secretary of Education and the School District, seeking a declaration that Lester's right to a free appropriate education had been compromised and that he was entitled to appropriate education services for 2 1/2 years beyond age 21 as compensation "for the period during which he was denied appropriate services." App. at 15.

                School, an out-of-state facility located in Bear, Delaware.  Stipulations at pp 75-6, app. at 50. 2   Lester was admitted and has attended AuClair since January 21, 1987, and is making slow but satisfactory progress
                

Lester moved for a preliminary injunction requiring that he be immediately placed in a residential special education program. The motion was denied as moot when AuClair admitted Lester. ³ App. at 2. The district court held a trial on the remaining issue in the spring of 1988 and entered a declaratory judgment order on November 9, 1989, awarding Lester 2 1/2 years of compensatory education to extend beyond age 21. App. at 6. On appeal, the School District claims that: (1) this case is not ripe for judicial relief; (2) Lester failed to exhaust administrative remedies provided him by the EHA; (3) eleventh amendment sovereign immunity bars Lester's action against the School District; and (4) compensatory education is not an available EHA remedy.

II.

The district court held that "[t]his case is ripe and otherwise justiciable." App. at 30. Our review of the ripeness decision is plenary. Felmeister v. Office of Attorney Ethics, 856 F.2d 529, 535 n. 8 (3d Cir.1988). "[R]ipeness turns on 'the fitness of the issues for judicial decision' and 'the hardship to the parties of withholding court consideration.' " Pacific Gas & Elec. Co. v. State Energy Resources Conserv. & Devel. Comm'n, 461 U.S. 190, 201, 103 S.Ct. 1713, 1720, 75 L.Ed.2d 752 (1983) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)); see also Consolidated Rail Corp. v. United States, 812 F.2d 1444 (3d Cir.1987).

The School District argues that a compensatory remedy requires the court to ascertain Lester's future educational needs and these needs are not ripe for decision. This is simply not true. The injury has been done and although the exact contours of the appropriate remedy may not be ascertainable now, Lester's injury certainly could be, and was, ascertained. Moreover, the court left ample room for the exact contours of the remedy to be shaped by the appropriate authorities at the appropriate time. All the court did was award Lester the number of years needed to restore that which concededly had been denied him and that to which he is entitled under 20 U.S.C. Sec. 1412(2)(B).

The School District contends that the court is predicting Lester's future educational needs by awarding him 30 months of compensatory education beyond age 21. We agree that courts may not engage in speculation. See DeFunis v. Odegaard, 416 U.S. 312, 320 n. 5, 94 S.Ct. 1704, 1707 n. 5, 40 L.Ed.2d 164 (1974) (per curiam ) (citations omitted). But here the district court did not speculate. It conceded that it was unable to predict Lester's future educational needs, and wisely left the "form or components of the instructional program" to be determined, once Lester reaches age 21, by the collective effort of school officials, parents and professionals as required by the Second, a decision at this time poses no hardship for the School District. Indeed, it gives them additional time to prepare for Lester's compensatory education. Conversely, it would pose a hardship to Lester and Octavia if they are required to wait. School District officials involved in Lester's placement or misplacement are available to answer for their actions or inaction. Experts who examined Lester are available to testify with events fresh in their minds. In short, now is the most convenient time for all parties to present evidence as to whether Lester received an appropriate placement, whether one was available, and the extent of the efforts made by the School District to find an appropriate placement. We conclude that the trial posed no hardship and the matter was ripe for decision.

                EHA. 4   The district court granted Lester a compensatory remedy totalling 30 months to offset "that period of deprivation of [Lester's] entitlement before the age of 21."    App. at 31.  We conclude that these issues are fit for determination
                

III.

The legal guardian of a student not receiving an appropriate education has certain administrative remedies under the EHA. They are designed to afford the complainant maximum due process. See generally 20 U.S.C. Sec. 1415. First, the guardian is entitled to a due process hearing before the state department of education, the intermediate unit, or the local educational department (i.e.: the School District). 20 U.S.C. Sec. 1415(b)(2). Second, if the hearing is not before the state department of education, the guardian may...