Marvin H. v. Austin Independent School Dist.

• Decision Date: 22 September 1983
• Docket Number: No. 82-1514,82-1514
• Parties: 13 Ed. Law Rep. 210 MARVIN H., Kaye H. and Bryan H., Plaintiffs-Appellants, v. AUSTIN INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1348

714 F.2d 1348

13 Ed. Law Rep. 210

MARVIN H., Kaye H. and Bryan H., Plaintiffs-Appellants, v. AUSTIN INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellees.

No. 82-1514.

United States Court of Appeals, Fifth Circuit.

Sept. 22, 1983.

James C. Todd, Advocacy, Inc., Austin, Tex., for plaintiffs-appellants.

McGinnis, Lochridge & Kilgore, William H. Bingham, Jr., James R. Raup, Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before RUBIN and JOLLY, Circuit Judges, and PUTNAM^*, District Judge.

E. GRADY JOLLY, Circuit Judge:

Plaintiffs Marvin and Kaye H., on behalf of their fourteen-year-old son Bryan H., filed suit against the Austin Independent School District (AISD) and various school officials, alleging that Bryan was an emotionally disturbed child, that the school district failed to identify Bryan as a handicapped child and thus had denied him a free appropriate education in violation of the Education for All Handicapped Children Act (20 U.S.C. §§ 1401-1461) (EAHCA), section 504 of the Rehabilitation Act (29 U.S.C. § 794) (section 504) and 42 U.S.C. § 1983. They sought a declaratory judgment that the defendants had discriminated against Bryan on the basis of handicap, restitution for certain expenses incurred by the parents' unilateral resort to private counseling and private schooling, and actual, compensatory and punitive damages of $150,000. ¹ The district court granted summary judgment for the defendants. The plaintiffs have filed a timely appeal, claiming that there remain genuine issues of material fact and that they have a cause of action for monetary restitution and damages as a matter of law.

The issue before this court is thus whether under any of the cited statutes the parents of a handicapped child may recover either retrospective compensation for private services unilaterally procured by the parents or damages for failure of the school district to provide these services when the school district has attempted in good faith to adhere to federal and state guidelines. We think not and affirm the grant of summary judgment.

I.

Bryan H.'s problems in school began in March of 1979 when he was an eleven-year-old seventh grader at Dobie Junior High School within the AISD. He experienced a change in his conduct and personality which resulted in a temporary decline in his grades. His conduct regressed to the point that he was suspended from school for a day. At home he began having temper tantrums, although this behavior did not emerge at school. The H. family was referred by the school officials to the Travis County Mental Health-Mental Retardation Center (MH-MR) for counseling. Bryan attended six such counseling sessions but rejected further counseling. We note that in response to a promise that he could have a dirt bike if he improved his grades, he attended classes regularly in May of 1979, passed five of his seven courses, and was promoted to the eighth grade.

In the fall of 1979, after a good start, he once again regressed and was suspended for using inappropriate language to a secretary and failing to turn over his snuff can to a teacher. School officials referred the family to the School Community Guidance Center and to the W.R. Robbins School, both designed to aid problem truants become reinterested in school, but because Bryan expressed no interest in going, his mother cancelled the appointments. Rather, at the end of October, she took Bryan to a child psychiatrist, Dr. Matthews, who gave him an anti-depressant drug which apparently helped (until at some point Bryan refused to continue the medication), and by early December Bryan had raised two F grades to an A and a B.

During Christmas vacation Bryan rebelled when his parents refused to take him to the pool hall during a heavy rainstorm, and he subsequently disappeared for about eight days. Neither parent knew where he had been, but when he returned home on January 2, 1980, on the recommendation of Dr. Matthews but without consulting school officials, they took Bryan, very much against his will, to Shoal Creek Hospital, a psychiatric hospital. During his hospitalization Bryan received his schooling from an AISD "homebound" teacher. At the end of February 1980, on Dr. Matthews' recommendation, Mr. and Mrs. H. removed Bryan to the Brown School, a private residential school for emotionally disturbed children. This was done without consultation with, or the approval of, the school district.

Three weeks later, on January 28, 1980, the H.'s requested that the AISD assist in the costs of Bryan's residential placement. On February 29, 1980, the Central Admission Review and Dismissal Committee (Central ARD) ² met with Mrs. H. to consider her request. At that time the committee requested reports from Dr. Matthews, reports from MH-MR, and Bryan's homebound records while at Shoal Creek Hospital. After study of all the information reports and records, the Central ARD met again with Mrs. H. on April 16, 1980. At this time Mrs. H. asked the school district to reimburse the family for all unreimbursed expenses to date, to continue to pay for Bryan's residential placement until an appropriate education placement could be provided for Bryan within the AISD, and to develop an individual educational program (IEP) for Bryan. The committee found, however, that "[b]ased on available information, this committee does not feel that Bryan meets the eligibility requirements for the emotionally disturbed." Nevertheless, the committee deemed that further information was required before a final decision could be made. Mrs. H. assented to the recommendation, and a copy of this decision and recommendation for further evaluation was sent to the parents, advising them of their right to consult further and to appeal.

After further evaluation the Central ARD committee met again with Mrs. H., with her attorney present, on July 9, 1980. The committee, over the objection of the AISD Psychology Services Director, recommended that Bryan be classified as emotionally disturbed, that he be placed at the AISD Diagnostic Adjustment Center (DAC), a highly structured AISD day program for emotionally disturbed children, and that group, individual and family counseling be provided. The committee noted that residential placement was not recommended at that time. Bryan did well at the DAC where an IEP was developed for him, one of the goals being to return Bryan to a regular classroom as soon as possible. On November 13, 1980, however, Bryan left the campus, apparently because he did not want to have his picture taken "with retarded kids," and he never returned.

On November 17, 1980, the DAC local support team (a local campus committee designed to coordinate the provision of available services, including Bryan's teacher, his counselor, the DAC director, the AISD Coordinator of Special Education, and the AISD Director of Psychological Services) met with Mr. and Mrs. H. The DAC team recommended that Bryan begin a gradual transition to a regular high school and that counseling services be provided. Bryan's case was then referred to the Central ARD which met with Mrs. H. on December 17, 1980, to consider the DAC recommendations. Based on observations and reports of DAC personnel, the Central ARD determined that Bryan did not meet the eligibility designation as emotionally disturbed. They thus recommended that Bryan be transferred to Lanier High School with transitional help from special education personnel in monitoring and in securing counseling services. As with all other Central ARD recommendations, the family received a copy of the report with the usual notices concerning further questions and the right to appeal. On January 5, 1981, the Lanier Local Support Team met with Mrs. H. and her attorney. The special educational transitional services planned for Bryan and his family included hand-scheduling for Bryan and daily attendance checking, a weekly attendance check by Mrs. H., academic monitoring through teachers' bi-weekly written progress reports, coordinated outside counseling, and referral to the special counselor in the event of discipline problems.

Bryan registered and enrolled at Lanier, but he attended classes for only a few days in January. The instant lawsuit was filed on January 27, 1981. ³ The Lanier school officials, however, continued their efforts to help the parents reinterest Bryan in attending school, suggesting such things as half-day schedules, home visits, and homebound placement for instruction. By this time, however, the lawsuit was underway and Mr. Todd, the H.'s attorney, announced that since suit had been filed against the AISD, all communication should be between him and the AISD attorney. Thus the program for Bryan met another obstacle, and while Bryan attended school on occasion during April and May 1981, there was no further follow-through by his parents on the special program for Bryan.

The H.'s subsequently moved out of the Austin Independent School District, ⁴ and the complaint was amended to remove all requests for injunctive or prospective relief.

II.

On September 2, 1982, the district court, without reasons, ⁵ granted the defendants' motion for summary judgment. From that grant, the plaintiffs timely appealed.

The question before this court is thus whether there is any set of facts substantiated in the record under which the H.'s could recover restitution for out-of-pocket expenses or compensatory or punitive damages under EAHCA, section 504 or 42 U.S.C. § 1983. See Mississippi Hospital Association, Inc. v. Heckler, 701 F.2d 511 (5th Cir.1983).

A.

The plaintiffs below sought restitution of approximately $7200 and actual, compensatory and punitive damages of $150,000. Their first claim for damages arises under 20 U.S.C. §§ 1401-1461 (EAHCA).

Our previous opinions have detailed the operations of EAHCA and the catalysts for its passage. See, e.g., Stacey G....