Miener By and Through Miener v. State of Mo.

• Decision Date: 04 September 1986
• Docket Number: No. 85-1788,85-1788
• Citation: 800 F.2d 749
• Parties: 34 Ed. Law Rep. 1014 Terri Ann MIENER, By and Through her next friend, parent, and guardian, Clyde J. MIENER, Appellant, v. STATE OF MISSOURI; Joseph P. Teasdale, Governor; Department of Elementary and Secondary Education of the State of Missouri; Arthur L. Mallory, Commissioner of Education of the Department of Elementary and Secondary Education of the State of Missouri; Dr. Leonard Hall, Assistant Commissioner of Education; and the Division of Special Education of the Department of Elementary and Secondary Education of the State of Missouri, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 749

800 F.2d 749

34 Ed. Law Rep. 1014

Terri Ann MIENER, By and Through her next friend, parent, and guardian, Clyde J. MIENER, Appellant, v. STATE OF MISSOURI; Joseph P. Teasdale, Governor;

Department of Elementary and Secondary Education of the

State of Missouri; Arthur L. Mallory, Commissioner of

Education of the Department of Elementary and Secondary

Education of the State of Missouri; Dr. Leonard Hall,

Assistant Commissioner of Education; and the Division of

Special Education of the Department of Elementary and

Secondary Education of the State of Missouri, Appellees.

No. 85-1788.

United States Court of Appeals,

Eighth Circuit.

Submitted April 17, 1986.

Decided Sept. 4, 1986.

Steven L. Leonard, Clayton, Mo., for appellant.

George Von Stamwitz, St. Louis, Mo., for appellees.

Before ROSS, Circuit Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.

ARNOLD, Circuit Judge.

Terri Ann Miener, by and through her guardian, father, and next friend, Clyde J Miener, brought this action in 1979, charging that several state and local government entities denied educational services due her as a handicapped child. She now appeals from two District Court orders that, taken together, dismiss her complaint for failure to state a claim. In part, she challenges the decision of this Court in an earlier appeal, 673 F.2d 969 (8th Cir.1982), that the compensatory educational services she seeks are "damages," and therefore are not recoverable under the Education of the Handicapped Act (EHA), 84 Stat. 175, as amended, 20 U.S.C. Sec. 1401 et seq.; she argues that our conclusion is inconsistent with the Supreme Court's recent decision in Burlington School Committee v. Department of Education, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). We agree with Miener that relief is available under the EHA, but affirm the dismissal of the remaining claims in her complaint.

I.

Terri Ann Miener suffers serious learning disabilities and behavioral disorders caused by a recurrent brain tumor and attendant surgery. According to her complaint, in September 1976, Terri Ann, who was then 14 years old, was released from the hospital after cranial surgery. Her father, Clyde Miener, took her to the Special School District of St. Louis County, Missouri (SSD) for evaluation, requesting special educational services for his daughter. The SSD's evaluation clinic reported in February 1977 that Terri Ann suffered serious educational, emotional, and behavioral disorders, but no educational services were provided for her. Instead, in June 1977, Terri Ann's father found it necessary, for lack of any other financially viable alternative, to have her admitted as a full-time resident in the Youth Center of the St. Louis State Hospital, a facility operated by the Missouri Department of Mental Health. At Clyde Miener's request, the SSD reevaluated Terri Ann in 1978, but again, the educational services he sought were not provided.

The plaintiff filed this action in August 1979, requesting declaratory, injunctive, and monetary relief. She alleged that she had been denied a "free appropriate public education" in violation of the EHA, 20 U.S.C. Secs. 1401(18), 1411, and that she had been denied equal access to educational facilities, in violation of Sec. 504 of the Rehabilitation Act of 1973, Pub.L. 93-112, 87 Stat. 355 (1973), 29 U.S.C. Sec. 794, and the Equal Protection Clause of the Fourteenth Amendment. The complaint also asserted a pendent state tort claim concerning physical assaults made on Terri Ann while a resident of the Youth Center. She further claimed that she was entitled to relief under 42 U.S.C. Sec. 1983 for these violations of the EHA and the Rehabilitation Act. ¹ The SSD, its Board, its Directors, and its Superintendent of Schools were named as defendants; also named were a number of "State defendants," including the State of Missouri and the Missouri Departments of Mental Health and of Elementary and Secondary Education.

The District Court first directed Miener to pursue administrative remedies under the EHA and Missouri statutes. In January 1980, the District Court dismissed Miener's claims for damages under the EHA and the Rehabilitation Act, holding that these statutes create no private cause of action for damages. 498 F.Supp. 944 (E.D.Mo.1980). The District Court also dismissed her Sec. 1983 claim, holding that no relief was available under Sec. 1983 for statutory, as opposed to constitutional, violations. Id. Then, while administrative remedies were being pursued, the parties settled Miener's declaratory-and injunctive-relief claims for future enforcement of the EHA and the Rehabilitation Act; under the settlement, approved by the District Court in April 1980, Terri Ann was taken out of the Youth Center and placed in the Crittenton Center and the Hickman-Mills School District in Kansas City, Missouri. This left unresolved only the plaintiff's request for an injunction directing the defendants to provide compensatory educational services as a remedy for their denial of special educational services during her three-year tenure at the Youth Center, and her pendent state tort claim. The District Court disposed of these two claims in September 1980, granting the defendants' motion to dismiss the compensatory-education claim on the ground that such relief would violate the Eleventh Amendment, and, with no federal claim left in the suit, dismissing her tort claim without prejudice. 498 F.Supp. 949 (E.D.Mo.1980).

On appeal, this Court affirmed the dismissal of Miener's EHA claim, holding that Congress did not create a private cause of action under the EHA for the damage relief requested, including compensatory educational services. We reversed the dismissal of the Rehabilitation Act damage claims, concluding that a damage remedy is available for violations of Sec. 504 of the Act. We remanded the question whether Miener had stated a cause of action under Sec. 1983 to the District Court for reconsideration in light of the Supreme Court's decision in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), and related cases. Finally, we affirmed dismissal of the claim for compensatory education and all other damage claims against the State defendants on Eleventh Amendment grounds, but held that the SSD, its Board, its Directors, and its Superintendent were local governmental entities not entitled to invoke the State's Eleventh Amendment immunity.

On remand, once again, the District Court concluded that Sec. 1983 was not available for violations of the EHA or the Rehabilitation Act, concluding that each statute establishes exclusive remedies for violations of its provisions. 580 F.Supp. 562 (E.D.Mo.1984). Subsequently, the Supreme Court issued an opinion that supported the District Court's conclusion as to Sec. 1983 relief for EHA violations; in Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 748 (1984), the Court held that "where the EHA is available to a handicapped child asserting a right to a free appropriate public education, ... the EHA is the exclusive avenue through which the child and his parents or guardian can pursue their claim." Id. at 1013, 104 S.Ct. at 3470. Moreover, the Supreme Court not only foreclosed Sec. 1983 claims for violations of the EHA, but also precluded claims under Sec. 504 of the Rehabilitation Act that are in substance claims for the free appropriate education guaranteed by the EHA. Id. at 1012-1013, 1016-1021, 104 S.Ct. at 3469-3470, 3471-3474. After Smith was issued, the SSD defendants moved for, and the District Court granted, dismissal of Miener's sole remaining claim, her Rehabilitation Act claim, on the ground that it was foreclosed by the EHA. 607 F.Supp. 1425 (E.D.Mo.1985).

On this appeal, Miener contends first, as noted above, that the Supreme Court's decision in Burlington, supra, establishes the availability of compensatory educational services under the EHA; second, that her Rehabilitation Act claim falls under an exception to Smith; and third, that she has pleaded a claim under Sec. 1983 for violations of the Due Process Clause that also remains viable after Smith.

II.

Section 615(e)(2) of the EHA, 20 U.S.C. Sec. 1415(e)(2), confers upon courts reviewing EHA claims the authority to "grant such relief as the court determines is appropriate." On the first appeal in this case, we noted that Section 615 of the EHA is entitled "Procedural Safeguards," and that the provision for judicial review "caps an entire sequence of procedures aimed at ensuring proper placements," 673 F.2d at 979, citing Anderson v. Thompson, 658 F.2d 1205, 1210-11 (7th Cir.1981). We concluded from an examination of the statute's language and its legislative history that damages were not within the relief foreseen by Congress, and that appropriate relief was restricted to injunctive relief, 673 F.2d at 979-980. This view was shared by other circuit courts that had considered the question. See, e.g., Anderson, 658 F.2d 1205 (7th Cir.); Powell v. Defore, 699 F.2d 1078 (11th Cir.1983). See also Smith, 468 U.S. at 1020 n. 24, 104 S.Ct. at 3473-74 n. 24.

However, the Supreme Court's decision in Burlington, supra, a unanimous opinion by Mr. Justice Rehnquist, has altered our understanding of what "damages" includes in the context of the EHA. See Manecke v. School Board of Pinellas County, 762 F.2d 912, 915-16 n. 2 (11th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 809, 88 L.Ed.2d 784 (1986). In Burlington, the parents of a handicapped child had contested the "individualized educational program" (IEP) developed for the child by the public school system of the Town of Burlington, Massachusetts. While their challenge was ultimately successful, administrative and judicial review of the question took two years, during which the parents put their child in a proper placement at their own expense. The Supreme Court held that the parents were entitled to reimbursement for these...