MR v. Milwaukee Public Schools, 80-C-592.

• Decision Date: 16 April 1984
• Docket Number: No. 80-C-592.,80-C-592.
• Citation: 584 F. Supp. 767
• Parties: M.R., as parent and natural guardian of J.R., and J.D., as parent and natural guardian of K.D., individually and in behalf of all others similarly situated, Plaintiffs, v. MILWAUKEE PUBLIC SCHOOLS, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

584 F. Supp. 767

M.R., as parent and natural guardian of J.R., and J.D., as parent and natural guardian of K.D., individually and in behalf of all others similarly situated, Plaintiffs, v. MILWAUKEE PUBLIC SCHOOLS, et al., Defendants.

No. 80-C-592.

United States District Court, E.D. Wisconsin.

April 16, 1984.

COPYRIGHT MATERIAL OMITTED

Harold L. Harlowe, Thomas E. Dixon, Madison, Wis., for plaintiffs.

James T. McClutchy, Theophilis Crockett, Asst. City Atty., Milwaukee, Wis., Daniel D. Stier, Asst. Atty. Gen., Madison, Wis., for respondents.

DECISION AND ORDER

MYRON L. GORDON, Senior District Judge.

This case involves claims brought by two handicapped children, on behalf of themselves and a class of similarly situated children, for declaratory, injunctive, and monetary relief. The plaintiffs allege that the defendants have deprived them of an appropriate education at public expense, in violation of the equal protection clause of the fourteenth amendment to the United States Constitution, § 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794), the Education for All Handicapped Children Act (EAHCA) (20 U.S.C. § 1401 et seq.) and Article X, Section III of the Wisconsin Constitution. The plaintiffs also claim that certain policies and practices of the defendants have denied them their right to due process of law as guaranteed by the fourteenth amendment, 29 U.S.C. § 794, 20 U.S.C. § 1401 et seq., and the Wisconsin Constitution.

Proceedings in this action were held in abeyance for over a year, at the parties' request, while settlement negotiations were being conducted. In May, 1983, the court was informed that the settlement process had broken down. At that time there were a number of motions pending in the case. Briefing and resolution of these motions had been suspended while the settlement negotiations were proceeding. On July 12, 1983, attorney David Lowe was appointed as a special master and was charged with determining the order in which the pending motions should be resolved and recommending their resolution.

On November 15, 1983, Mr. Lowe filed his report and recommendations with the court. The parties were then given an opportunity to file objections to the report and to respond to each other's objections.

In his report, Mr. Lowe focuses on the motion for summary judgment made by the defendants Milwaukee Public Schools (MPS) and Milwaukee Board of School Directors and joined in by the State Superintendent of Public Instruction and Milwaukee County Department of Social Services. According to the special master, the parties agree that a sufficient factual dispute exists as to the plaintiffs' allegations of widespread administrative irregularities in the way handicapped children are evaluated and placed so as to force a trial of any issue as to which these allegations are materially significant; however, the defendants maintain that even if such allegations are taken as true, summary judgment should be granted in their favor.

For purposes of making a recommendation concerning the defendants' motion for summary judgment, Mr. Lowe made the assumption that issues of fact exist concerning the plaintiffs' allegations that the defendants failed adequately to evaluate the educational needs of the plaintiff class, failed to develop an adequate number of in-school placements for the children, and failed to "ensure the availability of a continuum of alternative placements for them as is required by federal law."

The special master also states that he has taken as true, for purposes of the defendants' motion, the plaintiffs' claims that MPS "unlawfully biased, delayed, and interfered with the evaluation and placement process to prevent placements in day treatment, although such placements were appropriate and required," and that MPS delayed offers of new placements so long that at the conclusion of the appeal process the requested placements in day treatment would no longer be available because the day treatment centers would have closed for lack of contracts for their services.

The defendants argue that, even making the assumptions just summarized, the plaintiffs' complaint must be dismissed for failure to exhaust administrative remedies under § 615 of the EAHCA, 20 U.S.C. § 1415. The defendants also urge that there is no alternative cause of action because EAHCA provides the exclusive remedy.

Mr. Lowe's report reviews the statutory and case law regarding these issues in a thorough and perceptive fashion. Based on this review, he recommends that the defendants' motion for summary judgment be granted with respect to the plaintiffs' claims for declaratory and permanent injunctive relief, and that those claims be dismissed without prejudice for failure to exhaust administrative remedies. Mr. Lowe also recommends that the motion for summary judgment be denied with respect to the named plaintiffs' claims for damages under 42 U.S.C. § 1983.

In resolving the pending summary judgment motion, I intend to follow Mr. Lowe's recommendation with respect to the plaintiffs' claims for injunctive and declaratory relief. Contrary to his suggestion, however, the defendants' summary judgment motion will also be granted as to the named plaintiffs' claims for damages.

Mr. Lowe's report is hereby made a part of this opinion as an appendix. The following discussion of the issues adopts the special master's analysis in some instances, expands on it in others, and embraces an alternative analysis in still other instances.

I see no need for additional comment or modification of Mr. Lowe's discussion of the factual and procedural background of this action and of the issue of exhaustion of administrative remedies. Those sections of his report are hereby adopted as the opinion of the court.

The next section of Mr. Lowe's report addresses the plaintiffs' assertion that, even if their EAHCA claims are dismissed for failure to exhaust administrative remedies, their claims under the Rehabilitation Act of 1973 and under 42 U.S.C. § 1983 are independent claims with respect to which exhaustion of remedies is not required. In rejecting the plaintiffs' argument, Mr. Lowe relied on the opinion of the Court of Appeals for the Seventh Circuit in Timms v. Metropolitan School District of Wabash County, Indiana, 718 F.2d 212 (7th Cir. 1983) (Timms I). On November 18, 1983, a few days after Mr. Lowe submitted his report to this court, the original opinion in Timms was modified by the court. Timms v. Metropolitan School District of Wabash County, Indiana, 722 F.2d 1310 (7th Cir. 1983) (Timms II). In my judgment, the modified opinion does not dictate a different outcome in the case at bar, but it does merit some additional discussion of the issues.

In its second Timms opinion, the court held that the plaintiff's claim for equitable relief under the EAHCA was moot. In contrast to the first Timms opinion, the court declined to decide whether "compensatory education" is an available remedy for violations of the EAHCA, holding instead that the plaintiff's failure to exhaust administrative remedies mandated dismissal of her EAHCA claim in its entirety. The court then proceeded to discuss whether the plaintiff could continue to pursue her claim under § 504 of the Rehabilitation Act, 29 U.S.C. § 794, under these circumstances, and concluded that she could not.

The court noted that there are differences in scope between the EAHCA and the Rehabilitation Act, but pointed out that the acts generally overlap in the primary and secondary education context. The court went on to state:

"Whether or not section 504 itself can be the basis for a claim in these odd circumstances, it cannot be used to circumvent the procedural requirements imposed by the EAHCA when the two claims are parallel, because to do so would thwart the intent of Congress, manifested in the structure of the more detailed and specific EAHCA. This is true for procedural challenges to state and local agency action as well as for challenges regarding substantive placement decisions, because the EAHCA provides for scrutiny of alleged procedural irregularities. See Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034 at 3050 73 L.Ed.2d 690. One of the EAHCA procedural requirements is exhaustion of administrative remedies. Dismissal of the plaintiffs' EAHCA claim for failure to exhaust also requires dismissal of their section 504 claim."

Timms II, at 1318 (footnotes omitted).

This language makes it clear that, at least where EAHCA and Rehabilitation Act claims are "parallel," a plaintiff cannot proceed with a claim under the latter statute — whether it is based on a substantive or a procedural challenge to state and local agency action — without having exhausted administrative remedies under the EAHCA. Although the plaintiffs in this case assert that their claim under the Rehabilitation Act is independent of their EAHCA claim, it is apparent from the complaint that the claims are based on the same set of facts and must at least be considered "parallel." Therefore, I conclude that the plaintiffs' failure to exhaust their administrative remedies under the EAHCA bars them from pursuing their claim under the Rehabilitation Act at this time.

The plaintiffs also assert that they have an independent cause of action pursuant to 42 U.S.C. § 1983, and that this claim can be pursued regardless of whether or not EAHCA remedies have been exhausted. In Anderson v. Thompson, 658 F.2d 1205 (7th Cir.1981), the court concluded that § 615(e)(2) of the EAHCA (20 U.S.C. § 1415(e)(2)) is an exclusive remedy for violations of the statute, and that an action under 42 U.S.C. § 1983 is not available to redress such violations. The court based its conclusion on "the availability of a private right of action under the EAHCA, the detailed statutory administrative and judicial scheme, the fact that Congress intended the EAHCA to create new rights, and the absence of a traditional damage remedy." Anderson, 658...