Mrs. W. v. Tirozzi
| Citation | 832 F.2d 748 |
| Decision Date | 04 November 1987 |
| Docket Number | D,No. 1151,1151 |
| Parties | 42 Ed. Law Rep. 727 MRS. W., Mrs. B., and Connecticut Legal Services, Plaintiffs-Appellants, v. Gerald N. TIROZZI, James Szerejko, A. Walter Esdaile, Warren Foley, Abraham Glassman, Rita L. Hendel, Walter Mannix, Julia S. Rankin, Norma Glasgow and Connecticut State Board of Education, Defendants-Appellees. ocket 87-7163. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Douglas M. Crockett, Connecticut Legal Services, Willimantic, Conn. (Sharon Langer, Connecticut Legal Services, New Britain, Conn., Dennis J. O'Brien, Connecticut Legal Services, Willimantic, Conn., of counsel), for plaintiffs-appellants.
John R. Whelan, Asst. Atty. Gen., Hartford, Conn. (Joseph I. Lieberman, Atty. Gen., Robert W. Garvey, Asst. Atty. Gen., Hartford, Conn., of counsel), for defendants-appellees.
Before VAN GRAAFEILAND and CARDAMONE, Circuit Judges.
Plaintiffs Connecticut Legal Services, Mrs. W., Mrs. B., and their children appeal from the February 2, 1987 judgment of the United States District Court for the District of Connecticut (Blumenfeld, J.), dismissing their 42 U.S.C. Sec. 1983 civil rights action and granting judgment on the pleadings for defendants, the Connecticut State Board of Education, Gerald N. Tirozzi, the Connecticut Commissioner of Education, and the members of the Connecticut State Board of Education. Two principal questions are raised on this appeal. First, may a private right of action under 42 U.S.C. Sec. 1983 be maintained for a claimed violation of the Education of the Handicapped Act, 20 U.S.C.A. Secs. 1400-1485 (West 1978 & Supp.1987)? And, must the administrative remedies provided under Sec. 1415(b)(2) and (c) of that Act and 34 C.F.R. Secs. 76.1-76.902 (1986) be exhausted, or their exhaustion excused, prior to filing this civil rights action? We hold that the Act provides for a private right of action and that exhaustion requirements do not preclude this civil action.
Before considering the merits of this appeal, it is helpful to discuss briefly the Education of the Handicapped Act, 20 U.S.C.A. Secs. 1400-1485 (West 1978 & Supp.1987), and its implementation in Connecticut. The Education of the Handicapped Act (EHA or Act) begins with findings that there were in 1970 more than 8 million handicapped children in the United States, most of whom had special educational needs not being fully met. Sec. 1400(b)(1)-(3). The Act is a comprehensive scheme established by Congress to aid the states in meeting the educational needs of handicapped children by providing them with a "free appropriate public education." Sec. 1400(c); S.Rep. No. 168, 94th Cong., 1st Sess. 13, reprinted in 1975 U.S.Code Cong. & Admin.News 1425, 1437 (1975 Senate Report). The Act also attempts to relieve the financial burdens placed on individual states in their efforts to provide such education for handicapped children. Secs. 1400(b)(8)-(9), (c). To achieve these goals, it conditions federal financial assistance on the state's development of a policy and plan that "assures all handicapped children Congress emphasized that the EHA is not simply a funding statute. The primary responsibility for providing the required education rests with the states. 1975 Senate Report, supra, at 22. To ensure its discharge, there is set forth an enforceable substantive right to "a free appropriate public education." Sec. 1400(c); see Board of Educ. of Hendrick Hudson Cent. School Dist. v. Rowley, 458 U.S. 176, 191-204, 102 S.Ct. 3034, 3043-50, 73 L.Ed.2d 690 (1982). Elaborate procedural requirements are imposed on the states receiving federal financial aid to safeguard that right. Sec. 1415; see Rowley, 458 U.S. at 182, 102 S.Ct. at 3038. The Act contains a strong focus on involving the handicapped child's parents, teacher, and a representative of the local educational agency in the formulation of an "individualized education program" (IEP) tailored to the particular needs of the handicapped student. Secs. 1401(18)-(19), 1415(b). Each child's IEP must be reviewed--and, when necessary, revised--at least annually. Sec. 1414(a)(5). Parents of handicapped children must be notified in writing of any proposed change in their child's IEP, Sec. 1415(b)(1)(C)(i), and be given an opportunity to bring complaints about "any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child," Sec. 1415(b)(1)(E).
the right to a free appropriate public education." Sec. 1412(1)
Complaints are reviewed at an "impartial due process hearing" conducted by the state or local education agency. Sec. 1415(b)(2). A final decision must be reached no later than 45 days after the receipt of a hearing request. 34 C.F.R. Sec. 300.512(a)(1) (1986). If a hearing is conducted at the local level, an appeal may be taken to a state agency which must render a final decision within 30 days. Sec. 1415(c); 34 C.F.R. Sec. 300.512(b)(1). An aggrieved party may appeal to federal or state court, which is empowered to grant appropriate relief. Sec. 1415(e)(2); 34 C.F.R. Sec. 300.511.
In addition to the procedural safeguards listed in 20 U.S.C.A. Sec. 1415, the Education Division General Administrative Regulations, 34 C.F.R. Secs. 76.1-76.902 (EDGAR), set forth an administrative mechanism for assuring that a state complies with the provisions of the EHA. Specifically, 34 C.F.R. Sec. 76.780 requires a state to adopt a written complaint resolution procedure (CRP) for receiving and resolving complaints that the state or a local agency is violating the EHA or its regulations. The state must include in its CRP a 60-day time limit within which to carry out an investigation and resolve a complaint. Sec. 76.781(a). The state must also inform complainants that they have the right to request a review of the state's final decision by the United States Secretary of Education (Secretary). Sec. 76.781(c).
Prior to 1986 no express private right of action was found in the EHA. Smith v. Robinson, 468 U.S. 992, 1013, 104 S.Ct. 3457, 3469, 82 L.Ed.2d 746 (1984) (). In response to the Supreme Court's decision in Smith, Congress in 1986 added Sec. 1415(f) to the EHA, as part of the Handicapped Children's Protection Act of 1986, Pub.L. No. 99-372, 1986 U.S.Code Cong. & Admin.News (100 Stat.) 796. The new Sec. 1415(f) states that the provisions of the EHA do not provide the exclusive avenue for redress available to handicapped children, and that Sec. 504 of the Rehabilitation Act of 1973, and 42 U.S.C. Sec. 1983, and other constitutional or statutory provisions may be used as remedies to enforce EHA educational rights, subject to the Act's existing exhaustion requirements.
Connecticut submits plans annually for state administered programs of special education and related services and receives federal grants because as a participating state it has enacted legislation to implement the EHA's requirements. See Conn.Gen.Stat.Ann. Sec. 10-76h (West 1986). Under such legislation, parents may request review of the diagnosis, evaluation of educational programs, exemption or exclusion of their child from school privileges, or any other matter concerning the child's right to special education. Sec. 10-76h(a). A hearing must be scheduled and a decision rendered The State Plan for fiscal years 1981-83 also included a Connecticut State Department of Education complaint resolution procedure. Thereafter, this procedure was revised and then deleted from the State Plan in 1984. At present there appears to be no complaint resolution procedure in Connecticut's State Plan. With this general overview in mind, we turn to the facts of this case.
within 45 days of the request for review. Sec. 10-76h(b). Appeals from these decisions are taken in accordance with Connecticut's Administrative Procedures Act, Sec. 4-183; Sec. 10-76h(e)(3). In lieu of an administrative review, the parties may agree to refer the matter to a state mediator. Sec. 10-76h(c)(2)
On May 7, 1985 plaintiffs, Mrs. W. and Mrs. B., parents of handicapped children, and Connecticut Legal Services (Legal Services), a nonprofit corporation providing legal services, commenced this civil rights action pursuant to 42 U.S.C. Sec. 1983 (1982), on their own behalf and on behalf of others similarly situated, against the Connecticut State Board of Education, Gerald N. Tirozzi, the Connecticut Commissioner of Education, and the members of the Connecticut State Board of Education (collectively defendants or the State Board). Plaintiffs' complaint alleges that the defendants' failure to make bona fide attempts to resolve their complaints against the Bridgeport Board of Education and the Connecticut Department of Children and Youth Services and to implement fully and conduct an informal CRP violates the Act, Sec. 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 (1982), and the Due Process and Equal Protection clauses of the Fourteenth Amendment. Because the plaintiffs' allegations focus on the two complaints filed by Legal Services with the State Board pursuant to its complaint resolution procedure for fiscal years 1981-83, we consider each of these complaints in detail.
On October 7, 1982 Legal Services filed a complaint with the State Board on behalf of Mrs. W., the mother of Diedre W., who has emotional, intellectual, and gross motor handicaps, and on behalf of Mrs. B., the mother of Nathan B., a retarded and autistic child, and in behalf of all those similarly situated against the Bridgeport Board of Education pursuant to Connecticut's complaint resolution procedure. The complaint was not limited to objections regarding the individualized educational...
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