Riley v. Ambach, 465

• Decision Date: 31 July 1981
• Docket Number: D,No. 465,465
• Citation: 668 F.2d 635
• Parties: James RILEY and Loretta Riley, on behalf of themselves and John M. Riley, their minor child et al., Plaintiffs-Appellees, v. Gordon M. AMBACH, as Commissioner of Education of the State of New York et al., Defendants, Gordon M. Ambach, as Commissioner of Education of the State of New York, and The State of New York, Defendants-Appellants. ocket 80-7600.
• Court: U.S. Court of Appeals — Second Circuit

Page 635

668 F.2d 635

James RILEY and Loretta Riley, on behalf of themselves and John M. Riley, their minor child et al Plaintiffs-Appellees, v. Gordon M. AMBACH, as Commissioner of Education of the State of New York et al., Defendants Gordon M. Ambach, as Commissioner of Education of the State of New York, and The State of New York Defendants-Appellants.

No. 465, Docket 80-7600.

United States Court of Appeals Second Circuit.

Argued Dec. 16, 1980.

Decided May 19, 1981.

On Denial of Rehearing July 31, 1981.

Richard C. Cahn, Huntington, N.Y., for appellees.

Judith A. Gordon and Marion R. Buchbinder, Asst. Attys. Gen., New York City, for appellants.

Before MOORE, MANSFIELD and NEWMAN, Circuit Judges.

MOORE, Circuit Judge:

The plaintiffs, and appellees in this action, are eighteen learning disabled children and their parents. The defendants, and appellants, are the State of New York and the State of New York's Commissioner of Education, Gordon M. Ambach. The State defendants took actions: (1) defining as handicapped only those learning disabled children who exhibit a discrepancy of 50% or more between expected achievement and actual achievement, and (2) withdrawing a procedure allowing local Committees on the Handicapped ("COHs") to assign learning disabled children to residential schools at State expense. After a hearing deemed a trial on the merits, the District Court held that the State defendants' actions were inconsistent with the federal scheme regarding the education of handicapped children and enjoined those actions. Riley v. Ambach, 508 F.Supp. 1222 (S.D.N.Y., 1980). We believe that the District Court acted too hastily, and should have required that the plaintiffs exhaust state administrative remedies before bringing suit in federal court. Accordingly, we reverse.

I. THE FEDERAL SCHEME

The federal government first directed its attention to the needs of the handicapped in 1973. That first step came in the form of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibited discrimination against the handicapped in programs receiving federal financial aid. The next congressional step, the step which concerns us here, came in 1975, when Congress passed the Education for All Handicapped Children Act ("EHA"), 20 U.S.C. § 1401 et seq.

A. The Education for All Handicapped Children Act Generally

Congress enacted The Education for All Handicapped Children Act of 1975 "in recognition of the facts that millions of handicapped children were not receiving appropriate educational services in public schools, that state and local educational agencies have both the ability and the responsibility to provide appropriate educational services for all handicapped children, but lack the financial resources to fulfill that duty, and that it is in the national interest for the federal government to assist state and local educational agencies' efforts to educate handicapped children." Harris v. Campbell, 472 F.Supp. 51, 53 (E.D.Va.1979). The Act provides for federal grants-in-aid in support of state efforts to educate the handicapped.

In order to receive federal financial assistance, a state must meet a number of requirements. A state must have "in effect a policy that assures all handicapped children the right to a free appropriate public education", 20 U.S.C. § 1412(1). A state must develop a plan setting forth policies, procedures, facilities, personnel requirements and services necessary to meet that goal. 20 U.S.C. § 1412(2). The plan must set forth policies and procedures to assure that "all children residing in the State ... who are in need of special education and related services are identified, located, and evaluated, and that a practical method is developed and implemented to determine which children are currently receiving needed special education and related services and which children are not...." 20 U.S.C. § 1412(2)(C). Local educational agencies must determine whether children are handicapped, and, where a child is classified as handicapped, must develop and annually revise an Individualized Educational Program ("IEP") for that handicapped child. 20 U.S.C. §§ 1401(19), 1412(4), 1414(a)(5); 45 C.F.R. § 121a.343(d). In New York, the determination of whether a child is handicapped and the formulation of an IEP where necessary is the responsibility of the Committee on the Handicapped of the local school district. N.Y. Educ. Law (McKinney) § 4402.1.

Federal regulations require that the state provide the handicapped with regular or special education and related aids and services that "are designed to meet the individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met...." 45 C.F.R. 84.33(b)(1) (i). That special help should be provided in the least restrictive environment responsive to the child's individual needs, 45 C.F.R. 121a.55; Stuart v. Nappi, 443 F.Supp. 1235, 1242 (D.Conn.1978). To "the maximum extent appropriate", handicapped children should be "educated with children who are not handicapped". The state must assure that "special classes, separate schooling, or other removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids cannot be achieved satisfactorily". 20 U.S.C. § 1412(5)(B).

B. The Severe Discrepancy Standard

The federal definition of when a learning disabled child is handicapped is crucial to this case. Under the EHA the term "handicapped children" means "mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, or other health impaired children, or children with specific learning disabilities, who by reason thereof require special education and related services". 20 U.S.C. § 1401(1) (emphasis added). The term "children with specific learning disabilities"

"means those children who have a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. Such disorders include such conditions as perceptual handicaps, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. Such term does not include children who have learning problems which are primarily the result of visual, hearing, or motor handicaps, of mental retardation, of emotional disturbance, or of environmental, cultural, or economical disadvantage." 20 U.S.C. § 1401(15).

In order to be treated as handicapped under the EHA, a learning disabled child must show "a severe discrepancy between achievement and intellectual ability in one or more of the following areas: (i) Oral expression; (ii) Listening comprehension; (iii) Written expression; (iv) Basic reading skill; (v) Reading comprehension; (vi) Mathematics calculation; (vii) Mathematics reasoning". 45 C.F.R. 121a.541(a)(2) (emphasis added). A child may not be identified as having a specific learning disability if the severe discrepancy between ability and achievement is primarily the result of (i) a visual, hearing or motor handicap; (ii) Mental retardation; (iii) Emotional disturbance; or (iv) Environmental, cultural, or economic disadvantage. 45 C.F.R. 121a.541(b).

C. Residential Placements Required When Necessary

The role of residential placements in treating learning disabled children is another important factor in this case. In the most general of terms, the federal scheme does state that all "placement decisions must be made on an individual basis". 45 C.F.R. 121a.552 (Comment). Individualized placement decisions are facilitated by the requirement that "(e)ach public agency shall insure that a continuum of alternative placements is available to meet the needs of handicapped children for special education and related services", 45 C.F.R. 121a.551. The continuum must include "special classes", "special schools", and "instruction in ... institutions". 45 C.F.R. 121a.551(b)(1). Residential placements are not explicitly required by this provision.

The role of residential placement is buttressed by a federal regulation which states that "(i)f placement in a public or private residential program is necessary to provide special education and related services to a handicapped child, the program, including non-medical care and room and board, must be at no cost to the parents of the child". 45 C.F.R. 121a.302. Learning disabled children are deemed handicapped when they suffer from a severe discrepancy between intellectual ability and achievement, and then come within this provision.

D. Exhaustion of Administrative Remedies Required

The EHA requires that states participating in the EHA's federal grants-in-aid program establish procedures by which parents or guardians may challenge the evaluation and placement of a child by the local educational agency. A state must provide "an opportunity to present complaints with respect to 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". 20 U.S.C. § 1415(b)(1)(E). When a complaint is received, "the parents or guardian shall have an opportunity for an impartial due process hearing which shall be conducted by the State educational agency or by the local educational agency or intermediate educational unit, as determined by State law or by the State educational agency." 20 U.S.C. § 1415(b)(2). If the hearing is conducted by a local educational agency or an intermediate educational unit, any party aggrieved by its findings and decision may appeal to the State educational agency. 20 U.S.C. § 1415(c).

New York State has given these hearings requirements operational effect by providing parents the right to appeal...