Ruth Anne M. v. Alvin Independent School Dist., Civ. A. No. G-80-11.

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: HUGH GIBSON
• Citation: 532 F. Supp. 460
• Parties: RUTH ANNE M and Gordon M., a minor, by and through his mother and next friend, Ruth Anne M., Plaintiffs, v. ALVIN INDEPENDENT SCHOOL DISTRICT, et al., Defendants.
• Docket Number: Civ. A. No. G-80-11.
• Decision Date: 18 January 1982

532 F. Supp. 460

RUTH ANNE M and Gordon M., a minor, by and through his mother and next friend, Ruth Anne M., Plaintiffs,
v.
ALVIN INDEPENDENT SCHOOL DISTRICT, et al., Defendants.

Civ. A. No. G-80-11.

United States District Court, S. D. Texas, Galveston Division.

January 18, 1982.

532 F. Supp. 461

J. Patrick Wiseman, Nelson & Mallett, Houston, Tex., for plaintiffs.

David M. Feldman, Houston, Tex., for defendants.

MEMORANDUM AND ORDER

HUGH GIBSON, District Judge.

Plaintiffs brought this action against defendants Alvin Independent School District (AISD) and various school officials pursuant to the Education for All Handicapped Children Act of 1975 (EHCA), 20 U.S.C. § 1401 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the fourteenth amendment of the United States Constitution. Plaintiffs' original petition, filed January 14, 1980, seeks compensatory and punitive damages, as well as injunctive and declaratory relief. Jurisdiction

532 F. Supp. 462

is alleged under 20 U.S.C. § 1415(e)(2), 29 U.S.C. § 794, 42 U.S.C. § 1983, 28 U.S.C. § 1331, and 28 U.S.C. § 1343(4)

Gordon M. is an emotionally disturbed adolescent presently enrolled in special education classes in AISD. At the commencement of this lawsuit, Gordon was attending regular classes at AISD, supplemented by one resource class, an educational placement viewed by plaintiffs as inappropriate under the EHCA. Plaintiffs preliminarily sought interim relief to secure private residential placement for Gordon M. pending resolution of the case on its merits. The Court, however, declined to consider the application for preliminary injunctive relief until plaintiffs exhausted their administrative remedies pursuant to the EHCA.

An administrative hearing officer found Gordon's then-current placement with AISD inappropriate for his unique educational and related service needs, and recommended a highly structured classroom setting with individual therapy. The AISD Board of Trustees then issued a statement adopting the hearing officer's findings, but, relying on the "pendency clause" of the EHCA, 20 U.S.C. § 1415(e)(3), declined to initiate a change in placement pending resolution of this action. Thereafter, this Court on July 16, 1980, ordered the interim placement of Gordon M. in an all-day, self-contained, highly structured special education class. Plaintiffs have announced to the Court that they will not further contest the appropriateness of this placement. See Agreed Motion for Continuance, filed November 10, 1980. Therefore, plaintiffs' claims for prospective injunctive and declaratory relief are moot.

Plaintiffs continue to pursue a substantial claim for damages, however, based upon alleged violations of the EHCA, the Rehabilitation Act, the fourteenth amendment, and 42 U.S.C. § 1983. These claims are presently before the Court on the defendants' motion to dismiss or for summary judgment, and plaintiffs' cross-motion for summary judgment. Defendants contend that these claims are barred by plaintiffs' failure to exhaust administrative remedies under the EHCA, by the Texas two-year statute of limitations, Tex.Rev.Civ.Stat. Ann. art. 5526 (Vernon Supp. 1980-81), and the doctrine of laches. Further, defendants aver that, as a matter of law, neither the EHCA nor section 504 of the Rehabilitation Act authorize a private right of action for damages, and that, accordingly, neither statute can serve as a springboard for a damage action under 42 U.S.C. § 1983. Summary judgment is also sought on plaintiffs' constitutional claims.

Plaintiffs seek summary judgment on issues of liability only. For the reasons set forth below, plaintiffs' motion for summary judgment will be denied at this time, and defendants' motion to dismiss or for summary judgment will be granted in part and denied in part.

I

THE FACTUAL BACKGROUND

Gordon M. first entered AISD in 1972 at the age of seven. Initially, Gordon was considered minimally brain damaged, and placed in special education classes. AISD officials considered Gordon's educational development in this setting excellent, and after further evaluation by the District, Gordon was reclassified as learning disabled and gradually mainstreamed into regular education courses. Satisfied with Gordon's achievement, AISD in 1975 dismissed Gordon completely from its special education program. He completed elementary school in the regular education program and was advanced to junior high school.

During the 1977-78 school year, Gordon began to receive failing grades and developed a seizure disorder which was subsequently attributed to mod-hypoglycemia. As far as AISD is concerned, Gordon performed at above average levels until that year, successfully advancing through each preceding grade. It is undisputed that Gordon is a child of above average intelligence, but plaintiffs vigorously deny that his academic performance from 1974 to 1977 approached his intellectual potential. Plaintiffs contend that Gordon then, as now, was

532 F. Supp. 463

suffering from an emotional disorder which precluded his educational development in regular education classes, and that AISD summarily passed him through successive grades despite poor and sometimes failing marks

Dissatisfied with Gordon's progress at AISD and concerned for his physical well being, Gordon's mother withdrew him from the District in January 1978. Gordon was placed in Angie Nall Hospital, a private residential facility for medically and emotionally impaired children. As a result of plaintiffs' limited financial resources, Gordon was withdrawn from Angie Nall in 1978 and enrolled in West Briar School, a private facility in Houston, Texas. West Briar does not maintain a special education program, however, and after a near-suicidal episode which resulted in Gordon's hospitalization in the psychiatric unit of Bellaire General Hospital for four months, school authorities determined that Gordon's emotional problems prevented him from benefitting from West Briar's educational program. Thus, in April 1979 Gordon returned to AISD, where he was identified as a handicapped child within the meaning of the EHCA and individualized education program (IEP), although unacceptable to plaintiffs, developed.

II

DEFENDANTS' MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

A. The EHCA Exhaustion Requirement

Generally, a party seeking to invoke federal district court jurisdiction under the EHCA must first exhaust the state administrative procedures provided for in the Act. 20 U.S.C. § 1415(e). The legislative history of the Act, however, reflects the understanding that exhaustion is not a rigid requirement. See Ezratty v. Puerto Rico, 648 F.2d 770, 774 & n.5 (1st Cir. 1981); Monahan v. Nebraska, 645 F.2d 592, 597 (8th Cir. 1981); Sessions v. Livingston Parish School Board, 501 F.Supp. 251, 254 (M.D.La.1980); Doe v. Koger, 480 F.Supp. 225, 228 (N.D. Ind.1979); Armstrong v. Kline, 476 F.Supp. 583, 601-02 (E.D.Pa.1979), remanded on other grounds sub nom. Battle v. Pennsylvania, 629 F.2d 269 (3rd Cir. 1980), on remand, 513 F.Supp. 425 (E.D.Pa.1980); Harris v. Campbell, 472 F.Supp. 51, 53-54 (E.D. Va.1979); Loughran v. Flanders, 470 F.Supp. 110, 112 (D.Conn.1979); New York State Association for Retarded Children, Inc. v. Carey, 466 F.Supp. 479, 486, aff'd, 614 F.2d 644 (2d Cir. 1979).

It is undisputed in this case that plaintiffs were not notified by AISD of their administrative rights under the Act as contemplated in 20 U.S.C. § 1415(b)(1)(C). Apparently the District took no notice-triggering action under the Act with respect to the identification, evaluation or educational placement of Gordon.¹ Nor have defendants established that plaintiffs otherwise knew or should have known of the availability of administrative recourse when the unilateral decision to withdraw Gordon from AISD was made in January 1978. The wooden application of the exhaustion doctrine in these circumstances would accord neither with the salutary interests the doctrine is intended to serve, see McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1968), nor with the basic purposes underlying the EHCA. See Gladys J. v. Pearland Independent School District, 520 F.Supp. 869, 873-74 (S.D.Tex.1981). Accordingly, the Court holds that plaintiffs' action is not barred by their failure to exhaust administrative remedies under the EHCA.

B. The Statute of Limitations

Plaintiffs' damage action involves alleged acts or omissions of defendants in connection with the public education of Gordon M. beginning in the fall of 1977. This suit was

532 F. Supp. 464

commenced on January 14, 1980. No federal statute of limitations governs the time period for the bringing of the actions involved here, hence the Court must apply analogous state limitation provisions. In this instance, defendants urge that the applicable state statute, Tex.Rev.Civ.Stat. Ann. art. 5526, bars plaintiffs' damage action insofar as it concerns events transpiring more than two years before the filing of suit

Plaintiffs contend that the EHCA, which became effective on October 1, 1977, imposes upon defendants the affirmative obligation to discover, identify, evaluate and appropriately place all handicapped children within the jurisdiction of AISD. See Gladys J. v. Pearland ISD, supra, at 873-74 n.5. Clearly, Gordon was not identified by the District as a handicapped child prior to his withdrawal on January 23, 1978, and plaintiffs allege that the District thereby defaulted on its obligation to provide him a "free appropriate public education"² imposed by Congress as a condition to receipt of federal moneys under the Act.

Article 5526, a statute frequently utilized in federal civil rights cases by courts in this circuit, provides for the commencement and prosecution of a lawsuit within two years after the cause of action shall have accrued. Tex.Rev.Civ.Stat.Ann. art. 5526. While state law...