Sanders By Sanders v. Marquette Public Schools, No. M81-153 CA2.

• Court: United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
• Writing for the Court: Thrun, Maatsch & Nordberg by Harry J. Zeliff, Lansing, Mich., for defendants
• Citation: 561 F. Supp. 1361
• Parties: Louise SANDERS, a Minor, By her Next Friend, Paul A. SANDERS, and Paul A. Sanders, individually, Plaintiffs, v. MARQUETTE PUBLIC SCHOOLS and Michigan Department of Education, Defendants.
• Docket Number: No. M81-153 CA2.
• Decision Date: 14 April 1983

561 F. Supp. 1361

Louise SANDERS, a Minor, By her Next Friend, Paul A. SANDERS, and Paul A. Sanders, individually, Plaintiffs,
v.
MARQUETTE PUBLIC SCHOOLS and Michigan Department of Education, Defendants.

No. M81-153 CA2.

United States District Court, W.D. Michigan, N.D.

April 14, 1983.

561 F. Supp. 1362

COPYRIGHT MATERIAL OMITTED

561 F. Supp. 1363

COPYRIGHT MATERIAL OMITTED

561 F. Supp. 1364

Hansley, Neiman, Peterson, Beauchamp, Stupak & Bergman by Frank A. Stupak, Jr., Escanaba, Mich., for plaintiffs

Thrun, Maatsch & Nordberg by Harry J. Zeliff, Lansing, Mich., for defendants.

OPINION RE MOTION FOR SUMMARY JUDGMENT

HILLMAN, District Judge.

This action is brought pursuant to 29 U.S.C. § 794, et seq., 20 U.S.C. § 1401, et seq., 42 U.S.C. § 1983, and state tort law. Jurisdiction is alleged under 28 U.S.C. §§ 1331(a) and 1343(3). Presently before the court is defendants' motion for summary judgment.

Plaintiff Louise Sanders (hereinafter "Louise") was enrolled in the Marquette public school system from 1963 until the fall of 1978. During those years, plaintiff Paul Sanders (hereinafter "Mr. Sanders"), father of Louise, alleges that defendants failed to evaluate Louise properly, failed to place her properly in the schools, failed to inform the Sanders of Louise's educational and behavioral problems, and failed to plan with the Sanders an appropriate educational program for Louise. These acts allegedly violate Louise's rights to non-discriminatory treatment and to a "free and appropriate education" under the above-cited legislation. Defendants' conduct also allegedly caused Mr. Sanders great emotional distress and entailed the expenses of providing Louise with alternative education.

Defendants have moved for summary judgment on the grounds that 29 U.S.C. § 794 and 20 U.S.C. § 1401 confer no individual causes of action on plaintiffs, or at least no suits for damages, as sought here; that, even if suit is technically permissible, it is barred by the statute of limitations; that an action for violation of 29 U.S.C. § 794 and 20 U.S.C. § 1401 may not be brought under 42 U.S.C. § 1983, and that plaintiffs have failed to state a cause of action for negligence under state tort law.

DISCUSSION

The disposition of a motion for summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56(c) provides, in pertinent part, that summary judgment shall be rendered if the pleadings, together with affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In applying the standard established by Rule 56(c), the court must consider, in a light most favorable to the party opposing the motion, materials offered in support of the motion as well as all pleadings, depositions, answers to interrogatories, and admissions properly on file. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Smith v. Hudson, 600 F.2d 60 (6th Cir.1979).

I. STATUTE OF LIMITATIONS

Neither 20 U.S.C. § 1401, the Education for All Handicapped Children Act (hereinafter "the EAH"), nor 29 U.S.C. § 794, the Rehabilitation Act of 1973 ("the Rehabilitation Act"), provide for limitations periods on actions brought pursuant to those acts. The provision of the EAH authorizing federal court review of state administrative procedures concerning handicapped children similarly does not limit the time in which such actions may be brought. The enforcement provision of the Rehabilitation Act, Title VI of the Civil Rights Act of 1964, also does not fix a limitations period. See, 29

561 F. Supp. 1365

U.S.C. § 794a. Defendants claim that, in the absence of a federally-prescribed limitations period, state statutory limitations periods should apply. Defendants next argue that the "most appropriate" state limitations statute is supplied by M.C.L.A. § 600.5805(8); M.S.A. § 27A.5805(8), which requires actions to be brought within three years of the accrual of a claim.¹ According to defendants, plaintiffs' claims accrued by the spring of 1978, and that when plaintiffs filed suit in August of 1981, their claims were time-barred

Michigan law may be adopted to supply the limitations period for actions brought under federal statutes. See, e.g., UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966); Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir.1973); An-Ti Chai v. Michigan Technological University, 493 F.Supp. 1137 (W.D. Mich.1980). Even if the court were to determine that M.C.L.A. § 600.5805(8) governs the limitations periods of suits under the EAH and the Rehabilitation Act, from the facts presently before the court, plaintiffs' claims do not appear to have been asserted too late. Plaintiffs allege that Louise was enrolled in the Marquette school system until September of 1978, at which time Mr. Sanders withdrew Louise from the system and obtained other schooling for her. It appears that Louise was in fact free to return to the Marquette schools in the fall of 1978. It may be argued that until Louise was withdrawn from the system, defendants may have remedied the harms plaintiffs claim to have suffered, and that, consequently, plaintiffs' claims did not accrue until Louise's withdrawal from the system precluded such a remedy. As plaintiffs filed suit in August of 1981, their claims would be timely.

Defendants claim to the contrary that Louise was withdrawn from the school system in the spring of 1978, at which time her claim purportedly accrued, and that, consequently, the August, 1981, filing was time-barred. There is evidence in the record, however, to support plaintiffs' assertion that Louise could in fact have attended a Marquette Public School in the fall of 1978, but for defendants' actions. There is some evidence that Mr. Sanders was contacted by the school system during the summer of 1978 about a program for Louise in the fall. These facts bear upon the question when plaintiffs' claims accrued. The parties thus obviously contest an issue of material fact which may not be settled by way of summary judgment. Arnett v. Kennedy, supra; Smith v. Hudson, supra. Consequently, defendants' motion for summary judgment on the ground that plaintiffs' claim was timebarred is denied pending further development of the factual record.

II. FEDERAL CLAIMS

Plaintiffs' complaint presents several questions of law that are novel to this district. Courts in other jurisdictions have reached differing conclusions on the questions of whether there is an implied private right of action under both the EAH and the Rehabilitation Act; whether, if such actions are allowed, they must be preceded by the exhaustion of administrative remedies; whether, if such suits are allowable, a successful plaintiff may be awarded monetary damages, and whether a suit under 42 U.S.C. § 1983 may be brought on the basis of violations of rights secured by the EAH or the Rehabilitation Act. These questions, and others, are presented by the case at bar. I will address first the questions pertaining to the EAH, then the Rehabilitation Act, and then those questions concerning the alleged action under section 1983.

561 F. Supp. 1366

A. The EAH.

The initial question presented is whether the EAH empowers a private person to bring suit for harm to rights allegedly secured him by the EAH. To date, courts have almost uniformly held that there is an implied cause of action under the EAH. See, e.g., Miener v. State of Missouri, 673 F.2d 969 (8th Cir.1982); Mitchell v. Walter, 538 F.Supp. 1111 (S.D. Ohio 1982); Anderson v. Thompson, 658 F.2d 1205 (7th Cir.1981). Just as uniformly, however, the courts have held that the scope of the implied cause of action is restricted by the provisions of 20 U.S.C. § 1415(e)(2). That section provides jurisdiction for civil actions, and reads as follows:

"Any party aggrieved by the findings and decision made under subsection (b) of this section ... and ... under subsection (c) of this section, shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy. In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate."

This section limits the issues that may be presented in an action under the EAH. A party aggrieved by the findings of a "due process hearing" conducted by a state or local educational official may appeal those findings to a state or a federal district court. Id. In the instant case, plaintiffs have participated in local and state due process hearings on the question of Louise's placement in the Marquette public school system. Unsatisfied with the findings of those hearings, they are "aggrieved" within the meaning of section 1415(e)(2). Consequently, they have properly sought review in this court of the propriety of the educational placement decision that concerns Louise. Therefore, the claim that the EAH does not allow a private cause of action does not state a basis for granting defendants' motion for summary judgment.

The next issue concerning the validity of an action under the EAH is whether administrative remedies must be exhausted before suit under section 1415(e)(2) may be brought. In the instant case, plaintiffs have exhausted the administrative remedies provided them under Michigan law,² and thus, whether or not "exhaustion" is required, their appeal is properly before the court.

Defendants raised the additional argument that plaintiffs' suit under the EAH was barred because the provisions of the Act on which plaintiffs now sue were not in effect during the time in...