Timms on Behalf of Timms v. Metropolitan School Dist. of Wabash County, Ind.

• Decision Date: 18 November 1983
• Docket Number: No. 82-3084,82-3084
• Citation: 722 F.2d 1310
• Parties: 15 Ed. Law Rep. 102 Michael and Jane TIMMS, on Behalf of their minor child, Sarah TIMMS, as parents and natural guardians, and Sarah Timms, individually, Plaintiffs-Appellants, v. METROPOLITAN SCHOOL DISTRICT OF WABASH COUNTY, INDIANA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1310

722 F.2d 1310

15 Ed. Law Rep. 102

Michael and Jane TIMMS, on Behalf of their minor child Sarah TIMMS, as parents and natural guardians, and Sarah Timms, individually, Plaintiffs-Appellants, v. METROPOLITAN SCHOOL DISTRICT OF WABASH COUNTY, INDIANA, et al., Defendants-Appellees.

No. 82-3084.

United States Court of Appeals Seventh Circuit.

Argued April 15, 1983.

Amended Opinion Nov. 18, 1983. ^*

Ernest M. Beal, Jr., Peters, Terrill, Parrish & Larson, Fort Wayne, Ind., for plaintiffs-appellants.

Bryon L. Myers, Ice, Miller, Donadio & Ryan, Eric M. Cavanaugh, Deputy Atty. Gen., Indianapolis, Ind., for defendants-appellees.

Before CUDAHY and ESCHBACH, Circuit Judges, and SWYGERT, Senior Circuit Judge.

SWYGERT, Senior Circuit Judge.

Sarah Timms, through her guardians and parents Michael and Jane Timms, brought this action seeking declaratory, equitable, and monetary relief, charging that alleged insufficiencies in her educational program violated the Education for All Handicapped Children Act of 1975 ("EAHCA"), 20 U.S.C. Secs. 1400-1420 (1976 & Supp. V 1981), section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 (1976), the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983 (1976 & Supp. V 1981), the equal protection and due process clauses of the fourteenth amendment to the United States Constitution, and Indiana state law. Defendants-appellees are the Metropolitan School District of Wabash County, Indiana ("School District"), the Indiana State Board of Education, the Wabash-Miami Area Program for Exceptional Children, Dr. Harold H. Negley, the State Superintendent of the Indiana Department of Public Instruction, and Dr. Edward Kasamis, the Superintendent of the School District. For the reasons that follow we affirm the district court's dismissal of the action.

I

Sarah Jane Timms is a profoundly handicapped young woman, born on November 30, 1962. In infancy she was diagnosed as suffering from psychomotor retardation, epilepsy, and a congenitally dislocated left hip. Occupational therapy, psychological, and speech evaluations conducted in 1980 revealed that her developmental age in various categories ranged from two to twenty-one months. Sarah has no expressive verbal skills. She has been institutionalized since 1967 at various state hospitals and nursing homes, most recently at the Vernon Manor Nursing Home in Wabash, Indiana, where she was placed in 1975 with the aid of the Indiana Department of Mental Health. Her placement at Vernon Manor was occasioned by her increasing tendency toward self-abuse, consisting of biting herself and striking herself about the head with her hands and arms, which has resulted in scarring and deformation of her eyes. Ordinarily Sarah must be restrained in her wheelchair by the use of splints that prevent her from bending her elbows.

Until 1979 Sarah received one one-hour educational session daily. An annual case conference was held on March 27, 1979, to develop an individualized education program ("IEP") for Sarah for 1979-80, required as a condition for federal funding under the federal-state cooperative program authorized by the EAHCA, 20 U.S.C. Secs. 1401(19), 1412(4), 1414(a)(5) (1976); 34 C.F.R. Secs. 300.130, 300.340-.349 (1982), and implemented by the state of Indiana, Ind.Code Sec. 20-1-6-1(e) (Cum.Supp.1981); Ind.Admin.Code ch. 510, Sec. 7-1-3(i) (Cum.Supp.1982). Mrs. Timms attended the conference and requested that Sarah be placed in a full-day instructional program in the hope that increased attention would stem her persistent self-abuse. The School Board, relying on Sarah's teacher's observations of a correlation between the level of self-abuse and the level of activity and demands put on the child, see Annual Case Conference Review, Record of Administrative Proceedings ("AR") 344, instead offered to increase the instruction to two forty-five minute periods per day, with possible further increases. See 1979 IEP, AR 278, 279.

Mrs. Timms authorized the implementation of the expanded program, but withheld approval of the IEP because she continued to believe full-day instruction would be beneficial. Rather, on May 5, 1979, she filed objections to the IEP and requested that a hearing examiner be appointed to consider the appropriateness of the program. See 20 U.S.C. Sec. 1415(b)(2) (1976); 34 C.F.R. Secs. 506-509 (1982); Ind.Admin.Code ch. 510, Sec. 7-1-3(g) (Cum.Supp.1982). A hearing officer was appointed on May 23, 1979. Following the administrative hearing, held on October 19, 1979, by mutual agreement of the parties, the hearing officer found that Sarah's IEP did not state why her instruction should be less than full-day, and that she should be placed in a full-day program. The School Board sought review of this decision by the Commission on General Education of the Indiana State Board of Education ("Commission"), the body authorized by state law, see id. Sec. 7-1-3(h), to hear such appeals. See 20 U.S.C. Sec. 1415(c) (1976) (authorizing second-tier state review). The Commission agreed with the hearing officer that Sarah's IEP failed to articulate a reason for less than full-day instruction, but rejected for lack of substantial evidence her additional conclusion that Sarah's self-abuse would not be aggravated by additional instruction. Because a shortened instructional day might have been warranted by a correlation between the level of self-abuse and the length of instruction, but such a correlation had been neither proved nor disproved, the Commission remanded the case for professional evaluations on this issue and for the development of a new IEP. See Ind.Admin.Code ch. 510, Sec. 7-1-3(h)(6)(C) (Cum.Supp.1982) (authorizing remands by the Commission). It also ordered that the hearing officer report by May 1, 1980, concerning progress made in the evaluation.

On March 25, 1980, before a report could be made, the parents filed this suit, seeking both equitable and monetary relief. The equitable portion of the complaint and accompanying motions sought a temporary restraining order, a preliminary injunction, and a permanent injunction to restrain the defendants from excluding Sarah from a full-day instructional program. Following a hearing the district court issued a partial judgment denying all equitable relief on the ground that adequate justification existed for the shortened program. On appeal, a panel of this court, in an unpublished order dated April 13, 1981, vacated the district court's judgment and remanded for reconsideration in light of the defendants' voluntary decision to place Sarah in a full-day program as of September 1980. That decision, we concluded, rendered the claims for preliminary injunctive relief moot, but left the claim for permanent injunctive relief open and particularly suitable for disposition, together with the still-pending claims for monetary relief, because of the availability of new, direct evidence of the effect of full-day instruction. Timms v. Metropolitan School District, 654 F.2d 726, slip op. at 5 & n. 4 (7th Cir.1981). At the same time, we left open the possibility of dismissal on remand for failure to exhaust available administrative remedies. Id. at 5 n. 5.

On remand the district court entertained motions for summary judgment from both sides and motions to dismiss from the defendants. It ruled in the defendants' favor on all issues in a comprehensive opinion. On the EAHCA claims it held in the alternative that the plaintiffs' failure to exhaust administrative remedies mandated dismissal; that damages in the form of "compensatory education" to make up for the shortened 1979-80 year, the only possible claim once Sarah began receiving full-day instruction, were precluded by Anderson v. Thompson, 658 F.2d 1205, 1213 (7th Cir.1981) (damages not an available remedy for EAHCA violations), in the absence of bad faith on the part of the defendants, and that no evidence of bad faith had been presented; that summary judgment was proper on the merits because the state procedures satisfied the requirements of the EAHCA and because the preponderance of the evidence (sic) indicated that the procedurally-correct IEP was designed to provide educational benefit; and that the state was not required to maintain the status quo of full-day education under 20 U.S.C. Sec. 1415(e)(3) (1976) and 34 C.F.R. Sec. 300.513 (1982) during the pendency of the case once Sarah passed the age to which free education is provided under state law. On the Rehabilitation Act claims the district court held in the alternative that dismissal was proper because, under the rationale of Anderson v. Thompson, 658 F.2d at 1214-16, the EAHCA provided the exclusive remedy, and that summary judgment was proper in any case because 45 C.F.R. Sec. 84.33(b)(2) provides that a procedurally-correct IEP satisfies the obligations of the Rehabilitation Act. On the section 1983 claims it held that under Anderson, supra, the EAHCA eclipses the general right of action provided by section 1983 to challenge state violations of federal statutory law; that summary judgment was proper on the equal protection claim because the evidence indicated that Sarah's placement, not facially discriminatory, was motivated by an educational judgment rather than by discrimination on the basis of her handicaps; and that summary judgment was proper on the due process claim because the EAHCA and Indiana law provided all the procedures required. Finally, on the pendent state law claims the district court held that summary judgment of the statutory claim was proper because the plaintiffs failed to specify what provision the defendants' conduct violated, but instead merely cited the entire Indiana special education law, Ind.Code Secs. 20-1-6-1 to 20-1-6-20 (1976 & Cum.Supp.1981); and that summary judgment of the common law claim of professional negligence was proper because Indiana law does not provide a cause of action for educational malpractice. This appeal followed.

II

The EAHCA...