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April 9, 1982

GREGG B., by his father, Melvin B., and Melvin B., Individually, Plaintiffs,

The opinion of the court was delivered by: NICKERSON


This action was brought to obtain from defendant Board of Education of the Lawrence School District (the School Board) reimbursement for the tuition plaintiff Melvin B. has paid since September 1979 to the Mill Creek School for the education of his son, plaintiff Gregg B., and to require payment for his continued attendance until age 21 at that school and payment of attorneys' fees. Plaintiffs allege that the School Board denied Gregg a free appropriate education in violation of the Education for All Handicapped Children Act of 1975 (the Education for Handicapped Act), 20 U.S.C. § 1401 et seq., and section 504 of the Rehabilitation Act of 1973 (the Rehabilitation Act), 29 U.S.C. § 794.

The School Board has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, for judgment on the pleadings pursuant to Rule 12(c), and for an order dismissing the complaint pursuant to Rule 12(b)(1) and (6). The School Board contends that (1) this court lacks jurisdiction because plaintiffs have not exhausted their administrative remedies, (2) plaintiffs have waived any claim for tuition reimbursement, (3) neither the Education for Handicapped Act nor the Rehabilitation Act creates a claim for damages or attorneys fees, and (4) the Civil Rights Attorney's Fees Act of 1976, 42 U.S.C. § 1988, does not authorize an award of fees in this case.


 Gregg B., born on November 13, 1960, is emotionally handicapped. He has been hospitalized and treated for character disorder in several mental health facilities. He attended the Lawrence public schools from kindergarten until grade eleven, when his condition deteriorated so that he could no longer reside at home or attend public school.

 On February 8, 1979 he was admitted to the Pennsylvania Hospital in Philadelphia, suffering from schizophrenic reaction, acute paranoid type. In April 1979, without the knowledge of the School Board, his parents placed him in the Mill Creek School, associated with the Institute of the Pennsylvania Hospital. So far as the record shows he received no schooling in 1978-79 prior to that date.

 On June 19, 1979 his parents met with the Committee on the Handicapped (the Committee) of the Lawrence public schools and requested financial support for his attendance at Mill Creek School during the summer and for the academic year 1979-80. The Committee deferred a decision pending receipt of a recommendation of a scholastic placement from the hospital psychiatrist.

 On June 27, 1979 the Committee met again with Gregg's parents. A report from the hospital psychiatrist reiterated the February diagnosis and recommended that Gregg continue at Mill Creek School. The minutes of this meeting state that Edwin Kuffner, Chairman of the Committee and Director of Pupil Personnel Services for the Lawrence Public Schools,

explained to the parents that the District will fund only the educational component (at Mill Creek School), not medical expenses. Funding is on a ten month basis. District will support petition to Family Court for summer program but District support is only as a facilitator of forms. Next year it will be necessary to return for review with an update of diagnostic information.

 The minutes further show that the Committee, referring to Mill Creek School, recommended that the School Board "approve educational component for the 1979-1980 school year."

 On August 3, 1979 Mrs. C. Freamon of the School's Office of Pupil Personnel Services sent the parents a copy of a letter dated July 18, 1979 from the New York State Education Department denying approval of the petition to the Family Court required by state law for funding during the summer of 1979. The letter stated that state aid was not approved for Gregg's education from June 25 to August 31, 1979 at the Mill Creek School because the school "has not been approved by the State Education Department to provide the special education program requested for the child." The letter made no reference to public support or the denial thereof for the ensuing academic year. On August 17, 1979 the School's psychologist sent the parents a copy of the minutes of the June 27 meeting that included the recommendation to "approve educational component for the 1979-1980 school year."

 Gregg's parents reenrolled him for 1979-80 at Mill Creek School, where he has remained ever since. They received no further written communication from the Committee or the Office of Pupil Personnel Services during that year. In his affidavit Kuffner asserts that within a month of the June 27, 1979 meeting he told Gregg's parents that the School District could not fund Gregg's education for 1979-80 at Mill Creek School because it lacked state approval. Kuffner further says that the parents told him that they wished to keep Gregg in that school even without reimbursement and declined Kuffner's offer to reconvene the Committee for the purpose of locating a different placement. Gregg's parents deny these statements.

 On August 26, 1980 Kuffner wrote Gilbert Henoch, plaintiff's attorney, that the Committee "did not recommend placement of Gregg ... in the Institute of the Pennsylvania Hospital" because the school did not have state approval. Kuffner did not offer to find another appropriate school but asked the lawyer to call him with any questions. On November 6, 1980 Kuffner informed the Committee of the correspondence with the lawyer. The parents were not present. The recommendation of the Committee was to "close case."


 Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, prohibits discrimination against any "otherwise qualified handicapped individual" in programs receiving federal financial aid. Regulations promulgated under this act require public elementary or secondary schools receiving federal funds to "provide a free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's handicap." 45 C.F.R. § 84.33(a).

 In this circuit one whose rights under section 504 have been violated has a private claim. See, e.g., Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977); Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir. 1977). Moreover, Section 505 of the Rehabilitation Act, 29 U.S.C. § 794a, added by Congress in 1978, makes available to aggrieved persons the "remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964" and ...

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