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February 24, 1983

JOSE P., et al., Plaintiffs,

Nickerson, District Judge.

The opinion of the court was delivered by: NICKERSON

NICKERSON, District Judge

This matter has been the subject of this court's previous memoranda and orders, familiarity with which is assumed. The City Defendants, joined by the State, have moved pursuant to Rule 60(b) of the Federal Rules of Civil Procedure to vacate or modify the judgments filed December 20, 1979 and February 27, 1980. Since the substantive provisions in the two judgments are for the most part identical, they will generally be referred to as the judgment.

 The initial action, Jose P. v. Ambach, was brought on February 1, 1979 by handicapped children alleging that defendants were depriving them of their rights under the Education for All Handicapped Children Act (the Education for Handicapped Act), 20 U.S.C. § 1401 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., the New York Education Law, § 4401 et seq., and the fourteenth amendment to the United States Constitution by failure to provide a free appropriate public education. The defendants conceded failure to comply with the statutory requirements, in that they had not, in timely fashion, evaluated and placed several thousand children.

 Plaintiffs then moved for certification as a class action. The City Defendants conceded the propriety of the class. The State Commissioner opposed on the ground that plaintiffs had failed to exhaust the appeal procedure provided by New York Education Law § 4404. After considering the inefficacy of the administrative remedies, including the issuance of four remedial orders by the State Commissioner, this court, by order dated May 16, 1979, certified the class as including all handicapped children between the ages of five and twenty-one whom the City Defendants had been notified pursuant to state regulations may be handicapped and who had not been evaluated within thirty days or placed within sixty days of the notification. The Court also found that the case was such as to require appointment of a Special Master pursuant to Rule 53 of the Federal Rules of Civil Procedure and appointed Marvin E. Frankel by order dated June 8, 1979.

 In the meantime United Cerebral Palsy of New York City, Inc. (United Cerebral Palsy) and six handicapped children brought suit on March 2, 1979 (79 C 560) on their own behalf and on behalf of a class allegedly deprived of a free appropriate public education. The complaint alleged, among other things, that defendants had failed not only promptly to evaluate and place handicapped children, but to formulate adequate individual educational plans, to provide annual reviews, adequate facilities, special instruction, and related services, and to place students in the least restrictive environment.

 The court, in a memorandum and order dated August 10, 1979, noted that the issues raised by the United Cerebral Palsy complaint went beyond the so-called "waiting list" problem and involved structural problems in existing programs and related services, that these issues were intimately related to those presented in the Jose P. case, and that United Cerebral Palsy counsel had been actively participating in the working sessions before the Special Master. The court therefore deferred a final decision on the certification of the class, the standing of United Cerebral Palsy, and the defendants' request to consolidate, until the court had the benefit of the findings of the Special Master.

 Certain handicapped Hispanic children and Aspira of America, Inc. and Aspira of New York, Inc. brought a similar action on October 12, 1979, Dyrcia S. et al. v. Board of Education, (79 C 2562), alleging that handicapped Hispanic children required bilingual-bicultural special education programs and were not being promptly evaluated and placed. Plaintiffs in this case also participated actively in the proceedings before the Special Master.

 The Special Master made a report dated December 5, 1979, after what he described as "earnest, creative, good-faith labor by counsel for the parties and amici, as well as their clients, to evolve lawful and feasible programs" to achieve the purposes of the lawsuit. With the report he submitted two recommended judgments identical in all substantive respects, one in the Jose P. case and a consolidated judgment in the United Cerebral Palsy and Dyrcia S. cases. The Special Master said the judgment had been "fashioned . . . with relatively minimal participation by the special master" and while "not quite a consent judgment" was "a very close approximation." The City Defendants did not object to the recommended judgment in the sense that they agreed not to appeal unless it were altered in a way urged by the State Commissioner. After entry of the judgment the City Defendants did not appeal.

 The judgment was thus, as the Special Master said, the result of "the remarkably collaborative efforts of counsel and the parties." Indeed, City Defendants even now agree that they participated in drafting the blueprint that subsequently became the judgment. Because of these collaborative efforts the Special Master was not required to hear evidence, to conduct exploratory inquiries, to make factual determinations, or to record rulings on incidental questions of law. As to almost every term of the judgment the parties eventually agreed.

 The judgment declared that defendants had not made available to the plaintiff class a free appropriate public education in a timely manner, thus violating the requirements of federal and New York law and regulations, and that defendants had the responsibility to make available on a timely basis such a free appropriate public education with appropriate related services in the least restrictive environment for the children in the class. The judgment also provided for a remedial plan.


 Although all parties agree that as a result of this litigation improvements have been made in according handicapped children their rights, the City Defendants now, some three years later, contend that the Education for Handicapped Act, the Rehabilitation Act, and 42 U.S.C. § 1983 do not provide a basis for the remedy adopted by the judgment.


 The City Defendants argue that the Education for Handicapped Act does not create a private right of action for "broad-based court-ordered injunctive relief," that, except for judicial review of an individual program under section 615 (20 U.S.C. § 1415), the provisions of the act are enforceable only by administrative agencies, and that mandamus against approprriate federal and state officials to withhold federal funds, after notice and hearing, are the only judicial remedies for violation of the act other than those set forth in section 615.

 This court focused on this argument prior to entry of the judgment. In denying a motion to dismiss the United Cerebral Palsy complaint the court held that plaintiffs had a right to bring the action. The opinion's references to Cort v. Ash, 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), and Cannon v. University of Chicago, 441 U.S. 677, 706, 60 L. Ed. 2d 560, 99 S. Ct. 1946 n.41 (1979), make clear that the court did not decide the necessity of exhaustion in the abstract, but after determining that a private right of action is implied by the Education for Handicapped Act. United Cerebral Palsy v. Board of Education, No. 79 C 560, memorandum and order at 6-7 (Aug. 10, 1979).

 On the appeal of the State Commissioner from the judgment and orders directing payment of attorney's fees, the Court of Appeals for the Second Circuit affirmed this court's holding that plaintiffs, due to the absence of meaningful administrative enforcement, need not exhaust their administrative remedies. The Court of Appeals relied on plaintiffs' assertion of jurisdiction under 42 U.S.C. § 1983 and thus did not pass on whether a private right is implied by the Education for Handicapped Act. Jose P. v. Ambach, 669 F.2d 865 (2d Cir. 1982).

 The City Defendants contend that the law has changed since the decisions by this court and the Court of Appeals, urging that language in Board of Education v. Rowley, 458 U.S. 176, 102 S. Ct. 3034, 3039, 3051-52, 73 L. Ed. 2d 690 (1982), should be read to mean that the act created no private right to a remedy other than the right of a agent or guardian to challenge an individual IEP (individualized educational program) after exhausting administrative remedies.

 In the Rowley case the Supreme Court considered two questions, namely, what was meant by the act's requirement of a "free appropriate public education," and what was the role of state and federal courts in exercising their review granted by section 615. Id. 102 S. Ct. at 3040. The court did not purport to rule on the issue decided by this court. It is hardly fair to read as a rejection of that decision the Supreme Court's language, in describing the text of the act, that "compliance is assured by provisions permitting the withholding of federal funds." Id. at 3039. This court does not so read it.

 Nor does Pennhurst State School v. Halderman, 451 U.S. 1, 67 L. Ed. 2d 694, 101 S. Ct. 1531 (1981), stand for the proposition urged by City Defendants, namely, that the terms of funding statutes cannot create rights enforceable by private third parties. In the Pennhurst case the Supreme Court found a statutory "bill of rights" to be merely hortatory. The Court assumed, on the other hand, that the statute's express conditions on federal funding created substantive rights, although it was not necessary to decide whether those rights could be enforced by private parties. 451 U.S. at 27-30. Thus, City Defendants' argument that a funding statute such as the present one can never be enforced except by fiscal coercion is correct only in the sense that the prospective force of the judgment, insofar as it is based on the Education for Handicapped Act, cannot survive the State's decision to terminate its participation in the program. Should the State make that decision, defendants would be free to renew their attack on the judgment.

 Since the cases cited by the City Defendants are not inconsistent with the law of this case, this court finds no reason to reconsider its holding that the Education for Handicapped Act creates a private right of action apart from section 615, upon which plaintiffs initially eschewed reliance. Even if that holding were wrong it would not matter. New York allows administrative appeals (under section 615 of the Education for Handicapped Act and section 4404 of the state Education Law) to be pursued as class actions that seek broad injunctive relief to reform structures and policies. See part D infra. It would be strange if parents who pursued their administrative remedies in class action form were for that reason to be deprived of their judicial appeal under section 615. The text of that section does not expressly purport to disallow such an appeal. At each level, "any party aggrieved by the findings and decision" may appeal to the next, 20 U.S.C. § 1415(c), (e)(2). Moreover, there is legislative history which if not read to support a private right implied by sections 612 through 614, at least supports the appeal of administrative class actions under section 615. 121 Cong. Rec. 37,416 (1975) (statement of Sen. Williams) (each member of class need not exhaust remedies). Since the complaints amply allege jurisdiction, it is of no moment whether they invoke section 615. See F.R.C.P. 8(a); cf. 28 U.S.C. § 1653; F.R.C.P. 15(b).

 Since exhaustion of remedies has been excused in this case, there is no apparent importance to whether the judgment rests on an implied right, or the express one in section 615. It is implicit in the court's United Cerebral Palsy opinion of August 10, 1979, that Congress intended beneficiaries of the Act to be able to challenge system-wide violations in court.


 The City Defendants also contend that Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, does not permit the "affirmative action" ordered in the judgment and that the federal regulations, 45 C.F.R. Part 84, interpreting the Rehabilitation Act to guarantee a free appropriate public education, are invalid since they purport to grant more than Congress intended.

 Section 504 of the Rehabilitation Act provides, in pertinent part, that "no otherwise qualified handicapped individual . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794.

 Both this court and the Court of Appeals for the Second Circuit recognized that plaintiffs had a private claim under this section, 669 F.2d at 871 & n.4. The Court of Appeals thereafter, in a case involving the extent to which urban transit facilities must be made available to the handicapped, reaffirmed that "if plaintiffs can prove a violation of section 504, the District Court has inherent power to fashion relief appropriate to the situation." Dopico v. Goldschmidt, 687 F.2d 644, 650 (2d Cir. 1982). The opinion in that case distinguished Southeastern Community College v. Davis, 442 U.S. 397, 99 S. Ct. 2361, 60 L. Ed. 2d 980 (1979), which held that a state college whose nursing program required of an applicant the ability to hear was not obliged by "affirmative action" to effect "substantial modifications" of its program to accommodate a deaf person. As the Dopico decision noted, the phrase "otherwise qualified" in section 504 was construed by the Supreme Court to mean "one who is able to meet all of a program's requirements in spite of his handicap." 442 U.S. at 406. Thus Davis was held not "qualified" to enter a nursing program.

 But ever since Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania, 334 F. Supp. 1257 (1971), 343 F. Supp. 279 (E.D. Pa. 1972), and Mills v. Board of Education of the District of Columbia, 348 F. Supp. 866 (D.D.C. 1972), it has never been considered that handicapped children were "unqualified" to receive an appropriate public education. Those cases were decided before the enactment of section 504. Moreover, the Education for Handicapped Act made it clear that Congress recognized that, far from being "unqualified" for a public education, a handicapped child had a right to an appropriate public education. Thus, extensive modifications which might be "substantial" in other contexts may be reasonable efforts to educate handicapped children. To the extent that the Davis opinion rests on the premise that the applicant was "unqualified" by her very handicap to meet the nursing program's requirements, the decision does not bear on the present case.

 As the Dopico opinion points out, to say that plaintiffs have a private right of action under section 504 does not establish the extent of the relief to which they are entitled. There remain economic and administrative issues. Burdens out of all proportion to the end to be served should not be imposed. The requirements of the present judgments were drafted by and acquiesced in by the City Defendants. That is persuasive evidence that they did not impose intolerable administrative and financial burdens on the City Defendants. Whether as a matter of equity the judgment should be amended is another question.


 The City Defendants also contend that 42 U.S.C. § 1983 has not been properly invoked by the plaintiffs. Since this court has determined that plaintiffs' claim may be asserted under the Education for Handicapped Act and section 504 of the Rehabilitation Act, the court need not consider whether 42 U.S.C. § 1983 affords an independent basis for relief or to what extent Maine v. Thiboutot, 448 U.S. 1, 65 L. Ed. 2d 555, 100 S. Ct. 2502 (1980), has been qualified by Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, ...

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