Interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), from an order of the Northern District of New York, Howard G. Munson, Chief Judge, denying defendants' motion to dismiss plaintiffs' claims under 20 U.S.C. § 1400 et seq., 29 U.S.C. § 794, and 42 U.S.C. § 1983. Affirmed. Judge Weis dissents in a separate opinion.
Oakes, Pratt and Weis,*fn* Circuit Judges. Weis, Circuit Judge, dissenting.
Defendants appeal by permission granted under 28 U.S.C. § 1292(b) from an order of the Northern District of New York, Howard G. Munson, Chief Judge, denying defendants' motion to dismiss plaintiff's complaint seeking damages under the Education of the Handicapped Act, 20 U.S.C. §§ 1400 et seq. (EHA), the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., and the Civil Rights Act of 1871, 42 U.S.C. § 1983. Plaintiff brought the action on behalf of herself and her infant son, Jason Gambee, a handicapped child, seeking damages from the defendant school district and one of its administrators, Caspar Rowlind, who at all relevant times was chairman of the school district's Committee on the Handicapped (COH), for depriving Jason of his federally guaranteed "right to a free appropriate public education". 20 U.S.C. § 1412(1).
Since the issue before us is whether the court below erred in denying the motion to dismiss, we accept as true, for purposes of the appeal, the facts alleged in the complaint. Those facts and the reasonable inferences to be drawn therefrom can be stated briefly. Jason was placed in a regular kindergarten class in the defendant district in September 1978, although the district then knew or should have known that he was a handicapped child in need of special educational services. Plaintiff Quackenbush, Jason's mother, took no action at that time because district employees told her to wait until the following year. However, during the following year Jason repeated kindergarten, again in a regular classroom setting.
Concerned about her son's lack of progress in the second year, Quackenbush had Jason evaluated by a psychologist who recommended that he be classified as learning disabled. A copy of the psychologist's evaluation was sent to the district's COH in April 1980. In June 1980 Quackenbush requested that Jason be reviewed by the COH. Immediately thereafter, defendant Rowlind came to Quackenbush's home with a "parental permission form" which Quackenbush filled in. On instructions of defendant Rowlind, Quackenbush left blank the area to be checked with respect to giving permission to conduct an evaluation of Jason. Rowlind took the form.
Although the complaint does not allege what action the school district took on plaintiff's request for special services, we infer that the district took no action whatsoever from that time forward. We also infer from the allegations that the district took no action on the request because Rowlind, without plaintiff's authority, put a check mark on the form in the box indicating that she denied the district permission to conduct an evaluation of Jason. Plaintiff alleges that Rowlind altered the form "for the sole purpose of denying [Jason] the special education he is entitled to." She further alleges that he acted pursuant to a policy of the defendant school district to refuse special education to handicapped children for financial reasons. As a result Jason was denied the special education to which he was entitled, suffered damages to his intellect, emotional capacity, and personality, and was impeded in acquiring necessary training. In addition, plaintiff alleges that she moved to a different school district to get the services Jason needed and that she herself suffered emotional distress.
Plaintiff seeks damages under five causes of action: (1) that defendants' failure to properly and timely identify Jason as a handicapped child and to provide him with special education violated plaintiff's rights under the EHA; (2) that defendants' actions violated Jason's rights under the Rehabilitation Act; (3) that defendants' actions, taken under color of law, deprived Jason of his right to "an appropriate public special education" pursuant to a policy of refusing to provide learning disabled children with the special services they require; (4) that defendants' actions created two classes of learning disabled children, those who receive special education and those who do not, thereby depriving Jason of equal protection of the law; and (5) that defendant Rowlind's false and malicious conduct in cheating plaintiff and Jason of their rights violated the constitution.
Defendants moved in the district court to dismiss the complaint, arguing that plaintiff's claim that Jason was denied needed educational services did not state a claim under 42 U.S.C. § 1983, that plaintiff failed to exhaust her administrative remedy, and that the EHA provided an exclusive remedial scheme which plaintiff could not circumvent either by moving to another school district or by asserting her claims under § 1983.
The district court denied defendants' motion to dismiss and held that plaintiff had sufficiently alleged claims under § 1983. After noting that § 1983 permits a litigant to recover for the deprivation of any federal right whether rooted in statute or constitution, the district court addressed the deprivations alleged under the EHA, the Rehabilitation Act, and the due process and equal protection clauses of the constitution.
As to the EHA, the district court found sufficient the broad assertion that defendants were on notice that Jason had a handicapping condition but did nothing. As to the Rehabilitation Act, the court stated, inaccurately, that the complaint alleged that Jason had been excluded from the public schools solely because of his learning disability. Actually, the complaint does not allege exclusion from the public schools, but only exclusion from "a free and appropriate special education". As to the constitutional claims, the court found, without analysis, sufficient allegations of violations of procedural due process and equal protection guarantees to support a § 1983 action. The district court also rejected defendants' argument that plaintiff was required to exhaust available administrative remedies because it found that plaintiff, having left the school district, had no administrative remedies to exhaust and that damages, the only relief sought by plaintiff, were not available through the administrative process.
Finally, the district court addressed defendants' contention that the EHA provides an exclusive injunctive remedy which bars use of enforcement through § 1983. Relying primarily on the "plain language of the statute" that under the EHA the court "shall grant such relief as [it] determines is appropriate", the district court rejected the conclusion of the Seventh Circuit in Anderson v. Thompson, 658 F.2d 1205 (7th Cir. 1981), and held that the EHA remedy was neither exclusive nor limited to injunctive relief. On the contrary, the district court held, violation of plaintiff's rights under the EHA may give rise to a cause of action for damages that is enforceable under § 1983. Accordingly, the district court denied defendants' motion to dismiss.
On defendants' request, the district court amended its order and certified, pursuant to 28 U.S.C. § 1292(b), that the order involved controlling questions of law as to which there is substantial ground for difference of opinion, and that an immediate appeal would materially advance the ultimate termination of the litigation. The specific legal questions identified were:
(a.) whether the [EHA] provides an exclusive private right of action for complaints involving educational services for handicapped students;
(b.) whether the [EHA] provides to aggrieved plaintiffs as an exclusive remedy for its violation injunctive relief only, with no right to compensatory damages or attorneys' fees; and
(c.) whether administrative remedies need not be exhausted when plaintiffs no longer reside in the defendant-school district.
In its order of amendment the district court noted that both the Seventh Circuit in Anderson v. Thompson, and another judge of the Northern District of New York in Davis v. Maine-Endwell Central School District, 542 F. Supp. 1257 (N.D.N.Y. 1982), had held that the remedy provided under the EHA is ...