Appeal and cross-appeal from a final judgment and order entered against the state in an action brought in the United States District Court for the Western District of New York (Curtin, C.J.), granting plaintiff declaratory and injunctive relief under the Education of the Handicapped Act, 20 U.S.C. § 1400 et seq. (1982), to effect her placement at an unapproved private school and require tuition reimbursement for her parents.
Cardamone, Winter and Miner, Circuit Judges.
John M. Antkowiak commenced an action on behalf of his daughter, plaintiff-appellee Lara Antkowiak, in the United States District Court for the Western District of New York (Curtin, C.J.) against defendant-appellant Gordon M. Ambach, as Commissioner of the New York State Education Department ("SED"). The complaint asserted claims under the Education of the Handicapped Act ("EHA" or "the Act"), 20 U.S.C. § 1400 et seq. (1982); the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1982); and 42 U.S.C. § 1983 (1982) for violation of plaintiff's rights under the EHA and fourteenth amendment due process and equal protection clauses. Plaintiff sought declaratory and injunctive relief to effect a state placement of Lara at an unapproved out-of-state facility and reimbursement from the state for her private placement there.
After a bench trial, the district court granted judgment pursuant to the EHA in favor of plaintiff. Defendant appeals from this judgment. We reverse.
Since the age of ten, Lara Antkowiak has suffered from emotional disturbances and anorexia nervosa. She became anxious and upset about her schoolwork, although she was a bright child with an I.Q. of 143. Lara's schooling was disrupted by three lengthy stays at Strong Memorial Hospital ("Strong" or "the hospital") in Rochester between October 1983 and May 1985, necessitated by her condition. During this period, her ability to function educationally declined to the point that even efforts by the hospital's special education teacher to tutor her individually failed. Lara regularly refused to attend class. Even when she did, Lara stared out the window, was unresponsive, and occasionally became hostile.
In late 1984, Lara's parents, at the hospital staff's suggestion, applied to the Buffalo City School District Committee on the Handicapped ("COH") to arrange for an appropriate special education placement for Lara upon her discharge from Strong. After initially rejecting the application, the COH, upon further investigation, on February 27, 1985 found that Lara could not function in a regular classroom. Accordingly, the COH developed an individualized education plan ("IEP") for Lara and recommended placement for her at a residential educational facility. Rosalie Wiggle, coordinator of the COH, made six applications to in-state residential facilities, but each refused to accept Lara. The COH then applied to the Hedges Treatment Center ("Hedges") of the Devereux Foundation in Malvern, Pennsylvania, which accepted Lara. Therefore, on March 21, Ms. Wiggle applied to the SED for the Commissioner of Education's approval of a contract with Hedges.
Pursuant to an earlier telephone conversation, Edward McDonald, a regional associate of the SED in the Office for the Education of Children with Handicapping Conditions, notified Ms. Wiggle on April 17, 1985 that Lara's placement at Hedges would not be approved because the SED had imposed a moratorium on new admissions there. The regional associate recommended three approved in-state facilities, and Ms. Wiggle applied to them. Each declined to accept Lara.
While the COH was seeking a placement for Lara, Strong informed her parents that Lara no longer needed acute medical treatment and would be discharged by April 24. In response, on April 23 Dr. Antkowiak brought an action on behalf of his daughter in the Western District of New York, in which he sought an order forcing the SED to place Lara at Hedges and interim injunctive relief preventing Strong from discharging Lara until an alternative placement was found. Thereafter, Dr. Antkowiak visited two residential treatment facilities at the SED's suggestion, but each of them determined that they could not meet Lara's needs. Ms. Wiggle did not seek further recommendations from the regional associate after both the COH and the Antkowiaks had looked into those facilities suggested by the SED, because Dr. Antkowiak placed Lara in Hedges at his own expense on May 15, 1985. Lara received academic instruction in the Devereux Day School at Hedges. After Lara's placement, the complaint was amended, and Strong was dismissed as a defendant in the suit.
Plaintiff moved for a preliminary injunction to require the SED to approve Lara's placement. On November 4, 1985, the district court denied this motion. 621 F. Supp. 975 (W.D.N.Y. 1985). Chief Judge Curtin found that Lara had not exhausted state administrative remedies first as the EHA requires, since the SED had made no formal adjudication of Lara's case in rejecting the COH's recommendation. Id. at 979. He ordered plaintiff to "immediately resume the state administrative process." Id. at 980.
The Antkowiaks thus sought a hearing through the board of education as required by law. See N.Y. Educ. L. § 4404(1) (McKinney 1981). The school district and Lara's parents stipulated that Lara was emotionally disturbed and needed placement at Hedges. The hearing officer found Lara in need of a residential placement, agreed with the COH's recommendation and, on December 26, 1985, ordered Lara's placement at Hedges. On January 24, 1986, the SED advised the school district that the placement could not be approved. Although Hedges was by then once again on the SED's approved list, it was approved only for children at least 14 years old, and Lara was only 12. Further, the Devereux Day School at Hedges had never been approved by, or even sought approval from, the SED.
Plaintiff renewed the application for a preliminary injunction. The SED opposed the motion, contending that administrative remedies had not been exhausted through an appeal to the Commissioner. The district court found that neither the school board nor the Antkowiaks wanted to appeal the hearing officer's findings or decision, and thus neither was obligated to seek review by the Commissioner. See CIV-85-532C, slip op. at 4, 7 (W.D.N.Y. Feb. 3, 1986) (decision and order). Chief Judge Curtin found that the Antkowiaks had satisfied EHA exhaustion requirements and ordered the Commissioner to show cause why the injunction should not issue. Id.
On February 11, 1986, the Commissioner issued an order to show cause why the hearing officer's decision should not be annulled. The district court deferred any further action pending the Commissioner's decision. CIV-85-532C, slip op. at 5 (W.D.N.Y. Feb. 27, 1987). On March 14, 1986, the Commissioner annulled the hearing officer's decision, finding that Lara had no "educationally handicapping condition" as defined in N.Y. Comp. Codes R. & Regs. tit. 8, § 200.1(cc)(2), 638 F. Supp. at 1583 (Appendix 2) ...