Opposition Brief — Barnett ex rel. Barnett v. Fairfax County School Board

No. 91-62

In THE

Supreme Court of the Anited States

OcTOBER TERM, 1991

MICHAEL W. BARNETT, et al.,

Petitioners,

Vv.

FAIRFAX COUNTY SCHOOL BOARD,

Respondent.

ON PETITION FOR CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

THOMAS J. CAWLEY

(Counsel of Record)

JOHN F. CAFFERKY

STUART A. RAPHAEL

HUNTON & WILLIAMS

3050 Chain Bridge Road

Fairfax, Virginia 22030

(703) 352-2200

Counsel for Respondent

Fairfax County School Board

Acgust 8, 1991

QUESTIONS PRESENTED

1. Whether a local school board that offers an admittedly

appropriate and high-quality special education program to a small

number of students in a centrally-located regular school is

compelled by the Individuals with Disabilities Education Act

(formerly the Education of All Handicapped Children Act,

“EHA”), or by § 504 of the Rehabilitation Act of 1973 (“§ 504”),

to duplicate that program for a single student at another schoo! that

is located a few miles closer to the student’s home.

2. Whether a local school board that has always provided an

appropriate and high-quality special education program enabling a

hearing-impaired student to be completely mainstreamed at a

regular high school near his home, should be liable for over

$100,000 in tort damages under the EHA, § 504, or 42 U.S.C.

§ 1983, solely on account of that student’s alleged emotional

distress at not having the program duplicated for him at the school

Closest to his home.

3. Whether this Court’s holding in Lytle v. Household

Manufacturing Co. requires reversal of the Court of Appeals’

decision, even though the material facts relating to the School

Board’s compliance with the EHA and § 504 were not in dispute,

and neither the EHA nor § 504 provides for a trial by jury.

4. Whether the Court of Appeals correctly held that the

Petitioners had the burden of proving that the School Board

violated the EHA and § 504.

TABLE OF CONTENTS

Page

SI Ue IT IED sccssccccrcoesesonsonscsonedenseoinmmnenninnts i |

RE GPE TII UTE snocsccensncccesnéscenasenetesninmaionanmmanaiaaa ii

Fe ee Pe ED senreccsnscerencssrtecseninntaniennienn iv

GROUNDS OF JURISDICTION ccccccccccessocecscsccccsseccsessosssees |

STATEMENT OF THE CASE ...cccsocssccvoscsesssseoccscevoseeseoesees 2

DUREGARY OF ARGUMENT ccccccccccscesccsesescocessensccovcccosssoes 7

FE ITTE ccictnvvrinsciniésescnticchiddlintiinshiainiamiiammiieniidmsaelads 8

I. The School Board Complied with the EHA by

Offering Michael Cued Speech Services at

FUE | sscictvnstsccvetinicticinnseiscntsbimbpavinnscetsnanesse 8

A. The School Board’s Program at Annandale

Enabled Michael to be Fully Mainstreamed in

0 TRIE IIS -cocncesssintessiccnisanaiccmeenintinniercss 8

B. The School Board Fully Met Its Obligation to

Offer a Placement Based Upon Michael’s

Sy PIED - ccccntnictsstiansoeenbanenvintiaepnesiotospers 11

II. The School Board Complied with § 504 .................. 12

A. Michael Was Not Excluded from Any

UIINED vnshiscitecinindsiuctiigidaabatanidsatsinimmaceniectinerse 12

B. Compliance with the EHA’s Educational

Placement Requirements Conclusively

III. Monetary Damages for Alleged Emotional

Distress Cannot be Awarded in This Case .............

A. The EHA Precludes Recovery of Tort

EEE

B. Damages for Emotional Distress are Not

|

C. The HCPA Does Not Make Tort Damages

Available Under § 1983 for Violations of the

tic enscenencenroceves

1. Section 1983 Does Not Allow This Solely

ITED <.ccocvscecdesveceseuveseveveenesouee

2. Petitioners Cannot Utilize § 1983 to Obtain

Remedies Inconsistent with the EHA and

ES ee

IV. The Court of Appeals’ Decision Comports with

Lytle v. Household Manufacturing. .............000.000+

V. The Petitioners Properly Bore the Burden of

(iii)

SOCCER EEE E EEE EEE EEE EEEH TET E EEE EET SEE TES EEEEEEEEEEEEEE SEES

=

TABLE OF AUTHORITIES

CASES: Page

Alexander v. Choate, 469 U.S. 287 (1985) .............-+. 13-14

Anderson v. Thompson, 658 F.2d 1205 (7th Cir.

RR SRRREEIA SIE NINE CED enfin nen en 16-17

Atlas Roofing Co. v. Occupational Safety and

Health Review Comm’ n, 430 U.S. 442 (1977)............ 25

Begay v. Hodel, 730 F. Supp. 1001 (D. Ariz. 1990) ........ 21

Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388

CRE dbaincasindiecasasiaiidiabedinasauhdndssbanennecesecce 16, 21, 23

Board of Educ. v. Diamond, 808 P26 987

EERE Re! Ce 21

Bowen v. American Hosp. Ass’ n, 476 U.S. 610

a rildcahididlanpieintdiansnibieiitinttenatbenibtnesantysenevencsescers 14

Carey v. Piphus, 435 U.S. 247 (1978) ..........:cccccceeeeeeeeeeeee 23

Consolidated Rail Corp. v. Darrone, 465 U.S. 624

SERINE “aiercalaahaeeeaatbulllisiadaptadilinisenisedsentnenstnntcleiressoosees 17-19

Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036

I sila ctetertieeisercesrentancoccosoccoves 10

Darlene L. v. Illinois State Bd. of Educ.,

568 F. Supp. 1340 (N.D. Ill. 1983) 2.0.0... eeeeeeeeee 15

Davis v. Passman, 442 U.S. 228 (1979) oo... eeeeccceeeeeeeeeees 16

Delimuth v. Muth, 491 U.S. 223 (1989) ........ccececeseeereeeee 19

Department of Educ. v. Katherine D., 727 F.2d

809 (9th Cir. 1983),cert. denied, 471 U.S. 1117

CARIES: |< ceplacthlsheclascinislnslanitenaeeightseiasnshusesantenpiovercccece 10-11

DeVries v. Fairfax County School Bd., 882 F.2d

I iiichdicdatsnidtcenntctenssnceasoreveceeces 9,14

Digre v. Roseville Schools Indep. School Dist.,

eee 21

Golden State Transit Corp. v. City of Los

Angeles, 110 S. Ct. 444 (1989) 200... cceeeessseseeeeeeeeeeees 19

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33

7 aiecidicintiadsaidinetiiiadcidtaidainiinslendpeomininesevindzmieccnveen 25

Grymes v. Madden, 672 F.2d 321 (3rd Cir. 1982) ............ 26

Guardians Ass'n v. Civil Serv. Comm’ n of

New York, 463 U.S. 582 (1983) ...........cecceeeseeeeees 18, 23

(iv)

Hall v. Vance County Bd. of Educ., 774

Pee I BD citrteticcccceccccscocsccccrrescecee 16-17

Hendrick Hudson Dist. Bd. of Educ.

v. Rowley, 458 U.S. 176 (1982) ..............0.+ 9, 11, 25-26

Honig v. Doe, 484 U.S. 305 (1988) 2000.22... eceeceeeeseeeeeneees ]

Kampmeier v. Nyquist, 553 F.2d 296

STE DUPE ali taicadinisdtiiababtebencecesncecescesereossosescserouss 27

Karahalios v. National Fed’ n of

Fed. Employees, 489 U.S. 527 (1989) .......:.cccccsesceeeees 23

Keller v. Prince George's County, 923

en 25

Lachman v. Illinois State Bd. of Educ.,

852 F.2d 290 (7th Cir.),cert. denied, 488

EE 9,12

Lawson v. Edwardsburg Pub. School, 751

FP. Sepp. 1257 CW.D. Mich. 1990) .......ccccsoseccsescccseeees 21

Lytle v. Household Mfg., 494 U.S. 545 (1990) ............ 24-25

Maine v. Thiboutot, 448 U.S. 1 (1980) .0.........ccceceeeeeeeeeeee 19

Middlesex County Sewerage Auth. v. National

Sea Clammers Ass’ n, 453 U.S. 1 (1981) .............. 19, 22

Mrs. W. v. Tirozzi, 832 F.2d 748 (2d Cir. 1987) .............. 21

New York State Ass'n for Retarded Children

v. Carey, 612 F.2d 644 (2d Cir. 1979) .0......ccccceeeeeeeee 26

Pennhurst State School and Hosp. v.

Halderman, 451 U.S. 1 (1981) ......cccceceeseeeeeseeeeeeeeees 19

Pinkerton v. Moye, 509 F. Supp. 107 (W.D. Va.

EE EL 2 Ee Le 10

Roncker v. Waiter, 700 F.2d 1058 (6th Cir.), cert.

denied, 464 U.S. 864 (1983) .........cccccccccsssssrrrrceeeees 9,11

S-1] v. Turlington, 635 F.2d 342 (Sth Cir.), cert.

PS | Fee 26

School Bd. of Nassau Co. v. Arline, 480 U.S.

I a a a oroncennenonnte 13-14

School Comm. of Burlington v. Department

rg Ei Rie & . 1, . ) noe 15-16

Schweiker v. Chilicky, 487 U.S. 412 (1988) ...........:::ccee00e 16

Smith v. Robinson, 468 U.S. 992

STEN > daldalntsciasiantdaesmbiaedapebieencsiodectats 13-14, 19, 20-22

Southeastern Community College vy. Davis,

GES Us BEF CRP TED cxcenvecreservevesenasoversecscovecscosesees 12-14

Spielberg v. Henrico County Pub. Schools,

853 F.2d 256 (4th Cir. 1988), cert. denied,

EE 26

St. Louis Developmental Disabilities Treatment

Center Parents Ass'n v. Mallory, 591

F. Supp. 1416 (W.D. Mo. 1984), aff d, 767

Ee 14

Transamerica Mortgage Advisors, Inc. v. Lewis,

EEE 16

Trouwnan v. School Dist. of Greenville County,

EHLR Dec. $54:487 (D.S.C. 1983) .....ccccccccsoeccseesoee 10

Wilder v. Virginia Hosp. Ass’ n, 110 S. Ct.

ed sdanesebesscncenocerevenese 19

Wimberly v. Labor & Indus. Relations Comm'r

of Missouri., 479 U.S. 511 (1987) ......ccesseeeseeeeeeeeees 14

STATUTES:

pk ee 2

Fe ee I CD venieceseresecssecevsvceesscooeeersorevens 9

po LR Pom Bg le an 24, 25

20 U.S.C. § 1415(€)(4)(B)-(G) (1988) ..........seeeseeseeeeeeeees 20

20 U.S.C. § 1415(EM4 KC) (1988) ...........cccrscccrscessccesesees 22

20 U.S.C. § TTS) CIGEB) ....00000000scerccecesreccsseescese 22

p en 20

Fe ae ID vv evennesesnccsvoewegeapescoveserevonseree 18

Fe es ID vctncvvvencsspoeesesnesosncseesessosesocesovse 20

ON a res cincvenicscenxsesenceesenseesnsescneneeee 20

Handicapped Children’s Protection Act of 1986,

Pub. L. No. 99-372, 100 Stat. 796 ............ceeeeees 19-23

Section 1 of the Civil Rights Act of 1871,

ee I a cainvcievessencescivorecrvenceses passim

§ 504 of the Rehabilitation Act of 1973,

Be cieesatierurisserecereseeevecsvesses passim

LEGISLATIVE AUTHORITIES: Page

132 Cong. Rec. $9,277 (daily ed. July 17, 1986) .............. 21

H.R. Conf. Rep. No. 687, 99th Cong., 2d Sess. 7,

reprinted in 1986 U.S. Code Cong. & Admin.

Ee eiiieiatetatdiltbdinadahndanrbenssnapuecovenreevscccecescoreese 23

H.R. Rep. No. 40, 102d Cong., pt. 1 (1991)..........::ccccseeee 23

H.R. Rep. No. 40, 102d Cong., pt. 2 (1991).........:ccccccceeeee 23

H.R. Rep. No. 296, 99th Cong., Ist Sess. (1985) .............. 22

S. Rep. No. 112, 99th Cong., 2d Sess., reprinted in

1986 U.S. Code Cong. & Admin. News 1798 ...... 20, 22

REGULATIONS:

poe Re | 15

re ID wecseirereccecenesenccvenveevoccovevttitsn 14

ee OR ne 14-15

IID crcctersveevceseseceveceseseevesonnens 14

Fe ED civscerersecesasvesveesrusenvensosenenens 15

ee itrrtecttipeenescovsonncessnsieceneesentncosonees 15

ee I srctscvscerseneveseveseennessnnesterecevenses 15

Fe ee EE crceecncesersecesnzsesssesencesnveveeses 10, 15

Regulations Goveming Special Education Programs

for Handicapped Children and Youth in Virginia........ 1]

MISCELLANEOUS:

Sido & King, Monetary Remedies Under the Education

of All Handicapped Children Act: Toward a New

Civil Rights Act, 23 Tort Ins. L. J. 711 (1988) ............ 20, 22

(vil)

pons . eo ee

No. 91-62

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

MICHAEL W. BARNETT, et al.,

Petitioners,

Vv.

FAIRFAX COUNTY SCHOOL BOARD,

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

The Fairfax County School Board (the “School Board”), files

this Brief in Opposition to the Petition for Writ of Certiorari to

respond to the arguments raised by the Petitioners, Michael

Bamett (‘Michael’) and his parents.

GROUNDS OF JURISDICTION

Michael graduated from high school in June, 1991. He is no

longer entitled to educational services from the School Board, and,

therefore, his claim for injunctive relief is moot. Honig v. Doe,

484 U.S. 305, 317-18 (1988).

For the reasons set forth in this Brief in Opposition, and in the

opinions of the Court of Appeals and District Court below,

Michael has no right to recover monetary damages for emotional

distress.

STATEMENT OF THE CASE

(1) Nature of the Case

This is an appeal by a profoundly hearing-impaired young

man, Michael Bamett, and his parents, from the adverse decisions

of a State Administrative Hearing Officer, the District Court, and

the U.S. Court of Appeals for the Fourth Circuit. The Petitioners

object to the School Board’s special education placement of

Michael. They concede that the special education program offered

by the School Board was not only appropriate but of “high

quality.” Nonetheless, they contend that the School Board was

legally required to duplicate this program at a school slightly

closer tc their home. They seek more than $100,000 in “emotional

distress” damages because the School Board did not agree to do

so.' They assert purely statutory claims based on the Individuals

with Disabilities Education Act (formerly the Education of the

Handicapped Act), 20 U.S.C. §§ 1400-1485 (1988) (the “EHA”);

§ 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988)

(“§ 504”); and Section 1 of the Civil Rights Act of 1871, 42

U.S.C. § 1983 (1988) (“§ 1983”).

(2) Course of Proceedings

Petitioners instituted an administrative hearing in 1988 to

challenge the School Board’s refusal to duplicate its Cued Speech

program at Michael’s base school. Although a local hearing

officer ruled in their favor, the State Administrative Hearing

Officer reversed. Petitioners then filed their Complaint in federal

district court in April, 1989, appealing the decision of the State

Administrative Hearing Officer.

' Petitioners now try to couch this case as a demand for interpreter service

only, but that was not the basis upon which it was litigated. From their initial

request to the school system, throughout the administrative hearing, and in their

Complaint, Petitioners sought to compel the School Board to duplicate the

entire program, including interpreter service, resource assistance, and speech

therapy. Petitioners did not seek reimbursement for any private interpreter

services.

2.

Petitioners sought mandatory injunctive relief to compel the

School Board to provide Michael at his base school all the services

that he had been receiving at the mainstreamed but centralized

program. Petitioners also sought monetary damages for emotional

distress in excess of $100,000.00.

On August 25, 1989, the District Court struck Petitioners’

damages claims and demand for a jury trial, allowing the claims

for equitable relief to go forward for a bench trial. The case was

tried on August 30, 1989. On September 7, 1989, the court issued

Findings of Fact and Conclusions of Law. It held that the School

Board had offered Michael an appropriate education in the least

restrictive environment.

In a per curiam opinion, the Court of Appeals for the Fourth

Circuit affirmed the District Court’s ruling that the School Board

was not required to duplicate the Cued Speech program at

Michael’s base school under either the EHA or § 504.

Following the adverse judgment of the District Court,

Petitioners voluntarily withdrew Michael from the Cued Speech

program. In June, 1991, Michael graduated from high school and

received a regular high school diploma.

(3) Statement of Facts

Michael is an eighteen-year-old young man who suffers from

profound hearing loss. While in elementary and secondary school,

he was eligible for special education as a “hearing-impaired”

student.

At the time Michael began first grade, the Fairfax County

School Board offered a choice of two methodologies to hearing-

impaired students: the traditional “Total Communication”

approach (in which communication takes place in signed English),

and the “Auditory/Oral” approach (in which communication takes

place strictly by the use of lip-reading and residual hearing).

Several parents, including Michael’s, requested that the School

Board develop a third program utilizing the relatively new and not

widely employed “cued speech” methodology. This method uses

an interpreter to repeat the words spoken by the classroom teacher

and to provide manual cues to assist the hearing-impaired student

to read the interpreter’s lips.

ei el |

The School Board responded by creating its Cued Speech |

program at a network of centrally-located regular schools at the

elementary, intermediate (seventh and eighth grades) and high-

school levels. The schools are situated close to one another and to

major transportation arteries. They make up a natural feeder

network so that students may advance through the grades together

with their non-handicapped classmates.

Michael thrived in the Cued Speech program, earning high

grades and making friends. With the assistance of Cued Speech

interpreters, resource teachers and speech and language therapy,

Michael gradually spent more and more time in regular,

“mainstream” classes. By eighth grade, Michael was main-

Streamed for all of his academic classes, and he generally received

grades of “A” or “B” in all subjects.

Michael remained in the Cued Speech program when he

entered high school. The Cued Speech program at the high school

level was located at Annandale High School (“Annandale”), one of

Fairfax County’s 24 regular high schools. During his ninth and

tenth grade years at Annandale, Michael took a rigorous academic

program entirely in regular classes with non-handicapped students.

Michael excelled at Annandale. He continued to do well in his

classes, and he participated in demanding extracurricular activities

as a member of the baseball and basketball teams. Michael |

testified that he got along well with his classmates and teammates,

and continued to be motivated in sports and in school.

Nonetheless, Michael and his parents preferred that he attend

West Springfield High School (“West Springfield”), which was

located five miles closer to Michael’s home than Annandale.

Michael’s parents demanded that the School Board duplicate the

Cued Speech program at West Springfield (including the

interpreter services, resource teachers, and speech and language

therapy). The School Board could not comply with this demand.

Its decision to centralize some of its programming to serve the

needs of some special education students was compelled by

several educational and practical factors.

First, centralizing the specialized personnel and resources

enabled the School Board to offer a selection of programs and

services it could never otherwise provide. Fairfax County is one

of only five school districts out of 14,000 nationwide that offers a

~

choice of three different methodologies for teaching hearing-

impaired students.

Second, the School Board’s Cued Speech program is a

comprehensive, integrated program that involves much more than

interpreter services. Students receive speech and language therapy

from a certified clinician, and resource assistance from specially

trained teachers of the hearing-impaired. The program is overseen

by a single administrative staff that hires, trains and schedules

interpreters. The staff also monitors and supervises all the

resource teachers, therapisis, audiologists, and other personnel.

This supervision ensures the continued high quality of the program

and could not be maintained if the services were spread out among

the many individual schools around the county.

Third, centralization permits the limited number of qualified

interpreters to be shared. In the Cued Speech program, for

example, there are only three full-time interpreters, five part-time

interpreters and one substitute to serve the 22 cued speech students

at the preschool, elemeniary, intermediate, and high school levels.

Similarly, only 12 sign-language interpreters are available to serve

the 56 hearing-impaired students in the Total Communications

program.? Centralizing these programs allows the limited number

of available interpreters to serve all of the students who need

them.’ This is critical, since students in the Cued Speech and

Total Communication programs come from base schools not only

from across Fairfax County but from other jurisdictions as well.

In addition, the central location permits interpreters to substitute

for one another in the event of absences, or to substitute at the

other schools where Cued Speech programs are located.

2 These constraints are not unique. The School Board knows of no school

system in the country that provides full-time cued speech interpreter service to

students in their base schools. The testimony of Elizabeth Fleetwood, upon

which Petitioners’ rely for the notion that the school system in Montgomery

County, Maryland, provides interpreters for students in their base schools, in

fact supports the opposite conclusion. Ms. Fleetwood testified that

Montgomery County has a center-based Cued Speech program. Her daughter

received interpreter service there only part-time, not full ume as Michael did.

Ms. Fleetwood knew of no student who received full-time interpreter service in

his base school.

> Because there are more cued speech students than interpreters, students in the

program do not have one “dedicated interpreter” who could just as easily be

ee vv: "

The Petitioners do not dispute that qualified interpreters are in

short supply. Witnesses for both Michael and the School Board

described the many ways in which the School Board has tried

unsuccessfully to find more. In spite of these efforts, the School

Board was unable to cover several of Michael’s classes when

interpreters were absent. If Michael and the other students who

needed interpreters were required to be educated at their base

schools, it would be impossible for the School Board to supply

them with interpreter services.‘

Finally, centralization provides many important educational

advantages and benefits. It allows the resource teachers, speech

and language therapists, and other special education staff to share

information and to interact with and support one another on a

regular basis. It also allows the regular teaching staff to build

more experience serving hearing-impaired students. These advan-

tages cannot be duplicated by providing a student with periodic

assistance of itinerant resource teachers or therapists.

Because Annandale is about 5 miles farther away from

Michael’s home than is West Springfield, Michael’s placement

entailed some additional travel time. According to Michael and

his mother, that additional time averaged about 21 minutes each

way per day, or about 3 % hours per week. Still, this trip took less

time than Michael’s commute to elementary or intermediate

school. Indeed, many students in Fairfax County travel much

farther distances to attend their base schools. Many others, for a

variety of reasons, do not attend the school geographically closest

to their home.

assigned to a base school. In 9th and 10th grade, for example, Michael was

served by three different interpreters every day. These interpreters were

available only part-time, or spent other parts of their days with other students at

Annandale, or at other schools. Similarly, a centrally-based resource teacher of

the hearing-impaired, such as those at Annandale, can serve as many as 24

students. A resource teacher who services more than one school can attend to

only 7 or 8 studeas.

“ While, the precise number of additional students interested in interpreter

service at their base school could not be determined, a conservative estimate

was thai the demand would require tripling the number of interpreters currently

employed.

amc

aia anal

Petitioners have always been totally satisfied with the

substance of the individualized education program (IEP) that was

developed for Michael. They concede that the Annandale Cued

Speech program is “appropriate” and of “high quality.” Their sole

complaint is with the location of the services.

SUMMARY OF ARGUMENT

The School Board complied with the educational placement

requirements imposed by the EHA. The Petitioners concede that

the Cued Speech program at Annandale was appropriate and of

high-quality. They contend only that the School Board was

required to reproduce this program at Michael’s base school,

which was located five miles closer to his home. Centralizing the

cued speech program at a regular high school did not violate the

EHA. The EHA expresses a preference for “mainstreaming,” and

Michael was fully mainstreamed. Moreover, while the EHA

regulations require that geographical proximity be taken into

account when making special education placement decisions, they

do not compel a school system to reproduce a small, resource

intensive centralized program at the public school closest to the

child’s home. Centralization provides educational benefits that

could not otherwise be obtained. More importantly, the school

system could not possibly provide interpreter services to each

hearing-impaired student who demanded to attend his base school.

The School Board also complied with § 504. It did not segre-

gate Michael trom non-handicapped students, but successfully

integrated him while simultaneously meeting his special education

needs. Moreover, the School Board’s compliance with the more

demanding requirements of the EHA conclusively established its

compliance with the less demanding standards of § 504.

The $100,000 in emotional distress damages sought by the

Petitioners under the EHA and § 504 are not available as a matter

of law. While the EHA permits a court to exercise its equitable

| powers to award reimbursement iype relief, tort damages are

simply not available. Tort damages are also unavailable under

§ 504, particularly where, as here, there is no evidence of

intentional discrimination. The Petitioners cannot circumvent

these damages limitations by the convenience of pleading their

. P

|

statutory claims through the “and laws” provision of § 1983.

Since the Petitioners failed to establish any statutory violation,

the Court of Appeals did not need to address their damages claim

or demand for a jury trial. In any event, the material facts were

not in dispute and did not require a jury to resolve. Neither the

EHA nor § 504 provide for a jury trial, and the administrative

structure of the EHA is inconsistent with the use of a jury.

Finally, the Petitioners properly bore the burden of proving

that the School Board violated the EHA and § 504. As a practical

matter, however, the allocation of the burden of proof did not

affect the outcome below.

The Court of Appeals’ decision did not create any split in the

Circuits, and review by this Court is not warranted.

ARGUMENT

I. The School Board Complied with the EHA by Offering

Michael Cued Speech Services at Annandale.

Petitioners argue that the School Board violated Michael’s rights

under the EHA by offering him Cued Speech interpreters, resource

teachers, and speech and language therapy at Annandale, but not at

Wesi Springfield, as he would have preferred. The pertinent

statutory provisions and authorities demonstrate that the School

Board offered Michael an educational program that not only

complied with but surpassed its responsibilities under the EHA.

A. The School Board’s Program at Annandale Enabled

Michael to be Fully Mainstreamed in a Regular

School.

No authority supports the Petitioners’ contention that the EHA

required the School Board to duplicate its Cued Speech program

for Michael alone at West Springfield. The EHA provision they

rely upon provides that states must establish:

(B) procedures to assure that, to the maximum extent

appropriate, children with disabilities, including

children in public or priv2te institutions or other

~

care facilities, are educated with children who are

not disabled, and that special classes, separate .

schooling, or other removal of children with

disabilities from the regular educational environ-

ment occurs only when the nature or severity of

the disability is such that education in regular

classes with the use of supplementary aids and

services cannot be achieved satisfactorily. . . .

20 U.S.C. § 1412(5)(B) (1988). This provision articulates a

preference for “mainstreaming” handicapped children with regular

education students. Hendrick Hudson Dist. Bd. of Educ. v.

Rowley, 458 U.S. 176, 181 & n.4 (1982); Roncker v. Walter, 700

F.2d 1058, 1063 (6th Cir.), cert. denied, 464 U.S. 864 (1983);

DeVries v. Fairfax County School Bd., 882 F.2d 876, 878 (4th Cir.

1989); Lachman y. Illinois State Bd. of Educ., 852 F.2d 290, 294

(7th Cir.) (involving a request for cued speech services), cert.

denied, 488 U.S. 925 (1988).

It is undisputed, however, that Michael was completely and

successfully mainstreamed at Annandale. Annandale was not a

“center” attended only by hearing-impaired or other handicapped

students; it was a regular public high school. The Cued Speech

program enabled Michael to be totally integrated with non-

handicapped students for his academic classes as well as for his

nonacademic activities. Michael could not have been any more

mainstreamed at West Springfield than he was at Annandale.

Accordingly, the requirements of this statute were met.

The Petitioners also rely on an administrative regulation

interpreting the EHA that provides, in relevant part:

Each public agency shall ensure that:

(a) Each handicapped child’s placement:

** *

(3) is as close as possible to the child’s home;

*x** *

(c) Unless a handicapped child’s individualized educa-

tion program requires some other arrangement, the

child is educated in the school which he or she

would attend if not handicapped;

" e

34 C.F.R. § 300.552 (1990). The official comment to this

regulation makes clear that this provision requires only that a

school board take geographical proximity into account when it

makes placement decisions, and that, where more than one

appropriate program exists, the school board provide the one

closest to the child’s home. /d. In this case, Michael’s IEP

required the Cued Speech program. That program is available at

Annandale, and there is no school nearer than Annandale that has

Cued Speech services. Accordingly, the School Board’s place-

ment complied with this regulation as a matter of law. See

Pinkerton v. Moye, 509 F. Supp. 107, 112 (W.D. Va. 1981)

(observing that the regulation only requires that geographical prox-

imity be one factor taken into account). The court in Pinkerton

held that, in view of the finite resources available for the education

of handicapped children, a school system need not duplicate a

small, resource-intensive centralized program at a child’s base

school. /d. at 113-14. This reasoning is directly applicable here.

In Fairfax County, there are at least 78 other hearing-impaired

students who use or will use interpreter services. If an exception

were made for Michael, these other students would rightfully

expect to be provided with their own individual interpreter and

support services at their base schools. The Petitioners do not

dispute that the School Board would be unable to provide such

services. Instead, they argue that the Court should consider only

the additional burden of providing such services to Michael at his

base school, without considering the impact that this decision

would have on the rights of the other students. The lower courts

have rejected precisely this limited and unrealistic perspective,°

and this Court should as well.®

> Troutman v. School Dist. of Greenville County, EHLR Dec. 554:487, 490

(D.S.C. 1983); Pinkerton, 509 F. Supp. at 112-13.

* The cases cited by the Petitioners are totally inapposite. These cases involved

claims by parents that their child should be mainstreamed in a regular class-

room. See, e.g., Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1039

(Sth Cir. 1989) (mentally retarded child placed exclusively with other

handicapped children); Department of Educ. v. Katherine D., 727 F.2d 809, 812

(9th Cir. 1983) (child with cystic fibrosis provided only homebound program),

SP

=> 2 = &—

B. The School Board Fully Met Its Obligation to Offer a

Placement Based Upon Michael’s Individual Needs.

Although the Petitioners endorsed the substance of Michael's

IEP, they contend that only the individuals on the IEP team could

decide where to locate the special education program. They argue

that the School Board failed to respect their desire to establish the

Cued Speech program at West Springfield. This argument is

without support. Educational placement under the EHA is the

responsibility of the “public agency” (i.e., the school board). See

34 C.F.R. § 300.552. This Court has admonished that, in policing

the requirements of the EHA, courts must be careful to avoid

imposing their views of preferable educational methods upon the

states. Rowley, 458 U.S. at 207. This stands to reason, since it is

the school system that must allocate its scarce resources among

numerous handicapped students, and that is responsible for

structuring and administering its special education services in a

coherent and educationally beneficial fashion. A school board ean

and must consider the effect of providing the requested services

upon the resources available to other handicapped students. See,

e.g., Roncker, 700 F.2d at 1063; Katherine D., 727 F.2d at 813.

Petitioners attempt to argue that the School Board has engaged

in illicit “categorical placement” by providing Cued Speech

services at certain mainstreamed but centrally-located schools.

“Categorical placement” refers to situations where only a single

placement option exists for an entire category or categories of

handicapped students. Regulations Governing Special Education

Programs for Handicapped Children and Youth in Virginia,

IIB. 1c¢)1), at 29. Far from offering only one placement

alternative for hearing-impaired students, the School Board has

offered an entire spectrum, including residential schools, self-

contained classes, and classes in regular schools. These

alternatives include programs that utilize interpreters, and

programs that do not. The School Board has offered students

(including Michael) a choice of not one, but three different

cert. denied, 471 U.S. 1117 (1985). In none of these cases did the parents seek

to have the school system move an already-mainstreamed program to

accommodate the child's desire to attend a particular school.

ahs

communication methodologies to enable them to take advantage of

the school system's regular education opportunities. Indeed, this

array of choices far surpasses what is required under the EHA. See

Lachman, 852 F.2d at 297 (local school board that offered

hearing-impaired student educational program employing ‘Total

Communication” did not need to offer Cued Speech at all).

Michael’s placement at Annandale was rot a “categorical place-

ment” in the slightest.’

II. The School Board Complied with § 504.

The Petitioners also contend that the School Board violated

§ 504 of the Rehabilitation Act of 1973 because Michael was

“excluded” from his base school. Section 504 prevents recipients

of federal financial assistance from unlawfully discriminating

against otherwise qualified handicapped persons under any of their

programs. 29 U.S.C. § 794. The School Board complied with

§ 504 in this case because it provided Michael with all the benefits

of its educational program, and it satisfied the more demanding

requirements of the EHA.

A. Michael Was Not Excluded from Any Program.

The School Board fully and completely assimilated Michael

into the regular classroom environment, while simultaneously

accommodating his need for special interpreter services. Far from

being “discriminatory,” the School Board’s program is a model of

what a thoughtful and creative school system can accomplish.

Both the District Court and the Court of Appeals recognized

that Petitioners’ § 504 claim is foreclosed by this Court’s decision

in Southeastern Community College v. Davis, 442 U.S. 397

(1979). In Davis, the Court held that a nursing college did not

discriminate against a hearing-impaired student by refusing to

provide her with a nursing instructor and by excusing her from

courses made difficult because of her hearing impairment. This

7 Michael's IEP addressed in detail all areas of Michael's educational needs,

including vocabulary, reading comprehension, written language, and many

areas of speech. His IEP provided for extensive mainstreaming, based upon his

success in regular classes. This program fully considered his individual needs.

a

Court unanimously rejected the student’s argument that these extra

efforts were mandated by § 504. Without delving into the cost

that would be imposed on the college to provide sucn services, the

Court simply held that such “affirmative action” was not required

by the “language, purpose, [or] history of § 504... .” Jd. at 411.

The same conclusion is required here.

Unlike the nursing student in Davis, Michael was provided

with his choice of learning methodologies available to hearing-

impaired students. Only four other school districts in the United

States can offer as wide a selection. Moreover, Michael has

participated fully and completely in the educational program

offered by the School Board, and he has been completely main-

streamed with non-handicapped students.

If the college’s failure to provide a nursing instructor to the

hearing-impaired student in Davis did not violate § 504, it is diffi-

cult to conceive how the School Board’s plenary efforts to accom-

modate Michael could possibly violate the statute. The School

Board has gone well beyond the minimum “evenhanded treat-

ment” that was the aspiration of § 504’s drafters. /d. at 410;

Alexander v. Choate, 469 U.S. 287, 304 (1985).

The Petitioners assert that this Court's decisions in Choate and

in School Bd. of Nassau Co. v. Arline, 480 U.S. 273 (1987), have

altered the proper analysis under § 504. At one point, Petitioners

cite Choate for the remarkable proposition that the only program

modifications mot required by § 504 are those that would

“jeopardize” the very integrity of those programs.* This is not the

law.’ This Court has never required a recipient under § 504 to

demonstrate that its entire program would be “jeopardized” in

order to avoid liability under this Spending Clause statute.

® Petition for Certiorari at 26.

% See Choate, 480 U.S. at 300 (only “reasonable modifications” are required by

the statute and regulations); id, at 300 n.20 (“Regardless of the aptness of our

choice of words in Davis, it is clear from the context of Davis that the term

‘affirmative action’ referred to those ‘changes,’ ‘adjustments,’ or ‘modifica-

tions’ to existing programs that would be ‘substantial,’ or that would constitute

‘fundamental alteration[s] in the nature of a prograrn’”) (citations omitted);

Smith v . Robinson, 468 U.S. 992, 1018 (1984) (Davis “emphasized that § 504

does not require affirmative action on behalf of handicapped persons, but only

the absence of discrimination against those persons.”’).

- 43.

The Petitioners also claim that Davis was “apparently

overruled” by Arline, 480 U.S. 273, 289 n.19 (1987). Far from

“overruling” Davis, however, the Court in Arline cited from it at

length, explaining that “{a]ccommodation is not reasonable if it

either imposes ‘undue financial and administrative burdens’ on a

grantee,’ or requires ‘a fundamental alteration in the nature of [the]

program.” /d. at 287 n.17 (citing Davis, 442 U.S. at 410, 412)

(emphasis added). These tests were amply satisfied in this case.

Requiring the School Board to provide every hearing-impaired

student like Michael with his interpreter of choice at his base

school, instead of at mainstreamed but centralized locations,

would constitute a substantial and fundamental modification of the

School Board's educational program. Davis, 442 U.S. at 410;

Choate, 469 U.S. at 300 n.20; Arline, 480 U.S. at 287 n.17;

accord 34 C.F.R. §§ 104.33(d), 104.34(a), (b) (1990).’® Both the

District Court and the Court of Appeals found, as a matter of law,

that § 504 does not require such radical alterations.

B. Compliance with the EHA’s Educational Placement

Requirements Conclusively Establishes Compliance

with § 504.

The District Court was also correct in holding that the School

Board’s compliance with the EHA’s educational placement

requirements conclusively established its compliance with § 504.

The EHA imposes specific, affirmative burdens on school boards

to prove handicapped children with an appropriate educational

placemer* Both this Court"! and the lower courts” have held that

the more general provisions of § 504 add nothing to the specific

obligations created under the EHA.

10 See also Wimberly v. Labor & Indus. Relations Comm'r of Missouri., 479

U.S. 511, 517 (1987) (§ 504 generally does not mandate affirmative efforts to

overcome the disabilities caused by handicaps); Bowen v. American Hosp.

Ass'n, 476 U.S. 610, 640 & n.27 (1986) (same).

"! Smith, 468 U.S. at 1018-19.

2 See, e.g., DeVries, 882 F.2d at 880 (compliance with EHA demonstrated

compliance with § 504 under fects of case); St. Louis Developmental Disabili-

ties Treatment Center Parents Ass'n v. Mallory, 591 F. Supp. 1416, 1471

oth.

Moreover, the administrative regulations promulgated under

§ 504 confirm that one method of complying with § 504’s educa-

tional placement requirements is by complying with the EHA. 34

C.F.R. §§ 104.33(b)(2), 104.35(d), 104.36 (1988). Indeed, the

§ 504 regulations pertaining to “Educational Setting” mirror the

EHA regulations. Compare 34 C.F.R. § 104.34(a), with 34 C.F.R.

§§ 300.550, 552 (1990).

Because the School Board’s placemert of Michael in the

mainstreamed program at Annandale was proper and non-

discriminatory under the EHA, the Petitioners are foreclosed from

attacking this conclusion by invoking the less rigorous standards

of § 504.

III. Monetary Damages for Alleged Emotional Distress Cannot

be Awarded in This Case.

Because the Court of Appeals concluded that the Petitioners

failed to establish a violation of Michael's statutory rights, it did

not need to reach the question of whether the emotional distress

damages sought by the Petitioners are available under the EHA or

§ 504. Nonetheless, such damages are unavailable under either

Statute as a matter of law.

A. The EHA Precludes Recovery of Tort Damages.

It is well-settled .nat the EHA does not permit recovery of

tort-type compensatory damages for emotional distress, and

Petitioners cite no case to the contrary. Petitioners’ argument that

such damages should now be recoverable ignores this Court’s

decision in School Comm. of Burlington v. Department of Educ.,

471 U.S. 359 (1985), and the cases that have followed it, including

(W.D. Mo. 1984) (“compliance with Section 504 is less demanding than is

compliance with the Education Act. That being the case . . . when the Section

504 claim concerns a facet of the education of handicapped children covered by

the Education Act, such as the educational program or placement, a showing of

compliance with the latter satisfies the former.”), aff'd, 767 F.2d 518 (8th Cir.

1985); Darlene L. v. Illinois State Bd. of Educ., 568 F. Supp. 1340, 1346-47

(N.D. Ill. 1983) (*§ 504 certainly cannot impose any greater educational

requirements on the states than does the EHA”).

-15-

Hall v. Vance County Bd. of Educ., 774 F.2d 629 (4th Cir. 1985).

The EHA’s remedies are equitable in nature. Where a school

board has failed to provide an appropriate educational program,

the court may invoke its “equitable” powers to order a school

district to reimburse parents for their private tuition expenses.

Burlington, 471 U.S. at 374. However, such equitable remedies

are fundamentally distinct from monetary awards for tort damages.

In fact, the Court in Burlington expressly distinguished between

the two kinds of relief. 471 U.S. at 370 (“the Town repeatedly

characterizes reimbursement as ‘damages,’ but that simply is not

the case.””); see also Hall, 774 F.2d at 633 n.3 (drawing same

distinction).

The Petitioners’ reliance on Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and on

Davis v. Passman, 442 U.S. 228 (1979), is misplaced. Both of

these cases involved the question of whether a common law action

for money damages could be brought in federal court for violations

of the federal Constitution.'? The Court in Passman held that the

Bivens line of cases was inapplicable to determining what relief is

available for the enforcement of federal statutes.’

The first and still most comprehensive analysis of the

availability of monetary damages under the EHA was performed

by the Seventh Circuit in Anderson v. Thompson, 658 F.2d 1205

(7th Cir. 1981). In Anderson, parents sued for monetary damages

under the EHA, claiming that the school board had not provided

their daughter with an appropriate education. The Seventh Circuit

exhaustively examined the EHA’s legislative history, as well as

the applicable policy considerations. The Court first observed that

to allow recovery of damages in special education cases would

'3 Bivens, 403 U.S. at 397 (recognizing damages remedy for violation of Fourth

Amendment); Passman, 442 U.S. at 248-49 (recognizing damages remedy for

violation of Due Process Clause of Fifth Amendment); but see Schweiker v.

Chilicky, 487 U.S. 412, 423 (1988) (“When the design of a Government

program suggests that Congress has provided what it considers adequate

remedial mechanisms for constitutional violations that may occur in the course

of its administration, we have not created additional Bivens remedies."’).

4 Passman, 442 U.S. at 241. The proper analysis for determining the scope of

federal statutory remedies is contained in Transamerica Mortgage Advisors,

Inc. v. Lewis, 444 U.S. 11, 15-24 (1979).

«tt.

create a cause of action for “educational malpractice” that

Congress plainly did not intend. 658 F.2d at 1211. The EHA’s

sponsors recognized the inherent difficulty and uncertainty of

providing special education programming to meet the complex

needs of handicapped students. /d. at 1212. The couri noted that

“it would be incongruous for Congress to subject school systems

to liability for damages each time a court disagreed with the school

district’s program while at the same time admitting the v icertainty

of diagnosis in the field.” /d.

Second, the Anderson court noted that Congress was

concerned about the lack of available funds for education.

Mindful of the limits on educationai resources, the court

concluded that the EHA’s drafters did not wish to overtax the

limited budgets of school systems by allowing large, retrospective

damage awards. /d. at 1212-13.

Finally, the court observed that public policy militated against

allowing recovery of compensatory damages against school boards

acting in good faith, even where it later tumed out that the school

district should have offered a different educational placement. To

allow damages in such cases would chill the flexibility and

experimentation necessary in the special education field,

ultimately to the detriment of handicapped students. The court

concluded that compensatory damages were not recoverable. /d. at

1213.

The persuasive analysis of Anderson has been followed in

many subsequent cases.'* By contrast, the Petitioners have cited no

case in which a court has awarded emotional distress damages

under the authority of the EHA.

B. Damages for Emotional Distress are Not Available

Under § 504.

In Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 630

(1984), this Court held that Ҥ 504 authorizes a plaintiff who

alleges intentional discrimination to bring an equitable action for

backpay.” (Emphasis added). The Petitioners are asking this

'S See, e.g., Hall, 774 F.2d at 633 n.3 (EHA permits reimbursement remedy, but

“does not create cause of action for educational malpractice”).

SP

Court to enlarge dramatically the narrow holding of Darrone, in

order to allow the recovery of emotional distress damages

resulting from unintentional acts that have a purportedly disparate

impact on handicapped persons. This position is at odds with this

Court’s prior holding in Guardians Ass'n v. Civil Serv. Comm'n of

New York, 463 U.S. 582 (1983), and contrary to the Title VI

remedies that Congress explicitly directed be used under § 504.’*

Although there was no single majority opinion in Guardians,

five justices agreed that equitable relief in the form of backpay, if

available at all under Title VI, could be recovered only upon a

showing of intentional discrimination.'’ By contrast, the Peti-

tioners are seeking tort damages, not equitable relief. Moreover,

they have not produced any evidence of intentional discrimination

against Michael. Accordingly, the Petitioners have no right to

recover emotional distress damages under § 504. This Court need

not reach the other damages questions left open in Guardians.

C. The HCPA Does Not Make Tort Damages Available

Under § 1983 for Violations of the EHA or § 504.

Although damages for emotional distress are unavailable

under the EHA and § 504, the Petitioners contend that they can

recover such damages by asserting these statutory claims

separately through § 1983. Section 1983 provides a cause of

action for “the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws” of the United States. 42

U.S.C. § 1983. As a matter of law, however, tort damages are

unavailable in this case because (1) the remedial schemes created

under the EHA and § 504 are sufficiently comprehensive to dem-

16 29 U.S.C. § 794a(aX2) (“The remedies, procedures, and rights set forth in

title VI of the Civil Rights Acts of 1964 shall be available to any person

aggrieved by any act or failure to act by any recipient of Federal assistance .. .

under § 504 of this title.”); Darrone, 465 U.S. at 626.

" Guardians, 463 U.S. at 602-03 (White, J., joine. sy Rehnquist, J.) (injunctive

and declaratory relief only available remedies for disparate impact

discrimination; backpay availabie, if at all, only upon showing of discrimina-

tory animus); id. at 610-11 (Powell, J, joined by Burger, C.J., Rehnquist, J.,

concurring) (no violation of statute absent proof of discriminatory intent); id. at

612 (O'Connor, J., concurring) (same).

SS

onstrate Congress’ intent to preclude the remedy of parallel suits

under § 1983, and (2) even if a cause of action were available

under § 1983, a tort-damage remedy is inappropriate to protect the

rights created by the EHA and § 504.

1. Section 1983 Does Not Allow This Solely Derivative

Claim:

In Maine v. Thiboutot, 448 U.S. 1, 4 (1980), this Court held

that § 1983 provided a cause of action for the deprivation of

federal statutory rights. The Court’s decisions since Maine have

recognized an exception to this general principle where the

underlying statute provides a remedial scheme that is sufficiently

comprehensive to demonstrate Congress’ intent to preclude the

remedy of suits under § 1983."* This exception applies here. This

Court has repeatedly held that the EHA and § 504 provide such

comprehensive schemes.'? Moreover, as explained above, a

damages remedy would be fundamentally inconsistent with the

remedial purposes of these statutes.

The Petitioners contend that Congress intended tort damages

to be recoverable when it passed the Handicapped Children’s

Protection Act of 1986, Pub. L. No. 99-372, 100 Stat. 796 (the

“HCPA”). Nothing in the text or legislative history of the HCPA

supports this position.”

Congress enacted the HCA to overturn certain aspects of this

Court’s decision in Smith v. Robinson, 468 U.S. 992 (1984). The

'* Pennhurst State School and Hosp. v. Halderman, 451 U.S. 1, 28-29 (1981);

Middlesex County Sewerage Auth. v. National Sea Clammers Assoc., 453 U.S.

1, 19-20 (1981); Golden State Transit Corp. v. City of Los Angeles, 110 S. Ct.

444, 448-49 (1989); Wilder v. Virginia Hosp. Ass'n, 110 S. Ct. 2510, 2516-17

(1990).

'? Dellmuth v. Muth, 491 U.S. 223, 225 (1989) (“The [EHA] enacts a

comprehensive scheme to assure that handicapped children may receive a free

public education appropriate to their needs.”); Smith v. Robinson, 468 U.S. 992,

1016 (1984) (“The EHA is a comprehensive scheme designed by Congress as

the most effective way to protect the right of a handicapped child to a free

appropriate public education.”); Darrone, 465 U.S. at 626 (“The Rehabilitation

Act of 1973 establishes a comprehensive federal program aimed at improving

the lot of the handicapped.”).

~ ™

Court in Smith held that attomey’s fees were unavailable under the

EHA. The Court reasoned that, while attomey’s fees were

available in an action brought either under § 504,”' or under

§ 1983 based on a violation of the Equal Protection Clause,” the

EHA provided the far more comprehensive remedial scheme with

respect to educational placement decisions. Accordingly, the

Court held that the EHA provided the exclusive vehicle for

asserting rights that are protected by the EHA. /d. at 1013.

Justice Brennan dissented. He urged that the EHA be

reconciled with § 504 and § 1983. The dissent interpreted the

EHA only to require exhaustion of administrative remedies before

a plaintiff could file a §504 or § 1983 action, under which

attomey’s fees could then be recovered. /d. at 1024 (Brennan, J.,

dissenting).

In enacting the HCPA, Congress adopted Justice Brennan’s

position.”*? Section 2 of the HCPA provided that prevailing EHA

plaintiffs could recover attorney’s fees, although the allowable fees

are subject to extensive restrictions not applicable to cases brought

under § 1983. See 20 U.S.C. § 1415(e)(4)(B)-(G) (1988). Section

3 of the HCPA added a “savings clause” to the EHA. 20 U.S.C.

§ 1415(f) (1988). This “savings clause” provided that nothing in

the EHA should be construed to limit “the rights, procedures and

remedies available under the Constitution, title V of the Rehabili-

tation Act of 1973, or other Federal statutes protecting the rights of

children. ...” /d. It also required exhaustion of the procedural

requirements under the EHA before any other claim could be

brought seeking relief that was also available under the EHA. /d.

This section thus overruled Smith’s holding that the EHA

foreclosed resort to § 504 claims, or to § 1983 claims sear upon

the Constitution.

® See Sido & King, Monetary Remedies Under the Education of All

Handicapped Children Act: Toward a New Civil Rights Act, 23 Tort Ins. L. J.

711, 729-33 (1988) (concluding that Congress did not intend the HCPA to

provide damages remedies for EHA violations).

2? See 29 U.S.C. § 794a(b) (1988).

See 42 U.S.C. § 1988 (1988).

® See S. Rep. No. 112, 99th Cong., 2d Sess. 2, reprinted in 1986 U.S. Code

Cong. & Admin. News 1798, 1799.

- 20 -

Although the HCPA allowed EHA plaintiffs to bring § 1983

actions based upon the Constitution, nothing in the legislative

history supports the notion that EHA claims can now be asserted

redundantly through the “and laws” provision of § 1983.“ The

Court of Appeals did not need to reach this issue. Other federal

courts have had little occasion to address the scope of the HCPA.

Nevertheless, several factors compel the conclusion that Congress

did not intend for the HCPA to permit the recovery of large, tort-

like damage awards for violations of the EHA or § 504.

First, Smith was not an “and laws” case,” and the dissent in

Smith never contended that the EHA could or should be enforce-

able through § 1983. Justice Brennan focused on the majority’s

decision to foreclose the recovery of attomey’s fees under the

EHA, and to preclude EHA plaintiffs from bringing § 504 or

constitutional claims. In fact, the dissent apparently assumed that

the EHA and § 504 were comprehensive remedial schemes that

* There was no discussion of the “and laws” issue in the floor debates, which

focused principally on the attorney's fees amendment. See, e.g., 132 Cong.

Rec. $9,277 (daily ed. July 17, 1986) (statement of Sen. Weicker) (“What we

do here today is to make the Education of the Handicapped Act consistent with

more than 130 other fee shifting statutes which provide for the award of

attorneys’ fees to parties who prevail in court to obtain what is guaranteed to

them by law.”).

*5 Two courts have interpreted the HCPA to allow EHA claims to be asserted

through § 1983, but both cases involved requests only for injunctive or

declaratory relief. Mrs. W. v. Tirozzi, 832 F.2d 748, 775 (2d Cir. 1987); Digre

v. Roseville Schools Indep. School Dist., 841 F.2d 245, 249-50 (8th Cir. 1988).

Other courts have found that the EHA remains a comprehensive remedial

scheme, completely foreclosing parallel § 1983 claims, Lawson v. Edwardsburg

Pub. School, 751 F. Supp. 1257, 1261 (W.D. Mich. 1990); or that compensatory

damages may be recovered only if the plaintiff brings a constitutional claim in

addition to his EHA claim, Begay v. Hodel, 730 F. Supp. 1001, 1010 (D. Ariz.

1990) (Bivens damages allowed for constitutional violations, but not if there is

only an EHA violation). In the case relied on by the plaintiffs, Board of Educ.

v. Diamond, 808 F.2d 987, 996 (3d Cir. 1986), the court did not specify what

kind of damages were involved, nor did it distinguish between damages based

on constitutional violations from those predicated solely on the EHA.

%® Smith, 468 U.S. at 1004-05 (“In this case, petitioners made no effort to

enlarge the remedies available under the EHA by asserting their claim through

the “and laws” provision of § 1983.”).

-2)-

would not serve as independent predicates for § 1983 actions.”

Congress did not adopt a contrary position.

Second, when Congress enacted the HCPA in 1986, the

“overwhelming majority of cases” had precluded the recovery of

compensatory damages under the EHA.* Congress said nothing

about overruling those cases. If it had intended to, Congress could

have easily amended the EHA to provide for tort damages, just as

it amended the EHA to allow for the recovery of attomney’s fees.”

Third, allowing EHA plaintiffs to assert identical EHA claims

through § 1983, and, consequently, to recover attomey’s fees

under 42 U.S.C. § 1988 (1988), would totally circumvent the

specific limitations that Congress imposed on the recovery of fees

in EHA cases. See, e.g., 20 U.S.C. §§ 1415(e)(4)(C) (1988)

(providing that no bonus or multiplier may be used for fees

recovered under EHA); 1415(e)(4)(D) (1988) (relating to parents

who reject settlement offers).

Fourth, Congress would have been aware in 1986 that the

“savings clause” enacted in § 3 of the HCPA would not suffice to

create § 1983 actions based solely on duplicative EHA claims.

See Middlesex County Sewage Auth. v. National Sea Clammers,

453 U.S. 1, 20 n.31 (1981) (rejecting identical argument that

“savings” clauses were intended to refer to redundant § 1983

claims based upon the same statutory claim). Had Congress

intended a contrary result, or if it had intended for EHA plaintiffs

to recover tort damages. “we would expect to find some evidence

of that intent in the statute or its legislative history. We find

none.” Indeed, the 10lst and 102d Congress hotly debated

7 See Smith, 468 U.S. at 1023 n.2 (Brennan, J., disseniing). .

% Sido & King, supra note 20, at 730.

9 Notably, both the House and the Senate Reports remarked that the HCPA

would have some effect on the budgets of state and local governments because

it would force them to pay attorney's fees to successful EHA litigants. S. Rep.

No. 112, 99th Cong., 2d Sess. 3-4, reprinted in 1986 U.S. Code Cong. &

Admin. News 1798, 1800-01; H.R. Rep. No. 296, 99th Cong., 1st Sess. 10-11

(1985). The Committee Reports said nothing about the impact of compensatory

damage awards, although some congressmen did question whether allowing the

recovery of attorney's fees for EHA administrative proceedings would impose

undue costs on school systems. See H.R. Rep. No. 296, supra at 16-17.

-.

— shee

Reena name ol sled be See ene oe

whether to amend the Civil Rights Act of 1964 to provide for

compensatory damage awards and jury trials. These debates make

clear that Congress does not believe that § 504 currently provides

these remedies.*!

2. Petitioners Cannot Utilize § 1983 to Obtain Remedies

Inconsistent with the EHA and § 504.

Even assuming arguendo that Petitioners could bring a § 1983

claim based entirely upon a violation of the EHA or § 504, a

compensatory damages remedy would still be unavailable. This

Court has emphasized that the kind of damages available for

violations of § 1983 varies according to the particular substantive

right involved. Carey v. Piphus, 435 U.S. 247, 258-59 (1978).

The remedies available for the violation of one right secured by

§ 1983 “are not necessarily appropriate to compensate injuries

caused by the deprivation of another.” Jd. at 265. Since Peti-

tioners’ § 1983 claim is identical to their EHA and § 504 claims,

© Karahalios v. National Fed'n of Fed. Employees, 489 U.S. 527, 536 (1989).

The Petitioners’ quotation from the House Conference Report is somewhat

misleading. H.R. Conf. Rep. No. 687, 99th Cong., 2d Sess. 7, reprinted in 1986

U.S. Code Cong. & Admin. News 1798, 1809 (“It is the conferee’s intent that

actions brought under § 1983 are governed by this provision.”). This passage

refers to the decision of the House to recede to the Senate's version of the EHA

exhaustion requirement. The quotation cannot be taken to mean anything more

than that Congress intended an exception to the general rule in § 1983 cases that

exhaustion is not required before instituting suit.

3! See e.g., H.R. Rep. No. 40, 102d Cong., pt. 1, at 146 & n.17 (1991) (listing

§ 504 as one of the many existing statutes that does not provide for punitive

and compensatory damages); H.R. Rep. No. 40, 102d Cong., pt. 2, at 68 (1991)

(“Under present law, title VII damages are limited to back pay, reinstatement

and other injunctive relief. Jury trials are not available for violations of title

vw.”).

32 See also Guardians, 463 U.S. at 602 n.23 (White, J., joined by Rehnquist, J.)

(“Damages indeed are usually available in a § 1983 action, but such is not the

case when the plaintiff alleges only a deprivation of rights secured by a

Spending Clause statute.”); Bivens, 403 U.S. at 409 n.9 (“the appropriateness of

money damages may well vary with the nature of the pe interest

asserted.”) (Harlan, J., concurring).

23.

the restrictions on the recovery of damages inherent in those

Statutes would also limit the remedy, if any, available under

§ 1983.

IV. The Court of Appeals’ Decision Comports with Lytle v.

Household Manufacturing

Confronted with dispositive factual findings against them by

the District Court below, the Petitioners now attempt to escape the

consequences of those findings by arguing that they should have

had a jury trial.** The Petitioners rely on this Court’s recent

decision in Lytle v. Household Mfg., 110 S. Ct. 1331 (1990). Lytle

is inapposite to the facts of this case.

First, the Court of Appeals did not need to reach the jury trial

issue because there were no disputed material facts that required a

jury to resolve. Cf. Lytle, 110 S. Ct at 1338 (evidence sufficient

for a jury to find discrimination under the facts presented). The

Petitioners conceded that the Cued Speech program at Annandale

provided Michael with an appropriate and high-quality program.

There was also no dispute that Cued Speech interpreters are

extremely scarce, and that the School Board could not provide

interpreters at each base school for the many students who might

desire one. On the basis of these concessions, the Court of

Appeals found, as a matter of law, that neither the EHA nor § 504

required the School Board to duplicate the Annandale program at

West Springfield.

Second, even if Petitioners were entitled to sue for

compensatory damages, the structure of the EHA’s judicial review

provision demonstrates that the court, not a jury, determines

whether a school board has complied with the EHA. 20 U.S.C.

§ 1415(e)(2) (1988). Section 1415(e)(2) sets forth the manner in

which aggrieved parties may seek judicial review of a State

administrative decision:

> The Petitioners took a somewh:: contrary position in the:~ brief to the Court

of Appeals, arguing that thev were entitled to judgment as a matter of law.

- 94 -

iain wistnisstistewenirt incendie pts mah eo

In any action brought under this paragraph the court

shall receive the records of the administrative proceed-

ings, shall hear additional evidence at the request of a

party, and, basing its decision upon a preponderance

of the evidence, shall grant such relief as the court

determines is appropriate.

20 U.S.C. § 1415(e)(2) (emphasis added). The statute entrusts to

“the court” (mot “to the court or jury”), the responsibility of

receiving and reviewing the administrative record and decision. In

reviewing that decision, the district court does not conduct a de

novo trial. Rather, it is required to give the review officer’s

decision “due weight.” Rowley, 458 U.S. at 206. By contrast,

nothing in § 504 or Title VI provides for a jury trial and, as noted

above, compliance with the EHA establishes compliance with

§ 504.

The statutory structure of the EHA thus forecloses resort to a

jury trial. The Seventh Amendment does not require a jury trial if,

as here, it would be inconsistent with the statutory scheme. Atlas

Roofing Co. v. Occupational Safety and Health Review Comm n,

430 U.S. 442, 455-56 (1977) (Congress may create new statutory

obligations, and provide an administrative and judicial enforce-

ment scheme, without the intervention of a jury at any stage);

Granfinanciera S.A. v. Nordberg, 492 U.S. 33, 51 (1989)

(“Congress may devise novel causes of action invoking public

rights free from the strictures of the Seventh Amendment if it

assigns their adjudication to tribunals without statutory authority

to employ juries as factfinders.”’).

The Court of Appeals did not need to reach the jury trial issues

under Lytle because there were no issues of fact in this case that

required a jury to resolve. Moreover, the Fourth Circuit has not

departed from this Court’s holding in Lytle. See Keller v. Prince

George’s County, 923 F.2d 30, 33 (4th Cir. 1991) (following

Lytle). This case presents no occasion for revisiting the recent

Lytle decision.

V. The Petitioners Properly Bore the Burden of Proof.

Among their assignments of error, the Petitioners also argue

that the District Court and Court of Appeals improperly saddled

them with the burden of proving that the School Board violated

the EHA and § 504. Although the actual allocation of the burden

of proof was immaterial in this case, the Petitioners properly bore

the burden because they were the plaintiffs in the district court.

In EHA cases, the party challenging an adverse state

administrative decision properly bears the burden of proof.

Spielberg v. Henrico County Pub. Schools, 853 F.2d 256, 258 n.2

(4th Cir. 1988), cert. denied, 489 U.S. 1016 (1989). This rule

comports with this Court’s statement in Rowley that state

administrative decisions must be accorded “‘due weight.” 458 U.S.

at 206. The two cases relied upon by the Petitioners to

demonstrate a purported split in the circuits did not even involve a

student’s appeal from adverse state administrative findings.*

The Petitioners similarly misapprehend the proper analysis

under § 504. They assume that they have established a “prima

facie” case of discrimination under § 504, and then jump to the

conclusion that the burden of proof to show non-discrimination

should have shifted to the School Board. The flaw in this claim is

that, under Davis, no such “prima facie” case was made. Michael

was not excluded from the regular educational program but was

fully assimilated into it. The cases relied upon by the Petitioners

are, therefore, inapposite. In each of those cases, the handicapped

person was, in fact, excluded from the regular program offered by

the recipient of federal financial assistance.**

In short, although it was not a dispositive factor in the

decisions below, the “burden of proof” was properly bome by the

Petitioners.

* Grymes v. Madden, 672 F.2d 321 (3rd Cir. 1982) (school board's withdrawal

of funding in violation of the EHA’s “stay-put” provision); S-/ v. Turlington,

635 F.2d 342, 348-49 (Sth Cir.) (standard for disciplining handicapped student),

cert. denied, 454 U.S. 1030 (1981).

3 See, e.g., New York State Ass'n for Retarded Cnildren v. Carey, 617 F.2d 644

(2d Cir. 1979) (exclusion of mentally retarded children with hepatitis from

- 2% -

Se ei I AN ce Nl Ss a a ie

CONCLUSION

The Court of Appeals’ decision did not create a split in the

Circuits, and review by this Court is not warranted. The Petition

for a Writ of Certiorari shouid be denied.

Respectfully submitted,

FAIRFAX COUNTY SCHOOL BOARD

By: /s/ Thomas J. Cawley

Counsel

Thomas J. Cawley

(Counsel of Record)

John F, Cafferky

Stuart A. Raphael

HUNTON & WILLIAMS

3050 Chain Bridge Road

P.O. Box 1147

Fairfax, Virginia 22030

(703) 352-2200

Counsel for respondent

Fairfax County School Board

regular classroom); Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir. 1977)

(exclusion of one-eyed children from contact sports).

-2-