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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 859

## Text

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.

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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.

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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

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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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2354%3A2. Public record. Not legal advice.