Amicus Brief — Smith v. Robinson
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No. 82-2120 DEC 30 {982
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IN THE
SUPREME COURT OF THE UNITED-SPATES
OCTOBER TERM, 1982
THOMAS F. SMITH. JR.. et al..
Petitioners
i
WILLIAM P. ROBINSON, JR., Rhode Island Associate
Commissioner of Education, et al..
Respondents
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
BRIEF OF AMICI CURIAE
THE ASSOCIATION FOR RETARDED CITIZENS OF THE
UNITED STATES, THE NATIONAL MENTAL HEALTH ASSO-
CIATION, THE AMERICAN ORTHOPSYCHIATRIC ASSOCI-
ATION, THE AMERICAN COUNCIL OF THE BLIND, THE AF-
FILIATED LEADERSHIP LEAGUE OF AND FOR THE BLIND
THE NATIONAL ASSOCIATION OF THE DEAF, THE INTER-
NATIONAL ASSOCIATION OF PARENTS OF THE DEAF, THE
AMERICAN COALITION OF CITIZENS WITH DISABILITIES
THE DISABILITiES RIGHTS EDUCATION DEFENSE FUND,
THE DEVELOPMENTAL DISABILITIES ADVOCACY NET-
WORK, THE PENNSYLVANIA ASSOCIATION FOR) RE-
TARDED CITIZENS, THE PENNSYLVANIA ASSOCIATION
FOR CHILDREN WITH LEARNING DISABILITIES. ADVO-
CACY, INC... UNITED CEREBRAL PALSY OF NEW YORK CITY.
INC.. AND STATEWIDE YOUTH ADVOCACY, INC
iN SUPPORT OF REVERSAL
Leonard Rieser
EDUCATION LAW CENTER, INC.
Suite 2100
225 South 15th Street
Philadelphia. PA 19102
(215) 732-6655
Counsel for Amici Curtae
Counsel of Record
TWE LEGAL INTELLIGENCER 10th & SPRING GARDEN STREETS. PHILA. PA 19123 (215) 236-2000
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......ccccscccees ii
INTEREST OF AMICI CURIAE .............. ]
STATEMENT OF THE CASE ..........00000. 5
SUMMARY OF ARGUMENT ................ 7
ARGUMENT
I. PETITIONERS ARE ENTITLED TO AN
AWARD OF ATTORNEY’S FEES UNDER
SECTION 505 OF THE REHABILITATION
A Mh eins es TR ee es Avice 8
A. Petitioners Prevailed in a Case Raising
Substantial Claims Under Section 504 of
the Rehabilitation Act and are Therefore
Entitled to Attorney's Fees Under Section
Ye a se 8
B. Section 504 and the EAHCA Grant Inde-
pendently Enforceable Substantive Rights * 16
Il. PETITIONERS ARE ENTITLED TO AN
AWARD OF ATTORNEY’S FEES UNDER
THE CIVIL RIGHTS ATTORNEY’S FEES
NTE PR os vy latin 6.5 6 lh 2.03 058 eBeowe 23
CEI as CaN ahs oa he cep eaewes 29
TABLE OF AUTHORITIES
Cases: Page
Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970) 20
Alyeska Pipeline Service Co. v. Wilderness Society,
IG GPa UP CROUOED, bas 0 s'es dalae Paes h tka 14
Blum v. Bacon, 457 U.S. 132 (1982) ........... 18
Board of Education of the Hendrick Hudson School
District v. Rowley, 458 U.S. 176 (1982) ... 3,5,
| 15, 16, 18
Brown v. District of Columbia Board of Education
C.A. 78-1646 (D.D.C. Sept. 13, 1978) ...... 13
Brown v. General Services Administration, 425
Rie ERNE Scare Fie ks whe Waek hageaks 20, 21
Cannon v. University of Chicago, 441 U.S. 677
SN pss WA hd oak ke be 8 O00 6 ek ease ON 8
Carlson v. Green, 446 U.S. 14 (1980) .......... 20
Community Television of Southern California v.
Gottfried, 103 S.Ct. 885 (1983) .......... 8, 18
Department of Education v. Katherine D., No. 82-
4096 (9th Cir., Nov. 7, 1983) .......... 22, 27
Diamond v. Chakrabarty, 447 U.S. 303 (1980) .. 13
Disabled in Action v. Mayor & City Council of Balti-
more, 685 F.2d. 881 (4th Cir. 1982) ........ 10
Espino v. Besteiro, 708 F.2d 1002 (Sth. Cir. 1983) . 26
Fialkowski v. Shapp, 405 F.Supp. 946 (E.D. Pa.,
MWD 6 hed. hn p. peaks A eee wakes eae 24
Gary B. v. Cronin, 542 F. Supp. 102 (N.D. IL
BE (ie dinhe0.4. 4 dn cada > Poe ee a 27
Georgia Association for Retarded Citizens v.
McDaniel, 716 F.2d 1565 (11th Cir. 1983) 11, 16,
18, 19, 21
TABLE OF AUTHORITIES
Cases: Page
Goldberg v. Kelly, 397 U.S. 254 (1970) ......... 24
Great American Federal Savings & Loan Associ-
ation v. Novotny, 442 U.S. 366 (1979) ..... 21
Gregg B. v. Board of Education, 535 F.Supp. 1333
(RS S| ES eer eh Ree re 22
Guardians Association v. Civil Service Commission,
PE es | COEDS slvb clus bceticcbdecaar 8
Hagans v. Lavine, 415 U.S. 528 (1974) ........ 24
Hairston v. Drosick, 423 F.Supp. 180 (S.D.W.Va.
DORIA aay eae aon wade s Ne bi 0-0 ook: 6 siete 11,13
Hastings v. Maine-Endwell Central School District,
676 F.2d 893 (2d Cir. 1982) .............. 27
Hensley v. Eckerhart, 103 S.Ct. 1933 (1983) 9, 10, 25
Howe v. Smith, 452 U.S. 473 (1981) ........... 15
Johnson v. Railway Express Agency, 421 U.S. 454
TRY ba Ca Wakc iV ode cite’ cece hie kee 20
Jones v. Alfred H. Mayer Co., 392 U.S. 409(1968) . 20
Jose P. v. Ambach, 669 F.2d 865 (2d Cir. 1982),
on remand, 557 F.Supp. 1230 (E.D.N.Y.
SSNS «hide doa twat dabeee ee 11, 27
Kaiser Steel Corp. v. Mullins, 455 U.S. 72 (1982) 17
Kremer v. Chemical Construction Co., 456 U.S. 461
CED ae ee wo os bd oe Aree avis We 14, 17, 20, 28
Lau v. Nichols, 414 U.S. 563 (1974) ........... 11
Le Strange v. Consolidated Rail Corp., 687 F.2d 767
(3d Cir. 1982), cert. granted sub nom. Consoli~
dated Rail Corp. v. Darrone, 103 S.Ct. 1181,
1765 (1983) (No. 82-862) ................ 8
Maher v. Gagne, 448 U.S. 122 (1980). 10, 24, 25, 26
iii
TABLE OF AUTHORITIES
Cases: Page
Marvin H. v. Austin Independent School District,
734 F.2d 13466 (Gels Cir. 1963) «0. cece. 11
Mattie T. v. Holladay, 522 F. Supp. 72 (N.D. Miss.
DEMO Ss slab lck awe) eh id adie eeele ra ae 27
Middlesex County Sewerage Authority v. National
Sea Clammers Association, 453 U.S. 1
ERUMAes ¢ pao e Waa LAEdE Coeledd canes 21, 27
Miener v. Missouri, 673 F.2d 969 (8th Cir. 1983),
cert. denied, 103 S.Ct. 215 (1982) ......... 8
Mills v. Board of Education, 348 F. Supp. 866
i nae GOD "a do tiala {soe ode w eae ees a hbk en 24
Monahan v. Nebraska, 687 F.2d 1164 (8th Cir.
1982), cert. denied sub nom. Rose v. Nebraska,
ey neh. IE ED so ea aig a Vins a aceice 27
Morton v. Mancari, 417 U.S. 535 (1974) ....... 17
New Mexico Association for Retarded Citizens v.
New Mexico, 678 F.2d 847 (10th Cir. 1982) 11, 19
New York State Association for Retarded Children
v. Carey, 466 F.Supp. 479, 466 F.Supp. 487
(E.D.N.Y. 1978), aff'd, 612 F.2d 644 (2d Cir.
SES a n's cotta Mar din Mabe en ae vy bea ae 11, 13, 18
North Dakota v. United States, 103 S.Ct. 1095
Perse 0, Asc Mee eek oredr ds Le alhaeree 12
Northcross v. Board of Education, 412 U.S. 427
SE a i hs PRE Vas Wil oaks SL oe kee i)
Patsel v. District of Columbia Board of Education,
530 F.Supp. 660 (D.D.C. 1982) .......... 15, 22
Pennsylvania Association for Retarded Citizens v.
Pennsylvania, 334 F.Supp. 1257 (E.D.Pa.
1971), 343 F.Supp. 279 (E.D.Pa. 1972) ... 2,4, 24
iv
TABLE OF AUTHORITIES
Cases: Page
Posadas v. National City Bank, 296 U.S. 497
CRED ca ie vcs Cok bet eed baeeekas ut eres 17
Pratt v. Board of Education of Frederick County,
674 F.9d 250 (4th Cir. 1062) . bocce ccccce 22
Rabinowitz v. New Jersey State Board of Education
550 F.Supp. 481 (D.N.J. 1982) ............ 5
Radzanower v. Touche Ross & Co., 426 U.S. 148
CRIED 0 3s oe ods 4 baa CeCe ee 14,17
Robert M. v. Benton, 671 F.2d 1104 (8th Cir. 1982) . 27
S-1 v. Turlington, 635 F.2d 342 (5th Cir. 1981) cert.
denied, 454 U.S. 1030 (1961) ....... 8.00. 1]
Sanders v. Marquette Public Schools, 561 F.Supp.
SSDS CHURN. BO ie oi i ele ent 11
Smith v. Cumberland School Committee, 703 F. 2d 4
CES SOD. Giada ceneans 8, 12, 16, 25, 27
Southeastern Community College v. Davis, 442 U.S.
Se MD: eee sin Shad case Pees es 11
Tatro v. Texas, 625 F.2d 557 (5th Cir. 1980), on re-
mand, 516 F.Supp. 968 (N.D. Tex. 1981), affd,
703 F.2d 823 (5th Cir. 1983), cert. granted, 52
U.S.L.W. 3435 (Dec. 5, 1983) (No. 83-558) 11, 22
Timms v. Metropolitan School Dist., 718 F.2d 212
CUD ED. BD ao Week's: era bates een 11, 22, 27
Turillo v. Tyson, 535 F. Supp. 577 (D.R.I. 1982) . 15
United Handicapped Federation v. Andre, 622 F.2d
DOR COUN Ce, TONG) ois Fis he pelkebvawatins 10
Watt v. Alaska, 451 U.S. 259 (1981) ......... 14,17
William S. v. Gill, 536 F. Supp. 505 (N.D. Ill. 1982) . 24
TABLE OF AUTHORITIES
Cases: Page
Young v. Kenley, 641 F.2d 192 (4th Cir. 1981), cert.
denied sub nom. Long v. Bonnes, 455 U.S. 961
Ne, hr ge cong Ae even, nb ec Wd HOO e204 10
Constitutional Provisions:
United States Constitution, Amendment XIV, Due
Pg sl clan we > 6.04 ore ho 7, 23, 24, 26
United States Constitution, Amendment XIV, Equal
a eer eee 7, 23, 24, 26
Statutes and Regulations:
Civil Rights Act of 1964, Title VI, 42 U.S.C.A. Sec-
aS aon la ns do fb: von 07vole Spreads 8, 18
Civil Rights Act of 1964, Title VII, 42 U.S.C.A. Sec-
Ne LS Sais nace a pice eeek eae 10, 20
Civil Rights Attorney's Fees Awards Act, 42
OB Ee | errs ee passim
Education Amendments of 1972, Title !X, 20
U.S.C.A, Section 1661 66909. 0.0.00 ecscvces 8
Education for All Handicapped Children Act (P.L.
94-142), 20 U.S.C.A. Section 1401 et seg. . passim
20 U.S.CCA. Section 140101)... circ cneeccs 17
20 U.S.C.A. Section 1401(19) .......sc000. 14
20 U.S.C.A. Section 1412(2)(B) ........... 17
Rehabilitation Act of 1973, Section 504, 29 U.S.C.A
SD AE Lh cha peace sit ee dade oie s passim
Rehabilitation Act of 1973, Section 505 (P.L. 95-
602), 29 U.S.C.A. Section 794a(b) ....... passim
Rehabilitation Act of 1973, 29 U.S.C.A. Section
EE | dis 6 heels ewe KORE eb Dee es eatebae 17
ap Cee I Eo lea. 0 tsa. sss © op wtieighorals 20
TABLE OF AUTHORITIES
Page
42 U.S.C.A. Section 1983 ......... 21, 23, 24, 27, 28
42 U.5.C.A. Sections 1066(3) ... ccc cceene 21
34 C.F.R. Part 104
34 C.F.R. Past 104, Subpart D ...........).. 10
34 C.F... Gection 3046.5KNZ) . nn sec cncnen 10
eR ee er ree 17
34 C.F.R. Section 104.33(b)(2) ............ 14
en Ph a re 15
41 Fed. Reg. 56967 (Dec. 30, 1976) ............ 18
42 Fed. Reg. 22690-92 (May 4, 1977) ........... 18
oo ee a) 18
Legislative Materials:
en, CD BUTE. o 0-6 60.06 baw doo wa be 16
121 Cong. Rec. (1975)
SE RUPE 5 5 bc web cece voto 28
SE I ED 5 00 ko 'u sin ween avd aviby 28
Be GL GUO. BUMPED icc vce cc ccc cece 28
ee ee ok saab es cles sop ee 28
Se IE, wag. 'o a oe! w a's 0 6 Baa Bie 28
Rs a nen 28
See Es ENED nc ce vp bd we eb odeve 28
RL CRUD ch ty oye eee sawabe des 28
po | ee | 28
Se ER UD oo icles cavers eceswee 28
124 Cong. Rec. (1978)
ae Re er eee i)
ee Gens GUE GENIE) cw ba a oAera le h.d o.e-t oc i]
H. Rep. 94-332, 94th Cong., Ist Sess. (1975) ..... 28
S. Rep. No. 94-168, 94th Cong., Ist Sess. (1975) re-
printed in 1975 U.S. Code Cong. & Adm. News
Pe ad a OF A Rae KAS wae e sod 19, 20, 28
TABLE OF AUTHORITIES
Page
S. Rep. 94-455 (Conf. Rep.), 94th Cong., Ist Sess.
(1975), reprinted in 1975 U. S. Code Cong. &
PE IEE 6 Wh 0.56. 007d b\alw'nc tis pe BS wee 28
Other Authorities:
Education for the Handicapped Law Report, vols. 2,
re Re re 9 ee 13
National Center for State Courts, Student Litiga-
tion: A Compilation and Analysis of Civil
Cases Involving Students, 1977-1981 (1981) . 4
INTEREST OF AMICI CURIAE
Pursuant to Rule 36 of the Rules of the Supreme
Court,' amici file this brief in support of petitioners
Thomas, Ursula and Tommy Smith.
Amici are 15 non-profit organizations concerned
with the welfare of handicapped individuals.? As such,
amici count among their members the parents of thou-
sands of handicapped children who depend on the pub-
1. Letters of consent to the filing of this brief are being lodged
with the Clerk of the Court.
2. Amici include:
(1) The Association for Retarded Citizens of the United
States, a voluntary organization of 300,000 members devoted to
promoting the welfare of mentally retarded children and adults;
(2) The National Mental Health Association, a citizens’ or-
ganization of one million lay and professional members whose
primary purpose is to encourage efforts to provide better educa-
tional and other services for mentally ill children and adults;
(3) The American Orthopsychiatric Association, founded
in 1924. AOA is a professional educational organization of more
than 10,000 psychologists, psychiatrists, nurses, social work-
ers, educators and other individuals who serve mentally ill and
mentally retarded persons;
(4) The American Council of the Blind, the nation’s larg-
est non-profit membership organization of blind and visually
impaired individuals. ACB seeks to ensure that blind people, in-
cluding blind school-aged youngsters, have the opportunity to
participate fully in all aspects of American life;
(5) The Affiliated Leadership League of and for the Blind
of America, a non-profit organization consisting of eighty na-
tional, state and local organizations of and for blind people, in-
cluding almost all of the national organizations of and for blind
people. The ALLB is dedicated to advancing the rights of and
obtaining services for blind people;
(6) The National Association of the Deaf, a national non-
profit organization of approximately 18,000 members who are
hearing-impaired adults, parents of hearing-impaired children,
and professionals who serve deaf individuals. The NAD is the
largest consumer organization of hearing impaired people in
the United States;
(7) The International Association of Parents of the Deaf,
an international organization composed primarily of parents of
deaf individuals. The purpose of IAPD is to provide information
2
lic education system for their schooling. The issue pre-
sented herein — the availability of attorney's fees to
parents who prevail in cases seeking special education
for their handicapped children — is therefore of acute
practical concern to amici.
NOTE — (Continued)
and support to families with children who are deaf or hard of
hearing;
(8) The American Coalition of Citizens with Disabilities, a
national association composed of national, state and local or-
ganizations of and for disabled persons. ACCD represents some
eight million disabled individuals, parents of disabled persons,
and service providers, and is the only national coalition of dis-
ability groups of all types;
(9) The Disability Rights Education and Defense Fund, a
non-profit corporation founded in 1979 by disabled adults and
parents of disabled children. DREDF addresses issues of dis-
ability rights from the perspective that all disabled people are
entitled to live full and integrated lives;
(10) The Developmental Disabilities Advocacy Network of
Pennsylvania, an independent, non-profit agency which has
been designated by the Governor of Pennsylvania as the Com-
monwealth’s Protection and Advocacy System. JAN is re-
sponsible for providing protection and advocacy services to
Pennsylvania's developmentally disabled children and adults;
(11) The Pennsylvania Association for Retarded Citizens,
an organization of approximately 14,000 persons most of whom
are parents of retarded individuals. PARC has long been con-
cerned with the educational services available to retarded chil-
dren and brought the landmark case concerning the right of
such children to attend public school, PARC v. Pennsylvania,
334 F.Supp. 1257 (E.D.Pa. 1971), 343 F.Supp. 279 (E.D.Pa.
1972);
(12) The Pennsylvania Association for Children With
Learning Disabilities, founded in 1967, an organization of ap-
proximately 800 persons most of whom are parents of learning-
disabled children. PACLD assists parents in understanding
their children’s rights to special education services and obtain-
ing the services to which they are entitled;
(13) Advocacy, Inc., an independent, non-profit organiza-
tion which serves as the Protection and Advocacy agency for
the State of Texas. As such, Advocacy, Inc. provides direct ser-
vices to developmentally disabled children and adults through-
out Texas;
3
Parents of handicapped youngsters labor under fi-
nancial burdens unfamiliar to those who have non-
disabled children. Expenditures for special medical pro-
cedures, therapies, psychological treatment and the like
are the norm rather than the exception. Such expendi-
tures typically leave little or no funds with which to re-
tain a lawyer. Yet, as this case shows, legal representa-
tion is sometimes necessary in order to secure the
handicapped child’s basic educational entitlements.
When a legal battle occurs, parents may — as in this
case — find themselves opposed by an impressive array
of legal talent representing local school authorities as
well as state education officials. Parents cannot take on
such adversaries, even if their child’s future is at stake,
without the assistance of an attorney; parents who can-
not afford to hire an attorney therefore generally cannot
assert their child’s rights. Agencies such as amici, more-
over, can provide legal representation in only a small
percentage of cases.
The consequence of an affirmance herein, there-
fore, will be that violations of the rights of handicapped
children will go without redress. This might give little
cause for concern if the controversies at issue involved
only esoteric disputes over educational methodology;
such, however, is not the case.* As Tommy Smith's case
(14) United Cerebral Palsy of New York City, Inc., a non-
profit corporation formed to advance the interests of cerebral
palsied individuals in New York. UCP provides direct, services
to children and adults and conducts public and professional
education and advocacy programs;
(15) Statewide Youth Advocacy, Inc., a not-for-profit cor-
poration, located in Rochester, N.Y., and organized in 1976 for
the purpose of securing the rights of children and youth to
quality public services in the area of child welfare, juvenile jus-
tice, and public education.
3. Indeed, such disputes often will not raise legally cognizable
claims. Bd. of Educ. v. Rowley, 458 U.S. 176 (1982).
4
demonstrates, these lawsuits — while relatively rare? —
often involve the fundamental problem of discriminatory
exclusion from education opportunity. Congress has
clearly provided that in such cases, as in other litigation
to secure civil and constitutional rights, a prevailing
plaintiff shall recover attorney's fees. For these reasons,
amici have sought this opportunity to be heard and to
urge reversal of the decision below.
4. The total number of such lawsuits is relatively small. In
1980, for example, fewer than .007% of children (256 children na-
tionwide) in publicly funded special education programs filed a
complaint in either state or federal court relating to any aspect of
their special education. National Center for State Courts, Student
Litigation: A Compilation and Analysis of Civil Cases Involving
Students, 1977-1981, 22 (1981).
o
STATEMENT OF THE CASE
Amici adopt petitioners’ Statement of the Case, with
the following additional observations.
This litigation arose when Rhode Island education
authorities — i.e., respondents and a local school board
— disagreed with the Rhode Island Department of Men-
tal Health, Retardation and Hospitals (MHRH) over the
question of which of them was responsible for the edu-
cation of Tommy Smith, an eight-year-old handicapped
child. Because Tommy was emotionally disturbed, re-
spondents took the position that MHRH should educate
him; MHRH, which had no services available for
Tommy and in any event would not have provided ser-
vices free of charge to Tommy's parents, contended that
Tommy was respondents’ responsibility.
The agencies did not, however, resolve their dis-
agreement through inter-agency negotiation or by seek-
ing a declaratory judgment in a state court. Instead, in
an “outpouring of bureaucratic compassion,” cf.
Rabinowitz v. New Jersey State Board of Education, 550
F.Supp. 481, 482 (D.N.J. 1982), they both simply de-
clined to serve Tommy, thus shifting to Tommy’s par-
ents the burden of obtaining a judicial resolution of the
inter-agency dispute. That task required more than five
years of federal litigation.
At no time did this litigation involve any question
over whether Tommy needed special education services,
or whether he was entitled to receive such services from
the State. There was likewise no dispute over the con-
tent of the program that Tommy should receive or the
facility in which that program should be delivered. Thus,
the issues presented in Board of Education of the
Hendrick Hudson School District v. Rowley, 458 U.S.
176 (1982), never arose here.
Since this lawsuit was needed not in order to make
any determination about Tommy, but rather to sort out
the respective duties of various Rhode Island State agen-
6
cies, it is ironic that the task of prosecuting the case fell
upon Tommy’s parents. Nevertheless, because their son
would otherwise have received no education, petitioners
had no choice but to litigate the matter in the District
Court, the Supreme Court of Rhode Island, and the
Court of Appeals for the Fifth Circuit. The substantial at-
torney’s fees that the Smiths incurred during this ex-
tended odyssey are the subject of the present proceed-
ing.
=
SUMMARY OF ARGUMENT
Petitioners are entitled to a fee award under each of
two statutes: §505 of the Rehabilitation Act of 1973, 29
U.S.C.A. 794a(b) (Ҥ505"), and the Civil Rights Attor-
ney’s Fees Awards Act, 42 U.S.C.A. 1988 (“$1988”).
Fees are available under §505 because petitioners
raised a substantial claim under §504 of the Rehabilita-
tion Act, 29 U.S.C.A. 794 (“§504”"), i.e., that respondents
had discriminated against Tommy on the basis of his
handicap; and because petitioners obtained all of the re-
lief that they sought. §505, which expressly authorizes a
fee award under such circumstances, contains no ex-
ception for cases in which plaintiffs’ claim might also
have been raised under the Education for All Handi-
capped Children Act, 20 U.S.C.A. 1401 et seq.
(“EAHCA’”). Moreover, the EAHCA did not expressly or
by implication limit or preclude petitioners’ §504 claim.
Fees should be awarded under §1988 because peti-
tioners raised substantial Due Process and Equal Protec-
tion Claims and obtained all of the relief that they
sought. Section 1988 contains no exception for cases in
which constitutional claims are ultimately avoided in fa-
vor of a decision on statutory grounds; on the contrary,
settled precedent dictates that fees be awarded in such
cases.
8
ARGUMENT
I. PETITIONERS ARE ENTITLED TO AN AWARD OF
ATTORNEY’S FEES UNDER §505 OF THE REHA-
BILITATION ACT OF 1973
A. Petitioners Prevailed in a Case Raising Substantial
Claims Under §504 of the Rehabilitation Act and are
Therefore Entitled to Attorney's Fees Under §505 of
That Act
As a basis for an award of fees in this case, petition-
ers invoked §505 of the Rehabilitation Act of 1973, 29
U.S.C.A. 794a (Ҥ505"). That statute expressly author-
izes fee awards to prevailing parties in cases raising
claims under §504 of the Rehabilitation Act, 29 U.S.C.A.
794 (“§504”).
The Court of Appeals did not dispute petitioners’ as-
sertion that they had raised §504 claims or that they had
“prevailed” within the meaning of §505.° Rather, the
court held that another statute — the Education for All
Handicapped Children Act (EAHCA)° — prohibits such
awards in cases that also fall within the scope of that
statute, even if all of the requirements of §505 are met.
5. The Court of Appeals questioned whether a private cause of
action exists under §504, but did not rest its holding on this ground.
Smith v. Cumberland School Committee, 703 F. 2d 4, 9 (1st Cir.
1983). Every other Court of Appeals to consider the issue has found
such a cause of action. Miener v. Missouri, 673 F.2d 969 (8th Cir.
1983), cert. denied, 103 S.Ct. 215 (1982) (collecting cases). More-
over, this Court has held that a private right of action exists to en-
force Title VI of the Civil Rights Act of 1964, Guardians Ass'n v.
Civil Service Commission, 103 S.Ct. 3221 (1983), after which §504
was patterned, Community Television of Southern California v.
Gottfried, 103 S.Ct. 885, 892 (1983). Cf. Cannon v. University of
Chicago, 441 U.S. 677 (1979) (private right of action under compa-
rable language of Title IX of Education Amendments of 1972). The
question of the existence of a private cause of action under §504 is
presently before this Court in Le Strange v. Consolidated Rail Corp.,
687 F.2d 767 (3d Cir. 1982), cert. granted sub nom. Consolidated
Rail Corp. v. Darrone, 103 S.Ct. 1181, 1765 (1983) (No. 82-862).
6. 20 U.S.C. §1401 et seq.
9
In so holding, the court imported into §505 an exception
that appears nowhere in the language or legislative his-
tory of §505, and accomplished the illogical result of
permitting a statute enacted in 1975 partially to repeal
by implication one enacted three years later.
Section 504 provides in relevant part:
No otherwise qualified handicapped individual in
the United States, as defined in §706(7) of this title,
shall, solely by reason of his handicap, be excluded
from the participation in, be denied the benefits of,
or be subjected to discrimination under any pro-
gram or activity rece: \g Federal financial assis-
tance... (
Section 505(b), the attorney's fees statute associated
with §504, provides:
In any action or proceeding to enforce or charge a
violation of a provision of this title [including §504),
the court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable at-
torney’s fee as part of the costs.
The language of §505 is virtually identical to that of
the Civil Rights Attorney's Fees Awards Act of 1976, 42
U.S.C.A. §1988, and is therefore to be given a like con-
struction. Northcross v. Board of Education, 412 U.S.
427(1973); Hensley v. Eckerhart, 103 S.Ct. 1933, 1939,
n.7 (1983).’ Accordingly, as under §1988, a party “pre-
vails” within the meaning of §505 by raising a substan-
tial §504 claim and by achieving at least some of the
benefit sought through the litigation, Hensley v.
~~
7. The legislative history further confirms Congress’ intent
that the statutes be similarly construed. See 124 Cong. Rec. 30346
(remarks of Senator Cranston, author of the provision, emphasizing
intent “that interpretation of the attorney's fee provision . . . be anal-
ogous to interpretations of the Civil epee clin Fees Act of
1976"); 37508 (Senator Stafford) (1978).
10
Eckerhart, supra, 103 S.Ct. at 1939. It is immaterial
whether such benefit is obtained by way of an actual de-
termination of the §504 claim, a settlement, or (as here)
a favorable determination on another, non-fee claim.
Moreover, where relief is obtained by way of settlement
or on another legal ground, the court need not determine
whether the plaintiff would have won on the merits of
the §504 claim had the matter proceeded to decision.
Maher v. Gagne, 448 U:S. 122 (1980); United Handi-
capped Federation v. Andre, 622 F.2d 342 (8th Cir.
1980); Disabled in Action v. Mayor & City Council of
Baltimore, 685 F.2d 881 (4th Cir. 1982).* Finally, where
a plaintiff has “prevailed” by any of the above routes,
fees should ordinarily be awarded. Hensley v. Eckerhart,
supra, 103 S.Ct. at 1937.
There is no question that petitioners herein raised
substantial claims under §504. In their Complaint, peti-
tioners charged that that statute was violated by respon-
dents’ proposal to terminate the funding for Tommy's
educational program. Moreover, that action was to be
taken precisely because of Tommy's handicap. As re-
spondents acknowledged, it was Tommy's emotional dis-
turbance that led them to decide that they would no
longer take responsibility for his education. Respondents
proposed that Tommy instead be served by the public
mental health system, which had a lengthy waiting list
for services and would have charged Tommy’s parents a
fee for any services provided. By contrast, respondents
8. See also comparable decisions under the attorney's fee provi-
sion of Title VII of the Civil Rights Act of 1974, 42 U.S.C. §2000e-
5(k), which make clear that the policy of avoiding unnecessary de-
terminations on the merits extends to statutory as well as
constitutional claims. Young v. Kenley, 641 F.2d 192 (4th Cir.
1981), cert. denied sub nom. Long v. Bonnes, 455 U.S. 961 (1982).
A contrary rule would create a substantial disincentive to settle-
ment, since there would be no possibility of avoiding an eventual
decision on the underlying claims; moreover, the court would be
burdened with a full trial on the merits in the context of a collateral
motion.
11
provided a free education to all non-handicapped chil-
dren and to all children with handicaps other than emo-
tional disturbance.”
Tommy’s situation was thus precisely that pro-
scribed by §504: he was to be “excluded from the partici-
pation in, .. . denied the benefits of, [and] subjected to
discrimination” within a federally-assisted program as a
result of his handicap. The courts have had no difficulty
finding a §504 violation in cases of total, or even partial,
exclusion from free educational services. Tatro v. Texas,
703 F.2d 823 (5th Cir. 1983), cert. granted, 52 U.S.L.W.
3435 (Dec. 5, 1983) (No. 83-558); New Mexico Associ-
ation for Retarded Citizens v. New Mexico, 678 F.2d
847 (10th Cir. 1982); New York State Association for
Retarded Citizens v. Carey, 612 F.2d 644 (2d Cir. 1979);
Hairston v. Drosick, 423 F. Supp. 180 (S.D.W.Va.
1976).'°
9. Second Amended and Supplemental Complaint at 8.
10. Indeed, while the issue is not presented in this case, the
courts have found §504 violations not only where a child was par-
tially or totally excluded from services, but also where the services
provided were inappropriate — i.e., not suited to the child’s particu-
lar needs. 34 C.F.R. Part 104, Subpart D; New Mexico Ass’n for Re-
tarded Citizens v. New Mexico, supra; Georgia Ass'n for Retarded
Citizens v. McDaniel, 716 F.2d 1565 (11th Cir. 1983); S-1 v.
Turlington, 635 F.2d 342 (5th Cir. 1981), cert. denied, 454 U.S.
1030 (1981); Jose P. v. Ambach, 557 F. Supp. 1230 (E.D.N.Y.
1983); Sanders v. Marquette Public Schools, 561 F.Supp. 1361
(W.D.Mich. 1983); contra, Timms v. Metropolitan School Dist., 718
F.2d 212 (7th Cir. 1983). Such holdings are consistent with this
Court's decision in Southeastern Community College v. Davis, 442
U.S. 397 (1979). In Davis, the Court held that respondent was not a
“qualified” handicapped person within the meaning of §504. By
contrast, Tommy Smith and all other children of school age are
“qualified” to receive an education. 34 C.F.R. §104.3(k) (2); New
Mexico Ass'n, supra; Jose P., supra, 557 F. Supp. at 1235-36. More-
over, the education provided must be meaningful in light of the
handicapped child's needs if discrimination is to be avoided, cf. Lay
v. Nichols, 414 U.S. 563 (1974). The Court need n * reach this is-
sue, however, since petitioners’ claim was that Tominy was totally
excluded from respondents’ program. See Marvin H. v. Austin
Indep. School Dist.. 714 F.2d 1348, 1356, n. 13 (5th Cir. 1983).
12
There is also no doubt that petitioners obtained pre-
cisely the relief that they sought under §504, i.e., an or-
der compelling respondents to educate Tommy. To be
sure, that order was premised primarily on state law, the
District Court finding it unnecessary to reach the merits
of petitioners’ federal claims. The Court of Appeals ac-
knowledged, however, that this fact did not defeat peti-
tioners’ entitlement to fees under §505: “|A]ttorney’s
fees are available under [§505] whenever a_ party
presents a substantial §504 claim even if they do not
ultimately prevail under that claim,” 703 F.2d at 9.
Nevertheless, attorney's fees under §505 were de-
nied. The difficulty was that this action not only raised
§504 claims but also “|fell] within the parameters of”
another statute — the EAHCA. 703 F.2d at 7. Under
these circumstances, the court held, “the EAHCA's
comprehensive remedial scheme entails a rejection of
fee-shifting that properly limits the fees provision of the
more general Rehabilitation Act.” 703 F.2d at 10. In the
court’s view, because the EAHCA did not expressly au-
thorize fee awards, such awards were also barred under
§505 with respect to §504 claims that might have been
decided under the EAHCA.
The court’s conclusion contravenes the express lan-
guage of §505, which contains no exception for §504
cases that also implicate other statutes. On the contrary,
§505 authorizes a fee award to the prevailing party in
“any” action or proceeding to enforce §504. This Court
has made clear the result that must be reached under
these circumstances. “Absent a clearly expressed legis-
lative intention to the contrary, [the] language [of a stat-
ute] must ordinarily be regarded as conclusive.” North
Dakota v. United States, 103 S.Ct. 1095 (1983).
The legislative history of §505 lends no support to
the construction adopted by the Court of Appeals. Sec-
tion 505 was enacted in 1978,'' several years after pas-
11. P.L. 95-602, Title I. §119.
13
sage of §504 and the EAHCA. By that date, cases involv-
ing the education of handicapped children had been
decided under both statutes'? and the Department of
Education was administratively enforcing both acts.'*
Congress was therefore necessarily aware, when it en-
acted §505, that one result of that act would be to allow
attorney's fees in certain cases that also fell within the
scope of the EAHCA. Nevertheless, Congress made no
exception for such cases, nor was any such exception
ever discussed. The rule to be applied in these circum-
stances is clear:
We have emphasized in the recent past that “/ojur
individual appraisal of the wisdom or unwisdom of a
particular [legislative] course... is to be put aside
in the process of interpreting a statute.” TVA v. Hill,
437 U.S., at 194, 98 S.Ct., at 2302 (1978). Our task,
rather, is the narrow one of determining what Con-
gress meant by the words it used in the statute;
once that is done our powers are exhausted.
Diamond v. Chakrabarty, 447 U.S. 303, 318 (1980).
The Court of Appeals’ conclusion that §505 incorpo-
rates an exception for claims tat also fall within the
EAHCA is in effect a holding that the EAHCA repealed
§505 by implication with respect to cases presenting
such claims. Such is logically impossible, since §505
was enacted three years after the EAHCA.'* It is un-
12. E.g., Hairston v. Drosick, supra; New York State Ass'n for
Retarded Children v. Carey, 466 F.Supp. 479, 466 F. Supp. 487
(E.D.N.Y. 1978), aff'd, 612 F.2d 644 (2d Cir. 1979); Brown v. Dist.
of Columbia Bd. of Educ., €.A. 78-1646 (D.D.C. Sept. 13, 1978).
Numerous other lawsuits raising claims under both acts had been
filed and were awaiting dec
Soe, the numerous administrative policy interpretations
and gs under both statutes collected in the Education for the
Handicapped Law Report, vols. 2, 3 (CRR Publishing Co. ).
14. The EAHCA was enacted in 1975 as P.L. 94-142; §505
was enacted in 1978 as part of P.L. 95-602.
.
14
usual enough to find that a subsequent statute has re-
pealed an earlier act by implication, Kremer v. Chemical
Construction Co., 456 U.S. 461 (1976); it is entirely un-
precedented to find the reverse.
Amici recognize that a different analysis might be
required if the EAHCA actually forbade awards of attor-
ney’s fees in cases raising claims cognizable under that
statute. Under such circumstances, the EAHCA and
§505 would be in conflict, and the Court would neces-
sarily face the question of which controls. Cf.
Radzanower v. Touche Ross & Co., 426 U.S. 148 (1976).
Such problems of statutory construction do not arise,
however, where (as here) no conflict exists. Watt v.
Alaska, 451 U.S. 259, 266-67 (1981). Congressional si-
lence on the issue of attorney's fees in one statute simply
cannot, under this Court's precedents, constitute the ba-
sis for nullification of express language on the subject in
another enactment.'°
It does not necessarily follow, and the Court need
not here decide, that every case raising claims under the
EAHCA also presents substantial §504 issues and there-
fore may result in a fee award. Arguably, some claims in-
volving the provision of education to a handicapped child
do not constitute substantial claims under §504 and
theretore could not implicate §505.'® That issue, how-
ever, is not present in this case, since petitioners’ claims
15. These principles are entirely consistent with the “Ameri-
can rule” that an award of counsel fees requires express authoriza-
tion, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S.
240 (1975). Alyeska contains no requirement that every statute un-
der which a claim might have been raised contain such an express
provision. Here, since §505 expressly authorizes fees, the require-
ments of Alyeska are fully met.
16. For example, the EAHCA requires that the school system
develop a written “individualized education program,” containing
specified information and developed in accordance with specified
procedures for each handicapped child, 20 U.S.C. §1401(19). Sec-
tion 504 does not necessarily impose identical requirements, 34
C.F.R. §194.33(b) 2).
15
here were well within the anti-discrimination mandate
of §504.'? Section 505 clearly instructs at least that fees
be made available here, and in the face of such clear
Congressional instructions this Court's “inquiry comes
to an end,” Howe v. Smith, 452 U.S. 473, 483 (1981).'*
Thus, the plain language as well as the legislative
history of §505 mandate an award of fees to petitioners
herein.
17. This is not a case in which plaintiffs sought to establish the
content of an “appropriate” education for a handicapped child, as
did plaintiffs in Bd. of Educ. v. Rowley, supra, There was no dispute
between the parties concerning the appropriateness of Tommy's
program; the question was instead whether respondents would con-
tinue to fund that program. Therefore, the issue of whether attor-
ney's fees are recoverable by the prevailing party in a case such as
Rowley is not before the Court.
18. This construction of §505 also does not imply that plaintiffs
in such cases are relieved from their obligation to exhaust adminis-
trative procedures. Virtually any §504 claim that also falls within
the EAHCA is, like the EAHCA claim, subject to exhaustion; more-
over, the administrative procedures in question will be either identi-
cal or equivalent to those afforded under the EAHCA. 34 C.F.R.
§ 104.36 provides:
A recipient that operates a public elementary or secondary edu-
cation program shall establish and implement, with respect to
actions regarding the. . . educational placement of persons
who, because of handicap, need or are believed to need special
instruction or related services, a system of procedural safe-
guards that includes notice, an opportunity for the parents or
guardian of the person to examine relevant records, an impar-
tial hearing with opportunity for participation by the person's
parents or guardian and representation by counsel, and a re-
view procedure. Compliance with the procedural safeguards of
§615 of the Education of the Handicapped Act [20 U.S.C.
$1415} is one means of meeting this requirement.
Thus, §505 simply does not come into play in such cases until ex-
haustion has occurred. See Turillo v. Tyson, 535 F.Supp. 577
(D.R.1. 1982); Patsel v. Dist. of Columbia Bd. of Educ., 530 F.Supp.
660, 665 (D.D.C. 1982).
16
B. Section 504 and the EAHCA Grant Indepen-
dently Enforceable Substantive Rights
While it did not decide the issue, the Court of Ap-
peals expressed uncertainty over whether the EAHCA
“indicate|s] a congressional intent to preclude ‘overlap-
ping’ actions under §504.” 703 F.2d at 9-10. If Congress
had intended the EAHCA to “preclude” a plaintiff from
relying on §504 wherever the claim might alternatively
be raised under the EAHCA, attorney's fees under §505
might indeed be unavailable here; concededly, §505 is
inapplicable where there exists no §504 claim. However,
the language and history of the two statutes demonstrate
that they were intended to create independent substan-
tive rights.
Section 504, enacted in 1973, prohibits discrimina-
tion on the basis of handicap in “any” federally-assisted
program. By its terms, §504 applies to federally-assisied
programs of elementary and secondary education as well
as to all other federally-funded activities.'? The EAHCA,
enacted two years later, is a funding statute which au-
thorizes grants to assist states with the education of
handicapped children. In states that choose to accept
such grants, education programs for handicapped chil-
dren are required to meet the substantive requirements
of the EAHCA. Board of Education v. Rowley, supra.
Unquestionably, the requirements of the EAHCA
and §504 overlap in some (although certainly not all )?°
19. In a remark directly applicable to the facts ... the present
case, Senator Humphrey, the primary sponsor of S 3044, the 1972
bill that became the model for §504, stated:
[Too often we keep children, whom we regard as “different” or
a “disturbing influence”,out of our schools and community ac-
tivities altogether, r: han help them develop their abilities
in special classes and Bit
Every child — gifted, normal, and handicapped — has a funda-
mental right to educational opportunity . . .
118 Cong. Rec. 525 (1972).
20. The class of individuals protected by the EAHCA differs
from that protected by §504 in certain respects. See infra; Georgia
17
respects. It does not follow, however, that the EAHCA
displaced §504 with respect to those overlapping areas
— i.e., that it repealed §504 by implication as to such
claims. This Court has consistently held that repeals by
implication are not favored, Kaiser Steel Corp. v.
Mullins, 455 U.S. 72, 88 (1982); Watt v. Alaska, supra,
451 U.S. at 266-67, quoting Morton v. Mancari, 417
U.S. 535, 549 (1974). Such repeals may be found only
under the circumstances specified in Posadas v. Na-
tional City Bank, 296 U.S. 497, 503 (1936):
... (1) [Where provisions in the two acts are in
irreconcilable conflict, the later act to the extent of
the conflict constitutes an implied repeal of the ear-
lier one; and (2) if the later act covers the whole
subject of the earlier one and is clearly intended as a
substitute, it will operate similarly as a repeal of the
earlier act. But, in either case, the intention of the
legislature to repeal must be clear and manifest . . .
Kremer v. Chemical Construction Co., supra, 456 U.S. at
468; Radzanower v. Touche Ross, supra (reaffirming
Posadas). Neither of these requirements, however, is
met here.
First, in the absence of “manifest” Congressional
intent to repeal, no repeal may be found unless an actual
and irreconcilable conflict exists. Watt v. Alaska, supra,
451 U.S. at 266-67; Posadas v. National City Bank,
supra. Here, there is no conflict between the statutes.
The acts are by their terms entirely consistent. More-
over, the substantial body of caselaw decided under both
acts reveals no instance in which such a conflict has
been alleged, much less found to exist. In the absence of
Association of Retarded Citizens v. McDaniel, supra. See also the
differing definitions of “handicapped” under the two statutes, 20
U.S.C. §1401(1) and 29 U.S.C. §706(6); the express age limitation
contained in the EAHCA, 20 U.S.C. §1412(2) (B); and the regula-
tions at 34 C.F.R. $104.4. which have no counterpart under the
EAHCA.
18
a conflict, the mere fact that the EAHCA is more specific
than §504 does not demonstrate that a repeal by implica-
tion occurred.
The federal Department of Education (DOE),?!
which is charged with enforcement of the two statutes,
likewise treats the acts as affording independent, con-
sistent rights. See 42 Fed. Reg. 22690-92 (May 4, 1977)
and 42504 (Aug. 23, 1977) (adopting regulations under
the two acts and stating that such regulations, while dif-
fering in certain respects, are consistent with each
other).** Accordingly, DOE administratively enforces
both statutes.2* DOE’s view that the statutes impose no
conflicting requirements merits deference here. Blum v.
Bacon, 457 U.S. 132 (1982).
Moreover, as the Court of Appeals for the Eleventh
Circuit has observed, the existence of significant
differences between the two statutes argues against the
conclusion that one was intended to displace the other.
Georgia Association of Retarded Citizens v. McDaniel,
supra, 716 F.2d at 1578-79. First, the statutes have two
distinct purposes. §504 is a civil rights statute “pat-
terned after Title VI of the Civil Rights Act of 1964.”
Community Television of Southern California v.
Gottfried, supra, 103 S.Ct. at 892; New York Associ-
ation for Retarded Children v. Carey, supra, 612 F.2d at
649 (§504 “intended to be part of the general corpus of
discrimination law”). The EAHCA, by contrast, is a
funding act. Board of Education v. Rowley, supra. As a
consequence of this distinction, the EAHCA applies only
within those states that accept EAHCA grants. Section
21. In 1979, DOE assumed the functions of the Department of
Health, Education and Welfare in the area of education. For sim-
plicity, we refer to both agencies as “DOE.”
22. See also 41 Fed. Reg. 56967 (Dec. 30, 1976).
23. §504 is enforced by DOE's Office for Civil Rights. The
EAHCA is enforced by DOE's Office of Special Education and Re-
habilitation Services. ;
19
504, however, applies wherever federal assistance is
present, whether in the form of federal education funds
or otherwise. It would be bizarre indeed to conclude that
Congress intended to repeal §504 with respect to certain
types of education claims in states such as Arizona,
which accepts EAHCA grants, but not in New Mexico,
which does not.** As the Eleventh Circuit has observed,
such considerations point strongly to the conclusion
that, even in their areas of overlap, the two acts grant in-
dependent substantive rights. Georgia Association of
Retarded Citizens v. McDaniel, supra, 716 F.2d at 1579.
It is not merely the content of the two statutes that
argues against any inference that one was intended to
repeal the other. The legislative history shows unequivo-
cally that Congress intended precisely the opposite. Re-
ferring to §504, the Senate Report on the EAHCA
stated:
In earlier legislation adopted by this Committee and
enacted into law, strong positive action was taken to
prohibit discrimination on the basis of handicapping
conditions in all programs receiving Federal funds.
Regulations implementing this program (§504 of
the Rehabilitation Act of 1973) are in draft form at
this time. The Committee takes further steps in this
legislation to provide that positive action be taken
against erroneous classification of poor, minority
and bilingual children and against the invalid use of
testing.?°
Thus, the Senate acknowledged that §504 was in force,
that regulations thereunder were in preparation, and
that the EAHCA was intended not to supplant §504 but
to afford “further” protections. The Senate additionally
stated:
24. See New Mexico Association for Retarded Citizens v. New
Mexico, supra.
25. S. Rep. No. 94-168, 94th Cong., Ist Sess. 28 (1975), re-
printed in 1975 U.S. Code Cong. & Adm. News 1425, 1451-52.
~
20
[T]he Committee expects the Commissioner of
Education to take such action as may be necessary
consistent with his responsibilities under §504 of
the Rehabilitation Act of 1973 to assure that
physical education and all other services normally
provided to all children are made available for
handicapped children.?°
In the face of explicit indications of Congressional intent
not to preclude the application of §504, and in the ab-
sence of even a suggestion to the contrary, it is impossi-
ble to find that an implied repeal occurred. Kremer v.
Chemical Construction Co., supra.
The circumstances of this case are therefore totally
unlike those in such cases as Brown v. General Services
Administration, 425 U.S. 820 (1976). In Brown, the
Court found extensive evidence in the language and leg-
islative history of Title VII of the Civil Rights Act of 1964
that Congress had intended, by passing that statute, to
create the sole cause of action for federal employment
discrimination. However, the Court also made clear that
absent evidence of Congressional intent to restrict po-
tential causes of action, one statute will not be held to
have precluded or repealed the rights available under
another. Thus, for example, Title VII does not preempt
claims under 42 U.S.C.A. §1981 with respect to private
employment. Brown, 425 U.S. at 833; Johnson v. Rail-
way Express Agency, 421 U.S. 454 (1975).?? As demon-
strated above, and as the Eleventh Circuit has observed
26. S. Rep. No. 94-168, supra, at 12, reprinted in 1975 U.S.
Code Cong. & Adm. News, supra, at 1436.
27. See also Adickes v. S. H. Kress & Co., 398 U.S. 144, 150 n.5
(1970) (Title II of Civil Rights Act of 1964 did not preclude cause of
action on same facts under 42 U.S.C. 1983 and Fourteenth Amend-
ment); Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) (no
preclusion of one civil rights statute by another); cf. Carlson v.
Green, 446 U.S. 14 (1980) ( Bivens action available in the absence of
“explicnt’ Congressional declaration” that such is precluded by
Federal Tort Claims Act).
21
in distinguishing Brown, a finding of Congressional in-
tent to preclude or repeal simply cannot be made with
respect to the EAHCA and §504. Georgia Association of
Retarded Citizens v. McDaniel, supra, 716 F.2d at 1579.
Likewise distinguishable from the present case are
Great American Federal Savings & Loan Association v.
Novotny, 442 U.S. 366 (1979), and Middlesex County
Sewerage Authority v. National Sea Clammers Associ-
ation, 453 U.S. 1 (1981). In those cases, plaintiffs’
claims arose under federal statutes that provided sub-
stantive rights together with comprehensive enforce-
ment mechanisms. In both instances, plaintiffs failed to
utilize the prescribed enforcement procedures, instead
seeking to enforce the statutes via 42 U.S.C.A.
§§1985(3) and 1983, respectively. The question was
whether the use of these alternative enforcement routes
was permissible. As in Brown, the Court resolved the
issue by examining Congress’ intent, concluding in both
cases that the legislative history showed evidence of a
plan to preclude enforcement via routes other than those
specifically prescribed. As we have demonstrated, how-
ever, the present case involves an entirely different situ-
ation: here there is no evidence that Congress intended
by enacting the EAHCA to preclude the assertion of
§504 claims based on similar facts.
Moreover, the statutes invoked by plaintiffs in
Novotny and Middlesex — 42 U.S.C.A. §§1985(3) and
1983 — themselves create no rights. Hence, as the
Court recognized, neither case presented an issue of
implied repeal of substantive entitlements. Novotny, 442
U.S. at 376. If — as Novotny and Middlesex teach — a
strong showing of Congressional intent is required
before preclusion of an enforcement route will be found,
surely even more compelling evidence is needed in order
to find that Congress actually withdrew substantive en-
titlements. Such evidence is lacking, however, with re-
spect to the rights conferred by §504.
In summary, neither §504 nor §505 contains an ex-
ception, express or implied, for cases that also fall within
22
the scope of the EAHCA. Accordingly, the courts have
awarded fees under §505 in numerous cases wherein
EAHCA claims were also asserted. Tatro v. Texas, 625
F.2d 557 (5th Cir. 1980), on remand, 516 F.Supp. 968
(N.D. Tex. 1981), affd, supra, cert. granted, supra;
Pratt v Board of Education of Frederick Co., 674 F.2d
259 (4th Cir. 1982); Gregg B. v. Board of Education, 535
F.Supp. 1333 (E.D. N.Y. 1982); Patsel v. District of Co-
lumbia Board of Education, supra.”* As the Patsel court
observed, 530 F.Supp. at 565-66:
No indication has been found that the EHA alone
must be applied to cases in which the EHA is appli-
cable, i.e. that the two were mutually exclusive. . . .
[§505]. does not state that fees should not be
awarded if the action or proceeding is one which
happens to involve rights in addition to those
secured by a provision of the Rehabilitation Act. In
other words, §505 is not explicitly limited to actions
which can be brought only under a Rehabilitation
Act provision, such as §504, and no other, such as
the EHA. The statute could have been so limited, if
that were the intent, since both the EHA and §504
were already in existence, as were their coordinated
and consistent regulations. It was not limited,
however. .. .
In sum, neither the EHA nor its legislative history
indicates that the EHA was intended to be exclusive
when compared to §504...
The task confronting this Court in relation to §505
is thus straightforward: the plain language of that stat-
ute should be given effect. The judgment of the Court of
Appeals on petitioners’ motion for attorney's fees under -
§505 of the Rehabilitation Act must be reversed.
28. Contra, Timms v. Metropolitan School Dist., supra; Dept.
of Educ. v. Katherine D., No. 82-4096 (9th Cir. Nov. 7, 1983).
23
II. PETITIONERS ARE ENTITLED TO AN AWARD OF
ATTORNEY’S FEES UNDER THE CIVIL RIGHTS
ATTORNEY’S FEES AWARDS ACT
The Civil Rights Attorney’s Fees Awards Act, 42
U.S.C.A. §1988 (hereafter §1988) provides in relevant
part:
In any action or proceeding to enforce a provision of
§§1981, 1982, 1983... of this title, . . . the court, in
its discretion, may allow the prevailing party, other
than the United States, a reasonable attorney’s fee
as part of the costs.
This case is indisputably “an action or proceeding to
enforce” 42 U.S.C.A. §1983 (“§1983”).29 The Smiths
specifically invoked that statute to redress violations of
the Due Process and Equal Protection Clauses of the
Fourteenth Amendment. Indeed, their original Com-
plaint, which was filed before the effective date of the
EAHCA, raised solely constitutional claims. The major
Due Process violation asserted was respondents’ failure
to afford Tommy a hearing before terminating the
funding for his public education program. The Equal
Protection claim was in essence that the termination of
Tommy’s education program on the basis of his handi-
cap was without a rational basis, and therefore consti-
tuted illegal discrimination.*° By way of relicf, the
Smiths sought a preliminary injunction reinstating the
29. §1983 provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdic-
tion thereof to the deprivation of any rights, privileges, or im-
munities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress.
30. Complaint at 3; Second Amended and Supplemental Com-
plaint at 8.
24
funding for Tommy’s program during the pendency of
administrative proceedings, and an order permanently
enjoining respondents to provide Tommy with education
services.*!
In their Amended Complaints, the Smiths also
raised alternative statutory bases for the foregoing relief.
Certainly, the assertion of these statutory theories did
not lessen the viability of the §1983 claims under the
Due Process and Equal Protection Clauses, nor did it re-
move the case from the scope of §1988. On the contrary,
a case raising substantial constitutional claims under
§1983 remains within §1988 even when other legal
grounds are also advanced to support the relief sought.
Maher v. Gagne, supra.*?
A plaintiff “prevails” within the meaning of §1988 if
he “succeeds on any significant issue in litigation which
achieves some of the benefit the parties sought in bring-
ing suit.” Id., 103 S. Ct. at 1939 (1983). It is of no mo-
ment that such benefit is obtained via settlement rather
than through an adjudication. Maher v. Gagne, supra.
Petitioners meet all of the requirements for an
award of fees under §1988. First, their constitutional
claims were clearly substantial. The District Court found
that petitioners were likely to succeed on their Due Proc-
ess claim of entitlement to a prior hearing and granted a
preliminary injunction on that basis, citing Goldberg v.
Kelly, 397 U.S. 254 (1970). Moreover, the courts have
held that the deprivation of educational services to a
child on account of the child’s handicap raises a sub-
stantial Equal Protection Claim. PARC v. Pennsylvania,
supra; Mills v. Board of Education, 348 F. Supp. 866 (D.
D.C. 1972); Fialkowski v. Shapp, 405 F.Supp. 946 (E.D.
Pa. 1975); William S. v. Gill, 536 F. Supp. 505 (N.D. IIL.
1982).
31. Id.
32. Constitutional claims are “substantial” if they are not ines-
capably frivolous under previous decisions. Hagans v. Lavine, 415
U.S. 528, 537-38 (1974).
25
Furthermore, petitioners obtained the relief they
sought: respondents were preliminarily and perma-
nently enjoined to provide free education services to
Tommy. Unquestionably, then, petitioners more than
met the Hensley requirement (“some of the benefit . . .
sought in bringing suit”) for an award under §1988.
Notwithstanding the existence of that statute, how-
ever, the Court of Appeals held that it could find no “af-
firmative congressional sanction for fees in this situa-
tion.” This was because petitioners’ constitutional
claims rested on the same factual bases as their claims
under the EAHCA. 703 F.2d at 7-8. In effect, the court
exempted from the scope of §1988 those cases in which
the EAHCA would have provided an alternative basis for
the relief sought.
Such a construction of §1988 is totally contrary to
this Court’s holding in Maher v. Gagne, supra. Plaintiff
in Maher attacked the validity of a state welfare regula-
tion, basing her challenge — as did petitioners herein —
on constitutional and federal statutory grounds. The
case was eventually settled, and attorney’s fees were
awarded under §1988. This Court affirmed the award,
holding unanimously that the presence of a substantial
constitutional claim brought the case within §1988 re-
gardless of whether the statutory claims alone could
have resulted in a fee award:**
... Congress was acting within its enforcement
power in allowing the award of fees in a case in
which the plaintiff prevails on a wholly statutory,
CN non-civil-rights claim pendent to a substantial con-
es stitutional claim or in one in which both a statutory
“—_-\_><and a Substantial constitutional claim are settled fa-
vorably to\the plaintiff without adjudication. .. .
[Such a fee award “furthers the Congressional goal
of encouraging suits to vindicate constitutional
33. The concurring opinion in Maher makes clear that the en-
tire Court agreed on this point.
26
rights without undermining the longstanding judi-
cial policy of avoiding unnecessary decision of im-
portant constitutional issues.” It is thus an appropri-
ate means of enforcing substantive rights under the
Fourteenth Amendment [citations omitted]... .
The legislative history makes it clear that Congress
intended fees to be awarded where a pendent con-
stitutional claim is involved, even if the statutory
claim on which the plaintiff prevailed is one for
which fees cannot be awarded under the Act.
Maher, 448 U.S. at 132-33 and n. 15.
The principle announced in Maher has been repeat-
edly applied in special education cases in which sub-
stantial constitutional claims were raised. In Espino v.
Besteiro, 708 F.2d 1002 (5th Cir. 1983), the Court of Ap-
peals for the Fifth Circuit reversed the denial of a Sec-
tion 1988 award in a suit asserting thafithe placement of
a handicapped child in a separate icle within the
schoolroom violated his Due Process and Equal Protec-
tion rights. The EAHCA and §504 were also advanced as
alternative theories, and relief was ultimately granted
solely under the EAHCA. Nevertheless, noting that the
constitutional claims had been substantial, the Court of
Appeals held that fees should have been awarded under
§1988. The Court relied on Maher v. Gagne, supra, and
also observed, 708 F.2d at 1010:
Were we to hold, on the facts of this case, that
[plaintiff] is not entitled to §1988 fees because the
district court did not explicitly ground its relief on
§1983, we would in effect be creating a powerful
disincentive to settlement in close cases. Where de-
fendants know that a court is more likely to award
relief on the basis of a non-fee statute whose appli-
cation avoids difficult constitutional questions, they
will have little incentive to settle their differences
with plaintiffs, knowing as they do that a settlement
is very likely to cost them substantial attorney's fees.
27
Federal dockets are already sufficiently crowded
without our creating a disincentive to settlement.
Permitting a court to deny §1988 fees by granting
relief on the basis of a non-fee statute would also
undermine Congress’ intent in enacting §1988 to
create an incentive for plaintiffs to vindicate viola-
tions of their constitutional rights by bringing
§1983 actions.
Similar conclusions were reached by the Fighth
Circuit in Monahan v. Nebraska, 687 F.2d 1164 (8th
Cir. 1982), cer’. denied sub nom. Rose v. Nebraska, 103
S.Ct 1252 (1983); accord, Robert M. v. Benton, 671 F.2d
1104 (8th Cir. 1982). The Second Circuit has taken an
identical approach. Hastings v. Maine-Endwell Central
School District, 676 F.2d 893 (2d Cir. 1982); Jose P. v.
Ambach, 669 F.2d 865 (2d Cir. 1982).*4 But see Timms
v. Metropolitan School District, supra; Department of
Education v. Katherine D., supra.
It does not follow, as the Court of Appeals appar-
ently feared, that the “mere recitation of a §1983 claim”
in a special education case will create a right to attor-
ney’s fees under §1988. 703 F.2d at 8. The courts retain
the power to determine that a constitutional claim as-
serted via §1983 is insubstantial and therefore cannot
support a §1988 award.
The Court of Appeals was also mistaken in its appli-
cation of Middlesex County Sewerage Authority v. Na-
tional Sea Clammers Association, supra, to this case. In
Middlesex, the Court found that Congress had intended
§ 1983 to be unavailable to enforce an anti-pollution stat-
ute. Petitioners in Middlesex had sought such enforce-
ment under the “and laws” language of §1983. How-
ever, Middlesex in no way curtailed the use of §1983 to
enforce rights “secured by the Constitution.” Moreover,
34. Other special education cases reaching like results include
Gary B. v. Cronin, 542 F. Supp. 102 (N.D. Ill. 1982) and Mattie T.
v. Holladay, 522 F. Supp. 72 (N.D. Miss. 1981).
4
‘
28
there exists no other conceivable basis for a finding that
the EAHCA was meant to limit the enforcement of con-
stitutional rights via §1983: the EAHCA itself contains
no such language, and the legislative history expresses
precisely the opposite purpose.*° See also Kremer uv.
Chemical Construction Co., supra (implied repeal only
where “manifest” legislative intent or irreconcilable con-
flict. )
In short, where the constitutional claim is substan-
tial and plaintiff obtains the relief sought thereunder,
the import of § 1988 is clear: fees are to be awarded. Here
there is no dispute over the substantially of petitioners’
claims, nor can there be any doubt that they obtained
the relief that they sought. Under these circumstances,
the Court of Appeals erred in denying petitioners’ re-
quest for attorney’s fees under §1988.
35. The legislative history repeatedly refers to cases defining
the constitutional rights of handicapped children, and expresses the
intent that the grant program authorized by the EAHCA assist the
states in meeting their constitutional obligations. There is not the
slightest suggestion that the statute was intended to curtail the en-
forcement of constitutional rights. S. Rep. 94-168, supra, at 6-8, re-
printed in 1975 U.S. Code Cong. & Adm. News, supra, at 1430-32;
H. Rep. 94-332, 94th Cong., Ist Sess. 3-4, 10 (1975); S. Rep. 94-
455 (Conf. Rep.) 94th Cong., Ist Sess. 28-29 (1975), reprinted in
1975 U. S. Code Cong. & Adm. News 1480, 1482; 121 Cong. Rec.
19485 (remarks of Sen. Williams); 19504 (Sen. Schweiker); 19504-
05 (Sen. Humphrey); 25534 (Rep. Brademas); 25538 (Rep. Har-
ris); 37027 (Rep. Gude); 37029 (Rep. Michel); 37417 (Sen.
Schweiker); 37419 (Sen. Beall); 37420 (Sen. Hathaway) (1975).
29
CONCLUSION
For the foregoing reasons, this Court should reverse
the judgment of the Court of Appeals for the First Cir-
cuit.
Respectfully submitted,
Leonard Rieser
EDUCATION LAW CENTER, INC.
Suite 2100
225 South 15th Street
Philadelphia, PA 19102
(215) 732-6655
Counsel for Amici Curiae
Counsel of Record
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