Petitioners Brief — Dellmuth v. Muth

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——

Supreme Court, U.S.

( ) FILED

) DEC 1 1988

NO. -87-1855 |

| | JO@EPH F. SPANIOL, JR.

IN THE SUPREME COURT /OF_THE CLERK |

UNITED STATES;wwe ..._

OCTOBER TERM, 1987

THOMAS K. GILHOOL,

Petitioner

Vv.

RUSSELL A. MUTH, JR, et al.,

Respondents

On Writ Of Certiorari To The

United States Court Of Appeals

For The Third Circuit

BRIEF FOR PETITIONER

LeRoy S. Zimmerman

Attorney General

Maria Parisi Vickers

Chief Deputy Attorney General

Chief, Eastern Region

Counsel of Record

John G. Knorr, III

Chief Deputy Attorney General

Chief, Litigation Section

Gregory R. Neuhauser

Senior Deputy Attorney General

Attorneys for Petitioner

OFFICE OF ATTORNEY GENERAL

206 State Office Bldg.

Philadelphia, PA 19130

Telephone (215) 560-2402

i. Whether the Education for All

Handicapped Children Act, which makes no

mention of the Eleventh Amendment and

does not refer to State liability, thus.

fails to contain the requisite

unmistakable expression of Congressional

intent needed to abrogate the Eleventh

Amendment immunity of the States?

2. Whether Pennsylvania's Secretary

of Education, a cabinet member and chief

executive officer of the Department of

Education, should be precluded from

deciding special education administrative

appeals under the Act?

TABLE OF CONTENTS

QUESTIONS PRESENTED ..........

TABLE OF AUTHORITIES ........4..

OPINIONS BELOW .....ceeeeeveves

STATEMENT OF JURISDICTION .....

CONSTITUTIONAL PROVISIONS

INVOLVED ..

STATUTORY PROVISIONS INVOLVED..

STATEMENT OF THE CASE .........

RGUMENT

UMMARY OF ARGUMENT ........+.4.-.

I. CONGRESS DID NOT

ABROGATE THE STATES'

ELEVENTH AMENDMENT

IMMUNITY WHEN IT

ENACTED THE EDUCATION

FOR ALL HANDICAPPED

CHILDREN ACT .........

II. THE EHA DOES NOT

PRECLUDE REVIEW OF

DUE PROCESS HEARINGS

BY A CHIEF EXECUTIVE

OFFICER OF THE STATE

AGENCY WHEN THE STATE

AGENCY IS NOT INVOLVED

IN THE DEVELOPMENT OF

THE INDIVIDUALIZED

EDUCATION PROGRAM

oitin

CASES PAGE

Alabama v. Pugh,

438 U.S. 781 (1978) ........ 28

Atascadero State Hospital

v. Scanlon,

473 U.S. 234 (1985) ........ passim.

Brandon E, v. Wisconsin Dept.

of Public Instruction,

595 F.Supp. 740

er. ., BOOED coccccecs 87

Burlington School Committee of

the Town of Burlington v.,_

Department of Education,

471 U.S. 359 (1985) ........ 54,

58, 59

Cain v. Yukon Public

School District,

* 775 F.2d 15

PMs BOGOR. ccccccccces 87

vy. Piphus,

435 U.S. 247 (1978) ......-. 55, 56

Colin K. by John K.

vy, Schmidt,

715 F.2d 1 (lst Cir. 1983).. 87

-iii-

David D. v. Dartmouth

Schoo] Committee,

775 F.2d 411 (lst Cir. 1985)

cert. denied, 475 U.S. 1140

Ta. dngenveucens sweeebouks 39, 40

793 F.2d 1470 (9th Cir. 1986),

affirmed on other grounds sub nom.

Honig v. Doe, No. 86-728

eT ee eee 41

Dugan v. Rank,

a i, Oe CMOS 6no ceews 29

Edelman v. Jordan,

Ee 27,

28, 29,

Employees of Department of

Public Health and Welfare v.

Missouri Department of Public

Health and Welfare,

See Wa ee nD oseetecees 27, 31

ae als Be CD dcctecesece 44, 54

Fitzpatrick v. Bitzer,

ae as Ge OE Sacscdeces 30

Garcia v. San Antonio

469 U.S. 528 (1985) .......... 35, 36

@i Yo

, ,

Are ee

796 F.2d 940 (7th Cir. 1986)

Goldberg v. Kelly,

397 U.S. 254 (1970) .... «uae

Green v. Mansour,

474 U.S. 64 (1985) ..........

672 F.2d 321 (3d Cir. 1982)

Hans v. Louisiana,

134 U.S. 1 (1890) ....-eeeeees

Helms v. McDonald,

647 F.2d 800 (5th Cir. 1981),

cert. denied 455 U.S. 946

458 U.S. 176 (1982) ........

59, 65

-Hensley v. Eckerhart,

461 U.S.C. 424 (1983) .......

Honig v. Doe,

No. 86-728 (Jan. 20, 1988)...

Hortonville Joint School Dist.

No. ] v. Hortonville

Educational Ass'n,

426 U.S. 482 (1976) .....4.4..

58,

41, 58,

Hutto v. Finney,

437 U.S. 678 (1978) .........

749 F.2d 652

CABER CEE. B9OE) ccccccccceces

Miener v. State of Missouri,

673 F.2d 969 (8th Cir.

1982), cert. denied,

459 U.S. 909 (1983) .........

Mills v. Board of Education

, tobeleh at ikea

348 F.Supp. 866 (D.C. 1972)..

Parden v. Terminal Ry. Co.,

377 U.S. 184 (1964) ..........

Pennhurst State School

and Hospital v. Halderman,

465 U.S. 89 (1984) ..........

Pennsylvania Association

for Retarded Children v.

Commonwealth of Pennsylvania,

343 F.Supp. 279

(E.D. Pa. 1971) and

343 F.Supp. 1257

Some DOs BOTED coccccccceces

Quern v. Jordan,

440 U.S. 332 (1979) ........4..

-vi-

59,

27,

29,

28,

passim.

25,

31,

Reitel v. Sonotone Corp..,

8 2 Se FO ae 69

Robert M. v. Benton,

634 F.2d 1139

DC. MED ccscoccesceces 87

Smith v. Robinson,

468 U.S. 992 (1984) ......... 58, 59

United States v. Morgan,

rn iii, Ge CMD coocevess 73

Victoria L. by Carol A. v.

District School Board,

741 F.2d 369

CRU Gee. BBD ccccccccence 87

Vogel v. School Board of

Montrose,

491 F.Supp. 989

Ss Gs BED “SC ceccccosceess 87

420 U.S. 308 (1975) ........4.. 45

CONSTITUTIONAL PROVISIONS PAGE

U.S. Const. Amend. XI ......... passim.

U.S. Const. Amend. XIV,

rh. BD ese e6eeeb6eo0seeesses 5

ES er 5, 30

-vii-

FEDERAL STATUTES AND REGULATIONS PAGE

Education for All Handicapped

Children Act of 1975,

P.L. No. 74-172,

20 U.S.C. §§1400-1461 ......... passim.

20 U.S.C. §1400(b)(9) ......... 6. 3?.

BO U.B.C. BAGRRCG) wccccccccecs 79

eT Te ere 80

20 U.S.C. §1413(a)(3)(A) ...... 81

20 U.S.C. §1413(a)(3)(B) ...... 81

BO GU.B.C. BAGAECD) cecccccceccs 81

20 U.S.C. §1414(b)(2)(A)(i) ... 81

20 U.S.C. §1414(b)(3) ......... 83

20 U.S.C. §1414(d) ........00.. 72, 82

i. Pee . oc ccwneeees 6

ZO BU.B.C. SISGASCD) coccccccvces 82

20 U.S.C. §1415(b)(1) ......... 7

20 U.S.C. §1415(b)(2) ......6.-, 8,

61, 69,

26 U.8.C. BIEIS(S) wccccccccces 8, 62

BO U.B.6C. BRGRE ccccccceocevess 53

-viii-

ne A EO a ee Ae.

Handicapped Children's

Protection Act,

Pub. L. 99-372,

100 Stat. 796 (1986)

codified at

ep ames MOORREGD cocvccecceces 38

20 U.S.C. §1415(e)(2) ......-.- 9, 37

20 U.S.C. §1415(e)(4)(G) ...... 10, 38,

Rehabilitation Act

of 1973 (§504)

29 U.B.C. SIGE wccccccvcccvesses 15, 34

29 U.S.C. §794a(b) .......eeeee 46

Rehabilitation Act

Amendments of 1986,

Pub. L. 99-506,

100 Stat. 1807 (1986)

ee ee’ eee 47, 48

ee, cho ectcevsdeeee 15,

31, 46

OD Di, DIED ccanccvcessesess 45, 46

SO U.8.. GRBBELAD oc ccccsccess 3

00 O.Ow. CLE ccvcctsdesss 63

-~ix-

ee eS a rer

42 Pa.Cons.Stat. §8521(b)

PA O.B. GEPBAGDCAD co cvccccss

MISCELLANEOUS

3 K. Davis, Administrative

Law Treatise §19:2, at 372

C2G GG, J9GO) cocccccccccccees

1 Koch, Administrative Law

and Practice

meets GS GSO CSCO) cccccccess

S. Conf. Rep. No. 94-455,

94th Cong. lst Sess. 47,

reprinted in 1975

U.S. Code Cong. & Ad. News

BETO wcccccccccccccceceseccees

S. Conf. Rep. No. 94-455,

94th Cong., lst Sess. 49,

reprinted in 1975

U.S. Code Cong. & Ad. News

BEGG, 2908 wccccccccecscsvccces

S. Conf. Rep. No. 94-168,

94th Cong., 2d Sess. 29, 47,

reprinted in 1975

U.S. Code Cong. & Ad. News

GZS, 24393, 24670 wcccccecccces

80,

United States Department

of Education Fourth Annual

Report to Congress on

the Implementation

of Public Law 94- 142:

The Education for All

Handicapped Children Act

el ee ae eee ane ee 6 68 78

United States Department

of Education Ninth Annual

Report to Congress on

the Implementation

of the Education of the —

Handicapped Act,

FO GEE bodebecesccoesencecece 77

-xi-

NO. 87-1855

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1987

THOMAS K. GILHOOL,

Petitioner

Vv >.

RUSSELL A. MUTH, JR, et al.,

Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals

reported at 839 F.2d 1133 (3d Cir.

1988) and may be found in the appendix to

the

petition for writ of certiorari.

(Pet. App. la).

The District Court opinion of June 2,

1986 is reported at 646 F.Supp. 280

(E.D. Pa. 1986) and may be found in the

appendix to the petition for writ of

certiorari. (Pet. App. 83a).

The District Court opinion of

August 28, 1986 has not been reported but

may be found in the appendix to the

petition for writ of certiorari.

(Pet. App. 112a).

The District Court opinion of

February 20, 1987 has not been reported

but may be found in the appendix to the

petition for writ of certiorari.

(Pet. App. 19la).

STATEMENT OF JURISDICTION

The opinion of the Court of Appeals

was filed on January 29, 1988.

(Pet. App. la) and the petition for

certiorari was filed within ninety days

thereafter. The jurisdiction of the Court

is invoked pursuant to 28 9.6s¢.

§1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Re The Eleventh Amendment to the

United States Constitution provides:

The Judicial power of the

United States shall not be

construed to extend to any

suit in law or equity,

commenced Or prosecuted

against one of the United

States by Citizens of another

State, or by Citizens or

Subjects of any Foreign

State.

U.S. Const. Amend. XI.

2. The Fourteenth Amendment to -the

United States Constitution provides in

pertinent part:

. All persons born or

naturalized in the United

States, and subject to the

jurisdiction thereof, are

citizens of the United States

and of the State wherein they

reside. No State shall make

or enforce any law’ which

shall abridge the privileges

» & «

Or immunities of citizens of

the United States; nor shall

any State deprive any person

of life, liberty, Or

property, without due process

of law; nor deny to any

person within its

jurisdiction the equal

protection of the laws.

U.S. Const. Amend. XIV, Sec. l.

The Congress’ shall have the

power to enforce, . by

appropriate legislation, the

provisions of this article.

U.S. Const. Amend. XIV, Sec. 5.

STATUTORY PROVISIONS INVOLVED

20 U.S.C. §1400. Congressional

Statements and Declarations

(b) Findings

The Congress finds that -

(9) it is in the national

interest that the Federal

Government assist State and

local efforts to provide

programs to meet the

educational needs of

handicapped children in order

to assure equal protection of

the law.

§1415. Procedural Safeguards

Establishment and maintenance

(a) Any State educational

agency, any local educational

agency, and any intermediate

educational unit which

receives assistance under

this subchapter shall

establish and maintain

procedures in accordance with

subsection (b) through

subsection (e) of this

section to assure that

handicapped children and

their parents or guardians

are guaranteed procedural

safeguards with respect to

the provision of free

appropriate public education

by such agencies and units.

Required procedures; hearing

(b) (1) The procedures

required by this section sha)l

include, but shall not be

limited to -

(E) an opportunity to

present complaints with

respect to any matter relating

to the identification,

evaluation, or educational

placement of the child, or the

provision of 4 free

appropriate public education

to such child.

20 U.S.C. §1415(b)

(2) Whenever a complaint has

been received under

paragraph (1) of this

subsection, the parents Or

guardian shall have an

opportunity for an impartial

due process hearing which

shall be conducted by the

State educational agency or by

the local educational agency

or intermediate educational

unit, as determined by State

law or by the State

educational agency. No

hearing conducted pursuant to

the requirements of this

paragraph shall be conducted

by an employee of such agency

or unit involved in the

education or care of the

child.

Review of local decision by State

educational agency

paragraph (2) of subsection (b)

of this section is conducted by

a local educational agency or

an intermediate educational

unit, any party aggrieved by

the findings and decision

rendered in such a hearing may

appeal to the State educational

agency which shall conduct an

impartial review of such

hearing. The officer

conducting such review shall

make an independent decision

upon completion of such

review.

20 U.S.C. -§1415(e)

Civil action; jurisdiction;

attorneys fees

(2) Any party aggrieved by the

findings and decision made

under subsection (b) of this

section who does not have the

right to an appeal under

subsection (c) of this section,

and any party aggrieved by the

findings and decision under

subsection (c) of this section,

shall have the right to bring a

Civil action with respect to

the complaint presented

pursuant to this section, which

action may be brought in any

State court of competent

jurisdiction or in a district

court of the United States

without regard to the amount in

controversy. In any action

brought under this paragraph

the court shall receive the

records of the administrative

proceedings, shall hear

additional evidence at the

request of a party, and, basing

its decision on the

preponderance of the evidence,

shall grant such relief as the

court determines is

appropriate.

20 U.S.C. §1415(e)

(4) (G) The provisions of

subparagraph (F) [describing

Situations when the court shall

reduce attorneys fees awarded

under this section] shall not

apply in any action Or

proceeding if the court finds

that the State or local

educational agency unreasonably

protracted the final resolution

of the action or proceeding or

there was a violation of this

section.

STATEMENT OF THE CASE

l. This case arises out of a

dispute over the appropriate educational

program for a gifted handicapped child.

Respondent Russell A. Muth, Jr., alleged

that his son, Robert Alexander Muth

(Alexander), was denied a “free,

appropriate public education" in

violation of the Education for All

Handicapped Children Act of 1975,

Pub. L. No. 94-172, codified at

20 U.S.C. §§1400-1461, (the “Act” or

“EHA"). (Pet. App. 14la).

The defendants were the Pennsylvania

]

Secretary of Education, the Central

Bucks (Pennsylvania) School District,

lthe original defendant was

Secretary Robert C. Wilburn, sued only

in his official capacity. His current

successor in: office is Thomas K.

Gilhool, the petitioner in this Court.

oe. S28 «

niall

and Dr. Thomas L. Newman, Superintendent

of the School District. (School District

defendants) (Pet. App. la-8a).

2. Alexander, already diagnosed as

learning disabled, first enrolled in the

Central Bucks School District in 1980

where an individualized edvcational

program (IEP) placed him in a learning

disability resource room for some

subjects and “mainstreamed,” or placed

him in regular classes, for other

subjects. Changes in Alexander's’ IEP

were made with his father's

participation and approval until June of

1983, when the School District proposed

placing Alexander in the learning

disabled classroom setting for all

substantive subjects in the 1983-84

school year. (Pet. App. 9a-lla).

oe 12 «

Muth disagreed with the School

District's proposal, requested a due

process hearing and requested that no

change be made in Alexander's current

placement until a hearing was held. In

September 1983, Muth enrolled Alexander

in a private school in Massachusetts for

learning disabled students.”

(Pet. App. 13a).

The due process hearing was held on

September 30, 1983 before an impartial

hearing officer who, on October 3l, 1983

2Alexander remained at that

private school until April 1985 when he

was transferred by his father to Wyncote

Academy, a private school in

Pennsylvania with no special education

program. At the beginning of the

academic year 1986-87, Aiexander

returned to the Central Bucks’ School

District. (Pet. App. 134a-135a)

made recommendations which included

changes in the IEP proposed by _ the

School District but did not order that

Alexander be placed in a private school

as Muth had requested. Both Muth and

the School District appealed the hearing

officer's decision to the Secretary of

Education who remanded the case to the

hearing officer with instructions to the

School District to revise the IEP. The

revised IEP was presented to the hearing

officer, but Muth raised objections and

on July 25, 1984 the hearing officer

decided that the modified IEP was an

appropriate program of Education for

Alexander.

Muth appealed to the Secretary and

on October 24, 1984 the Secretary

affirmed the hearing officer's

decision. While these administrative

proceedings were underway, on April 27,

> «

1984, Muth filed suit in federal

district court. (Pet. App. 13a-17a).

a. In the District Court, Muth

Claimed that Alexander was denied a

"free, appropriate public education” in

violation of the EHA, § 504 of the

Rehabilitation Act of 1973, 29 U.S.C.

§ 794 ("§ 504") and 42 U.S.C. § 1983.

Muth sought reimbursement for his son's

tuition for the private school placement

he claimed was the suitable’ placement

for his child. (J. App. 11-13, 35).

Thereafter, on March 21, 1985, Muth

sought and was granted leave to file an

amended complaint in which he dropped

the claims pursuant to § 504 and

§ 1983. (J. App. 6, 39). In response

to the Secretary's motion for summary

judgment, the District Court held that

the Eleventh Amendment’ barred Muth's

Claim for retroactive monetary relief

against the Secretary but left open the

question of whether injunctive relief

would be appropriate. (J. App.

50-51).) Muth was then permitted to

file a second amended complaint in which

the District Court allowed him to raise

two issues against the Secretary:

(1) whether the Secretary's involvement

in the due process hearing violated

Muth's due process’ rights under the

EHA; and (2) whether the delays in

the due process procedure violated

plaintiff's rights under the EHA. The

District Court did not permit Muth to

raise damage claims based on the

Fourteenth Amendment and expressly

precluded a claim which sought tuition

reimbursement from the State (J. App. 80-

82). The second amended complaint also

3Muth raised this issue for the

first time in the second amended

complaint. -

ol EEE oor

named the School District defendants who

were alleged to have denied Alexander a

free appropriate public education in

violation of the EHA. The relief sought

encompassed declaratory and injunctive

relief, reimbursement for private school

placement and attorney's fees.

(J. App. 100-101).

By memorandum opinion and order of

June 2, 1986, the District Court held

that Pennsylvania's statutory scheme for

providing parents of handicapped

children with administrative process

violates the provisions of the EHA.

More specifically, the District Court

held:

(1) that Pennsylvania's

initial hearing and review are

both conducted at the _ state

level in contravention of

federal law, (Pet. App.

90a-95a);

o 29 «

(2) that even if the initial

hearing were a local one, a

remand by the Secretary to the

hearing officer violates’ the

finality requirement of

federal law, (Pet. App.

102a-104a); and

(3) that because the

Secretary must be considered

an employee of Pennsylvania's

state educational agency, he

is an improper reviewing

officer under federal law.

(Pet. App. 10la-102a).

The District Court did not resolve

the issue of tuition reimbursement,

stating that it would hold a hearing to

determine whether the IEP which the

School District had proposed would have

provided Alexander with an appropriate

free education. (Pet. App. 108a).

Prior to trial, the District Court

advised the Secretary that it would

reconsider whether the Eleventh

—

Amendment presents’ a jurisdictional bar

to an award of money damages against the

Secretary, and invited submission of a

trial brief on that issue.

(Pet. App. 168-169).

4. After a bench trial, the

District Court issued an opinion and

order on August 28, 1986, holding that

the IEP prepared by the School District

for the 1983-84 school year would have

afforded Alexander an appropriate

education. (Pet. App. 156a) However,

in light of the procedural violations

previously found, and without any

finding of substantive due process

deprivations, the District Court held

4In effect, the District Court

thus modified its previous ruling and

permitted an amendment to the second

amended complaint, to allow Muth to

raise a money damage claim against the

Secretary.

» is

that Muth was entitled to reimbursement

for one year's private school expenses

for his handicapped child. (Pet. App.

166a). While acknowledging that the

School District was prepared, in

September 1983, to provide Alexander an

appropriate education, the District

Court nonetheless found that the

10 month delay caused by the Secretary's

remand precluded Muth (1) from

participating in the process which

directly affected his son's education,

(Pet. App. 165a), and (2) from

reevaluating (in December 1983 rather

than in October 1984) the wisdom of

Alexander's private school placement.

(Pet. App. 166a). Consequently, the

District Court held that the appropriate

remedy was reimbursement for one full

year of tuition at the private school.

e 36 «

The District Court further held that

the EHA abrogated the Eleventh Amendment

immunity of the states; consequently,

the Secretary, sued in his official

Capacity, was found to be jointly and

severally liable with the School

Distiict for the reimbursement award

made to Muth. (Pet. App. 174a-177a;

187a-188a). In an opinion filed on

February 20, 1986, the District Court

awarded Muth attorney's fees to be paid

jointly by the Secretary and the School

District. (Pet. App. 210a-212a).

-¥ The parties cross-appealed to

the Court of Appeals for the Third

Circuit, which affirmed the judgment of

the District Court on every issue except

its award of attorneys' fees.

[Pet. App. 4a-5a).> That issue was

remanded to the District Court’ for

allocation of fees in accordance with

Hensley Vv. Eckerhart, 461 U.S. 424

(1983). [Pet. App. 8la-82a].

SThe Court of Appeals saw no need

to reach the issue of whether

Pennsylvania's two-step hearing and

review procedure conforms to federal

law. (Pet. App. 52a-58a). Therefore, a

reversal by this Court on the issue of

the Secretary's participation in the

administrative review procedure will

require a remand to the Court of Appeals

for a decision on that unaddressed issue.

» 22 «

The Secretary's petition for

rehearing en banc was denied. He sought

and was granted review from this Court

on the issues of the Eleventh Amendment

and the bar to his hearing’ special

education appeals under the EHA. The

Secretary's petition for writ of

certiorari was granted on October 3,

1988.

SUMMARY OF ARGUMENT

l. The Court of Appeals erred in

holding that by enacting the EHA

pursuant to Section 5 of the Fourteenth

Amendment, Congress abrograted the

sovereign immunity of the States as it

is constitutionalized by the Eleventh

Amendment. Such abrogation is possible,

but only when Congress makes "its

intention unmistakably clear in the

language of the statute,” Atascadero

State Hospital v. Scanlon, 473 U.S. 234,

242 (1985). There is no clear language

in the EHA, or the 1986 amendment upon

which the Court of Appeals also relies,

which even suggests that Congress

considered eliminating the States’

immunity from suit in federal court.

2. The principle of federalism

which this Court repeatedly has

recognized demands that Congressional

oe 26 «

QC EEE eee |

intent to subject States to suit in

federal court be clearly articulated,

even when Congress legislates to

guarantee constitutionally protected

rights. Quern v. Jordan, 440 U.S. 332

(1979).

Be The clear Congressional intent,

which has been misunderstood by the

Court of Appeals, is that the EHA be a

cooperative effort between the States

and the Federal Government. The purpose

of this joint effort is the education of

handicapped children. Exposing the

States to money damage awards for some

misjudgment in the placement of a child

Or for a procedural due process

violation defeats the goals of the

Statute by depleting the very funds that

States can use for the education of

handicapped youngsters.

~- 26 @

4. The Court of Appeals also erred

by holding that the EHA's due process

hearing procedure precludes

Pennsylvania's Secretary of Education

from acting as an impartial reviewing

officer because he is the employee of an

agency “involved in the education of the

child.”

Under this view, the Secretary is

involved in the education of every child

in Pennsylvania simply because he is the

responsible supervisor of the _ entire

educational system in the State. This

interpretation of the statutory language

is at odds with the expressed goal of

the EHA to make the Secretary

responsible for the delivery of

educational services to the handicapped;

moreover, it is contrary to traditional

concepts of impartial decision making.

—

Be CONGRESS DID NOT ABROGATE THE

STATES ' ELEVENTH AMENDMENT

IMMUNITY WHEN IT ENACTED THE

FDUCATION FOR ALL HANDICAPPED

CHILDREN ACT

In a long line of cases, this Court

consistently has interpreted the

Eleventh Amendment as constitionalizing

the principle of state sovereign

immunity, thus precluding suits against

a State in federal court by citizens of

that State or other States. Atascadero

State Hospital v. Scanlon, 473 U.S. 234

(1985); Pennhurst State School and

Hospital v, Halderman, 465 U.S. . 89

(1984); Edelman v. Jordan, 415 U.S. 651,

(1974); Employees of Department of

Public Health and Welfare v. Missouri

Department of Public Health and Welfare,

411 U.S. 279 (1973); Parden v. Terminal

Ry. Co., 377 U.S. 184. (1964); Hans v.

Louisiana, 134 U.S. 1 (1890).

The Eleventh Amendment is applicable

to suits seeking money damages, Edelman

v. Jordan, as well as suits seeking

equitable relief, Pennhurst, 465 U.S. at

100-101; Alabama _v. Pugh, 438 U.S. 781

(1978). A State may consent to suit

against it in federal court, thereby

waiving its immunity, but Pennsylvania

has specifically withheld consent.

42 Pa.Cons.Stat. §8521(b), Pennhurst,

465 U.S. at 103 n. 12. In the absence

of consent, a suit against the State or

one of its agencies is proscribed by the

Eleventh Amendment. Pennhurst, 465 U.S.

at 100.

Moreover, the Eleventh Amendment is

a complete bar to suit against a state

official who is sued, as the petitioner

is sued here, in his official capacity,

regardless of whether the suit seeks

a o-

damages or injunctive relief. Dugan v.

Rank, 372 U.S. 609 (1963); Pennhurst,

465 U.S. at 100-103.

Although this Court has not decided

whether prospective injunctive’ relief

may be granted against state officials

for violations of federal statutory law,

Pennhurst, 465 U.S. at 104 n. 13,°

retroactive monetary relief is barred by

the Eleventh Amendment. Edelman Vv.

Jordan, 415 U.S. at 666-667.

6Edelman _v. Jordan, is not to the

contrary. In Edelinan, the state

conceded liability for prospective

relief. 415 U.S. at 664.

A. In this case, the Court of

Appeals for the Third Circuit has

misapplied the decisions of this Court

when it held that Congress, by enacting

the EHA pursuant to §5 of the Fourteenth

Amendment, has abrogated the States’

Eleventh Amendment immunity to. suit.

(Pet. App. 7la-72a). The Secretary

concedes that Congress has the power to

abrogate the States' Eleventh Amendment

immunity without the States* consent

when it legislates to enforce the

substantive provisions of the Fourteenth

Amendment ; however, there must be

unequivocal evidence of such

abrogation. See Fitzpatrick v. Bitzer,

427 U.S. 445, 456 (1976). This Court

has long held that the mere literal

inclusion of the States among those to

whom 4 statute applies does. not

os 2 «

suffice to eliminate the States'

Eleventh Amendment immunity. Scanlon,

supra, 473 U.S. at 245-46; Employees,

Supra, 422 u.S. at 283-85.

In Quern v. Jordan, 440 U.S. 332

(1979) the Court reaffirmed the holding

in Edelman v. Jordan, that the Civil

Rights Act of 1871, 42 U.S.C. §1983,

does not abrogate the States‘ Eleventh

Amendment immunity despite the Act's

clear intent to vindicate individual

rights protected by the Fourteenth

Amendment. There the Court stated:

There is no question that

both the supporters and

opponents of the Civil

Rights Act of 1871 believed

that the Act ceded to the

Federal Government many

important powers that

previously had been

considered to be within the

exclusive providence of the

individual states.

[NJeither logic, the

circumstances surrounding

the adoption of the

Fourteenth Amendment, nor

the legislative history of

the 1871 Act compels, or

even warrants, a leap from

this proposition to the

conclusion that Congress

intended by the general

language of the Act to

overturn the

constitutionally guaranteed

immunity of the several

States.

Given the importance of the

States’ traditional

sovereign immunity, if in

fact the Members of the 42nd

Congress believed that §1 of

the 1871 Act overrode that

immunity, surely there would

have been lengthy debate on

this point and it would have

been paraded out by the

opponents of the Act, along

with the other evils’ that

they thought would result

from the Act. Instead, §1

passed only with limited

debate and not one Member of

Congress mentioned the

Eleventh Amendment or the

direct . financial

consequences to the States

of enacting §1. We can only

28 «

conclude that silence on the

matter is itself a

significant indication of

the legislative intent of §1l.

Quern, 440 U.S. at 342-343.

Certainly the rights Congress sought to

protect by the passage of the Civil

Rights Act are as constitutionally

compelling as the right to equal

education which is being advanced by the

EHA, yet Congress did not abrogate the

States’ immunity in 1871 and it has not

done so in the EHA.

The Third Circuit's conclusion that,

in enacting the EHA Congress abrogated

the States’ constitutionally guaranteed

immunity, fails to satisfy the stringent

criteria defined by this Court in

Scanlon. There, the Court refused to

find such abrogation of immunity in

Congressional passage of the

Rehabilitation Act, 29 U.S.C. §794’

and announced that it will look no

further than the four corners of a

statute to discern Congressional intent

to abrogate State sovereign immunity.

The Court said:

In making this argument,

respondent relies on the pre-

and post-enactment

legislative history of the

Act and inferences f rom

general statutory language.

To reach respondent's

conclusion, we would have to

temper the requirement, well

established in our cases,

that Congress unequivocally

express its intention to

abrogate the Eleventh

Amendment bar to suits

7The statute at issue in Scanlon

is similar to the statute at issue

here. Both provide a private right of

action for prospective relief for all

aggrieved parties and neither explicitly

provides a damage remedy or other

retroactive relief. Both involve

programs through which States receive

federal assistance.

a S28 «

against the States in federal

court. We decline to do so

and affirm that Congress may

abrogate the States’

constitutionally secured

immunity from suit in federal

court only by making its

intention unmistakably clear

in the language of the

statute.

473 U.S. at 242 (citations omitted).

Because abrogation of state immunity

alters the “constitutionally mandated

balance of power between the States and

the Federal Government,” Ibid. (quoting

Transit Authority, 469 U.S. 528, 556

(1985) (Powell, J., dissenting)), the

Court emphasized that an unusually high

standard of certainty of Congress‘

intent is required to strip the states

of their immunity before it will permit

lower courts to upset this balance. The

Scanlon approach "ensures such

certainty.” 473 U.S. at 243. This

unusually strict rule of construction is

necessary to guard against expansion of

federal court jurisdiction by judicial

interpretation and to ensure that lower

federal courts will not misinterpret the

intent of Congress at the expense of the.

federal system. Id.

Although Congress has the power to

override Eleventh Amendment immunity, it

does not necessarily follow that it

exercised such power in enacting the

EHA. In fact, all indicia are to the

contrary; there is no reference, either

in the language of the statute itself or

in the legislative history, that

Congress intended this statute to

abrogate rights reserved to the States

by the Eleventh Amendment. Undeterred

by the standard of clarity required by

this Court in Scanlon, the Third Circuit

found Congress's "unmistakably clear”

» 96 «

intent to abrogate the effect of

the

Eleventh Amendment in the preamble to

the EHA:

<i it is in the national

interest that the Federal

government assist State and

local efforts to provide

programs to meet the

educational needs of

handicapped children in order

to assure equal protection of

the law.

U.S.C. §1400(b) (9) (emphasis

supplied). (Pet. App. 72a).

The Court of Appeals

found

additional support for its holding in

the following statutory language:

Any party aggrieved by the

findings and decision [made

in the administrative

process] shall have the right

to bring a civil action

in any State court of

competent jurisdiction or in

4 district court of the

United States without regard

to the amount in controversy.

U.S.C. §1415(e)(2). (Pet.

73a-74a).

App.

Finally, the Third Circuit relied on

the Handicapped Children's Protection

Act, Pub.L. 99-372, 100 Stat. 796, the

1986 amendment to §1415(e), which

provides for counsel fees in certain

circumstances and in which Congress

notes that certain provisions in the

amendment shall not apply if “the Court

finds that the State or local

educational agency unreasonably

protracted the final resolution of the

action...” 20 U.S.C. §1415(e)(4)(G).

(Pet. App. 76a).

On this meager basis, and despite

the fact that the statute makes _ no

mention of the Eleventh Amendment and

nowhere states that Congress focused

precisely on state liability to private

parties, the Third Circuit has discerned

the abrogation of a sovereign State's

immunity. In so doing, the Court of

« 2 «

reel

Appeals has swept aside, without so much

as a passing glance, this Court's

repeated admonition that the fundamental

values of sovereign immunity will not be

abrogated unless Congressional intent to

do so is unequivocally and unmistakenly

clear.

B. In arriving at its holding, the

Third Circuit relied on the decision of

a divided panel in David D, v, Dartmouth

School Committee, 775 F.2d 411 (lst Cir.

1985), cert. denied, 475 U.S. 1140

(1986), which held that the EHA

effectively abrogates the sovereign

immunity of States. (Pet. App.

74a-75a).

Dissenting from his colleagues in

the First Circuit, Judge Torruella

acknowledged the binding provisions of

the Eleventh Amendment and stated:

o« I believe that the

present situation under the

Education for the Handicapped

Act, 20 U.S.C. §1401 et seg.,

is indistinguishable from

that in Atascadero under the

Rehabilitation Act, and

because, as in Atascadero,

there is lacking unmistakably

clear intention in the

language of this legislation

to submit the Commonwealth of

Massachusetts to suit in

federal court for violation

of its statutes, I dissent.

David D., 775 F.2d at 425.

Taking a contrary position to that

of the First and Third Circuits, three

other Circuits have not found in the

language of the statute that

unmistakably clear Congressional intent

necessary to abrogate the immunity of

» 2 «

the States. ® This fact alone, that

federal appellate courts differ on

whether the EHA abrogates Eleventh

Amendment immunity, further supports the

conclusion that Congressional intent is

not unmistakably clear. If such intent

is not clear to federal appellate

courts, it cannot have been clear to the

legislators who voted on the statute or

8In Miener v, State of Missouri,

673 F.2d 969 (8th Cir. 1982), cert.

denied, 459 U.S. 909 (1983), the Eighth

Circuit rejected the contention that the

EHA abrogates States* immunity; relying

on the standard announced in Scanlon,

two other Circuits specifically have

held that Congress did not abrogate the

States’ Eleventh Amendment ee when

it enacted the EHA. Gary A. _ New

Trier High School District No. 203, 796

F.2d 940 [ven Cae. 1986); Doe _by

Gonzales _v. Maher, 793 F.2d 1470 (9th

Cir. 1986), affirmed on other grounds

sub. nom. Honig v. Doe, No. 86-728

(Jan., 1988).

to the States who chose to voluntarily

participate in the EHA on the basis of

the conditions explicit in the language

of the statute.

In an attempt to sidestep the

persuasive reasoning of its sister

appellate courts, and perhaps

recognizing that its contrary conclusion

belies the existence of the clear

abrogation language Scanlon demands, the

Third Circuit pointed to the 1986

amendment to the EHA to bolster its

decision, concluding that the decisions

of the Seventh, Eighth and Ninth

Circuits pre-date that amendment and,

epnsequently, their reasoning and

conclusion are no longer tenable.

(Pet. App. 76a). The subject matter of

that amendment, however, is attorney's

fees; the amendment says nothing about

state liability to private parties and

o 2 @

does not in any way expand the category

of litigants who may sue the States for

damages. In fact, the language in the

amendment relied upon by the Court of

Appeals states:

The provisions of

subparagraph (F) [relating

to circumstances in which

the court shall reduce

attorneys’ fees] shall not

apply in any action Or

proceeding if the Court

finds that the State or

local educational agency

unreasonably protracted the

final resolution of ° the

action Or proceeding or

there was a violation of

this section.

20 U.S.C. § 1415(e)(4)(G).

If the mere literal inclusion of the

States among those to whom ae statute

applies does not suffice to lift the bar

of immunity, Scanlon, 473 U.S. at

245-46, certainly a reference to the

States’ exposure to attorneys’ fees is

Similarly inconclusive. The Eleventh

» 2 «

j _

Amendment does not, of course, bar an

action against state officials for

prospective injunctive relief if the

Court finds an ongoing constitutional

violation, Ex parte Young, 209 U.S. 123,

160 (1908), ° therefore, in such a case

attorneys' fees may be awarded against a

9In Ex parte Young the Court held

that a state official acting in conflict

with the Constitution is “stripped of

his official representative character

and is subjected in his person to the

consequences of his individual

conduct." 209 U.S. at 160. This

holding incorporates the fiction that a

suit to enjoin a state official from

enforcing an allegedly unconstitutional

State law is not a suit against the

State for Eleventh Amendment purposes,

even though the consequences of _ the

injunction are felt by the State. The

Court has carefully limited the

reasoning in Young, recently holding

that notice’ relief and declaratory

relief are available only to remedy

ongoing violations of federal law.

Green v. Mansour, 474 U.S. 64 (1985).

». G8 «

State official. Such an award is

consistent with the Eleventh Amendment

immunity which the States retain under

the EHA and its 1986 amendment.

Just as in the EHA, nothing in the

language of its 1986 amendment suggests

that Congress even considered, let alone

eliminated, the Eleventh Amendment

immunity of the States. Moreover,

attorney's fees are claims for equitable

relief, and immunity from damages does

not ordinarily bar equitable relief.

See Wood v. Strickland, 420 U.S. 308,

315 on. 6 (1975). While this Court

specifically has held that the Civil

Rights Act does not abrogate the States’

Eleventh Amendment immunity, it also has

held that 42 U.S.C. §1988 authorizes

attorney's fees against state

officials as part of the costs in §1983

actions. Hutto v. Finney, 437 U.S. 678,

693 (1978). In fact, when this Court

held in Scanlon that §504 of the

Rehabilitation Act did not abrogate the

States' Eleventh Amendment immunity, it

certainly was aware that § 505,

29 U.S.C. §794a(b), authorized

attorneys' fees in the same manner --

even incorporating the same legislative

history -- as § 1988. The fact that

attorneys' fees may be awarded against

the States, without ~more, lends no

support to the position that Congress

has abrogated the States’ constitutional

immunity.

Finally, Congress knows full well

how to make clear its intent to remove

Eleventh Amendment protection. At the

same time that Congress was enacting the

« 2 @

EHA amendment

Rehabilitation Act Amendments of

Pub.L. No. 99-506, §100 Stat.

(1986), which provide in part that:

Pub.

1845,

A State shall not be

immune under the Eleventh

Amendment of the

Constitution of the United

States from suit in Federal

court for a violation of

section 794 of Title 29,

title IX of of the Education

Amendments of 1972, the Age

Discrimination Act of 1975

[42 5.8.C.a&- §6101, et

seq.], title VI of the Civil

Rights Act of 1964 [42

0.8.¢.Aa. §2000d, et seg.],

or the provisions of any

other Federal statute

prohibiting discrimination

by recipients of Federal

financial assistance.

it was also enacting the

1986,

1807

L. 99-506, §1003(a)(1), 100 Stat.

codified at 42 U.S.C. §2000d-7.

In fact, the language used in the

Rehabilitation Act Amendments is

particularly significant since it was

employed specifically to overrule the

decision in Scanlon. ?°

We can assume that when enacting the

EHA amendment in 1986 to provide for

attorneys’ fees, Congress certainly was

aware of the decision of the Court in

Scanlon and of the decisions of the

Seventh, Eighth and Ninth Circuits which

10%1n their brief opposing’ the

petition for writ of certiorari, Amici

suggest that the EHA may be an

anti-discrimination statute and might

therefore come within the ambit of

§2000d-7. (Brief of Amici in Opposition

to Petition for Writ of Certiorari,

pgs. 12-13). A short answer to this

suggestion is that this is the sort of

speculation about Congressional intent

which this Court has undercut by holding

in Scanlon that the abrogation of a

State's constitutional immunity f rom

suit in federal court must be

unmistakably clear in the language of

the statute.

e 46 «

did not find abrogation of States'

immunity; at that point, Congress easily

could have expressed its intent to

abrogate the States' immunity to suit,

just as it has done in the

Rehabilitation Act Amendments. The fact .

that Congress did not expressly and

unmistakably express that intent compels

the conclusion that there was no such

intent.

Neither the language of the EHA nor

its 1986 amendment provide evidence that

Congress intended to sweep away the

States' immunity when it legislated in

this area. Without such a clear

expression of intent, the Third

Circuit's opinion must be reversed.

S- By fashioning a damage remedy

against the State of Pennsylvania, the

District Court and the Court of Appeals

have done violence not merely to the

delicate constitutional balance which

eo @ «

this Court repeatedly has endeavored to

maintain between Eleventh Amendment and

Fourteenth Amendment interests, but they

also have frustrated the basic’ and

central goals of the EHA.

In enacting a law which sought to

ensure equal access to education for

handicapped children throughout our

nation, Congress realized that its goal

could be achieved only if the States

entered into a voluntary partnership

with the federal government -- a

partnership based on a mutual desire to

include the weakest and most neglected

of its children into the sphere of equal

access to educational opportunity.

20 U.S.C. §1400(b)(9). Notwithstanding

the federal government's substantial

financial contribution to the States

pursuant to the provisions of the EHA,

the fact remains that the lion's share

of the expenses for educating

- 50 -

handicapped children remains the

responsibility of the individual

States.++ Pennsylvania's substantial

financial investment in the education of

its handicapped students is a logical

consequence of the fact that education

llpuring the 1986-87 school year

the Commonwealth of Pennsylvania spent

approximately 506 million dollars to

educate its exceptional children, (under

Pennsylvania law, the term “exceptional

children” is defined as children “who

deviate from the average in physical,

mental, emotional or social

characteristics to such an extent that

they require special educational

facilities or services...” 24 P.s.

§13-1371 thus, both handicapped and

gifted children fall into this category)

for an average expenditure of $1870.00

per child. During the same period

Pennsylvania was allocated $282.00 per

handicapped child under the provisions

of the EHA for a total federal

contribution of approximately 59 million

dollars. Pennsylvania Department of

Education, Bureau of Basic Education

Fiscal Administration.

has been and continues to be, a matter

of local concern -- traditionally and

better addressed at the State and School

District levels.

By imposing, what is, in effect, a

punitive damage award of one year's

private school tuition against the State

and the School District for a procedural

12 the Court of

due process violation,

Appeals has misconceived the intent of

Congress and the teachings of this

Court. It has misconceived the intent

of Congress by adding onto the statute a

remedy neither envisioned by the

legislators nor necessary to achieve the

central goal of the EHA. This is so for

several reasons.

l2whether the delay caused by the

Secretary's remand is indeed a

procedural due process violation of

constitutional dimensions is not before

the Court. 52

NL SSS.

First, the States who voluntarily

participate in the EHA presumably wish

to comply with its terms; therefore, a

money damage award is a sledgehammer

approach when a notice of violation

would suffice to secure compliance.

Second, the statute provides the most

effective enforcement mechanism of all:

the United States Secretary of Education

is authorized to withhold federal funds

if a State's program is not in

compliance with the statute. 20 U.S.C.

§ 1416. Third, permitting individual

suits against the States for monetary

relief -- especially of the punitive

nature awarded here -- depletes the very

same source of funds which the States

could be spending on the education of

handicapped children. Fourth,

prospective injunctive relief is an

available judicial remedy against State

» £8 «

officials, and anyone else, engaging in

unconstitutional conduct. Ex parte

Young, 209 U.S. 123 (1908). Fifth,

Since a school district will be party to

a suit in the overwhelming number of

cases brought by parents of handicapped

children, the federal policy of

enforcement is satisfied by the

availability of tuition reimbursement at

the local level. Burlington School

Committee of the Town of Burlington v.

Department of Education, 471 U.S. 359

(1985).

These various remedies guarantee

that State government is both responsive

and accountable to the people it

serves. While recourse to the federal

courts would give parents an additional

enforcement tool, Congress, by enacting

the EHA without unequivocally abrogating

the States’ Constitutional immunity,

apparently believed that this specific

o 24 «

EET eeaeaewEGYreeeerer

remedy was not necessary to assure

necessary compliance by the States.

The complexity of the States’ task

in the field of education of the

handicapped and the effective

enforcement remedies available in the

EHA argue against the Court of Appeals'

conclusion that States should be liable

for monetary awards arising out of

individual failure to comply with all

the rules and regulations of the

program.

l3Moreover, even if damages can be

awarded under the EHA against a party

not shielded by Eleventh Amendment

immunity, the Court of Appeals’ has

misconstrued the teachings of this Court

in Carey Vv. Piphus, 435 U.S. 247

(1978). There, a student claimed that

he was denied procedural due process

because he was suspended from. school

without an opportunity to respond to the

charges against him.

(Footnote continued on next page).

o Se «a

The central goal of the Act is to

provide handicapped children with equal

access to educational opportunities,

13(Footnote continued from

previous page).

The Court held that compensatory damages

would be appropriate only if the student

could prove actual injury caused by the

denial of the constitutional right to

due process. The Court emphasized that

“"{rights, constitutional and otherwise,

do not exist in a vacuum. Their purpose

is to protect persons from injuries to

particular interests..." Ibid at 254.

For a deprivation of due process rights

the Court approved nominal damages of

one dollar. Ibid at 266. Here, the

Court of Appeals obviously attempted to

vindicate Muth's due process rights when

the procedural violations had not, in

fact, caused any actual injury to him

and his_- son. Such “vindication" is

impermissible in light of the holding in

Carey.

« 26 «

that goal is not advanced by awarding

money damages against the States who

fund the greatest portion of that

education and who willingly participate

in the _ EHA. Congress recognized that

the remedies inherent in the statute are

adequate to ensure compliance and for

that reason saw no need to abrogate the

States' Eleventh Amendment immunity.

This Court is urged to correct’ the

holding of the Court of Appeals and

reverse.

II. THE EHA DOES NOT PRECLUDE

REVIEW OF DUE PROCESS HEARINGS

BY A CHIEF EXECUTIVE OFFICER OF

THE STATE AGENCY WHEN THE STATE

AGENCY IS NOT INVOLVED IN THE

DEVELOPMENT OF THE

INDIVIDUALIZED EDUCATION PROGRAM

A. This Court on four occasions

has described and analyzed elements of

the comprehensive procedural system

established by the ea. /4

l4yonig v. Doe, No. 86-728 (Jan.

20, 1988) (addressing "“stay-put”

provision); Burlington School Committee

(addressing availability of tuition

reimbursement remedy for parents who had

placed their child in private _ school

during pendency of review procedures);

Smith _v. Robinson, 468 U.S. 992 (1984)

(addressing availability of attorneys

fees and relationship to §504 of the

Rehabilitation Act of 1973); Hendrick

Hudson Central School District Board of

Education v. Rowley, 458 U.S. 176 (1982)

(addressing standard of federal judicial

review).

oSBeq

In each case, this Court noted that

Congress “was largely guided" by two

landmark trial court decisions:

.waes | , ; Ret Jed Child

v. Pennsylvania, 334 F.Supp. 1257 (E.D.

Pa. 1971) and 343 F.Supp. 279 (E.D. Pa.

1972) (PARC), and Mills v. Board of

Education of District of Columbia, 348

> This

F.Supp. 866 (D.D.C. 1972).?

case presents the question of whether

Congress, in patterning the EHA on PARC,

actually intended to prohibit an

important element of the procedural

system PARC established.

15See Burlington School Committee,

471 U.S. at 373; Robinson, 468 U.S. at

1010 (referring only to Congress'

recognition of "*landmark court

cases'"); Rowley, 458 U.S. at 192.

-59-

The procedural system of the

statute, like that established by PARC,

requires first that local schools

develop "individualized educational

programs” (IEP's) for handicapped

children in cooperation with parents or

guardians.?°

l6The IEP is "a comprehensive

statement of the educational needs of a

handicapped child and the specially

designed instruction and related

services to be employed to meet those

needs". Burlington School Committee,

471 U.S. at 368. Parents have a right

to “examine all relevant records",

Honig, No. 86-728 (Jan. 20, 1988), to

participate in the IEP planning

conference, and to an opportunity “to

present complaints concerning any aspect

of the local agency's provision of a

free appropriate public education”.

Ibid.

afte

If parents are dissatisfied with the

resolution of any complaint, they have

the right to an impartial review process

as follows:

"Whenever [such] a complaint

has been’ received..., the

parents or guardian. shall

have an opportunity for an

impartial due process

hearing which shall be

conducted by the State

educational agency or by the

local educational agency or

intermediate unit, as

determined by State law or

by the State educational

agency. No hearing

conducted pursuant to the

requirements of this

paragraph shall be conducted

by an emp loyee of such

agency or unit involved in

the education or care of the

child”.

20 8.8.6. §1415(b) (2) (emphasis

supplied).

"If [this] hearing... is

conducted by a local

educational agency or an

intermediate educational

unit, any party aggrieved by

the findings and decision

rendered in such a hearing

may appeal to the State

educational agency which —

-§]-—

shall conduct an impartial

review shall make an

independent decision upon

completion of such review.”

20 U.S.C. §1415(c) (emphasis supplied).

This case focuses on the

requirements of the “impartial” state

review of the initial hearing.

Specifically, the parties agree that,

like the initial hearing, the review

cannot be conducted by an employee of an

agency which is "involved in the

education of the chila*.??

17The report of the Senate

Committee which first developed the

impartiality requirement suggests’ that

Congress may have intended the language

“involved with the education of the

child" to modify the term “employee”,

not the terms “agency or unit."

(Footnote continued on next page).

a490

17 (Footnote continued from

previous page).

The Senate Report stated that a hearing

“may not be conducted by any State or

local educational agency employee who is

directly invelved in the education of

the child." Senate Conf. Rep. No.

94-455, 94th Cong. lst Sess. 47,

reprinted in 1975 U.S. Code Cong, & Ad.

News 1470. Subsequently, the Conference

Committee deleted the term “directly”,

but did not specifically indicate any

intent to focus on the agency, as

opposed to the employee.

Despite this evidence, however,

regulations of the United States

Department of Education prohibit conduct

of a hearing “[by a person who is an

employee of a public agency which is

involved in the education or care of the

child." 34 C.F.R. §300.507. Petitioner

here accepts this regulation in light of

the ambiguity in the statute. The

question, therefore, is whether the

Department of Education is “involved” in

the education of the child.

=423=

The parties disagree, however, whether a

State Department of Education is

necessarily involved in the education of

the child merely because of its general

oversight role over special education.

The state agency is only “involved in.

the education of the child” in those

circumstances in which the agency is

directly providing services to the child

or has otherwise participated in the

development if the IEP. Moreover, the

Secretary of Education, petitioner here,

is not an employee of the state agency

but a constitutionally appointed member

of the State's executive branch, 71 P.S.

§67.1(d)(1), whose function is to

establish and implement statewide

educational policy. Consequently, he is

far removed from the individual disputes

that arise between parents and the local

school districts which are directly

afGa

involved in the education of the

chi1a.?®

B. Because Congress generally

adopted the “due process hearing” system

which originated in the PARC decree,

PARC provides the starting point for

analysis of the EHA. See Rowley,

458 U.S. 176 (1986), (relying on PARC's

standard of judicial review to determine

standard for EHA).

In PARC, the goal was to assure

public accountability by placing

ultimate responsibility for the

education of each individual child on

the one person who can combine

both policymaking and implementing

functions -- the State Secretary of

Education.

18mMuth has not argued that the

Secretary of Education is 4 biased

reviewer for any reason other than that

he is an employee of the Department.

-§5-

The decree provided “that the Secretary

of Education shall be responsible for

assuring that every mentally retarded

child is placed in a program of

education and training appropriate to

his learning Ccapacities....”

343 F.Supp. at 313. (Consent Decree

§40(a)). The reasons: only the

Secretary was deemed sufficiently in the

public eye that educational decisions

would be publicly accountable and only

the Secretary was deemed to wield

sufficient power to ensure that the best

educational decisions were made _ and

executed.

The “due process hearings” served in

part as a mechanism for the Secretary to

Carry out this responsibility. The

amended stipulation in PARC provided:

=E6e

"The hearing officer shall

be the Secretary of

Education, or da person

designated by him acting in

his stead, but shall not be

an officer, emp loyee Or

agent of any local district

of intermediate unit in

which the child’ resides”.

(Amended Stipulation ¥3(L)).

343 F.Supp. at 305.

Unlike local school districts,

therefore, the State Department of

Education and especially the Secretary,

were given the authority and the

responsibility, subject to judicial

review, to serve as the guardian of the

handicapped.

Placing responsibility on the

Secretary had the added benefit of

institutionalizing a system to educate

the Secretary about how to fulfill his

overall responsibilities. From below,

hearings assured the Secretary a

constant flow of information about the

28%

educational adequacy of programs’ for

individual students. From above,

meaningful judicial review would assure

that the Secretary would learn from his

mistakes and conform future decisions to

judicial interpretations of the law.

The hearings would provide the Secretary

of Education the information necessary

to fulfill his obligation “directly [to]

provide ... and operate programs” for

handicapped children if handicapped

children were not properly served by

local school districts or “otherwise

provided for.” (Amended Consent Decree

451). 343 F.Supp. at 315

Cc. A close examination of the

language of the statute suggests’ that

Congress adopted the principle of

impartiality in PARC. Although a court

should attempt to give effect to all of

-~6§8-

statute's terms, Reitel v. Sonotone

Corp., 442 U.S. 330, 339 (1979), the

decision of the Court of Appeals would

make superfluous Congress’ focus only on

agencies “involved in the education of

the child."

Section 615(b)(2) of the statute, 20

U.S.C. §1415(b)(2), provides’ that a

hearing “shall be conducted by the State

educational agency or by the local

' . :

educational agency or intermediate unit,

as determined by State law." (Emphasis

supplied). In other words, the hearing

to be conducted either by the. state

agency or by the school district or

intermediate unit serving the child.

Under the analysis of the Court of

Appeals, all agencies that might conduct

hearings would be "involved in the

education of the child” because, by the

terms of the EHA itself, they all must

exercise at least general

oversight of handicapped children. If

Congress had intended such a result, it

should therefore have prohibited conduct

of a hearing in all cases “by an

employee of such agency or unit.”

Instead, however, §615(b)(2) only

prohibits conduct of the hearing -"“by an

employee of such agency or unit involved

in_the education or care of the child”.

Ibid. (Emphasis supplied). Congress

therefore did not believe that all

agencies conducting hearings were

necessarily involved in the education of

the child and wished to distinguish

between involved and uninvolved

agencies. By failing to make such a

distinction, the decision below

eradicates the significance of the

modifying phrase “involved in the

education of the child.”

= =

Rather than intending this phrase to

be superfluous, Congress could only have

intended the distinction made in PARC.

“involved in the education of the child"

means what it says; it refers not to

agencies exercising oversight of all

handicapped children, but only to those

agencies or units actually providing

"the child” with services and actually

helping to develop the IEP.

In some cases, therefore, this

standard does reach state agencies.

Congress was aware that state agencies

directly provide educational services in

some cases and therefore are directly

participating in the development of

-IEP's. For example, the Pennsylvania

Department of Education directly manages

three special state schools. Similarly,

~~ =

in Mills, the other landmark case on |

which Congress’ relied, the Board of

Education of the District directly ran

the schools. The decree in that case

accordingly provided that hearing

officers would not “be an official,

employee or agent of the Public School

System.” Even under the EHA itself, the

state agency must in some circumstances

provide educational services directly to

a child. 20 U.S.C. §1414(d). Rather

than attempt to write a blanket rule for

all cases, Congress adopted a standard

that reflected the numerous educational

arrangements throughout the United

States while focusing at all times on

actual involvement with “the child."

This interpretation of the statute

is not only consistent with the language

of the statute, it is also consistent

~}™=

with standards of impartiality. In

general, prior exposure or knowledge of

the nature of issues involved in a

dispute, even engagement in

policy-making, does not provide a

disqualifying bias but rather is

considered a benefit of the

administrative process. See, -

Hortonville Joint School Dist, No, 1 v.

Hortonville Educational Ass'n, 426 U.S.

482, 493 (1976) (decisionmaker is not

"disqualified simply because he _ has

taken a position, even in public, on a

policy issue related to the dispute");

United States v. Morgan, 313 U.S. 409

(1941) ("underlying philosophy” by

cabinet secretary did not render him

incapable "of judging a particular

controversy fairly on the basis of its

own circumstances"). See generally

3 K. Davis, Administrative Law Treatise

§19:2, at 372 (2d ed, 1980) ("The law is

entirely clear that an announced

previous position about law or policy is

not a disqualification for exercise of

judicial power."). Bias concerns arise .

only from prior involvement in the

decision under review or prejudgment of

the facts of a particular case. See

Goldberg v. Kelly, 397 U.S. 254, 271

(1970) (an adjudicator should not “have

participated in making the determination

under review"); Davis, supra, §19:4, at

382 ("{oJne who prejudges adjudicative

facts ... may be disqualified"); 1 Koch,

Administrative Law and Practice §6.7, at

439 (1980).

This conventional view animated PARC

and it is therefore likely to have

influenced Congress here: due process

hearings exist to provide parents with a

forum to challenge the decision of

aIée

school officials. Obviously, neither

hearings nor reviews should be conducted

by anyone closely associated with the

very school officials whose educational

plan a parent rejects. In general,

however, the state agency and its

Secretary are not associated in this

way. They are the watchdogs, not the

associates, of the school officials who

have prepared the IEP rejected by the

parents.??

In contrast to this interpretation

of impartiality, which is consistent

with the responsibility placed by the

statute on state agencies, the Court of

Appeals offered no explanation of how

its interpretation could further the

purpose of the Act. The decision below

19petitioner here supervises 501

school districts and 29 intermediate

units. 24 P.S. 99-332.

refers vaguely to furthering “the

ultimate objectives of the process.” It

also states that Congress desired

“decisionmakers who are not subject to

the kind of pressures that employees of

an educational agency would necessarily

feel.” {[Pet. App. 48a]. But neither

the Court below, nor any lower court

that has rendered a similar ruling,

could provide other than a conclusory

explanation of partiality.?°

20systems guaranteeing independence of

administrative law judges exist to insulate

them from the initial decision in that same

case by other members of the agency. When no

member of an agency has made a decision under

review, the need for guarantees of

independence evaporates. Administrative law

judges do not exist generally to provide a

check on the agency itself; they are a part

of the agency and indeed are normally

“employees” of the agency. Frequently,

decisions of the administrative law judges

are themselves reviewable by the heads of an

agency. The check on the agency itself comes

from judicial review.

~ =

In essence, the decision below took

an administrative model from other

systems and imposed it out of context.

The decision gratuitously imposes a

purely judicial model on what “framers

of the law viewed ... as a means of

providing a relatively informal,

inexpensive and prompt remedy when

agreement could not be reached in the

educational planning process." U.S.

Dept. of Education, Ninth Annual Report

to Congress on the Implementation of the

75 (1987). As a 1982 study revealed,

issues presented at GuW@ process hearings

are quintessentially decisions of

educational policy; they are chiefly

decisions involving the appropriateness

of a child's schoo] placement, the

appropriateness of a student's program

-,*

and services, or the appropriateness of

the evaluation. U.S. Dept. of

Education, Fourth Annual Report to

Congress on the Implementation of Public

Law 94-142: The Education for All

Handicapped Children Act 45 (1982).

Congress did not seek uniformed

decisionmakers, but decisionmakers

informed by the experience of working in

and struggling with the problems of

special education. Given the

educational nature of the decisions, it

is critical that the agency and the

official directly responsible for

ensuring statewide compliance with the

EHA not be excluded from the

decisionmaking process.

~_~ ™

D. When a Senate Subcommittee

began developing the due process

requirements of the EHA, the PARC

plaintiffs advised the subcommittee to

adopt this principle of accountability:

"The ultimate responsibility and

authority to assure 4 free public

education appropriate to the educational

needs of each school aged mentally

retarded child should lie with’ the

Secretary of Education." Hearings

before the Subcommittee on the

Handicapped of the Committee on Labor

and Public Welfare, 93rd Cong., lst

Sess., Part 3, 1513 (1974) (prepared

comments of Pennsylvania Association for

Retarded Children) (emphasis supplied).

The Senate Committee accepted this

advice, and its Report stated that the

=~ 9a

"Committee bill has been designed

{inter alia) oes to assure sole

responsibility for the education of all

handicapped children by the State

educational agency.” S.Conf.Rep. No.

94-168, 94th Cong., 2nd Sess. 29, 47,

reprinted in U.S. Code Cong. & Ad. News

at 1437-38.

On its face, therefore, the EHA

makes the “State educational agency

responsible for assuring that the

requirements of” the statute are carried

out. 20 U.S.C. §1412(6). The state

educational agency must set forth a plan

for the education of the handicapped,

and this plan must provide guarantees of

appropriate education. 20 U.S.C.

§1413. The state educational agency is

responsible for “the development ' § and

implementation of a

comprehensive system of personnel

development” including training and the

dissemination to teachers of

“significant information derived from

educational research, demonstration and

similar projects”. 20 U.S.C.

§1413(a)(3) (A). The state educational

agency must adopt “where appropriate,

promising educational practices and

materials”. 20 U.S.C. §1413(a)(3)(B).

Furthermore, the state educational

agency must judge the adequacy of a

local educational agency's programs. 20

U.S.C. §1414(b). If those programs are

inadequate, the state agency should cut

off funds. 20 U.S.C.

§1414(b)(2)(A)(i). As in PAKC, the

state agency should ever

=-§le

“provide special education and related

services directly to handicapped

children” if those children are not

otherwise served. 20 U.S.C. §1414(d).

Like the parties in PARC, Congress

also expected due process hearings to

complement the other state agency

functions. For example, in the 1975

amendments, Congress required that

hearings either be conducted initially

by the state agency or be reviewed by

the state agency. Pub.L. 94-142,

§615(b), codified at 20 U.S.C.

§1415(b). If Congress did not intend

hearing officers to have ae special

affinity with the state agency, Congress

had no reason to require State

involvement in administrative review.

-B2-

In addition, the statute requires

that due process hearing decisions serve

both as a means of informing the State

agency of local program inadequacies and

of helping to stimulate State

responses. In determining the adequacy

of a local educational agency's

programs, the state agency must

“consider any decision made pursuant to

4 [due process] hearing... which is

adverse to the local educational agency

or intermediate educational unit

involved in such decision." 20 U-S.C.

§1414(b)(3). By making due process

hearing decisions subject to judicial

review, Congress assured a judicial

check on State activities.

afiRa

In Rowley the Court recognized the

relationship between the EHA's hearing

process and the statute's mandate that

the State be the responsible educational

agency. This Court held that the

State's responsibility of “acquiring and

disseminating" knowledge of good

practices, and of “adopting” those

practices where appropriate, constituted

a “clear statutory directive” that

Congress did not intend “courts to

overturn a State's choice of appropriate

educational theories in a [due process]

proceeding.” 458 U.S. at 207-08.

This Court recognized, therefore, that

due process hearings are themselves

means by which state agencies learn of,

adopt and disseminate promising

practices. Congress could not logically

-84-

have intended state agencies to be

responsible for developing promising

educational policies and yet have

intended the head of a state agency to

defer to the educational theories of

hearing officers outside the employment

of the agency.

The EHA therefore parallels the PARC

decree in important ways that cast doubt

on any claim that Congress intended the

impartiality requirement announced by

the Third Circuit. Like PARC, the EHA

relies on the state educational agency

to assure appropriate education for each

child. Like PARC, the EHA uses the due

process hearing mechanism to help

accomplish that goal. Forbidding the

State Secretary of Education from

involvement would undercut these goals.

=fGa

It would remove from the Secretary the

ultimate responsibility for the

education of each child; it would

therefore reduce the Secretary's

accountability to the public and to the

courts. The decision below is therefore

inconsistent with the structure of the

EHA and with its origins in the PARC

decree.

E. The Court of Appeals ' and every

other decision supporting its position

have erroneously relied on language in

the Conference Report synthesizing

Senate and House versions of the

EHA.*? The Report states in pertinent

part:

21ltwo lower court cases support

the holding that the chief executive of

a state education agency may review due

(Footnote continued on next page).

21(Footnote continued from

previous page).

process appeals. Victoria L. Vv,

District School Board of Lee County, “ts

741 F.2d 369, 374 (llth Cir.1984);

Brandon E. v. Wisconsin Department of

Public Instruction, 595 F. Supp. 740,

746 (E.D. Wisc. 1984). Several cases

support the decision below. In each of

these cases, the court based its

decision primarily on the language of

the Conference Report. See Grymes v.

Madden, 672 F.2d 321 (3d Cir. 1982),

Helms v. McDonald, 647 F.2d 800, 806 n.

9 (5th Cir. 1981), cert. denied, 455

U.S. 946 (1982); Robert M, v. Benton,

634 F.2d 1139, 1142 (8th Cir.1980);

Vogel v. School Board of Montrose,

491 F. Supp. 989, 995 (W.D. Mo. 1980).

In Mayson by Mayson v, Teague, 749 F.2d

652 (llth Cir. 1984), the Court of

Appeals did not independently analyze

the Conference Report but simply adopted

the holding of other courts that had.

Two Circuit Courts of Appeals have

noted the conflicting cases but have not

ruled upon the question. See Cain v.

Yukon Public School District, 775 F.2d

15, 20 (10th Cir. 1985); Colin K, v.

Schmidt, 715 F.2d 1, 5 n. 3 (lst Cir.

1983).

=fita

S. Conf. Rep. No. 455, 94th Cong.

Sess.

Cong.

"(b) costae conferees

point out that any [due

process] hearings are not

conducted by the agency

itself, but rather at the

appropriate agency level.

The hearing will be

conducted by an _ impartial

hearing officer since the

State or local agency or

intermediate unit will be a

party to any complaint

presented.

conducted by an employee of

the State or local

educational agency involved

in the education or care of

the child. The conferees

have adopted this’ language

to Clarify the minimum

standard of impartiality

which shall apply to

individuals conducting due

process hearings and

individuals conducting d

review of the local due

process hearing; °

49, reprinted in 1975 U.S.

& Admin. News 1480, 1502.

-~88-

— |

Code,

At first glance, this language does

appear to support the decision below.

Paragraph (b) states that “any” hearing

shall be conducted not by the agency

but at the appropriate agency level.

But paragraph (b) proceeds to explain

the reason for this concern: the

Conference Committee did not wish the

hearing conducted by the agency when the

agency is itself a party to the

complaint. The report further suggests

an awareness that a State will not

always be party to a complaint, for it

states that a “State or local agency Qr

intermediate unit will be a party to any

complaint." (Emphasis supplied). In

fact, state agencies are typically not

parties to a complaint. A court should

not extend the concern of the Conference

Committee out of context; the

prohibition on hearings by employees

-~89-

should not apply even when a state

agency is not a party to a complaint.

Paragraph (c) provides even less

support to the decision below. Although

it equates standards of impartiality for

the local and state decision, the

standard it enunciates only reiterates

the statute. The Report does not

prohibit conduct of a hearing by an

emp loyee of any "state Or local

educational agency,” but only of such

agencies “involved in the education of

the child.” Like the’ statute, the

Report therefore distinguishes between

Situations in which state agencies are

“involved” and situations in which they

are not.

The Conference Report at best is

ambiguous. No other language in the

legislative history supports such 4

view. Indeed, of the original House and

Senate bills, only the Senate bill

-90-

prohibits hearings by employees

"involved in the education of the

child.” S. Rep. No.94-168, 94th Cong.,

2d Sess. 29, 47, reprinted in (1975)

U.S. Code. Cong. & Admin. News 1425,

1453, 1470. Nothing in the Senate

Report, however, suggests an intent to

go beyond the PARC restriction. Nor did

any witness testify in favor of d

tighter restriction. The Conference

Report itself expressed no reason for

such a significant change from PARC.

In arriving at its holding the Court

of Appeals failed to consider that:

“{1)n expounding a statute

we must not be guided by a

Single sentence or a member

of a sentence, but look to

the provisions of the whole

law, and to its object and

policy.”

Pennhurst State Schoo] and Hopsital v.

Halderman, 451 U.S. at 18.

=@iea

In the absence of clearer statutory

language or legislative intent, in light

of the structure of the statute, the

language of the statute, and the

alternative interpretation's failure to

accomplish any reasonable purpose, this

Court should hold that the Court of

Appeals erred in grafting onto the EHA a

standard of impartiality not envisioned

or required by Congress.

=@2e

CONCLUSION

For the foregoing reasons,

petitioner asks the Court to reverse the

judgment of the Court of Appeals.

LeRoy S. Zimmerman

Attorney General

Maria Parisi Vickers

Chief Deputy Attorney General

Chief, Eastern Region

Counsel of Record

John G. Knorr, III

Chief Deputy Attorney General

Chief, Litigation Section

Gregory R. Neuhauser

Senior Deputy Attorney General

Attorneys for Petitioner

OFFICE OF ATTORNEY GENERAL

206 State Office Bldg.

Philadelphia, PA 19130

Telephone (215) 560-2402

Dated: December 1, 1988

=93<

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.