Petition for Writ of Certiorari — Massachusetts Department of Education v. David D.

No. 85-

IN THE SUPREME COURT OF THE UNI

Supreme Court, U.S.

rii€g@

MAR 3 (986

October Term, 1985

Heres eres oS “?

MASSACHUSETTS DEPARTMENT OF EDUCATION

AND DARTMOUTH SCHOOL COMMITTEE,

Petitioners,

Vv.

DAVID D.,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

FRANCIS X. BELLOTTI

ATTORNEY GENERAL

Carl Valvo*

Kim E. Murdock

Assistant Attorneys

One Ashburton Place

Boston, MA 02108

(617) 727-1033

General

(Massachusetts Department

of Education)

James M. Cronin, Esq.

432 County Road, Box H-3102

New Bedford, MA 02740

(617) 996-8291

(Dartmouth School Committee)

*Counsel of Record

QUESTIONS PRESENTED

1. Whether the Education of the

Handicapped Act (20 U.S.C. §§ 1400 et

seq.) incorporates state special educa-

tion law, such that more stringent state

law rather than federal law, as construed

in Board of Education v. Rowley, 458 U.S.

176 (1982), determines whether a State

is providing a “free appropriate public

education" under the federal Act.

y Whether the Education of the

Handicapped Act, by incorporating state

special education law, circumvents’ the

Eleventh Amendment's limitation on fed-

eral jurisdiction as construed in Penn-

hurst State School & Hospital v. Halder-

man, 104 S. Ct. 900 (1984), and permits

the federal courts to interpret, apply,

and enforce state law against the States

and state officials.

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING

THE WRIT

I. THE COURT OF APPEALS'

HOLDING THAT THE EHA

PERMITS THE STATES TO

BE SUED IN FEDERAL

COURT ON THE BASIS OF

STATE LAW RAISES

IMPORTANT FEDERAL

QUESTIONS WHICH

SHOULD BE DECIDED

BY THIS COURT.

A. The Decision Below

Reopens The Question

Answered In Rowle

And Has A profound

Impact On The

Substantive Scope

Of The EHA.

Te

19

19

Page

B. The Decision Below 27

Allows The Federal

Courts To Displace

The States In The

Development Of

State Educational -

Policy And The

Interpretation Of

State Law.

Cc. The Decision Below 34

Has Important

Financial

Implications For

The States.

II. THE DECISION OF THE COURT LE

OF APPEALS MISAPPREHENDS

ROWLEY AND DESTROYS THE

MITY OF FEDERAL

LAW.

III. THE COURT OF APPEALS' 44

RESOLUTION OF THE

ELEVENTH AMENDMENT

ISSUES IN THIS CASE

CONFLICTS WITH

APPLICABLE DECISIONS

OF THIS COURT.

CONCLUSION 52

=iii-

TABLE OF AUTHORITIES

cases Page

Amherst-Pelham Regional 24

School Committee v.

Department Of Bdaucation,

376 Mass. 480,

381 N.E.2d 922 (1978)

Atascadero .cate passim

Hospital v. Scanlon,

105 S. ct. 3142 (1985)

Battle v. Pennsylvania, 36

629 F.2da 269 (3rd Cir.

1980), cert. denied,

452 U.S. 968 (1981)

Board of Education passim

v. Rowley,

458 U.S. 176 (1982)

Buchholtz v. Iowa Dept. 26

Of Public Instruction,

315 N.w. 2c 789 (Iowa 1982)

Burlington School Committee 27

v. Department of Education,

105 S. ct. 1996 (1985)

Cothern v. Mallory, 22

565 F. Supp. 701

(W.D. Mo. 1983)

David D. v. Dartmouth 15

School Committee,

615 F. Supp. 639

(D. Mass. 1984)

-iv-

David D. v. Dartmouth

school Committee,

775 F.od 411 ;

(lst Cir. 1985)

Epperson v. Arkansas,

393 U.S. 97 (1968)

Fitzpatrick v. Bitzer,

427 U.S. 445 (1976)

Geis v. Board of

Education of

Parsippany-Troy Hills,

774 F.2d 575

(3d Cir. 1985)

Isqur v. School

Committee of Newton,

9 Mass. App. Ct. 290,

400 N.E.2d 1292 (1980)

Jerome v. United States,

Meiner v. Missouri,

F«

(8th Cir. 1981), cert.

denied, 459 U.S. 909

(1982)

Pennhurst State School

& Hospital v. Halderman,

451 U.S. I (1981)

Pennhurst State School &

Hospital v. Halderman,

104 S. Ct. 900 (1984).

Quern v. Jordan,

440 U.S. 332 (1979)

22,

passim

29

48

32, 45

23

43

48

44

passim

50

San Antonio School 29, 30

District v. Rodriguez,

411 U.S. 1 (1973)

Scituate School Committee 22

v. RObert B.,

620 F. supp. 1224

(D.R.I. 1985)

Smith v. Robinson, 35, 51

104 S. Ct. 3457 (1984)

Students of California 32, 45

School for the Blind

v. Honig, 736 F.2d 538

(Oth cir. 1984), vacated

105 Ss. ct. 1820 (1985)

Students of California

School for the Blind

v. Honig, 745 F.2d 582

(Sth Cir. 1984) 45

Town of Burlington Vv. 16

Department of Education,

EL F.20q 773 (ist Cir.

1984), aff'd on other

teks 105 S. ct. 1996

Younaberg v. Romeo, 32

457 U.S. 307 (1982)

Statutes

20 U.S.C. §§ 1400 et seq. 3

20 U.S.C. § 1401(16) 4, 39, 40

-Vi-

20 U.S.C. § 1401(17)

20 U.S.C. § 1401(18)

20 U.S.C. § 1401(18) (B)

20 U.S.C. § 1401(19)

20 U.S.C. § 1411(d)

20 U.S.C. § 1412(1)

20 U.S.C. § 1412(6).

20 U.S.C. § 1415(b)(1)(E)

20 U.S.C. § 1415(b) (2)

20 U.S.C. § 1415(e)

20 U.S.C. § 1415(e) (2)

28 U.S.C. § 1254(1)

29 U.S.C. § 794

Mass. G.L. c. 71B, §§ 2-3

Constitutional Provisions

U.S. Constitution,

Amend. XI.

U.S. Constitution,

Amend. XIV, § 5

U.S. Constitution,

Article 1, § 8, cl. l,

-vii-

9,

1d,

Regulations

603 C.M.R. Part 28.00,

q 502.4

Miscellaneous

Ss. Rep. No. 94-168,

94th Cong. lst SesS.,r

reprinted in 1975 U.S. Code

Cong. & Ad. News 1448

Bator, Mishkin, Shapiro,

and Wechsler, The Federal

Courts and the Federal

System (2d ed. 1973)

-viill-

10

43

—)

ee eee

7 ee — =

No. 85-

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1985

MASSACHUSETTS DEPARTMENT

OF EDUCATION AND

DARTMOUTH SCHOOL COMMITTEE,

Petitioners,

a

DAVID D.,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

The Massachusetts Department of Edu-

cation and the School Committee of the

Town of Dartmouth respectfully petition

for a writ of certiorari to review the

judgment and opinion of the United States

Court of Appeals for the First Cir-

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the First Circuit

is. reported et 775 f.24 411i. (ist Cir.

1985). Appendix (A.) 1. A petition for

rehearing was denied without opinion.

A. 155. The opinion of the United States

District Court for the District of Massa-

chusetts is reported at 615 F. Supp. 639

(D. Mass. 1984). A. 63. The administra-

tive decision of the state Bureau of Spe-

cial Education Appeals, a division of

the Massachusetts Department of Education

(A. 104), is not reported.

l/ All parties to the appeal in the

United States Court of Appeals for the

First Circuit are named in the caption.

} imal

JURISDICTION

The judgment of the United States

Court of Appeals for the First Circuit

was entered on October 15, 1985. A

timely petition for rehearing and sugges-

tion for rehearing in banc was denied on

December 3, 1985, and this petition for

certiorari is being filed within 90 days

after that date. The jurisdiction of

this Court is invoked pursuant to

28 U.S.C. § 1254(1).

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

This case arises under the Education

of the Handicapped Act, 20 U.S.C. §§ 1400

et seq. (hereafter "EHA" or “the Act"),

which provides federal financial assis-

tance to participating States for the

evaluation and education of handicapped

children. The EHA requires participating

States to provide handicapped children

with a “free appropriate public educa-

tion", which the Act defines as

special education and related

services which (A) have been

provided at public expense,

under public supervision and

direction, and without charge,

(B) meet the standards of the

State educational agency, (C)

include an appropriate pre-

school, elementary, or secon-

dary school education in the

State involved, and (D) are

provided in conformity with

the individualized education

program required under

section 614(a)(5) [20 U.S.C.

§ 1414(a)(5)].

20 U.S.C. § 1401(18). “Special education"

and "related services" are defined, re-

spectively, at §§ 1401(16) and (17).

A. 158-59. The EHA provides for judicial

review of administrative decisions con-

cerning the provision of a "free appro-

priate public education" in state or fed-

eral court. 20 U.S.C. § 1415(e)(2).

A. 159-60.

The court below held that the defini-

tion of “free appropriate public educa-

tion" contained in the EHA incorporates

relevant state substantive law concerning

the provision of special education ser-

vices. It further interpreted the Massa-

chusetts special education statute to

require the "maximum possible develop-

ment" of handicapped children. See Mass.

Guts cs 7B) 98 2=3.-a. 260-76,4/

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,

2/ The Court of Appeals did not identify

the particular provisions of the state

statute on which it grounded its holding

On the substantive content of state law.

Like the EHA itself, the state statute

does not specify the standard to be ap-

plied by a reviewing court to a disputed

educational plan. The petitioners have

reproduced in the Appendix sections 2

and 3 of the statute, upon which the dis-

trict court relied.

=S<

commenced or prosecuted

against one of the United

States by Citizens of another

State, or by Citizens or Sub-

jects of any Foreign State.

U.S. Constitution Amend. XI. The Spend-

ing Clause, Article 1, § 8, cl. l, of

the Constitution states that “Congress

Shall have Power To... provide for

the . . . general Welfare of the United

States." Section Five of the Fourteenth

Amendment to the Constitution provides

"The Congress shall have power to en-

force, by appropriate legislation, the

provisions of this article."

STATEMENT OF THE CASE

is This case presents the question

of whether the Education of the Handi-

capped Act ("EHA" or “the Act") permits

the federal courts to do what Pennhurst

State School & Hospital v. Halderman, 104

S. ct. 900 (1984) (Pennhurst II), teaches

they cannot: enforce state law against

the States, state agencies, and state

officials. The decision below holds that

the EHA avoids the proscription of Penn-

hurst II because it "incorporates" state

law and because the Act abrogates the

States' Eleventh Amenament immunity.

The Court of Appeals thus relied on state

law in reversing a state administrative

decision concerning the provision of edu-

cational services to a handicapped child.

Although those services enabled the child

to receive educational benefit, which,

as Board of Education v. Rowley, 458 U.S.

176 (1982) (Rowley), holds is all that

the EHA requires, the court found the

Child's plan to be inadequate because it

did not provide for his "maximum possible

development", a requirement based exclu-

Sively on a reading of state law disputed

by the State's highest educational

agency.

Under the scheme created by the EHA,

federal money is provided to state and

local educational agencies to assist them

in educating — children; fund-

ing is conditioned upon a State's compli-

ance with specific goals and procedures.

Rowley, 458 U.S. at 179 (1982). The Com-

monwealth of Massachusetts, through its

Department of Education (Department),

receives such funding, in return for

which it has agreed to meet certain sub-

Stantive and procedural requirements.

The principal substantive requirement of

the Act is that the States provide all

school-age handicapped children within

their jurisdiction with a “free appro-

priate public education." Rowley, 458

U.S. at 180-81, 187; 20 U.S.C. § 1412(1).

In Rowley, the phrase "free appropriate

public education" was interpreted to mean

education “sufficient to confer some edu-

cational benefit upon the handicapped

child." Rowley, 458 U.S. at 200.

In order to ensure that participating

States meet their substantive obligation

to provide a free appropriate public edu-

cation, the Act also imposes extensive

procedural safeguards. Parents or guard-

ians of handicapped children must be no-

tified of any proposed change in “the

identification, evaluation, or educa-

tional placement of the child or the pro-

vision of a free appropriate public edu-

cation to such child" and must be per-

mitted to bring a complaint to school au-

thorities with respect to such evaluation

and education. 20 U.S.C. § 1415(b)(1)

(E). If the parties are dissatisfied

with the response of the school authori-

ties, they are entitled to a “due pro-

cess" hearing before the State educa-

tional agency. 20 G.8.C. $ 1415(b)(2).

Any party aggrieved by the decision of

the State agency may file a civil action

for judicial review of that decision in

state Or federal court. 20 U.S.C.

§ 1415(e)(2).

a% David D., the respondent, is a

seventeen year old adolescent with Down's

Syndrome. Prior to these proceedings,

he lived at home with his parents and

attended a “substantially separate" spe-

cial needs program in a public high

school in Dartmouth, Massachusetts. See

603 C.M.R. Part 28.00, 4 502.4 (defi-

nition of “substantially separate" pro-

-10-

gram) .2/ That program, in which David

had been placed since 1976, provided him

with educational benefit, as demonstrated

by his steady progress in achieving edu-

cational goals. Nevertheless, when Dart-

mouth proposed to continue that program

in 1982, David's parents rejected the

4/

town's plan.— Instead, David's par-

3/ David now attends a 24-hour, year-

round program in a residential school

for developmentally disabled children,

as required by the decisions of the dis-

trict court and the Court of Appeals.

It remains the view of local and state

officials that the prior program, with

certain modifications proposed during

the administrative hearing, should be

restored,

4/ The plan, known as an “Individual

Education Plan" (IEP), is a written docu-

ment setting forth for each handicapped

child the child's educational perfor-

mance, instructional goals and objec-

tives, and the specific educational ser-

vices to be provided. The plan must be

prepared at least annually by the local

educational authority responsible _ for

the child, in conjunction with teachers,

(footnote continued)

-ll-

ents requested that he be placed in a

more restrictive residential school in

order to control certain inappropriate

behavior .>’

An administrative hearing was held

before the state Bureau of Special Edu-

cation Appeals (BSEA), at which Dartmouth

contended that a residential placement

was unnecessary, since David was making

progress in all areas addressed by his

IEP and since he had never displayed the

inappropriate behavior which concerned

his parents while in school. Dartmouth

(footnote continued)

parents, and, where appropriate, the

child. 20 U.S.C. § 1401(19).

5/ The EHA requires participating States

to educate handicapped children with non-

handicapped children whenever possible.

Rowley, 458 U.S. at 202. <A more restric-

tive placement is one which is less capa-

ble of meeting this “mainstreaming” re-

quirement.

=) 2@

offered, however, to address David's be-

havioral problems by modifying his IEP

to provide for individual and family

counseling. The parents argued that only

a residential placement would suffice

and that even if David was benefiting

from his educational plan to the extent

required by Rowley, state law imposed a

more stringent standard on Dartmouth:

that the child's education benefit him

to the “maximum extent feasible." The

state hearing officer concluded, however,

that the modified IEP proposed by Dart-

mouth was “adequate and appropriate" to

meet David's unique needs. A, 145,8/

6/ The hearing officer did not specifi-

cally address the parents' argument that

state law required more of Dartmouth than

the EHA, although it is plain that she

rejected it, since she ruled that both

state and federal requirements were met

by the same showing, that David's IEP

was “adequate and appropriate."

a) Se

a The parents, on David's behalf,

appealed the State's decision pursuant

to 20 U.S.C. § 1415(e), by filing a civil

action in the United States District

Court for the District of Massachusetts

against the Department (the state educa-

tional agency) and the Dartmouth School

Comattes (the local educational agency).

In July, 1984, the case went to trial in

the district court. On September ll,

1984, the district court reversed the

BSEA decision on the basis of state law,

albeit state law which the court deemed

to be incorporated into the EHdA,. The

court opined that "Massachusetts law re-

quired [the petitioners] to address...

[David's] special education needs so as

to assure his maximum possible develop-

ment in the least restrictive environment

consistent with that goal” and that a

alge

residential placement was necessary “in

order to achieve the maximum progress in

development in [David's] ability to func-

tion as independently as possible". Da-

vid D. v. Dartmouth School Committee,

615 F. Supp. 639, 646, 647 (D. Mass.

1984). The district court rejected the

Department's arguments that the decision

of the state hearing officer could only

be affirmed, since David was receiving

the "educational benefit" which Rowley

holds is all that the EHA requires, and

Since Pennhurst II precluded it from

Granting relief on the basis of state

law.—_/ The district court ruled that

Rowley was irrelevant in light of what

it viewed as more stringent state law,

7/ The petitioners also disputed the

district court's interpretation of state

law as imposing greater requirements than

the EHA, as interpreted in Rowley.

and that, because the EHA incorporates

the more stringent state law standard,

Pennhurst II presented no obstacle. In

the court's view, it was enforcing not

state law but federal law, which incor-

porated state law. Id. at 644, n. 2,8/

8/ This “incorporation” theory was not

wholly the creation of the district

court, but was drawn from dicta in Town

of Burlington v. Department of Education,

736 F.2d Ji3ge (89 (ist Circ. 1984), att'd

on other grounds, 105 S. Ct. 1996 (1985).

The Court of Appeals is incorrect in its

assertion that the Department conceded

in the Burlington case that the EHA in-

corporates state substantive law. See

David D. v. Dartmouth School Committee,

tts Csae O86 S45. That issue was never

presented in Burlington: the issue there

was whether a federal court may refuse

to give any weight to a state agency's

ruling that state procedures have been

violated. There was no suggestion by

the Department that the EHA incorporates

State law or that state law may provide

a basis for reversing the decision of a

state agency.

»1¢-

ie 4

4. The petitioners appealed and a

divided panel of the Court of Appeals

for the First Circuit affirmed. The

Court of Appeals held: first, that the

EHA, by requiring special education ser-

vices to “meet the standards of the

state educational agency”, au U.6.C.

§ 1401(18)(B), incorporates the substan-

tive rights authorized by state special

education law and that where state law

is more stringent, it and not Rowley de-

termines what constitutes a "free appro-

priate public education"; second, that

Congress, in enacting the EHA, was acting

pursuant to its powers under Section Five

of the Fourteenth Amendment and that the

EHA abrogates the States' immunity under

the Eleventh Amendment; and third, that

Pennhurst II does not preclude the en-

forcement of state law under the circum-

ak Vs

stances presented, since the EHA incor-

porates state law.

Judge Torruella dissented. In a

Short but pointed opinion, he stated:

"Assuming the validity of cir-

cumventing Pennhurst yt

through the [majority's] ‘in-

corporation by reference' doc-

trine .. ., this proposition

is sustainable only if it

meets the high standards es-

tablished by Atascadero [State

Hospital _v. Scanlon, 105 S.

Ct. 3142 (1985),] for over-

riding the Eleventh Amendment.

Because I believe that the

present situation under the

[EHA] .. . is indistinguish-

able from that in Atascadero

under the Rehabilitation Act,

and because, as in Atascadero,

there is lacking unmistakably

clear intention in the lan-

guage of this legislation to

Submit the Commonwealth of

Massachusetts to suit in fed-

eral court for violation of

its statutes, I dissent.

David D. v. Dartmouth School Committee,

775 F.2d 411, 424-25 (lst Cir. 1985)

(footnotes omitted).

-18=

A petition for rehearing and sugges-

tion for rehearing in banc filed by the

petitioners was denied without opinion

on December 3, 1985.

REASONS FOR GRANTING THE WRIT

I. THE COURT OF APPEALS' HOLDING THAT

THE EHA PERMITS THE STATES TO BE SUED

IN FEDERAL COURT ON THE BASIS OF

STATE LAW RAISES IMPORTANT FEDERAL

QUESTIONS WHICH SHOULD BE DECIDED BY

THIS COURT.

This case presents issues of undeni-

able importance, not only to the admin-

istration of a major federal statute gov-

erning the education of handicapped chil-

dren, but also to the jurisdiction of

the federal courts and the preservation

of the constitutionally mandated balance

between the States and the National Gov-

ernment. In holding that the substantive

heart of the EHA must be defined by ref-

erence to state law, the Court of Appeals

has profoundly altered the nature of the

=~} Ge

States' obligations under the federal

statute and reopened a question believed

to have been settled by this Court in

Board of Education v. Rowley, 458 U.S.

176 (1982) (Rowley). Furthermore, in

deciding that the EHA abrogates’ the

States' constitutional immunity under

the Eleventh Amendment, thereby permit-

ting the federal courts to enforce state

law against the States, a result contrary

to Pennhurst State School and Hospital

Vv. Halderman, 104 Ss. ct. 900 (1984)

(Pennhurst II), the ruling below vastly

extends the jurisdiction of the federal

courts to the interpretation of state

law and the deveiopment of local educa-

tional policy, two areas traditionally

left to the States. Thus, in the name

of enforcing rights created only as a

matter of state law, the Court of Ap-

a 20<

Sr

peals' decision profoundly distorts our

federal system.

A. The Decision Below Re-

opens The Question An-

swered In Rowley And Has

A Profound Impact On The

Substantive Scope Of The

EHA.

Apart from the important Eleventh

Amendment issues which it raises, the

decision below is significant for its

drastic impact on the States' substantive

Y tn

Obligations under the EHA.= ROw-

ley, this Court held that the principal

9/ All fifty States currently partici-

pate in the statutory scheme. The EHA

requires States to have in effect a pol-

icy which guarantees a "free appropriate

public education" to handicapped chil-

dren. 20 U.S.C. § 1412(1). As in Massa-

Chusetts, this “policy” generally is em-

bodied in state statutes and regulations

Which function as a state counterpart to

the EHA. Many of these state counter-

parts contain language which, as here,

could be interpreted as imposing more

Stringent requirements than the federal

(footnote continued)

ee

source of substantive rights and obliga-

tions under the Act is the definition of

"free appropriate public education,"

which it interpreted to mean "“personal-

ized instruction . . . with sufficient

Support services to permit [a] child to

benefit from the instruction." Rowley,

458 V.é... at. i689. Here, however, the

Court of Appeals concluded that’ the

Statutory definition of “free appro-

priate public education" incorporates

relevant substantive state law concerning

(footnote continued)

Act. See, e.g., Geis v. Board of Educa-

tion of Parsippany-Troy Hills, 774 F.2d

575, 579 (3d Cir. 1985) (state regulation

required services to be planned according

to how pupil “could best achieve educa-

tional success"); Cothern v. Mallory,

565 F. Supp. 701, 708 (W.D. Mo. 1983)

(state statute required services to

"maximize the capabilities" of handi-

capped children); Scituate School Commit-

tee v. Robert B., 620 F. Supp. 1224, 1233

(D.R.I. 1985) (state statute required

special education “that will best satisfy

the needs" of handicapped child).

>

a

the provision of special education ser-

vices. Thus, a State may provide a

handicapped child with all that Rowley

demands, yet fail to meet the require-

ments of federal law if state law is de-

termined by a federal court to require

more .+0/

10/ In this case, the Court of Appeals

determined that Massachusetts law re-

quires the "maximum possible development"

of handicapped children. 775 F.2d at

423. Although the point is not necessary

to the petitioners' position, they dis-

agree with the lower court's interpreta-

tion of state law. The precise question

of whether state law imposes more strin-

gent requirements than the EHA has never

been considered by the Massachusetts

courts. At least one intermediate state

appellate court decision appears to dic-

tate a result contrary to that reached

by the Court of Appeals on the respon-

dent's state law claim, however. See

Isgur v. School Committee of Newton, 9

Mass. App. Ct. 290, 299, 400 N.E.2d 1292,

1298 (1980) (if child is receiving educa-

tional benefit, he cannot be transferred

to more restrictive placement merely be-

cause such placement would provide

greater benefit). Furthermore, the De-

partment has consistently construed the

(footnote continued)

o23=

This construction of the EHA reopens

the question of the substantive scope of

the Act ostensibly settled in Rowley and

Virtually ensures relitigation of that

question in every state tl/ Since the

(footnote continued)

state and federal standards as equiva-

lent, and the state courts have ruled

that its construction of the statute is

entitled to particular deference. Am-

herst-Pelham Regional School Committee

V. Depar teens of Bducation, 376 Mass.

4 , _ , N.E. ’ 930 (1978).

In any event, petitioners do not invoke

the discretionary jurisdiction of this

Court to seek a construction of state

law.

ll/ As Pennhurst II recognizes, allowing

the federal courts to entertain state

law claims against the States and state

officials “does not necessarily fos-

ter . . . policies of judicial economy,

convenience, and fairness to liti-

gante . « % = Pennhurst II, 104 S.

Ct. at 920 n. 32 (citation and quotation

omitted). Here, as in Pennhurst II, the

consequences of extending federal juris-

diction to "incorporated" state law in-

clude potential misunderstanding of local

law, needless conflict with state policy,

duplication of effort, delay, and uncer-

tainty. Id.

=24

federal courts cannot interpret state

law with finality, under the Court of

Appeals' incorporation theory an authori-

tative ruling on what constitutes a "free

appropriate public education" can be ren-

dered only by a State's highest court.

See 775 F.2d at 423 n. 8 (federal courts

will follow state law standard as set by

State's highest court) .24/ Until such

an authoritative ruling is obtained in

12/ The Court of Appeals' incorporation

theory is logically irreconcilable with

its acknowledgment that the States and

not the federal courts are the ultimate

arbiters of the meaning of incorporated

state law. Truly "“incorporated" state

law becomes federal law; state courts

therefore cannot speak with finality as

to this state gua federal law, although

they continue to do so with respect to

State law. Incorporation thus presents

the possibility of a system which the

Supremacy Clause was meant to avoid, in

which state and federal courts are em-

powered to render authoritative yet con-

flicting rulings on the meaning of the

same law, simply because in one context

that law is characterized as "“federal"

While in other context it is not.

o25—

3/

each State,— doubt and uncertainty

will attend the administration of the

Act, both as to the scope of the States'

Substantive obligations and the rights

the EHA confers on parents and handi-

capped children.24/ Such a prospect

inevitably detracts from the central ob-

jective of the Act, which is to assist

13/ To date, the highest court of only

one State has decided whether state sub-

stantive law differs from the EHA and,

if so, in what respects. See Buchholtz

v. Iowa Dept. of Public Instruction, 315

N.W. 2d 789, 793 (lowa 1982).

14/ Furthermore, although the EHA autho-

rizes judicial review in state as well

as federal courts, once a favorable read-

ing of state law is obtained in federal

court, subsequent litigants wili have

little incentive to turn to the alternate

State forum. Because state courts have

no opportunity to review their federal

counterparts' constructions of state -law,

it has been noted that the only certain

escape from an erroneous federal decision

is the cumbersome route of legislation.

Pennhurst II, 104 S. Ct. at 920 n. 32,

-26-

the States in the provision of appropri-

ate educational services to handicapped

children. 22

B. The Decision Below Allows The

Federal Courts To Displace The

States In The Development Of

State Educational Policy And

The Interpretation Of State Law.

Although, as Rowley implicitly recog-

nizes, the meaning of “free appropriate

public education" is in itself an impor-

15/ As the Court has recently observed,

even when Rowley was believed to answer

the question reopened here by the Court

of Appeals, the EHA was not a model of

expeditious dispute resolution. See Bur-

lington School Committee v. Department

of Education, 105 Ss. 4 1996, 2003

(1985) (administrative and judicial re-

view process under EHA termed "“ponder-

ous"). Litigation is not in itself an

evil, of course; Congress expressly pro-

vided for a right to judicial review

under the Act. 20 U.S.C. § 1415(e). At

the same time, in focusing on procedural

guarantees, Congress clearly intended

that most if not all of what it wished

in the way of substance would be resolved

Short of litigation. Rowley, 458 U.S.

at 206.

tant federal question worthy of review

by this Court, this case involves more

than an issue of statutory interpreta-

tion. The Court of Appeals recognized

that the inquiry is not simply whether

the EHA incorporates state law, but more

importantly, whether incorporation in

these circumstances is permissible under

Eleventh Amendment doctrine. 775 F.2d

at 420. The court answered the question

by holding that Congress, in enacting

the EHA, was acting pursuant to its pow-

ers under Section Five of the Fourteenth

Amendment and intended to abrogate the

States' Eleventh Amendment immunity, at

least with respect to the enforcement of

State law in federal court. 73 8.26

at 421. The effects of this holding are

as serious as the decision itself is

wrong.

Both the development of appropriate

~28-=

state educational policy and the inter-

pretation and implementation of state

law are matters of historic and vital

concern to the States .+6/ The EHA it-

self expresses a congressivnal judgment

that, while there is a federal interest

in ensuring that handicapped children

have equal access to education, that in-

terest must be protected in ways which

will not unduly interfere with the le-

gitimate activities of the States. "Con-

gress' intention was not that the Act

16/ See San Antonio School District v.

Rodriguez, 411 U.s. 1, 44 (1973) ("dif-

ficult to imagine a case having greater

impact on our federal system" than one

involving federal abrogation of State's

method of financing public education);

Epperson v. Arkansas, 393 U.S. 97, 104

(1968) ("[b]y and large, public education

in our nation is committed to the control

of state and local authorities"); Penn-

puree Tt, 106 8. Ct. Ot 9il (°4t 18 Gite

ficult to think of a greater intrusion

On state sovereignty than when a federal

court instructs state officials on how

to conform their conduct to state law").

-29-

displace tne primacy of the States in

the field of education, but that the

States receive funds to assist them in

extending their educational systems to

the handicapped.” Rowley, 458 U.S. at

208. In contrast, the decision below

invites, indeed requires, the federal

courts to become involved in the inter-

pretation of state law, for the express

purpose of second-guessing state admin-

istrators concerning appropriate educa-

tional methods .2/’ While this is done

17/ In enacting the EHA, Congress shared

the view of this Court that courts in

general “lack the specialized knowledge

and experience" necessary to _ resolve

"persistent and difficult questions of

educational policy." Rowley, 458 U.S.

~—~at 206, quoting San Antonio Indep. School

Dist. v. Rodriguez, 4ll U.S. at 42. For

this reason, the standard of judicial

review endorsed in Rowley emphasizes

deference to the States’ decisions under

the EHA. In contrast, the standard

adopted by the Court of Appeals involves

precisely the kind of judicial interven-

tion which Rowley rejects.

-30-

in the guise of protecting federal

rights, it must be stressed that the sole

source of those rights is state, not fed-

eral, law.

The impact of this judicial intrusion

cuts across all levels of state govern-

ment. Most immediately, it disrupts the

efforts of state and local officials re-

sponsible for administering state law

and providing educational services to

handicapped children. The problem is

compounded by the often ephemeral nature

of a federal court's construction of

State law; state officials cannot know

With certainty whether the state law

"rights" discovered by a federal court

On one occasion will be rejected by a

state court on the next ,+98/ Further-

18/ Although this case focuses on

whether a State's substantive standard

(footnote continued)

~ }

more, since it involves judicial review

of the “presumptively valid" judgments

of professionals, Youngberg v. Romeo,

457 U.S. 307, 323 (1982), the ultimate

decision courts are called upon to make

under the EHA whether a child's education

(footnote continued)

for evaluating special education services

may be enforced in federal court, the

Court of Appeals indicated that, in its

view, all substantive and procedural law

pertaining to special education is incor-

porated into the EHA. 775 F.2d at 416,

419-20. The Third Circuit agrees that

the EHA incorporates, at a minimum, state

Substantive law, whether created by stat-

ute or regulation. Geis v. Bd. of Ed.

Parsippany-Troy Hills, 774 F.2d 575 (3rd

Cir. 1985). The Ninth Circuit has taken

this "incorporation" theory one step fur-

ther, holding that the EHA incorporates

all state law pertaining to education

generally. Students of Calif. School

for the Blind v. Honig, 736 F.2d 538 (9th

Cit. . 1964), VWaeeates 105 &. Ct. 1820

(1985). Thus, under the incorporation

theory adopted to date by three circuit

courts of appeals, the door is open for

federal oversight and control of a myriad

of purely local matters of educational

policy and procedure.

<<

5 a

is “appropriate” calls for particular

deference to the views of state and local

officials. Rowley, 458 U.S. at 208. As

this case demonstrates, in the context

of interpreting state statutes, federal

courts may be less sensitive to the judg-

ments of state officials and more in-

clined to substitute their own views as

to what constitutes appropriate educa-

tional planning for handicapped children.

The authority of state courts is also

displaced if state law is permitted to

provide a basis for relief in federal

court. While state courts are equally

capable of hearing EHA claims ,22/ the

federal courts, less familiar with state

law and immune from review by the States'

19/ See Atascadero State Hospital v.

Scanlon, igo we Ct. 34456, 3490 =%Rs 2

(1985) ("it denigrates the judges who

serve on the state courts to suggest that

they will not enforce the Supreme law of

the land").

-33-

highest cOurts, are perhaps less con-

strained by state law precedent, or the

lack thereof, in attacking difficult

state law questions .22/ If the federal

courts are permitted to assume an equal

role with state courts in the enforcement

of state special education law, state

courtS may become increasingly super-

fluous in this area.2L/

Cs The Decision Below Has Important

Financial Implications For The

States.

Finally, the Court of Appeals' deci-

sion has significant practical implica-

20/ Furthermore, in this case the Court

of Appeals granted no deference to state

officials' construction of state law,

despite the fact that the State's highest

court has held that such deference is

required. See footnote 9, supra.

21/ As previously noted, once a federal

court has favorably interpreted state

law, satisfied litigants are unlikely to

seek or tolerate review in state court,

where the issue must be decided anew.

= 34%

tions for the public fisc, a matter of

no small concern to Congress when it en-

acted the EHA. See Smith v. Robinson,

104 S. Ct. 3457, 3468 (1984) (EHA was an

attempt to relieve fiscal burden placed

on States and localities by responsibil-

ity to provide education for ali handi-

capped children). Under the statutory

scheme, the amount of federal funding

allotted to each participating State is

based upon the number of handicapped

Children in that State receiving ser-

vices - not upon the nature of the ser-

vices provided. am: G.8.C. § 1411(d).

Thus, whether Massachusetts must educate

its handicapped children in order to sim-

ply “benefit” them, or whether it must

instead "maximize their development”, as

the Court of Appeals has ruled, the fed-

eral financial contribution remains

fixed.

«3S~

"(T]he decision to establish educa-

tional objectives for handicapped chil-

dren profoundly impacts the allocation

of scarce educational resources." Bat-

tle v. Pennsylvania, 629 F.2d 269, 278

(3rd Cir. 1980), cert. denied, 452 U.S.

968 (1981). A State may, of course,

choose to expend those resources on maxi-

mizing the development of its handicapped

Children, with no expectation of federal

assistance. In this case, however, that

choice has not been made by state offi-

Cials but by a federal court. The result

is the diversion of state resources from

other purposes, most obviously the educa-

tion of nonhandicapped children,22/

With no corresponding assistance from

the federal government. Such an outcome

22/ Nonhandicapped children do not, of

course, possess an enforceable federal

right to an education that maximizes

their educational development.

a36=

7

is patently inconsistent with Congress’

intention to assist the States in educat-

ing handicapped children, and its rea-

soned belief that decisions as to re-

source allocation, like determinations

of educational policy, must be left to

the States. See Rowley, 458 U.S. at 209

(Conagress' intention was not that Act

displace primacy of States in field of

education, but that States receive funds

to assist them in extending education to

nandicapped). Certainly such decisions

were not intended to be made by the fed-

eral courts.

II. THE DECISION OF THE COURT OF

APPEALS MISAPPREHENDS ROWLEY

AND DESTROYS THE UNIFORMITY OF

FEDERAL LAW.

The heart of the Court of Appeals'

decision is its analysis of the statutory

definition of “free appropriate public

ye

education", which generated its theory

that state law is incorporated into the

EHA. That analysis is seriously skewed,

however, by the court's erroneous reading

of Rowley.

In Rowley, this Court devoted consid-

erable attention to the nature of the

Substantive standard to be applied by

the courts in determining whether a

handicapped child has been provided with

a “free appropriate public education.”

The term itself is defined in § 1401(18)

of the Act as “special education and re-

lated services" which must also meet cer-

tain comparatively straightforward re-

quirements, set forth in subsections (A)

through (D) of the definitional section.

20 U.S.C. § 1401(18). Paraphrasing the

definitions of “special education” and

"related services" set forth at

-38-

ilies

§§ 1401(16) and (17), this Court held

that “if personalized instruction is

being provided with sufficient supportive

services to permit the child to benefit

from the instruction, and the other items

on the definitional checklist are satis-

fied, the child is receiving a ‘free ap-

propriate public education', as defined

by the Act." Rowley, 458 U.s. at 189.

The decision below seizes upon Row-

ley's reference to the "definitional

checklist* of subsections (A) through

(D) with startling results. In the lower

court's view, subsection (B), which re-

quires special education services to

"meet the standards of the state educa-

tional agency," incorporates the entire

corpus of state special education law,

which in this case it decided requires

the "maximum possible development" of

handicapped children. The result is the

= 39-

complete displacement of the substantive

Standard for determining whether special

education services are “appropriate” de-

rived from §§ 1401(16) and (17) and en-

dorsed in Rowley. In its stead is sub-

stituted a far more demanding standard,

23/

ostensibly derived from state law.—

This Court could hardly have intended

23/ The state law standard approved by

the Court of Appeals bears a remarkable

Similarity to the standard rejected by

this Court in Rowley. See Rowley, 458

U.S. at 189-90, 198 newt courts found

that EHA requires states to maximize po-

tential of handicapped children; Court

finds no support for such a standard).

The petitioners repeat that they be-

lieve that the Court of Appeals' con-

Struction of state law is incorrect.

Since their argument is that the federal

courts lack jurisdiction to even consider

the state law question, however, they

have not suggested that the question be

certified to the State's highest court.

Such action would be appropriate only

were the Court to conclude that the EHA

incorporates state law and that there is

no Eleventh Amendment bar to such incor-

poration.

-40-

that its holding in Rowley be reduced to

an irrelevance, or at best an academic

footnote, Yet this is the precise out-

come of the undue emphasis placed by the

Court of Appeals on subsection (8B) of

the statute.

In the petitioners' view, the Court

of Appeals‘ interpretation of subsection

(B) is simply wrong. There is not a sin-

gle reference in the EHA, its implement-

ing regulations, or the legislative his-

tory to the notion that the statute “in-

24/

corporates" state law. In making

the federal right to a “free appropriate

24/ The petitioners suggest that, like

the other subsections which make up the

“definitional checklist," subsection (B)

imposes a straightforward and easily as-

certained requirement: that in each par-

ticipating State, a single state agency

must assume ultimate responsibility for

the education of handicapped children.

(footnote continued)

ela

public education" dependent on the law

of each State, the Court of Appeals has

transformed that right into a national

crazy quilt of differing requirements.

The court's decision fails to recognize

that, while the States are free under

the EHA to confer greater right~ on their

handicapped residents than those provided

by the Act, there is no federal interest

in the enforcement of such state-created

rights. Pennhurst II, 104 S. Ct. at 9l1l.

In contrast, there is a strong fed-

eral interest in the uniform application

of federal law, which the Court of Ap-

(footnote continued)

The importance of vesting such responsi-

bility in a single state agency is empha-

sized in the legislative history and

elsewhere in the Act itself. See S. Rep.

No. 94-168, 94th Cong. lst Sess., re-

printed in 1975 U.S. Code Cong. & Ad.

News 1448 (establishment of single state

agency responsibility of “paramount im-

portance"); 20 U.S.C. § 1412(6).

o42—

peals has ignored, Jerome v. United

States, 318 U.S. 101, 104 (1943); Bator,

Mishkin, Shapiro, and Wechsler, The Fed-

eral Courts and the Federal System (2d

Ed. 1973) pp. 491-93.22/ treating all

handicapped children equally under the

EHA, regardless of the State in which

they reside, advances this federal inter-

est. It is also consistent, as the Court

of Appeals' construction is not, with

Congress’ intent to provide handicapped

Children with access to a free public

education, while leaving the substance of

such education primarily a matter for the

States. Rowley, 458 U.S. at 290, 207.

25/ Because of this federal uniformity

interest, even when issues pertaining to

State sovereignty and federalism are not

present, it is generally not assumed, in

the absence of a plain intention to the

contrary, that Congress has made the ap-

plication of a federal statute dependent

on state law. Id. No such “plain inten-

tion" is present here.

~43-

III. THE COURT OF APPEALS' RESOLUTION OF

THE ELEVENTH AMENDMENT ISSUES’_ IN

THIS CASE CONFLICTS WITH APPLICABLE

DECISIONS OF THIS COURT.

This Court, in a recent line of

cases, has stressed the fundamental im-

portance of the States' constitutional

immunity and the vital role it plays in

our federal system. See, e.g., Pennhurst

State School & Hospital v. Halderman, 45]

U.S. 1 (1981) (Pennhurst I); Rowley, 458

U.S. at 204 n. 26 (1982); Pennhurst II,

104 S. Ct. 900 (1984); Atascadero State

Hospital v. Scanlon, 105 8. Ct. 3142

(1985) (Atascadero). In its approach to

and treatment of this issue, the decision

below “reflects an insensitivity to the

most recent relevant pronouncements [of

the Court] and to the principles of fed-

eralism those pronouncements sought to

explicate." Students of California

whe

School for the Blind v. Honig, 745 F.2d

582, 586 (9th Cir. 1984) (dissenting from

failure to consider in banc) .49/ This

insensitivity is particularly evident in

the Court of Appeals' discussion of Penn-

hurst II and its superficial treatment

of Atascadero.

It must be emphasized that the "“in-

corporation” theory on which the lower

court relied, which holds that the EHA

federalizes the substantive and proce-

dural requirements of state special edu-

26/ As noted earlier, both the Ninth

Circuit, in Honig, and the Third Circuit,

in Geis, have reached the same result on

the incorporation issue as that arrived

at by the First Circuit in this case.

In Honig, this Court granted certiorari

but vacated on mootness grounds. 105 S.

Ct. 1820 (1985). (Three justices, com-

menting on the complexity of the case,

dissented from the disposition. Id. at

1821.) The state regulation at issue in

Geis was subsequently repealed. Geis v.

Board of Education of Parsippany-Troy

Bicees FFG £240 OC SEZ fi. So No otner

Court of Appeals has addressed the issue.

ah Ge

cation law, permits a result indistin-

guishable from that proscribed by Penn-

hurst II. That is, it permits suits by

individuals in federal court for the en-

forcement of state law against the States

and state officials. As the Court ob-

served in Pennhurst II, “[{sJuch a result

conflicts directly with the principles

of federalism that underlie the Eleventh

Amendment.” Pennhurst II, 104 S. Ct.

at 9l1l.

Although Pennhurst II was decided in

the context of a pendent state law claim,

the conflict with Eleventh Amendment

principles is no less significant when a

federal court assumes jurisdiction over

"incorporated" state law. 22/ As Part I

27/ Although, as the Court of Appeals

noted, federal incorporation of state

law is not without precedent, none of

(footnote continued)

~46<

of the petitioners' discussion demon-

strates, most if not all of the difficul-

ties associated with federal intrusion

On state sovereignty persist. Thus, even

if Congress intended the EHA to incorpo-

rate state law (a proposition that is

highly unlikely, given the absence of

any language in the Act or its legisla-

tive history expressing such a desire),

the Court of Appeals' dismissal of Penn-

hurst II as relevant only to pendent ju-

risdiction fails to recognize any of the

concerns which animate the Eleventh

Amendment and its application to federal

judicial enforcement of state law.

(footnote continued)

the decisions it cites concerns enforce-

ment of such incorporated law against a

State. Furthermore, none involves the

complete displacement by state law of

existing standards contained in a fed-

eral statute. See 775 F.2d at 419 n. 6.

wita«

Apart from its discussion of Penn-

hurst II, the Court of Appeals also con-

cluded that the EHA abrogates the States'

Eleventh Amendment immunity from federal

adjudication of state law claims .28/

It is undisputed that Congress may abro-

gate the States’ Eleventh Amendment im-

munity when acting pursuant to Section

Five of the Fourteenth Amendment. Fitz-

patrick Vv. Bitzer, 427 U.S. 445

(1976) .22/ In Atascadero, this

28/ In contrast, the Eighth Circuit has

held that the EHA does not abrogate the

Eleventh Amendment immunity of the

States. Meiner v. Missouri, 673 F.2d

969, 981 (8th Cir. 1981), cert. denied,

459 U.S. 909 (1982). Thus, an additional

reason for granting certiorari in this

case is to resolve this conflict between

the circuits.

29/ The petitioners argued below that

the EHA was not a Fourteenth Amendment

Statute, but was instead an exercise of

Congress' powers under the Spending

Clause. See Rowley, 458 U.S. at 190 n.

ll, 204 n. 26 (1982) (discussion of EHA

(footnote continued)

. o

Court held that because of the "vital

role of the doctrine of sovereign im-

munity in our federal system," Pennhurst

II, 104 S. Ct. at 907, Congress may ef-

fect this result only by “unmistakable

language in the statute itself." Atas-

cadero, 105 S. Ct. at 3148 (1985). Al-

though the Court of Appeals purported to

follow Atascadero, sn 6 fact, as the

(footnote continued)

as Spending Power legislation). As such,

the question is not whether Congress has

abrogated the States' immunity, but

rather whether they have been clearly

and unequivocally informed that, as a

condition of participation in the EHA,

they must waive their Eleventh Amendment

immunity. See Atascadero, 105 S. Ct. at

3145 (discussion of waiver and abroga-

tion). In either case, a clear and un-

equivocal indication of the surrender of

Eleventh Amendment rights, as well as a

clear statement of the conditions of par-

ticipation imposed upon the States, is

required. Id. at 3150. See also Penn-

hurst I, 451 U.S. at 17 (any conditions

of State's participation in legislative

scheme under Spending Power must be

clearly and unambiguously expressed in

order to be effective).

-49-

dissent recognized, it relied on pre-

cisely the type of general statutory lan-

guage and vague legislative history which

Atascadero holds is inadequate to prove

abrogation. 775 F.2d at 425 (Torruella,

Fis dissenting) .22/

More specifically, the court's con-

clusion that the EHA abrogates’ the

States' Eleventh Amendment immunity re-

lies on the statutory definition of a

"free appropriate public education", 20

U.S.C. § 1401(18), termed “cryptic” by

this Court in Rowley, and the fact that

the Act authorizes “any party aggrieved

by the findings and decision" of a state

30/ Most of the court's discussion of

the issue is devoted to demonstrating

the equal protection underpinnings of

the EHA. 775 F.2d at 420. The mere fact

that a federal statute was enacted pur-

Suant to Congress' powers under Section

Five does not establish that Congress

has abrogated the States' Eleventh Amend-

ment immunity, however. Quern v. Jordan,

440 U.S. 332, 345 (1979).

Ba

educational agency concerning a child's

"free appropriate public education" to

bring a civil action in federal or state

court. 20 U.S.C. § 1415(e}(2). 775 F.2d

at 421-22. Neither vague definitional

language nor “a general authorization

for suit in federal court is... the

kind of unequivocal statutory language

sufficient to abrogate the Eleventh

Amendment.” Atascadero, 105 S. Ct. at

3149. As the dissent recognized below,

Atascadero and this case are indistin-

guishable .22/ The decision of the

Court of Appeals therefore conflicts with

this Court's decision in Atascadero.

31/ Atascadero concerned § 504 of the

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

§ 794, rather than the EHA. The two

statutes are closely related, however,

and have a similar substantive content

with respect to the education of handi-

Capped children. Smith v. Robinson, 104

S.. Sea Be SST ae

wiih «

CONCLUSION

For the reasons set forth above, a

writ of certiorari should issue to re-

view the opinion and order of the United

States Court of Appeals for the First

Circuit.

Respectfully submitted,

FRANCIS X. BELLOTTI

ATTORNEY GENERAL

Carl Valvo*

Kim E. Murdock

Assistant Attorneys General

One Ashburton Place

Boston, MA 02108

(617) 727-1033

(Massachusetts Department

of Education)

James M. Cronin, Esq.

432 County Road, Box H-3102

New Bedford, MA 02740

(617) 996-8291

(Dartmouth School Committee)

*Counsel of Record

-52-