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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 475 U.S. 1140

## Text

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’

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

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-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1551%3A1. Public record. Not legal advice.