Opposition Brief — Massachusetts Department of Education v. David D.

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Supreme Court, U8,

FILED

APR 5& 1986

JOSEPH F. SPANIOL, JR,

CLERK

No. 85-1469 —/

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1985

MASSACHUSETTS DEPARTMENT OF EDUCATION

AND DARTMOUTH SCHOOL COMMITTEE,

Petitioners,

Vv.

DAVID D.,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

Richard F. Howard*

Stanley J. Eichner

Developmental Disabilities

Law Center

ll Beacon Street, Suite 925

Boston, Massachusetts 02108

(617) 723-8455

*Counsel of Record

QUESTIONS PRESENTED

1. Whether Congress in enacting the

Education for All Handicapped Children

Act (20 U.S.C. § 1400 et seg.) intended

to allow states to continue to supplement

the "basic floor" of educational opportu-

nity created by the federal act.

2. Whether in creating a "comprehen-

sive scheme" for enforcement of special

education rights Congress effectively

vested the federal courts with the

authority to enforce both the federal

and the supplemental state protections.

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

REASONS FOR DENYING THE WRIT

THERE IS NO CONFLICT BETWEEN THE

DECISION OF COURT BELOW AND

THE DECISIONS OF THIS COURT, THE

OTHER FEDERAL COURTS OF APPEAL,

OR THE MASSACHUSETTS SUPREME

JUDICIAL COURT.

THERE IS NO CONFLICT WITH

THE DECISIONS OF THIS COURT,

MUCH LESS THE TYPE OF DIRECT

CONFLICT WHICH WOULD WARRANT

REVIEW.

There is no conflict

between the decision

below and the decisions

of Seis cia rs t

interpreting the

Education of All

Handicapped Children

Act.

a. This Court has

interpreted the

EAHCA to retain an

important role for

the states in

protecting special

education rights

of disabled

children.

The language and

history of the

EAHCA support the

Ficst Citecuit’s

analysis of the

role of state

Special education

standards.

The structure and

comprehensiveness

of the statutory

scheme also

Support the First

Circuit's de-

cision.

The decision below

follows this Court's

decisions regarding

the Eleventh Amendment.

The decision below

correctly applies

Atascadero.

There is no split

in the Circuits on

the issue decided

below.

The decision below

follows Massachu-

setts court

decisions.

iii

II.

A GRANT OF THE PETITION IS NOT

JUSTIFIED BECAUSE THE DECISION

BELOW WILL HAVE LIMITED IMPACT.

The decision below only

affects a few states.

The decision below only

affects the limited number

of cases which are heard in

federal court and which

would have different results

depending on the choice of

law.

The decision below would not

have been decided dif-

ferently under the federal

Minimum standard.

TABLE OF AUTHORITIES

Cases Page

Atascadero State 27,29

Hospital v. Scanlon,

L035 &. Ct. 3442 (1985)

Burlington School Committee 12,3,20,38

v. Department of Education,

105 Ss. Ct. 1996 (1985)

Cothern v. Mallory, 46 ,50

565 F. Supp. 701

(W.D. Mo. 1983)

Crawford v. Pittman, 32

708 F.2d 1028 (5th Cir. 1983)

David D. v. Dartmouth passim

School Committee,

775 F.2d 411

(lst Cir. 1985)

David D. v. Dartmouth os43-52

School Committee,

615 F. Supp. 639

(D. Mass. 1984)

Department of Education 29 , 30

v. Katherine D., 727 F.2d 809

(9th Cir. 1983)

Edelman v. Jordan, 30 , 36

415 U.S. 651 (1974)

Everett v. Schramm, 16,40

772 F.2d 1114 (3rd Cir. 1985)

Geis v. Board of Education 3,15,19,26,39

of Parsippany-Troy Hills, 40 ,41,46,50

734 F.42@ Sra (306 Cie. 1965)

Hendrick Hudson District passim

Board of Education v. Rowley

458 U.S. 176 (1982)

Isgur v. School Committee 42

of Newton, 9 Mass. App. Ct.

290, 400 N.E.2d 1292 (1980)

Mills v. Board of Education 32

of District of Columbia,

348 F.Supp. 866 (D.D.C. 1982)

North Haven Board of Education 17

v. Bell, 456 U.S. 512 (1982)

Parks v. Pavkovic, 35

753 F.2d 1397 (7th Cir. 1985)

Pennhurst State Schaol and teatoae

Hospital v. Halderman,

104 S. Ct. 900 (1984)

Pennsylvania Association for 33

Retarded Citizens v.

Commonwealth, 334 F.Supp. 1257

(E.D. Pa. 1971)

Pennsylvania Association for 33

Retarded Citizens v.

Commonwealth, 343 F.Supp. 229

(E.D. Pa. 1972)

Scituate School Committee 46

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

(D.R.I. 1985)

Smith v. Robinson, KSetadedes tte

104 S. Ct. 3457 (1984) 33, 34,37

Stock v. Massachusetts Hospital 41

School, 392 Mass. 205, 467

N.E.2d 448 (1984)

Students of California School 3,29, 37

for the Blind v. Honig, 736 F.2d 38, 39

538 (9th Cir. 1984), vacated

105 S. Ct. 1820 (1985)

Town of Burlington v. 6,12,15

Department of Education, 20,25, 38

736 F.2d 773 (lst Cir. 1984), 42

aff'd on other grounds,

105 Ss. Ct. 1996 (1985)

Statutes

20 U.S.C. §1401(18) 18

20 U.S.C. §1412 34

20 U.S.C. §1413 34

20 U.S.C. §1412(6) 34

20 U.S.C. §1415(e) (2) 34,45,48

G.L. c. 15 §1M{19) 43

G.L. ¢. VIB §§2,3 43

Regulations

34 C.F.R. §300.600

Miscellaneous

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

lst Sess., reprinted in 1975

U.S. Code Cong and Admin. News 22,31

1446

vil.

S. Rep. 6, 41

Cong. News 1430

Supreme Court Rule 17

Stern and Grossman, Supreme

Court Practice, Sth ed.,

Bureau of National Affairs,

Washington, D.C., 1978

vill.

10,28,44

No. 85-1469

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1985

MASSACHUSETTS DEPARTMENT OF EDUCATION

AND DARTMOUTH SCHOOL COMMITTEE,

Petitioners,

DAVID D.,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

RESPONDENT'S BRIEF

IN OPPOSITION

Respondent David D. respectfully

requests that the petition “or a writ of

certiorari to review the decision of the

United States Court of Appeals for the

First Circuit be denied.

STATEMENT OF THE CASE

In this case the United States Court

Of Appeals for the First Circuit

addressed the question of whether

Congress in enacting the Education for

All Handicapped Children Act ("EAHCA"),

20 U.S.C. § 1400 et seg., intended to

allow states to continue to supplement

the "basic floor” of educational opportu-

nity created by the federal act, and

whether in creating a “comprehensive

scheme" for enforcement of special

education rights Congress effectively

vested the federal courts with the

authority to enforce both the federal and

the supplemental state protections.

The First Circuit as well as the

Courts of Appeal for the Third and Ninth

Circuits have all agreed that both

guestions should be answered in the

affirmative. David D. v. Dartmouth

School Committee, 775 F. 2d 411 (lst

Cir. 1985); Geis v. Board of Education

of Parsippany-Troy Hills, 774 F. 2d 575

(3rd Cir. 1985); Students of California

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

Cir. 1984), vacated as moot 105 S. Ct.

1820 (1985). Although not explicitly

addressed by either the Court of Appeals

Or the District Court, plaintiff has

argued throughout this case, and will

argue infra that the Individual Education

Plan ("IEP") offered by the local school

officials was so inadequate that it

failed to meet the federal "basic floor”

requirements, even without the supple-

mental state protections.

David D. is a nineteen-year-old,

mentally retarded young man who functions

at the kindergarten to first-grade

level. The issue at the administrative

hearing, when David was fifteen years

Old, was whether the program at the

public high school offered by the

Dartmouth School Committee met David's

considerable educational and

behavioral/emotional needs. App. 152.

The administrative hearing officer found

that David exhib:ted socially unaccept-

able sexual and aggressive behavior, and

that this behavior “could pose a real

deterrant” to his acceptance in a

vocational work program. App. 133, 143.

The hearing officer found that David's

IEP should be directed toward maximizing

his potential for community living, Dut

nonetheless finds the IEP to be adequate.

App., 145.

At trial in District Court plaintiff

presented additional expert witness as

well as neighbors, who testified regar-

ding the scope and severity of David's

behavioral problems and well as over-

whelming need for a consistent highly

Structured program to address those

problems. David D. v. Dartmouth School

Committee, 615 F. Supp. 639, 641-44 (D.

Mass. 1984). App. 69-80. The District

Court accepted the hearing officer's

conclusions on several subsidiary points,

but based on the agreement of the parties

On David's need for training in be-

havioral and social skills, and on the

substantial evidence that this training

could not be appropriately delivered at

the public high school program proposed

by Dartmouth, found that David could not

make “effective educational progress” in

that program. Id., 615 F. Supp. at

646-48, App. 92-101. Following the First

Circuit's decision in Town of Burlington

v. Department of Education 736 F. 2d 773

(lst Cir. 1984) affirmed on other

grounds, 105 Ss. Ct. 1996 (1985), the

District Court found that the higher

standard for educational opportunity

established by Massachusetts law is

incorporated into the EAHCA and held

that the proposed IEP did not meet that

Standard. Id., 615 F. Supp. at 647-8,

App. 101-103.

On appeal, despite its earlier

decision in the Burlington case, the

First Circuit reconsidered its analysis

of the role of state standards in the

EAHCA. After careful analysis of this

Court's recent decisions in Pennhurst

State School and Hospital v. Halderman,

104 S. Ct. 900 (1984) and Atascadero

State Hospital v. Scanlon, 105 S. Ct.

3142 (1985) as well this Court's major

decisions interpreting the EAHCA, the

Court of Appeais reaffirmed its view

that state standards were expressly

incorporated into the comprehensive

Statutory scheme established by the

EAHCA and that those standards were

enforceable in federal as well as state

court. David D. v. Dartmouth School

Committee, 775 F. 2d 411, 416-423 (lst

Cir. 1985), App. 20-5u.

Ninety days after a petition for

rehearing and suggestion for rehearing

en banc was denied, the Massachusetts

Attorney General filed a Petition for

Certiorari, apparently on behalf of both

the Massachusetts Department of Education

and the Dartmouth School Committee.

SUMMARY OF ARGUMENT

Certiorari is not warranted in this

case because the decision below is not

in conflict with decisions of this

Court, other federal courts of appeal,

or the Massachusetts Supreme Judicial

Court. In fact the First Circuit's

decision follows decisions of this Court

and the Massachusetts Supreme Judicial

Court, and is entirely consistent with

the decisions of the only two other

federal courts of appeal which have

addressed the issue of the role of state

law in the EAHCA.

Even if there were some inconsistency

among the circuits, this case would not

Warrant a grant of certiorari because of

its limited impact. The decision, even

if adopted by all circuits, would only

affect the handful of states which have

State statutes which establish a higher

Standard of educational opportunity than

the EAHCA. Even within those states,

the decision would affect the few

Situations where the case is in federal,

not state, court and the resolution of

the dispute turns upon whether the state

or federal legal standard is applied.

The case at bar is an example of one

which does not turn on the choice of

law, since the Individual Education Plan

proposed by the Dartmouth School

Committee did not meet either the

federal minimum or the state higher

standard.

REASONS FOR DENYING THE WRIT

I. THERE IS NO CONFLICT BETWEEN THE

DECISION OF COURT BELOW AND THE

DECISIONS OF THIS COURT, THE OTHER

FEDERAL COURTS OF APPEAL, OR THE

MASSACHUSETTS SUPREME JUDICIAL COURT.

TO warrant full consideration

by this Court on a petition for

certiorari, petitioner must show, at a

minimum, that there is a direct conflict

between the Court of Appeals decision

and decisions of this Court, the courts

of appeal of the other federal circuits

Or the highest appellate court of the

affected state. See U.S. Sup. Ct. Rule

17.1(a), Stern and Grossman, Supreme

Court Practice, Sth ed., 1978. 264-66

(hereinafter, "Stern and Grossman").

Petitioners can show no such

conflict because the First Circuit's

decision below follows earlier decisions

of this Court and the Supreme Judicial

Court of Massachusetts, and is entirely

consistent with decisions of the other

two federal courts of appeal which have

considered this issue.

A. THERE IS NO CONFLICT WITH THE

DECISIONS OF THIS COURT, MUCH

LESS THE TYPE OF DIRECT CONFLICT

WHICH WOULD WARRANT REVIEW.

ke There is no conflict between

the decision below and the

decisions of this court

interpreting the Education of

All Handicapped Children Act.

Petitioners have suggested in

their petition for certiorari (see, e.g.,

Petition at 24-5), that the First

Circuit's decision is in conflict with

this Court's holding in Hendrick Hudson

District Board of Education v. Rowley,

458 U.S. 176 (1982). As the following

analysis illustrates, the decision in

Dartmouth School Committee v. David D.,

Supra, is not only not in conflict with

this Court's analysis of the EAHCA in

Rowley, supra and other decisions, but in

fact is perfectly consistent with and

builds upon the principles established by

this Court in its analysis of the EAHCA.

a. This Court has interpreted the

EAHCA to retain an important

role for the states in protec-

ting special education rights

of disabled children.

Much of the First Circuit's analysis

of the EAHCA in its decision below was

based on its earlier extensive analysis

of the Act in Town of Burlington v.

Department of Education, 736 F. 2d 773

(lst Cir. 1984) ("Burlington II") which

was affirmed by this Court on the issue

of scope of a Court's equitable authority

under the Act in Burlington School

Committee v. Department of Education,

G. 8. » £05 6. Ce. 1996 (i969). In

both cases the First Circuit makes

extensive use of this Court's language

in Rowley. The analysis is further

Supported by later decisions of this

Court in Burlington, supra and Smith v.

Robinson, U.S. , £04 8. Ct. 3457

(1984). Thus the statutory definition of

"free and appropriate public education,"

§ 1401(18), was seen as a checklist for

adequacy under the Act, Rowley 458 U.S.

at 189, and it was that standard which

would constitute the federal “floor of

Opportunity” imposed by Congress upon

the states as a federal minimum standard.

This Court recognized that the

Statutory scheme is one which envisions

Significant and complementary roles for

the states in relationship to the federal

government. The states were viewed as

continuing to have “the primary responsi-

bility for formulating the education to

be accorded a handicapped child,” Rowley,

458 U.S. at 207. Thus, while Congress

did not intend for the Act to "displace

the primacy of States in the field'of

education," Rowley, 458 U.S. at 208, The

Statute did "impose significant require-

ments to be followed in the discharge of

that responsibility, Rowley, 458 U.S. at

183.

Although appreciating the significant

and complementary roles assigned to both

state and federal government, this Court

quite clearly limited its analysis tc

the issue of what was the proper federal

Standard. The related question of what

requirements may be imposed upon the

State as a result of its own statutory

requirements was not before the Court and

was certainly not addressed. As the

Court of Appeals for the First Circuit

correctly pointed out, “there is no indi-

cation in either the statutory language

Or the legislative history of the Act

that Congress intended to create a

substantive or procedural ceiling

regarding the rights of the disabled

child." David D. v. Dartmouth, 775 F.2d

at 416, citing Burlington II. See also

Geis v. Board of Education of Parsippany-

Troy Hills, 774 F. 2d 575, 581 (3rd Cir.

1985).

Similarly, there is nothing in

either the Rowley holding or the prin-

ciples ennunciated therein, which would

be at odds with a higher state sibstan-

tive standard. The appropriate resolu-

tion of federel and state interests and

roles is one in which Congress requires

that there be a federal minimum, or

floor of opportunity, below which a

state may not drop, but upon which

States are allowed, and even encouraged

to build or expand. See e.g., Everett

v. Schramm, 772 F. 2d 1114, 1119 (3rd

Cir. 1985) (AFDC statute gives states

freedom to raise level of benefits to

meet local conditions).

Historically the role of the states

in elementary and secondary education has

been a primary one, and often the

State's involvement in the education of

the handicapped was one which predated

that of the federal government. In view

of that history, and important principles

of federalism, Congress' requirement of a

federal minimum cannot be understood as

reducing any pre-existing state standards

to the lower federal level. Thus, in

States such as Massachusetts where the

substantive standard is higher than that

of the federal “floor of opportunity,"

there must be a means by which the

differing standards are resolved. As

Will be discussed in the next section,

Congress effectively avoided this

potential conflict by explicitly incorp-

Orating the state educational standards

into the Act through the definition of

"free appropriate public education."

b. The language and history of the

EAHCA support the First Cir-

cuit's analysis of the role of

State special education

Standards.

To address the question of whether

the federal Act incorporates state law,

the critical first step must be an

examination of the statute itself.

North Haven Board of Education v. Bell,

436 U.8. Sid, $2@ (1982). As the

decision below pointed out, the essential

right guaranteed by the Act, a “free

appropriate public education" is expli-

citly defined at the beginning of the

Act:

David D.,

The term “free appropriate

public education" means 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 educa-

tional agency, (C) include an

appropriate preschool, elemen-

tary, Or secondary school

education in the State involved,

and (D) are provided in con-

Formity with the individualized

education program required

under section 1415(a)(5) of

this title. 20 @©.8.C.

§ 1401(18) (emphasis added).

775 F.2d at 417.

Rowley, this Court explained the

requirements placed upon participating

states:

Almost as a checklist of

adequacy under the Act, the

definition also requires that

such instruction and services

be provided at public expense

and under public supervision,

meet the State's educational

standards, approximate the

grade levels used in the

State's regular education, and

comport with the child's IEP.

Thus, if personalized instruc-

tion 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 satisfied, the

child is receiving a “free

appropriate public education"

as defined by the Act.

Rowley, 458 U.S. at 188-189.

The most obvious "state standard"

that Congress intended to insert this

formula is the state's own standard of

educational opportunity. See Geis, 774

F. 2d at 581; David D., 775 F. 2d at

417. Adequacy of educational program-

ming, including adherence to state

Standards, may be challenged by parents

through an administrative hearing which

may be brought “with respect to any

Matter related to the identification,

evaluation, or education placement of

the child, or the provision of a free

appropriate public education." 20

U.S.C. § 1415(b)(2), David D., 775 F. 2d

at 418. Any party agrieved regarding

any issue may bring an action in either

State or federal court, which court has

broad discretion to grant appropriate

relief. 20 U.S.C.~ §1415(e)(2).

Sucliagten, i685 8. Ct. at 2003. The

plain meaning of the statutory language

clearly provides that state standards,

incorporated into the federal definition

of a “free appropriate public education"

are enforceable in federal court.

Additionally, the legislative

history of the Act further supports the

principle that the EAHCA incorporates

the state substantive law into the

federal Act.l Senator Williams, a

las the First Circuit noted in the

decision below, incorporation by ref-

erence is not unusual. See Burlington II

principal author of the Act, in explain-

ing the conference bill to the Senate,

Clarified that the due process protec-

tions had been strengthened:

Any parent or guardian may

present a complaint concerning

any matter regarding the

identification, evaluation, or

educational placement of the

child or the provision of a

free appropriate public educa-

tion to such child. In this

regard, Mr. President, I would

like to stress that the language

referring to “free appropriate

public education" has been

adopted to make clear that a

complaint may involve matters

such as questions respecting a

child's individualized education

at 785 n. 9; see also Herb's Welding Inc.

v. Gray, __—s«svu«.S. __ se, «105 SS. Ch. 1421,

1425, (1985) (citing Rodrigue v. Aetna

Casualty and Surety Co., 395 U.S. 352,

(1969); United States v. Yazell, 382 U.S.

341, 356-57, (1966); Textile Workers

Union v. Lincoln Mills, 353 U.S. 448,

457, (1957); DeSylvia v. Ballentine, 351

U.S. 570, 580 (1956) ("The scope of a

federal right is, of course, a federal

question, but that does not mean that its

content is not to be determined by state,

rather than federal law"). David D., 775

F.2d at 419, n. 6.

program, questions of whether

special education and related

services are being provided

without charge to the parents

Or guardians, guestions relating

to whether the services provided

a child meet the standards of

the State educational agency,

Or any other question within

the scope of the definition of

"free appropriate public

education." 121 Cong. Rec.

37415 (Nov. 19, 1975) (emphasis

added. )

Thus, as noted by the First Circuit,

its holding that the Act incorporates

Substantive state special education law

into the federal right to a free and

appropriate public education is squarely

based upon both the Act itself as well

as upon authoritative legislative

history.

C. The structure and comprehensive-

ness of the statutory scheme

also support the First Circuit's

decision.

Further support for the correctness

of incorporating state substantive

Standards into the Act is demonstrated by

the fact that to interpret the Act

otherwise would create substantial

inconsistency and sonfusion and would

Subject handicapped children and educa-

tional officials to inconsistent stan-

dards for the receipt and provision

of special education entitlements within

a state.

This Court has described the Act's

enforcement procedures as a “compre-

hensive scheme" and a “carefully tailored

administrative and judicial mechanism,"

to assure provision of appropriate

educational services are provided. Smith

v. Robinson, 0.8. , 466 8. Ce. at

3468, 3470, n. 17. That process “begins

on the local level and includes ongoing

parental involvement, detailed procedural

safeguards, and a right to judicial

review," Id. The form of judicial

review provided by the Act is concurrent

jurisdiction for enforcement of its

provisions in both state and federal

court, § 1412(e)(2); Rowley, 458 U.S. at

183.

Given the fact that some states have

imposed upon themselves substantive

Standards which exceed the federal

"floor of opportunity," without the

incorporation of those standards into

the Act, inconsistent standards would

exist within those states. Inconsistent

standards would turn the intended

"comprehensive scheme" into a confusing

and unpredictable maze. Without knowing

what court would ultimately hear an

appeal, parents and education officials

would have no idea at the IEP stage

which set of standards should be applied.

Similarly, a state hearing officer would

not know whether to apply the federal

"basic floor" or the supplemental state

Standards in resolving an administrative

appeal. Perhaps most importantly, the

jockeying for judicial forum by the

parties and the attempts by education

officials to remove to federal court

cases filed in state court, in order to

benefit from less rigorous standards,

would create a confusing and unproductive

type of litigation which flies in the

face of the clear Congressional policy

of prompt resolution of these disputes.

See Burlington II, 736 F. 2d at 797.

Indeed, the construction proposed by

petitioner's would effectively insulate

from court review erroneous decisions by

hearing officers based on state law, if

the case is brought in federal court.

David D., 775 F. 2d at 420; Geis, 774 F.

2d at 581. Certainly, it is unlikely

that Congress by granting state and

federal court concurrent jurisdiction,

intended to have the standard of educa-

tional opportunity depend upon the

choice of forum. Geis, Supra.

It is equally unlikely that Congress

intended to create “the carefully

tailored administrative judicial

mechanism," and then imbue it with such

inconsistency and uncertainty. What does

makes sense, from both a substantive

and practical standpoint, is that

Congress incorporated the state standards

into the Act, so as to allow those

requirements to be enforceable as an

integrated and unified standard in both

federal and state court. Geis; supra.

David D., supra.

2. The decision below follows this

Court's decisions regarding the

Eleventh Amendment.

Petitioners assert that the

First Circuit's “approach and treatment"

of the Eleventh Amendment issues were

"insensitive" to this Court's decisions

in Pennhurst State School and Hospital

v. Halderman U.S. » 4606 SB. Ce.

900 (1984) ("Pennhurst II") and

Atascadero State Hospital v. Scanlon,

U.S. e 105 S. Ct. 3142 (1985)

("Atascadero"). See Petition, 44-45.

In other words, petitioners disagree

with the First Circuit's application of

the principies of Pennhurst II and

Atascadero to the EAHCA and the facts of

this case. They do not allege nor can

they show the kind of direct conflict

required to warrant review by this Court

on a petition for certiorari. U.S. Sup.

Ct. Rule, 17(1) Stern and Grossman,

264-5. In fact, the First Circuit

carefully and faithfully applied the

analysis of those two decisions and found

no Eleventh Amendment bar to the use of

incorporated state law in the comprehen-

Sive statutory scheme designed by

Congress to protect the Equal Protection

rights of disabled chiidren. David D.,

775 F. 2d at 421-3.

a. The decision below correctly

applies Atascadero.

In Atascadero this Court held that

Section 504 of the Rehabilitation Act

had not effectively abrogated the

States‘ Eleventh Amendment immunity from

Suit in federal court where litigants

seek money damanges. Id. 105 S. Ct. at

3144, 3150. The Court rejected arguments

that the state had waived its immunity

on the basis of state law, Id. at 3147,

that Congress had abrogated the state's

immunity by enacting the Rehabilitation

Act. Id. at 3149, and that by accepting

federal funds under the Rehabilitation

Act, the state had consented to be sued.

Id. at 3150.

In its decision below the First

Circuit found it necessary to address

only the second issue in Atascadero,

finding that by enacting the comprehen-

Sive statutory scheme in the EAHCA,

Congress did effectively abrogate the

Eleventh Amendment immunity of the

States. David D., 775 F. 2d at 421.2

2While the First Circuit did not

find it necessary to detemine whether

the participation by a state in the

EAHCA constitutes a waiver of Eleventh

Amendment immunity, the Ninth Circuit

has examined the issue and found waiver.

Students of California School for the

Blind v. Honig 736 F. 2d 538, 543-4 (9th

Cir. 1984) vacated as moot, 105 S. Ct.

1820 (1985); Department of Education v.

Katherine D., 727 F. 2d 809, 818-19 (9th

In Atascadero, this Court found that

Congress must express its intention to

exercise its authority to protect

Fourteenth Amendment rights “in unmistak-

able language in the statute itself.”

Atascadero, 105 S. Ct. at 3148. Unlike

Cir. 1983). The Ninth Circuit used the

standard required by this Court in

Edelman v. Jordan, 4i5 U.S. 651 (1974)

that waiver of Eleventh Amendment

immunity must be by “express language”

Or such overwhelming implications from

the text as will leave no room for any

other reasonable construction.

Katherine D., 727 F. 2d at 819, citing

Edelman, 415 U.S. at 673. The Court of

Appeals found that these criteria were

Satisfied with the EAHCA where Congress

authorized suits against a class of

defendants including states and the

States voluntarily entered into an

activity highiy regulated by federal

law. Katherine D., 727 F. 2d at 819.

In fact, with the EAHCA, Congress made

the states the key actor in a comprehen-

sive and relatively complex scheme, See

Smith v. Robinson, 104 S. Ct. 3457

(1984), making the state a key party (as

defendant or plaintiff) in almost any

litigation brought to enforce the

provisions of the Act. See discussion,

Supra.

the Rehabilitation Act, which evokes the

Fourteenth Amendment Equal Protection

concerns only in the legislative history

La, i095 6. Ct. at 36 , the EAHCA

expressly states in its preamble that it

is enacted "to assure the equal pro-

tection of the law" for handicapped

children. Pub. Law 94-142 codified at

20 U.S.C. §1400(b)(9).3 See David D.,

778 &. 24. at 421.

In fact, as the First Circuit noted

in David D., 775 F. 2d at 421-2, this

Court has already held that in enacting

3This express statutory language is

reinforced by clear and repeated declara-

tions in the Act's legislative history,

e.g., Sen. Rep. 94-168, 22, 94th Cong.,

lst Sess., reprinted in 1975 Cong. and

Admin. News 1446 ("The Committee recog-

nizes the state's primary responsibility

to uphold the Constitution of the United

States ... as well as Congress' own

responsibility under the 14th Amendment

to assure equal protection of the law.")

See also S. Rep. 6, 41; Cong. News 1430,

1464.

the EAHCA Congress was exercising its

Fourteenth Amendment authority to

protect the Equal Protection rights of

disabled children. Smith v. Robinson,

104 S. Ct. 3457 (1984). Accord, Crawford

v. Pittman, 708 F. 2d 1028 (5th Cir.

1983). In Smith, the issue was whether

a prevailing plaintiff in an EAHCA suit

was entitled to attorney's fees under 42

U.S.C. § 1988 if he also had a sub-

Stantial $1983 claim, Id. at 34. This

Court found that the impetus behind the

legislation was two court cases estab-

lishing that failure to provide appro-

priate educational services was a

constitutional violation. See Smith 104

S. Ct. at 3468 referring to H.R. Rep.

No. 94-332 at 3-4, citing Mills v.

Board of Education of District of

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

and Pennsylvania Assn. for Retarded

Citizens v. Commonwealth, 334 F. Supp.

1257 (E.D. Pa. 1971) and 343 F. Supp.

229. (8.0. Ba. 2972).4 Finding that

Congress enacted an especially comprehen-

Sive scheme of the Act to protect Equal

Protection rights, the Court reasoned

that Congress intended for this enforce-

ment scheme to be exclusive and therefore

that a special education plaintiff could

not generally use other procedural

avenues available to protect those

rights such as 42 U.S.C. § 1983 with its

associated attorney's fees remedy, 42

U.S.C. § 1988. Smith 104 S. Ct. at 3469.

Finally, the First Circuit recognized

that the entire structure of the Act

4This Court also noted the Equal

Protection underpinings of the EAHCA in

its Rowley decision. 458 U.S. at 180

oe ee

makes clear the Congressional intention

that the states be principal parties to

Suits enforcing the Act, including suits

in federal court. Davia D., t73 ©. 46

at Gaia. Unlike, Section 504 of the

Rehabilitation Act, which is directed

broadly to “any recipient" of federal

Financial assistance, the EAHCA is

directed toward only states and local

education agencies. See 20 U.S.C.

§ 1412, 1413. Indeed, the states are

the principal actors and the State

Education Agencies are responsible for

assuring compliance by all other public

agencies, 20 U.S.C. § 1412(6), 34 C.F.R.

§ 300.600, and for holding hearings

regarding complaints on “any matter"

related to a child's special education.

20 U.S.C. § 1415(e)(2). See Smith,

164 8. CO. OBO 3437. Appeals of the

hearings may be taken to either state or

federal court. 20 U.S.C. § 1415(e)(2).

Clearly, since states' education agencies

are the enforcer of the guarantees, the

administrative hearing agency, and

sometimes the provider of special

education services, Congress intended

for states to be amenable to suit in

federal court, one of the forums ex-

pressly provided for a complainant. See

David D., 775 F. 2d at 422. Accord,

Parks v. Pavkovic, 753 F. 2d 1397 (7th

Cir. 1985).

Carefully considering this Court's

admonitions in Atascadero, as well as

its decisions in Smith and Rowley, the

First Circuit analyzed the EAHCA and

correctly found a Congressional intention

to exercise its Fourteenth Amendment

Section Five authority to protect the

EqQual Protection rights of disabled

children.5

The First Circuit also analyzed this

Court's decision in Pennhurst II, finding

Eleventh Amendment protection for states

against federal court enforcement of

pendant state law claims against the

states themselves. David D., 774 F.

2d at 422; Pennhurst II, 104 S. Ct. at

905. The First Circuit noted that

Pennhurst II dealt with entirely separate

State law claims which plaintiff had

included as pendant claims in their

federal law suit. Id. The Court found

SAlthough the First Circuit did not

address the distinction, it should be

made clear that this and most special

education cases deal only with prospec-

tive relief for an individual child, not

monetary damages or substantial relief

against an entire institution, of a type

that have peen especially susceptible to

Eleventh Amendment protection. See

e.g., Edelmanv. Jordan, 415U.S. 651 (1974).

that there is a critical distinction in

that the EAHCA incorporates state law by

reference, See discussion, supra, and

noted that this Court had implictly

confirmed this approach in Smith v.

Robinson, 104 S. Ct. at 3464 n.6.

Moreover, the other two circuits which

have expressly addressed the issue,

agreed that state law incorporated into

the EAHCA is not subject to the stric-

tures of Pennhurst II. Geis, 774 F. 2d

at 581; Honig, 736 F. 2d at 543. See

discussion, infra.

Far for being in direct conflict

with decisions of this Court, the

decision below carefully and faithfully

followed and applied the decisions of

this Court and reached a result consis-

tent with those decisions.

db. There is no split in the

Circuits on the issue decided

below.

Notably absent from the petitioners’

arguments in favor of a grant of

certiorari, is one that there is split

among the circuits on the issue pre-

sented. That is because the three

circuits that have addressed the issue

of the use of state law in EAHCA cases

have all agreed, with remarkably similar

reasoning. David D., Geis, Honig.

At about the same time the First

Circuit was doing its first analysis of

the incorporation of state law into the

EAHCA in Town of Burlington v. Department

of Education, 736 F. 2d 773 (lst Cir.

1984) affirmed 105 S. Ct. 1996 (1985),

the Ninth Circuit was doing similar

analysis in Students of California

School for the Blind v. Honig, 736 F. 2d

338 (9th Cir. 1984), vacated as moot 105

S. Ct. 1820 (1985). In Honig the

considered the Pennhurst II decision and

like the First Circuit found that

Pennhurst II does not apply when state

law 1s incorporated into the federal

Statutory scheme. Id. 736 F. 2d at 543.

It also found that Congress "expressly"

and “unambiguously" incorporated the

Standards® of the state education agency

into the federal statute, enforceable by

a federal court. Id. at 545.

In Geis the Court of Appeals for the

Third Circuit also analyzed Pennhurst II

and found it inapplicable to state law

incorporated into the EAHCA, Id. 774 F.

2d at 581. The Third Circuit had the

benefit of an earlier decision, Everett

6In Honig, the state standards were

safety standards, limiting sites suitable

for educational facilities. Id. at 541.

v. Schramm, 772 F. 2d 1114 (3rd 1985)

where it also found incorporation by

reference of state benefit standards

into the federal Aid for Families with

Dependent Children statute. Id. 772 F.

2d at 1119. In Geis the Third Circuit

evaluated the EAHCA statutory scheme and,

like the First Circuit below, David D.,

775 F. 2d at 419, found it "unlikely"

that in granting both state and federal

courts concurrent jurisdiction to enforce

the Act, that Congress intented that "the

Standard of educational opportunity to

be applied would depend on the forum."

Geis, 774 F. 2d at 581. Comparing its

case to Honig, the Third Circuit found

that incorporation by reference even

more clearly applies to the state's own

standards for educational opportunity

than it does to the sort of school safety

issues addressed in Honig, Id. The Court

then affirms the District Court decision

which held that although the proposed IEP

met the minimum federal standards, it

failed to meet with New Jersey “best

achieve success” standard for the

Plaintiff. Id. 581-84.

Those Courts of Appeal which have

considered the issue all agree with the

Gecision below. There is no split in

the Circuits which would justify further

review by this Court.

Ce The decision below follows

Massachusetts court decisions.

As the decision below noted, the

district court's use of the “maximum

possible development" standard comes

from a recent decision of the Massachu-

setts Supreme Judicial Court. David D.,

775 F. 2d at 423 citing Stock v. Massa-

chusetts Hospital School, 392 Mass. 205,

21L. 47 NE. 2d 448, 453 (1984). (The

law of this Commonwealth “mandates that

the department administer special

education programs so as to assure

maximum possible development of a child

with special needs.")? The District

Court, 615 F. Supp. at 645, App. 88-90

and the First Circuit in its earlier

Burlington decision, 736 F. 2d at 789,

also referred to an earlier decision of

the state's intermediate appellate court,

Isgur v. School Committee of Newton, 9

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

(1980) (State law requires special

education services to provide maximum

7As the petitioner's note, they do

not attempt to have this Court construe

State law, Petition, 24 n. 10. However,

petitioners continue to suggest that the

First Circuit misunderstood state law.

As this discussion shows, the Court

below simply applies Massachusetts state

court decisions.

feasible benefit in the least restrictive

environment. ) Furthermore, the District

Court reinforced its review of state

court decisions by a comprehensive survey

of the state special education statute

itself, where variations on “maximum

feasible benefit" or “maximum potential

development" are used no less than five

times. David D., 615 F. Supp. at 644-5.

See G.L. c. 71B § 2, 33 c. 15 § 1M(19).

The courts below used decisions of

the Massachusetts appellate courts,

reinforced by the clear language of the

State statute, to determine applicable

State law. There is no conflict which

would warrant a grant of certiorari by

this Court.

II. A GRANT OF THE PETITION IS NOT

JUSTIFIED BECAUSE THE DECISION BELOW

WILL HAVE LIMITED IMPACT.

Because of the enormous number

of litigants seeking review by this

Court, a principal consideration in

whether or not to grant discretionary

review is the magnitude of the impact of

the case on other litigants. See Stern

and Grossman, 284-5. The decision below

does not have the level of impact

necessary to warrant discretionary review

because (1) few states have a higher

Standard of educational opportunity, (2)

incorporation of the higher state

standard in those few states only affects

the limited number of cases which end up

in federal court and which would have

different results under the state rather

than federal standard, and (3) this case

would not have been decided differently

under the basic federal standard.

A. The decision below only affects

a few states.

Incorporation by reference of state

educational opportunity standards

arguably has no effect on the states

because the only result is that the same

law is used in state and federal court

for resolution of special education

appeals brought pursuant to 20 U.S.C.

§ 1415(e)(2). However, even assuming

defendants' claim that use of state law

in federal court does affect the states,

this effect will be quite limited, in

part because of the few states which have

a higher standard under state law.8

Counsel has discovered only ten states

8o0f course, the First Circuit's

decision is authoritative precedent only

in the First Circuit where only Massachu-

setts has a higher standard.

which seem to have higher educational

Opportunity standards under re state

Statutes.9 Of these, only New Jersey's

has been used by a federal court to

apply a higher standard of educational

Opportunity. Geis, supra.10 These state

9counsel has been able to identify

only six other states which may establish

a standard for educational opportunity

higher than the federal forum. Arkansas

(Ark. Stat. Ann. §80-2117), Iowa (Ia.

Code Ann §281.2), New Jersey (N.J. Stat.

Ann. §18A:46-19.1), Rhode Island (R.I.

G.L. §16-24-1), Tennessee (Tenn. Code

Ann. §49-2912). As we note below, the

Rhode Island statute has been interpreted

to require no more than the federal

minimum.

10petitioners imply that the Rhode

Island statute was used to impose a

greater obligation in Scituate Scnool

Committee v. Robert B., 620 F. Supp.

i224 (DBD. RE. 1963}. See Petition, 22

n.9. In fact, that Court explicitly

found that “Rhode Island does not impose

a higher standard than the federal

minimum," Id. at 1233 (emphasis

supplied). In Cothern v. Mallory, 565

F. Supp. 701 (W.D. Mo. 1983), the Court

did not have to apply the arguably

higher state standard, because it found

the IEP did not even meet federal

Statutes vary in how different they are

from the federal minimum, and all are

subject to revision by state legislatures

Or limiting construction by state

appellate courts. See David D., 775 F.

2d at 423 n.8 (State legislature or

highest appellate court are free to

revise applicable state law.) The

decision below therefore only has an

effect on the few states which have now, .

and in the future continue to have, state

Standards which require more than the

federal minimum set out in the EAHCA.

B. The decision below only affects

the limited number of cases

which are heard in federal

court and which would have

different results depending on

the choice of law.

Even in the states with an arguably

higher standard, incornroration of that

minimum requirements. Id. at 708.

Standard into the federal Act will only

affect th2 limited number of cases which

both are in federal court and have

results which rely upon the higher state

Standard. Since, the federal Act

provides alternative forums, 20 U.S.C.

§ 1415(e)(2) many appeals of special

education administrative decisions are

brought in state court.ll Incorporation

of the state standard into the federal

Act would be irrelevant in these cases

Since the state courts will obviously

apply their own state law directly,

without regard to whether it is also

lltt is counsel's experience that

because many attorneys feel more comfort-

able with state court practice and even

more wish to avoid the complex federal

Jurisdictional issues, such as those

raised in this case, most attorneys for

parents or school officials would prefer

to file in state court, all other

considerations being equal.

included in the federal law. See, @.g.,

Isgur, supra.

Of the few cases that still end up

in federal court, a substantial pro-

portion will be ones in which either the

IEP proposed by school officials was so

inadequate that it does not even meet

the federal minimum requirements, or the

Proposed IEP is of such clear merit that

it meets both state and federal

Standards. In the first instance the

Parents would win, under either federal

Or state incorporated standard. In the

second instance, the school would win,

whichever standard was applied. The

decision of the First Circuit below has

an impact only on those few cases in

between, where the court's decision

depends upon whether it uses the federal

minimum standard or the somewhat higher

State standard. Apparently, Geis is an

example of a case in which the result

depended upon the distinction. Geis,

774 =F. 24 at $81. In Cothern, the

distinction did not affect the result,

Since the Court found the IEP met both

State and federal standards. 565 F.

Supp. at 708. Indeed, while not explicit

in the decisions below, the result of the

case at bar would not have changed under

an application of federal minimum

requirements. See discussion infra.

Ca The decision below would not

have been decided differently

under the federal minimum

Standard.

Petitioners erroneously imply that

the decision below found that the

special education services provided by

the local school committee met the

minimum federal requirements established

by the EAHCA. See Petition 7-8. In

fact, there is no such finding, and an

examination of the record and the

decisions below show that the proposed

IEP would have been found inadequate even

without use of the higher state standard.

Before even addressing the District

Court's use of the state law standard,

the Court of Appeals found that the

“overwhelming” evidence showed that a

change in David's IEP was warranted.

David D., 775 F. 2d at 423. The Court

reviewed with approval the District

Court's findings that while David may be

making progress in some areas, his

serious problems in the behavioral area

continued unabated and in fact had

worsened over the preceding two years.

Id. Only then does the Court of Appeals

turn to and approve the use of the

higher state standard by the District

Court. Id.

Like the First Circuit, the District

makes no explicit finding of whether

Dartmouth's proposed IEP meets the

federal minimum standard,1l2 but the

analysis makes it clear that the IEP

would not have passed muster even under

the less demanding measure. For example,

after accepting the state neories

officer's findings on some preliminary

issues, the District Court rejects the

administrative findings “that plaintiff

was achieving effective educational

progress," holding instead that the

l2presumably both courts considered

it unnecessary to make explicit findings

regarding the application of the federal

minimum requirements, since application

of the state standard allowed plaintiff

the relief be sought. Addressing the

other issue was therefore unnecessary,

and courts generally avoid questions not

required to resolve a case.

proposed IEP did not provide for the

type of consistency required to teach

David fundamental social skills.

David D., 615 F. Supp. at 646-7. Nowhere

does the District Court suggest that the

proposed IEP, while falling short of the

higher state standard, might have been

sufficient to meet the federal minimum.

Because of the overwhelming weight

of the evidence recognized by both the

District Court and the Court of Appeals,

the results below would have been nc

different even if the courts had not

incorporated and applied the higher

State standard. Therefore reversal of

the First Circuit by this Court on the

issue of incorporation by reference

would not effect the ultimate result.

Under these circumstances, discretionary

review by this Court is not warranted.

CONCLUSION

For the foregoing reasons the

Petition for Certiorari should be denied.

Respectfully submitted,

RESPONDENT, DAVID D.

By his attorneys

Developmental Disabilities

Law Center, Inc.

ll Beacon Street, Suite 925

Boston, Massachusetts 02108

(617) 723-8455

Counsel of Record

Dated: April 2, 1986

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.