MEMORANDUM AND ORDER
This action is brought pursuant to the Education for allHandicapped Children Act of 1975, 20 U.S.C. § 1401 et seq.("EAHCA"), and its implementing regulations; § 504 of theRehabilitation Act of 1973, 29 U.S.C. § 794, the due processclause of the Fourteenth Amendment to the United StatesConstitution and the Illinois Handicapped Children's Act,Ill.Rev.Stat., ch. 122, § 14-1.01, et seq. Plaintiffs, John A.,a minor, and his mother, Valerie, seek declaratory andinjunctive relief against defendant, Donald Gill, IllinoisSuperintendent of Education. Plaintiffs claim that John has notreceived a free appropriate public education to which he isentitled because of delays by defendant in resolving the statelevel administrative appeal regarding the appropriate placementfor him. Plaintiffs, on behalf of themselves and a purportedclass of all handicapped children not receiving a free,appropriate education by reason of these delays, request adeclaratory judgment that defendant's conduct violates theirrights under the aforementioned statutes and constitutionalprovision. Plaintiffs also request that defendant be enjoinedto issue decisions promptly on any appeals pending for morethan thirty days since the filing of this complaint and toissue all future decisions on appeals within thirty days fromthe date the defendant receives a request for review.
Defendant seeks dismissal of this action on the following fivegrounds: that the EAHCA creates no substantive rights to a freeappropriate public education, that the EAHCA creates noprocedural rights to a final state agency decision within thirtydays, that § 504 of the Rehabilitation Act creates no substantiverights to a free appropriate public education, that due processdoes not impose such strict time limits on the state in renderingfinal decisions on the appropriateness of a handicapped child'splacement, and that plaintiffs' state law claim must bedismissed, for lack of pendent jurisdiction, in the absence ofany cognizable federal claim.
For the reasons stated herein, defendant's motion to dismiss isdenied.
Plaintiff, John A., was, on the filing of this complaint, atwelve-year old child diagnosed as having severe emotional andbehavioral disorders. In the fall of 1980, Lyons ElementarySchool District # 103, the school district responsible for John'sspecial education, advised his mother that it wanted to place himin a self-contained classroom for behavior-disordered students.John's mother objected to the proposed placement because she hadbeen advised by experts who had examined John that theappropriate placement for him would be in a highly structuredresidential program.
Pursuant to the EAHCA, 20 U.S.C. § 1415(b)(1)(E), and theIllinois Handicapped Children Act, Ill.Rev.Stat., ch. 122, §14-8.02, John's mother requested an administrative hearing todetermine the appropriate placement for John. A hearingwas held, and on November 20, 1980, the hearing officerdetermined that the school district's proposed placement was notappropriate to John's needs. The officer ruled that a "highlystructured residential facility with intense support systems" wasthe appropriate placement for John. (Compl., Ex. A.)
On December 5, 1980, the Lyons School District requested areview of the hearing officer's determination pursuant to theprocedural provisions of the EAHCA and the Illinois statute, andurged that the appeal "progress with all possible speed."(Compl., Ex. B.) Defendant acknowledged receipt of the appealletter and requested a transcript of the hearing and John'srecords. By January 20, 1981, defendant had received all of therelevant documents, but as of May 1, 1981, the date plaintiffs'complaint was filed, defendant had not yet rendered a decisionon the appeal nor had he informed the parties as to thedisposition of the appeal.
According to plaintiffs, as a result of the delay in theappeal, John had not been placed in the appropriate educationalsetting. Plaintiffs further allege that John's behavior andemotional problems had deteriorated to the extent that he wasadmitted to the Madden Mental Health Center in March of 1981.Plaintiffs' claim that the hospital is an inappropriate placementand has had an injurious effect upon John.
PRELIMINARY JURISDICTIONAL QUESTIONS
Before reaching the merits of defendant's motion to dismiss, athreshold question of jurisdiction must be addressed.2 UnderArticle III of the United States Constitution the judicial powerof the courts extends only to cases or controversies between theparties in an action. Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553,42 L.Ed.2d 532 (1975). When a case or controversy ceases to existbetween the parties the dispute becomes moot, and a court, as ageneral rule, may not entertain the action.
In Sosna, the Supreme Court established two exceptions to themootness doctrine. First, if the plaintiff sues on behalf of aclass and the suit is properly certified as a class action, theclass acquires a legal status separate from that of the namedplaintiff. 419 U.S. at 399, 95 S.Ct. at 557. Thus, although thenamed plaintiff's claim has been resolved, a class action willnot be dismissed if the controversy remains live as to themembers of the class he was certified to represent. Id. at 402,95 S.Ct. at 558-59. Second, where a claim is by nature time-boundin the sense that it will inevitably become moot before it can beresolved through normal judicial processes,3 dismissal formootness can be avoided under the "capable of repetition yetevading review" exception. Id. at 400-01, 95 S.Ct. at 558.
In the present case the controversy between the namedplaintiffs and defendant has been resolved. As stated in a June19, 1981 letter from plaintiffs' attorney to the courtwithdrawing their motion for a preliminary injunction, "It hasbecome unnecessary to pursue this motion as defendant hasprovided the relief requested therein." Since plaintiffs' claimsare thus moot, the court must consider whether they fit intoeither of the aforementioned exceptions.
This case does not fall within the class action exceptionbecause no class has been certified. See Indianapolis SchoolCommissioners v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d74 (1975) (purported class action dismissed where claims of namedplaintiffs were moot and plaintiffs failed to comply withrequirements of Fed.R.Civ.P. 23(c)). But see Susman v. LincolnAmerican Corp., 587 F.2d 866 (7th Cir. 1978), cert. denied,445 U.S. 942, 100 S.Ct. 1337, 63 L.Ed.2d 775 (1980), (suggesting thatunilateral action by defendants mooting named plaintiffs' claimsprior to class certification does not require dismissal ofaction). However, the "capable of repetition yet evading review"exception does apply to the named plaintiff.4 John was twelveyears old in 1981 when this complaint was filed. He is thereforepresently fourteen years old with approximately three to fouryears remaining in the state educational system. There is noindication that the state has changed its policies regardingdecisions on appeals challenging educational placements. Underthese circumstances, where the challenged procedures are stilloperative, plaintiff's status as a handicapped student makes itlikely that those procedures may be utilized in the future, andthe time limits inherent in his claims raise doubts as to theavailability of judicial mechanisms to resolve the controversy,the court will retain jurisdiction over this technically mootdispute. See Sherry v. New York State Ed. Dept., 479 F. Supp. 1328,1334-35 (W.D.N.Y. 1979)
THE EAHCA CLAIMS
The EAHCA offers states federal financial assistance inproviding educational services for handicapped children. In orderto be eligible for such funding recipient states must, interalia, develop a plan to assure that "a free appropriate publiceducation will be available for all handicapped children,"20 U.S.C. § 1412(2)(B), and "establish and maintain procedures inaccordance with [the requirements of the EAHCA] . . . to assurethat handicapped children and their parents . . . are guaranteedprocedural safeguards with respect to the provision of freeappropriate public education. . . ." 20 U.S.C. § 1415(a); see20 U.S.C. § 1412(5)(A). The EAHCA's procedural requirements are set forthin § 615 of the Act, 20 U.S.C. § 1415. Recipient states mustprovide "an opportunity to present complaints with respect to anymatter relating to the identification, evaluation or educationalplacement of the child, or the provision of a free appropriateeducation to such child." 20 U.S.C. § 1415(b)(1)(E). Wheneversuch a complaint is received the local educational agencyinvolved must conduct an impartial due process hearing.20 U.S.C. § 1415(b)(2). Any party to this hearing may appeal a decision tothe proper state education agency which, in turn, must conduct animpartial review of the local agency's decision. 20 U.S.C. § 1415(c).If any of the parties is dissatisfied with the finaldecision by the state education agency, judicial review may beobtained. During the pendency of these proceedings thehandicapped child is to remain in his then current educationalplacement unless the parties agree otherwise.20 U.S.C. § 1415(b)(3).
The EAHCA imposes certain duties on the federal Commissionerof Education. Under § 617 of the Act, 20 U.S.C. § 1417(b), "Incarrying out the provisions of this subchapter, theCommissioner . . . shall issue . . . amend, and revoke, suchrules and regulations as may be necessary." Pursuant to thatduty, the Commissioner issued regulations requiring that
The state educational agency shall insure that not later than 30 days after receipt of a request for review:
(1) a final decision is reached in the review; and
(2) a copy of the decision is mailed to each of the parties.
34 C.F.R. § 300.512.
The State of Illinois, a recipient of federal funds under theEAHCA, has provided for the required administrative review in astatute which essentially tracks the language of § 1415 and theregulation. Ill. Rev.Stat. ch. 122, § 14-8.02 (1981). Inparticular, the statute requires that "(i) No later than 30days after perfection of the appeal by receipt of the record onappeal, a final decision shall be reached and a copy mailed toeach of the parties."5
Plaintiffs' basic claim under the EAHCA is that John was denieda free appropriate education by virtue of the state's failure tosatisfy its obligation to render a final decision on hiscomplaint within thirty days. Defendant contends that the EAHCAcreates no substantive right to a free appropriate education andno procedural guarantee that appeals regarding educationplacements will be processed expeditiously, much less withinthirty days. Although plaintiffs' EAHCA claim is essentiallyprocedural in nature, this court considers and rejects both ofdefendant's arguments.6
Defendant relies on three recent cases to support hiscontention that the EAHCA does not grant substantive rights tohandicapped children. In McCowan v. Hahn, No. 78 C 4234 (N.D.Ill.July 27, 1981), Judge Getzendanner concluded, based on thelanguage and legislative history of the EAHCA, that the Actcreates only procedural rights to protect already existingstate-created substantive rights to an education, and that theplaintiff therefore could not challenge the merits of hiseducational placement in federal court. This court, however,finds the analysis in Parks v. Pavkovic, 536 F. Supp. 296(N.D.Ill. 1982) and William S. v. Gill, 536 F. Supp. 505 (N.D.Ill.1982), more persuasive. In both Parks and William S., theplaintiffs challenged the state's refusal to pay certaineducational expenses, claiming violation of their right to a freeappropriate education under the EAHCA. Defendants contended that,since the EAHCA creates no substantive rights, plaintiffs had noprivate right of action to question the merits of stateadministrative decisions.
Judge Marshall, in Parks, found that the EAHCA explicitlycreates judicially enforceable rights to a free appropriateeducation. The court based its finding on the language of theEAHCA, which provides handicapped children and their parents with"an opportunity to present complaints with respect to any matterrelating to the identification, evaluation, or educationalplacement of the child, or the provision of a free appropriatepublic education." 20 U.S.C. § 1415(b)(1)(E). According to JudgeMarshall, "[s]ince the statute is phrased in the alternative, itis clear that the complaint can be addressed solely to thealleged failure to provide a free appropriate public education."536 F. Supp. at 301.
Judge Marshall also relied on the Seventh Circuit's decision inAnderson v. Thompson, 658 F.2d 1205 (7th Cir. 1981). In Anderson,the court, though dealing primarily with another issue — whethera damage remedy was available under the EAHCA — gave someguidance as to the contours of rights created by the Act. It readthe "all appropriate relief" language of § 615(e)(2),20 U.S.C. § 1415(e)(2), as granting district courts the power to hearquestions of educational placement on the merits and to exercise"wide latitude to fashion an individualized educational programfor the child." Id. at 1211.
In William S. v. Gill, supra, Judge Shadur relied on the Parksanalysis to conclude that EAHCA creates a private right of actionto enforce its substantive guarantees of a free appropriateeducation and related services. Of course, the question inParks, William S., and Anderson was not the existence ofsubstantive rights under the EAHCA, but, rather, the availabilityof a private right of action or a particular remedy to enforcethose rights. However, in order to answer the latter questionsaffirmatively, a court must find that the statute createssubstantive rights. Cf. Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct.2080, 2088, 45 L.Ed.2d 26 (1978) (existence of an implied privateright of action depends, in part, on whether "thestatute create[s] a federal right in favor of the plaintiff.")This court therefore concludes that those decisions constitutepersuasive authority for the proposition that the EAHCA createssubstantive rights.
The court finds additional support for its view that the EAHCAcreates substantive rights in the weight of recent caseauthority, which recognizes that the EAHCA is more than merely afunding statute providing procedural protections. As stated inGladys J. v. Pearland Independent School District, 520 F. Supp. 869 (S.D.Tex. 1981), the EAHCA is "more than a funding statutesimpliciter. For state and local agencies, the Act is a source offunds and obligations." Id. at 873. "[T]he Act is a source ofa federal statutory right `to a free appropriate education' inevery state electing to receive financial assistance under itsauspices." Id. at 874.7
Defendant also relies upon two recent Supreme Court decisionsto support his claim that the EAHCA creates no substantiverights. In Pennhurst State School and Hospital v. Halderman,451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), plaintiffschallenged conditions at a state mental institution as violativeof § 111(1) and (2) of the Developmentally Disabled Assistanceand Bill of Rights Act of 1975 ("DDA"), 42 U.S.C. § 6010(1) and(2). The Supreme Court concluded that the statutory sectionsinvolved created no substantive rights enforceable against thestates either in absolute terms or in the context of federalfunding. According to the Court, Congress can create absolutesubstantive rights only through its power to enforce theguarantees of the Fourteenth Amendment, and the legislativehistory of § 6010 failed to show the requisite intent to actpursuant to such power. Id. at 15-17, 18-22, 101 S.Ct. at1538-40, 1540-42.
Similarly, the Court rejected the contention that § 6010, aspart of legislation passed pursuant to Congress' spending power,creates substantive rights imposed upon the states as a conditionto receiving federal funds. The court likened legislation passedpursuant to the spending power to a contract. Id. at 16, 101S.Ct. at 1539. In return for funds, states must agree to complywith federally-imposed conditions. Id. These conditions, however,must be explicitly and unambiguously set forth in order forsubstantive rights to be created. The court held that the"findings" stated in § 6010 failed to meet this criterion inlight of the very specific conditions on the grant of federalfunds set forth in other sections of the DDA. Id. at 22-23, 101S.Ct. at 1542-43.
The second decision on which defendant relies is Board ofEducation of the Hendrick Hudson Central School District v.Rowley, ___ U.S. ___, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), inwhich the Supreme Court held that the right to a free appropriateeducation created by the EAHCA did not impose upon the states aduty to provide all educational services which would maximize ahandicapped child's potential. Defendant points to footnote 26 ofthe Rowley opinion, in which the Court buttressed its view thatEAHCA created no right to all educational services necessary tomaximize academic potential by noting that Congress had notclearly and unambiguously made such a right a condition of thereceipt of federal funds as required by Pennhurst. Defendantcontends that Pennhurst and Rowley establish that the EAHCA waspassed pursuant to Congress' spending power and that the Act doesnot clearly condition the receipt of federal funds on theprovision of such rights.
Whether the EAHCA was passed pursuant to Congress' spendingpower or itsFourteenth Amendment power is open to question. Although theRowley Court did mention the standard for a spending poweranalysis in a footnote, it analyzed the EAHCA in equal protectionterms. The Court defined the boundaries of a free appropriatepublic education consistent with the equal protection clause ofthe Fourteenth Amendment8 because the legislative history ofthe EAHCA indicated that Congress sought, in enacting the EAHCAto "provide assistance to the States in carrying out theirresponsibilities under . . . the Constitution of the UnitedStates to provide equal protection of the laws." 102 S.Ct. at3046-47 (quoting legislative history). Implicit in the Court'sreasoning is the finding that the EAHCA was passed pursuant toCongress' power to enforce the Fourteenth Amendment. See alsoParks v. Pavkovic, 536 F. Supp. at 307-08.
Even if this court were to agree, however, that the EAHCA waspassed pursuant to the spending power, we would find that thePennhurst standard has been met and that the EAHCA createssubstantive rights in plaintiffs. Congress clearly andunequivocally conditioned the receipt of EAHCA funds upon statecompliance with certain requirements. Section 612 of the EAHCAstates:
In order to qualify for assistance under this subchapter in any fiscal year, a state shall demonstrate . . . that the following conditions were met:
(1) The State has in effect a policy that assures all handicapped children the right to a free appropriate public education.
20 U.S.C. § 1412. See William S. v. Gill, 536 F. Supp. at 510-11(finding Pennhurst inapplicable because provision of a freeappropriate education is an express condition for receipt offunds.)
Defendant's challenge to plaintiffs' procedural claim underEAHCA is also without merit. As noted above, federal regulationsrequire the state to issue a final decision on an appeal no laterthan thirty days from receipt of a request for review.34 C.F.R. § 300.512(b). Thus, unless this regulation can for some reason besaid to have no legal effect, plaintiffs' allegation of failureto comply with the rule states a cognizable claim.
In McCowan v. Hahn, supra, the court, relying on thedistinction between substantive and interpretive rules drawn inChrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1705, 60 L.Ed.2d208 (1979), concluded that the thirty-day rule creates no rightson behalf of handicapped children. Slip op. at 11-12. This courtdisagrees with the McCowan decision.
As Judge Getzendanner recognized, only those regulations whichaffect individual rights and obligations can be said to have theforce and effect of law. Unlike Judge Getzendanner, this courtbelieves that the EAHCA creates substantive rights to a freeappropriate education. Moreover, there can be no question thatthe EAHCA also creates certain procedural rights concerningreview of local educational agency decisions. The thirty-day ruledefines the contours of plaintiffs' statutory procedural rightsand clearly affects the right to a free appropriate education bylimiting the length of time a child will stay in an allegedlyinappropriate placement. This court does not see how such aregulation can be characterized as a rule of "agencyorganization, procedure or practice," Chrysler Corp. v. Brown,441 U.S. at 301, 99 S.Ct. at 1717, thus lacking the force oflaw.
The legal effect of a particular regulation also depends onwhether it falls within the scope of the statutory grant ofrule-making authority and whether it was promulgated inconformity with procedural requirements. Chrysler Corp. v. Brown,441 U.S. at 302-03, 99 S.Ct. at 1717-18. Both requirements aremet here.
The procedural prerequisites for agency rule-making are foundin § 4 of the AdministrativeProcedure Act, 5 U.S.C. § 553, which requires administrativeagencies to give general notice of proposed rule-making and anopportunity for interested parties to comment whenever theproposed rule is substantive. See Haddon Township Board ofEducation v. New Jersey Department of Education, 476 F. Supp. 681(D.N.J. 1979). Before the regulations under the EAHCA weredrafted the Office of Education carried out a massive effort toobtain comments and suggestions for promulgating the regulations.42 Fed.Reg. 42474 (1977). Approximately 2200 individualsparticipated in meetings concerning development of theregulations. Id. The Office of Education also convened a group of170 people to write concept papers for eventual use in writingthe regulations under the EAHCA.
As for the Commissioner's statutory authority to promulgate §300.512, when Congress has delegated authority to promulgaterules rather than making the rules itself, the rules adopted bythe administrative agency, as a general matter, have the fullforce and effect of law. Roy v. Secretary of Health and HumanServices, 512 F. Supp. 1245, 1252 (C.D.Ill. 1981). Congress didjust that in § 617 of the EAHCA, 20 U.S.C. § 1417(b), when itdelegated the authority and duty to promulgate regulations to theCommissioner of Education and the Secretary of Health, Educationand Welfare.
Defendant asserts, however, that the thirty-day rule exceedsthe agency rule-making authority granted in the EAHCA because itgoes beyond any substantive obligation contained in the EAHCAitself. Defendant relies upon two cases, Southeastern CommunityCollege v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980(1979) and American Public Transit Association v. Lewis,655 F.2d 1272 (D.C.Cir. 1981), to support this proposition.
In Southeastern Community College, regulations under theRehabilitation Act which required institutions to modify theirprograms to accommodate handicapped persons were construednarrowly by the Court. Reading the regulations more broadly toinclude program adjustments beyond those necessary to eliminatediscrimination against the handicapped would, according to theCourt, raise grave doubts about their validity because "theywould constitute an unauthorized extension of the obligationsimposed by [the] statute." Id. 442 U.S. at 410, 99 S.Ct. at 2369.
In American Public Transit Association, the court, relying onSoutheastern Community College, refused to enforce regulationspromulgated under the Rehabilitation Act which required thatevery mass transit system be made accessible to the handicapped.The court found that these regulations went beyond the scope ofthe Rehabilitation Act because they imposed affirmative actionrequirements and extraordinary financial burdens on recipients offederal funds.
In the present case the thirty-day rule for processing appealsrelates to the procedural requirements of the EAHCA. 20 U.S.C. § 1415.Section 1415(e)(3) requires that "[d]uring the pendency ofany proceedings conducted pursuant to this section . . . thechild shall remain in the then current educational placement ofsuch child. . . ." In light of the substantive right to an"appropriate education" created under the EAHCA, the courtbelieves that this provision requiring maintenance of the statusquo pending completion of administrative procedures contains animplicit assumption that those procedures will be completedwithout undue delay. Otherwise, a recipient of EAHCA funds couldavoid its substantive obligations and, in effect, render thestatute's procedural protections a nullity simply byprocrastination. The court thus concludes that the thirty-dayrule carries out the provisions of the EAHCA and that defendanthas failed to show that it falls outside the commissioner'sstatutory rule-making authority.9
Nor has defendant shown, at least in the context of this motionto dismiss, that the thirty-day rule imposes the excessive burdenor expense upon the state that was found to exist in AmericanPublic Transit System. Plaintiffs merely request that an appealto the state education agency be processed expeditiously. Theburden, if any, that would be imposed upon the state does notappear excessive, especially in light of what is at stake.
To summarize, EAHCA does create substantive rights to a freeappropriate education, as well as procedural guarantees thatstate administrative appeals will be processed expeditiously.Administrative regulations under the EAHCA setting time limits onthe processing of appeals create enforceable duties. Defendant'smotion to dismiss plaintiffs' EAHCA claim is therefore denied.
THE REHABILITATION ACT CLAIMS
Section 504 of the Rehabilitation Act provides in pertinentpart:
"No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. . . ."
29 U.S.C. § 794.
Regulations promulgated pursuant to the RehabilitationAct10 tie it to the provision of special educational servicesand the procedural guarantees of the EAHCA:
A recipient that operates a public elementary or secondary education program shall provide a free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's handicap.
34 C.F.R. § 104.33(a).
A recipient that operates a public elementary or secondary education program shall establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons, who, because of handicap, need or are believed to need special instruction or related services, a system of procedural safeguards that includes notice, an opportunity for the parents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation by the person's parent or guardian and representation by counsel, and a review procedure. Compliance with the procedural safeguards of section 615 of the [EAHCA] is one means of meeting the requirement.
34 C.F.R. § 104.36.
Defendant challenges plaintiffs' claim under the RehabilitationAct on several grounds. First, he asserts that § 504 does notcreate any substantive rights. However, the majority of courtsexamining § 504 have held that it creates substantive rightsenforceable by way of a private action.11 Defendant'sargument is clearlyforeclosed, at least in this circuit, by Lloyd v. RegionalTransportation Authority, 548 F.2d 1277 (7th Cir. 1977), in whichthe court held that affirmative rights were created under theRehabilitation Act. The court based its holding on theRehabilitation Act's similarity to Title VI of the Civil RightsAct of 1964, 42 U.S.C. § 2000d, which was construed in Lau v.Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974) ascreating affirmative rights.
The Lloyd decision requires a finding that the RehabilitationAct grants handicapped children such as plaintiff John A.substantive rights in the educational context. Just what thosesubstantive rights are is a more difficult question. In McCowanv. Hahn, supra, the court held that the simple failure to providespecial education services does not of itself state a claim under§ 504. Judge Getzendanner went on to find, however, thatexpulsion from an educational program for disciplinary reasonsrelated to a student's handicap without providing for specialeducation services may constitute a violation of § 504. Id. at18-19.
In William S. v. Gill, supra, the court concluded that a schooldistrict's refusal to fund a residential placement in connectionwith an educational program stated a claim under § 504. JudgeShadur said
Only one element of a Section 504 cause of action may be disputed here: whether [plaintiff] has been excluded from or denied the benefits of EAHCA "solely by virtue of his handicap". That nexus is plain. Plaintiff alleges he has been effectively denied any education at all because the state refuses to fund "related services," a precondition to his ability to learn. [Plaintiff's] need is, of course, solely a result of the severity of his handicap. Whatever causal link need be established between harm and handicap under Section 504, it is present here.
536 F. Supp. at 511. The court rejected the Supreme Court'sdecision in Southeastern Community College v. Davis, supra, asirrelevant, finding that Southeastern held only that "Section 504did not compel affirmative action in the sense of extensivemodifications of a nursing program to overcome plaintiff'sdeafness." Id.12
This court believes that, at a minimum, § 504 requires a statewhich receives federal funds for public education not to excludea handicapped child from its educational program for reasonsrelated solely to his handicap. Exclusion in the educationalcontext must mean, as Judge Shadur suggested, any decision oraction that, in practice, prevents a child from benefitting fromthe federally-funded educational program. Here, plaintiffs havealleged that defendant's inaction in failing to process appealsrelating to the educational placements of handicapped childrendeprived them of the benefits of an education. Just as thedefendant's refusal to fund related services in William S. v.Gill deprived the plaintiff there of a "precondition to hisability to learn [which was] . . . solely the result of theseverity of his handicap," defendant's failure here to promptlyprocess appeals which result solely from plaintiff's status as ahandicapped child forced plaintiff to remain in an allegedlyinappropriate educational placement. The court concludes thatplaintiffs have made the necessary causal allegations to state aclaim under § 504.
Defendant also argues that plaintiff's reliance upon § 504'simplementing regulation, 34 C.F.R. § 104.33, for the propositionthat a free appropriate public education must be provided tohandicapped children is misplaced. Defendant argues that thisregulation exceeds any similar obligation contained in thestatute itself. Once again defendant relies upon SoutheasternCommunity College and American Public Transit Association for theproposition that heavy financial burdens would be placed upon thestate education agency.
The regulation in question, however, merely restates, inaffirmative language, the prohibitions of § 504. A recipient offederal funds for elementary and secondary educational servicesmust extend those services to all qualified handicapped childrenregardless of the nature or severity of their handicaps. Clearly,this regulation cannot be said to exceed Section 504'sprohibition of discrimination against handicapped individuals.Plaintiffs do not ask this court to interpret the regulation ina broad fashion as in American Public Transit Association, nor doplaintiffs seek, as did the plaintiff in the Southeastern case,admittance into a program from which they would be unable to reapany benefits. Rather, they simply seek prompt resolution ofdisputes as to the appropriateness of their educationalplacements so that they may get on with the schooling to whichthey are entitled.
Finally, defendant argues that, even if the Rehabilitation Actcreates substantive rights in favor of plaintiffs, the complaintfails to allege the necessary elements of such a cause of action.Defendant correctly maintains that, in order to state a claimunder § 504, plaintiff must allege (1) the existence of a programor activity within the state which receives federal financialassistance, (2) that plaintiff is an intended beneficiary of thefederal assistance, and (3) that he is a qualified handicappedperson, who solely by reason of his handicap has been excludedfrom participation in, been denied the benefits of or otherwisebeen subjected to discrimination under such program or activity.Simpson v. Reynolds Metal Co., 629 F.2d 1226 (7th Cir. 1980);William S. v. Gill, 536 F. Supp. at 511. Plaintiffs have allegedthat Illinois receives federal financial assistance under theEAHCA for special education (¶¶ 1, 3, 5, 8, 9, 20, 21), and thathandicapped children are denied such benefits because ofdefendant's delay in processing appeals brought to the stateeducation agency concerning special education placements. (¶¶ 17and 18). The elements of a cause of action under theRehabilitation Act, as outlined in Simpson v. Reynolds Metal Co.,supra, are alleged in the complaint, and defendant's motion todismiss must therefore be denied.
DUE PROCESS CLAIM
Defendant asserts that the due process clause of the FourteenthAmendment does not require a decision to be rendered by a stateeducation agency within thirty days after receipt of a requestfor review. Application of the due process clause to a particularsituation involves a two-level inquiry. First, has thecomplaining party been deprived of some legitimate property orliberty interest? Board of Regents v. Roth, 408 U.S. 564, 92S.Ct. 2701, 33 L.Ed.2d 548 (1972). Second, if there be such adeprivation, what procedural protections does the due processclause mandate? As the Supreme Court said in Mathews v. Eldridge,424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976), dueprocess "`is not a technical conception with a fixed contentunrelated to time, place and circumstances.'" (quoting CafeteriaWorkers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6L.Ed.2d 1230 (1961)). Rather, what process is due depends upon ananalysis of the private and governmental interests affected. Id.424 U.S. at 334-35, 96 S.Ct. at 902.
Defendant has not challenged plaintiffs' due process claim atthe first level of inquiry. Plaintiffs have alleged that thehandicapped children have been deprived of an appropriateeducation as a result of defendant's conduct. The court believesthat this allegation is sufficient to trigger a due processanalysis, whether an appropriate education is viewed as some sortof statutory entitlement under theEAHCA, see discussion supra at pp. 7-12; cf. Goldberg v. Kelly,397 U.S. 254, 262 and n. 8, 90 S.Ct. 1011, 1017 and n. 8, 25L.Ed.2d 287 (1970), or a property right under state law, seeElliot v. Bd. of Ed. of City of Chicago, 64 Ill. App.3d 229, 20Ill.Dec. 928, 932-35, 380 N.E.2d 1137, 1141-44 (1st Dist. 1978)(analyzing state constitutional and statutory provisions for afree education). The question at this stage of the proceedingsthen is whether the due process clause imposes some kind oftimeliness requirement on the state in the course ofdecision-making regarding the educational placement ofhandicapped children.
Defendant cannot seriously dispute that the time factor isoften a critical component of procedural due process. Asindicated in Goldberg v. Kelly, supra, the timeliness of arequired hearing can, under certain circumstances, be the mostcritical element of due process guarantees. In Like v. Carter,448 F.2d 798 (8th Cir. 1971), the court, relying on Goldberg,concluded that state delays of more than thirty days inprocessing applications for public assistance violated dueprocess. It said, "the need of eligible welfare recipients forprompt relief is urgent and great, and . . . eligible applicantsare entitled to prompt relief as a matter of right." Id. at 804.
Although plaintiffs here do not suffer from deprivation ofbasic life necessities such as food, clothing and shelter, thetime factor may be as critical here as in the welfare context.The provision of educational services is one of the mostimportant functions that the state performs. San AntonioIndependent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct.1278, 36 L.Ed.2d 16 (1973). The passage of time while the stateresolves disputes concerning educational placements can, as thecomplaint in this case vividly illustrates, have serious andperhaps irreversible consequences. Plaintiffs have charged thatwhile John remained in an allegedly inappropriate educationalplacement pending state review, his condition worsened to thepoint that he had to be institutionalized in a mental healthcenter, a setting that was also inappropriate to his needs. Theyhave alleged that he has been seriously injured as a result ofthese inappropriate placements and that the passage of timedecreases his chances of benefitting from educational services.
It is obvious from these allegations as well as the inherentlytime-bound nature of a child's right to education that thepassage of time can itself constitute a deprivation of thesubstantive right. Timeliness of review, at least in the face ofthe pleadings, is thus an essential element of procedural dueprocess in this case. While further factual development maydemonstrate that, under the required balancing of private andgovernment interests, the Constitution does not require a finaldecision within thirty days, the court cannot say that plaintiffsat this point have failed to state a claim. Defendant's motion todismiss plaintiffs' claim under the due process clause of theFourteenth Amendment is therefore denied.
PENDENT STATE CLAIM
Defendant seeks dismissal of plaintiffs' state law claim forlack of subject matter jurisdiction, relying on UnitedMineworkers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16L.Ed.2d 218 (1966), in which the Court said, "Certainly, if thefederal claims are dismissed before trial . . . the state claimsshould be dismissed as well." Id. at 726, 86 S.Ct. at 1139. Sincedismissal of the state claim is thus dependent upon dismissal ofthe federal claims, which this court finds unwarranted,defendant's motion to dismiss as to this count is also denied.
1. On this motion to dismiss the facts stated in plaintiffs'complaint are, of course, accepted as true.
2. Neither plaintiffs nor defendant has argued the mootnessquestion. However, since mootness is a jurisdictional issue,going to the power of the court to hear the merits of a case, itcannot simply be ignored.
3. In Sosna, plaintiff was challenging an Iowa law establishinga one-year residency requirement as a prerequisite to initiatingdivorce proceedings in the state courts.
4. Since there is no certified class, the court may examine onlythe possibility of recurrence as to the named plaintiff, who isthe only party properly before the court at the present time. SeeGomes v. Rhode Island Interscholastic League, 604 F.2d 733, 736(1st Cir. 1979).
5. There is a discrepancy between the federal regulation and thestate statute. The former focuses on the state agency's receiptof a request for review while the latter ties decision-making toreceipt of the record on appeal. The significance of thediscrepancy is apparent from the facts of this case which showthat defendant did not even receive the record until more thanthirty days after the initial request for review. Defendant doesnot rely on this discrepancy, however, and whether the differinglanguage of the regulation and the statute can somehow bereconciled thus need not be decided at this stage of theproceedings.
6. Whether John has substantive rights under the EAHCA will affectthe merits of his due process claim, discussed below.
7. Other courts have either explicitly or implicitly found thatthe EAHCA creates substantive rights. See Tokarcik v. ForestHills School District, 665 F.2d 443 (3d Cir. 1981); Kruelle v.New Castle County School District, 642 F.2d 687 (3d Cir. 1981);Tatro v. University of Texas, 625 F.2d 557 (5th Cir. 1980);Department of Education v. Katherine D., 531 F. Supp. 517(D.Hawaii 1982); Association for Retarded Citizens in Coloradov. Frazier, 517 F. Supp. 105 (D.Colo. 1981); Larry P. v. Riles,495 F. Supp. 926 (N.D.Calif. 1979); Boxall v. Sequoia UnionSchool District, 464 F. Supp. 1104 (N.D.Calif. 1979).
8. The Supreme Court stated that the EAHCA was designed only toprovide a "basic floor of opportunity" consistent with equalprotection. Equal protection, according to the Court required nomore than equal access. 102 S.Ct. at 3048.
9. At least one other court has viewed the thirty-day rule ascreating an enforceable duty. Rettig v. Kent City SchoolDistrict, 539 F. Supp. 768 (N.D.Ohio 1981). The Rettig courtordered the state to revise its rule, allowing the stateeducation agency to render a decision within sixty days, so thatit complied with the federal regulation. Because of excessivedelays, by the time the plaintiff's case reached the court therecord was outdated. The court stated that this placed it in theuncomfortable position of reviewing an education program that wasirrelevant by the time it reached the court. Id. at 511. Thiscourt believes that the enforceability of the thirty-day rule ismore properly premised on the underlying substantive right ofhandicapped children to an appropriate education than on theneeds of the judiciary.
10. The Rehabilitation Act contains no express authorization toissue regulations. However, Executive Order 11914, 41 F.R. 17871(April 29, 1976), which was clearly contemplated by thelegislative history of the Act, provides such authorization. SeeLloyd v. Regional Transp. Auth., 548 F.2d 1277, 1281 and n. 15(7th Cir. 1977).
11. Kling v. County of Los Angeles, 633 F.2d 876 (9th Cir. 1980);Tatro v. State of Texas, 625 F.2d 557 (5th Cir. 1980); Camenischv. University of Texas, 616 F.2d 127 (5th Cir. 1980), vacated onother grounds, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175(1981); NAACP v. The Medical Center, Inc., 599 F.2d 1247 (3d Cir.1979); Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977); UnitedHandicapped Federation v. Andre, 558 F.2d 413 (8th Cir. 1977);Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir. 1977); Department ofEducation v. Katherine D., 531 F. Supp. 517 (D.Hawaii 1982);Gladys J. v. Pearland Independent School District, 520 F. Supp. 869 (S.D.Tex. 1981); Georgia Association of Retarded Citizens v.McDaniel, 511 F. Supp. 1263 (N.D.Ga. 1981); Larry P. v. Riles,495 F. Supp. 926 (N.D.Calif. 1979); Boxall v. Sequoia Union HighSchool District, 464 F. Supp. 1104 (N.D.Calif. 1979).
12. One court has given an even narrower interpretation of theSoutheastern holding. In Camenisch v. University of Texas,616 F.2d 127 (5th Cir. 1980), vacated on other grounds, 451 U.S. 390,101 S.Ct. 1830, 68 L.Ed.2d 175 (1981), the Fifth Circuit readSoutheastern as holding
only that section 504 does not require a school to provide services to a handicapped individual for a program for which the individual's handicap precludes him from ever realizing the principal benefits of the training.
Id. at 133.