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CASE NO. 98-3048
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOSEPH JAMES, a minor
by and through his parents,
Nancy James and Cameron James
Plaintiffs-Appellants,
v.
UPPER ARLINGTON CITY SCHOOL
DISTRICT BOARD OF EDUCATION,
et al.,
Defendants-Appellees.
INTRODUCTION AND STATEMENT OF
INTEREST OF AMICUS CURIAE
The Ohio School Boards Association (OSBA) and the National School Boards Association (NSBA) are grateful for this opportunity to appear as amicus curiae in support of the Upper Arlington City School District Board of Education.
Founded in 1955, the Ohio School Boards Association is a statewide nonprofit organization of public school boards. Membership in OSBA is open to all public school boards, and fully 100% of the board members in the various city, exempted village, local, and joint vocational school districts throughout the State of Ohio (661 in all) are currently members of OSBA, as are all of the governing boards of Ohio's 63 educational service centers. The activities of OSBA include training programs and workshops for school leaders, informational support through publications and person-to-person contact, management consulting, policy analysis, legal services, and labor relations representation. The mission of OSBA is to unite boards of education and to provide information, services, and representation to its members.
Founded in 1940, the National School Boards Association is a not-for-profit federation of this nation's state school boards associations, the Hawaii State Board of Education, and the boards of education of the District of Columbia, Guam, the U.S. Virgin Islands and the Commonwealth of Puerto Rico. These boards govern more than 15,000 local school districts that serve more than 46.5 million public school students, approximately 90 percent of all elementary and secondary public school students in the nation. NSBA has had a longstanding interest in educational policy, including matters relating to special education.
The appearance of these amici today is prompted by the rather astonishing conclusion of the original panel in this case, which has found, by a 2-1 majority, that liability for special education tuition reimbursement may be imposed upon a public school district merely as a consequence of a single, informal contact by parents with a school official, as a result of which the parents felt rebuffed. Under this decision, liability for private school tuition may be imposed even though the child in question was not enrolled in the public school and even though it is not alleged that the public school district refused to enroll the child. The decision furthermore declares that a public school district has a duty to prepare an IEP (individualized education plan) for a disabled child prior to any decision by the parents to actually enroll the child in the district.
Clearly, this holding, if upheld and followed, would impose an unfair burden and significant new costs upon public school districts everywhere. Not only would public schools be exposed to the direct cost of new claims for tuition reimbursement; they would also be required to divert precious educational resources to the development of IEP's for non-enrolled students who would be permitted to file a claim for reimbursement (plus attorney fees) under the holding of this case. In an environment where public schools are already struggling to fund the increasing share of their resources which must be devoted to special education, this is certainly an unwelcome, and ultimately counterproductive, result.
For the above reasons, the Ohio School Boards Association and the National School Boards Association wish to support the request of the Upper Arlington City School District for a rehearing of this case, and to briefly support such request through the citation of legal authority and legal argument as presented herein.
ARGUMENT
There is perhaps little which these amici can do to improve upon the excellent discussion of the pertinent issues found in the brief (Petition for Rehearing) submitted herein by counsel for the Upper Arlington City School District. However, the amici OSBA and NSBA do wish to add support to the argument for rehearing in two specific ways which they believe can be both constructive and non-repetitious.
The first mode of support which the amici OSBA and NSBA wish to offer is to direct the Court's attention to a pair of federal court decisions which are not cited in the School District's petition and which may be instructive in the present context.
One of these cases is Board of Education of the Avon Lake School District v. Patrick M., 9 F.Supp.2d 811 (N.D. Ohio 1998). Like the present case, Avon Lake involved a parent's claim for tuition reimbursement for a private placement alleged to have been made necessary by the public school's failure to provide a free appropriate public education (FAPE) for a disabled student. Reimbursement was denied by the court pursuant to this Court's landmark ruling in Wise v. Ohio Department of Education, 80 F.3d 177 (6th Cir. 1996). What is most significant, however, is the terminology utilized by the court in applying the Wise standard. Specifically, it found that the parents were not entitled to reimbursement because they
failed or neglected to take appropriate action to express their dissatisfaction with the District's programs. . . .
. . .
Because the evidence showed that [the parents] failed to take reasonable steps to communicate their dissatisfaction, if any, with Petitioner Avon Lake's educational programs for Patrick, and because [the parents] failed to give the District an opportunity to discuss or correct the perceived deficiencies in Patrick's individual educational program, the Court concludes that [the parents] assumed the risk of unilaterally withdrawing Patrick from public school. As such, they are not entitled to be reimbursed for the expenses and cost associated with Patrick's private residential placement at Elan.
9 F.Supp.2d at 827 (emphasis added). Like Wise, this case presents an objective, workable definition of what the parents must do in order to invoke the remedy of reimbursement. That is, they must take reasonable steps to communicate their dissatisfaction to the school district. (Wise similarly required the making of a complaint to the school district.) Applying this clear, common-sense standard here, it soon becomes apparent that the parents' claim for reimbursement must fail as a matter of law. The allegations of the complaint, even if taken at face value, do not reveal any action taken by the parents which would have communicated their dissatisfaction to the School District so as to put the School District on notice as to its legal obligations. (In Wise terms, no complaint was registered.) Thus, the action filed by the parents in the present case failed to state a claim upon which relief could be granted and was therefore properly dismissed by the trial court.
The other case of particular interest here is Catlin v. Sobol, 988 F.Supp.85 (N.D.N.Y. 1997). Catlin also involved a parent's claim for tuition reimbursement under a fact pattern which closely parallels the one now at hand. The parents in Catlin moved from New York to Massachusetts, but left their disabled child in New York. The court found that although Massachusetts had become the parents' state of residence, it could not be held accountable for the costs of education their child in New York, since this was in effect a placement controlled by the parents and not the State of Massachusetts. It reasoned as follows:
Massachusetts . . . did not have the opportunity to develop an IEP for Dell. Such an IEP would have included a determination as to whether Dell could receive the free appropriate public education to which he was entitled within the Massachusetts LEA or whether the appropriate educational placement for Dell was in the District. It follows from Wise that having had no opportunity to develop an IEP for Dell, the Massachusetts LEA cannot be held financially responsible for the education which Dell received in the District. Moreover, although the Catlins did not unilaterally change Dell's educational placement, they did unilaterally choose Dell's educational placement in contravention of the requirements of the IDEA, and by doing so they ran the risk that they would be held financially responsible for their decision.
988 F.Supp. at 92 (emphasis added). As in Catlin, the parents in the present case did not change their child's placement after their discussion with an Upper Arlington employee in 1994 they merely left him where he was. But doing so was, in effect, a unilateral choice which they made at their own risk, having never invoked any administrative procedures at Upper Arlington to determine what would have been available to him there, for free.
The other mode of support which the amici OSBA and NSBA would offer to Petition for Rehearing would be to urge this Court to consider the facts of this case in a somewhat different analytical context: namely, whether the plaintiffs (parents) exhausted their administrative remedies before filing this civil action for reimbursement. When viewed in this light, it becomes even clearer that the complaint in this case failed to state a cause of action, and was therefore properly dismissed.
The doctrine of exhaustion of administrative remedies is of course well known to this Court, and has special significance in the context of the elaborate procedural framework created by the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1401 et seq.). The importance of requiring the parties to utilize the administrative remedies provided by the IDEA before resorting to litigation has been aptly summarized by one federal court as follows:
The IDEA's impartial administrative review procedures are mandatory and were carefully tailored by Congress. It was Congress' view that the needs of handicapped children are best accommodated by having the parents and the local education agency work together to formulate an individualized plan for each handicapped child's education. Smith v. Robinson, 468 U.S. 992, 1010-112 (1984). The United States Supreme Court in Smith noted that no federal district court presented with a constitutional claim to a public education can duplicate [this] process. Id, at 1012. Moreover, the federal courts have observed the following beneficial and useful functions of requiring administrative due process exhaustion relative to claims seeking relief available under the IDEA; these functions include: (1) permitting the exercise of agency discretion and expertise on issues requiring such characteristics; (2) allowing the full development of technical issues and a factual record prior to court review; (3) preventing deliberate disregard and circumvention of agency procedures established by Congress; and (4) avoiding unnecessary judicial decision and review by giving the agency the first opportunity to correct any error.
Ferguson v. Pine Grove School, Case No. 3:97-439-17, 1997 U.S. Dist. LEXIS 22865 at *17-18 (D.S.C., June 16, 1997) (Addendum at A-1.) The importance of the exhaustion requirement in the context of the IDEA has long been recognized by this Court, as in the case of Doe v. Smith, 879 F.2d 1340 (6th Cir. 1989), a case pre-dating Wise:
We agree with the district court that by unilaterally placing Doe in the private school, the Does did not waive a right to seek redress under the EAHCA. School Comm. V. Department of Educ., 471 U.S. 359, 372 (1985) . . . . While School Comm. stands for the proposition that the parents' unilateral act of removing their child from a public school does not waive the right to seek reimbursement under the EAHCA, it does not mean that the procedures in the EAHCA may be by-passed. Absent a showing that exhaustion of the administrative process would be futile or inadequate, Honig v. Doe, 484 U.S. 305 (1988), parents and guardians [must] use the state process which the act specifies shall be provided to them.
879 F.2d at 1343 (emphasis added) (quoting Crocker v. Tenn. Secondary School Athl. Assn., 873 F.2d 933, 935 [6th Cir. 1989]). Viewed in this context, it becomes apparent that Wise did not actually establish an entirely new way of viewing parental obligations under the IDEA; rather, it can been seen as simply an extension of the exhaustion doctrine to a particular kind of fact pattern. That is, the requirement that a parent seeking tuition reimbursement in federal court must have first registered a complaint with the local educational agency, followed by non-responsiveness on the part of the agency, is just another way of requiring the exhaustion of informal, administrative processes available prior to initiating litigation. As noted above, an exception to the exhaustion requirement exists when it is clear that the attempt to secure an administrative remedy would be futile.
Applying these principles to the present case, what can we conclude about the parents' pre-litigation conduct? Did they exhaust their administrative remedies? Or, alternatively, do the facts as alleged show that such attempts would have been futile? The answer to both of these questions must obviously be in the negative. The parents in this case never enrolled their child in the Upper Arlington Schools. Following just one meeting with an officer of that school district, the parents gave up on the Upper Arlington Schools by leaving their child in the private placement they had chosen. No facts are alleged from which it can be concluded that the IEP which would have been developed for Joseph if Upper Arlington had been given the chance to prepare one would have been inadequate. No facts are alleged from which it can be concluded that the parents took reasonable steps to communicate their dissatisfaction with the Upper Arlington School District. And most importantly in terms of evaluating this case in the context of a motion to dismiss for failure to state a claim, there is (to the knowledge of these amici) no allegation in the complaint that further informal attempts to achieve satisfaction from the Upper Arlington Schools, or through the appointed due process procedures, would have been futile. This omission alone was sufficient grounds for the dismissal of the present complaint by the District Court.
In conclusion, it is the position of the amici OSBA and NSBA that the analytical framework previously developed by this Court in Wise for the evaluation of tuition reimbursement claims was a sound one from which the present ruling unfortunately departs. The requirement of Wise that a complaint be registered with the local educational agency (like the requirement of Avon Lake, supra, that the parents take reasonable steps to communicate their dissatisfaction) as a prerequisite to monetary relief is firmly grounded in, and an expression of, the fundamental legal doctrine of exhaustion of administrative remedies. To the extent the holding of the majority in the present case has rejected the application of this bedrock principle, it is respectfully submitted that the Court has temporarily lost its way, and that the reconsideration now being requested by the Upper Arlington School District is a well-advised first step in the self-correcting mechanism which this Court has so wisely incorporated into its deliberative processes.
CONCLUSION
In light of the foregoing, it is clear that the decision of this Court as originally issued herein deviates from established principles developed by the federal courts in the application of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq., in two key respects: First, it effectively overrules this Court's previous holding in Wise v. Ohio Dept. of Education, 80 F.3d 177 (6th Cir. 1996), a well-reasoned decision which has been frequently followed by numerous courts both within and without the Sixth Circuit. Second, the holding below, as written, strays from the fundamental requirement of exhaustion of administrative remedies as long applied throughout the IDEA and its supporting regulation.
WHEREFORE, the amici curiae Ohio School Boards Association and National School Boards Association hereby request that the petition of the defendant-appellee Upper Arlington City School District Board of Education for rehearing, or in the alternative, for en banc review, be granted forthwith so that a fuller consideration of the foregoing concerns my be undertaken.
Respectfully submitted,
Kimball H. Carey
Julie Underwood
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 29 of the Federal Rules of Appellate Procedure, it is hereby certified
by the undersigned counsel that the foregoing Brief of Amici Curiae Ohio School Boards Association and National School Boards Association is in compliance with the page limitation requirements of that Rule and Rule 32(a)(7) of such Federal Rules.
Kimball H. Carey
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