The use of (section) 1983 as a remedy for violations of the Individuals with Disabilities Education Act: why it is necessary and what it really means.

AuthorChun, Candace
PositionCOMMENTS - Excerpt


In 1994, at the age of three, Michelle H. (1) was diagnosed as having a mild form of autism. (2) As a result of the diagnosis and in accordance with procedure, the psychologist, who was employed by Hawaii's Department of Health (DOH), made numerous recommendations for addressing Michelle's limitations. (3) The recommendations included enrollment in a preschool program run by Hawaii's Department of Education (DOE), the use of autism-specific techniques, and the assignment of a one-to-one therapeutic aide to help Michelle in the classroom. (4) In her report to the DOE, the psychologist, Dr. Koven, wrote, "Michelle has delays in multiple areas of functioning. [She] will need some very special services in order to progress. Since she has high potentials [sic], it would be a shame to limit services at this critical intervention time." (5) Upon receipt of this report, the DOE performed its own evaluation of Michelle. (6) Although the DOE found her to be eligible for special education and related services under the Individuals with Disabilities Education Act (IDEA), (7) she was classified as having "chronic emotional impairment," rather than autism. (8) Subsequent to this classification, the DOE developed an Individualized Education Program (IEP) for Michelle, (9) as mandated by IDEA. (10) Due to a lack of appropriate personnel, however, the DOE did not include or implement any of Dr. Koven's autism recommendations. (11) The DOE did not inform Michelle's parents of available services. (12) Furthermore, Michelle was not provided with the speech services that were listed in her IEP because, at that time, general special education was the only service available in the DOE. (13)

Later that year, Michelle's sister, Natalie, who was two, was also referred to the DOH for a psychological evaluation due to suspected developmental delays. (14) Natalie was officially diagnosed with autism in 1995. (15) After undergoing a separate DOE evaluation, she was deemed eligible for services under IDEA with a classification of "Early Childhood Learning Impairment" rather than autism. (16) The IEP that was developed for Natalie did not include any autism-related services. (17) Thus, like Michelle, Natalie only received general special education. (18)

Around this same time, "a class of plaintiffs comprised of disabled children and adolescents ... sued the Hawaii DOE and the Hawaii DOH ... claiming a failure to comply with IDEA...." (19) After finding that the agencies had failed to provide adequate educational and mental health services, the district court granted summary judgment to the plaintiffs on the issue of liability. (20) The parties subsequently entered into a consent decree in which the DOE and DOH acknowledged their violations and agreed to provide all required services. (21) However, the changes were slow to come. (22)

Over the next four years, Michelle's and Natalie's IEPs remained substantially unchanged despite annual reevaluations, (23) and Michelle's reclassification from "emotional impairment" to "autism." (24) Notably, no one from the DOH ever attended any of the IEP meetings, even though the DOH was the agency responsible for providing services related to special education. (25) As a result, neither of the girls received any of the services appropriate and necessary for autistic children. (26) As for their parents, they were left in the dark as to what services their daughters were entitled to. (27)

In March of 1998, at the age of six, Natalie's classification was changed from "early childhood learning impairment" to "autism," and she was finally referred by the DOE to the DOH for mental health services, to be provided by someone with expertise in autism. (28) Although her services began almost immediately, Michelle, who was 7, had to wait until the summer before anything was available for her. (29)

In 1999, Michelle and Natalie's parents filed a request for an impartial due process hearing on behalf of their daughters. They alleged that the DOE had denied Natalie and Michelle a free appropriate public education through inadequate IEPs and other procedural violations. (30) After a full hearing, the impartial hearing officer concluded that the DOE had violated IDEA by failing to provide necessary autism services for four years, failing to provide necessary mental health services, excluding agreed-upon mental health services from the IEPs, and providing the girls with a teacher who had no experience with autistic children. (31) The hearing officer ordered the DOE to take a number of steps to remedy the violations. (32)

By this point, however, roughly six years had elapsed, during which the girls received an inappropriate education and services. Thus in 2000, Michelle and Natalie's parents filed suit on the girls' behalf, seeking compensatory, punitive, and hedonic (33) damages under [section] 1983 and various other statutes. (34) They alleged that the State's violations of IDEA and its deliberate indifference to the girls' needs had caused irreparable harm to both Michelle, now nine, and Natalie, eight, in that the girls were unable to talk or communicate through an alternative system. (35) Additionally the complaint stated that the girls were incapable of caring for themselves, unable to function independently, and would require twenty-four-hour care for the rest of their lives. (36)

After extensive motions and hearings, the District Court ultimately dismissed the [section] 1983 claim on Eleventh Amendment immunity grounds. (37) The remaining claims are still currently being litigated. (38) Were the [section] 1983 claim brought again today, even if properly pleaded, it would once again be dismissed due to a recent Ninth Circuit decision which held that [section] 1983 could not be utilized to seek compensatory damages for violations of IDEA. (39)

Because courts have interpreted the language of IDEA in a manner that precludes an award of money damages for any violations of the Act, (40) plaintiffs like Michelle, Natalie, and their parents have sought relief under statutes such as [section] 1983, which do provide for money damages. Considered by many to be a "back door" or way around the prohibition for money damages, (41) this particular issue has become the source of much dispute and litigation. Though most circuits have weighed in on the matter, it has only led to a wide array of confusing and contrary positions. (42)

Part I of this Comment provides the basic framework for a [section] 1983 claim and outlines the fundamentals of IDEA, highlighting the relevant provisions. Part II explores the development of the law regarding the use of [section] 1983 as a remedy for violations of IDEA, beginning with the seminal case of Smith v. Robinson. (43) Part III examines the fallout from Congress's response to the case, summarizing the conflicting views of the various circuits. Finally, Part IV discusses the importance of [section] 1983 as a means for enforcing certain IDEA violations, arguing that the basis for the decision of courts who have barred such claims is either unfounded or incomplete.

  1. AN OVERVIEW OF [section] 1983 AND IDEA

    1. [section] 1983

      Originally adopted as Section 1 of the Civil Rights Act of 1871 and known as the "Ku Klux Klan Act," (44) [section] 1983 was enacted to help combat racial violence after the Civil War (45) by enforcing the provisions of the Fourteenth Amendment. (46) Specifically, it provided a civil remedy in the federal courts to those individuals whose constitutional rights had been violated. (47) Today, [section] 1983 is the primary means of enforcing federal statutory and constitutional violations. In pertinent part, it states,

      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured...." (48) Although [section] 1983 filings make up a significant percentage of the federal court dockets, (49) its complex nature and the high threshold set by courts for maintaining such a cause of action make it extremely difficult for [section] 1983 plaintiffs to prevail and recover damages. (50) Because [section] 1983 itself does not create any substantive rights and serves only as a vehicle for enforcing the Constitution and its laws, (51) [section] 1983 plaintiffs must establish (1) that defendant deprived plaintiff of a constitutional or federal statutory right; (52) (2) that defendant acted under color of state law; (53) (3) that plaintiff was actually injured; (54) and (4) that defendant's actions were the cause of that injury. (55)

      While seemingly straightforward, these requirements are actually quite involved, containing various exceptions and conditions depending on the type of violation alleged and the parties involved. For example, if based on a violation of a Constitutional right, (56) as was generally the case before the Supreme Court legitimated a [section] 1983 cause of action for violations of federal statutory rights, (57) plaintiff must establish the elements and appropriate mens rea for each constitutional claim, in addition to the remaining [section] 1983 factors. (58)

      For plaintiff to successfully bring a claim based on a violation of a federal statutory right, the Court has held that the statute must confer individual rights on a class of people that includes plaintiff. (59) A violation of the statute, by itself, is not sufficient to support a [section] 1983 cause of action. (60) Yet even if a plaintiff is able to show that a statute does create such enforceable rights, the court may still bar the claim if it decides that the "statutory remedial scheme is so comprehensive that an intent to prohibit enforcement other than by the statute's own means may be inferred." (61) In other words, the plaintiff has the...

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