USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1414
KARL PIHL, ET AL.,
Plaintiffs, Appellants,
v.
MASSACHUSETTS DEPARTMENT OF EDUCATION, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Barbadoro,* District Judge.
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Robert G. Burdick with whom Darryl J. Dreyer and Louis Aucoin
__________________ _________________ _____________
were on brief for appellants.
Regina Williams Tate with whom Lorna M. Hebert was on brief for
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appellees.
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November 16, 1993
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*Of the District of New Hampshire, sitting by designation.
COFFIN, Senior Circuit Judge. Plaintiffs Karl and Diane
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Pihl filed this lawsuit in 1987, alleging that defendants
Massachusetts Department of Education, Lowell School Committee,
City of Lowell and Lowell Special Education Administrator George
Tsandikos denied educational services due Karl as a disabled
child. They now appeal from a district court order dismissing
their complaint for failure to state a claim upon which relief
could be granted, presumably because moot, since the challenged
educational plan had expired four years earlier, and Karl had
since passed the age of entitlement for services. We conclude,
after review of the authorities, that the Individuals with
Disabilities Education Act (IDEA)1 empowers courts to grant a
remedy in the form of compensatory education to disabled students
who are beyond the statutory age of entitlement for special
education services, and that Karl Pihl has alleged facts which,
if proven, state a claim for relief. We therefore reverse the
district court's decision to dismiss, and remand for
determination of the merits of his claim.
I. Factual Background2
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1The IDEA was formerly known as the Education of the Handicapped
Act (EHA). See Pub. L. 102-119, 25(b), Oct. 7, 1991, 105 Stat.
___
607 (substituting "Individuals with Disabilities Education Act"
for "Education of the Handicapped Act"). Except when reciting
the history of the case, or when quoting decisions which cite to
the EHA, the parties cite to the IDEA in their briefs, and we
join them in doing so.
2These facts are drawn from the three volume Administrative
Record filed by the parties in the district court on September 9,
1987, and the pleadings filed in this case.
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Plaintiff Karl Pihl is a twenty-seven-year-old man who is
emotionally disturbed and retarded, and who suffers from profound
hearing loss and speech deficiencies. Karl began receiving
special education services at the age of four, and attended a
number of different programs over the years. The local school
system was obligated by state and federal law to provide these
services to him. See infra at 7. During the 1983 school year,
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Karl participated in a residential/educational program for multi-
handicapped deaf students at the Perkins School for the Blind,
but was terminated due to aggressive behavior. He was placed at
the Lighthouse School, a private day facility, on an interim
basis, until an appropriate residential program could be found.
In June 1985, dissatisfied with the educational services Karl was
receiving at the Lighthouse School, Karl's mother Diane removed
him from school and kept him at home, under the care of two
twenty-four hour attendants. While the Pihls paid for twenty-
four hour care, the school system held his place open at the
Lighthouse School, continuing to search for an appropriate
program, or ways to adapt the Lighthouse School program to meet
Karl's needs.
In 1986, when Karl was nineteen, his mother requested a due
process hearing before the Board of Special Education Appeals
(BSEA) to review her claim that Karl was not receiving the
educational services to which he was entitled by law. Following
the hearing, held on July 15, 1986, Mrs. Pihl and the Lowell
Public Schools signed a consent decree requiring the school
-3-
district to provide interim services to Karl while an appropriate
residential placement was sought.3 The interim agreement was to
end on November 30, 1986, or earlier, if Karl were placed in a
residential program acceptable to his parent, or ordered by a
hearing officer, or if the agreement was terminated by order of
the hearing officer. The hearing officer was to retain
jurisdiction, and the hearing would reconvene if Lowell had not
presented a program willing to accept Karl by that date. The
hearing also would reconvene at either party's request, or if
Diane Pihl were to reject a proposed program.
On January 28, 1987, the hearing was reconvened on
plaintiffs' motion, and the Massachusetts Department of Education
(DOE) was joined as a party. Plaintiffs sought an order that an
appropriate program be created for Karl, because no existing
appropriate educational facility had been found for him. The
BSEA issued an order the next day, January 29, requiring Lowell
to create a home-based program. The hearing officer also noted
an agreement by the parties that Mrs. Pihl would receive monies
due her from Lowell as a result of payments made pursuant to the
consent decree. The BSEA deferred decision on five issues,
including: whether service delivery pursuant to the consent
decree should be adjudicated inadequate and inappropriate; and
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3 The consent decree specifically stated that Mrs. Pihl did not,
by this agreement, admit that the interim services provided
pursuant to the decree were sufficient or adequate to fulfill
Lowell Public Schools' obligations under state and federal law.
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whether Karl was entitled to compensatory services for two years
following his 22nd birthday.
Two weeks later, the school district filed a motion for
reconsideration, indicating that it had found a residential
placement for Karl at the Brown School in Austin, Texas. The
same day, the plaintiffs filed this lawsuit, seeking to compel
the defendants to provide Karl with an appropriate education, in
accordance with the BSEA's January 29 decision. The BSEA granted
the motion for reconsideration, and, following a five day
hearing, ruled that the program proposed by defendants was an
appropriate placement for Karl, and ordered Lowell to prepare an
individualized educational program (IEP) for Karl reflecting this
placement.4
On May 11, 1987, plaintiffs filed an amended complaint
alleging causes of action under the Education of the Handicapped
Act (EHA), 20 U.S.C. 1401-1415, and parallel provisions of
Massachusetts law, Mass. Gen. L. Ch. 71B. They claimed that Karl
had never been provided with an appropriate IEP; that except for
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4 The IEP is a comprehensive written statement, developed jointly
by the child's parents, the school district, and, where
appropriate, the child, which outlines the child's special
educational needs, and the specially designed instruction and
services to be provided by the school system to meet those needs.
20 U.S.C. 1401 (a)(20); 34 C.F.R. 300.340, 300.344, 300.346;
603 Code Mass. Regs. 28.314.0, 28.322.0. The IEP must be
reviewed, and, where appropriate, revised, at least once a year,
in order to ensure that local agencies tailor the statutorily
required "free appropriate education" to each child's unique
needs. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C.
_____ ___
1413(a)(1,11), 1414(a)(5); 34 C.F.R. 300.343; Mass. Gen. L. Ch.
71B, 3.
-5-
a few weeks of intermittent tutorial services, he had been
without an IEP, or any education whatsoever, for at least two
years; and that the Brown School placement was inappropriate and
in violation of state law, because of its great distance from the
Pihls' home, its restrictive (hospital-based) nature, and the
fact that it was not approved by Massachusetts or Texas for
education of the deaf, due to the lack of properly certified
personnel. Plaintiffs sought a preliminary injunction requiring
Lowell to maintain interim services until resolution of the
dispute; an injunction against the Brown School placement that
would require the defendants to provide an appropriate education
in the least restrictive setting as close as possible to home; an
injunction requiring compensatory education; an order for payment
of out-of-pocket educational, legal, and expert expenses and
costs; and all other forms of relief that the court deemed just.
On May 18, 1987, the district court dismissed plaintiffs'
section 1983 claim, since plaintiffs' exclusive avenue for appeal
and relief was provided by the IDEA. Nearly six years later,5
on March 9, 1993, another district court judge allowed
defendants' second motion to dismiss. In a margin order, the
court stated that plaintiffs had failed to show "entitlement to
any relief this court could properly grant." The district court
did not elaborate on the reasons for its decision. It apparently
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5The case was initially set for trial on September 28, 1987, but
was postponed due to the withdrawal of plaintiffs' counsel.
Except for two pro se motions made by plaintiffs in 1987 and
1988, no further action was taken on this case until November
1991, when a magistrate judge convened a status conference.
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adopted, however, the defendants' position that plaintiffs'
complaint was moot because the challenged IEP had expired four
years earlier, and because Karl was beyond the age of entitlement
for special educational services under the IDEA.6
On this appeal, plaintiffs address only their claim for
compensatory education. They contend that, if Karl demonstrates
that defendants failed to provide him with appropriate
educational services during the challenged period, he is now
entitled to compensatory services, regardless of his age.
Although they acknowledge that the BSEA has not rendered final
decisions on the appropriateness of services provided during some
of the contested period, they argue that they should be excused
from the usual exhaustion requirement. Defendants continue to
argue that this case is moot, because the challenged IEP expired
over five years ago, and because Karl is beyond the age of
entitlement for services under the Act.
When evaluating a motion to dismiss under Rule 12(b)(6), we
take the well-pleaded facts as they appear in the complaint,
extending plaintiff every reasonable inference in his favor.
Coyne v. City of Somerville, 972 F.2d 440, 442-43 (1st Cir.
_____ ___________________
1992). We begin with a review of the statutory backdrop.
II. Discussion
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A. Statutory Framework
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6The court apparently gave some significance to the earlier
dismissal, noting that "defendants' earlier motion to dismiss . .
. was previously allowed on May 18, 1987." That decision,
however, had dismissed only the section 1983 claims.
-7-
The IDEA requires states, as a condition of accepting
federal financial assistance, to ensure a "free appropriate
public education" to all children with disabilities. 20 U.S.C.
1400(c), 1412(1). In Massachusetts, in accordance with the
state's responsibility under the Act, disabled children remain
eligible for special education services up to the age of twenty-
two, provided they have not yet attained a high school diploma or
its equivalent. Mass. Gen. Laws Ch. 71B, 1, 3.
The Act imposes extensive procedural requirements on
participating state and local agencies to safeguard a disabled
student's right to a free appropriate public education. 20
U.S.C. 1401(a)(20); 1412(2,4,5,7); 1415(a,b); Board of
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Education of Hendrick Hudson Central School District v. Rowley,
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458 U.S. 176, 182-84 (1982). These procedural safeguards
"guarantee parents both an opportunity for meaningful input into
all decisions affecting their child's education and the right to
seek review of any decisions they think inappropriate." Honig v.
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Doe, 484 U.S. 305, 311-12 (1987); see also Burlington School
___ ___ ____ __________________
Committee v. Mass. Dept. of Ed., 471 U.S. 359, 368 (1984).
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The IEP is the primary safeguard, Honig, 484 U.S. at 311;
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Burlington, 471 U.S. at 368; 20 U.S.C. 1401 (a)(20); 34 C.F.R.
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300.346 (1992); Mass. Gen. L. ch. 71B, 3, and parents have a
right to an "impartial due process hearing" to resolve any
complaints about a child's IEP. 20 U.S.C. 1415(b)(2). In
Massachusetts, this function is performed by the BSEA. Mass.
Gen. L. ch. 15, 1M (West Supp. 1993). The BSEA's decision is
-8-
reviewable in either state or federal court, which tribunal has
broad discretion to grant appropriate relief. 20 U.S.C. 1415
(e)(2); see Burlington, 471 U.S. at 369.
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We now proceed with a general discussion of the availability
of compensatory education under the IDEA. We next discuss the
availability of this type of relief following the statutory age
of entitlement.
B. Availability of compensatory education under the Act
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In this case, the Pihls claim that there was no appropriate
IEP for substantial periods of time, beginning from a time before
Karl's removal from the Lighthouse School in June 1985. They
contend that the Supreme Court's decision in Burlington School
_________________
Committee v. Mass. Dept. of Ed., 471 U.S. 359 (1984) establishes
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that a student who fails to receive appropriate services during
any time in which he is entitled to them may be awarded
compensation in the form of additional services at a later time.
Plaintiffs claim that Karl lacked an appropriate IEP, and thus
adequate educational services, beginning with the period before
his removal from the Lighthouse School in 1985, and through his
last school year of eligibility in 1987-1988. They claim that
even though he is beyond the statutory age of entitlement, Karl
is still entitled to future services to make up for the school
district's failure to provide adequate services in the past.7
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7Defendants devote most of their brief to arguing that this case
is moot, invoking cases suggesting that review is unavailable for
an expired IEP, except in special circumstances, such as when the
dispute over the development and/or rejection of the IEP is
likely to be repeated in the same form in the future. None of
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In Burlington, the Supreme Court held that courts' authority
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to grant relief under the Act "includes the power to order school
authorities to reimburse parents for their expenditures on
private school education for a child if the court ultimately
determines that such placement, rather than a proposed IEP, is
proper under the Act." 471 U.S. at 369. In the context of the
comprehensive, and often time-consuming, review process afforded
by the IDEA, this type of equitable relief helps to secure the
child's right to a free appropriate public education, as well as
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the parents' right to meaningful participation in the development
of a proper IEP, in accordance with the congressional intent to
provide relief that remedies deprivations of these rights. Id.
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at 370.
Courts of appeal in the Second, Third, Sixth, Eighth, and
Eleventh Circuits have extended the Supreme Court's rationale in
Burlington to support the award of compensatory education as
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"appropriate relief" under the Act. See Burr v. Ambach, 863 F.2d
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1071, 1078 (2d Cir. 1988), vacated and remanded sub nom. Sobol v.
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Burr, 492 U.S. 902 (1989), reaff'd on reconsideration, Burr v.
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Sobol, 888 F.2d 258 (1989); Lester H. v. Gilhool, 916 F.2d 865,
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these cases reject a claim for compensatory education that is
ripe for review, and they consequently are entirely inapposite in
this context. See, e.g., Straube v. Florida Union Free School
___ ____ _______ __________________________
Dist., 801 F. Supp. 1164 (S.D.N.Y. 1992) (noting the availability
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of compensatory education beyond a student's 21st birthday, and
awarding compensatory education after graduation from high
school, based on challenge to expired IEP). The issue here is
not how to modify an existing inadequate IEP, but whether a
student is entitled to services to compensate for a past
deficient program.
-10-
872-73 (3d Cir. 1990); Hall v. Knott County Bd. of Education, 941
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F.2d 402, 407 (6th Cir. 1991); Miener v. State of Missouri, 800
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F.2d 749, 753 (8th Cir. 1986); Jefferson County Bd. of Educ. v.
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Breen, 853 F.2d 853, 857-58 (11th Cir. 1988).8
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In likening compensatory education to the tuition
reimbursement allowed in Burlington, the Eighth Circuit reasoned
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that "imposing liability for compensatory educational services on
the defendants `merely requires [them] to belatedly pay expenses
that [they] should have paid all along.' Here, as in Burlington,
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recovery is necessary to secure the child's right to a free
appropriate public education." Miener, 800 F.2d at 753 (internal
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citations omitted). Sensitive to the Act's intent to provide
free, appropriate education to all children, the Miener court
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asserted the school district should not "escape liability for
[educational] services simply because [the parent] was unable to
provide them in the first instance . . . We are confident that
Congress did not intend the child's entitlement to a free
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education to turn upon her parent's ability to `front' its
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8The nature and extent of compensatory education services which
federal courts have recognized varies according to the facts and
circumstances of a given case. Such an award may include extra
assistance in the form of tutoring, see Hall v. Detroit Public
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Schools, 823 F. Supp. 1377 (E.D. Mich. 1993), or summer school,
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see Johnson v. Bismarck, 949 F.2d 1000 (8th Cir. 1991), while
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students are still within the age of entitlement for regular
services under the Act, or an extended period of assistance
beyond the statutory age of entitlement, see, Lester H., 916 F.2d
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at 873; Burr, 863 F.2d at 1078; Jefferson County Bd. of Ed., 853
____ ___________________________
F.2d at 857. In awarding compensatory education past the age of
entitlement, courts have directed the parties to take into
account the student's educational status and needs at the time
the relief takes effect. See Straube, 801 F. Supp. at 1181;
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Puffer v. Raynolds, 761 F. Supp. 838, 853 (D. Mass. 1988).
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costs." Id. Each of the other circuits adopting this view has
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explained its ruling in a similar fashion.
Although the First Circuit has not ruled explicitly whether
compensatory education is available under the Act, we have
assumed that it is. See Murphy v. Timberlane Regional School
___ ______ ___________________________
Dist., 973 F.2d 13, 16 (1st Cir. 1992) (citing cases)
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(recognizing that "every circuit which has addressed this issue
since . . . [Burlington] . . . has found that compensatory
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education is available under the Act."). With the issue now
squarely before us, we have no difficulty in joining those
circuits that have decided that compensatory education is
available to remedy past deprivations. For the reasons
articulated by those courts, and noted above, we are persuaded
that Burlington anticipates the availability of compensatory
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education under the IDEA. We therefore reject defendants'
suggestion that this case is moot simply because the time for
modifying the challenged IEPs has passed. If an IEP from a past
year is found to be deficient, the Act may require services at a
future time to compensate for what was lost.
C. Availability of Compensatory Education After Passing
_______________________________________________________
the Age of Entitlement
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Defendants argue that, notwithstanding a right to
compensatory education under the IDEA, Karl Pihl is ineligible
and this case is moot because Karl is now beyond the age of
entitlement for services under the Act. They rely on Honig, 484
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U.S. at 318, in which the Supreme Court held that an IDEA
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challenge to a policy allowing indefinite suspension of a
disabled student for violent and disruptive conduct stemming from
his disabilities was moot as to Doe, a 24-year-old man, since he
was "no longer entitled to the protections and benefits of the
[IDEA], which limits eligibility to disabled children between the
ages of 3 and 21." Because the Act did not cover him, the Court
held, there was no reasonable likelihood that Doe again would
suffer the challenged harm. He therefore had no right to
injunctive relief against such suspensions. Id.
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Defendants maintain that, like Doe, Karl Pihl is beyond the
age of entitlement and thus is ineligible for services under the
IDEA. And, like Doe, they claim, Pihl does not fall within the
exception to the mootness doctrine for conduct that is "capable
of repetition, yet evading review," see Honig, 484 U.S. at 318-23
___ _____
(discussing "capable of repetition, yet evading review" exception
to mootness), as he ceased to be eligible for educational
services under the IDEA in 1988, when he turned 22. Lowell has
not since been, nor ever will be again, required to negotiate an
IEP for Karl.
We find Honig inapplicable to a claim for compensatory
_____
education. The Act requires a state to provide a "free
appropriate education" to every disabled child, and empowers
district courts to provide a remedy for individual handicapped
children who are deprived of that right. 20 U.S.C. 1400(c),
1412(1), 1415(e). The crucial difference between Honig and this
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case is the nature of the relief requested. In Honig, Doe was
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asking the court to make the school district comply with the Act
in the future. But, because Doe was beyond the age of
entitlement for services, he had no right to demand that the
school district comply with the Act either presently or in the
future. By contrast, Karl Pihl is asking only that the court
compensate him for rights that he claims the school district
denied him in the past. See Lester H., 916 at F.2d at 872.
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This past term, the Supreme Court implicitly recognized this
distinction in Zobrest v. Catalina Foothills School District, 113
_______ __________________________________
S. Ct. 2464, 246?, n.3 (1993). In Zobrest, the Court found that
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a student's claim under the IDEA for reimbursement for services
presented a live controversy, notwithstanding the fact that he
had graduated from high school, and therefore was no longer
eligible for services under the Act. Even before Zobrest, a
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number of circuits had held that a student who was deprived of
services to which he was entitled under the IDEA has a right to a
remedy, in the form of compensatory education, regardless of his
eligibility for current or future services under the Act. See
___
Burr, 863 F.2d at 1078; Lester H., 916 F.2d at 873; Jefferson
____ _________ _________
County Bd. of Ed., 853 F.2d at 857.
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Common sense commands such a conclusion. In order to give
meaning to a disabled student's right to an education between the
ages of three and twenty-one, compensatory education must be
available beyond a student's twenty-first birthday. Otherwise,
school districts simply could stop providing required services to
older teenagers, relying on the Act's time-consuming review
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process to protect them from further obligations. Although
students able to front the costs of an appropriate education
later could claim reimbursement under Burlington and Zobrest,
__________ _______
absent a compensatory education award, courts would be powerless
to aid intended beneficiaries who were over twenty-one but who
had not sought out an alternative educational program. See
___
Lester H., 916 F.2d at 872; Burr, 863 F.2d at 1078. We cannot
_________ ____
believe that Congress, in establishing a disabled student's right
to public education, would allow a school district to suspend the
educational rights of such disabled eighteen- or nineteen-year-
olds without a remedy. See id. In addition, as the Eighth
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Circuit has noted, compensatory education is consistent with
Congress' intent to channel available resources to activities and
programs that benefit disabled students. See Miener, 800 F.2d at
___ ______
753, citing Smith v. Robinson, 468 U.S. 992, 1020 (1984),9
______ _____ ________
quoting 121 Cong. Rec. 19501 (1975).
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Thus, if Karl Pihl can prove that the school district denied
him his right to an appropriate education under the IDEA during
the challenged period, he could claim relief in the form of
compensatory education, notwithstanding the fact that he is now
twenty-seven years old.
III. Exhaustion of administrative remedies
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9The 1986 amendments to the IDEA superseded Smith by allowing
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pursuit of federal statutory rights and remedies outside the
IDEA, see Handicapped Children's Protection Act of 1986, P.L. 99-
___
372 3, 100 Stat. 796 (1986), but they support the congressional
language quoted in Smith.
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There is no question that the IEP ordered for the 1987-1988
school year is ripe for judicial review, because the BSEA issued
a final decision upholding the Brown School placement.
Defendants maintain, however, that plaintiffs failed to raise
their claim for compensatory education for the period before June
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1987-June 1988 at the administrative level, and that this failure
bars the court from hearing that portion of the claim. See David
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D. v. Dartmouth School Committee, 775 F.2d 411, 424 (1st Cir.
__ ___________________________
1985) (since the District Court's role in an IDEA case is to
provide something short of a trial de novo, issues first must be
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presented to the administrative hearing officer to be preserved
for judicial review).
Our review of the record supports plaintiffs' contrary
contention that they in fact raised this issue in a timely manner
before the administrative agency. In its January 29, 1987 order,
the BSEA explicitly deferred decision on five specific matters,
including "[w]hether service delivery pursuant to the Consent
Decree should be adjudicated inadequate and inappropriate," and
"[w]hether Karl is entitled to compensatory services for two
years following his 22nd birthday." Therefore, it is not
automatically barred from consideration. The BSEA, however,
never made a final determination on the pre-1987 time period, and
the rules regarding exhaustion of administrative remedies may
constrain the district court's evaluation of the services
provided during that time.
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While parties ordinarily must exhaust administrative
remedies under the IDEA before initiating court action, in
certain cases, they may bypass the administrative process to seek
judicial relief. See Honig, 484 U.S. at 326-27; Smith v.
___ _____ _____
Robinson, 468 U.S. 992, 1014 n.17 (1984); Christopher W. v.
________ ______________
Portsmouth School Committee, 877 F.2d 1089, 1094 (1st Cir. 1989);
___________________________
Ezratty v. Commonwealth of Puerto Rico, 648 F.2d 770, 774-75 (1st
_______ ___________________________
Cir. 1981). Exhaustion may not be required where the pursuit of
administrative remedies would be futile or inadequate; waste
resources, and work severe or irreparable harm on the litigant;
or when the issues raised involve purely legal questions. See
___
id.10 We have also noted that exhaustion is not normally
__
required where the agency has prevented the litigant from
pursuing her claim at the administrative level. Ezratty, 648
_______
F.2d at 775.
Plaintiffs, in effect, claim to fall within this last
exception, arguing that any failure to exhaust administrative
____________________
10The legislative history of the IDEA supports the view that
exhaustion is not a rigid requirement. During the debate on the
Senate Conference Report, Senator Williams, the Act's principal
author, stated that "exhaustion of the administrative procedures
established under this part should not be required for any
individual complainant filing a judicial action in cases where
such exhaustion would be futile either as a legal or practical
matter." 121 Cong. Rec. 37416 (1975), quoted in Ezratty, 648
_________ _______
F.2d at 774. Similarly, the House Report for the 1986 amendments
recited permissible exceptions to the exhaustion requirement,
including where using administrative procedures would be futile;
where an agency's policy or practice is contrary to law; and
where it is improbable that adequate relief can be obtained by
pursuing administrative remedies (e.g., the hearing officer lacks
the authority to grant the relief sought). H.R. Rep. No. 296,
99th Cong., 1st Sess. 7 (1985), quoted in Christopher W., 877
__________ _______________
F.2d at 1094.
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remedies with respect to the issue of compensatory education
prior to the Brown School placement is due to the BSEA's error or
intransigence. It is not clear, however, that the agency bears
sole responsibility for this failure. The record does support
plaintiffs' claim that once the hearing officer had reserved the
issue of Karl Pihl's entitlement to compensatory education, she
never returned to it. However, in evaluating BSEA's failure to
address this issue, plaintiffs' own actions should also be
considered. See, e.g., Plaintiffs' letter accompanying motion in
___ ____
opposition to reconsideration, dated February 17, 1987 (waiving
any determination by the BSEA at this time regarding questions
other than those relative to Karl Pihl's current appropriate
educational placement); see also supra at 6, n. 5. Moreover, it
___ ____ _____
is open to question whether plaintiffs could have sought an order
from the court requiring the BSEA to convene in order to resolve
the issue of plaintiffs' entitlement to compensatory education
for the earlier period. See Ezratty, 648 F.2d at 777 n.7.
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We believe the exhaustion issue is more appropriately
resolved by the district court, which already will be considering
the 1987-1988 IEP. We note, however, that our preliminary review
suggests that the factual record regarding Karl Pihl's
educational placement during the two years prior to the Brown
School IEP is substantially developed, and the court may not need
the "peculiar expertise of an administrative hearing officer,"
see Lester H., 916 F.2d at 425, to aid in its determination of
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this claim. Moreover, the Act empowers courts sitting in review
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of administrative complaints to supplement the hearing record
with additional evidence at trial. See 20 U.S.C. 1415(e)(2);
___
Roland M. v. Concord School Committee, 910 F.2d 983 (1st Cir.
_________ _________________________
1990) (describing the thorough, yet deferential, district court
review of administrative determinations under the Act); Town of
_______
Burlington v. Dept. of Educ., Comm. of Mass., 736 F.2d 773, 790
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(1st Cir.) (same), aff'd, 471 U.S. 359 (1984); see also Rowley,
_____ ___ ____ ______
458 U.S. at 205. The court also may conclude that any further
delay in this already protracted litigation would serve no
purpose.
Reversed and remanded for further proceedings consistent with
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this opinion.
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