Timms v. Metropolitan School District

CUDAHY, Circuit Judge,

dissenting.

I must respectfully part company from the majority with respect to one premise: that compensatory education clearly constitutes a form of damages. The majority believes that the two are identical, because it would be “punitive to require school officials to spend funds providing additional education for students whose IEP was found erroneous.” At 1213. But I do not believe this observation is determinative— or even, perhaps, relevant. Whether a remedy is or is not punitive does not determine whether it constitutes prospective relief (in the nature of an injunction), on the one hand, or retrospective relief (like damages), on the other. The remedy which the plaintiffs here seek is an extension of the education given by the state of Indiana to their daughter. Such a remedy is entirely prospective and thus well within the equitable powers of the court.

This question is not governed, as are other issues in this case, by Anderson v. Thompson, 658 F.2d 1205 (7th Cir.1981), which concerned a tuition reimbursement for past educational placement. The Eighth Circuit, in an opinion upon which the majority relies, has found that compensatory services are indistinguishable from a request for reimbursement because both are “measurable against past educational deprivation.” Miener v. Missouri, 673 F.2d 969, 982 (8th Cir.1982). This observation may be correct, but it should not be dispositive. Although the Supreme Court has never addressed the issue in a context identical to the one at hand, Milliken v. Bradley II, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977), offers an instructive parallel. Defending the court order of remedial (or compensatory) programs in the Detroit public schools against an attack on Eleventh Amendment grounds (the usual context in which the prospective-retrospective dichotomy arises), the Court held:

That the programs are also “compensatory” in nature does not change the fact that they are part of a plan that operates prospectively to bring about the delayed benefits of a unitary school system. We therefore hold that such prospective relief is not barred by the Eleventh Amendment.

433 U.S. at 290, 97 S.Ct. at 2762 (emphasis in original). Two district courts, moreover, have come to similar conclusions in cases similar or closely analogous to the one before us. In Campbell v. Talladega County Board of Education, 518 F.Supp. 47 (N.D. Ala.1981), the court ordered the state to provide a severely retarded 18-year-old with education beyond the period usually provided, saying that:

while the court recognizes that no education can adequately compensate Joseph for past deprivations, under an appropriate IEP significant progress is still possible. Accordingly, defendants will be ordered to provide Joseph with a free and appropriate public education for two years past his 21st birthday.

518 F.Supp. at 56. At the same time it ordered compensatory education, the Campbell court also specifically refused to award any damages. Likewise, in a case under the Developmentally Disabled Assistance and Bill of Rights Act, the District Court for the District of South Dakota ordered funding of what was essentially compensatory education in the face of an Eleventh Amendment challenge. Henkin v. South Dakota Dep’t of Social Services, 498 F.Supp. 659, 667-68 (D.S.D.1980), vacated on other grounds, 676 F.2d 703 (1981).

Such an assumption, that prospective relief is always within the equitable powers of the federal court, is reflected, as well, by a recent opinion of this court under the EAH-CA, Brookhart v. Illinois State Board of *219Education, 697 F.2d 179 (7th Cir.1983), in which the court said:

... in theory, the proper remedy for a violation of this kind is to require it [the School District] to provide free, remedial, special education classes....

697 F.2d at 188. Although the panel ultimately decided that the remedy it deemed most appropriate in theory was impractical in a case where the high school student plaintiffs had already been out of school more than two years and were presumably disinclined to return, the court’s assumption that such an order — of essentially remedial or compensatory education — was an entirely proper , one under the Education for All Handicapped Children Act. Since I believe that the district court has authority to grant such prospective relief in a proper case (conceivably but not necessarily that of Sarah Timms), I do not agree that this case is moot.

I therefore respectfully dissent.