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Lester H. v. Gilhool

argued: July 12, 1990.

LESTER H., A MINOR, WHO SUES BY HIS MOTHER AND NEXT FRIEND, OCTAVIA P., AND OCTAVIA P., ON HER OWN BEHALF
v.
THOMAS K. GILHOOL, SECRETARY OF EDUCATION, COMMONWEALTH OF PENNSYLVANIA AND THE CHESTER UPLAND SCHOOL DISTRICT. CHESTER UPLAND SCHOOL DISTRICT, APPELLANT



Appeal from the United State District Court for the Eastern District of Pennsylvania; D.C. Civil Action No. 86-6852.

Becker, Hutchinson, and Nygaard, Circuit Judges.

Author: Nygaard

Opinion OF THE COURT

NYGAARD, Circuit Judge

In this declaratory judgment action brought pursuant to the Education of the Handicapped Act ("EHA"), 20 U.S.C. §§ 1401-1415, as amended, Education for All Handicapped Children Act of 1975, Pub.L. No. 94-142, and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1973), the district court awarded the plaintiff, Lester H., two and one half years of compensatory education beyond age 21, the statutory maximum specified in the EHA. App. at 31; 20 U.S.C. § 1412(2)(B). The Chester Upland School District ("School District") appealed.*fn1 We will affirm.

I.

The plaintiff, Lester H., is a profoundly retarded twelve-year-old with severe behavioral problems. Lester began his education within the School District in the fall of 1983. But even before Lester entered school, the District Director of Special Education determined that the School District could not provide an appropriate special education program for him. Parties' Stipulations ("Stipulations") at para. 13, app. at 37. The School District, Lester's mother and the Delaware County Intermediate Unit ("IU") agreed that Lester should be placed at the Summit School, a special education day-facility, for that academic year. Stipulations at para. 14, app. at 37. Octavia P., Lester's mother, signed a Notice of Recommended Assignment ("NORA") consenting to the Summit School placement. He remained at Summit throughout the year and progressed with his Individualized Education Program ("IEP"). Stipulations at para. 17, app. at 38.

The next fall, Lester's behavior deteriorated significantly. In October 1984, the Director, Summit officials and Lester's teacher concluded that Summit could no longer provide an appropriate education for Lester and they recommended that he be placed in a residential program. Stipulations at paras. 21, 28-9, app. at 39, 41-42. Nevertheless, Lester remained at Summit during the 1984-85 school year because the School District limited its efforts to place him to only one approved school, the Elwyn Institute, and one unapproved school, the Don Guanella School. Both schools rejected him. Stipulations at paras. 38, 40, app. at 43-44. Lester was finally removed from Summit in August, 1985. Lester's mother signed a NORA consenting to in-home instruction while her child awaited appropriate residential placement. Stipulations at paras. 48, 51, app. at 45. The School District then developed an in-home IEP for the 1985-86 academic year which provided Lester with only five hours of instruction per week. This IEP began on November 11, 1985 and, with revisions, continued until late June, 1986. Stipulations at para. 54, app. at 46; para. 64, app. at 47.

For the majority of Lester's home-bound instruction period, the School District did not request residential placement for him. In April, 1986, the School District applied to the Devereux Foundation and the Wordsworth Academy. Both schools rejected Lester. Finally, after prodding by Lester's counsel and the Pennsylvania Department of Education ("DoE"), the School District re-applied to Elwyn. Lester was admitted to Elwyn's Extended School Year day program in June, 1986 and his mother signed a NORA consenting to this placement. Stipulations at paras. 59-64, app. at 47. He lasted only 34 days at Elwyn and was returned to in-home instruction. Stipulations at para. 67, app. at 48.

During August and September, 1986, the School District applied to four schools. All four schools rejected Lester. Stipulations at paras. 69-72, app. at 48-49. Lester's counsel then petitioned the Chief of the Bureau of Special Education of the DoE requesting that he assist in locating an appropriate special education program for Lester. Stipulations at para. 73, app. at 49. In response DoE required the School District to provide it with a status report and suggested that the Director apply to the AuClair School, an out-of-state facility located in Bear, Delaware. Stipulations at paras. 75-6, app. at 50.*fn2 Lester was admitted and has attended AuClair since January 21, 1987, and is making slow but satisfactory progress.

The EHA requires the School District to provide an appropriate education for Lester until he reaches age 21. The foundation of this case is that, for 2 1/2 years, the School District failed to do so. See generally 20 U.S.C. § 1412; App. at 29. Before the School District placed Lester at AuClair, Octavia P., on behalf of her son, filed this declaratory judgment action against the Commonwealth of Pennsylvania, Secretary of Education and the School District, seeking a declaration that Lester's right to a free appropriate education had been compromised and that he was entitled to appropriate education services for 2-1/2 years beyond age 21 as compensation "for the period during which he was denied appropriate services." App. at 15.

Lester moved for a preliminary injunction requiring that he be immediately placed in a residential special education program. The motion was denied as moot when AuClair admitted Lester.*fn3 App. at 2. The district court held a trial on the remaining issue in the spring of 1988 and entered a declaratory judgment order on November 9, 1989, awarding Lester 2 1/2 years of compensatory education to extend beyond age 21. App. at 6. On appeal, the School District claims that: (1) this case is not ripe for judicial relief; (2) Lester failed to exhaust administrative remedies provided him by the EHA; (3) eleventh amendment sovereign immunity bars Lester's action against the School District; and (4) compensatory education is not an available EHA remedy.

II.

The district court held that "this case is ripe and otherwise justiciable." App. at 30. Our review of the ripeness decision is plenary. Felmeister v. Office of Attorney Ethics, 856 F.2d 529, 535 n.8 (3d Cir. 1988). "Ripeness turns on 'the fitness of the issues for judicial decision' and 'the hardship to the parties of withholding court consideration.'" Pacific Gas & Elec. Co. v. State Energy Resources Conserv. & Devel. Comm'n, 461 U.S. 190, 201, 103 S. Ct. 1713, 1720, 75 L. Ed. 2d 752 (1983) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S. Ct. 1507, 1515, 18 L. Ed. 2d 681 (1967), overruled on other ...


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