DELLMUTH v. MUTH

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ORAL ARGUMENT OF MARIA PARISI-VICKERS ON BEHALF OF PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument next in No. 87-1855, Thomas K. Gilhool versus Russell A. Muth.

You may proceed whenever you're ready.

Maria Parisi-vickers: This case is here on petition for certiorari to the United States Court of Appeals for the Third Circuit.

The cases arises in the context of the Education for All Handicapped Children Act of 1975.

It is our contention that the court below has misunderstood that statute when it held, first, that it abrogates the Eleventh Amendment immunity of the states from suit in federal court, and, second, that Pennsylvania Secretary of Education, the Petitioner here, is precluded from reviewing administrative appeals.

Turning to the first issue, we believe that Congress has not abrogated the state's constitutional immunity.

In Atascadero v. Scanlon this Court reaffirmed the concept that abrogation of Eleventh Amendment immunity involves a fundamental shift in the constitutional balance between the states and the federal government as well as an expansion of federal constitutional power of the federal courts.

Consequently, the court has held that abrogation of immunity will not be found unless Congressional intent to subject suits to... subject states to federal court suits is unmistakably clear.

This clear statement rule has two fundamental and important reasons.

First of all, it is intended to provide notice to the states who, as in the EHA, have voluntarily agreed to participate in a program to provide equal education to handicapped children.

Secondly, it makes certain that Congress considers directly the problems and issues which would arise if states are subjected to suit in federal court and, therefore, lessens the chance that Congress will act in haste or without giving consideration to the constitutional balance which it will be affecting with its actions.

It is our position that this notice, which is required, especially to the states, has not been given to the 50 states who since 1975 have joined in this Federal Government partnership to provide appropriate education for every handicapped child in America.

The court of appeals in its opinion struggled to find this clear abrogation language and in doing so it pointed to the preamble of the statute found at Section 140C(b)(9) which speaks in terms of the Federal Government's intent to assist the states in providing federal funds so that equal education can be achieved for handicapped children.

That is at page 6 of our petition for cert.--

It also points to section 1415(e)(2)... page 11 of our petition for cert... where the... there is a provision for a hearing, a due process hearing, to the party aggrieved in the administrative hearing process, and a party so aggrieved will have the right to bring an action in federal court.

The last basis on which the court of appeals stands is section 1415(e)(4)(G) which is the 1986 amendment to the Act, and it provides for attorney's fees.

Looking at these provisions, it is absolutely clear that there is no indication at all that states were to be made liable to private parties under the EHA.

No state liability to private parties is mentioned.

The abrogation of the state's immunity is nowhere mentioned.

The Eleventh Amendment is nowhere mentioned.

Unidentified Justice: Well, now, the attorney on the other side says that the Rehabilitation Act Amendments of 1986 make clear that this Act is covered at least after 1986.

Would you agree with that?

Maria Parisi-vickers: Not at all, Justice O'Connor, for two reasons.

The first reason is dispositive.

And that is that that amendment is effective for violations occurring after--

Unidentified Justice: Yes.

That's why I ask you about after 1986.

Maria Parisi-vickers: --After October 21, 1986 and, therefore, it has nothing to do with this particular case where the violations occurred long before that.

Secondly, as we discussed in our brief, the EHA is not an antidiscrimination statute.

Unidentified Justice: Well, it could be viewed as that, couldn't it?

Maria Parisi-vickers: Certainly.

Any time Congress enacts a law which will provide equal distribution of benefits, it could be deemed to be an antidiscrimination statute.

However, these are... there are specific statues, those enumerated, and there are other statutes which specifically are designed to eliminate discrimination in particular areas.

There are entitlement statues usually.

Unidentified Justice: Well, this was designed to eliminate discrimination against handicapped children in schools perhaps.

Maria Parisi-vickers: Well, this is actually... you could view this as a discrimination statute because it focuses particularly on one group and gives them benefits which other children may not be entitled to, or other groups may not be entitled to.

For those reasons, we believe that it's not a statute which can be lumped into the category of antidiscrimination statute, and, therefore, the Rehabilitation Act Amendments does not apply, both on the merits and as to the applicable date.

Unidentified Justice: Now, suppose we were to agree with you, that at least as to the claims that arose before 1986 that there is an Eleventh Amendment bar here.

You raise a second question dealing with the authority of the Secretary?

Maria Parisi-vickers: That is correct.

Unidentified Justice: But you did not challenge the lower court's ruling that lack of finality and delay caused by the remand violated federal regulations, did you?

That's not challenged?

Maria Parisi-vickers: That is not.

And, Justice O'Connor, we address that concern in a footnote in our brief where we pointed out that there is a decision of the Third Circuit.

The Third Circuit affirmed on all counts the district court's opinion except--

Unidentified Justice: Well, what--

Maria Parisi-vickers: --for the attorney's fees.

Unidentified Justice: --Well, what that means is that the Third Circuit's judgment with respect to the Tuition Reimbursement Board award would stand regardless of what we do on the Eleventh Amendment question.

Maria Parisi-vickers: That is not so because there is an attorney's fee award which depends on the number of claims which Mr. Muth would be successful on.

So that that--

Unidentified Justice: Well, it would stand at least insofar as the tuition reimbursement is concerned.

Maria Parisi-vickers: --As to the amount... assuming that the Eleventh Amendment to be--

Unidentified Justice: It certainly stands as against the school district.

So, how do we ever get to the second question about the Secretary?

I'm not sure we can.

Maria Parisi-vickers: --Well, Justice O'Connor, we do have an order of the Third... of the district court which was appealed to the Third Circuit on the issue of attorney's fees.

And that has been remanded.

The attorney's fees issue was improperly decided by the district court and there is a remand on that.

And, therefore, in deciding the issue of the Secretary we will now be able to know whether or not the Commonwealth has prevailed on one or two issues, and that affects the attorney's fees determination.

Going back to the examination of the statute, this court has long since held, at least since 1973, that merely because states have been included among a class of actors is not enough to strip them of their sovereign prerogative of immunity from suit.

And an award of attorney's fees in an amendment such as the 1986 Amendment to the EHA is not sufficient either.

In addition, the Third Circuit used the language of the statute regarding the ability of the federal courts to grant appropriate relief under this Act to find further support for its position that the appropriate relief should be tuition reimbursement.

We note parenthetically that it took a decision of this Court in Burlington to determine that tuition was an... tuition reimbursement was an appropriate relief at all against a school district.

And in that case there was no Eleventh Amendment protection.

We suggest that the power of the federal courts in fashioning appropriate relief is constrained by Eleventh Amendment jurisprudence, and that the barrier of sovereign immunity was not removed by the EHA.

And the reason that it was not removed is that Congress did not need to do so.

It could achieve the purposes of the EHA by providing other remedies, remedies which it included in the statute and which are available to children and parents.

Primary among those remedies is the fact that parents, together with their children, participate fully at every stage of the formulation and implementation of the individualized program of education for a child.

If they're unhappy with that program of education, they can appeal the decision of the school district to an administrative hearing.

If they're unhappy with that, there is a judicial remedy... a judicial review in the courts.

Now, once in the courts there is a judicial remedy at least against the school districts.

And in the overwhelming number of cases the tuition reimbursement remedy will be available to litigants because the school districts are the ones which are usually the entitles which formulate the IEP and are in dispute with the parent.

Therefore, in the overwhelming number of cases there will be a tuition reimbursement under the Act.

Moreover, if there is an ongoing violation of federal law, state of official can be enjoined.

So, there is injunctive relief at that level.

Unidentified Justice: Counsel, could I... maybe I'm coming back to the same question that Justice O'Connor asked, but I hadn't understood, or, it wasn't clear from your brief, whether if we find for you on Point 1 in your brief, you also expect us to go on to Point 2?

Maria Parisi-vickers: That is correct, Justice Scalla.

And--

Unidentified Justice: Although... was there any relief granted below other than money damages?

Maria Parisi-vickers: --No.

It was just money damages and the attorney's fees.

Unidentified Justice: And attorney's fees?

Maria Parisi-vickers: That's correct.

Unidentified Justice: The validity of which would depend upon the validity of the money damages?

Maria Parisi-vickers: The validity of which would depend in--

Unidentified Justice: Well, if you had no... right?

if you couldn't get... if you couldn't... if you couldn't get money damages, you couldn't... you couldn't get attorney's fees I assume.

Maria Parisi-vickers: --Conceivably there could be attorney's fees for the violations... the procedural violations and the claim which plaintiff did prevail.

Unidentified Justice: No, but plaintiff would lose.

I mean, if the only thing at issue was money damages and you say,

"No, Plaintiff, you can't get money damages. "

therefore you lose, you couldn't then go on and say,

"But I'm going to give you attorney's fees. "

could you--

Maria Parisi-vickers: If the court found that the money damages... money damage award is barred because of the Eleventh Amendment bar--

Unidentified Justice: --Right.

Maria Parisi-vickers: --it is conceivable that it could find an ongoing violation.

There is no declaratory relief granted in this case.

Unidentified Justice: Was it asked for?

Maria Parisi-vickers: I believe it was, but it was not granted.

Unidentified Justice: Well, it looks to me like if we--

Maria Parisi-vickers: All of the remedies I mentioned are further buttressed by the one remaining remedy, which is it money damages are going to be effective against the state, then certainly this remedy is the most effective one of all.

And that is, the financial sanctions which the United States Secretary of Education can impose on the states if they do not comply with the state plans and with the regulations and statute of the EHA.

And that sanction is found at 16... at Section 1416.

However, the goals of the statute must... to be realized must in the end rely on the good will of the state and or the fact that the states have agreed to voluntarily participate in this program.

They have chosen to join with Congress in participating.

And their participation is a substantial commitment.

In fact, the states are not getting a free ride here if they are not found to be amenable to suit in federal court for money damages by an individual who has gone through the process, as Mr. Muth has, because the states are... the entitles which provide most of the funding for education, and traditionally it has been so and I think this Court can take judicial notice of that fact.

I would like to conclude by simply stating that just as the Congress abrogated the immunity of the states in the Rehabilitation Act Amendment of 1986, it could have done so just as easily when it amended the EHA to add on attorney's fees.

Congress knows how to abrogate the Eleventh Amendment in unmistakably clear language and it was simply not done so here--

The teachings of this Court have told us that in addressing an area as vital to our system of government as the states' Immunity, the Constitution requires certainty.

Not inferences, not speculation.

And I think that that is what the Third Circuit has engaged in in arriving at its holding.

Congress must indicate in unequivocable terms in the statute that it has considered deliberately a goal that it sets for itself, that this goal so transcends the constitutional balance between the Federal Government and the states that it must be shifted in some fashion.

There is no evidence here whatsoever that the shift has occurred in the enactment of the EHA.

Therefore, the court of appeals' attempt to expand its jurisdiction with that Congressional authority should be rebutted.

Unidentified Justice: --May I just ask one question?

Do you concede that the Education for All Handicapped Children Act is a statute with respect to which Congress could abrogate the states' Eleventh Amendment immunity?

Maria Parisi-vickers: Yes, Justice Stevens.

Unidentified Justice: And that's because it's a statute that the Congress has special power under the Fourteenth Amendment to deal with?

Maria Parisi-vickers: That's correct.

Unidentified Justice: And is that because it's an antidiscrimination statute?

Maria Parisi-vickers: No.

Because it's a statute passed pursuant to the Fourteenth Amendment.

However, not all statutes under the Fourteenth Amendment are antidiscrimination statutes.

Unidentified Justice: What part of the Fourteenth Amendment authorized this statute?

Maria Parisi-vickers: Section 2... Excuse me, Section 5 of the Fourteenth Amendment.

It is... As I mentioned, Justice Stevens, any statute where government is distributing benefits and attempting to do so in a rational fashion... any statute can be deemed to be a statute which... in fact, we hope that all statutes enacted by legislatures will encourage and have as their goal the equal protection of the rights of all citizens.

However, I believe that the antidiscrimination statutes are peculiar statutes which are addressing a particular evil in our society and they require... they do not require the type of affirmative action which is being... which is found in the EHA.

But they require distribution in an equitable fashion of funds that the Federal Government is giving to the states.

I think they're just different statutes.

Unidentified Justice: Well, a statute simply outlawing discrimination against handicapped would not have brought in its wake all of the procedural provisions and so forth of the EHA, which really requires special treatment of the handicapped, doesn't it?

Maria Parisi-vickers: That's correct, Mr. Chief Justice.

And I tried to say that by saying... when I said that in fact the EHA is a discriminatory statute in favor of the handicapped because it provides so many more procedures than what students would be entitled under the Equal Protection Clause.

Unidentified Justice: Then I don't understand why you say, or, why it's so evident to you that Congress can eliminate states' sovereign immunity under the Fourteenth Amendment.

I mean, the point is you can't have it both ways.

This is either a statute aimed at discrimination, in which case you can eliminate states' sovereign immunity under the Fourteenth Amendment.

Maria Parisi-vickers: You can, but the Congress did not do so.

We did not say that--

Unidentified Justice: Oh, I understand that.

But... but Justice Stevens asked you whether you conceded that Congress could eliminate.

Maria Parisi-vickers: --It could.

It has the power to do so.

Unidentified Justice: Why?

Well, I'm just reiterating what Justice Stevens said and I haven't heard a good answer to it.

You tell us, on the one hand, that it's not a discrimination statute.

But you say, on the other hand, that it is.

Because there is no Fourteenth Amendment power unless it's directed at discrimination.

Maria Parisi-vickers: All right.

Well, I think it's... it's a distinction which is not... comes more from the appellations given to the group of statutes, rather than a fundamental difference.

There are statutes which are, for example, Age Discrimination in Employment Statutes, Discrimination in Housing.

There's particular statutes which give... do much... do less than the EHA does.

The EHA is an affirmative program which goes such out of its way... it comes more than simply establish equality in... it has much greater goals than that.

That's the best I can do, Mr.... Justice--

Unidentified Justice: Are you saying there are certain statutes that are designed to alleviate the injuries that have been caused by discrimination, but you don't call those antidiscrimination statutes?

Maria Parisi-vickers: --The--

Unidentified Justice: I Think he's trying to help you.

I--

[Laughter]

I'd take that one and go with it.

[Laughter]

Maria Parisi-vickers: --The difficulty... the difficulty, I think it's one of nomenclature and not substance.

I think that the antidiscrimination statutes have the same goal as the EHA, which is to promote equal access of opportunities for children.

I would like to turn to the second issue on which certiorari has been granted, and that is whether the EHA precludes Pennsylvania Secretary of Education from reviewing the educational due process hearings.

We will agree with the court of appeals that the review procedures require the same degree of impartiality as the initial hearing.

And, consequently, in the words of the statute at 1415(b)(2), page 8 of our main brief,

"No hearing shall be conducted by an employee of such agency or unit involved in the education or care of the child. "

This is the standard of impartiality which--

Unidentified Justice: Well, the language of 1415(b) and 1415(c) are different.

Isn't that right?

1415(c) governing appeals does not explicitly state--

Maria Parisi-vickers: --That's correct.

Unidentified Justice: --that employees of the state agency may not serve as review officers.

Maria Parisi-vickers: That's correct.

Unidentified Justice: It doesn't say that.

The language is different.

Maria Parisi-vickers: That's is correct.

For purposes of this argument, we have conceded that the interpretation of the Department... U.S. Department of Education, that the level of impartiality shall be the same as what we will adopt.

What we do not agree, however, is that the Department... Pennsylvania's Department of Education is such an agency or unit involved in the education or care of the child because the Department is, in Pennsylvania, is charged with the generalized supervision of education over 501 school districts... it is the school districts which actually teach the approximately 1.8 million children in Pennsylvania, 271,00 of whom are special education children.

The Department is supervising.

It's not actually teaching.

It is not actually promulgating the IEP or not getting into disputes with parents over the individual placement of a child.

It is the responsibility of the Department to enforce the regulations promulgated by the Board of Education to approve curriculum, to establish standards, to approve school district plans for special education and distribution of state and federal funds in accordance with those plans.

The Department does not have hands-on teaching responsibilities for the child, and the statute... the language of the statute says education of the child.

That language arises in the context of an IEP dispute, dispute for individual placement of a child.

Therefore, it's certainly common sense to conclude that the Department is not involved to the extent that the statute requires.

And, therefore, the Secretary, who is the head of that agency, would be a suitable review officer.

Theoretically, of course, the Department is involves in the care of every child... education and care of every child in Pennsylvania.

But the Department is not a party to these disputes.

It is the school district which is involved with the parent.

From a common sense approach, If we asked the parent who is involved in the care of your child, you're going to hear that it's a teacher or a principal, perhaps the school district.

Neither common sense nor traditional concepts of administrative law preclude the Department from reviewing these administrative appeals.

In fact, in the EHA the Department of Education is the pivotal player answering to the Federal Government in its supervision of the state plan as it is implemented by the school districts.

And, therefore, it has responsibility both to the Federal Government and supervisory responsibilities over the school districts.

The Secretary of Education in Pennsylvania has the same powers of financial sanctions over the school districts for failure to comply with state plans, than the United States Secretary of Education has over the state.

Certainly, we cannot conclude from this statutory framework that the Secretary of Education in Pennsylvania and the school districts will be on the same side or have any particular sympathy for each other when it comes to deciding an individual child's placement.

Moreover, the participation of the Secretary is salutary for the goals of the EHA.

When the Secretary of Education participates in the review process, he learns how the policies which he may have implemented, the regulations promulgated by the Department, the Board of Education... how they actually affect an individual case.

And so he can learn.

If a policy is challenged, even if it's a policy that he himself makes... has made... this is an opportunity for him to rethink, reexamine the challenge and come to an appropriate decision.

We submit that the Secretary of Education, bound as he is to observe the law, and as explained by this Court and by the courts of the state, will not ignore those laws.

We urge, therefore, for this Court to find that the Secretary is an impartial decision maker because the agency which he heads is not involved in the education and care of the child.

And, moreover, because clearly as a constitutional officer appointed by the governor he is not an employee of the agency.

Thank you very much.

Chief Justice William H. Rehnquist: Thank you, Ms. Parisi-Vickers.

Ms. Field, we'll hear from you.

ORAL ARGUMENT OF MARTHA A. FIELD ON BEHALF OF RESPONDENTS

Mr. Field: Mr. Chief Justice, and may it please the Court:

We don't think you need to reach the partiality issue in this case, and for that reason I think I'm going to put off talking about it until the end of my argument.

Just to say why I don't think you need to reach it, as Justice O'Connor said, the remand violation which is established is sufficient to support the reimbursement.

And I really don't think that a rule that attorney's fees depend on the percentage of success of the attorney below means that this Court has to hear questions that are otherwise irrelevant to the case.

This case is of central importance to children with handicaps and their parents.

It used to be that parents whose children were born with handicaps sometimes had to give up their parental rights or even institutionalize their child in order to obtain necessary education or medical treatment.

In 1975 in enacting the Education for All Handicapped Children Act, Congress opted instead to allow parents to participate fully in decisions concerning the education of their child.

Mr. Muth, the Respondent, exercised that right when after three and a half years of attempting to obtain an appropriate education from the school district he decided instead to place his child in a school which specializes in language disabilities, a school at which his son Alex in fact made substantial progress.

When Muth took this step, school authorities were not offering an appropriate education, as the hearing officer subsequently held.

The remedy of reimbursement in appropriate cases is necessary in order to allow parents to participate effectively because otherwise parents would have to accept whatever education school officials offered them during the period of administrative review.

That period can be a significant one.

In this case, the period of administrative decisionmaking took more than a year.

Alex needed an education during that year.

The development of handicapped children cannot be shifted to told while the decisionmaking process unwinds.

A year in an inappropriate education or without necessary services can be a devastating experience to any child, and handicapped children--

Unidentified Justice: Well, I guess our decision in Burlington addressed whether tuition reimbursement could be allowed, and indicated that it could.

But I think the question here is not so much that as whether the state's Eleventh Amendment immunity has been abrogated.

Mr. Field: --That's right.

Unidentified Justice: So that the state itself could be held liable for it.

Mr. Field: That's right.

This Court has unanimously recognized that tuition reimbursement is important to the functioning of the EHA.

I'd really like to make two points about that.

One is that even though, as Mrs. Vickers said, the school districts are often available as defendants in these cases, that is not in any event invariably so.

And so it's important that the same rule as to the availability of tuition reimbursement be... be applied against states as defendants.

And I also would like to show you that the Education of the Handicapped Act in 1975 did expressly waive states' immunity.

Unidentified Justice: Well, it certainly didn't meet the kinds of requirements that Atascadero would have imposed, did it?

Mr. Field: Well, we think it did.

If Atascadero is read to require some particular formula of words, Congress acting ten years before Atascadero did not use any particular formula of words which it could not have anticipated.

But, in fact, the language of the 1975 EHA does constitute a clear statement that Congress intends to waive states' immunity.

And it's much clearer than the statute involved in Atascadero was.

Indeed, it's also clearer than Title VII, which this Court unanimously held in Fitzpatrick v. Bitzer... did clearly and effectively abrogate states' immunity.

In Atascadero, just to make that comparison, the Rehabilitation Act provision at issue said that any recipient of federal assistance should be liable.

That phrase, "any recipient of federal assistance" did literally include states.

It also, however, included many thousands of private companies.

The statute involved in Atascadero did not mention states.

The EHA, the 1975 EHA, by contrast, mentions states more than 50 times.

More important than that, the only possible defendants under the EHA are states, and the school districts which they set up, control, and supervise.

As the Petitioner itself stresses, under the EHA states are the only parties with ultimate responsibility for seeing that every child receives an appropriate education.

In these circumstances, every member of Congress had to have been aware in enacting the EHA that its remedies would be enforceable against the states.

The language of the EHA... we're not relying on the legislative history, but the language of the statute itself... carries clear and unmistakable notice.

This is the key fact that separates this case from Atascadero.

The specific language that is helpful is not only the Section 1400 which Mrs. Vickers read from, but there are clear provisions in Section 1412 particularly, but also elsewhere in the statute, imposing duties upon the states, recognizing that states are the responsible party... indeed, are the only ultimately responsible party, and recognizing that states will directly provide the education in a good many situations.

And after that, Section 1415 expressly gives parents the opportunity to present a complaint with respect to any matter in a due process hearing with judicial review in state or federal court... this is by the parent against the state... for any appropriate relief.

So, there is clear language, although it may not be phrased exactly the way that Congress--

Unidentified Justice: Ms. Field, it isn't certainly phrased in terms of money damages either, is it?

I mean, I think Ms. Vickers made the point that until our Burlington decision it was not entirely clear that you could get an award for tuition reimbursement even against a school district.

Mr. Field: --Yes.

It's not... it's phrased in terms of appropriate relief.

I think Congress really rather wisely didn't spell out the bounds of appropriate relief in the statute.

One thing that is clear is that under the EHA many varied situations can arise.

For example, your case last year in Honig v. Doe that Congress could not possibly have anticipated.

And courts, by devising appropriate relief and molding it to the facts of each particular case, can come up with more appropriate remedies than Congress could have thought about in 1975.

As this Court said in Burlington, appropriate relief does include reimbursement.

We're not arguing that it includes money damages.

It's not clear whether or not it includes money damages, though most lower courts have said in some situations it does.

But it's not necessary in this case to find that appropriate relief includes damages, but only reimbursement.

And I believe in Burlington this Court drew the distinction between reimbursement and damages saying at least reimbursement was available under the EHA.

Unidentified Justice: Well, you agree, do you not, that reimbursement would be barred by the Eleventh Amendment if Congress had not sought to abrogate the immunity?

Mr. Field: That's... that's correct.

What... what we are saying... we're certainly not asking you to alter Edelman v. Jordan, but we're simply saying that appropriate relief within the EHA includes reimbursement.

One thing that is clear from the history of the EHA, both in 1975 and again in the 1986 Amendments, is Congress knew that in imposing this obligation upon the states that they were requiring states to spend money.

That... that was absolutely clear.

And, indeed, the main... the main relevance of the 1986 EHA Amendments here which are not directly relevant because they concerned only attorney's fees... but they again showed that Congress was willing to require states to spend money to achieve appropriate education.

The reason is that a though special education is expensive, it really is highly cost-effective And... for many... for many of the persons who receive special education under the EHA, it makes the difference whether they can function as productive and law-abiding citizens.

So, I think this... this is the attitude which caused Congress to make the judgement that states should spend money for appropriate education if they opted to be included in this EHA program.

Unidentified Justice: I guess Congress enacted the means whereby it could enforce its requirement on states that they spend money.

They can withhold financial aid if states don't do what they're required to do.

Mr. Field: Well, they can withhold financial aid.

Unidentified Justice: I mean, there are enforcement procedures available against the states themselves by federal action.

Mr. Field: Well, that enforcement procedure is available and prospective relief would be available.

Unidentified Justice: And presumably prospective relief.

Mr. Field: Yes.

This Court in Burlington held that prospective relief and the withholding of Federal Funds was not a sufficient remedy.

And, really, the remedy of withholding federal funds is patently not a remedy that will secure appropriate education in every child's case.

One problem, of course, is that withholding funds removes education, it doesn't provide it.

But even more than that, funds will not be withhold because... because of individual violations.

Indeed, Section 1416 says that states should... that funds should be withheld only if states are substantially out of compliance with the... with the statue.

The point of the EHA, by contrast, is to provide an appropriate education in every child's case.

And the point of the reimbursement remedy is to empower parents, who otherwise would have to accept whatever education school authorities offered them, to have their perspective reflected in the educational plan which is ultimately adopted--

Unidentified Justice: But these--

Mr. Field: --in each case.

Unidentified Justice: --parents... this parent will get reimbursement regardless of our holding?

Mr. Field: That's right.

This parent will get reimbursement from the school district because the school district did not seek certiorari.

And I think it's for that reason that the attorney's fees of the lawyer who represented Mr. Muth in district court several years ago would not be reduced or would not... would not disappear regardless of what this... regardless of what this Court does.

I also think his attorney's fees would not be affected by... any ruling on partiality.

Even though the school district is available in this case to pay... to pay tuition reimbursement and will be regardless of what this Court holds, it is important to a proper construction of the EHA that it also be recognized that the state is liable for reimbursement.

The Petitioner's interpretation, saying that school districts can be held liable but not states, would leave many handicapped children with no Possibility of a reimbursement remedy, and, accordingly, no possibility of effective parental participation.

Many children do receive education directly from the state.

Indeed, some of the children who receive education directly from the state are the most severely handicapped children, which the EHA is... gives priority to.

The... the statute shows that there is an important policy that the most severely handicapped not be omitted from the... from the program.

Not only would the children which... who were 250,000 last year would receive education directly from the state lose their right to tuition reimbursement, but also, when appropriate education is denied because of reasons having to do with state policy or even state procedural violations, it would not be appropriate in those cases for the school districts to be held liable for tuition reimbursement.

That is the type of issue that is involved in a good many of these cases.

The challenges are sometimes to state statutes, state policies, state procedures, as in this situation.

And the state, in that situation, is the only appropriate defendant.

Unidentified Justice: Well, it's possible that the Rehab Act Amendments of '86 have changed the rules--

Mr. Field: For--

Unidentified Justice: --prospectively.

Mr. Field: --the future.

Unidentified Justice: Sure.

So it isn't as though our decision here is going to determine that issue necessarily.

Mr. Field: No.

Your decision here would determine that issue if a different construction were given to the Rehabilitation Act, as the state has contended for.

And it also would determine that issue in the handful of cases that exist where the EHA is the only statute that can be... that can be relied on.

It also is relevant, I think, that even when a school district is a defendant that the remedy be able to run against the state because school districts can be set up in such a way that they are an arm of the state for Eleventh Amendment purposes, The intermediate units in Pennsylvania, for example, which are sometimes the defendants in these cases rather than the local school districts it the types of services that the dispute is about are services that are handled by the intermediate unit... the intermediate units have been held to be arms of the state for Eleventh Amendment purposes.

So, even though in those situations one would not be suing the state and it would be a local school district within the meaning of the EHA, any immunity that the state had from tuition reimbursement would be shared by those defendants.

And there--

Unidentified Justice: Do you agree--

Mr. Field: --are other--

Unidentified Justice: --that the Rehab Act Amendments of 1986 are not retroactive?

Mr. Field: --We agree that the Rehabilitation Act Amendments are not retroactive.

We thought that it was... that it could be relevant to your consideration that this issue is taken care of for the future.

We now find that there is not total agreement, that it is taken care of for the future.

And I do think that the phrase in the Rehabilitation Act which refers to all other federal recipients of... all other federal recipients of financial assistance does include the EHA.

I think also the suggestion in the Petitioner's brief that this opens some sort of Pandora's box is not to be taken seriously.

We looked as far as we could for statutes that prohibited discrimination by recipients of federal financial assistance and the only statute we could find that met that description was the EHA because--

Unidentified Justice: How about Title IX?

Mr. Field: --I believe Title IX's nondiscrimination duty is not phrased in terms of recipients of federal financial assistance.

There are many other statutes that impose a duty not to discriminate.

But the duty not to discriminate is usually not imposed in terms of recipients of federal financial assistance, but... but in some other term.

Unidentified Justice: Well, what does... what does Title IX prohibit then?

It prohibits discrimination on... I thought on the part of people who received federal funds.

Perhaps I'm wrong.

Mr. Field: I'm afraid I don't have that... that--

Unidentified Justice: Don't worry about it.

Mr. Field: --information.

So that we believe that the Rehabilitation Act Amendments would take care of this for the future, but that the EHA imposes a duty of... abrogates states' immunity under the 1975 Act, which is what applies to this case.

And because many... because many students will be... or, many handicapped children will be subject only to the possibility of actions against the state and not entities which are local for purposes of the Eleventh Amendment, that it is necessary to fulfill the purposes of the EHA as well as to satisfy its clear language, that the Burlington holding that school districts are liable be applied also to states as defendants.

We do think that it would create several unfortunate consequences if the anti-reimbursement position were adopted.

One, there would be an extremely unfortunate procedural consequence in those situations where the state is the responsible party because parents would have to then bypass the administrative procedure altogether and go directly to district court to obtain preliminary injunctive relief if reimbursement were not available.

That would be the only avenue available to parents to obtain the appropriate placement at public expense, which the statute... which the statute offers them.

So, that would be one way in which the system just wouldn't work well if states were removed as possible defendants in these actions.

Unidentified Justice: Is it clear that they could do that?

Is It clear that they... well, this is all hypothetical anyway because with the '86 Act it doesn't matter.

Right?

Mr. Field: That--

Unidentified Justice: For the future?

Mr. Field: --certainly is--

Unidentified Justice: This is--

Mr. Field: --correct--

Unidentified Justice: --Right.

Mr. Field: --If you accept our construction of the '86 Act--

Unidentified Justice: Correct.

Mr. Field: --which I hope that you will.

Unidentified Justice: But this is... but this is one reason why the original Act should not be read in this fashion.

Because you say it would have created this situation.

Mr. Field: That's right.

And there are a substantial number... number of cases where preliminary injunctive relief is sought even now.

So that... but this would make it the only possible avenue, once it was known that states were no longer--

Unidentified Justice: It's clear that there's no obstacle to seeking such relief in the federal district court without going through the procedures?

Mr. Field: --It's clear... if there is a irreparable harm.

And what the holding would do is make it absolutely clear that there would be irreparable harm.

The other disadvantage of the anti-reimbursement position is, of course, that it would leave parents and children without any effective means to obtain appropriate education during the period of review.

And it would create incentives for school districts to delay in meeting their obligations when the placement sought was an expensive one.

Children, then, would lose their right to education for as long as the decisionmaking process continued.

Because we think there is a clear statement in the EHA, it would be appropriate for this Court to uphold Mr. Muth's tuition reimbursement award for 1983 to '84.

And the Court really need not decide any more.

However, the Court either alternatively or additionally could rest affirmance on the ground that the courts below relied on, and that is the substantial procedural violations in the administrative process that was employed in this case.

The Act has rather strict time limitations, either 45 days or 75 days, depending which review scheme the state chooses to follow.

In this case, the administrative process because of illegalities dragged out for more than a year longer than the strict time limitations in the Act allowed.

Mr. Muth suffered serious harm as a result of that, as the court below found.

For that reason we really are not talking about punitive damages.

We don't think punitive damages would be appropriate relief under the EHA.

We think we are talking neither about damages nor about something that was punitive.

And so it would be appropriate for this Court to uphold the reimbursement award on that ground.

Even if you uphold it on that ground, it's not necessary to reach the partiality matter on which the... on which the state sought certiorari because the remand fully... fully justifies the reimbursement of remedy.

Unidentified Justice: Why... why is that ground not affected by the Eleventh Amendment problem?

Mr. Field: That ground is affected by the Eleventh Amendment problem.

That is... there is no reimbursement available against the state unless you find that the EHA provides a clear statement.

So, that... that really is the crucial... the crucial decision in this case.

If you find that there is abrogation, then Mr. Muth is entitled to reimbursement on either of two grounds.

One, the school district did not provide an appropriate education during the 1983 to '84 school year.

There has been some attempt to create some factual disputes around whether an appropriate education was provided, but we're really quite happy with the statements of facts as it appears in the Petitioner's brief on page 14.

They mention that the school district at the outset of the year came in with a plan for education which the hearing officer held was inappropriate.

Not necessarily inappropriate in its placement but inappropriate in the services that were offered to the child.

The school district at that point wrote Mr. Muth a letter saying that they would not offer those services until the administrative review was final.

And the school district appealed from the award for those services, saying that it... saying that it really wasn't necessary for them to provide those services to the child at all.

It wasn't until April of 1984... when the school year in question here is 1983 to 1984... in April of 1984 the school district came up with an appropriate education plan.

A plan that was subsequently in July of '84 held to have been appropriate for the '83-84 school year if it had been put into effect.

But we don't think that the fact that on April 26th of the 1983-84 school year the school district then came up with an appropriate education plan should mean that during 1983 to 1984 it was all right to leave Alex without any appropriate education.

Unidentified Justice: May I--

Mr. Field: So I think the--

Unidentified Justice: --May I ask you one question?

If you lose on your statutory argument, have you abandoned Point 1 in your brief?

Mr. Field: --Which is Point 1?

The Burlington ground?

Unidentified Justice: This Court should overturn Hans against Louisiana.

Mr. Field: Oh.

Unidentified Justice: You no longer subscribe to that--

Mr. Field: No, I do.

Unidentified Justice: --composition?

Mr. Field: I do.

I do subscribe to that.

There--

Unidentified Justice: You haven't argued it very vigorously.

[Laughter]

Mr. Field: --It... well, it's not clear to me that if we lost on the clear statement ground, that the overturning of Hans by itself would make all... all the difference.

Unidentified Justice: Why did you argue it then in the brief?

Mr. Field: We argued it because I think it is relevant to your decision, whether you view Hans v. Louisiana as... or, whether you view sovereign immunity as a constitutionally based doctrine or a doctrine that flows from something else.

Unidentified Justice: I wonder if you're acting as an academic or an advocate on that part of your brief.

Mr. Field: Well, I'm acting as a little bit of both.

But... but I think it's... well, an analogy could be made to Erie Railroad v. Thompkins in which the decision that the Court made didn't change the results of the case.

But the only thing inappropriate about the Court deciding that issue was that the parties hadn't raised and argued it.

I think it's an important issue of Eleventh Amendment jurisprudence which could affect the outcome of this case, but would not necessarily affect the... affect the outcome of this case.

Perhaps I'll take a moment to talk about the partiality issue in case you do reach it.

If you do, we think we... we hope that you would hold, as other courts have, that the EHA, unlike the conventional administrative scheme, does not permit the head of the agency to be the final administrative decisionmaker.

Instead of relying on general principles of administrative law in enacting the EHA, the EHA created its own procedural scheme, which is really at the heart of the Act.

There's very little in the way of substantive requirements in the EHA.

No definition of appropriate education, for example.

But the procedural scheme is at the heart of the Act.

One reason that the Secretary should be eliminated as the reviewing officer, as the court below held, is that he has a clear financial interest in the outcome of the dispute.

In this case, for example, if Alex had been given the placement that he sought, under Pennsylvania law the tuition would have then come out of the state agency's budget.

On the other hard if Alex--

Unidentified Justice: You don't mean a personal financial... but his agency has a financial interest?

Mr. Field: --That's right.

That right.

If... if, on the other hand, Alex lost, the local school district would be responsible for the tuition.

So, there's that kind of financial involvement on the part of the Secretary of Education.

Moreover, as a policymaker, the Secretary has a clear conflict of interest under the Act.

The Petitioner wants to use due process hearings in order to make policy.

That's really its argument.

But the EHA does not permit policy to be made in this fashion.

Instead, the due process hearing is supposed to be a neutral unbiased determination on the facts of the particular case, depending on the programs offered and the facts concerning the needs of the particular child as to what the appropriate education is.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Ms. Field.

Ms. Parisi-Vickers, do you have rebuttal?

You have three minutes remaining.

Maria Parisi-vickers: I have nothing on rebuttal.

Chief Justice William H. Rehnquist: Very well.

The case is submitted.