Board of Education of Oak Park & River Forest High School District No. 200 v. Kelly E. ex rel. Nancy E.

207 F.3d 931
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 24, 2000
DocketNos. 99-1589, 00-1361
StatusPublished
Cited by17 cases

This text of 207 F.3d 931 (Board of Education of Oak Park & River Forest High School District No. 200 v. Kelly E. ex rel. Nancy E.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of Education of Oak Park & River Forest High School District No. 200 v. Kelly E. ex rel. Nancy E., 207 F.3d 931 (7th Cir. 2000).

Opinion

EASTERBROOK, Circuit Judge.

Does the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-87, entitle a local school district to reimbursement from the state for some or all of the expense when the district must reimburse parents for a child’s private education? A court may direct a school district to pay for private education “if the court ultimately determines that such placement, rather than a proposed iep [individualized education program], is proper under the Act.” Burlington School Committee v. Massachusetts Department of Education, 471 U.S. 359, 369, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). Such an order was entered in both of the cases now on appeal. Magistrate Judge Denlow, presiding by consent under 28 U.S.C. § 636(c), concluded that Oak Park’s school district had made so many procedural and substantive errors in preparing an iep for Kelly E. that her parents are entitled to reimbursement for private education. 21 F.Supp.2d 862 (N.D.I11.1998). District Judge Moran enforced an administrative decision that T.H.’s parents are entitled to reimbursement for an intensive home-based educational program. 55 F.Supp.2d 830 (N.D.I11.1999). Both school districts have accepted these decisions; the only remaining dispute is whether the state must chip in. Our cases appear to be the first to present that question to a court of appeals.

The magistrate judge directed the state to pay for Kelly E.’s private education and half of her parents’ legal expenses. He gave two principal reasons. 21 F.Supp.2d at 883, reconsideration denied, 1999 WL 91899, 1999 U.S. Dist. Lexis 1612. First, he viewed the state as a guarantor of every local school district’s compliance with the Act, and therefore responsible for part of the cost. Second, he concluded that state statutes and regulations offering to pay for private placements at approved schools are not generous enough to comply with Florence County School District v. Carter, 510 U.S. 7, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993), which the magistrate judge understood as calling for state reimbursement of local districts’ expenses for private education. Illinois law provides (105 ILCS 5/14-7.02):

A school district making tuition payments pursuant to this Section is eligible for reimbursement from the State for the amount of such payments actually made in excess of the district per capita tuition charge for students not receiving special education services....
If a child has been placed in an approved individual program and the tuition costs including room and board costs have been approved by the Review [934]*934Board, then such room and board costs shall be paid by the appropriate State agency subject to the provisions of Section 14-8.01 of this Act.

An implementing regulation adds: “A program not approved in accordance with the requirements of this Part shall not be used by school districts to serve students with disabilities under Section 14-7.02 of the School Code.” 23 Ill. Adm. Code § 401.10. This means that a non-approved program is ineligible for reimbursement under § 14-7.02, not that such a program “shall not be used” at all.' Still, the magistrate judge thought that the statute and regulation steered school districts away from placements that might be educationally best for students, and toward either continued education in the public schools or approved private placements that were educationally less desirable (but cheaper for the local school districts). To counteract this incentive, the magistrate judge directed the state to pay for half of Kelly’s education even though state law does not authorize the outlay. By contrast, the district judge in T.H. declined to order the state to contribute toward the cost of the home education. The judge explained: “If the [Palatine school] district was concerned about its ability to recoup expenses in excess of the district per capita tuition charge for students not receiving special education services, see 105 ILCS § 5/14-7.02, it could have worked harder to develop an appropriate placement that was approved by the state.” 55 F.Supp.2d at 847. Judge Moran disagreed with the magistrate judge’s conclusion that the state must either ensure local districts’ compliance or insure their compliance costs.

Illinois, as appellant in the Oak Park case and appellee in the Palatine case, leads off with a flurry of objections to the very possibility of litigation. Local school districts lack standing, the state insists; if they suffer injury in fact, they do not meet prudential standards for adjudication; and if the local districts may sue, still the state is not a proper defendant given the eleventh amendment. None of these arguments was presented in the district court — though if they establish an absence of subject-matter jurisdiction we must consider them anyway. But they are feeble, individually and collectively.

Although, as Illinois stresses, the school districts are not the persons for whose benefit the Act is designed, they have been injured in fact by the need to pay for Kelly E.’s and T.H.’s private education. Although the injury may not be traceable to acts of Illinois, in seeking to recover part of their outlay the school districts are asserting a claim for contribution. Federal courts regularly resolve disputes about contribution. E.g., McDermott, Inc. v. AmClyde, 511 U.S. 202, 114 S.Ct. 1461, 128 L.Ed.2d 148 (1994); Akzo Nobel Coatings, Inc. v. Aigner Corp., 197 F.3d 302 (7th Cir.1999). Until now, no one has expressed doubt that cross-claims among joint wrongdoers present cases within the scope of Article III. Perhaps the Act does not authorize awards of contribution, but a party’s failure to establish a claim for re lief differs from a deficiency in subject-matter jurisdiction. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89-90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946). Recast as a claim that local districts do not fall within the zone of interests protected by the Act and thus lack “prudential” standing, the state’s position fares no better, if only because we have held, see United Transportation Union v. Surface Transportation Board, 183 F.3d 606, 611 (7th Cir. 1999) (citing cases), that prudential considerations in general, and the zone-of-interests test in particular, are forfeited if not presented in a timely fashion. Illinois asks us to overrule this line of cases, but we decline; requiring litigants to raise zone-of-interests arguments at an early opportunity is compatible with, if not compelled by, decisions of the Supreme Court. See, e.g., Air Courier Conference v.

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Bluebook (online)
207 F.3d 931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-education-of-oak-park-river-forest-high-school-district-no-200-ca7-2000.