{
  "id": 3591155,
  "name": "RICHARD R. ANDERSON, Plaintiff-Appellee, v. COMMUNITY UNIT DISTRICT NO. 228, Defendant-Appellant",
  "name_abbreviation": "Anderson v. Community Unit District No. 228",
  "decision_date": "1983-05-24",
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    "judges": [],
    "parties": [
      "RICHARD R. ANDERSON, Plaintiff-Appellee, v. COMMUNITY UNIT DISTRICT NO. 228, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE HEIPLE\ndelivered the opinion of the court:\nThe plaintiff-appellee, Richard Anderson, is the father of Roger Anderson, a former special education student in a program offered by the defendant-appellant, Community School District No. 228 (District). Anderson requested a \u201cdue process\u201d hearing, under section 615 of the Education for All Handicapped Children Act (EAHCA) (20 U.S.C. sec. 415 (1976)), regarding his son\u2019s special education program, because he believed the program was deficient in a number of respects to meet Roger\u2019s special needs. A hearing was eventually held by a due process hearing officer. The officer found that the District had failed to incorporate, among other things, a vocational plan into Roger\u2019s program and that, in accordance with article VI of the Illinois Rules and Regulations to Govern the Operation and Administration of Special Education, such a plan was mandated.\nAnderson then brought a small claims action against the District and claimed that the District was indebted to Anderson in the amount of $2,500, plus costs, for \u201cexpense incurred to obtain appropriate free public education\u201d for his son which was not provided by the District. The $2,500 damages is the sum of $2,400 for attorney fees and $100 for telephone expenses. A hearing was held without a court reporter. Consequently, the record of the hearing consists of a certified report of the proceeding in lieu of verbatim transcript. The trial court took the matter under advisement and a few weeks later entered a judgment against the District in the amount of $2,400. On appeal, the District raises two issues. One, monetary damages and attorney fees are not recoverable as a matter of law. Two, the trial court\u2019s findings were against the manifest weight of the evidence. Anderson\u2019s \u201cdamages\u201d consist of attorney fees. As will be discussed below, attorney fees are not recoverable in this case. Since this court has found that the lower court\u2019s damage award was improper, there is no need to decide whether the lower court\u2019s findings were against the manifest weight of the evidence. Also, Anderson, in his brief, raises the separate issue that, besides failing to provide an adequate program for his son, the District violated Anderson\u2019s due process rights by initially refusing to conduct a hearing and that attorney fees incurred in order to vindicate his due process rights should be allowed. Even if this court were to assume that the District improperly refused Anderson\u2019s initial request for a hearing, we must find that the issue cannot be raised on this appeal. Anderson\u2019s complaint refers only to expenses \u201cincurred to obtain appropriate free public education.\u201d There is not a reference to expenses incurred in order to secure Anderson\u2019s due process rights. Furthermore, there is no evidence of \u201cany action or proceeding\u201d instituted for the purpose of enforcing any due process rights. (See Civil Rights Attorney\u2019s Fees Award Act of 1976, 42 U.S.C. sec. 1988 (1976).) The issue concerning Anderson\u2019s due process rights was not effectively presented to the lower court and is considered waived in this appeal.\nAnderson based his claim for attorney fees on two Federal statutes: the Education for All Handicapped Children Act (EAHCA) (20 U.S.C. sec. 1401 et seq. (1976)) and sections 504 and 505 of the Rehabilitation Act of 1973 (Rehabilitation Act) (29 U.S.C. secs. 794, 794a (1976 and Supp. IV 1980).\nThe congressional statement of purpose of EAHCA is as follows:\n\u201cIt is the purpose of this [Act] to assure that all handicapped children have available to them *** a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, to assure that the rights of handicapped children and their parents or guardians are protected, to assist State and localities to provide for the education of all handicapped children, and to assess and assure the effectiveness of efforts to educate handicapped children.\u201d (Emphasis added.) (20 U.S.C. sec. 1401, Historical Note (1976).)\nEAHCA does not explicitly provide for an award of attorney fees.\nSection 504 of the Rehabilitation Act provides as follows:\n\u201cNo otherwise qualified handicapped individual in the United States *** shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.\u201d (Emphasis added.)\nThe Rehabilitation Act specifically provides for attorney fees in section 505 as follows:\n\u201c(b) In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney\u2019s fee as part of the costs.\u201d\nAlthough the propriety of awarding attorney fees under either of these statutes has been evaluated by several Federal courts of the Seventh Circuit, the issue appears to be one of first impression before an Illinois court of appeals.\nIn support of his claim for fees incurred as a result of the District\u2019s violation of EAHCA, Anderson argues that the omission of the District resulted in a \u201cdeprivation of any rights, privileges or immunities secured by the Constitution and laws\u201d within the terms of the Civil Rights Act of 1871 (42 U.S.C. sec. 1983 (1976)). Anderson reasons that fees are allowable pursuant to the Civil Rights Attorney\u2019s Fees Awards Act of 1976, which provides in pertinent part as follows:\n\u201cIn any action or proceeding to enforce a provision of sections *** 1983 *** the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney\u2019s fee as part of the costs.\u201d 42 U.S.C. sec. 1988 (1976).\nAnderson\u2019s reasoning was previously rejected by the Seventh Circuit Federal Court of Appeals in Anderson v. Thompson (7th Cir. 1981), 658 F.2d 1205. The Anderson court held that the remedy provided in EAHCA, though not a traditional remedy, is an exclusive remedy which cannot be given \u201cunimpaired effectiveness\u201d if a section 1983 action is available for EAHCA violations. (658 F.2d 1205, 1216.) This court accepts the decision of the Anderson court, insofar as it applies to attorney fees under EAHCA, and holds that attorney fees incurred as a result of an attempt to enforce the provisions of EAHCA are not allowable either under the terms of EAHCA, or via a related section 1983 action.\nWe now turn to the applicability of the Rehabilitation Act to the case at hand. Section 504 is directed toward discrimination, not the failure to provide a program for a handicapped student. Anderson did not allege that his son was subject to discrimination. Anderson only alleged, and the hearing officer only found, that his son was not provided an appropriate program to meet his needs. Anderson cannot place his claim within the discrimination provisions of section 504 in an effort to avoid the remedy limitations of EAHCA. The reasoning of the Federal district court in Reineman v. Valley View Community School District No. 365\u2014U (N.D. Ill. 1981), 527 F. Supp. 661, is clearly applicable to this issue. If Anderson, \u201cbarred from a damage claim under EAHCA itself under Anderson, could take an end run around Anderson by claiming damages because EAHCA should have been but was not applied to [his son], that exception to Anderson would swallow up its rule. [Anderson] cannot do indirectly via section 504 what Anderson teaches may not be done directly.\u201d 527 F. Supp. 661, 665.\nTherefore, for the reasons set forth above, the trial court erred in awarding Anderson damages in the amount of $2,400, which were in fact attorney fees. The decision of the trial court is reversed. Judgment shall be entered for the defendant, Community Unit District No. 228, dismissing the complaint of the plaintiff-appellee, Anderson.\nReversed.\nBARRY and SCOTT, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE HEIPLE"
      }
    ],
    "attorneys": [
      "Philip E. Koenig, of White and Koenig, of Geneseo, and Jerome N. Robbins and Michael A. Loizzi, Jr., both of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago, for appellant.",
      "Kary Love, of Moline, for appellee."
    ],
    "corrections": "",
    "head_matter": "RICHARD R. ANDERSON, Plaintiff-Appellee, v. COMMUNITY UNIT DISTRICT NO. 228, Defendant-Appellant.\nThird District\nNos. 82\u2014695, 82\u2014650 cons.\nOpinion filed May 24, 1983.\nPhilip E. Koenig, of White and Koenig, of Geneseo, and Jerome N. Robbins and Michael A. Loizzi, Jr., both of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago, for appellant.\nKary Love, of Moline, for appellee."
  },
  "file_name": "0901-01",
  "first_page_order": 923,
  "last_page_order": 926
}