Opinion
No. 81-7485.
September 4, 1984.
Alfred L. Evans, Jr., Sr. Asst. Atty. Gen., Atlanta, Ga., for defendants-appellants, cross-appellees.
Fisher Phillips, Griffin B. Bell, Jr., Ruth W. Woodling, Atlanta, Ga., for Savannah Chatham Bd. of Ed.
Mark Cross, Dept. of Justice, Appellate Section, Civil Rights Div., Washington, D.C., amicus curiae.
Jonathan A. Zimring, Atlanta, Ga., Rose Firestein, Ga. Legal Service Program, Savannah, Ga., for plaintiffs-appellees, cross-appellants.
Appeals from the United States District Court for the Northern District of Georgia.
Before HILL and VANCE, Circuit Judges, and TUTTLE, Senior Circuit Judge.
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
In our previous opinion in this case, reported at 716 F.2d 1565, we affirmed the judgment of the trial court granting an injunction against the defendants' continuing policy of not considering or providing more than 180 days of education for profoundly mentally retarded children. In our opinion we expressly based our affirmance on our consideration of the Education for the Handicapped Children Act, 20 U.S.C. § 1401 et seq. ("EHA") and also on our consideration of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.
By order entered July 5, 1984 the Supreme Court granted certiorari and vacated our judgment and remanded the case "for further consideration in light of Smith v. Robinson, 468 U.S. [___], 104 S.Ct. 3457 [ 82 L.Ed.2d 746] (1984)." McDaniel v. Georgia Association of Retarded Citizens, ___ U.S. ___, 104 S.Ct. 3581, 82 L.Ed.2d 880.
The Court's decision in Robinson requires that we modify our previous opinion. In Robinson the Court held that a plaintiff who asserted a valid claim under the EHA could not also proceed under the Rehabilitation Act and that recovery could not be had for attorney's fees under either Act.
Although this issue of attorney's fees was not present in our case, we did expressly state that recovery could be had under the Rehabilitation Act. This is now incorrect.
We therefore modify our previous opinion by making the following deletions: (1) delete the words "and § 504 of the Rehabilitation Act of 1973" from the last sentence of the first paragraph of the opinion; (2) delete all of part VI B of the opinion.
We also strike the final paragraph of our previous judgment and substitute in lieu thereof the following:
The judgment of the district court is AFFIRMED to the extent that it granted relief to plaintiffs under the Education for Handicapped Children's Act.
Its holding that plaintiffs were entitled to relief under the Rehabilitation Act is REVERSED.
Except for these changes, the previous opinion is adopted and made the judgment of the Court.
I dissent for the reasons set forth in my dissent to the original panel opinion. Georgia Association of Retarded Citizens v. McDaniel, 716 F.2d 1565, 1581 (11th Cir. 1983).