MILLS V. BOARD OF EDUCATION
August 1, 1972
WADDY, District Judge.
MEMORANDUM OPINION, and JUDGMENT AND
DECREE
This is a civil action brought on behalf of seven
children of school age by their next friends in which they seek a
declaration of rights and to enjoin the defendants from excluding them
from the District of Columbia Public Schools and/or denying them
publicly supported education and to compel the defendants to provide
them with immediate and adequate education and educational facilities in
the public schools or alternative placement at public expense. They also
seek additional and ancillary relief to effectuate the primary relief.
They allege that although they can profit from an education either in
regular classrooms with supportive services or in special classes
adopted to their needs, they have been labelled as behavioral problems,
mentally retarded, emotionally disturbed or hyperactive, and denied
admission to the public schools or excluded therefrom after admission,
with no provision for alternative educational placement or periodic
review. The action was certified as a class action under Rule 23(b)(1)
and (2) of Federal Rules of Civil Procedure by order of the Court dated
December 17, 1971.
The defendants are the Board of Education of the
District of Columbia and its members, the Superintendent of Schools for
the District of Columbia and subordinate school officials, the
Commissioner of the District of Columbia and certain subordinate
officials and the District of Columbia.
THE PROBLEM
The genesis of this case is found (1) in the failure
of the District of Columbia to provide publicly supported education and
training to plaintiffs and other "exceptional" children, members of
their class, and (2) the excluding, suspending, expelling, reassigning
and transferring of "exceptional" children from regular public school
classes without affording them due process of law.
The problem of providing special education for
"exceptional" children (mentally retarded, emotionally disturbed,
physically handicapped, hyperactive and other children with behavioral
problems) is one of major proportions in the District of Columbia. The
precise number of such children cannot be stated because the District
has continuously failed to comply with Section 31-208 of the District of
Columbia Code which requires a census of all children aged 3 to 18 in
the District to be taken. Plaintiffs estimate that there are ". . .
22,000 retarded, emotionally disturbed, blind, deaf, and speech or
learning disabled children, and perhaps as many as 18,000 of these
children are not being furnished with programs of specialized
education." According to data prepared by the Board of Education,
Division of Planning, Research and Evaluation, the District of Columbia
provides publicly supported special education programs of various
descriptions to at least 3880 school age children. 1
However, in a 1971 report to the Department of Health, Education and
Welfare, the District of Columbia Public Schools admitted that an
estimated 12,340 handicapped children were not to be served in the
1971-72 school year. 2
Each of the minor plaintiffs in this case qualifies
as an "exceptional" child.
Plaintiffs allege in their complaint and defendants
admit as follows:
"PETER MILLS is twelve years old, black, and a
committed dependent ward of the District of Columbia resident at
Junior Village. He was excluded from the Brent Elementary School on
March 23, 1971, at which time he was in the fourth grade. Peter
allegedly was a 'behavior problem' and was recommended and approved
for exclusion by the principal. Defendants have not provided him
with a full hearing or with a timely and adequate review of his
status. Furthermore, Defendants have failed to provide for his
reenrollment in the District of Columbia Public Schools or
enrollment in private school. On information and belief, numerous
other dependent children of school attendance age at Junior Village
are denied a publicly-supported education. Peter remains excluded
from any publicly-supported education.
"DUANE BLACKSHEARE is thirteen years old, black,
resident at Saint Elizabeth's Hospital, Washington, D.C., and a
dependent committed child. He was excluded from the Giddings
Elementary School in October, 1967, at which time he was in the
third grade. Duane allegedly was a "behavior problem." Defendants
have not provided him with a full hearing or with a timely and
adequate review of his status. Despite repeated efforts by his
mother, Duane remained largely excluded from all publicly-supported
education until February, 1971. Education experts at the Child Study
Center examined Duane and found him to be capable of returning to
regular class if supportive services were provided. Following
several articles in the Washington Post and Washington Star, Duane
was placed in a regular seventh grade classroom on a two-hour a day
basis without any catch-up assistance and without an evaluation or
diagnostic interview of any kind. Duane has remained on a waiting
list for a tuition grant and is now excluded from all
publicly-supported education.
"GEORGE LIDDELL, JR., is eight years old, black,
resident with his mother, Daisy Liddell, at 601 Morton Street, N.W.,
Washington, D.C., and an AFDC recipient. George has never attended
public school because of the denial of his application to the Maury
Elementary School on the ground that he required a special class.
George allegedly was retarded. Defendants have not provided him with
a full hearing or with a timely and adequate review of his status.
George remains excluded from all publicly-supported education,
despite a medical opinion that he is capable of profiting from
schooling, and despite his mother's efforts to secure a tuition
grant from Defendants.
"STEVEN GASTON is eight years old, black,
resident with his mother, Ina Gaston, at 714 9th Street, N.E.,
Washington, D.C. and unable to afford private instruction. He has
been excluded from the Taylor Elementary School since September,
1969, at which time he was in the first grade. Steven allegedly was
slightly brain-damaged and hyperactive, and was excluded because he
wandered around the classroom. Defendants have not provided him with
a full hearing or with a timely and adequate review of his status.
Steven was accepted in the Contemporary School, a private school,
provided that tuition was paid in full in advance. Despite the
efforts of his parents, Steven has remained on a waiting list for
the requisite tuition grant from Defendant school system and
excluded from all publicly-supported education.
"MICHAEL WILLIAMS is sixteen years old, black,
resident at Saint Elizabeth's Hospital, Washington, D.C., and unable
to afford private instruction. Michael is epileptic and allegedly
slightly retarded. He has been excluded from the Sharpe Health
School since October, 1969, at which time he was temporarily
hospitalized. Thereafter Michael was excluded from school because of
health problems and school absences. Defendants have not provided
him with a full hearing or with a timely and adequate review of his
status. Despite his mother's efforts, and his attending physician's
medical opinion that he could attend school, Michael has remained on
a waiting list for a tuition grant and excluded from all
publicly-supported education.
"JANICE KING is thirteen years old, black,
resident with her father, Andrew King, at 233 Anacostia Avenue,
N.E., Washington, D.C., and unable to afford private instruction.
She has been denied access to public schools since reaching
compulsory school attendance age, as a result of the rejection of
her application, based on the lack of an appropriate educational
program. Janice is brain-damaged and retarded, with right hemiplegia,
resulting from a childhood illness. Defendants have not provided her
with a full hearing or with a timely and adequate review of her
status. Despite repeated efforts by her parents, Janice has been
excluded from all publicly-supported education.
"JEROME JAMES is twelve years old, black,
resident with his mother, Mary James, at 2512 Ontario Avenue, N.W.,
Washington, D.C., and an AFDC recipient. Jerome is a retarded child
and has been totally excluded from public school. Defendants have
not given him a full hearing or a timely and adequate review of his
status. Despite his mother's efforts to secure either public school
placement or a tuition grant, Jerome has remained on a waiting list
for a tuition grant and excluded from all publicly supported
education." 3
Although all of the named minor plaintiffs are
identified as Negroes the class they represent is not limited by their
race. They sue on behalf of and represent all other District of Columbia
residents of school age who are eligible for a free public education and
who have been, or may be, excluded from such education or otherwise
deprived by defendants of access to publicly supported education.
Minor plaintiffs are poor and without financial means
to obtain private instruction. There has been no determination that they
may not benefit from specialized instruction adapted to their needs.
Prior to the beginning of the 1971-72 school year minor plaintiffs,
through their representatives, sought to obtain publicly supported
education and certain of them were assured by the school authorities
that they would be placed in programs of publicly supported education
and certain others would be recommended for special tuition grants at
private schools. However, none of the plaintiff children were placed for
the 1971 Fall term and they continued to be entirely excluded from all
publicly supported education. After thus trying unsuccessfully to obtain
relief from the Board of Education the plaintiffs filed this action on
September 24, 1971.
THERE IS NO GENUINE ISSUE OF MATERIAL FACT
Congress has decreed a system of publicly supported
education for the children of the District of Columbia. 4
The Board of Education has the responsibility of administering that
system in accordance with law and of providing such publicly supported
education to all of the children of the District, including these
"exceptional" children. 5
Defendants have admitted in these proceedings that
they are under an affirmative duty to provide plaintiffs and their class
with publicly supported education suited to each child's needs,
including special education and tuition grants, and also, a
constitutionally adequate prior hearing and periodic review. They have
also admitted that they failed to supply plaintiffs with such publicly
supported education and have failed to afford them adequate prior
hearing and periodic review. On December 20, 1971 the plaintiffs and
defendants agreed to and the Court signed an interim stipulation and
order which provided in part as follows:
"Upon consent and stipulation of the parties, it
is hereby ORDERED that:
"1. Defendants shall provide plaintiffs Peter
Mills, Duane Blacksheare, Steven Gaston and Michael Williams with a
publicly-supported education suited to their (plaintiffs') needs by
January 3, 1972.
"2. Defendants shall provide counsel for
plaintiffs, by January 3, 1972, a list showing, for every child of
school age then known not to be attending a publicly-supported
educational program because of suspension, expulsion, exclusion, or
any other denial of placement, the name of the child's parent or
guardian, the child's name, age, address and telephone number, the
date of his suspension, expulsion, exclusion or denial of placement
and, without attributing a particular characteristic to any specific
child, a breakdown of such list, showing the alleged causal
characteristics for such nonattendance and the number of children
possessing such alleged characteristics.
"3. By January 3, 1972, defendants shall initiate
efforts to identify remaining members of the class not presently
known to them, and also by that date, shall notify counsel for
plaintiffs of the nature and extent of such efforts. Such efforts
shall include, at a minimum, a system-wide survey of elementary and
secondary schools, use of the mass written and electronic media, and
a survey of District of Columbia agencies who may have knowledge
pertaining to such remaining members of the class. By February 1,
1972, defendants shall provide counsel for plaintiffs with the
names, addresses and telephone numbers of such remaining members of
the class then known to them.
"4. Pending further action by the Court herein,
the parties shall consider the selection and compensation of a
master for determination of special questions arising out of this
action with regard to the placement of children in a
publicly-supported educational program suited to their needs."
On February 9, 1972, the Board of Education passed a
Resolution which included the following:
"Special Education
"7. All vacant authorized special education
positions, whether in the regular, Impact Aid, or other Federal
budgets, shall be filled as rapidly as possible within the
capability of the Special Education Department. Regardless of the
capability of the Department to fill vacant positions, all funds
presently appropriated or allotted for special education, whether in
the regular, Impact Aid, or other Federal budgets, shall be spent
solely for special education.
"8. The Board requests the Corporation Counsel to
ask the United States District Court for an extension of time within
which to file a response to plaintiffs' motion for summary judgment
in Mills v. Board of Education on the grounds that (a) the Board
intends to enter into a consent judgment declaring the rights of
children in the District of Columbia to a public education; and (b)
the Board needs time (not in excess of 30 days) to obtain from the
Associate Superintendent for Special Education a precise projection
on a monthly basis the cost of fulfilling those budgets.
"9. The Board directs the Rules Committee to
devise as soon as possible for the purpose of Mills v. Board of
Education rules defining and providing for due process and fair
hearings; and requests the Corporation Counsel to lend such
assistance to the Board as may be necessary in devising such rules
in a form which will meet the requirements of Mills v. Board of
Education.
"10. It is the intention of the Board to submit
for approval by the Court in Mills v. Board of Education a
Memorandum of Understanding setting forth a comprehensive plan for
the education, treatment and care of physically or mentally impaired
children in the age range from three to twenty-one years. It is
hoped that the various other District of Columbia agencies concerned
will join with the Board in the submission of this plan.
"It is the further intention of the Board to
establish procedures to implement the finding that all children can
benefit from education and, have a right to it, by providing for
comprehensive health and psychological appraisal of children and the
provision for each child of any special education which he may need.
The Board will further require that no change in the kind of
education provided for a child will be made against his wishes or
the wishes of his parent or guardian unless he has been accorded a
full hearing on the matter consistent with due process."
Defendants failed to comply with that consent order
and there is now pending before the Court a motion of the plaintiffs to
require defendants to show cause why they should not be held in contempt
for such failure to comply.
On January 21, 1972 the plaintiffs filed a motion for
summary judgment and a proposed order and decree for implementation of
the proposed judgment and requested a hearing. On March 1, 1972 the
defendants responded as follows:
"1. The District of Columbia and its officers who
are named defendants to this complaint consent to the entrance of a
judgment declaring the rights of the plaintiff class to the effect
prayed for in the complaint, as specified below, such rights to be
prospectively effective as of March 1, 1972:
That no child eligible for a publicly supported
education in the District of Columbia public schools shall be
excluded from a regular public school assignment by a Rule, policy,
or practice of the Board of Education of the District of Columbia or
its agents unless such child is provided (a) adequate alternative
educational services suited to the child's needs, which may include
special education or tuition grants, and (b) a constitutionally
adequate prior hearing and periodic review of the child's status,
progress, and the adequacy of any educational alternative.
It is submitted that the entrance of a
declaratory judgment to this effect renders plaintiffs' motion for
summary judgment moot.
"2. For response to plaintiffs' motion for a
hearing, defendants respectfully request that this Court hold a
hearing as soon as practicable at which defendants will present a
plan to implement the above declaratory judgment and at which the
Court may decide whether further relief is appropriate."
The Court set the date of March 24, 1972, for the
hearing that both parties had requested and specifically ordered the
defendants to submit a copy of their proposed implementation plan no
later than March 20, 1972.
On March 24, 1972, the date of the hearing, the
defendants not only had failed to submit their implementation plan
as ordered but were also continuing in their violation of the
provisions of the Court's order of December 20, 1971. At the close
of the hearing on March 24, 1972, the Court found that there existed
no genuine issue of a material fact; orally granted plaintiffs'
motion for summary judgment, and directed defendants to submit to
the Court any proposed plan they might have on or before March 31,
1972. 6 The defendants, other than Cassell,
failed to file any proposal within the time directed. However, on
April 7, 1972, there was sent to the Clerk of the Court on behalf of
the Board of Education and its employees who are defendants in this
case the following documents:
1. A proposed form of Order to be entered by the
Court.
2. An abstract of a document titled "A District
of Columbia Plan for Identification, Assessment, Evaluation, and
Placement of Exceptional Children".
3. A document titled "A District of Columbia Plan
for Identification, Assessment, Evaluation, and Placement of
Exceptional Children". 7
4. Certain Attachments and Appendices to this
Plan.
The letter accompanying the documents contained the
following paragraph:
"These documents express the position of the
Board of Education and its employees as to what should be done to
implement the judgment of the Honorable Joseph C. Waddy, the
District Judge presiding over this civil action. The contents of
these documents have not been endorsed by the other defendants in
this case."
None of the other defendants have filed a proposed
order or plan. Nor has any of them adopted the proposal submitted by the
Board of Education. Throughout these proceedings it has been obvious to
the Court that the defendants have no common program or plan for the
alleviation of the problems posed by this litigation and that this lack
of communication, cooperation and plan is typical and contributes to the
problem.
PLAINTIFFS ARE ENTITLED TO RELIEF
Plaintiffs' entitlement to relief in this case is
clear. The applicable statutes and regulations and the Constitution of
the United States require it.
Statutes and Regulations
Section 31-201 of the District of Columbia Code
requires that:
"Every parent, guardian, or other person residing
[permanently or temporarily] in the District of Columbia who has
custody or control of a child between the ages of seven and sixteen
years shall cause said child to be regularly instructed in a public
school or in a private or parochial school or instructed privately
during the period of each year in which the public schools of the
District of Columbia are in session . . ."
Under Section 31-203, a child may be "excused" from
attendance only when
" . . . upon examination ordered by . . . [the
Board of Education of the District of Columbia], [the child] is
found to be unable mentally or physically to profit from attendance
at school: Provided, however, That if such examination shows that
such child may benefit from specialized instruction adapted to his
needs, he shall attend upon such instruction."
Failure of a parent to comply with Section 31-201
constitutes a criminal offense. D.C. Code 31-207. The Court need not
belabor the fact that requiring parents to see that their children
attend school under pain of criminal penalties presupposes that an
educational opportunity will be made available to the children. The
Board of Education is required to make such opportunity available. It
has adopted rules and regulations consonant with the statutory
direction. Chapter XIII of the Board Rules contains the following:
1.1 -- All children of the ages hereinafter
prescribed who are bona fide residents of the District of Columbia
are entitled to admission and free tuition in the Public Schools of
the District of Columbia, subject to the rules, regulations, and
orders of the Board of Education and the applicable statutes.
14.1 -- Every parent, guardian, or other person
residing permanently or temporarily in the District of Columbia who
has custody or control of a child residing in the District of
Columbia between the ages of seven and sixteen years shall cause
said child to be regularly instructed in a public school or in a
private or parochial school or instructed privately during the
period of each year in which the Public Schools of the District of
Columbia are in session, provided that instruction given in such
private or parochial school, or privately, is deemed reasonably
equivalent by the Board of Education to the instruction given in the
Public Schools.
14.3 -- The Board of Education of the District of
Columbia may, upon written recommendation of the Superintendent of
Schools, issue a certificate excusing from attendance at school a
child who, upon examination by the Department of Pupil Appraisal,
Study and Attendance or by the Department of Public Health of the
District of Columbia, is found to be unable mentally or physically
to profit from attendance at school: Provided, however, that if such
examination shows that such child may benefit from specialized
instruction adapted to his needs, he shall be required to attend
such classes.
Thus the Board of Education has an obligation to
provide whatever specialized instruction that will benefit the child. By
failing to provide plaintiffs and their class the publicly supported
specialized education to which they are entitled, the Board of Education
violates the above statutes and its own regulations.
The Constitution -- Equal Protection and Due Process
The Supreme Court in Brown v. Board of Education, 347
U.S. 483, 493, 74 S. Ct. 686, 691, 98 L. Ed. 873 (1954) stated:
"Today, education is perhaps the most important
function of state and local governments. Compulsory school attendance
laws and the great expenditures for education both demonstrate our
recognition of the importance of education to our democratic society. It
is required in the performance of our most basic public
responsibilities, even service in the armed forces. It is the very
foundation of good citizenship. Today it is a principal instrument in
awakening the child to cultural values, in preparing him for later
professional training, and in helping him to adjust normally to his
environment. In these days, it is doubtful that any child may reasonably
be expected to succeed in life if he is denied the opportunity of an
education. Such an opportunity, where the state has undertaken to
provide it, is a right which must be made available to all on equal
terms. (emphasis supplied)
Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L.
Ed. 884, Decided the same day as Brown, applied the Brown rationale to
the District of Columbia public schools by finding that:
"Segregation in public education is not
reasonably related to any proper governmental objective, and thus it
imposes on Negro children of the District of Columbia a burden that
constitutes an arbitrary deprivation of their liberty in violation
of the Due Process Clause."
In Hobson v. Hansen, 269 F. Supp. 401 (D.C.D.C. 1967)
Circuit Judge J. Skelly Wright considered the pronouncements of the
Supreme Court in the intervening years and stated that ". . . the Court
has found the due process clause of the Fourteenth Amendment elastic
enough to embrace not only the First and Fourth Amendments, but the
self-incrimination clause of the Fifth, the speedy trial, confrontation
and assistance of counsel clauses of the Sixth, and the cruel and
unusual clause of the Eighth." (269 F. Supp. 401 at 493, citations
omitted). Judge Wright concluded "From these considerations the court
draws the conclusion that the doctrine of equal educational opportunity
-- the equal protection clause in its application to public school
education -- is in its full sweep a component of due process binding on
the District under the due process clause of the Fifth Amendment."
In Hobson v. Hansen, supra, Judge Wright found that
denying poor public school children educational opportunities equal to
that available to more affluent public school children was violative of
the Due Process Clause of the Fifth Amendment. A fortiori, the
defendants' conduct here, denying plaintiffs and their class not just an
equal publicly supported education but all publicly supported education
while providing such education to other children, is violative of the
Due Process Clause.
Not only are plaintiffs and their class denied the
publicly supported education to which they are entitled many are
suspended or expelled from regular schooling or specialized instruction
or reassigned without any prior hearing and are given no periodic review
thereafter. Due process of law requires a hearing prior to exclusion,
termination of classification into a special program.
Vought v. Van Buren Public Schools, 306 F. Supp. 1388
(E.D. Mich. 1969); Williams v. Dade County School Board, 441 F.2d 299
(5th Cir. 1971); Cf. Soglin v. Kauffman, 295 F. Supp. 978 (W.D. Wis.
1968); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.
1961), cert. den., 368 U.S. 930, 82 S. Ct. 368, 7 L. Ed. 2d 193 (1961);
Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287
(1970).
The Defense
The Answer of the defendants to the Complaint
contains the following:
"These defendants say that it is impossible to
afford plaintiffs the relief they request unless:
(a) The Congress of the United States
appropriates millions of dollars to improve special education
services in the District of Columbia; or
(b) These defendants divert millions of dollars
from funds already specifically appropriated for other educational
services in order to improve special educational services. These
defendants suggest that to do so would violate an Act of Congress
and would be inequitable to children outside the alleged plaintiff
class."
This Court is not persuaded by that contention.
The defendants are required by the Constitution of
the United States, the District of Columbia Code, and their own
regulations to provide a publicly-supported education for these
"exceptional" children. Their failure to fulfill this clear duty to
include and retain these children in the public school system, or
otherwise provide them with publicly-supported education, and their
failure to afford them due process hearing and periodical review, cannot
be excused by the claim that there are insufficient funds. In Goldberg
v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1969) the
Supreme Court, in a case that involved the right of a welfare recipient
to a hearing before termination of his benefits, held that
Constitutional rights must be afforded citizens despite the greater
expense involved. The Court stated at page 266, 90 S. Ct. at page 1019,
that "the State's interest that his [welfare recipient] payments not be
erroneously terminated, clearly outweighs the State's competing concern
to prevent any increase in its fiscal and administrative burdens."
Similarly the District of Columbia's interest in educating the excluded
children clearly must outweigh its interest in preserving its financial
resources. If sufficient funds are not available to finance all of the
services and programs that are needed and desirable in the system then
the available funds must be expended equitably in such a manner that no
child is entirely excluded from a publicly supported education
consistent with his needs and ability to benefit therefrom. The
inadequacies of the District of Columbia Public School System whether
occasioned by insufficient funding or administrative inefficiency,
certainly cannot be permitted to bear more heavily on the "exceptional"
or handicapped child than on the normal child.
IMPLEMENTATION OF JUDGMENT
This Court has pointed out that Section 31-201 of the
District of Columbia Code requires that every person residing in the
District of Columbia ". . . who has custody or control of a child
between the ages of seven and sixteen years shall cause said child to be
regularly instructed in a public school or in a private or parochial
school or instructed privately . . ." 8 It is the
responsibility of the Board of Education to provide the opportunities
and facilities for such instruction.
The Court has determined that the Board likewise has
the responsibility for implementation of the judgment and decree of this
Court in this case. Section 31-103 of the District of Columbia Code
clearly places this responsibility upon the Board. It provides:
"The Board shall determine all questions of
general policy relating to the schools, shall appoint the executive
officers hereinafter provided for, define their duties, and direct
expenditures."
The lack of communication and cooperation between the
Board of Education and the other defendants in this action shall not be
permitted to deprive plaintiffs and their class of publicly supported
education. Section 31-104b of the District of Columbia Code dictates
that the Board of Education and the District of Columbia Government must
coordinate educational and municipal functions:
"(a) The Board of Education and the Commissioner
of the District of Columbia shall jointly develop procedures to
assure the maximum coordination of educational and other municipal
programs and services in achieving the most effective educational
system and utilization of educational facilities and services to
serve broad community needs. Such procedures shall cover such
matters as --
"(1) design and construction of educational
facilities to accommodate civic and community activities such as
recreation, adult and vocational education and training, and other
community purposes;
"(2) full utilization of educational facilities
during nonschool hours for community purposes;
"(3) utilization of municipal services such as
police, sanitation, recreational, maintenance services to enhance
the effectiveness and stature of the school in the community;
"(4) arrangements for cost-sharing and
reimbursements on school and community programs involving
utilization of educational facilities and services; and
"(5) other matters of mutual interest and
concern.
"(b) The Board of Education may invite the
Commissioner of the District of Columbia or his designee to attend
and participate in meetings of the Board on matters pertaining to
co-ordination of educational and other municipal programs and
services and on such other matters as may be of mutual interest."
(Emphasis supplied).
If the District of Columbia Government and the Board
of Education cannot jointly develop the procedures and programs
necessary to implement this Court's order then it shall be the
responsibility of the Board of Education to present the irresolvable
issue to the Court for resolution in a timely manner so that plaintiffs
and their class may be afforded their constitutional and statutory
rights. If any dispute should arise between the defendants which
requires for its resolution a degree of expertise in the field of
education not possessed by the Court, the Court will appoint a special
master pursuant to the provisions of Rule 53 of the Federal Rules of
Civil Procedure to assist the Court in resolving the issue.
Inasmuch as the Board of Education has presented for
adoption by the Court a proposed "Order and Decree" embodying its
present plans for the identification of "exceptional" children and
providing for their publicly supported education, including a time
table, and further requiring the Board to formulate and file with the
Court a more comprehensive plan, 9 the Court will not
now appoint a special master as was requested by plaintiffs. Despite the
defendants' failure to abide by the provisions of the Court's previous
orders in this case and despite the defendants' continuing failure to
provide an education for these children, the Court is reluctant to
arrogate to itself the responsibility of administering this or any other
aspect of the Public School System of the District of Columbia through
the vehicle of a special master. Nevertheless, inaction or delay on the
part of the defendants, or failure by the defendants to implement the
judgment and decree herein within the time specified therein will result
in the immediate appointment of a special master to oversee and direct
such implementation under the direction of this Court. The Court will
include as a part of its judgment the proposed "Order and Decree"
submitted by the Board of Education, as modified in minor part by the
Court, and will retain jurisdiction of the cause to assure prompt
implementation of the judgment. Plaintiffs' motion to require certain
defendants to show cause why they should not be adjudged in contempt
will be held in abeyance for 45 days.
JUDGMENT AND DECREE
Plaintiffs having filed their verified complaint
seeking an injunction and declaration of rights as set forth more fully
in the verified complaint and the prayer for relief contained therein;
and having moved this Court for summary judgment pursuant to Rule 56 of
the Federal Rules of Civil Procedure, and this Court having reviewed the
record of this cause including plaintiffs' Motion, pleadings,
affidavits, and evidence and arguments in support thereof, and
defendants' affidavit, pleadings, and evidence and arguments in support
thereof, and the proceedings of pre-trial conferences on December 17,
1971, and January 14, 1972, it is hereby ordered, adjudged and decreed
that summary judgment in favor of plaintiffs and against defendants be,
and hereby is, granted, and judgment is entered in this action as
follows: 1. That no child eligible for a publicly supported education in
the District of Columbia public schools shall be excluded from a regular
public school assignment by a Rule, policy, or practice of the Board of
Education of the District of Columbia or its agents unless such child is
provided (a) adequate alternative educational services suited to the
child's needs, which may include special education or tuition grants,
and (b) a constitutionally adequate prior hearing and periodic review of
the child's status, progress, and the adequacy of any educational
alternative.
2. The defendants, their officers, agents, servants,
employees, and attorneys and all those in active concert or
participation with them are hereby enjoined from maintaining, enforcing
or otherwise continuing in effect any and all rules, policies and
practices which exclude plaintiffs and the members of the class they
represent from a regular public school assignment without providing them
at public expense (a) adequate and immediate alternative education or
tuition grants, consistent with their needs, and (b) a constitutionally
adequate prior hearing and periodic review of their status, progress and
the adequacy of any educational alternatives; and it is further ORDERED
that:
3. The District of Columbia shall provide to each
child of school age a free and suitable publicly-supported education
regardless of the degree of the child's mental, physical or emotional
disability or impairment. Furthermore, defendants shall not exclude any
child resident in the District of Columbia from such publicly-supported
education on the basis of a claim of insufficient resources.
4. Defendants shall not suspend a child from the
public schools for disciplinary reasons for any period in excess of two
days without affording him a hearing pursuant to the provisions of
Paragraph 13.f., below, and without providing for his education during
the period of any such suspension.
5. Defendants shall provide each identified member of
plaintiff class with a publicly-supported education suited to his needs
within thirty (30) days of the entry of this order. With regard to
children who later come to the attention of any defendant, within twenty
(20) days after he becomes known, the evaluation (case study approach)
called for in paragraph 9 below shall be completed and within 30 days
after completion of the evaluation, placement shall be made so as to
provide the child with a publicly supported education suited to his
needs.
In either case, if the education to be provided
is not of a kind generally available during the summer vacation, the
thirty-day limit may be extended for children evaluated during
summer months to allow their educational programs to begin at the
opening of school in September.
6. Defendants shall cause announcements and notices
to be placed in the Washington Post, Washington Star-Daily News, and the
Afro-American, in all issues published for a three week period
commencing within five (5) days of the entry of this order, and
thereafter at quarterly intervals, and shall cause spot announcements to
be made on television and radio stations for twenty (20) consecutive
days, commencing within five (5) days of the entry of this order, and
thereafter at quarterly intervals, advising residents of the District of
Columbia that all children, regardless of any handicap or other
disability, have a right to a publicly-supported education suited to
their needs, and informing the parents or guardians of such children of
the procedures required to enroll their children in an appropriate
educational program. Such announcements should include the listing of a
special answering service telephone number to be established by
defendants in order to (a) compile the names, addresses, phone numbers
of such children who are presently not attending school and (b) provide
further information to their parents or guardians as to the procedures
required to enroll their children in an appropriate educational program.
7. Within twenty-five (25) days of the entry of this
order, defendants shall file with the Clerk of this Court, an up-to-date
list showing, for every additional identified child, the name of the
child's parent or guardian, the child's name, age, address and telephone
number, the date of his suspension, expulsion, exclusion or denial of
placement and, without attributing a particular characteristic to any
specific child, a breakdown of such list, showing the alleged causal
characteristics for such nonattendance (e.g., educable mentally
retarded, trainable mentally retarded, emotionally disturbed, specific
learning disability, crippled/other health impaired, hearing impaired,
visually impaired, multiple handicapped) and the number of children
possessing each such alleged characteristic.
8. Notice of this order shall be given by defendants
to the parent or guardian of each child resident in the District of
Columbia who is now, or was during the 1971-72 school year or the
1970-71 school year, excluded, suspended or expelled from
publicly-supported educational programs or otherwise denied a full and
suitable publicly-supported education for any period in excess of two
days. Such notice shall include a statement that each such child has the
right to receive a free educational assessment and to be placed in a
publicly-supported educational program suited to his needs. Such notice
shall be sent by registered mail within five (5) days of the entry of
this order, or within five (5) days after such child first becomes known
to any defendant. Provision of notification for non-reading parents or
guardians will be made.
9. a. Defendants shall utilize public or private
agencies to evaluate the educational needs of all identified
"exceptional" children and, within twenty (20) days of the entry of this
order, shall file with the Clerk of this Court their proposal for each
individual placement in a suitable educational program, including the
provision of compensatory educational services where required.
b. Defendants, within twenty (20) days of the entry
of this order, shall, also submit such proposals to each parent or
guardian of such child, respectively, along with a notification that if
they object to such proposed placement within a period of time to be
fixed by the parties or by the Court, they may have their objection
heard by a Hearing Officer in accordance with procedures required in
Paragraph 13.e., below.
10. a. Within forty-five (45) days of the entry of
this order, defendants shall file with the Clerk of the Court, with copy
to plaintiffs' counsel, a comprehensive plan which provides for the
identification, notification, assessment, and placement of class
members. Such plan shall state the nature and extent of efforts which
defendants have undertaken or propose to undertake to
(1) describe the curriculum, educational
objectives, teacher qualifications, and ancillary services for the
publicly-supported educational programs to be provided to class
members; and,
(2) formulate general plans of compensatory
education suitable to class members in order to overcome the present
effects of prior educational deprivations,
(3) institute any additional steps and proposed
modifications designed to implement the matters decreed in paragraph
5 through 7 hereof and other requirements of this judgment.
11. The defendants shall make an interim report to
this Court on their performance within forty-five (45) days of the entry
of this order. Such report shall show:
(1) The adequacy of Defendants' implementation of
plans to identify, locate, evaluate and give notice to all members
of the class.
(2) The number of class members who have been
placed, and the nature of their placements.
(3) The number of contested hearings before the
Hearing Officers, if any, and the findings and determinations
resulting therefrom.
12. Within forty-five (45) days of the entry of this
order, defendants shall file with this Court a report showing the
expunction from or correction of all official records of any plaintiff
with regard to past expulsions, suspensions, or exclusions effected in
violation of the procedural rights set forth in Paragraph 13 together
with a plan for procedures pursuant to which parents, guardians, or
their counsel may attach to such students' records any clarifying or
explanatory information which the parent, guardian or counsel may deem
appropriate.
13. Hearing Procedures.
a. Each member of the plaintiff class is to be
provided with a publicly-supported educational program suited to his
needs, within the context of a presumption that among the
alternative programs of education, placement in a regular public
school class with appropriate ancillary services is preferable to
placement in a special school class.
b. Before placing a member of the class in such a
program, defendants shall notify his parent or guardian of the
proposed educational placement, the reasons therefor, and the right
to a hearing before a Hearing Officer if there is an objection to
the placement proposed. Any such hearing shall be held in accordance
with the provisions of Paragraph 13.e., below.
c. Hereinafter, children who are residents of the
District of Columbia and are thought by any of the defendants, or by
officials, parents or guardians, to be in need of a program of
special education, shall neither be placed in, transferred from or
to, nor denied placement in such a program unless defendants shall
have first notified their parents or guardians of such proposed
placement, transfer or denial, the reasons therefor, and of the
right to a hearing before a Hearing Officer if there is an objection
to the placement, transfer or denial of placement. Any such hearings
shall be held in accordance with the provisions of Paragraph 13.e.,
below.
d. Defendants shall not, on grounds of
discipline, cause the exclusion, suspension, expulsion,
postponement, interschool transfer, or any other denial of access to
regular instruction in the public schools to any child for more than
two days without first notifying the child's parent or guardian of
such proposed action, the reasons therefor, and of the hearing
before a Hearing Officer in accordance with the provisions of
Paragraph 13.f., below.
e. Whenever defendants take action regarding a
child's placement, denial of placement, or transfer, as described in
Paragraphs 13.b. or 13.c., above, the following procedures shall be
followed.
(1) Notice required hereinbefore shall be given
in writing by registered mail to the parent or guardian of the
child.
(2) Such notice shall:
(a) describe the proposed action in detail;
(b) clearly state the specific and complete
reasons for the proposed action, including the specification of any
tests or reports upon which such action is proposed;
(c) describe any alternative educational
opportunities available on a permanent or temporary basis;
(d) inform the parent or guardian of the right to
object to the proposed action at a hearing before the Hearing
Officer;
(e) inform the parent or guardian that the child
is eligible to receive, at no charge, the services of a federally or
locally funded diagnostic center for an independent medical,
psychological and educational evaluation and shall specify the name,
address and telephone number of an appropriate local diagnostic
center;
(f) inform the parent or guardian of the right to
be represented at the hearing by legal counsel; to examine the
child's school records before the hearing, including any tests or
reports upon which the proposed action may be based, to present
evidence, including expert medical, psychological and educational
testimony; and, to confront and cross-examine any school official,
employee, or agent of the school district or public department who
may have evidence upon which the proposed action was based.
(3) The hearing shall be at a time and place
reasonably convenient to such parent or guardian.
(4) The hearing shall be scheduled not sooner than
twenty (20) days waivable by parent or child, nor later than forty-five
(45) days after receipt of a request from the parent or guardian.
(5) The hearing shall be a closed hearing unless the
parent or guardian requests an open hearing.
(6) The child shall have the right to a
representative of his own choosing, including legal counsel. If a child
is unable, through financial inability, to retain counsel, defendants
shall advise child's parents or guardians of available voluntary legal
assistance including the Neighborhood Legal Services Organization, the
Legal Aid Society, the Young Lawyers Section of the D.C. Bar
Association, or from some other organization.
(7) The decision of the Hearing Officer shall be
based solely upon the evidence presented at the hearing.
(8) Defendants shall bear the burden of proof as to
all facts and as to the appropriateness of any placement, denial of
placement or transfer.
(9) A tape recording or other record of the hearing
shall be made and transcribed and, upon request, made available to the
parent or guardian or his representative.
(10) At a reasonable time prior to the hearing, the
parent or guardian, or his counsel, shall be given access to all public
school system and other public office records pertaining to the child,
including any tests or reports upon which the proposed action may be
based.
(11) The independent Hearing Officer shall be an
employee of the District of Columbia, but shall not be an officer,
employee or agent of the Public School System.
(12) The parent or guardian, or his representative,
shall have the right to have the attendance of any official, employee or
agent of the public school system or any public employee who may have
evidence upon which the proposed action may be based and to confront,
and to cross-examine any witness testifying for the public school
system.
(13) The parent or guardian, or his representative,
shall have the right to present evidence and testimony, including expert
medical, psychological or educational testimony.
(14) Within thirty (30) days after the hearing, the
Hearing Officer shall render a decision in writing. Such decision shall
include findings of fact and conclusions of law and shall be filed with
the Board of Education and the Department of Human Resources and sent by
registered mail to the parent or guardian and his counsel.
(15) Pending a determination by the Hearing Officer,
defendants shall take no action described in Paragraphs 13.b. or 13.c.,
above, if the child's parent or guardian objects to such action. Such
objection must be in writing and postmarked within five (5) days of the
date of receipt of notification hereinabove described.
f. Whenever defendants propose to take action
described in Paragraph 13.d., above, the following procedures shall be
followed.
(1) Notice required hereinabove shall be given in
writing and shall be delivered in person or by registered mail to both
the child and his parent or guardian.
(2) Such notice shall
(a) describe the proposed disciplinary action in
detail, including the duration thereof;
(b) state specific, clear and full reasons for
the proposed action, including the specification of the alleged act
upon which the disciplinary action is to be based and the reference
to the regulation subsection under which such action is proposed;
(c) describe alternative educational opportunities to be available
to the child during the proposed suspension period;
(d) inform the child and the parent or guardian
of the time and place at which the hearing shall take place;
(e) inform the parent or guardian that if the
child is thought by the parent or guardian to require special
education services, that such child is eligible to receive, at no
charge, the services of a public or private agency for a diagnostic
medical, psychological or educational evaluation;
(f) inform the child and his parent or guardian
of the right to be represented at the hearing by legal counsel; to
examine the child's school records before the hearing, including any
tests or reports upon which the proposed action may be based; to
present evidence of his own; and to confront and cross-examine any
witnesses or any school officials, employees or agents who may have
evidence upon which the proposed action may be based.
(3) The hearing shall be at a time and place
reasonably convenient to such parent or guardian.
(4) The hearing shall take place within four (4)
school days of the date upon which written notice is given, and may be
postponed at the request of the child's parent or guardian for no more
than five (5) additional school days where necessary for preparation.
(5) The hearing shall be a closed hearing unless the
child, his parent or guardian requests an open hearing.
(6) The child is guaranteed the right to a
representative of his own choosing, including legal counsel. If a child
is unable, through financial inability, to retain counsel, defendants
shall advise child's parents or guardians of available voluntary legal
assistance including the Neighborhood Legal Services Organization, the
Legal Aid Society, the Young Lawyers Section of the D.C. Bar
Association, or from some other organization.
(7) The decision of the Hearing Officer shall be
based solely upon the evidence presented at the hearing.
(8) Defendants shall bear the burden of proof as to
all facts and as to the appropriateness of any disposition and of the
alternative educational opportunity to be provided during any
suspension.
(9) A tape recording or other record of the hearing
shall be made and transcribed and, upon request, made available to the
parent or guardian or his representative.
(10) At a reasonable time prior to the hearing, the
parent or guardian, or the child's counsel or representative, shall be
given access to all records of the public school system and any other
public office pertaining to the child, including any tests or reports
upon which the proposed action may be based.
(11) The independent Hearing Officer shall be an
employee of the District of Columbia, but shall not be an officer,
employee or agent of the Public School System.
(12) The parent or guardian, or the child's counsel
or representative, shall have the right to have the attendance of any
public employee who may have evidence upon which the proposed action may
be based and to confront and to cross-examine any witness testifying for
the public school system.
(13) The parent or guardian, or the child's counsel
or representative, shall have the right to present evidence and
testimony.
(14) Pending the hearing and receipt of notification
of the decision, there shall be no change in the child's educational
placement unless the principal (responsible to the Superintendent) shall
warrant that the continued presence of the child in his current program
would endanger the physical well-being of himself or others. In such
exceptional cases, the principal shall be responsible for insuring that
the child receives some form of educational assistance and/or diagnostic
examination during the interim period prior to the hearing.
(15) No finding that disciplinary action is warranted
shall be made unless the Hearing Officer first finds, by clear and
convincing evidence, that the child committed a prohibited act upon
which the proposed disciplinary action is based. After this finding has
been made, the Hearing Officer shall take such disciplinary action as he
shall deem appropriate. This action shall not be more severe than that
recommended by the school official initiating the suspension
proceedings.
(16) No suspension shall continue for longer than ten
(10) school days after the date of the hearing, or until the end of the
school year, whichever comes first. In such cases, the principal
(responsible to the Superintendent) shall be responsible for insuring
that the child receives some form of educational assistance and/or
diagnostic examination during the suspension period.
(17) If the Hearing Officer determines that
disciplinary action is not warranted, all school records of the proposed
disciplinary action, including those relating to the incidents upon
which such proposed action was predicated, shall be destroyed.
(18) If the Hearing Officer determines that
disciplinary action is warranted, he shall give written notification of
his findings and of the child's right to appeal his decision to the
Board of Education, to the child, the parent or guardian, and the
counsel or representative of the child, within three (3) days of such
determination.
(19) An appeal from the decision of the Hearing
Officer shall be heard by the Student Life and Community Involvement
Committee of the Board of Education which shall provide the child and
his parent or guardian with the opportunity for an oral hearing, at
which the child may be represented by legal counsel, to review the
findings of the Hearing Officer. At the conclusion of such hearing, the
Committee shall determine the appropriateness of and may modify such
decision. However, in no event may such Committee impose added or more
severe restrictions on the child.
14. Whenever the foregoing provisions require notice
to a parent or guardian, and the child in question has no parent or duly
appointed guardian, notice is to be given to any adult with whom the
child is actually living, as well as to the child himself, and every
effort will be made to assure that no child's rights are denied for lack
of a parent or duly appointed guardian. Again provision for such notice
to non-readers will be made.
15. Jurisdiction of this matter is retained to allow
for implementation, modification and enforcement of this Judgment and
Decree as may be required.
---- End Notes ----
1 See the following reports
compiled by the District of Columbia Board of Education, Division of
Planning, Research and Evaluation:
(1) Regularly Funded Special Education Programs in
the District of Columbia Public Schools, 1970-71;
(2) ESEA Title III Federal Programs of Special
Education in the District of Columbia Public Schools, 1970-71;
(3) Membership: Special Education Programs and
Services, 1970-71: Non Public School Resources.
2 See report entitled, "Description
of Projected Activities for Fiscal Year 1972 for the Education of
Handicapped Children," March 15, 1971.
3 The Court is informed that since
the filing of this action some of the named plaintiffs have been placed
in private schools, some in public schools, and others remain excluded.
4 District of Columbia Code,
31-101-et seq.
5 District of Columbia Code,
31-103.
6 Defendant Cassell filed a
separate Answer to the Complaint consenting to the relief prayed for and
also filed a memorandum in support of plaintiff's proposed Order and
Decree.
7 The Board of Education has not
adopted this plan.
8 This requirement is equally
applicable to the Department of Human Resources, Social Services
Administration, with respect to wards committed to them pursuant to D.C.
Code Sections 3-116 and 3-117.
9 The plaintiffs' proposed "Order
and Decree" suggests plans, procedures and time tables similar to those
proposed by defendant, Board of Education. |
