In the cross complaint against the defendants it is alleged that if the complaint is successful that inequities will occur among the school districts in the financial responsibility for providing for the education of the plaintiff and the class. The relief sought by the school district includes a dismissal of the complaint but also that if the complaint is successful, the statute regarding the financial responsibility for children placed in programs outside the state be declared unconstitutional as different burdens are assessed on the basis of the populations of the child's resident school district and/or country. This case is continuing. CASE v. STATE OF CALIFORNIA, Civil Action No. 101679 (California Superior Court, Riverside County). a Lori Case is a school age child who has been definitively diagnosed as autistic and deaf and who may also be mentally retarded. After unsuccessfully attending a number of schools, both public and private for children with a variety of handicaps, Lori was enrolled in the multi-handicapped unit at the California School for the Deaf at Riverside, California. Plaintiff attorneys maintain that this unit was created specifically to educate deaf children with one or more additional handicaps requiring special education. Lori began attending the school in May 1970, and is alleged to have made progress point which is disputed by the defendants. The plaintiffs argue that to exclude her from Riverside would cause regression and possibly nullify forever any future growth. As a result of a case conference called to discuss Lori's status and progress in school, it was decided to terminate her placement on the grounds that she was severely mentally retarded, incapable of making educational progress, required custodial and medical treatment, and intensive instruction that could not be provided by the school because of staffing and program limitations. The plaintiffs sought an immediate temporary restraining order and a preliminary and permanent injunction restraining defendants from preventing, prohibiting, or in any manner interfering with Lori's education at Riverside. A temporary restraining order and a preliminary injunction were granted by the Superior Court of the State of California for the County of Riverside. The arguments presented by the plaintiffs are those seen in other "right to education" cases. The question of the definition of education or educability is raised. The plaintiff attorneys state that "if by 'uneducable' defendants mean totally incapable of benefiting from any teaching or training program, then plaintiffs are in agreement, but defendants' own declaration demonstrate that Lori is not uneducable in this sense. However, if by 'educable' defendants mean 'capable of mastering the normal academic program offered by the public schools, then defendants are threatening to dismiss Lori on the basis of a patently unconstitutional standard. Application of such a narrow and exclusionary definition, in view of the extensive legislative provisions for programs for the mentally retarded, the physically handicapped, and the multi-handicapped would clearly violate both Lori's rights to due process and equal protection. The right to an education to which Lori is constitutionally entitled is the right to develop those potentials which she has." Assuming acceptance of Lori's educability, the attorneys argue that "there is absolutely no distinction in law, or in logic, between a handicapped child and a physically normal child. Each is fully entitled to the equal protection and benefits of the laws of this State. Thus, to deprive Lori of her right to an education would violate her fundamental rights." The issue raised by the defendants regarding staffing and program limitations was answered by pointing out that the courts have ruled that the denial of educational opportunity solely on the basis of economic reasons is not justifiable. And finally the manner in which the disposition of Lori's enrollment at the school was determined was "unlawful, arbitrary and capricious and constituted a prejudicial abuse of discretion.' It is pointed out that Lori's right to an education must be examined in a court of law, offering the entire panaply of due process protections .. ... The case was filed on January 7, 1972, and a temporary restraining order was granted the same day. A preliminary injunction was granted on January 28, 1972. Plaintiffs' first set of interrogatories were filed on March 10, 1972, and a trial date set for May 8, 1972. Trial was held on September 5, 1972. decision is expected in the near future. BURNSTEIN v. THE BOARD OF EDUCATION (California Superior Court, Contra Costa County). A The plaintiff children are described as autistic for whom inappropriate or no public education programs have been provided. Thus, there are within this suit two sets of petitioners and two classes. The first class includes autistic children residing in Contra Costa County, California, who have sought enrollment in the public schools but were denied placement because no educational program was available. The second class of petitioners includes five children also residing in Contra Costa County and classified as autistic. These children have been enrolled in public special education classes but not programs specifically designed to meet the needs of autistic children. The complaint alleges that no services were provided to any of the children named until the plaintiffs in October, 1970, informed the defendants that "they were in the process of instituting legal action to enforce their rights to a public education, pursuant to the laws of the state of California and the Constitution of the United States." The children named in the second class were placed in special education programs, but as indicated, not a program designed specifically to meet their needs. It is argued in the brief that "education for children between the ages of six and sixteen is not a mere privilege but is a legally enforceable right" under both the state laws of California and the United States. Further, it is pointed out that specialized programs to meet the needs of autistic children are required to enable these children to participate fully in all aspects of adult life. It is also indicated that autistic children are educable and that when they are provided with appropriate programs they can become qualified for regular class room placement. Based on the allegation that the petitioners have been denied their rights to an education by the school board who, although knowing of their request for enrollment in programs, "wrongfully failed and refused and continued to fail and refuse...' enrollment, the petitioners request the court to command the school board "to provide special classes and take whatever other and further steps necessary to restore to petitioners the right to an education and an equal educational opportunity..." The arguments presented by the attorneys for the petitioners justify on a variety of legal bases their rights to publicly-supported educational opportunities. In addition to citing the equal protection provisions of both the United States and California Constitutions, it is also pointed out that "denial of a basic education is to deny one access to the political processes. Full participation in the rights and duties of citizenship assumes and requires effective access to the political system..." Further, the attorneys argue that "one may be denied his economic rights through denial of an education." In addition, the petitioners are not only denied the same educational benefits as non-handicapped children, but also are denied that which is provided to other school-age children suffering from mental or physical disabilities. Finally, the attorneys provide an argument that refutes the frequently used high cost rationale for the denial of special education programs. They say that "granting an education to some while denying it to others is blatant grounds that providing one with rights to which he is entitled but unlawfully denied will result in additional expense. If the respondent in this case is unable to receive funding for the required classes from the state, it is incumbent on it to reallocate its own budget so as to equalize the benefits received by all children entitled to an education." This case is presently expected to go before the Superior Court of the State of California in and for the County of Contra Costa this winter. TIDEWATER ASSOCIATION FOR AUTISTIC CHILDREN v. COMMONWEALTH OF VIRGINIA, In August, 1972, suit was entered in the Norfolk Division of the U.S. District Court for the Eastern District of Virginia on behalf of the class of autistic children who as plaintiffs against the state of Virginia and the state board of education for their alleged legal right to be provided with a free public program of education and training appropriate to each child's capacity. The complaint is based upon the "basic premise" that "... the class of children which the plaintiff seeks to represent are entitled to an education and that they have a right under the United States Constitution to develop such skills and potentials which they, as a handicapped child, might have or possess. The plaintiff asserts that to deny an autistic child a right to an education is a basic denial of their fundamental rights. It is also charged in the complaint that discrimination is being practiced against autistic children "since they are educable and no suitable program of training or education is available for them." It is also pointed out that the state has wrongfully failed to provide a program for these children on the basis that "there is not enough money available. The complaint also contains a history of the state's failure to establish pilot programs for approximately 22 children in the Tidewater Virginia area. After the request for funds from the state was reduced from $100,000 to $70,000, the state appropriated $20,000 to serve seven children in the four to seven year age range. Finally, it is alleged that if the requested relief is not granted, there are teen-age members of class who will not have an opportunity to ... receive any training or education whatsoever." Specifically, the relief sought includes: 1. Granting of declaratory judgment that the practices alleged in the complaint violates the Fourteenth Amendment of the U.S. Constitution. 2. Immediate establishment of free and appropriate programs of education and training geared to each child's capacity. 3. "Determine that each and every child, regardless of his or her mental handicap, is entitled to the equal protection of the law and a right to an education in accordance with the child's capacity." 4. Awarding of court and attorney fees to the plaintiffs. On the 7th of September, the Commonwealth of Virginia submitted to the Court a motion to dismiss the suit for the following reasons: 1. 2. 3. court. "Plaintiff fails to state a claim upon which relief may be granted." Suits may not be filed against the Commonwealth of Virginia. The complaint should first be heard by a state rather than a federal In December, 1972, the court issued a memorandum, opinion, and order that dismissed the plaintiff's complaint. In making this judgment, Judge MacKenzie of the Eastern District of Virginia reasoned that although the importance of an equal education is widely recognized, there is nothing in the United States Constitution that "... addresses itself to any explicit or implicit guarantee of a right to a free public education." He further explained that because such a right is guaranteed by the Virginia Constitution and state laws, abridgement of that right should first be pursued through appropriate state remedies. sequently, the court refused "on the basis of comity and the doctrine of equitable abstention the premature attempt to enforce this untested Virginia law." ... Con The argument made by the plaintiffs was that even if the United States Constitution does not provide for the right to free public education, the equal protection clause does provide for equal treatment meaning that if education is provided for some autistic children, it must be provided for all. In responding to this arguement, the court recognized the 1972 Virginia legislation calling for mandatory surveying and planning for the eud cation of the handicapped as well as annually reporting progress and statutes that provide tuition for parents of autistic children to use to obtain private school placement for their children in the absence of public programs as a "... firm commitment by the state to live up to its equal protection obligation under the fourteenth amendment, as well as its own state constitution." In the decision, the court states the assumption ... that the above statutes would be applied ". in a constitutional fashion and at this time it would be premature to hold otherwise." Support for this position is taken from the decision in Harrison v. Michigan. Finally, the court ruled that no violation of equal protection occurred when a selected group of autistic children were selected for a pilot program while other similarly situated children did not have access to the program because the state's action was rationally based and "free of invidious discrimination" and that further "... the equal protection clause does not require that a state choose between attacking every aspect of a problem at once or not attacking the problem at all." UYEDA v. DEPARTMENT OF EDUCATION (California) In June, 1972, suit was initiated by the mother of Craig Uyeda, a profoundly deaf 10-year old boy against the California School for the Deaf at Riverside, its superintendent, Dr. Richard Brill, and the associate state superintendent of special education for an alleged violation of the child's civil rights. Craig, a profoundly deaf child described as being "exceptionally bright" had been placed in the Riverside program since September, 1967. In September 1971, Craig was transferred from the regular program at Riverside to the multi-handicapped unit because of behavior problems that were interferring with his academic progress. The defendants informed the parents in May, 1972, that because Craig was a danger to the staff and other children, his enrollment was to be terminated. ... The essence of the plaintiff's complaint is that in the absence of a compelling need and overwhelming necessity, to deprive Craig of his right to an education, which defendants seek to do, would violate his fundamental rights." It is also argued that "there is absolutely no distinction, in law or in logic, between a handicapped child and physically normal child. Each is fully entitled to the equal protection and benefits of the laws of this state. Finally, it is pointed out that California state law is clear in providing for the education of children with severe handicaps in special programs and that "to then expect such children to perform as well as those children with less severe educational handicaps makes a mockery of the school's duty and constitutes a flagrant violation of the severely handicapped student's right to an education." Although the relief ultimately being sought is a permanent injunction, the initial request for a temporary restraining order and a preliminary injunction is made on the grounds that expulsion of the child from his present school will result in injury and irreparable harm and possibly the loss of any academic progress made to date. Further, it is alleged that although the defendants indicate there is another appropriate program available in the state, the staff at that program feel that the child is too old. Further, the defendants' original recommendation for the child's placement in the Riverside multi-handicapped unit was based on the availability of the needed behavior modification programs which does not exist at the other school. Finally, plaintiffs allege that Craig's behavioral problems which are the alleged reason for his dismissal are not unique to him and are seen in comparable degrees to other children in the multi-handicapped unit. |