... " While Craig's parents signed a form acknowledging their responsibility to remove the child from school if notified by the superintendent, it is alleged that this consent is suspect for a variety of reasons including the absence of "... notions of due process or a prior hearing Further, it is indicated that the defendants ". failed to specify in advance the basis upon which such determination was to be made, failed to afford an adequate hearing on Craig's termination, and failed to provide a fair record for review or any right of review at all. The plaintiff concludes that "defendants attempt to summarily terminate Craig's constitutional and statutory right to an education at defendant school by such a unilaterial, coercive procedure is wrongful and is violative of the procedural guarantees owing to Craig and his parents under the due process provisions of the United States and California Constitutions." In addition to seeking a temporary restraining order, a preliminary injunction and a permanent injunction preventing the defendants from interferring in Craig's education at Riverside, the plaintiff is also seeking the cost of the suit. On June 14, 1972, the court ordered the defendants to show cause why a preliminary injunction should not be granted and in the interim restrained and enjoined the defendants from dismissing Craig from the school. KIVELL v. NEMOITIN, No. 143913, (Superior Court, Fairfield County at Bridgeport, Connecticut). In a Memorandum of Decision issued by Superior Court Judge Robert J. Testo on July 18, 1972, the mother of 12-year old Seth Kivell, "a perceptually handicapped child with learning disabilities" was awarded $13,400 to pay for the out-of-state private education the child received for two years when it was held that the defendant Stamford, Connecticut Board of Education did not offer an appropriate special education program for him. The suit was brought by the mother of Seth Kivell when the child was initially classified by a Stamford Public School diagnostic team as a child in need of special education. The same team recommended a program to the parents who, on the basis of an independent evaluation and recommendation by a consulting psychologist transferred Seth to an out-of-state private school. The parents pursued their alleged rights through a local board hearing at which their appeal was denied and a state board hearing. After a state investigation, the state commissioner of education agreed with the plaintiff that the program offered for that year would not have met the child's needs. The commissioner indicated that if the Stamford board reversed its decision and assumed the tuition costs, the state under existing statutes would reimburse the district. This course was rejected by the Stamford board. The commissioner then ordered the district to submit a plan for his approval for the provision of appropriate special education services. Such a plan was approved and the parents were notified approximately two months after the start of the second school year for which the judgment applied. Judge Testo wrote after reviewing the state's statutory obligation to handicapped children that "it is abundantly clear from the statutes that the regulation and supervision of special education is within the mandatory duty of the state board of education and that the local town board is its agent charged with the responsibility of carrying out the intent of the law which the minor needs and is entitled to." An order was also issued "directing the Stamford Board of Education and Superintendent of Schools of said City to furnish the minor with the special education required by the statutes of this State. Compliance of this order shall mean the acceptance and approval by the State Board of Education of the program submitted by the local board of education." It is worthy of note that the judge anticipated that on the basis of his decision a multitude of similar suits might be filed. Consequently he stated that "this court will frown upon any unilateral action by parents in sending their children to other facilities. If a program is timely filed by a local board of education and is accepted and approved by the state board of education, then it is the duty of the parents to accept said program. A refusal by the parents in such a situation will not entitle said child to any benefits from this court." IN RE HELD, Docket Nos. H-2-71 and H-10-71, N.Y. FAMILY COURT, WESTCHESTER This case heard in West chester County, New York Family Court concerned the failure of the Mt. Vernon Public Schools to adequately educate eleven year old Peter Held. These proceedings were initiated after Peter Held had been enrolled in the public schools for five years, three of which in special education classes. During that time the child's reading level never exceeded that of an average first grade student. After the child was removed from the public school and placed in a private school, his reading level, in one year increased about two grades and he "...became a class leader." In his decision, Judge Dachenhausen "... noted with some concern, the lack of candor shown by the representative of the Mount Vernon city school district in not acknowledging the obvious weaknesses and failure of its own special education program to achieve any tangible results for this child over a five year period." In commenting about the progress made by the child in the private school, the judge said, "It seems that now, for the first time in his young life, he has a future." Further, the judge noted that "This court has the statutory duty to afford him an opportunity to achieve an education." The court in its ruling issued November 29, 1971, noted that since the child "to develop his intellectual potential and succeed in the academic area" must be placed in a special education setting such as the private school and since, "It is usually preferable for a child to continue at the school where she is making satisfactory progress" (Knauff v. Board of Education, 1968, 57 Misc 2d 459) ordered that the cost of Peter Held's private education be paid under the appropriate state statute provisions for such use of public monies. The costs of transporting the child to the private school was assumed by the local district. It is important to note that a year earlier, the child's mother applied for funds under the same statute for the payment of this private tuition but the application was not approved. This occurred even though "The superintendent of the Mount Vernon public schools" certified that the special facilities provided at the private school were not available in the child's home school district. Also of interest is that in June of 1971, an initial decision rendered on this matter required the state and the city of Mount Vernon, where the child resides to each pay one half of the private school tuition. That decision was vacated and set aside because the city argues that the court lacked jurisdiction over the city because "no process was ever served upon it and it never appeared in any proceeding." NORTH DAKOTA ASSOCIATION FOR RETARDED CHILDREN v. PETERSON (U.S. District Court, North Dakota) In late November 1972, a class action right to education suit was introduced in the southwestern division of the North Dakota District Court on behalf of all retarded and handicapped children of school age residing in North Dakota. The plaintiffs include the North Dakota Association for Retarded Children and 13 children who represent all other children similarly situated. The defendants include the state superintendent of public instruction, the state board of education, the state director of institutions, the superintendent of the state school for the mentally retarded, and six local school districts in the state as representative districts. The 13 named children, ranging in age from 6 to 19 possess levels of intellectual functioning from profound to moderate. In addition, some of the children possess physical handicaps and specific learning disabilities. It is alleged that in order to obtain an education, many of the children have to attend private programs paid for by parents or have to live in a foster home paid for by parents in a community where special education programming is available. In addition, some children, although being of school age, are presently receiving no education or are attending a private day care program or reside in the state school for mentally retarded where no educational programs are provided. The importance of an education to all children and in particular to the handicapped is pointed out in the complaint where it is also alleged that only about 27% of the 25,000 children in North Dakota needing special education services are enrolled in such programs. It is indicated that the remaining 73% are: 1. "enrolled in private educational programs because no public school program exists, usually at extra expense to the child's family; 2. "are attending public schools, but receiving no education designed to meet their needs and receiving social promotions while they sit in the classroom and until they discontinue their education or become old enough to be dismissed: 3. "are institutionalized at the Grafton State School where insufficient programs exist to meet their educational needs; or 4. "are at home, receiving no education whatsoever." The specific alleged violations of the law are as follows: 1. The deprivation of the equal protection clause of the 14th amendment of the United States Constitution in that the state compulsory school attendance laws " arbitrarily and capriciously discriminate between the child whose physical or mental condition is such as to render his attendance or participation in regular or special education programs inexpedient or impractical, and the child deemed to be of such physical and mental conditions as to render his attendance and participation in regular or special education programs expedient and practical. It is also alleged that children excluded from the public school and assigned to "the state school for the mentally retarded are not all offered an education." Further "the superintendent of any of [state] institutions may excuse the child from such institution without any reason or hearing thereon, and upon such exclusion the child is without any educational opportunities in the state of North Dakota." Because the state school does not have sufficient capacity for all the children on its waiting list, some children are simply excused from admission by denying their request for admission. 2. The deprivation of plaintiffs' rights of "... due process of law in violation of the 14th amendment of the United States Constitution in that it arbitrarily and capriciously and for no adequate reason denies to retarded and handicapped children of school age the education and opportunity to become self-sufficient, contributing members to the State of North Dakota, guaranteed by the Constitution and laws of the State of North Dakota and subjects them to jeopardy of liberty and even of life." 3. The deprivation of plaintiffs' rights "... of equal protection of the law in violation of the 14th Amendment of the Constitution of the United States, in that, excluding plaintiffs from the public schools, it conditions their education to those children whose parents are poor and unable to provide for their children's education otherwise." 4. The deprivation of plaintiffs' rights of "... equal protection of the law in violation of the 14th Amendment to the Constitution of the United States, in that plaintiffs' parents are taxed for the support of a system of public education, nevertheless the children are denied the benefits thereof, and they must pay additional monies to secure an education for their children." 5. The deprivation of plaintiffs' rights "... of procedural due process of law in violation of the 14th Amendment to the United States Constitution, in that there is no provision for notice or for hearing of any kind, let alone any impartial hearing, with right of cross-examination, prior to or after the exclusion." 6. The use by the defendants of the state compulsory attendance law to permit violations that provide to parents, the decision of whether their child will attend school and further ". to mandate non-attendance contrary to the parents' wishes." ... 7. The confusion by the defendants of the compulsory attendance requirements that exclude "... retarded children from school until the age of 7 years and excluding retarded children after age 16, despite their parents' election to the contrary, and the clear statutory guarantee that every child may attend public schools between the ages of 6 and 21 years." 96-675 - 73 -- 8 ... 8. The denial of the plaintiffs' "...right to attend public school and to an education by excluding and excusing them from school, by postponing their admission to school, by terminating their attendance at 16 years, and by failing to provide education for ..." the children in residence at the state school for the mentally retarded. This allegation is also based on the equal protection provisions of the 14th amendment. 9. It is also alleged that in many cases where handicapped children are admitted to school they still are deprived of a meaningful education and "that the failure of the defendants to provide a meaningful education suited to the educational needs of such retarded and handicapped children deprives such children of an education just as certainly as said children were physically excluded from public schools. 10. Finally, the allegation that the exclusion clause of the state compulsory attendance law is unconstitutional and "... provides no meaningful or recognizable standard of determining which children should be excused [excluded] from public schools and when used ..." is a violation of the constitutions of North Dakota and the United States. The relief the plaintiffs are seeking includes the following: 1. The convening of a three-judge court. 2. Declaration that selected statutes, related regulations and practices are unconstitutional and must not be enforced. 3. Enjoin the defendants from "denying admission to the public schools and an education to any retarded or handicapped child of school age." " 4. Enjoin the defendants from "denying an educational opportunity to any child at the Grafton State School" [for the mentally retarded]. 5. Enjoin the defendants from "otherwise giving differential treatment concerning attendance at school to any retarded or handicapped child." 6. Require the defendants "to provide, maintain, administer, supervise and operate classes and schools for the education of retarded and handicapped children throughout the state of North Dakota and specifically where hearing shows an inadequate number of classes or schools are provided for the education and training of such retarded or handicapped children." This also applies to the state's institutions. 7. Require the defendants to provide compensatory education to plaintiff children and their class who, while of school age, were not provided with a meaningful education suited to their needs. 8. Plaintiffs' costs for prosecuting the action. |