The plaintiffs include severely and moderately retarded persons who are allegedly denied their right to due process of law since they do not receive

a constitutionally minimal level of 'habilitation, a term which incorporates care, treatment, education, and training." It is specifically charged that the plaintiffs and others similarly situated are not provided with a humane psychological and physical environment. The complaint presents supporting evidence that some residents live in "old, poorly designed and hazardous" buildings not meeting state board of health safety and health standards, 'overcrowded dormitories,' bleak accommodations; and improperly equipped bathroom and toilet facilities. Additionally, it is indicated that residents are "subject to threats and physical assaults by other residents," improperly clothed, and denied any personal privacy.

It is further alleged that there is both an insufficient quantity of staff and insufficiently trained staff necessary to provide appropriate programs of habilitation. Due to staff shortages many residents have been forced to work in the institution as employees yet, according to the complaint, are denied payment as required by the fair labor standards act. Another allegation is that the "defendants have failed and refused to plan for and create less restrictive community facilities even though many members of the class programs.

could function more effectively in such

It is further argued that "the final condition for constitutionally adequate habilitation is the preparation for each resident of an individualized, comprehensive habilitation plan as well as a periodic review and re-evaluation of such a plan. On information and belief, defendants have failed to provide plaintiffs and the class they represent with a comprehensive habilitation plan or to provide periodic review of these plans."

The plaintiffs are seeking a judgment to include the following:

1.

A declaratory judgment that Minnesota's state institutions "... do not now meet constitutionally minimal standards of adequate habilitation including care, treatment and training.'

2. A declaratory judgment specifying constitutionally minimum standards of adequate habilitation for mentally retarded persons confined in the state institutions under the supervision and management of the commissioner of public welfare.

3.

Injunctions preventing defendants "from failing or refusing to rectify the unconstitutional conditions, policies and practices" described in the complaint and requiring them to "promptly meet such constitutionally minimal standards as this Court may specify."

4. Injunctions requiring the defendants "to pay plaintiffs and the class they represent working in the named institutions the minimum wage established pursuant to the Fair Labor Standards Act as amended, 29 U.S.C. Sec. 201 et seq."

HORACEK v. EXON, (U.S. District Court, Nebraska)

This late 1972 class action complaint agains Governor James J. Exon of Nebraska, the director of the state department of public institutions, the director of medical services, the director of the state office of mental retardation and the superintendent of the Beatrice State Home for the Mentally Retarded focuses on allegations that the residents of the state home "... are not receiving a constitutionally minimal level of 'habilitation,' a term which incorporates care, treatment, education, and training" and the exercise of constitutional rights including personal liberty.

The plaintiffs include five mentally retarded persons ranging in age from 13 to 26 and demonstrating borderline to severe mental retardation. These persons were residents in Beatrice for 1-1/2 to 10 years and all regressed since they were initially admitted. It is alleged that none were provided with appropriate education and/or training programs during their residence at Beatrice. An additional plaintiff is the Nebraska Association for Retarded Children.

The numerous allegations presented in the complaint include the following: 1. The approximately 1,400 residents of the Beatrice facility are all capable of benefiting from habilitation, yet have been denied from receiving same by the defendants.

2. Although a basis for the provision of habilitation services, individual treatment plans have not been developed for any residents.

3. "The environment at Beatrice is inhumane and psychologically destructive." Substantive charges listed include old, hazardous, and inadequately cooled and ventilated housing, lack of privacy, inadequate toilet and hygenic equipment and facilities, overcrowding, restrictive mail and telephone policies, improper clothing, inadequate diet and food preparation procedures, and finally the lack of sufficient therapy, education, or vocational training opportunities for the residents.

4. A shortage of all types of staff and the presence of many untrained staff, particulary direct-care personnel.

5. The absence of evaluation and review procedures to determine resident status and program needs.

6. Each Beatrice resident "... could be more adequately habilitated in alternatives less drastic than the conditions now existing at Beatrice." In this regard it is asserted that the defendants have failed to discharge residents who could live in less restrictive environments and also failed to plan and develop sufficient community facilities to meet this need.

7. Numerous violations of the equal protection clause of the fourteenth amendment including the unreasonable, arbitrary, and capricious classification of some residents as mentally retarded, the denial of equal education opportunities provided to children in the community, the expenditure of greater funds for the hospitalized mentally ill and the maintenance of standards in the instutition that are "markedly inferior" to community programs.

8. Many residents are required to engage in non-therapeutic work for token or no compensation thus violating constitutional provisions that prohibit enforced labor except as punishment for criminal acts.

9. The use of solitary confinement, strait-jackets and other restrictive devices and practices constitutes unlawfully cruel and unusual punishment.

2. The violations alleged are constitutional rights and are present rights which must immediately be respected.

3. A judgment indicating Beatrice does not provide constitutionally minimum standards of care and that the court will specify such minimum standards.

4. An injunction requiring the rectification of all unconstitutional conditions, policies, and practices.

5. A restriction preventing the defendants from building any non-community based facilities until the court determines that such programs are sufficiently available.

6. Enjoin defendants from admitting any more residents to Beatrice until minimum standards are met as determined by the court.

7. Require the provision of sufficient additional habilitation services to compensate for the regression and deterioration the Beatrice residents have suffered.

8. A judgment "... declaring that the community service programs are the contitutionally required least restrictive alternative for the habilitation of the mentally retarded in Nebraska."

9. A master be appointed.

10. The court retain continuing jurisdiction.

11. Plaintiff's attorneys' fees and the costs of the action.

A motion to dismiss the complaint has been filed by the defendants which is modeled after the court's decision in Burnham v. Department of Public Health.

PLACEMENT

LARRY P. v. RILES, Civil Action No. C-71-2270 (U.S. District Court, N. D.
California)

This class action suit was filed in late November, 1971, on behalf of the six named black, elementary aged children attending classes in the San Francisco Unified School District. It is alleged that they have been inappropriately classified as educable mentally retarded and placed and retained in classes for such children. The complaint argued that the children were not mentally retarded, but rather "the victims of a testing procedure which fails to recognize their unfamiliarity with the white middle class cultural background and which ignores the learning experiences which they may have had in their homes." The defendants included state and local school officials and board members.

It is alleged that misplacement in classes for the mentally retarded carries a stigma and "a life sentence of illiteracy." Statistical information indicated that in the San Francisco Unified School District, as well as the state, a disproportionate number of black children are enrolled in programs for the retarded. It is further pointed out that even though code and regulatory procedures regarding identification, classification, and placement of the mentally retarded were changed to be more effective, inadequacies in the processes still exist.

The plaintiffs asked the court to order the defendants to do the following:

1. Evaluate or assess plaintiffs and other black children by using group or individual ability or intelligence tests which properly account for the cultural background and experience of the children to whom such tests are administered;

2. Restrict the placement of the plaintiffs and other black children now in classes for the mentally retarded on the basis of results of culturally discriminatory tests and testing procedures;

3. Prevent the retention of plaintiffs and other black children now in classes for the mentally retarded unless the children are immediately reevaluated and then annually retested by means which take into account cultural background;

4.

Place plaintiffs into regular classrooms with children of comparable age and provide them with intensive and supplemental individual training thereby enabling plaintiffs and those similarly situated to achieve at the level of their peers as rapidly as possible;

5. Remove from the school records of these children any and all indications that they were/are mentally retarded or in a class for the mentally retarded and ensure that individual children not be identified by the results of individual or group I.Q. tests;

6. Take any action necessary to bring the distribution of black children in classes for the mentally retarded into close proximity with the distribution of blacks in the total population of the school districts;

7. Recruit and employ a sufficient number of black and other minority psychologists and psychometrists in local school districts, on the admissions and planning committees of such districts, and as consultants to such districts so the tests will be interpreted by persons adequately prepared to consider the cultural background of the child. Further, the State Department of Education should be required in selecting and authorizing tests to be administered to school children throughout the state, to consider the extent to which the testing development companies utilized personnel with minority ethnic backgrounds and experiences in the development of culturally relevant tests;

8. "Declare pursuant to the Fourteenth Amendment to the United States Constitution, the Civil Rights Act of 1964, and the Elementary and Secondary Education Act and Regulations, that the current assignment of plaintiffs and other black students to California mentally retarded classes resulting in excessive segregation of such children into these classes is unlawful and unconstitutional and may not be justified by administration of the currently available I.Q. tests which fail to properly account for the cultural background and experience of black children.

On June 20, 1972 U.S. District Court Judge Robert Peckham of the Northern District of California issued an order and memorandum for a preliminary injunction requiring that "... no black student may [in the future] be placed in an EMR class on the basis of criteria which rely primarily on the results of I.Q. tests as they are currently administered if the consequence of use of such criteria is racial imbalance in the composition of EMR classes.

Judge Peckham in issuing this order determined that the incorrect placement of children in classes for the educable mentally retarded causes irreparable injury. Secondly, he pointed out that the I.Q. test as alleged by the plaintiffs is in fact culturally biased. Third, he discussed the statistical evidence gathered in San Francisco and the state of California that demonstrates that if the assumption is made that intelligence is randomly distributed, then children requiring EMR programs should be proportionately representative of all races. Yet the statistical data indicates that many more black than white children are classified educable mentally retarded and subsequently placed in special programs.

...

Because this pattern suggests the "suspect classification" of black children as an identifiable class, the judge felt that the burden of demonstrating that the use of the IQ test is not discriminatory falls to the school district. The San Francisco school district while not contesting the alleged bias of standardized IQ tests did point out that ". the tests are not the cause of the racial imbalance in EMR classes, or that the tests, although racially biased, are rationally related to the purpose for which they are used because they are the best means of classification currently available." The court concluded that the school district did not effectively demonstrate that I.Q. tests are rationally related to the purpose of segregating students according to their ability to learn in regular classes, at least insofar as those tests are applied to black students."

...