1. Discriminates between handicapped and non-handicapped children by allowing a county or city superintendent of schools to decide that a "Child cannot substantially profit from the instructions given in the public school as now constituted and as such discriminates against the severely afflicted by mental, emotional or physical incapacity children in favor of those children who are not so afflicted in that these unfortunate children are deprived of any and all educational training whereas the children who do not fall in this classification or category obtain complete free public education.'

2. "Arbitrarily and capriciously and for no adequate reason" denies mentally retarded children educational opportunities to become self-sufficient and contributing citizens as guaranteed by the North Carolina constitution and laws and further "subjects them to jeopardy of liberty and even of life."

3. Denial of the plaintiff children from attendance in public schools imposes the unfair criterion of family wealth as the determining factor of their receiving an education. In effect, children from poor families are unable to obtain private education as can children from financially able families.

4.

Plaintiffs' parents, although paying taxes for the support of public schools, are unable to have their children admitted and thus in order to obtain an education for them must pay additional funds.

Other counts included in the complaint are as follows:

1. In the implementation of the school attendance law plaintiffs are denied procedural due process of law as guaranteed in the 14th amendment of the U.S. Constitution including provisions for notice, hearing, and cross examination.

2. The North Carolina statute requiring parents to send their children to school contains an exception which relieves parents of children "afflicted by mental, emotional, or physical incapacities so as to make it unlikely that such child could substantially profit by instruction given in the public schools" from this responsibility. Plaintiffs argue however that this statute which is "to forgive what otherwise would be violations of compulsory attendance requirements and to preserve to the parents the decision of whether the child shall attend school" is in fact used to "mandate non-attendance contrary to parents' wishes and thus justify the exclusion of retarded children from the public schools "in violation of their constitutional rights."

3. The defendants have ignored the law that all children are eligible for public school enrollment at age six and have excluded retarded children until they are older.

4. In addition to preventing the enrollment of plaintiff children in public schools, the defendants also are alleged to exclude, excuse, and postpone admission to public schools and to provide education for children at state schools, hospitals, institutions, and other facilities for the mentally retarded.

The suit seeks the following remedies:

1.

Declaration that all relevant statutes, policies, procedures, and practices are unconstitutional.

2. Permanently enjoin the defendants from the practices described as well as "giving differential treatment concerning attendance at school to any retarded child.

3. A permanent injunction requiring that the defendants operate educational programs for the retarded in schools, institutions, and hospitals, and, if necessary, at home with all costs being charged to the responsible public agency.

4. A permanent mandatory injunction directing the defendants to provide compensatory years of education to each retarded person who has been excluded, excused, or otherwise denied the right to attend school while of school age and further enjoin the defendants to give notice of the judgment herein to the parents or guardians of each such child.

5. Provision to the plaintiffs the cost of the suit including "reasonable counsel fees."

On July 31, 1972, an expanded complaint was filed naming in addition to the North Carolina Association for Retarded Children, 22 plaintiff children. The new complaint joins the original North Carolina Association for Retarded Children suit with Crystal Rene Hamilton v. Dr. J. Iverson Riddle, Superintendent of Western Carolina Center, et. al. (Civil Action No. 72-86). The additional plaintiffs include children whose histories permitted the addition of the following allegations regarding the state's failure to provide for their education: who have by the defendants (5) been denied the right of free homebound instruction or (6) been denied the right of tuition or costs reimbursement in private schools or institutions or (7) been denied the right of free education, training or habilitation in institutions for mentally retarded operated by the State of North Carolina."

...

A further distinction is the allegation that there are state statutes which operate to grant "aid to the mentally retarded children below the age of six years in non-profit private facilities for retarded children and excluding such aid to mentally retarded children above six years attending the same type of institutions."

It is further alleged that the defendants further "failed to provide for appropriate free education, training and habilitation of the plaintiffs in their homes after excluding the plaintiffs from free education and training in the public schools and thus condition the plaintiffs education in the homes upon the impermissible criteria of wealth, denying training, education, and habilitation to those children whose parents are poor."

In the expanded suit an additional count has been introduced that focuses on the state institutions for the mentally retarded. Specifically, it is alleged that the centers for the retarded are "warehouse institutions which, because of their atmosphere of psychological and physical deprivation, the institutions are wholly incapable of furnishing habilitation to the mentally retarded and are conducive only to the deterioration and the debilitation of the residents." It is also charged that the institutions are understaffed, overcrowded, unsafe and do not provide residents with "education, training, habilitation, and guidance as will enable them to develop their ability and maximum potential."

The plaintiffs are seeking in addition to the remedies originally sought the granting of a permanent injunction:

1.

to prevent the defendants from denying the right of any retarded child of six years and older to free homebound instruction;

2. to prevent the defendants from denying the reimbursement of tuition and costs to the parents of retarded children in private schools or facilities;

3. to direct the defendants to establish publicly-supported training programs and centers for all mentally retarded children without discrimination;

4. to direct the defendants "to provide such education, training and habilitation outside the public schools of the district or in special institutions or by providing for teaching of the child in the home if it is not feasible to form a special class in any district or provide any retarded child with education in the public schools of the district ..."

HAMILTON v. RIDDLE, Civil Action No. 72-86 (U.S. District Court, W.D. of North
Carolina, Charlotte Division)

This case was filed on May 5, 1972, in the Charlotte Division of the Western District Court of North Carolina as a class action on behalf of all school age mentally retarded children in North Carolina. Defendants include the superintendent of the Western Carolina Center, a state institution for the mentally retarded; the secretary of the North Carolina department of human resources; the state superintedent of public instruction; and the chairman of the Gaston County board of education.

Crystal Rene Hamilton is an eight year old mentally retarded child who on November 1, 1971, when admitted to the Western Carolina Center had until that time received only nine hours of publicly-supported training. She was admitted to the Center "under the provision that she would be able to remain in said Center for a period of only six months, after which time it would be necessary for her to return to her home and be cared for by her parents; that she has been diagnosed as a mentally retarded child and needs a one-to-one ratio of care and treatment. The complaint alleges that the parents are unable to provide "this care and treatment," that the state does not have other facilities to provide the care and the Center administrator has notified Crystal's parents to take her home.

96-675 - 73-7

The cause of action cited in the complaint is that the state, through its board and agencies, "has failed to provide equal educational facilities for the plaintiff and has denied to her access to education and training ..." Thus it is alleged that the plaintiff has been denied equal protection of the law and equal education facilities as "guaranteed" by the United States constitution and the constitution and statutes of North Carolina. The statutes "guarantees equal free educational opportunities for all children of the state between the ages of six and twenty-one years of age."

Also at issue is the classification scheme used by the state which "selects some students as eligible for education and some as not Further, the complaint argues that the state's practice of making financial demands upon the parents of mentally retarded children for the care and treatment of their children" is repugnant to the provision of the law and is denying equal protection to said children..."

Arguing that Crystal Rene Hamilton and the members of her class have suffered and are now suffering irreparable injury, the plaintiffs are seeking the following relief:

1.

2.

A three-judge court be appointed to hear the case;

Enforcement of state statutes providing equal educational opportunities and declare null and void statutes that do otherwise;

3.

An injunction be issued to prevent the Western Carolina Center from evicting Crystal Rene Hamilton;

4. That this action be joined with civil action No. 72-72 (North Carolina Association for Retarded Children, Inc., James Auten Moore, et. al. v. The State of North Carolina, et. al.); and

5. Plaintiff costs and counsel fees.

This case has been joined as requested in number 4 above. The number of plaintiffs has been expanded and the case is expected to be heard by a threejudge court.

HARRISON v. STATE OF MICHIGAN, Civil Action No. 38357 (U.S. District Court, E. D. Michigan Southern Division)

On May 25, 1972, the Coalition for the Civil Rights of Handicapped Persons, a non-profit corporation formed to advance the rights of handicapped children, and twelve handicapped children filed suit in the Southern Division of the United States District Court for the Eastern District of Michigan against the state of Michigan, the department of education, the department of mental health, the Detroit school board and officers, and the Wayne County intermediate school district and its officers for their failure to provide a publicly-supported education for all handicapped children of Michigan.

The suit seeks class action status and divides the plaintiff children, all of whom are alleged to have mental, behavioral, physical or emotional handicaps, into the three distinct groups:

1. Children denied entrance or excluded from a publicly-supported education;

2.

Children who are state wards residing in institutions receiving

no education;

3. Children placed in special programs but that are alleged not to meet their learning needs.

The plaintiff children present a full range of handicapping conditions including brain damage, mild, moderate, or severe mental retardation, autism, emotional disturbance, cerebral palsy, and hearing disorders. The complaint suggests that the children named represent a class of 30,000 to 40,000 who are handicapped three times over. They are first handicapped by their inherited or acquired mental, physical, behavioral, or emotional handicap. Secondly "by arbitrary and capricious processes by which the defendants identify, label, and place them, and finally by their exclusion from access to all publicly-supported education."

The complaint argues that the right of these children to an education is based on Michigan law stating that "the legislature shall maintain and support a system of free public elementary and secondary schools as defined by law.' Further, Article VIII, Section 8 of the Michigan Constitution indicates that the state shall foster and support "institutions, programs, and services for the care, treatment, education, or rehabilitation of those inhabitants who are physically, mentally, or otherwise seriously handicapped."

Further, as in all of the right to education litigation, the role of education in preparing children to be productive adults and responsible citizens is emphasized and can be summarized by this quote: "No child can reasonably be expected to succeed in life if he is denied the opportunity of an education."

Of importance in this suit is that recognition is given in the complaint to a mandatory special education law effective July 1, 1972. However, since that law will not be fully implemented until the 1973-74 school year, the plaintiffs are presently being denied rights. In addition, it is pointed out that the mandatory act does not provide for compensatory education or the right to hearing and review as the educational status and/or classification of the children is altered.

The complaint seeks the following relief:

1. That the acts and practices of the defendants to exclude plaintiff children and the class they represent from an adequate publicly-supported education is a violation of due process of law and equal protection under the 14th amendment of the U.S. Constitution.