Opinion

St. Louis Developmental Disabilities Treatment Center Parents Ass'n v. Mallory

591 F. Supp. 1416
20 Educ. L. Rep. 133
1984 U.S. Dist. LEXIS 24469

Court: District Court, W.D. Missouri
Filed: Aug 8, 1984
Status: Published
Author: Hunter
On the bench: Elmo B. Hunter
Cited by: 18 cases
Authority: More cited than 80.0%

when Sec. 504 claim concerns subject covered by EHA, compliance with EHA satisfies requirements of Sec. 504

How later courts described this case

when Sec. 504 claim concerns subject covered by EHA, compliance with EHA satisfies requirements of Sec. 504
when § 504 claim concerns subject covered by EHA, compliance with EHA satisfies requirements of § 504

Written by the judges who cited it.

The opinion

OPINION AND ORDER

ELMO B. HUNTER, Senior District Judge.

This case, tried to the Court without a jury, presents a challenge to a portion of Missouri’s system of providing special education to the handicapped. At issue are the special schools and facilities in Missouri that serve the more profoundly and severely handicapped children of the State. These special schools are attended only by handicapped children.

The plaintiffs

pos

*1418

it that the separate nature of the schools prevents the handicapped children who attend them from progressing as they would if they attended a typical, local public school. The defendants,

on the other hand, view the special schools as a necessary component of a special education system because not all handicapped children can benefit educationally

from attending a regular, neighborhood school.

The plaintiffs have advanced six statutory or constitutional bases for challenging the special schools and facilities. They maintain that placing handicapped children in schools attended only by handicapped children violates the Education of All Handicapped Children Act, 20 U.S.C. § 1401

et seq;

Section 504 of the Rehabilitation Act of 1973; the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution; 42 U.S.C. § 1983 ; and Missouri statutory law. The plaintiffs seek declaratory and injunctive relief. Specifically, they urge the Court to set out a time table for the closing of all special schools and the “integration” of the handicapped children served in them into local schools. As the plaintiffs view the change, no more than three classes of profoundly handicapped children would be placed in any one regular school. The classes and the schools would be age matched so that elementary aged, profoundly handicapped children would attend a special education class in an elementary school and so on.

The plaintiffs, however, do make a few exceptions. One, the plaintiffs do not actually urge that all handicapped children be allowed to attend regular schools. They except the medically fragile, and the physically abusive.

The medically fragile are children for whom attending a regular school would pose a potentially life threatening danger. These are children who can not be moved safely. The physically abusive are children who due to their aggressive behavior pose a physical threat to themselves or others. Two, the plaintiffs do not seek the closing of all special schools that serve only the handicapped. They do not challenge the State School for the Blind nor the State School for the Deaf. The plaintiffs’ efforts are directed at the

*1419

State Schools for the Severely Handicapped, the State Schools and Hospitals administered by the Department of Mental Health, and the separate schools maintained by the two special school districts, Again, the Court emphasizes that the issue presented is not whether any of the individual plaintiffs have been mistakenly placed in a special school,

but whether the defendants’ special education system which utilizes separate schools violates any of the statutory or constitutional provisions all

*1420

eged.

Before turning to the specific challenges, the Court begins with an overview of the special education system in Missouri.

SPECIAL EDUCATION IN MISSOURI

Department of Elementary and Secondary Education

The public school system of Missouri offers a free education to any child, handicapped or nonhandicapped, who lives in the State and is between the ages of six and twenty. Mo.Rev.Stat. §§ 160.051, 162.670. At the beginning of the 1982-83 school year over 805,000 youngsters, including approximately 116,000 handicapped children were enrolled in Missouri’s public schools.

*1421

SD Exh. 16; Stip. 1.12.

The State Board of Education is charged with carrying out the educational policies of the State and with overseeing the public school system. Mo.Rev.Stat. § 161.092. The responsibility for the actual daily administration of the system falls to the Missouri Department of Elementary and Secondary Education (DESE). The DESE administers a system composed of 547 local school districts, two special school districts, and the special schools for handicapped children. Stip. 1.1. The special schools include the fifty-two State Schools for the Severely Handicapped (State Schools) attended by 2,450 profoundly handicapped youngsters, the State School for the Blind and the State School for the Deaf which together served slightly more than 400 children in 1982-83.

Id.

I. 14. The special schools all fall within the auspices of the Division of Special Education of the DESE. The Division of Special Education is responsible for the education of all of Missouri’s school-age handicapped population, including those children served by local school districts. Also, within the auspices of the Division are 291 children served by private agencies under contract with the State Schools.

Id.

at 1.14. Finally, although not in a public school, 216 additional youngsters are educated at public expense by the Department of Mental Health.

In Missouri, the vast majority of the handicapped school-age population attend regular schools and are the educational responsibility of the local school districts. Missouri, by law, favors placing handicapped children in regular schools. Mo. Rev.Stat. § 162.680(2). Of the 116,000 handicapped children in the State, approximately 111,000 attend their regular, neighborhood school. SD Exh. 16; Stips. 1.14 and 3.5. The remaining children attend separate schools or facilities. The DESE has established a continuum of alternative placements for handicapped children which include a regular classroom in a regular school, a regular classroom with an educational resource teacher, a regular classroom with an itinerant teacher, a regular classroom with a resource classroom available, a self-contained classroom in a regular school, a split time arrangement between a regular and special school, a special school, a public institution or hospital, a private agency, or homebound instruction.

Missouri State Plan FY 84-86 at

*1422

A30-A33;

R. Werner at Vol. 13.

The focus in this case is on the separate schools, public institutions, and the private agencies that serve only the handicapped. The schools being challenged are the State Schools for the Severely Handicapped, the DMH State Schools and Hospitals, and the separate schools of the special school districts.

In 1958 Missouri created a system of special schools to educate its handicapped youth. These separate schools at that time served the moderately handicapped. In the early 1970’s before the passage of the Education for All Handicapped Children Act, the state made an effort to locate all of the school-age handicapped population and place them in a state funded school or institution to receive educational services. Hall at Vol. 17.

The State Schools have evolved to where today their mission is solely to serve the “severely handicapped.” By statute, Missouri has defined the “severely handicapped” as children who due to their handicapping condition are “unable to benefit from or meaningfully participate in programs in the public schools for handicapped children.” Mo.Rev.Stat. § 162.-675(3).

The state school system is administered by the Division of Special Education of the DESE. Dr. Leonard W. Hall is the Assistant Commissioner in charge of the division. Directly underneath him is Dr. John B. Heskett, the Superintendent of the State Schools for the Severely Handicapped.

Dr. Heskett and an assistant superintendent oversee twelve supervisors. Seven have responsibility for particular aspects of the system statewide and five are charged with the direct administration and supervision of the State Schools within a particular geographic region of the State.

The DESE budgeted $880,000 for the 1982-83 school year to cover the salaries of the administration and their support staff. Heskett at Vol. 6 and 9.

The State Schools had a budget of approximately $14.9 million for the 1982-83 school year. SD Exh. 13. Most of the money, $13.2 million, came from the general revenues of the state.

Supp.Stip. 3(a).

*1423

The remainder comes primarily from Chapter One of the Education Consolidation and Improvement Act of 1981, P.L. 97-35, 20 U.S.C. § 3801 et seq. (Chap. One). The State Schools received an additional $1.2 million in Chapter One funds,

and carried over a little less than $600,000 in Chapter One money from the previous year.

Heskett at Vol. 9; Hall at Vol. 17. Another source of federal funds is the Education of All Handicapped Children Act. P.L. 94-142, 20 U.S.C. § 1401 (Education Act).

The bulk of these funds, however, are passed on to the local and special school districts that serve handicapped children. In 1982-83, Missouri received $2 million under the Education Act, and the DESE passed between 88% and 89% directly to the local and special districts that serve handicapped children. Supp.Stip. 1(c); John at Vol. 12.

The other twelve percent is treated as a discretionary fund which is allocated by the DESE upon application from the individual school districts.

In 1982-83, Missouri used its Chapter One funds to pay the salaries of the teacher aides employed in the State Schools. The State Schools also received approximately $30,000 in discretionary funds under the Education Act for in-service training, and another $443,000 for a summer school program. Heskett at Vol. 9. The State Schools used to also use surplus Chapter One funds for occupational and physical therapy services, but in 1983-84, the Legislature had to provide the money because neither discretionary nor Chapter One funds were available. Hall at Vol. 17.

*1424

The Division of Special Education operates 52 State Schools for the severely handicapped.

The system peaked in 1974 with 68 state schools. The state owns 27 of the buildings which house State Schools and rent the other 25 buildings. The value of the 27 buildings is estimated at $28 million. The 27 buildings, all built by the State especially for the education of the more profoundly handicapped serve 85% of the children that attend State Schools. Each classroom contains a lavatory and a wash area. It was felt this would aid the education program. Clean-ups would be quicker and the teacher would remain in closer proximity to the class. The schools also afford the students more space. The classrooms were designed to provide forty square feet per student, which is fifteen more feet per student than in the typical public school classroom. The schools also contain a prevocational training area and a home-living instructional area.

Most importantly, the schools were built with the students safety in mind. Each classroom has an outside exit, an audio and visual alarm system, and antipanic doors. Some schools are located on the campuses of local public schools; others are not, depending on the availability of land. The DESE always attempts to place the State School on the campus of a local school. Heskett at Vol. 6 and 8. The State Schools budgeted about $850-900,000 in new money for maintenance and repair of the buildings, $500,000 for utilities, and $270,000 for rent and custodial work.

Id.

at Vol. 9.

The Division of Special Education employs 325 classroom teachers and 129 classroom aides in its State Schools. The teachers must be certified, or at least temporarily certified, to teach the “severely handicapped.” Temporary certification means the teacher is within eighteen hours of certification. The Division works closely with state colleges and universities.to pro

*1425

vide the necessary course work for temporarily certified teachers to obtain full certification. The State Schools also employ 21 physical education teachers and 36 speech therapists. The physical education teachers and the speech therapists are employed full time at the larger schools and on an itinerant basis at the smaller schools. In addition, the State Schools employ 6 itinerant nurses and contract with local nursing personnel and the county health nurse program for additional nurses. The Division employs 40 occupational therapists, (OT’s), and 30 physical therapists (PT’s). They are hired on a contractual basis because the Division can not offer them a competitive full time, twelve months’ per year salary. The salaries of the teachers, therapists, physical education teachers, and nurses are all tied to the same scale. The salaries of the teachers average $14,000, or about $2,000 less than their counterparts in the regular schools. Heskett at Vol. 9.

Missouri has an elaborate procedure to determine whether a child should attend one of the State Schools or some other setting in the continuum. Mo.Rev.Stat. § 162.670

et seq.;

State Plan 1984-86 at 39-78. The initial step is the identification of a child with a handicapping condition. Mo.Rev.Stat. § 162.695; State Plan 1984-86 at 40-41. Once a child is identified then the local school district is required to put together an interdisciplinary diagnostic team to evaluate the child’s mental, physical, and social development before placing him in a special program.

Id.

at § 162.-700(2); State Plan 1984-86 at 88; Friedebach at Vol. 10. The purpose of the evaluation is to gain a picture of the child’s strengths and weaknesses. The composition of the diagnostic team varies with the handicapping condition(s) exhibited by the child, and may include medical specialists, various therapists, psychologists, social workers, and educators. Friedebach at Vol. 10. If the diagnostic team determines that the child’s handicapping condition necessitates a special education program, then the local school district forms a team to develop an individualized educational plan (IEP) for the child. The IEP team is required to meet within thirty days after the child is identified as needing special education. State Plan 1984-86 at 45. The team typically consists of the child’s parents), if appropriate the child, a member of the diagnostic team, possibly a special educator from one of the State Schools if the child is more profoundly handicapped, a principal or teacher from the child’s local school, and any appropriate medical or therapeutic personnel. State Plan 1984-86 at 45-46; Teacher’s Guide at 3.1(a); Yard at Vol. 15; Kopp at Vol. 15; Wilkerson at Vol. 16; Gitel at Vol. 17.

The intent is for the members of the team to bring their various perspectives to bear on the developmental and educational needs of the child, and hopefully, to reach a consensus on what is best for the child. The DESE provides educators statewide and the other professionals who participate on IEP teams with information on and technical assistance in developing an IEP and determining the appropriate educational setting. State

*1426

Plan 1984-86 at 65. Each team is charged with formulating educational goals and objectives for the child, and then with determining the educational services necessary and the appropriate educational setting for fulfilling the goals and objectives. State Plan 1984-86 at 47-48; Teacher’s Guide at 3.1(e)-(k); Kopp at Vol. 15; Wilkerson at Vol. 16. This package of decisions is known as the Child’s IEP. If the IEP team determines that the child can not be appropriately served in a local public school, then the child’s file is forwarded to the Division of Special Education. Mo.Rev.Stat. § 162.-735; Kopp at Vol. 15.

The Supervisor of Pupil Accounting and Contract Services, currently James Friedebach, heads a team that consists of the Assistant Superintendent of the State Schools and the pertinent regional Special Education Consultant. This team reviews the child’s file to determine if his handicapping condition is severe enough to warrant placement outside a regular school. Usually a child who is functioning at a level one-half below the expectations for his peers across a number of assessments will be accepted for placement in a State School. The factors considered include the child’s cognitive development, physical development, health, fine and gross motor movements, speech development, and achievement levels. The child’s I.Q. is typically a good indicator, but it is not a controlling factor in the decision. Friedebach at Vol. 10; Wilkerson at Vol. 16; Gitel at Vol. 17. The state team also considers the capabilities of the child’s local school district. Upon review of the file, the team may either accept the child, refer the child back to the local district, or return the file for additional information. Friedebach at Vol. 10. In making their decision, the state team is guided by the requirement that if the child can meaningfully participate or benefit from a special education program in a regular school with the use of aids and services then he must attend a regular school. Mo.Rev.Stat. §§ 162.675(3); 162.-680(2); State Plan 1984-86 at 63-65. If the state team accepts the child, then the child is assigned to the State School nearest the child’s home.

State Plan 1984-86 at A29.

During the 1982-83 school year the local districts referred 450 children to the DESE upon completion of the IEP process. Friedebach at Vol. 17. The DESE, however, no longer accepts all referrals. In the early and mid-1970’s, when Missouri was first attempting to educationally serve all the handicapped children of the State, the Division of Special Education accepted almost every child referred to it. The DESE wanted to prove that the concept of educating the handicapped was viable. By the late 1970’s the state school system was refusing to accept students it would have accepted in previous years, due in part to the growing recognition of the desirability of placing handicapped children in regular schools and in part to the increasing ability of local school districts to adequately serve these children. Heskett at Vol. 9; Friedebach at Vol. 10; Hall at Vol. 17. Over the four school years from 1979-1983, the DESE rejected approximately fourteen percent of the children referred.

See

SD Exh. 16. Although, the number of referrals have increased due in part to better and more complete identification of handicapped children, the local districts are referring fewer children who would be inappropriately placed in the State Schools. Friedebach at Vol. 10. Furthermore, even as the number of children in special education programs increases statewide, the number of them served by the DESE in separate settings has decreased.

*1427

Exh. 41. If the state team refuses the referral, then the Division of Special Education works with the local district to meet the needs of the child. Friedebach at Vol. 10; Kopp at Vol. 15; Wilkerson at Vol. 16; Hall at Vol. 17; Teacher’s Guide at 2.1(a). Often the local district is unwilling to serve the child and will threaten suit. The DESE usually resolves the matter by providing the district with funds to serve the child. Heskett at Vol. 9; John at Vol. 11; Hall at Vol. 17.

Several checks exist with regard to the development of an IEP and placement of handicapped children in the public school system of Missouri. The DESE reviews the progress and program of ¿very child assigned to a State School within approximately thirty days after the assignment to determine if the child’s IEP and placement are in fact appropriate. Teacher’s Guide to Administration and Instruction, Sept. 1982 at 1.5(e) and 2.1(b), SD Exh. 8 (Teacher’s Guide); State Plan 1984-86 at BIO; Kopp at Vol. 15. Also any child’s IEP and placement can be reviewed at any time upon the request of the child’s teacher, another member of the professional staff working with the child, or the child’s parents. In any event, the district serving, the child must form an IEP team annually to review the child’s IEP and placement, and to determine any changes- based on the child’s progress or lack thereof during the preceding year.

Teacher’s Guide at 1.5(f); Friedebach at Vol. 10; Kopp at Vol. 15. The parents of the child are encouraged to participate in each IEP conference. State Plan 1984-86 at 45; Teacher’s Guide at 1.5(e) and 3.1(a). The conferences enable the educators to learn more about the parents and the parents to learn about the child’s educational program. Wilkerson at Vol. 16. The responsible school district must also notify the parents when their child has been identified as having a handicapping condition or is going to be diagnosed or evaluated. Furthermore, if the child is currently receiving a special education program and the district has determined that the program or placement should be altered, or the parents have requested a change that the district has decided not to honor, then the district is responsible for notifying the parents of the decision and informing them of their channels of redress. Mo.Rev.Stat. § 162.945. Missouri provides an independent administrative review process wherein a parent can challenge a decision of the responsible school district at three levels within the state educational system and then in state court. Mo.Rev.Stat. §§ 162.950-162.963; State Plan 1984-86 at 53-59. Most parents, however, agree with the placement decision reached by the IEP team. Moreover, when a disagreement arises it is usually resolved at the informal stage of the review process.

Heskett at Vol; 9; Kopp at Vol. 15; Wilkerson at Vol. 16; Gitel at Vol. 17.

The State Schools provide a fluent curriculum during a five hour school day. The teachers have at their disposal a variety of materials developed in Missouri and elsewhere upon which they can draw to fashion an instructional program to meet the individual needs of each child. There is no system-wide, uniform, instructional program that each child must receive, but there are set curriculum areas: self-care skills, sensory motor development, functional academics, language development, interpersonal relationships, and prevocational and vocational skills. P.Exhs. 153A,

*1428

153B, 153E, and. 153G. The teachers strive to fashion each child’s program so that he learns the functional skills he lacks, and how to generalize those skills to various settings.

In addition, they teach social and job-related skills. The educational program also includes various nonacademic activities.' Examples include field trips into the community, recreational activities, and social outings. Heskett depo. The parents are also included in the educational process. Missouri has developed a program to teach-parents to use the home environment to supplement and reinforce what their child is being taught in school, Missouri Instructional Guide for Home Training (MIGHT). Heskett at Yol. 9.

II.

Department of Mental Health

Although not primarily an educator, the' DMH is also responsible for providing educational opportunities to the youngsters it serves. The DMH, among its other duties, administers five Mental Retardational Developmental Disabilities (MR/DD) facilities: Higginsville State School and Hospital, Marshall State School and Hospital, Nevada State School and Hospital, and St. Louis Developmental Disabilities Treatment Center (DDTC). The DDTC actually consists of three facilities: the original facility in St. Louis and two new facilities, one in south St. Louis County and the other in midtown St. Louis. It is the educational programs administered by the DMH in these facilities that are challenged by the plaintiffs.

Last year approximately 298 school-age children resided in the MR/DD facilities.

Of these children, 216 received educational services at the facility where they resided. The other 83 attended either a State School, a school within one of the special school districts, or a local public school.

Stips. 20-22. Although the DMH and the DESE are separate and independent departments they work together in providing educational opportunities to the school age children that reside at the MR/DD facilities. The DMH is under the same placement, review, and due process procedures as is the state public school system. SD Exh. 14a, Missouri DMH Compliance Policies and Assurances for PL 94-142. In 1980 the departments entered into an agreement to cooperate with each other in providing educational services. P.Exh. 166. The agreement reiterated the responsibility of the DESE to ensure that the requirements of the state and federal special education laws are complied with by special education providers. The two departments agreed that the DESE would see to it that any child residing in an MR/DD facility and able to leave the grounds for educational services would be appropriately placed in a less restrictive setting. If the DESE and the DMH are unable to agree, on whether a particular child is capable of leaving the facility to receive an education,

*1429

then the two departments will form a committee to resolve the dispute and develop an IEP for the child.

Consistent with the DESE’s concern with assigning children to the least restrictive environment, the DMH has placed the higher functioning children it serves in community settings, group homes, and foster homes. The functioning level of the remaining children is low. For example, approximately 50% of the children that reside at the DDTC have a functioning level too low to register on the A.A.M.D. scale. Also 80% of the same group are nonambulatory and require wheelchairs or bed-carts for mobility. The same trend is occurring at the Higginsville State School and Hospital. Since 1980 the school age population has declined by twenty-five to thirty children. The ones that remain are lower functioning. Similarly at the Marshall State School and Hospital three groups of children are served: those whose medical problems are so severe they require constant medical attention to ensure life, those who are so physically involved that they can be moved only by bed-cart, and those whose behavior poses a danger to themselves and/or others. Crawford at Vol. 11; Stewart at Vol. 11; John at Vol. 12; Stewart depo.

Efforts are still made, however, to place the children in outside residential and educational settings. For instance, in 1980, a team of DESE and DMH personnel evaluated the children attending the St. Louis DDTC. They determined that most of the children should not leave the grounds for educational services, and none would benefit from attending a regular school. Friedebach at Vol. 10; McPheron at Vol. 11; Crawford at Vol. 11.

Special reference was also made to three referrals from the Marshall State School and Hospital to the Marshall public schools. One had succeeded, but the other two had'failed and were returned to the State School and Hospital. Crawford at Vol. 11.

III.

Special School Districts

Besides the DESE and the DMH, Missouri also has two special school districts (SSD) that provide educational services to handicapped children. The voters of local school districts can decide to join together to create an SSD. Mo.Rev.Stat. §§ 162.-815-162.945. The SSD is separate and independent from the local school districts. The latter continue to .serve- nonhandicapped children, and the SSD is responsible for educating the handicapped children of the local districts. The SSD, however, is subject to DESE monitoring and supervision as are the local districts.

Id.

at § 162.930. Missouri’s two SSDs serve the local school districts in St. Louis County and Pemiscot County.

*1430

The SSD of St. Louis County serves as an umbrella district for the twenty-three school districts within the county of St. Louis. As a SSD it is responsible for providing direct educational services to any handicapped child that resides in the county and desires a public education. The SSD served approximately 15,620 school age handicapped children in 1982-83. The educational program of the SSD is divided into four phases. Phase I encompasses the handicapped children that can be mainstreamed into regular classrooms in the local schools. The local school has the primary educational responsibility for these mildly handicapped children. The SSD provides the supplementary or special services necessary to allow the child to be mainstreamed and still benefit educationally. It hires the staff to serve the child’s special needs. Phase II is designed for the moderately handicapped. These children are served in self-contained classrooms in their local public schools. The SSD is primarily responsible for educating the children in this phase. It leases classroom space from the local districts and staffs the classrooms.

Phase III is aimed at “severely handicapped” children. These children receive their educational services in separate buildings owned and operated by the SSD. Finally, Phase IV includes children who have a low incident handicap. The SSD contracts with private agencies or establishes homebound instruction to meet the needs of this group. In 1982-83, there were 11,740 children in Phase I, 2,128 in Phase II, 2,007 in Phase III, and 46 in Phase IV. R. Werner at Vol. 13; SD Exh. 16; Stip. 3.4 and 3.5.

The district operated on a $63 million budget in 1982-83. Approximately $3 million came from the federal government under the Education Act and Chapter One. The rest came from state and local sources. The budget is divided into three categories: the teacher’s fund which is limited to salaries, the incidental fund which covers employee benefits and supplies, and the building fund earmarked for building construction and maintenance. Although each fund had a reserve in 1982-83, a fourteen percent salary increase for the teachers and therapists in 1983-84 was expected to eliminate the reserves in the teachers and incidental funds. Half a million dollars was budgeted for the central administration office of the district, and a million dollars for maintenance of the Phase III buildings. Harmon at Vol. 14; Supp.Stip. 3. The remaining discussion of the SSD will focus on

*1431

the Phase III portion of the program since that is the portion challenged by the plaintiffs.

The SSD owns fourteen buildings. Eleven are schools serving handicapped children in the Phase III program. The SSD also leases two other buildings that serve as Phase III schools. All the Phase III schools are one level buildings, accessible to the handicapped with larger than usual classroom space and wider hallways. The additional space is intended to minimize the congestion created by wheelchairs and other equipment necessary to serve the severely handicapped. The rooms also contain or share a bathroom to allow the staff to better cope with toileting problems and a sink to aid in the preparation of the food program and the cleanup of the students. Bolazina at Vol. 14; Harmon at Vol. 14.

The record is sparse in regard to general information on the teaching staff. It does indicate that the teachers of the SSD are certified to teach the severely handicapped, they receive more pay than their counterparts in the state school system, and the SSD has no trouble finding applicants for its teaching positions. Last year the district received 200 applications for every opening. The SSD of St. Louis County has twenty-eight occupational therapist positions and fourteen physical therapist positions. The district, however, has a hard time filling the positions. For the 1982-83 school year the SSD placed forty-six newspaper advertisements and contacted 123 placement offices, but was not able to fill all of the positions. The SSD received only seventeen OT and eleven PT applications for the positions open for the 1982-83 school year. The district was able to hire twenty-four OTs and twelve PTs for the year. It also contracted with two hospitals and two private agencies for additional therapy services. The nine month work year and the salary structure hinder efforts to hire a sufficient number of therapists. Each Phase III school, however, does have an OT and a PT on staff, and present at the school on a daily basis, to deal with those children who may pose a physical threat to themselves or others. The OTs and PTs are responsible for assessing the children’s progress on an annual basis. They also participate in the IEP process. Also on the staff of each school is a carpenter to adapt occupational and physical therapy equipment, a nurse to handle medical emergencies, and a dietitian to aid in formulating a food program. A counsel- or, speech therapist, and audiologist are also available to students in Phase III. R. Werner at Vol. 13; Bolazina at Vol. 14; Eldridge at Vol. 15.

The placement process employed by the SSD is similar to the one previously described: diagnosis, evaluation, IEP formulation, placement, periodic review as necessary, and annual review. To aid in placement decisions the district designed a manual for those who participate on the IEP teams. Since potentially any IEP team can draw from about 1300 staff members, the manual was designed with the intent of bringing more consistency to the process, and of providing guidelines for determining the appropriate placements.

Most of the children who attend Phase III schools were

*1432

initially assigned to a Phase II program, but were not benefitting from the program or the environment. Furthermore, many of the children placed in Phase III schools are later placed in a less restrictive educational setting. Consistent with the trend statewide, the percentage of handicapped children served by the SSD in Phase III schools has declined since the 1980-81 school year. The decline, here too, is due to an increasing awareness of and emphasis on placing handicapped children in regular schools when they can benefit from the setting. Handicapped children in Phase III can and have transferred to Phase I and Phase II programs during the school year or upon completion of the annual IEP review.

Again, as with the statewide program, if the parents disagree with a decision reached by an IEP team they can challenge the decision through an administrative process and then in state court. During the past three years no parents have challenged or sought review of the placement of their child within a Phase III program. P.Exh. 124, St. Louis Co. SSD Compliance Plan for FY 1983 at 27-51; R. Werner at Vol. 13; Hauser at Vol. 14; Eldridge at Vol. 15.

The curriculum in the Phase III schools focuses on four major areas: academics, self-care skills, job-related skills, and communication skills. The instructional materials used and the program provided each child, however, is geared toward the developmental and functional level of the particular child. The lower functioning children may receive instruction, for example, in responding to sounds, tracking an object, or holding their head up, whereas higher functioning children might work on toileting, dressing, or personal hygiene. Less emphasis is placed on the child’s chronological age. The curriculum is also designed to enhance the teacher’s abilities to recognize even the most subtle of responses from the youngsters. This is important because the responses, or lack thereof, enable a teacher to determine whether a program or strategy is effective. The environment also needs to be distraction free so that the teachers can concentrate on watching for and recording the responses. R. Werner at Vol. 13; Bolazina at Vol. 14; Hauser at Vol. 14; Eldridge at Vol. 15. The SSD also provides for community based programs, field trips, and extracurricular activities for the children in Phase III. Hauser at Vol. 14; Huskey at Vol. 14; Stip. 3.8.

The SSD employs three special strategies in their Phase III program.

First, the district has opted for departmentalization. Departmentalization exposes the children to more than one teacher, and, therefore, different teaching methods and ideas. The youngsters have the advantage of several teachers focusing their varied talents, skills, and experience on the youngster’s developmental problems. Departmentalization also encourages the teachers to exchange ideas and concerns about the children. Emmons at Vol. 13; Bolazina at Vol. 14. Second, the SSD has instituted a voluntary program whereby high school and college students can work with the children

*1433

on a one-to-one basis and under the supervision of a teacher. The district screens the volunteers for maturity, and has not sought or accepted anyone under sixteen years of age.. Although the volunteers express an interest in working with the profoundly handicapped, very seldom do they volunteer to work with the lowest functioning children. The advantage of the program is the extra attention it affords the youngsters. Bolazina at Vol. 14; Hauser at Vol. 14. Finally, the SSD has established a voluntary program for the parents. The parents may work directly with their child in class under the supervision of the teacher, take in-service training courses, and participate in the parent’s organization.

Hauser at Vol. 14.

The DESE, through the Division of Special Education, works with each of the SSDs and monitors their compliance with federal and state laws. It reviews all compliance data submitted by both SSDs on an annual basis, and once every three years it makes an on-site inspection. The DESE last inspected the SSD of St. Louis County in March of 1983. The inspectors looked closely at the Phase system, the special education program, the vocational education program, and the financial structure of the SSD. The investigators concluded that the SSD had made improvements since 1980, and still offered the best special education program in the state. The DESE approved the SSD’s compliance plan. P. Exh. 124; R. Werner at Vol. 13; Hauser at Vol. 14; Eldridge at Vol. 15; Hall at Vól. 17.

IV.

Local Programs

Finally, some of Missouri’s more profoundly handicapped children are served directly by local school districts in local programs. Little evidence was presented on these programs, yet both sides mention the local programs in their arguments. They will be discussed briefly before turning to the merits of the case.

In 1974, Missouri law for the first time allowed local school districts to provide special education programs for the severely or more profoundly handicapped. Seven local school districts started programs that year with twenty-six school districts sending their children to the programs. The availability of Education Act funds in 1978 further spurred the movement toward local programs. For the 1982-83 school year 101 local school districts sent their severely handicapped children to twenty-one local programs. Approximately 165 students were involved.

Heskett at Vol. 9; Stips 1.34 and 1.38.

*1434

Each time a local program is established the state school program serving that district is phased out. The local school district must agree to serve all of the profoundly handicapped children in the area previously served by the State School and guarantee in good faith that it will provide a special educational program on par with the program provided by the State School. The DESE relinquishes direct educational responsibility, and the local district administers and staffs the program. The local districts and the DESE have both initiated takeovers of state school programs. The DESE is responsible for deciding whether a local school district is capable of assuming the educational duties and providing the necessary educational services. It does not approve a takeover by a local district just because the district requests it. The DESE reviews the proposed educational program, along with the amount of resources the local district commits to and the quality of its special education program for the mildly and moderately handicapped. If the resource commitment is not acceptable or the present special education program does not indicate a capability to serve the severely handicapped then the request is turned down. The DESE also approaches local school districts regarding the takeover of state school programs. In the past two years, for example, it has approached three school districts with strong special education programs for the mildly and moderately handicapped. Not all districts that are approached, however, consent to starting a program. Often after learning of the services it must provide to adequately serve the severely handicapped a district will conclude that it is not ready to accept the responsibility. The DESE, however, encourages the districts it believes are capable by working with them to fund the new program. The teaching and supervisory staff of the DESE also cooperate with the local district on the substantive portion of the program. Heskett at Yol. 9; John at Vol. 12; Hall at Vol. 17.

Financing is the foremost concern of the local authorities. They have not been willing to initiate a severely handicapped program when to do so would take money away from the educational programs of the other students they serve. The DESE has had to assure these local districts that the necessary money will be available. The local district has two sources of funds at the local level. One is the money it was paying the state to serve the district’s severely handicapped children in a state program.

See

Mo.Rev.Stat. § 162.740. The other source is the money the participating districts, those districts sending their severely handicapped children to the local program, have agreed to pay for the educational services.

See

Mo.Rev.Stat. § 162.-705(1). At the state level, besides being able to count its own children for foundation formula purposes, the district would also be eligible for categorical aid to pay toward the salaries of teachers, teachers’ aides, and ancillary staff. Categorical aid is paid out on a per class basis at the rate of $10,000, $2,000, and $4,000 respectively. Federal funds are available under Chapter One and the Education Act. A district may opt for either on a per child basis. Only two of the local programs have opted for Chapter One funds. ■ On top of the entitlement money, a district may also apply to the state for discretionary funds under the Education Act. The DESE has used discretionary grants to provide the additional funds necessary to. run the local programs.

The local districts have used the

*1435

money to supplement salaries, purchase equipment or materials, and to buy or equip buses.

Complete information was not provided the Court concerning the staffing of the local programs. Information is available, however, concerning the teachers and aides serving seventeen of the local programs. In 1982-83 these particular local programs had twenty and one-half full time teachers and twenty-five full time aides on the staff serving approximately 143 students. No information is available concerning the number of support staff. The local districts contract for physical and occupation-' al therapists. Other ancillary services are provided by professionals already within the district if they have the expertise or, if not, then the district may contract for the services. Typically, the program of the State School is continued by the local district, and the classes remain in one school, rather than being dispersed to an elementary, middle, and high school. Heskett at Vol. 9; John at Vol. 12; Hall at Vol. 17; Stips 1.35 and 1.36.

Education of all Handicapped Children Act

The plaintiffs maintain that the State Schools, DMH educational programs, and the separate schools of the SSDs violate the education of All Handicapped Children Act of 1975, 20 U.S.C. § 1401

et seq.

(Education Act). Although they presented an elaborate argument, the plaintiffs basically assert three contentions: (1) the defendants do not treat the “severely handicapped” on an individual basis; (2) the defendants’ placement of handicapped children in separate settings violates the least restrictive environment concept embodied in the Act; and (3) the defendants are inherently unable to provide appropriate educational programs to handicapped children in separate schools. These contentions tend to overlap, but the Court will attempt to address each separately.

The Education Act was passed in 1975 to assure that all handicapped children had access to a publicly funded education, and to assist the states financially in meeting this obligation.

Congress first expressed its desire that handicapped children be educated with nonhandicapped children in the Education Amendments of 1974. House Rep. 94-332 at 5; Sen.Rep. 94-168 at 8, U.S.Code Cong. & Admin.News 1975, p. 1425; 62 Ia.L.Rev. 1283, 1329 (1977). It was also the first time Congress explicitly recognized the right of all handicapped children to a publicly provided education. House Rep. 93-380, U.S.Code Cong. & Admin.News 1974 at 4093, 4146; 62 Ia.L.Rev.

*1436

at 1329. Historically, this country has recognized the usefulness of an education both to the individual and to the nation.

Brown v. Board of Education,

347 U.S. 483, 493 , 74 S.Ct. 686, 691 , 98 L.Ed. 873 (1954); H.R.Rep. No. 805, 93rd Cong., 2nd Sess.

reprinted

in U.S.Code Cong. & Admin.News 4093, 4151 (1974) (House Rep. 93-805).

To this end, the states enacted compulsory attendance laws. These laws typically, however, made an exception for handicapped children adjudged not to be able to benefit from public education.

Initially, if a handicapped child was to receive any educational services, the child was either placed in an institution for the more profoundly handicapped where he might receive some instruction, or if he was more mildly (less noticeably) handicapped, allowed to attend a regular class. The handicapped children in the regular classes received the same instruction as did their nonhandicapped peers, without the benefit of any special attention to compensate for their handicap. Not surprisingly, these children often failed to even minimally succeed in the regular school environment. As a result special classes and day schools began to be created for the handicapped. A conscious effort was made to separate handicapped children from non-handicapped children for educational purposes. Throughout this century the emphasis has remained on separating the two groups. In the 1960’s, these special schools and classes proliferated. Only in the last ten years has the emphasis begun to shift back to regular classroom placement. It was felt that if a child could function in a regular classroom with specialized assistance then that placement better prepared the child to function independently. 56 St. John’s L.Rev. 81, 90-93 (1981); Miller & Miller, The Handicapped Child’s Civil Right as it Relates to the “Least Restrictive Environment” and Appropriate Mainstreaming, 54 Ind.LJo. 1, 6-12 (1978); (Miller, 54 Ind.LJo.); 62 Ia.L. Rev. at 1293-9. This emphasis on mainstreaming handicapped children, when appropriate, did not result, however, in universal public education for the handicapped. In 1974, the House Committee on Education and Labor reported that two-thirds of the 5.5 million handicapped children were either “excluded from schools or, sitting idly in regular classrooms awaiting the day they would be old enough to drop out.” House Rep. 93-805, U.S.Code Cong. & Admin.News 1974 at 4093, 4137-38. In 1975, Congress noted that of the eight million handicapped children more than half were not receiving appropriate educational services.

20 U.S.C. § 1401 ,

*1437

note “Congressional Findings.”

See also Doe v. Brookline Sch. Comm.,

722 F.2d 910 (1st Cir.1983);

Tilton v. Jefferson County Bd. of Ed.,

705 F.2d 800 (6th Cir.1983);

Monahan v. Nebraska,

687 F.2d 1164 (8th Cir.1982).

*1446

Even those cases that have found the appropriate placement for a particular child to be in a regular school environment have recognized that placement in such an environment is not mandated by the Education Act.

Roncker v. Walter,

700 F.2d 1058 , 1063 (6th Cir.),

cert. denied,

— U.S. —, 104 S.Ct. 196 , 78 L.Ed.2d 171 (1983) (“The [Education] Act does not require mainstreaming in every case, but its requirement that mainstreaming be provided to the maximum extent appropriate indicates a very strong congressional preference.”);

Springdale Sch. Dist. No. 50 of Washington County v. Grace,

693 F.2d 41 , 42-43 (8th Cir.),

cert. denied,

— U.S. —, 103 S.Ct. 2086 , 77 L.Ed.2d 298 (1982). No case has come to the attention of this Court which has held or even stated in passing that a separate educational setting is

per se

inappropriate for the placement of any handicapped child due to its separation from public schools. The essence of current judicial opinion is that Section 1412(5)(B) does create a preference in favor of regular school placement, but that regular school placement can not provide an appropriate education in every instance.

See Hendrick Hudson Central Sch. Dist. v. Rowley,

458 U.S. at 181 n. 4, 102 S.Ct. at 3037 n. 4.

2. The plaintiffs next argue that even if the Education Act provides for a continuum with special schools, the defendants do not utilize their continuum consistently with the Act. A continuum may be valid, but its use invalid if the children are not placed in the least restrictive educational environment appropriate for them. According to the plaintiffs, the least restrictive educational environment for the “vast majority” of “severely handicapped” children currently attending separate schools is a self-contained classroom in a regular public school.

.The Court finds that the defendants are systemically committed to the concept of placing each handicapped child in the least restrictive educational environment.

The commitment begins with the State’s educational laws. In enacting its present special education law in 1973, Missouri created a presumption in favor of local school placement similar to the one contained in Section 1412(5)(B). Mo.Rev.Stat. § 162.680(2).

Missouri law also requires that special aids and supplementary services be tried before a child is removed from a regular classroom.

Id.

The State Plan submitted by the DESE and the applications filed with the DESE by the SSD and the DMH indicate that the defendants have incorporated these statutory requirements in their policies and procedures.

See

State Plan 1984-86 at 63-65 and A29; SD Exh. .8, Teacher’s Guide; SD Exh. 14a, DMH Policies.

The realities of the system also bear out this commitment to placement in the least restrictive educational environment. For the 1982-83 school year Missouri’s public school census totalled 805,921 students,

*1447

ages five to twenty-one. The DESE identified 136,996 of those children as handicapped and in need of special services. Of that number, 5,006 youngsters were placed in settings challenged by the plaintiffs: the DESE served 2451 in state schools, private agencies under contract with the DESE served 291, the DMH educationally served 225 in its facilities, the St. Louis County SSD served 2007 in the Phase III program, and the Pemiscot County SSD served 32. SD Exh. 16; SD Exh. 41; Stips 1.17 and 3.7, Hall at Vol. 17.it. The numbers indicate that relatively few children are actually placed in the separate settings contested in this suit. The 5,006 who are in contested settings, represent just over one-half of one percent (.0062) of the public school age population. Although neither the Education Act nor its regulations discusses the percentage of children that might or might not be appropriately served in a separate setting, the statistics do indicate, at the least, that Missouri is not warehousing children in separate schools and other separate settings in order to avoid regular school placement. The statistics lend credence to the testimony that the defendants only place in separate educational environments those children who can not benefit from local school placement.

Heskett at Vol. 8; Gitel at Vol. 17; Hall at Vol. 17.

Moreover, neither the DESE nor the SSD take assignment to a separate setting lightly. Before most children are recommended for separate school placement they have been placed and worked with in a special education program in a regular school. When it becomes apparent that a child is not going to benefit in the regular school even with the use of supplemental aids and services then he is referred to the DESE. Gitel at Vol. 17. The entire evaluation and IEP process works on the presumption that only those children that can not benefit from special education programs in the regular schools can be placed elsewhere. Both the DESE and the SSD have two teams review the file of every child recommended for placement in a separate setting. The initial team, the IEP team consists of the child’s parents and professionals with knowledge of or experience in working with the child. It formulates the IEP and decides upon the appropriate placement. If the child can benefit from educational services in a regular school environment, either a regular class or a self-contained class, .then the child is placed there. If the initial team decides that a regular school placement is inappropriate then the child’s file is forwarded to an administrative review team to determine whether a separate placement is appropriate. If the review team determines that a separate setting is not appropriate then the child is referred back to the local school district for educational services. Friedebach at Vol. 10; Kopp at Vol. 15; Eldridge at Vol. 15; Wilkerson at Vol. 16; Hall at Vol. 17; SD Exh. 8, Teacher’s Guide at 2.1a. The review committees perform a meaningful function

*1448

in the placement process by serving as a check on placements outside the regular school environment. The record indicates that rather than serve as a mere rubber stamp for referrals from local IEP teams, the review committees reach an independent decision on whether separate placement is appropriate. SD Exh. 41.

In addition to the two-tiered placement decision, the defendants provide additional checks to ensure that the placement is and remains appropriate. The defendants train their professional staff and provide them with technical assistance to aid them in determining the least restrictive educational setting. State Plan 1984-86 at 65; Eldridge at Vol. 15.

The DESE also monitors the compliance of the DMH and the SSDs with the state and federal requirements. State Plan 1984-86 at 64; P.Exh. 166, DESE and DMH Agreement; Hall at Vol. 17. Once a child is placed additional safeguards come into play. The DESE requires after a child has been in a separate educational setting for thirty days that the IEP team meet and determine whether they still believe the IEP and the placement are appropriate. Beyond the thirty day meeting, the IEP team can be reconvened at any time by the child’s parents or teacher if either one believes a change is warranted. Finally, the team must meet once a year to review and reformulate an IEP, and reach a new placement determination. If the child is again recommended for a separate placement, then the state or SSD team again reviews the decision. R. Werner at Vol. 13; Hauser at Vol. 14; Eldridge at Vol. 15; Kopp at Vol. 15; SD Exh. 8, Teacher’s Guide at 1.5e and 2.16; State Plan 1984-86 at A29.

These additional checks also result in children being referred back to regular school placements. Information available for the 1981-82 school year indicates that the SSD referred over thirty-three percent of the children in Phase III programs to Phase I and II programs. SD Exh. 16. Furthermore, Dr. Werner, Dr. Huskey, Ms. Hauser, and Ms. Eldridge all testified regarding incidents of moving children from Phase III programs to Phase II or vocational programs. If the IEP team determines that a child in a Phase III program no longer needs the intensity of services provided there, and could be more successful in a less restrictive environment, then the child is reassigned to a regular school setting. Testimony of R. Werner at Vol. 13. The record also indicates that placement in a state school is not a dead-end. Information available from the 1980 school year shows that the DESE referred 105 children back to their respective local school districts for placement the following year.

P. Exhs. 1-57, Report of Teacher

*1449

in Charge — State Schools. Mr. Friedebach also testified that the DESE referred approximately 150-200 children in 1980-81, 200-275 in 1981-82, and 300 in 1982-83, back to the local school districts for placement. Ms. Wilkerson related that the St. Louis City Public School District was expecting to receive five children for the 1983-84 school year that had previously been assigned to Gateway School, State School No. 70. The record contains only sketchy information about the children served by private agencies. Mr. Kopp testified that the St. Louis City Public School District had about 100 children currently

*1450

placed with private contractors. In the past couple of years approximately one-third of the children had returned to public school placements or to vocational schools.

Although, the number of children being referred back to local school districts and other non-contested educational settings may appear insignificant in comparison with the number of children who remain in separate settings, and though the numbers provided by Mr. Friedebach may be somewhat inflated (he was providing approximations without recourse to notes), the Court finds this evidence to be instructive. It indicates that once children are placed in a separate setting they are not forgotten. More importantly, it indicates that each child is considered on an individual basis, and that there is nothing inherent in either the DESE or SSD system that prevents a child, ready for a less restrictive educational environment, from being transferred back to his local school district for placement.

Another indicator of the commitment of the DESE to the concept of placement in the least restrictive educational environment is the evolutionary transformation of the special education program in Missouri. Missouri initiated its special education program in 1958. At that time the focus was on educating the mild to moderately mentally retarded. These programs were conducted in separate schools. Since then the system has evolved to the point that state law allows only handicapped children who can not benefit from local school placement to be assigned to separate schools. Mo. Rev.Stat. §§ 162.675(3), 162.680(2), 162.725. Moderately handicapped children are now in local public schools. The local districts are mandated by statute to provide special education programs for handicapped children. Mo.Rev.Stat. § 162.700. Eighty-five percent of the children served in separate schools are in special school buildings built with their education and service in mind.

Another evolutionary change has occurred in the referral process. In the early 1970’s when Missouri was striving to include all of the state’s handicapped children •in a public education program the DESE accepted practically all of the children referred to it by the local districts. The DESE did this for two reasons. It wanted to show the skeptics that the system would work, and that all handicapped children should be educated and would benefit therefrom. It also realized that most of the local districts were not prepared to nor capable of serving the children it was accepting for state school placement. By 1978, however, with the state system in place, and with the local districts better able to serve the less profoundly handicapped, the DESE began to reject referrals it would have accepted a couple of years earlier. Heskett at Vol. 8; Friedebach at Vol. 10; and Hall at Vol. 18. The statistics bear this out. Although, the DESE accepted more children for placement in separate settings in 1982-83, the overall number served in the contested separate settings continued to decline. In 1979-80, 3223 handicapped children were served by the state school system, in private agencies or at home. By 1980-81, the number declined to 3161. It further declined to 3094 by the 1981-82 school year, and in 1982-83, the total number was down to 2935. SD Exh. 41. The Court again stresses that the statistics,

per se,

are not what is important here. They merely lend substance to the testimony presented.

A final example of the evolution of the Missouri special education system is the development of programs at the local level for severely handicapped youngsters. The state school system for the severely handicapped was initially created to fill a perceived educational need. The DESE did not believe the local districts were capable of assuming or willing to assume the responsibility of providing educational services to the severely handicapped. By 1974, this view had changed, at least on an individual district basis, and the way was opened for local school districts to assume this responsibility. In 1974, seven local school districts had programs serving the “severely handicapped” youngsters of twenty-six school districts. By the time of trial there were 101 school districts sending their “severely handicapped” children to twenty-one local programs. The local programs function much like a special school

*1451

district for the severely handicapped, Also, the local district must agree to serve the multiple-district area formerly served by the State School. Also, the local district must show that it is capable of providing an educational program equivalent to that provided by the present state school. When a local school district volunteers to takeover a state school program the

DESE

reviews the proposed program, the resources the district currently commits to its special education program for its mild to moderately handicapped youngsters, and the quality of that program. If the DESE concludes that the district can provide a comparable program then the takeover is approved. If not, then the takeover is refused. Those districts that do establish local programs for the severely handicapped receive technical and financial assistance from the DESE. The DESE is interested in the orderly transfer of responsibility for the education of the severely handicapped to local school districts, but again only as the districts become capable of providing an appropriate education.

Heskett at Vol. 8; John at Vol. 11; Hall at Vol. 18.

This trend toward local district responsibility is instructive in a couple of regards. One, it refutes the notion that the DESE has some bureaucratic self-interest in maintaining a separate state school system. The willingness to close State Schools and to work closely with the local districts to help them develop an appropriate educational plan for each child supports this conclusion. Two, it highlights that the primary concern of the DESE is the educational services available to a child. The unchallenged evidence indicates that the DESE relies exclusively on educational program considerations when deciding whether to close a State School and shift the educational responsibility to a local school district. When a district is ready the transfer occurs. Otherwise a State School fills the educational services gap

*1452

The plaintiffs stress that it would be feasible to transfer the handicapped children currently served in separate settings to regular school environments.

Relying

*1453

in part on the testimony of some of the defendants’ witnesses, the plaintiffs maintain that such a transfer would not face staffing shortages, lack of classroom space, create health or safety problems, or cost more, and it would result in lower transportation times for the children.

The defendants presented considerable evi

*1454

dence rebutting the feasibility of a wholesale transfer.

The issue for resolution here, however, is not whether it is feasible to transfer all the handicapped children in

*1456

the separate schools to regular schools,

but whether the separate schools and facilities are an appropriate part of a special education system and whether systemically the defendants have procedures that seek to assign the children to the least restrictive educational setting appropriate. The answer to both queries is yes. If the Court did as the plaintiffs ask and ordered the wholesale transfer of all the children in separate schools to" regular schools it would be committing the same wrong the plaintiffs alleged against the defendants earlier. The Court would not be treating each child as an unique individual.

This Court’s determination that the defendants are systemically in compliance with the placement provisions of the Education Act should not be viewed as a ruling that each, individual child served in a separate setting is appropriately placed. Resolution of each individual case, however, is better left to the administrative review process, and, if necessary, to a court case focusing on the needs and abilities of the individual child. This is the challenge and review procedure Congress established. If a parent or guardian believes that his child has been inappropriately placed he may challenge the placement. If the DESE finds against the parent or guardian, then he has recourse to a court. 20 U.S.C. § 1415 . This procedure is available in Missouri and has been utilized.

See Cothern v. Mallory,

565 F.Supp. 701 (W.D.Mo.1983);

Vogel v. School Bd. of Montrose R-14 Sch. Dist.,

491 F.Supp. 989 (W.D.Mo.1980);

Mallory v. Drake,

616 S.W.2d 124 (Mo.App.1981);

Moran v. Bd. of Directors, Sch. Dist. of Kansas City,

584 S.W.2d 154 (Mo.App.1979). The Court’s only ruling today is that separate schools are not

per se

in violation of the Education Act, and that the separate settings maintained by the defendants are consistent with the Act.

IV.

Appropriate Educational Program

As a final challenge under the Education Act, the plaintiffs claim that the children in the separate schools and facilities do riot receive an appropriate education. They maintain that it is inherently impossible to provide an appropriate educational facility to children attending a sepa

*1457

rate educational environment. The plaintiffs posit that in a separate setting (1) educators can not provide the components necessary for an adequate educational program, (2) the children are denied sufficient opportunities to interact with nonhandicapped children, and (3) the quality of the teaching is inferior. The Court has reviewed all of the evidence presented on this challenge and finds that it is possible to provide an appropriate education to children in separate schools.

The Education Act requires each participating state to provide a free appropriate public education to the handicapped children of the state. A free appropriate public education is defined in the Act as the combination of special education and related services provided at public expense, under public supervision, and in conformity with each handicapped child’s IEP. 20 U.S.C. § 1401 (18). The Supreme Court in

Rowley

read the Act’s goal of a free appropriate public education as calling for “educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.”

Hendrick Hudson Central Sch. Dist. v. Rowley,

458 U.S. at 188-89, 203, 102 S.Ct. at 3041-42, 3049. When confronted with the task of determining the appropriateness of an educational program, the Supreme Court has instructed the lower courts to concentrate on two inquiries: (1) whether the state is complying with the procedures contained in the Education Act and (2) whether the IEP is reasonably calculated to benefit the child.

Id.

at 206-07, 102 S.Ct. at 3050-51. In the discussions of the preceding claims the Court has already found that the defendants are complying procedurally with the Act on a systemic basis, answering inquiry number one. The posture of this case does not allow for a determination of whether the IEP of a particular child is reasonably designed to benefit that child. The actual question here is whether, on a systemic basis, any handicapped child can benefit from an educational program provided in a separate setting. The Court will take up each of the plaintiffs’ claims and the defendants’ responses.

The plaintiffs argue first that the separate settings are inherently inadequate because an appropriate educational program can not be provided in separate schools. Both sides agree that handicapped children are slower to learn, do not learn as much, and can not as readily apply what they have learned'to new situations. Witnesses for the plaintiffs testified that because of these learning deficiencies profoundly handicapped youngsters require an educational program that teaches age appropriate functional and social skills in an age appropriate manner, and which provides the children with sufficient opportunities to practice or generalize what they are learning. Sailor at Vol. 1; Snell at Vol. 2; Freagon at Vol. 4. Their witnesses further maintained that it is impossible to teach these skills or provide the needed generalization opportunities in a separate educational environment, and since these components of an education program are essential to the development of the severely handicapped no program in a separate setting will be adequate. Snell at Vol. 2; Nisbet at Vol. 3. The witnesses who toured the separate schools and facilities administered by the defendants did not find the educational programs offered to be exceptions to this view. Snell at Vol. 2; Brown at Vol. 3; Nisbet at Vol. 3; Freagon at Vol. 4.

The evidence presented by the defendants contradicts the plaintiffs’ position on two points. First, all of the witnesses for the defendants maintained that a child in a separate facility can receive an appropriate educational program. Speaking specifically to the program components stressed by the plaintiffs’ witnesses, Dr. Newby countered that functional and social skills can be taught, that the problem of generalization can be dealt with, and that chronological age appropriateness can be considered in a separate setting. Based on his experience he believed that these skills could not be taught and the problem of generalization could not be handled better, if as well, in a regular school. Newby at Vol. 12.

*1458

Several other witnesses from outside of Missouri reiterated this view. Fanning at Vol. 10; Gottlieb at Vol. 16; Throne at Vol. 17. Even the testimony of two of the plaintiffs’ witnesses indicated that an educational program in a separate setting is not inherently foreclosed from containing these elements. Dr. Fredericks maintained that he would have found the programs he observed to be adequate if they had provided sufficient interaction opportunities. Fredericks at Vol. 7. Ms. Toews did find the curriculum, materials, and staff to be excellent, and the program age appropriate at the Phase III schools she observed. Toews at Vol. 8. Second, witnesses from the DESE and the SSD testified that the educational programs they provide contain the components highlighted by the plaintiffs. Heskett at Vol. 8; Werner at Vol. 13; Hall at Vol. 18. Dr. Heskett testified that the state school curriculum includes functional and social skills. The IEP teams are trained to formulate IEPs that call for instruction in the functional and social skills needed by each particular child. The importance of these skills is further stressed to the teachers through seminars, in-service training, and materials that are distributed to them. The home-living area and the vocational area are examples of functional training. Heskett at Vol. 8. Ms. McPheron and Ms. Emmons, each with experience in developing and applying IEPs, supported the testimony of Dr. Heskett. In particular, each reviewed the IEPs of the individual plaintiffs and pointed out the functional and social skills instruction contained in the IEPs. McPheron at Vol. 11; Emmons at Vol. 13. Other witnesses resubstantiated this point although in a more general context. Bolazina at Vol. 14; Hauser at Vol. 14. The actual curriculum of the State Schools and the IEPs in the record further support the testimony of the witnesses. Both show that the teaching of functional and social skills is part of the educational programs provided by the defendants. P.Exh. 153A, Self-Care Curriculum; P.Exh. 153C, Language and Communication Curriculum; P.Exh. 153D, Interpersonal Relationships Curriculum; P.Exhs. 183, 185,187,189, 191-19,195-199. The skills taught each child, however, are based on the child’s present functional or developmental level rather than on the child's chronological age as stressed by the plaintiffs. Werner at Vol. 13; Hauser at Vol. 4; Hall at Vol. 18. Experts for the defendants, who testified to this point, supported the approach of focusing on developmental level rather than age. Fanning at Vol. 10; Newby at Vol. 12; Yard at Vol. 15. Dr. Heskett pointed out, however, that this did not mean that the concept of “age appropriate” is ignored. Rather, the importance of teaching a child in an age appropriate manner and with age appropriate materials is stressed to the professional staff in seminars, etc., and, furthermore, the DESE reviews all equipment and materials requests to determine if they are age appropriate. Heskett at Vol. 8. The skills taught, however, are gauged to the child’s developmental level and not to his age. Sufficient generalization opportunities are also provided. The curriculum materials are diverse and allow the teachers to use different materials to teach the same point. The teacher rotation system or departmentalization allows the child the opportunity to be taught by teachers with different styles, perspectives, and expertise. Once the children have learned a skill they are taken into the community to practice the skill where they would be expected to use it. Heskett at Vol. 8; R. Werner at Vol. 13; Bolazina at Vol. 14. Dr. Hall maintained that the separate schools, and not the regular schools, could better provide an age appropriate functional and social skills curriculum with sufficient generalization opportunities for the more profoundly handicapped. Hall at Vol. 17. Ms. McPheron, Ms. Emmons, and Ms. Bolazina all testified that the IEPs of the individual plaintiffs indicated that they were benefit-ting from the programs they are receiving. Finally, the outside experts found the programs not only effective but at the forefront of current professional thought. Fanning at Vol. 10; Burton at Vol. 11; Gottlieb at Vol. 16-17.

The plaintiffs argue next that a separate setting is inadequate because it can not

*1459

provide sufficient interaction opportunities with nonhandicapped peers. Snell at Vol. 2; Brown at Vol. 3; Nisbet at Vol. 3; Fraegon at Vol. 4; Towes at Vol. 8. The witnesses explained that interacting with nonhandicapped peers would improve the social skills of the handicapped child, provide the child with appropriate models for dress and behavior, and create more learning and generalization opportunities. Sail- or at Vol. 1; Snell at Vol. 2; Brown at Vol. 3; Freagon at Vol. 4; Fredericks at Vol. 7; Toews at Vol. 8. They also pointed out that interacting with nonhandicapped children in a school setting better prepares the handicapped child for the “real” world.

A child who only interacts with other handicapped children will not be ready to deal with nonhandicapped people when he finishes school. Snell at Vol. 2. Finally, if the handicapped are “integrated” then non-handicapped children can serve as peer tutors. A peer tutor is a nonhandicapped child who volunteers to work one-on-one with a handicapped child at a timé when the latter’s teacher is working with other students. Peer tutors not only provide structured interaction opportunities, but also increased instruction time.

Sailor at Vol. 1.

The defendants maintain that interactions between profoundly handicapped and

*1460

nonhandicapped children are not as easy or as beneficial as the witnesses for the plaintiffs claimed. Their witnesses testified that merely placing a severely handicapped child in a school with nonhandicapped children does not guarantee interaction. As the severity of a child’s handicapping condition increases so does the tendency of non-handicapped children to ignore the child. They do not want to interact with children unlike themselves. Moreover, if the profoundly handicapped are unaware of their environment, as many are, then irrespective of the school setting, interactions will not occur. Even if, however, interactions do occur there is no guarantee they will be beneficial to the handicapped child. Dr. Burton pointed out that to foster positive interactions requires the nonhandicapped children to have been.trained in interacting and the handicapped child to possess the social skills necessary for interaction. Bolazina at Vol. 14; Burton at Vol. 11; Heskett at Vol. 8. No data exists to support the plaintiffs’ view that mere placement in a regular school environment will lead to positive interactions. Heskett at Vol. 8; Burton at Vol. II.

The witnesses further testified that interactions with nonhandicapped children are not necessary for the provision of an appropriate education anyway. Heskett at Vol. 8; Fanning at Vol. 10; Burton at Vol. 16;' Newby at Vol. 12; Gottlieb at Vol. 16; Throne at Vol. 17; Hall at Vol. 18. Moreover, social skills are not learned incidentally by the severely handicapped as they are by the nonhandicapped. Dr. Fanning maintained that severely handicapped children only learn these skills through an intense program which can be best provided in a separate setting. Furthermore, modeling does not occur. Dr. Throne stated that that due to disparities in their mental development severely handicapped children can not mimic their non-handicapped peers. The witnesses stressed, however, that the placement of a severely handicapped child in a regular school before he is ready will arrest his social and education development. One of the concerns expressed by the witnesses was the effect of rushed interactions on a handicapped child’s self-esteem. Dr. Fanning and Ms. Eldridge maintained that when a profoundly handicapped child, aware of his environment, is placed in an environment with interaction opportunities

*1461

before he can cope, the frustrations that arise therefrom will lower his self-esteem. As his self-esteem declines so will his capabilities. This result is compounded by the fact that the child will also have forfeited the gains he could have made in an appropriate environment. Eldridge at Vol. 15; Heskett at Vol. 8; Fanning at Vol. 10; Gottlieb at Vol. 16; Throne at Vol. 17; Hall at Vol. 18.'

The witnesses pointed out that the severely handicapped have the opportunity to and do interact with their handicapped peers, their teacher and with volunteers. Both the DESE and the St. Louis Co. SSD have volunteer programs. The SSD selects and trains mature high school and college students to work one-on-one with their Phase III students. The DESE trains people from the community who volunteer. Both also have a program for parents. The goal of each program is not to provide nonhandicapped peers, but rather to provide the children with more attention. The attention rather than the age of the attendee is what is important. The attendee does not need to be a peer. Dr. Sailor admitted that he was unaware of any research on the benefits of peer-tutoring. Heskett at Vol. 8; Burton at Vol. 11; Fanning at Vol. 10; Bolazina at Vol. 14; Hauser at Vol. 14; Gottlieb at Vol. 16; Hall at Vol. 18. The witnesses further stress that peer tutors and other volunteers should not be viewed as teacher replacements. They can attend the profoundly handicapped, but they lack the expertise to teach them or to recognize the subtle signs of improvement. The more severely handicapped learn in very small increments which requires the teacher to note the smallest details of the child’s action. Heskett at Vol. 8; Fanning at Vol. 10; Burton at Vol. 11.

Third, the plaintiffs claim that the quality of instruction is not as good in a separate school. Their witnesses attributed this to the fact that nonhandicapped children and regular education teachers are not present. They maintained that teachers in separate schools do not expect as much of their students and, therefore, do not push them to accomplish as much as they could because the teachers only have other handicapped students with which to compare them. If the teachers were in an environment with nonhandicapped students then their expectations would increase. The witnesses also maintain that the teachers in separate schools do not use age appropriate teaching methods. They believe that if the same teachers were in a regular school the pressure of having non-handicapped children and regular education teachers around would prevent a special education teacher from decorating the classroom, treating the child, or using instructional materials in a manner more suitable for a younger child. Finally, .the witnesses maintained that due to the lack of nonhandicapped children special education teachers have a greater tendency to become frustrated with the work and “burn-out” on teaching. Snell at Vol. 2; Brown at Vol. 3; Toews at Vol. 8.

The defendants maintain that the presence of nonhandicapped children and regular education teachers does not have an effect on the expectations or teaching methods of special education teachers. The Court has already discussed evidence that indicates that age appropriate materials and methods are used by the defendants. The witnesses admitted that burnout can pose a problem, but they attributed it to higher expectations, refuting the plaintiffs’ claim that these, teachers have lower expectations for their students. As Dr. Fanning put it, teachers who burnout have higher expectations, higher levels of professionalism, and a higher intensity level. Defendants’ witnesses claimed that burnout, however, was more likely for a teacher of the more profoundly handicapped in a regular school and better combated in a separate school.

Burnout arises from the repetitive nature of the instruction and the incremental pace of the' learning. To cope with this the DESE and the SSD have a rotation or departmentalization program which allows each teacher to spend some time each day away from his or her own class. These programs would not be possible in a regular school if there were not enough teachers certified to teach the more severely handicapped. The concentration of teach

*1462

ers all with the same interests, problems, frustrations, etc., also serves as a support mechanism. The teachers are able to share their problems or experiences with the others while at the same time receiving solutions or insight from the others. Regular education teachers and teachers of the mild and moderately handicapped do not share the same experiences and do not have the same understanding of the problems faced by these teachers. Often regular education teachers view the handicapped classes and teachers as separate and distinct, and expect those teachers to handle their own problems. The administration in the separate schools are also supportive. They are familiar with and recognize the problems facing the teachers. They are not distracted by the needs of a nonhandicapped majority. For example, at one special school, the principal/coordinator meets formally with the teachers once a week and informally on a daily basis. She views one of her primary responsibilities as preventing and overcoming staff burnout. Heskett at Vol. 8; Fanning at Vol. 10; John at Vol. 11; Newby at Vol. 12; Bolazina at Vol. 14; Hauser at Vol. 14; ■ Gottlieb at Vol. 16.

Both sides presented a considerable amount of evidence, only briefly summarized above, on the issue of an appropriate education. After reviewing the evidence in its entirety, the Court concludes that the defendants have shown that it is possible to provide an appropriate education in a special school or facility. None , of the claims made by the plaintiffs justify a finding that educational programs in separate schools are inherently inadequate. One, the evidence indicates and the Court finds that it is possible and that the defendants are striving to teach each child functional and social skills in an age appropriate manner, and that generalization opportunities are incorporated into the program. The testimony of the witnesses from the DESE and the SSD was supported by the testimony of the outside experts of the defendants, the curriculum and IEPs in the record, and by portions of the testimony of two of the plaintiffs’ witnesses. Two, the Court further finds, that interacting with nonhandicapped peers in a regular school environment is not a universal prerequisite to an adequate education. The evidence indicates that profoundly handicapped children can learn social skills in a separate setting without nonhandicapped age peers. Moreover, merely placing the profoundly handicapped in a regular school does not guarantee meaningful interactions. The nonhandicapped must be trained and the profoundly handicapped must be developmentally ready. If the handicapped child is not psychologically or developmentally ready then the regular school setting and the “interactions” can actually be harmful to the child’s development. The defendants train volunteers to work with and provide attention to the profoundly handicapped children who can benefit. Three, the Court finds the evidence does not support the plaintiffs’ claim that the teachers in separate schools have lower expectations, use inappropriate methods, and burn out more easily. The testimony of the defendants’ witnesses, in general, and of the two teachers in particular, Ms. Emmons and Ms. Bolazina, along with the Court’s impression of the two teachers supports an opposite conclusion.

This portion of the case comes down to choosing between the conflicting opinions of the experts who testified for both sides. The Court accepted the opinions of the defendants’ experts for several reasons. First, the witnesses from the DESE and the SSD showed themselves to be sincere professionals dedicated to the educational advancement of the children they serve. Each witness who testified seemed to be more concerned with what would most benefit or be in the best interest of the child than with the child’s educational setting. They appeared delighted and counted it as a success when a child in a separate setting was able to move to a less restrictive environment.

This Court’s view of the sincer

*1463

ity and dedication of the DESE and SSD witnesses is bolstered by the previous findings that both are procedurally complying with the Education Act.

Second, the independent approach taken by the outside experts who testified for the defendants led the Court to accept their opinions. Only Dr. Yard had more than minimal ties to the Missouri special education system. Drs. Burton and Gottlieb both made their testimony for the defendants’ contingent on their perceptions of the system after viewing it. This is in contrast to the approach taken by plaintiffs’ witnesses. All but one admitted that they already believed it was impossible to provide an appropriate education in a separate setting before they even viewed any of the defendants’ programs.

Third, the generalizations the plaintiffs make are questionable. The witnesses for the plaintiffs maintained that their views of the benefits of integrating the profoundly handicapped were based on their experience with integrated programs. The programs, however, were all local in scope and voluntary in nature. None were or had been involved in a statewide program of court ordered integration. Dr. Fanning stressed that the localized experience could not be generalized to a state system. Fanning at Vol. 10. Moreover, existing along side the integration projects of the plaintiffs’ experts were separate schools. In each of the state’s, and even in each community, profoundly handicapped children remained outside the regular schools. Dr. Gottlieb, who toured both the DeKalb County, Illinois, and the Madison, Wisconsin programs found that the children he observed in the integrated programs were less severely impaired than the children served by the defendants.

Fourth, credibility is not a question of numbers or place in the academic hierarchy. Rather it concerns who is in the better position to know what is being testified to by the competing witnesses. The Court believes that the witnesses for the defendants were in the better position. Their witnesses were administrators and teachers who had evaluated the progress of the children over time and who had worked with the children on a daily basis. As is the nature of such suits, the plaintiffs’ witnesses were less familiar with the children at issue. They typically spent only a day or less at each school they visited. They usually concentrated on two to four children at a school, observing the children directly, reviewing their files, and speaking with their teachers. Yet, based on this minimal familiarity, they testified that they did not see any children, even the ones they only saw in passing, that could not benefit from a regular school placement. Although the evidence was more general and theoretical, than specific, and the Court is not making any determinations with regard to specific children, two examples regarding individual children make the point here. The teacher of two of the children the plaintiffs’ witnesses maintained should be in a regular school testified to the contrary. She maintained that one child is totally unaware of her environment. The child has no body control and must be repositioned, can not differentiate between people, does not know, when things in her environment change, and her only communication occurs through unpredictable vocalizing. The other child can sit up but lacks head control and the ability to track objects. She, too, can not differentiate between people and has little environmental awareness.

Fifth, the Court gives the educational theories of the State’s educators the deference required by law. This case comes down to a clash between two schools of educational thought on the question of whether interactions with nonhandicapped youngsters in a regular school environment are necessary for an adequate education.

*1464

The Supreme Court in

Rowley

counseled the courts against substituting their own educational theories for those held by the state and local educational agencies.

Hendrick Hudson Central School District v. Rowley,

458 U.S. at 206, 102 S.Ct. at 3050. Congress placed the primary responsibility for formulating educational policy on the state and local authorities, and it did not intend the courts to strike down an appropriate educational theory.

Id.

at 207-08, 102 S.Ct. at 3051-52. The debate over the need for interaction falls within this category. To rule for the plaintiffs would in essence require the Court to substitute, contrary to congressional intent and to the admonition in

Rowley,

one education theory for another. To overturn an educational theory held and applied in good faith by a state’s educational authorities would require a showing that the theory is completely out of step with present educational thought and with no likelihood of benefit-ting the children served. Such evidence is not before the Court. To the contrary the evidence shows that Missouri is in the mainstream of special education. At present most severely handicapped youngsters continue to be educated in separate schools. Only Hawaii has fully integrated its handicapped children into its regular schools. Hawaii, however, only has one school district and its IEP teams still refer children to private schools or other nonregular school placements. All other states continue to educate more than just the medically fragile or physically abusive in separate schools. This Court is the first to recognize that the necessity of being the first to do something new or different is not a valid reason for not doing it. Neither, though, is change for its own sake a valid reason to change. ■

Here, the defendants are complying with the procedural requirements of the Education Act and are committed to an educational theory which is not inconsistent with the Act. The defendants’ goal is to prepare each child to live as independently as the child’s capabilities will allow. They theorize that to reach that goal they must have a system of alternative educational settings, a mechanism to place each child in the setting best suited to develop the child’s skills, and a procedure to move the child to less restrictive settings as his skills develop. This is consistent with the Education Act and its regulations. This Court, therefore, will not interfere with and disrupt the state and local control of the special education program by ordering the defendants to change their program to comply with the theory espoused by the plaintiffs.

Again, as a postscript the Court points out that its ruling is limited to a finding that it is possible to provide an adequate education in a separate educational setting. The Court has not ruled and does not take a position on the particular educational programs provided to individual students. If a parent believes that his child’s program is inappropriate he is free to pursue relief through the administrative review process and a court challenge.

Rehabilitation Act

The plaintiffs next turn to the Rehabilitation Act of 1973, 29 U.S.C. § 701

et seq.,

as a basis for challenging the validity of the separate facilities maintained by the defendants. Section 504 of the Rehabilitation Act prohibits any handicapped person from being excluded from, denied the benefits of, or discriminated against with respect to any program receiving federal funds.

The plaintiffs argue that by plac

*1465

ing the profoundly handicapped in separate schools the defendants exclude them from, deny them the benefits of, and discriminate against them with regard to a regular school placement in violation of Section 504. They claim that the Section and its accompanying regulations mandate the inclusion of these children into educational programs in the regular schools. The Court finds that the defendants maintenance of separate schools does not violate Section 504. Contrary to the assertion of the plaintiffs, Section 504 like the Education Act, does not mandate the education of all handicapped children in regular schools. The defendants’ compliance with the requirements of the Education Act establishes compliance with Section 504.

The defendants argue first that Congress preempted the application of Section 504 to the area of elementary and secondary education with the passage of the Education Act. Five circuits, including this circuit, have ruled that the Education Act and Section 504 provide independent causes of action.

Timms v. Metro Sch. Dist. of Wabash Co., Ind.,

722 F.2d 1310 (7th Cir.1983);

Georgia Ass’n of Retarded Citizens v. McDaniel,

716 F.2d 1565 (11th Cir.1983);

Marvin H. v. Austin Indep. Sch. Dist.,

714 F.2d 1348 (5th Cir.1983);

Smith v. Cumberland Sch. Comm.

703 F.2d 4 (1st Cir.1983);

Monahan v. Nebraska,

687 F.2d 1164 (8th Cir.1983). Two recent Supreme Court cases, though, lend considerable credence to the position of the defendants and cast doubt on the decisions of the five circuits.

Smith v. Robinson,

— U.S. —, 104 S.Ct. 3457 , 82 L.Ed.2d 746 (1984);

Irving Indep. Sch. Dist. v. Tatro,

— U.S. —, 104 S.Ct. 3371 , 82 L.Ed.2d 664 (1984). Each case discussed the reach of the Education Act with reference to the payment of attorney’s fees. The Education Act does not provide for attorney’s fees. The plaintiffs in

Smith

were trying to obtain them under Section 504 and Section 1983, and the plaintiffs in

Tatro

under Section 504. The Court concluded that Congress did not intend to allow parties to “circumvent the requirements or supplement the remedies of the EHA [Education Act] by resort to the general antidiscrimination provision of Section 504.”

Smith v. Robinson,

— U.S. at —, 104 S.Ct. at 3473. The Court in

Smith

reached the same conclusion with respect to equal protection claims under Section 1983, but did not rule on the due process claims.

The plaintiffs maintain that

Smith

and

Tatro

stand only for the proposition that if a party succeeds on its Education Act claim then it can not pursue a remedy under either Section 504 or Section 1983, but if the party fails under the Education Act then it still has the potential of alternative claims under Sections 504 and 1983. This Court’s reading of

Smith

and

Tatro■

is broader than that of the plaintiffs. If a party’s claim concerns some aspect of his educational program cognizable under the Education Act the Education Act is the exclusive remedy for the party. The decisions in

Smith

and

Tatro

were handed down as this opinion neared completion, and since the extent of their application has not been discussed by this or any other circuit, the Court in the interest of efficiency and a final resolution of this case will proceed to discuss the merits of the plaintiff’s Section 504 and Section 1983 claims.

The Eighth Circuit recently applied Section 504 to claims of discrimination in the education of handicapped children.

Monahan v. Nebraska,

687 F.2d 1164 (8th Cir.1983). The relevant issue in

Monahan

concerned whether damages for an improper educational placement were recoverable under Section 504. The appellate court viewed the reference to discrimination in Section 504 as indicating that a violation of the section required a different showing than did a violation of the Education Act. For the latter Act, the showing of an improper placement, educational program, or evaluation would be sufficient to constitute a violation.

Id.

at 1170 . Relying on its belief that Section 504 did not create general tort liability and giving heed to the Supreme Court’s admonition in

Rowley

that courts were not to substitute their judgment for that of the state and local educational authorities, the Eighth Circuit held that “either bad faith or gross misjudgment should be shown before a Section 504 violation can be made out, at least in the

*1466

context of education of handicapped children.” The Court explained that it could “not believe that Congress intended to create liability under Section 504 ... as long as the state officials involved have exercised professional judgment, in such a way as not to depart grossly from accepted standards among educational professionals ....”

Id.

at 1171.

Applying the

Monahan

analysis, this Court concludes that the defendants have not violated Section 504. The Court has already found that the witnesses who administer or work for the defendants are sincere, knowledgeable and dedicated educators with the best interests of the children they serve foremost in their minds. The plaintiffs’ have not provided any evidence of bad faith or gross misjudgment on the part of the defendants. The plaintiffs do maintain that the defendants’ refusal to transfer the severely handicapped to regular schools despite the advances in the education of the handicapped rises to the level of an unreasonable refusal to modify a program.

Southeastern Community College v. Davis,

442 U.S. 397, 412-13 , 99 S.Ct. 2361, 2370 , 60 L.Ed.2d 980 (1979).

The defendants’ programs have been evolving with the advances in education. For example, Missouri once educated moderately handicapped students in separate schools. They are now placed in regular schools. Another example is the effort that has been made by both the DESE and the SSD to intensify the standards for placement outside the regular school environment. Other examples have been previously cited, but these two suffice to show that the educational systems under attack have not been static. The Court recognizes that there is an ongoing debate on the proper educational placement for the profoundly handicapped. The Court’s function, however, is not to decide the debate nor interfere with the decision of Missouri’s educators unless they have substantially departed from “acceptable professional judgment, practice or standards.”

Monahan v. Nebraska,

687 F.2d at 1171 . The Court finds that Missouri’s system of educating the severely handicapped is in the mainstream of acceptable professional thought. Nor have the defendants exercised their professional judgment in such a manner as to grossly depart from the accepted professional standards. Supportive of this finding are: (1) Forty-nine states currently educate some children in separate schools, and the other state, Hawaii, will still determine on occasion that other placement is more appropriate.

See Dept. of Ed., State of Hawaii v. Katherine D.,

727 F.2d 809 (9th Cir.1983); (2) Missouri provides for local districts to take over separate programs on a voluntary basis; (3) The defendants provide a continuum of placements and services that is fluid and allows each child to progress to less restrictive environments as he is ready; (4) To date the Secretary of Education has approved the compliance plans submitted by the State of Missouri;

*1467

(5) The experts who testified on behalf of the defendants maintained that the Missouri state school system is on the cutting edge of the field. Panning at Vol. 10; Burton at Vol. 11. Dr. Hall stated that the SSD provides the best educational program for the handicapped in the state.

Normally, a conclusion that the defendants have satisfied the requirements of or are acting consistently with the case law of the circuit would end the inquiry. The Court, however, hesitates to stop at this point today. At least one other circuit, the Seventh, has questioned the bad faith or gross misconduct standard enunciated in

Monahan ,

and none of the other circuits have applied it. The Seventh Circuit’s concern arises over the application of Title VI cases to Section 504. Originally intended as an amendment to the Civil Rights Act of 1964, Section 504 is patterned after Title VI of the Civil Rights Act, which prohibits race discrimination.

In 1981 the Rehabilitation Act was amended to provide that the remedies set out in Title VI would also apply to Section 504 actions. 29 U.S.C. § 794a(a)(2). The Seventh Circuit Court believed that these two factors weaken the

Monahan

standard because Title VI has been interpreted as not requiring proof of intentional discrimination unless compensatory relief is sought.

Timms v. Metro Sch. Dist. of Wabash Co., Ind.,

722 F.2d at 1318 n. 4, citing

Guardian Ass’n v. Civil Service Comm.,

— U.S. —, 103 S.Ct. 3221 , 3235 n. 27, 77 L.Ed.2d 866 (1983).

Whether the Eighth Circuit Court intended the standard announced in

Monahan

to be applied in all Section 504 cases dealing with the education of the handicapped is not clear. The language used in

Monahan

does not hint of any limitations on the application of the standard. If that is the case, then the undersigned Court has already found the defendants in compliance with Section 504. It may be, however, that despite the broad language, the Circuit Court intended the standard posited in

Monahan

to apply only to cases where compensatory damages are sought.

Monahan ,

after all, was such a case. If so, then the Court must further address the plaintiffs’ Section 504 claim. The plaintiffs do not seek compensatory damages.

Section 504 prohibits discrimination against the handicapped in any program which receives federal assistance. The plaintiffs view education in a regular school environment as the program in question. They argue that the defendants are violating Section 504 by excluding the severely handicapped they serve from an educational program in a regular school and concomitantly from its benefits.

The plaintiffs focus on a regular school education as the federally funded program in question is misplaced. As with the Education Act, the congressional concern underlying Section 504 and its regulations is broader. The concern is that handicapped children not be excluded, denied, or discriminated with regard to a free appropriate public education.

34 C.P.R. § 104.-33(a). There is no evidence in the record that the defendants have excluded any child in Missouri from receiving a publicly

*1468

paid for education nor denied any child the opportunity to enjoy the benefits of a public education. This Court has already found, under the Education Act, that the defendants, on a systemic basis, are providing a free appropriate public eduation to the children they serve. The defendants are complying with the placement requirements and the regular school preference. Their compliance with the Education Act is sufficient, in this situation, to satisfy Section 504- and its underlying Congressional intent. This Court is convinced that when a Section 504 claim is based on some facet of the Education Act, such as the plaintiffs claim here, compliance, with the requirements of the Education Act also establishes compliance with Section 504 even assuming, as urged by the plaintiffs, that the two Acts do provide independent causes of action. In the realm of elementary and secondary education for the handicapped Section 504 does not require anything beyond that required by the Education Act.

*1469

A comparison of Section 504 with the Education Act further supports this conclusion. Both Section 504 and its accompanying regulations, at subpart D, 34 C.F.R. § 104.31-39 , and the Education Act and its regulations are directed toward ensuring a free appropriate education to each handicapped child. Section 504, passed with the .Rehabilitation Act in 1973, is a general provision directed at combating discrimination of the handicapped in connection with any program receiving federal assistance. It does not require a recipient of federal funds to do any more than eliminate discrimination and ensure equal treatment of the handicapped in the federally assisted program. Affirmative action is not required.

Southeastern Community College v. Davis,

422 U.S. at 410-11. The Education Act, on the other hand, passed after the Rehabilitation Act is in direct response to the issue posed here: what type of public elementary and secondary education must a state which receives federal funding under the Act provide to the handicapped. It provides that the state must assure equal access to a free appropriate public education for each handicapped child.

Hendrick Hudson Central School Dist. v. Rowley,

458 U.S. at 200, 102 S.Ct. at 3047. Congress, however, when dealing specifically with the public education of the handicapped through the Education Act did not require “strict equality of opportunity and services.” It recognized that the handicapped, to receive a meaningful educational opportunity would require extra help in the form of special aids and services generally not afforded to the nonhandicapped.

Id.

at 198-99, 102 S.Ct. at 3046-47. Unlike Section 504, which does not require affirmative action on the part of federal recipients, the Education Act requires the states that participate to take affirmative steps to ensure the provision of an appropriate education to each handicapped child.

See id.

at 183, 102 S.Ct. at 3039;

Southeastern Community College v. Davis,

442 U.S. at 411 , 99 S.Ct. at 2369 ;

Timms v. Metro Sch. Dist.,

722

*1470

F.2d at 1317;

Monahan v. Nebraska,

687 F.2d at 1170 . For example, under the Education Act each participating state must identify the eligible children in the state, diagnose their educational needs, develop an individualized educational program to meet the needs of each one, place each one in the least restrictive educational environment in which the child can receive a satisfactory education, and provide their parents with a mechanism whereby they can challenge and change the results of any of the above. 20 U.S.C. § 1412 . No federal statute affords this specialized treatment and these benefits to the general, nonhandicapped population.

In light of the comprehensive detail and specific nature of the Education Act, the undersigned Court will not assume that Congress intended Section 504 to create compliance requirements in the area of the education of the handicapped beyond those set out in the Education Act.

See Smith v. Cumberland Sch. Comm.,

703 F.2d 4, 10 (1st Cir.1983);

Darlene L. v. Ill. St. Bd. of Ed.,

568 F.Supp. 1340, 1346-47 (N.D.Ill.1983).

The regulations in subpart D that accompany Section 504 also lend credence to the view that compliance with the Education Act is, at the least, sufficient to satisfy Section 504. First, the regulations, although not as extensive, mirror the major requirements of the Education Act. A recipient that operates a public elementary or secondary school must identify, 34 C.F.R. § 104.32 (a); evaluate, § 104.35(a) and (b); provide a free appropriate educational program designed to meet the unique needs of § 104.33(a) and (b); place in the least restrictive educational environment which can provide a satisfactory education to, § 104.34(a); § 104.35(c); and reevaluate, § 104.35(d); each child within the recipient’s jurisdiction. The recipient must also provide a. review process.

Id.

at § 104.36. If a party has satisfied the more comprehensive requirements under the Education Act, then it has satisfied the procedural requirements of Section 504.

Smith v. Cumberland Sch. Comm.,

703 F.2d 4, 9 (1st Cir.1983). Second, the regulations themselves point out that one way to establish compliance with Section 504 is by implementing “an individualized educational program developed in accordance with the Education of the Handicapped Act .... ” 34 C.F.R. § 104.33 (2). Third, the reach of these regulations has been called into question by the Supreme Court. On both the occasions that the Court has written on Section 504 with regard to education it has pointed out that the regulations can not require any changes beyond what is necessary to eliminate discrimination.

Univ. of Texas v.

Camenisch, 451 U.S. 390, 399 , 101 S.Ct. 1830, 1836 , 68 L.Ed.2d 175 (1981) (Burger, J. concurring);

Southeastern Community College v. Davis,

422 U.S. at 410, 99 S.Ct. at 2369 . Each time the Court has emphasized the limited nature of what Section 504 requires of federal recipients. This concern with the scope of the post-secondary education regulations has been recognized as extending to the regulations concerning elementary and secondary education.

New Mexico Ass’n of Retarded Citizens v. New Mexico,

678 F.2d 847, 852 (10th Cir.1982). Although neither the Supreme Court nor any other federal court, to this Court’s knowledge, has held that the regulations go too far and are invalid, the regulations themselves and the reservations stated by the Supreme Court both serve to indicate that the compliance requirements of Section 504 do not extend beyond the requirements of the Education Act.

Finally the Court notes that several cases confronted with claims under both the Education Act and Section 504 have reached the same conclusion: The Education Act sets the outer limits on what is required of a state in the area of educating the handicapped.

See Timms v. Metro Sch. Dist.,

722 F.2d at 1317-18;

Colin K.

*1471

v. Schmidt,

715 F.2d at 9 ;

Smith v. Cumberland Sch. Comm.,

703 F.2d at 9 n. 5 and 10;

Darlene L. v. Ill. St. Bd. of Ed.,

568 F.Supp. at 1346-47 .

Stacey G. v. Pasadena Indep. Sch. Dist.,

547 F.Supp. 61 , 75 n. 8 (S.D.Tex.1982).