Appendix — Williams v. Milonas
Supreme Court brief1983
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APPENDIX A
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
Nos. 80-1569 and 81-1407
(Consolidated Cases)
TIMOTHY MILONAS, JR., and KENNETH RICE, by and
through their Attorney and Guardian Ad Litem,
KATHRYN COLLARD, on behalf of themselves and all
others similarly situated, PLAINTIFFS-APPELLEES,
v.
JACK L, WILLIAMS, Owner and Administrative Direc-
tor, Provo Canyon School; Ropert H. Crist, Owner
and Medical Director, Provo Canyon School; D. Eu-
GENE, Owner and Executive Director, Provo Canyon
School, DEFENDANTS-APPELLANTS,
JOHN F, McNAMARA, Director and Administrator, In-
terstate Compact on Juveniles, DEFENDANT.
Appeal from the United States District Court
for the District of Utah, Central Division
(D.C. No. C-78-0352)
Before MCWILLIAMS and SEYMOUR, Circuit Judges,
and BRIMMER, District Judge.*
“Honorable Clarence A. Brimmer, Jr., Chief Judge, U.S. Dis-
trict Court for the District of Wyoming, sitting by designation.
2a
The Provo Canyon School for Boys, located near
Provo, Utah, is a private school for boys between the
ages of twelve and seventeen. Timothy Milonas, Jr.,
age fifteen, and Kenneth Rice, age sixteen, then stu-
dents at the Provo Canyon School, brought the present
action against the owners and operators of the Provo
Canyon School.' Also named as parties defendant were
various agencies, officers, and employees of the State
of Utah.’
The individual plaintiffs, Milonas and Rice, chal-
lenged the education, treatment and conditions of con-
finement of juvenile boys placed at the Provo Canyon
School and averred that the school administrators, act-
ing under the color of state law, had caused the plain-
tiffs to suffer and to be subjected to cruel and unusual
punishment, antitherapeutic and inhumane treatment,
and denial of due process of law. Minolas and Rice
* Jack L. Williams, owner and administrative director of the
Provo Canyon School, and Robert H. Crist, owner and medical
director of the Provo Canyon School, were named as parties
defendant in the original complaint filed on September 21, 1978.
D. Eugene Thorne became the executive director of the Provo
Canyon School on April 1, 1979, and was added as a party de-
fendant on September 14, 1979. These defendants are appel-
lants herein.
* State defendants were: Anthony W. Mitchell, Director of
the Utah Department of Social Services; the Utah Department
of Social Services; James P. Wheeler, Director of the Utah Di-
vision of Family Services; the Utah Division of Family Serv-
ices; John F. McNamara, Director and Administrator of the
Interstate Compact of Juveniles; Walter D. Talbot, Superin-
tendent of Public Instruction, Utah State Board of Education;
and the Utah State Board of Education. These defendants were
either dismissed from the lawsuit or entered into consent de-
crees. In this appeal, none of these defendants challenge the
district court’s disposition of the matter.
8a
sought class action certification and, both for them-
selves and the members of the class, asked for money
damages and declaratory and injunction relief pursuant
to 42 U.S.C. § 1983 (1976). The named plaintiffs also
alleged that they had been denied a free appropriate
public education and sought relief pursuant to the Ed-
ucation for All Handicapped Children Act, 20 U.S.C.
§§ 1401-1461 (1976) and Section 504 of the Rehabili-
tation Act of 1973 29 U.S.C. § 794 (1976).°
ee
*The claim against defendant McNamara, the director and
and administrator of the Interstate Compact on Juveniles for
the State of Utah, was that he had failed to administer ade-
quately his supervisory responsibilities regarding the place-
ment of youths in Utah institutions. It was McNamara’s job
to supervise the placement in Utah of juveniles from other
states sent to Utah by juvenile courts and other welfare agen-
cies. Milonas and Rice alleged that McNamara’s negligence
had resulted in their placement at the Provo Canyon School,
where they were subjected to abusive treatment. During the
course of the proceedings in the district court, the plaintiffs
and defendant McNamara entered into a consent agreement in
which defendant McNamara agreed, inter alia, to request that
out-of-state officials remove boys from the Provo Canyon
School and refrain from placing any other juveniles at the
school.
The claim against defendant Talbot, the superintendent of
public instruction for the State of Utah, and defendant Utah
State Board of Education, was that each had failed to provide
an adequate free appropriate public education for all handi-
capped children in the State of Utah as required by the Edu-
cation for All Handicapped Children Act, 20 U.S.C. § 1412(2)
(B) (1976). During the course of the proceedings in the dis-
trict court, these defendants also entered into a consent decree
with the plaintiffs. In this consent decree, the Utah defend-
ants agreed, inter alia, that they were subject to the provisions
of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§794 (1976), and the Education for All Handicapped Children
4a
Pursuant to Fed. R. Civ. P. 283(a) and (b) (2), the
district court provisionally certified the class. For pur-
poses of the preliminary relief requested, the class was
described as consisting of all juveniles residing at the
Provo Canyon School during the pendency of the civil
rights action. At that time, the district court also
entered a preliminary injunction that enjoined four
“behavior-modification” practices then in effect at the
school.
The plaintiffs’ claim for money damages was tried
to a jury; the district court reserved for its determina-
tion the claims for declaratory and injunctive relief.
At the conclusion of a lengthy trial, the jury returned
a verdict in favor of the defendants on the damages is-
sue. Nonetheless, the trial judge later entered a per-
manent injunction as to those four school administra-
tive practices that were the subject of the preliminary
injunction previously entered. For purposes of this
permanent relief, the district court certified a class con-
sisting of all boys residing at the Provo Canyon School
as of the date of the permanent injunction and in the
future.
The permanent injunction specifically prohibited the
defendants from: (1) opening, reading, monitoring or
censoring the boys’ mail; (2) administering polygraph
examinations for any purpose whatsoever; (3) placing
boys in isolation facilities for any reason other than
to contain a boy who is physically violent; and (4) us-
Act, 20 U.S.C. §§ 1401-1461 (1976), and the regulations pro-
mulgated thereunder; to adopt regulations and procedures to
- jmplement these federal laws in the State of Utah; to monitor
institutional compliance with the new state guidelines; and to
provide a safe and free appropriate public education to all
handicapped children in the State of Utah.
5a
ing physical force for any purpose other than to re-
strain a juvenile who is either physically violent and
immediately dangerous to himself or others, or physi-
cally resisting institutional rules.
The district court later found that the plaintiffs were
the “prevailing party” pursuant to 42 U.S.C. § 1988
(1976) and that they were entitled, therefore, to an
award of attorneys’ fees. The district court filed an
exhaustive memorandum opinion wherein it made find-
ings of fact and conclusions of law. This opinion was
not published. The district court then entered final
judgment and fixed the attorneys’ fees at $133,546.54.
For a discussion of the procedural history of this ap-
peal, see Milonas v. Williams, 648 F.2d 688 (10th Cir.
1981).
The Provo Canyon School is privately owned and
operated, although it does receive funds from both state
governments and the United States.‘ The school was
established in 1973 for the primary purpose of educat-
ing teenage boys whose problems are so severe that
* Tuition at the Provo Canyon School is $1,600 per month.
However, from the date of its inception as an institution in
1973, the Provo Canyon School has received significant
amounts of government money to sustain its operations. Many
of the boys are placed at the schovi by local sciivol districts
for special education purposes. School districts in California,
Wyoming, Utah, Illinois, North Carolina, Alaska, New York,
Minnesota, Washington, and Idaho have sent boys to the fa-
cility. These placements are accomplished through contractual
arrangements between the local school officials and the Provo
Canyon School administrators. Funding for the boys’ special
education comes from federal and state treasuries pursuant to
the Education for All Handicapped Children Act and corre-
sponding state special education laws. In 1979, the school re-
ceived $566,278.24 from local school districts.
6a
their treatment and education require a restricted,
therapeutic environment. All of the boys admitted to
the school have problems of one sort or another, in-
cluding physical, psychological, and emotional prob-
lems, and are handicapped by a general inability to
conform to normal behavioral standards. The district
court described the school as follows:
The Provo Canyon School is not a school in the
traditional, ordinary or classic sense. It does offer
classes on a secondary level to its resident popu-
lation, and in most instances does a good job in its
formal teaching. Provo Canyon School is also a
correctional and detention facility. Students are
restricted to the grounds. Students are confined.
Some students are locked in and locked up with
varying degrees of personal liberty restored as
each progresses through the institutional program.
If a student leaves without permission, he is hunt-
ed down, taken into custody and returned. —
Provo Canyon School is also a mental health
facility. Adolescent males perceived to have men-
tal health or emotional difficulties or who are
Additional governmental funding came from juvenile courts
and probation departments and county governments and wel-
fare agencies. The figures below demonstrate that the school
relied heavily upon government financing.
GOVERNMENT PERCENT OF
YEAR FUNDS RECEIVED TOTAL FUNDS
SI cisiceitaceisabileveiianudtinicasnnti $ 41,954.13 12.66
ee 131,196.66 25.29
SPT snisiashnesnicsemmeueussioisiniis 276,326.10 33.74
_ Feo 118,150.31 13.22
EERE near RO 104,258.01 15.96
SY sheaniinicenedinsvnitihienaibin 434,225.50 21.00
BPI. cimnioncccssnsniheusteieenivenietl 629,917.78 33.91
7a
chemically dependent persons, are counseled and
treated. Adolescent males with forms of learning
disability, physical, mental or emotional, are hous-
ed, counseled and “taught.”
The student population, intermixed and vari-
ous, is subjected to a form of “behavior modifica-
tion” described by those who run the school as
eclectic. Some of its salient features are isolation
from the outside world, little or no communication
with the outside world, physical confinement, phy-
sical punishment, progressive restoration of lib-
erty, investigation and evaluation of student “at-
titude” and “truthfulness” and future conduct”
through the use of a machine, and counseling.
Regardless of origin, condition or motivation,
once arrived, each person during the beginning
phases of the school program was locked in, iso-
lated from the outside world, and whether anti-
social, crippled or learning disabled, was subject
to mandated physical standing day after day to
promote “right thinking” and “social conform-
ity.” Mail was censored. Visitors were discouraged
Disparaging remarks concerning the institution
were prohibited and punished. To “graduate”
from confinement to a more liberated phase, one
had to “pass” a lie detector test relating to “atti-
tude,” “truthfulness” and “future conduct.” Some
failed to pass and remained in confinement for
extended periods of time.
Students generally are admitted to the Provo Can-
yon School at the insistence of one or both of their
parents. Typically, the parents have had extreme dis-
ciplinary problems and being unable to control their
child, have contacted the Provo Canyon School as a
“last resort.” Other boys are received at the school di-
8a
rectly from juvenile courts and probation officers from
across the nation. Many of the youths are placed at
the Provo Canyon School by the boy’s local school dis-
tricts, with tuition funding coming from state and
federal agencies pursuant to state special education
laws and the federal Education for All Handicapped
Children Act.
Plaintiff Timothy Milonas, Jr., had resided in the
State of Nevada prior to being involuntarily committed
to the Provo Canyon School by his mother. Milonas’
commitment was a condition of probation imposed by
a Nevada juvenile court. Milonas’ father thereafter
received a coded letter from his son, which letter im-
plied that the son needed assistance. Because of that
letter, Milonas’ father independently contacted counsel
regarding the school and how it was being run. Ken-
neth Rice, the other individual plaintiff, had resided in
Alaska until his involuntary commitment to the Provo
Canyon School. Rice was placed in the school pursuant
to an order of an Alaska juvenile court. Four months
after he was admitted to the Provo Canyon School, Rice
ran away from the school, and, before he was returned,
he made contact with an attorney and complained about
conditions at the school. As a result of the complaints
thus made by Milonas and Rice, the present action was
instituted.
Class Certification
Both Milonas and Rice were students at the Provo
Canyon School on the date this action was commenced.
On the date the complaint was filed, counsel for Mi-
lonas and Rice, fearing that the boys would be sub-
ject to retaliation by the defendants because of the
commencement of the lawsuit, sought and obtained an
immediate hearing before the district court. Based on
9a
such hearing and a stipulation between the parties,
the district court ordered that Milonas and Rice be re-
moved temporarily from the school and placed for the
time being with the Utah State Division of Family
Services. Each boy sought damages and injunctive re-
lief for himself, and, in addition, they also asked for
damages and injunctive relief for a class which they
sought to represent. The class, according to the com-
plaint, consisted of “all juveniles who have been, are
now, in the future will be placed at the Provo Canyon
School.” The district court provisionally granted plain-
tiffs’ motion for class certification, and, later, at the
conclusion of the trial, such grant was made permanent.
The first issue raised by the defendants in this appeal
concerns the propriety of class certification. The de-
fendants contend that the district court erred in grant-
ing plaintiffs’ request for class certification. This par-
ticular contention is based on either of two grounds.
First, the defendants assert that by leaving the Provo
Canyon School on the day that the lawsuit was filed,
pursuant to the order of court to which reference was
made above, Milonas and Rice lost membership in the
class that they sought to represent. The defendants
reason that Milonas and Rice, being “outsiders” at the
time of class certification, could not represent those
boys “inside” the school. In essence, the defendants
aver that the named plaintiffs lacked standing to pur-
sue the lawsuit on behalf of the class members. Sec-
ond, the defendants assert that the individual claims
of Milonas and Rice were not “typical” of the claims
of the class members and, therefore, at the time of
class certification, Milonas and Rice were merely “offi-
cious intermeddlers.” Fed. R. Civ. P. 28(a) (8). We
are not pursuaded by either of these arguments.
10a
It is axiomatic that an uninjured plaintiff cannot
bring suit on behalf of an injured class. U.S. Const.
art, III, § 2, cl. 1;Warth v. Seldin, 422 U.S. 490, 502
(1975); Bailey v. Patterson, 369 U.S. 31, 32-33
(1962). It is well settled, however, that a named plain-
tiff may continue to represent a class that has been
certified as such even after the named plaintiff’s per-
sonal stake in the outcome of the litigation has been
mooted, Sosna v. Jowa, 419 U.S. 398, 399 (1975). Fur-
thermore, “[{t]here may be cases in which the contro-
versy involving the named plaintiffs is such that it
becomes moot as to them before the district court can
reasonably be expected to rule on a certification mo-
tion.” Jd. at 402 n.11. In such instances, the district
court may apply a “relation back” theory and grant
late certification in an otherwise moot case and thereby
prevent mootness. /d.; Napier v. Gertrude, 542 F.2d
825, 828 (10th Cir. 1976), cert. denied, 429 U.S. 1049
(1977). See generally Note, Class Standing and the
Class Representative, 94 Harv. L. Rev. 1637 (1981).
The key to whether a particular case falls within that
“narrow class of cases in which the termination of a
class representative’s claim [prior to class certification]
does not moot the claims of the unnamed members of
the class,” Gerstein v. Pugh, 420 U.S. 108, 110 n.11
(1975), is whether the claim on its merits is “capable
of repetition, yet evading review.” United States Pa-
role Comm'n v. Geraghty, 455 U.S. 388, 398 (1980).°
Ours is such a case.
®* The Supreme Court’s most recent pronouncement on this
matter appears in United States Parole Comm’n v. Geraghty,
445 U.S. 388, 398 (1980), wherein the Court noted that
{a]lthough one might argue that Sosna contains at least
an implication that the critical factor for Art. III purposes
lla
When the present action was instituted, Milonas and
Rice were students in the Provo Canyon School, and
as such were members of the class they sought to rep-
resent. Understandably, the boys were removed from
the Provo Canyon School at the earliest possible date.
The district court could not have been expected to rule
on a class certification motion prior to the date of the
boys’ removal from the school premises. Also the dis-
trict court’s order placing the boys in the care of
state officials was temporary in nature and, therefore,
it was possible that the boys would be returned to the
school. In our view, the fact that Milonas and Rice
were removed temporarily from the school as a precau-
tionary measure does not mean that they thereby lost
their “personal stake” in the controversy. And most
certainly the controversy itself was postured in a truly
adversary setting. It is our conclusion, therefore, that
Milonas and Rice satisfied the constitutional require-
ment of presenting a live case and controversy to the
district court on behalf of themselves and the members
of the class.
is the timing of class certification, other cases, applying a
“relation back” approach, clearly demonstrate that timing
is not crucial. When the claim on the merits is “capable of
repetition, yet evading review,” the named plaintiff may
litigate the class certification issue despite loss of his per-
sonal stake in the outcome of the litigation. E.g., Ger-
stein v. Pugh, 420 U.S. 103, 110 n. 11 (1975). The “capable
of repetition, yet evading review” doctrine, to be sure, was
developed outside the class action context. ... But it has
been applied where the named plaintiff does have a per-
sonal stake at the outset of the lawsuit, and where the claim
may arise again with respect to that plaintiff; the litigation
then may continue notwithstanding the named plaintiff’s
current lack of a personal stake. . . . Since the litigant faces
12a
Defendants’ “lack of typicality” argument is based
primarily on the fact that Milonas’ tuition at the school
was funded by his parents and that Rice’s tuition was
funded by the State of Alaska, whereas other students
were funded by different financial sources, including
federal special education money. According to coun-
sel, such demonstrates that the individual claims of
Milonas and Rice are not typical of the class’s claim.
We disagree.
We note that in addition to Article III standing re-
quirements, Fed. R. Civ. P. 23(a) lists four prerequi-
sites to the certification of a class and the maintenance
of a class action.’ Upon the failure of the class repre-
sentative to meet any one of the prerequisites of the
rule, class certification will be denied. This determina-
tion, however, is a matter within the sound discretion
of the trial court and the trial court’s conclusions as
to whether the class representative has demonstrated
that the numerosity, commonality, typicality, and ade-
quacy of representation requirements have been met
“will not be disturbed absent a showing of abuse of that
discretion.” Rex v. Owens ex rel. State of Oklahoma,
585 F.2d 482, 436 (10th Cir. 1978).
some likelihood of becoming involved in the same contro-
versy in the future, vigorous advocacy can be expected to
continue.
° Fed. R. Civ. P. 23(a) provides that a class action may be
maintained only if the following requirements are met: (1)
the class is so numerous that the joinder of all class members
is impracticable; (2) there are questions of law and fact com-
mon to the class; (3) the claims of the representative parties
are typical of the claims of the class; and (4) the representa-
tive parties will fairly and adequately protect the interests of
the class.
18a
In determining whether the typicality and common-
ality requirements have been fulfilled, either common
questions of law or fact presented by the class will be
sufficient. Factual differences in the claims of the class
members should not result in a denial of class certifi-
cation where common questions of law exist. Penn v.
San Juan Hospital, Inc., 528 F.2d 1181, 1189 (10th
Cir. 1975) ; Like v. Carter, 448 F.2d 798, 802 (8th Cir.
1971). As we have stated previously, every member
of the class need not be in a situation identical to that
of the named plaintiff. Rich v. Martin Marietta Corp.,
522 F.2d 333, 340 (10th Cir. 1075).’
Milonas and Rice, together with the class which they
were certified to represent, have common claims
against the defendants, i.e., that the disciplinary prac-
tices carried on at the school violated various consti-
tutional and statutory rights of the individual plain-
tiffs and of the class. Regardless of their source of
funding or, indeed, their individual disability or behav-
ioral problems, all of the boys at the school were in
danger of being subjected to the four enjoined “behav-
ior-modification” practices. In our view, the typicality
and commonality requirements of Fed. R. Civ. P. 23 (a)
(3) have been met. In sum, the district court did not
err in granting class certification.*
* Defendats’ reliance upon our decision in Albertson’s, Inc.
v. Amalgamated Sugar, Inc., 503 F.2d. 458 (10th Cir. 1974),
is misplaced. In that case, we upheld the trial court’s denial
of class certification because we found that the party seeking
to represent the class had interests antagonistic to the persons
he sought to represent. Jd. at 463. Such is not the case in
the instant action.
*No challenge is made on appeal to the district court’s
finding that the requirements of Fed. R. Civ. P, 23(a) (1)
and 23(a) (4) were satisfied.
l4a
State Action
Section 1983, 42 U.S.C. § 1983 (1976) prevides, in
essence, that any person who, under the color of state
law, causes another to be deprived of rights secured
by the Constitution or laws of the United States shall
be liable to the injured party in an action at law or a
suit in equity. 28 U.S.C. § 1343 (1976) confers orig-
inal jurisdiction on federal district courts to hear pro-
ceedings brought under Section 1983. In the instant
case, the plaintiffs alleged, and, at trial, attempted to
show, that their constitutional and statutory rights had
been violated by the owners and operators of the Provo
Canyon School and that, in so doing, the defendants
were acting under the color of state law. In awarding
to the plaintiffs injunctive relief, the district court
found that the enjoined practices were carried out un-
der the cloak of state action. This conclusion was based
on the fact that various states, be it through their ju-
venile courts or their school districts, had placed the
plaintiffs, or at least many members of the class in the
institution, and that there was significant funding and
regulation by the state. We agree.’
® Having concluded that the district court had jurisdiction
to issue the injunction under 42 U.S.C. § 1983 (1976) and
28 U.S.C. § 1843 (1976), we need not decide whether there was
independent jurisdiction under the Education of all Handicap-
ped Children Act of 1975, 20 U.S.C. §§ 1401-1461 (1976) or
under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§ 794 (1976).
The Education for All Handicapped Children Act of 1975
is a funding statute, requiring states seeking and receiving
funds under the Act to provide a free appropriate public edu-
cation for all school age children in their jurisdiction. The re-
quirements of the Act are set forth in the form of conditions
15a
When a private party, as compared to a state em-
ployee, for example, is charged with abridging rights
guaranteed by the Constitution or laws of the United
States, the plaintiff, in order to prevail under Section
1983, must show that the private party was acting un-
der the color of state law. The reason for this is fun-
damental. The fourteenth amendment, which prohibits
the states from denying federal constitutional rights
and which guarantees due process, applies to the acts
of the state, not to acts of private persons or entities.
Shelley v. Kraemer, 334 U.S. 1, 13 (1948) ; Civil Rights
Cases, 109 U.S. 3, 11 (1883). And Section 1983, which
was enacted pursuant to the authority of Congress to
enforce the fourteenth amendment, prohibits interfer-
ence with federal rights by persons acting under color
of state law. Conduct that constitutes “state action”
for fourteenth amendment due process purposes is also
action “under color of state law” for purposes of Sec-
on the receipt of federal funding. For a general review of the
purposes of this Act, and the meaning of the term “free ap-
propriate public education,” see generally Hendrick Hudson
Dist. Bd. of Educ. v. Rowley —.... US. ...... (1982); Hyatt, Liti-
gating the Rights of Handicapped Children to an Appropriate
Education: Procedures and Remedies, 29 U.C.L.A. L. Rev. 1
(1981); Note, Enforcing the Right to an “Appropriate” Edu-
cation: The Education for All Handicapped Children Act of
1975, 92 Harv. L. Rev. 1103 (1979).
Section 504 of the Rehabilitation Act of 1973 provides, in
pertinent part, that “[n]o otherwise qualified individual .. .
shall, solely by reason of his handicap, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Fed-
eral financial assistance.” 29 U.S.C. § 794 (Supp. III 1979).
For a general review of this Act, see Southeastern Community
College v. Davis, 442 U.S. 397 (1979); Pushkin v. Regents of
the University of Colorado, 658 F.2d 1327 (10th Cir. 1981).
16a
tion 1983 civil rights suits. Lugar v. Edmondson Oil
+ es USS. ...... (1982) ; United States v. Price, 383
U.S. 7878, 794 n.7 (1966). The United States Supreme
Court has stated that the ultimate issue in determining
whether a person is subject to suit under Section 1983
is whether the alleged infringement of federal rights
is fairly attributable to the state. Rendell-Baker v.
Kohn, .....- US. ...... (1982).
In our view, the district court’s finding that the de-
fendants, owners and operators of the Provo Canyon
School, were acting under color of state law finds sup-
port in the record and is in accord with applicable law.
In the instant case, the state has so insinuated itself
with the Provo Canyon School as to be considered a
joint participant in the offending actions. See Burton v.
Wilmington Parking Authority, 365 U.S. 715 (1961)
Browns v. Mitchell, 409 F.2d 593, 595 (10th Cir. 1969).
Many of the members of the class were placed at the
school involuntarily by juvenile courts and other state
agencies acting alone or with the consent of the par-
ents. Detailed contracts were drawn up by the school
administrators and agreed to by the many local school
districts that placed boys at the school. There was sig-
nificant state funding of tuition and, in fact, the school
itself promoted the availability of public school fund-
ing in its promotional pamphlet. There was extensive
state regulation of the educational program at the
school. These facts demonstrate that there was a suf-
ficiently close nexus between the states sending boys
to the school and the conduct of the school authorities
so as to support a claim under Section 1983.
In the district court, defendants relied heavily on
Rendell-Baker v. Kohn, 641 F.2d 14 (1st Cir. 1981).
The defendant school involved in Rendell-Baker was
17a
indeed quite similar in its operation to the Provo Can-
yon School. The parties claiming a Section 1983 viola-
tion in that case were employees discharged from the
school. The holding of the First Circuit in Rendell-
Baker was that in discharging the plaintiffs the school
officials had not acted under the color of state law. In
so ruling, the First Circuit did comment, however, that
students in the school there involved “would have a
stronger argument than do plaintiffs that the school’s
action toward them is taken ‘under color of’ state law,
since the school derives its authority over them from
the state.” 641 F.2d at 26 (emphasis in original).
On review, the Supreme Court affirmed the First
Circuit’s decision. Rendell-Baker v. Kohn, ...... ip Se
1982. The Supreme Court phrased the issue there to
be resolved as “whether a private school, whose income
is derived primarily from public sources and which is
regulated by public authorities, acted under the color
of state law when it discharged certain employees.”
Id. (emphasis added). As indicated, the Supreme Court
held that state funding and regulation was not suffi-
cient to support a finding of state action in the dis-
charge by the private school of employees of the school.
The Court recognized that “in contrast to the extensive
regulation of the school generally, the various regu-
lators showed relatively little interest in the school’s
personnel matters.” Jd. To us, Rendell-Baker differs
from the present case in at least one important respect.
The plaintiffs in the present case are not employees,
but students, some of whom have been involuntarily
placed in the school by state officials who were aware
of, and approved of, certain of the practices which the
district court has now enjoined. Rendell-Baker does not
control the Section 1983 issue before us.
18a
The Enjoined Practices
As indicated, the district court entered a permanent
injunction which enjoined the defendants from their
use of the polygraph, monitoring and censoring of mail,
use of isolation rooms, and use of excessive physical
force. In this regard, the district court found that the
defendant’s actions violated the first and fourteenth
amendment rights of the plaintiffs.
The trial of this case was a protracted one, lasting
some four weeks. The district court heard testimony
from numerous educational experts, present and for-
mer students in the school, present and former em-
ployees of the school, and from the defendents them-
selves. Needless to say, the testimony of these witnesses
was in conflict to some appreciable degree. The plain-
tiffs’ witnesses tended to paint a picture of undue pun-
ishment, if not outright brutality, in no wise related
to the school’s educational program. The defendants’
witnesses, on the contrary, indicated that the school’s
disciplinary practices were a necessary adjunct to its
educational program, and that the use of force or co-
ercion was limited to those extreme cases where a
student was “out of control” and posed a threat to him-
self or others. It was on this sort of a record that the
district court permanently enjoined four disciplinary
practices. At the same time, the district court refused
to enjoin nine other practices which the plaintiffs also
sought to enjoin.
As noted, the district court did enjoin the defend-
ants’ use of the polygraph. Specifically, the district
court made the following findings concerning the de-
fendants’ use of the polygraph:
19a
As to the polygraph, the court has difficulty
envisioning a set of facts that would justify the
use of the polygraph on juveniles, either in the
name of “therapy” or for security That set of
facts certainly did not exist at Provo Canyon
School. Although there was some evidence offered
in support of justification, and some evidence of
“voluntary” use of the polygraph by boys, this de-
vice is inherently coercive and represents the inost
serious intrusion into the very thought processes
of an individual. It was certainly used in a co-
ercive manner at the Provo Canyon School. Re-
fusal to take the polygraph resulted in punishment
hours that boys had to sit or stand off and meant
that the boy could not advance within the school
program and could not leave the school. Boys were
subject to punishment not only for what the poly-
graph revealed that they had done, but also for
what the polygraph showed they had thought
about doing. Until this court’s Preliminary In-
junction, all boys at the school were subject to the
same polygraph policies, even those [boys] placed
exclusively for special education and those [boys]
with no record of juvenile offenses.
The school also used the polygraph to prevent
the flow of any negative information about the
school. Boys entered into agreements and even for-
mal contracts with the school to obey the rules
and avoid “negative thinking,” which included
saying bad things about the school. The polygraph
was used to test performance of these agreements
or contracts. Boys even had to agree that after
they left they would not say bad things about the
school, and boys knew that any intention to vio-
late that agreement would be revealed by the poly-
graph, and would prevent or delay their depar-
ture.
20a
As concerns the defendants’ monitoring of the stu-
dents’ mail, which the district court enjoined, the dis-
trict court found as follows:
These policies were another vehicle for prevent-
ing any criticism of the school. All outgoing mail
was read and boys were forced to “rewrite” let-
ters containing things perceived as “untrue” by
therapists, or containing “negative thinking” such
as criticism of the school. Therapists even wrote
comments such as “manipulative” in the margins
of letters that boys were allowed to send. Boys
knew that their outgoing mail was being read,
which chilled the content of their letters even be-
fore they were written. One wonders why an in-
stitution that seems to be as proud of its programs
as the Provo Canyon School would go to such great
lengths to avoid critical comment.
As indicated, the Provo Canyon School maintained
and used so-called “isolation rooms,” also referred to
as “prescription rooms,” or “quiet rooms,” or “time-
out rooms.” These rooms were approximately 4’ x 8’
x 9’, were carpeted, contained no furniture, and had
one small window in the door. Individual students were
placed in these rooms as punishment for the violation
of school rules or when the boys were believed to be
emotionally or physically out of control. Boys placed
in the isolation rooms were checked periodically by
school authorities. As of the time this suit was com-
menced, the boys were not kept in the isolation room
for more than 24 hours.
In regard to the use of physical force at Provo Can-
yon School, the evidence was conflicting, with the de-
fendants’ witnesses testifying, in effect, that the de-
gree of force used was necessary and reasonable, and
with the plaintiffs’ witnesses testifying, in effect, that
2la
unreasonable force frequently was used on the stu-
dents. Brief mention should be made of the defendants’
use of a practice nick-named the “hair dance.” The
Provo Canyon School Manual suggested that in deal-
ing with a belligerent student, a school employee should
grab one of the student’s arms and clutch the boy’s
hair with his other hand. Such grabbing and pulling
of the hair was believed to be the least harmful and,
at the same time, the most effective way of bringing
a student under control. In connection with the use of
force at the Provo Canyon School, the district court
found as follows:
{A]lthough written school policies forbade ex-
cessive or inappropriate use [of force], actual prac-
tices varied from written policies, and excessive
and inappropriate use of isolation and physical
force took place. The “hair dance,” designed as
a means of controlling physically violent juveniles
without causing them undue physical harm, was
used in response to conduct other than physical
violence or physical resistance, was used as pun-
ishment rather than simply for immediate con-
trol, was used as a threat, and on occasion resulted
in the very physical injuries it was supposed to
prevent.
[T]he use of the term “out of control’ as a jus-
tification for the basically uncontrolled discretion
in subjecting juveniles to the P-Room and hair
dance permitted unreasonably harsh school re-
sponses to the conduct of disturbed boys.
It was the defendants’ position in the district court,
as it is on appeal, that the practices enjoined by the
district court are reasonably related to considerations
of administration and security and are rationally di-
rected toward the realization of legitimate and impor-
22a
tant objectives of education, therapy, and social reha-
bilitation. In this regard, the defendants accept the
basic constitutional standards enunciated in Bell v.
Wolfish, 441 U.S. 520 (1979), and assert that, under
Bell, institutional restrictions which actually do in-
fringe on specific constitutional guarantees still must
be evaluated in the light of the legitimate objectives
of the institution, and that a court should adopt a
“reasonable relationship” test to effect the necessary
balancing.
A person involuntarily confined by the state to an
institution retains liberty interests that are protected
by the due process clause of the fourteenth amend-
ment. Bell v. Wolfish, 441 U.S. 520 (1979). Such per-
son has the right to reasonably safe conditions of con-
finement, the right to be free from unreasonable bod-
ily restraints, and the right to such minimally adequate
training as reasonably may be requived by these inter-
ests. Youngberg v. Romeo, ...... USS. ...... (1982). Such
person also has the right to be free from censorship
of correspundence, because first amendment rights do
not terminate upon institutionalization. Procunier v.
Martinez, 416 U.S. 396 (1974). And such person has
the right to the privacy of his own thoughts, which
cannot be probed by use of polygraph examinations.”
” The eighth amendment’s proscription against “cruel and
unusual punishment” does not apply in a situation, such as
we have in the instant case, where the involuntarily confined
person has not been adjudicated sruilty of any crime. Bell v.
Wolfish, 441 U.S. 520, 535 n.16 (1979); Ingraham v. Wright
430 U.S. 651 (1977). Any institutional rules that amount to
punishment of those involuntarily confined prior to an adjudi-
cation of guilt of criminal wrongdoing are violative of the
due process clause per se. The district court below properly
23a
In assessing institutional restrictions, courts must
take into account both the liberty interests of the in-
dividual and the legitimate needs of the institution for
order and security. The district court below properly
undertook a balancing process to determine whether
the challenged disciplinary practices were so onerous
as to overcome the legitimate administrative and se-
curity interests of the school. We are in accord with the
district court’s findings and conclusions on this mat-
ter because such are amply supported by the record.
Furthermore, we believe that the district court’s con-
clusions of law are in accord with the applicable cases.
See Procunier v. Martinez, 416 U.S. 396 (1974) ; in-
validating mail censorship by prison officials; Lavine
v. Wright, 423 F. Supp. 357, 366 (D. Utah 1976) (up-
holding use of polygraph by prison officials for limited
purpose only) ; Pena v. New York State Div. for Youth,
416 F. Supp. 203 (S.D.N.Y 1976) (use of isolation
room for punishment unconstitutional) ; and Nelson v.
Heyne, 491 F.2d 352 (7th Cir. 1974) (use of undue
physical force invalidated).
Parental Consent
As above indicated, in many instances a parent not
only consented to the placement of a son in the Provo
Canyon School, but also knew in advance of the very
disciplinary practices enjoined by the district court.
On appeal, the defendants argued that the district
court failed to give “proper deference” to such par-
ental consent. In this connection, it is not defendants’
position that parental consent permits the defendants
rejected the plaintiffs’ claim that the Provo Canyon School
had violated rights guaranteed by the eighth amendment.
24a
to violate students’ constitutional rights. Rather, the
defendants’ position on this particular matter is that,
in determining whether the enjoined practices bore a
reasonable and rational relationship to the legitimate
objectives of the Provo Canyon School, the district
court failed to take into consideration, or give proper
weight to, the fact that some parents consented to the
enjoined “behavior modification” practices. We are not
persuaded by this argument.
Children, as well as adults, have substantial liberty
interests that are protected from state action by the
fourteenth amendment. See Addington v. Texas, 441
U.S. 418, 425 (1979); In re Gault, 387 U.S. 1, 27
(1967). These liberty interests include the right not
to be confined unnecessarily for medical treatment.
Parham v, J.R., 442 U.S. 584, 600 (1979). Concomit-
ant with this right is the right to be free of unnecessary
restrictions of other fundamental rights once confined
to a state institution. The district court below recog-
nized that the boys placed at the Provo Canyon School
retained certain fundamental rights that could be cur-
tailed only if necessary to maintain order and security
at the school. As indicated, the trial court, after bal-
ancing the various interests, and noting, incidentally,
that some parents who had placed their boys in the
school had knowledge of the school’s disciplinary prac-
tices, concluded that the four enjoined practices were
not necessary and that they unduly burdened the boys’
constitutional rights. While judgments of a parent are
to be considered by the court in determining the “ne-
cessity” of burdens placed upon children’s fundamen-
tal rights, a parent cannot authorize the state to limit
a child’s liberty without showing good cause therefor.
Cf. Bellotti v. Baird, 443 U.S. 622, 633-89 (1979);
25a
Planned Parenthood of Central Missouri v. Danforth,
428 U.S. 52, 72-75 (1976). The district court’s bal-
ancing process comported with proper constitutional
procedure. We are in accord with its conclusion that
the fact that some parents approved of the enjoined
practices does not compel a finding that the practices
were necessary.
Altorney’s Fees
The district court awarded to the plaintiffs attor-
neys’ fees in the amount of $133,546.54 under 42 U.S.C.
§ 1988 (1976). On appeal, the defendants argue that
if this Court should vacate the permanent injunction,
then the plaintiffs would not be a “prevailing party,”
and, in such circumstances, the award of attorneys’
fees should also be vacated. We agree. However, we
are not reversing the district court in the present pro-
ceeding, but rather affirming.
The Honorable Bruce S. Jenkins, a United States
District Judge for the District of Utah, presided over
the trial of this case and later, in a separate hearing,
awarded attorneys’ fees. Prior to the hearing on attor-
neys’ fees, the defendants sought to have Judge Jen-
kins disqualify himself from setting the fee. The basis
for this challenge was that, in 1965, long prior to his
appointment as a federal district court judge, Judge
Jenkins served as a member of the advisory council
for the local chapter of the American Civil Liberties
Union. Defense counsel argued that the American Civil
Liberties Union represented Milonas and Rice in the
present proceeding and that, in fact, it was the real
party in interest. Judge Jenkins, who had handled
pretrial matters and the lengthy trial, declined to dis-
qualify himself in connection with the setting of attor-
neys’ fees. We find no error. Indeed, the ground for
26a
disqualification, i.e., some minor connection with the
ACLU fifteen years ago, is most tenuous on its face.
Defense counsel also suggests that the award of at-
torneys’ fees against the defendant Dr. D. Eugene
Thorne was not justified. We disagree. At the time of
the entry of the permanent injunction, Dr. Thorne,
along with Jack L. Williams and Robert H. Crist, was
a co-owner and co-operator of the Provo Canyon School.
Although Williams and Crist had been associated with
the school from its inception, Dr. Thorne became asso-
ciated with the school shortly after the commencement
of the present action, initially as paid consultant, and
later as executive director and part owner of the school.
And, as indicated, he was serving as the executive di-
rector and part owner of the school when the perman-
ent injunction was entered. We find no error in includ-
ing Dr. Thorne as one of the defendants against whom
the award of attorneys’ fees was entered.
The Consent Decrees
The three co-owners of the Provo Canyon School
were not the only defendants named in the complaint.
Also named as parties defendant were the Utah Board
of Education and Walter D. Talbot, Superintendent of
Public Instruction for the State of Utah. A consent
decree was entered as to the Utah Board of Education
and Talbot. This consent decree related to the regula-
tion and monitoring by these particular defendants of
special educational services for handicapped children
in “private” institutions in the State of Utah, which
institutions were receiving monies from the State of
Utah, such monies, in turn, having been received from
the federal government under the provisions of the
Education for All Handicapped Children Act. In this
connection, see also note 3, supra.
27a
Another defendant named in the complaint was John
F. McNamara, the Administrator of the Interstate
Compact on Juveniles for the State of Utah. Juvenile
courts in states outside of Utah placed boys at the
Provo Canyon facility. There was some dispute as to
whether these placements were, strictly speaking, made
under the interstate compact, or made directly by the
placing state with the school. In any event, McNamara
did make monthly visits to these out-of-state students
and forwarded reports to the sending states concern-
ing the students’ health and general welfare.
The plaintiffs and McNamara also entered into a
consent decree in which McNamara agreed: (1) not
to approve any future out-of-state placements in Provo
Canyon School or any other private juvenile educa-
tional facility in Utah unless such facility was ap-
proved by the Utah Division of Family Services; (2)
to request, after thirty days, out-of-state sending offi-
cials to remove their placements from unapproved
Utah facilities; and (3) to notify out-of-state Inter-
state Compact Administrators of the terms of the con-
sent decree. As a part of the present appeal, the co-
owners of the Provo Canyon School seek to have set
aside and vacated this consent decree entered against
McNamara.
The general rule is that a nonsettling party has no
standing to appeal a consent decree which does not
bind him and interferes with no legal relationship be-
tween the nonsettling party and the settling parties,
even though the nonsettling party may have sustained
some economic loss as a result of the consent decree.
Utility Contractors Ass’n of New Jersey, Inc. v. Toops,
507 F. 2d 883 (3rd Cir. 1974). We see no reason to
depart from that general rule in the instant case.
28a
Further, in our view, the consent decree itself appears
to be a reasonable one, and, contrary to the contention
of counsel, does not impose unlawful conditoins.
Judgment affirmed.
29a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRiCT OF UTAH
CENTRAL DIVISION
Civil No. C 78-0352
TIMOTHY MILONAS, JR., and KENNETH Rick, by and
through their Attorney and Guardian Ad Litem,
KATHRYN COLLARD, on behalf of themselves and all
other similarly situated, PLAINTIFFS,
v8.
JACK L. WILLIAMS, individually and as Owner and
Boys Program Director, Provo Canyon School, Ro-
BERT H. Crist, individually and as Owner and Med-
ical Director, Provo Canyon School, D. EUGENE
THORNE, individually and as Executive Director,
Provo Canyon School, JoHN F. MCNAMARA, indi-
vidually and as Administrative Director of the In-
terstate Compact on Juveniles for the State of Utah,
and WALTER D. TALBOT, individually and as Super-
intendent of Public Instruction, Utah State Board
of Education, and their officers, agent, employees
and assigns, DEFENDANTS.
JUDGMENT
This matter having been submitted; and the court
having previously entered Consent Decrees and Judg-
ments with regard to the defendants John F. McNa-
mara, Administrator of the Interstate Compact on
80a
Juveniles, and Walter D. Talbot, Superintendent of
Public Instruction for the State of Utah and the Utah
State Board of Education, and having heretofore made
and entered its Findings of Fact and Conclusions of
Law with respect to plaintiffs’ claims for declaratory
and injunctive relief against the defendants Williams,
Crist and Thorne, and being otherwise fully advised
in the premises, the court hereby
ORDERS, ADJUDGES AND DECREES:
1. That defendants Williams, Crist and Thorne are
subject to the requirements of Public Law 94-142, Sec-
tion 504 of the Rehabilitation Act of 1973, and the reg-
ulations of the Utah State Board of Education, in pro-
viding special education and related services to juve-
niles at the Provo Canyon School who are funded by
publie special education funds or who are placed by
school districts.
2. That defendants Williams, Crist and Thorne act
under color of state law and are therefore subject to
the requirements of the Constitution in confining juve-
niles at the Provo Canyon School for treatment or re-
habilitation in conjunction with education. As to juve-
niles placed by juvenile courts or probation agencies
outside the State of Utah, these defendants are also
subject to the duly promulgated regulations of the Ad-
ministrator of the Interstate Compact on Juveniles for
Utah.
8. That the following policies and practices of the
defendants Williams, Crist and Thorne have violated
federally protected statutory rights to receive special
education and related services in the least restrictive
environment, and the following constitutional rights:
Freedom of speech; Due Process, including the right
3la
to receive therapeutic treatment in an appropriate set-
ing; the right to legal counsel; and the right to pri-
vacy.
4. That the defendants Williams, Crist and Thorne
are hereby permanently restrained and enjoined from
subjecting members of the plaintiff class or causing
them to be subjected to the following listed policies,
practices, treatments or conditions of confinements:
(a) Opening, reading, monitoring or refusing to
mail any correspondence from members of the plain-
tiff class to parents, friends, attorneys or other per-
sons, or in any manner restricting the manner or mode
of such communications or the number or type of per-
sons with whom such juveniles may wish to correspond.
(b) Reading, monitoring or refusing to deliver
any correspondence mailed by any person outside the
Provo Canyon School to any member of the plaintiff
class in the Provo Canyon School with the following
exceptions. Defendants shall only be permitted to open
such correspondence to determine if contraband items
are included therein, and to remove such items, if pres-
ent. In addition, where parents have previously indi-
cated that certain, named individuals outside the Provo
Canyon School are not to be permitted to correspond
with members of the plaintiff class inside the institu-
tion, the school owners may return correspondence
from such designated persons to them unopened. How-
ever, in no case shall correspondence being sent by
members of the plaintiff class to persons outside the
institution be opened nor shall defendants refuse to
mail such correspodence.
(c) Administration of polygraph examinations to
members of the plaintiff class for any purpose what-
soever
32a
(d) The placement of juveniles in the “P room”
or isolation facilities for any reason other than to con-
tain a juvenile who is physically violent and danger-
ous to himself or others, and only for that period of
time during which a juvenile remains physically vio-
lent and a danger to himself or others.
(e) Use of physical force for any purpose other
than: 1) to restrain a juvenile who is physically violent
and an immediate danger to himself or others, or 2)
to overcome physical resistance, passive or otherwise,
to institutional rules, and such force shall be restricted
to the least amount reasonably necessary to bring a
juvenile under physical restraint or to overcome phys-
ical resistance in such circumstances.
5. That the plaintiff class consists of all juveniles
residing at the Provo Canyon School, now or in the
future.
6. That the remaining practices and policies of the
defendants Williams, Crist and Thorne, as these poli-
cies and practices presently exist, do not constitute
violations of any constitutional rights. Pursuant to the
responsibilities of Superintendent Talbot and the State
Board of Education under the Consent Decree, the
court makes no judgment as to whether remaining
practices and policies of the defendants Williams, Crist
and Thorne violate State or Federal special education
requirements.
7. Defendants Williams, Crist and Thorne are or-
dered to comply with the duly promulgated orders and
regulations of the defendant Utah State Board of Edu-
cation regarding special education, and are perman-
ently enjoined from receiving State or Federal funds
earmarked for special education unless the Provo Can-
33a
yon Schoo! is in full compliance with the rules and
orders of the Utah State Board of Education and the
requirements of the State and Federal special educa-
tion laws.
8. That this Judgement supersedes the Preliminary
Injunction previously entered herein.
9. That plaintiffs are the prevailing parties as far
as the class action for declaratory and injunctive relief
is concerned and are therefore awarded a reasonable
attorneys fee and costs under 42 U.S.C. § 1988, in an
amount to be determined.
DATED this 25 day of August, 1980.
BY THE COURT:
Bruce S. JENKINS
United States District Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
Civil No. C 78-0352
TIMOTHY MILONAS, JR., and KENNETH RICE, by and
through their attorney and Guardian Ad Litem
Kathryn Collard, on behalf of themselves and all
others similarly situated, PLAINTIFFS,
v8.
JACK L. WILLIAMS, individually and as Owner and
34a
Boys Program Director, Provo Canyon School, Ro-
BERT H. Crist, individually and as Owner and Medi-
cal Director, Provo Canyon School, D. EUGENE
THORNE, individually and as Executive Director,
Provo Canyon School, JoHN F. MCNAMARA, indi-
vidually and as Administrative Director of the In-
terstate Compact on Juveniles for the State of Utah,
and WALTER D. TALBOT, individually and as Super-
intendent of Public Instruction, Utah State Board
of Education, and UTAH STATE BOARD OF EDUCA-
TION, and their officers, agents, employees and as-
signs, DEFENDANTS.
MEMORANDUM OPINION,
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
This case began as four separate but related actions.
They are: (1) A 1983 action for damages by plaintiff
Milonas; (2) A 1983 action for damages by plaintiff
Rice; (3) An action for damages by Plaintiff Class;
(4) An action for declaratory and injunctive relief by
Plaintiff Class.
As the matter progressed, the class action for dam-
ages was dismissed without prejudice by the court.
Plaintiffs had not complied with Rule 23 (c) (2), Feder-
al Rules of Civil Procedure. A number of individuals
had sought to intervene as parties plaintiff and defend-
ants had objected thereto even though defendants had
prior thereto suggested that class action for damages
was not appropriate because the numbers involved were
not overly large. The court denied the petition to inter-
35a
vene, and subsequently denied a motion to consolidate
when the “petitioners to intervene” subsequently filed
a case seeking damages on an individual basis and
sought to consolidate. That case currently awaits trial.
The court on the 21st day of February, 1979 after
four days of hearings granted a motion for a prelim-
inary injunction and enjoined certain practices of the
defendants Thorne, Crist and Williams, the owners and
operators of the Provo Cayon School.
What remained for trial on the merits were the two
individual damage actions, the class action seeking
declaratory relief and permanent injunctive relief
against Williams, Crist and Thorne and the class action
seeking declaratory relief and injunctive relief against
defendants Talbot, the Utah State Board of Education
and McNamara, the Interstate Compact Administra-
tor.
Plaintiffs claimed that Williams, Crist and Thorne,
owners of the Provo Canyon School, violated their indi-
vidual civil rights, violated the civil rights of the class
members and violated the rights of certain class mem-
bers to a “special education”’.
Plaintiffs further claimed that defendants Talbot
and McNamara, Utah State public officials, and the
State Board of Education had defaulted in carrying
out their public responsibilities in overseeing the activi-
ties of the Provo Canyon School and asked that each be
ordered to do his law mandated duty.
The Provo Canyon School is not just a place for the
instruction of secondary school students under 18 years
of age. It is not a school in the traditional, ordinary or
classic sense. It does offer classes on a secondary level
to its resident population, and in most instances does
36a
a good job in its formal teaching. Provo Canyon School
is also a correctional and detention facility. Students
are restricted to the grounds. Students are confined.
Some students are locked in and locked up with vary-
ing degrees of personal liberty restored as each pro-
gresses through the institutional program. If a student
leaves wihout permission, he is hunted down, taken
into custody and returned.
Provo Canyon School is also a mental health facility.
Adolescent males perceived to have mental health or
emotional difficulties or who are chemically depen-
dent persons, are counseled and treated. Adolescent
males with forms of learning disability, physical, men-
tal or emotional, are housed, counseled and “taught’’.
The student population, intermixed and various, is
subjected to a form of “behavior modification” de-
scribed by those who run the school as eclectic. Some of
its salient features are isolation from the outside
world, little or no communication with the outside
world, physical confinement, physical punishment, pro-
gressive restoration of liberty, investigation and evalu-
ation of student “attitude” and “truthfulness” and
“future conduct” through the use of a machine, and
counseling.
While some of the adolescent males are at the school
by virtue of placement there by a Juvenile Court after
a brush with the law, most of those confined in the
institution have never had an independent determina-
tion by a disinterested party that they should be con-
fined. The population of the Provo Canyon Schoool
is a mix which changes in character from time to time.
Some attend and are confined as a result of parental
agreement. Some attend ana are confined as a result
37a
of an arrangement with a school district. Some attend
and are confined as a result of a court. mandate. Some
attend to avoid state reform school confinement.
Provo Canyon School is also a major business enter-
prise. A charge of $1,600. per month, per student is
made. In 1979, gross revenue totaled $1,857,796.67.
Direct or indirect benefits to defendants Williams and
Crist for 1978 were in excess of $167,000 each. To a
substantial degree the funding for the enterprise to
carry out its educational, detention and “therapeutic”
activities came from public sources.
Regardless of origin, condition or motivation, once
arrived, each person during the beginning phases of
the school program was locked in, isolated from the
outside world, and whether anti-social, crippled or
learning disabled, was subject to mandated physical
standing day after day after day to promote “right
thinking” and “social conformity”. Mail was censored.
Visitors were discouraged. Disparaging remarks con-
cerning the institution were prohibited and punished.
To “graduate” from confinement to a more liberated
phase, one had to “pass” a lie detector test relating to
“attitude”, “truthfulness” and “future conduct”. Some
failed to pass and remained in confinement for ex-
tended periods of time.
This lawsuit was started by two boys who ran away.
They contacted a lawyer and sought the protection of
this court. The Chief Judge of this court, upon the
agreement of the school, placed the two boys with the
Utah State Division of Family Services.
Rice was placed in the Provo Canyon School through
the action of the Juvenile Court of the State of Alaska,
and was at the school for 7 weeks. Milonas attended
38a
the school as a condition of probation through action
of a Juvenile Court of the State of Nevada and was at
the school for 3 weeks.
After intensive, stubborn and sometimes acrimon-
ious preparation by the parties lasting in excess of one
year, the matter went to trial in each of its three re-
maining phases on March 24, 1980. The trial lasted
4 weeks.
The issues relating to individual damage claims
were tried to a jury.
Concurrently therewith, the issues relating to the
class action on whether or not declaratory relief and
permanent injunctive relief should be granted to the
class were tried to the court.
The jury found no cause of action on the individual
damage claims.
During the early stages of the trial to the court,
the Utah State Superintendent of Public Instruction,
Walter Talbot, and the State Board of Education, hav-
ing carefully examined their duties under Federal sta-
tutory law and Federal regulations, entered into a
Consent Decree with Plaintiff Class. The court, pur-
suant to such agreement, approved and entered such
decree. At about the same stage in the trial to the court,
John McNamara, the Interstate Compact Administra-
tor, who oversees the placement of juveniles from sister
states in programs in this state, having examined his
legal duties carefully, entered into a Consent Decree
with the Plaintiff Class. Pursuant to such agreement,
the court approved and entered such decree.
39a
At the time the court had entered its preliminary
injunction against Williams, Crist and Thorne, it had
expressed its amazement of the absence of interest on
the part of the State of Utah in the student popula-
tion confined and detained at the Provo institution.
Indeed the court had dismissed out the Superinten-
dent of Public Instruction based on representations
made at that time. As the matter progressed, facts
developed which justified the rejoinder of the Super-
intendent and resulted further in the Consent Decree
heretofor entered.
On May 5, 1980 the court orally issued Findings of
Fact, Conclusions of Law and a Permanent Injunc-
tion in open court. All parties had repeatedly stated
throughout the course of this litigation that what was
needed from the court was a prompt and dispositive
determination of the issues. Thus it was with these
considerations in mind that the court after careful con-
sideration of the facts and the law, felt the need to
give a prompt and dispositive ruling from the bench
on May 5, realizing that the press of time and the bulk
and complexity of the litigation would require final,
written Findings, Conclusions and Judgment, as well
as this Opinion, all to come after the oral ruling.
The balance of this Opinion will add to the proced-
ural and factual context provided above, will discuss
certain post-trial motions filed by the parties and ruled
upon at the May 5 hearing, will tie up some loose ends
created during the litigation, will discuss the knotty
jurisdiction and class action issues raised in this case,
and will explain the court’s view of the case on the
merits.
At the time of the Preliminary Injunction hearing
in this case, one thing that greatly concerned the court
40a
was that no state or federal agency exercised general
regulatory authority over the school despite the fact
that the school was receiving significant amounts of
funding to house, treat and educate boys, and despite
the fact that the school had almost total control over
the lives of the boys during the time that they were
confined at the school. The normal program at the
school anticipated that a boy would reside there at
least for one year, and some boys spent almost all of
their high school years at the school.
Plaintiffs initially named as defendants John F.
McNamara, who is the Administrator of the Inter-
state Compact on Juveniles of the State of Utah, Wal-
ter D. Talbot, who is the Utah State Superintendent
of Public Instruction, and the Utah State Board of
Education. Plaintiffs alleged that these defendants had
the duty to regulate the school and to monitor the
school’s conduct in relation to the boys. Prior to the
Preliminary Injunction hearing, the court had dis-
missed claims against defendants Talbot and the State
Board of Education, without prejudice. This was
based on proffers from these defendants that no boys
receiving public special education funds and for whom
the state was responsible were at the school, and that
absent this funding, these defendants had no duty or
authority to regulate the school. Plaintiffs were unable
to effectively rebut these proffers at that time, and
their initial complaint had not pled a coherent theory
of liability as against these two defendants. Claims
against defendants from the Utah Department of So-
cial Services were also dismissed.
Although defendant McNamara moved to dismiss
at the same time as the other state defendants, his
motion was denied. McNamara administers the In-
dla
termountain Compact on Juveniles in Utah, as adopt-
ed in Utah Code Annotated, § 55-12-1 et seq. The Com-
pact provided a means of placing minors, adjudicated
as delinquent in one state, in another state for treat-
ment or rehabilitation. At the time of the hearing
on the Motion to Dismiss there was no question that
the school contained a small number of boys placed
there for treatment by juvenile courts in other states.
However MeNamara’s position at that time was that
these boys had been placed there pursuant to special
contracts that did not fall within the terms of the
Interstate Compact. The court rejected this contention
and basically ruled that all placements at the school
from out of state juvenile courts were covered by the
Compact. At the time of the Preliminary Injunction
hearing, plaintiffs and defendant McNamara reached
a settlement as to a Preliminary Injunction under
which McNamara would permit no future placements
at the school from out-of-state juvenile courts and
would see that boys presently placed at the school by
out-of-state juvenile courts would be removed and un-
less or until the Utah State Division of Family Serv-
ices certified the school as an appropriate placement
facility for Utah juvenile courts, the Compact would
not permit placements there by out-of-state juvenile
courts.
Thus at the time of the Preliminary Injunction hear-
ing, basically the evidence of state action for purposes
of civil rights jurisdiction was receipt of significant
amounts of public funding by the school, either directly
or indirectly, and placement of a very few boys there
by juvenile courts. The court expressed on the record
its view that the evidence at that time as to state action
was “thin”. Nevertheless, discovery was just getting
underway in the case, and there were numerous un-
42a
answered questions concerning the school’s relation-
ship to federal special education laws. Also, there was
evidence of school policies or practices that in the
court’s view clearly violated the civil rights laws, if
state action were proved. These included mail censor-
ship beyond inspection for contraband, compelling boys
to submit to polygraph examinations at regular inter-
vals, excessive use of isolation facilities at the school
and excessive use of physical force.
Because these were the types of practices that threat-
ened imminent and irreparable harm to the boys, and
because there was no substantial evidence that the
school could not continue to function effectively with-
out these practices, the court preliminarily enjoined
these practices based on a “provisional” finding of
state action. The court also “provisionally” certified
a class consisting of all boys residing at the school dur-
ing the litigation, again realizing that there were
unique class certification problems in the case. How-
ever the court could not very well extend protection
to some boys and not to others where discovery had
not yet revealed the source of funding or placement
for most of the boys, and where the only persons avail-
able to speak for the boys were parties or witnesses
who had run away from the school or who had left in
some other fashion.
At the Preliminary Injunction hearing, as well as
at trial, the school defendants claimed that the poly-
graph and the mail censorship were necessary com-
ponents of security and treatment at the school. How-
ever the court believed that the evidence indicated that
these practices were gross overreactions to security
and treatment needs and unreasonable infringements
on basic human and constitutional rights that are pos-
sessed by all — even convicted adult felons. The school
43a
defendants also urged that use of physical force and
isolation were not excessive because they were only
used when students were “out of control’. However
the term “out of control” as used by the school de-
fendants included everything from physical violence
by a boy to a minor infraction of school rules.
Although there was some evidence of actual physi-
cal abuse at the school, offered both during the Pre-
liminary Injunction hearing and at trial, these were
isolated instances where school employees themselves
had lost “control’’. Abusive actions from “out of con-
trol” school employees seemed to be a necessary result
of school policies permitting responses out of propor-
tion to behavior that may have been in violation of
school rules but was basically innocuous. This was
particularly true where the evidence showed that de-
fendant Jack Williams, a director, co-owner and co-
founder of the school, was “out of control” on occasion.
Plaintiffs urged, at the Preliminary Injunction
hearing and throughout the litigation, that virtually
all practices at the school were “anti-therapeutic” and
that the school should be closed. This position was not
supported by the evidence, even at trial. Some boys per-
form successfully at the school, and are probably bet-
ter off for having been there.
On the other hand, for other boys the school is in-
appropriate and the program could and did lead to
tragic results. Although the experts differed about the
appropriateness of the school’s program as a whole,
this is not uncommon. The dispute between the experts
is really a dispute between differing philosophies, none
of which is entitled to special consideration by the
court. There was really no dispute over the fact that
the formal educational component of the school is of
high quality. No matter how desirable the ends of be-
44a
havior control or modification may be, the Constitu-
tion, other federal law, and the fundamental set of
generally shared values of our civilization place limits
on the means used to achieve laudable ends. Lawful
ends demand lawful means. Consistency of ends and
means is a must.
Thus the aim of the court in its preliminary and final
orders in this case has been to preserve the valuable
aspects of the institution and to restrain only those
practices which clearly invade constitutional or fed-
erally protected rights.
As discovery developed after the Preliminary In-
junction hearing, it became apparent that the initial
information possessed by the state concerning the
school’s role and its own role in federal special educa-
tion programs was inaccurate. There were and are sub-
stantial numbers of boys at the school whose tuition
was funded by federal special education programs such
as the Education for All Handicapped Children Act,
20 U.S.C. § 1401 et seq., which is commonly referred
to as Public Law 94-142, and Section 504 of the Re-
habilitation Act of 1973, 29 U.S.C. § 794. Under these
programs a “handicapped” child is basically any child
who is difficult to educate in the mainstream of public
education. Children so defined range from those with
physical impairments, to those who are simply behavior
problems in class, to those who may have a complex
of physical, mental and emotional problems that inter-
fere with their education in a number of ways. How-
ever under federal law, all of these children have the
right to be educated in the public schools, or if there
is no reasonable way for the public schools to perform
their job, to be treated and educated in some other
appropriate setting at public expense. Receipt by the
45a
Provo Canyon School of such “handicapped” children
imposed a set of legal duties on the school, on the plac-
ing public school district, and on educational officials
of the State of Utah. See 45 C.F.R., parts 84 and 121a.
Since it became clear that the Utah State Board of
Education was the “state education agency” respon-
sible under Public Law 94-142 for seeing that special
education funds to be spent in Utah were allocated to
appropriate public or private facilities, and for insur-
ing that facilities in Utah receiving such funds were
in full compliance with federal regulations, plaintiffs
were allowed to bring in the state board and Dr. Tal-
bot as defendants once again. The state’s initial mis-
information concerning “handicapped” children at the
Provo Canyon School and concerning its own respon-
sibility for these children was one indication of the
state’s default in its duty to regulate the school under
federal law.
Even after all of this became clear to the state, the
state’s acceptance of its special education responsibili-
ties regarding the Provo Canyon School was reluctant.
Although prior to trial the State Board of Education
finally sent inspectors to the schooi, they only exam-
ined its classroom component. Of course, the educa-
tional component received high marks, and had also
received high marks from placing school districts that
looked only at the classroom program. This might have
been enough if the facility provided only formal edu-
cation, but it was grossly deficient when dealing with
a residential and detention facility with treatment and
correctional programs like those at the Provo Canyon
School.
Prior to trial, the State Board of Education and Dr.
Talbot filed a Motion for Summary Judgment, as did
most o2 the other parties. One ground for that motion
46a
was that plaintiffs had failed to exhaust administra-
tive remedies under the federal special education laws.
However the court fund that administrative remedies
were inadequate to deal with the class claims present
in this case, and that resort to these remedies would
have been futile. The state’s position was somewhat
incongruous in the face of its initial denial of any
responsibility for the children at the Provo Canyon
School, and in light of the fact that it was not until
the trial of this case that the state agreed to adopt a
regulatory mechanism capable of implementing cer-
tain remedies provided by federal law, and capable of
monitoring compliance by the Provo Canyon School,
and other so-called “private” institutions in the state
receiving special education funds which are burdened
by the duties attached to the receipt and use of such
funds. This agreement was embodied in a settlement
agreement with plaintiff class that included a Consent
Decree basically ordering the state to do what it had
a duty to do all along.
Shortly before the trial of this case some confusion de-
veloped as to what issues would be tried to a jury, what
issues would be tried to the court, and in what order
egal and equitable issues would be tried. Since the time
of the Preliminary Injunction, the court had assumed
and thought the parties had assumed that the “trial”
in this case would be a trial to the court on the ques-
tion of a permanent injunction. The court was aware
that damage claims were being asserted by plaintiffs
individually, but saw those claims as being collateral
to the major thrust of the suit for injunctive relief,
and anticipated that the two individual damage claims
would be tried subsequent to the injunctive claims.
Based on this view of the case, the court had declined
to permit the joinder of boys formerly at the school,
47a
or their parents, who wished to assert additional dam-
age claims against the school defendants. Also, when
these same individuals filed a separate action in this
District to pursue their damage claims (Horton et al.
vs. Williams, et al., C 79-723), the court declined to
consolidate it with the present action, for the same
reason. The cuurt thought that it would be unwieldy
to try multiple damage claims to a jury at the same
time as injunctive claims were being tried to the court.
Nevertheless, the Pretrial Order finally agreed to
by the parties specified that a jury trial would be held
and didn’t distinguish between a trial of legal and
equitable issues. The court frankly overlooked this in
signing the Pretrial Order, but at later hearings on
February 13, 1980 and March 5, 1980, the court called
to the attention of the parties the fact that the Pretrial
Order didn’t accurately reflect the court’s intention
to try the equitable issues first in a court trial and to
try the damage issues to a jury later, with the possi-
bility that indivi .al damage claims of Milonas and
Rice could be consolidated later with the damage action
filed by other boys and their parents in C 79-723.
At the time the court initially announced its inten-
tions, defendants made no serious objection to limit-
ing the trial to equitable issues to be decided by the
court. Defendants later filed a Motion for Jury Trial
on March 11, 1980, relying on cases including Beacon
Theaters v. Westover, 359 U.S. 500 (1959) and Dairy
Queen v. Wood, 369 U.S. 469 (1962) for the proposi-
tion that not only were defendants entitled to a jury
trial on the damage claims, but also defendants were
entitled to this jury determination prior to the court’s
determination of equitable issues in order to avoid for-
feiture of the Seventh Amendment right to a jury trial
by the collateral estoppel effect of a prior court deter-
48a
mination of fact issues common to the legal and equit-
able claims. The court read defendants’ cases and found
that their motion was well taken. The court ruled that
the damage claims would be tried to a jury and that
the equitable claims would be decided by the court in
the same proceeding, after the jury had returned the
verdict. It made sense to bifurcate the trial only if
the bulk of the case, i.e. the injunctive claims, could
be tried first.
After the jury trial had commenced, it appeared that
both plaintiffs and defendants thought that the so-
called “class” damage claims were being tried as well.
Although the Pretrial Order referred to damage claims
by plaintiffs and class claims by plaintiffs, nothing
in the Pretrial Order indicated that the class claims
included claims for damages or that there were any
claims for damages other than those brought by Milo-
nas and Rice as individuals. More importantly, no no-
tice to the class had been proposed by any party, as
required by Federal Rules of Civil Procedure, Rule
23(c) (2). At the earliest practicable time during the
trial, the court ruled that the so-called class damage
claims were beyond the scope of the litigation, in its
existing procedural stance. The court insulated the
jury from evidence not relevant to the two individual
damage claims by accepting testimony relating only to
class injunctive claims out of the presence of the jury.
At the conclusion of the trial on the individual dam-
age claims, the jury’s Special Verdicts answered “no”
to the following questions as to each of the claims by
plaintiffs Milonas and Rice against defendants Wil-
liams and Crist:
‘Was the plaintiff [Timothy Milonas, Jr. or Kenneth
Rice] deprived of any of the Federal Constitutional
49a
rights specified below, as the proximate result of the
knowing acts of defendant [Jack L. Williams or Robert
H. Crist]?
[Six such rights were specified, including “freedom
of religion”, “freedom of speech’’, “due process of law’’,
“legal counsel”, “privacy” and “therapeutic treat-
ment”.]
The damage claims against defendant Thorne had
been dismissed by the court prior to submitting the case
to the jury. Dr. Thorne became Executive Director of
the school after the litigation was commenced and
there was no evidence tying him to school policies and
practices in his previous role as “consultant” to the
school.
The court had also directed a finding as a matter
of law that defendants Williams and Crist had acted
under color of state law with respect to plaintiffs
Milonas and Rice. There was no dispute about the facts
that gave rise to this determination by the court. Rice
had been placed at the school by an Alaskan juvenile
eourt after an adjudication of his delinquency. Al-
though ‘Milonas was placed by his mother, Mrs. Stout,
this placement was a condition of probation imposed
by a Nevada juvenile court. Defendants’ Exhibits 8L
and 8M, admitted into evidence, shed much light on
the relationship between the school and these two juve-
nile courts, as does plaintiffs’ Exhibit 88.
In opposing a court finding of state action as a mat-
ter of law, defendants Williams and Crist relied on
cases indicating that even where state courts or agen-
cies had placed juveniles in private residential or treat-
ment facilities, the “nexus” required for a finding of
state action was absent unless direct state participa-
50a
tion in alleged constitutional violations occurring after
placement was shown. See, Henig v. Odorioso, 385 F.
2d 491 (8d Cir. 1967); Campbell v. Glenwood Hills
Hospital, Inc., 224 F. Supp. 27 (D. Minn. 1963).
With respect to Milonas and Rice, the authority and
duty of the juvenile courts to control the treatment of
each boy did not end with mere placement at the school.
The Alaskan court executed forms consenting to lim-
ited monitoring of Rice’s mail and the use of the poly-
graph on him. The Nevada juvenile judge was listed as
a legal guardian and supervisor of the placement at
the Provo Canyon School, in the Milonas application
for admission to the school. Correspondence contained
in the above-reference exhibits showed that the treat-
ment of both Milonas and Rice after placement at the
school was subject to the direct control of the Nevada
and Alaska juvenile courts, that these courts were
fully aware of policies and practices at the school, and
that these courts had the power to eliminate the sub-
jection of the two boys to any school policy or prac-
tice, or to remove the boys from the school. Thus the
“nexus” missing from the above-cited cases was pres-
ent regarding Milonas and Rice. See, Perez v. Sugar-
man, 499 F.2d 761 (2d Cir. 1974) ; sub nom, Duchesne
v. Sugarman, 566 F. 2d 817 (2d Cir. 1977) and Brooks
v. Richardson, 478 F. Supp. 793 (S.D.N.Y. 1979).
If state action is not present with regards to the
Provo Canyon School’s treatment of Milonas and Rice,
this court cannot envision a situation where any “pri-
vate activity” falls under the civil rights laws, no
matter how direct and pervasive the state involvement
is in the activity complained of. The power of the state
was used to place these two boys in the Provo Canyon
School, to knowingly subject them to school policies and
practices, and to keep them there against their will, to
5la
the same extent as if the courts had placed the boys
in a “public” treatment, correctional or detention fa-
cility. This was perhaps shown most vividly at a hear-
ing in which counsel for Mrs. Stout informed the court
that a bench warrant for the arrest of the Milonas boy
had been issued by the Nevada juvenile court, because
the boy had left the school. At least one or perhaps
both of these boys were subject to the Interstate Com-
pact on Juveniles. Defendant McNamara had not per-
formed his duties with respect to either, and given his
later position regarding placements from out of state
juvenile courts, these boys should not have been placed
in the school at all. The court’s subject matter juris-
diction over the class injunctive claims wil! be dealt
with in more detail below.
After the verdict on the two individual damage
claims, plaintiffs moved for Judgment Notwithstand-
ing the Verdict and the school defendants moved for
Judgment on the Verdict. The school defendants also
moved to dismiss the class injunctive claims based on
the jury’s findings on the individual damage claims,
the court’s dismissal of the class damage claims, the
newly found regulatory authority of the state, and
“voluntary” changes in school policies and practices
since this litigation commenced.
As to the cross-motions on the verdict, the court ruled
that when the evidence is viewed in the light most fav-
orable to defendants, the verdict must stand. Had the
verdict contained a clear finding that practices re-
strained by the Preliminary Injunction did not violate
constitutional rights, the court would have set aside
that finding as being clearly erroneous. However as
the Special Verdict form quoted above shows, the basis
for the verdict of no cause of action could have been
any one of several grounds. For example, there was
52a
evidence that would support a finding that any injury
suffered did not “proximately” result from defendants’
“knowing” policy or practice, that the boys were not
subjected to certain school practices, or that any injury
suffered did not rise to the level of a constitutional
violation in light of the short time the two boys were
at the school.
However it also appears that the jury verdict did
not resolve any fact issues that are common to the
equitable injunctive claims tried to the court. In their
post-trial Motion to Dismiss the injunctive claims, de-
fendants cite cases for the proposition that where the
jury makes findings on fact issues common to both
legal and equitable claims in the same action, the jury’s
findings on the legal claims bind the court’s findings
on the equitable claims. See, Eli Lilly v. Generix Drug
Sales, 460 F. 2d 1096 (5th Cir. 1972) and Jones v.
Schramm, 436 F. 2d 899 (D.C. Cir. 1970). The court
has also done some research in this area, which has
revealed that there are few cases on this precise issue,
and some cases appear to have held contrary to the
cases relied on by defendants. See, Wright v. U. S., 472
F. Supp. 1153 (D. Mont. 1979). Nevertheless the court
generally agress with defendants’ position as to the
proposition. Their problem here, however, is that the
jury’s verdict resolves none of the issues included in
the equitable claims before the court, and was made
on an evidentiary base drastically smaller — indeed
different from the evidentiary base considered by the
court in dealing with the class injunctive claims. For
example, neither Milonas nor Rice were funded or pro-
tected by federal special education laws, as are other
boys within the class. Boys within the class were sub-
jected to school practices other than those to which Mi-
lonas and Rice were subjected. Many boys had been at
58a
the school much longer than Milonas and Rice and as
a result suffered grevious loss of constitutional or
other federal rights. Although some of the above dif-
ferences between the individual damage claims and the
class injunctive claims call into question the status of
Milonas and Rice as class “reyresentatives”, these and
other class certification issues will be discussed more
fully below.
Throughout the trial the court asked all parties to
submit a list of precise fact issues common to the legal
and equitable claims. The parties were unable to do so.
The form of the Special Verdict was primarily with-
in the discretion of the court. See, Midwestern Whole-
sale Drug, Inc. v. Gas Service Co., 442 F. 2d 663 (10th
Cir. 1971). The only objection to the Special Verdict
form was, in the court’s view, untimely, and did not
relate to presentation of common fact issues to the
jury. A form of Verdict any more detailed than the
one given would have been unduly confusing, especially
in light of the detailed Instructions requested by the
parties and given by the court. In sum, the Verdict
found by the jury was irrelevant to the injunctive
claims confronting the court.
The school defendants also argued that the state’s
agreement to regulate special education and juvenile
court placements at the school makes a Permanent In-
junction unnecessary. This ignores the fact that the
state’s agreements specifically called for, among other
things, rules that would conform to the court’s Per-
manent Injunction. Also the school defendants now
appear to contest the newly found regulatory authority
of the state, although previously they indicated such
authority would be “welcome”.
54a
Even though the court found that the practices and
policies permanently enjoined violated both civil rights
and special education laws, the court makes no find-
ing as to whether other school policies and practices
violate special education laws. Instead the court has
ordered the school defendants to comply with rules to
be adopted by the Utah State Board of Education under
its settlement with plaintiffs, and has enjoined the
school from receiving public special education funds
if not in full compliance with the requirements of the
special education laws. This is a unique and specialized
area of the law, requiring the expertise of state edu-
cation officials, which is why the appropriate state
officials, not this court, will carry the burden of insur-
ing future compliance with special education laws by
the Provo Canyon School, as well as by other compar-
able facilities in the state.
The school defendants also argued that “voluntary”
changes in school programs made a Permanent Injunc-
tion unnecessary. Although the court understands and
welcomes the real changes that have occurred at the
school, the abandonment of the polygraph and modi-
fication of mail monitoring came only pursuant to
court order, and the record indicates that these prac-
tices would return in some fashion absent court order.
The court also sees some of the changes as being cos-
metic,
Among the loose ends in this litigation referred to
above include questions regarding the guardian ad
litem status of plaintiffs’ counsel, Kathryn Collard, the
question of possible “indispensable” parties to this liti-
gation, and the question of statute of limitations. Al-
though the court has had occasion to make rulings con-
cerning these questions during the course of this liti-
55a
gation, these are questions that appear to have been
preserved in the Pretrial Order and deserve fuller ex-
position here.
At the time Ms. Collard filed this action and sought
emergency relief from Chief Judge Anderson, she con-
currently filed a motion for her appointment as guard-
ian ad litem for the two named plaintiffs. The record
does not indicate that Judge Anderson took any action
on this motion, and after this case was reassigned to
this judge, the motion was not renewed until quite
late in the litigation. When Judge Anderson ordered
that the named plaintiffs be placed with the State
Division of Family Services, he did so with the agree-
ment of the school defendants, and the record does not
indicate that any objection to Ms. Collard’s appoint-
ment was made at that time. Although from time to
time during the litigation the school defendants and
others have collaterally attacked counsel’s lack of status
as guardian ad litem, no competing motion for appoint-
ment was ever filed.
When counsel’s motion for appointment was renewed
late in the litigation, defendants objected on the
grounds that Utah Rules of Civil Procedure, Rule
17(c) required that the motion for appointment be
made by the boys themselves because they were over
14 years old, and that counsel had a conflict of interest
because she was serving as a volunteer attorney for the
American Civil Liberties Union. The court did not find
defendants’ objections well-taken and granted the ap-
pointment as to the two named plaintiffs. It appeared
that counsel had in fact acted on behalf of the two boys
as well as herself in seeking the appointment. The fil-
ing and pursuing of this action, as well as the re-
moval of the boys from the school, was pursuant to the
request or desire of the boys themselves, rather than
56a
in conflict with their requests or desires, All of this was
confirmed later by testimony from the two boys at
trial. Although the parents or general guardians might
have been appropriate guardians ad litem in other cir-
cumstances, the real conflict of interest here was be-
tween the boys and their parents or general guardians,
The parents or general guardians had expressly con-
sented to school practices that the boys themselves felt
were illegal, or at least wrong. Ms. Collard was an ap-
propriate guardian ad litem under the circumstances.
During the course of the litigation, the school defen-
dants urged that parents, juvenile court officials, offi-
cials from school districts that had placed boys at the
Provo Canyon School, ete., needed to be joined as indis-
pensable parties under Federal Rules of Civil Proced-
ure, Rule 19. At one point these defendants urged the
court to give notice of this action to all parents. The
court felt that neither of these steps was necessary to
award meaningful relief among the existing parties,
or to avoid prejudice to non-parties. The school’s posi-
tion throughout has been that it stands in loco parentis
to the boys at the school. In denying defendants’ motion
for the court to notify parents, the court indicated
that the school was free to notify parents if it wished,
and the record indicates that the parents were noti-
fied, particularly concerning plaintiffs’ desire to dis-
cover school records on each boy at the school, Certain
parents moved to intervene in this action and for the
most part those motions were granted, Other non-
parties apparently chose not to intervene. The court’s
orders throughout this case have been designed to pro-
tect the interests of parties and non-parties alike. The
court has been able to fashion adequate relief based
on the existing parties to this suit.
57a
The school defendants have urged that the one year
statute of limitations found in Utah Code Annotated
§ 78-12-29 applies to this action. Assuming, without
deciding, that this is true, the practices that the court
has enjoined were continuing at the time this action
was filed, or had occurred within one year prior to
that time and were likely to recur unless enjoined.
These defendants also urged that the one year statute
of limitations bars consideration of events occurring
prior to September of 1977. To the extent that the court
has served as factfinder on the equitable claims, a cer-
tain amount of historical information about the school
has been useful to the court in gaining some perspec-
tive. Also, the use of evidence as to historical practices
at the school really raises evidentiary questions of rele-
vance and probity rather than statute of limitations
issues. To the extent that the court has considered his-
torical evidence, it has considered remoteness in time,
as well as other appropriate factors, in determining
the relevance or probity of such evidence.
In assessing both the subject matter jurisdiction of
the court and the nature of the class to be certified
for purposes of injunctive relief, it is useful to look at
sources of placement and funding for boys at the school.
Plaintiffs’ Exhibits 111 through 150 and defendants’
Exhibits 5L through 5R are helpful here. The school
had an average attendance of approximately 110 boys
in 1979. During 1979, 75 boys received some form of
public funding. (See defendants’ Exhibit 5L.) Of these
75, all but about seven boys received funding for spe-
cial education under Public Law 94-142 from some 44
school districts throughout the country, including 33
school districts in California, three school districts in
Utah, two school districts each in South Dakota and
58a
the state of Washington, and one district each in Idaho,
Minnesota, New York and Wyoming.
Defendants’ Exhibit 5M shows that 77 boys received
public funding in 1978. The average school population
during that year was about 120 boys. Of the 77 pub-
licly funded boys in 1978, more were funded as a
result of juvenile court placements and fewer as a
result of school district special education placements
than in 1979. From 1973 onward, defendants’ Exhibits
5L through 5R show a steady increase in the per cent
of school revenues received from public sources, reach-
ing a high of 33% in 1979.
The evidence discussed above in relation to juvenile
court knowledge of and consent to school policies and
practices regarding Milonas and Rice typifies the state
activity involved in the juvenile court placements gen-
erally. See, plaintiffs’ Exhibit 88. State juvenile court
judges and probation officers knew about and con-
sented to the use of the polygraph, and knew or should
have known that each boy had to “pass” a polygraph
examination before he could advance within the school
program, before he was able to obtain certain rights
or privileges from the school, and before he could
leave the school either temporarily or permanently.
As to mail monitoring, the Alaskan juvenile courts ap-
parently exempted communications to and from attor-
neys, probation officers and others from the general
school policy, although it is not clear whether other
juvenile courts did likewise. Besides Alaska, boys were
placed from juvenile courts in at least the states of
Arizona, California and Indiana.
Much more important than the 20 or so juvenile
court placements are the dozens of school district spe-
cial education placements shown above, and the steady
59a
increase in those placements to a high of 68 in 1979.
These placements create alternative grounds for this
court’s subject matter jurisdiction. These placements
establish “state action” for purposes of civil rights jur-
isdiction under 42 U.S.C. § 1983 and 28 U.S.C. § 1343,
as well as federal question jurisdiction under 28 U.S.C.
§ 1331 for causes of action based upon federal special
education laws themselves, 20 U.S.C. § 1401 et seq. and
29 U.S.C. § 794. A brief review of the applicable fed-
eral regulations and the pertinent evidence shows the
“nexus” between “state action” and the plaintiffs’
causes of action against the Provo Canyon School as
well as the jurisdictional base for claims under the
special education laws.
First of all, the publicly funded special education
placements were nol made by parents; they were made
by school districts. See plaintiffs’ Exhibit 14-0. The
placements were made by written contracts between
the school districts and the Provo Canyon School, and
included reimbursement for “counselling and guid-
ance” at the school. See plaintiffs’ Exhibits 132 and
138. The reason these placements and contracts were
niade by the school districts rather than the parents
is because these school districts were attempting to
perform their federally mandated duty to provide “spe-
cial education” to those children they had been unable
to educate in their regular public school systems. See,
45 C.F.R. Parts 84 and 121a. Although the “public
function” state action analysis is rarely applicable,
this case is one instance where it does apply since it is
clear that the privately owned facilities of the Provo
Canyon School were used by the school districts to meet
their federal duty to give a “free and appropriate pub-
lic education” to handicapped children. See, plaintiffs’
Exhibit 143.
60a
If a public school district elects to perform its duties
through referral to privately owned residential and
detention facilities, such as the Provo Canyon School,
it is responsible for insuring that the private facility
meets all of the requirements applicable to public facili-
ties providing similar services. 45 C.F.R. § § 84.33 (b)
(3) & 121a.2(c). Among the services that must be pro-
vided, and that must be state regulated, are ‘“non-
academic” services including guidance, counselling,
therapy and the like. 45 C.F.R. § § 84.37 and 121a.306.
These services must be provided in the least restrictive
program appropriate for the child and the least re-
strictive appropriate environment within that pro-
gram. 45 C.F.R. § § 121a.550 through 556. In select-
ing the least restrictive alternative, possible harmful
effects to the child from a particular program must be
considered. 45 C.F.R. § 121a.552(d). All details of the
particular program chosen for a child, whether in a
public or private facility, must be reflected in an Indi-
vidual Education Plan (IEP) in which the school dis-
trict or state education agency must participate and
which the state must enforce. 45 C.F.R. § 121a.341.
The state must also participate in any changes in the
IEP. 45 C.F.R. § 121a.347(b). The Provo Canyon
School sent periodic progress reports as required by
law, to placing school districts. See, plaintiffs’ Exhibit
121.
Despite the fact that the Provo Canyon School main-
tains that its polygraph, mail monitoring and isolation
practices are not just for security purposes but are an
integral part of treatment or therapy at the school,
despite the fact that therapy is one of the non-academic
services that must be part of the IEP, and despite the
fact that the school districts are responsible for seeing
that such services are provided in the least restrictive
6la
appropriate environment, the IEP’s for the boys at the
school did not mention these school practices. See, plain-
tiffs’ Exhibit 161. Of course these practices had been
stopped by the Preliminary Injunction when the state
certified the Provo Canyon School as in compliance
with P.L. 84-142 in December, 1979. See, defendants’
Exhibit 5V. The Consent Decree later agreed to by the
Utah State Board of Education effectively repudiates
this certification. Similar certifications from other
states also overlooked school practices that these states
had a duty to control or eliminate.
The federal special education regulations require not
only that individual placements at private schools must
be regulated and monitored by the placing school dis-
trict, but also that the state within which school dis-
trict private placements are made must regulate and
monitor the private programs that provide special edu-
cation and required services such as residential care
and therapy. 45 C.F.R. § 121.600. Also, 45 C.F.R.
Subpart D makes regulations for public school special
education programs also applicable to private schools
that accept school district placements or funding, and
makes the states responsible for enforcement. Tf the
private school programs don’t comply with applicable
state and federal regulations, the school district or
state education agency is faced with the choice of
either bringing about a change in the private program
or withdrawing placements and funding. Similarly, the
Provo Canyon School is faced with a choice of either
bringing its programs into compliance with the spe-
eial education laws or refusing school district place-
ments and funding. However once the school accepts
school district placements and funding, and so long as
it continues to accept them, it is jointly responsible for
the performance of special education duties imposed
62a
on the state by federal law, and jointly liable under
federal law for the breach of those duties.
Because the states, including the State of Utah, and
the Provo Canyon School had not lived up to their joint
responsibilities under federal law, this court was also
faced with a choice between either fashioning modest
injunctive relief to compel both the state and private
participants in t’e federal special education program
to meet these responsibilities, or ordering the removal
from the school of all boys placed or funded by school
districts. This latter alternative would likely cripple
the school financially, and lead to the closure of the
school sought by plaintiffs. This latter alternative is
also the necessary result if the court were to accept
defendants’ argument that the court may not enforce
the federal special education regulations by modify-
ing the practices of the private school program to which
the regulations apply.
The foregoing is but a sample of the evidence of
joint participation by school districts, state education
agencies, juvenile courts and the Provo Canyon School
in the practices complained of by plaintiff. At any
given time since this litigation began, over one half of
the boys at the Provo Canyon School had been confined
there by the authority of state courts or school dis-
tricts, for purposes of therapy and rehabilitation in
conjunction with education. State powers and duties
were delegated to or shared with the Provo Canyon
School, so that regardless of what test is applied, there
can be no doubt that the school acted “under color of
state law” in subjecting these boys to practices that
the school alleges are a part of the therapy and rehabili-
tation programs justifying state placements.
63a
Abuse of state authority by the school, or use of state
authority in a manner not reasonably related to pur-
poses for which that authority was granted or shared
gives this court jurisdiction to remedy such abuse of
state power. This jurisdiction covers both the private
institution that has assumed state powers or duties
and the state entity charged with the supervision of
that private exercise of state powers and duties. If the
Constitution prevents the states from using the poly-
graph, prohibits mail censorship, precludes isolation
and physical force in the manner practiced at the Provo
Canyon School, then it similarly bars the school itself,
where the school is engaging in such practices pursuant
to state powers and duties to treat and rehabilitate
delinquent and handicapped children. This is the Pro-
vo Canyon School’s quid pro quo for the substantial
funding it receives in payment for school district and
juvenile court placements.
“State action” so permeates and is so intertwined
with every aspect of the operation of the program at
the Provo Canyon School, that the school’s program
as a whole operates “under color of state law,” giving
this court jurisdiction to issue orders protecting even
the minority of boys who have not been placed there
by state action. An example of this intertwining of
state and private action is found by looking again at
the federal special education regulations implementing
P.L. 94-142. Although most of these regulations are
tied to school district placements or receipt of public
funding, 45 C.F.R. § § 121a.451 through 460 specific-
ally require the state education agency to offer regu-
lated special education services for handicapped chil-
dren in private schools within the state’s borders, even
where these children are not placed or funded by a
public school district. Thus the federal law establishes
64a
that handicapped children in private facilities have a
state regulated right to some of the benefits of a “free
and appropriate public education,” even absent place-
ment by public school districts or application by par-
ents for the “free” public funding.
This is especially noteworthy in light of evidence
that there are substantial numbers of children at the
Provo Canyon School who are “handicapped” within
the meaning of P.L. 94-142 but were not placed or
funded by any school district or state agency. For
example, in 1978 only 50-60 boys at the school had been
placed by school districts, yet the Provo Canyon School
itself estimated that 110 of 125 boys at the school on
February 1, 1978 were “educationally handicapped”.
See, plaintiffs’ Exhibit 141. Also, both Rice and Mi-
lonas had been diagnosed as “learning disabled’’, de-
spite the fact that neither was funded under P.L. 94-
142. See, defendants’ Exhibits 8L and 8M.
The Provo Canyon School’s capacity to exercise state
special education powers and perform state and dis-
trict duties is a significant selling point in recruiting
students from public and private sources. The school
uses such capacity extensively in its advertising. See,
plaintiffs’ Exhibits 2 and 3 from Preliminary Injunc-
tion hearing. The school encourages parents to place
children at the school privately, and then to apply to
their school districts for special education funding,
which may or may not be forthcoming. See, plaintiffs’
Exhibit 2 from the Preliminary Injunction hearing.
The lure of public funding is almost overwhelming for
most of these parents, and this lure results in private
placements at the school, regardless of whether the
public funding ever materializes.
65a
Finally, if there was ever any doubt that plaintiffs
could include claims of violations of federal special
education laws in their civil rights cause of action,
that doubt was removed by Maine v. Thiboutot, 48
U.S.L.W. 4859 (U.S. Supreme Court, No. 79-838, June
25, 1980).
Turning to federal question jurisdiction under 28
U.S.C. § 1331 for causes of action directly under P.L.
94-142 and Section 504 of the Rehabilitation Act, de-
fendants dispute that such causes of action against pri-
vate defendants are contemplated by these federal laws,
even as to injunctive relief. Although the law is mixed
and still developing as to whether a damage cause of
action may be maintained against either a public or
private defendant, the federal courts have almost uni-
formly permitted injunctive causes of action under
federal special education laws against public defen-
dants, where state administrative remedies have been
exhausted or are futile. See, Miener v. Missouri, 48
U.S.L.W. 2522 (E.D. Mo. January 25, 1980) ; Patton
v. Dumpson, 48 U.S.L.W. 2523 (S.D.N.Y. January
23, 1980) ; and Armstrong v. Kline, 476 F. Supp. 583
(E.D. Pa. 1979). The court has previously stated its
finding herein that state administrative remedies were
inappropriate for the class claims in this case, and that
Utah administrative remedies that could be applied
to the Provo Canyon School were virtually non-existent
until the conclusion of this litigation.
If a cause of action for injunctive relief may be
stated against public defendants under federal spe-
cial education laws, then one may be stated against
private joint participants who share federal special
education duties and responsibilities. This is especially
true in this case, where the public defendants had abro-
gated their responsibilities to control their private
66a
delegatees, leaving the court with a choice between
either exercising that control itself, or excluding the
Provo Canyon School from participation in the federal
special education programs, once that participation be-
came known.
Finally, the court finds that the value of the federal
special education rights possessed by each child to
w om those rights apply exceeds the $10,000. amount
in controversy required under 28 U.S.C. § 1331, such
amount being slightly over 1/2 of the yearly tuition
charged for each boy at the Provo Canyon School, in
return for providing specia! education.
Regarding class certification and representation for
purposes of injunctive relief, at the time of the Pre-
liminary Injunction, this court provisionally certified
a class consisting of all boys residing at the Provo
Canyon School during the course of this litigation. As
a final ruling, this court is certifying a class consisting
of all boys residing at the school now and in the fu-
ture. The court has found that all of the required ele-
ments under Federal Rules of Civil Procedure, Rule
23(a) and (b)(2) are met, even though defendants
argue that none are met. The court never certified a
class, either provisionally or otherwise, for purposes
of a class damage claim under Rule 23(b)(8) and
(c) (2), and any such claim was dismissed without
prejudice at trial, based upon lack of the notice to the
class required by Rule 23(c) (2).
Both at the Preliminary Injunction and at trial, de-
fendants argued that since both of the named plain-
tiffs acting as class representatives had left the school,
their individual claims for injunctive relief were moot
and there was no standing to assert injunctive claims
67a
on behalf of a class of boys still at the school. In U.S.
Parole Commission v. Geraghty, 26 Criminal Law Re-
porter 3139 (U.S. Supreme Court No. 78-572, March
19, 1980), the Supreme Court held that where a class
representative has a ripe claim for injunctive relief
at the time he applies for class certification; class cer-
tification is denied by the District Court; and the rep-
resentative’s injunctive claims subsequently become
moot, reversal on appeal of the denial of class certifi-
cation allows the class claims to be litigated despite
the mootness of the representative’s individual claims.
The court ruled that the class representative retained
a personal stake in the class certification issue, despite
the mootness of the individual claim for substantive
relief. The court believes that the facts of this case fall
within Geraghty or within a necessary extension of
Geraghty.
At the time the Complaint in this litigation was
filed, the two named plaintiffs were either at the
school or subject to the custody and control of the
school, and thus had ripe claims for injunctive relief,
as well as a claim for class certification contained in
the Complaint. However the named plaintiffs con-
tended that as a result of the filing of this suit they
were subject to imminent and irreparable harm from
the school. Judge Anderson then removed the two boys
from school custody based upon this contention and
upon the school’s agreement. However even after these
boys left the school, through counsel they continued to
vigorously press for class certification, which contin-
ued to be a concrete, sharply presented issue. Since the
court’s initial class certification was provisional only,
and expressly subject to redetermination, the named
plaintiffs continued to seek final certification, and
final certification remained a concrete and contested
68a
issue until the court ruled on the merits from the
bench on May 5, 1980. The court thus believes that
Geraghty permits the class injunctive claims to be liti-
gated, despite the mootness of the individual damage
claims of the named representatives, given the fore-
going fact pattern.
Even if Geraghty doesn’t directly control this situ-
ation, the court believes there are other compelling rea-
sons for permitting the class injunctive claims to be
litigated. As a practical matter, no class representa-
tive could litigate the injunctive claims in this lawsuit
while continuing to reside at the school. The admit-
tedly authoritarian regime at the school could not tol-
erate the open rebellion such litigation represents, and
the threat of retaliation from the school could not be
avoided. Furthermore, the school defendants have the
power to moot any individual claim for injunctive re-
lief simply by discharging the claimant from the school.
The boys at the Provo Canyon School needed someone
to speak out on their behalf; school policies and prac-
tices effectively muted their own voices; and given the
abrogation of state oversight responsibilities, the only
persons who could speak for the boys were other boys
who had left or who were about to leave the school.
As to the numerosity requirement of Rule 23(a),
although the number of boys at the school at any given
time was not so great as to make individual joinder
impossible, boys whose time at the school had ended
were continually being discharged and new boys were
continually being accepted by the school. Thus the fluid
nature of the school population, rather than the actual
number of boys, would make joinder unmanageable.
Regarding issues of fact or law common to the class,
defendants contend that because each boy comes to the
69a
school with individual problems and therefore receives
individualized treatment from the school, there are no
such common issues. The evidence does not support this
position. Until the Preliminary Injunction, each boy
at the school, regardless of the source of his placement
or problems, was subject to each of the practices that
the court enjoined. Plaintiffs initially sought to have
classes and sub-classes certified only as to boys who
had been placed at the school by direct state action.
However based on the court’s finding that state action
is intertwined with all aspects of the school program,
based on the evidence that all but a handful of boys at
the school are “handicapped” within the meaning of
the federal special education laws, based on the fact
that all boys at the school are entitled to some form
of appropriate treatment, and based upon the uniform
application of many school practices, the appropriate
class consists of all boys at the school, now and in the
future. The common claims clearly outweigh individ-
ual differences between class members and differences
between class members and class representatives.
In light of the court’s analysis of the mootness issue,
the claims of the named plaintiffs are typical, though
not identical with, the class claims. Although neither
named plaintiff was placed or funded pursuant to
special education laws, each was diagnosed as “learn-
ing disabled”. Also, the Milonas boy was placed and
funded by his parent, even though the parental place-
ment was a condition of his juvenile court probation.
The Rice boy was directly placed by a juvenile court
and was state funded. It is not necessary, and would
be impossible, to have class representatives for each
identifiable interest within the class.
The named plaintiffs have fairly represented the
interest of the class. Although there may be a conflict
70a
of interest between class members and their parents
or the school, the court perceives no conflict between
class members and their named representatives. The
class representatives were not called upon to repre-
sent the interests of parents or the school.
Finally, under Rule 23 (b) (2), the school defendants
have acted on grounds generally applicable to the class.
Specifically, the school’s position has been that, regard-
less of the source of placement or funding of a boy,
the school has the right to subject him to practices this
court has enjoined, all in the name of therapy and
rehabilitation, as well as for security purposes. The
school’s position has also been that its practices are
justifed because it stands in loco parentis regarding
each boy at the school.
Defendants have relief on Parham v. J. L., 47 U.S.
L.W. 4740 (U.S. Supreme Court No. 75-1690, June 20,
1979) and Bell v. Wolfish, 441 U.S. 520 (1970) as
setting standards that apply to the merits of this case.
Parham involved a challenge to Georgia’s procedures
for “voluntary” commitment of juveniles to state men-
tal hospitals by their parents. Like the case at hand,
although “voluntary” for the parents, the commit-
ments were “involuntary” as far as the plaintiff chil-
dren were concerned. These plaintiffs contended that
due process required a formal, adversary hearing be-
fore the commitments could occur. However the Su-
preme Court held that existing Georgia procedures
were adequate because due process required only that
an informal medical determination be made by a “neu-
tral factfinder”, such as an admitting physician, that
a child is medically ill and in need of treatment. The
court applied the balancing test used in virtually all
procedural due process cases. Although the court recog-
Tla
nized that these children had constitutionally protected
liberty interests, and that those interests might con-
flict with the interests of the parents in some instances,
the court recognized the rebuttable presumption that
parents will act in the best interests of their children,
held that parents have a large amount of discretion
in pursuing those interests, and held that the indepen-
dent medical determination was a sufficient check on
parental discretion. The court also held that where
the state served as a guardian in loco parentis to these
children, the same presumptions and considerations
applied to the due process requirements for initial com-
mitment as in the case where natural parents sought
the commitment.
Bell was an attack on the conditions of confinement
by adult pre-trial detainees at a federal jail. The lower
courts held that certain jail practices and conditions
were unconstitutional because not justified by ‘“com-
pelling necessities” of jail administration or security.
The Supreme Court held that this was not the proper
standard. Due Process under the Fifth Amendment
required only that practices and conditions be “rea-
sonably related” to legitimate purposes for confine-
ment or to legitimate administrative or security in-
terests. Because the pre-trial detainees had not been
adjudged guilty of any crime, punishment was not a
legitimate state purpose, and the cruel and unusual
punishment standards of the Eighth Amendment did
not apply. The court found that the conditions and
practices under attack were reasonably related to legi-
timate security and administrative needs, and there-
fore were not punitive.
The court agrees with defendants that the general
standards enunciated in Bell apply to the case at hand.
None of the juveniles at the Provo Canyon School have
72a
been adjudged guilty of crimes by adult courts, al-
though some have been adjudged delinquent by juve-
nile courts. Others have been determined to be handi-
capped by their school districts. All boys at the school
have been found to be in need of education, plus some
sort of treatment, therapy or rehabilitation, even where
that finding has been made only by the parents and
private physicians or counsellors. Thus the Eighth
Amendment cruel and unusual punishment standards
don’t apply. Fifth and Fourteenth Amendments due
process standards do apply, given the court’s findings
as to state action, and the practices at issue in this
case are permissible only if reasonably related to legi-
timate purposes of confinement, or to legitimate school
security or administrative needs.
Of course the juveniles at the Provo Canyon School
are not pre-trial detainees confined only for the pur-
pose of assuring their presence at trial, and so the
legitimate purposes for confinement and the interests
of the juveniles confined are different than in Bell.
Juveniles placed at the Provo Canyon School by juve-
nile courts have been adjudged delinquent according
to due process standards significantly less strict than
those that must be applied to adult criminal defen-
dants. The justification for this is that adjudged juve-
nile delinquents may not be incarcerated for punish-
ment, but may only be confined for purposes of treat-
ment and rehabilitation. This court recognizes a “right
to treatment” for these boys in light of the duty to
provide treatment that must be imposed upon juvenile
courts as the quid pro quo for relaxed procedural due
process requirements. In light of Bell, the court does
not believe that the Constitution requires that treat-
ment for adjudged juvenile delinquents must be pro-
vided in the “least restrictive” alternative, but only
73a
that such treatment must be reasonably related to the
juvenile’s treatment needs, and must not be unreason-
ably restrictive.
Juveniles placed at the Provo Canyon School pur-
suant to federal special education laws do have a fed-
erally protected right to the least restrictive form of
appropriate treatment. 45 C.F.R. § § 121a.550 through
556.
As to juveniles confined at the Provo Canyon School
by or with the consent of parents or guardians, de-
fendants argue that under Parham, such parental con-
sent places the school itself in loco paentis, and im-
munizes school practices from scrutiny, so long as these
practices do not constitute child abuse. To bolster their
argument defendants point out that the school has
obtained express parental consent to specific practices
such as mail montoring and the use of the polygraph.
The court does not agree with this analysis of the appli-
cation of Parham.
Parham was not concerned with conditions of con-
finement; it was concerned with procedures by which
confinement may occur. In the case at hand, the pro-
cedures by which children were placed at the Provo
Canyon School are not under attack; rather the condi-
tions of confinement are at issue. However Parham
did hold that where confinement is to occur at a state
facility, even the “voluntary” or private placement
by parents was subject to procedural scrutiny under
the Due Process Clause of the Constitution. It also held
that the placement decision was not subject only to
the unbridled discretion of the parents, but was lim-
ited by the requirement of an independent medical de-
termination of mental illness and need for confine-
ment,
74a
The court has found that state action is so inter-
twined with all aspects of the operation of the Provo
Canyon School that the school as a whole operates
under color of state law. Thus, as in Parham, even
“voluntary” parental decisions or parental consent are
subject to constitutional scrutiny, where such decisions
or consent will result in confinement or significant
loss of liberty for a child, and where confinement or
loss of liberty occurs at a facility operating under
color of state law, such as the Provo Canyon School.
Where such parental decisions or consent relate to con-
ditions of confinement, Bell provides the applicable
constitutional standards. The conditions of confine-
ment must be reasonably related to legitimate pur-
poses of confinement or to legitimate security and ad-
ministrative needs of the confining facility, and may
not be unreasonably restrictive in light of those legi-
timate purposes and needs. The legitimate purposes
for confinement at the Provo Canyon School are resi-
dential treatment, therapy or rehabilitation, in con-
junction with education. Although there may be many
treatment alternatives that are reasonable and not un-
necessarily restrictive, and the parent has virtually
unlimited discretion to choose between those legitimate
alternatives, parental consent does not legitimize con-
ditions of confinement that are not reasonably related
to treatment needs or that are unreasonably restric-
tive in light of bona fide security or administrative
needs.
Before discussing this analysis in light of specific
practices at the Provo Canyon School that have been
enjoined, the court should note its view that if there
is conflict between legitimate treatment needs on the
one hand and legitimate administrative and security
needs on the other, the treatment needs dominate, in
75a
light of the use of treatment, rehabilitation and par-
ental consent as justifications for limiting the pro-
cedural due process protection afforded to juveniles.
The court has found that practices at the Provo Can-
yon School regarding use of the polygraph, mail mon-
itoring, isolation and physical force are not reason-
ably related to legitimate treatment needs, are unrea-
sonably restrictive in light of legitimate school secur-
ity and administrative interests and are therefore un-
constitutional. A fortiori, these practices also violate
the right to the least restrictive treatment alternative
under the federal special education laws. As to the
remainder of the 13 practices contested by plaintiffs,
the court has found that these reasonably relate to
legitimate treatment and security purposes, are not
unreasonably restrictive, and are therefore constitu-
tionally permissible. However the court expresses no
opinion as to whether or not these remaining practices
violate rights to the least restrictive alternative or
other rights under the federal special education laws.
The State of Utah, among others, will need to make
that determination in th first instance, under its newly
found regulatory authority.
As to the polygraph, the court has difficulty en-
visioning a set of facts that would justify use of the
polygraph on juveniles, either in the name of “therapy”
or for security. That set of facts certainly did not exist
at the Provo Canyon School. Although there was some
evidence offered in support of justification, and some
evidence of “voluntary” use of the polygraph by boys,
this device is inherently coercive and represents the
most serious intrusion into the very thought processes
of an individual. It was certainly used in a coercive
manner at the Provo Canyon School. Refusal to take
the polygraph resulted in punishment hours that boys
76a
had to stand or sit off and meant that a boy could not
advance within the school program and could not leave
the school. Boys were subject to punishment not only
for what the polygraph revealed they had done, but
also for what the polygraph showed they had thought
about doing. Until this court’s Preliminary Injunction,
all boys at the school were subject to the same poly-
graph policies, even those placed exclusively for special
education and those with no record of juvenile offenses.
The school also used the polygraph to prevent the
flow of any negative information about the school.
Boys entered into agreements and even formal con-
tracts with the school to obey the rules and to avoid
“negative thinking”, which included saying bad things
about the school. The polygraph was used to test per-
formance of these agreements or contracts. Boys even
had to agree that after they left they would not say
bad things about the school, and boys knew that any
intention to violate that agreement would be revealed
by the polygraph, and would prevent or delay their
departure. See plaintiffs’ Exhibit 74, (Control No.
319).
This use of the polygraph to chill even individual
thought and to chill expression of thought is what the
court meant on May 5 when it referred to the poly-
graph as an “instrument of terror” rather than ther-
apy. Although such “thought control” may be very
effective in changing behavior, so are a number of
“brainwashing” techniques that the Constitution, and
certainly the special education laws, won’t permit.
The court also cannot envision a constitutionally per-
missible justification for the mail control policies of
the school. The court perceives a reasonable therapeu-
tice reason for limiting “bad influences” on boys from
outside the school; such limits are not unreasonably
77a
restrictive, and the Permanent Injunction modifies the
Preliminary Injunction to reflect this point. Both the
Preliminary and Permanent Injunction recognize the
valid security reasons for allowing inspection for con-
traband. However these same justifications are insuf-
ficient to support school policies controlling to whom
the boys may send outgoing mail and controlling the
content of that mail. These policies were another vehicle
for preventing any criticism of the school. All out-
going mail was read and boys were forced to “rewrite”
letters containing things perceived as “untrue” by ther-
apists, or containing “negative thinking” such as criti-
cism of the school. Therapists even wrote comments
such as “manipulative” in the margins of letters that
boys were allowed to send. Boys knew that their out-
going mail was being read, which chilled the content
of their letters even before they were written. One won-
ders why an institution that seems to be as proud of
its programs as the Provo Canyon School would go to
such great lengths to avoid critical comment.
Of course the most dangerous aspect of such control
of outgoing contacts and their content is that it pre-
vents boys, who may be the victims of abuse within
the walls, from crying out for help. It is no answer
for the school to simply create and pick its own “advis-
ory board” and add board members to the list of those
whom the boys may contact. This court can perceive
no adequate basis for the unreasonably restrictive na-
ture of school and parental control over outgoing con-
tacts from boys confined at a residential facility. The
very possibility of such contact can temper inapprop-
riate school practices.
As far as the use of both isolation facilities (P-room)
and physical force (“hair dance”), the evidence shows
that although written school policies forbade excessive
78a
or inappropriate use, actual practices varied from writ-
ten policies, and excessive or inappropriate use of iso-
lation and physical force took place. The “hair dance”,
designed as a means of controlling physically violent
juveniles without causing them undue physical harm,
was used in response to conduct other than physical
violence or physical resistance, was used as punishment
rather than simply for immediate control, was used as
a threat, and on occasion resulted in the very physical
injuries it was supposed to prevent.
As plaintiffs’ Exhibit 67 shows, the isolation facili-
ties of the P-room were used too often and for inter-
vals that were too long. Other juvenile facilities are
permitted to use “time out” procedures, but for shorter
intervals, under more carefully controlled conditions
and in response to clearly defined physical types of
behavior. However the use of the term “out of control”
as a justification for the basically uncontrolled discre-
tion of counsellors and others in subjecting juveniles
to the P-room and hair dance permitted unreasonably
harsh school responses to the conduct of disturbed boys.
The Preliminary and Permanent Injunctions intend to
more clearly define the appropriate and inappropriate
uses of the P-room and physical force.
Finally, the foregoing should show that the court has
kept its intrusion into the affairs of the Provo Canyon
School to the minimum level necessary to insure the
honoring by the school of those rights protected by the
Constitution and state and federal special education
laws.
We provide comparable protection for convicted fel-
ons. School children — particularly troubled school
children — deserve no less.
79a
FINDINGS OF FACT
This action came on for trial before the Honorable
Bruce S. Jenkins, United States District Judge, sit-
ting with a jury, commencing March 24, 1980, and
concluding on April 18, 1980. The following appear-
ances were made:
Kathryn Collard and Martin W. Custen, on behalf
of the American Civil Liberties Union - Utah Affil-
iate, - Salt Lake City, Utah, and Mark I. Soler, Michael
J. Dale and Loren M. Warboys, on behalf of the Juve-
nile Justice Legal Advocacy Project, San Francisco,
California, appearing as counsel for plaintiffs.
Harold G. Christensen, Paul C. Droz, Alan L. Lar-
son, Max D. Wheeler, of Snow, Christensen & Mar-
tineau, appearing as counsel for defendants Jack L.
Williams, Robert B. Crist and D. Eugene Thorne.
Thomas C. Anderson, Assistant Attorney General
of the State of Utah, appearing as counsel for defen-
dants Walter D. Talbot, State Superintendent of Public
Instruction and the Utah State Board of Education.
Joseph P. McCarthy, Assistant Attorney General
of the State of Utah, appearing as counsel for defen-
dant John F. McNamara, Administrator of the Inter-
state Compact on Juveniles of the State of Utah.
The court and/or the jury heard the testimony of
plaintiffs’ witnesses: Jack L. Williams, Robert B.
Crist, D. Eugene Thorne, Martin H. Gerry, Jerome
G. Miller, Paul W. DeMuro, John Billings, John F.
McNamara, Daniel L. Creson, Steven Forness, Lisa D.
King, Patrick T. King, Timothy Milonas, Jr., Kenneth
Rice, Art Child, Howard Sloane, Blaine Lee, Frank
Purvis, Diane Horton, James P. Wheeler, Andrew S.
80a
Gallo, Marjorie Child, Bill Harriman and Pat Stack;
and the testimony of defendants’ witnesses: Robert H.
Crist, Delbert Pearson, R. L. Jones, Kay Wilkinson,
Paul Whitehead, Marianne Merritt, Mike Avarett,
William A. Lowe, Donald H. Keltner, Tom Kreth, Eu-
gene Reed Gibbons, Chris Weenig, JoAnn Bryner,
Judy Cole, Quentin Harris, Delbert L. Goates, Pam
Roth, Marilyn Anderson, Mike Anderson, Kay Lind-
say, Curtis VanAlfen, Judge Monroe Paxman, Guy
Toombs, Mae Taylor, Ben Bruse, Robert Gordon Ed-
dington, Denny Butterfield, Glen Stepp, Glen Ovard,
Alice Allred, Barbara Graves, Roger Mortensen, Mike
Miller, Sydney S. Gilbert, Jerry Spanos, Kevin Colin-
son, Gerold D. Barton, Walter D. Talbot, Barbara Bate-
man, Lorri Connin, Beverly McConnell, Jeff James,
David Raskin, Gregory Leveridge, Nathan Peck and
Matt Barkin; and the court received plaintiffs’ Exhi-
bits Nos. 1-193, excluding Exhibits Nos. 37, 44, 51,
55, 97, 98, 109, 110, 188 and 191, and defendants’
Exhibits, lettered: 1A through 8Q, excluding Exhibits
7-0, 8C and 3C; and the matter having been fully
argued and submitted; and the court being otherwise
fully advised in the premises, now hereby makes and
enters the following Findings of Fact and Conclusions
of Law:
1. The named plaintiffs, Timothy Milonas, Jr. and
Kenneth Rice, and the members of the Plaintiff Class
which they represent, are juveniles involuntarily con-
fined at the Provo Canyon School by orders of juve-
nile courts in Utah and other states, by state educa-
tional agencies and local school districts in Utah and
other states, by public welfare agencies and parents in
Utah and other states, immediately prior to or during
the pendency of this action, or in the future.
8la
2. Defendants Jack L. Williams, Robert H. Crist
and D. Eugene Thorne are the owner's and operators
of the Provo Canyon School.
8. Defendant ohn F. McNamara is the Administra-
tor of the Interstate Compact on Juveniles for the
State of Utah, who, in his official capacity, has super-
visory responsibilities with respect to juveniles placed
in institutions in Utah by orders of juvenile courts
outside the State of Utah.
4. Defendant Walter D. Talbot is the Superinten-
dent of Public Instruction for the State of Utah, who,
in his official capacity, is responsible for the super-
vision of handicapped children receiving special educa-
tion in the State of Utah.
5. Defendant Utah State Board of Education is the
governmental agency of the State of Utah responsible
for education of children in the State, and is the “state
education agency” for the State of Utah within the
provisions of Public Law 94-142, the Education for
All Handicapped Children Act.
6. Plaintiffs invoke the jurisdiction of this court
pursuant to 28 U.S.C. § § 1331, 1343, 2201 and 2202,
42 U.S.C. § 1983, and pursuant to the United States
Constitution and particularly the First, Sixth, Eighth,
Ninth « id Fourteenth Amendments thereto. Plaintiffs
also assert jurisdiction in this court for claims based
on Public Law 94-142, the Education for All Handi-
capped Children Act, 20 U.S.C. § 1401, et seq., and
Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794.
7. The events and acts of defendants giving rise to
this action occurred in the Central Division of the Dis-
trict of Utah.
82a
8. The plaintiffs seek to have this matter certified
as a “class action” pursuant to the provisions of Rule
23(a) and (b)(2) of the Federal Rules of Civil Pro-
cedure. Plaintiffs’ Second Amended Complaint alleges
that the Plaintiff Class consists of “all juveniles who
have been, are now, or in the future will be placed at
the Provo Canyon School.”
9. The case as tried consists of three parallel actions:
first, an action for damages by plaintiff Milonas in
his individva! capacity initiated pursuant to 42 U.S.C.
§ 1983; second, an action for damages initiated by
plaintiff Rice in his individual capacity pursuant to
42 U.S.C. § 1983; and third, an action by plaintiffs
Milonas and Rice, in a representative capacity, on be-
half of a class of persons pursuant to 42 U.S.C. § 1983,
and the United States Constitution, particularly the
First, Sixth, Eighth, Ninth and Fourteenth Amend-
ments thereto, and also pursuant to Public Law 94-142,
the Education for All Handicapped Children Act, 20
U.S.C, § 1401 et seq., and Section 504 of the Rehabili-
tation Act of 1973, 29 U.S.C. § 794, seeking prelimin-
ary and permanent declaratory and injunctive relief.
10. Plaintiffs seek declaratory and injunctive relief
on the grounds that the following policies, practices
and procedures of defendants’ Williams, Crist and
Thorne, violate plaintiffs’ constitutional and statutory
rights:
1. Confinement in a secure area in the Orien‘*a-
tion Phase without outside exercise or recreatiou.
2. Deprivation of any personal property other
than clothing during the Orientaion Phase.
3. Denial of opportunity to attend religious
services while in the Orientation Phase.
83a
4. Required attendance at religious services or
“character building classes” after the Orienta-
tion Phase.
5. Required sitting or standing, for a minimum
of four hours at a time, for at least 250 hours, in
order to advance out of the Orientation Phase.
6. Required silent sitting or standing for hours
at a time for violating school rules or for getting
“Incident Reports.”
7. Lack of direct, medical supervision in ad-
ministration of drugs, and overdosing of psycho-
tropic drugs, including Thorazine, Stelazine, Mel-
aril and other major tranquilizers, and adminis-
tration of drugs by non-medical personnel.
8. Solitary confinement for long periods of
time as punishment in the “Prescription Room”
or “P Room”, a bare 4’ x 8’ room containing no
reading material, other items of recreation, toilet
facilities or personal amenities.
9. Denial of a hearing or any other due process
before placement in solitary confinement.
10. Reading and censorship of all mail to and
from boys at the school.
11. Regular administration of polygraph tests
to boys at the school.
12. Denial of access to legal counsel.
13. Brutality and mistreatment by adminis-
trators, counselors and other personnel at the
school, including lifting, swinging or dragging
children by their hair (the ‘hair dance’).
84a
11. Plaintiffs also seek declaratory and injunctive
relief against defendants Dr. Walter D. Talbot, State
Superintendent of Public Instruction, and the Utah
State Board of Education, on the ground that they
failed to monitor the Provo Canyon School to insure
that defendants Williams, Crist and “horne provided
children funded at the institution pursuant to Public
Law 94-142 and Section 504 of the Rehabilitation Act
of 1978 with special education rights guaranteed to
them pursuant to these statutes, which caused plain-
tiffs to suffer the violation of these rights, including
the violation of federal constitutional rights.
12. Plaintiffs also seek declaratory and injunctive
relief against defendant John F. McNamara, Adminis-
trator of the Interstate Compact on Juveniles for the
State of Utah, on the ground that his failure to pro-
mulgate standards to govern the placement of children
subject to the Compact in private, residential treat-
ment facilities in the State of Utah, and his failure to
adequately monitor the placement of plaintiffs in the
Provo Canyon School or to adequately supervise such
placements, deprived plaintiffs of federal constitu-
tional and statutory rights.
18. This action was filed on September 21, 1978.
On that same day, plaintiffs’ attorney, Kathryn Col-
lard, filed a Petition for Appointment of Guardian Ad
Litem and a Motion for Extraordinary Relief Pending
Trial, and this court held a hearing on the motions,
the Honorable Chief Judge Aldon J. Anderson presid-
ing. The district court accepted Ms. Collard’s repre-
sentation of the named plaintiffs and granted the Mo-
tion for Extraordinary Relief Pending Trial, pursuant
to the stipulation of defendants. The court’s Order di-
rected James P. Wheeler and the Utah Division of
Family Services to assume temporary custody and
85a
coritrol of the named plaintiffs and to provide for their
care and treatment pending further order of the court.
14. Although the court did not formally act on plain-
tiffs’ petition to have Ms. Collard appointed as Guard-
ian Ad Litem for the named plaintiffs, Ms. Collard
represented the named plaintiffs continuously since
September 21, 1978, and on March 5, 1980, this court
entered an Order formally appointing Ms. Collard as
Guardian Ad Litem for the named plaintiffs.
15. On October 18, 1978, plaintiffs filed their First
Amended Complaint. On October 19, 1978, plaintiffs
filed a motion to have this action certified as a “class
action” pursuant to Rule 23 (a) and (b) (2) of the
Federal Rules of Civil Procedure. On February 8, 1979,
plaintiffs filed a Motion for Preliminary Injunction.
16. On February 21-24, 1979, this court conducted
an evidentiary hearing on plaintiffs’ motion for class
action certification and for preliminary injunction. At
the hearing, plaintiffs presented the testimony of de-
fendants Jack L. Williams and John F. McNamara;
William D. Harriman and Ronald P. Wing, former
students at Provo Canyon School; Gordon Eddington,
Andrew Gallo, Robert Miller, Frank Purvis, and Ran-
dy Wardwell, former counselors at the institution; and
Art Child, former polygraph operator at the institu-
tion. Defendant McNamara testified as to his duties
as Interstate Compact Administrator, and identified
the files of sixteen boys who had been placed at the
Provo Canyon School during the previous year by juve-
nile courts outside the State of Utah. The files were
all admitted into evidence. The other witnesses all tes-
tified as to the conditions of confinement and the treat-
ment program at the Provo Canyon School, particu-
larly the specific policies and practices challenged by
plaintiffs. Defendants presented the testimony of de-
86a
fendant Crist; Gerold Spanos and Dolly Miller, both
employees of the institution; William Holman, parent
of a juvenile at the institution; Banae Stout, natural
mother of plaintiff Milonas; D. Eugene Thorne, then
a consultant for the Provo Canyon School; and Judge
Monroe Paxman, a former juvenile court judge who
had visited the institution.
17. During the hearing the district court ordered
defendants to provide information regarding sources
of funding for the institution. A summary of the in-
formation was prepared by the defendants and re-
ceived in evidence. The summary contained the follow-
ing information:
TOTAL TUITION BILLED
POE STE sncsiesiiptercidecticndsenenniipadee $1,846,783.00
MONIES RECEIVED FROM VARIOUS
SOURCES:
School Districts
Utah Districts (all year) -................... 5,517.17
(9 boys)
Other states:
Jan.-June, ’78 ($698. mo. ea.) ........ 75,383.41
(18 boys)
Jul.-Dec., ’78 ($724. mo. ea.) ........ 182,504.71
(42 boys)
*Funds paid to parents. (NOTE: To date, 37 boys
receiving school funding. )
Probations
Various Counties Other States -....... 107,244.86
(10 boys)
87a
Utah Division of Family Services ...... 8,800.00
(1 boy)
Alaska Division of Corrections .......... 83,960.69
(10 boys)
All Other Sources of Tuition Received in Private
Funding.
18. At the conclusion of the hearing, this court made
a provisional finding of subject matter jurisdiction
under 28 U.S.C. § 1348, and provisionally certified
the action as a class action pursuant to Rule 23(a)
and (b)(2) of the Federal Rules of Civil Procedure.
The court noted:
For the purpose of preliminary relief only, and
until further order of the court, the Plaintiff Class
shall consist of all juveniles residing at the Provo
Canyon School during the pendency of this action.
The issues of whether this action may be brought
as a class action, and the ynembership in the class
shall be subject to redetermination upon motion
by a party or the court as circumstances may war-
rant.
19. The court also enjoined defendants Williams and
Crist from subjecting members of the Plaintiff Class
to the following treatment, or conditions of confine-
ment, which encompassed four of the thirteen prac-
tices challenged by the plaintiffs in their Complaint:
1. Opening, reading, monitoring or other cen-
sorship of mail to or from students at the school,
except for purpose of detecting or removing con-
traband.
2. Administration of polygraph examinations
for any purpose.
88a
3. Placement of students in the “P Rooms” or
other isolation facilities gor any reason other than
to contain a student who is physically violent and
dangerous to himself or others, and only for the
period of time during which the student is phy-
sically violent and dangerous to himself or others.
4. Use of physical force for any purpose other
than to restrain a student who is physically vio-
lent and immediately dangerous to himself or
others, or to overcome physical resistance to in-
stitutional rules. The force used must be restricted
to the least amount reasonably necessary in the
circumstances.
20. The court also accepted and incorporated into its
Order a stipulation for the entry of a Preliminary In-
junction against the defendant McNamara, whereby
said defendant agreed to be restrained and enjoined
from approving the placement of juveniles in the Provo
Canyon School during the pendency of this action, and
to effect the removal from the school of any juveniles
subject to the terms of the Interstate Compact On Juve-
niles who were in the School pursuant to orders of juve-
nile courts in states outside the State of Utah.
21. On August 21, 1979, this court granted plain-
tiffs’ motion to amend their complaint, and plaintiffs
filed their Second Amended Complaint.
22. On November 16, 1979, plaintiffs and defen-
dants Williams, Crist and Thorne, agreed upon a Sti-
pulated Pretrial Order in this matter.
23. On February 1, 1980, defendants Williams, Crist
and Thorne moved for summary judgment in this mat-
ter. On the same day, defendants Utah State Board of
89a
Education and Walter D. Talbot also moved for sum-
mary judgment. On February 5, 1980, plaintiffs also
moved for summary judgment.
24. On February 18, 1980, this court denied the
motion for summary judgment, without prejudice, of
the defendants Dr. Walter D. Talbot, and the Utah
State Board of Education.
25. On March 6, 1980, this court denied the motion
for summary judgment of defendants Williams, Crist
and Thorne.
26. On March 20, 1980, this court denied the motion
for summary judgment of plaintiffs.
27. On March 25, 1980, this court, sitting with a
jury, commenced the trial of the named plaintiffs’ indi-
vidual actions for damages against defendants, which
matter was finally argued and submitted to the jury
on April 18, 1980.
28. On March 31, 1980, plaintiffs and defendants
Walter D. Talbot and the Utah State Board of Edu-
cation submitted to this court a stipulation for the
entry of a Consent Decree and Judgment regarding
said defendants which this court signed and entered
on the same date.
29. On April 4, 1980, plaintiffs and defendant John
F. McNamara submitted to this court a stipulation
for the entry of a Consent Decree and Judgment re-
garding said defendant which this court signed and
entered on the same date.
80. On April 18, 1980, the jury returned a verdict
in the individual damage actions of the named plain-
90a
tiffs, Rice and Milonas, against these plaintiffs and
for the defendants Williams, Crist and Thorne.
31. On April 22, 1980, plaintiffs filed a Motion for
Judgment Notwithstanding The Verdict in the indi-
vidual damage actions of the named plaintiffs, and on
April 24, 1980, defendants filed a Motion for Entry
of Judgment on the Verdict.
32. On April 24, 1980, defendants Williams, Crist
and Thorne filed a Motion to Dismiss Plaintiffs’ Claims
for Injunctive Relief.
33. On May 5, 1980, this court, following a hearing
and full argument by all parties, denied plaintiffs’
Motion for Judgment Notwithstanding The Verdict in
the individual damage actions of the named plaintiffs,
and granted defendants’ Motion for Entry of Judg-
ment on The Verdict as to the individual damage ac-
tions of the named plaintiffs. The court also denied
defendants’ Motion to Dismiss Plaintiffs’ Claims for
Injunctive Relief, and awarded permanent injunctive
relief based on oral Findings and Conclusions mem-
orialized herein.
34. The court finds that defendants Williams, Crist
and Thorne acted under color of state law in subject-
ing the plaintiff class to the very practices that plain-
tiffs allege are unconstitutional or otherwise in viola-
tion of federal law. There is a substantial nexus be-
tween the federal statutory and constitutional viola-
tions alleged, and the continuous placement, regulation
and substantial funding of children at the Provo Can-
yon School by state and local governmental entities and
instrumentalities such as school districts, juvenile
courts and welfare agencies. The Provo Canyon School
is a joint participant with these state agencies, and
9la
acts pursuant to powers and duties shared or dele-
gated by these state agencies, in providing residential
treatment, rehabilitation and education to juveniles.
Even though not every boy at the school is subject to
direct state action, the majority are, and state action
is so intertwined with all aspects of the operations of
the Provo Canyon School that the school as a whole
operates under color of state law in all of its activities.
35. Additionally, the court finds that plaintiffs’
class claims for injunctive and declaratory relief arise
under federal law, specifically Public Law 94-142 and
Section 504 of the Rehabilitation Act of 1973, and that
as to each such claim by an affected class member, the
amount in controversy exceeds $10,000, exclusive of
interest and costs.
36. Because of the class nature of plaintiffs’ claims,
and the absence until trial of any state administra-
tive mechanism in Utah for applying federal special
education laws to “private” facilities subject to these
laws, resort to state administrative remedies contem-
plated by these laws would have been futile.
37. The court finds that the appropriate plaintiff
class to be certified for purposes of final injunctive
and declaratory relief consists of all boys residing at
the Provo Canyon School now and in the future. Pur-
suant to Rule 23(a) and (b) (2) of the Federal Rules
of Civil Procedure, the court makes the following find-
ings respecting this class and its representatives:
(a) At the time this action was filed, the two
named class representatives sought to certify a
class for purposes of injunctive and declaratory
relief, were members of the class they sought to
represent, and had ripe claims for injunctive and
declaratory relief as individuals. The named plain-
92a
tiffs’ individual claims for injunctive relief be-
came moot after this court, the Honorable Chief
Judge Aldon J. Anderson presiding, removed the
two boys from the custody of the Provo Canyon
School based upon allegations of imminent and
irreparable harm likely to be suffered by them
as a result of the filing of this action, and based
upon the stipulation of the school. Even after they
had left the school, the two named plaintiffs
continued to vigorously litigate the questions of
class certification and relief, and these questions
continued to present concrete, sharply contested
issues even after provisional class certification by
the court, so that the named plaintiffs retained
a personal stake in the questions of class certifi-
cation and relief throughout this litigation.
Furthermore, boys continuing to reside a the
Provo Canyon School would have been unable to
effectively litigate this action as class representa-
tives while residing there, and defendants had
the power to moot injunctive claims of any class
representative residing at the school by unilater-
ally discharging that boy from the school.
(b) Because the class to be certified is fluid,
it is too numerous for joinder of all members to
be practicable.
(c) There are numerous questions of fact and
law comm
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