Opposition Brief — McDaniel v. Georgia Ass'n of Retarded Citizens

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No. 84-888 and No. 84-899 JAN 7 1985

FERRER STEW AS,

In The CLERK

Supreme Court of the United States

October Term of 1984

No. 84-888

DR. CHARLES McDANIEL, et al.,

Petitioners,

Vv.

GEORGIA ASSOCIATION OF RETARDED CITIZENS,

et al.,

Respondents.

=i?

_aaeinta

No. 84-899

THE BOARD OF PUBLIC EDUCATION FOR

THE CITY OF SAVANNAH AND THE

COUNTY OF CHATHAM, et al.

Petitioners,

Vv.

GEORGIA ASSOCIATION OF RETARDED CITIZENS,

et al.,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

THE ELEVENTH CIRCUIT

ty

Ww

JONATHAN A. ZIMRING

Suite 630

133 Carnegie Way

Atlanta, Georgia 30303

(404) 688-4000

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

QUESTIONS PRESENTED

Does the Education for All Handicapped Children’s

Act of 1975, as amended, require the individual con-

sideration of the duration of a child’s educational

program?

Does the requirement that children be individually

considered for the duration of their special education

and related services conflict with this Court’s deci-

sion in Board of Education of Hendrick Hudson Cen-

tral School District v. Rowley, 458 U.S. 176 (1982)?

May a private litigant and certified classes maintain

class claims under the Education for All Handicapped

Children’s Act, as amended, if that named represen-

tative has exhausted all administrative remedies and

if further exhaustion is futile?

Is the requirement under the Education for All Han-

dicapped Children’s Act of 1975, as amended, that

individual programs based on unique needs be pro-

vided handicapped children sufficiently unambiguous

so that the required consideration of duration of

services does not conflict with Pennhurst State School

v. Halderman, 451 U.S. 1 (1981)?

Must an appellate court dismiss a certified class ac-

tion, if after judgment the individual claim of one

of the class representatives is mooted against one

of the defendants but the individual and class claims

against other defendants remain actual controversies?

Under the Education for All Handicapped Children’s

Act as interpreted by this Court in Board of Fduca-

tion of Henry Hudson School District v. Rowley, 458

U.S. 176 (1982) does a procedural violation against

an entire class of children constitute an injury so that

a court is presented with a case in controversy under

Article III of the Constitution?

li

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED i

TABLE OF CONTENTS ii

TABLE OF AUTHORITIES deseguianemdeenial iii

JURISDICTION 1

STATEMENT OF THE CASE

A. Factual Summary 2

REASONS FOR DENYING THE PETITIONS

A. Summary of the Argument ...... 7

B. Argument

I,

IT.

Every Federal Court Reviewing The

Special Education Requirements Has

Held That School Services On A Year-

ly Basis Must Be Considered. These

Holdings Are All Premised On The Re-

quirement Of Individual Consideration

Under The EHA

(a) The Cireuits agree that individual

needs require the consideration of

a child’s duration of educational

services

(b) The Court’s holding is a required

construction of the FHA

(c) The holding in this ease does not

conflict with Rowley

The Act Creates A Clear Entitlement To

Appropriate Educational Services. This

Right Does Not Abrogate The Holding

In Pennhurst

(a) “Appropriate Education” is not an

ambiguous standard

10

11

13

a OORT

lil

TABLE OF CONTENTS—Continued

Page

(b) The petitions fail to analyze the im-

pact of Smith v. Robinson ..................... 15

III. The Plaintiff Class Presents A Live And

Justiciable Controversy

(a) The case is not moot against the de-

fendants - 16

(b) The Cireuit affirmed relief to real

ia risa ciaacibisiitngicisaseeeicheninien 18

Sh 20

TABLE OF AUTHORITIES

A. CasEs

Albemarle Paper "sities v. Moody, 422 US.

EEE SESS EE 17

Anderson v. Thompson, 495 “-FSupp. 1256, 1265

(E.D. Wis. 1980), aff’d on other grounds, 658

F.2d 1205 (7th Cir. 1981) . §

Armstrong v. Kline, 476 iesa 583 (E.D. Pa.

EE 18

Baker v. Carr, 369 U.S. 186, 208 (1962)... 19

Bales v. Clark, 523 F.Supp. 1366 (E.D. Va. 1981)........... 10

Battle v. Pennsylvania, 629 F.2d 269 (8rd Cir.

1980), cert. denied, 452 U.S. 968 (1980)... 9, 12, 13, 18

Board of Education of Hendrick Hudson Central

School District v. Rowley, 458 U.S. 176, 102 8.

Ct. 3034 (1982) 8, 9, 10, 11, 12, 18, 14, 18, 19

Califano v. Yamasaki, 442 U.S. 682 (1979) 17,19

Crawford v. Pittman, 708 F.2d 1028 (5th Cir. 1983)... 10

“ :

lv

TABLE OF AUTHORITIES—(Continued)

Page

Garrity v. Gallen, 522 F.Supp. 171, 240 (D. N.H.

1980) 9

Georgia Association of Retarded Citizens v. Mc-

Daniel, 511 F.Supp. 1263 (N.D. Ga. 1981) 2, 3, 5

Hilden v. Evans, No. 80-511-RE (D. Oregon, Nov.

5, 1980) 10

Irvington Independent School District v. Tatro,

468 U.S. —, 1048. Ct. 3371 (1984) 13, 14

King v. Smith, 392 U.S. 309 (1968) 14

Lee v. Clark, No. 80-0918 (D. Hawaii, Jan. 30, 1981)... 10

Moore v. Roberts, No. LR-C-81-419 (E.D. Ark.,

July 24, 1981) 10

Pennhurst State School v. Halderman, 451 U.S. 1

(1981) 8, 13, 14, 15, 16

Phipps v. New Hanover County Bd. of Education,

Son Fame. tae (2. B0. 1962). __....___..__. 10

Romasanta v. United Airlines, Inc., 5387 F.2d 915

(7th Cir. 1976), aff'd sub nom, United Airlines,

Inc. v. McDonald, 482 U.S. 385 (1977) 17

Smith v. Robinson, 468 U.S. —, 104 S. Ct. 3457

(1984) 8, 13, 15, 16, 18

Sosna v. Iowa, 419 U.S. 393 (1975) 17

Timms v. Metro School Dist. of Wabash County,

ud., Tae ©.20 1300 (ith Cir., 1963) —_ 10

United States Parole Commission v. Geraghty, 445

Se I I cca ciaceeneliines lesbdadislonineiio 17

Yaris v. Special Sch. Dist. of St. Louis County, 558

F.Supp. 545 (E.D. Mo. 1983), aff'd 728 F.2d

Bi ty | eee ena Seer

10

ee a F

TABLE OF AUTHORITIES—(Continued)

Page

B. ConsriTuTIONAL PROVISIONS

Article III of the United States Constitution 9

Fourteenth Amendment to the United States Con-

stitution ............. 8, 16

C. StTatTuTEs

Education for All Handicapped Children’s Act of

1975, as amended, U.S.C. § L401 Cb SO qie.ceeceeeeeeeecceeeceee passim

20 U.S.C. § 1401 ...... _.passim

Developmentally Disabled Assistance and Bill of

Rights Act of 1975, 42 U.S.C. § GOOL, et SOG. 15

42 U.S.C. § 6010 Pern Tem R ea ee Te ENE, 15

No. 84-888 and No. 84-899

ray

Vv

In The

Supreme Court of the United States

October Term of 1984

——() —

No. 84-888

DR. CHARLES McDANIEL, et al.,

Petitioners,

V.

GEORGIA ASSOCIATION OF RETARDED CITIZENS,

et al.,

Respondents.

ray ——

No. 84-899

THE BOARD OF PUBLIC EDUCATION FOR

THE CITY OF SAVANNAH AND THE

COUNTY OF CHATHAM, et al.,

Petitioners,

V.

GEORGIA ASSOCIATION OF RETARDED CITIZENS,

et al.,

Respondents.

ty

Vv

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

THE ELEVENTH CIRCUIT

fal

Vv

JURISDICTION

Respondents do not believe that any of the considera-

tions under Rule 17 of the Supreme Court have been met.

The cireuits are not in conflict concerning the consid-

eration of the duration of a child’s program under the

1

2

Education for All Handicapped Children’s Act. The See-

ond, Filth, Seventh and Eleventh Circuits all agree that

handicapped children under that act should be considered

for services beyond 180 days of school. Moreover, the

Kleventh Cireuit Court of Appeals in the instant ease has

correctly applied the rulings of this Court. Finally, the

limited relief minimizes the questions concerning the rule

of the judiciary and thus the magnitude of the federal

questions. This Court should deny the discretionary re-

view requested.

STATEMENT OF THE CASE

A. Factual Summary

The trial court fully described the nature of the in-

stant case in Georgia Association of Retarded Citizens v.

McDaniel, 511 F.Supp. 1263, 1265-1266 (N.D. Ga. 1981)

(hereinalter ‘‘GARC’’) and respondents adopt that state-

ment.

In summary, this class action addressed the arbitrary

denial of educational services of appropriate duration to

mentally retarded children. The petitioners seek review

of a decision that the Education of All Handicapped Chil-

dren’s Act of 1974, P.L. 94-142, 20 U.S.C. § 1401 et seq., as

amended (hereinafter ‘‘Act’’ or ‘‘EHA”’) requires the con-

sideration of the need for educational services in excess of

180 days a year during a review of the child’s ‘‘appropri-

ate education”.

The petitioners Board of Public Education for the

City of Savannah and County of Chatham, et al. (herein-

3

after ‘‘local defendants”) and Dr. Charles McDaniel and

the State Board of Education for Georgia' (hereinafter

‘*state defendants’’) neglected to summarize several as-

pects of the evidence and proceedings below in their peti-

tion. Thus an addition to their statements is necessary.

Prior to the September 1, 1978 enforcement date in

the EHA, Russell Caine and hundreds of members of the

Georgia Association for Retarded Citizens (hereinafter

‘* Association’’) had been absolutely denied access to pub-

lie school services. Some had received ‘‘training”’ in so-

cial service training centers or institutions. Others had

been provided no services at all. It is undisputed that due

to the known needs of retarded children, the duration of

the training programs which existed was for eleven and-a-

half months. GARC, 511 F.Supp. at 1267. Nevertheless,

it is also undisputed that the training programs were of

inferior quality and provided by uncertified teachers. Jd.

On March 3, 1978 Mr. and Mrs. Caine, the named

plaintiffs in the instant action, attended an ‘‘IEP’’ con-

ference concerning their son’s movement from a training

program into a public educational facility. At that time

the duration of the school program for all children was al-

ready planned and specifically limited to 180 school days.

At that time Russell, despite the requirements of the RHA

had not been evaluated by the local defendants. The dura-

tion of his IEP was set due only to the policy of restrict-

ing educational services to programs of 180 days for men-

tally retarded children. Jd. at 1268-69. The duration was

not based on his individual needs and it was not based on

any choice of educational theories.

\Two separate sets of defendants have filed petitions for

certiorari. These have been docketed as 84-888 and 84-899.

Respondents file this single brief in opposition.

4

The Caines appezled the placement decision in April,

1978 under the Act and also asserted jurisdiction under

Section 504. During the administrative process the local

defendants offered the testimony of executive administra-

tive officials of the State Department of Education. The

testimony demonstrated that they were aware that a child

could! require more than 180 days of services in order to

provide him/her with a ‘‘free appropriate public educa-

tion”. At the administrative stage they testified that they

had no policy on the 180-day issue. They further testified

that though they knew such services may be necessary,

they had provided no planning, no funding and taken no

steps to assure that such services were considered or pro-

vided handicapped children.

Later in the case these same state defendants indi-

cated that all children with needs for more than 180 days

could receive such educational services by being institu-

tionalized in state mental retardation facilities. This as-

sertion never addressed the dangers, harm or necessity

of such institutionalization. They also seemed to assume

that there could not be a group of mentally retarded chil-

dren who could adequately live in the community but

whose educational needs required services in the summer

months.

Still later in the litigation these same state defendants

altered their position to assert that they “permitted” local

boards to establish voluntary programs in excess of 180

days. Yet the trial court found as a fact and the circuit

court affirmed, that the state had denied children access

to even these programs. The testimony of the state offi-

cials over a three year period of time never established or

even suggested that the restrictive policy was due to an

5

‘‘educational” decision. The clash between their earlier

positions that they had no policies, their later position that

their policies permitted extended services programs and

their present position that they made an ‘‘educational de-

cision” which excludes extended duration programs is not

explained in the record, was not explained on appeal and

is not explained in the instant petition.

The evidence and findings also do not support the state

defendants’ scenario of « battle of educational theories.

The trial court weighed the credibility and demeanor of all

the witnesses. It rejected the testimony of local defendant

personnel that none of the children required more than

180 days. The state and local defendants presented a

‘*study” which they asserted showed that the children in

Chatham County did not need extended school services.

The probative value of the study was rejected by the trial

court because of its gross lack of validity and reliability.

GARC, 511 F.Supp. at 1274. The study simply did not ad-

dress the programs the children were actually receiving.

(TR. 2704-06; 2780).

Contrary to the assertion in the petition of the state

defendants, the principal expert witnesses for each side at

the trial agreed on the use of both behavorial and develop-

mental methods. (TR. 226; 2510). More vital to the in-

stant petition, Dr. Turner, the defendants’ principal ex-

pert, admitted that there is no foundation in educational

theory to the limitation found in the 180-day program.

(TR. 2717).

Also contrary to the assertion of the state defendants,

the plaintiffs criticized many aspects of the educational

services provided the children in Chatham County. (TR.

178-180; 815-816). Yet the focus of the case was that the

duration of the educational opportunities was insufficient

to permit any reasonable progress for many severely re-

tarded children. (E.g., PL. Ex. 20 at 44). Testimony of

witnesses uniformly agreed that individua! consideration

of minimal program needs includes services of a duration

in excess of 180 days. (TR. 164, 206, 3047-48).

The petitioners also each suggest that the Caine fam-

ily is the only one which has stepped forward to request

extended school year services. This again conflicts with

the testimony at trial. (TR. 346-349; 529-532). This sug-

gestion is also refuted by the numerous decisions of the

state defendants in administrative hearings rejecting par-

ents’ claims for school services in excess of 180 days.

At trial the plaintifis introduced evidence of decisions

of the state defendants in which factual findings had been

made that class members required more than 180 days of

services in order for them to receive their ‘*free appro-

priate public education”. Such services were denied due

to the state defendants’ position that irrespective of the

conclusions of the LEP process and of the administrative

fact finding that such services would not be provided.

GARC, 511 F.Supp. at 1270, n.5 and n.7. (See also, PL.

Ex. Nos. 37, 90, 91, 92, 93 and 94). This is further sup-

ported by affidavits submitted by class members in oppo-

sition to an earlier motion to vacate the trial court order.

Further, the petitioners implied that the existing cost

of their programs should limit their responsibility for

services of adequate duration. The evidence of record

indicates that resources were not an issue at the trial an’

that they were not a factor in limiting the available pro-

grams. The local defendants had large yearly budget sur-

pluses; the state defendants never utilized their entire al-

lotment under Title VI-B of the EHA. Counsel for local

defendants, while introducing cost estimates, expressly as-

serted to the court that it was not their position that they

were without sufficient resources to provide programs.

(TR. 1085). Moreover, the administrative decision in this

ease held that the available funding was not an issue or a

permissible criterion in determining the placement of a

child. (PL. Ex. 9 at 8-9). This ruling was never chal-

lenged by either party at the trial.

Finally, the defendants assert that the judgment

should be vacated as moot due to the actions of the named

individual plaintiffs. They do not analyze or explain that

the actions taken by the Caine family concerning their

move from Chatham County took place after the trial and

after the entry of judgment in this case. Contrary to the

assertions of the defendants, the trial record and nine af-

fidavits demonstrate that other families in the state have

been denied consideration for more than 180 days in the

IEP processes.

REASONS FOR DENYING THE PETITIONS

A. Summary of the Argument

1. The decision of the Eleventh Circuit that individual

consideration of children’s special education needs re-

quires a review of the duration of teaching opportu-

nities is consistent with the FHA and with an un-

broken line of decisions interpreting that Act. See,

20 U.S.C. §1401(19)(D). The holding is also consist-

8

ent with this Court’s opinion in Board of Education

of Hendrick Hudson Central School District v. Row-

ley, 458 U.S. 176, 102 S. Ct. 3034 (1982).

2. The entitlement to “appropriate educational” services

is specific under federal law. This obligation has

been voluntarily assumed by the State of Georgia

and therefore, a finding which clarifies the procedural

rights of children or construes the term “appropriate”

does not conflict with Pznnhurst State School v. Hal-

derman, 451 U.S. 1 (* 81).

3. The EHA is, in addition to a funding statute passed

under the spending clause, an act passed pursuant to

congress’ authority under Section 5 of the Fourteenth

Amendment. See, Smith v. Robinson, 468 U.S. —, 104

S. Ct. 3457 (1984). Thus the holding in Pennhurst

State School v. Halderman, 451 U.S. 1 (1981) is in-

apposite and Congress has authority to require that

an adequate duration of services be provided chil-

dren.

4. The moving of several class representatives from the

educational district of one set of defendants, occurring

after class certification and after final judgment, does

not by itself render moot the class claims against such

defendants. Moreover, other class representatives,

the class and the class representatives who moved their

home into an adjoining county maintain claims against

the state defendants.

5. A federal court’s determination under the EHA that

required due process procedures have been violated

and its return of the children to the administrative

decision-making process after enjoining the imper-

missible procedures, constituted a sufficient injury so

as to support the relief as against an attack based upon

Article IIT of the United States Constitution.

B. Argument

I,

Every Federal Court Reviewing the Special Ed-

ucation Requirements Has Held That School Serv-

ices On A Yearly Basis Must Be Considered. These

Holdings Are All Premised On The Requirement

Of Individual Consideration Under The EHA.

(a) The Circuits agree that individual needs re-

quire the consideration of a child’s duration of

educational services.

The holdings of the district court and the Eleventh

Cireuit Court of Appeals are consistent with an unbroken

chain of decisions concerning special education services.

Prior to this Court’s decision in Board of Education of

Hendrick Hudson Central School District v. Rowley, 458

U.S. 176, 102 S. Ct. 3034 (1982) (hereinafter “Rowley”),

courts had anticipated that ruling and its emphasis on the

procedural process and on the individual needs of stu-

dents. Courts permitted claims for schooling in excess

of 180 or invalidated policies which restricted the consider-

ation of these programs. These courts included: Battle

v. Pennsylvania, 629 F.2d 269 (3rd Cir. 1980), cert. denied,

452 U.S. 968 (1980); Anderson v. Thompson, 495 F.Supp.

1256, 1265 (E.D. Wis. 1980), aff’d on other grounds, 658

F.2d 1205 (7th Cir. 1981); Garrity v. Gallen, 522 F.Supp.

10

171, 240 (D. N.H. 1980); Lee v. Clark, No. 80-0918 (D.

Hawaii, Jan. 30 1981); Moore v. Roberts, No. LR-C-81-419

(E.D. Ark., July 24, 1981); and Hilden v. Evans, No. 80-

511-RE (D. Oregon, Nov. 5, 1980). See discussion, Yaris v.

Special Sch. Dist. of St. Louis County, 558 F.Supp. 545,

006-07 n.4 (E.D. Mo. 1983). Cf. Bales v. Clark, 523 F.

Supp. 1366 (E.D. Va. 1981).

The federal courts which have reviewed this issue

since Rowley all agree that a 180-day rule violates the

EHA. Crawford v. Pittman, 708 F.2d 1028 (Sth Cir.

1983); Yaris v. Special Sch. Dist. of St. Louis County, 558

F.Supp. 545 (E.D. Mo. 1983), aff’d 728 F.2d 1055 (8th Cir.

1984); and Phipps v. New Hanover County Bd. of Educa-

tion, 551 F.Supp. 732 (E.D. N.C. 1982). Other states, in

light of the litigation, have adopted flexible rules which

permit more than 180 days. See, e.g., Timms v. Metro

School Dist. of Wabash County, Ind., 722 F.2d 1310, 1316

n.2, 1317 n.3 (7th Cir. 1983).

This consistency urges against certiorari. The peti-

tioners have not cited a single case which holds that severe-

ly handicapped children should not have the duration of

their educational programs based upon their individual

needs. They have not shown any grounds under Rule 17

of this Court for granting this petition.

(b) The Court’s holding is a required construc-

tion of the EHA.

The state and !ocal defendants seem to assert that the

district court and the trial court exceeded its authority in

requiring that extended school year services be provided

some children under the EHA. Though they acknowledge

that the question is one of statutory construction, the ex-

11

plicit provisions of 20 U.S.C. § 1401(19) are not discussed.

That section, in pertinent part, provides:

Section 1401 Definitions as used in this chapter—

(16) The term ‘‘special education’? means specially

designed instruction . .. to meet the unique needs of a

handicapped child...

(18) The term ‘‘free appropriate public education”

means special education and related services which ...

(D) are provided in conformity with the individ-

ualized education program required under Section

1414(a)(5) of this Title.

(19) The term ‘‘individualized education program”’

means a written statement for each handicapped child

. Which statement shall include... (C) a state-

ment of the specific educational services to be pro-

vided to such child... (D) the projected date for ini-

tiation and anticipated duration of such services.

20 U.S.C. § 1401, Pub. L. 94-142, Section 4(a).

Thus the decisions below correctly require the consid-

eration of the initiation and duration of services. This is

required by the Act. It cannot be said that it is an expan-

sive reading of the Act for a trial court to order that

school districts procedurally adhere to this statutory pro-

Vision.

(c) The holding in this case does not conflict with

Rowley

In Rowley this court held that the federal courts may

review actions of educational agencies to assure that the

Act’s procedural requirements have been followed and that

the services provided the children are ‘‘individually de-

12

signed’’ and reasonably calculated to enable the child to

receive educational benefits. Rowley, 458 U.S. 176, 102 S.

Ct. 3034 at 3048, 3051. The trial court in this case relied

on this emphasis on the individual needs of students. It

cited Battle v. Pennsylvania, 629 F.2d 269 (3rd Cir. 1980),

cert denied, 452 U.S. 968 (1980) and held that the defend-

ants’ refusal to consider educational programs of more

than 180 days was a procedural violation under the Act.

The heart of its analysis was the following:

The IEP is the key to determining which services a

child needs and with what services he will be pro-

vided....

... {T]he IEP is designed to consider a child’s spe-

cific needs, including the development of reasonable

goals and objectives for the child... . [T]he function

of the IEP is to develop a plan of education appro-

priate to the particular needs of each handicapped

child ... [t]he Handicapped Act requires that full

consideration be given to the individual education

needs of each child in the development of a program

for that child.

GARC, 511 F.Supp. at 1277.

In essence, the holdings below reason that the duty to

provide appropriate programs to nandicapped children

may become more complex as their impairments increase.

As this Court recognized in Rowley, the Act provides a

methodology for making these determinations. It requires

that goals and criteria for evaluating the educational pro-

gram be placed in the child’s IEP. The proper develop-

ment of these goals and criteria are protected by the Act’s

extensive procedural requirements. If the goals are not

achieved or if the child’s condition regresses, then Rowley

13

teaches that prospective changes in the program may be-

came necessary as school officials search for an appro-

priate program for the next school year. See also, Battle

v. Pennsylvania, 629 F.2d 269, 276-277 n.9 (3rd Cir. 1980).

(ne option open to school committees under the Act must

be to analyze the duration of teaching opportunities avail-

able to children. The decision below held that this must

occur on an individual basis and that the inflexibility of

the 180-day rule violated these procedural requirements of

the INP process. The Eleventh Circuit as well as the

Third, Fifth, Seventh and Eighth Circuits all agree in

this analysis. The Circuit simply applied the rationale

of Rowley to difficult decisions concerning severely im-

paired children.

II.

The Act Creates A Clear Entitlement To Appro-

priate Educational Services. This Right Does Not

Abrogate The Holding In Pennhurst.

(a) The ‘‘Appropriate Education” is not an am-

biguous standard.

This Court has decided in Rowley that the EHA

creates enforceable rights. Rowley, 458 U.S. 176, 102 S.

Ct. 3034 at 3048-49. See, Irvington Independent School

District v. Tatro, 468 U.S. —, 104 S. Ct. 3371, 3377 (1984),

citing Rowley at 458 U.S. 176, 192 (1982); Smith v. Robin-

son, 468 U.S. —, 104 S. Ct. 3457, 3464 n.6 and 3470-71 n.17

(1984). In spite of these holdings the petitioners utilize

the ‘‘unambiguous”’ condition language in Pennhurst State

School v. Halderman, 451 U.S. 1 (1981) (hereinafter

‘‘Pennhurst’”’) to suggest that the Cireuit erred. This re-

liance is misplaced.

1+

It is clear from Rowley that the Act’s requirement

that the individual needs be determined by the IEP may

impose an obligation to provide services which are not spe-

cifically delineated in the legislation. In an effort to pro-

vide flexibility to educational committees not every service

which meets the mandate of ‘‘appropriate’’ or which is

found within the definition of ‘‘special education’’ or “ re-

lated services” is set forth in the Act. Thus, this Court in

Irvington Independent School District v. Tatro, 468 U.S.

—, 1048S. Ct. 3371 (1984) was able to order that catheriza-

tion services could be required under the EHA as a re-

lated service even though the Act itself does not list itasa

related service. In passing the EHA Congress created a

right but chose not to identily each type of service which

would be necessary. The focus was placed on the process

and the child’s progress. These requirements overcome

the ambiguity argument.

Further, the court in Pennhurst cites King v. Smith,

392 U.S. 309 (1968) as an example of Congress’ ability to

impose an explicit condition on funds. Pennhwrst, 401

U.S. 1 at 17-18. In King the issue was whether the defini-

tion of a ‘‘parent’’ which included the mother’s paramour

violated that funding statute. The Court held that the

term ‘‘parent” was unambiguous and that services the

state said they did not foresee could still be required based

on a construction of that term. In this case Congress pro-

vided more notice than in King through its use of the word

‘‘appropriate’’. Congress put the state on notice that this

term creates an entitlement to a range of services.

The record also demonsrates that the defendants un-

derstood that the term “appropriate” would include more

than 180 days of school. This was expressly stated during

15

the administrative hearing process by officials of the state

department. The state’s plan contains provisions for

IEPs of a year duration. Finally, it is undisputed that

day programs for severely emotionally disturbed children

in Georgia have been funded and provided in excess of 180

days.

(b) The petitions fail to analyze the impact of

Smith v. Robinson.

The state and local defendants, address their Penn-

hurst argument as if the EHA is only a funding statute.

They fail to analyze Smith v. Robinson, 468 U.S. —, 104

S. Ct. 3457 (1984).

In Pennhurst the Court held that Congress had not

intended to impose enforceable obligations on the state

through the adoption of 42 U.S.C. § 6010, the ‘‘bill of

rights” section of the Developmentally Disabled Assistance

and Bill of Rights Act of 1975, 42 U.S.C. §§ 6001-80. These

holdings were based on three related factors: (1) there

was no evidence that Congress intended to predicate the

receipt of federal money on compliance with 42 U.S.C.

§ 6010; (2) § 6010 was not enacted under Section 5 of the

Fourteenth Amendment; and (3) because 42 U.S.C. § 6010

was enacted under the Spending Clause of the Constitu-

tion, Congress had to impose any obligations on the grant

of monies under the Act unambiguously, and it had failed

to do so concerning that statute.

In the instant case, the petitioners do not question

that Congress intended receipt of federal funds to be con-

tingent on compliance with the Act. The question, in ap-

plying the Pennhurst rationale is whether the second and

third factors are met.

16

The second Pennhurst consideration is whether the

statute was enacted under Section 5 of the Fourteenth

Amendment. If it was, then Pennhurst is inapposite and

Congress would have the authority to impose obligations

on the states to cure recognized constitutional depriva-

tions.

In Smith v. Robinson this Court has held that the

KHA was enacted pursuant to Congress’ recognition of

the equal protection violations that abounded in educa-

tional programs for handicapped children. The EHA is

seen as a valid exercise of Congress’ spending power as

well as its power under the Fourteenth Amendment. That

Court stated:

The EHA was an attempt to relieve the fiscal burden

placed on states and localities by their responsibility

to provide education for all handicapped children.

20 U.S.C. §§ 1400(b)(a) and (9). At the same time,

however, Congress made clear that EHA is not simply

a funding statute. The responsibility for providing

the required education remains on the states. S. Rep.

No. 94-168, at 22. And the Act establishes an enforce-

able substantive right to a free and appropriate pub-

lic education.

Smith v. Robinson, 104 S. Ct. at 3464.

Thus, the Act derives its authority from a source

other than the spending clause. The analysis in Penn-

hurst is not applicable.

ITI.

The Plaintiff Class Presents A Live and Justici-

able Controversy.

(a) The case is not moot against the defendants.

After the entry of judgment one of the named class

representatives moved from the local defendants’ county.

17

This child is still of school age, is still mentally retarded

and still has a right to a free and appropriate publie edu-

cation. His individual claims against the state defend-

ants still exist. The trial court and the district court’s de-

terminations concerning the state defendants should not

be vacated as moot.

The mooting of his individual claims against the local

defendants after certification of the class and after judg-

ment does not render the action moot. United States Pa-

role Commission v. Geraghty, 445 U.S. 380 (1980). Fur-

ther, Russell Caine and the Association may still represent

class claims against the local defendants as they continue

to ‘‘fairly and adequately protect the interests of the

class.’’ Id. at 405, 406-407, quoting Sosna v. Iowa, 419 U.S.

393, 403 (1975). See, Califano v. Yamasaki, 442 U.S.

682 (1979).

The assertion that other class members have not ex-

hausted the administrative process is not dispositive of the

mootness issue. It is well settled in other areas that where

Congress created jurisdictional prerequisites to suit that

non-exhausting individuals may later maintain the action

and seek relief. See, Albermarle Paper Company v.

Moody, 422 U.S. 405 (1975); Romasanta v. United Air-

lines, Inc., 5387 F.2d 915 (7th Cir. 1976), aff'd sub nom,

United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977).

Other families (and class members) had their rights to

more than 180 days of services denied. In some instances

there had been fact findings in the administrative process

that the children’s individual needs required such services.

The trial court found these violations as ‘‘procedural”’.

Continued exhaustion of an allegedly unfair administra-

tive procedure would be futile or inadequate.

18

This Court in Smith v. Robinson, at 104 8. Ct. 3457,

3470-71 n.17 recognized the strong line of cases which per-

mit judicial review of EHA claims if it is alleged that the

administrative process was unfair or if exhaustion would

be futile or inadequate. The Smith Court cited Arm-

strong v. Klne, 476 F.Supp. 583, 601-602 (E.D. Pa. 1979)

aff'd and remanded on other grounds sub nom, Battle v.

Pennsylvania, 629 F.2d 269 (3rd Cir. 1980), cert denied,

452 U.S. 968 (1981) as being an example of these holdings.

That case presented a situation where severely handi-

capped children, without anyone exhausting the adminis-

trative process, attacked the procedural infirmities in the

IEP process which limited the consideration of the dura-

tion of their programs. Due to the inflexibility of the 180-

day policy they were permitted to proceed with their

claims.

The individual claims against the state defendants and

the class claims against both the state and local defend-

ants are alive and ure justiciable controversies. The judg-

ment should not be vacated as moot. The effect of doing

so would be to restore the invalid policy and remit the

class children to an administrative procedure which has

been found in violation of the Act.

(b) The Circuit affirmed relief to real litigants.

The petitioners also suggest that the trial court opin-

ion was advisory and should be vacated. To the contrary,

the relief afforded respondents was limited by the trial

court to minimize judicial intrusion into educational deci-

sions. Anticipating Rowley, the District Court found that

defendants had violated the procedural requirements of the

19

Act. It enjoined the impermissible policy and returned all

of the plaintiff children to the LEP process for reconsid-

eration of their needs. This relief was structured to make

as limited an intrusion on educational agencies as neces-

sary.

The adjudication of procedural violations is the es-

sence of Rowley. The integrity of the IEP decision-mak-

ing process is the foundation upon which all the other

rights granted children and their families under the EHA

rest. The trial court’s findings in this case show that the

impairment produced a legally cognizable injury, Baker v.

Carr, 369 U.S. 186, 208 (1962), and the relief went to the

heart of the children’s entitlement: a fair, unbiased in-

dividual education plan. See, Califano v. Yamasaki, 442

U.S. 682 (1979).

The injury found below was that both defendants in-

jected a policy which violated tne Act into the decision-

making process. The result was that no children were

provided the services and in the limited instances where

parents were aware of their rights and prevailed on the

merits, these holdings were overturned by the state. These

actions injured each of those individuals and the policy

was an injury to the class as a whole. The fact that the

trial court declined to order an affirmative injunction pro-

viding Russell Caine with extended school year services

does not make the judgment an advisory opinion.

°

20

CONCLUSION

Respondents strongly resist certiorari. The lower

courts are in agreement. The relief afforded plaintiffs

speaks of a careful and limited role of the trial court. The

courts below correctly analyzed the procedures used under

the EHA and found them wanting. They then returned

the plaintiff and the class members to the LEP process for

a review of their needs. Finally, the petitioners fail to

analyze the import of this Court’s determination that the

EHA was passed to secure children’s constitutional rights.

Respectfully submitted,

JowaTHan A. Zimrinoe

Suite 630

133 Carnegie Way

Atlanta, Georgia 30303

(404) 688-4000