Petition for Writ of Certiorari — Yaris v. Mallory
Supreme Court brief1986
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Supreme Court, U.S,
85-1850 / FILED
o.
14 1966
F. SPANMOL, JR.
CLERK
IN THE
Supreme Court of the Bnited States
OCTOBER TERM, 1985
ROBERT and MARY YARIS, on their own behalf and as next
friends ofp MICHAEL YARIS; STEPHEN and MARILYN STUBBS,
on their own behalf and as next friends ofp ADAM STUBBS;
and MISSOURI DEVELOPMENTAL DISABILITIES
PROTECTION AND ADVOCACY SERVICES.,
and on behalf of all those similarly situated,
Petitioners,
vs.
ARTHUR L. MALLORY, LEONARD W. HALL, DEPARTMENT
OF ELEMENTARY AND SECONDARY EDUCATION, and
STATE BOARD OF EDUCATION,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
MICHAEL J. HOARE
A PROFESSIONAL CORPORATION
314 North Broadway
St. Louis, Missouri 63102
314/241-7961
KENNETH M. CHACKES
Washington University
School of Law
Campus Box 1120
St. Louis, Missouri 63130
314/889-6419
Attorneys for Petitioners
Xe NS ee
abe
QUESTION PRESENTED FOR REVIEW
WHETHER PLAINTIFFS ARE ENTITLED TO AN
VARD OF ATTORNEYS' FEES AND EXPENSES AS
LEVAILING PARTIES UNDER THE REHABILITATION
>T ON A CLAIM THAT COULD NOT HAVE BEEN
TIGATED UNDER THE EDUCATION FOR ALL
A\NDICAPPED CHILDREN ACT.
ED ee Ce ee, a ee
-ji-
TABLE OF CONTENTS
Question Presented for Review .........-. i
Table of Contents ....c.ccccesvecevee ii
Table of Authorities ... 2... c cece sevee iv
Citation to Opinions Relow ........2++e+e-. 2
Jurisdictional Statement .......+e eee eee 2
Statute Involved .......+.6:-. See eeees 2
Statement of Case ..... 2. ee cece vvvee 3
Argument .... cece eecesee Toe oe 4)
Conelusion .....esccee-e senensesees 42
Appendix: Order of U.S. Court of Appeals
(January 13, 1986) ........-.. A-1
Nune Pro Tune, U.S. District
Coat Cheell 6, 1065)... ww wo ee A-11
-iii-
Order and Memorandum, U.S.
District Court (March 15, 1985). . A-12
Order and Memorandum, U.S.
District Court
(February 13, 1985)......... A-14
Order and Memorandum, U.S.
District Court
(December 28, 1984) ........ A-20
Order and Memorandum, U.S.
District Court (March 2, 1983)... A-48
——
«jy
TABLE OF AUTHORITIES
Statutes
Education for All Handicapped Children
Act, 20 U.S.C. §§1401 et seq. .... in passim
§504 of the Rehabilitation Act of 1973
20 US. FR 6 nese ee cane . in passim
§505 of the Rehabiliation Act of 1973
SO Wa. FIO 5 6 6 ee 6 6 ewe 2, 6
28 U.S.C. 91884... 2 see eee ee’ 2
aie Gey Fie 6 6 0. 4s ee Os eee 5
Cases Cited
Board of Education of Hendrick Hudson
Central School District v. Rowley,
__-US. __, 73 L.Ed.2d 690 (1982) .. 19
Irving Independent School District v. Tatro,
__-US. __, 104 S.Ct. 3371 (1984)... 4, 7
Jones v. Diamond, 636 F.2d 1364
(5th Cir. en bane 1981), cert. denied,
10? S.Ct. 27 (1982) ...... Teen oe 11
Northcross v. Board of Education,
611 F.2d 624 (6th Cir. 1979)... se- 11
Smith v. Robinson, _—'U«S. _s=é«
6 Ge Seer Tee +s ee eee RS 4, 7
_
Thornberry v. Delta Air Lines, Inc.
676 F.2d 1240 (9th Cir. 1982) ..... 11
Wheeler v. Durham City Board of
Education, 585 F.2d 618
(Qth Cle. 1078) on ccc asvecsees 11
Yaris v. Special School District of
St. Louis County, 558 F.Supp. 545
(B.D. Me. 1088) oc cc csvcccsess & & 10
-|- \
NO.
In The
SUPREME COURT OF THE UNITED STATES
October Term, 1985
ROBERT and MARY YARIS, on their own behalf and
as next friends of MICHAEL YARIS; STEPHEN and
MARILYN STUBBS, on their own behalf and as next
friends of ADAM STUBBS; and MISSOURI
DEVELOPMENTAL DISABILITIES PROTECTION AND
AYVOCACY SERVICES, INC., on behalf of all those
similarly situated,
Petitioners,
Vv.
ARTHUR L. MALLORY, LEONARD W. HALL,
DEPARTMENT OF ELEMENTARY AND SECONDARY
EDUCATION, and STATE BOARD OF EDUCATION,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
-2-
CITATION TO OPINIONS BELOW
The opinion of the Eighth Circuit Court of Appeals
entered on January 13, 1986 is not reported and is
printed in the Appendix.
The district court's Orders and Memoranda awarding
plaintiffs certain costs and denying attorneys' fees,
dated December 28, 1984, February 13, 1985, March 15,
1985, and April 18, 1985, and that court's decision on
the merits, dated March 2, 1983 and reported at 558
F.Supp. 545 (E.D. Mo. 1983), aff'd., 728 F.2d 1055 (8th
Cir. 1984), are printed in the Appendix.
JURISDICTIONAL STATEMENT
The judgment of the Eighth Circuit Court of Appeals
was entered on January 13, 1986, affirming the district
court's award of costs and denial of attorneys' fees.
The jurisdiction of this Court is invoked under 28 U.S.C.
§1254,
STATUTE INVOLVED
Section 505(b) of the Rehabilitation Act, 29 U.S.C.
§794a(b) provides:
In any action or proceeding to enforce
or charge a violation of a provision of this
subchapter, the court, in its discretion,
may allow the prevailing party, other than
the United States, a reasonable attorney's
fee as part of the costs.
«Qe
STATEMENT OF THE CASE
This is a class action lawsuit which established the
right of handicapped children in the State of Missouri
to attend summer school in order to receive a free
appropriate public education and to be free from
discrimination. The trial court found that the state
defendants, respondents herein, were violeting the
Education for All Handicapped Children Act, 20 U.S.C.
§§1401 et seq.; and §504 of the Rehabilitation Act of
1973, 29 U.S.C. §794. Yaris v. Special School District
of St. Louis County, 558 F.Supp. 545 (E.D. Mo. 1983),
aff'd., 728 F.2d 1055 (8th cir. 1984).
The trial court concluded with respect to the
Education for All Handicapped Children Act:
{T]he State of Missouri is denying the
plaintiff cless a "free appropriate
education" by failing to consider their
educational needs in excess of the 180 day
school year. 558 F.Supp. at 559.
The court then considered plaintiffs' separate
discrimination claim under the Rehabilitation Act and
stated:
It must be concluded from the plain
meaning of the statute that a _ state
educational system which is in receipt of
federal funds is in violation of the
Rehabilitation Act if the entity's practices
preclude the handicapped from obtaining
benefits realized by the non-handicapped
Whatever benefits non-handicapped
children realize when they attend summer
school in Missouri are not available to the
-4-
severely handicapped. By maintaining this
policy the State of Missouri has violated
the -enmemencianen Act on its face. Id. at
561.
Plaintiffs filed a petition for an award of attorneys’
fees and litigation expenses. Plaintiffs’ counsel sought
to recover fees for over 1,000 hours of attorney,
paralegal and intern time. Plaintiffs also sought
approximately $11,000.00 in costs and litigation
expenses.
Relying primarily on Smith v. Robinson, __ U.S.
__, 104 S.Ct. 3457 (1984) and Irving Independent School
District v. Tatro, _U.S. __,_ 104 S.Ct. 3371 (1984)
the district court denied plaintiffs’ request for
attorneys' fees. Order and Memorandum, December 28,
1984,
On January 7, 1985 plaintiffs filed a motion to alter
or amend that judgment, seeking (1) reconsideration of
the denial of attorneys' fees and (2) an award of
expenses. The district court on February 13, 1985
denied plaintiffs' motion with respect to attorneys' fees
but granted the motion in part by awarding certain
costs. Plaintiffs then submitted additional
IThe court also held that the state defendants were
violating the regulations promulgated pursuant to the
Rehabilitation Act that require a free appropriate public
education. Id.
-5-
documentation and sought reconsideration of a portion
of the costs award pursuant to Rule 60(b), F.R.Civ.P.
The court granted plaintiffs' motion and awarded
additional costs in an Order and Memorandum dated
March 15, 1985, amended Nune Pro Tunc on April 8,
1985.
On appeal, the Court of Appeals for the Eighth
Circuit affirmed the decisions of the district court.
«Zo
ARGUMENT
PLAINTIFFS ARE ENTITLED TO AN
AWARD OF ATTORNEYS' FEES AND
EXPENSES AS PREVAILING PARTIES
UNDER THE REHABILITATICN ACT ON
A CLAIM THAT COULD NOT HAVE BEEN
LITIGATED UNDER THE EDUCATION
FOR ALL HANDICAPPED CHILDREN
ACT
As prevailing parties under $504 of the Rehabilitation
Act, 29 U.S.C. $794, plaintiffs are entitled to an award
of reasonable attorneys' fees and the necessary expenses
of litigation. Plaintiffs obtained a judgment under $504
that the state defendants were violating the rights of
handicapped children throughout Missouri. Yaris v.
Special School District of St. Louis County, 558 F.Supp.
545, 561 (E.D. Mo. 1983). Section 505(b) of the
Rehabilitation Act, 29 U.S.C. §794a(b), expressly
provides for an award of attorneys’ fees to prevailing
parties in actions under $504.2
2Plaintiffs reserve their right to reassert their claims
for fees and expenses under the Education for All
Handicapped Children Act should the Act be amended
by Congress to make such claims viable. Proposed
legislation to that effect is pending in conference
committee. S.R. 415; HR 1523,
-7-
The lower courts denied plaintiffs recovery of
attorneys' fees by misapplying this Court's decisions in
Smith v. Robinson, _—-U.S. _, 104 S.Ct. 3457 (1984)
and Irving Independent School District v. Tatro,
U.S. _, 104 S.Ct. 3371 (1984). The conflict with those
decisions justifies review in this Court.
In Smith, this Court clearly recognizes that there
are $504 claims that are not covered by the Education
for All Handicapped Children Act (EHA) and for which
attorneys’ fees may be recovered. With regard to $504
the Court states:
We emphasize the narrowness of our
holding. We do not address a situation
where the EHA is not available or where
§504 guarantees substantive rights greater
than those available under the EHA. 104
S.Ct. at 3474.
Earlier in its discussion of $504 the Court addresses
the precise situation present here:
Of course, if a State provided services
beyond those required by the EHA, but
discriminatorily denied those services to a
handicapped child, $504 would remain
available to the child as an avenue of
relief. Id. at 3473 n. 22.
Throughout this litigation plaintiffs have asserted
two distinet theoretical bases for their claim that the
denial of summer school programming for handicapped
children was unlawful. In their claim covered hy the
-8-
EHA, plaintiffs asserted that individual handicapped
children were being deprived of a free appropriate public
education because of defendants' refusal to consider
their individual need for extended school year
programming. Secondly, in their §504, non-EHA claim
plaintiffs asserted that handicapped children were being
discriminatorily excluded from state-funded summer
school programs for non-handicapped children.
With respect to plaintiffs' §504 discrimination claim
the district court found:
Summer school is provided to children
in Missouri at the option of local school
districts. Some local school districts have
made summer programs available to
handicapped children. However, none of
these programs are available for those
children who have been designated as
"severely handicapped" under Missouri law
and who are enrolled in the state schools
for the severely handicapped. 558 F.Supp.
at 550.
After discussing the state's funding scheme with respect
to summer school the court concluded:
[T]he fiseal policies of the State of
Missouri allow for the provision of services
to the non-handicapped children during the
summer months and do not allow for the
provision of programming for the severely
handicapped. ... Therefore, although the
state defendants' policy toward summer
programming of children in Missouri is
perhaps neutral on its face, it has the
effect of providing services to non
handicapped children, which are denied to
-9-
the handicapped and severely handicapped.
558 F.Supp. at 550-51.
Based on those factual findings the court held:
It must be concluded from the plain
meaning of the statute that a state
educational system which is in receipt of
federal funds is in violation of the
Rehabilitation Act if the entity's practices
preclude the handicapped from obtaining
benefits realized by the non-handicapped.
. . - Whatever benefits non-handicapped
children realize when they attend summer
school in Missouri are not available to the
severely handicapped. By maintaining this
policy the State of Missouri has violated
the Rehabilitation Act on its face. 558
F.Supp. at 561.
That conclusion could not have been reached under
the EHA. In denying plaintiffs' claim for attorneys’
fees the trial court erred as a matter of law when it
stated: "The EHA was available to remedy plaintiffs’
allegation that the state defendants were >
discriminatorily denying services to handicapped children
that were being provided to non-handicapped children."
Memorandum, December 28, 1984, at 16 (emphasis in
original). The court failed to recognize the distinction
required by Smith.
In order to prevail on their free appropriate public
education theory plaintiffs had to show that defendants'
policies precluded individual consideration of need, and
that the denial of summer programming deprived
-10-
handicapped children of educational benefits. This Court
held in Board of Education v. Hendrick Hudson Central
School District v. Rowley, U.S. , 73 L.Ed.2d 690
(1982), that the appropriate education requirement
contains both a procedural mandate of _ individual
consideration, and a substantive standard of education
benefit. See, Yaris, 558 F.Supp. at 557-58.
In contrast, the facial violation of the Rehabilitation
Act was bused on the fact that the State was funding
summer programs in public schools for non-handicapped
children, but some handicapped children, and all severely
handicapped children attending state schools, were
excluded. 558 F.Supp. et 550-51. The court concluded:
"Whatever benefits non-handicapped children realize
when they attend summer school in Missouri are not
available to the severely handicapped." 558 F.Supp. at
561. That conclusion was not based on a finding that
the excluded children were deprived of an appropriate
education or denied educational benefits, but that they
were deprived of "[w] hatever benefits non-handicapped
children realize.” It was based simply on a complete
exclusion of handicapped children from a program or
activity solely because of their handicapping condition.
The same sort of violation could have been found if
defendants excluded handicapped children from summer
camps or park programs. Even if the trial court had
agreed with defendants' expert witnesses and found that
no handicapped children ever need summer school to
receive an appropriate education, plaintiffs still would
=}}-
have prevailed on their §504 discriminatory exclusion
elaim.®
Therefore, plaintiffs are entitled to an award of
attorneys' fees for all efforts expended in connection
with their successful Rehabilitation Act claim.
A holding by this Court that plaintiffs are entitled
to an award of attorneys' fees under §505 of the
Rehabilitation Act will require also a reversal for
reconsideration of the award of costs and expenses under
§505. Full recovery of the expenses of litigation is
appropriate in civil rights cases where Congress has
expressed its intent that prevailing plaintiffs and their
counsel should be fully compensated for their efforts.
See, Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir.
en bane 1981), cert. dismissed, 102 S.Ct. 27 (1982);
Northcross v. Board of Education, 611 F.2d 624, 639-
40 (6th Cir. 1979); Thornberry v. Delta Air Lines, Inc.,
3plaintiffs prevailed under the Rehabilitation Act in
two ways: under the statute "on its face," and under
the regulations pertaining to elementary and secondary
education. 558 F.Supp. at 560-61. The regulatory
violation was based upon the fact that defendants'
policies precluding individual consideration of each
handicapped child's need for summer _ school
programming violated the free appropriate public
education requirement of the regulations. 558 F.Supp.
at 561. This finding was equivalent to and based in
part upon the court's conclusions under the EHA. Id,
-12-
676 F.2d 1240, 1244-45 (9th Cir. 1982); Wheeler v.
Durham City Board of Education, 585 F.2d 618, 623-24
(4th Cir. 1978).
CONCLUSION
The Petition for a Writ of Certiorari should be
granted.
Respectfully submitted,
MICHAEL J. HOARE
A Professional Corporation
314 N. Broadway, Suite 1010
St. Louis, MO 63102
314/241-7961
Kenneth M. Chackes
Washington University School
of Law
Campus Box 1120
St. Louis, MO 63130
314/889-6419
Attorneys for Petitioners
APPENDIX
ainda.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No, 85-1316
Robert Yaris, and Mary on
their own behalf and as
next friends of Michael
Yaris, and on behalf of all
those similarly situated,
Stephen Stubbs, Marilyn
Stubbs, next of friend to
Adams Stubbs, and Missouri
Developmental Disabilities
Protection and Advocacy
Services, Inc.,
Appeal from the United
States District Court
for the Eastern
Appellants, District of Missouri
v.
Special School District of
St. Louis County,
Appellant,
Arthur L. Mallory, Leonard
W. Hall, Department of
Elementary and Secondary
Education, State Board of
Education,
* eeeneeeneneneeeneneneeeeeene eee eee HH
Appellees.
Submitted: October 17, 1985
Filed: January 13, 1986
a
Before ROSS, Circuit Judge, BRIGHT, Senior Circuit
Judge, and BOWMAN, circuit Judge.
PER CURIAM,
This appeal relates to a class action lawsuit brought
on behalf of handicapped children in the State of
Missouri.' In Yaris v. Special School District of St.
Louis County, 558 F. Supp. 545, 559-60 (E.D. Mo. 1983),
aff'd, 728 F.2d 1055 (8th Cir. 1984), the district court
determined that the State of Missouri's policy of
refusing to provide more than 180 calendar days (nine
months) of education per year for handicapped children
denied those children a "free appropriate education" in
violation of the Education for All Handicapped Children
Act, 20 U.S.C. §$1401 et seg., and that the maintenance
of such a policy also violated section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794. The
district court issued an injunction "prohibiting the
continued application of a policy which refuses to
consider the needs of the handicapped children for
extended programming [ ineluding summer
programming]." 558 F. Supp. at 564, The plaintiffs
1 The plaintiffs in the original action included Robert
and Mary Yaris, on their own behalf and as next friends
of their handicapped son Michael Yaris, and on behalf
of ali those similarly situated; Stephen and Marilyn
Stubbs, as next friends of their handicapped son Adam
Stubbs; and Missouri Developmental Disabilities
Protection and Advocacy Services, Inc.
ohn Fa
appealed on grounds that the district court's injunctive
relief was not specific enough, and that the district
court erred in finding no liability against defendant
Special School District of St. Louis County (Special
School District or SSD). We affirmed. 728 F.2d at 1057.
The district court retained jurisdiction over the
action to ensure compliance with its decision. . The
present proceedings arise from motions made by the
plaintiffs and the Special School District to obtain
additional funding from the State defendants? for
summer programs for handicapped children, and for
attorneys' fees and costs. The relief requests made to
the district court were as follows:
(1) That exceptional pupil aid under [ Mo.
Ann, Stat. §162.975 (Vernon Supp. 1985-
1986)] also be available for summer
programming, adjusted equitably on the
basis of the proportion of hours of
instruction in the summer program as
compared to the hours of instruction during
the regular school year. For example, if
a local school district is entitled to $10,000
per class during the regular school year of
1,980 hours, a local school district with a
class during the summer with 129 hours
2 The "State defendants" are the Department of
Elementary and Secondary Education, the State Board
of Education, Arthur L. Mallory (the Commissioner of
Education), and Leonard W. Hall (the Assistant
Commissioner for Special Education),
ai.
would be reimbursed on the basis of
120/1,980 X the $10,000 per class amount.
(2) That aid for contractual services be
provided on the same proportionate per
diem basis for summer programs as such
aid is provided for regular school programs.
(3) That the State not be permitted to
use discretionary P.L. 94-142 federal funds
to defray the total cost of its summer
programming to its severely handicapped
children, but rather, any such funds be
distributed directly to local schoo! districts
in the same manner as prior to the Yaris
decision, in which the State provided 85%
of its federal funds to local school
districts.
(4) That the foregoing state aid be
provided retroactive to the summer of
1983.
(5) For reasonable attorneys’ fees and
costs, and for such other and further relief
as this Court deems just and appropriate.
The district court? denied the additional funding
requests except for item (2), contractual services aid.
In addition, the district court awarded plaintiffs costs
in the amount of $3,747.64, but denied attorneys’ fees
to the plaintiff both for its successful injunction action
and its limited success relating to the funding order.
3 The Honorable John F. Nangle, Chief Judge, United
States District Court for the Eastern District of
Missouri.
a
The plaintiffs and the Special School District appeal
from the district court's denial of their various funding
requests, and the plaintiffs further appeal from the
denial of an award of attorneys’ fees.
The district court's rulings on funding may be
summarized as follows:
1. Exceptional Pupil Aid. The district court
observed that the parties disagree in the interpretation
to be given to provisions of Missouri law4 granting aid
for handicapped children. ‘The plaintiffs and the Special
School District contend that such aid is limited to the
regular school year, thus imposing a special financial
burden on local districts which provide programming for
handicapped children during the summer months. The
4The statute in question, Mo. Ann. Stat. §162.975
(Vernon Supp. 1985-1986), provides in pertinent part:
1. Each school district or special
school district maintaining one or more
approved special programs for handicapped
or severely handicapped children under the
provisions of sections 162.670 to 162.995
shall receive state aid at the rate of six
thousand dollars for each approved class
of children per term of one hundred eighty
days as provided by section 163.012 * * *.
The statute defines a "class" as "a group of not less
than ten children * * *." Mo, Ann. Stat. §162.975(6)
(Vernon supp. 1985-1986).
oo
is made in a lump sum, not limited to 180 days.
denying additional aid, the district court stated in part:
Because exceptional pupil aid is distributed
as a lump sum, however, the only
significant deterrent which results from
§162.975 is that a local district that
provides summer instruction may have to
stretch its lump sum over twelve (12)
months rather than nine (9) months.
Two additional reasons support this
Court's conclusion to refrain from altering
the State's exceptional pupil aid scheme.
The first is that two (2) summers have
passed since this Court issued its opinion
on the merits in this case, and no evidence
was presented that any handicapped child
identified as needing summer programming
has been denied summer programming by
a local district or by the State defendants.
In the absence of such evidence, the
efforts of plaintiffs and SSD herein must
be viewed as an attempt to "bootstrap”
from this Court that which they cannot
obtain from the Missouri Legislature.
The second reason is an amplification
of the first. The sensitive balance of
federal and state powers is_ seriously
implicated whenever a federal court
purports to regulate a_ state’s fiscal
decisions. Such an entanglement should
not be created except where clearly
necessary. In the absence of evidence that
the State's current fiscal scheme results
in the denial of summer school to any
handicapped child who needs it, there is
no clear necessity for this Court to tip
the balance of state and federal power as
_it relates to educational funding.
State defendants disagree and assert that the allocation
In
=
Accordingly, plaintiffs' and SSD's
request that this Court adjust the amount
of exceptional pupil aid provided under
§162.975 be and is denied. (Footnote
omitted).
2. Contractual Services Aid. The district court
ordered the State defendants to provide contractual
services aid to local districts for summer programming
on the same basis as such aid is provided local districts
for the regular year subject to the limit of $800 per
year as specified in Mo. Rev. Stat. §162.980 (1978) (as
amended). The plaintiffs and the Special School District
have made no objection to this part of the district
court's funding order.
3. Discretionary Pub. L. No. 94-142 Funds. The
plaintiffs and the Special School District sought an order
requiring the State defendants to increase its allocation
of discretionary Pub. L. No. 94-142 funds to local school
districts. The district court in denying this claim stated:
The third item requested by plaintiffs
and SSD is that this Court order the State
defendants to provide 85% of its
discretionary P.L. 94-142 funds to local
districts. The factual basis for this request
is summarized in %5 of the stipulation, as
follows:
5. Federal regulations require the
State to distribute 75 percent of
P.L. 94-142 federal funds to local
educational agencies; up to 5
percent may be used _ for
administrative purposes; the
remaining 20 percent are
~A-8-
discretionary funds. During FY 83
$19,001,680 was distributed to local
educational agencies through the
P.L. 94-142 entitlement formula.
This represented 85 percent of the
total P.L. 94-142 funds included in
the FY 83 grant award. The FY
84 budget amount for local agency
entitlement is $19,398,400. This
represents 81 percent of the total
P.L. 94-142 funds included in the
FY 84 grant award,
Stipulation at 3. There are several reasons
why plaintiffs' and SSD's third request
must be denied.
First, if this Court were to order the
State defendants to give 85% of their P.L.
94-142 funds to local districts, this Court
would be obviating federal regulations
which require the State to distribute only
75% of said funds to local districts. By
giving 81% to local districts in 1984, the
State gave 6% more than it was required
to give. The portion labeled
"discretionary" would no. longer’ be
discretionary if this Court granted the
request at issue.
Second, although in 1984 the State
reduced the percentage of P.L. 94-142
funds that it distributed to local districts
from 85% to 81%, the total amount
distributed actually increased significantly.
Third, the State's use of P.L. 94-142
funds is more like exceptional pupil aid
for purposes of analyzing the request of
plaintiffs and SSD. The State does not
make any arbitrary distinction between the
regular year and summer school with
respect to P.L. 94-142 funds and there is
no persuasive evidence that the State’s
-\-9«
handling of P.L. 94-142 funds results in
local districts refusing to consider the
needs of handicapped children for summer
school.
Finally, part of plaintiffs' and SSD's
objection to the State's use of P.L. 94-
142 funds stems from the fact that
subsequent to this Court's decision on the
merits, the State began using a portion of
discretionary P.L. 94-142 funds to finance
its own summer programming for severely
handicapped children. However, plaintiffs'
and SSD's objection is without merit. Not
only did this Court's decision not preclude
the State from providing summer
programming on its own, but this Court
expressly anticipated such an occurrence:
[I] t is the conelusion of this court
that it is the responsibility of the
state educational agencies either to
make sure that local agencies
provide adequate’ services to
handicapped children, or to provide
these services.
cial School District of St. Louis
re)
{3837 emphasis added) (citations omitted).
Accordingly, the third request of
plaintiffs and SSD is denied.
4, Retroactive Funding Order. The court denied
any retroactive application of its award of contractual
services aid stating that "retroactivity is not warranted
in this case * * *,"
-A-10-
5. Attorneys' Fees, Finally, the district court
denied the award of attorneys' fees to plaintiffs' counsel
on grounds that all relief obtained by plaintiffs was
available under the Education For All Handicapped
Children Act, 20 U.S.C. §§1401 et seq., and as such no
attorneys' fees could be awarded because relief might
also lie under the Rehabilitation Act of 1973, 29 U.S.C.
§794. The district court concluded that this result was
compelled by the Supreme Court decision in Irving
Independent School District v. Tatro, 104 S.Ct. 3371
(1984), and Smith v. Robinson, 104 S.Ct. 3457 (1984).
We have carefully considered the contentions of the
parties. Finding no error of fact or law, we affirm on
the well reasoned decisions of the district court
contained in its unpublished memorandum of December
28, 1984, and its subsequent unpublished memorandum
of February 13, 1985. See 8th Cir. R. 14.
A true copy
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT
-A-i1-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT and MARY
YARIS, et al.,
Plaintiffs,
Vv. No. 81-423-C(1)
SPECIAL SCHOOL
DISTRICT OF ST. LOUIS
COUNTY, et aL,
ee ee ee ee ee ee ee ee ee ee ee ee”
Defendants.
NUNC PRO TUNC
IT IS HEREBY ORDERED that the motion of the
State defendants and the Special School District of St.
Louis County to alter or amend this Court's Order and
Memorandum of March 15, 1985, be and is granted.
Said Order and Memorandum is amended and the State
defendants are taxed with plaintiffs' costs in the amount
of $4,861.00, representing plaintiffs' expert witness fees
only. When this amount is added to the costs taxed
previously on February 13, 1985, in the amount of
$3,747.64, the total cost award comes to $8,606.64.
S/S John F. Nangle
UNITED STATES DISTRICT JUDGE
Dated: April 8, 1985
-A-12-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT and MARY ee
YARIS, et al., )
Plaintiffs,
Vv. No. 81-423-C(1)
SPECIAL SCHOOL
DISTRICT OF ST. LOUIS
COUNTY, et aL,
i i i
Defendants.
ORDER AND MEMORANDUM
IT IS HEREBY ORDERED that plaintiffs' motion to
reconsider this Court's order taxing costs be and is
granted. On February 13, 1985, this Court taxed
defendants with plaintiffs' costs in the amount of
$3,747.64. This Court denied plaintiffs' application to
tax defendants with plaintiffs' expert witness fees and
expenses in the amount of $6,274.75. The ground of
said denial was the absence of sufficient documentation
and itemization of said fees and expenses. Plaintiffs
have now provided this Court with the appropriate
supporting documentation. This Court holds that the
expert witness fees and expenses incurred by plaintiffs
were crucial or indispensible to presentation of their
case. Paschall v. Kansas City Star Co., 695 F.2d 322, |
338-39 (8th Cir. 1982). Accordingly, in addition to the |
$3,747.64 in costs taxed to defendants on February 13,
-A-13-
1985, defendants are also taxed with plaintiffs' costs
in the amount of $6,274.75, representing plaintiffs'
expert: witness fees and expenses.
S/S John F. mangle
Dated: March 15, 1985
“eo
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT and MARY
YARIS, et al.,
Plaintiffs,
v. No. 81-423-C(1)
SPECIAL SCHOOL
DISTRICT OF ST. LOUIS
COUNTY, et al.,
ee ee ee ee ee ee ee ee ee ee ee ee”
Defendants.
ORDER
Pursuant to the Memorandum filed herein this day,
IT IS HEREBY ORDERED that plaintiffs' motion to
alter or amend judgment entered December 28, 1984,
be and is granted in part and denied in part. It is
denied with respect to plaintiffs' attorneys' fees, but
granted with respect to costs. The State defendants
be and are taxed with plaintiffs’ costs in the amount
of $3,747.64.
IT IS FURTHER ORDERED that the State
defendants' motion to amend order be and is granted
and the state defendants need not provide contractual
services aid in excess of the statutory maximum amount
in Mo.Rev.Stat. §162.980 (1978 as amended).
S/S John F. Nangle
UNITED STATES DISTRICT JUDGE
Dated: February 13, 1985
-A-15-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
» EASTERN DIVISION
ROBERT and MARY
YARIS, et al.,
Plaintiffs,
v. No. 81-423-C(1)
SPECIAL SCHOOL
DISTRICT OF ST. LOUIS
COUNTY, et al,
ee ee ee ee ee ee ee ee ee ee”
Defendants.
MUMORANDUM
This case is now before this Court on two (2) separate
motions, both of which seek to amend or modify this
Court's Order and Memorandum dated December 28,
1984. First, plaintiffs move to alter or amend said
Order to: 1) award plaintiffs their costs and expenses
incurred in connection with this lawsuit; and 2) award
plaintiffs reasonable attorney's fees. Second, the State
defendants move to amend said Order to provide that
the yearly maximum for contractual services aid is
$800.00 per student in accordance with §162.980
Mo.Rev.Stat.
This Court agrees with plaintiffs that they are
entitled, as the prevailing party in this litigation, to an
award of costs under Rule 54(d) and 28 U.S.C. §1920.
The matter of costs was overlooked previously because
-A-16-
the parties gave the matter de minimus attention in
their briefs and because plaintiffs did not file a formal
bill of costs under 28 U.S.C. §1920. The matter of
plaintiffs' costs will now be considered herein.
Plaintiffs' total costs were $10,947.67. This total
includes the following categories: 1) depositions; 2)
transcripts; 3) experts; 4) expenses of plaintiffs' counsel;
5) copying; 6) court costs; 7) postage; 8) long distance
telephone calls; and 9) miscellaneous. The State
defendants do not seriously object to $3,747.64 of
plaintiffs' requested costs. The State defendants do
object to: 1) $421.20 for certain depositions taken by
plaintiffs; 2) $4,861.00 for expert witness fees; 3)
$822.75 for plaintiffs' counsel's expenses; 4) $462.60 for
copying; 5) $77.65 for postage; 6) $504.58 for long
distance telephone calls; and 7) $50.25 for miscellaneous
items, Because the State defendants do not object to
$3,747.64 of the requested costs, said amount is awarded
to plaintiffs and is taxed against the State defendants.
The State defendants' objection to the amount of
$421.20 for the depositions of Huskie, Holley, Williams,
Nickels and Tucker is sustained because plaintiffs did
not demonstrate to the satisfaction of this Court that
said depositions were reasonably necessary to the
prosecution of plaintiffs' case against the State
defendants. Although this Court has discretion to award
costs, including experts' fees, not specifically
enumerated in 28 U.S.C. §1821, it is the exceptional
case where such will be permitted. Paschail v. Kansas
-A-17-
City Star Co., 695 F.2d 322, 338-39 (8th Cir. 1982). In
the case at bar, plaintiffs' experts were arguably crucial
or indispensable to their case, as required by Paschall,
but plaintiffs merely provided this Court with the name
of the expert and the amount sought. Absent from the
record is the rate of compensation or the precise
services, i.e., consultation or testimony, for which
compensation is sought. This Court cannot engage in
any meaningful evaulation of the reasonableness of the
amount sought on this record and therefore plaintiffs'
experts' fees are not awarded. The State defendants'
objection to the costs of copying is sustained for a
similar reason, namely that the amount sought is not
documented or itemized in such a way that this Court
can meaningfully evaluate plaintiffs' request. The State
defendants' objections to the remaining items are
sustained because said items are not taxable as costs.
See Wolf v. Wolfe, 570 F.Supp. 826, 828-29 (D. S.C.
1983) (expenses of attorneys, postage, long distance
telephone calls and costs of legal research not taxable);
Roche v. City of Normandy, 566 F.Supp. 37, 42 (E.D.
Mo. 1983) (expenses of attorneys and expenses for
serving subpoena not taxable); United States v. Bexar
County, 89 F.R.D. 391, 394 n. 5 (W.D. Tex. 1981) (travel
expenses of attorneys not taxable). Accordingly, the
State defendants are taxed with plaintiffs' costs in the
amount of $3,747.64.
The second component of plaintiffs' motion to amend
was expressly rejected by this court's December 28,
-A-18-
1984, Order and Memorandum, This Court believes that
said Memorandum adequately addressed plaintiffs’
arguments and this court knows of no reason why it
should be amended. Accordingly, the second component
of plaintiffs’ motion to amend is denied.
The State defendants’ motion to amend relates to
that portion of the December 28, 1984, Order and
Memorandum which directed the State defendents to
provide contractual services aid to local districts for
summer programming on the same basis as they do for
the regular year. In so ordering, this Court relied
heavily on the following stipulation approved by all
parties, including the State defendants:
State aid for contracted services,
reimbursed during the regular school year
at $22.40 per student per day for approved
programs, is not available for summer
program contracted services.
Stipulation at 10. Now, the State defendants argue
that Mo.Rev.Stat. §162.980 (1978 as amended), places
an $800.00 annual limit on such aid. Section 162.980
provides, as follows:
Each schoo! district or special district shall
receive up to $800 per year for each
homebound child, child receiving special
services outside the special class, or child
served by contractual arrangement with a
private or public agency.
Mo.Rev.State. $162.980 (1978 as amended).
-A-19-
The State defendants’ motion to amend is granted
and this Court's December 22, 1984 Order and
Memorandum is amended to make it clear that the State
of Missouri is not required to provide contractual
services aid in excess of the $809.00 statutory maximum.
This does not really constitute an amendment because
this Court's prior Order merely reGuired the State
defendants to provide contractual services aid during
the summer "on the same basis as they do during the
regular year." The State defendants have admitted that,
if the $800.00 statutory maximum is not met during
the regular year, then the amount remaining shall be
available for summer programming. Although the
statutory maximum wes not brought to this Court's
attention earlier, this Court's prior Order did not, and
was not intended to, override any such legitimate limit
on aid.
S/S John F. Nangle
UNITED STATES DISTRICT JUDGE
Dated: February 13, 1985
~A-20-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT and MARY
YARIS, et al.,
Plaintiffs,
No. 81-423-C(1)
<
.
ee ee ee ee ee
ORDER
Pursuant to the Memorandum filed herein this day,
Ir & HEREBY ORDERED that the petition of
plaintiffs and defendant Special School District of St.
Louis County be and is denied in part and granted in
part. Said petition is denied in all respects, except
contractual services aid. With respect to contractual
services aid, the State of Missouri and its agents shall
provide contractual services aid to local districts
educating handicapped children for summer progamming
on the same basis as they do during the regular year.
If summer programming consists of less than full-time
classes, then the aid may be adjusted proportionately,
such as by using hours rather than days for purposes of
the calculation in the summer. To prevent the State
of Missouri and its agents from evading the purpose of
-A-21-
this relief, it may not reduce the contractual services
aid reimbursement rate of $22.40 per student per day
between this date and December 31, 1986, except by
leave of Court.
Tr i FURTHER ORDERED that plaintiffs' petition
for an award of attorney's fees be and is denied.
S/S John F. neni
Dated: December 28, 1984
-A-22-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT and MARY
YARIS, et al.,
Plaintiffs,
No. 81-423-C(1)
<
.
ee ee et ee ee ee ee
MEMORANDUM
This case is once again before this Court on the
petition of plaintiffs and defendant Special School
District of St. Louis County (hereinafter SSD) for a
funding order.! In addition, plaintiffs’ application for
an award of attorney's fees is presently before this
Court.
1/Originally, plaintiffs’ petition also included a motion
to hold the state defendants in contempt. Said motion
raised various non-monetary issues regarding the conduct
of the state defendants subsequent to this Court's
decision on the merits of this case. See Yaris v. Special
School District of St. Louis County, 5! -supp. 545
(E.D. Mo. 1983). However, as a result of the parties'
continuing negotiations plaintiffs moved to withdraw the
nommonetary portions of their contempt motion.
Because this Court previously granted said motio to
withdraw, the only remaining aspect of plaintiffs’
-A-23-
L PETITION FOR A FUNDING ORDER
The parties have eliminated many of the evidentiary
deficiencies noted by this Court in the Order and
Memorandum dated April 19, 1984. This has been
achieved by filing a joint "Stipulation" and seperate
supplemental memoranda. Perhaps the most useful part
of this new material is the enumeration by plaintiffs
and the SSD of five (5) specific types of relief that
they seek from this Court. Plaintiffs and the SSD seek
an order directing the State of Missouri to provide the
following relief:
(1) That exceptional pupil aid under
§162.975 also be available for summer
programming, adjusted equitably on the
basis of the proportion of hours of
instruction in the summer program as
compared to the hours of instruction during
the regular school year. For example, if
a local school district is entitled to $10,000
per class during the regular school year of
1,080 hours, a local school district with a
class during the summer with 120 hours
would be reimbursed on the basis of
120/1,080 X the $19,009 per class amount.
(2) That aid for contractual services be
provided on the same proportionate per
diem basis for summer programs as such
aid is provided for regular school programs.
(3) That the State not be permitted to
use discretionary P.L. 94-142 federal funds
to defray the total cost of its summer
programming to its severely handicapped
children, but rather, any such funds be
(cont.)
petition is their request for a funding order.
oe
distributed directly to local school districts
in the same manner as prior to the Yaris
decision, in which the State provided 85%
of its federai funds to local school
districts.
(4) That the foregoing State aid be
provided retroactive to the summer of
1983.
(5) For reasonable attorneys' fees and
costs, and for such other and further relief
as this Court deems just and appropriate.
Supplemental Memorandum Of Plaintiffs And The
Special School District Of St. Louis County In Support
of Petition For Funding Order at 13-14. In the opinion
of this Court, the above five (5)}-point request is an
appropriate basis for analyzing the need for a funding
order in this case. A brief outline of the current
educational fiscal structure in the State of Missouri will
be helpful in such analysis.
During the regular nine (9)-month school year, local
districts are eligible for State aid for both handicapped
and norn-handicapped students under the foundation
formula, Mo.Rev.Stat. §§163.011, 163.031 (1978 as
amended), and under provisions for transportation
reimbursement, Mo.Rev.Stat. §163.161 (1978 as
amended). The foundation formula calculates State aid
on the basis of the number of students in attendance
and the number of days classes are held on a full-time
basis. Adjustments are made to include part-time
~A-25-
students and summer school students in the calculation
of the "average daily attendance" figure.
Handicapped children are treated differently, fiscally
speaking, than non-handicapped childen during both the
regular and summer terms. During the summer term
handicappd children are eligible for foundation formula
aid so long as the summer session consists of a minimum
of sixty (60) clock hours. 5 CSR 50-340.050(1). Summer
programs for non-handicapped children are required to
have a minimum of one hundred twenty (120) clock
hours to be eligible for foundation formula aid. Id.
Also, during the summer term handicapped children are
eligible for transportation aid, whereas non-handicapped
children are not. 5 CSR 50-340.050(7). During the
regular school year handicapped children in _ local
districts receive exceptional pupil aid, Mo.Rev.Stat.
§162.975 (1978), and aid for contractual services,
Mo.Rev.Stat. §162.980 (1978). Non-handicapped
children, on the other hand, receive neither type of aid.
A. EXCEPTIONAL PUPIL AID
The first item, exceptional pupil aid under
Mo.Rev.State. §162.975 (1978), is the most difficult one
to analyze. Section 162.975 provides, in pertinent part,
as follows:
-A-26-
i. Each school district or special school
district maintaining one or more approved
special programs for handicapped or
severely handicapped childen under the
provisions of sections 162.670 to 162.995
shall receive state aid at the rate of six
thousand dollars for each approved class
of children per term of one hundred eighty
days as provided by section 168.071, oO,
except that approved classes for the
educable mentally retarded shail be funded
at four thousand five hundred dollars per
approved class, and approved classes of
remedial reading shall be funded at three
thousand five hundred dollars per approved
class. The rates of reimbursement for
approved classes in this subsection shall
be adjusted annually by the same percent
that the appropriation of state funds for
the school foundation program is changed
from the previous year.
(emphasis added), The statute defines a "class" as a
"group of not less than ten children. ..." Mo.Rev.Stat.
§162.975(6) (1978). In the opinion dated March 2, 1983,
this Court commented on §162.975, as follows:
{S]tate aid for the education of the
handicapped, in tne form of funds provided
by class, staff members and staff aid, is
limited to a "term of one hundred eighty
days" by Missouri State law. Mo.Rev.Stat.
§162.975.
Yaris v. Special School District of St. Louis County,
558 F.Supp. 545, 550 (E.D. Mo. 1983) (emphasis added),
Plaintiffs and defendant SSD also interpret §162.975 as
"limiting" exceptional pupil aid to a term of one hundred
eighty (180) days and argue that the "unavailability" of
exceptional pupil aid during the summer months has the
-A-27-
effect of discouraging local districts from providing
summer programs. This Court previously agreed with
this argument, as follows:
[1]}n the event a local district wishes to
provide handicapped children with
education beyond the traditional 180 days,
the local agency must bear the additional
cost. The responsibility for this financial
burden may very well deter a local district
from considering the needs of handicapped
childen for school in excess of 180 days.
Therefore, although the state defendants'
policy toward summer programming of
children in Missouri is perhaps neutral on
its face, it has the effect of providing
services to non-handicapped children,
which are denied to the handicapped and
severely handicapped.
Id, at 550-51.
The State defendants, however, argue that
"[p] etitioners' criticism is meaningless in the context
of the statute.” State Defendants' Supplemental
Memorandum In Opposition To Petitions For Funding
Order at 5. The basis of their argument is that, unlike
foundation formula aid which is calculated by the
number of students and days of attendance, exceptional
pupil aid is a lump sum. The State defendants interpret
the language, "per term of one hundred eighty days,”
Mo.Rev.Stat. §162.975 (1978), as merely a "minimum
number of days a school district must have in their
regular school calendar in order to qualify for state
aid." Id. In addition, the State defendants argue that
§162.975 does not deter local districts from considering
-A-28-
the needs of handicapped children for school in excess
of 180 days, because "[n] othing prevents a local district
from allocating its resources so as to utilize a
percentage of the exceptional pupil aid it receives for
summer school." Id. at 6.
This Court is persuaded by the arguments of the
State defendants. To criticize §162.975 as "limiting"
exceptional pupil aid to one hundred eighty (180) days
is somewhat meaningless because of the manner in which
the aid is distributed. A lump sum for each elass of
ten (10) children is far different from aid distributed
on the basis of a formula that utilizes the total number
of students and the total number of days or hours that
they are in attendance. A true "limit" would exist if
instructional time beyond one hundred eighty (180) days
were not compensable or could not be included in the
calculation. The one hundred eighty (180) day figure
in §162.975 is not a true "limit" on the amount of aid
available because time is simply not a variable in the
calculation. Indeed, the amount of aid available is not
subject to variation at all. In addition, the State
defendants' reading of the one hundred eighty (180) day
term as a minimum standard is reasonable and is also
buttressed by the statute's reference to §163.021. That
section is entitled "Eligibility for state aid
-- requirements," and it sets out a host of minimum
standards that must be met to be eligible for any state
educational aid. Mo.Rev.Stat. §163.021 (1978 as
amended). Finally, this Court is also persuaded that
~A-29-
any deterrence which results from the way §162.975 is
structured is not. significant enough to warrant
interference with the state's fiscal decisions. A
significant deterrent would exist if foundation formula
aid were limited to one hundred eighty (180) days. In
that situation, the State would be treating summer
school different from the regular school year for
handicapped children and the local districts would be
receiving aid during the regular year that they wouldn't
receive during the summer. Because exceptional pupil
aid is distributed as a lump sum, however, the only
significant deterrent which results from §162.975 is that
a local district that provides summer instruction may
have to stretch its lump sum over twelve (12) months
rather than nine (9) months.
Focusing on this latter type of detterence also
suggests an important reason why the request of
plaintiffs and SSD must be denied. At the trial on the
merits in this case, this Court did not try or purport
to decide what amount of aid is necessary to provide
an adequate education for handicapped children.
Implicit in plaintiffs' and SSD's request that this Court
proportionately increase the amount of exceptional pupil
aid to account for summer school hours is the premise
that the current lump sum is the amount needed to
provide an adequate education for only nine (9) months.
For example, in their brief plaintiffs and SSD assert
that the fact that the State provides exceptional pupil
aid and contractual services during the regular school
-A-30-
year evidences "the Missouri Legislature's
acknowledgement that such additional aid is needed in
order to provide handicapped children the same basic
level of educational opportunity as non-handicapped
children." Supplemental Memorandum Of Plaintiffs And
The Special School District Of St. Louis County In
Support Of Petitions For Funding Order at 4. While
the fact that exceptional pupil aid exists may "evicence"
said "acknowledgement" on the part of the State, it by
no means establishes any given lump sum as the
minimum amount of aid needed to provide handicapped
children with an adequate education. Indeed, the lump
sum provided as exceptional pupil aid has fluctuated
over the past few years. In 1977 the amount was
$6,000.00 for each class and in 1984 the amount is
approximately $10,000.00 for each class. Because this
Court did not try or decide what minimum level of
State spending is required to comply with federal law,
this Court lacks the power to prevent the State from
reducing this amount to $9,900.00 or $8,000.00 in 1985.
It follows that the relief requested by plaintiffs and
SSD would ultimately prove ineffectual — even if this
Court were to order the State to provide exceptional
pupil aid in an amount that would be for summer school
only, by proportionately increasing the lump sum based
on the number of summer school hours, nothing would
prevent the State from reducing the regular year lump
sum to regulate the twelve (12) month total exceptional
pupil aid. In addition, the request by plaintiffs and SSD
injects a time variable into the distribution of
-A-31-
exceptional pupil aid. However, neither plaintiffs nor
SSD have directed this Court's attention to any authority
that requires the State to allocate its educational dollars
on the basis of hours or days.
Two additional reasons support this Court's
conclusion to refrain from altering the State's
exceptional pupil aid scheme. The first is that two (2)
summers have passed since this Court issued its opinion
on the merits in this case, and no evidence was presented
that any handicapped child identified as needing summer
programming has been denied summer programming by
a local district or by the State defendants.2 In the
absence of such evidence, the efforts of plaintiffs and
SSD herein must be viewed as an attempt to "bootstrap"
from this Court that which they cannot obtain from
the Missouri Legislature.
The second reason is an amplication of the first.
The sensitive balance of federal and state powers is
seriously implicated whenever a federal court purports
to regulate a_ state's fiscal decisions. Such an
2/In fact, a footnote in one of plaintiffs' memoranda
concerning attorney's fees indicates that the two (2)
primary handicapped children plaintiffs in this case,
Michael Yaris and Adam Stubbs, received summer school
programming at public expense in 1983 and 1984.
Plaintiffs' Reply Memorandum Regarding Attorneys’
Fees And Expenses at 2 n. 1.
-A-32-
entanglement should not be created except where clearly
necessary. In the absence of evidence that the State's
current fiscal scheme results in the denial of summer
school to any handicapped child who needs it, there is
no clear necessity for this Court to tip the balance of
state and federal power as it relates to educational
funding.
Accordingly, plaintiffs' and SSD's request that this
Court adjust the amount of exceptional pupil aid
provided under §162.975 be and is denied.
B. CONTRACTUAL SERVICES AID
The second item requested by plaintiffs and SSD is
that so-called "contractual services aid" be available
during the summer on the same basis that it is available
during the regular school year. Contractual services
aid is markedly different from exceptional pupil aid.
Paragraph 21 of the stipulation filed herein states, as
follows:
State aid for contracted services,
reimbursed during the regular school year
at $22.40 per student per day for approved
programs, is not available for summer
program contracted services.
Stipulation at 19. Thus, contractual services aid differs
from exceptional pupil aid in that the former is
distributed as a given amount per unit of time and the
time component is limited to the nine (9)-month
academic year, whereas neither is true of exceptional
pupil aid,
-A-33-
The State defendants have not suggested any rational
basis for distinguishing between summer school and the
regular term for purposes of distributing contractual
services aid. Because it is so limited, it is likely to
produce a significant deterrent to local districts who
must provide summer school to handicapped children
who need extended programming. By making this
distinction the State defendants have not met their
"responsibility . . . to make sure that local agencies
provide adequate services to handicapped children, .. ."
Yaris v. Special School District of St. Louis County,
558 F.Supp. 545, 560 (E.D. Mo. 1983). Unlike exceptional
pupil aid, there is a clear necessity to order the State
defendants to make contractual services aid availability
to local districts for summer programming.
Accordingly, the State defendants shall be ordered
to provide contractual services aid to local districts for
summer programming on the same basis as they do for
the regular year. If summer programming consists of
less than full-time classes, then the aid may be adjusted
proportionately, such as by using hours rather than days
for purposes of the calculation in the summer. To
prevent the State from evading the purpose of this
relief, it may not reduce the reimbursement rate of
$22.40 per student per day between now and Necember
31, 1986, except by leave of Court.
vie Mies
C. DISCRETIONARY P.L. 94-142 FUNDS
The third item requested by plaintiffs and SSD is
that this Court order the State defendants to provide
85% of its discretionary P.L. 94-142 funds to local
districts. The factual basis for this request is
summarized in 45 of the stipulation, as follows:
5. Federal regulations require the State to distribute
75 percent of P.L. 94-142 federal funds to local
educational agencies; up to 5 percent may be used
for administrative purposes; the remaining 20 percent
are discretionary funds. During FY 83 $19,001,680
was distributed to local educational agencies through
the P.L. 94-142 entitlement formula. This
represented 85 percent of the total P.L. 94-142 funds
included in the FY 83 grant award. The FY 84
budget amount for local agency entitlement is
$19,398,400. This represents 81 percent of the total
P.L. 94-142 funds included in the FY 84 grant award.
Stipulation at 3. There are several reasons why
plaintiffs' and SSD's third request must be denied.
First, if this Court were to order the State
defendants to give 85% of their P.L. 94-142 funds to
local districts, this Court would be obviating federal
regulations which require the State to distribute only
75% of said funds to local districts. By giving 81% to
local districts in 1984, the State gave 6% more than it
was required to give. The portion labeled "discretionary"
-A-35-
would no longer be discretionary if this Court granted
the request at issue.
Second, although in 1984 the State reduced the
percentage of P.L. 94-142 funds that it distributed to
local districts from 85% to 81%, the total amount
distributed actually increased significantly.
Third, the State's use of P.L. 94-142 funds is more
like exceptional pupil aid for purposes of analyzing the
request of plaintiffs and SSD. The State does not make
any arbitrary distinction between the regular year and
summer school with respect to P.L. 94-142 funds and
there is no persuasive evidence that the State's handling
of P.L. 94-142 funds results in local districts refusing
to consider the needs of handicapped children for
summer school.
Finally, part of plaintiffs’ and SSD's objection to
the State's use of P.L. 94-142 funds stems from the
fact that subsequent to this Court's decision on the
merits, the State began using a portion of discretionary
P.L. 94-142 funds to finance its own summer
programming for severely handicapped children.
However, plaintiffs’ and SSD's objection is without
merit. Not only did this Court's decision not preclude
the State from providing summer programming on its
own, but this Court expressly anticipated such an
occurrence:
%-
[I]t is the conelusion of this Court that
it is the responsibility of the state
educational agencies either to make sure
that local agencies provide adequate
services to handicapped children, or to
provide these services.
Yaris v. Special School District of St. Louis County,
558 F.Supp. 545, 560 (E.D. Mo. 1983) (emphasis added)
(citations omitted).
Accordingly, the third request of plaintiffs and SSD
is denied.
D. RETROACTIVE FUNDING ORDER
The fourth request of plaintiffs and SSD is that any
funding order issued by this Court be retroactive to the
summer of 1983. In the opinion of this Court
retroactivity is not warranted in this case and therefore
the fourth item is denied.
E, ATTORNEY'S FEES AND COSTS
The final item is the request of plaintiffs and SSD
for an award of attorney's fees and costs incurred in
connection with their request for a funding order. As
explained more fully infra, plaintiffs' counsel is not
entitled to an award of attorney's fees for his work on
the case in chief due to the Supreme Court's recent
decisions in Smith v. Robinson, US. __, 104 S.Ct.
3457 (1984), and Irving Independent School District v.
Tatro, US. _, 104 S.Ct. 3371 (1984). The essence
of these decisions is that the Rehabilitation Act of
-A-37-
1973, as amended, 29 U.S.C. §794, "is inapplicable when
relief is available under the Education of the
Handicapped Act [EHA] to remedy a denial of
educational services." Tatro, US. at, 104 S.ct.
at 3379. With respect io the only relief granted herein
to plaintiffs and SSD as a result of their petition for
a funding order, i.e., contractual services aid, the basis
of said relief is the EHA and not the Rehabilitation
Act. Moreover, the evidence submitted in the
stipulation convinces this Court that the State of
Missouri is not discriminating against handicapped
children in favor of non-handicapped children with
respect to summer school funding by State or Federal
dollars. See Stipulation 411. The State's allocation
of contractual services aid violates the EHA because it
deters local districts from considering the needs of
handicapped children for summer programming. Because
a funding order with respect to contractual services aid
"is available under the Education of the Handicapped
Act," the Rehabilitation Act is “inapplicable” and
attorney's fees are not recoverable. Tatro, U.S. at __,
104 S.Ct. at 3379.
I. ATTORNEY'S FEES
In February of 1984, the Eighth Circuit, in a per
curiam opinion, affirmed this Court's judgment in the
case at bar. Shortly thereafter, plaintiffs filed their
petition for an award of attorney's fees. This Court
held a hearing on said petition in late Spring of 1984.
Post-hearing brief, including plaintiffs’ reply, were filed
-A-38-
by July 6, 1984. However, on July 5, 1984 the Supreme
Court handed down two decisions which impact heavily
on plaintiffs' petition for attorney's fees: Smith v.
Robinson, U.S. __, 104 S.Ct 3457 (1984); Irving
Independent School District v. Tatro, Game ts ty
104 S.Ct. 3371 (1984). The parties have addressed the
significance of these two (2) cases in letters to this
Court. It is the opinion of this Court that Smith and
Tatro prevent plaintiffs from recovering attorney's fees
in the case at bar.
In Smith, the parents of a child suffering from
cerebral palsy contested a school district's refusal to
fund the child's placement in a special education
program. The parents challenged the constitutionality
of the procedure utilized to make the school district's
decision and the substance of that decision. Their suit
in Federal District Court sought declaratory and
injunctive relief based on state law; the Education of
the Handicapped Act (EHA), 20 U.S.C. 11401, et seq.;
7504 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. 9794; and 42 U.S.C. 41983. The District
Court declared that the procedure violated federal due
process requirements and that, as a matter of state
law, defendants were obligated to pay for the child's
education. Although the District Court did not decide
plaintiffs' federal statutory and constitutional claims
relating to his substantive challenge, it awarded
attorney's fees to plaintiffs under 42 U.S.C. 91988 and
9505 of the Rehabilitation Act of 1973, as amended,
~A-39-
29 U.S.C. 9795, because the unaddressed federal claims
were substantial and nonfrivolous. On plaintiffs' appeal
from the Court of Appeals’ reversal of the attorney's
fees award, the Supreme Court held that plaintiffs were
not entitled to fees under either §1988 or $595, because
the relief obtained by plaintiffs was available under the
EHA,
The Supreme Court in Smith reasoned that Congress
intended the EHA to be the exclusive avenue for
litigating a handicapped child's right to a free
appropriate public education. Smith, US. at,
104 S.Ct. at 3468. The Court further reasoned that by
creating a comprehensive remedial scheme in the EHA,
which did not include a right to attorneys’ fees, Congress
did not intend for litigants to circumvent that scheme
by bringing EHA claims together with analogous §1983
and Rehabilitation Act claims and then claiming
attorneys' fees under the latter two (2) statutes. Id.
at 3469, 3472. With respect to the Smith plaintiffs’
equal protection claim under $1983, the Court
concluded:
that where the EHA is available to a
handicapped child asserting a right to a
free appropriate public education, based
either on the EHA or on the Equal
Protection Clause of the Fourteenth
Amendment, the EHA is the exclusive
avenue through which the child and his
parents or guardian can pursue their claim.
Id. at 3470.
-A-40-
With respect to the Rehabilitation Act claim, the
Court employed a similar, but different, analysis. id.
at 34772. The Court noted that although the
Rehabilitation Act and the EHA are different
substantive statutes, both statutes, "as applied to the
right of a handicapped child to a public education, have
been interpreted to be strikingly similar." Id. However,
the Court stated that "[t]he significant difference
between the two, as applied to special education claims,
is that the substantive and procedural rights assumed
to be guaranteed by both statutes are specifically
required only by the EHA." Id. (emphasis added). From
this specificity, the Court concluded that "Congress did
not intend a handicapped child to be able to circumvent
the requirements or supplement the remedies of the
EHA by resort to the general antidiscrimination
provision of §504." Id. at 3473. The Court summarized
its holding, as follows:
[W]here, as here, whatever remedy might
be provided under §504 is provided with
more clarity and precision under the EHA,
a plaintiff may not circumvent or enlarge
on the remedies available under the EHA
by resort to §504.
Id, at 3474. In Smith, because the relief obtained by
the plaintiffs was available under the EHA and, thus,
§504 was not available as an alternative basis for said
relief, the plaintiffs were not entitled to attorneys' fees
under §505 of the Rehabilitation Act. Id.
e=
ho
-A-41-
In Tatro, the companion case to Smith, a handicapped
child was being educated at public expense by
defendants. However, defendants did not make provision
for school personnel to administer a procedure to
plaintiff, which she required to avoid injury to her
kidneys, known as "clean intermittent catheterization"
(CIC), The plaintiff brought suit in federal District
Court alleging that defendants' refusal to provide CIC
services violated the EHA and §504 of the Rehabilitation
Act. The District Court held that defendants' refusal
violated both statutes and awarded attorney's fees under
§505 of the Rehabilitation Act. On appeal, the Supreme
Court applied Smith and reversed the award of
attorneys' fees, as follows:
We hold today, in Smith v. Robinson, . .
-, that $504 is inapplicable when relief is
available under the Education of the
Handicapped Act to remedy a denial of
educational services. Respondents are
therefore not entitled to relief under §504,
and we reverse the Court of Appeals'
holding that respondents are entitled to
recover attorney's fees.
Tatro, US. at, 104 S.Ct. at 3379.
In the case at bar, plaintiffs initially relied on the
EHA, the Rehabilitation Act, $1983 (the Equal
Protection and Due Process Clauses of the Fourteenth
Amendment), and Missouri constitutional and statutory
provisions. Yaris, 558 F.Supp. 545, 546 (E.D. Mo. 1983).
This Court granted injunctive relief to plaintiffs under
the EHA and the Rehabilitation Act, but declined to
et
pass on plaintiffs' other asserted bases for relief. Id.
at 563. This Court held that the state defendants'
policy of limiting education for handicapped children to
nine (9) months violated both the EHA and the
Rehabilitation Act and _ granted declaratory and
injunctive relief. Id. at 564. Plaintiffs seek an award
of attorney's fees under 42 U.S.C. §1988 on the basis
of their unaddressed constitutional claims and under 29
U.S.C. §795 on the basis of their successful
Rehabilitation Act claim.
Even though this Court did not pass on plaintiffs’
Equal Protection and Due Process claims, pre-Smith
decisions in the Eighth Circuit support an award of
attorney's fees. In Monahan v. State of Nebraska, 687
F.2d 1164 (8th Cir. 1982), cert. denied, 460 U.S. 1012
(1983), the Court of Appeals stated:
It does not matter that the constitutional,
or §1983, ground was not actually reached,
and that the complainant prevailed, to the
extent that he did at all, on his [EHA]
ground. Where a non-fee claim is joined
with a normfrivolous claim under a statute
providing for the award of fees, and the
plaintiff prevails with respect to his non-
fee claim, thus making it unnecessary to
reach the §1983 claim, an award of fees
is nevertheless appropriate.
Id. at 1172. See also, Robert M. v. Benton, 671 F.2d
1104 (8th Cir. 1982). However, as the Eighth Circuit
recently ackowledged, the validity of Monahan and
Benton has been undermined by Smith with respect to
Equal Protection claims where relief is available under
-~A-43-
the EHA. See Rose v. State of Nebraska, Nos. 83-2678
et al., slip op. at 12 (8th Cir. November 26, 1984).
Smith held that "Congress intended the EHA to be the
exclusive avenue through which a plaintiff may assert
an equal protection claim to a publicly financed special
education." Smith, U.S. at _, 104 S.Ct. at 3468.
With respect to Due Process claims, on the other hand,
the Smith Court declined to decide "whether the
procedural safeguards set out in the EHA manifest
Congress' intent to preclude resort to §1983 on a due
process challenge ...." Id. at, 104 S.Ct. at 3470.
Emith disposed of the right to attorney's fees for the
Due Process claim therein by holding that the "due
process claim and the substantive claim on which
petitioners ultimately prevailed involved entirely
separate legal theories and, more important, would have
warranted entirely different relief." Id. at —, 104
S.Ct. at 3471. The Eighth Circuit recently interpreted
dicta in Smith to conclude that a successful EHA
plaintiff can recover attorney's fees where: 1) a
substantial, but unaddressed, Due Process claim was
asserted; and 2) the facts and theory of the Due Process
claim were the same as those of the EHA claim. Rose
v. State of Nebraska, Nos. 83-2678 et al., slip op. at
12-14 (8th Cir. November 26, 1984). The plaintiffs in
Rose, as in Monahan and Benton, challenged the
impartiality of the EHA hearing process and sought a
second hearing for themselves.
-A-44-
In the opinion of this Court, however, neither Rose
nor Monahan and Benton entitle plaintiffs herein to
attorney's fees on the basis of their Due Process claim.
Unlike Rose, this was not a case "where plaintiffs ...
had to resort to judicial relief to force the agencies to
provide them the process they were constitutionally
due." Smith, U.S. at __, : 104 S.Ct. at 3471 n. 17.
Plaintiffs herein did allege that the SSD should have
paid for the costs of a copy of the record and transcript
of the panel level hearing for review by the State Board
of Education, but that claim was far from being the
same as plaintiffs' EHA claim. Plaintiffs' EHA claim
was that the nine (9}month policy deprived them of a
free appropriate education and discriminated against
them. While this claim could arguably be characterized
as an Equal Protection claim, it is not a substantial
Due Process claim. Unlike a "due process challenge to
state procedures," a nominal Due Process challenge to
state substantive criteria is clearly “inconsistent with
the EHA's comprehensive scheme." Smith, U.S. at
__, 104 S.Ct. 3471 n. 17. Accordingly, plaintiffs’
constitutional claims do not entitle them to an award
of attorney's fees under 42 U.S.C. §1988.
Turning to plaintiffs' right to an award of fees under
the Rehabilitation Act, it is the opinion of this Court
that because the relief obtained by plaintiffs was
available under the EHA, Smith and Tatro render $504
of the Rehabilitation Act inapplicable and, thus,
plaintiffs are not entitled to attorney's fees. Plaintiffs
-A-45-
argue that two passages in Smith warrant a contrary
result. The first passage was, as follows:
We emphasize the narrowness of our
holding. We do not address a situation
where the EHA is not available or where
§504 guarantees substantive rights greater
than those available under the EHA.
Smith, U.S. at _—_,_-104 S.Ct. at 3474, This
passage, however, does not support plaintiffs' argument.
The EHA was available to remedy plaintiffs' allegation
that the state defendants were discriminatorily denying
services to handicapped children that were being
provided to non-handicapped children. Indeed, this
Court's opinion expressly held that said discrimination
violated the EHA. Yaris, 558 F.Supp. at 559. Moreover,
the Rehabilitation Act did not guarantee substantive
rights "greater" than those available under the EHA.
Here, the discriminatory actions of the state defendants
violated both the EHA and the Rehabilitation Act, but
plaintiffs would have obtained exactly the same relief
if the Rehabilitation Act claim had not been made. It
is precisely this type of remedial overlap that triggers
application of the Smith rule in cases concerning the
educational rights of handicapped children. Plaintiffs
argue that under the Rehabilitation Act they asserted
"substantive rights greater than those available under
the EHA," because under the EHA they challenged the
nine (9) month policv whereas under the Rehabilitation
Act they challenged the State's discriminatory funding
policy. However, there is no meaningful distinction
~A-46-
between these two claims because the funding policy
was merely a manifestation of the nine (9) month policy.
The second passage that plaintiffs rely on was, as
follows:
Of course, if a state provided services
beyond those required by the EHA, but
discriminatorily denied those services to a
handicapped child, $504 would remain
available to the child as an avenue of
relief.
Smith, US. _—s in. 22, 104 S.Ct. at 3473 n. 22.
This passage also does not support plaintiffs’ position.
The allegations and findings in this case were that the
state defendants were not meeting their EHA obligations
and that said default also violated the Rehabilitation
Act. This case is clearly not the type of situation,
contrary to plaintiffs’ argument, countenanced by
footnote 22 in Smith.
This Court is mindful of the hardship imposed on
plaintiffs’ counsel as a result of Smith and Tatro. Said
counsel is a highly skilled practitioner and reasonably
expended over one thousand (1000) hours in litigating
this action. The result achieved provided and will
provide substantial benefits to plaintiffs and other
similarly situated handicapped children. Nevertheless,
it is the intention of Congress, as construed by the
Supreme Court in Smith and Tatro, that said efforts
not be compensated monetarily. Such a result may
seem harsh, and perhaps illogical, but Congress struck
~A-47-
the balance between encouraging private enforcement
of the educational rights of handicapped children and
ensuring that dollars earmarked for education actually
are spent on education rather than attorney's fees in
favor of the latter. Accordingly, plaintiffs’ petition for
an award of attorney's fees be and is denied.
S/S John F., Nangie
UNITED STATES DISTRICT JUDGE
Dated: December 28, 1984
~A-48-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT and MARY
YARIS, et al.,
Plaintiffs,
v. No. 81-423-C(2)
SPECIAL SCHOOL
DISTRICT OF ST. LOUIS
COUNTY, et al.,
ee ee ee ee
Defendants.
ORDER
Pursuant to the memorandum filed herein this day,
IT IS HEREBY ORDERED, ADJUDGED and
DECREED that plaintiffs shall have judgment against
defendant Special School District on Count I of the first
amended complaint in the amount of $388.70.
It IS FURTHER ORDERED, ADJUDGED and
DECREED that plaintiffs' class shall have judgment
against the state defendants on Count II of the First
amended complaint.
IT IS FURTHER ORDERED that a hearing shall be
held on the question of attorneys fees.
S/S John F. Nangle
United States District Judge
Dated: March 3, 1983
~A-49-
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT and MARY
YARIS, et al.,
Plaintiffs,
v. No. 81-423-C(2)
SPECIAL SCHOOL
DISTRICT OF ST. LOUIS
COUNTY, et al.,
ee i
Defendants.
MEMORANDUM
This is a class action lawsuit to redress alleged
deprivation of rights under the Education For All
Handicapped Children Act, 20 U.S.C. §§1401 et seq.;
Section 504 of the Rehabilitation Act of 1973, as
amended, 79 U.S.C. $794; 42 U.S.C. §1983, the Equal
Protection and Due Process Clauses of the Fourteenth
Amendment; the Missouri Constitution, and Mo. Rev.
Stat. $$162.670 et seq.! This court's jurisdiction is
IThe gravemen of the complaint is found in Count
Il in which the class of handicapped children and their
parents contest a policy and practice of refusing to
provide or consider providing educational services for
handicapped children in excess of 9 months a year. In
Count I, plaintiffs Robert and Mary Yaris bring an
individual action on their own behalf, and on behalf of
their minor son, against the Special School District for
“690.
invoked pursuant to 20 U.S.C. §1415(e), 28 U.S.C. §1331,
and 28 U.S.C. §1343. The named plaintiffs instituted
this suit to secure declaratory and injunctive relief
against the continued application of the defendants’
policy, which precludes the provision of educational
programs for handicapped children in excess of the
traditional 9 month school year. Furthermore, plaintiffs
seek a mandatory injunction compelling defendants to
make available to the named plaintiffs an educational
program that extends beyond 9 months. Plaintiffs allege
that defendants have a policy against considering or
providing handicapped children with educational services
beyond the regular 9 month term, and therefore
defendants are not meeting their obligations under
applicable federal and state statutes.
This case was tried to the court sitting without a
jury. The court having considered the pleadings, the
testimony of the witnesses, the documents in evidence,
and the stipulations of the parties, and being fully
advised in the premises, hereby makes the following
(cont.)
failing to provide their son with an appropriate
education. The plaintiffs allege the defendant is in
violation of the Rehabilitation Act, 29 U.S.C. §794, 42
U.S.C. 51983, and Missouri State law due to its failure
to implement any educational program for Michael Yaris
in a timely manner, and due to its failure to pay for
some of the costs incurred by the Yarises in the
administrative proceedings; in the latter count the
plaintiffs seek injunctive, declaratory, and monetary
relief.
-A-51-
findings of fact and conclusions of law, as required by
Rule 52 of the Federal Rules of Civil Procedure.
FINDINGS OF FACT
1. Plaintiff Micheel Yaris, born February 26, 1971,
is a handicapped child who resides with his parents,
plaintiffs Robert and Mary Yaris in University City, St.
Louis County, Missouri. Robert and Mary Yaris have
been authorized in this litigation to serve as next friends
of their son Michael.
2. Plaintiff Adams Stubbs, born December 9, 1974,
is a handicapped child, who resides with his parents,
plaintiffs Stephen and Marilyn Stubbs, in Independence,
Missouri. Stephen and Marilyn Stubbs have been
authorized in this litigation to serve as next friends of
their son Adam.
3. Plaintiff Missouri Development Disabilities and
Advocacy Services, Inc. (hereinafter "Missouri P&A") is
a not-for-profit corporation having its principal place
of business in Jefferson Citv, Missouri. Pursuant to
the Developmental Disabilities Act, 42 U.S.C. §$§6601,
et seq., Missouri P&A is the agency within the State
of Missouri charged with the responsibility of advocating
for the rights, including educational rights, of persons
in the State of Missouri who are developmentally
disabled. Funding for Missouri P&A is provided by the
Developmental Disabilities Office of the United States
Department of Health and Human Services.
-A-52-
4. Defendant Special School District of St. Louis
County (hereinafter "SSD") is a body corporate and
political subdivision of the State of Missouri and may
be sued in its own name. This defendant, among other |
things, operates schools for the education of the
handicapped throughout St. Louis County, Missouri. Said
defendant is a recipient of federal financial assistance,
including assistance under the Education For All
Handicapped Children Act of 1975, 20 U.S.C. §§1401,
et seq., (P.L. 94-142).
5. Defendant Department of Elementary and
Secondary Education (hereinafter "DESE") is a
department of the executive branch of the State of
Missouri. DESE is responsible under the Education For
All Handicapped Children Act of 1975, 20 U.S.C. §§1401,
et seq., for ensuring that all handicapped children in
Missouri receive a free and appropriate public education.
As part of that responsibility, -DESE supervises all local
school districts and other state agencies in their
provision of a free and appropriate public education to
Missouri handicapped children. DESE also is responsible
for establishing procedural safeguards to assure that
such an education is provided. The duties of DESE
include supervision over the distribution of state and
federal funds to local school districts for use in the
education of handicapped children. DESE is responsible
under Missouri law for assuring that all handicapped
children within the State of Missouri are provided access
to special educational services. DESE is a recipient of
-A-53-
federal financial assistance for the education of
handicapped children; the department receives funds
under the Education For All Handicapped Children Act
of 1975; 20 U.S.C. §§1401, et seq.
6. Defendant State Board of Education was created
by the Missouri Constitution, Article 9, Section 2(a).
The Board is required to carry out the educational
policies of the State of Missouri relating to public
schools that are provided by law and to supervise
instruction in the public schools.
7. Defendant Arthur L. Mallory’ is the
Commissioner of Education of the State of Missouri, a
position established by the Missouri Constitution.
Defendant Mallory is the chief administrative officer
of the State Board of Education and has supervisory
authority over the DESE.
8. Defendant Leonard W. Hall is the Assistant
Commissioner for the Division of Special Education of
the DESE. Dr. Hall's duties and responsibilities include
supervision of the operation of all state schools for
handicapped children and the monitoring of all special
education programs operated by local school districts
to assure compliance with federal and state laws
pertaining to education for the handicapped.
9. By order of this court dated December 30, 1982,
the named plaintiffs in this action, the Yarises, the
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Stubbs, and the Missouri P&A, were authorized to
proceed against the state defendants, Arthur L. Mallory,
Leonard W. Hall, State Board of Education and DESE,
as representatives of a class defined as follows:
All handicapped school-aged persons in the
State of Missouri who require or may
require or benefit from an educational
program in excess of the traditional nine-
- month school year and with no extended
break in programming, and the parents or
guardians of such persons.
In addition, the Yaris plaintiffs and Missouri P&A also
were authorized to proceed against. defendant SSD as
representatives of a sub-class defined as follows:
All handicapped school-aged persons which
defendant Special School District of St.
Louis County is obligated to serve who
require or may require an educational
program in excess of the traditional nine-
month school year and with no extended
break in programming, and the parents or
guardians of such persons.
Prior to trial, the parties entered into a joint stipulation
respecting class certification which allowed for the
alteration or amendment of the class "before the
decision on the merits if it appears to the court from
the evidence adduced at the hearing on the merits that
the class described herein is too broad and should be
more narrowly defined." In the order of December 30,
1982 this court authorized the certification of the class
herein described, concluding that the definition of the
class is not too broad because the determination of the
content of a handicapped child's educational program
~A-55-
must be made on an individual basis by school officials
and parents.
10. State records indicate that there are
approximately 126,000 handicapped children in Missouri,
95,000 of which are provided public special educational
services. Of those 95,000 handicapped children,
approximately 78,000 children are educated by their
local school districts, approximately 14,000 are educated
by special school districts, and approximately 3,000 are
educated directly by the State.
11. The DESE classifies handicapped children by
handicapping condition. The approximate number of
children in each classification is set out below:
a) Blind - 300
b) Partial Seeing - 900
c) Deaf - 800
d) Hard of Hearing - 2,400
e) Speech Impaired - 39,000
f) Educable Mentally Retarded - 25,000
g) Trainable Mentally Retarded - 3,000
h) Profoundly Mentally Retarded - 1,100
i) Behavior Disordered - 8,400
j) Learning Disabled - 44,000
k) Orthopedically Handicapped - 1,800
1) Other Health Impaired - 3,900
m) Cerebal Palsy - 700.
-A-56-
12. Handicapped children in the State of Missouri
may be provided public special educational services by
any one of the following agencies:
a) State of Missouri:
(1) DESE: 55 state schools for severely
handicapped; Missouri School for the Deaf;
and Missouri School for the Blind.
(2) Department of Mental Health.
(3) Division of Youth Services: children
incarcerated under the supervision of the
juvenile courts,
(4) Division of Corrections: children
incarcerated under the adult criminal code.
b) Local school districts.
ce) Special School districts.
d) Private agencies under contract with public
agencies,
13. Other than those children served by the Division
of Youth Services and Corrections as a result of their
incarceration, handicapped children provided educational
services directly by the State of Missouri have been
classified as "severely handicapped" pursuant to Mo.
Rev. Stat. §162.675(3). The statute defines "severely
handicapped children" as follows: "children under the
age of twenty-one years who, because of the extent of
the handicapping condition or conditions, as determined
by competent professional evaluation are unable to
benefit from or meaningfully participate in programs in
the public schools for handicapped children. The term
ee es
ey
‘severely handicapped' is not confined to a separate and
specific category but pertains to the degree of disability
which permeates a variety of handicapping conditions
and education programs." Therefore, under Missouri
law, a child will be classified as "severely handicapped"
once the determination has been made that the child
cannot be served by the local school districts. In
Missouri, approximately .05% of all handicapped children
are classified as severely handicapped.
14, The State of Missouri, through the DESE, the
Department of Mental Health, Division of Youth
Services, Division of Corrections, and through private
agencies under contract, provides public special
educational programs for a school term of 180 days,
which results in a summer break of 2 to 3 months.
15. The State of Missouri does not determine or
consider on an individual basis whether handicapped
children require or may require educational programming
in excess of the traditional 9 month school year. Nor
does the State, through the DESE require local and
special school districts to determine on an individual
basis whether handicapped children are in need of an
educational program in excess of 18M days. In fact,
there was testimony at trial establishing that the State
of Missouri has an established practice of providing
public special educational programs solely on a
traditional 9 month basis. Mr. Hall testified at trial
that hearing officers in the State of Missouri do not
-A-58-
have the authority to require the provision of
educational programming in excess of 180 days. Any
decision to the contrary will be overturned automatically
by reviewing state officials.
16. Defendant SSD provides special educational
services to approximately 14,000 handicapped children.
Unlike the State of Missouri, SSD contends that they
do pot have a policy or practice precluding consideration
of a child's need for education beyond the traditional
180 day school year. Instead, the SSD argues that the
named plaintiffs and other members of this class of
handicapped children have not demonstrated need for
an extended school year.
17. Currently, the SSD does not provide any type
of educational services to handicapped children beyond
the traditional 9 month school year. Although it might
be possible to conclude that none of the children would
require a program without any extended break, it is
more than likely that if full individual consideration had
been given to each child's potential need for extended
programming at least some of the children would have
been found to require some type of educational service
beyond the traditional 9 month school year. The fact
that all of the children being served by the SSD were
uniformly found to require only 180 days of programming
indicated that the educational needs of the handicapped
children were considered only in the context of the
amount of schooling presently available to them.
ai
~A-59-
Furthermore, there is evidence in the record establishing
that SSD administrators believed that they did not have
the authority to provide school in excess of 180 days
per year. Mr. Paul Dulle, the SSD's Assistant
Superintendent for Behavior Disorders, Learning
Disabilities and Learning Disorders, testified at the time
of his deposition that there was "no provision in the
Special School District to provide any programs beyond
the calendar approved ... by the Roard of Education
each year." Therefore, in light of the evidence, it must
be concluded that the SSD in fact does have a policy
or practice of refusing to consider or provide for a
mentally retarded child's educationa! needs beyond the
traditional 9 month school year.
18, Summer school is provided to children in
Missouri at the option of local school districts. Some
local school districts have made summer programs
available to handicapped children. However, none of
these programs are available for those children who
have been designated as "severely handicapped" under
Missouri law, and who are enrolled in the state schools
for the severely handicapped.
19, Loeal school districts receive funds for summer
school programming either through the school foundation
formula provided in Mo, Rev. Stat. §16%.011(2), or under
Title 1 of the Elementary and Secondary Act of 1965,
or from both sources, Of the money appropriated by
the legislature to the DESE for local _ schools,
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expenditures are first provided for transportation aid
and exceptional pupil aid. The remainder, which is the
substantial majority of the total appropriation, is divided
among local school districts, including special school
districts pursuant to the foundation formula, based
primarily on pupil attendance. Mo. Rev. Stat. $§162.975-
162.990. Additional state funds for the education of
handicapped children are provided to local and special
school districts apart from the funds ¢ ‘ded under the
foundation formula. However, state aid for the
education of the handicapped, in the form of funds
provided by class, staff members and staff aid, is limited
to a "term of one hundred eighty days" by Missouri
State law. Mo. Rev. Stat. $162.975.
20. The state defendants confess that it is their
policy and practice to refuse to provide or to fund
educational programming for any severely handicapped
child enrolled in the schools of the State Board of
Education or served by the Board in excess of 180
calendar days per year. It has been established that
summer school programming may be provided at the
discretion of local educational agencies for handicapped
or non-handicapped children; these districts receive
funds under the foundation formula. However, funds
available to local agencies during the normal school
year for the purposes of educating the handicapped are
not available during the summer break. The fact that
the provision or non-provision of summer programming
for handicapped or non-handicapped children is an option
~A-61-
of the local school district, does not change this court's
conclusion that the fiscal policies of the State of
Missouri allow for the provision of services to the non-
handicapped children during the summer months and do
not allow for the provision of programming for the
severely handicapped. Furthermore, in the event a local
district wishes to provide handicapped children with
education beyond the traditional 180 days, the local
agency must bear the additional cost. The responsibility
for this financial burden may very well deter a local
school district from considering the needs of
handicapped children for school in excess of 180 days.
Therefore, although the state defendants’ policy toward
summer programming of children in Missouri is perhaps
neutral on its face, it has the effect of providing
services to non-handicapped children, which are denied
to the handicapped and severely handicapped.
21. At trial, the plaintiffs presented evidence in
support of their contention that handicapped children
suffer educational regression during interruptions in
programming which can have a substantial impact on
their progress and on their potential for achieving any
degree of independence. In support of this conclusion
plaintiffs' expert witnesses testified that regression
resulting from breaks in educational programming can
result in the actual loss of skills previously required, or
a lack of motivation to perform skills that a child
retained, Furthermore, it was contended that regression
cen result in an increase in inappropriate behaviors and
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ean affect motor and communication skills. One of the
plaintiffs' leading expert witnesses, Lou Brown, who is
a professor of special education at the University of
Wisconsin, testified that limiting every handicapped
child's education to the traditional 9 month school year
deprives certain handicapped children of the opportunity
to experience an appropriate education. Dr. Brown
emphasized that not all handicapped children are in
need of additional services; however, he stressed that
this determination must be made on an individual basis.
Dr. Brown identified certain learning characteristics of
the severely handicapped which make it more likely
that they will regress than the normal child. Dr. Brown
stated that the severely handicapped are capable of
learning fewer and lesser complicated skills.
Furthermore, the handicapped have a greater difficulty
acquiring skills and are likely to lose a greater number
of skills over time. Finally, it is difficult for them to
transfer what they have learned. Dr. Brown aiso
identified a number of variables that parents and
educators should consider when determining whether a
particular handicapped child should have educational
programming in excess of the traditional school year.
He suggested that the child's progress, behavioral and
physical problems must be examined. In addition, the
Doctor stated that the availability of alternative
resources, the ability of a handicapped child to interact
with non-handicapped children, the areas of the child's
curriculum which need continuous attention, the degree
of regression suffered by the child, and a child's
-~A-63-
vocational needs should all play a role in the
determination of whether extended programming was
appropriate, and if appropriate, the types of services
that should be provided to the child. Finally, the Doctor
stressed that economic concerns should also be taken
into account; one of the goals for handicapped children
is to allow them to become contributing members of
society as opposed to dependent institutionalized adults.
22. Plaintiffs’ witnesses in general agreed that a
continuous program of education, without extended
breaks, would lessen the likelihood of regression in
certain handicapped children. However, each of the
plaintiffs’ experts stressed that the determination of
whether extended programming was necessary should be
made on an individual basis. Dr. H. D. Bud Fredericks,
who is a research professor and associate director of
teaching research, a division of the Oregon state system
of higher education, suggested a means of identifying
both the children who are in need of extended
programming and the type of services that would be
appropriate for these children. He testified that school
officials should evaluate a child's progress in each area
of the curriculum, and the regression that occurs in
each area after a break. He further testified that those
children who show significant regression and require
over a month to recoup skills should be considered for
summer programming.
-~A-64-
23. In addition to expert testimony, plaintiffs
presented further testimony seeking to establish the
existence of regression in specific children. Michael
Yaris, one of the named plaintiffs in this action, is an
11 year old autistic child with a severe language
problem, a severe behavior disorder, and functional
retardation. He has been evaluated by the SSD as
behaviorally disordered, communication impaired and
functionally, intellectually and academically retarded.
Michael has attended the Judevine Center for Autistic
Children, except for a 6 month period, since October
of 1975 when he was 4 years old. Since he has attended
this Center he has had continuous programming except
for 3 exceptions when he took a break of a month or
more. Michael's father testified that Michael's behavior
deteriorated significantly during these breaks and that
it took him a sizeable length of time to recoup his
skills. Rebecca Blackwell, Director of the Judevine
Center, also testified that Michael suffered regression
as a result of these breaks. She stated that Michael
suffered from severe withdrawal, increased restlessness,
aggressiveness, and inappropriate behaviors after these
breaks. She contended that the return of his behavior
difficulties severely impeded Michael's academic
progress. She concluded that extended programming for
Michael was appropriate because of his inability to deal
with an unstructured environment.
24. Adam Stubbs is a 7 year old severely mentally
and physically retarded, hyperactive, epileptic child with
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severe delays in language and speech development and
autistic behaviors. After the determination was made
that Adam was "severely retarded,” the DESE contracted
with the Sherwood Center for Exceptional Children, Inc.,
in Kansas City, Missouri, to provide Adam with a special
education program for the 1980-81 and 1981-82 school
years. The State agreed to provide funding for Adam
for the traditional 9 month school year; nonetheless,
Adam attends the Sherwood Center year round with a
minimal number of 2 week breaks. Marilyn Stubbs
testified that by the end of a 2 week break Adam
resorts to extensive crying, tantruming, and head
banging. Deborah Wood, Director at the Sherwood
Center testified that the regression that Adam would
experience during a 3 month break could severely
jeopardize his potential for learning skills or achieving
any degree of independence. Ms. Wood further testified
that she was been told by the DESE to strike any
reference to summer programming when applying for
State funds.
25. The defendants also produced a considerable
amount of evidence on the question of regression,
including testimony by experts and teachers and aides
who work in the SSD schools. Through this testimony,
the defendants sought to establish that handicapped
children did not regress during a summer break. In
fact, the defendants contended at trial that many of
the children studied actually showed progress in certain
areas after breaks. The defendants advanced a number
~A-66-
4
of different theories in support of their assertion that
summer vacations are advantageous to handicapped
children. The first theory advanced is that handicapped
_ children need a break from a structural environment in
order to be motivated to continue learning. Second,
the defendants assert that summer vacations allow
handicapped children an opportunity to obtain a valuable
informal education not available in the structured
environment of the school. Finally, the defendants
theorized that the summer break affords these children
an opportunity to transfer skills learned in the academic
environment to the home environment.
26. In support of their general theory that
handicapped children do not suffer regression over
extended breaks and in fact can benefit from 4 break,
the defendants presented the expert testimony of Dr.
Keith Turner, an associate professor in the field of
special education at the University of Texas at Austin.
Dr. Turner has testified in several cases involving the
issue of handicapped children and their need for
extended programming. Dr. Turner testified that he
was of the opinion that an extended school year is
generally unnecessary for handicapped children; he based
2See Armstrong v. Kline, 476 F.Supp. 583 (E.D. Pa.
1979), reman sub nom. Battle v. Pennsylvania, 629
F.2d 269 (rd Cir. 1980);
-A-67-
his opinion on a study he conducted in Savannah, Georgia
in the years 1979 and 1980 with 3 classes of severely
and profoundly retarded children. Dr. Turner's
methodology consisted of administering the portage
checklist to these children both before and after a
summer break and several times during the following
year for the purposes of determining whether there was
regression over the break and determining the
recoupment periods after the break. The portage
consists of at least 500 skills that the children must
perform. Dr. Turner presented evidence showing the
total number of skills that each child could perform
before and after the summer break; his data showed
that only 1 handicapped child had a lower total score
after the break.
27. The portage checklist is regularly used as a
teaching tool and is administered to students with a
developmental age of up to 6 years. The purpose of
the test is to determine the skills a particular child
has and what skills a child should be taught. The test
was not designed to measure a child's developmental
age. In fact many of the items on the checklist were
not part of the particular child's curriculum and
therefore are not determinative of the question whether
the child was progressing or regressing in school.
Furthermore, the checklist did not contain many of the
items on the children's curriculum at school. Therefore
this court must conclude, as the court concluded in
Georgia Ass'n of Retarded Citizens v. McDaniel, that
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the portage checklist is of doubtful probative value on
the question of whether or not handicapped children
regress after an extended break from programming. 511
F.Supp. 1263, 1274 (N.D. Ga. 1981).
28. Despite the general contention of the defendants
that handicapped children do not suffer regression during
extended breaks, the majority of their witnesses
testified summer programming would be appropriate for
certain handicapped children and might improve their
rate of retention. Futhermore, it was stressed that
this determination must be made on an individual basis.
29. On the basis of the record and the evidence
presented at trial, this court must conclude that as a
general proposition handicapped children do regress after
an extended break. The extent of the regression and
the recoupment problems resulting from a break in
programming can only be determined by exernining the
individual child and determining whether the child is in
need of an environment which is more structured than
his parents can provide at home.
30. In addition to presenting evidence on the issues
of regression and extended programming, the plaintiffs
Robert and Mary Yaris presented evidence on the
questions raised by their individual action on behalf of
their son, against the SSD in Count I of the first
amended complaint. Plaintiffs Robert and Mary Yaris
contend that the defendant failed to implement an
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educational program for their son Michael in a timely
manner, and also failed to pay for the costs incurred
in the administrative due process proceeding. Therefore
the Yarises brought this claim to recover both the costs
-of the transcript and record of the panei hearing and
for providing an education for Michael from April, 1979
through August of 1980. They claim that they are
entitled to recover the following expenditures: Judevine
Center for Autistic Children, April, 1979 through
August, 1980, $200.00 per month ($3,400.00); Learning
Consultants, Inc., William Ferzaceca, April, 1979 through
May, 1979, $160.00; Nancy Newmeyer, attendance at
the New City School and Affton afterschool programs,
April, 1979 through August, 1980, $1,600.00; and
transportation, April 1879 through August 1980,
$1,566.00 (6,960 miles x .225). The total costs equal
$6,286.00.
31. The SSD first evaluated Michael Yaris, at the
request of his parents in the early part of 1979. At
this time, Michael was diagnosed as behaviorally
disordered, communication impaired, functionally,
intellectually and academically retarded.
32. A conference for the development of an
individualized education program (hereinafter "IEP") was
conducted by the SSD for Michael Yaris on March 15,
1979; resulting in the recommendation that Michael be
placed in the Bridgeton School classroom in March of
1979, There were several issues that remained
-A-70-
unresolved after this conference. Due to the Yarises'
disagreement with the content of their son's IEP, they
did not request the SSD to implement the program which
it was willing to provide at that time. Instead, they
asked the SSD to contract with the Judevine Center,
which was the school Michael was attending at the time.
The SSD scheduled a further conference in order to
obtain additional information in an effort to reach an
agreement about the appropriate placement for Michael.
33. By letter from their attorney dated May 29,
1978, Robert and Mary Yaris requested that the SSD
conduct a hearing for the appeal of Michael's evaluation
and IEP.
34. A second IEP conference was held on May 31,
1979 by the SSD for Michael Yaris. Again, the parties
were unable to resolve all the issues with respect to
Michael's IEP and therefore the Yarises requested an
administrative review of the IEP as provided by Missouri
law. The first step in the due process proceeding is
an informal conference which was conducted by the SSD
on July 18, 1974. At this conference, the Yaris plaintiffs
and the SSD discussed the objections to the IEP and
the SSD agreed to submit a proposed amendment to the
May 31, 1979 IEP.
35. By letter dated August 1, 1979, the SSD
informed Robert and Mary Yaris that it would not
~A-71-
provide summer programming. In addition, the SSD
submitted its amendment to the May 31, 1979 IEP.
36. By letter dated August 9, 1979, Robert and Mary
Yaris requested of the SSD a due process hearing to
appeal Michael's evaluation and the IEP. Missouri law
provides for a formal hearing before a 3 member panel
selected by the parties.
37. One week prior to the due process hearing, on
January 22, 1980, through their respective attorneys,
the Yarises and the SSD confirmed that all of the
components of an IEP for Michael were agreed upon
except for the issue of continuous programming.
38. The due process hearing was conducted by a 3
member panel pursuant to Missouri law on January 29
and 30 of 1980. The panel decision and a dissenting
opinion were rendered on or about February 14, 1980.
The decision was adverse to the Yarises.
39. The Yarises, through their counsel sent a letter
dated February 13, 1980 to the SSD _ requesting
implementation of Michael's IEP, as amended. The
Yarises requested immediate implementation of a
program which was consistent with Michael's IEP if such
a program existed at that time. If an appropriate
program was not available they requested enrollment as
soon as possible. In the event enrollment had to be
delayed, the Yarises requested a contractual
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arrangement with the Judevine Center. Finally, in their
letter, the Yarises sought financial reimbursement for
Michael's private programming from March 15, 1979
through January 22, 1980 on the ground that Michael's
IEP proposals were inappropriate.
40. On February 15, 1980 the Yarises requested a
review of the decision of the 3 member panel by the
State Board of Education on the adverse panel level
hearing decision.
41. By letter dated March 7, 1980 the Yarises
requested that the SSD pay the costs of a copy of the
transcript of the hearing before the 3 member panel
and a copy of the complete record of the hearing for
review by the State Board of Education. The SSD
refused to pay for these costs.
42. On March 31, 1980 the Yarises sent to Dr.
Leonard W. Hall, the hearing officer designed by the
State Board of Education, a copy of the transcript and
record of the panel hearing which the Yarises had
obtained at their own expense in the amount of $388.70.
By appealing the decision to the State Board of
Education, Robert, Mary and Michael Yaris exhausted
their administrative remedies under Public Law 94-142.
43. In response to the Yarises' request of February
13, 1980 to implement Michael's IEP of May 31, 1979,
arrangements were made in April by the SSD to place
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Michael in its Gibson School classroom. On April 24,
1980, through their counsel, the Yarises informed the
SSD that they did not wish to enroll Michael in the
program offered.
44, In the fall of 1980, the Yarises enrolled Michael
in the SSD program. In April of 1981 Michael was
removed by his parents from the SSD program and
returned to the Judevine Center where he is attending
presently and where he attended throughout the
administrative proceedings. In accordance with the
wishes of the plaintiffs, the SSD agreed to contract
with the Judevine Center for Michael's program for the
1981-82 school year. Currently Michael's educational
program is funded by the SSD except for services he
received in the summer which is in part funded by
contract with the Missouri Department of Mental
Health. The Yarises pay the remainder of his costs for
Michael's summer program.
CONCLUSIONS OF LAW
This court has jurisdiction of this case pursuant to
20 U.S.C. $1415(e), U.S.C. $1331, and 28 U.S.C. §1343.
The named plaintiffs instituted this class action for the
purpose of securing declaratory and injunctive relief
against the continued application of the policy of the
defendants, which precludes the provision of educational
services for handicapped children in the State of
Missouri in excess the traditional 9 month school
year. The plaintiffs contend that this policy violates
me
the Education For All Handicapped Children Act, 20
U.S.C. §§1401 et seq.; Section 504 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. §794; 42 U.S.C.
§1983, the Equal Protection and Due Process Clauses
of the Fourteenth Amendment; the Missouri
Constitution, and Mo. Rev. Stat. $§162.670 et seq. In
addition, the plaintiffs seek a mandatory injunction
compelling defendants to make available to the named
plaintiffs education programs which extend beyond the
traditional 180 day school year.?
1. The 9 Month Policy and the
Education for All Handicapped
Children Act.
The Education For All Handicapped Children Act of
1975, 20 U.S.C. §§1401 et seq., provides state and local
agencies with federal money to assit in the education
of handicapped children. However, the provision of this
money is conditioned upon a state's compliance with
extensive goals and procedures outlined by Congress in
the statute. In order to qualify for federal financial
assistance under this Act, a state must demonstrate
that it “has in effect a policy that assures all
handicapped children the right to a free appropriate
education.” 20 U.S.C. §1412(1). In order to ensure the
3The questions raised by the 180 day policy will be
considered before considering the issues raised by the
Yaris plaintiffs in their individual action against the
ssn.
~A-75-
provision of that right the Act further requires that
each state develop a plan, 20 U.S.C. §1412(2), establish
procedural safeguards, 20 U.S.C. §1415(5), and require
local educational agencies to establish individualized
educational programs. 20 U.S.C. §1412(4). The plan
must be approved by the Commissioner of Education
before the State can acquire any assistance. 20 U.S.C.
§1413.
Section 1401(18) of the Act defines "free appropriate
public education" as:
Special education and related services
which (A) have been provided at public
expense, under public supervision and
direction, and without charge, (B) meet
the standards of the state educational
agency, (C) include an appropriate
preschool, elementary, or secondary school
education in the state involved, and (D)
are provided in conformity with the
individualized education program required
under §1414(a\(5) of this title.
The Act goes on to define "special education" as
"specifically designed instruction, at no cost to parents
or guardians, to meet the unique needs of a handicapped
child, including classroom instruction, instruction in
physical education, home instruction, and instruction in
hospitals and _ institutions." 20 U.S.C. §1401(16).
"Related services" are defined as those services which
"may be required to assist a handicapped child to benefit
from special education..." 20 U.S.C. §1401(17).
Examples of these services are transportation, speech
pathology, recreation, physical and occupational therapy,
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counseling services, physchological services, and medical
services necessary for diagnosis and evaluation. Most
importantly, "[t]he ‘free appropriate education'
required by the Act is tailored to the unique needs of
the handicapped child by means of an ‘individualized
educational program' (IEP) §1401(18)." Board of
Education of the Hendrix Hudson Central School District
v. Rowley, 102 S.Ct. 3034, 3038 (1982). The IEP is a
written statement for each handicapped
child developed in any meeting by a
representative of the local educational
agency or an intermediate educational unit
who shall be qualified to provide, or
supervise the provision of, specially
designed instruction to meet the unique
needs of handicapped children, the teacher,
the parents or guardians of such child,
which statement shall include (A) a
statement of the present levels of
educational performance of such child, (B)
a statement of annual goals, including
short-term instructional objectives, (C) a
statement of the specific educational
services to be provided to such child, and
the extent to which such child will be able
to participate in regular educational
programs, (D) the projected date for
initiation and anticipated duration of such
services, and (E) appropriate objective
criteria and evaluation procedures and
schedules for determining, on at least an
annual basis, whether institutional
objectives are being achieved.
Section 1414faX5) of the Act requires the state to
establish procedures whereby the IEP is revised by the
local educational agency at least annually.
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In addition to requiring the state to provide
handicapped children with a "free appropriate
education,” the Act also imposes’ procedural
requirements on the states to assure that the IEP is
appropriately formulated to the unique needs of the
specific child. Parents or guardians of handicapped
children must be notified whenever the local agency
proposes to make a change in "the identification,
evaluation, or educational placement of the child or the
provision of a free appropriate public education to the
child," and must be allowed to bring a complaint about
"any matter relating to such evaluation and education."
20 U.S.C. §1415(b)(1). The Act entitles the parent or
guardian to a due process hearing whenever such a
complaint is made, and appeal to the state educational
agency is required in the event the initial hearing is
held at the local or regional level. 20 U.S.C.
§§1415(b)(2) and (c). Finally, "any perty aggrieved by
the findings and decision" may appeal to a state court
of competent jurisdiction or to a district court of the
United States. 20 U.S.C. $1415(e)(2).
It is clear from the substantive and procedural
provisions found in the Education For All Handicapped
Children Act, that the fundamental requirement rests
in the mandate that the state have in effect a policy
that assures handicapped children the right to a "free
appropriate education." 20 U.S.C. §1412(i), Therefore,
the major issue raised by the plaintiffs' complaint is
whether a policy that prohibits the consideration of
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ahandicapped child's educational needs in excess of the
traditional 9 month school year contravenes the
responsibility of the state to provide handicapped
children with a "free appropriate public education." In
order to resolve this issue, an effort must be made to
define the Act's requirement of a "free appropriate
public education."4
4Several courts have considered the question whether
the policy of refusing to provide more than 180 days
of education is incompatible with the requirements of
the Act. Unfortunately, with the exception of one case,
these opinions were decided prior to Board of Educetion
of the Hendrick Hudson Central School District v.
Rowley, 102 8.Ct. 3034 (1982). Every court, prior to
the Rowley required state administrators to consider
the needs of handicapped children in excess of the
traditional 9 month school year. Battle v. Pennsylvania
629 F.2d 269 (3rd Cir. 1980), cert. denied, 2s
(1980); Georgia Ass'n of Retarded Citizens v. McDaniel,
511 F.Supp. ao (N.D. Ga. 1981); Lee v. Clark, No.
80-0418 (D. Hawaii Jan. 30, 1981); Moore v. Roberts,
No. LR-C-81-419 (E.D. Ark. July 24, 1981); Hilden v.
Evans, No. 80-511-RE (Oregon, November 5, 1980). In
Battle v. Pennsylvania, the only Court of Appeals
decision, the 1 ircuit held that the "inflexible
application of a 180 day maximum prevents the proper
formulation of appropriate educational goals for
individual members of the plaintiff class." Only one
court has upheld the application of this policy. In
Crawford v. Pittman, the court held "that the Education
for Handicapped Children Act did not intend to mandate
a specific federal handicapped educational standard,"
and therefore states were free to provide minimal
programming to handicapped children. No. GC 80-16-
LS-O (July 12, 1982). The reasoning of the latter
decision is clearly ineorrect in light of the Supreme
Court's holding in Rowley, in which the court concludes
~A-79-
In Board of Education of the Hendrick Hudson
Central School District v. Rowley, the Supreme Court
for the first time was called upon to interpret provisions
of the Education For All Handicapped Children Act. In
this opinion the Court explicitly addressed the question
of "what is meant by the Act's requirement for ‘free
appropriate education'?"” The Court concluded that "the
"basic floor of opportunity’ provided by the Act consists
of access to specialized instruction and related services
which are individually designed to provide educational
benefit to the handicapped child.” 102 S.Ct. at 3048.
While recognizing that the determination of whether a
particular handicapped child is receiving sufficient
services to satisfy the requirements of the statute
presents a more complex problem, the court presented
(cont.)
that the Act prescribes the basic federal standards that
states must meet in order to receive funds under the
Act. Therefore, the remaining question is whether the
principles enunciated by the Supreme Court in Rowley
are in conflict with the reasoning of the courts whic
found the policy of refusing to consider educational
programming for the handicapped in excess of the 9
month school year in conflict with the requirements of
the Act. For reasons stated in the text, this court
does not believe that Rowley changes this basic
conclusion, although the reasoning found in several of
these cases may have to be modified. The only
subsequent to the Rowley decision is Phi v. New
Hanover County - of Educ., 511 F.Supp. 7: -D.
N.C. 1982). The court reasoned that "[i]t is clear tha
under the EAHCA, and its regulations, the Board must
provide services year round if a handicapped child will
substantially regress during the summer recess." 551
F.Supp. at 734 (cites omitted).
\
~A-80-
a standard to aid in making that determination. A
State satisfies the requirement that it provide a
handicapped child with a "free appropriate public
education" by "providing personalized instruction with
sufficient support services to permit the child to benefit
educationally from that instruction. Such instruction
and services must be provided at public expense, must
meet the State's educational standards, must
approximate the grade level used in the State's regular
education, and must comport with the child's IEP." Id,
at 3049.
In an effort to lend meaning to the general standards
of compliance prescribed by the Supreme Court in
Rowley, and to apply those standards to the facts of
the present case, it is necessary to examine the analysis
which lies behind the Court's decision. There are three
major aspects of the opinion that will be considered
prior to determining whether the State of Missouri is
meeting its obligation under the Act by providing
handicapped children with a "free appropriate
education," which requires that these children have
"aecess to specialized instruction and related services
which are individually designed to provide educational
benefit to the handicapped child." Id. at 3048. First,
there will be an examination of the standard for
determining whether a particular child is receiving
adequate services; second, there will be a consideration
of the court's emphasis upon the individual needs of
the child; and finally, the state’s role in the
~A~81-
administration and development of educational programs
will be examined, ‘as will the implications it has for
relief in the context of this case.
In its decision, the Supreme Court clearly recognized
that the "determination of when handicapped children
are receiving sufficient education benefits to satisfy
the requirements of the Act" must be made on an
individual basis. Id, at 3049. In recognition of this
fact the Court found it necessary to limit its opinion
in the following manner:
We do not attempt today to establish any
one test for determining the adequacy of
educational benefits conferred upon all
children covered by the Act. Because in
this case we are presented with a
handicapped child who is_ receiving
substantial specialized instruction and
related services, and who is performing
above average in the regular classrooms
of a public school system, we confine our
analysis to that situation.°
SThis case dealt with the education of Amy Rowley,
a deaf student who attended school at Furnance Woods
School in the Hendrick Hudson Central School District,
Peekskill, New York. Amy has minimal residual hearing
and is an excellent lipreader. Her parents and teachers
decided to place Amy in a regular kindergarten class.
Several members of the school administration attended
a course in sign language, a teletvpe machine was
installed in the principal's office to facilitate
communication with her parents, and she was also
provided with a hearing aid. Amy «successfully
completed her kindergarten year. The issue before the
Supreme Court was whether the Aid For All Handicapped
-A-82-
Id. In contrast to the situation presented to the Court
in Rowley, the class of handicapped children in Missouri
are receiving fewer educational services than those non-
handicapped children for whom summer school is
available. There is evidence in the Rowley opinion that
the Supreme Court anticipated that state administrators
most likely could be obligated to provide handicapped
children more services than those provided to children
without handicaps, in order to comply with the statutory
requirement of "free appropriate education."® However,
more importantly, the standard outlined by the Court
to determine whether Amy was receiving an adequate
education under the Act, requires state educators to
(cont.)
Children Act required school administrators to provide
Amy with a qualified sign language interpreter in all
of her academic classes. Despite its findings that Amy
was performing better than the average child in class
and that she was advancing easily from grade to grade,
the District Court held that the failure to provide her
with an interpreter was in violation of the Act. A
divided panel of the United States Court of Appeals for
the Second Circuit affirmed and the Supreme Court
reversed.
5When rejecting the requirement that states are
obligated to provide handicapped children with equal
educational opportunities, the Court reasoned that the
standard was unworkable because it required impossible
measurements and comparisons. The Court further
noted that the standard was inadequate because
"furnishing handicapped children with only such services
as are available to non-handicapped children would in
all probability fall short of the statutory requirement
of 'free appropriate public education'.”
-A-83-
provide children with "personalized instruction,"
provided at public expense, and comporting with the
child's IEP, Id. at 3044. Therefore, in order to meet
the requirement of a "free appropriate education" at
the very least, educators must examine the individual
needs of a child in order to determine whether there
are "sufficient support services to permit the child to
benefit educationally from that instruction." Id.
In addition to concluding that no one test exists for
determining the adequacy of educational services
conferred on handicapped children, the Supreme Court
stressed in Rowley that state educators are required
"to adopt procedures which would result in individualized
consideration of instruction for each child" in order to
satisfy the requirements of that Act. Id. at 3042. The
obligation of providing handicapped children with
educational programs, designed in accordance with the
unique needs of each child, is reflected in the
requirement of the IEP. The IEP guarantees the
handicapped child, procedurally and substantively, a free
appropriate education. Therefore, any policy which
inhibits the consideration of the individual educational
needs of handicapped children necessarily conflicts with
the Act's emphasis on the individual needs of the
children and requirement of an IEP.
The final aspect of the Rowley decision that must
be examined before applying the standards to the facts
presented by this case, is the role which the state plavs
-A-84-
in the administration of public education to handicapped
children under the Education For All Handicapped
Children Act. At the same time that the Supreme
Court recognized that the Act imposes extensive
procedural and substantive obligations on the states, it
also noted that "the Act leaves to the states the primary
responsibility for developing and executing programs for
handicapped children." Id. at 3039. However, states
are obligated to meet the “basic floor of opportunity"
embodied in the Act, id. at 3048, and to provide
handicapped children with equal access to educational
services. The Court went on to anticipate the problem
posed by insufficient funds:
If sufficient funds are not available to
finance all of the services and programs
that are needed and desirable in the system
then the available funds must be expended
equitably in such a manner that no child
is entirely excluded from a_ publicly
supported education consistent with the
needs and ability to benefit therefrom.
The inadequacies of the . . . Public School
System whether occasioned by insufficient
funding or administrative inefficiency,
certainly cannot be permitted to bear more
heavily on the 'exceptional' or handicapped
child than on the normal child.
Id. at 3044 n. 15, citing Mills v. Board of Education of
the District of Columbia, 348 F.Supp. 8&6, 876 (D.C.
D.C. 1972). Therefore, inadequacy of funds does not
relieve a state of its obligation to assure the
handicapped child of equal access. Id. at 3047.
-A-85-
In view of the principles enunciated by the Supreme
Court in Rowley, it is the conclusion of this court that
the State of Missouri's policy of refusing to consider
or provide more than 180 days of education for the
severely handicapped is incompatible with the Act and
the standards enunciated by the Supreme Court. Unlike
the factual situation presented to the Court in Rowley,
the plaintiffs in this action are receiving fewer services
than non-handicapped children. Furthermore, the policy
of the State of Missouri precludes "individualized
consideration of and instruction for each child." Id, at
3047, Therefore, the State is failing to provide
handicapped children with "the basic floor of
opportunity" embodied in the Act. By refusing to
consider the potential need of these children for
programming “access to specialized instruction and
related services which are individually designed to
provide educational benefit to the handicapped child."
Id, at 3048. Finally, despite the lack of sufficient
funds, the state is providing non-handicapped children
and a few categories of handicapped children with
educational services in excess of the traditional 9 month
school year. Thus, it must be assumed that the scarcity
of funding is being permitted to bear more heavily on
the severely handicapped.” Thus, it is the conclusion
7Although this court sympathizes with the
difficulties faced by state officials in an era in which
resources are scarce and cutbacks are frequent, this
-A-86-
of this court, under the facts presented by the
circumstances of this case, that the State of Missouri
is denying the plaintiff class a "free appropriate
education" by failing to consider their educational needs
in excess of the 180 day school year.
In addition to alleging that the State defendants are
in violation of the Education for All Handicapped
Children Act by maintaining a policy which prohibits
the consideration or provision of educational services
to the handicapped in excess of the traditional 9 month
school year, the plaintiff class also has brought a cause
of action against the SSD on the same grounds.8 In
order to determine whether the SSD is in breach of a
duty imposed upon it by the Act, it is necessary to
examine the statutory framework provided by Congress.
One purpose of the Education For All Handicapped
Children Act was to provide for one centralized agency
in each state to assume responsibility for the provision
of a "free appropriate education" to handicapped
children. Therefore, ultimate responsibility for
(eont.)
court cannot help but note that only one state in the
country appropriates less funds than the State of
Missouri for its educational system.
8Despite the defendant SSD's claim to the contrary
it has been concluded that the District in fact has a
policy that precludes the provision of educational
services in excess of the traditional 9 month school
year. See Findings of Fact Nos. 16 and 17.
-A-87-
compliance with statutory mandates rests on the state
educction agency. Kruelle v. Biggs, 489 F.Supp. 164,
174 (D. Del. 1980), affirmed Kruelle v. New Castle
County School District, 642 F.2d 687 (3rd Cir. 1981).
Section 1412(6) explicitly provides:
The state educational agency shall be
responsible for assuring that the
requirements of this subchapter are carried
out and that all educational programs for
handicapped children within the state,
including all such programs administered
by any other state or locai agency, will
be under the general supervision of the
persons responsible for educational
programs for handicapped children in the
state educational agency and shall meet
educational standards of the _ state |
educational agency.9 |
In light of the above statutory provision, it is the
conclusion of this court that it is the responsibility of
the state educational agency either to make sure that
local agencies provide adequate services to handicapped
children, or to provide these services, Georgia Ass'n of
Retarded Citizens v. McDaniel, 511 F.Supp. 1263 (N.D.
Ga. 1981). Therefore, the SSD will not be adjudged to
have breached a duty imposed by the Education For All
"The Act further provides that if a local agency
fails to provide appropriate services it is the
responsibility of the state to provide an appropriate
education directly to the handicapped children in the
area served by the local agency. 20 U.S.C. §1414(d).
~A-88-
Handicapped Children Act.!9 However, it will have a
joint obligation with the state in the future to provide
the severely handicapped with an appropriate education,
although ultimate responsibility will still fall on the
state.
2. The 9 Month Policy and
the Rehabilitation Act
In addition to asserting that the policy of the
defendants which precludes the consideration of the
educational needs of handicapped children in excess of
the traditional 9 month school year violates the
10There are additional reasons for not imposing
liability upon the SSD. The SSD is clearly not
discriminating against the handicapped or the severely
handicapped in the use of funds because it does not
provide educational services to .non-handicapped
children. Furthermore, the district does not provide
any services during the summer school break. In
contrast, it is the state which has agreed to allocate
funding for the education of the non-handicapped in the
summer months and at the same time has refused to
provide comparable funds for the education of the
handicapped and _ severely handicapped = children.
Therefore, if the scarcity of funding is not to be
permitted to bear more heavily on the handicapped
child, some of the funds presently used for extended
programming provided to nonm-handicapped children
should be allocated by the state to local districts for
the purpose of providing comparable services to the
handicapped. It would serve no logical purpose to order
the SSD to use its already limited resources for the
specific purpose of providing extended programming;
additional funds should be provided by the state in a
fulfillment of its responsibilities under the Act.
~A-89-
Education For All Handicapped Children Act, the
plaintiffs' class also has brought a cause of action
pursuant to Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. §794. The statute provides:
No otherwise qualified handicapped
individual in the United States, as defined
in §706(7) of this title, shall, solely by
reason of his handicap be excluded from
the participation in, be denied of the
benefits of, or be subjected to
discrimination under any program or
activity receiving Federal financial
assistance or under any program or activity
conducted by any Executive agency or by
the Unitec States Postal Service. The
head of each such agency shall promulgate
such regulations as may be necessary to
carry out the amendments to this section
made by the Rehabilitation,
Comprehensive Services, and
Developmental Disabilities Act of 1978.
Copies of any proposed regulations shall
be submitted to appropriate authorizing
committees of the Congress, and such
regulation may take effect no earlier than
the thirtieth day after the date on which
the regulation is so submitted to such
committees.
It must be concluded from the plain meaning of the
statute that a state educational system which is in
receipt of federal funds is in violation of the
Rehabilitation Act if the entity's practices preclude the
handicapped from obtaining benefits realized by the non-
handicapped. New Mexico Association for Retarded
Citizens v. New Mexico, 678 F.2d 842 (10th Cir. 1982).
It is evident from the record established at trial that
the State of Missouri receives federal funds which it
-A-90-
distributes to local districts for the purpose of educating
non-handicapped children during the summer months
without providing comparable services to the severely
handicapped. See Findings of Fact Nos. 18-20.
Whatever benefits non-handicapped children realize
when they attend summer school in Missouri are not
available to the severely iiandicapped. By maintaining
this policy the State of Missouri has violated the
Rehabilitation Act on its face.!1
In addition to alleging that a policy which precludes
the provision of educational services to handicapped
children in excess of the traditional 9 month year
violates the Rehabilitation Act, 29 U.S.C. §794, the
plaintiffs' class also claims that the policy conflicts
with the regulations promulgated pursuant to the
statute. The relevant regulations require recipients of
federal funds that operate public elementary or
11 Just it was inappropriate to find the SSD liable
under the Education For All Handicapped Children Act,
20 U.S.C. §§1401 et seq., it would be inopposite to hold
that the SSD is in breach of its duties under the
Rehabilitation Act, 29 U.S.C. $794, or its regulations.
The SSD is not in a position to be discriminating against
the handicapped by providing services to the non-
handicapped which it has failed to provide to the
handicapped because it uses its funds exclusively for
the education of the handicapped. The plaintiffs' class
has not alleged that the SSD provides services to certain
categories of the handicapped that are not provided to
the severely handicapped.
~A-91-
secondary programs to "provide a free appropriate public
education to each qualified handicapped person. .. ."
34 C.F.R. $104.33(a). Appropriate education is defined
as regular or special education designed "to meet
individual educational needs of handicapped persons as
adequately as the needs of non-handicapped persons are
met..." 34 C.F.R. §104.33(b)1). The regulations
further provide a means of meeting the requirement
that education meet the individual needs of a
handicapped is through the development of an [EP. 34
C.F.R. $103.33(b2). The language used in these
regulations clearly parodies the language in the
Education For All Handicapped Children Act, 20 U.S.C.
§$1401 et seq.; the emphasis is the same. In order to
comply with the regulations, school officials are
obligated to consider the individual needs of the child
in order to meet the requirement of an "appropriate
education." Georgia Ass'n of Retarded Citizens v.
McDaniel, 511 F.Supp. 1263, 1281 (N.D. Ga. 1981). To
the extent that the state's policy precludes the
consideration of the individual needs of all handicapped
children and provides services to the non-handicapped,
the state is in violation of the Rehabilitation Act and
its regulations.12
12This court recognizes that the validity of
regulations enacted pursuant to the Rehabilitation Act,
29 U.S.C. §794, have been called into question by the
Supreme Court in Southeastern Community College v.
~A-92-
3. The Claims for Relief by
the Named Plaintiffs
In addition to seeking declaratory and injunctive
relief against the continued application of defendants'
policy, which precludes the provision of education
programs for handicapped children in excess of the
traditional 9 month school year, plaintiffs seek an order
requiring defendants to provide an extended school year
program for named plaintiffs Michael Yaris and Adam
(cont.)
Davis, 442 U.S. 397 (1979). In that case the Court
construed regulations concerned with the post-secondary
education rights of handicapped students. The Court
reasoned that "[{ijf these regulations were to require
substantial adjustments in existing programs beyond
those necessary to eliminate discrimination against
otherwise qualified individuals, they would do more than
clarify the meaning of Section 504" and therefore would
be invalid. Id. at 410. In the face of this decision a
number of courts have found the regulations presently
before this court valid. New Mexico Association for
Retarded Citizens v. New Mexico, 675 F.0d 847 (10th
Cir. 1983); a v. New Hanover County Bd. of Educ.,
t
551 F.Supp. . N.C. 1983); Association for
Retarded Citizens v. Frazier, 517 F.Supp. 105 (D. Colo.
1981); eres Cal of aeceraed Citizens v. McDaniel,
511 F.Supp. -D. Ga. 1981). is court concurs
with this conclusion in the context of this case. It has
already been shown that the additional services
requested by the plaintiffs' class are required by the
Education For All Handicapped Children Act. 20 U.S.C.
§§1401 et seq. Therefore, the implementation of these
regulations not require "substantial adjustments in
existing programs." Whether or not the regulations
would be valid if the State of Missouri was not a
recipient of and under the Education For All
Handicapped Children Act is not a question that this
court needs to reach.
-A-93-
Stubbs. For reasons which will be stated, this court
does not feel it would be appropriate to grant the
requested relief.
In addition to examining the substantive standards
set out by Congress in the Education For Al
Handicapped Children Act in Rowley, supra, the court
set out the appropriate standards for judicial review of
a child's IEP. Section 1415(e2) provides that a civil
action may concern "any matter relating to the
identification, evaluation, or educational placement of
the child, or the provision of a free appropriate public
education to such child." The Act further provides that
in reviewing the complaint a court "shali receive the
record of the [state] administrative proceeding, shall
hear additional evidence at the request of a party, and
basing its decision on the preponderance of the evidence,
shall grant such relief as the court determines is
appropriate." Section 1415(eX2). On the basis of these
provisions the Supreme Court concluded that Congress
did not intend a court reviewing a child's IEP to "have
a free hand to impose a substantive standard of review
which cannot be derived from the Act itself." 102
S.Ct. at 3051. The Court then went on to suggest that
@ court's inquiry is limited to two considerations: "First,
has the state complied with the procedures set forth
in the Act? And second, is the _ individualized
educational program developed through the Act's
procedures reasonably calculated to enable the child to
receive educational benefits? Id. However, the opinion
~A-94-
emphasized that a reviewing court must restrain itself
from imposing its view of "preferable educational
methods upon the states." Id.
Applying the above principles to the facts presented
by this case this court must conclude that it is
appropriate for the defendants to consider the needs of
the named plaintiffs for educational services in excess
of the traditional 9 month school year in the first
instance. It has been found that it is presently the
pattern and practice of the defendants not to consider
whether handicapped children are in need of extended
programming. See Findings of Fact Nos. 15, 17.
Therefore, the needs of Adam and Michael have never
been considered at the state level. Local officials
clearly have a higher level of expertise in resolving this
type of issue. For this reason, Congress specifically
left the primary responsibility for developing a free
appropriate education with state educational agencies,
which are primarily responsible for the development of
the IEP. Therefore this court declines to require the
defendants to provide the named plaintiffs with
educational services in excess of the traditional 9 month
school year. However, it will be the order of this court
that the defendants shall consider the needs of the
named plaintiffs and the member of the class without
the limitation previously imposed by the defendants'
policy of precluding the provision of educational services
in excess of the traditional 180 day school year.
-A-95-
4, Violations of 42 U.S.C. $1983,
the United States Constitution and
Missouri State Law
In addition to challenging the defendants’ policy of
limiting educational services for the handicapped in the
State of Missouri to the traditional 9 month school year
pursuant to the Education For All Handicapped Children
Act, 20 U.S.C. §$§1401 et seq., and §5N4 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. §794,
the plaintiffs' class also alleged a cause of action for
statutory violations pursuant to 42 U.S.C. $1983. In
Maine v. Thiboutot, the Supreme Court suggested that
42 U.S.C. $1983 is available as a remedy for violations
of federal statutes. 448 U.S. 1 (1980). Subsequently,
the Court limited this principle substantially by
recognizing two exceptions to this general rule.
Middlesex County Sewage Authority v. National Sea
Claimers Association, 453 U.S. 1 (1981). However, it
is unnecessary to reach the §1983 issue under the facts
of this case because violations of the Education For All
Handicapped Children Act and the Rehabilitation Act
have been found. The plaintiffs' class is not seeking
damages in this action. Furthermore the relief
requested for the statutory violations is coextensive
with the relief sought pursuant to §1983. Meiner v.
Missouri, 673 F.2d 969 (8th Cir. 1982).
The plaintiffs' class also has alleged that the policies
of the defendants violates the Due Process and Equal
Protection Clauses of the Fourteenth Amendment, and
~A-96-
that 42 U.S.C. $1983 provides a remedy for these
violations. Whenever an issue may be resolved on
statutory grounds, it is appropriate for a court not to
address the constitutional claims. Ashwander sv.
Tennessee Valley Authority, 297 U.S. 288, 347 (1935).
Therefore, these issues will not be addressed.
Finally, the class of plaintiffs seek to invoke this
court's pendent jurisdiction to review its claim under
the Missouri Constitution and Mo. Rev. Stat. §§162.670
et seq. The exercise of pendent jurisdiction lies within
the discretion of the court. United Mine Workers v.
Gibbs, 383 U.S. 715 (1966). The interpretation of the
Missouri statutes involves novel questions of state law
which this court is reluctant to consider. It is more
appropriate for state courts to interpret state law in
the first instance. Georgia Ass'n of Retarded Citizens
v. McDaniel, 511 F.Supp. 1283. Therefore, these issues
will not be reached.
5. The Individual Claim of the Yaris
Plaintiffs Against the Special School
District
In Count I of the complaint plaintiffs Robert and
Mary Yaris brought an individual action on their own
behalf, and on the behalf of their minor son, against
the Special School District for failing to provide their
minor son with an appropriate education. More
specifically, the plaintiffs allege that the defendant SSD
failed to implement an educational program for Michael
~A-97-
in a timely manner and failed to pay costs incurred
during the administraiive proceedings. The plaintiffs
contend that the actions of the defendant constitute a
violation of the Rehabilitation Act, 29 U.S.C. §794, 42
U.S.C. §1983, and Missouri state ‘aw; they seek
injunctive, declaratory, and monetary relief. Plaintiffs
seek reimbursement for costs of the transcript and
record of the panel hearing and for providing an
education for Michael from April of 1979 through August
of 1980. See Finding of Fact No. 30.
On the basis of the record and evidence adduced at
trial, see Findings of Fact Nos. 30-42, it is the
conclusion of this court that the SSD has not breached
eny obligation required by law by failing to reimburse
the plaintiffs for the cost of educating Michael from
April of 1979 through August of 1980. It is clear from
the record that the SSD made a good faith effort to
implement Michael's IEP in a_ timely fashion.
Furthermore, the piaintiffs have failed to present
authority for its allegation that a school district is in
breach of its legal obligations if it fails to provide costs
for educating a handicapped child prior to the
implementation of a child's IEP.!3_ Furthermore, in this
13Plaintiff's use of Howard S. v. Friendswood
Independent School District, 454 F.Supp. 634 (SD. Tex.
1979) as authority for recovery is inopposite. In that
case, the court agreed to award the plaintiff relief
because it found that the school district had engaged in
-A-98-
ease several of the delays resulted from the actions of
the plaintiffs. However, under Missouri law, the
plaintiffs are entitled to recover costs incurred for the
transcript and record sent to the State Board of
Education, in the amount of $388.70.
Relief
Accordingly, plaintiffs will be awarded $388.70
against the SSD on Count I of the complaint. The
relief requested with respect to state defendants in
Count II will be granted in part. It is the judgment of
this court that the application of a policy which
precludes the provision of educational services for the
handicapped in excess of the traditional 9 month school
year is unlawful. Therefore, an injunction will be
entered prohibiting the continued application of a policy
which refuses to consider the needs of the handicapped
children for extended programming. In addition, an
injunction will be entered requiring the state to live up
to its obligation of making sure that local agencies
provide handicapped children with an appropriate
education by not applying a policy that refuses to
consider the needs of the handicapped for summer
program ming. Finally, the request of the named
plaintiffs for an injunctive relief requiring the
defendants to provide them with extended programming
(cont.)
a calculated, deliberate effort to avoid its legal
responsibilities by failing to have a due process hearing
and by constructively expelling the plaintiff.
-A-99-
will be denied. However, the state defendants will
consider the need of these plaintiffs for educational
services in excess of 180 days.
S/S John F. Nangie
United States District Judge
Dated: March 3, 1983
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.