Akers v. Bolton, Civ. No. 80-1112.

Decision Date13 November 1981
Docket NumberCiv. No. 80-1112.
Citation531 F. Supp. 300
CourtU.S. District Court — District of Kansas
PartiesAnthony AKERS, et al., Plaintiffs, v. Merle R. BOLTON, Commissioner of Education for the State of Kansas, et al., Defendants.

COPYRIGHT MATERIAL OMITTED

Robert L. Feldt, Great Bend, Kan., for plaintiffs.

Erle W. Francis, Topeka, Kan., Mary Kathleen Babcock, Daniel J. Sevart, Wichita, Kan., for defendants.

MEMORANDUM AND ORDER

KELLY, District Judge.

This most provocative case has been fully tried to the Court, and is now ready for decision. It has been brought by plaintiffs Anthony Akers and Philip Moore, and their parents, on behalf of a putative class of all epileptic school-aged children in the State of Kansas. Plaintiffs seek to have that class certified pursuant to Rule 23 of the Federal Rules of Civil Procedure, and seek injunctive relief on behalf of the class against the Kansas Commissioner of Education and against the Superintendent of Unified School District No. 259, Wichita, Kansas. In brief, plaintiffs contend that defendants' policies and practices violate both individual and class rights to a "free appropriate public education" that are granted by the Education for All Handicapped Children Act, 20 U.S.C. § 1401 et seq., (EAHCA); by Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; by the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the Constitution; and by the Kansas Special Education for Exceptional Children Act, K.S.A. 72-961 et seq.

In particular, plaintiffs suggest that the school district's Comprehensive Plan for the Education of Exceptional Children (Def. Ex. MM) is insufficient to accomplish the intended goals of the EAHCA, and should be revised to require that each school child be screened for epilepsy, that each epileptic child be evaluated for possible educational deficits attendant upon his or her epilepsy, that specific optional educational programs be made available as a matter of course to epileptic children, and that these programs be designed in consultation with experts knowledgeable as to both the neurological and educational aspects of epilepsy. While plaintiffs do not voice any particular criticism of the Kansas Plan for Special Education (Def. Ex. G), they do contend that the commissioner has insufficiently enforced that plan's identification, screening and evaluation requirements against the local school districts.

In this regard, although he admits that the respective plaintiffs suffer from epilepsy, the commissioner opposes plaintiffs' position, insisting that the State Plan for Special Education has at all times been in conformity with the requirements of the EAHCA and enforced it against the local districts. He suggests that the plan requires that school-aged children be screened and identified so that, where necessary, an individual educational program (IEP) may be developed, thus allowing handicapped children, including those who are epileptic, a free, appropriate public education. Further, he contends that to aid in the development of the IEP the state has gone to great lengths to establish a procedure known in educational parlance as "due process," whereby input from the student involved, parents, educators, and other persons, including psychologists, psychiatrists, physicians, therapists, etc., are received by a local district. From the information received, an IEP is drafted to meet the needs of the individual student. The commissioner claims that the procedures established call for notice and an opportunity to be heard, and fulfill both the spirit and the intent of the EAHCA.

Most specifically, the commissioner urges that a student suffering from epilepsy does not, by that reason alone, necessarily require either special education or related services. In this, such a student might best be placed into the education system with other nonhandicapped students (mainstreamed), or the student might have some learning disability that would require development of an IEP. Simply stated, the commissioner urges that each plaintiff or any student is to be assessed as an individual and that a stereotypical classification should not satisfy Rule 23 nor mandate injunctive relief.

Similarly, U.S.D. 259 excepts to the plaintiffs' contentions and also urges a finding of reasonable and appropriate compliance with the federal and state mandates; it claims that it vigorously supports a program of screening, identification and evaluation of students suspected to be in need of special education.

The Court has previously taken plaintiffs' motion for class certification under advisement, and over objections of the defendants has heard that case in concert with the claim for injunctive relief, conducting a full evidentiary hearing as to all aspects of their claims, and thereby obtaining some appreciation of the application of the referred acts and plans.

Upon completion of presentation of plaintiffs' evidence, the Court overruled the defendants' respective motions for dismissal, impressed in part as to the importance and impact of plaintiffs' thesis. Indeed, this is a case that should have been heard, if for no other reason than to permit articulation of the plight of those so afflicted and to test the propriety of the present law and its implications. Certainly, the sharp focus of the issues through most persuasive and well-prepared counsel—both sides—has been of considerable benefit in the Court's effort to reach decision. Indeed, the thrust of the plaintiffs' evidence is deserving of review.

Epilepsy is not a single, well defined condition, but varies among individuals as to its symptoms and effects. People with epilepsy have sudden, recurrent, episodic disturbances in the normal patterns of electrical activity in the brain; these disturbances are associated with characteristic behavioral manifestations known as seizures, whose form depends on the part of the brain where the electrical disturbance occurs or originates (the focus or focal point), and on the extent of the disturbance. Precise diagnosis of the condition can be difficult, since it requires both observation of the seizures and monitoring of the electrical disturbances through an electroencephalogram (EEG); indeed, epilepsy has been referred to as a "hidden disease," because it is virtually impossible to distinguish epileptics from nonepileptics, apart, of course, from their seizures and the electrical disturbances that accompany them.

Partial seizures, which are associated with electrical disturbances that have a focal point, may involve difficulty in speaking, visual or other sensory hallucinations, involuntary movements of various parts of the body, or convulsive movements; the partial seizure with complex symptomatology, or psychomotor seizure, involves complex combinations of these manifestations. Generalized seizures, which are associated with electrical disturbances of the entire brain, have two main forms. One form is the petit mal or absence seizure, in which the person suddenly enters a momentary trance-like state, sometimes described as a "staring spell," and may also perform automatic movements such as pacing or fumbling with clothing; another form is the grand mal or tonic-clonic seizure, which is characterized by violent convulsions, and is usually followed by a deep sleep. Partial seizures can often evolve into generalized seizures, as the electrical disturbance spreads within the brain; moreover, combinations of more than one type of seizure can be seen in a single person. Seizures themselves are often followed by periods of disorientation and confusion. The length and depth of confusion seems often to be directly related to the severity of the preceding seizure: the confusion that follows a severe grand mal seizure may last for several hours. Examples of the three main forms of epilepsy—grand mal, petit mal or absence, and psychomotor—are illustrated in the illuminating film, "Images of Epilepsy," with which plaintiffs began the presentation of their case.

Epilepsy may be associated with clearly evident brain injury—for example, brain tumors, diseases of the blood vessels, or traumatic injury—but it is just as likely that no such injury will be evident. In a very small number of cases epilepsy may be medically treatable by surgery, but the treatment of choice usually involves the administration of anticonvulsant drugs. In perhaps one-half of the cases of epilepsy, drugs can in essence completely eliminate seizures; in the remainder of cases the frequency and severity of the seizures can be lessened, but the seizures cannot be eliminated entirely. Even when medical control of seizures is entirely feasible, however, there may be several obstacles to its achievement: many partial or petit mal seizures are quite subtle and difficult to recognize, and a child may have such seizures for years before they are discerned and medical treatment is sought; the epilepsy may be misdiagnosed, or the physician's choice of drug or the dose prescribed may be less than optimal; and the epileptic's compliance with an appropriate medical regimen prescribed by his or her physician may, for any number of reasons, be less than perfect.

It is well established and accepted here that epileptic children are statistically at risk for having educational problems: educational deficits are more common in children that have epilepsy than in those who do not. The causal underpinnings of this statistical link, however, are neither simple nor entirely understood. The seizures themselves may have substantial effect on the child's ability to learn, particularly if they are frequent: plainly, the child will lose time from learning, both during the seizure and during the post-seizure period of confusion. This loss of learning time will, of course, be minimal in the child whose seizures are well controlled, but may be significant, for example, for the child whose seizures have not been diagnosed...

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5 cases
  • Mitchell v. Walter
    • United States
    • U.S. District Court — Southern District of Ohio
    • May 14, 1982
    ...v. Campbell, 630 F.2d 237 (4th Cir. 1980); Ruth Anne M. v. Alvin Independent Sch. Dist., 532 F.Supp. 460 (S.D.Tex.1982); Akers v. Bolton, 531 F.Supp. 300 (D.Kan. 1981); Doe v. Anrig, 500 F.Supp. 802 (D.Mass.1980); Rose v. State of Nebraska, 530 F.Supp. 295 (D.Neb.1981); Harris v. Campbell, ......
  • Turillo v. Tyson, Civ. A. No. 81-0356.
    • United States
    • U.S. District Court — District of Rhode Island
    • March 29, 1982
    ...County Board of Education, 664 F.2d 410 (4th Cir. 1981) (finding, however, a § 1983 action for preliminary relief); Akers v. Bolton, 531 F.Supp. 300 (D.Kan. Nov. 13, 1981); Tatro v. Texas, 516 F.Supp. 968, 981-84 (N.D.Tex. 1981). Consequently, attorney's fees may not be awarded to plaintiff......
  • Fuqua v. Unisys Corp., Civ. No. 4-88-83.
    • United States
    • U.S. District Court — District of Minnesota
    • June 30, 1989
    ...85, 86-87 (W.D.Wash. 1982); cardio-vascular disease, Bey v. Bolger, 540 F.Supp. 910, 916 (E.D.Pa.1982); and epilepsy, Akers v. Bolton, 531 F.Supp. 300, 313 (D.Kan.1981). Plaintiff contends that by exercising due care, or with a reasonable accommodation, he could have performed the tasks of ......
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