ASS'N FOR RETARDED CITIZENS IN COLO. v. Frazier

• Decision Date: 20 May 1981
• Docket Number: Civ. A. No. 80-K-563.
• Citation: 517 F. Supp. 105
• Parties: ASSOCIATION FOR RETARDED CITIZENS IN COLORADO; Legal Center For Handicapped Citizens; Estevan Solis, Jr., a minor by and through his parents, Estevan and Olivia Solis; Timmy Clare, a minor by and through his parents, Robert and Sally Clare; Amy Becker, a minor by and through her mother Carol Becker; Russell Langren, a minor by and through his parents, Raymond and Rita Langren; Walter Philip Hilton, by and through his parents, Leslie and Elaine Hilton; and All Other Persons Similarly Situated, Plaintiffs, v. Calvin FRAZIER, individually and in his capacity as Commissioner of the Colorado Department of Education; and the Colorado Department of Education, Defendants.
• Court: U.S. District Court — District of Colorado

517 F. Supp. 105

ASSOCIATION FOR RETARDED CITIZENS IN COLORADO; Legal Center For Handicapped Citizens; Estevan Solis, Jr., a minor by and through his parents, Estevan and Olivia Solis; Timmy Clare, a minor by and through his parents, Robert and Sally Clare; Amy Becker, a minor by and through her mother Carol Becker; Russell Langren, a minor by and through his parents, Raymond and Rita Langren; Walter Philip Hilton, by and through his parents, Leslie and Elaine Hilton; and All Other Persons Similarly Situated, Plaintiffs, v. Calvin FRAZIER, individually and in his capacity as Commissioner of the Colorado Department of Education; and the Colorado Department of Education, Defendants.

Civ. A. No. 80-K-563.

United States District Court, D. Colorado.

May 20, 1981.

COPYRIGHT MATERIAL OMITTED

Bruce C. Bernstein, Chester R. Chapman, Legal Center for Handicapped Citizens, Denver, Colo. for plaintiffs.

JoAnn Soker, Jeffrey A. Weinman, Thomas V. Holland, Asst. Attys. Gen., Denver, Colo., for defendants.

ORDER

KANE, District Judge.

This is a class action suit by and on behalf of all handicapped children ages five to twenty-one living at the state home and training school at Ridge who have allegedly been denied a free appropriate public education as required by the Education for all Handicapped Children Act of 1975, Public Law 94-142, 20 U.S.C. §§ 1401 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and the Fourteenth Amendment. Ridge is a public residential care facility for the mentally retarded. Plaintiffs seek declaratory and injunctive relief for the deprivation of their constitutionally protected civil rights and federal statutory rights. The gravamen of the complaint is that both the local educational agencies in Jefferson County, Colorado, and in the counties where the handicapped children's parents reside refuse to provide the children with an individualized educational program necessary for their educational development as required by federal law. The action is pursuant to 42 U.S.C. § 1983. Jurisdiction is conferred by 28 U.S.C. §§ 1331, 1343(3) and (4), and 20 U.S.C. § 1415(e).

On July 9, 1980, defendants Frazier, the Commissioner of the Colorado Department of Education, and the Colorado Department of Education moved to dismiss this action alleging failure to state a claim, failure to exhaust administrative remedies, failure to join indispensable parties, or in the alternative, they argued the court was estopped from hearing the matter and that the court should abstain. After hearing on August 19, 1980, I held that there was a claim under 42 U.S.C. § 1983 and denied the motion to dismiss or for summary judgment. I indicated that additional parties might be necessary but that such could be determined after further discovery. I also declined to abstain and rejected the defendants' estoppel by inference argument. I instructed the parties to proceed with discovery through interrogatories to identify the necessary parties, claims for relief, documents, and the contested issues of fact and law. I indicated that a status conference would be set in mid-October to evaluate the information received. On October 21, 1980, the parties again raised the issues of jurisdiction and indispensable parties. I granted the opportunity to file briefs regarding the motion to dismiss or for summary judgment. Defendants renewed the motion to dismiss or for summary judgment raising once again the issues of failure to state a claim, failure to exhaust administrative remedies, failure to name indispensable parties, and estoppel. The issues have been fully briefed by both parties. I will now rule on all these issues.

JURISDICTION UNDER PUBLIC LAW 94-142

Defendants argue that the plaintiffs' complaint fails to state a claim under the Education for All Handicapped Children Act (hereinafter referred to as P.L. 94-142) because, they say, it does not apply to handicapped children receiving educational services in a state-operated program not funded by P.L. 94-142 funds but by funds pursuant to former Public Law 89-313, now codified at 20 U.S.C. §§ 2771, 2772 (hereinafter referred to as P.L. 89-313). P.L. 94-142 requires that in order to qualify for funds under the act a state must demonstrate that it has in effect "a policy that assures all handicapped children the right to a free appropriate public education." 20 U.S.C. § 1412(1). The state must develop a plan pursuant to section 1413(b) to make concrete its assurances, 20 U.S.C. § 1412(2); must establish priorities regarding the education of handicapped children, 20 U.S.C. § 1412(3); must require local educational agencies to keep records of individual plans for handicapped children, 20 U.S.C. § 1412(4); must establish procedural safeguards as required by section 1415 to assure a free appropriate public education for all handicapped children, 20 U.S.C. § 1412(5); must assure, through its state educational agency, that all educational programs administered by it and other state or local agencies are under its supervision and comply with state educational standards, 20 U.S.C. § 1412(6); and must assure that procedures are established for consulting individuals or entities concerned with or involved in the education of handicapped children and that public hearings are held on the matter, 20 U.S.C. § 1412(7). Under P.L. 94-142 a "free appropriate public education" means

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 educational program required under section 1414(a)(5) of this title.

20 U.S.C. § 1401(18). "Special education" is defined as "specially 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 those services which "may be required to assist a handicapped child to benefit from special education...." 20 U.S.C. § 1401(17). These include transportation and developmental, corrective, and supportive services such as speech pathology, audiology, recreation, psychological services, certain medical services, physical therapy, occupational therapy, and counseling services.

Under P.L. 94-142 the individualized educational program (IEP) gives substance to the required "free appropriate public education." An IEP is defined as 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 guardian of such child, and whenever appropriate, 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 shortterm 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 instructional objectives are being achieved.

20 U.S.C. § 1401(19). The IEP must be reviewed and revised by the local educational agency at least annually. 20 U.S.C. § 1414(a)(5).

P.L. 89-313, enacted in 1965, added section 241c-1 to Title 20 of the United States Code which provided for a federal funding program for handicapped children served directly by state agencies. The funding program was reenacted pursuant to the Education Amendments of 1978, Public Law 95-561, and is now codified at 20 U.S.C. §§ 2771, 2772. The focus of defendants' argument is that recipients of P.L. 89-313 funds need not comply with all of the P.L. 94-142 requirements. They contend that Ridge is funded by P.L. 89-313 and not P.L. 94-142. Defendants point out that congress has failed to clarify the requirements which must be met by directly funded state agencies in the provision of a free appropriate public education for handicapped children within those state agencies. Nevertheless, a free appropriate public education still must be assured for those children.

Under the reenacted P.L. 89-313 each child in the state facility must be provided an educational program commensurate with his special needs. 20 U.S.C. § 2722. The state requires that programs and projects receiving grant monies under section 2771 comply with subpart 3 of part A, viz., 20 U.S.C. §§ 2731, 2734, 2736(a), (b), (c), 2737, 2738, 2739, and 2740. Under section 2731 an application must be filed and approved setting forth the manner in which the funds will be used. Section 2734 sets forth the permissible uses of funds and requirements for the design and implementation of programs for handicapped children. In order to receive funds the local educational agency must identify handicapped children, identify the general instructional areas of the program, and identify the children's special educational needs. 20 U.S.C. § 2734(b). The provision requires the planning of a program in coordination with other programs, evaluation of the program, and teacher, school board and parental involvement. 20 U.S.C. § 2734(c), (f), (g), (i), and (j). Extensive parental involvement is required in the form of a parental advisory council. 20 U.S.C. § 2735. A complaint procedure is set forth in section 2738 by which local...