Boxall v. Sequoia U. High Sch. Dist.

• Decision Date: 09 January 1979
• Docket Number: No. C-78-1588 RFP.,C-78-1588 RFP.
• Citation: 464 F. Supp. 1104
• Court: U.S. District Court — Northern District of California
• Parties: Frank BOXALL et al., Plaintiffs, v. SEQUOIA UNION HIGH SCHOOL DISTRICT et al., Defendants.

464 F. Supp. 1104

Frank BOXALL et al., Plaintiffs, v. SEQUOIA UNION HIGH SCHOOL DISTRICT et al., Defendants.

No. C-78-1588 RFP.

United States District Court, N. D. California.

January 9, 1979.

COPYRIGHT MATERIAL OMITTED

Alice Schaffer Smith, Palo Alto, Cal., for plaintiffs Frank Boxall, et al.

Thomas A. Branson, Branson, Fitzgerald & Howard, Redwood City, Cal., for defendant Sequoia Union High School District.

George Camerlengo, Deputy Dist. Atty., County of San Mateo, Redwood City, Cal., for defendant San Mateo County.

John L. Hartman, San Francisco, Cal., for defendant San Mateo Office of Education.

Charlton G. Holland, III, Winifred Younge Smith, Deputy Attys. Gen., San Francisco, Cal., for defendant State of California.

MEMORANDUM AND ORDER

PECKHAM, Chief Judge.

This action was brought by David Boxall, a sixteen year old autistic child, and his father, Frank Boxall, seeking injunctive relief and damages for the alleged failure of defendant Sequoia Union High School District ("the District") to provide David with a "free, public education appropriate to his needs." Defendants are the District, the State of California ("the State"), San Mateo County ("the County"), and individuals representing those institutions, and it is alleged that their refusal to pay for a fulltime private tutor for David in the home of the Boxalls violated the Civil Rights Act of 1871, 42 U.S.C. § 1983; the Rehabilitation Act of 1973, § 504, 29 U.S.C. § 794; and the Education for All Handicapped Act of 1975, 20 U.S.C. §§ 1401-1420, amending 20 U.S.C. §§ 1401-1461. Pendent claims based on California statutory and constitutional law are also made.

The complaint was filed on July 18, 1978. The State and District answered, while the County moved to dismiss under Federal Rule 12(b) and for a more definite statement under Federal Rule 12(e). Although, as explained below, the motion to dismiss raises some novel issues in the developing law of the handicapped, both of the motions must be denied.

FACTUAL ALLEGATIONS

The complaint alleges that David Boxall was ready to enter high school on September 13, 1976.¹ Prior to that date, on June 8, 1976, the District Admissions and Discharge Committee of the Sequoia Union High School District met to consider him for admission to programs of that school. Frank Boxall was not informed about the meeting or of his right to appear. At the meeting the District Committee agreed that David suffered from autism and that there was no program within the District that would be appropriate for him. Accordingly, his situation was referred to the County Autistic Program, operated by the County under contract to the District. The County Admission and Discharge Committee, however, felt that the County program was also inappropriate because, in their opinion, David Boxall needed a one-to-one relationship with a teacher because of the nature of his autistic condition.

Frank Boxall met with District personnel on September 17, 1976, and was told that a State consultant rejected the County findings and suggested that David Boxall be observed within the County Autistic Program before assuming that the County program was inappropriate. Dr. Boxall, claiming that such an experiment would cause severe damage to David, refused to permit him to be placed in the County program. On October 26, 1976, the Committee decided to make no recommendation until David was observed in the County program or until a new report was obtained from a school psychologist or other relevant agency.

A District psychologist, at the request of the County, then evaluated David on January 11, 1977, concluding that David needed a "one-to-one, highly individualized program." This recommendation was never acted upon.

On October 10, 1977, early in the next school year, Frank Boxall requested a hearing pursuant to regulations issued under the Education for the Handicapped Act and now contained at 45 C.F.R. § 121a.506. The Fair Hearing Panel met on January 11, 1978, and determined that an independent agency should develop an "individualized education program" (I.E.P.) for David, and on May 1, 1978, the Golden Gate Regional Center made such an assessment, agreeing with David's father and the previous assessment of David's educational needs. The District Admission and Discharge Committee accepted the I.E.P., but it did not implement the recommendation while it appealed the Fair Hearing Panel's decision. It offered instead to provide a home tutor for one hour a day, as opposed to the recommended six hours per day. The offer was refused, and David Boxall therefore received no aid from the State, District, or County for the academic years 1976-77 and 1977-78.

During that time, however, Frank Boxall retained a tutor at his own expense, and plaintiffs are now seeking reimbursement for expenditures involved in securing the tutor. On May 9, 1978, Dr. Boxall requested a Fair Hearing on the issue of his damages for securing the private tutor. The Hearing Panel met on June 23, 1978 and reached a decision on July 2, 1978. Plaintiff appealed the decision, and an appellate hearing was held on August 29, 1978. Although the time period for ruling on the appeal had passed as of at least October 6, no ruling has been made.

APPLICABLE FEDERAL LAW

Federal courts began to recognize the rights of the handicapped persons in education in the early 1970's. See, e. g., Mills v. Board of Education of the District of Columbia, 348 F.Supp. 866 (D.D.C.1972) (due process and equal protection rights of emotionally disturbed to appropriate education), Pennsylvania Association for Retarded Children v. Pennsylvania, 343 F.Supp. 279 (E.D. Pa.1972), modifying 334 F.Supp. 1257 (three-judge panel) (consent decree entered on due process and equal protection claims), New York Association for Retarded Children v. Rockefeller, 357 F.Supp. 752 (E.D.N. Y.1973); Harrison v. Michigan, 350 F.Supp. 846 (E.D.Mich.1972); Kruse v. Campbell, 431 F.Supp. 180 (E.D.Va.1977) (three-judge panel), judgment vacated and remanded sub nom. Campbell v. Kruse, 434 U.S. 808, 98 S.Ct. 38, 54 L.Ed.2d 65 (1977).

Since the Supreme Court's decision in San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), the equal protection standard of review in education cases has been clarified, and accordingly some of the specific holdings on that basis are now questionable. Indeed, the equal protection decision in Campbell v. Kruse, supra, was vacated by the Supreme Court and remanded with instructions to resolve the case according to recent federal statutes, see also, e. g., Cuyahoga County Association for Retarded Children, Etc. v. Essex, 411 F.Supp. 46 (N.D.Ohio 1976).

The conscience of Congress, however, responded to the problems of the handicapped which had led to the constitutional decisions. Federal statutory reforms have now gone as far or even farther than the constitutionally based decisions of the early 1970's. Congress responded in particular with the Rehabilitation Act of 1973. 29 U.S.C. § 701 et seq. Section 504 of the Act, 29 U.S.C. § 794, provides as follows:

No otherwise qualified handicapped individual in the United States, as defined in section 706(6) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

This is analogous to the rights of minorities under Title VI of the Civil Rights Act of 1964.² In addition, the Education of the Handicapped Act of 1975, 20 U.S.C. § 1401 et seq., establishes a strict set of conditions under which states can obtain federal assistance for funding made available for programs for the handicapped. Detailed regulations have also been issued by the Secretary of Health, Education, and Welfare under both new laws. 45 C.F.R. Pt. 84; 45 C.F.R. Pt. 121a.³

With the enactment of these laws and regulations, the handicapped have been provided with a formidable array of federal rights, both procedural and substantive. There are some differences in the coverage of the various statutes,⁴ but the general purposes are the same. With respect to education, according to the Secretary of Health, Education, and Welfare,

The basic requirements ... are (1) that handicapped persons, regardless of the nature or severity of their handicap, be provided a free appropriate public education, (2) that handicapped students be educated with nonhandicapped students to the maximum extent appropriate to their needs, (3) that educational agencies undertake to identify and locate all unserved handicapped children, (4) that evaluation procedures be improved in order to avoid the inappropriate education that results from the misclassification of students, and (5) that procedural safeguard be established to enable parents and guardians to influence decisions regarding the evaluation and placement of their children.

45 C.F.R. Pt. 84, App. A at 384 (1977).

It is evident that the allegations of plaintiffs touch on new and potentially very important federal rights. They contend that they were deprived of a hearing prior to the refusal to grant David Boxall a free appropriate public education, and they contend that, if the right to an appropriate education is to be meaningful, it must encompass —even at considerable expense— the provision of a full-time tutor in the home of an autistic child who cannot fit into another educational setting. Clearly such a situation is within the scope of the statutory scheme. Nevertheless, defendant contends that this right cannot be pursued in this forum at this time. The contention is mistaken, as can be shown by an examination of the arguments propounded in favor of the motion to dismiss.

MOTION TO DISMISS

I. The Private Right of Action Under Section 504 of the Rehabilitation Act of 1973

Defendant's basic contention appears to be that the conduct of defendants cannot...