CUYAHOGA CTY. ASS'N FOR RETARDED CHILD'N, ETC. v. Essex, C74-587.

Citation411 F. Supp. 46
Decision Date05 April 1976
Docket NumberNo. C74-587.,C74-587.
PartiesThe CUYAHOGA COUNTY ASSOCIATION FOR RETARDED CHILDREN & ADULTS et al., Plaintiffs, v. Martin ESSEX, Individually, and as Superintendent of the State of Ohio, Department of Education, et al., Defendants.
CourtUnited States District Courts. 6th Circuit. United States District Court of Northern District of Ohio

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William D. Ginn, James T. Crowley, Eric T. Davis, Thompson, Hine & Flory, Cleveland, Ohio, for plaintiffs.

George Stricker, Asst. Atty. Gen., Columbus, Ohio, for defendant Kenneth Gaver.

Richard J. Dickinson, Asst. Atty. Gen., Columbus, Ohio, for all other named defendants.

Before WEICK, Circuit Judge, and GREEN and THOMAS, District Judges.

MEMORANDUM AND ORDER

BEN C. GREEN, District Judge.

This action presents a wide-ranging attack upon the Ohio system of education and/or training for mentally handicapped school-age children. Plaintiffs have asserted constitutional challenges to the statutes and regulations pertinent thereto on two grounds. It is alleged that the retarded are denied equal protection in that they are not afforded educational or training opportunity on the same basis as that accorded all other children of school age. It is further alleged that the retarded are denied due process in the classification procedures provided for determination of the education and/or training which they may receive. Plaintiffs seek a declaratory judgment that a number of Ohio statutes, and regulations promulgated thereunder, are unconstitutional and mandatory orders upon the defendants directing that they create and provide an educational system for the retarded upon the same terms as that offered to all other school-age children.1

This action is now before the Court upon the parties' cross-motions for summary judgment. Under these motions, with the limited record before the Court, the issues for consideration must be restricted to matters of facial constitutionality. Any questions of deprivation of constitutional rights by the manner in which the statutes and/or regulations are applied, if cognizable under the present pleadings and between the present parties, would require an evidentiary proceeding for development of the facts pertinent thereto.

It is appropriate to first deal with plaintiffs' equal protection arguments, as the issues thereunder are primary and basically arise under the Ohio statutes themselves. The issues as regards due process in the classification procedures, while presenting questions of constitutional dimension, may be considered to be secondary and arise under the regulations adopted under the statutes.

Plaintiffs contend that under the Ohio statutes all "normal" children of school age are subject to compulsory and mandatory participation in the free public educational system, but that the retarded are excluded therefrom. It is further contended that the retarded are offered only a discretionary and voluntary participation, with different programs applicable to children with I.Q.'s between 50 and 80 and those with I.Q.'s under 50. In essence, plaintiffs argue that the Ohio statutes create a three-tiered stratification, consisting of children with I.Q.'s over 80, those with I.Q.'s between 50 and 80 and those with I.Q.'s below 50, and that the latter two groupings are not granted the same rights and privileges and do not have imposed upon them the same obligations as does the first. These alleged differences are asserted as violative of the Fourteenth Amendment's guarantees, remediable under 42 U.S.C. §§ 1981 and 1983.

The question thus becomes whether the Ohio statutes do create the classifications as contended by plaintiffs, and, if so, are such classifications constitutionally impermissible.

At the outset, the interests with which we are concerned must be defined. While the Supreme Court has spoken of education as "perhaps the most important function of state and local governments", Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954), recognizing that "in these days it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education," ibid., the fact remains that education has not been accorded status as a constitutionally guaranteed right, San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), but rather is deemed a property right, Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). Once a state has determined to establish and maintain a system of free public education it must do so in a framework which does not deny to its children constitutionally protected rights. Goss v. Lopez, supra; Brown v. Board of Education, supra.

It therefore follows that in establishing and administering a public education system a state may incorporate classifications regarding the children to be educated thereunder, so long as such classifications can withstand constitutional scrutiny. The standard which this Court determines must be met under the instant record is the "rational basis" test. San Antonio School District v. Rodriguez, supra, 411 U.S. at pp. 39-40, 93 S.Ct. at p. 1300, 36 L.Ed.2d at pp. 46-47; Doe v. Laconia Supervisory Union No. 30, 396 F.Supp. 1291, 1296 (D.N.H., 1975); Lopez v. Williams, 372 F.Supp. 1279, 1298 (S.D.Ohio, 1973); Knight v. Board of Education of City of New York, 48 F.R.D. 108, 111 (E.D.N.Y., 1969). See also, Graham v. Richardson, 403 U.S. 365, 371, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534, 541 (1971); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491, 501 (1970). In order to invalidate a classification under the "rational basis" test it must be shown that it is arbitrary, does not rest upon some ground of difference having a fair and substantial relation to the object of the legislation, or that no state of facts exists which would reasonably support a legitimate state interest therein. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911).

The State of Ohio has embarked upon the task of providing a free public education for its children pursuant to Sections 3313.48 and 3313.64 of the Ohio Revised Code, which, in pertinent part, provide that:

The board of education of each city, exempted village, local, and joint vocational school district shall provide for the free education of the youth of school age within the district . . .
O.R.C. § 3313.48
The schools of each city, exempted village, or local school district shall be free to all school residents between five and twenty-one years of age . . . O.R.C. § 3313.64

It is certain provisions of Chapters 3321 (School Attendance), 3323 (Special Classes), and 5127 (Training of Mentally Retarded Children), of the Ohio Revised Code which plaintiffs contend create constitutionally discriminatory access to the Ohio system of free public education. Those statutes, in pertinent part, provide as follows:

O.R.C. § 3321.01

A child between six and eighteen years of age is "of compulsory school age" for the purpose of sections 3321.01 to 3321.13, inclusive, of the Revised Code.

O.R.C. § 3321.02

Every child actually resident in the state shall be amenable to the laws relating to the compulsory education . . .

O.R.C. § 3321.03

Except as provided in this section, the parent, guardian, or other person having the care of a child of compulsory school age which child has not been determined to be incapable of profiting substantially by further instruction shall cause such child to attend a school . . . Every child of compulsory school age who has not been determined to be incapable of profiting substantially by further instruction shall attend a school . . . until one of the following occurs: . . .
(C) The child is excused from school under standards adopted by the state board of education pursuant to section 3321.04 of the Revised Code. (emphasis added)

O.R.C. § 3321.04

Every parent, guardian, or other person having charge of any child of compulsory school age . . . who has not been determined to be incapable of profiting substantially by further instruction, must send such child to a school . . .. (emphasis added)

O.R.C. § 3321.05

A child of compulsory school age may be determined to be incapable of profiting substantially by further instruction.
The state board of education may prescribe standards and examinations or tests by which such capacity may be determined, . . . but the capacity of a child to benefit substantially by further instruction shall be determined with reference to that available to the particular child in the public schools of the district in which he resides, and no child shall be determined to be incapable of profiting substantially by further instruction if the superintendent of public instruction, pursuant to board standards, finds that it is feasible to provide for him in such district, or elsewhere in the public school system, special classes or schools, departments of special instruction or individual instruction through or by which he might profit substantially, according to his mental capacity as so determined . . .
. . . If a child is determined to be incapable of profiting substantially by further instructions, such determination shall be certified by the superintendent of public instruction to the superintendent of schools of the district in which he resides, who shall place such child under the supervision of a visiting teacher or of an attendance officer, to be exercised as long as such child is of compulsory school age . .
Any determination made under this section may be revoked by the state board of education for good cause shown.
A child determined to be incapable of profiting substantially by further instruction shall not hereafter be admitted to the public schools of the state while such determination remains
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