David H. v. Spring Branch Independent School Dist.

• Decision Date: 05 August 1983
• Docket Number: C.A. No. H-80-2739.
• Parties: DAVID H., Through his parents and next friends John and Arlene H. v. SPRING BRANCH INDEPENDENT SCHOOL DISTRICT, et al.
• Court: U.S. District Court — Southern District of Texas

569 F. Supp. 1324

DAVID H., Through his parents and next friends John and Arlene H. v. SPRING BRANCH INDEPENDENT SCHOOL DISTRICT, et al.

C.A. No. H-80-2739.

United States District Court, S.D. Texas, Houston Division.

August 5, 1983.

COPYRIGHT MATERIAL OMITTED

Sarah Scott, Brooklyn, N.Y., for plaintiffs.

Jeffrey A. Davis, Reynolds, Allen & Cook, Houston, Tex., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

CARL O. BUE, Jr., District Judge.

Introduction

Plaintiffs, Arlene H., John H., and David H., brought this action pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Supp.1982), the Education for All Handicapped Children Act, 20 U.S.C. § 1401, et seq., (1978), 42 U.S.C. § 1983 (1981), the Fourteenth Amendment to the United States Constitution, the Texas Education Code, and the Texas Administrative Code. Plaintiffs claim damages as a result of certain actions taken by defendants in 1975 and 1976, after which David was educated in private schools rather than in the Spring Branch Independent School District.

The cause was tried to the Court without a jury. At the conclusion of the trial the Court requested that the parties file additional legal memoranda and took the case under advisement. Pursuant to Rule 52(a), Fed.R.Civ.P., the Court hereby enters its Findings of Fact and Conclusions of Law detailing the reasons for its conclusion that plaintiffs should prevail on the merits and that the defendants are liable to plaintiffs for $24,259, plus interest at the legal rate.

Findings of Fact

1. Historical Narrative

1. David H. is a handicapped male student born November 15, 1963, who under Texas and federal law is classified as a learning disabled student. Admission of Fact 1. He has an older brother and an older sister who attended and graduated from Spring Branch Independent School District. Admission 16. David's mother, Arlene H., lived within the Spring Branch Independent School District at the same address during all times material to this lawsuit. Testimony of Arlene H.

2. In February 1975 plaintiff Arlene H. contacted the Spring Branch Independent School District regarding David. Admission 3.

3. The Spring Branch Independent School District arranged for David to have a psychological evaluation. Admission 4.

4. Ms. Dorothea Cooper, a Master's level child clinical psychologist employed by the Spring Branch Independent School District, evaluated David on September 17, 1975. In her written report, Ms. Cooper recommended: "Maintain David at Memorial Hall or similar private school. David's functioning is so low that if placed in a public school, he would have to be considered for inclusion in a class for the educable mentally retarded child hereinafter "EMR"." Admission 5.

5. Ms. Cooper recommended private rather than public schooling because no appropriate class existed in Spring Branch for David. Spring Branch had classes for EMR and for normal but slow learning students, but there was no middle ground for students like David who were classified as learning disabled. Testimony of Dorothea Cooper.

6. Ms. Cooper explained this to Arlene H. at their meeting in September 1975, and, consequently, Arlene H. continued David's education at Memorial Hall for the 1975-1976 school year, along with a supplemental program at the Learning Development Center. Testimony of Dorothea Cooper and Arlene H. The total expenses for that year were $2864.¹

7. On February 2, 1976, Arlene H. called the office of the Texas Education Agency (hereinafter "TEA") and spoke to Don Weston, the TEA director for program analysis in special education. In that conversation, Arlene H. expressed her interest in a public education for David, if appropriate, and also her need for help in finding a suitable program. Plaintiffs' Exhibit 6, PPS Routing Slip.

8. Weston referred the inquiry to Janie Fox Jones, chief consultant for the reorganization of special education, who undertook to investigate the matter. Ms. Jones called Dorothea Cooper, and the two discussed the matter for approximately an hour. Plaintiffs' Exhibit 6, Jones' Memo. Ms. Cooper then changed her opinion as to David's placement, and at the Admission, Review and Dismissal ("ARD") Committee meeting Ms. Cooper recommended that David be placed in an EMR class. At trial, she could not reconcile her change in recommendation. Testimony of Dorothea Cooper.

Shortly after the conversation with Ms. Cooper, Ms. Jones called Charlotte Lewis, assistant superintendent for special education at Spring Branch, Admission 26, who then contacted Arlene H. Ms. Lewis's responsive letter to Ms. Jones indicated that Arlene H. was interested in appropriate placement for David in Spring Branch. Plaintiffs' Exhibit 6, Lewis's letter 2/24/76. After this sequence of events, it was Ms. Jones's opinion that "perhaps, we need to talk about this one very soon." Plaintiffs' Exhibit 6, Jones' Memo.

9. In their telephone conversation, Ms. Lewis told Arlene H. that an ARD Committee meeting would be held to determine David's appropriate placement. The mother called every two or three weeks thereafter to learn whether such a meeting had been held. Finally, she learned, after the fact, that a meeting had been held on April 20, 1976, without either parent's presence, and that a recommendation had been made. Testimony of Arlene H. The ARD Committee suggested that David be placed in an EMR class to be watched closely and that in the event his functioning in the school setting became higher, he would be reconsidered for another program. The committee did not state which program might be reconsidered. Plaintiffs' Exhibit 1 at 728.

10. The mother rejected this recommendation, stating that her son was not mentally retarded. Plaintiffs' Exhibit 6, Pupil Services Contact Report.

11. Ms. Jones contacted Arlene H. again in June 1976 and understood from the conversation, erroneously, that David was enrolled in the Country School. Plaintiffs' Exhibit 6, Pupil Services Contact Report. In fact, David continued his classes at the Learning Development Center for the summer of 1976.

12. For the regular school year of 1976-1977, David attended the Patch School, a private school for normal children. He was given special instruction and did quite well. Testimony of Arlene H.; Plaintiffs' Exhibit 1 at 687-89, evaluation of Joan Anderson, Ph.D. The expenses for educating David during 1976-77 were $2240.²

13. In December 1976, Spring Branch closed its file on David and placed it in the inactive files. Admission 29. The reason for the closing was that Spring Branch personnel believed the parents had voluntarily withdrawn their child from the district. Testimony of Jan Barnett. However, no evidence in the trial revealed correspondence to this effect from the parents to the defendants, only writings stating the educators' impressions of what Arlene H. intended. Plaintiffs' Exhibits 1 and 6.

14. No attempt was made after the file was closed to contact David or his parents, and there was no procedure to go through the closed files for a review, unless a person requested information from a file. Testimony of Don Weston and Jan Barnett. At the time the new educational laws began to take effect in 1977 and 1978, the school district did not have the personnel or the funds to expend the man hours required to examine all of the many closed files. Instead, they determined that it was best in the beginning to concentrate on the public awareness program. Testimony of Don Weston. Later a program was begun to go back through all of the closed files. Testimony of Lucinda Randall.

15. During the school year of 1977-1978, David was enrolled at the Trafton Academy, and the expenses for that year were $5395.³

16. In 1977 and 1978, Spring Branch began a major development in the area of education for the learning disabled, with programs for these students being greatly expanded. Admission 31. Further, twenty to twenty-five new teachers were hired that year with most of them being employed to teach the learning disabled. The term "learning disabled" came into being in 1978, and many students previously classified as "minimally brain injured" were placed in this category. Testimony of Lucinda Randall. However, none of these new developments were ever made known to Arlene H. by the defendants. Testimony of Arlene H.

17. In the same year, 1977, the TEA began a program of public awareness called "Child Find". This was for the purpose of finding handicapped children who were not receiving a free appropriate public education, and this was a continuing effort. The TEA used newspaper advertisements, television, radio, films, brochures, speeches—a general blitz to inform the public that more effective special education was available. Testimony of Don Weston.

Officials from Spring Branch contacted all private schools in the area, and brochures were mailed to Spring Branch citizens. Seven residential schools were visited, including Brush Ranch where David was enrolled. There is no explanation why he was not brought to the attention of the Spring Branch personnel. Testimony of Lucinda Randall. Officials spoke at meetings throughout the district, posted notices in public places, and even contacted pediatricians. Testimony of Jan Barnett. When parents of handicapped children were located, a publication called "Parents' Rights Handbook" was sent to them. Testimony of Lucinda Randall. Although Arlene H. lived in the Spring Branch district, no one ever contacted her specifically, and she never heard of the "Child Find" program. Testimony of Arlene H.

18. In the fall of 1978 David was accepted at a private residential school in New Mexico called Brush Ranch. This school is specially adapted for the learning disabled, and Arlene H. had attempted for some time to have David enrolled there. David studied at the Brush Ranch school for two years, but in the spring of 1980, the school notified his mother that they felt it would not...