Doe v. Laconia Supervisory Union No. 30

• Decision Date: 24 June 1975
• Docket Number: Civ. A. No. 74-148.
• Citation: 396 F. Supp. 1291
• Parties: Daniel DOE, by his mother and next-friend, Plaintiff, v. LACONIA SUPERVISORY UNION NO. 30 et al., Defendants.
• Court: U.S. District Court — District of New Hampshire

396 F. Supp. 1291

Daniel DOE, by his mother and next-friend, Plaintiff, v. LACONIA SUPERVISORY UNION NO. 30 et al., Defendants.

Civ. A. No. 74-148.

United States District Court, D. New Hampshire.

June 24, 1975.

Michael E. Chubrich, New Hampshire Legal Assistance, Concord, N. H., for plaintiff.

Charles G. Cleaveland, Asst. Atty. Gen., Concord, N. H., for defendants.

OPINION

BOWNES, District Judge.

Plaintiff, a nine year old boy, and his mother, as next friend, bring suit against Laconia Supervisory Union No. 30 (Supervisory Union) and the members of the New Hampshire Board of Education in their official capacities only. Jurisdiction is claimed pursuant to 28 U.S.C. §§ 1331 and 1343. This is not a class action.

The first question is whether this court has jurisdiction over the Supervisory Union.

Damages, whether they be of a legal or equitable nature, cannot be assessed against a school district in a section 1983 action. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Strickland v. Inlow, 485 F.2d 186 (8th Cir. 1973), rev'd on other ground sub nom. Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975).

Because plaintiff's claim concerns the alleged denial of a property or monetary right rather than the denial of a personal freedom right, he must make a prima facie showing that the amount in controversy exceeds $10,000. Spears v. Robinson, 431 F.2d 1089 (8th Cir. 1970).

Plaintiff claims that he has incurred a debt in the amount of $1,030 which is presently due and owing to the Spaulding Youth Center and that the defendants are liable for this obligation, but have refused to pay it.¹ There is no other claim of monetary loss or deprivation and I rule, as a matter of law, that plaintiff has not made a prima facie showing of meeting the amount in controversy requirement of section 1331. Accordingly, this court does not have jurisdiction over defendant Supervisory Union and the action against it is dismissed.

ISSUES

There are two basic issues presented to the court:

1. Whether, in light of inadequate legislative funding, defendants have violated the equal protection clause of the Fourteenth Amendment by establishing a "priority system" which provides the most severely handicapped with full supplemental tuition payments without first ascertaining their financial resources; and

2. Whether defendants compute the state average cost of tuition in an arbitrary and capricious manner and thereby debilitate the purpose and effect of N.H. RSA 186-A:8 (Supp.1973).

The plaintiff has moved for partial summary judgment and the defendants have moved for complete summary judgment.

FACTS

Plaintiff is "emotionally handicapped" as defined by N.H. RSA 186-A:2, subd. III (Supp.1973):

"Emotionally handicapped" shall mean a child up to twenty-one years of age, married or unmarried, who, by reason of internal emotional conflicts, home conditions or general environment, has behavior and/or learning problems or is otherwise unable to make normal social or educational adjustments, but who has sufficient intellectual and emotional capacity to be enabled with clinical diagnosis, proper treatment, training and remedial education, to become a responsible and self-supporting citizen.²

Because of his behavior and in accord with a directive issued by the Superintendent of Schools of Supervisory Union No. 30, plaintiff was removed from the Laconia Public School System on May 18, 1971. The affidavit of Alexander J. Blastos (Assistant Superintendent of Schools of Laconia Supervisory Union No. 30) avers that in the latter part of the 1971 summer, plaintiff was readmitted to the public schools, and enrolled in a first grade class.

In September of 1971, plaintiff once again enrolled as a first grade student in the Laconia Public School System. On September 27, 1971, he was transferred to a "primary ungraded" class at the elementary school.

On March 14, 1972, plaintiff received a full scholarship to the Spaulding Youth Center for a two-year period. On March 14, 1974, his scholarship ended. Since the school year did not end until July 30, 1974, plaintiff incurred a debt of $1,030 to the Spaulding Youth Center representing the tuition charge for the spring term.³ According to the affidavit of Mr. Nye, Comptroller for the Spaulding Youth Center, this amount remains due and outstanding. See note 1, supra.

On February 28, 1974, plaintiff wrote to the State Board of Education requesting them to discharge the outstanding debt by making a supplemental tuition payment, as required by N.H. RSA 186-A:8 (Supp.1973), to the Spaulding Youth Center. N.H. RSA 186-A:8 provides:

Tuition of Handicapped Children. Whenever any handicapped child shall attend any public or private school or program situated within or outside of this state, which offers special instruction for the training or education of handicapped children, and which has been approved for such training by the state board of education, the school district where such handicapped child resides is hereby authorized and empowered and shall appropriate and pay a portion of the cost of such education. The state board of education may assign children to approved schools for handicapped children, as provided in RSA 193:3. Schooling for deaf children may commence at age four. The school district in which each handicapped child resides shall be liable for the tuition of said child. The tuition liability of the school district shall be limited to the state average cost per pupil of the current expenses of operation of the public elementary, junior high or high school for the preceding school year. Pursuant to the provisions of RSA 193:4 and RSA 194:27, this current expense of operation shall include all costs except cost of transportation of pupils, and except capital outlay and debt obligations. The state board of education shall be responsible for any tuition cost which exceeds the state average cost per pupil of current expenses. In Cheshire county, upon request of such a school district, and upon approval by the county convention, the county may raise and appropriate funds to pay a portion of such costs for special education under this section.

On March 11, 1974, Acting Director Jillette denied plaintiff's request on the ground that his condition placed him in a fourth priority status and that the Board was unable to provide him with any financial assistance due to insufficient legislative funding. Mr. Jillette's letter reads in pertinent part as follows:

Expenditure of funds for handicapped children has been based on a priority system reflecting legislative funding over the years. First, priority is given to children who are multi handicapped with both sensory and neurological problems. Secondly, priority is given to children with sensory problems. Third, priority is given to children with neurological problems. Following that in priority are trainable mentally retarded, emotionally disturbed and educable retarded.

Our level of funding has not allowed us to extend help to children below the third priority. Essentially, since 1969 our budgets have only allowed us to replace children who are graduating from programs with new children. Practically all the children who appear on the 1972 waiting list still need programming more adequate than they are receiving. My newer waiting lists now contain twice as many children as 1972. (Plaintiff's Ex. A)

On September 4, 1972, plaintiff enrolled in grade four at the Academy Street School in Laconia School District where he has continued to be a full-time student.

LEGISLATIVE UNDERFUNDING AND THE NEED TO CREATE PRIORITIES

When plaintiff requested supplemental tuition assistance, the language of N.H. RSA 186-A:8 was clear, emphatic, and mandatory: the State Board of Education was to be liable for "any tuition cost which exceeds the state average cost per pupil . . .."⁴ The promise held out in N.H. RSA 186-A:8 to emotionally handicapped children was broken by the legislature's refusal to sufficiently fund the program.⁵ The affidavit of Newell J. Paire, Commissioner, Department of Education, avers that the "funds appropriated by the Legislature for the purpose of RSA 186-A:8 are and have always been less than an amount sufficient to totally fund the undertaking therein."

Defendants, acting under the handicap of inadequate legislative funding, established a "priority system" by which N. H. RSA 186-A:8 funds were to be disbursed. The sole qualification for entitlement under this program was the severity of the handicap; those with the severest handicap received first priority. Following an historical pattern of aid disbursement, top priority was given to the deaf, blind, mentally retarded, and the multihandicapped. Accordingly, emotionally handicapped persons were relegated to last position in a long line. Plaintiff's low priority status was compounded by inadequate funding and, consequently, he was totally deprived of his statutory right to supplemental tuition payments.⁶ (See Exhibit A, supra.)

It is important to note that plaintiff does not ask for this court to issue a mandamus to either the defendants or the state legislature ordering it to discharge the debt owing to the Spaulding Youth Center. Instead, plaintiff alleges that N.H. RSA 186-A:8, as administered and applied to him, violates both the due process and equal protection clauses of the Fourteenth Amendment in that:

1. The defendants expend N.H. RSA 186-A:8 funds pursuant to a priority system which discriminates against the emotionally handicapped; and

2. The defendants compute the "state average cost per pupil of current expenses" in an arbitrary and capricious manner.

EQUAL PROTECTION CLAIM

N.H. RSA 186-A:8 treats all persons who are handicapped, as defined in N.H. RSA 186-A:2, equally. The statute neither creates nor establishes priorities. In fact, preferential treatment is...