Harris v. Campbell, Civ. A. No. 78-0929-R.

• Decision Date: 15 June 1979
• Docket Number: Civ. A. No. 78-0929-R.
• Citation: 472 F. Supp. 51
• Parties: Cornell HARRIS, by his next friend Celestine Jordan, Individually and on behalf of all others similarly situated, Plaintiff, v. W. E. CAMPBELL et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

472 F. Supp. 51

Cornell HARRIS, by his next friend Celestine Jordan, Individually and on behalf of all others similarly situated, Plaintiff, v. W. E. CAMPBELL et al., Defendants.

Civ. A. No. 78-0929-R.

United States District Court, E. D. Virginia, Richmond Division.

June 15, 1979.

Joan De Lise, Louis A. Sherman, Tidewater Legal Aid Society, Norfolk, Va., Stephen W. Bricker, Gerald T. Zerkin, Richmond, Va., for plaintiff.

Daniel R. Hagemeister, Asst. City Atty., City of Norfolk, and Philip R. Trapani, City Atty., Harold P. Juren, Asst. City Atty., Norfolk, Va., for defendants 11-19 Norfolk.

Walter H. Ryland, Deputy Atty. Gen. of Va., Richmond, Va., for defendants 1-10 Commonwealth.

MEMORANDUM

MERHIGE, District Judge.

Plaintiff, Cornell Harris, a seriously emotionally disturbed child, has filed this action, by his mother and next friend, Celestine Jordan, under "The Education for All Handicapped Children Act of 1975" (20 U.S.C. § 1401, et seq.), the Fourteenth Amendment, 42 U.S.C. § 1983, 28 U.S.C. §§ 2201, 2202, Va.Code § 22-10.3, et seq., and Va. Const. Art. 8, § 1, challenging the alleged failure of defendant employees of the Virginia Department of Education, Virginia Board of Education, and the Norfolk, Virginia School Division to provide plaintiff an appropriate program of education. Plaintiff seeks declaratory and injunctive relief.

Jurisdiction is alleged under 28 U.S.C. §§ 1343(3) and 1331, the amount in controversy exceeding $10,000.00, exclusive of interest and costs. Plaintiff additionally asks the Court to exercise its pendant jurisdiction to consider the state claims.

Presently before the Court are plaintiff's motions to join parties plaintiff and defendant and to amend his complaint, plaintiff's motion to certify one plaintiff class and three defendant classes, Norfolk, Virginia School Division defendants' motion to dismiss the Norfolk defendants in their individual capacities and to dismiss plaintiff's 42 U.S.C. § 1983 claim against them, and the Virginia Department of Education and Virginia Board of Education defendants' motion to dismiss for failure to state a claim against them upon which relief can be granted, and for failure of plaintiff to exhaust administrative remedies. Each of the aforementioned motions has been thoroughly briefed by the parties and the motions are ripe for disposition.

In this Court's view, the failure of plaintiff to exhaust his administrative remedies is dispositive of the issues raised at this stage of the proceedings.

Congress enacted The Education for All Handicapped Children Act of 1975, (hereinafter the "Act") in recognition of the facts that millions of handicapped children were not receiving appropriate educational services in public schools, that state and local educational agencies have both the ability and the responsibility to provide appropriate educational services for all handicapped children, but lack the financial resources to fulfill that duty, and that it is in the national interest for the federal government to assist state and local educational agencies' efforts to educate handicapped children. See Public Law 91-230, § 601, as amended by Public Law 94-142, § 3(a).

The Act provides for the granting of substantial amounts of federal money to states to assist state and local educational agencies in the appropriate education of handicapped children. 20 U.S.C. § 1411. To qualify for the federal financial assistance, the state must demonstrate to the United States Commissioner of Education both that it has put into effect "a policy that assures all handicapped children the right to a free, appropriate public education", 20 U.S.C. § 1412(1), and that it has met the other listed requirements of 20 U.S.C. § 1412, including establishment of educational priorities and procedural safeguards. As a further prerequisite for receipt of federal funding under the Act, the state must submit to the Commissioner a detailed state plan including numerous policies and procedures, listed in 20 U.S.C. § 1413, designed to assure that the state's handicapped children are identified, individually evaluated, and provided appropriate educations.

The Act also provides extensive procedural rights to the parents or guardians of handicapped children who feel that the schools are not providing their children an appropriate education. These procedural guarantees include the right to a due process hearing before either a local, state or intermediate state educational agency, "as determined by State law or by the State educational agency", and the right to appeal the hearing decision. See 20 U.S.C. § 1415(b)(2), (e)(2).

Plaintiff does not attack any provision either of the Act or of the Virginia procedures established pursuant thereto, but contends that defendants are violating the Act by not providing the plaintiff with any education, "appropriate" or otherwise. In response to defendants' assertions that plaintiff must first exhaust his administrative remedies of hearing and appeal in the state agencies, before maintaining the instant action, plaintiff recognizes that the Act requires prior resort to state hearings and appeal when the state is providing an educational program which a plaintiff claims is not appropriate. Plaintiff claims, however, that where, as here, a child claims that the education he is receiving is nonexistent rather than merely inappropriate, he need not first present his complaint for hearing before a state agency.

The Court cannot concur with this view. 20 U.S.C. § 1415 sets forth the procedural safeguards which are granted under the Act to handicapped children and their parents or guardians. 20 U.S.C. § 1415(b)(1)(E) provides that state and local agencies which receive federal funds under the Act must establish and maintain procedures whereby aggrieved parties may

. . . present complaints with respect to any matter relating to the . . . educational placement of the child, or the provision of a free appropriate public education to such child.

(emphasis added).

Plaintiff, in his complaint, stated that he is "currently at home and is receiving no educational services." Had the undisputed facts conclusively shown that plaintiff was not receiving any education whatsoever and that defendants would not take any steps to provide him with an appropriate education, defendants' violation of the Act would be clear. In such event, prior resort to administrative remedies would not be a prerequisite to bringing action on the violation in federal district court. Administrative remedies need not be pursued when to do so would be futile. Davis v. Southeastern Community College, 574 F.2d 1158, 1160 (4th Cir. 1978).

The instant case is not one, however, wherein local school officials have willfully withheld educational opportunities from a handicapped child. The evidence before the Court shows that the Norfolk school officials made extensive efforts to provide plaintiff with educational services both subsequent and prior to October 11, 1978, the date plaintiff filed the instant complaint.

Kate S. Lewis, the program advisor for the Tuition Grant Program in the Department of Special Educational Services operated by the Norfolk School Board, recited the following facts in an affidavit filed with the Court. On September 1, 1978, the Special Education Eligibility Committee approved a tuition grant for plaintiff as an emotionally disturbed child. From September 5, 1978 to October 12, 1978, administrative direction was sought concerning whether plaintiff would be given day or residential placement. On October 13, 1978, plaintiff's file was referred to the James Barry-Robinson Institute, Norfolk, Virginia for consideration for plaintiff's admission. On October 18, 1978, the Institute requested a more complete social history and a new psychological evaluation of plaintiff, and an appointment was made to prepare plaintiff's Individualized Educational Plan. Ms. Lewis further stated that, on November 1, 1978,...