Harrison v. State of Michigan, Civ. A. No. 38357.

• Decision Date: 30 October 1972
• Docket Number: Civ. A. No. 38357.
• Citation: 350 F. Supp. 846
• Parties: Benjamin HARRISON, by his parents Mr. and Mrs. Kenneth Harrison, et al. v. STATE OF MICHIGAN et al.
• Court: U.S. District Court — Western District of Michigan

350 F. Supp. 846

Benjamin HARRISON, by his parents Mr. and Mrs. Kenneth Harrison, et al. v. STATE OF MICHIGAN et al.

Civ. A. No. 38357.

United States District Court, E. D. Michigan, S. D.

October 30, 1972.

George Newman and Alan Houseman, Michigan Legal Services, Detroit, Mich., Paul R. Dimond, Harvard University, Cambridge, Mass., of counsel, for plaintiffs.

George McCargar, Jr., Lansing, Mich., George T. Roumell, Jr., Detroit, Mich., for defendants.

MEMORANDUM OPINION AND ORDER

JOINER, District Judge.

This action is brought by eleven (11) children and one (1) adult, and by their parents, who allege they have been denied access to the public schools of Michigan because of alleged mental, behavioral, physical, or emotional handicaps. The plaintiffs further assert that the denial of access to public education is a denial of equal protection under the United States Constitution, and that procedures used to classify, suspend, expel and deny education are arbitrary and a denial of due process of law under the United States Constitution. Plaintiffs assert a cause of action on behalf of all others similarly situated.

Plaintiffs have been met with a barrage of motions to dismiss based on F. R.Civ.P. 12(b), failure to state a claim upon which relief can be granted. This court, in deciding whether to grant any of the motions to dismiss, has looked upon plaintiffs' allegations as if admitted. The court has given plaintiffs' pleadings, brief and arguments the widest and most liberal construction possible.

Until very recently the State of Michigan was making little effort to educate children who are suffering from a variety of mental, behavioral, physical and emotional handicaps. Many children were denied education. The efforts made until the adoption of Public Act 198 in 1971 raise serious questions as to whether such persons were denied equal protection of the law. If that condition still existed this court would have no difficulty, or exercise the slightest hesitation, relying on Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania, 334 F. Supp. 1257 (E.D.Pa.1971), in denying the motions to dismiss. However conditions have changed. Michigan Public Act No. 198 of the 1971 Session renders plaintiffs' complaint moot. This law is a whole new attack on the problem of special education. For the first time the legislature has directed in unequivocal terms the state and other educational districts to face up to the problem of providing "educational programs and services designed to develop the maximum potential of every handicapped person." Beginning with the school year 1973-74 no longer will education for the classes of persons of which the plaintiffs are members be optional. Public Act 198 requires that there be programs for such persons. The whole power of the state is by this act put behind an effort to provide an education for the handicapped.

The act is operative now. Already preliminary state plans for the operation of this comprehensive program have been published. Every indicator points to full compliance with the legislative mandate by the beginning of the school year 1973-74.

The problem presented to the court by this case is compelling. A very significant number of persons are born, are raised, and spend their whole life in the shadow world of mental retardation, physical disability and emotional disorientation. Had the legislature not acted, this court would not have hesitated to step in to consider the problems of these and other plaintiffs. The legislature has, however, acted and there is no reason to think that any further directive by this court could speed the process or provide a more comprehensive approach to the problem. In the instance where a program was developed pursuant to court direction the time schedule for implementation was eleven (11) months. Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania, 334 F.Supp. 1257 (E.D. Pa.1971). The planning for the implementation of Public Act 198 from now until the beginning of the school year is a shorter period than that.

The plaintiffs accurately contend that providing education for some children, while not providing education for others (in this instance, handicapped children) is a denial of equal protection. Public Act 198 is a comprehensive statute which attacks this particular constitutional problem. Beginning in September, 1973 (or the 1973-74 school year), a special education plan must be implemented which will provide for the delivery of special education programs and services, designed to develop the maximum potential of every handicapped person. Creating a plan of this calibre, and overseeing the implementation of it, is more of a legislative function than a judicial function. The pursuasive element here is not whether the court could draft or create a better plan, but rather whether it could insure its implementation at an earlier date. In no way could this be done. Designing a comprehensive program to provide education for persons as diverse as the handicapped in this action is perhaps the most difficult educational problem facing society today. It simply is not the sort of problem which can be resolved by the issuance, no matter how well intended, of a judicial order. Any judicial order would necessarily have to incorporate many of the implementation steps in Public Act 198. The state is already taking these steps. This court could do no more than act as a cheering section. This is not the function of the judicial process.

A denial of equal protection is a very serious problem, but in some instances remedying the problem, or doing away with the problems may require ". . . deliberate speed . . ." Brown et al. v. Board of Education of Topeka et al., 349 U.S. 294, 301, 75 S.Ct. 753, 99 L.Ed. 1083 (1955...