Howard S. v. Friendswood Indep. Sch. Dist., Civ. A. No. G-78-92.

• Decision Date: 23 June 1978
• Docket Number: Civ. A. No. G-78-92.
• Citation: 454 F. Supp. 634
• Parties: HOWARD S. et al., Plaintiffs, v. FRIENDSWOOD INDEPENDENT SCHOOL DISTRICT et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

454 F. Supp. 634

HOWARD S. et al., Plaintiffs, v. FRIENDSWOOD INDEPENDENT SCHOOL DISTRICT et al., Defendants.

Civ. A. No. G-78-92.

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

June 23, 1978.

J. Patrick Wiseman and Reed Martin, Houston, Tex., for plaintiffs.

Richard G. Sedgeley and James S. Kelly, Houston, Tex., for FISD defendants.

Douglas B. Owen, Austin, Tex., for State defendants.

James C. Todd, Austin, Tex., for amicus curiae.

STATEMENT OF REASONS FOR PRELIMINARY INJUNCTION

COWAN, Judge.

Pursuant to the mandate of Rule 65(d), Fed.R.Civ.Proc., this Court states herein its reasons for the preliminary injunction issued on June 21, 1978.

These findings of fact and conclusions of law are made solely for the purpose of determining the plaintiffs' rights to obtain preliminary injunctive relief pursuant to Rule 65, Fed.R.Civ.Proc. These findings of fact and conclusions of law are not findings upon the merits. The merits are reserved for trial at a later date, if necessary.

Douglas S. (hereinafter "Douglas"), the minor plaintiff in this case, is an Anglo-American male born in the State of California on November 16, 1961. In 1962, he was hospitalized and tested for meningitis. Although his mother was eventually able to furnish him a stable family background, the first three years of his life were unsettled, chaotic and traumatic. Competent medical evidence establishes that these two events created a situation in which Douglas has minimal brain damage, a definite learning disability, and at least temporarily, a severe emotional disturbance. Medical testimony establishes that these events in his early childhood are probably the most significant, although not the most immediate, causes of the difficulties which have precipitated this litigation.

Douglas went through the first five years of his schooling in California, where he was diagnosed as having minimal brain damage, and placed in special education classes.

Douglas' parents moved to Friendswood in 1973, and Douglas was enrolled in the public schools maintained by defendant FISD (Friendswood Independent School District). During his first year of school in FISD, his teachers noted his short attention span, hyperactivity and demands for attention. In May of 1974, while enrolled at the Friendswood Junior High School, he was evaluated for the FISD by competent, independent, outside consultants, who noted that despite his normal intelligence, he had made markedly slow progress in school and that probable organic brain damage as well as anxiety interfered with his ability to concentrate, remember and perceive accurately. The consultants recommended that Douglas ". . . continue in a resource program in which he can receive special help with basic subjects . . ." and that "efforts should be made by the school counselor to establish a warm relationship with Douglas . . ."

During his junior high years, Douglas was placed in a special education program in which he was, for the most part "mainstreamed," i. e., placed in classes with nonhandicapped children, but still nevertheless, given special help by a "resource teacher."

In November of 1974, Mrs. Patricia Burton worked out a program for Douglas involving special help, and this program apparently produced reasonably good results during his junior high years.

In mid-August of 1976, Douglas was enrolled in the Friendswood High School. Although FISD's program with reference to Douglas had been reasonably successful in dealing with his problems during junior high, this success ended abruptly when Douglas entered high school. He immediately began to develop behavior problems, characterized by truancy and wandering in the halls. The Assistant Principal, Mr. Fred Nelson, regarded these difficulties as discipline problems and not special education problems and failed to notify the special education department of Douglas' difficulties in adjusting to high school.

These difficulties in high school were clearly foreseeable. All of the experts who have testified have agreed that a young man with Douglas' handicaps, when confronted with the challenge of adjusting to a high school environment and coping with the strains of puberty, is likely to develop severe difficulties. FISD had coped with Douglas' difficulties fairly well up until August of 1976, but FISD did not cope adequately with Douglas' difficulties from August 1976 until December of that year.

Douglas' difficulties at school were paralleled by difficulties in adjusting at home. In November 1976, he was referred to Dr. Grace Jamison at the John Sealy Hospital in Galveston. Dr. Jamison, a child psychiatrist, began to treat Douglas. In December 1976, just before or during the Christmas holidays, Douglas made a suicide attempt which resulted in his being confined in the Graves Unit at John Sealy Hospital for several weeks.

After Douglas was released from the Graves Unit, Dr. Jamison recommended his placement in the Oakes Unit of the Brown School, a private school in Austin. Both Dr. Jamison and Dr. Boynton from the Brown School have testified credibly that Douglas, at the present time, is not able to return to FISD in a normal classroom setting, but that he is capable of receiving an education, and that if he is allowed to remain in a setting like the Brown School another 12 to 24 months, he has a reasonable chance of developing into a reasonably well-adjusted person who can lead a productive life. If removed from the Brown School or some similar facility, his prognosis is, the doctors agree, very poor.

The undersigned has concluded that since August of 1976, when Douglas entered high school, FISD has failed to provide him a free, appropriate public education and that this failure was a contributing and a proximate cause (although certainly not the sole or even the predominant cause) of Douglas' severe emotional difficulties which culminated in his suicide attempt and confinement in the Graves Unit of John Sealy Hospital in December of 1976.

Although it is a harsh conclusion, the undersigned must reluctantly conclude that following the development of Douglas' difficulties in adjusting to high school, FISD engaged in a calculated, deliberate effort to avoid and evade its legal responsibility. FISD's activities in this regard violate its legal obligations under the Rehabilitation Act of 1973 (29 U.S.C. § 794) and the Fifth and Fourteenth Amendments to the Constitution of the United States.

The most important deficiencies, in connection with FISD's conduct occurred during the period from August of 1976 until December 1976 and from January 1977 until July 6, 1977. During that period Douglas had been classified as a minimal brain damaged child who needed and was entitled to receive special education. Despite this, when he developed disciplinary difficulties and was wandering the halls, the special education department was never notified. Dr. Wren, the head of special education, was never told that Douglas was having difficulties; instead, Douglas' difficulties were handled entirely and solely as disciplinary problems. No effort was made to determine whether or not his disciplinary problems were related to his diagnosed handicaps. This pattern continued despite expressions of interest and concern by Howard S. and Judy S. (Douglas' parents) to the school administration.

On January 18, 1977, while Douglas was in the Graves Unit of the John Sealy Hospital in Galveston, FISD, without notice to Douglas or his parents, "officially dropped" Douglas from FISD. This effective and constructive expulsion occurred without notice to the parents, without a hearing of any kind, and is a clear violation of the FISD's obligation under the Constitution of the United States. See Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1974).

On February 15, 1977, Mrs. S. met with FISD's superintendent, the assistant principal of the high school, and the head of special education; informed these officials of Douglas' difficulties; delivered to them a handwritten letter indicating that Douglas was only temporarily out of school; advised that Mrs. S. was seeking a suitable educational program for him in the light of his handicaps; and advised that she wished to participate in a scheduled ARD (Admissions, Review and Dismissal) meeting to determine if a suitable program could be developed for Douglas in FISD.

Three days later, on February 18, 1977, the ARD meeting occurred. Mrs. S. was not given an opportunity to be present. The ARD committee "dismissed" Douglas from the special education program "following the usual procedure of Friendswood ISD regarding students who move . ." This conduct was a subterfuge. Douglas and his family had not moved. Douglas had been placed in a hospital. The hospital had referred him to a special school because of his handicaps and his severe emotional disturbance. By no stretch of the imagination can it be contended that he had "moved." FISD here clearly violated the duties placed upon it by the Constitution of the United States. See Goss v. Lopez, supra.

Ultimately in May 1977, Mr. and Mrs. S. obtained counsel and requested an impartial due process hearing. Mr. and Mrs. S. were entitled to this due process hearing under the provisions of both the United States Constitution and the Rehabilitation Act of 1973 (29 U.S.C. § 794). Continuing its previous pattern, however, FISD intentionally evaded and avoided its responsibility to provide an impartial due process hearing.

A gathering which can best be described as a meeting occurred on July 6, 1977. This "meeting" cannot accurately be described as a hearing. The meeting was chaired by FISD's retained counsel. The designated decision maker was the school superintendent. There was no formal introduction of evidence, no formal presentation of arguments, no notice of the issues to be decided at the meeting, no impartial due process hearing examiner, no findings of fact or conclusions...