HR v. Hornbeck

• Citation: 524 F. Supp. 215
• Decision Date: 24 September 1981
• Docket Number: Civ. No. HM81-508.
• Parties: H. R., by his father and next friend, H. R., et al., Plaintiffs, v. David W. HORNBECK, in his official capacity as State Superintendent of Schools, Maryland State Department of Education, et al., Defendants.
• Court: U.S. District Court — District of Maryland

524 F. Supp. 215

H. R., by his father and next friend, H. R., et al., Plaintiffs, v. David W. HORNBECK, in his official capacity as State Superintendent of Schools, Maryland State Department of Education, et al., Defendants.

Civ. No. HM81-508.

United States District Court, D. Maryland.

September 24, 1981.

Eleanor Montgomery, Winifred DePalma, L. Jerry Dresner, Natalie McCeney, of Maryland Advocacy Unit for the Developmentally Disabled, Inc., Baltimore, Md., attorneys for plaintiffs.

Stephen H. Sachs, Atty. Gen. of Maryland, Ellen M. Heller and James Raggio, Asst. Attys. Gen. of Maryland, for defendants David W. Hornbeck and Maryland State Bd. of Ed.

Elise Judge Mason, Chief City Sol., Baltimore, Md., for defendants John Crew and the Bd. of School Commissioners of Baltimore City, of Baltimore, Md.

Thomas J. Wohlgemuth, Annapolis, Md., for defendants Edward J. Anderson and Bd. of Ed. of Anne Arundel County, Md.

Arnold E. Jablon and Jablon & Jablon, Towson, Md., for defendants Robert Y. Dubel and Bd. of Ed. of Baltimore County, Maryland.

Andrew W. Nussbaum, Paul M. Nussbaum and Reichelt, Nussbaum, Brown & Topf, Mount Rainier, Md., for defendants Edward J. Feeney and Bd. of Ed. of Prince George's County, Md.

Charles U. Price, Frederick, Md., for defendants Gordon M. Anderson and Frederick County Bd. of Ed.

George W. Johnston, Bruce P. Martin, Peter Keith and Jeffrey P. Ayres, and Venable, Baetjer & Howard, Baltimore, Md., for defendants Alphonso A. Roberty and Bd. of Ed. of Harford County, Md.

MEMORANDUM OPINION

HERBERT F. MURRAY, District Judge.

The instant action was instituted by thirteen handicapped schoolchildren residing in Baltimore City, Baltimore County, Anne Arundel County, Frederick County, Prince George's County and Harford County, all in the State of Maryland. The county superintendents of schools and boards of education in each of the above-named counties, as well as the State Superintendent of Schools and the State Board of Education, have been named as defendants. The plaintiff schoolchildren, by their parents and guardians, seek to certify a class composed of all educationally handicapped children in the above-named counties who have been, are now, or in the future may be excluded from educational services by removal from school because of behavior problems which, it is alleged, are related to their handicaps. Plaintiffs base their lawsuit upon several statutory sources: the Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1401 et seq. ("EAHC Act"), section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the Education Article of the Maryland Annotated Code, § 8-401 et seq. ("Education Article"). Additionally, plaintiffs assert denials of due process and equal protection as guaranteed by the Fourteenth Amendment to the United States Constitution. Whatever the source of the right sued upon, however, the basic claim is always the same: plaintiffs are attacking the exclusion of handicapped children from educational services under school disciplinary procedures used for normal schoolchildren, contending that handicapped children must be retained in their present placement until a qualified panel of special education experts makes a change in placement consistent with the education for handicapped children laws.

The case is presently before the court on defendants' motion to dismiss. The chief contention argued by counsel for defendants is that plaintiffs, prior to bringing this action in federal court, must exhaust the administrative remedies provided by the State and the counties. The exhaustion doctrine, which is founded upon such principles as "respect for `administrative autonomy'; a desire that administrative `expertise and discretion' should first be brought to bear upon specialized problems; and conservation of judicial energies and resources", Mayor & City Council v. Mathews, 562 F.2d 914, 920 & n.2 (4th Cir. 1977) (citation omitted), opinion withdrawn on other grounds, 571 F.2d 1273 (4th Cir.), cert. denied, 493 U.S. 862, 99 S.Ct. 184, 58 L.Ed.2d 171 (1978), is well settled in the jurisprudence of administrative law. See McKart v. United States, 395 U.S. 185, 193-95, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969); Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-64, 82 L.Ed. 638 (1938). In particular, where Congress has enacted a specific scheme for obtaining judicial review which includes a directive to the states to provide effective procedural safeguards to protect the rights provided by statute, a federal court should be circumspect and not exercise its jurisdiction before the contemplated administrative mechanism has had an opportunity to address the alleged deprivation.

The EAHC Act authorized substantial federal monetary grants to the states for the purpose of assisting the state and local educational agencies to improve programs for the education of handicapped children. See 20 U.S.C. § 1411. Among the prerequisites to qualifying for this federal financial aid, the state education authorities must establish to the satisfaction of the United States Commissioner of Education that a policy has been established "that assures all handicapped children the right to a free, appropriate public education", 20 U.S.C. § 1412(1), and the local educational agencies or intermediate educational units must "provide satisfactory assurance that it will establish and maintain procedural safeguards in accordance with the provisions of 20 U.S.C. sections 1412(5)(B), 1412(5)(C), and 1415". 20 U.S.C. § 1414(a)(7).

Section 615 of the EAHC Act, codified at 20 U.S.C. § 1415, "was a further strengthening and amendment of Title VI of the Elementary and Secondary Education Act, Pub.L. 89-750, first enacted in 1966." Stemple v. Board of Ed. of Prince George's Cty., 623 F.2d 893, 896 (4th Cir. 1980). The procedures mandated by § 615 enable parents or guardians to contest decisions made by state or local educational authorities regarding the identification, evaluation and placement of handicapped children. Summarizing the provisions of § 615 of the EAHC Act, Judge Winter's now Chief Judge opinion in Stemple notes:

It requires any state, local or intermediate educational agency receiving federal funds to establish and maintain certain minimum procedures. § 615(a). These include: a parent's right of inspection of relevant records, designation of a surrogate for a child's parents or guardian if they are not known, written notice and an opportunity to be heard whenever an agency proposes to initiate or refuses to initiate a change in a child's placement, and a right to an "impartial due process hearing." § 615(b)(1)-(2). The section provides further that, if the required hearing is conducted by a local or intermediate educational agency or unit, a person aggrieved by the decision shall have a right to appeal to the state educational agency, § 615(c) where he shall have the right to be represented by counsel, to present evidence and confront, cross-examine and compel the attendance of witnesses, to receive a record of the hearing, and to receive written findings of fact and decisions. § 615(d). The decision made in a hearing conducted in accordance with the provisions of § 615 is final subject to the right of appeal, and the decision of a local or intermediate unit (where there is no right of appeal) or the decision of a state educational agency may be reviewed in an action instituted in a state court of competent jurisdiction or a district court of the United States without regard to the amount in controversy. § 615(e)(1) and (2).

623 F.2d at 897.

Plaintiffs are not attacking the procedures established by the defendants to qualify for federal funds under the EAHC Act. Instead, they complain that these procedures are being circumvented by the expulsion and suspension of special education children under the disciplinary procedures intended for normal children. Even after accepting the truth, as must be done on a motion to dismiss, of all the plaintiffs' allegations about circumvention of the proper procedures, it seems to this court that plaintiffs themselves are attempting to bypass the requirements of the federal and state legislative schemes by prematurely bringing suit in federal court.

Indeed, as a jurisdictional matter, the court notes that 20 U.S.C. § 1415(e)(4) grants district courts of the United States jurisdiction only over actions brought by a party aggrieved by a final administrative decision. See 20 U.S.C. § 1415(e)(2). Speaking of a similar administrative remedial scheme enacted by the Virginia legislature in compliance with the EAHC Act, the Court of Appeals for this circuit has noted, "It is therefore apparent that both the federal and state statutes contemplate broad judicial review at the conclusion of the administrative action." Scruggs v. Campbell, 630 F.2d 237, 238-39 (4th Cir. 1980) (emphasis added).

In a case brought in another district court within this circuit, Harris v. Campbell, 472 F.Supp. 51 (E.D.Va.1979), the plaintiff was a seriously emotionally disturbed child who filed suit under the EAHC Act, the Rehabilitation Act, the Fourteenth Amendment, 42 U.S.C. § 1983, and various Virginia state law provisions challenging the alleged failure of state and local education officials to provide him with an appropriate program of education. Like one of the named plaintiffs in the case at bar, Harris alleged that he was at home and not receiving any education at all, appropriate or otherwise. In dismissing all of the plaintiff's federal claims, Judge Merhige held:

In any event, the issues of whether plaintiff is receiving an appropriate interim education and whether the Norfolk defendants are making good-faith efforts to place plaintiff in appropriate schools, as well as what, if any, steps might prove more effective in placing plaintiff, are matters "... relating to ... the

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