Kruse v. Campbell

• Decision Date: 23 March 1977
• Docket Number: Civ. A. No. 75-0622-R.
• Citation: 431 F. Supp. 180
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Daniel J. KRUSE et al., Plaintiffs, v. W. E. CAMPBELL et al., Defendants.

431 F. Supp. 180

Daniel J. KRUSE et al., Plaintiffs, v. W. E. CAMPBELL et al., Defendants.

Civ. A. No. 75-0622-R.

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

March 23, 1977.

COPYRIGHT MATERIAL OMITTED

Stephen W. Bricker, Richmond, Va., for plaintiffs.

Walter H. Ryland, John A. Rupp, James K. Cluverius, Richmond, Va., William E. Donnelly, III, Asst. County Atty., Alan S. Anderson, Thomas J. Crawley, Fairfax, Va., William G. Broaddus, John L. Knight, Richmond, Va., for defendants.

Before BUTZNER, Circuit Judge, and MERHIGE and WARRINER, District Judges.

MERHIGE, District Judge.

The instant case is a class action for declaratory and injunctive relief challenging the provisions of Section 22-10.8(a) of the Virginia Code of 1950 (1976 Supp.), and the practice of Virginia's welfare departments, which allegedly deny to the handicapped children of poor parents the ability to obtain an appropriate education, when such is not available in the public schools, except if the parents agree to relinquish custody of their children to the welfare department, in violation of the First, Ninth and Fourteenth Amendments to the United States Constitution and in violation of the Rehabilitation Act of 1973, 29 U.S.C. Section 794 (as amended) and the Social Security Act, 42 U.S.C. Section 601 et seq.

The class of plaintiffs consists of all those handicapped children in Virginia, and their parents, who are, have been, or will in the future be eligible for tuition assistance grants pursuant to Virginia Code Section 22-10.8(a) (1975 Supp.) but whose parents are unable to pay the proportional costs of an appropriate private educational placement, not covered by such tuition assistance, because of a lack of financial resources.

The defendants are the Superintendent of the Department of Education of the Commonwealth of Virginia, the members of the Board of Education of the Commonwealth of Virginia, the Division Superintendent and members of the School Board of Fairfax County, Virginia, the Division Superintendent and members of the School Board of Henrico County, Virginia, the Commissioner of the Department of Welfare of the Commonwealth of Virginia, the members of the Board of Welfare of the Commonwealth of Virginia, the Director of the Department of Social Services and members of the Board of Social Services of Fairfax County, Virginia, and the Director of the Department of Public Welfare and members of the Board of Public Welfare of Henrico County, Virginia.

Jurisdiction is attained pursuant to 28 U.S.C. Sections 1331 and 1343. The amount in controversy exceeds $10,000 exclusive of costs and interests. A three-judge court has been designated as was then required by 28 U.S.C. Section 2281.

The Commonwealth of Virginia through local school boards, as regulated and partially funded by the State Board of Education, has provided a free public school system for all children between the ages of 5 and 21. Virginia Code Section 22-1.1. All normal and some "handicapped"¹ children receive a free and appropriate educational opportunity within this system.

Consistent with the regulations of the Board or Education, each local school board is required to develop an annual plan and provide a comprehensive program of "special education"² for the handicapped children within its locality. Va.Code §§ 22-10.4 and 22-10.5 (1976 Supp.)

However, there were 36,434 handicapped children in the state during the 1975-76 school year who were identified as in need of special education but who were not provided with any appropriate special education program. In contrast, during the same school year, all other children in Virginia, a total of 1,106,186, received publicly supported and appropriate educational instruction, including 80,467 handicapped children who obtained appropriate public programs and 2,426 handicapped children who obtained appropriate private programs with the aid of state tuition grants pursuant to Va. Code § 22-10.8(a). This statute provides that "if a school division is unable to provide appropriate special education . . . and such education is not available in a State school or institution" a parent or guardian is eligible to be partially reimbursed through state tuition grants for the cost of enrollment of the child in a private program.³

In order to qualify for such a grant, the child's needs and educational development must be reviewed by a local Special Education Placement Committee. The committee's recommendations are referred to the local school division superintendent who then certifies or disapproves the student's eligibility based on State Board of Education regulations. Reimbursement is made upon documentation of enrollment in a school approved by the State Board of Education.

Reimbursement is made by the local board for seventy-five percent (75%) of the tuition costs up to a maximum of $5,000 for the costs of a residential program and $1,250 for a non-residential program. Statutory authority is granted to local boards to exceed these maximums at their discretion but the great majority of local boards have no general policy of doing so.⁴ The State Department of Education then reimburses the local school boards for sixty percent (60%) of the amount paid parents for eligible children, up to $3,000 for residential and $750 for non-residential programs.

Most of the approved private schools charge tuition fees substantially greater than the required state and local share of the tuition grant. During the school year 1975-76, the average charge was $10,345 for a residential program and $3,513 for a non-residential program. These charges are anticipated to increase for coming school years by reason of inflation. Even where the costs of the private program fall within the maximum grant allowances, the state grants still only covered seventy-five (75%) percent of the costs. The parents of handicapped children eligible for and in need of these private programs are thus forced to supplement the differences between the actual school costs and the state grants. Although some parents are able to supplement the tuition grants from insurance, other governmental agencies, private charities, personal resources and the like, many lack the financial resources to do so and this may mean that the child cannot be enrolled in a private school or that he or she is subject to be withdrawn or dismissed from the school. As a consequence, these children are denied the opportunity to receive an appropriate program of special education. In contrast are those children, handicapped and non-handicapped alike, who obtain an adequate education within the public system, and the affluent handicapped who can afford to take advantage of the tuition grants.

In an attempt to fill this unfair gap in services, local departments of social services have apparently permitted the practice of accepting legal custody of handicapped children and placing them in foster care for the purpose of receiving funding which would enable those children to receive special education services in private facilities. There are at least 38 children in foster care who were taken into custody primarily for that purpose, although the exact number cannot be determined.

This class action challenges both the tuition grant system established under § 22-10.8(a) and the practice of requiring custody as a condition precedent to the receipt of full educational funding. The former is challenged as violative of equal protection, the Rehabilitation Act of 1973, 29 U.S.C. § 794, and substantive due process. Plaintiffs attack the latter as violative of the right to family integrity, equal protection, the Rehabilitation Act of 1973, and the Social Security Act, 42 U.S.C. § 625.

Plaintiffs contend that the Virginia partial tuition reimbursement system under Va.Code § 22-10.8(a) violates § 504 of the Federal Rehabilitation Act of 1973, 29 U.S.C. § 794 (1976 Supp.) in that such law requires the defendants to pay the full expenses of an appropriate education to the plaintiff class.

Section 504 provides in part as follows:

"No otherwise qualified handicapped individual in the United States . . . shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

Since the Virginia public school system receives substantial federal assistance, the statute's prohibitions are clearly applicable to the instant defendants.

Defendants contend, however, that the Rehabilitation Act of 1973, 29 U.S.C. § 794 was designed to prohibit discrimination in employment and vocational training, not education, and that in any event Congress did not intend § 504 to require full funding for such services to the handicapped since subsequent legislation, Pub.L. 94-142. "Education for All Handicapped Children Act of 1975" is specifically aimed at the provisions of educational services and targets September 1, 1978 as the date for full funding.

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 "constitutes the establishment of broad government policy that programs receiving Federal financial assistance shall be operated without discrimination on the basis of handicap." 1974 U.S. Code Cong. & Ad.News, p. 6390. The congressional report on the 1974 amendments to the statute, which strengthened and broadened the Act's coverage, recognized the crucial role of educational opportunity for the handicapped:

"Without adequate education, individuals with handicaps are doomed to a continued life as second class citizens. Today our country is only educating forty percent of those individuals with handicaps. Sixty percent of these individuals are receiving a substandard education." 1974 U.S.Code Cong. & Ad.News, p. 6407.

Pub.L. 94-142, the "Education for All Handicapped Act of 1975" is essentially a funding statute, designed to provide the states with federal...