Martinez By and Through Martinez v. School Bd. of Hillsborough County, Florida

• Decision Date: 01 December 1988
• Docket Number: No. 88-3667,88-3667
• Citation: 861 F.2d 1502
• Parties: 50 Ed. Law Rep. 359 Eliana MARTINEZ, By and Through her next friend, Rosa E. MARTINEZ, her mother, Plaintiff-Appellant, v. SCHOOL BOARD OF HILLSBOROUGH COUNTY, FLORIDA, a corporate body public, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1502

861 F.2d 1502

50 Ed. Law Rep. 359

Eliana MARTINEZ, By and Through her next friend, Rosa E.

MARTINEZ, her mother, Plaintiff-Appellant, v. SCHOOL BOARD OF HILLSBOROUGH COUNTY, FLORIDA, a corporate

body public, Defendant-Appellee.

No. 88-3667.

United States Court of Appeals, Eleventh Circuit.

Dec. 1, 1988.

Stephen F. Hanlon, Tampa, Fla., for plaintiff-appellant.

Alice K. Nelson, Southern Legal Counsel, Inc., Albert J. Hadeed, Gainesville, Fla., amicus curiae Advocacy Center for Person with Disabilities, Inc.

W. Crosby Few, Tampa, Fla., Thomas M. Gonzalez, Thompson, Sizemore & Gonzalez, Tampa, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before VANCE and KRAVITCH, Circuit Judges, and HENDERSON, Senior Circuit Judge.

VANCE, Circuit Judge:

This case involves the appropriate educational placement of a mentally retarded child infected with the human immunodeficiency virus, the virus that causes Acquired Immunodeficiency Syndrome (AIDS). Appellant, Eliana Martinez, is seven years old and has an I.Q. of 41. This classifies her as a trainably mentally handicapped child. Eliana was born prematurely and received thirty-nine blood transfusions in the first four months of life. In April 1985 Eliana was diagnosed as suffering from AIDS Related Complex. She now is in the late stages of AIDS but her condition has been stabilized for several months. The court below found that Eliana is not toilet trained and suffers from thrush, a disease that can produce blood in the saliva. Eliana sucks her thumb and forefinger frequently, resulting in saliva on her fingers. In the past Eliana has suffered from skin lesions. When these occurred, Mrs. Rosa Martinez, her adoptive mother, has kept her at home.

In the summer of 1986, Mrs. Martinez attempted to enroll Eliana in the special classroom for trainably mentally handicapped ("TMH") children in the public school system of Hillsborough County, Florida. Based on the recommendation of an interdisciplinary review team, the Hillsborough County School Board decided that the appropriate educational placement for Eliana was homebound instruction. Mrs. Martinez requested an administrative hearing, pursuant to the Education of the Handicapped Act, 84 Stat. 175 (1970) (codified as amended by the Education for All Handicapped Children Act, 89 Stat. 775 (1975), at 20 U.S.C. Secs. 1401-1461 (1982)) ("EHA"), to review the board's decision. On August 25, 1987, a hearing officer of the Florida Division of Administrative Hearings upheld the school board's decision. Having exhausted the administrative remedies prescribed under the EHA, Mrs. Martinez brought this action on behalf of Eliana challenging the hearing officer's determination. She alleged that the board's decision violated Eliana's rights under the EHA, section 504 of the Rehabilitation Act of 1973, 87 Stat. 394 (1973) (codified as amended at 29 U.S.C. Sec. 794 (1982)), and the equal protection clause of the fourteenth amendment.

The case was tried without a jury on July 13 and 14, 1988. At trial Mrs. Martinez argued that Eliana should be admitted to the TMH classroom. She contended that the following reasonable accommodations could reduce the risk of transmission: requiring Eliana to maintain a distance from other children; assigning a full-time aide to assist with health precautions; placing Eliana with non-ambulatory TMH students; using disposable diapers and a separate potty chair for toilet training; limiting the number of students in the classroom; and using gloves, disinfectants, and other precautions in handling and disposing of waste materials. The school board argued that homebound placement was proper because Eliana is incontinent and mouths her fingers. It contended that because many of the mentally handicapped children do not have control over their bodily functions, there is an unacceptable risk of transmission of the AIDS virus to other children and of transmission of communicable diseases from the other children to Eliana.

The district court heard extensive expert testimony on the risk of transmission. It found that there was a "remote theoretical possibility" of transmission of the AIDS virus through tears, saliva and urine. It held that the most appropriate educational placement for Eliana is as follows: Eliana will be taught in a separate room to be constructed in the TMH classroom with a large glass window and sound system to allow Eliana to see and hear the students in the main classroom. A full-time aide will remain in the room with Eliana and attempt to toilet train her and teach her not to mouth her fingers. Another child can enter the room only if a waiver is obtained from the child's parents absolving the school board from liability. Eliana can be taught in the main classroom when she becomes toilet trained and no longer places her fingers in her mouth. At that time, a full-time aide will ensure that an appropriate distance between Eliana and other children is maintained. The school nurse will be available for consultation if questions arise as to the advisability of Eliana being in the classroom on a certain day. 692 F.Supp. 1293.

Mrs. Martinez appealed the trial court's decision. We vacate and remand for further proceedings consistent with this opinion.

Two overlapping federal statutes establish the framework for determining appropriate educational placement for handicapped children--the Education of the Handicapped Act (the "EHA"), and section 504 of the Rehabilitation Act of 1973 ("section 504"). In the Handicapped Children's Protection Act of 1986, Congress affirmed that the EHA was not intended to supplant rights otherwise available to handicapped children under the Rehabilitation Act. The Supreme Court had held that the EHA was the exclusive remedy for equal protection claims to a public education. Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984). In response Congress enacted the Handicapped Children's Protection Act of 1986, 100 Stat. 796, 797 (1986) (codified as amended at 20 U.S.C.A. Sec. 1415(f) (West Supp. 1988)), which added the following provision to the EHA:

Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, title V of the Rehabilitation Act of 1973 ... or other Federal statutes protecting the rights of handicapped children and youth, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (b)(2) and (c) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

20 U.S.C.A. Sec. 1415(f) (West Supp.1988). See 132 Cong.Rec. S9279 (daily ed. July 17, 1986) (statement of Sen. Simon) (1986 Act "will restore the intended protections [of the EHA] to all handicapped children.... The enactment [of the EHA] in no way deprived handicapped children of existing constitutional and statutory provisions protecting their rights.")

When the EHA and section 504 are read together, a complementary set of standards emerges to determine the appropriate educational setting for a handicapped child. The EHA requires participating states to provide a "free appropriate public education" to handicapped children. 20 U.S.C. Sec. 1412(2)(B) (1982). Educational authorities must develop an individualized educational program stating the educational program and setting forth specific goals for each handicapped child. The EHA sets forth an administrative procedure whereby parents who do not agree with the educational placement of their child can request a due process hearing conducted by the state or local educational agency. Id. Sec. 1415(b)(2). If the hearing is before a local or intermediate educational entity, either party may appeal to the state educational agency for an impartial review. After exhausting this administrative procedure, either party may bring a civil action in state or federal court. The court will review the records of the administrative proceedings and, at the request of a party, hear additional evidence. Under the EHA, the trial court must first determine if the state has complied with the procedures prescribed under that statute. Board of Educ. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 3050-51, 73 L.Ed.2d 690 (1982). These procedures include the requirement that

to the maximum extent appropriate, handicapped children ... are [to be] educated with children who are not handicapped, and that special classes, separate schooling, or other removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily....

20 U.S.C. Sec. 1412(5)(B). See Department of Educ. v. Katherine D., 727 F.2d 809 (9th Cir.1983), cert. denied, 471 U.S. 1117, 105 S.Ct. 2360, 86 L.Ed.2d 260 (1985). This is referred to as the "least restrictive environment" requirement. See 34 C.F.R. Secs. 300.550-.556 (1987). Second, the court must determine whether the educational program developed by the state was "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207, 102 S.Ct. at 3051. The court then may "grant such relief as [it] determines appropriate," based on the preponderance of the evidence. 20 U.S.C. Sec. 1415(e)(2) (1982).

Section 504 of the Rehabilitation Act more broadly provides:

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

29 U.S.C....