NM Ass'n for Retarded Citizens v. State of NM

• Decision Date: 08 January 1980
• Docket Number: No. 75-633-M Civil.,75-633-M Civil.
• Citation: 495 F. Supp. 391
• Parties: NEW MEXICO ASSOCIATION FOR RETARDED CITIZENS et al., Plaintiffs, v. The STATE OF NEW MEXICO et al., Defendants.
• Court: U.S. District Court — District of New Mexico

495 F. Supp. 391

NEW MEXICO ASSOCIATION FOR RETARDED CITIZENS et al., Plaintiffs, v. The STATE OF NEW MEXICO et al., Defendants.

No. 75-633-M Civil.

United States District Court, D. New Mexico.

January 8, 1980.

Shaffer, Butt, Thornton & Baehr, P. C., John A. Klecan, Matthews & Crider, P. C., Marian Matthews, Albuquerque, N. M., for plaintiffs.

Northern New Mexico Legal Services, Inc., Paul L. Bidderman, Anson B. Levitan, Clifford M. Rees, Santa Fe, N. M., Mark S. Jaffe, Bernalillo, N. M., for plaintiffs Arlene Smith and N. M. Association for Children with Learning Disabilities.

Jeff Bingaman, Atty. Gen., Robert N. Hilgendorf, Deputy Atty. Gen., John F. Kennedy, William B. McEuen, Asst. Attys. Gen., Santa Fe, N. M., Rodey, Dickason, Sloan, Akin & Robb, P. A., Duane C. Gilkey, Carl H. Esbeck, Albuquerque, N. M., for State defendants.

Botts & Cole, Robert W. Botts, Albuquerque, N. M., for defendants Board of Education of the City of Albuquerque, N. M. and its members.

MEMORANDUM OPINION AND ORDER

MECHEM, District Judge.

There having been a bench trial on the merits in this action in August, 1979, the following shall constitute the Findings of Fact and Conclusions of Law, pursuant to Rule 52 of the Federal Rules of Civil Procedure.

This class action suit was brought by several plaintiff-organizations and numerous individually named plaintiffs represented by their next friends against the State of New Mexico, several State agencies and their representatives and local public school districts and the members of their respective local school boards, seeking declaratory and injunctive relief from defendants' allegedly illegal conduct in failing to afford plaintiffs a free appropriate public education and related services as mandated by various New Mexico statutes, federal laws and federal Constitutional provisions. Subject matter jurisdiction based on 28 U.S.C. §§ 1331(a), 1343(3) and (4), and 2201 and 2202, is proper.

Plaintiff-organizations are the New Mexico Association for Retarded Citizens, the New Mexico Federation of Council for Exceptional Children and its University of New Mexico chapter, the New Mexico Association for Children with Learning Disabilities and the New Mexico Mental Health Association, all of which are non-profit New Mexico corporations interested in the provision of appropriate education and related services for exceptional children in the State of New Mexico. Several individually named plaintiffs by their next friends originally represented a plaintiff class which was certified by Memorandum Opinion and Order filed January 25, 1979. The class consists of all those handicapped children, aged 5 to 21, in the State of New Mexico, who have been or in the future may be diagnosed as handicapped, as that term is defined in 20 U.S.C. § 1401(1), and who claim they are not receiving a "free appropriate education" as that term is defined in 20 U.S.C. § 1401(18).¹

Defendants remaining in this action are the State of New Mexico, the State Board of Education and its individual members, the Department of Education of the State of New Mexico, Leonard DeLayo, individually and as Superintendent of Public Education, Elie Gutierrez, individually and as Director of the Division of Special Education, A. L. Clemmons, Director of the Department of Finance, the Chief of the Public School Finance Division of the Department of Finance (collectively referred to as the State defendants), and the Albuquerque Public School District and the members of its Board of Education, individually and as members of the board (APS). The Governor of the State of New Mexico was dismissed as a party defendant by order entered January 19, 1977. Several other local public school districts and the Health and Social Services Department of the State of New Mexico and other state departmental agencies and their representatives have been dismissed during the course of this litigation by stipulation, settlement or order of the Court.

Plaintiffs' original Complaint embodied eleven counts. The Three-Judge District Court convened in this matter dismissed plaintiffs' state law claims for lack of jurisdiction and severed their federal Constitutional claims, staying action thereon pending resolution of plaintiffs' federal statutory claims, contained in Counts IV and V, by a one-judge district court. These are the claims presently before me.

Plaintiffs' amended Complaint, filed May 2, 1977, restated their claims under federal statutory law. Count IV alleges violations of the Education Amendments of 1974 to the Education of the Handicapped Act, 20 U.S.C. § 1401 et seq., as amended. In Count V, plaintiffs claim alleged violations of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Plaintiffs seek declaratory judgment and injunctive relief on their federal statutory claims. Plaintiffs' Count IV claim was limited in scope by my Memorandum Opinion and Order, filed May 30, 1979, denying defendants' motion for summary judgment. Declining to dismiss Count IV as moot as was asserted by defendants, I therein limited the possible relief available to plaintiffs under Count IV to declaratory judgment for the period up to and including fiscal year 1977, which I now construe to be the year ending June 30, 1978, being the period in which the predecessors to the present act were in force. See, 20 U.S.C. § 1401 et seq., P.L. 93-380, 91-230. The Act is a funding statute which was mandatory and not discretionary with the states prior to the enactment of Public Law 94-142, the effective date of which was October 1, 1977, and which superseded P.L. 93-380 (which in turn had superseded P.L. 91-230). Accordingly, the State of New Mexico, under Public Laws 93-380 and 91-230, participated in and received federal funds under the Act. A finding of noncompliance by the State during that period would render it subject to declaratory judgment. I conclude, however, that the discretionary nature of Public Law 94-142 frees the State to participate or not in the acquisition of federal funds under the Act as it chooses. Its choice not to participate is, without more, a governmental decision that, while not applauded by the parents and friends of those handicapped children within the State, is within the State's power and not subject to judicial inquiry.

Plaintiffs argue that notwithstanding the discretionary nature of participation in 94-142 funding, the State's failure to apply for federal funds under the Act, in light of its decision to apply for other federal funds for education, is discriminatory against handicapped children and therefore a violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. If the State's failure to participate in 94-142 is discriminatory, and I expressly reserve comment on that issue, it is more in the nature of a violation of plaintiffs' constitutional rights to equal protection, a claim which is not presently before me but has been stayed and will be heard by the Three-Judge District Court after resolution of plaintiffs' federal statutory claims.

Plaintiffs further assert that notwithstanding the discretionary nature of participation in 94-142, the State plan submitted to the United States Department of Health, Education and Welfare (HEW), pursuant to the requirements of Public Laws 91-230 and 93-380, constitutes a continuing obligation to seek federal funds and implement and attain the educational goals for which the plan was initially prepared. The theory that the State has a continuing obligation to seek federal funds to implement educational goals for handicapped children must fail in light of the Congressional amendment rendering the Act discretionary. Federal funding to the State under Public Laws 91-230 and 93-380 expired June 30, 1978. The State's plan under the Act expired at that time as well and absent a decision of the State to participate in a plan and acquire funds under 94-142, the State's obligation to implement educational goals pursuant to the federal funding statute ended when its plan and funding expired in June of 1978.

The issue remains, then, whether the State effected its plan under 91-230 and 93-380, prior to June 30, 1978, in compliance with the federal statute and the agency regulations promulgated thereunder. See, 45 CFR Part 121a. The State insists that HEW's approval of a final audit of the State's expenditure of funds received under 91-230 and 93-380 mandates a finding that the State acted in compliance with the Act prior to June, 1978 and that therefore declaratory judgment is unwarranted. While HEW approval of state expenditures may serve as one indicia of the State's compliance with the Act, inquiry cannot end there. Plaintiffs' exhibit 31, on which ruling was reserved at trial, is a copy of the State's annual program plan as amended for fiscal year 1975, submitted to HEW pursuant to Public Law 93-380. The exhibit will be admitted into evidence.

In all respects, the plan submitted by the State to HEW complies with the requirements for such plans as they are set out in the regulations pertaining to the Act. See, 45 CFR Part 121a, Subpart B. Plaintiffs' claim, however, is not that the plan itself was effected in non-compliance with the Act, but rather that the services mandated by the Act were not provided in compliance with the Act. See, 45 CFR Part 121a, Subpart C. Under Subpart C, the states were obligated to insure

that free appropriate public education is available to all handicapped children aged three through eighteen within the State not later than September 1, 1978 . . . . 45 CFR 121a.300.

The regulations, recognizing that a substantial period of time would be required to initially implement provision of extensive education and related services for handicapped children, did not require that the States afford those services in their entirety to handicapped children within the State prior to September 1, 1978. I find, then, that because the State plan comports with the...