Selelyo v. Drury

• Decision Date: 31 December 1980
• Docket Number: No. C-3-78-369.,C-3-78-369.
• Parties: Michael SELELYO, Plaintiff, v. William R. DRURY et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

508 F. Supp. 122

Michael SELELYO, Plaintiff, v. William R. DRURY et al., Defendants.

No. C-3-78-369.

United States District Court, S. D. Ohio, W. D.

December 31, 1980.

Barry Cohen, Columbus, Ohio, for plaintiff.

Thomas M. Rose, Asst. Pros. Atty., Xenia, Ohio, for Local Bd. of Ed.

Gary E. Brown, Asst. Atty. Gen., Columbus, Ohio, for State of Ohio.

DECISION AND ENTRY HOLDING CAPTIONED CAUSE TO BE NOT MOOT; ORDER CONSOLIDATING MOTION FOR PRELIMINARY INJUNCTION WITH TRIAL UPON THE MERITS, PURSUANT TO F.R.C.P. 65(a)(2); FINAL PRETRIAL AND TRIAL DATES SET

RICE, District Judge.

This matter is before the Court on the issue of whether the plaintiff's cause of action has been rendered moot. The defendants contend that their actions, taken subsequent to the filing of the plaintiff's Amended Complaint, have brought them into compliance with all requirements of the law, and thus plaintiff no longer has a viable cause of action. Plaintiff, on the other hand, contends that the statutory and constitutional violations alleged in the Amended Complaint have continued, notwithstanding the actions taken by the defendants since the filing of the Amended Complaint, and thus the action has not been rendered moot.

In order to better understand the posture of this case and the merits of the parties' respective positions on the issue of mootness, it is necessary to summarize the allegations of the Amended Complaint and to summarize briefly what has occurred subsequent thereto, as set forth in an affidavit submitted by the defendants in support of their position. Thereafter, the Court will set forth its reasons for concluding that the action has not been rendered moot and that the filing of a supplemental complaint would be appropriate.

This action was commenced on December 1, 1978, on behalf of plaintiff, Michael Selelyo, a mentally retarded child, by his father as next friend, challenging Michael's school placement at Four Oaks School, a facility which served only handicapped students. An Amended Complaint was filed on December 11, 1978, wherein plaintiff alleges that placement at Four Oaks, rather than in a program wholly within the Beavercreek school system, denies him an education most appropriate to his needs in the least restrictive alternative, in violation of the Education of the Handicapped Act, 20 U.S.C. § 1412(5)(B), and regulations thereunder; the Rehabilitation Act of 1973, 29 U.S.C. § 794, and regulations thereunder; 42 U.S.C. § 1983; the 14th Amendment; the Supremacy Clause of the U. S. Constitution; and Ohio Rev. Code § 3323.04, and § 3301-51-18, Ohio Administrative Code.

The following is a summary of the allegations contained in the Amended Complaint.

During the winter of 1977-78, prior to entering an educational facility, Michael, a resident of Beavercreek Local School District, Beavercreek Township, Ohio, was evaluated by the staff of the Miami Valley Regional Center for Handicapped Children, at the request of defendant-Drury, the Superintendent of the Beavercreek Local School District. (para. 8, 10, 15) A placement committee, including all of the evaluators, met at the Center and recommended that Michael be assigned to attend Four Oaks School, a facility administered by the Greene County Board of Mental Retardation, which serves only handicapped students, most of whom are mentally retarded. (para. 16, 17)

Plaintiff alleges that the only reason for this placement at Four Oaks was that defendants had chosen to offer no other program options for "trainable mentally retarded" children (TMR), and that the Beavercreek authorities rejected plaintiff's parents' proposal that Beavercreek offer public school classes for TMR children. (para. 18)

The recommendation to place Michael at Four Oaks was approved by defendant-Drury's designatee on April 26, 1978. (para. 19) Thereafter, plaintiff's parents requested an impartial due process hearing, pursuant to § 3301-51-16(D)(4) of the Ohio Administrative Code, which was held before Dr. Edward L. Wingard, the Impartial Hearing Officer, on June 22, 1978. (para. 20, 21) At the hearing, several witnesses, appearing on behalf of plaintiff, testified that Michael would benefit significantly from being educated in an environment which would provide him with regular, structured contact with his non-handicapped peers. They testified that the appropriate educational setting for Michael was a special education program within the public schools. (para. 20)

On July 20, 1978, Dr. Wingard issued his decision upholding the committee's placement recommendation. (para. 21) Thereafter, plaintiff's parents appealed this decision to the Ohio State Board of Education. (para. 22) Defendant-Walter, Superintendent of Public Instruction of the State of Ohio, appointed Mr. William Clark to act as referee to review the record of the due process hearing, and on August 24, 1978, plaintiff submitted a written brief objecting to his educational placement to other than a public school setting. (para. 23)

The referee requested that the placement team reconvene to determine the extent to which Michael should be exposed to non-handicapped peers and to consider whether his placement at Four Oaks would provide an appropriate degree of exposure. (para. 24) On September 7, 1978, the placement team, by consensus, determined that Michael should be educated with his non-handicapped peers in "music, art, lunch, recess, and on the school bus." (para. 25) However, the team made no recommendation because it found that Beavercreek Local Schools did not offer a program for TMR children within the public school system. (para. 25) On September 15, 1978, the referee, having considered the available placement alternatives, recommended that Michael be placed at Four Oaks. (para. 27)

Plaintiff alleges in the Amended Complaint that since "September 11, 1978, plaintiff, Michael Selelyo has attended Four Oaks. His education program has included and continues to include no provision for Michael to have contact with non-handicapped children and in fact he has no such contact." (para. 29)

Plaintiff alleges further that his placement at Four Oaks School violates the aforementioned statutory and constitutional provisions. He therefore seeks an order directing that he be educated in the appropriate special education program within the Beavercreek schools; that the Ohio State Board of Education adopt standards setting forth criteria which must be met before a mentally retarded child may be educated in an environment other than a public school; that said Board adopt standards for the education of TMR children within the public schools. Other appropriate (unspecified) relief is also sought.

Subsequent to the filing of the Amended Complaint, numerous changes have been implemented in Michael's education program. According to the affidavit of Ronald G. Ferguson, Director of Pupil Personnel for Beavercreek Local Schools, the program changes include the following:

1. Michael began to make weekly visits to West Main Elementary School on December 19, 1978, continuing until January 17, 1979, (para. 6);

2. By May 29, 1979, Michael had been scheduled to attend West Main twice weekly and had experienced "story time, indoor and outdoor recess, TV time, music, physical education, a field trip, assemblies, lunch, and one art class, (para. 7);

3. In September, 1979, Michael was reintroduced into a first grade class at West Main, and began to visit the school three times weekly, traveling back and forth between schools on a school bus, (para. 8);

4. In March, 1980, Michael began a speech and language program which involved one-half hour, two days per week with a Beavercreek school therapist, and about one-half hour, two days per week with a Four Oaks therapist, (para. 10); and

5. Activities for Michael in 1980-81 will remain similar to those in 1979-80, except that Michael will be visiting West Main for some part of each school day. He will also receive individualized speech and language therapy daily from the Beavercreek school therapist. (para. 11)

A comparison of the above statements with the allegations set forth in the Amended Complaint indicates that some of those allegations are no longer supportable. It is, for example, undisputed that since December 19, 1978, Michael's education has not been solely at Four Oaks; rather, since that date, he has been in attendance at West Main Elementary School on a gradually increasing basis with increased programming. Thus, the allegation that Michael is receiving his entire education at Four Oaks and is receiving no contact with non-handicapped peers is no longer consistant with the realities of uncontroverted facts.

The burden of persuasion on the issue of mootness is a heavy one which lies with the defendants. United States v. W. T. Grant, 345 U.S. 629, 632-33, 73 S.Ct. 894, 897-98, 97 L.Ed. 1303 (1953); County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). "Simply stated, a case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 490, 89 S.Ct. 1944, 1947, 23 L.Ed.2d 491 (1969). "Voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot." United States v. W. T. Grant, supra, 345 U.S. at 632, 73 S.Ct. at 897.

In County of Los Angeles v. Davis, supra, 440 U.S. at 631, 99 S.Ct. at 1383, the Supreme Court explained that "jurisdiction, properly acquired, may abate if the case becomes moot because:

(1) it can be said with assurance that `there is no reasonable expectation ...' that the alleged violation will recur (citation omitted), and

(2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." (citation omitted)

The Court stated further that "when both conditions are satisfied it may be said that the case...