Sessions v. Livingston Parish School Bd., Civ. A. 80-235-B.

• Decision Date: 13 November 1980
• Docket Number: Civ. A. 80-235-B.
• Citation: 501 F. Supp. 251
• Parties: John SESSIONS, Amos F. Carpenter, Lucy Carpenter, George Wightkin, Charles T. Robinson, Anne Parker, Robert E. Godwin, Terrell Hebert, Walter Pender v. LIVINGSTON PARISH SCHOOL BOARD, Members of Board, Individually, and as member of Livingston Parish School Board; Wayne Kelly Sibley, Individually, and as member of Livingston Parish School Board; Sharon Kay Varnado Soileau, Individually, and as member of Livingston Parish School Board; Milton D. Hughes, Individually, and as member of Livingston Parish School Board; Vernon D. Garrison, Individually, and as member of Livingston Parish School Board; J. L. "Cub" Covington, Individually, and as member of Livingston Parish School Board; Paul F. Sibley, Individually, and as member of Livingston Parish School Board; Hubert S. Stilley, Jr., Individually, and as member of Livingston Parish School Board; Carew P. Foster, Individually, and as member of Livingston Parish School Board; Carroll Legette, Individually, and as Superintendent of Livingston Parish School Board; Ida Mae Lambert, Individually, and as Supervisor of Special Education, Livingston Parish School Board.
• Court: U.S. District Court — Middle District of Louisiana

501 F. Supp. 251

John SESSIONS, Amos F. Carpenter, Lucy Carpenter, George Wightkin, Charles T. Robinson, Anne Parker, Robert E. Godwin, Terrell Hebert, Walter Pender v. LIVINGSTON PARISH SCHOOL BOARD, Members of Board, Individually, and as member of Livingston Parish School Board; Wayne Kelly Sibley, Individually, and as member of Livingston Parish School Board; Sharon Kay Varnado Soileau, Individually, and as member of Livingston Parish School Board; Milton D. Hughes, Individually, and as member of Livingston Parish School Board; Vernon D. Garrison, Individually, and as member of Livingston Parish School Board; J. L. "Cub" Covington, Individually, and as member of Livingston Parish School Board; Paul F. Sibley, Individually, and as member of Livingston Parish School Board; Hubert S. Stilley, Jr., Individually, and as member of Livingston Parish School Board; Carew P. Foster, Individually, and as member of Livingston Parish School Board; Carroll Legette, Individually, and as Superintendent of Livingston Parish School Board; Ida Mae Lambert, Individually, and as Supervisor of Special Education, Livingston Parish School Board.

Civ. A. 80-235-B.

United States District Court, M. D. Louisiana.

November 13, 1980.

Leo J. Berggreen, Woodrow W. Wyatt, Marion Weimer, Wyatt & Weimer, Baton Rouge, La., for plaintiffs.

J. Donald Cascio, Denham Springs, La., for defendants.

POLOZOLA, District Judge:

The plaintiffs in this case are parents of handicapped and exceptional children who reside in Livingston Parish in the State of Louisiana. Plaintiffs allege that their children are being deprived of a meaningful, free, appropriate, and public education pursuant to 20 U.S.C. § 1401 et seq., which is commonly known as the "Education for All Handicapped Children Act of 1975" (the Act).

Jurisdiction in this case is asserted pursuant to § 1415(e)(4) of the Act, as well as 42 U.S.C. § 1983, et seq.; and 28 U.S.C. § 1331, § 1343, and under the First and Fourteenth Amendments.

Named as defendants in this case are Carroll Legette, Livingston Parish Superintendent of Schools; Ida Sue Lambert, supervisor of special education; the Livingston Parish School Board and its eight individual members. Plaintiffs contend that the defendants have failed to provide the appropriate education to which the plaintiffs' children are entitled.

There are a number of motions which are pending before the Court. The sole motion to be considered by the Court at this time is defendants' motion to dismiss for lack of jurisdiction based on the plaintiffs' failure to exhaust administrative remedies in accordance with the Act.

The complaint reveals that prior to the 1979-80 school year, handicapped students from Livingston Parish were being educated in the school system of East Baton Rouge Parish (EBR). In late spring of 1979, the EBR system notified the Livingston Parish school officials that the Livingston Parish children would no longer be allowed to attend EBR schools. When school began in August, 1979, the Livingston Parish exceptional children were placed in three classrooms at Denham Springs Junior High School. There was no division of the students based on age or handicap. In October, 1979, the majority of these students were transferred to a renovated five-classroom elementary school in Livingston Parish. Again, the plaintiffs contend that there was no segregation by age, handicap or educational ability. Plaintiffs contend that the defendants' current policy constitutes a failure to provide a meaningful, appropriate education, thereby depriving their handicapped children of certain constitutional rights.

The defendants allege that the Court has no jurisdiction in this matter. They contend that the plaintiffs have failed to exhaust their administrative remedies under the Act, which was enacted by Congress in an effort to ensure that state and local entities receive assistance in fulfilling their obligation to provide appropriate educational opportunities for handicapped children. The Act authorizes substantial federal funds for state and local educational agencies upon a showing that the agencies have established policies and procedures in compliance with the Act. See 20 U.S.C. § 1411, § 1412, § 1413. The Act also contains procedural guarantees to parents who contend that their children are being deprived of an appropriate education.

It is apparent from this legislation that Congress has provided a procedural means for parents to contest the nature and extent of their children's educational opportunities prior to seeking judicial review. Considering the language and legislative history of the statute the Court finds that the intent and purpose of the statute is to encourage parties to seek administrative relief prior to obtaining judicial review. Therefore, since plaintiffs have failed to seek the administrative review provided for in the statute, the Court finds that the plaintiffs have failed to exhaust their administrative remedies as provided in 20 U.S.C. § 1415.

Although no appellate courts have squarely addressed this issue, several district courts have faced the question of exhaustion pursuant to the Act. In Harris v. Campbell, 472 F.Supp. 51 (E.D., Va.1979), the Court held that the parents of an emotionally disturbed child were required to exhaust state remedies in alleging that the Virginia Department of Education and the Norfolk Virginia School Division had failed to provide an appropriate education. In Harris, the student had received extensive educational opportunities until being expelled from the James Barry-Robinson Institute in Norfolk for disciplinary reasons. Thereafter, he received homebound instruction, which the parents deemed to be inappropriate. The Court concluded that the parents must proceed administratively prior to filing a federal lawsuit. The Court recognized, however, that exhaustion would not be necessary if the plaintiff was being completely deprived of any educational benefits. The Court said:

"Had the undisputed facts conclusively shown that plaintiff was not receiving any education whatsoever and that defendants would not take any steps to provide him with an appropriate education, defendants violation of the Act would be clear. In such event, prior resort to administrative remedies would not be a prerequisite to bringing action on the violation in federal district court. Administrative remedies need not be pursued when to do so would be futile." 472 F.Supp. at 53-54.

"4 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 provision of a free appropriate public education ...' to plaintiff, 20 U.S.C. § 1415(b)(1)(E), and, as such, must be brought before the local and state agencies prior to review by this Court. These Act requirements represent Congressional recognition of the view expressed by the Supreme Court in another school context that these educational questions lie in an area in which the courts' `lack of specialized knowledge and experience counsels against premature inference with the informed judgments made at the state and local levels.' San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 42, 93 S.Ct. 1278, 1301, 36 L.Ed.2d 16 (1973)." 472 F.Supp. at 55.

In Armstrong v. Kline, 476 F.Supp. 583 (E.D., Pa.1979), the Court held that exhaustion of state remedies would be futile and was, therefore, not required. The parents of several exceptional children sought to have their children's educational training expanded beyond the 180-day maximum established by state regulations. The plaintiffs claimed that the six-month regimen resulted in regression of skills and development during the period in which the children were not in school. The parents had failed to pursue any state administrative procedures and the Court concluded that since the defendants had instructed its hearing examiners not to allow any education beyond the 180 days, no exhaustion was necessary.

There is considerable jurisprudence to support the notion that exhaustion is not necessary whenever it is clear that the pursual of administrative remedies would be futile. See McKart v. United States, 395 U.S. 185,...