STACEY G., ETC. v. PASADENA INDEPENDENT SCH. DIST.

• Decision Date: 19 August 1982
• Docket Number: Civ. A. No. H-81-1752.
• Citation: 547 F. Supp. 61
• Parties: STACEY G., By her next friends, WILLIAM AND JANE G., Plaintiffs, v. PASADENA INDEPENDENT SCHOOL DISTRICT, Dr. C. Lee Meyer, Harvey Turner, Sam Hawkins, Carl Schwartz, Ruddy Schwartz, John Elam, Lamar Weinbrenner, Dr. B. J. Garner, George Lewis Anderson, Texas Education Agency, Raymon L. Bynum, State Board of Texas, Joe Kelly Butler, Defendants.
• Court: U.S. District Court — Southern District of Texas

547 F. Supp. 61

STACEY G., By her next friends, WILLIAM AND JANE G., Plaintiffs, v. PASADENA INDEPENDENT SCHOOL DISTRICT, Dr. C. Lee Meyer, Harvey Turner, Sam Hawkins, Carl Schwartz, Ruddy Schwartz, John Elam, Lamar Weinbrenner, Dr. B. J. Garner, George Lewis Anderson, Texas Education Agency, Raymon L. Bynum, State Board of Texas, Joe Kelly Butler, Defendants.

Civ. A. No. H-81-1752.

United States District Court, S. D. Texas, Houston Division.

August 19, 1982.

Sarah A. Scott, Brooklyn, N. Y., for plaintiffs.

Donald G. Henslee, Doyal, Henslee & Hairston, Austin, Tex., and C. Ed Davis, Asst. Atty. Gen., Austin, Tex., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

CARL O. BUE, Jr., District Judge.

Introduction

On July 9, 1981, plaintiffs Stacey G., a handicapped child, by her next friends, William and Jane G., residents of Pasadena, Harris County, Texas, commenced the instant action against the Pasadena Independent School District (hereinafter P.I.S.D.); Dr. C. Lee Meyer (Superintendent of P.I.S. D.); Sam Hawkins (Vice-President of the Board of Trustees of P.I.S.D.); Carl Schwartz (Secretary of the Board of Trustees of P.I.S.D.); Rudy Schubert (Assistant Secretary of the Board of Trustees of P.I.S. D.); John Elam, Lamar Weinbrenner, and Dr. B. J. Garner (members of the Board of Trustees of P.I.S.D.); George Lewis Anderson (Director of Special Services of P.I.S. D.); Texas Education Agency; Raymon L. Bynum (Commissioner of Education for the State of Texas); State Board of Education of the State of Texas; and Joe Kelly Butler (Chairman of the State Board of Education), seeking declaratory and injunctive relief, as well as damages, to redress alleged violations of rights guaranteed plaintiffs by Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Supp.1981, the Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1400, et seq. (1978) (hereinafter Act); 42 U.S.C. § 1983 (1981); The Equal Protection and Due Process Clauses of the 14th Amendment to the United States Constitution; Tex.Educ.Code Ann. § 16.104 (1982); and the Texas Education Agency's Policies and Administrative Procedures. Pertinent to the instant motion, plaintiffs' allege basically that defendants failed to properly evaluate or reevaluate Stacey and provide Stacey with a "free appropriate public education."

Shortly after the commencement of this cause, Judge George E. Cire, United States District Judge for the Southern District of Texas, entered a temporary restraining order at plaintiffs' request which directed:

(1) Defendants TEXAS EDUCATION AGENCY and BYNUM to provide this Court with a copy of the administrative record in this case, so that this Court, may review the administrative proceedings ...; and (2) Defendants assume the cost of maintaining Stacey G. at her current educational placement, the Lynne Development Center, during the pendency of a show cause hearing....

On August 5, 1981, this Court held a hearing on plaintiffs' motion for a preliminary injunction. After affording counsel for the parties an opportunity to present evidence and oral argument on the issues raised by plaintiffs' motion, the Court ordered the following:

(1) Further proceedings in the instant cause shall be stayed pending the completion of the administrative hearing set to resume before examiner Mark Berry on August 12, 1981, and the rendition of the hearing officer's "Proposal For Decision". As required by section 71.05.030 of the Texas Education Agency's Policies and Administrative Procedures for the Education of Handicapped Students, the hearing officer shall render his "Proposal For Decision" within 15 days after the close of the evidence;

(2) After the rendition of the hearing officer's "Proposal For Decision", defendants Texas Education Agency and Commissioner Raymon L. Bynum shall provide this Court with a copy of the entire administrative record in this case;

(3) The possibility exists that following the "Proposal For Decision" of the hearing officer, the critical issues precipitating this litigation will be moot. In the event they are not, counsel will give prompt notice and the Court will expedite this case on the docket and its consideration of the outstanding issues including the relief requested by plaintiffs in their motion for preliminary injunction;

(4) Pending the resolution of this cause and the appropriate state proceedings, the defendants shall continue to assume the cost of maintaining Stacey at her current educational placement, as they are required to do so by Section 35.75.070(E)(iii) of the Texas Education Agency's Policies and Administrative Procedures for the Education of Handicapped Students.

Pursuant to this Court's order, the administrative hearing concerning the proper educational placement for Stacey resumed on August 12, 1981, and was concluded on August 13, 1981. On August 27, 1981, the hearing officer rendered his Findings of Fact and Conclusions of Law¹ reflecting his conclusion that Stacey was "severely mentally retarded with autistic like behaviors." Hearing Officer's Findings of Fact and Conclusions of Law at 16. In addition, the hearing officer ordered that P.I.S.D. convene an admission, review and dismissal committee for the purpose of developing an individualized education program for Stacey. The hearing officer directed also that P.I.S.D. provide counseling services for Stacey's parents, and that P.I.S.D. provide Stacey with a year-round educational program, such program to occur within the district. Finally, the hearing officer ordered that plaintiffs' request for residential placement at the Lynne Developmental Center be denied.

Subsequently, on November 20, 1981, plaintiffs filed a motion for placement of Stacey for the 1981-82 school year, inclusive of the summer, until September 1, 1982. See Motion for Placement. In their motion, plaintiffs seek to have the Court review pursuant to 20 U.S.C. § 1415(e) (1978), the special educational placement decision regarding Stacey made by the hearing officer. The motion requested further that the Court identify Stacey's current educational needs, and order a placement for her at The Autistic Treatment Center in San Antonio, Texas. Not surprisingly, defendants are opposed to plaintiffs' motion.

On January 8, 1982, the court held an evidentiary hearing at which time the parties were afforded an opportunity to introduce evidence in support of their respective positions regarding Stacey's educational placement. At the conclusion of the hearing, the Court requested additional briefing by the parties and took the motion under advisement. After careful consideration of the evidence and the briefs submitted by counsel, the Court grants plaintiffs' motion in part and denies it in part for the reasons set forth herein.²

Findings of Fact

1. Stacey is the natural child of plaintiffs William and Jane G. and was born on January 19, 1967. Testimony of William G; Record at 1212.³

2. During infancy, Stacey began to display abnormal behavior. Testimony of William G; Testimony of Jane G; Record at 1303. At the age of 18 months, Stacey was reportedly irritable, resistive, and showed a preference for repetition of routine. By the age of 20 months, Stacey's condition, rather than improve, declined further. Stacey displayed the following maladaptive behaviors: "she screamed at night, demonstrated fear of harmless articles such as a refrigerator, showed no regard for personal safety, engaged in self-stimulatory behavior of jiggling keys and hand regard, had not developed language by 20 months, demonstrated decreased eye contact, and was inaffectionate to her parents except on her own terms." Record at 1303.

3. When Stacey was approximately 30 months old, Stacey was evaluated by Dr. Jim Robinson, a psychiatric consultant affiliated with the Blue Bird Circle Clinic for Pediatric Neurology, Methodist Hospital, in Houston, Texas. Testimony of Jane G. Dr. Robinson diagnosed Stacey as being autistic. Record at 1220, 1303.

4. Autism is a severe disabling condition in which there is generally little or no attempt at verbal communication, disregard for other people and animate objects, excessive self stimulation such as rocking, finger flicking, spinning about, and often a preoccupation with bright or pointed inanimate objects. Testimony of Janean Jarratt; Testimony of Carolyn Garver; Testimony of Donald Minnick; Testimony of Teresa Harrison.

Until recently, autism was thought to be an emotional disorder or psychosis. Testimony of Janean Jarratt; Testimony of Carolyn Garver; Testimony of Donald Minnick. Current research indicates, however, that autism has an organic, neurological base. Testimony of Janean Jarratt; Testimony of Carolyn Garver; Testimony of Donald Minnick; Testimony of Teresa Harrison. Expert testimony developed in the record before the Court reveals a consensus of opinion that autism is per se a severe disability. Testimony of Janean Jarratt; Testimony of Carolyn Garver; Testimony of Donald Minnick. Autism is considered also to be a chronic disorder; symptoms may recede but the underlying impairment is permanent. Testimony of Janean Jarratt; Testimony of Carolyn Garver; Testimony of Donald Minnick.

5. Children who are autistic are generally more difficult to manage than severely retarded children, and require greater attention. Testimony of James Clark; Testimony of Donald Minnick. The potential for retarded children is generally regarded as fixed, whereas the potential for autistic children is unknown. Testimony of Janean Jarratt; Testimony of Carolyn Garver; Testimony of Donald Minnick. Autism has also a slightly more positive prognosis than severe mental retardation. Testimony of Donald Minnick. Autism is further distinguished from mental retardation in that autistic children lack the ability to generalize from one experience to another. Mentally retarded children, however, have such an ability. Testimony of Janean Jarratt; Testimony of Donald...