Stuart v. Nappi

• Decision Date: 04 January 1978
• Docket Number: Civ. No. B-77-381.
• Citation: 443 F. Supp. 1235
• Parties: Kathy STUART, by and through her mother and next friend, Joan Stuart, Plaintiffs, v. Pasquale NAPPI, Individually and in his capacity as Superintendent, Danbury Public Schools, Carl Susnitsky, Henrique Antonio, Paul Werner, Paul Baird, Theresa Boccuzzi, Bunny Jacobson, Tonio Pepe, Barbara Baker, Henry Bessel, Robert Jones, Individually and in their capacities as Members of the Danbury Board of Education, Defendants.
• Court: U.S. District Court — District of Connecticut

443 F. Supp. 1235

Kathy STUART, by and through her mother and next friend, Joan Stuart, Plaintiffs, v. Pasquale NAPPI, Individually and in his capacity as Superintendent, Danbury Public Schools, Carl Susnitsky, Henrique Antonio, Paul Werner, Paul Baird, Theresa Boccuzzi, Bunny Jacobson, Tonio Pepe, Barbara Baker, Henry Bessel, Robert Jones, Individually and in their capacities as Members of the Danbury Board of Education, Defendants.

Civ. No. B-77-381.

United States District Court, D. Connecticut.

January 4, 1978.

COPYRIGHT MATERIAL OMITTED

Wenner A. Lohe, Jr., Danbury, Conn., John A. Dziamba, Willimantic, Conn., for plaintiffs.

Russell Lee Post, Jr., Avon, Conn., Robert W. Garvey, Hartford, Conn., for defendants.

MEMORANDUM OF DECISION

DALY, District Judge.

Plaintiff, Kathy Stuart¹, is in her third year at Danbury High School. The records kept by the Danbury School System concerning plaintiff tell of a student with serious academic and emotional difficulties. They describe her as having deficient academic skills caused by a complex of learning disabilities and limited intelligence. Not surprising, her record also reflects a history of behavioral problems. It was precisely for handicapped children such as plaintiff that Congress enacted the Education of the Handicapped Act (Handicapped Act), 20 U.S.C. § 1401 et seq. See 20 U.S.C. § 1401(1).

Plaintiff seeks a preliminary injunction of an expulsion hearing to be held by the Danbury Board of Education. She claims that she has been denied rights afforded her by the Handicapped Act. Her claims raise novel issues concerning the impact of recent regulations to the Handicapped Act on the disciplinary process of local schools.

The Handicapped Act was passed in 1970 and amended in 1975. Its purpose is to provide states with federal assistance for the education of handicapped children. See 45 C.F.R. § 121a at 374 (Appendix § 2.1) (1976). The regulations on which this decision turns became effective on October 1, 1977. See 42 Fed.Reg. 42,473 (1977) (to be codified in 45 C.F.R. § 121a). State eligibility for federal funding under the Handicapped Act is made contingent upon the implementation of a detailed state plan and upon compliance with certain procedural safeguards. See 20 U.S.C. §§ 1413, 1415. The state plan must require all public schools within the state to provide educational programs which meet the unique needs of handicapped children. See Kruse v. Campbell, 431 F.Supp. 180, 186 (E.D.Va.), vacated and remanded, ___ U.S. ___, ___, 98 S.Ct. 38, 54 L.Ed.2d 65 (October 4, 1977); cf. Cuyahoga County Association For Retarded Children and Adults v. Essex, 411 F.Supp. 46, 61 n. 7 (N.D.Ohio 1976). Connecticut's plan has been approved and the state presently receives federal funds. As a handicapped student in a recipient state, plaintiff is entitled to a special education program that is responsive to her needs and may insist on compliance with the procedural safeguards contained in the Handicapped Act. After scrutinizing the recent regulations to the Handicapped Act and reviewing both plaintiff's involved school record and the evidence introduced at the preliminary injunction hearing, this Court is persuaded that a preliminary injunction should issue.

The events leading to the present controversy began in 1975 when one of plaintiff's teachers reported to the school guidance counselor that plaintiff was "academically unable to achieve success in his class." As a result of this report and corroboration from her other teachers, it was suggested that plaintiff be given a psychological evaluation and that she be referred to a Planning and Placement Team (PPT). The members of a PPT are drawn from a variety of disciplines, but in all cases they are "professional personnel" employed by the local board of education.² The PPT's functions are to identify children requiring special education, to prescribe special education programs, and to evaluate these programs.

A meeting of the PPT was held in February of 1975, at which plaintiff was diagnosed as having a major learning disability. The PPT recommended that plaintiff be scheduled on a trial basis in the special education program for remediating learning disabilities and that she be given a psychological evaluation. Although the PPT report specifically stated that the psychological evaluation be given "at the earliest feasible time", no such evaluation was administered.

A second PPT meeting was held in May in order to give plaintiff the annual review mandated by Conn.Reg. § 10-76b-7(b). The PPT reported plaintiff had made encouraging gains, but she suffered from poor learning behaviors and emotional difficulties. A psychological evaluation was again recommended. Her continued participation in the special educational program was also advised, but it was made contingent upon the results of the psychological evaluation.

When school commenced in September of 1975, the PPT requested an immediate psychological evaluation. The PPT stated that an evaluation was essential in order to develop an appropriate special education program. For reasons which have not been explained to the Court, the psychological evaluation was not administered for some time, and the clinical psychologist's report of the evaluation was not completed until January 22, 1976. The report stated that plaintiff had severe learning disabilities derived from either a minimal brain dsyfunction or an organically rooted perceptual disorder. It recommended her continued participation in the special education program and concluded: "I can only imagine that someone with such deficit and lack of development must feel utterly lost and humiliated at this point in adolescence in a public school where other students . . . are performing in such contrast to her." The report of plaintiff's psychological evaluation was reviewed at a March, 1976 PPT meeting. The PPT noted that plaintiff was responding remarkably well to the intensive one-to-one teaching she received in the special education program, and recommended that she continue the program until the close of the 1975-1976 school year.

The first indication that the special education program was no longer appropriate came in May of 1976. At that time plaintiff's special education teacher reported that plaintiff had all but stopped attending the program. The teacher requested a PPT meeting to consider whether plaintiff's primary handicap was an emotional disability rather than a learning disability. Despite this request, plaintiff's schedule was not changed nor was a PPT meeting held to review her program before the close of the school year.

At the beginning of the 1976-1977 school year, plaintiff was scheduled to participate in a learning disability program on a part-time basis. Her attendance continued to decline throughout the first half of the school year. By late fall she had completely stopped attending her special education classes and had begun to spend this time wandering the school corridors with her friends. Although she was encouraged to participate in the special education classes, the PPT meeting concerning plaintiff's program, which had been requested at the end of the previous school year, was not conducted in the fall of 1976.

In December of 1976 plaintiff was involved in several incidents which resulted in a series of disciplinary conferences between her mother and school authorities. These conferences were followed by a temporary improvement in plaintiff's attendance and behavior. In light of these improvements, the annual PPT review held in March of 1977 concluded that plaintiff should continue to participate in the special education program on a part-time basis for the remaining three months of the school year. The PPT also recommended that in the next school year plaintiff be scheduled for daily special education classes and that she be considered for a special education vocational training program. The PPT report stated that it was of primary importance for plaintiff to be given a program of study in the 1977-1978 school year which was based on a realistic assessment of her abilities and interests.

Despite the PPT recommendation, plaintiff has not been attending any learning disability program this school year. It is unclear whether this resulted from the school's failure to schedule plaintiff properly or from plaintiff's refusal to attend the program. Regardless of the reason, the school authorities were on notice in the early part of September that the program prescribed by the PPT in March of 1977 was not being administered. In fact, a member of the school staff who was familiar with plaintiff requested that a new PPT review be conducted. This review has never been undertaken.

On September 14, 1977 plaintiff was involved in school-wide disturbances which erupted at Danbury High School. As a result of her complicity in these disturbances, she received a ten-day disciplinary suspension and was scheduled to appear at a disciplinary hearing on November 30, 1977. The Superintendent of Danbury Schools recommended to the Danbury Board of Education that plaintiff be expelled for the remainder of the 1977-1978 school year at this hearing.

Plaintiff's counsel made a written request on November 16, 1977 to the Danbury Board of Education for a hearing and a review of plaintiff's special education program in accordance with Conn.Gen.Stat. § 10-76h. On November 29, 1977 plaintiff obtained a temporary restraining order from this Court which enjoined the defendants from conducting the disciplinary hearing. This order was continued on December 12, 1977 at the conclusion of the preliminary injunction hearing. Between the time the first temporary restraining order was issued and the preliminary injunction hearing was held plaintiff was given a psychological evaluation. However, the results of this evaluation were unavailable at the time of the hearing. A PPT review of plaintiff's program has not been...