Tatro v. State of Tex.

Decision Date26 May 1981
Docket NumberCiv. A. No. CA3-79-1281-G.
Citation516 F. Supp. 968
PartiesHenri and Mary TATRO et al., Plaintiffs, v. STATE OF TEXAS et al., Defendants.
CourtU.S. District Court — Northern District of Texas


Moseley, Jones, Enoch & Martin by Craig T. Enoch, Dallas, Tex., for plaintiffs.

Donald P. Wilcox, Michael G. Young, Austin, Tex. and Thompson & Knight, Dallas, Tex., for amicus curiae.

O. Glenn Weaver, Irving, Tex., for J. F. Townley.

Mark White, Atty. Gen. of Texas, Martha H. Allan, Asst. Atty. Gen., Austin, Tex., for State of Texas and Texas Ed. Agency.

Deatherage & Weaver by James W. Deatherage, Irving, Tex., for Irving ISD, Bd. of Trustees of Irving ISD, Roger Hill, Dr. Robert Pierce, Anne Pfaff, Barbara Cardwell, Troy Kelley, Pat Norman and John Stipes.



Amber Tatro is a five year old female suffering from myelomenengocele, commonly known as spinal bifida.1 As a result of this birth defect, Amber suffers from orthopedic and speech impediments and a neurogenic bladder. Because of her bladder condition, Amber is unable to void voluntarily, and must be catheterized several times each day. The method of choice is Clean Intermittent Catheterization ("CIC").

In early 1979 Mary Tatro, Amber's mother, asked the Irving Independant School District ("school district") to provide Amber with special education. After testing Amber, the school district developed an Individual Education Program ("IEP") which it believed would provide Amber with the necessary educational and therapeutic services. Amber then was recommended for placement in the school district's Early Childhood Development Classes beginning September, 1979. The school district, however, maintained that it had no obligation to provide CIC.

In June of 1979, Amber's parents appealed to an Impartial Due Process Hearing Officer the school district's decision not to provide CIC. They did not otherwise question the appropriateness of the IEP. The Hearing Officer found the school district to be obligated to furnish CIC, and recommended that Amber's IEP be modified accordingly. This decision was appealed to and affirmed by the State Commissioner of Education. The school district then appealed to the State Board of Education, which reversed the Commissioner.

On October 12, 1979, the Tatros brought this action seeking an injunction ordering defendants2 to provide Amber with CIC and to recover compensatory damages and attorneys' fees.

In its Memorandum Opinion filed December 21, 1979, 481 F.Supp. 1224, this court, relying upon a written stipulation of facts believed to have been agreed to by the Tatros and the District, held that neither the Education of All Handicapped Children Act ("EAHCA"), 20 U.S.C. § 1401 et seq., nor the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., requires the school district to provide Amber with CIC. After the December 21, 1979 Order, the school district advised the Court of Appeals, but not this court, that it had not actually signed the filed written stipulation. On September 2, 1980, the Court of Appeals vacated that ruling, and held that the school district was obligated under both the EAHCA and § 504 of the Rehabilitation Act to furnish CIC. 625 F.2d 557. In remanding for further proceedings, the Court of Appeals recognized that there was no factual record upon which to base an opinion, but nonetheless proceeded to address the merits of the case. The court then directed this court to make appropriate findings to determine whether plaintiffs are entitled to relief under either statute as construed by it. 625 F.2d at 558 n.1.

Applying the Act as interpreted by the Court of Appeals, on January 16, 1981, this court issued an Interim Order directing the school district to provide Amber with such CIC as necessary to her IEP. Amber was enrolled with the school district on January 19th, and until January 23rd, the school district provided CIC. During that week a dispute between the school district and Mary Tatro developed concerning the adequacy of a parental consent form with attached physician's prescription submitted by Mary Tatro to the school district. Believing the consent inadequate and that it was not required under the Interim Order to furnish CIC without a valid consent form, the school district discontinued CIC on January 26th. Amber, however, continued to attend her classes, with CIC provided by her babvsitter as necessary. On March 13, 1981, the Tatros questioned the school district decision by filing a motion for sanctions. At the hearing on the motion, a consent form and physician's prescription acceptable to both the Tatros and the school district was agreed upon. With this collateral dispute resolved, the school district resumed CIC on April 1, 1981 (after spring vacation). A final hearing was held on April 23, 1981, to allow the Tatros to offer additional evidence as to damages and to supplement their request for attorneys' fees. At this hearing, the court denied the motion for sanctions because it found that the school district had acted properly, and within the spirit of the Interim Order.

At the outset, it is important to place the school district's refusal in perspective. At no time has the school district refused to place Amber in its Early Childhood Development Classes. Instead, the school district urged Amber's parents to enroll her in the program and make private arrangements for CIC pending the final disposition of the legal dispute.3 Despite the benefits of placing Amber in the program, her parents chose to forego such an arrangement, and instead kept Amber at the Helping Hand Development Center4 for an additional year. Amber's parents did not attempt to enroll Amber with the school district for the 1980/81 school year.5

The State Defendants

In its Memorandum Opinion of December 31, 1980, this court dismissed any claims for retrospective relief against the State defendants (the State of Texas, the Texas Education Agency and the State Board of Education) on the basis of their 11th Amendment immunity.6See Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Because the State Board of Education has supervisory responsibility for assuring that Amber is educated in accordance with the EAHCA, see 20 U.S.C. § 1412(6); S-1 v. Turlington, 635 F.2d 342, 350 (5th Cir. 1981); Kruelle v. New Castle County School Dist., 642 F.2d 687 (3rd Cir. 1981), the members of the State Board of Education will be retained in their official capacities for the purpose of injunctive relief. Plaintiffs joined the State Commissioner of Education in his capacity as "director" of the Texas Education Agency. Because the members of the Board of Education are the proper parties for injunctive relief, the Commissioner is DISMISSED in his official capacity. The State of Texas and the Texas Education Agency are DISMISSED. See Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3058, 57 L.Ed.2d 1114 (1978).

Commissioner Bowen and the Members of the State Board of Education

There is no prospective relief to which plaintiffs are entitled against Commissioner Bowen or the members of the State Board of Education in their individual capacities.

State officials sued in their individual capacities do not, of course, share their State's 11th Amendment immunity. They, however, are entitled to a qualified good-faith immunity, provided such defense is properly pled. See Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975);7 Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980).

The record is bereft of any evidence that Commissioner Bowen or any member of the State Board of Education acted with anything but good-faith. There is no evidence that they intentionally attempted to violate plaintiffs' rights or acted with malice toward plaintiffs. In that the Board's decision that CIC is not a "related service"8 was affirmed by a federal district court, it cannot be found that its members knew or reasonably should have known that such is not the case.

Having pled the good-faith defense, there being no evidence that they acted in any other manner, and the uncertainty of the law providing affirmative evidence of good-faith, Commissioner Bowen and the individual members of the State Board of Education are DISMISSED.

The Members of the Board of Trustees

Plaintiffs also have joined the individual members of the Board of Trustees of the school district. In that there is no equitable relief to which plaintiffs are entitled against the individual Trustees, plaintiffs' sole basis for the Trustees' presence in their individual capacities is that they may be liable for compensatory damages.

Plaintiffs have advanced one argument for why the Trustees are not entitled to the Wood v. Strickland qualified good-faith immunity. Plaintiffs contend that as a result of a Department of Health, Education and Welfare letter of September 27, 1979, the Trustees knew or should have known that they were violating plaintiffs' rights. That letter informed the superintendent of the school district that the Office for Civil Rights had concluded from its investigation that the school district was violating § 504 by not providing CIC. It should be noted, however, that the letter was sent almost three weeks after the school district's decision had been affirmed by the State Board of Education.9

There is no evidence that the Trustees acted with malice or intentionally attempted to deprive plaintiffs of their rights. The President of the Board of Trustees testified that it was the belief of the Board that the school district was not legally obligated to provide CIC. He further testified that the Board was concerned that CIC is a medical practice, and, therefore, cannot be performed lawfully by employees of the school district. See pages 975-976, infra.

If for no other reason, because the Board of Trustee's construction of applicable federal law...

To continue reading

Request your trial
39 cases
  • Members, Bridgeport Hous. Auth. Police v. Bridgeport, Civ. No. B-77-130.
    • United States
    • U.S. District Court — District of Connecticut
    • May 31, 1983
    ...attorney's fee award under § 1988 "where § 1983 has no greater role than the statute which it purportedly `enforces.'" Tatro v. Texas, 516 F.Supp. 968, 984 (N.D.Tex.1981); Noe v. Ambach, 542 F.Supp. 70, 72 (S.D.N.Y.1982) (citing Addressing the former contention first, the court notes that t......
  • Department of Educ., State of Hawaii v. Katherine D. By and Through Kevin and Roberta D.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 24, 1984
    ...(1982).10 These "exceptional circumstances" are best described in the cases in which they were first held to exist. In Tatro v. Texas, 516 F.Supp. 968 (N.D.Tex.1981), cited by the Anderson court to illustrate the first of its exceptions to the general rule, the court ordered reimbursement o......
  • Georgia Ass'n of Retarded Citizens v. McDaniel
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • October 17, 1983
    ...Sec. 1983 stands alone, devoid of the well developed administrative procedures attendant Sec. 504 regulations. See Tatro v. State of Texas, 516 F.Supp. 968 (N.D.Tex.1981). To the extent such cases are inconsistent with our holding, we reject their analysis.15 The United States, invited to f......
  • Hurry v. Jones
    • United States
    • U.S. District Court — District of Rhode Island
    • March 24, 1983
    ...is inconsistent with congressional intent, however, the Plaintiffs may not avail themselves of § 1988. See also Tatro v. State of Texas, 516 F.Supp. 968, 984 (N.D.Tex.1981) ("Where § 1983 has no greater role than the statute it purportedly `enforces,' its citation will not trigger the § 198......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT