Tatro v. State of Tex., CA-3-79-1281-G.
| Decision Date | 21 December 1979 |
| Docket Number | No. CA-3-79-1281-G.,CA-3-79-1281-G. |
| Citation | 481 F. Supp. 1224 |
| Parties | Henri and Mary TATRO et al. v. The STATE OF TEXAS et al. |
| Court | U.S. District Court — Northern District of Texas |
Moseley, Jones, Enoch, & Martin by Craig T. Enoch, Dallas, Tex., for plaintiffs.
O. Glenn Weaver, Irving, Tex., for J. F. Townley.
Mark White, Atty. Gen. of Texas, Austin, Tex., for State of Texas and Texas Education Agency.
Martha H. Allan, Asst. Atty. Gen., Austin, Tex., for Roger Hill, Dr. Robert Pierce, Mrs. Anne Pfaff, Barbara Cardwell, Troy Kelley, Mrs. Pat Norman, & John Stipes.
Deatherage & Weaver by James W. Deatherage, Irving, Tex., for defendants.
Amber Tatro is a 3½ year old female suffering from myelomenengocele, commonly referred to as spina bifida. As a result of this handicap, Amber not only suffers from orthopedic and speech impediments, but also from what is called a neurogenic bladder. Because of the neurogenic bladder condition, she must be "catheterized" approximately every three or four hours each day, the method of choice being Clean Intermittent Catheterization ("CIC"). This procedure involves washing a little metal tube, the catheter, inserting the catheter in the bladder to allow the urine to drain out, pulling the catheter out, and then wiping the bladder region. This procedure can be performed by laymen after proper training, but because of the child's age, she is unable to perform CIC upon herself. This suit is rooted in the decision of the Irving Independent School District that were Amber to attend its early childhood development program, the school would not provide CIC to Amber during her school day.
Henri and Mary Tatro, individually and as next friend of Amber Tatro, brought this action for injunctive relief and money damages against the State of Texas, the State Board of Education, the Texas Education Agency, the Board of Trustees for the Irving Independent School District, and J. F. Townley, individually, as Superintendent of the Irving Independent School District. Plaintiffs allege that provision of CIC to Amber is required by the Education of All Handicapped Children Act, 20 U.S.C. § 1401, et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the stated policy of the Irving Independent School District, Treatment of Students by School Personnel, Policy No. 5157. Plaintiffs have applied for a preliminary injunction ordering defendants to provide catheterization for Amber during the pendency of this suit. Defendant Townley filed a motion to dismiss the complaint as against him.
A parent is indeed a "hostage to fate." Caring for a child under the best of circumstances taxes financial and emotional reserves — here, most heavily. Amber's plight tugs at the heartstrings, and given the relative rarity of spina bifida, there is a temptation to here achieve a "humane" result. Despite the limited number of times school boards may be faced with a child requiring CIC, the interpretation of these federal statutes has wide consequences because it involves definitions of the duty of hundreds of school districts to be discharged in myriad factual patterns. The limits on this court's institutional role here gives little play for this court's humanitarian concern for Amber and her parents. This court instead is called on to engage in the relatively emotionally barren task of providing the interstitial stuffing to acts of Congress against a background of its intent and purpose in enactment. Doing so, the court concludes that the application for preliminary injunction must be denied and the motion to dismiss the complaint as against Townley must be granted.1
To assist the states in educating the handicapped, federal grants are made available to them under the Education for All Handicapped Children Act. Grants are conditional on the states establishing "a policy that assures all handicapped children the right to a free appropriate public education." 20 U.S.C. § 1412(1). See also, Lora v. Board of Education of City of New York, 456 F.Supp. 1211, 1226 (E.D.N.Y.1978); 20 U.S.C. § 1414(a)(6)-(7). Plaintiffs assert that the Act is to be interpreted in this case as requiring provision of CIC to Amber. This court disagrees.
Free appropriate public education is statutorily defined as "special education" and "related services" which meet certain requirements. 20 U.S.C. § 1401(18). Plaintiffs assert that the provision of CIC to Amber is a related service. The term "related service" is defined as:
. . . transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a handicapped child to benefit from special education, and includes the early identification and assessment of handicapping conditions in children.
20 U.S.C. § 1401(17).
Free appropriate public education refers to special education and related services which meet various conditions. The services required to be provided must be "related" to the special education. Amber suffers from a physical condition which unfortunately necessitates that she receive CIC every three or four hours. CIC is required whether or not she is attending school. CIC is not any more related to "special education" than other requisites to her existence, such as food or water. Provision of CIC, unlike such listed "related services" as "speech pathology and audiology, psychological services, physical and occupational therapy, and recreation," is not directly related to the provision of "special education."
The definition of "related services" has only two categories: (1) transportation as may be required to assist a handicapped child to benefit from special education, and (2) supportive services as may be required to assist a handicapped child to benefit from special education. The transportation provision is not applicable and while it makes possible the continued health of Amber, CIC does not enhance the benefits of a particular form of special education. If CIC be deemed a medical service, it would still not be a medical service for "diagnostic and evaluation purposes." CIC is not developmental or corrective.
CIC is supportive of Amber's education in the sense that it is required at sufficiently frequent intervals that her education and CIC must proceed apace. One can argue that read literally, every necessary life support system must be furnished. But the court has found no congressional intent to sweep broadly in its usage of the word "related." Instead the court finds that to be related in the statutory sense the service requirement must arise from the effort to educate. There is a difference between maintenance of life systems and enhancing a handicapped person's ability to learn. The CIC is essential to Amber's life but once that life maintenance service is provided, it is unrelated to her learning skills.
This court has not been presented with any evidence in the legislative history which would indicate that the term "related services" can be construed as broadly as plaintiffs urge. To the contrary, the language used while evincing a broad purpose carefully limits the means of achieving them. For example, medical services while illustrated by a listing of a variety of services is carefully limited to diagnostic and evaluation purposes. That qualification is inconsistent with finding a congressional intent to furnish all support services needed by persons during school not because of the schooling but because that care is always required. The notion of related services as being those services that make more beneficial the special education being provided was contained even in the original Senate Bill; the term "related services" was originally defined as:
. . . transportation, developmental, corrective, and supportive services ( including at least speech pathology and audiology, psychological...
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Tatro v. State of Tex.
...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 th......
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Gary B. v. Cronin
...handicaps. See Complaint ¶¶ 7-12 (No. 79 C 5383 filed Dec. 21, 1979). Finally, defendants contend that the holding in Tatro v. Texas, 481 F.Supp. 1224 (N.D.Tex.1979) applies here. In that case, Judge Higginbotham found that the Rehabilitation Act does not require a school to provide cathete......
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Tatro v. State of Tex.
...reported in detail in our prior opinion, 625 F.2d 557 (1980) (Tatro I ), and in those of the district court. 516 F.Supp. 968 (1981); 481 F.Supp. 1224 (1979). To aid the reader, we will briefly summarize them here. Amber is a seven year old girl afflicted with myelomeningocele, a birth defec......
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Irving Independent School District v. Tatro
...under" any program receiving federal aid. The District Court denied respondents' request for a preliminary injunction. Tatro v. Texas, 481 F.Supp. 1224 (ND Tex.1979). That court concluded that CIC was not a "related service" under the Education of the Handicapped Act because it did not serv......