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MILLS v. BOARD OF EDUC. OF DIST. OF COLUMBIA

August 1, 1972

Peter MILLS et al., Plaintiffs,
v.
BOARD OF EDUCATION OF the DISTRICT OF COLUMBIA et al., Defendants


Waddy, District Judge.


The opinion of the court was delivered by: WADDY

WADDY, District Judge.

 This is a civil action brought on behalf of seven children of school age by their next friends in which they seek a declaration of rights and to enjoin the defendants from excluding them from the District of Columbia Public Schools and/or denying them publicly supported education and to compel the defendants to provide them with immediate and adequate education and educational facilities in the public schools or alternative placement at public expense. They also seek additional and ancillary relief to effectuate the primary relief. They allege that although they can profit from an education either in regular classrooms with supportive services or in special classes adopted to their needs, they have been labelled as behavioral problems, mentally retarded, emotionally disturbed or hyperactive, and denied admission to the public schools or excluded therefrom after admission, with no provision for alternative educational placement or periodic review. The action was certified as a class action under Rule 23(b)(1) and (2) of Federal Rules of Civil Procedure by order of the Court dated December 17, 1971.

 The defendants are the Board of Education of the District of Columbia and its members, the Superintendent of Schools for the District of Columbia and subordinate school officials, the Commissioner of the District of Columbia and certain subordinate officials and the District of Columbia.

 THE PROBLEM

 The genesis of this case is found (1) in the failure of the District of Columbia to provide publicly supported education and training to plaintiffs and other "exceptional" children, members of their class, and (2) the excluding, suspending, expelling, reassigning and transferring of "exceptional" children from regular public school classes without affording them due process of law.

 The problem of providing special education for "exceptional" children (mentally retarded, emotionally disturbed, physically handicapped, hyperactive and other children with behavioral problems) is one of major proportions in the District of Columbia. The precise number of such children cannot be stated because the District has continuously failed to comply with Section 31-208 of the District of Columbia Code which requires a census of all children aged 3 to 18 in the District to be taken. Plaintiffs estimate that there are ". . . 22,000 retarded, emotionally disturbed, blind, deaf, and speech or learning disabled children, and perhaps as many as 18,000 of these children are not being furnished with programs of specialized education." According to data prepared by the Board of Education, Division of Planning, Research and Evaluation, the District of Columbia provides publicly supported special education programs of various descriptions to at least 3880 school age children. *fn1" However, in a 1971 report to the Department of Health, Education and Welfare, the District of Columbia Public Schools admitted that an estimated 12,340 handicapped children were not to be served in the 1971-72 school year. *fn2"

 Each of the minor plaintiffs in this case qualifies as an "exceptional" child.

 Plaintiffs allege in their complaint and defendants admit as follows:

 
"PETER MILLS is twelve years old, black, and a committed dependent ward of the District of Columbia resident at Junior Village. He was excluded from the Brent Elementary School on March 23, 1971, at which time he was in the fourth grade. Peter allegedly was a 'behavior problem' and was recommended and approved for exclusion by the principal. Defendants have not provided him with a full hearing or with a timely and adequate review of his status. Furthermore, Defendants have failed to provide for his reenrollment in the District of Columbia Public Schools or enrollment in private school. On information and belief, numerous other dependent children of school attendance age at Junior Village are denied a publicly-supported education. Peter remains excluded from any publicly-supported education.
 
"DUANE BLACKSHEARE is thirteen years old, black, resident at Saint Elizabeth's Hospital, Washington, D.C., and a dependent committed child. He was excluded from the Giddings Elementary School in October, 1967, at which time he was in the third grade. Duane allegedly was a "behavior problem." Defendants have not provided him with a full hearing or with a timely and adequate review of his status. Despite repeated efforts by his mother, Duane remained largely excluded from all publicly-supported education until February, 1971. Education experts at the Child Study Center examined Duane and found him to be capable of returning to regular class if supportive services were provided. Following several articles in the Washington Post and Washington Star, Duane was placed in a regular seventh grade classroom on a two-hour a day basis without any catch-up assistance and without an evaluation or diagnostic interview of any kind. Duane has remained on a waiting list for a tuition grant and is now excluded from all publicly-supported education.
 
"GEORGE LIDDELL, JR., is eight years old, black, resident with his mother, Daisy Liddell, at 601 Morton Street, N.W., Washington, D.C., and an AFDC recipient. George has never attended public school because of the denial of his application to the Maury Elementary School on the ground that he required a special class. George allegedly was retarded. Defendants have not provided him with a full hearing or with a timely and adequate review of his status. George remains excluded from all publicly-supported education, despite a medical opinion that he is capable of profiting from schooling, and despite his mother's efforts to secure a tuition grant from Defendants.
 
"STEVEN GASTON is eight years old, black, resident with his mother, Ina Gaston, at 714 9th Street, N.E., Washington, D.C. and unable to afford private instruction. He has been excluded from the Taylor Elementary School since September, 1969, at which time he was in the first grade. Steven allegedly was slightly brain-damaged and hyperactive, and was excluded because he wandered around the classroom. Defendants have not provided him with a full hearing or with a timely and adequate review of his status. Steven was accepted in the Contemporary School, a private school, provided that tuition was paid in full in advance. Despite the efforts of his parents, Steven has remained on a waiting list for the requisite tuition grant from Defendant school system and excluded from all publicly-supported education.
 
"MICHAEL WILLIAMS is sixteen years old, black, resident at Saint Elizabeth's Hospital, Washington, D.C., and unable to afford private instruction. Michael is epileptic and allegedly slightly retarded. He has been excluded from the Sharpe Health School since October, 1969, at which time he was temporarily hospitalized. Thereafter Michael was excluded from school because of health problems and school absences. Defendants have not provided him with a full hearing or with a timely and adequate review of his status. Despite his mother's efforts, and his attending physician's medical opinion that he could attend school, Michael has remained on a waiting list for a tuition grant and excluded from all publicly-supported education.
 
"JANICE KING is thirteen years old, black, resident with her father, Andrew King, at 233 Anacostia Avenue, N.E., Washington, D.C., and unable to afford private instruction. She has been denied access to public schools since reaching compulsory school attendance age, as a result of the rejection of her application, based on the lack of an appropriate educational program. Janice is brain-damaged and retarded, with right hemiplegia, resulting from a childhood illness. Defendants have not provided her with a full hearing or with a timely and adequate review of her status. Despite repeated efforts by her parents, Janice has been excluded from all publicly-supported education.
 
"JEROME JAMES is twelve years old, black, resident with his mother, Mary James, at 2512 Ontario Avenue, N.W., Washington, D.C., and an AFDC recipient. Jerome is a retarded child and has been totally excluded from public school. Defendants have not given him a full hearing or a timely and adequate review of his status. Despite his mother's efforts to secure either public school placement or a tuition grant, Jerome has remained on a waiting list for a tuition grant and excluded from all publicly supported education." *fn3"

 Although all of the named minor plaintiffs are identified as Negroes the class they represent is not limited by their race. They sue on behalf of and represent all other District of Columbia residents of school age who are eligible for a free public education and who have been, or may be, excluded from such education or otherwise deprived by defendants of access to publicly supported education.

 Minor plaintiffs are poor and without financial means to obtain private instruction. There has been no determination that they may not benefit from specialized instruction adapted to their needs. Prior to the beginning of the 1971-72 school year minor plaintiffs, through their representatives, sought to obtain publicly supported education and certain of them were assured by the school authorities that they would be placed in programs of publicly supported education and certain others would be recommended for special tuition grants at private schools. However, none of the plaintiff children were placed for the 1971 Fall term and they continued to be entirely excluded from all publicly supported education. After thus trying unsuccessfully to obtain relief from the Board of Education the plaintiffs filed this action on September 24, 1971.

 THERE IS NO GENUINE ISSUE OF MATERIAL FACT

 Congress has decreed a system of publicly supported education for the children of the District of Columbia. *fn4" The Board of Education has the responsibility of administering that system in accordance with law and of providing such publicly supported education to all of the children of the District, including these "exceptional" children. *fn5"

 Defendants have admitted in these proceedings that they are under an affirmative duty to provide plaintiffs and their class with publicly supported education suited to each child's needs, including special education and tuition grants, and also, a constitutionally adequate prior hearing and periodic review. They have also admitted that they failed to supply plaintiffs with such publicly supported education and have failed to afford them adequate prior hearing and periodic review. On December 20, 1971 the plaintiffs and defendants agreed to and the Court signed an interim stipulation and order which provided in part as follows:

 
"Upon consent and stipulation of the parties, it is hereby ORDERED that:
 
"1. Defendants shall provide plaintiffs Peter Mills, Duane Blacksheare, Steven Gaston and Michael Williams with a publicly-supported education suited to their (plaintiffs') needs by January 3, 1972.
 
"2. Defendants shall provide counsel for plaintiffs, by January 3, 1972, a list showing, for every child of school age then known not to be attending a publicly-supported educational program because of suspension, expulsion, exclusion, or any other denial of placement, the name of the child's parent or guardian, the child's name, age, address and telephone number, the date of his suspension, expulsion, exclusion or denial of placement and, without attributing a particular characteristic to any specific child, a breakdown of such list, showing the alleged causal characteristics for such nonattendance and the number of children possessing such alleged characteristics.
 
"3. By January 3, 1972, defendants shall initiate efforts to identify remaining members of the class not presently known to them, and also by that date, shall notify counsel for plaintiffs of the nature and extent of such efforts. Such efforts shall include, at a minimum, a system-wide survey of elementary and secondary schools, use of the mass written and electronic media, and a survey of District of Columbia agencies who may have knowledge pertaining to such remaining members of the class. By February 1, 1972, defendants shall provide counsel for plaintiffs with the names, addresses and telephone numbers of such remaining members of the class then known to them.
 
"4. Pending further action by the Court herein, the parties shall consider the selection and compensation of a master for determination of special questions arising out of this action with regard to the placement of children in a publicly-supported educational program suited to their needs."

 On February 9, 1972, the Board of Education passed a Resolution which included the following:

 
" Special Education
 
"7. All vacant authorized special education positions, whether in the regular, Impact Aid, or other Federal budgets, shall be filled as rapidly as possible within the capability of the Special Education Department. Regardless of the capability of the Department to fill vacant positions, all funds presently appropriated or allotted for special education, whether in the regular, Impact Aid, or other Federal budgets, shall be spent solely for special education.
 
"9. The Board directs the Rules Committee to devise as soon as possible for the purpose of Mills v. Board of Education rules defining and providing for due process and fair hearings; and requests the Corporation Counsel to lend such assistance to the Board as may be necessary in devising such rules in a form which will meet the requirements of Mills v. Board of Education.
 
"10. It is the intention of the Board to submit for approval by the Court in Mills v. Board of Education a Memorandum of Understanding setting forth a comprehensive plan for the education, treatment and care of physically or mentally impaired children in the age range from three to twenty-one years. It is hoped that the various other District of Columbia agencies concerned will join with the Board in the submission of this plan.
 
"It is the further intention of the Board to establish procedures to implement the finding that all children can benefit from education and, have a right to it, by providing for comprehensive health and psychological appraisal of children and the provision for each child of any special education which he may need. The Board will further require that no change in the kind of education provided for a child will be made against his wishes or the wishes of his parent or guardian unless he has been accorded a full hearing on the matter consistent with due process."

 Defendants failed to comply with that consent order and there is now pending before the Court a motion of the plaintiffs to require defendants to show cause why they should not be held in contempt for such failure to comply.

 On January 21, 1972 the plaintiffs filed a motion for summary judgment and a proposed order and decree for implementation of the proposed judgment and requested a hearing. On March 1, 1972 the defendants responded as follows:

 
"1. The District of Columbia and its officers who are named defendants to this complaint consent to the entrance of a judgment declaring the rights of the plaintiff class to the effect prayed for in the complaint, as specified below, such rights to be prospectively effective as of March 1, 1972:
 
That no child eligible for a publicly supported education in the District of Columbia public schools shall be excluded from a regular public school assignment by a Rule, policy, or practice of the Board of Education of the District of Columbia or its agents unless such child is provided (a) adequate alternative educational services suited to the child's needs, which may include special education or tuition grants, and (b) a constitutionally adequate prior hearing and periodic review of the child's status, progress, and the adequacy of any educational alternative.
 
It is submitted that the entrance of a declaratory judgment to this effect renders plaintiffs' motion for summary judgment moot.

 The Court set the date of March 24, 1972, for the hearing that both parties had requested and specifically ordered the defendants to submit a copy of their proposed implementation plan no later than March 20, 1972.

 On March 24, 1972, the date of the hearing, the defendants not only had failed to submit their implementation plan as ordered but were also continuing in their violation of the provisions of the Court's order of December 20, 1971. At the close of the hearing on March 24, 1972, the Court found that there existed no genuine issue of a material fact; orally granted plaintiffs' motion for summary judgment, and directed defendants to submit to the Court any proposed plan they might have on or before March 31, 1972. *fn6" The defendants, other than Cassell, failed to file any proposal within the time directed. However, on April 7, 1972, there was sent to the Clerk of the Court on behalf of the Board of Education and its employees who are defendants in this case the following documents:

 1. A proposed form of Order to be entered by the Court.

 2. An abstract of a document titled "A District of Columbia Plan for Identification, Assessment, Evaluation, and Placement of Exceptional Children".

 3. A document titled "A District of Columbia Plan for Identification, Assessment, Evaluation, and Placement of Exceptional Children". *fn7"

 4. Certain Attachments and Appendices to this Plan.

 The letter accompanying the documents contained the following paragraph:

 
"These documents express the position of the Board of Education and its employees as to what should be done to implement the judgment of the Honorable Joseph C. Waddy, the District Judge presiding over this civil action. The contents of these documents have not been endorsed by the other defendants in this case."

 None of the other defendants have filed a proposed order or plan. Nor has any of them adopted the proposal submitted by the Board of Education. Throughout these proceedings it has been obvious to the Court that the defendants have no common program or plan for the alleviation of the problems posed by this litigation and that this ...


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