irreparable harm, of inestimable nature and span, would accrue to these minor plaintiffs and also to the adult plaintiffs. The parents, as guardians of their children and protectors of their emotional, physical, and educational well-being, have the duty, responsibility, and right to demand nothing less than their children receive the fullest measure of education appropriate to their particularized needs, in accordance with the law. As to the children, the parties conceded not only that Miriam and Jerry have each suffered the ridicule of other children and teaching adults in various classes at both Brussels and the SHAPE Schools but also that they have each exhibited behavioral disturbances as a result, presumably, of extreme emotional pressures engendered thereby.
The Court must recognize, and it does, that great harm could result to the children by an injunction at this time and a deviation from the general "mainstreaming" as the SHAPE School would provide. Currently, the educators appear to believe that children with learning disabilities would, in many instances, thrive more successfully when placed in normal educational environments with their peers who have no learning disabilities. This philosophy is endorsed by the EHA itself, see 20 U.S.C. § 1412(5)(B), aimed at providing for children, although handicapped, an appropriate education program. Nonetheless, it would appear that each case must be considered on its own footing. The affidavit of Dr. Karl Pulkkinen, who knows these children well, demonstrates that paramount interests of Miriam and Jerry require placement at private residential, educational facilities, albeit far from their parents' home, and that past experience advises against mainstreaming.
Defendants also contend that it would be detrimental to the children to place them at Landmark and Brandon Hall Schools now, only to have to remove them after a determination on the merits, should the case be resolved in favor of the defendants. While the Court is obviously sensitive to this risk, and does not express an opinion on the eventual outcome of the dispute, placement at Landmark and Brandon Hall Schools would, even for a brief period of time, provide these children with such an improved educational environment over their existing circumstances and that proposed by defendants, that preliminary relief (even if no more can eventually be warranted), should be granted at this time. Accordingly, it appears that absent injunctive relief, Miriam and Jerry will suffer the irreparable harm of lacking each day of their young lives an appropriate education, one that is sensitive to their particular disabilities, commensurate to their levels of understanding, and fulfilling of their immediate needs. This most important requirement for injunctive relief has been satisfied.
What hardship will befall DoDDS should the Court grant this preliminary injunction to the plaintiffs? The defendants will of course have to pay for this expensive specialized education for Miriam and Jerry in a residential setting. It is Congress however, which has already determined that DoDDS must provide an appropriate educational program for each of its pupils. When DoDDS is not to be in compliance with that congressional mandate, as suggested above, then an individualized program, albeit involving expense, must be produced to fulfill not the obvious compassionate necessities for these children but to uphold the congressional intent of devising that which purports to satisfy equal protection.
Congress declared when it passed the Education of All Handicapped Children Act of 1975:
It is the purpose of this Act to assure that all handicapped children have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their needs, to assure that the rights of handicapped children and their parents or guardians are protected, to assist States and localities to provide for the education of all handicapped children, and to assess and assure the effectiveness of efforts to educate handicapped children.
Education of All Handicapped Children Act of 1975, Pub.L. No. 91-230, § 601 as amended by Pub.L. No. 94-142, § 3(a), reprinted at 20 U.S.C. § 1401 (1976) (Historical Note).
In focusing attention on the particular problems of those who suffer from physical, mental, or emotional learning disabilities, this statement of intent directs a concept of public interest that includes equal treatment for handicapped children and provision of special educational services where needed. The expense that must be borne for this education ultimately by the taxpayers is consistent with the intent that the handicapped children be no less educated and no less sheltered with constitutional protection than those not in need of special services. Whether they are enrolled in a local school system in the continental United States or are overseas dependent children of Defense Department employees, the right is equal: to receive a free appropriate education. Unless reasonable appropriate alternatives are available the rights cannot be constricted by monetary limitations.
In sum, plaintiffs have satisfied the elements requisite to injunctive relief.
It is, therefore this 7th day of October, 1980,
ORDERED that the plaintiffs' Motion for a Preliminary Injunction be granted, and it is
FURTHER ORDERED that the plaintiff Miriam Cox be promptly placed at the Landmark School, at Brides Crossing, Massachusetts, for purposes of her education, and it is
FURTHER ORDERED that the plaintiff Gerald Cox, Jr. be promptly placed at the Brandon Hall School in Dunwoody, Georgia, for purposes of his education, and it is
FURTHER ORDERED that the defendants to this action pay for the expenses of the plaintiff children in attending the aforementioned schools, including tuition, room, board, transportation, and any other like expenses associated with that attendance at the Landmark School and Brandon Hall School, and it is
FURTHER ORDERED that the plaintiffs post a security bond of $ 250, cash or surety, within forty-eight hours of the entry of this Order, and it is
FURTHER ORDERED that the defendants have twenty days within which to file their answer, or other responsive pleading, and it is
FURTHER ORDERED that the plaintiffs have twenty days following the receipt of the defendants' answer or responsive pleading in which to file their motion for class certification.