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October 7, 1980

Miriam COX et al., Plaintiffs,
Harold BROWN et al., Defendants

The opinion of the court was delivered by: GREEN


This matter is before the Court pursuant to plaintiffs' Motion for Preliminary Injunction *fn1" directing the Department of Defense ("DoD") to place, at the expense of DoD, the two minor plaintiffs at two specific private schools in the United States in order that they may receive special educational services appropriate to their needs and allegedly unavailable in defendants' school system, the Department of Defense's Dependent Schools ("DoDDS"). These teenaged children, Miriam (15) and Gerald, Jr. ("Jerry") (17), are joined as party plaintiffs by their parents, Winifred L. Cox and Gerald Cox, the latter a civilian employee of the United States Government on loan to the North Atlantic Treaty Organization ("NATO").

 In essence, plaintiffs contend that Miriam and Jerry are clearly identified as learning disabled youngsters and, as their father's dependents, are entitled to be educated appropriate to their unique needs as handicapped children. They assert that DoDDS is mandated to identify and assess their individual needs, devise an individualized education program tailored to each special situation and that, if DoDDS cannot provide the necessary services within its own resources, it must make, and fund, referrals to private schools/facilities at no cost to the children's parents. In short, it is plaintiffs' contention that they are entitled to a free individualized special education founded on these children's extraordinary situations. Plaintiffs accuse the DoD of abject failure in this regard, averring that anything short of the requested relief causes not only immediate, continuing, and irreparable deprivation, but an absolute elimination of their established constitutional protections and statutory rights.

 Specifically, plaintiffs ask that this Court order DoDDS to pay for residential special education for the Cox children at two United States private boarding schools (Landmark School in Massachusetts and Brandon Hall in Georgia) rather than educate them at SHAPE School, Brussels, Belgium in the special education program specifically designed and developed for each of the children.

 The defendants contend they are in compliance with the Education for All Handicapped Children Act, and that they stand ready to provide full education to these children now, pursuant to the assessment of their needs and within their system as presently constituted.

 Plaintiffs reflect Miriam's situation and needs as follows: for approximately ten years this child attended European DoDDS, first at the Boblingen School and then at the Brussels (Belgium) American School. In early 1978, pursuant to the expressed concern of her teacher, Miriam received educational and psychological testing which resulted in a diagnosis of a severe learning disability, reading at third grade level. Her parents placed her then, at their expense, in a summer assessment and remediation program at the Landmark School in Brides Crossing, Massachusetts. Although they requested defendants to place and fund Miriam's education in a private residential learning disabled school at Milfield, in the United Kingdom, where she was then enrolled, defendants rejected the request for funding on the bases that the child could receive appropriate instruction in DoDDS European schools and that residential special education for an eighth grade student was unwarranted. Miriam was thereupon removed from Milfield and returned to the Brussels American School for the 1978 school year throughout which time plaintiffs insistently urged defendants to provide appropriate learning disabilities education for their daughter. The Brussels American School did not have such a program.

 Plaintiffs contend that they accepted DoDDS's offer, in April 1979, to place Miriam at a residential school in Frankfurt, Germany but that DoDDS took no further action to effectuate the placement which accordingly failed. Subsequently, the parents cooperated with DoDDS' proposal that Miriam be placed in St. John's School, a private English-speaking school in Brussels, and plaintiffs, at their expense, acceded to St. John's request that Miriam first attend the summer 1979 session at Landmark School in the United States. In September 1979, plaintiffs were advised that the St. John's placement was disapproved, that Miriam must return to the Brussels American School, and that a tutor would there be provided for her needs. For approximately two months a tutor was provided, following which Miriam was suspended for one week, later to be reinstated. The plaintiffs contend that DoDDS did not perform an annual assessment of Miriam during these times, nor did it develop an individualized education program (IEP) for her, both mandates, they declare, under the Education for All Handicapped Children Act.

 Over the summer 1980, following yet another assessment and evaluation again at plaintiffs' expense, which confirmed that Miriam was severely learning disabled, plaintiffs again conferred with DoDDS officials to request a private residential learning disabilities placement for this child at Landmark. DoDDS refused to fund this placement, whereupon in August 1980, plaintiffs' and defendants' representatives met to develop Miriam's first IEP, this for the 1980-81 school year. The IEP recommended the child's placement at the Supreme Headquarters Allied Powers, Europe School ("SHAPE"). This plaintiff's parents contend that not only is this IEP wholly inadequate but that the proposed placement is similarly inappropriate because, they assert, the SHAPE School lacks the physical facilities, trained personnel, and resources to implement the IEP to provide the requisite special education and related services.

 Jerry Cox, the older and more significantly learning disabled of the two children, began school in the Boblingen American School (Germany) in 1969 but, although slow to learn, was not evaluated as handicapped until 1973 when he was diagnosed as having a "classical syndrome of dyslexia." He received speech therapy at Boblingen and, at his parents' expense, a learning disabilities teacher was hired to work with Jerry at Boblingen. In 1977, after the plaintiffs moved to Belgium, another evaluation, noting significant learning and behavorial problems, recommended Jerry be considered for placement at Landmark School in the United States. Plaintiffs enrolled Jerry at the Brussels American School; although it did not have a learning disabilities program, plaintiffs contend they were assured that such a specialist would be hired to work with their son. The adult plaintiffs allege that when Jerry was "systematically and consistently held up to the ridicule of other students" at the Brussels school, they enrolled and maintained Jerry in Landmark for both the 1977-78 and 1978-79 school years despite denials by DoDDS of their multiple requests for funding.

 Subsequently Jerry was evaluated at the Brandon Hall School in Dunwoody, Georgia and found to have "a specific learning disability compounded by an adolescent reaction." Attempts to have DoDDS funding for the Brandon Hall placement for the 1979-80 school year were unsuccessful and Jerry attended there at his parents' expense.

 It is the plaintiffs' contention that although required by law DoDDS never performed an annual evaluation of Jerry, developed an IEP for this child, nor supplied related special education services prior to the 1979-80 school year or even during that year.

 In August 1980, plaintiffs and representatives from DoDDS met to develop an IEP for Jerry for the 1980-81 school year. Plaintiffs strongly assert that the IEP developed is inappropriate to meet the educational needs of their son, and that the SHAPE School designated lacks the physical facilities, trained personnel, and resources requisite to implement the IEP.

 Plaintiffs declare that by DoDDS' alleged arbitrary, capricious, and unreasonable actions in its continuing refusal to fund special education placements in the continental United States, they have violated the handicapped children's constitutional guarantees of due process and the equal protection of a free, appropriate education. Within their complaint they also incorporate more specific charges of statutory violations. They charge, inter alia, that DoDDS has neglected and/or unilaterally nullified administrative procedures provided by the Education for All Handicapped Children Act of 1975, Pub.L. No. 94-142, 89 Stat. 773 (1975) ("the EHA"), and the Vocational Rehabilitation Act of 1973, 29 U.S.C. § 794 (1976), as amended by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978, Pub.L. No. 95-602, §§ 119, 122(d)(2), 92 Stat. 2983, 2987 (1978) ("the Vocational Act"). *fn2" The specific complaints include but are not limited to the alleged failure of the defendants to perform annual assessments of the minor plaintiffs, to provide adequate IEPs, and to produce a meaningful administrative remedy fortified by regulations. The DoDDS is also accused of abrogating the proscription of the Veterans' Administration against discrimination by an executive agency against handicapped persons. See 29 U.S.C. § 794 (Supp. II 1978).

 The defendants, recognizing the compassionate strength of plaintiffs' pleas, and all the while assuring the Court of their intention of reasonable accommodation and flexibility within the present framework, nonetheless maintain that despite the grave challenge in achieving full compliance with the EHA, as to the Cox children, they are in compliance with its requirement of providing an appropriate special education program. They point to the IEP designed for these children in August 1980, spanning a full two days' hearing with the defendants paying for the transportation and lodging expenses of plaintiffs' representatives whose input, although largely rejected, was nonetheless considered. The IEP that resulted from this lengthy hearing recommended that the children be placed in the special educational programs of the SHAPE School. A Dr. Jeannette E. Fleischner, defendants' expert, whose affidavit is attached to the defendants' opposition to plaintiffs' motion for preliminary injunction, participated in the conference and concluded after study of the case histories of the children and other discussions, despite her unfamiliarity with any of the schools operated by the Department of Defense Dependent Schools, that Miriam Cox should be judged in need of special education and related services, basing her eligibility on the presence of a specific learning disability. Miriam was ultimately found eligible for special education and related services. Further, as reflected in the final result of the conference, Dr. Fleischner judged Jerry Cox to be in need of special education and related services, based on the presence of a specific learning disability. The plan would place Jerry in a ...

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