The opinion of the court was delivered by: GREEN
MEMORANDUM OPINION AND ORDER
This action by a learning disabled child, Carlotta Davis, and her parents, William and Amy Davis, against the District of Columbia Board of Education, by agreement of all parties has been converted, in the interests of justice because of the exigency of time, to a final hearing on the merits. Plaintiffs allege that the defendants have failed to afford minor plaintiff a free and appropriate public education and that the defendants' restriction of the scope of a due process hearing to consideration of only defendants' proposed special education placement is contrary to law and the Constitution.
Carlotta Davis is a specifically learning disabled child in need of special education including occupational therapy and emotional counseling. For four years Carlotta attended the D.C. Society for Crippled Children where she received special education and related services addressed primarily to her sensory-integrative process and motor development. For the last three school years, Carlotta has attended Sidwell Friends School in Washington, D.C. For the first two years there, she was placed in a regular classroom without support services. During the past year, she was removed from the regular classroom for special tutoring in academic subjects with which she was having particular difficulties. Despite resource help in math, reading and perceptual training, Carlotta continued to fall behind the rest of the class and, according to her parents, became quite anxious about the widening gap. In an effort to deal with the ensuing emotional problems, her parents took Carlotta to a child psychiatrist in the spring of 1981. His advice was that they place Carlotta in a setting in which she could experience success and one in which her learning problems would be directly addressed.
Carlotta's parents, therefore, requested that Carlotta receive appropriate special education from the defendants, since both the Sidwell School staff and Mr. and Mrs. Davis felt that Sidwell was unable to address Carlotta's needs. On or before May 6, 1981, the required Form 205 was filed, describing Carlotta's general quality of work in class as "inability to do independent work; impulsivity and distractability." The reason for referral was stated as, "Parents are requesting special education because of learning problems and the need for occupational therapy." At no time did either the school staff or her parents believe that Carlotta had any physical problem. Carlotta's parents provided defendants with numerous psychological, neuropsychological, educational, occupational therapy and other evaluative reports concerning Carlotta's condition and needs at the time of the initial request for placement.
Carlotta's parents, on the unanimous advice of the experts that they consulted, concluded that the only appropriate program for their daughter was at the Christ Church Child Center, a private school for specifically learning disabled children in Montgomery County, Maryland. It had the expertise and experience necessary to accommodate specifically learning disabled children with neurological bases for their learning disability. Among other things, it provided the intensive occupational therapy integrated throughout the daily program that had been deemed critical to Carlotta's schooling.
Defendants, however, did not propose any placement for Carlotta, at Christ Church or elsewhere. On June 26, 1981, Carlotta's parents requested a due process hearing to contest defendants' lack of action in placing Carlotta and to address defendants' financial responsibility for her placement at Christ Church where she had been accepted. At the hearing, on July 7, 1981, the Hearing Officer found the defendants indeed to have failed to provide a placement for Carlotta within the required time limits and ordered them to complete their evaluation and propose a placement within twenty days. The Hearing Officer denied plaintiffs' request for a hearing on defendants' financial responsibility for the parent-selected private school. On July 9, 1981, an Individualized Education Program (IEP) conference was held which plaintiffs were unable to attend but to which they sent their counsel. On July 22, 1981, defendants proposed Sharpe Health School for Carlotta and classified her as a health impaired learning disabled child.
Defendants' placement proposal "came as a surprise" to Mr. and Mrs. Davis. They felt that Sharpe, a public facility for seriously physically handicapped, profoundly retarded or deaf-blind children, was extremely inappropriate for Carlotta, because they claim her to be an intellectually superior, learning disabled child who has no physical handicap that adversely affects her educational performance. In fact, her father in his affidavit described her physical ability as follows: "Carlotta can run, hop, climb stairs, roller skate, and is learning to ride a bike. She participates in games in the neighborhood and at school. She enjoys swimming. To the best of my recollection, the only physical activity that Carlotta either cannot do, or those that are extremely difficult for her, involve kicking a ball or skipping rope." He further stated that "throughout Carlotta's entire school life, virtually every professional that we have consulted has stressed the importance of her remaining in a physically normal setting with non-physically handicapped children. I would fear for her emotional stability if placed at Sharpe." Plaintiffs felt that the only reason defendants proposed Sharpe for Carlotta was the availability of occupational and physical therapy at that school. Those therapies are not available in other public school placements for learning disabled children.
A second due process hearing, this time to consider the appropriateness of the defendants' proposed placement for Carlotta, was postponed from July 31, 1981, to August 24, 1981. At that hearing, which was continued to August 31, 1981, plaintiffs attempted to bring before the Hearing Officer their claim of the inappropriateness of Sharpe and their request that Carlotta be placed at Christ Church. The parents were informed by the Hearing Officer that they could not address the issue of the suggested placement at Christ Church due to the limited nature of the hearing process. Plaintiffs were informed that the only relief that could be afforded at the hearing, should the proposal for placement at Sharpe be found to be inappropriate, would be to refer the matter back to the defendants again for further action. Plaintiffs left the hearing and brought the matter before this court to contest the Hearing Officer's narrow interpretation of the hearing procedure and to request placement of Carlotta at Christ Church Child Center.
Plaintiffs assert that the court has jurisdiction over all statutory and constitutional claims under Pub.L. 96-486 (Dec. 1, 1980), 28 U.S.C. § 1343 (Supp. III 1979), 29 U.S.C. § 794 (Supp. III 1979), 42 U.S.C. § 1983 (Supp. III 1979), 20 U.S.C. § 1415(e)(2) (1976), and the Fifth Amendment to the United States Constitution.
The plaintiffs' first claim is under the Education for All Handicapped Children Act of 1975 (EHA), 20 U.S.C. § 1401 et seq. (1976 and Supp. III 1979), and the regulations promulgated thereunder, 34 C.F.R. § 300.1 et seq.
, which insure a free and appropriate education to all handicapped students and establish extensive due process protections in order to guarantee equitable, expedient provisions of the mandated educational services. 20 U.S.C. § 1415. Plaintiffs assert that defendants have failed to propose an appropriate placement in direct violation of this Act and have refused to allow plaintiffs to propose their own special education placement even though the overwhelming weight of expert opinion indicates that the only appropriate program for Carlotta in the Washington, D.C. metropolitan area is the one suggested by her parents. Instead, the defendants have proposed placement in a program for seriously physically handicapped and profoundly retarded children, although Carlotta has no physical handicaps that adversely affect her educational performance and does not even require physical therapy.
Plaintiffs' second claim is under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Supp. III 1979) and the federal regulations promulgated thereunder, 34 C.F.R. § 104.1 et seq. (1980), which incorporate many of the same procedural and substantive rights as are found in the EHA. Plaintiffs contend that defendants' obligation to provide appropriate placement under this Act is inescapable. The regulations state:
A recipient that operates a public elementary or secondary education program shall provide a free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's handicap. 34 C.F.R. § 104.33(a) (1980).
The regulations further state:
A recipient may place a handicapped person in or refer such person to a program other than the one that it operates as its means of carrying out the requirements of this subpart. 34 C.F.R. § 104.33(b)(3) (1980).
Plaintiffs argue that defendants have violated their right to notice of proposed action and right to tuition for private schools, as delineated in "The Plan for the Education of Handicapped and Exceptional Children in the District of Columbia" (the "Plan"), approved on December 6, 1977, by Judge Joseph Waddy pursuant to his continuing jurisdiction in Mills v. Board of Education of District of ...