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KERKAM v. DISTRICT OF COLUMBIA BD. OF EDUC.

September 30, 1987

Alexander Kerkam, et al., Plaintiffs
v.
District Of Columbia Board Of Education, et al., Defendants



The opinion of the court was delivered by: PENN

 JOHN GARRETT PENN, United States District Judge

 The plaintiffs filed this action pursuant to the Education for All Handicapped Children Act (EHA), as amended, 20 U.S.C. § 1400 et seq., 29 U.S.C. § 794, 42 U.S.C. § 1983, the Fifth Amendment to the Constitution of the United States, and the decision in Mills v. District of Columbia Board of Education, 348 F. Supp. 866 (D.D.C. 1972). The case came before the Court on defendants' motion to dismiss or in the alternative, for summary judgment. Plaintiffs did not oppose so much of the motion as sought to dismiss all claims other than those made pursuant to the EHA; thereafter all claims, other than those arising under the EHA were dismissed. In addition, the Court concludes that the District of Columbia Board of Education is not a suable entity and must therefore be dismissed as a party. See Tschanneral v. District of Columbia Board of Education, 594 F. Supp. 407 (D.D.C. 1984).

 The case came before the Court for a nonjury trial. This memorandum constitutes the Court's findings of facts and conclusions of law pursuant to Fed. R. Civ. P. 52.

 I

 The Court makes the following findings of fact:

 1. Alexander Kerkam was born on April 18, 1968, and is severely retarded.

 2. The Kerkam family lived in Fairfax County, Virginia, from 1976 to 1984.

 3. The Kerkam family moved to the District of Columbia in January 1984.

 4. From 1976 to 1984, Alexander received a special education at the Fairfax Public School system.

 5. The parents became dissatisfied with the special education program in Fairfax, Virginia.

 6. The parents requested and received a due process hearing in Fairfax on or about January 8, 1981.

 7. The state reviewing officer found the Fairfax placement appropriate. The state reviewing officer was upheld on appeal.

 8. The plaintiffs at that time did not want a residential placement for Alexander. Indeed, they made every effort to place Alexander in a special education program where he could attend school during the day and reside at home with his parents.

 9. Shortly after the hearings in Virginia, the parents placed Alexander in the Keystone City Residence (Keystone), a group home in Pennsylvania, and the Willow Street Day School (Willow Street), for ...


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