W. TIMOTHY v. ROCHESTER N.H. SCHOOL DISTRICT
United States District Court, 1988. 1987-EI8 EHLR DEC. 559:480 (D.N.H.) [Editors'Note: This case was subsequently overturned on appeal to the First Circuit.] MARTIN F. LOUGHLIN, District Judge This is a civil rights action commenced pursuant to 42 U.S.C. Sec. 1983. The plaintiff alleges a violation of his rights, guaranteed by the Education for All Handicapped Children Act (EAHCA) * * *; the Rehabilitation Act * * *; N.H. R.S.A. 186-C; and the equal protection and due process clauses of the United States and New Hampshire Constitutions. Pending before the court is the defendant, Rochester School District's Motion for Judgment on the Pleadings or in the alternative, Summary Judgment. The plaintiff has objected to the defendant's motion by way of cross motion for summary judgment. Before addressing the pending motions, the court will attempt to retrace the turbulent and arduous history, of this action. I. Background Timothy was born on December 8, 1975 at Frisbie Memorial Hospital in Rochester, New Hampshire, two months premature. His mother, Cindy, was fifteen years old at the time. He weighed four pounds at birth. Shortly after birth, he was transferred to Mary Hitchcock Hospital in Hanover, New Hampshire, for respiratory difficulties. While at Mary Hitchcock, he suffered intracranial bleeding, hydrocephalus (fluid on the brain), and seizures. He was discharged from Mary Hitchcock after three months, during which time a ventriculoperitoneal shunt was installed to drain excess cranial fluid. By this time, he was diagnosed as suffering from severe developmental retardation, with suspected hearing and vision deficits. Tim's physical and apparent mental development was dishearteningly slow. He attended the Rochester Child Development Center during the 1979-80 school year, receiving occupational and physical therapy. On February 19,1980 the school district's pupil evaluation team attempted to determine whether Tim qualified as educationally handicapped under EAHCA. In arriving at a determination, the evaluation team apparently reviewed the plethora of medical evaluations and documented history of Tim. The team also considered the report and observations of therapists as well as instructors. On March 7,1980 the Rochester School District Placement Committee determined that Tim did not qualify for District sponsored education under EAHCA or R. S. A. 186-C, due to Tim's inability to benefit from special education. Soon after this determination, Tim began receiving care from the New Hampshire Department of Health and Welfare pursuant to the Social Security Disabled Children's Program. Tim's involvement in this program resulted in the development of an Individualized Service Plan (ISP) which included medical care, physical therapy, tactile stimulation, feeding therapy, and respite care.
In June of 1983, the defendant's evaluation team reassessed Tim's situation concerning qualification for special education pursuant to EAHCA. The evaluation team failed to reach a decision on this issue, and deferred determination pending the acquisition of additional evaluations by neurologists. The School District allegedly sought permission of Tim's mother, in order to perform the neurological evaluation. On November 19,1984, Tim, by and through his mother and next friend, filed this action seeking injunctive relief and damages. The relief sought included a temporary restraining order by the court requiring the defendant to place Tim in a special education program at full cost to the defendant; such special education to include an Individualized Education Plan (IEP). On January 3,1985, subsequent to an evidentiary hearing, the court denied the plaintiffs request for injunctive relief. On January 8,1985 the court held the remaining claims concerning alleged violation of EAHCA in abeyance pending exhaustion of administrative procedures. * * * In clarifying that ruling the court remanded the case to the New Hampshire Department of Education for an administrative hearing on the issue of whether Tim qualified for special education under EAHCA. After examining the materials submitted by the parties, the Hearings Officer ruled that Tim qualified for special education under the apposite special education laws. The Hearings Officer held that the special education laws entitle all handicapped children, regardless of the severity of the handicap, to special education. The officer further ruled that inquiry as to whether a child might benefit from special education is no longer relevant. The defendant * * * appealed the decision of the Hearings Officer to this court by way of a counterclaim filed November 12,1987. The defendant asserts that the legal conclusion arrived at by the administrative officer was clearly erroneous and that since this legal conclusion precluded any factual determinations concerning the plaintiff, the issue is appropriate for summary disposition. This appeal presents several issues for the court's consideration. The court must initially determine the correctness of the Administrative Officer's decision concerning the eligibility for special education of all handicapped children, regardless of the ability of a child to benefit from the education. Specifically, the court must decide whether the rights and opportunities propounded by EAHCA * * * provide special education services for all handicapped children, notwithstanding the inability of a child to benefit from the education. Should the court conclude that the EAHCA does not require special education for those handicapped children unable to benefit from the education, the court must examine N.H. R.S.A. 186-C, the state statute implementing the provisions of EAHCA. In examining the statute, the court must determine whether it broadens the application of EAHCA in that it affords special education services to all New Hampshire handicapped children regardless of the severity of the handicap. If the court rules in the negative as to the foregoing issues, the remaining issue concerns the plaintiffs classification as educationally handicapped under EAHCA and/or R.S.A. 186-C. II. Analysis A. Education of the Handicapped Act (EHA) In passing Education of the Handicapped legislation, Congress defined specific goals.
It is the purpose of this Act to assure that all handicapped children have available to them, within the time periods specified in section 612(2)(B) [20 U.S.C.S. See. 1412(2)(B)] a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, to assure that the right 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. *** The Act was intended to "promote" the education of handicapped children who would otherwise be glossed over in the scheme of public education, as a result of their inability to attend "regular classroom" instruction due to the nature of the handicap. * * * A federal grant program was established which required that participating states develop policies for the implementation of special education programs commensurate with the Act. * * * In establishing eligibility requirements, Congress went so far as to provide special education for all handicapped children. (C) all children residing in the State who are handicapped, regardless of the severity of their handicap, and who are in need of special education and related services are identified, located, and evaluated, and that a practical method is developed and implemented to determine which children are not currently receiving needed special education and related services; *** New Hampshire is one of many states participating in this federal grant program and has implemented an education policy which conforms to the requirements of the Act. * * * Despite the language of EAHCA, the defendants contend that Congress' intent in passing the Act was to provide special education for those handicapped children who could benefit from such education. The defendants claim it was not the intent of Congress to provide special education to those children who cannot benefit from that education. The parties cite a wide variety of authorities in support of their respective positions. These authorities range from Supreme Court rulings to decisions of administrative officers, to law review articles. There appears to be a split of opinion as to whether EAHCA was intended to mandate that special education be provided to handicapped children regardless of whether or not a child could benefit from the education. For the following reasons, this court concludes that no such mandate was intended by the Act and that an initial determination as to the ability of a handicapped child to benefit from education is requisite. It is certainly true that the Act provides special public education to all handicapped children, regardless of the severity of the handicap. * * * Does this mean that if a child suffers from a handicap of such severity that the child is incapable of cognitive learning, that child is to be the subject of attempted education? This court will not support such a proposition.
Both parties allude to Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176 (1982). Rowley is a case in which the court addressed the issue of what was intended as a "free appropriate education" under the terms of EAHCA. * * * It has been so extensively cited by parties the in this action that its interpretation seems as important as does that of the statute itself. In reviewing the impetus behind the EAHCA legislation, Rowley recognized two Federal District Court decisions as significant. * * * The cases were Pennsylvania Assn. for Retarded Children v. Commonwealth, 334 F. Supp. 1257 (E.D.Pa. 1971) (PARC) and Mills v. Board of Ed. of District of Columbia, 348 F. Supp. 866 (D.D.C. 1972) (Mills). Both cases involved a denial by state school systems of public educational opportunities for handicapped children. * * * In both instances the court required that the state give handicapped children "access to an adequate, publicly supported education." * * * In analyzing these cases, the court acknowledged the attention which these decisions received in the legislative reports. The fact that both PARC and Mills are discussed at length in the Legislative Reports suggests that the principles which they established are the principles which, to a significant extent, guided the drafters of the Act. Indeed, immediately after discussing these cases the Senate Report describes the 1974 statute as having "incorporated the major principles of the right to education cases." * * * Those principles in turn became the basis of the Act, which itself was designed to effectuate the purposes of the 1974 statute. * * * *** The Rowley court analyzed the PARC and Mills cases in order to identify what was meant by an "appropriate public education." In considering the PARC case the court recognized PARC as holding that school systems are to "provide access to a free public program of education and training appropriate to the student's learning capacities." * * * In deciding the issue of "free appropriate public education" under the Act, the Court held that this phrase requires "educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to 'benefit' from the instruction." * * * It logically follows that a handicapped child who cannot "benefit" from special education, or who does not have learning capacity (Mills * * *) was not intended to receive special education under the EAHCA. Surely, Congress would not legislate futility! As previously mentioned, this interpretation of EAHCA is not unique, since there exists a number of contrasting decisions concerning the necessity of a potential benefit to exist as a precondition to a child's entitlement to special education under the Act. The case of Parks v. Pavkovic, 753 F.2d 1397 (7th Cir. 1985) is germane to this action in two respects. The case describes a series of hypothetical situations involving the EAHCA, and it also provides an interpretation of Rowley, concerning the very issue confronting his court. * * * In analyzing the special education requirements of EAHCA in light of the potential types of handicaps with which a school district may be faced, the court identified three hypothetical situations, representing the minimum, the maximum, and the mean handicapped child situation which could confront a school district. * * * The entire analysis is noteworthy, however, it is the hypothetical addressing of the maximum handicap which is of import to this action.
In our second hypothetical case, the child is in a coma, and is institutionalized because he cannot be cared for at home. We understand the plaintiffs to be conceding (and the Supreme Court's opinion in Rowley implies * * * that since the child would be completely uneducable in his condition-since he could not benefit from special education no matter how expensive-his living expenses in the institution would not be chargeable to the state under the Act. They would not be expenses of or related to education, made pursuant to the "individualized education program" that the law requires the state to create for each handicapped child. *** It is clear that implicit in Park's interpretation of Rowley is the necessity of a child to possess an ability to benefit or be capable of benefiting from special education, prior to qualifying for such education under EAHCA. This same approach was used years earlier by the Federal District Court for the Eastern Division of Virginia. Mathews v. Campbell * * * (E.D.Va. 1979). In addressing the issue of special education and its supposed requisite beneficial effect, the Mathews court reviewed the legislative history of EAHCA. At least one commentator has observed that the "Act contains no exclusions for exceptionally severe handicaps." * * * The Court, however, may be faced with considering if there are any reasonable exceptions from this absolute position. A reading of the legislative history suggests that Congress was primarily concerned with handicapped children who, despite their limitations, are capable in some ways of learning and even of being creative and productive. The instant plaintiff, regrettably, almost certainly does not fall in this category. Although other authority exists for concluding that a handicapped child must necessarily be capable of benefiting from education in order to qualify for special education under EAHCA, these cases merely serve to reiterate the same theme. The court is not aware of those decisions which interpret EAHCA literally, requiring states participating in the EAHCA grant to provide special education to handicapped students regardless of their capacity to benefit from the education. * * * However, most of these cases predate Rowley with the exception of Abrahamson. * * * The interesting aspect of the Abrahamson case is that it recognizes Rowley as placing a "beneficial" limitation on specia...