children out of school in america - University of Tennessee Digital ...

existing state law is unclear and when there is a
construction of that law that will fully vindicate
plaintiffs' rights. Dismissal for mootness has been
rejected when full implementation of new laws has
been slow in coming or the law incomplete in rights
for all children. The following SPED decisions reject
dismissal or abstention.
Pennsylvania Association for Retarded Children
v. Pennsylvania, 343 F.Supp. 279 (E.D.Pa. 1972)
(Denial of abstention.)
LeBanks v. Spears, No. 71-2897 (E.D.La. April,
1973) (Motion to dismiss or abstain denied, February
12, 1973.)
Stewart v. Phillips, No. 70-119-F (D.Mass., filed
Sept. 14, 1970) (Clearinghouse No. 4130) (Motions
for summary judgment and to dismiss for
mootness denied, Jan. 13, 1973.)
Colorado Association for Retarded Children v.
Colorado, No. C-4620 (D.Colo., filed Dec. 22,
1972) (Motion to dismiss for mootness denied,
June 14, 1974, "The mere enactment of legislation
without actual implementation does not
render substantial legal questions moot.")
Panitch v. Wisconsin, No. 72-C-461 (E.D.Wis.,
filed Aug. 14, 1972) (Motion to dismiss denied,
Feb. 19, 1974.)
Maryland Association for Retarded Children v.
Maryland, No. 72-733-K (D.Md., filed July 19,
1972) (Motion to abstain denied as to federal due
process and statutory claims, Nov. 1, 1973.)
7. In several states suits have been filed seeking
full implementation of new or existing SPED laws.
State Decisions:
In re Reid, No. 8742 (N.Y. State Commr. of Ed.,
Nov. 26, 1973) (Clearinghouse No. 9376) (Discussed
above.)
Maryland Association for Retarded Children v.
Maryland, No. 77676 (Md. Cir. Ct., Baltimore
County, April 9, 1974) (Discussed above.)
Rainey v. Tennessee Department of Education,
No.. A-3100 (Tenn. Chancery Ct., Davidson
County, Dec. 10, 11)73) (Clearinghouse No.
11,585) (Presumptory writ of mandamus ordered
state to begin implementation steps required by
Tenn. Mandatory SPED Act of 1972. A consent
decree further requires new testing and evaluation
regulations that will not rely on lQ testing. Court
has retained jurisdiction.)
Pending State Cases:
Florida ex reI. Grace v. Dade County Board of
Public Instruction (Fla. Cir. Ct., Dade County,
filed Nov. 26,1973) (Clearinghouse No. 11,674)
and Florida ex rei. Stein v. Keller (Fla. Cir. Ct.,
Dade County, filed Nov. 26, 1973) (Clearinghouse
No. 11,675)
II. Adequacy of Special Programs
1. The right to education for children with special
needs means the right to an education appropriate
to those needs. Adequacy issues have been
raised on behalf of children completely excluded
from school as well as those misplaced in regular
classes or in "custodial special education programs."
Federal Decisions:
Mills v. Board of Education of District of Columbia,
348 F.Supp. 866 (D.D.C. 1972) (Adequate
public education suited to each exceptional child's
special needs or public payment of tuition for
appropriate private program required.)
State Decisions:
In re Reid, No. 8742 (N.Y. State Commr. of Ed.,
Nov. 26,1973) (Clearinghouse No. 9376) (Handicapped
children to be placed in appropriate public
school classes.)
Maryland Association for Retarded Children v.
Maryland, No. 77676 (Md. Cir. Ct., Baltimore
County, April 9, 1974) (Clearinghouse No.
12,451) (Local education authorities ordered to
determine ''That the educational program provided
for a child is in fact an educafional program
and that it is in fact an appropriate program for
that child.")
Kivell v. Nemoitin, No. 143913 (Conn. Super.
Ct., Fairfield County, July 18, 1972) (State obligated
to provide program appropriate to perceptually
handicapped child's needs. Mother
awarded costs for two years of private education
when locality failed to provide the program prescribed
on basis of educational evaluation and
ultimately mandated by state board of education.)
In re Leitner, No. 1403E (N.Y. Sup. Ct., App.
Div., Nov. 6, 1972) (Clearinghouse No. 9287);
In re Held, Nos. H-2-71 and H-I0-71 (N.Y.
Family Ct., Westchester County, Nov. 29, 1971)
(New York statutes give Family Court jurisdiction
over claims of inadequate educational programs.
In these two cases the state (or county) was ordered
to pay the costs of private special education
programs after parents showed the marked appropriateness
of the private program in contrast
to the inadequacy of existing public programs.
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