The opinion of the court was delivered by: BARTELS
MEMORANDUM-DECISION and ORDER
This is a motion brought by order to show cause signed September 8, 1978, by third-party plaintiff, New York State Office of Mental Retardation and Developmental Disabilities Commissioner Coughlin, to join to this action third-party defendants, New York City Board of Education, Board of Education Chancellor Macchiarola, and Charles I. Shonhaut, Acting Executive Director of the Division of Special Education and Pupil Personnel Services of the Board, and for preliminary and permanent injunctive relief. Hearings were held on Monday and Tuesday, September 11 and 12, 1978, at which all the pertinent evidence was adduced, so that it is possible for the court to adjudicate the motion for permanent injunctive relief at this time without more.
The principal action of New York State Ass'n for Retarded Children, Inc. v. Carey Was brought under 42 U.S.C. § 1983 on behalf of a class of mentally retarded residents of Willowbrook Developmental Center (now Staten Island Developmental Center). The major points of contention were settled by a Consent Judgment, the thrust of which is to require the defendants to place the class members in the community in the least restrictive environment and arrange programs for them in the community so that they develop their potential and live as normal a life as possible.
In furtherance of this mandate, the defendants, under the primary supervision of Commissioner Coughlin, have placed a number of children in family homes and community residences and have arranged for them to attend special education programs in the public schools under the jurisdiction of the Board of Education.
Under circumstances which will appear below, the Board of Education identified fifty pupils in its Track IV (severely and profoundly mentally retarded) special education programs who happened to be carriers of hepatitis B. The Board of Education, on September 7, 1978, suddenly ordered these carriers to be excluded from the public schools, planning to arrange for their education in developmental center schools under the jurisdiction of the New York State Office of Mental Retardation and Developmental Disabilities. Forty-two of these carriers are members of the Willowbrook class. Commissioner Coughlin, who is obligated by the Consent Judgment to place and maintain these class members in the least restrictive environment possible, commenced this ancillary proceeding on behalf of these forty-two carriers in order to gain their readmission to the public schools.
Standing and Jurisdiction
As a result of concerns expressed by the Court with respect to its ancillary jurisdiction over the Commissioner's action against the Board of Education and with respect to the Commissioner's standing to assert the constitutional and statutory rights of the plaintiff class members, counsel for plaintiffs stated that not only do they fully support the action of the Commissioner, they also believe it appropriate for the Commissioner to take the lead in insuring that the rights of the mentally retarded under his jurisdiction are respected. To support their position, plaintiffs have filed a class action complaint on behalf of not only the forty-two class member carriers but also the additional few non-Willowbrook class member carriers who have also been excluded. By separate order, this class action has been certified and consolidated with the Commissioner's ancillary proceeding here. In view of the foregoing, we believe that any problems with respect to the standing of the Commissioner to enforce the rights of the class members here involved have been eliminated.
There is no dispute as to the subject-matter jurisdiction over the controversy. Paragraph 4 of the Willowbrook Consent Judgment states that:
This judgment and Appendix "A" hereto shall be applicable to and binding on the defendants and their successors, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of this judgment by personal service or otherwise.
Even if the New York City Board of Education is not bound by the Consent Judgment by virtue of this paragraph, the Court has ancillary jurisdiction to decide the instant controversy under otherwise applicable rules of substantive law. See N.Y.S.A.R.C., Inc. v. Carey, 438 F. Supp. 440 (E.D.N.Y.1977). In addition, the court has jurisdiction under 28 U.S.C. § 1343(3) and 20 U.S.C. § 1415(e) to adjudicate claims under the federal constitution, § 504 of the Rehabilitation Act of 1973, and the Education for All Handicapped Children Act of 1975. Pendent jurisdiction may appropriately be exercised over the state educational law claims.
At the hearings the Court heard the testimony of a number of medical doctors, experts in the provision of care to the mentally retarded, and experts in the education of the mentally retarded. By the end of the proceeding it was apparent that there is little dispute as to the underlying facts with respect to the communicability of hepatitis B among mentally retarded schoolchildren; the real differences are in how the risks of communication are to be balanced against the traumatic effect of sending children to school in developmental centers. We may thus set forth with a certain degree of confidence some background on the nature and epidemiology of hepatitis B.
Hepatitis B is a virus which may ultimately have a debilitating effect on the liver. When introduced into a susceptible person, the virus undergoes a long period of incubation, generally two to three months. The acute stage, which is a rather rare phenomenon, is sometimes accompanied by jaundice and inflammation of the liver and in some cases may be very serious and even lead to death. There is no known cure for hepatitis B, although optimism was expressed as to the development of an effective vaccine within the next four years. In other cases, however, particularly among children, the acute phase of hepatitis B may be very mild and be mistaken for a passing flu and fever.
Most of the concern expressed in court focussed not on the dangers attendant to the acute stage of the disease, but on the "carrier" stage. Evidently, after infection with hepatitis B, one of two things can happen. In one case, if the patient has built up enough antibody, the hepatitis B virus or "antigen" will be eliminated. The antibodies will remain, and the patient will be immune for an indefinite period of time. Immunity, therefore, implies past experience with the disease. In the other case, the patient does not create antibodies, or sufficient antibodies, to eliminate the hepatitis B antigen. Under these conditions, an equilibrium is reached where the patient appears clinically to be healthy, and yet, upon examination, will be found to have the antigen in his blood. Such persons are known as carriers. Thus, one carrier can transmit the hepatitis B antigen to another, who may also become a carrier, without either having passed through the acute stage of the illness. At Willowbrook, where almost all residents contracted the disease, approximately 30% Of the residents are now immune and approximately 60% Are carriers. There was some difference in emphasis among the different doctors who testified with respect to the seriousness of ...