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NEW YORK STATE ASSN. FOR RETARDED CHILDREN

February 28, 1979

NEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN, INC., et al., and Patricia Parisi et al., Plaintiffs,
v.
Hugh L. CAREY, Individually and as Governor of the State of New York, et al., Defendants, United States of America, Amicus Curiae. Thomas A. COUGHLIN III, Individually, and as Commissioner of the Office of Mental Retardation and Developmental Disabilities, Third-Party Plaintiff, v. BOARD OF EDUCATION OF the CITY OF NEW YORK, Frank J. Macchiarola and Charles I. Schonhaut, Third-Party Defendants. Christine WEST, on behalf of her son Mark West, a minor, Individually and on behalf of all others similarly situated, Plaintiffs, v. BOARD OF EDUCATION OF the CITY OF NEW YORK, Frank J. Macchiarola, et al., Defendants



The opinion of the court was delivered by: BARTELS

This is a motion pursuant to Federal Rule of Civil Procedure 57 by the New York City Board of Education ("the Board"), third-party defendant in this consolidated action, for a declaratory judgment establishing the validity of its proposed plan for segregating within the public schools certain mentally retarded children who are epidemiologically classified as carriers of hepatitis B virus. *fn1" This application is a sequel to the Memorandum Decision and Order of this Court dated September 14, 1978, wherein this Court enjoined the Board, Chancellor of the Board, Frank J. Macchiarola, and Acting Executive Director of the Division of Special Education and Pupil Personnel Services, Charles I. Schonhaut, from totally excluding the carriers from the public school system on the basis of their hepatitis B status, and further ordered the readmission of the excluded children to the public schools "in accordance with the procedures utilized for the general student population." New York State Association for Retarded Children, Inc. v. Carey, et al., 466 F. Supp. 479 (E.D.N.Y.1978).

In response to the Court's decision and under circumstances which will appear more fully below, the Board thereafter convened a task force for the purpose of formulating a plan for the education of the retarded carrier children within the public schools but in classes and activities separate from all non-carrier retarded children. A proposed plan was finalized by the Board in mid-October 1978, at which time it was presented to all other parties to this action for review. Upon their rejection of the proposal in early November and prior to its implementation in the schools, the Board initiated the instant application for a ruling that the plan is in accord with the 1975 Willowbrook Consent Judgment entered into by the parties to the principal action, New York State Association for Retarded Children, Inc. v. Carey, et al., 393 F. Supp. 715 (E.D.N.Y.1975), and with all applicable laws, rules, and regulations. This motion is opposed by plaintiffs and other interested parties, including defendant and third-party plaintiff, New York State Office of Mental Retardation and Developmental Disabilities ("O.M.R.D.D.") Commissioner, Thomas A. Coughlin III, and the United States Department of Justice, as Amicus curiae, on the ground that the Board's proposal is violative of various provisions of the Consent Judgment, § 504 of the Rehabilitation Act of 1973, as amended by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, 29 U.S.C. § 794, the Education of the Handicapped Act, as amended by the Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1401 Et seq., the New York State Education Law, §§ 4401 Et seq., and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. *fn2" Hearings were held on November 9, 14, 20, and 28, 1978, at which time all the pertinent evidence was adduced. Having considered this evidence and the briefs submitted by the parties, the Court has reached the following opinion, which contains its findings of fact and conclusions of law.

Jurisdiction

 The jurisdiction of this Court over the Board's application is not seriously contested. In addition to its authority to oversee implementation of the above-mentioned Consent Judgment, See New York State Association for Retarded Children, Inc. v. Carey, 438 F. Supp. 440, 446 (E.D.N.Y.1977); New York State Association for Retarded Children, Inc. v. Carey, 466 F. Supp. at 482, this Court has jurisdiction under 28 U.S.C. § 1343(3) and 20 U.S.C. § 1415(e) to adjudicate claims under the Constitution and applicable provisions of federal law, and pendent jurisdiction may appropriately be exercised over the State educational law claims. Id. Plaintiffs initially questioned the existence of a case and controversy under Article III of the Constitution, which contention they subsequently withdrew. We believe that the Board's application for a declaratory judgment is a highly appropriate and commendable means to resolve the presently existing dispute between the parties, which, if not resolved prior to implementation of the proposed plan, could result in substantial administrative expense and, more important, irreparable disruption of the educational programs of the retarded children affected. The Declaratory Judgment Act was devised by Congress for precisely this type of situation. See 28 U.S.C. § 2201; Federal Rule of Civil Procedure 57; Broadview Chemical Corp. v. Loctite Corp., 417 F.2d 998, 1001 (2d Cir. 1969), Cert. denied, 397 U.S. 1064, 90 S. Ct. 1502, 25 L. Ed. 2d 686 (1970).

 We find also that, contrary to suggestion by the Board, all parties necessary to the adjudication of this action have been joined. Federal Rule of Civil Procedure 19(a); Welsch v. Likins, 550 F.2d 1122, 1130-31 (8th Cir. 1977); Liquifin Aktiengesellschaft v. Brennan, 383 F. Supp. 978, 983-84 (S.D.N.Y.1974). Although as will become evident the Board relied heavily upon recommendations of the New York City Department of Health in devising the proposal in question, it is the validity of the Board's own action, not that of the Health Department, which must be adjudicated, and we reject the suggestion by the Board that the Department is an indispensable party. Even assuming that the Board could demonstrate that joinder of the Department of Health would be helpful in resolving the dispute, we fail to see how presentation of the Board's case would have been materially improved in view of the apparent willingness of Health Department personnel to testify and of their actual testimony on the Board's behalf not only at the hearings in November, but also at those in September. Any interest of the Department of Health was adequately represented by the Board.

 I. FACTS

 Background

 The underlying civil rights action was instituted in 1972 under 42 U.S.C. § 1983 on behalf of a class of mentally retarded residents of Willowbrook Developmental Center (now Staten Island Developmental Center), alleging severely overcrowded and unsanitary conditions at the Center, significant shortages of sufficiently trained staff, and inadequate or non-existent medical and educational programs necessary to foster the habilitation and educational development of Willowbrook residents. *fn3" The major points of contention were settled in April 1975 by the Willowbrook Consent Judgment, which has since been modified by order of the Court on March 10, 1977 and September 15, 1978. The essence of the Consent Judgment is its mandate that defendants provide Willowbrook residents with the "least restrictive and most normal living conditions possible . . .," Consent Judgment, § A(1), and that defendants "ready each resident . . . for life in the community at large . . ." Id., § V(9). To these ends, defendants are required to "develop a full program of normalization and community placement with a full complement of community services . . .," Id., which services shall include "a full and suitable educational program" in the New York City schools where such placement is appropriate to a particular individual's educational needs. Id., §§ F(1), (10); V(13).

 Under the supervision of Commissioner Coughlin, defendants have placed approximately 1,000 Willowbrook residents in family homes and community residences since May 1976. For many of those individuals between ages five and twenty-one, arrangements have been made to attend special education programs in the public schools under the jurisdiction of the Board. Though these programs are of various types, several should be noted briefly: first, Trainable Mentally Retarded ("T.M.R.") classes for moderately retarded children who can profit from training in social and occupational skills; second, Track IV classes for lower functioning T.M.R. children who require training in the most basic skills, such as eating, dressing, and toiletting; third, Adult Skills Training Centers ("A.S.T.C.") for T.M.R. students between the ages of 15 to 21 years who can benefit from additional training in skills necessary to live effectively in the community, such as home living and environment skills, food preparation, and light industrial workshop skills; and fourth, Occupational Training Centers ("O.T.C.") for students between the ages of 16 and 21 years who have the capacity to travel independently and to benefit from a job oriented instructional program of which work experiences and eventual job placement in competitive industry are integral parts. Programs housed in the O.T.C. may provide departmentalized instruction whereby the students move from class to class during the day to receive specialized instruction or participate in various shop classes. In addition to these programs, some of the children who have multiple handicaps for example, mental retardation and blindness or deafness are assigned to special schools in which they receive more sophisticated services suitable to their additional needs. Placement in these programs and promotion or transfer from one to another are generally determined by consideration of a combination of factors, including a child's age, the existence of a higher placement opportunity, and, most important, the child's individual development in relation to his or her educational needs and skills as set forth in the applicable individualized educational program ("I.E.P."). *fn4" Any decision to transfer a handicapped child is subject to review by a Committee on the Handicapped ("C.O.H.") prior to implementation of the transfer where such review is requested by parents of the affected child. *fn5"

 Defendants' efforts to integrate former Willowbrook residents into the public school system as mandated by the Consent Judgment were dangerously imperiled when in early September 1978, on the eve of commencement of the Fall semester, the Board summarily excluded from their public school special education classes approximately 50 mentally retarded children of whom 42 are members of the Willowbrook class based upon identification of the children as carriers of hepatitis B. The procedural safeguard of pre-transfer C.O.H. review was suspended, and no arrangements were made for continuing the education of the excluded children elsewhere, though the Board's apparent intention was that further education could be provided indefinitely by returning the children to developmental centers under the jurisdiction of the O.M.R.D.D. On September 8, 1978, Commissioner Coughlin in furtherance of his obligations to the Willowbrook class under the Consent Judgment moved by order to show cause to enjoin the Board's action. After two days of hearings, this Court granted an injunction and held the total exclusion to be violative not only of the Consent Judgment, but also § 504 of the Rehabilitation Act of 1973, Supra, the Education of the Handicapped Act, Supra, the New York State Education Law, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. In so doing, we stated:

 
For years the needs of these hepatitis B carrier children were satisfied without objection in special education classes. The needs are the same, but the children are now excluded for reasons which the hearing has shown to be unjustified and which are in direct opposition to the children's needs. The Board's overreaction to the hepatitis B problem is not countenanced by the law . . .
 
(W)e find that upon taking simple prophylactic and classroom management measures which it is in the Board of Education's power to take, there is no substantial risk of communication of hepatitis B from carrier pupils in the . . . special education programs that justifies their discriminatory exclusion from the benefits of a public school education, particularly in view of the unavoidable and irreparable harm such exclusion would work on the students involved.

 New York State Association for Retarded Children, Inc. v. Carey, et al., 466 F. Supp. at 486. Our decision at that time was limited solely to an adjudication of the issues presented by the facts then before the Court e.g., the Board's total exclusion of retarded carrier children and we explicitly declined to consider the relative merits of less restrictive procedures which might have been adopted by the Board. Id., at 484.

 The Board's Proposed Plan

 Following issuance of the injunction by the Court and under pressure from parents of non-carrier children and fear of adverse publicity, the Board formed a task force composed of representatives from the Board, the Willowbrook Review Panel, the New York City Department of Health, and plaintiffs to devise and implement a plan consistent with Health Department guidelines recommending segregation within the public schools of hepatitis B carriers from non-carriers. *fn6" When after several meetings it became apparent that members of the task force could not agree on the necessity for separation of the carrier children, the Board of Education formulated on its own a plan designed to best meet the needs of all children consistent with the Department of Health recommendation of segregation, and it is this proposal which is now before the Court. According to Dr. Schonhaut, the plan is predicated on four essentials: (1) mandatory separation of carriers from non-carriers; (2) individualized consideration of each child's present educational placement and the proposed placement to assure the greatest possible degree of environmental similarity; (3) maximum reduction of movement so that a child will be placed at a new location only where relocation is unavoidable; and (4) maintenance of presently existing class sizes where possible.

 Specifically, the Board proposes that 48 mentally retarded children thus far identified as hepatitis B carriers be reassigned to nine newly created special education classes, composed solely of mentally retarded hepatitis B carriers, in specified schools, one in each of the five boroughs. The plan provides for an individual evaluation of the personal and educational needs of each affected child to assure an appropriate educational setting, *fn7" and each child's parent or surrogate parent will be given an opportunity to have his or her child's placement reviewed by the appropriate C.O.H. prior to implementation of the reassignment. In some cases, the transfer will occur as part of a child's normal promotional sequence, although such promotion may have to be effected sooner and to a different class than would otherwise have been the case absent identification of the child involved as a hepatitis B carrier. Qualified teachers will be recruited, additional paraprofessional staff will be assigned to assist in the newly formed classes, and all mandated services which each child is currently receiving will be provided. Though class size will not initially reach the levels presently existing in the classes to which the children are now assigned, the Board contends that any detriment resulting from such a change will be offset by the higher staff-student ratio which the proposed plan would provide. *fn8" The Board asserts further that 60 to 90 additional retarded carrier children are expected to enter the public school system in the near future, and it is anticipated that this influx will result in increasing class size and greater flexibility in placement. Provision is made in exceptional circumstances for placing carriers in classes with non-carriers, but the extent to which that exception will be utilized is not apparent. According to Dr. Schonhaut, the plan provides an appropriate educational opportunity for the carrier children consistent with the Department of Health's recommendation and the overriding obligation and purpose of the Board to protect the health and welfare of all retarded children, regardless of hepatitis B status, within the public school system.

 Adverse Effects of the Plan

 Other aspects of the reassignment plan suggest, however, that despite the Board's best efforts to assure an appropriate educational environment for the 48 carrier children, their interests will not be adequately protected. Briefly summarized, we find that some of the unavoidable consequences of the Board's proposal are the following:

 (1) All of the children will be assigned to classes different from those they are now attending, and over half the children will be transferred to entirely different schools, resulting in disruption of each child's educational program and a disorientation the effect of which is likely to be far more serious than would be experienced by non-handicapped children.

 (2) Class sizes will be reduced from a present range of six to eighteen students per class to a range of three to eight students per class, imposing a limitation on the opportunities which these children would otherwise have for peer interaction and exposure to children of non-institutionalized backgrounds and non-handicapped children. Such contact, as part of the education of handicapped children, is viewed increasingly as an essential precondition to realization of a child's capacity for emotional and social growth. *fn9"

 (3) In order to obtain the minimum number of students necessary to form a new class, the plan requires the grouping or "cohorting" of students having differing developmental levels who would otherwise be placed in programs more closely tailored to their individual needs as prescribed in the applicable I.E.P. The Board's own witnesses admitted dissatisfaction with the unavoidable compromises which the proposed plan would require. Mr. Murray Beer, Program Coordinator of the Adult Skills Training Center and a participant in formulation of the proposed plan, stated in a letter to Acting Director of the Bureau for Children with Retarded Mental Development that:

 
We are not happy with the way we had to compromise and cross-categorize students but all attempts to keep to age and handicap resulted in exorbitant number of classes, staff and sites. We, therefore, made the decision to establish classes of combined handicaps but separated according to ages.

 Dr. Schonhaut testified at the hearing on November 14, 1978:

 
I think that some of the children would not have been moved if we had not followed the recommendation (of the Department of Health) . . . and we certainly would not have separated the children. In some cases they are in groupings of fewer children than they would have been before. And in those cases we would not have done it if it wasn't (sic). Separation is the recommendation we are following, and that separation resulted in certain changes which we would not have made if ...

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