identifying those children who need in excess of 180 days to reach the educators' goals would be to ignore this universally accepted principle. Rather, the decision is one that must be made on an individual basis, by those familiar with the child.
Dr. Piper, a distinguished expert in the field, testified that SPI children requiring in excess of two months to regain skills lost over the summer should be provided a program in excess of 180 days. For the SED children, Dr. Ruttenberg also tried to establish guidelines. We testified that children who have not "developed a stable relationship, who have not developed a real image of themselves, who have not developed impulse control" need a twelve month program. The Court does not doubt that many children who fall within these categories might need more than 180 days of education if they are to reach the self-sufficiency goals reasonably set by their educators. But having accepted that each SED or SPI child has different needs and must be treated individually, the Court can neither accept that all handicapped children who fall within the experts' categories need 180 days or only those that fall within these categories need more than 180 days.
Similarly, the type and length of the program in excess of 180 days requires individual consideration. For example, during the summer of 1978, Gary Armstrong received educational programming for five hours a day, three days of the week. As he did not regress, that would appear sufficient to meet the goal of maintaining control over him. But if his needs could no longer be met on this basis, an increase or change in programming would be required so his goals could be reached.
The ultimate factual finding that the Court makes is that defendants' 180 day rule precludes plaintiffs and those similarly situated from receiving an education that is likely to allow them to reach their reasonably set educational goals with respect to self-sufficiency, whether that be merely avoiding institutionalization or living in a community living arrangement and working in a sheltered workshop.
III. THE LAW AND ITS CONCLUSIONS
Plaintiffs claim that the 180 day rule imposed by defendants and applied to them and the class they represent violates their rights under the Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1401 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and the regulations promulgated under these statutes. In addition, they contend that defendants' policies and practices offend the Equal Protection and Due Process Clauses of the Fourteenth Amendment and state laws. The Court agrees with plaintiffs that defendants' have violated their rights and the rights of the class they represent under the Education for All Handicapped Children Act, and therefore, need not discuss or reach the questions raised under Section 504, the Constitution or state statutes.
A. Plaintiffs' Claims Under The Education for All Handicapped Children Act of 1975.
Before reaching the merits of plaintiffs' claim under the Education for All Handicapped Children Act of 1975, the question of whether plaintiffs sufficiently complied with the Act's procedural requirements must be addressed. Defendants contend that they have not and that the Court lacks jurisdiction under the Act.
The Court's jurisdiction over this claim allegedly is based on 20 U.S.C. § 1415(e)(4) which states that:
"The district courts of the United States shall have jurisdiction of actions brought under this subsection without regard to the amount in controversy."
The subsection provides that whenever a complaint has been received by a state or local educational agency or any intermediate educational unit receiving assistance under the Act from a parent or guardian "with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate education to such child," 20 U.S.C. § 1415(b)(1)(E), "the parents or guardian shall have an opportunity for an impartial due process hearing" conducted by the state or local educational agency or the intermediate educational unit, as determined by state law or the state educational agency. 20 U.S.C. § 1415(b)(2). If that hearing "is conducted by a local educational agency or an intermediate educational unit, any party aggrieved by the findings and decision rendered in such a hearing may appeal to the State educational agency which shall conduct an impartial review of such hearing." 20 U.S.C. § 1415(c). Any party wishing to challenge the findings and decision made at the first mentioned hearing who does not have a right to appeal that decision to the state educational agency and any person aggrieved by the findings and decision at the second mentioned hearing is given the right to bring a civil action with respect to the complaint, which action may be brought in any state court of competent jurisdiction or in a district court of the United States. 20 U.S.C. § 1415(e)(2).
By these provisions Congress has required that state procedures be exhausted before the jurisdiction of the courts is invoked under the statute. And in this case, with the exception of the Armstrongs
, none of the named plaintiffs nor the class members attempted to employ the state procedures to challenge defendants' policies. Of course, as the Court has already determined in its factual findings, any effort to do so would have been futile given defendants' instructions to its hearings examiners that they could not require an education in excess of 180 days to be provided. Plaintiffs argue that the futility of seeking relief from the state process excuses their failure to exhaust. In response, defendants contend that because the statute only provides for the court's jurisdiction to be established once the procedures have been followed, this Court has no power to expand its jurisdiction by recognizing an exception to the statutory requirements. This argument must be rejected.
Courts have generally recognized that failure to exhaust administrative remedies may be excused, allowing the individual recourse to the courts, when it is clear that pursual of the administrative remedies would be futile. McKart v. United States, 395 U.S. 185, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969); Porter County Chapter of the Izaak Walton League of America, Inc. v. Costle, 571 F.2d 359 (3d Cir. 1978) Cert. denied, 439 U.S. 834, 99 S. Ct. 115, 58 L. Ed. 2d 130 (1979); Howard S. v. Friendswood Independent School District, 454 F. Supp. 634 (S.D.Tex.1978); Fialkowski v. Shapp, 405 F. Supp. 946 (E.D.Pa.1975). But judicial precedent is not the Court's sole source of guidance on the issue of whether an exception to the requirements of the Education for All Handicapped Children Act can be recognized based on futility. Clear legislative instruction exists. In addressing the Senate during its debate on the Conference Report on the Education for All Handicapped Children Act, Senator Williams, author of the Senate bill and Chairperson of the Labor and Public Welfare Committee, explained:
"Mr. President, with regard to complaints, I want to underscore that exhaustion of the administrative procedures established under this part should not be required for any individual complaint filing a judicial action in cases where such exhaustion would be futile either as a legal or practical matter." 121 Cong.Rec. 37416 (1975).