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DOE v. BELLEVILLE PUBLIC SCH. DIST. NO. 118

November 6, 1987

JOHNNY DOE, A MINOR, BY HIS MOTHER AND NEXT FRIEND, MS. JANE DOE, PLAINTIFF,
v.
BELLEVILLE PUBLIC SCHOOL DISTRICT NO. 118 AND THE BOARD OF EDUCATION OF BELLEVILLE PUBLIC SCHOOL DISTRICT NO. 118, DEFENDANTS.



The opinion of the court was delivered by: Foreman, Chief Judge:

MEMORANDUM AND ORDER

This matter is before the Court on defendants' Motion to Dismiss (Document No. 4a). The basis for the motion is that the plaintiff has failed to exhaust his administrative remedies as required by The Education for All Handicapped Children Act (EAHCA), 20 U.S.C. § 1415(e)(2). See also Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984); Timms v. Metro. Sch. Dist. of Wabash County, Ind., 722 F.2d 1310 (7th Cir. 1983).

BACKGROUND

Plaintiff Johnny Doe is a six-year-old male child who was diagnosed as having Hemophilia B as an infant. Subsequent to that diagnosis, made in August of 1986, he was diagnosed as having Acquired Immune Deficiency Syndrome (AIDS). During the 1986-87 school year, Johnny attended kindergarten at a public school in Harmony School District No. 175. Sometime before the end of that school year, Johnny and his mother moved to a new school district where, by virtue of the timing of the move, he was required to enroll in the first grade in Belleville District No. 118.

School officials were notified that Johnny was a hemophiliac and that he had been diagnosed as having AIDS. Subsequent to that notification it appears the Board of Education decided that it needed to formulate a "policy" to serve as their basis in placing him. The final version of this policy, titled "Policy Regarding Children With Chronic Communicable Diseases," was adopted by the Board on July 21, 1987. Following the guidelines set forth in the policy, the Board appointed an interdisciplinary Placement Evaluation Committee which supplied a factual analysis of plaintiff's case to the Board for its use in determining appropriate placement for him. On August 25, 1987, the Board met in executive session with plaintiff's mother and her attorney and thereafter unanimously decided to exclude Johnny from the normal classroom and, instead, to provide him with a tutor in his home. It is this exclusion that plaintiff alleges gives rise to his claim of discrimination in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.

DISCUSSION

The defendants urge this Court that it lacks subject matter jurisdiction over the case by virtue of plaintiff's alleged failure to exhaust his state law administrative remedies as required by 20 U.S.C. § 1415(e)(2) and the law of this Circuit. See Timms, supra, 722 F.2d 1310. The plaintiff, on the other hand, contends that he is not "handicapped," as that term is statutorily defined in EAHCA, and thus is not afforded a remedy by that Act. Consequently, plaintiff argues that he is not required to exhaust his administrative remedies because his claim does not arise under EAHCA, but rather under the Rehabilitation Act. Exhaustion of remedies is not required under the Rehabilitation Act. Timms, supra, at 1318, n. 5.

Because defendants' argument relies on the applicability of EAHCA to the plaintiff, the Court must determine if plaintiff's diagnosis of AIDS brings him within the statutory definition of a handicapped individual and is, therefore, subject to the exhaustion requirement.*fn1 EAHCA defines "handicapped children" as children who are:

  mentally retarded, hard of hearing, deaf, speech
  or language impaired, visually handicapped,
  seriously emotionally disturbed, orthopedically
  impaired, or other health impaired children, or
  children with specific learning disabilities, who
  by reason thereof require special education and
  related services.

20 U.S.C. § 1401(a)(1). [Emphasis added.]

In this case the parties agree that the only category into which Johnny fits is that of "other health impaired children." That phrase is defined as children who have:

  [l]imited strength, vitality or alertness due to
  chronic or acute health problems such as a heart
  condition, tuberculosis, rheumatic fever,
  nephritis, asthma, sickle-cell anemia,
  hemophilia, epilepsy, lead poisoning, leukemia, or
  diabetes, which adversely affects a child's
  educational performance.

34 C.F.R. § 300.5(b)(7). [Emphasis added.]

In applying these definitions to the plaintiff, the Court concludes that three tests must be met before the provisions of EAHCA can be made to apply in this case: 1) there must be limited strength, vitality, or alertness due to chronic or acute health problems, 2) which adversely affects a child's educational performance, and 3) which requires special education and related services. Here, the record reveals virtually no evidence that plaintiff suffers from limited strength, vitality, or alertness.*fn2 Furthermore, given such evidence as is in the ...


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