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Suit Challenges Appropriateness of Separate School for Retarded

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The United States Court of Appeals for the Sixth Circuit is considering a case that, lawyers say, could further define the respective authority of parents, school districts, and federal courts in deciding the proper educational placement of handicapped students.

The case, Roncker v. Walter, involves a nine-year-old mentally retarded child, Neill Roncker, whose parents believe he should continue to be educated in a special-education classroom in a regular elementary school.

Although his contact with nonhandicapped children is limited to lunch periods and recess, Neill's parents maintain that he benefits from the exposure.

Officials of the Cincinnati school district, on the other hand, hold that Neill, who has an I.Q. of about 30, should attend a separate, county-operated facility for severely retarded children. The district also contends that educational experts, not federal courts, should decide the placement of individual children.

The major issue, according to Barry Co-hen, the lawyer for the Ronckers, is "the right of handicapped children to go to school with nonhandicapped children unless there is a demonstrable educational reason to separate them."

Patricia Morrison, the lawyer representing the Cincinnati school board, countered, "It gets down to a very fundamental constitutional question about the division of powers. Can a legislature properly give to a court the authority to make a discretionary decision like that? We maintain it should be an executive function.

"What the Sixth Circuit is interested in is the whole issue of discretion and whether a court should be the one making the decision as to what is appropriate or whether it should defer to professionals in school districts," she continued. "It's a very basic legal question in administering the Education for All Handicapped Children Act [P.L. 94-142]."

Placement Process

The dispute began three years ago, when Neill, who had attended a private preschool, was ready to enter 1st grade. His parents, Robert and Mary Ann Roncker, asked Cincinnati school officials to evaluate him following procedures set out in P.L. 94-142.

The placement committee determined that he should be placed in the separate facility, which is operated by a Hamilton County social-service agency but provides instruction. The county facility hires its own teachers and is not formally connected to the school system, but the district pays tuition for children who are educated there, according to Ms. Morrison. She added that officials at the county facility agreed with the school district's assessment of Neill, who does not have serious behavioral problems but "needs a lot of supervision."

Neill's parents immediately challenged the placement through administrative channels. Although the federal law says that children should remain in their "current" placement pending resolution of such a challenge, it makes no specific provision for students enrolling for the first time.

Parents seldom challenge the recommendations made by placement committees, Ms. Morrison said, but when they do, "it's quite an emotional issue."

The school district compromised with the Ronckers, Ms. Morrison said, and agreed to enroll Neill in special classes at a regular elementary school until the dispute could be resolved. "We said, 'We disagree, but we will put him in this other place, which we don't believe is right because we can't put him in a regular class and you won't agree to put him where he belongs,"' she recounted. "It's a tough situation for a school district to be in."

Because of the impasse, the Ronckers sued state and local education officials, charging violations of P.L. 94-142's requirements that children be placed in appropriate programs in the least restrictive environment. Last year, U.S. District Judge Carl Rubin ruled in favor of the school district and withdrew his earlier certification of the suit as a class action on behalf of all Ohio children in separate schools for the mentally retarded.

Little Academic Progress

Judge Rubin considered evidence that Neill has made little academic progress in the past 18 months at Pleasant Ridge Elementary School, Ms. Morrison said. Mr. Cohen, however, said that the boy's mother reports that "he's doing pretty well."

Judge Rubin erred, Mr. Cohen contends, in finding that Cincinnati school authorities did not abuse their professional discretion in deciding to place Neill in the separate school. Furthermore, the lawyer said, the judge should have made a separate finding on the appropriateness of the boy's placement. "He simply deferred to the school system," Mr. Cohen said.

The quality of the county-operated facilities is not in question, Mr. Cohen said; the issue is segregation of handicapped children, whether the separate school is operated by the school district or some other agency.

"Our feeling is that the statute places a pretty heavy burden on anyone who seeks to isolate a handicapped child," Mr. Cohen said. There are about 10,000 retarded children in separate county-operated schools in Ohio, he estimated. "To my mind," he added, "the vast majority of them should be in regular schools. I frankly don't know of very much you can do educationally in a building that doesn't have nonhandicapped children in it that you couldn't do in a building that does have nonhandicapped children in it."

'Appropriate Education'

Mr. Cohen cited an Arkansas case, Springdale School District v. Grace, in which the trial judge and the United States Court of Appeals for the Eighth Circuit "indicated that if an appropriate education could be provided in a public school, the student had to be placed there even if a better education was provided at a separate facility."

Ms. Morrison said she doubted that the Sixth Circuit would issue a ruling in the Roncker case until the Supreme Court has decided Rowley v. Board of Education of Hendrick Hudson School District, the first case to reach the High Court on what constitutes an "appropriate" education for handicapped students. The Justices heard oral arguments in the Rowley case in March; some legal observers believe a decision is imminent.

Both Ms. Morrison and Mr. Cohen said that the Roncker case is likely to end up before the Supreme Court.

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