Tatro v. Texas

703 F.2d 823, 10 Educ. L. Rep. 73
CourtCourt of Appeals for the Fifth Circuit
DecidedApril 25, 1983
DocketNo. 81-1454
StatusPublished
Cited by25 cases

This text of 703 F.2d 823 (Tatro v. Texas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tatro v. Texas, 703 F.2d 823, 10 Educ. L. Rep. 73 (5th Cir. 1983).

Opinion

GEE, Circuit Judge:

This is Amber Tatro’s second appearance before this court. The facts and procedural history of her case are reported in detail in our prior opinion, 625 F.2d 557 (1980) (Tatro I), and in those of the district court. 516 F.Supp. 968 (1981); 481 F.Supp. 1224 (1979). To aid the reader, we will briefly summarize them here. Amber is a seven year old girl afflicted with myelomeningocele, a birth defect commonly known as spina bifida. As a result of this handicap, she suffers from speech and orthopedic impediments and a neurogenic bladder. Because this last condition prevents voluntary emptying of the bladder, Amber must be catheterized several times daily to prevent injury to her health. The method chosen by Amber’s doctors, the most widely accepted procedure, is Clean Intermittent Catheterization (“CIC”).

In early 1979, when Amber was three and one-half years old, her mother asked the Irving Independent School District (“school district”) to provide special education for Amber. The school district agreed, and in a series of meetings with the Tatros, developed an Individual Education Program (“IEP”) for Amber as required by the Education of All Handicapped Children Act (“EAHCA”), 20 U.S.C. §§ 1401(19), 1414(a)(5) (1976). The IEP provided for Amber’s placement in the school district’s Early Childhood Development (“ECD”) classes and for the provision of various other services to Amber, including physical and occupational therapy. The IEP did not provide for CIC and the school district maintained that it had no legal obligation to administer it.

Amber’s parents next pursued an administrative appeal from the school district’s decision not to provide CIC. See 20 U.S.C. § 1415 (1976) (setting out procedures). Pursuant to 20 U.S.C. § 1415(b)(2), an impartial hearing officer conducted a hearing and determined that the EAHCA required the school district to provide CIC. The Texas Commissioner of Education adopted the hearing officer’s decision. Amber T., bnf Mary T. v. Irving Independent School District, TEA Docket No. 115-SE-579 (August 6, 1979). The Texas State Board of Education (“State Board”) reversed the decisions of the Commissioner and hearing officer and reinstated the school board’s decision not to .provide CIC. After thus exhausting state remedies as required by the EAHCA, the Tatros brought the present action in federal district court pursuant to 20 U.S.C. § 1415(e)(2) (1976), naming the school board, the State Board, and others as defendants.1

The Tatros contended that the school district violated the EAHCA by failing to provide Amber with a “free appropriate public education,” id. § 1412(1), which is defined in part as “special education and related services.” Id. § 1401(18). Specifically, they argued that CIC is a “related service” the state must provide to fulfill its duty to Amber under the EAHCA. The Tatros also argued that the school district’s refusal to provide CIC violated section 504 of the Rehabilitation Act of 1973 which prohibits discrimination against the handicapped in federally funded programs. 29 U.S.C. § 794 (Supp. V 1981).

[826]*826The district court denied the Tatros’ motion for a preliminary injunction to require the school board to provide CIC. 481 F.Supp. at 1229. That court concluded that CIC is not a “related service” within the meaning of the EAHCA because the need for it does not arise from the effort to educate. Id. at 1227. The district court further concluded that section 504’s prohibition of discrimination does not impose a duty upon the school board to take affirmative action such as the provision of CIC. Id. at 1228-29.

The Tatros appealed from the district court’s order, and based upon facts that were assumed for purposes of the appeal, this court reversed. Tatro I, 625 F.2d at 558 n. 1, 562. This court held that CIC falls within the literal terms of the statutory definition of “related services,” which includes “supportive services ... as may be required to assist a handicapped child to benefit from special education.” Id. at 564 (citing 20 U.S.C. § 1401(17) (1976)). Because, under the assumed facts, Amber would be unable to attend ECD classes without provision of CIC during the school day, this court concluded that CIC was essential if she was to benefit from special education, and that CIC was therefore a “related service” in her case. The district court had thought it necessary to limit the statutory language to services arising from the effort to educate in the absence of any evidence of Congressional intent to require provision of life support services through an education statute. 481 F.Supp. at 1227. This court concluded that the district court’s limiting construction of the EAH-CA’s literal language was erroneous because the EAHCA contained its own limitations on the types of life support services falling within the ambit of “related services.” 625 F.2d at 562. This court further held that the school district’s refusal to provide CIC violated section 504.

I The EAHCA Claim

Were we writing on a clean slate, we would share the district court’s reluctance to read a statute designed to aid education to require provision of medical necessities of life which are required by a child whether or not she participates in the state’s educational program. Nevertheless, Tatro I is the authoritative interpretation of the EAHCA in this circuit, and under “law of the case” principles, must be followed by us in this subsequent appeal “unless (1) the evidence on a subsequent trial was substantially different, (2) controlling authority has since made a contrary decision of the law applicable to such issues, or (3) the decision was clearly erroneous and would work a manifest injustice.” White v. Murtha, 377 F.2d 428, 432 (5th Cir.1967) (footnote omitted; enumeration added); see Goodpasture, Inc. v. M/V Pollux, 688 F.2d 1003, 1005-06 (5th Cir.1982); United States v. McClain, 593 F.2d 658, 664 (5th Cir.), cert. denied 444 U.S. 918, 100 S.Ct. 234, 62 L.Ed.2d 173 (1979). None of these considerations justifies departure from Tatro I by this panel.

Although we perhaps would have taken a different view of the EAHCA upon de novo consideration, we cannot say that the well-documented Tatro I decision was not also a principled interpretation of that undeniably delphic statute. It is not clearly erroneous and certainly does not work manifest injustice. Further, neither the parties’ briefs nor our own research has revealed any supervening authority.2 Thus, the only remaining issue under the EAHCA in this case is whether the evidence adduced on remand from Tatro I

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Bluebook (online)
703 F.2d 823, 10 Educ. L. Rep. 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tatro-v-texas-ca5-1983.