B. M. ex rel. Burger v. State

MR. JUSTICE SHEA delivered the opinion of the Court. B. M., a minor, through her foster mother, appeals from summary judgment entered in Valley County District Court. The child’s claim for damages arises from her placement in a special education program when she was six years old. The child’s complaint alleged that the State was negligent in placing her in such a program and that the alleged misplacement violated her constitutional rights of due process and equal protection. After extensive discovery, all parties — 60 — moved, for summary judgment. On November 18, 1980, the District Court granted summary judgment for all respondents “the State,” ruling that they were immune from liability for claims arising from the states’ “discretionary acts.” The trial court also ruled that the State owes no legal duty of care to students negligently placed in special education programs. The trial court also held that such misplacement does not violate the constitutional rights of the student to due process and equal protection of the law. The child’s foster mother contends here that the trial court erred in ruling that the State was immune from negligence actions arising from the administration of special education programs in public schools. She further argues that the trial court erred in holding that the State owes no legal duty of care toward students who are negligently misplaced in special education programs. We reverse the trial court and hold that the State is not protected by immunity and that the State has a duty to use due care in placing students in special education programs. The question of whether the State breached that duty of care and whether the breach was the cause of any injury raise material questions of fact for which a trial is necessary. We further hold, however, that the trial court properly dismissed the claims that the child’s due process and equal protection rights were violated. No facts were alleged sufficient to allege a constitutional violation. The child was born in 1967 and at nine months of age was placed in the foster home of Fred and Leona Burger. While in kindergarten in Nashua, Montana, she displayed learning difficulties, apparently the result of a speech problem. In January 1973, upon the recommendation of Superintendent of Schools Sam Gramlich, and with the consent of her foster father, the child was tested by psychologist William Jones of the Eastern Montana Regional Mental Health Center. As a result of this testing, Jones recommended that the child either repeat her year in kindergarten or receive spe — 61 — cial educational help. The school officials decided that state funds would be sought for a special education program for first graders, including the child. An application and plan were submitted to the office of the Superintendent of Public Instruction outlining the needs of the children for special help. On the application, the child was classified as “educable mentally retarded (EMR).” To be eligible under State policy for EMR status, absent sufficient written justification, a student must have an individual learning aptitude score of 50 to 75. (Special Education Handbook; Program Procedures and Guidelines for Children and Youth With Learning Handicaps, § III, B, February 1973 (Handbook).) The child’s overall IQ was determined to be 76. The state superintendent approved the application and the program was started in September 1973. The program intended for this “primary educable class” was a “team-teaching situation.” The four children in the program were to attend the regular first grade classroom, but their special education teacher was also to give them the special help and support needed “without segregating and labeling them.” Of the four children in this program, only the child involved here was not mentally retarded. The program involved two teachers. The regular first grade teacher and a special education teacher would both work with the students classified as EMR. This work would take place in the same classroom as the other students. But after five weeks, the child and the other three EMR students in the special program were found to be easily distracted and were moved to the “resource room” for their morning classes. This constituted approximately 40 percent of their daily classroom time, the rest of the day being spent as before. While in the resource room, the newly hired teacher taught the children with the same materials, but at a slower pace. The foster parents were not told of this change in the program. The foster mother learned that the child was in the segre — 62 — gated classroom only after the child had been attending classes there for nine weeks. The foster mother immediately removed the child from the program and the school officials then abruptly terminated the program. It was during this nine week period that the foster mother claims she witnessed a dramatic worsening in the child’s behavior. For example, the child refused to dress herself and refused to eat properly. The foster mother then filed suit as a result of this alleged misplacement of the child in the segregated classroom for the mentally retarded. SOVEREIGN IMMUNITY The trial court held that State’s acts were not subject to judicial review because they were discretionary. The Montana Constitution (Art. II, §18), abolishes sovereign immunity except in situations where the legislature, by a two-thirds vote, enacts contrary legislation. Section 2-9-102, MCA, enacted to give meaning to this constitutional provision, provides: “Every governmental entity is subject to liability for its torts and those of its employees acting within the scope of their employment or duties whether arising out of a governmental or proprietory function except as specifically provided by the legislature. . .” The legislature has not enacted legislation to limit the liability of the school boards in the administration of special education programs. It is, furthermore, our duty to strictly construe any attempted governmental immunity — that is, every act expanding statutory immunity, must be clearly expressed. See Orser v. State (1978), 178 Mont. 126, 582 P.2d 1227; Noll v. City of Bozeman (1975), 166 Mont. 504, 534 P.2d 880. Despite these clear constitutional and statutory provisions, and the failure of the legislature to enact laws expanding immunity to the situation involved here, the State argues that public policy prohibits a holding that the State can be held liable for negligent administration of a special — 63 — education program. Not only do we not see any public policy requirements in support of such an argument, in the absence of a clear statutory declaration granting immunity, it is our duty to permit rather than to deny an action for negligence. DUTY OF CARE We have no difficulty in finding a duty of care owed to special education students. The general tenor of education for all citizens in Montana is stated in Art. X, §1, 1972 Mont. Const.: “It is the goal of the people to establish a system of education which will develop the full educational potential of each person. Equality of educational opportunity is guaranteed to each person of the state.” To implement this policy, section 20-5-102, MCA, makes attendance at State approved schools mandatory. Other statutes specifically govern the administration of special education programs. For example, section 20-7-402, MCA, provides that school districts “shall comply” with policies recommended by the State Superintendent of Public Instruction in administering special education programs. The Superintendent’s office, under this statutory mandate has published a “Special Education Handbook” which outlines for individual school districts, the procedures and guidelines to be followed in administering special education programs. In addition, section 20-7-401, MCA, sets up a special class of students for which special education programs are provided. The child clearly falls within this class. The complaint here is that the school district failed to follow the statutory and regulatory policies governing the placement of students in the special education program. The school authorities owed the child a duty of reasonable care in testing her and placing her in an appropriate special education program. Whether that duty was breached here, and assuming a breach, whether the child — 64 — was injured by the breach of duty, are questions not before this Court. Nor were those issues placed before the trial court in the motion for summary judgment. We therefore reverse the trial court’s order and remand for further proceedings. CONSTITUTIONAL CLAIMS Without specifying how the child’s due process rights were violated a right guaranteed by statute (section 20-7-402(l)(b), MCA), and more explicitly set forth in the Special Education Handbook, the complaint alleges a constitutional denial of due process. But the complaint alleges no constitutional claim which goes beyond the protection provided by the statute and the regulations. It was proper, therefore, for the trial court, to dismiss the due process claim based on a violation of the United States and Montana Constitutions. The equal protection claim is also without merit. The sole basis for the equal protection violation is that William Jones, in evaluating the child’s needs, considered the child’s ethnic background (Indian) in relation to the child’s learning difficulty. Jones stated that children who live in non-English speaking homes may suffer what is known as bilingual language interference which is caused by the child’s exposure to an English-speaking environment. Jones also considered several other possible causes of the child’s learning problems. This cannot be classified as invidious racial classification; nor can it be said that Jones had the purpose to discriminate on the basis of the child’s race. A psychological evaluation which considers the cultural factor cannot be avoided if it is to have any validity. The evaluation cannot take place in a vacuum. The equal protection claim, therefore, raises no material question of fact, and the trial court’s dismissal was proper.The order of the District Court is reversed in part, affirmed in part, and we remand for further proceedings. — 65 — MR. JUSTICES DALY and MORRISON concur.