GOLDBERG, Circuit Judge:
Amber Tatro is a four-years-old child who suffers from myelomeningocele, a birth defect commonly known as spina bifida.
In 1979, Amber became eligible for participation in the early childhood development program provided by defendant Irving Independent School District ("the school district"). After a series of meetings with Amber's mother, the school district's Admission, Review and Dismissal Committee developed an Individualized Education Plan ("IEP") for Amber as required by the Education for All Handicapped Children Act of 1975 ("the EAHCA"), 20 U.S.C. § 1414(a)(5).
Following the fruitless pursuit of the state remedies required by the EAHCA,
I. The EAHCA
The Education for All Handicapped Children Act of 1975, 89 Stat. 773 (1975), was sparked by an "[i]ncreased awareness of the educational needs of handicapped children and landmark court decisions establishing
To ensure the provision of proper services, Congress mandated that recipients of federal funds must assure "all handicapped children the right to a free appropriate public education," 20 U.S.C.A. § 1412(1) (West 1978), which consists of special education and related services. See id. § 1401(18).
The district court held that CIC is not. It observed that there are only two categories of related services: (1) transportation required to assist a handicapped child to benefit from special education, and (2) developmental, corrective, and supportive services necessary to assist a handicapped to benefit from special education. It properly concluded that CIC is not transportation and that CIC is neither developmental nor corrective. The district court noted that "CIC is supportive of Amber's education in the sense that it is required at sufficiently frequent intervals that her education and CIC must proceed apace," and that "[o]ne can argue that read literally, every necessary life support system must be furnished." Nevertheless, the district court concluded that there was "no congressional intent to sweep broadly in its usage of the word `related.'" The court thus held that "to be related in the statutory sense the service requirement must arise from the effort to educate. There is a difference between maintenance of life systems and enhancing a handicapped person's ability to learn. The CIC is essential to Amber's life but once that life maintenance service is provided, it is unrelated to her learning skills."
The district court further observed that the regulations implementing the EAHCA
As the district court correctly observed, CIC falls within a literal interpretation of the statutory definition of related services. Quite simply put, without the provision of CIC, Amber cannot benefit from the special education to which she is entitled, for, without CIC, she cannot be present in the classroom at all. Thus, CIC is a supportive service required to assist Amber to benefit from her special education.
Nevertheless, the district court felt compelled to limit the literal words of 20 U.S.C. § 1401(17) because it perceived a need to circumscribe the scope of related services lest "every necessary life support system . . . be furnished." This perception, however, ignored the fact that the EAHCA contains its own limitations on the type of life support services that must be provided as related services. First, in order to be entitled to any related services at all, a child must be handicapped so as to require
Moreover, the district court's deviation from the literal words of the statute ignored a mandate contained in the EAHCA which is additional to the congressional requirement that states furnish each handicapped child a free appropriate public education consisting of special education and related services. The language of 20 U.S. C.A. § 1412(5) (West 1978) is quite unequivocal:
Construing the term "related services" to exclude services like CIC, necessary to keep a handicapped child in the classroom, would completely eviscerate this mandate. This we cannot do. In light of this categorical congressional judgment that handicapped children should be educated in the regular classrooms to the maximum extent appropriate, and given the existence of limitations in the statute which circumscribe the types of life support systems which must be
II. Section 504
The district court gave plaintiff's claim under section 504 of the Rehabilitation Act of 1973
In Camenisch v. University of Texas, 616 F.2d 127 (5th Cir. 1980), plaintiff, a deaf graduate student at the University of Texas, brought suit against the University because of its refusal to provide him with sign language interpreter services, an aid which he claimed was necessary for his participation in the University's programs. We affirmed the district court's grant of a preliminary injunction requiring the University to provide interpreter services. We held that the failure to provide interpreter services amounted to the exclusion of plaintiff from the University's programs and hence violated section 504. See id. at 133.
Analogously, Amber has been excluded from the school district's programs by the district's refusal to provide CIC. Without the provision of CIC to Amber, she will be unable to participate in the preschool programs of the school district. Such exclusion is expressly condemned by section 504.
Defendants contend that Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), dictates the contrary result. This assertion is incorrect. As we observed in Camenisch, supra, "the Supreme Court's decision in Southeastern Community College says only that Section 504 does not require a school to provide services to a handicapped individual for a program for which the individual's handicap precludes him from ever realizing the principal benefits of the training." Id. at 133. Thus, like Camenisch, this case is distinguishable from Southeastern Community College because, with the provision of CIC, Amber will be able to perform well in school and thus realize the principal benefits of the school district's program.
VACATED and REMANDED for proceedings not inconsistent with this opinion.
Obviously, the preferable course would have been for the district court to find facts so that its disposition of plaintiffs' motion would be more fully amenable to appellate review. Nevertheless, we are not powerless on this appeal. Since the district court's denial of plaintiffs' motion for a preliminary injunction rested on its legal interpretation of the Acts under consideration, we can review the district court's legal conclusion. Furthermore, in order to provide meaningful guidance to the district court for its consideration of plaintiffs' motion on remand, we shall assume that the facts, which we detail in this opinion and base on plaintiffs' proposal, are true. On remand, of course, the district court should make the appropriate findings. If the district court finds the facts to be different from those we state, it must then determine whether these factual deviations are material so as to alter the conclusion we reach.
Additionally, since the district court denied plaintiffs' motion on the ground that there was no likelihood of success on the merits, we shall discuss only that factor for a preliminary injunction. On remand, the district court should consider the other relevant criteria, to-wit, the irreparable harm to plaintiffs from failure to issue the injunction, the harm to the defendant from issuance of the injunction, and the public interest. See Canal Authority v. Callaway, 489 F.2d 567 (5th Cir. 1974). For its consideration of these factors, we direct the district court's particular attention to our recent decision in Camenisch v. University of Texas, 616 F.2d 127 (5th Cir. 1980).
An individualized education program is defined as
Id. § 1401(19).
Free appropriate public education is defined as
Id. § 1401(18).
Free appropriate public education thus includes special education and related services. The Act defines special education as "specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions." Id. § 1401(16). Related services are defined as follows:
Id. § 1401(17).
In addition, defendants raise multifarious arguments attacking the sufficiency of plaintiffs' complaint. These issues are not before us and should be handled on remand.
20 U.S.C.A. § 1401 (West 1978) (historical note).
In view of our holding that CIC is a related service, we need not address the issue whether 20 U.S.C.A. § 1414(a)(1)(C)(iv) (West 1978), by its use of the term "supplementary aids and services," contemplates the provision of services additional to "related services."
Second, Southeastern Community College possibly indicates that section 504 does not require the provision of services that would impose "undue financial and administrative burdens" upon the recipient. See Southeastern Community College, supra, 99 S.Ct. at 2370. Thus, for example, section 504 may not require the school district to provide a very expensive procedure like kidney dialysis to a child who needs such a service during the school day. However, CIC does not appear to approach an undue financial and administrative burden. It can be performed in five minutes by anyone who has received thirty minutes of training. This burden appears to be a far cry from being "undue." Of course, since we have no findings upon which to rely, see note 1 supra, we leave this determination to the district court.