TIMOTHY W. v. ROCHESTER, N.H., SCHOOL DIST.

No. 88-1847.

875 F.2d 954 (1989)

TIMOTHY W., etc., Plaintiff, Appellant, v. ROCHESTER, NEW HAMPSHIRE, SCHOOL DISTRICT, Defendant, Appellee.

United States Court of Appeals, First Circuit.

Decided May 24, 1989.

As Amended May 31, 1989.


Attorney(s) appearing for the Case

Ronald K. Lospennato, Disabilities Rights Center, Inc., Concord, N.H., for plaintiff, appellant.

William R. Yeomans, Dept. of Justice, with whom Wm. Bradford Reynolds, Asst. Atty. Gen., Roger Clegg, Deputy Asst. Atty. Gen., and Jessica Dunsay Silver, Dept. of Justice, Washington, D.C., were on brief, for the U.S., amicus curiae.

John D. MacIntosh and Epstein, Burke, MacIntosh & Devito, P.A., Concord, N.H., on brief, for The Ass'n for Retarded Citizens of the U.S. and The Ass'n for Retarded Citizens of New Hampshire, amici curiae.

Frank J. Laski and Judith A. Gran, Philadelphia, Pa., Public Interest Law Center of Philadelphia, on brief, for TASH: The Ass'n for Persons with Severe Handicaps, TASH: New England, and The Nat. Ass'n of Protection and Advocacy Systems, amici curiae.

Kathleen B. Boundy, Center for Law and Educ., Inc., Cambridge, Mass., on brief for Senators Harkin, Weicker, Simon, and Stafford, amici curiae.

Gerald M. Zelin with whom Soule, Leslie, Zelin, Sayward & Loughman, Salem, N.H., was on brief, for defendant, appellee.

Gwendolyn H. Gregory, Deputy Gen. Counsel, Alexandria, Va., August W. Steinhilber, Gen. Counsel, Fairfax, Va., and Thomas A. Shannon, Executive Director, Alexandria, Va., on brief for the Nat. School Boards Ass'n, amicus curiae.

Bradley F. Kidder, Edward E. Lawson and Bradley F. Kidder Law Firm, Laconia, N.H., on brief, for the New Hampshire School Boards Ass'n, amicus curiae.

Before BOWNES, ALDRICH, and BREYER, Circuit Judges.


BOWNES, Circuit Judge.

Plaintiff-appellant Timothy W. appeals an order of the district court which held that under the Education for All Handicapped Children Act, a handicapped child is not eligible for special education if he cannot benefit from that education, and that Timothy W., a severely retarded and multiply handicapped child was not eligible under that standard. We reverse.

I. BACKGROUND

Timothy W. was born two months prematurely on December...

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