Full opinion text
OPINION AND ORDER ELMO B. HUNTER, Senior District Judge. This case, tried to the Court without a jury, presents a challenge to a portion of Missouri’s system of providing special education to the handicapped. At issue are the special schools and facilities in Missouri that serve the more profoundly and severely handicapped children of the State. These special schools are attended only by handicapped children. The plaintiffs posit that the separate nature of the schools prevents the handicapped children who attend them from progressing as they would if they attended a typical, local public school. The defendants, on the other hand, view the special schools as a necessary component of a special education system because not all handicapped children can benefit educationally from attending a regular, neighborhood school. The plaintiffs have advanced six statutory or constitutional bases for challenging the special schools and facilities. They maintain that placing handicapped children in schools attended only by handicapped children violates the Education of All Handicapped Children Act, 20 U.S.C. § 1401 et seq; Section 504 of the Rehabilitation Act of 1973; the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution; 42 U.S.C. § 1983; and Missouri statutory law. The plaintiffs seek declaratory and injunctive relief. Specifically, they urge the Court to set out a time table for the closing of all special schools and the “integration” of the handicapped children served in them into local schools. As the plaintiffs view the change, no more than three classes of profoundly handicapped children would be placed in any one regular school. The classes and the schools would be age matched so that elementary aged, profoundly handicapped children would attend a special education class in an elementary school and so on. The plaintiffs, however, do make a few exceptions. One, the plaintiffs do not actually urge that all handicapped children be allowed to attend regular schools. They except the medically fragile, and the physically abusive. The medically fragile are children for whom attending a regular school would pose a potentially life threatening danger. These are children who can not be moved safely. The physically abusive are children who due to their aggressive behavior pose a physical threat to themselves or others. Two, the plaintiffs do not seek the closing of all special schools that serve only the handicapped. They do not challenge the State School for the Blind nor the State School for the Deaf. The plaintiffs’ efforts are directed at the State Schools for the Severely Handicapped, the State Schools and Hospitals administered by the Department of Mental Health, and the separate schools maintained by the two special school districts, Again, the Court emphasizes that the issue presented is not whether any of the individual plaintiffs have been mistakenly placed in a special school, but whether the defendants’ special education system which utilizes separate schools violates any of the statutory or constitutional provisions alleged. Before turning to the specific challenges, the Court begins with an overview of the special education system in Missouri. SPECIAL EDUCATION IN MISSOURI I. Department of Elementary and Secondary Education The public school system of Missouri offers a free education to any child, handicapped or nonhandicapped, who lives in the State and is between the ages of six and twenty. Mo.Rev.Stat. §§ 160.051, 162.670. At the beginning of the 1982-83 school year over 805,000 youngsters, including approximately 116,000 handicapped children were enrolled in Missouri’s public schools. SD Exh. 16; Stip. 1.12. The State Board of Education is charged with carrying out the educational policies of the State and with overseeing the public school system. Mo.Rev.Stat. § 161.092. The responsibility for the actual daily administration of the system falls to the Missouri Department of Elementary and Secondary Education (DESE). The DESE administers a system composed of 547 local school districts, two special school districts, and the special schools for handicapped children. Stip. 1.1. The special schools include the fifty-two State Schools for the Severely Handicapped (State Schools) attended by 2,450 profoundly handicapped youngsters, the State School for the Blind and the State School for the Deaf which together served slightly more than 400 children in 1982-83. Id. at I. 14. The special schools all fall within the auspices of the Division of Special Education of the DESE. The Division of Special Education is responsible for the education of all of Missouri’s school-age handicapped population, including those children served by local school districts. Also, within the auspices of the Division are 291 children served by private agencies under contract with the State Schools. Id. at 1.14. Finally, although not in a public school, 216 additional youngsters are educated at public expense by the Department of Mental Health. In Missouri, the vast majority of the handicapped school-age population attend regular schools and are the educational responsibility of the local school districts. Missouri, by law, favors placing handicapped children in regular schools. Mo. Rev.Stat. § 162.680(2). Of the 116,000 handicapped children in the State, approximately 111,000 attend their regular, neighborhood school. SD Exh. 16; Stips. 1.14 and 3.5. The remaining children attend separate schools or facilities. The DESE has established a continuum of alternative placements for handicapped children which include a regular classroom in a regular school, a regular classroom with an educational resource teacher, a regular classroom with an itinerant teacher, a regular classroom with a resource classroom available, a self-contained classroom in a regular school, a split time arrangement between a regular and special school, a special school, a public institution or hospital, a private agency, or homebound instruction. Missouri State Plan FY 84-86 at A30-A33; R. Werner at Vol. 13. The focus in this case is on the separate schools, public institutions, and the private agencies that serve only the handicapped. The schools being challenged are the State Schools for the Severely Handicapped, the DMH State Schools and Hospitals, and the separate schools of the special school districts. In 1958 Missouri created a system of special schools to educate its handicapped youth. These separate schools at that time served the moderately handicapped. In the early 1970’s before the passage of the Education for All Handicapped Children Act, the state made an effort to locate all of the school-age handicapped population and place them in a state funded school or institution to receive educational services. Hall at Vol. 17. The State Schools have evolved to where today their mission is solely to serve the “severely handicapped.” By statute, Missouri has defined the “severely handicapped” as children who due to their handicapping condition are “unable to benefit from or meaningfully participate in programs in the public schools for handicapped children.” Mo.Rev.Stat. § 162.-675(3). The state school system is administered by the Division of Special Education of the DESE. Dr. Leonard W. Hall is the Assistant Commissioner in charge of the division. Directly underneath him is Dr. John B. Heskett, the Superintendent of the State Schools for the Severely Handicapped. Dr. Heskett and an assistant superintendent oversee twelve supervisors. Seven have responsibility for particular aspects of the system statewide and five are charged with the direct administration and supervision of the State Schools within a particular geographic region of the State. The DESE budgeted $880,000 for the 1982-83 school year to cover the salaries of the administration and their support staff. Heskett at Vol. 6 and 9. The State Schools had a budget of approximately $14.9 million for the 1982-83 school year. SD Exh. 13. Most of the money, $13.2 million, came from the general revenues of the state. Supp.Stip. 3(a). The remainder comes primarily from Chapter One of the Education Consolidation and Improvement Act of 1981, P.L. 97-35, 20 U.S.C. § 3801 et seq. (Chap. One). The State Schools received an additional $1.2 million in Chapter One funds, and carried over a little less than $600,000 in Chapter One money from the previous year. Heskett at Vol. 9; Hall at Vol. 17. Another source of federal funds is the Education of All Handicapped Children Act. P.L. 94-142, 20 U.S.C. § 1401 (Education Act). The bulk of these funds, however, are passed on to the local and special school districts that serve handicapped children. In 1982-83, Missouri received $2 million under the Education Act, and the DESE passed between 88% and 89% directly to the local and special districts that serve handicapped children. Supp.Stip. 1(c); John at Vol. 12. The other twelve percent is treated as a discretionary fund which is allocated by the DESE upon application from the individual school districts. In 1982-83, Missouri used its Chapter One funds to pay the salaries of the teacher aides employed in the State Schools. The State Schools also received approximately $30,000 in discretionary funds under the Education Act for in-service training, and another $443,000 for a summer school program. Heskett at Vol. 9. The State Schools used to also use surplus Chapter One funds for occupational and physical therapy services, but in 1983-84, the Legislature had to provide the money because neither discretionary nor Chapter One funds were available. Hall at Vol. 17. The Division of Special Education operates 52 State Schools for the severely handicapped. The system peaked in 1974 with 68 state schools. The state owns 27 of the buildings which house State Schools and rent the other 25 buildings. The value of the 27 buildings is estimated at $28 million. The 27 buildings, all built by the State especially for the education of the more profoundly handicapped serve 85% of the children that attend State Schools. Each classroom contains a lavatory and a wash area. It was felt this would aid the education program. Clean-ups would be quicker and the teacher would remain in closer proximity to the class. The schools also afford the students more space. The classrooms were designed to provide forty square feet per student, which is fifteen more feet per student than in the typical public school classroom. The schools also contain a prevocational training area and a home-living instructional area. Most importantly, the schools were built with the students safety in mind. Each classroom has an outside exit, an audio and visual alarm system, and antipanic doors. Some schools are located on the campuses of local public schools; others are not, depending on the availability of land. The DESE always attempts to place the State School on the campus of a local school. Heskett at Vol. 6 and 8. The State Schools budgeted about $850-900,000 in new money for maintenance and repair of the buildings, $500,000 for utilities, and $270,000 for rent and custodial work. Id. at Vol. 9. The Division of Special Education employs 325 classroom teachers and 129 classroom aides in its State Schools. The teachers must be certified, or at least temporarily certified, to teach the “severely handicapped.” Temporary certification means the teacher is within eighteen hours of certification. The Division works closely with state colleges and universities.to provide the necessary course work for temporarily certified teachers to obtain full certification. The State Schools also employ 21 physical education teachers and 36 speech therapists. The physical education teachers and the speech therapists are employed full time at the larger schools and on an itinerant basis at the smaller schools. In addition, the State Schools employ 6 itinerant nurses and contract with local nursing personnel and the county health nurse program for additional nurses. The Division employs 40 occupational therapists, (OT’s), and 30 physical therapists (PT’s). They are hired on a contractual basis because the Division can not offer them a competitive full time, twelve months’ per year salary. The salaries of the teachers, therapists, physical education teachers, and nurses are all tied to the same scale. The salaries of the teachers average $14,000, or about $2,000 less than their counterparts in the regular schools. Heskett at Vol. 9. Missouri has an elaborate procedure to determine whether a child should attend one of the State Schools or some other setting in the continuum. Mo.Rev.Stat. § 162.670 et seq.; State Plan 1984-86 at 39-78. The initial step is the identification of a child with a handicapping condition. Mo.Rev.Stat. § 162.695; State Plan 1984-86 at 40-41. Once a child is identified then the local school district is required to put together an interdisciplinary diagnostic team to evaluate the child’s mental, physical, and social development before placing him in a special program. Id. at § 162.-700(2); State Plan 1984-86 at 88; Friedebach at Vol. 10. The purpose of the evaluation is to gain a picture of the child’s strengths and weaknesses. The composition of the diagnostic team varies with the handicapping condition(s) exhibited by the child, and may include medical specialists, various therapists, psychologists, social workers, and educators. Friedebach at Vol. 10. If the diagnostic team determines that the child’s handicapping condition necessitates a special education program, then the local school district forms a team to develop an individualized educational plan (IEP) for the child. The IEP team is required to meet within thirty days after the child is identified as needing special education. State Plan 1984-86 at 45. The team typically consists of the child’s parents), if appropriate the child, a member of the diagnostic team, possibly a special educator from one of the State Schools if the child is more profoundly handicapped, a principal or teacher from the child’s local school, and any appropriate medical or therapeutic personnel. State Plan 1984-86 at 45-46; Teacher’s Guide at 3.1(a); Yard at Vol. 15; Kopp at Vol. 15; Wilkerson at Vol. 16; Gitel at Vol. 17. The intent is for the members of the team to bring their various perspectives to bear on the developmental and educational needs of the child, and hopefully, to reach a consensus on what is best for the child. The DESE provides educators statewide and the other professionals who participate on IEP teams with information on and technical assistance in developing an IEP and determining the appropriate educational setting. State Plan 1984-86 at 65. Each team is charged with formulating educational goals and objectives for the child, and then with determining the educational services necessary and the appropriate educational setting for fulfilling the goals and objectives. State Plan 1984-86 at 47-48; Teacher’s Guide at 3.1(e)-(k); Kopp at Vol. 15; Wilkerson at Vol. 16. This package of decisions is known as the Child’s IEP. If the IEP team determines that the child can not be appropriately served in a local public school, then the child’s file is forwarded to the Division of Special Education. Mo.Rev.Stat. § 162.-735; Kopp at Vol. 15. The Supervisor of Pupil Accounting and Contract Services, currently James Friedebach, heads a team that consists of the Assistant Superintendent of the State Schools and the pertinent regional Special Education Consultant. This team reviews the child’s file to determine if his handicapping condition is severe enough to warrant placement outside a regular school. Usually a child who is functioning at a level one-half below the expectations for his peers across a number of assessments will be accepted for placement in a State School. The factors considered include the child’s cognitive development, physical development, health, fine and gross motor movements, speech development, and achievement levels. The child’s I.Q. is typically a good indicator, but it is not a controlling factor in the decision. Friedebach at Vol. 10; Wilkerson at Vol. 16; Gitel at Vol. 17. The state team also considers the capabilities of the child’s local school district. Upon review of the file, the team may either accept the child, refer the child back to the local district, or return the file for additional information. Friedebach at Vol. 10. In making their decision, the state team is guided by the requirement that if the child can meaningfully participate or benefit from a special education program in a regular school with the use of aids and services then he must attend a regular school. Mo.Rev.Stat. §§ 162.675(3); 162.-680(2); State Plan 1984-86 at 63-65. If the state team accepts the child, then the child is assigned to the State School nearest the child’s home. State Plan 1984-86 at A29. During the 1982-83 school year the local districts referred 450 children to the DESE upon completion of the IEP process. Friedebach at Vol. 17. The DESE, however, no longer accepts all referrals. In the early and mid-1970’s, when Missouri was first attempting to educationally serve all the handicapped children of the State, the Division of Special Education accepted almost every child referred to it. The DESE wanted to prove that the concept of educating the handicapped was viable. By the late 1970’s the state school system was refusing to accept students it would have accepted in previous years, due in part to the growing recognition of the desirability of placing handicapped children in regular schools and in part to the increasing ability of local school districts to adequately serve these children. Heskett at Vol. 9; Friedebach at Vol. 10; Hall at Vol. 17. Over the four school years from 1979-1983, the DESE rejected approximately fourteen percent of the children referred. See SD Exh. 16. Although, the number of referrals have increased due in part to better and more complete identification of handicapped children, the local districts are referring fewer children who would be inappropriately placed in the State Schools. Friedebach at Vol. 10. Furthermore, even as the number of children in special education programs increases statewide, the number of them served by the DESE in separate settings has decreased. SD Exh. 41. If the state team refuses the referral, then the Division of Special Education works with the local district to meet the needs of the child. Friedebach at Vol. 10; Kopp at Vol. 15; Wilkerson at Vol. 16; Hall at Vol. 17; Teacher’s Guide at 2.1(a). Often the local district is unwilling to serve the child and will threaten suit. The DESE usually resolves the matter by providing the district with funds to serve the child. Heskett at Vol. 9; John at Vol. 11; Hall at Vol. 17. Several checks exist with regard to the development of an IEP and placement of handicapped children in the public school system of Missouri. The DESE reviews the progress and program of ¿very child assigned to a State School within approximately thirty days after the assignment to determine if the child’s IEP and placement are in fact appropriate. Teacher’s Guide to Administration and Instruction, Sept. 1982 at 1.5(e) and 2.1(b), SD Exh. 8 (Teacher’s Guide); State Plan 1984-86 at BIO; Kopp at Vol. 15. Also any child’s IEP and placement can be reviewed at any time upon the request of the child’s teacher, another member of the professional staff working with the child, or the child’s parents. In any event, the district serving, the child must form an IEP team annually to review the child’s IEP and placement, and to determine any changes- based on the child’s progress or lack thereof during the preceding year. Teacher’s Guide at 1.5(f); Friedebach at Vol. 10; Kopp at Vol. 15. The parents of the child are encouraged to participate in each IEP conference. State Plan 1984-86 at 45; Teacher’s Guide at 1.5(e) and 3.1(a). The conferences enable the educators to learn more about the parents and the parents to learn about the child’s educational program. Wilkerson at Vol. 16. The responsible school district must also notify the parents when their child has been identified as having a handicapping condition or is going to be diagnosed or evaluated. Furthermore, if the child is currently receiving a special education program and the district has determined that the program or placement should be altered, or the parents have requested a change that the district has decided not to honor, then the district is responsible for notifying the parents of the decision and informing them of their channels of redress. Mo.Rev.Stat. § 162.945. Missouri provides an independent administrative review process wherein a parent can challenge a decision of the responsible school district at three levels within the state educational system and then in state court. Mo.Rev.Stat. §§ 162.950-162.963; State Plan 1984-86 at 53-59. Most parents, however, agree with the placement decision reached by the IEP team. Moreover, when a disagreement arises it is usually resolved at the informal stage of the review process. Heskett at Vol; 9; Kopp at Vol. 15; Wilkerson at Vol. 16; Gitel at Vol. 17. The State Schools provide a fluent curriculum during a five hour school day. The teachers have at their disposal a variety of materials developed in Missouri and elsewhere upon which they can draw to fashion an instructional program to meet the individual needs of each child. There is no system-wide, uniform, instructional program that each child must receive, but there are set curriculum areas: self-care skills, sensory motor development, functional academics, language development, interpersonal relationships, and prevocational and vocational skills. P.Exhs. 153A, 153B, 153E, and. 153G. The teachers strive to fashion each child’s program so that he learns the functional skills he lacks, and how to generalize those skills to various settings. In addition, they teach social and job-related skills. The educational program also includes various nonacademic activities.' Examples include field trips into the community, recreational activities, and social outings. Heskett depo. The parents are also included in the educational process. Missouri has developed a program to teach-parents to use the home environment to supplement and reinforce what their child is being taught in school, Missouri Instructional Guide for Home Training (MIGHT). Heskett at Yol. 9. II. Department of Mental Health Although not primarily an educator, the' DMH is also responsible for providing educational opportunities to the youngsters it serves. The DMH, among its other duties, administers five Mental Retardational Developmental Disabilities (MR/DD) facilities: Higginsville State School and Hospital, Marshall State School and Hospital, Nevada State School and Hospital, and St. Louis Developmental Disabilities Treatment Center (DDTC). The DDTC actually consists of three facilities: the original facility in St. Louis and two new facilities, one in south St. Louis County and the other in midtown St. Louis. It is the educational programs administered by the DMH in these facilities that are challenged by the plaintiffs. Last year approximately 298 school-age children resided in the MR/DD facilities. Of these children, 216 received educational services at the facility where they resided. The other 83 attended either a State School, a school within one of the special school districts, or a local public school. Stips. 20-22. Although the DMH and the DESE are separate and independent departments they work together in providing educational opportunities to the school age children that reside at the MR/DD facilities. The DMH is under the same placement, review, and due process procedures as is the state public school system. SD Exh. 14a, Missouri DMH Compliance Policies and Assurances for PL 94-142. In 1980 the departments entered into an agreement to cooperate with each other in providing educational services. P.Exh. 166. The agreement reiterated the responsibility of the DESE to ensure that the requirements of the state and federal special education laws are complied with by special education providers. The two departments agreed that the DESE would see to it that any child residing in an MR/DD facility and able to leave the grounds for educational services would be appropriately placed in a less restrictive setting. If the DESE and the DMH are unable to agree, on whether a particular child is capable of leaving the facility to receive an education, then the two departments will form a committee to resolve the dispute and develop an IEP for the child. Consistent with the DESE’s concern with assigning children to the least restrictive environment, the DMH has placed the higher functioning children it serves in community settings, group homes, and foster homes. The functioning level of the remaining children is low. For example, approximately 50% of the children that reside at the DDTC have a functioning level too low to register on the A.A.M.D. scale. Also 80% of the same group are nonambulatory and require wheelchairs or bed-carts for mobility. The same trend is occurring at the Higginsville State School and Hospital. Since 1980 the school age population has declined by twenty-five to thirty children. The ones that remain are lower functioning. Similarly at the Marshall State School and Hospital three groups of children are served: those whose medical problems are so severe they require constant medical attention to ensure life, those who are so physically involved that they can be moved only by bed-cart, and those whose behavior poses a danger to themselves and/or others. Crawford at Vol. 11; Stewart at Vol. 11; John at Vol. 12; Stewart depo. Efforts are still made, however, to place the children in outside residential and educational settings. For instance, in 1980, a team of DESE and DMH personnel evaluated the children attending the St. Louis DDTC. They determined that most of the children should not leave the grounds for educational services, and none would benefit from attending a regular school. Friedebach at Vol. 10; McPheron at Vol. 11; Crawford at Vol. 11. Special reference was also made to three referrals from the Marshall State School and Hospital to the Marshall public schools. One had succeeded, but the other two had'failed and were returned to the State School and Hospital. Crawford at Vol. 11. III. Special School Districts Besides the DESE and the DMH, Missouri also has two special school districts (SSD) that provide educational services to handicapped children. The voters of local school districts can decide to join together to create an SSD. Mo.Rev.Stat. §§ 162.-815-162.945. The SSD is separate and independent from the local school districts. The latter continue to .serve- nonhandicapped children, and the SSD is responsible for educating the handicapped children of the local districts. The SSD, however, is subject to DESE monitoring and supervision as are the local districts. Id. at § 162.930. Missouri’s two SSDs serve the local school districts in St. Louis County and Pemiscot County. The SSD of St. Louis County serves as an umbrella district for the twenty-three school districts within the county of St. Louis. As a SSD it is responsible for providing direct educational services to any handicapped child that resides in the county and desires a public education. The SSD served approximately 15,620 school age handicapped children in 1982-83. The educational program of the SSD is divided into four phases. Phase I encompasses the handicapped children that can be mainstreamed into regular classrooms in the local schools. The local school has the primary educational responsibility for these mildly handicapped children. The SSD provides the supplementary or special services necessary to allow the child to be mainstreamed and still benefit educationally. It hires the staff to serve the child’s special needs. Phase II is designed for the moderately handicapped. These children are served in self-contained classrooms in their local public schools. The SSD is primarily responsible for educating the children in this phase. It leases classroom space from the local districts and staffs the classrooms. Phase III is aimed at “severely handicapped” children. These children receive their educational services in separate buildings owned and operated by the SSD. Finally, Phase IV includes children who have a low incident handicap. The SSD contracts with private agencies or establishes homebound instruction to meet the needs of this group. In 1982-83, there were 11,740 children in Phase I, 2,128 in Phase II, 2,007 in Phase III, and 46 in Phase IV. R. Werner at Vol. 13; SD Exh. 16; Stip. 3.4 and 3.5. The district operated on a $63 million budget in 1982-83. Approximately $3 million came from the federal government under the Education Act and Chapter One. The rest came from state and local sources. The budget is divided into three categories: the teacher’s fund which is limited to salaries, the incidental fund which covers employee benefits and supplies, and the building fund earmarked for building construction and maintenance. Although each fund had a reserve in 1982-83, a fourteen percent salary increase for the teachers and therapists in 1983-84 was expected to eliminate the reserves in the teachers and incidental funds. Half a million dollars was budgeted for the central administration office of the district, and a million dollars for maintenance of the Phase III buildings. Harmon at Vol. 14; Supp.Stip. 3. The remaining discussion of the SSD will focus on the Phase III portion of the program since that is the portion challenged by the plaintiffs. The SSD owns fourteen buildings. Eleven are schools serving handicapped children in the Phase III program. The SSD also leases two other buildings that serve as Phase III schools. All the Phase III schools are one level buildings, accessible to the handicapped with larger than usual classroom space and wider hallways. The additional space is intended to minimize the congestion created by wheelchairs and other equipment necessary to serve the severely handicapped. The rooms also contain or share a bathroom to allow the staff to better cope with toileting problems and a sink to aid in the preparation of the food program and the cleanup of the students. Bolazina at Vol. 14; Harmon at Vol. 14. The record is sparse in regard to general information on the teaching staff. It does indicate that the teachers of the SSD are certified to teach the severely handicapped, they receive more pay than their counterparts in the state school system, and the SSD has no trouble finding applicants for its teaching positions. Last year the district received 200 applications for every opening. The SSD of St. Louis County has twenty-eight occupational therapist positions and fourteen physical therapist positions. The district, however, has a hard time filling the positions. For the 1982-83 school year the SSD placed forty-six newspaper advertisements and contacted 123 placement offices, but was not able to fill all of the positions. The SSD received only seventeen OT and eleven PT applications for the positions open for the 1982-83 school year. The district was able to hire twenty-four OTs and twelve PTs for the year. It also contracted with two hospitals and two private agencies for additional therapy services. The nine month work year and the salary structure hinder efforts to hire a sufficient number of therapists. Each Phase III school, however, does have an OT and a PT on staff, and present at the school on a daily basis, to deal with those children who may pose a physical threat to themselves or others. The OTs and PTs are responsible for assessing the children’s progress on an annual basis. They also participate in the IEP process. Also on the staff of each school is a carpenter to adapt occupational and physical therapy equipment, a nurse to handle medical emergencies, and a dietitian to aid in formulating a food program. A counsel- or, speech therapist, and audiologist are also available to students in Phase III. R. Werner at Vol. 13; Bolazina at Vol. 14; Eldridge at Vol. 15. The placement process employed by the SSD is similar to the one previously described: diagnosis, evaluation, IEP formulation, placement, periodic review as necessary, and annual review. To aid in placement decisions the district designed a manual for those who participate on the IEP teams. Since potentially any IEP team can draw from about 1300 staff members, the manual was designed with the intent of bringing more consistency to the process, and of providing guidelines for determining the appropriate placements. Most of the children who attend Phase III schools were initially assigned to a Phase II program, but were not benefitting from the program or the environment. Furthermore, many of the children placed in Phase III schools are later placed in a less restrictive educational setting. Consistent with the trend statewide, the percentage of handicapped children served by the SSD in Phase III schools has declined since the 1980-81 school year. The decline, here too, is due to an increasing awareness of and emphasis on placing handicapped children in regular schools when they can benefit from the setting. Handicapped children in Phase III can and have transferred to Phase I and Phase II programs during the school year or upon completion of the annual IEP review. Again, as with the statewide program, if the parents disagree with a decision reached by an IEP team they can challenge the decision through an administrative process and then in state court. During the past three years no parents have challenged or sought review of the placement of their child within a Phase III program. P.Exh. 124, St. Louis Co. SSD Compliance Plan for FY 1983 at 27-51; R. Werner at Vol. 13; Hauser at Vol. 14; Eldridge at Vol. 15. The curriculum in the Phase III schools focuses on four major areas: academics, self-care skills, job-related skills, and communication skills. The instructional materials used and the program provided each child, however, is geared toward the developmental and functional level of the particular child. The lower functioning children may receive instruction, for example, in responding to sounds, tracking an object, or holding their head up, whereas higher functioning children might work on toileting, dressing, or personal hygiene. Less emphasis is placed on the child’s chronological age. The curriculum is also designed to enhance the teacher’s abilities to recognize even the most subtle of responses from the youngsters. This is important because the responses, or lack thereof, enable a teacher to determine whether a program or strategy is effective. The environment also needs to be distraction free so that the teachers can concentrate on watching for and recording the responses. R. Werner at Vol. 13; Bolazina at Vol. 14; Hauser at Vol. 14; Eldridge at Vol. 15. The SSD also provides for community based programs, field trips, and extracurricular activities for the children in Phase III. Hauser at Vol. 14; Huskey at Vol. 14; Stip. 3.8. The SSD employs three special strategies in their Phase III program. First, the district has opted for departmentalization. Departmentalization exposes the children to more than one teacher, and, therefore, different teaching methods and ideas. The youngsters have the advantage of several teachers focusing their varied talents, skills, and experience on the youngster’s developmental problems. Departmentalization also encourages the teachers to exchange ideas and concerns about the children. Emmons at Vol. 13; Bolazina at Vol. 14. Second, the SSD has instituted a voluntary program whereby high school and college students can work with the children on a one-to-one basis and under the supervision of a teacher. The district screens the volunteers for maturity, and has not sought or accepted anyone under sixteen years of age.. Although the volunteers express an interest in working with the profoundly handicapped, very seldom do they volunteer to work with the lowest functioning children. The advantage of the program is the extra attention it affords the youngsters. Bolazina at Vol. 14; Hauser at Vol. 14. Finally, the SSD has established a voluntary program for the parents. The parents may work directly with their child in class under the supervision of the teacher, take in-service training courses, and participate in the parent’s organization. Hauser at Vol. 14. The DESE, through the Division of Special Education, works with each of the SSDs and monitors their compliance with federal and state laws. It reviews all compliance data submitted by both SSDs on an annual basis, and once every three years it makes an on-site inspection. The DESE last inspected the SSD of St. Louis County in March of 1983. The inspectors looked closely at the Phase system, the special education program, the vocational education program, and the financial structure of the SSD. The investigators concluded that the SSD had made improvements since 1980, and still offered the best special education program in the state. The DESE approved the SSD’s compliance plan. P. Exh. 124; R. Werner at Vol. 13; Hauser at Vol. 14; Eldridge at Vol. 15; Hall at Vól. 17. IV. Local Programs Finally, some of Missouri’s more profoundly handicapped children are served directly by local school districts in local programs. Little evidence was presented on these programs, yet both sides mention the local programs in their arguments. They will be discussed briefly before turning to the merits of the case. In 1974, Missouri law for the first time allowed local school districts to provide special education programs for the severely or more profoundly handicapped. Seven local school districts started programs that year with twenty-six school districts sending their children to the programs. The availability of Education Act funds in 1978 further spurred the movement toward local programs. For the 1982-83 school year 101 local school districts sent their severely handicapped children to twenty-one local programs. Approximately 165 students were involved. Heskett at Vol. 9; Stips 1.34 and 1.38. Each time a local program is established the state school program serving that district is phased out. The local school district must agree to serve all of the profoundly handicapped children in the area previously served by the State School and guarantee in good faith that it will provide a special educational program on par with the program provided by the State School. The DESE relinquishes direct educational responsibility, and the local district administers and staffs the program. The local districts and the DESE have both initiated takeovers of state school programs. The DESE is responsible for deciding whether a local school district is capable of assuming the educational duties and providing the necessary educational services. It does not approve a takeover by a local district just because the district requests it. The DESE reviews the proposed educational program, along with the amount of resources the local district commits to and the quality of its special education program for the mildly and moderately handicapped. If the resource commitment is not acceptable or the present special education program does not indicate a capability to serve the severely handicapped then the request is turned down. The DESE also approaches local school districts regarding the takeover of state school programs. In the past two years, for example, it has approached three school districts with strong special education programs for the mildly and moderately handicapped. Not all districts that are approached, however, consent to starting a program. Often after learning of the services it must provide to adequately serve the severely handicapped a district will conclude that it is not ready to accept the responsibility. The DESE, however, encourages the districts it believes are capable by working with them to fund the new program. The teaching and supervisory staff of the DESE also cooperate with the local district on the substantive portion of the program. Heskett at Yol. 9; John at Vol. 12; Hall at Vol. 17. Financing is the foremost concern of the local authorities. They have not been willing to initiate a severely handicapped program when to do so would take money away from the educational programs of the other students they serve. The DESE has had to assure these local districts that the necessary money will be available. The local district has two sources of funds at the local level. One is the money it was paying the state to serve the district’s severely handicapped children in a state program. See Mo.Rev.Stat. § 162.740. The other source is the money the participating districts, those districts sending their severely handicapped children to the local program, have agreed to pay for the educational services. See Mo.Rev.Stat. § 162.-705(1). At the state level, besides being able to count its own children for foundation formula purposes, the district would also be eligible for categorical aid to pay toward the salaries of teachers, teachers’ aides, and ancillary staff. Categorical aid is paid out on a per class basis at the rate of $10,000, $2,000, and $4,000 respectively. Federal funds are available under Chapter One and the Education Act. A district may opt for either on a per child basis. Only two of the local programs have opted for Chapter One funds. ■ On top of the entitlement money, a district may also apply to the state for discretionary funds under the Education Act. The DESE has used discretionary grants to provide the additional funds necessary to. run the local programs. The local districts have used the money to supplement salaries, purchase equipment or materials, and to buy or equip buses. Complete information was not provided the Court concerning the staffing of the local programs. Information is available, however, concerning the teachers and aides serving seventeen of the local programs. In 1982-83 these particular local programs had twenty and one-half full time teachers and twenty-five full time aides on the staff serving approximately 143 students. No information is available concerning the number of support staff. The local districts contract for physical and occupation-' al therapists. Other ancillary services are provided by professionals already within the district if they have the expertise or, if not, then the district may contract for the services. Typically, the program of the State School is continued by the local district, and the classes remain in one school, rather than being dispersed to an elementary, middle, and high school. Heskett at Vol. 9; John at Vol. 12; Hall at Vol. 17; Stips 1.35 and 1.36. Education of all Handicapped Children Act The plaintiffs maintain that the State Schools, DMH educational programs, and the separate schools of the SSDs violate the education of All Handicapped Children Act of 1975, 20 U.S.C. § 1401 et seq. (Education Act). Although they presented an elaborate argument, the plaintiffs basically assert three contentions: (1) the defendants do not treat the “severely handicapped” on an individual basis; (2) the defendants’ placement of handicapped children in separate settings violates the least restrictive environment concept embodied in the Act; and (3) the defendants are inherently unable to provide appropriate educational programs to handicapped children in separate schools. These contentions tend to overlap, but the Court will attempt to address each separately. The Education Act was passed in 1975 to assure that all handicapped children had access to a publicly funded education, and to assist the states financially in meeting this obligation. Congress first expressed its desire that handicapped children be educated with nonhandicapped children in the Education Amendments of 1974. House Rep. 94-332 at 5; Sen.Rep. 94-168 at 8, U.S.Code Cong. & Admin.News 1975, p. 1425; 62 Ia.L.Rev. 1283, 1329 (1977). It was also the first time Congress explicitly recognized the right of all handicapped children to a publicly provided education. House Rep. 93-380, U.S.Code Cong. & Admin.News 1974 at 4093, 4146; 62 Ia.L.Rev. at 1329. Historically, this country has recognized the usefulness of an education both to the individual and to the nation. Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954); H.R.Rep. No. 805, 93rd Cong., 2nd Sess. reprinted in U.S.Code Cong. & Admin.News 4093, 4151 (1974) (House Rep. 93-805). To this end, the states enacted compulsory attendance laws. These laws typically, however, made an exception for handicapped children adjudged not to be able to benefit from public education. Initially, if a handicapped child was to receive any educational services, the child was either placed in an institution for the more profoundly handicapped where he might receive some instruction, or if he was more mildly (less noticeably) handicapped, allowed to attend a regular class. The handicapped children in the regular classes received the same instruction as did their nonhandicapped peers, without the benefit of any special attention to compensate for their handicap. Not surprisingly, these children often failed to even minimally succeed in the regular school environment. As a result special classes and day schools began to be created for the handicapped. A conscious effort was made to separate handicapped children from non-handicapped children for educational purposes. Throughout this century the emphasis has remained on separating the two groups. In the 1960’s, these special schools and classes proliferated. Only in the last ten years has the emphasis begun to shift back to regular classroom placement. It was felt that if a child could function in a regular classroom with specialized assistance then that placement better prepared the child to function independently. 56 St. John’s L.Rev. 81, 90-93 (1981); Miller & Miller, The Handicapped Child’s Civil Right as it Relates to the “Least Restrictive Environment” and Appropriate Mainstreaming, 54 Ind.LJo. 1, 6-12 (1978); (Miller, 54 Ind.LJo.); 62 Ia.L. Rev. at 1293-9. This emphasis on mainstreaming handicapped children, when appropriate, did not result, however, in universal public education for the handicapped. In 1974, the House Committee on Education and Labor reported that two-thirds of the 5.5 million handicapped children were either “excluded from schools or, sitting idly in regular classrooms awaiting the day they would be old enough to drop out.” House Rep. 93-805, U.S.Code Cong. & Admin.News 1974 at 4093, 4137-38. In 1975, Congress noted that of the eight million handicapped children more than half were not receiving appropriate educational services. 20 U.S.C. § 1401, note “Congressional Findings.” See also Sen.Rep. 94-168 at 8, U.S.Code Cong. & Admin.News 1975, p. 1425; House Rep. 94-332 at 7. In the early 1970s, the courts began to redress the gap in educational services offered handicapped children. For example, in Pennsylvania where approximately 50,000 retarded children were being denied access to any public educational services, a federal district court approved a consent decree in which the state agreed to provide each retarded child between the ages of six and twenty-one access to a “free public program of education and training appropriate to his learning capacities ____” Pennsylvania Assoc. for Retarded Children (PARC) v. Pennsylvania, 334 F.Supp. 1257, 1258 (E.D.Penn.1971); PARC v. Pennsylvania, 343 F.Supp. 279, 296 n. 53 (E.D.Penn.1972) (cited the 50,000 figure referred to). A year later the right to a publicly funded education was extended to all handicapped children in Mills v. Bd. of Ed. of the District of Columbia, 348 F.Supp. 866, 873-75 (D.D.C.1972). What followed was an outpouring of cases, both federal and state, which challenged the educational services or lack thereof offered to handicapped children. Congress influenced by PARC and Mills, and recognizing that the states lacked resources sufficient to meet the educational burdens being placed on them, sought to aid the states and redress the gap in educational opportunities with the passage of the 1974 Amendments and later with the Education Act. House Rep. 94-332 at 3-7; Sen.Rep. 94-168 at 1429-33. The Education Act contains various requirements a state must comply with to receive federal funds. A state must have a policy of providing an appropriate education at public expense to its handicapped children, and a detailed plan for carrying out the policy. 20 U.S.C. § 1412(1) and (2); § 1413. To ensure that each child receives an education tailored to his individual needs, the statute requires that an IEP be developed for each one and that it be reviewed on, at least, an annual basis. Id. at 1412(4); 1414(a)(5). The Education Act also requires certain procedural safeguards. The state must have a due process procedure that provides the parent notice of any decision affecting his child’s educational program, an opportunity to examine the materials upon which the decision was based, and an opportunity to challenge the decision and have an impartial hearing held on the challenge. Id. at 1412(5)(A) and 1415. The state must also have procedures to ensure that to the maximum extent appropriate handicapped children, with the use of supplemental aids and services, are educated with nonhandicapped children in regular public schools. Id. at 1412(5)(B). Finally, the Education Act requires the state to designate one of its state level agencies, usually the state entity responsible for overseeing the elementary and secondary public school system, the “State education agency.” The entity so designated is responsible for developing the plan, passing on applications from school districts serving the handicapped, and ensuring general compliance with the Act. Id. at 1412(6) and 1401(7). The entity here is the State Board of Education through the DESE. The Secretary of Education is responsible for reviewing and ruling on state plans. Id. at 1413(c). The Secretary also has the authority to withhold from a state funds for the entire state program or for a portion of the program not in compliance with the Education Act. Id. at 1416(a). I. Threshold Questions Before reaching the contentions of the plaintiffs the Court will address a threshold jurisdictional issue raised by the defendants. The defendants maintain that the Court lacks jurisdiction to hear this case because the plaintiffs failed to exhaust the administrative remedies provided by the Act in Section 1415, and because the Act does not provide for a private right of action to raise a systemic challenge. Based on the purposes of the Education Act and the cases that have interpreted it, the Court finds that it has jurisdiction to determine systemic challenges by private parties. Furthermore, the failure of the plaintiffs to exhaust does not deprive the Court of jurisdiction. Taking up the exhaustion argument first, the Court is well aware of the statutory basis the defendants are relying upon. Sections 1415 and 1416 bestow federal jurisdiction. Only Section 1415, however, mentions actions by private parties, and it clearly anticipates that the aggrieved party before bringing a federal action will have pursued the administrative remedies provided. The exhaustion requirement, however, is not absolute. Courts have not required exhaustion when recourse to the administrative procedures would be futile. Jose P. v. Ambach, 669 F.2d 865, 869 (2nd Cir.1982); Monahan v. State of Nebraska, 687 F.2d 1164, 1168 (8th Cir.1982). The defendants have previously raised this issue, and the Court found that exhaustion would be futile in these circumstances. See Memorandum and Order of June 16, 1981, pp. 4-9; Memorandum and Order of July 29, 1982. Having again considered the question, the Court finds no reason to change its earlier ruling. The claim the plaintiffs raise, if correct, could not be resolved by resort to Missouri’s administrative review process. The plaintiffs claim that the defendants automatically place in a separate school or facility any child who is determined to be severely handicapped without regard to whether the child could receive an appropriate education in a regular school. They point out that the IEP teams do not have the option of placing a severely handicapped child in a regular school because the placement continuums of the defendants do not include a program for the severely handicapped in those schools. The placement options for the severely handicapped are limited to separate schools or facilities according to the plaintiffs. If the plaintiff’s view of the placement process is correct and since the plaintiffs do not challenge the evaluation determinations that the individual plaintiffs have severe handicapping conditions, then review would be meaningless and exhaustion unnecessary. Under the placement system they describe, a child correctly evaluated as having a severe impairment will never be placed in a regular school. The Court will reach the merits of this claim below, but for exhaustion purposes these allegations are sufficient.- Similarly to their position on exhaustion, the defendants rely on Sections 1415 and 1416 in arguing that there is no cause of action for systemic challenges by private parties. The Court notes, however, that several cases have, at least implicitly, recognized the right of private parties to bring a systemic challenge. In a number of recent cases private parties have challenged their state’s policy limiting the school year for handicapped children to the typical nine-month period. See Georgia Assoc. of Retarded Citizens v. McDaniel, 716 F.2d 1565 (11th Cir.1983); Crawford v. Pittman, 708 F.2d 1028 (5th Cir.1983); Battle v. Pennsylvania, 629 F.2d 269 (3rd Cir.1980); Yaris v. Spec. Sch. Dist. of St. Louis Co., 558 F.Supp. 545 (E.D.Mo.1983). In each case the court found that the system-wide denial of a summer school program to handicapped children denied them the right to be treated and considered on an individual basis as provided by the Education Act. Other courts have also recognized systemic challenges by private parties. See Brookhart v. Illinois St. Bd. of Ed., 697 F.2d 179, 182-83 (7th Cir.1983) (challenged denial of diplomas to handicapped children unable to pass the state’s minimum competency test); Gary B. v. Cronin, 542 F.Supp. 102 (N.D.Ill.1980) (challenged state rule that excluded counseling and therapeutic services from special education or its related services). Colin K. v. Schmidt, 536 F.Supp. 1375 (D.R.I.1982), 715 F.2d 1 (1st Cir.1983) (challenged policy of placing all learning disabled children in regular public schools); Riley v. Ambach, 508 F.Supp. 1222 (E.D.N.Y.1980) rev’d on procedural grounds 668 F.2d 635 (2nd Cir.1981) (challenged policies setting a fifty percent discrepancy level before a child is determined to be handicapped and removing all residential schools or learning disabled children from the list of approved schools); Roncker v. Walter, 700 F.2d 1058 (6th Cir.), cert. denied — U.S. —, 104 S.Ct. 196, 78 L.Ed.2d 171 (1983). Systemic challenges similar to those leveled by the plaintiffs here were raised in Roncker. Roncker advanced two claims. One, that the school district in question automatically referred all trainably mentally retarded (TMR) children to the separate county schools. The court found that if Roncker was correct then the district was violating the Education Act requirement of individual placement decisions. Id. at 1064. The plaintiff also claimed that the school district labeled children as TMR solely on their IQ scores. The court found this too to be a violation of the statute. Id. at 1064. The plaintiffs here have alleged that all severely handicapped children are automatically placed in separate schools without regard to their individual needs and have alluded to a belief that the defendants categorize the handicapped children solely by their IQ score. This Court believes that the willingness of the aforementioned courts to hear these systemic claims is consistent with the purposes of the Education Act. As already mentioned Congress passed the Education Act in response to a perceived need to assure that handicapped children are afforded a publicly funded education. To further ensure that the education afforded is meaningful for each child, Congress mandated that each be treated on an individual basis and that the parents or guardian of the child be afforded the opportunity to participate in all phases of the process of formulating an educational program for their child. Moreover, Congress mandated extensive due process, review procedures that a parent or guardian could utilize to challenge a decision that he felt was not in his child’s best interest. It is this Court’s belief that Congress afforded parents and guardians such extensive involvement opportunities and the right to challenge their child’s educational treatment because Congress viewed parents and guardians as a necessary check to insure that handicapped children are provided appropriate educational opportunities. This Court does not believe that Congress created this role for parents and guardians while intending to withhold from them the ability to challenge a portion of their state’s system that if left uncorrected would deprive their child of an appropriate education. The defendants argue that Congress did intend to so limit private party challenges. They maintain that systemic challenges and corrections are the exclusive province of the Secretary of Education. They imply that aggrieved private parties can petition the Secretary to take the action desired. The statute does not expressly provide for private party petitioning and the statute certainly does not require the Secretary to heed these petitions. Even if that avenue was open to private parties the sanctions available do not ensure adequate relief. Under Section 1416 the only sanction granted to the Secretary is the authority to withhold funds to the entire state program or to the offending portion of it. The withholding of federal funds does not guarantee the specific relief sought by a private party. In fact, it might result in the elimination of the segment of the educational program challenged, rather than lead to its reform. Georgia Assoc. of Retarded Citizens v. McDaniel, 716 F.2d at 1573. See also New Mexico Assoc. for Retarded Citizens v. New Mexico, 678 F.2d 847, 851 (10th Cir.1982) and Pushkin v. Regents of University of Colorado, 658 F.2d 1372, 1381 (10th Cir.1981) (termination of federal funds for violation of the Rehabilitation Act, Section 504, does not provide adequate relief for private claims against the educational system involved). When a systemic challenge goes to the question of whether a state policy interferes with the provision of an appropriate education on an individual basis, as it does here, then a parent or guardian has a cause of action which he may bring before a competent court. II. Individualized Consideration The plaintiffs contend initially that the handicapped children attending the separate schools and facilities maintained by the defendants are not treated as individuals. They do not claim that these children were not treated on an individual basis by the diagnostic/evaluation team or by the IEP team in formulating the substance of their educational programs. The plaintiffs do claim, however, that the IEP team, acting on the evaluations, labels the more profoundly handicapped children as “severely handicapped.” Consistent with their exhaustion argument they claim that once a child i