Hugh H. Bownes

“ We conclude that the Act's language dictates the holding that Timothy W. is a handicapped child who is in need of special education and related services because of his handicaps. He must, therefore, according to the Act, be provided with such an educational program. There is nothing in the Act's language which even remotely supports the district court's conclusion that "under [the Act] , an initial determination as to a child's ability to benefit from special education, must be made in order for a handicapped child to qualify for education under the Act." ”

“ Giving Cascade the broadest possible reading, we do not think it affords any basis for the proposition that if an individual has an interest in a case, as defined by the rule, he or she can intervene absent a defendant. The Court gave two reasons for allowing intervention, "an interest in the transaction" and the failure of the "existing parties" to represent the intervenor's interests. Here, Hubbard has not appeared to date; until or unless he does, it cannot be determined whether he will or can represent adequately the interests of the putative intervenors. ”

“ Public education is to be provided to all handicapped children, unconditionally and without exception. It encompasses a universal right, and is not predicated upon any type of guarantees that the child will benefit from the special education and services before he or she is considered eligible to receive such education. Congress explicitly recognized the particular plight and special needs of the severely handicapped, and rather than excluding them from the Act's coverage, gave them priority status. ”

“ A party who fails to appear for trial and thus receives a default judgment has failed to represent the interests of the would-be intervenor. Thus, if the union in Woolworth failed to appear before the district court to challenge the employer's motion for summary judgment, the interests of the discharged employees would be left inadequately represented. Where significantly protectible interests of a putative party may be adversely affected in a litigation and the sole defendant chooses not to appear, intervention is warranted. ”

“ Congress clearly saw education for the handicapped as a dynamic process, in which new methodologies would be continually perfected, tried, and either adopted or discarded, so that the state's educational response to each handicapped child's particular needs could be better met. ”

“ Recent court decisions . . . have made it clearer than ever that we have not only a moral but also a legal obligation to provide the opportunity for every handicapped citizen to insure his or her highest educational potential. An important provision of the bill before us today would require that every State have in effect a policy stating the right of all handicapped children to a "free appropriate public education". ”

“ The language of the Act in its entirety makes clear that a "zero-reject" policy is at the core of the Act, and that no child, regardless of the severity of his or her handicap, is to ever again be subjected to the deplorable state of affairs which existed at the time of the Act's passage, in [p961] which millions of handicapped children received inadequate education or none at all. In summary, the Act mandates an appropriate public education for all handicapped children, regardless of the level of achievement that such children might attain. ”

“ Exclusion from school, institutionalization, the lack of appropriate services to provide attention to the individual child's need -- indeed, the denial of equal rights by a society which proclaims liberty and justice for all of its people -- are echoes which the subcommittee has found throughout all of its hearings. ”

“ Hubbard. Plaintiff has made defendant the sole target of his action. Whatever carom effect may occur is the direct result of defendant's failure to appear. We hold that because the sole defendant has chosen not to appear in this tort action, there can be no intervention by the joint tort-feasors under Rule 24 (a) (2) until and unless the defendant appears.
FN2. It is black letter law that those not a party to an action are not bound by an adverse judgment against the named defendant. ”

“ In Parks, the court speculated that in the hypothetical case of a child in a coma, the state might not have to pay for the living expenses of such a child placed in an institution since such a child would be uneducable and therefore his living expenses would not be related to education. Id. at 1405. This dictum is irrelevant to the instant case. Timothy W. lives at home, is seeking only educational services, not institutional placement, is not in a coma, and does respond to stimuli and his environment. ”

“ As mentioned previously, the record in the instant case amply supports the appellants' assertion that Hubbard will not appear.↑ Id. Cases where the question of adequacy of representation is more difficult include those where the party is adverse to the absentee, where the interests of the absentee and of the party are different, though perhaps similar, and where the interest of the absentee is identical with that of one of the existing parties. ”

“ What is not envisioned is that the appropriate educational programming and related services will result in an educational benefit being conferred. Special education can no more ensure good results than can regular education. ”

“ The court's decision to exclude from this rule's scope cases in which the named defendant has chosen not to appear runs counter to the goal of protecting those who are not otherwise represented. Indeed, if the other conditions are satisfied, this type of situation presents the clearest need for permitting intervention because the nonparties' interests will not be represented at all. Wright & Miller, supra, at 524. "An interest that is not represented is surely not adequately represented and intervention must be allowed." ”

“ Dr. Patricia Andrews, a developmental pediatrician, was the only person who testified that Timothy did not have educational needs and could not benefit from education. Her only contact with Timothy had been during an evaluation when he was two months old. While she testified that Timothy was profoundly mentally retarded and that an X-ray study of his brain showed he had virtually no cortex present, she also stated that such a study alone could not predict how much functioning was going to develop. ”

“ Flight Transportation Corp., 699 F.2d 943 (8th Cir.1983) , as authority for her right to intervene based on her economic interest in the assets of her husband. In that case, the SEC commenced an action against Flight Transportation Corp., two subsidiary corporations, and William Rubin, President and Chairman of the Board of Directors and Chief Executive Officer of the three corporations. ”

“ In its discussion of reallocation of funds, the Act states that "whenever a State educational agency determines that a local educational agency is adequately providing a free appropriate public education to all handicapped children . ”

“ The House report also included such priorities: "In conformance with the overall goal of ending exclusion . . . [the bill gives] first priority to children 'unserved' [and] second priority to severely handicapped children." ”

“ The record contains testimony that Timothy W.'s needs include sensory stimulation, physical therapy, improved head control, socialization, consistency in responding to sound sources, and partial participation in eating. The educational consultants who drafted Timothy's individualized education program recommended that Timothy's special education program should include goals and objectives in the areas of motor control, communication, socialization, daily living skills, and recreation. ”

“ Hershman, 701 F.2d 223, 228 (1st Cir. 1983) ("Congress established a priority under the Act for the most severely retarded children, 20 U.S.C. § 1412 (3) , for many of whom, certainly, education will not consist of classroom training but rather training in very basic skills") ; Kruelle, 642 F.2d at 693 ("the concept of education is necessarily broad" with respect to severely or profoundly retarded children) ”

“ He recommended physical and occupational therapy, and cognitive programming efforts to continue in the areas of consistently responding to sound, anticipating feeding, and operating an electronic device to operate a sound source. And on January 9, 1987, Ruth Keans, a physical therapist at the Child Development Center, performed a physical therapy evaluation and concluded that she did not see any voluntary movements, but that Timothy did respond to his mother's voice. ”