IN THE SUPREME COURT OF THE STATE OF MONTANA
B.M., a minor, by LEONA M.
BURGER, her guardian Ad Litem,
Plaintiff and Appellant,
STATE OF MONTANA, et al.,
Defendants and Respondents.
District Court of the Seventeenth Judicial District,
In and for the County of Valley
Honorable M. James Sorte, Judge presiding.
Counsel of Record:
Russell A. Lavigne, Jr. argued, Helena, Montana
Lucas, Jardine and Monaghan, Miles City, Mo~tana
A. Lance Pe&3 argued, Miles City, Montana
John A.Langen argued, Glasgow, Montana
Anderson, Symrnes, Forbes, Peete & Brown, Billings, Montana
Richard Cebull argued, Billings, Montana
Robert Hurly, Glasgow, Montana
Gordon T. White, Glasgow, Montana
JUL 1 4 1982
September 23, 1981
July 14, 1982
Mr. Justice Daniel J. Shea delivered the Opinion of the
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
moved for summary judgment.
On November 18, 1980, the
District Court granted summary judgrr~srtt.for all respondents
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
The trial court also held that such misplacement
does n ~ 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
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
In January 1973, upGn 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
As a result of this testing, Jones recommended that the
child either repeat her year in kindergarten or receive
special 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.
Program Procedures - Guidelines for
and Youth With Learning Handicaps,
andbo book).) The child's overall IQ was
determined to be 76.
The state superintendent approved the application and
the program was started in September 1973.
intended for this "primary educable class" was a "teamteaching 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
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.
his work would
take place in the same classroom as the other students.
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
This constituted approximately 40 percent of their
daily classroom time, the rest of the day being spent as
While in the resource room, the newly hired teacher
taught the children with the sane materials, but at a slower
The foster parents were not told of this change in
The foster mother learned that the child was in the
segregated 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.
the child refused to dress herself and refused to eat
The foster mother then filed suit as a result of
this alleged misplacement of the child in the segregated
classroom for the mentally retarded.
The trial court held the State's acts were not subject
to judicial review because they were discretionary.
Montana Constitution (Art. 11, B 18), abolishes sovereign
immunity except in situations where the legislature, by a
two-thirds vote, enacts contrary legislation. Section 2-9102, MCA, enacted to give meaning to this constitutional
"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
See Orser v. State (1978), 178 Mont. 126, 552
P.2d 1227; No11 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 education
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, B 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.
statutes specifically govern the administration of special
For exanple, section 20-7-402, MCA, provides that
school districts "shall conply" 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
The child clearly falls within this class.
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 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.
Without specifying how the child's due process rights
were violated a right guaranteed by statute (section 20-7402 (1)(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 a i Montana
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 lived in non-English speaking homes may suffer what is
known as bilingual language interference which is caused by
the child's sudden exposure to an ~nglish-speaking envircnment.
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
A psychological evaluation which considers
the cultural factors cannot be avoided if it is to have any
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
The order of the District Court is reversed in part,
affirmed in part, and we remand for further proceedings.
- - Chief Justice
C h i e f J u s t i c e Haswell c o n c u r r i n g :
I concur i n the r e s u l t .
I n my v i e w t h e r e a r e g e n u i n e
i s s u e s o f material f a c t p r e c l u d i n g summary j u d g m e n t , R u l e 56 ( a ) ,
T h e r e a r e g e n u i n e i s s u e s of material f a c t c o n c e r n i n g
whether the school a u t h o r i t i e s followed t h e s t a t u t e s d e f i n i n g t h e
s t u d e n t ' s e l i g i b i l i t y f o r t h e s p e c i a l e d u c a t i o n program, whether
t h e school a u t h o r i t i e s followed the s t a t u t e r e q u i r i n g a f r e e
appropriate public education i n the least r e s t r i c t i v e environment
and w h e t h e r t h e n a t u r e and s e v e r i t y o f t h e c h i l d ' s h a n d i c a p was
s u c h t h a t e d u c a t i o n i n r e g u l a r classes c o u l d n o t be a c h i e v e d
These f a c t s a r e germane i n d e t e r m i n i n g w h e t h e r
t h e c h i l d w a s a f f o r d e d p r o c e d u r a l due p r o c e s s i n h e r p l a c e m e n t
and t r a i n i n g .
T h e r e a r e a l s o g e n u i n e i s s u e s o f m a t e r i a l f a c t r e l a t i n g to
n e g l i g e n c e of the d e f e n d a n t s .
The g i s t o f t h e claim i s n e g l i g e n t
m i s c l a s s i f i c a t i o n o f t h e s t u d e n t as m e n t a l l y r e t a r d e d and s u b j e c t
t o s p e c i a l e d u c a t i o n and n e g l i g e n t m i s p l a c e m e n t i n a s e g r e g a t e d
T h i s is n o t a case o f e d u c a t i o n a l m a l p r a c t i c e o f t h e
g e n r e o f W. v . San F r a n c i s c o U n i f i e d S c h o o l D i s t .
C a l .App.3rd
( 1 9 7 6 ) , 60
8 1 4 , 1 4 1 C a l . R p t r . 8 5 4 , o r Donahue v . C o p i a g u e U n i o n
F r e e School D i s t .
( 1 9 7 9 ) , 418 N . Y .
Supp.2d 3 7 5 , 3 9 1 N.E.2d
1 ALR4th 1 1 3 3 , i n v o l v i n g n e g l i g e n t f a i l u r e t o a d e q u a t e l y e d u c a t e
a c h i l d i n b a s i c academic s k i l l s .
No a c t i o n lies f o r t h i s type
o f claim f o r p u b l i c p o l i c y r e a s o n s , and A n n o t , T o r t L i a b i l i t y o f
S c h o o l s and I n s t i t u t i o n s - Higher Learning f o r
E d u c a t i o n a l M a l p r a c t i c e , 1 ALR4th 1 1 3 3 ( 1 9 8 0 ) .
H e r e t h e claim
i n v o l v e s v i o l a t i o n o f m a n d a t o r y s t a t u t e s a l l e g e d to c o n s t i t u t e
n e g l i g e n c e and d e n i a l o f p r o c e d u r a l d u e p r o c e s s .
I a g r e e with t h e m a j o r i t y ' s remarks regarding s o v e r e i g n
However, t h e s t a t u t e s make i t c l e a r t h a t t h e g o v e r n -
m e n t a l employer w i l l u l t i m a t e l y b e a r t h e burden of l i a b i l i t y
f o r t o r t s c o m m i t t e d by i t s e m p l o y e e s i n t h e s c o p e of t h e i r
S e c t i o n 2-9-103,
provides i n pertinent p a r t :
"Governmental e n t i t i e s l i a b l e f o r torts e x c e p t as
s p e c i f i c a l l y p r o v i d e d by l e g i s l a t u r e . Every
g o v e r n m e n t a l e n t i t y i s s u b j e c t to l i a b i l i t y f o r
i t s t o r t s and t h o s e o f i t s e m p l o y e e s a c t i n g
w i t h i n t h e s c o p e o f t h e i r employment o r d u t i e s
S e c t i o n 2-9-305(4),
provides i n pertinent part:
" ( 4 ) I n a n y a c t i o n i n which a g o v e r n m e n t a l
e n t i t y e m p l o y e e is a p a r t y d e f e n d a n t , t h e
e m p l o y e e s h a l l be i n d e m n i f i e d by t h e government a l e n t i t y e m p l o y e r f o r a n y money j u d g m e n t s o r
l e g a l e x p e n s e s t o which he may be s u b j e c t a s a
r e s u l t of t h e s u i t
M o r e o v e r , f o r a g o v e r n m e n t a l e m p l o y e r to be h e l d r e s p o n s i b l e t h e r e m u s t be some d i r e c t , d e t a i l e d o r d a i l y s u p e r v i s i o n
o v e r t h e employee, S t a t e v. District Court of t h e T h i r t e e n t h
J u d i c i a l D i s t r i c t ( 1 9 7 6 ) , 1 7 0 Mont. 1 5 , 5 5 0 P.2d 3 8 2 .
p r i m a r y d e f e n d a n t s are t h e s c h o o l a u t h o r i t i e s .
Here t h e
j o i n e d a m u l t i t u d e o f o t h e r d e f e n d a n t s i n h e r claim i n c l u d i n g t h e
C o u n t y o f V a l l e y and J o n e s , t h e p s y c h o l o g i s t a t t h e E a s t e r n
Montana R e g i o n a l M e n t a l H e a l t h C e n t e r .
I f subsequent discovery
o r e v i d e n c e a d d u c e d a t t r i a l r e v e a l s t h a t some o f t h e d e f e n d a n t s
h a d no s u c h close c o n n e c t i o n w i t h t h e g o v e r n m e n t a l e m p l o y e e s ,
t h e y s h o u l d be d i s m i s s e d from t h e s u i t o n a p p r o p r i a t e m o t i o n s .
For t h e above r e a s o n s , I concur i n t h e r e s u l t .
% d A d ? Justice
Mr. Justice John C. Sheehy, dissenting:
We are faced here with a difficult public policy
determination, whether courts should entertain claims
based on these or similar facts.
The District Court
concluded that they should not, and I agree.
public policy considerations are best evidenced by a review
of two recent New York cases, Donahue v. Copiague Union Free
School Dist. (1979), 391 N.E.2d 1352, 47 N.Y.2d 440; and
Hoffman v. Board of Ed. of City of N.Y.
(1979), 400 N.E.2d
317, 49 N.Y.2d 121.
Donahue involved a situation where a high school graduate
sued a school district for alleged educational malpractice
and negligent breach of a constitutional duty to educate.
Plaintiff had received a high school diploma despite being
unable to comprehend written English on a level sufficient to
enable him to complete an application for employment.
the Court of Appeals of New York held first, that the
constitutional claim must fail because no duty was ever
intended to flow from the applicable constitutional provision
to individual pupils.
As to the educational malpractice claim,
the unanimous court held that, although a complaint might on
the pleadings state a cause of action within traditional
notions of tort law, it violates public policy for the
courts to interfere with the judgment of those responsible
for the implementation of educational policies.
went on to state that "this is not to say that there may never
be gross violations of defined public policy which the courts
would be obliged to recognize and correct."
Hoffman involved a fact situation much more similar
to the one at bar.
A kindergarten student with a speech
defect was tested and determined to be mentally retarded.
~ccordingly,he was placed in a ciass for children
with Retarded Mental Development (CRMD), where he remained
for the next twelve years.
The original testing psychologist,
unsure of his findings because of the student's communicative
problems, had recommended reevaluation within the first two
Achievement tests, but no I9 tests, were administered
regularly over those 12 years.
In two of those years,
Hoffman received a 90 percentile rating in reading readiness,
but otherwise was considered to be making little progress.
At age 18, he transferred to an Occupational Training
Center, where it was discovered that his IQ was actually 94.
Since his training at the Center depended on his retarded
status, Hoffman was forced to withdraw, and suit was brought
against the Board of Education.
The suit alleged negligence
in the Board's original assessment, in their failure to retest,
and in their subsequent misclassification.
In a 4 to 3 decision, with two of the dissenters having
been in the majority in the Donahue case decided 6 months
earlier, the Court reversed the lower court which had affirmed,
as to liability, a $750,000 judgment for the plaintiff.
majority relied primarily on Donahue in stating that courts
may not substitute their judgment "for the professional
judgment of educators and government officials actually engaged
in the complex and often delicate process of educating the
many thousands of children in our schools."
The court also
decided that even under these circumstances, there were no
"gross violations of public policy."
Similar reasoning is found in an earlier California
case, Peter W. v. San Francisco Unified School ~istrict
(1976), 60 Cal.App.3d 814, 131 Cap.Rptr. 854.
Court of Appeal was faced with a claim similar to that
presented in Donahue.
After a lengthy discussion of the
duty of care involved, the court concluded:
"To hold them
to an actionable 'duty of care,' in the discharge of their
academic functions, would expose them to the tort claims-real or imagined--of disaffected students and parents in
They are already beset by social and
financial problems which have gone to major litigation, but
for which no permanent solution bas yet appeared.
The ultimate consequences, in terms of public time
and money, would burden them--the society--beyond calculation."
The same California court employed the same reasoning
in disposing of a later case of alleged improper remedial
In Smith v. Alameda Cty. Soc. Serv. Agency (1979),
90 Cal.App.3d 929, 153 Cal.Rptr. 712, one aspect of the
plaintiff's complaint against the school district was his
negligent placement in classes for the mentally retarded
under circumstances where the district allegedly knew or
should have known that he was not retarded.
and distinguishing several cases that are also cited by
appellant here, the court stated:
"None contains the slightest implication that
a school district may be held liable in money
damages for negligently placing a student in
mentally retarded classes." 153 Cal.Rptr. at
The most recent case our research has discovered
is D.S.W. v. Fairbanks No. Star Bar. Sch. Dist. (Alaska 1981),
628 P.2d 554, wherein an action was brought to recover
against a school district for negligent classification,
placement, or teaching of students suffering from dyslexia.
Citing - - W., Donahue, Hoffman, and Smith with approval,
the Alaska Supreme Court went on to state the following,
and I agree:
"In particular we think that the remedy of
money damages is inappropriate as a remedy
for one who has been a victim of errors
made during his or her education. The level
of success which might have been achieved had
the mistakes not been made will, we believe,
be necessarily incapable of assessment, rendering
legal cause an imponderable which is beyond the
ability of courts to deal with in a reasoned
way." 628 P.2d at 556.
Further, several United States Supreme Court cases have
vitiated lower court decisions which found the unintended
stigmatization from inaccurate assessment or placement to
be an actionable constitution violation.
A plaintiff seeking
to allege deprivation of his liberty interest without due
process of law on account of a special placement program
should be required to plead and prove an untrue, derogatory
publication which seriously stigmatized him in the community,
coupled with an expulsion or exclusion comparable to a
discharge of an employee.
See Codd v. Velger (1977), 429
U.S. 624; Bishop v. Wood (1976), 426 U.S. 341; Paul v. ~ a v i s
(1976), 424 U.S. 693; also 45 Missouri Law Review 667, 696
I would affirm the District Court.
I concur with the foregoing dissent.
Mr. Justice Fred J. Weber, dissenting:
I concur in the foregoing dissent of Justice Sheehy.
In view of the difference of opinion expressed by the members
of this Court, and because of the potential for claims by
disaffected students and parents in countless numbers, I
suggest that the legislature properly may consider whether
it desires to impose an appropriate limit in this type of