Landmark Education Rights Precedent:
The Gail H. Story
The notion that children with disabilities are not entitled to receive an education seems preposterous in 2020. At the beginning of my career in the 1970s, however, children with disabilities were routinely excluded from the public schools, and were deemed not to have any legal right to education services, which spurred me to become involved in pioneering lawsuits fighting for such a right.
Among the earliest court cases that the National Center for Law and the Handicapped (NCLH), my first employer after law school, became involved in was North Dakota Association for Retarded Children (NDARC) v. Peterson, a class action federal court lawsuit brought by NDARC against state education and institution officials and six named school districts on behalf of a class of children with disabilities who were not being provided meaningful and appropriate public education services. According to the complaint, filed in November 1972, almost three-quarters of North Dakota children of school age needing special education services were not receiving them. Shortly after the lawsuit was filed, NDARC contacted NCLH and requested its assistance, and the National Center agreed to participate as amicus curiae (friend of the court) in the case.
Once I was admitted to the bar, I became the NCLH attorney assigned to the North Dakota case. In March of 1973, the North Dakota legislature passed a mandatory special education law; the fly in the ointment was that it did not call for implementation until 1980, and was somewhat weak in due process procedures. From that point on my involvement in the case centered on attending meetings of the attorneys and wrangling over whether the new statute rendered the action moot or whether additional actions by the state officials were necessary.
In the course of my work on the case, I got to know Robert Vogel, a former U.S. attorney, who was working with the NDARC lawyers. Vogel was the father of a son, Bobby, born with “spina bifida,” an incomplete closing of the backbone and membranes around the spinal cord, which caused paralysis leading him to use a wheelchair. The interest of Bobby’s father, Robert Vogel, in disability rights and his connection to the NDARC case, became very significant when he was appointed to the Supreme Court of North Dakota in 1973, and, shortly thereafter, the court was presented with a case styled “In re G.H.”
The case centered on a young woman whose first name was Gail. Although the North Dakota Supreme Court belatedly tried, in the interest of protecting the privacy of a minor, to obscure her identity by using only her initials, her full name had been used in the lower court proceedings, in many of the documents filed with the Supreme Court, in the media, and in the local community. After the court proceedings were over, a North Dakota newspaper columnist wrote a profile of Gail and her life using her full name. The columnist described Gail’s early days in the following terms:
Abandoned soon after her birth by her parents, … Gail’s entrance into the world seemed a mistake. She was a quadruple amputee, which means she was born without hands and feet. One eye was missing, as were teeth. She had a cleft palate, facial distortion, an inability to speak and hearing in only one ear.
Talk about a person having the cards stacked against her! As if all that was not enough, expectations were so low that Gail was treated very badly during the first three years of her life, causing her to become seriously emotionally disturbed too.
When Gail was three years old, welfare officials sought to have her admitted to the Grafton State School – a North Dakota facility for people with intellectual disabilities. Luckily, Gail was only at the facility for a short time (a 1980 lawsuit by the A.R.C. would include the allegation that Grafton provided the worst care for its residents of any institution in the U.S.) because intellectual disability was one limitation Gail did not have. As the newspaper writer described it, hopefully sardonically, “she was a reject from the Grafton State School, but only because someone saw a glint of intelligence in the one good eye of this ‘retarded’ mishap.” At the request of the superintendent of Grafton, she was enrolled in the Crippled Children’s School in Jamestown, ND, a private charitable school, which, despite its inopportune name, had a good reputation for serving a diverse population of students with conditions including cerebral palsy, paraplegia, muscular dystrophy, arthritis, and amputations, under the direction of a dynamic superintendent, Anne Carlsen (herself born without arms and legs). Gail’s parents were unable to afford Gail’s expenses, and the county welfare board began paying the cost of foster home care for Gail in Jamestown, while Williston School District No. 1, in which Gail’s parents lived, footed the bill for tuition charges at the Crippled Children’s School.
This arrangement worked well for many years, until Gail’s parents moved away to Minnesota in 1969, after which the Williston School District stopped making tuition payments. This prompted a legal battle over who was going to pay Gail’s expenses; the parties to the resulting lawsuit included two state agencies (North Dakota’s Division of Special Education and Public Welfare Board); the school district in which Gail’s parents had lived before moving out of state and the district in which the Crippled Children’s School was located; and the local welfare boards of the counties of the school and where Gail’s parents had resided.
The unseemly battle between government agencies, treating Gail’s education expenses as a hot potato they hoped to foist off on some other government entity, reached the Supreme Court of North Dakota. Justice Vogel and his colleagues noted that “all parties … were represented by attorneys, except G.H. herself.” On its own initiative, the court requested the North Dakota A.R.C. to file a brief amicus curiae on her behalf. I soon received a phone call from Robert Lundberg, who represented the A.R.C. as a plaintiff in the pending class action suit, asking if I would write the brief. Because I was such a novice, I gulped, but it was the kind of thing NCLH was created to do, so I said that I would.
After reading the case documents that Lundberg sent me, I realized what a golden opportunity the situation presented. The state and local officials sued in the NDARC lawsuit had been unwilling to concede that children with disabilities had a legal right to a free appropriate public education. The North Dakota legislature had recently passed the law that would require such services to be provided to a large extent, but that mandate would not take effect for another seven years or more. I realized that the Hanson case offered the perfect vehicle for getting the Supreme Court of the state to declare unequivocally that public education was a right of all North Dakota children. Although the defendants were each trying to dodge financial responsibility for Gail’s education, there was no indication that any of them wanted to take the harsh position that she shouldn’t get a publicly funded education.
I envisioned a brief that would focus mostly on the right of children with disabilities to equal educational opportunity under the federal and state constitutions, and less on the issue of which government entity should pay Gail’s educational expenses. I was well-aware of the legal precedents around the country for the proposition that children with disabilities were entitled to a free public education, but I would need to marshal some North Dakota law as well. And though I would not spotlight the issue of which school district should pay, I thought that if I could help the court with that issue as well, it could only enhance our chances of success.
With that design in mind, I entered into the most underappreciated aspect of legal advocacy – legal research – at the time, with few computers and no internet, that meant research by hand in a law library. I found myself deep in the stacks of the Notre Dame Law School library one night at nearly 11 o’clock, rummaging through dusty old North Dakota law books. Digging deep, I happened across a 1932 decision of the Supreme Court of North Dakota (the same court that would decide the G.H. case) titled Anderson v. Breithbarth. My eyes grew wide when I read the following words: “The historic policy of this state … is to maintain a free public school system for the benefit of all children within specified age limits” (emphasis added). And the 1932 court went on to say: “The schools must be free, open and accessible. The general policy is not to limit or circumscribe, but to be all-inclusive and comprehensive. So definite is this policy that attendance at schools is compulsory …. The policy is not to shut out a pupil but to compel attendance.” Accordingly, the court recognized the “intention on the part of the state that all the children within its borders shall enjoy the opportunity of a free education.” I was practically hyperventilating by this point. Was it too much to hope for even more good language in the opinion?
As I read on, I found, some pages later, wording regarding who might be responsible to foot the bill for Gail’s education. The court stated that “[t]o carry out this policy [that the public schools provide education to all children] school districts are formed, and the children ‘residing in the district’ are entitled to the privileges.” It turned out that Anderson v. Breithbarth involved a child whose parents moved to another state and left her to live with an aunt in North Dakota. When the aunt enrolled the girl in the local school, the school district challenged her right to attend its school unless it was paid tuition by either the school district in North Dakota where the parents had resided or that to which the parents had moved. The Anderson court ruled that a child’s residence for school purposes can be different from the domicile of the parents, and that the child’s residence is controlling.
I suspect that the few patrons still in the library at that hour wondered why a wide-eyed guy was jumping up and down in the aisle with an old law book in his hands and a huge grin on his face. I was yelling to myself (I don’t think I said it aloud), “This opinion is going to win my case! This opinion is going to win my case!”
High expectations and visions of judicial victory aside, I still had to write the brief. Building on the North Dakota Supreme Court’s concern about all parties to the case having legal representation other than Gail, I began with what I thought was a dramatic note:
Amidst the clamor emanating from the various governmental agencies on behalf of their rights in this case, there has been not even a whisper concerning the rights of the child involved. The administrative buck-passing presents an appearance of total disregard for the welfare of the young girl whom it is the duty of these governmental agencies to serve.
I followed this introduction with the quotation from the Anderson opinion about North Dakota’s policy “that all the children within its borders shall enjoy the opportunity of a free education,” and then launched into a lengthy discourse on court decisions from various parts of the country endorsing the right to equal educational opportunity under the U.S. and state constitutions, before bringing it back full circle by quoting more language from the Anderson decision. From that foundation, I argued that the failure to provide Gail H. an equal educational opportunity would violate equal protection of the laws guarantees of the U.S. and North Dakota constitutions.
The final major contention was that equal educational opportunity for Gail meant that she was entitled to a free publicly supported educational program provided by the school district in which she resided. In a short section, I quoted the Anderson pronouncements that the child’s residence is the controlling factor, and declared that, while the brief would not present any extended discussion about the pros and cons regarding which school district should pay, “the most logical candidate would seem to be Williston School District No. 1,” where Gail lived originally and was the school district of the county welfare board having custody over her. In the Conclusion section of the brief, I asked the court, among other relief, to declare “a constitutional right to equal educational opportunity, and that school districts may not deny the right of any child with a disability to an appropriate program of free public education and to constitutionally adequate procedures for notice, hearing, and periodic review of educational placement and programs.”
Not too surprisingly, after we filed our brief, the court let Bob Lundberg know that the justices wanted us to appear at oral argument in the case. Bob informed me in no uncertain terms that since I had written the brief I should do the oral argument. I confess to being unnerved by the prospect. At that point, I had been out of law school for about nine months; apart from moot court exercises as a student, I did not have any appellate court experience, much less experience speaking to the highest court of a state. Could I do it? Would I freeze up, forget everything I planned to say, stand in front of the court in silent embarrassment, and betray the educational rights of millions of children with disabilities?
As the oral argument approached, I tried to quiet my anxiety by telling myself over and over that I knew the precedents and analysis in this area of the law better than any of the other attorneys in the case, and that our brief made strong points that I could recite in my sleep. I also made copious notes of what I planned to say in front of the court, and rehearsed it many times. Still, when I entered the towering North Dakota State Capitol building in Bismarck and walked into the imposing Supreme Court courtroom, I was very nervous. Attorneys for the various state and county government agencies each made their arguments pointing the finger away from their particular clients regarding Gail’s education costs. When it came my time to speak and I made my way to the podium and looked up at the five robed justices in their tall chairs on their elevated platform, I was happy that the podium hid my shaking legs from the justices’ view.
My plan for beginning my presentation was simple: I was just going to make a brief remark about being pleased at the opportunity to address the court, and then launch into the key points of the arguments from my notes. I took a deep breath, made eye contact with the justices and began: “May it please the court, I am glad to be here in Iowa.” As I heard what had come out of my mouth, I wanted to crawl into a hole and disappear. I had blurted out “Iowa,” not “North Dakota” – surely a great way to make a good impression on these North Dakota jurists! I had no idea why I said “Iowa.” At that point in my life, I had never even been to Iowa. Perhaps my subconscious was angry at me for making it do this difficult, nerve-wracking oration and wanted to sabotage me? All I knew was that I could hardly have made a worse beginning.
What followed was a moment of silence during which everyone took in the faux pas I had committed. Then Justice Vogel (bless his heart) let out a small chuckle, and said, “Mr. Burgdorf, we’ve been working you too hard.” I managed a shy smile, and then heard the other justices join in good-natured laughs. It struck me that maybe doomsday was not yet upon me. With a minimum of fumbling, I managed to get on track with my arguments and began talking about the legal precedents in favor of equal educational opportunity for children with disabilities. I described what was happening nationwide and then told the court that fortunately North Dakota had resolved the issue long ago. I read the favorable language from Anderson v. Breithbarth and then recited the legal citation where the opinion could be found. When I saw all five justices reach for their pens and jot down the citation, I felt pretty sure that I had accomplished my mission. I finished the rest of my comments and received a minimum of questions from the panel, and let out a sigh of relief as I left the podium. Except for my disastrous opening, I felt pretty good about how the argument had gone. Of course, I couldn’t be sure.
Then began the difficult period of waiting for the court to enter its decision. As the weeks passed, I checked the incoming mail anxiously each day. An envelope containing the court’s ruling finally arrived at the NCLH office on a day on which I was at home. When it was dropped off at our house, I decided for some reason to walk over to one of the grassy fields near the Notre Dame campus and open the packet there. On pins and needles, I skimmed the opinion, written by Justice Vogel (hurray). It was all I could have hoped for! After quoting the language from the Anderson decision about a constitutional right of all North Dakota children to free public education, the court proceeded to adopt the contentions I had made about the right of children with disabilities to equal educational opportunity. Citing many of the cases I had discussed in our brief, the court ruled that Gail “is entitled to an equal educational opportunity under the Constitution of North Dakota, and that depriving her of that opportunity would be an unconstitutional denial of equal protection under the Federal and State constitutions ….” Again relying on the Anderson precedent, the court further held that Gail’s residency was controlling as to which school district was responsible for her education expenses, and that the Williston School District No. 1, where Gail lived originally, was liable for these payments, adding that, if the district had had proper facilities for educating children with disabilities, “she would no doubt still be living there.”
By the time I got to the signatures of the five justices at the end of the opinion, I was flying high. I was acutely aware that In re G. H. was the first ruling by the highest court of any state recognizing that children with disabilities have a constitutional right to appropriate public education as a matter of equal protection, and that it would have powerful precedential impact on future cases around the country. Alone in the middle of a field, I was unsure what to do with my feelings of exultation. Quite uncharacteristically, I started spinning and dancing around exuberantly, laughing and beaming. I finally stopped prancing so that I could get to the office to write a short cover memo to attach to the opinion and send it to all the attorneys handling disability education cases around the country and other people who I thought would be interested.
The litigation over expenses for Gail’s education had no appreciable direct impact on her personal situation, as she continued to attend the Crippled Children’s School. Things seem to have gone pretty well for her, however. The Fargo-Moorhead Sunday Forum profile of her two years after the N.D. Supreme Court ruling reported that she was “a responsive, enthusiastic student, doing well in her pre-vocational training,” and had recently attended the school prom. During her time at the school, Gail underwent a series of cosmetic and remedial surgeries. One of those operations, called the Krukenberg procedure, was sometimes performed in those days before sophisticated prostheses; it involved splitting the stump of Gail’s right forearm to form two thumb-like parts that functioned as pincers, giving her the ability to handle pencils, paint brushes, and tableware, and even allowed her to play the organ and piano. With suitable prosthetic devices, she was able to master walking, running, and riding a bike quite well. Her drawing skills prompted school officials to envisage a career as an industrial artist for her. A school official described her progress in the following terms: “Today, Gail is a confident, self-assured young lady. She still has frustrations when she isn’t understood, but the speech and physical therapy, plus the loving care of dozens of school workers, has made Gail virtually independent. And, more important, she has a feeling of self-worth.”
 North Dakota Association for Retarded Children v. Peterson, Civil Action No. 1196 (D.N.D., filed Nov. 28, 1972).
 James C. Baccus, “Gail Hanson: Handicap No Barrier to Living,” Fargo-Moorhead Sunday Forum, Mar. 21, 1976, p. E-4).
 63 N.D. 709, 245 N.W. 483 (1932).
 218 N.W.2d 441 (N.Dak. 1974).
 James C. Baccus, “Gail Hanson: Handicap No Barrier to Living,” Fargo-Moorhead Sunday Forum, Mar. 21, 1976, p. E-4).