Students of California School for the Blind v. Bill Honig, in His Capacity as Superintendent of Public Instruction of the State of California

with whom Circuit Judges GOODWIN, WALLACE, KENNEDY, POOLE, and BEEZER join, dissenting from failure to take en banc:

I dissent from the failure of this court to consider en banc the correctness of those portions of this court’s panel decision in Students of Calif School for the Blind v. Honig, 736 F.2d 538 (9th Cir.1984), that construed the Education for All Handicapped Children Act of 1975 (EAHCA), 20 U.S.C. §§ 1232 , 1400-1401, 1405-1406, 1411-1420, 1453 (1982). The panel’s construction, in my opinion, is erroneous and clearly unnecessary to the result the panel reached. It also reflects an insensitivity to the most recent relevant Supreme Court pronouncements and to the principles of federalism those pronouncements sought to explicate. Finally, it disregards the limits on “creative interpretation” that a keener appreciation of the doctrine of separation of powers would have imposed.

I.

In Students, a group of handicapped students challenged the California Department of Education’s (the Department) proposed move of its residential school for the blind from Berkeley to Fremont on the basis that the Department had failed to test the Fremont facility adequately for seismic…