MEMORANDUM AND ORDER ON MOTION TO DISMISS
This matter is before the court on the defendants’ motion to dismiss, filing No. 4.
The plaintiffs, represented through their parents, i have brought a civil rights action pursuant to 42 U.S.C. § 1983, on behаlf of themselves and all other persons similarly situated, alleging that the physical conditions, care, treatment and training provided by the defendants at the Beatrice State Home for the mentally retarded do not meet constitutional standards. Specifically, the plaintiffs allege that they have not received a constitutionally minimal level of habilitation; that their commitment to the Beatrice State Home has deprived them of due process, in that less restrictive community alternatives are available which would provide them adequate care, treatment, education and training with far less restrictions upon pеrsonal liberty and the exercise of constitutional rights; that they are being denied equal protection of the law by unreasonable classifications which deny them rights and benefits which others similarly situated have; and that certain practices by the defendants constitute a form of involuntary servitude and cruel and unusual punishment. The plaintiffs request declaratory and injunctive relief pursuant to 28 U.S.C. §§ 1651, 2201 and 2202, and 42 U.S.C. § 1983.
The defendants’ motion to dismiss is bottomed on the assertion that the complaint fails to state a claim upon which relief may be granted; that the court lacks jurisdiction over the subject matter, since the complaint fails to raise a substantial federal question; and that the complaint fails to present any justiciable issue which could appropriately be adjudicated by this court.
The question fаcing this court is whether on the facts alleged in the *73 plaintiffs’ complaint a claim for relief has been presented which is cognizable for review under the Civil Rights Aсt. The defendants maintain that no federally protected right has been denied the plaintiffs, because there is no constitutional requirement that the state provide the plaintiffs with habilitative treatment at the Beatrice State Home. Moreover, the defendants assert that whether a state shall provide a particular governmental service, and the quality and quantity of that service, are questions of state, rather than federal, constitutional law.
For purposes of evaluating the defendants’ motion, this court must determine whether the plaintiffs could prove no set of facts in support of their claim which would entitle them to relief. Conley v. Gibson,
With respect to the other allegations of the plaintiffs, it is clear that serious question has been raised by federal courts in other jurisdictions concerning the applicability of the Civil Rights Act in redressing grievances of persons confined, either voluntarily or involuntarily, in state institutions for the mentally retarded. See, Wyatt v. Stickney,
As to the matter of the justiciability of the plaintiffs’ allegations, it appears that the defendants questiоn whether this court could render with any specificity an order which would resolve the controversy. The Wyatt case, supra, indicates that at least one fedеral district court judge has taken the view that affirmative and corrective orders can be fashioned in a dispute of this nature. While I in no way suggest that *74 this court would tаke the same approach, I am confident that this court could render an order prohibiting certain conduct at the Beatrice State Home if thаt conduct is shown to be in violation of the constitutional rights of the plaintiffs. The defendants further imply in their brief that the case presents purely political cоnsiderations, in that the state is the sole judge of the quality of its public services and whether to provide such services at all. While there is certainly public policy involved in a dispute of this nature, I also find that the allegations in the complaint, especially those dealing with cruel and unusual punishment, present questions оf federal law. I am not convinced that the case presents political questions only or that constitutional questions are absent. Another aspect of justiciability, that dealing with whether the case presents a case or controversy, has not been briefed by the defendants and deserves little mention here since it clearly appears that the plaintiffs have not presented this court with an abstract set of hypothetical facts. Instead, there apрears to be a concrete dispute between the parties relating to the care and treatment given at the Beatrice State Home. Accordingly, I conclude that the issues presented by the plaintiffs are justiciable.
The court has raised one further issue which must be resolved before the case сan continue. The parents of certain children residing at the Beatrice State Home have brought this action on behalf of their children. The question now is whether the parents of the named plain+'f's are the proper parties to represent -ie interests of the named plaintiffs. I cannot be insensitive to the possibility that the interests of the parents may conflict with those of the children residing at the Beatrice State Home. While the parents in all good conscience may desire one remedy, or a specific type or style of treatment for their children, it would not necessarily be in the best interests of the childrеn. Therefore, it seems to me that a discreet course would be to provide for the appointment of a guardian ad litem, who would not displace the parents as representatives of the plaintiffs but would be alert to recognize potential and actual differences in positions asserted by the рarents and positions that need to be asserted on behalf of the plaintiffs. Accordingly, an order shortly will be entered, making the appointment under Rule 17(c) оf the Federal Rules of Civil Procedure.
It hereby is ordered:
1. That the defendants’ motion to dismiss, filing No. 4, is denied; and
2. That the motion to intervene as amicus curiae, filed by the National Center for Law and the Handicapped, filing No. 9, is granted.