Armstrong v. Kline, Civ. A. No. 78-172

• Decision Date: 21 June 1979
• Docket Number: Civ. A. No. 78-172,78-132 and 78-133.
• Citation: 476 F. Supp. 583
• Parties: Patricia ARMSTRONG et al. v. Caryl KLINE et al. Patricia Sue BATTLE et al. v. COMMONWEALTH OF PENNSYLVANIA et al. Natalie BERNARD et al. v. COMMONWEALTH OF PENNSYLVANIA et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

476 F. Supp. 583

Patricia ARMSTRONG et al. v. Caryl KLINE et al.

Patricia Sue BATTLE et al. v. COMMONWEALTH OF PENNSYLVANIA et al.

Natalie BERNARD et al. v. COMMONWEALTH OF PENNSYLVANIA et al.

Civ. A. Nos. 78-172, 78-132 and 78-133.

United States District Court, E. D. Pennsylvania.

June 21, 1979.

Janet F. Stotland, Education Law Center, Philadelphia, Pa., Sylvia Meek, Philadelphia, Pa., for plaintiff.

Robert Lear, Legal Dept., School Dist. of Philadelphia, Philadelphia, Pa., Allen C. Warshaw, Pa. Dept. of Justice, Harrisburg, Pa., William Lincke, Media, Pa., Vram Nedurian, Newtown Square, Pa., Elinore O'N Kolodner, Robert A. MacDonnell, Obermayer, Rebmann, Maxwell & Hippel, Philadelphia, Pa., for defendant.

Michael L. Levin, Cleckner & Fearen, Harrisburg, Pa., amicus curiae.

Leonard Rieser, U. S. Dept. of Justice, Washington, D.C., amicus curiae.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

NEWCOMER, District Judge.

                                    CONTENTS
                  I. Introduction                                      585
                 II. Factual Findings                                  585
                     A. Parties                                        585
                     B. Defendants' Procedures, Practices and
                        Policies                                       586
                     C. Plaintiffs' Attempt to Challenge the 180
                        Day Rule Prior to Instituting Suit             587
                     D. Characteristics of the Class and of
                        Named Plaintiffs Relevant to Their
                        Educational Needs                              588
                        1. The Severely and Profoundly Impaired
                           by Mental Retardation                       588
                        2. The Severely Emotionally Disturbed          589
                     E. The Educational Process with Respect
                        to SPI and SED Children                        590
                        1. The Educators' Goals for SPI and
                           SED Children                                590
                        2. The Educational Program                     591
                        3. Teaching Methods                            591
                        4. Factors Affecting Learning                  592
                

                     F. The Effects of Breaks in Programming           592
                        1. Regression                                  593
                           (a) SPI Children                            593
                           (b) SED Children                            596
                        2. The Time Required to Recover from
                           Regression Caused by Breaks in Programming  596
                        3. The Effect of Programming Breaks
                           on the Educational Development of
                           SPI and SED Children                        597
                III. The Law and Its Conclusions                       600
                     A. Plaintiffs' Claim Under the Education
                        for All Handicapped Children Act of
                        1975                                           601
                        1. Exhaustion                                  601
                        2. The Education for All Handicapped
                           Children Act and the 180 Day Rule           602
                

I. INTRODUCTION

In January 1978, five handicapped children and their parents commenced three class action lawsuits. Plaintiffs allege that defendants violated and continue to violate plaintiff children's constitutional and statutory rights by denying them a free publicly funded education in excess of 180 days, the provision of which they seek to compel in these suits. Since the actions began, one plaintiff, Patricia Battle, has turned twenty-one and, therefore, no longer seeks nor is eligible for future educational placement; however, she, as well as plaintiff Natalie Bernard, seeks damages for defendants' alleged deprivation of her rights.

The trial of this matter demonstrates the important and difficult role the judiciary must play in the expanding field of educational law. In the 1970's, through judicial action¹ and federal legislation,² the rights of handicapped children have been enlarged and guaranteed and they and their parents have been given the power to enforce those rights in several forums, including federal court.³ But when they come to court, as they do here, they ask it to rule on issues of law and to resolve factual debates between educators in a field with which the courts, to this point, have had little familiarity. Thus, besides determining questions of statutory interpretation of first impression, the Court here is called on to decide what effect interruptions in programming have on handicapped children, an issue on which educators disagree. Rendering these determinations are difficult, but they are crucial if the rights of handicapped children are to be protected.

For purposes of trial on their common injunctive and declaratory issues, the three lawsuits were consolidated, and trial on those issues was held in March 1979.

II. FACTUAL FINDINGS

A. Parties

The named plaintiff children are: John Garrett (Gary) Armstrong, Richard H., Mark Anderson, Patricia Sue Battle and Natalie Bernard. The children's parents are also named as plaintiffs.

Plaintiff Gary Armstrong is eight years old and is classified for educational purposes as severely and profoundly impaired. He resides with his parents, plaintiffs John and Patricia Armstrong, in the Philadelphia School District. Presently, Gary attends a public Philadelphia School District facility as a day student, in a class for the severely and profoundly impaired.

At eighteen years old, plaintiff Richard H.'s primary handicap is a severe emotional disturbance. Attending Elwyn Institute, Richard is in a five-day a week, 180 day residential program. He and his mother, plaintiff Norma H., are residents of the Philadelphia School District.

Plaintiff Mark Anderson also is handicapped by a severe emotional disturbance. Mark, who is nineteen, is a twelve month residential student at the Devereux Foundation. Plaintiff Eloise Anderson, Mark's mother, resides in the Philadelphia School District.

When suit was instituted, plaintiff Patricia Sue Battle was twenty years old, attending as a residential student, The Woods Schools. She is severely emotionally disturbed and brain injured, and her parents, June and Donald Battle, reside in the Abington School District.

Plaintiff Natalie Bernard is seventeen years old. Severely mentally retarded, as well as orthopedically handicapped, she is a residential student at Elwyn Institute. With her parents, plaintiffs Clara and Robert A. Bernard, she resides within the Marple Newtown School District.

By Order dated February 21, 1979, the action captioned Armstrong v. Kline, Civil Action No. 78-172, was certified as a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure on behalf of a class composed of:

"All handicapped school aged persons in the Commonwealth of Pennsylvania who require or who may require a program of special education and related services in excess of 180 days per year and the parents or guardians of such persons."

As the other two related cases were consolidated with the Armstrong action, no additional certifications were required and the consolidated actions are now proceeding on behalf of the above-described class.

In all three actions, plaintiffs instituted suit against the then Secretary of Education, Caryl M. Kline, in her official capacity. In addition, Gary Armstrong, Richard H., Mark Anderson and their parents sued the School District of Philadelphia, the Superintendent of the School District, Michael Marcase, and members of the Philadelphia Board of Education. Besides the Secretary of Education, Patricia Sue Battle brought her action against the Abington School District, Dr. Carl B. Hoffman who is the Superintendent of the Abington School District, The Woods Schools and Dr. Harold S. Barbour, President of The Woods Schools. Similarly, Natalie Bernard also named the following individuals and entities as defendants: the Marple Newtown School District; Glenn M. Sanner, Superintendent of the Marple Newtown School District; Elwyn Institute; and, Dr. Gerald R. Clark, President of Elwyn Institute.

Defendant school districts and the Department of Education (DOE), of which defendant Kline was the chief official, are recipients of federal financial assistance, including, but not limited to, funds received under the Education for All Handicapped Children's Act. As the state educational agency, the DOE is responsible for insuring that free and appropriate special educational services are provided to all handicapped school-aged persons in Pennsylvania. Defendant Philadelphia, Abington and Marple Newtown School Districts are local educational agencies, and defendant The Woods Schools and Elwyn Institute are approved private schools that may provide services to handicapped children and be eligible for reimbursement from public funds for the provision of those services.

B. Defendants' Procedures, Practices and Policies

The Department of Education, which has paramount responsibility within the Commonwealth for the design and financing of publicly funded education for handicapped and non-handicapped children, requires local school districts and their agencies to develop annually an individualized education program (IEP) for each handicapped child. The IEP maps out the child's educational program and placement, detailing the degree to which the child will be in special and regular settings, his or her current functioning level, short- and long-term educational goals, and the methods by which they are to be achieved. Before the IEP is formulated, the child is evaluated by educational and medical personnel appropriate to that child's handicap. A multidisciplinary team composed of persons familiar with the child then reviews these evaluations and all other relevant data and determines the type of educational program that it believes appropriate in light of the nature and severity of the child's handicapping condition. The child's parents or guardians review the IEP with the educators and are permitted to comment on it.

If parents disagree with the school district or the DOE about any aspect of their child's...