Brian B. v. Pennsylvania Dept. of Educ.

• Decision Date: 18 June 1999
• Docket Number: No. Civ.A. 96-7991.,Civ.A. 96-7991.
• Citation: 51 F.Supp.2d 611
• Parties: BRIAN B., et al. v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF EDUCATION, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

51 F.Supp.2d 611

BRIAN B., et al. v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF EDUCATION, et al.

No. Civ.A. 96-7991.

United States District Court, E.D. Pennsylvania.

June 18, 1999.

Marsha L. Levick, Laval S. Miller-Wilson, Philadelphia, PA, Alyssa R. Fieo, Philadelphia, PA, for Brian B., by and through his mother, Lois B., Abdul R., by and through his mother, Dena R., Byron A., by and through his mother, Carrie W., Ronelle W., by and through his mother, Pamela J., Steven S., by and through his guardian, Nancy F., Jeremiah M., by and through his mother, Susan M., Anthony T., by and through his mother, Christine H., Kenneth R., by and through his mother, Nancy R., Plaintiffs.

Michael L. Harvey, Office of Attorney General, Harrisburg, PA, for Commonwealth of Pennsylvania Department of Education, Eugene Hickok, Defendants.

Natalie M. Habert, Beatty, Young, Otis and Lincke, Media, PA, for Garnet Valley School District, Defendant.

Robert T. Lear, Philadelphia, PA, for Philadelphia School District, Defendant.

Michael I. Levin, Michael I. Levin And Associates, P.C., Huntingdn Valley, PA, for Central York School District, Defendant.

OPINION

POLLAK, District Judge.

A Pennsylvania statute enacted in 1997, 24 P.S.A. § 13-1306.2(a), authorizes Pennsylvania school districts to withhold education from persons of school age who are incarcerated in county correctional institutions following conviction as adults. The statute states that "[a] person under twenty-one (21) years of age who is confined to an adult local correctional institution following conviction for a criminal offense who is otherwise eligible for educational services as provided under this act shall be eligible to receive educational services from the board of school directors in the same manner and to the same extent as a student who has been expelled...." Since students who have been "expelled" are only entitled to very meager "educational services," if any, the effect of this statute is to authorize the withholding of all or virtually all education from persons of school age who are incarcerated, pursuant to conviction, in county correctional institutions — as distinct from persons of school age who are incarcerated, pursuant to conviction, in state correctional institutions or who are confined, pursuant to adjudication of delinquency, in juvenile detention facilities; state correctional institution inmates of school age and juvenile detention facility inmates of school age must be provided the same education guaranteed to all other Pennsylvania residents of school age. In their motion for a preliminary injunction restraining the enforcement of 24 P.S.A. § 13-1306.2(a), plaintiffs claim that the statute's disparate treatment of those whom they view as similarly situated groups of inmates violates the equal protection clause. The extensive record developed by the parties on the motion for a preliminary injunction lends strong support to plaintiffs' contention that withholding education from any category of inmates of school age, pursuant to 24 P.S.A. § 13-1306.2(a), is a policy freighted with gravely detrimental social consequences. Nonetheless, I am not persuaded that there is a reasonable probability that at a final hearing on the merits I would conclude that this barely-arguably-penny-wise but almost-indisputably-pound-foolish statute is unconstitutional. Accordingly, I must deny the motion for a preliminary injunction.

I. Facts and Procedural History

Plaintiffs are a class¹ of persons under the age of twenty-one presently confined in so-called "local [i.e., county] correctional institution[s]."² In December of 1996, Brian B. and five other young men brought this action against the Pennsylvania Department of Education, Department of Education Secretary Eugene Hickok ["Secretary Hickok" or "the Secretary"], and the school districts in which Delaware County Prison, Philadelphia House of Corrections, and York County Prison are located, alleging "violations of their rights to basic and special education as guaranteed them by the United States Constitution, federal statutes and state law." Amended Compl. at 1-2.³

The Pennsylvania Public School Code requires school districts to provide free educational services to persons under the age of twenty-one residing within their boundaries.⁴ When plaintiffs filed their original complaint, the Pennsylvania Public School Code generally required that, at the high school level, this education consist of five and a half hours of instruction per day — 27.5 hours per week — for 180 days per year. No distinction was made between incarcerated and unincarcerated persons. 24 P.S.A. §§ 13-1306, 13-1306.2. Though the Public School Code did not distinguish between incarcerated and unincarcerated persons, practice did. Education was generally not provided to persons under the age of twenty-one incarcerated in county correctional institutions, though it was provided to persons of the same age incarcerated in state correctional institutions or held in juvenile facilities. After plaintiffs initiated this action challenging that practice, the Pennsylvania legislature amended the Public School Code to codify the practice. The pertinent Code provision — Section 13-1306.2(a) — now reads in relevant part:

(a) A person under twenty-one (21) years of age who is confined to an adult local correctional institution following conviction for a criminal offense who is otherwise eligible for educational services as provided under this act shall be eligible to receive educational services from the board of school directors in the same manner and to the same extent as a student who has been expelled pursuant to section 1318.

24 P.S.A. § 13-1306.2(a). Expelled students under the age of seventeen are entitled to "some [educational] provision," 22 Pa.Code § 12.6 — but "some" has been construed to be a minimal guarantee. See Abremski v. Southeastern Sch. Dist. Bd. of Directors, 54 Pa.Cmwlth. 292, 421 A.2d 485, 488 (1980). Expelled students who have reached their seventeenth birthday are not entitled to any education. 22 Pa. Code § 12.6. Thus, the effect of 24 P.S.A. § 13-1306.2(a) is to substantially curtail, or wholly eliminate, the educational entitlement of convicted county correctional institution inmates under the age of twenty-one.

In November of 1997 — nearly a year after the initiation of this litigation — plaintiffs entered into an Interim Agreement with the Pennsylvania Department of Education and Secretary Hickok [the "Commonwealth defendants"], after which plaintiffs and the Commonwealth defendants jointly requested that this court hold in abeyance all motions pending against the Commonwealth defendants with the exception of plaintiffs' "claims against Secretary Hickok challenging the constitutionality of 24 P.S.A. § [13-]1306.2(a) under the Equal Protection Clause of the Fourteenth Amendment and Plaintiffs' request that the Court enjoin the enforcement of 24 P.S.A. § [13-]1306.2(a)." Interim Agreement ¶ 10. An order to this effect was entered on November 24, 1997. The sole question now before this court is whether plaintiffs are entitled to a preliminary injunction pending a full trial determining whether 24 P.S.A. § 13-1306.2(a) violates the equal protection clause.

Because questions of justiciability have been raised, it may be useful to review events leading up to the preliminary injunction hearing. Plaintiffs filed their motion for a preliminary injunction on May 21, 1997. Over the next two months, each school district filed a separate response, and the Commonwealth defendants filed a joint response. On August 26, 1997, plaintiffs filed an amended complaint; shortly thereafter, the Commonwealth defendants filed a motion to dismiss, as did each of the three school districts. On November 10, 1997, the plaintiffs and the Commonwealth defendants executed the Interim Agreement referred to in the previous paragraph. The Interim Agreement provisionally resolved all claims related to special education and to the basic education of pretrial detainees. Prior to the scheduled hearing on the motion for a preliminary injunction, the plaintiffs and the Commonwealth defendants — but not the individual school districts — filed pre-trial briefs.

A telephone conference was held on November 21, 1997, during which this court discussed, with all parties, procedural matters related to the upcoming preliminary injunction hearing. In this telephone conference, the local school districts expressed their willingness to rest on the Commonwealth defendants' defense of § 13-1306.2(a), and it was decided that the school districts' presence at the preliminary injunction hearing was not essential, though they were welcome to attend. The preliminary injunction hearing began on November 24, 1997, with counsel for the plaintiffs, the Commonwealth defendants, and the Central York School District present. The plaintiffs and the Commonwealth defendants submitted a joint stipulation to over a hundred facts, as well as a series of stipulated documents. None of the individual school districts contested the accuracy or authenticity of any of the information or documents set forth in the stipulations. On the first day of the hearing, the Commonwealth defendants argued — as they had not in their motion to dismiss plaintiffs' amended complaint — that there was no case or controversy between the plaintiffs and them. See 11/24/97 Tr. at 36-57.

The next day, at the close of plaintiffs' case-in-chief, the Commonwealth defendants resumed their argument that the case was not justiciable with respect to them. I did not rule on the issue at that time, and instead invited counsel for the Philadelphia School District and Garnet Valley School District to join the proceedings. Because the school districts remained parties to the action and there was a possibility that the Commonwealth defendants would be determined not to be proper defendants, I informed the school...