Eberle v. BOARD OF PUBLIC ED. OF SCH. DIST., ETC., Civ. A. No. 77-1147.
| Decision Date | 26 October 1977 |
| Docket Number | Civ. A. No. 77-1147. |
| Citation | 444 F. Supp. 41 |
| Parties | Stephen Michael EBERLE, a minor, by his parents and natural guardians, William and Gloria Eberle, and William and Gloria Eberle, in their own right, Plaintiffs, v. The BOARD OF PUBLIC EDUCATION OF the SCHOOL DISTRICT OF PITTSBURGH, PENNSYLVANIA, Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Joseph M. Ludwig, Pittsburgh, Pa., for plaintiffs.
Justin M. Johnson, Sol., Persifor S. Oliver, Jr., Asst. Sol., Bd. of Ed. of the School Dist. of Pittsburgh, Pittsburgh, Pa., for defendant.
Stephen Eberle is a seven year old child with profound hearing loss. This action is brought by Stephen and his parents for review of the placement of Stephen in a special education class for the hearing impaired in the Pittsburgh Public School System. Jurisdiction is alleged under Title VI, Section 615 of the Education for All Handicapped Children Act, 20 U.S.C. § 1415.
Defendant, the Board of Public Education of the School District of Pittsburgh, Pennsylvania (School Board), has moved to dismiss this action on the basis of res judicata, their interpretation of § 615, and the impropriety of retroactive application of this act. We find the retroactivity argument meritorious, and dismiss for lack of jurisdiction. We do not reach the other arguments.
I
The parties stipulate that Stephen is a child of above average intelligence and is affected by profound hearing loss. The complaint indicates that as a result of his condition, Stephen has required special instruction from an early age to enable him to gain skills necessary for his optimal development. The School District has not, until recently, offered this instruction. Consequently, Stephen has been attending classes at the Western Pennsylvania School for the Deaf (WPSD), a private institution, at the School District's expense. Stephen has been attending the WPSD since 1973.
Commencing with or sometime prior to the 1976-77 school year, the School District instituted its own program for hearing impaired children at the Beechwood School (Beechwood). The Beechwood program utilizes a method known as the "total communications program." This method is the predominant method of training deaf children in the United States, and there is no indication of inadequacy of the Beechwood program. This program centers around the use of hand signs as a means of communication.
The Beechwood program differs from the WPSD program. The WPSD program, known as the "verbotonal program," appears to be centered around the development of the child's residual hearing ability. This method is relatively new to this country. WPSD is one of the very few verbotonal schools in the United States.
With the institution of the Beechwood program, the School District began to transfer children to whom the program was thought to be appropriate from the WPSD to Beechwood. Stephen was one of the students transferred. Because Stephen had already undergone four years of verbotonal training, his parents feared that gains which Stephen had made would be lost and further gains impaired by placement in a total communications program. As a result, they oppose his transfer.
Pursuant to the regulations of the Secretary of Education of the Commonwealth of Pennsylvania, a due process hearing was held regarding this transfer on October 18, 1976. On November 5, 1976, the hearing officer submitted a decision approving the transfer. Exceptions were timely filed with the Secretary of Education. The Secretary took no action during the 1976-77 school year, and Stephen was permitted to continue at the WPSD for that term. At the completion of the term, the Eberles were informed that the School District intended to transfer Stephen to Beechwood at the beginning of the 1977-78 term. A second due process hearing was demanded, presumably due to changed circumstances, or the yearly right of hearing provided for in the Secretary's regulations. No hearing was granted. On September 8, 1977, the Secretary of Education affirmed the determination of the hearing officer as submitted on November 5, 1976. It is that decision which caused this action to be brought here.
The Eberles allege jurisdiction in this court over this action based on the Education for All Handicapped Children Act. The Education of Handicapped Children Act does contain a jurisdictional grant. However, the main purpose of the Act is the funding of special schools for the handicapped. The jurisdictional grant is one of a number of procedural safeguards attendant to the Act, insuring the equitable and efficient use of the funds by the states. Upon acceptance of federal funds, the states are required to set up certain procedures for review of administrative decisions concerning the assignment of students. These review procedures are then to be brought to this court (or a state court of competent jurisdiction) for review. The effective date of these provisions is October 1, 1977. 20 U.S.C. § 1411. The question before us is whether this court has jurisdiction over an action which has proceeded through state review prior to the effective date of the Act. The complaint in this court was filed subsequent to the effective date of the Act. To determine whether the act should be retrospectively applied, it is necessary to examine the Act in light of the allegations of the complaint.
The due process procedure to be set up by the states and our jurisdictional grant are included in Title VI, § 615 of the Act. Section 615 is a somewhat detailed provision. Only a small portion of § 615 is relevant to our jurisdiction, however. Subsection (e)(1) provides:
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