Pennsylvania Ass'n, Ret'd Child. v. Commonwealth of Pa., No. 71-42.

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: ADAMS, Circuit , MASTERSON and BRODERICK
• Citation: 343 F. Supp. 279
• Parties: The PENNSYLVANIA ASSOCIATION FOR RETARDED CHILDREN et al., Plaintiffs, v. COMMONWEALTH OF PENNSYLVANIA et al., Defendants.
• Docket Number: No. 71-42.
• Decision Date: 05 May 1972

343 F. Supp. 279

The PENNSYLVANIA ASSOCIATION FOR RETARDED CHILDREN et al., Plaintiffs,
v.
COMMONWEALTH OF PENNSYLVANIA et al., Defendants.

No. 71-42.

United States District Court, E. D. Pennsylvania.

May 5, 1972.

343 F. Supp. 280

COPYRIGHT MATERIAL OMITTED

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Thomas Gilhool, Philadelphia, Pa., for plaintiffs

Edward A. Weintraub, Deputy Atty. Gen., Harrisburg, Pa., for Commonwealth of Pennsylvania and all named defendants.

William B. Arnold, Lancaster, Pa., for Lancaster-Lebanon Intermediate Unit.

John D. Killian, Harrisburg, Pa., for Pennsylvania Association of Private Schools for Exceptional Children.

Before ADAMS, Circuit Judge, MASTERSON and BRODERICK, District Judges.

OPINION, ORDER AND INJUNCTION

MASTERSON, District Judge.

This civil rights case, a class action, was brought by the Pennsylvania Association for Retarded Children¹ and the parents of thirteen individual retarded children on behalf of all mentally retarded

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persons between the ages 6 and 21 whom the Commonwealth of Pennsylvania, through its local school districts and intermediate units, is presently excluding from a program of education and training in the public schools.² Named as defendants are the Commonwealth of Pennsylvania, Secretary of Welfare, State Board of Education and thirteen individual school districts scattered throughout the Commonwealth. In addition, plaintiffs have joined all other school districts in the Commonwealth as class defendants of which the named districts are said to be representative

The exclusions of retarded children complained of are based upon four State statutes: (1) 24 Purd.Stat. Sec. 13-1375³ which relieves the State Board of Education from any obligation to educate a child whom a public school psychologist certifies as uneducable and untrainable. The burden of caring for such a child then shifts to the Department of Welfare which has no obligation to provide any educational services for the child; (2) 24 Purd.Stat. Sec. 13-1304⁴ which allows an indefinite postponement of admission to public school of any child who has not attained a mental age of five years; (3) Purd.Stat. Sec. 13-1330⁵ which appears to excuse any child from compulsory school attendance whom a psychologist finds unable to profit therefrom and (4) 24 Purd.Stat. Sec. 13-1326⁶ which defines compulsory school age as 8 to 17 years but has been used in practice to postpone admissions of retarded children until age 8 or to eliminate them from public schools at age 17.

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Plaintiffs allege that Sections 1375 (uneducable and untrainable) and 1304 (mental age of 5 years) are constitutionally infirm both on their faces and as applied in three broad respects. First, plaintiffs argue that these statutes offend due process because they lack any provision for notice and a hearing before a retarded person is either excluded from a public education or a change is made in his educational assignment within the public system.⁷ Secondly, they assert that the two provisions violate equal protection because the premise of the statute which necessarily assumes that certain retarded children are uneducable and untrainable lacks a rational basis in fact.⁸ Finally, plaintiffs contend that because the Constitution and laws of Pennsylvania guarantee an education to all children,⁹ these two sections violate due process in that they arbitrarily and capriciously deny that given right to retarded children. Plaintiffs' third contention also raises a pendent question of state law, that is, whether the Pennsylvania Constitution as well as other laws of the Commonwealth already afford them a right to public education.

It is not alleged that Sections 1330 (excusal from compulsory attendance) or 1326 (definition of compulsory school age) are facially defective under the United States Constitution. Rather, plaintiffs contend that these provisions violate due process (lack of a prior hearing) and equal protection (no basis in fact to support exclusion) as applied to retarded children.

In addition, plaintiffs contend that the clear intent of Section 1330 is to forgive parents from any criminal penalty for what otherwise would be a violation of compulsory attendance requirements, and consequently, use of this provision to exclude retarded children constitutes an impermissible misinterpretation of state law. Likewise, plaintiffs

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assert that Section 1326 relates only to the obligation of parents (under penalty of criminal sanctions) to place their children in public schools, and its use to exclude retarded children contravenes the obvious meaning of the statute. To place these questions of state law before us, plaintiffs advance the principle of pendent jurisdiction

Plaintiffs predicate jurisdiction of this court upon 28 U.S.C. § 1343(3)¹⁰ and their causes of action under 42 U.S. C. §§ 1981¹¹ and 1983.¹² By way of relief, they seek both a declaratory judgment that the statutes are unconstitutional and a preliminary and permanent injunction against the enforcement of these laws by the defendants.¹³ On the basis of these pleadings, it was concluded that the case raised important and substantial federal questions requiring consideration by a three judge court under 28 U.S.C. § 2281.¹⁴

Shortly after the appointment of the three judge Court by the Chief Judge of the Court of Appeals, we entered an order fixing June 15, 1971 as the hearing date on plaintiffs' motion for a preliminary injunction and June 11, 1971 as the date for prehearing conference. Between the date of our order and June 11th, however, the parties asked for an opportunity to settle amicably at least that part of the case which related to the plaintiffs' demand for due process hearings before exclusion from a public school education or a change in educational assignment within the public system is ordered. To afford them such an opportunity, we vacated our earlier order and postponed the hearing date until August 12th, 1971 and set August 2nd, 1971 as the final pre-hearing conference date.

In the interim, the parties agreed upon a Stipulation which basically provides that no child who is mentally retarded or thought to be mentally retarded can be assigned initially (or re-assigned) to either a regular or special educational status, or excluded from a public education without a prior recorded

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hearing before a special hearing officer. At that hearing, parents have the right to representation by counsel, to examine their child's records, to compel the attendance of school officials who may have relevant evidence to offer, to cross-examine witnesses testifying on behalf of school officials and to introduce evidence of their own. On June 18th, this Court entered an interim order approving the Stipulation

In mid-August, as scheduled, we heard plaintiffs' evidence relating to both the due process and equal protection claims, although the evidence was particularly directed toward the unresolved question of equal protection. Following testimony by four eminent experts in the field of education of retarded children,^14a the parties once again expressed a desire to settle the equal protection dispute by agreement rather than judicial determination. We then suspended further testimony in order to afford the parties time to resolve the remaining issues.

On October 7th, 1971 the parties submitted a Consent Agreement to this Court which, along with the June 18th Stipulation, would settle the entire case. Essentially, this Agreement deals with the four state statutes in an effort to eliminate the alleged equal protection problems. As a proposed cure, the defendants agreed, inter alia, that since "the Commonwealth of Pennsylvania has undertaken to provide a free public education for all of its children between the ages of six and twenty-one years" (Paragraph 5), therefore, "it is the Commonwealth's obligation to place each mentally retarded child in a free, public program of education and training appropriate to the child's capacity." (Paragraph 7.) To effectuate this result without conceding the unconstitutionality of the foregoing statutes or upsetting the existing statutory scheme, the Attorney General of the Commonwealth agreed to issue Opinions declaring in substance that: (1) Section 1375 means that "insofar as the Department of Public Welfare is charged to arrange for the care, training and supervision of a child certified to it, the Department of Public Welfare must provide a program of education and training appropriate to the capacities of that child" (Paragraph 37); (2) Section 1304 means "only that a school district may refuse to accept into or retain in the lowest grade of the regular primary school as contrasted with a special primary school any child

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who has not attained a mental age of five years" (Paragraph 10); (3) Section 1330(2) means "only that a parent may be excused from liability under the compulsory attendance provisions of the School Code when, with the approval of the local school board and the Secretary of Education and the finding by an approved school psychologist, the parent elects to withdraw the child from attendance; Section 1330(2) may not be used by defendants, contrary to parents' wishes, to terminate or in any way deny access to a free public program of education and training to any mentally retarded child." (Paragraph 20); and (4) Section 1326 means "only that parents of a child have a compulsory duty while the child is between eight and seventeen years of age to assure his attendance in a program of education and training; and Section 1326 does not limit the ages between which a child must be granted access to a free public program of education and training and may not be used as such." (Paragraph 16.) Thus, possible use of these four provisions to exclude (or postpone) retarded children from a program of public education was effectively foreclosed by this Agreement. And on...