Amicus Brief — Scanlon v. Battle

TT

8 0 -§ o7 | MICHAEL f

No.

in the Supreme Court of the

Unjted States

October Term, 1980

ROBERT SCANLON,

Petitioner

VS.

PATRICIA SUE BATTLE, ET AL.,

Respondents

On Writ of Certiorari to the United States Court of

Appeals for the Third Circuit.

AMICUS CURIAE BRIEF OF THE PENNSYL-

VANIA SCHOOL BOARDS ASSOCIATION IN

SUPPORT OF THE GRANT OF A WRIT OF

CERTIORARI

WILLIAM FEAREN,

MICHAEL I. LEVIN,

CLECKNER AND FEAREN

Counsel for Pennsylvania

School Boards Association,

Amicus Curiae

31 North Second Street

Harrisburg, Pennsylvania 17101

(717) 238-1731

Murrelle Printing Co., Box 100, Sayre, Pa. 18840—(717) 888-2244

TABLE OF CONTENTS

PAGE

I I a cll ease sucindtivnnaiemedsncannannions 1

Interest Of the Amicus Curiae ..........ccccccccscssccoccssssees 2

I Se I giles sniciissdaisesnsrenyrssecencxtdctsnscescess 3

Reasons for Granting the Writ:

A. The proper mission of public schools ........ 9

B. The need for an analytical model ................ 11

C. 94-142 was enacted to enforce equal pro-

I MO iisitiinvansnncadccsnscncsccsonsvnssanes 21

D. Impact upon federal-state relations ............ 23

SNE snc dincevesesdiacta dans cecnpaastdusanabantesaababeesininctecss 27

TABLE OF CITATIONS

CASES:

Armstrong vs. Kline, 476 F. Supp. 583 (E.D. Pa.

EE sidtunilindhuniavionssisavscemntimhenumionadenienananens 5, 12,17

Central York School District vs. Department of Edu-

cation, 41 Pa. Commonwealth Ct. 383, 399 A.

Be OD sacanossisesinesnacteniviandiciienissaasinianaiens 3

Doe vs. Koger, 480 F. Supp. 225 (N.D. Ind. 1979) 20

Donahue vs. Copiaque Union Free School District,

407 NYS 2d 874 (App. Div. 1978) ........eee 15,17

Ex Parte Virginia, 100 U.S. 339 (1879) ...ccecceeees 22

Fialkowski vs. Shapp, 405 F. Supp. 946 (E.D. Pa.

ITED: ssksesleddailscaaisetudessdeausdestiacilensuntinitatmnanpuiauentaien 20, 23

—_—

Frederick L. vs. Thomas, 408 F. Supp. 832 (E.D.

Re en EET NNN Urea MeN) 20, 23

Frederick L. vs. Thomas, 419 F. Supp. 960, (E.D.

Pa. 1976), aff’d., 557 F.2d 373 (3rd Cir.

RET) . nasstoprsenioiociiiensenvianntninnsmindaaeniiiaamediias 3

Katzenbach vs. Morgan, 384 U.S. 641 (1966) ........ 22

McInnis vs. Shapiro, 293 F. Supp. 327 (N.D. IIl.

1968), aff’d. sub. nom., McInnis vs. Ogilvie,

394 U.S. 322 (1969) ......00.... Ne ens 14, 15, 16

Milliken vs. Bradley, 418 U.S. 712 (1974) wou.. 26

Mills vs. Board of Education of the District of Co-

lumbia, 348 F. Supp. 866 (D.C.D.C. 1972) ....20, 23

New York State Association for Retarded Children

vs. Rockefeller, 357 F. Supp. 752 (E.D.N.Y.

SPOT iiiadlessicistidalesiimeidiaiiieadateie aenen eee 20, 23

Pennsylvania Association of Retarded Children vs.

Commonwealth of Pennsylvania, 343 F. Supp.

SBT CR: Bi, TOD ecticsssstisneiitictiniindaninaons 23

Peter W. vs. San Francisco Unified School District,

60 Cal. App. 3d 867, 131 Cal. Rpt. 854

COI ssinsintintceabbciiuuigscteeian ieakuanan ean 15, 16, 17

Reynolds vs. Simms, 377 U.S. 533 (1964) ............ 14

Rowley vs. Board of Education of Hendrick Hudson

School District, 483 F. Supp. 528 (S.D.N.Y.

1980), aff’d. F.2d (2nd Cir. 1980),

5 RE Sie. BE tiniest 9,12, 13,14, 18

San Antonio Independent School District vs. Rod-

rinwen, 482 UD. 1 GERIOD ciicccmenmsioninant 20, 26

Sherer vs. Waier, 457 F. Supp. 1039 (W.D. Mis.

BEET) snssicisdnietcieiniinisossinsaiiactieiesentadeiciniaielcaiieaiamaaian 20

Wright vs. Council of the City of Emporia, 407

BID, FSA ciniininncsticemsisainiimaimaimaaaia 26

STATUTES:

Act of 1949, March 10, P.L. 30, §1371, et seq., 24

PS. $15-1371,, Ot 000. vocrsercrrecccccrccesccsseserereesereee8 yo

Pub. L. 93-112, 87 Stat. 394, 29 U.S.C. §794 ........ 5

Pub. L. 94-142, 89 Stat. 773, 20 U.S.C. §1401 ..2, 3,5, 6,

7,8, 9, 10, 11,

12, 18, 19, 21, 22,

23,24, 25

MISCELLANEOUS:

OR CED Bee BBR] cvcicccvccrcnecvesenccccsessesscnsceetecsveevess 5

Enforcing the Right to an ‘“‘Appropriate” Education:

The Education for all Handicapped Act of

1975, 92 Harv. L. Rev. 1103 (1979) ..ccccceeeeees 9,25

22 Pa. Code, Chapters 13 and 171 .....ccsccseeeereeeereees 5,6

S. Rep. No. 146, 89th Cong. 1st Sess., [1965] U.S.

Code, Cong. & Admin. News 1454 w.cceccseeees 24, 25

S. Rep. No. 94-168, 94th Cong. Ist Sess., [1975]

U.S. Code, Cong. & Admin. News 1433 ......000 22, 25

iii

Consent of Parties

CONSENT OF PARTIES

The parties have granted consent to the Pennsylvania

School Boards Association, amicus curiae, to file the instant

brief.

Interest of Amicus Curiae

INTEREST OF THE AMICUS CURIAE.

The Pennsylvania School Boards Association is a vol-

untary association composed of the five hundred and five

(505) local school districts of the Commonwealth of Penn-

sylvania and the members of the school boards of those

districts. The Pennsylvania School Boards Association was

organized in 1895 and is the first such association in the

nation and has as its function the rendering of assistance

to local school districts and the representation of the gen-

eral public interest in the field of public education.

The instant matter concerns the proper interpretation

of the mandates of the Education for All Handicapped

Children Act of 1975, 89 Stat. 773, 20 U.S.C. §1401 (here-

inafter referred to as “94-142” or the “Act’”’). According

to its own terms, 94-142 was enacted to “‘assure that all

handicapped children have available to them . . . a free ap-

propriate public education. .. .” 20 U.S.C. §1401, n.

Within the scheme of public education and pursuant to

state law, each of the five hundred and five (505) local

school districts of ihe Commonwealth of Pennsylvania is

delegated the responsibility of locating, identifying and

providing special education to handicapped students re-

siding in their respective school districts. Public School

Code of 1949, Act of 1949, March 10, P.L. 30, §1371, et

seq., 24 P.S. §1371, et seq. As stated by the Common-

wealth Court of Pennsylvania, ‘“[s]ection 1371 of the

Code, 24 P.S. §13-1372, imposes on school districts the

primary duty to prepare and to submit to the Secretary of

Education for approval, plans for the proper education and

Interest of Amicus Curiae

training of all exceptional children and to provide and

maintain special classes or schools in accordance with the

approved plan.”’ Central York School District vs. Depart-

ment of Education, 41 Pa. Commonwealth Ct. 383, 386,

399 A.2d 167, 168 (1979). Further, the Court in Freder-

ick L. vs. Thomas, 419 F. Supp. 960, 974 (E.D. Pa. 1976),

aff’d. 557 F.2d 373 (3rd Cir. 1977), indicated that the ob-

ligation of Pennsylvania’s school districts to provide ap-

propriate educational services is imposed without regard to

the adequacy of reimbursement for the cost of such services

from the state or federal government. Consequently, ju-

dicial decisions interpreting 94-142 will impact directly

upon Pennsylvania’s five hundred and five (505) school

districts and the cost effects of such decisions may be borne

by those school districts. Therefore, as the association

which represents the interests of Pennsylvania’s public

schools, the Pennsylvania School Boards Association is

vitally concerned with the outcome of any litigation affect-

ing the operation of the public schools and the costs of op-

erating said schools.

With respect to the impact that this decision could

have on costs, Robert Scanlon, Secretary of Education for

the Commonwealth of Pennsylvania, testified on October

3, 1979, before the United States Senate Sub-Committee on

the Handicapped, that the Commonwealth was then spend-

ing approximately $359.4 million in its educational efforts

for handicapped children with only $45.3 million of that

amount representing federal funds under 94-142. The im-

pact of the District Court’s orders, according to the testi-

mony of Secretary Scanlon, would be to raise expenditures

by $200 million to $500 million annually. Assuming that

the increased costs resulting from the Circuit Court’s order

would be comparable, the impact upon Pennsylvania and

Interest of Amicus Curiae

its local school districts, as well as upon the remaining

states and Commonwealths of the United States, of the

decision in this matter will no doubt be substantial.’

- At a time when increased costs and dwindling re-

sources are on a collision course, the Pennsylvania School

Boards Association is compelled to aid in efforts to reverse

a court decision which may very well weaken the nation’s

public school systems by unduly diverting funds from regu-

lar and other special programs. The public school system

has limited, albeit substantial, funds with which to operate

and the decisions reached in this matter will potentially

divert a disproportionate amount of those funds to a rather

limited aspect of the total educational program. It is in

consideration of these factors and its commitment to pre-

serve quality education ivr all students, both handicapped

and non-handicapped, that the Pennsylvania School Boards

Association is compelled to participate as an amicus curiae

at bar.

' Pursuant to the Cireuit Court’s order, the Commonwealth of

Pennsylvania filed a motion to vacate the District Court’s orders

in this matter. By order dated October 27, 1980 the District Court

denied said motion, holding that ‘‘no modification of the orders

entered is necessitated by the Court of Appeal’s ruling.’’ Slip op.

at 7.

Statement of the Case

STATEMENT OF THE CASE

This is a consolidation of three class action lawsuits

brought on behalf of ‘‘[a]ll handicapped school age per-

sons 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.” Armstrong vs.

Kline, 476 F. Supp. 583, 586 (E.D. Pa. 1979).

The aforesaid class action lawsuits were filed by five

handicapped children and their parents on behalf of them-

selves and all those similarly situated against the Common-

wealth of Pennsylvania, several Commonwealth officials,

several public school districts and various of their officers,

as well as several private schools. The plaintiffs alleged

essentially that the Commonwealth violated plaintiff chil-

dren’s constitutional and statutory rights by denying them

a free publicly funded education in excess of 180 days,

which is the Commonwealth’s school year for all students.

Answers were filed by the defendants and extensive dis-

covery was invoked by both sides. A hearing was held

before District Judge Newcomer, who issued a decision and

order on June 21, 1979, essentially granting the relief

prayed for by the plaintiffs. Although the plaintiffs’ claims

were based upon (1) Section 504 of the Rehabilitation Act

of 1973, 29 U.S.C. §794; (2) 94-142; (3) the special edu-

cation sections of the Public School Code of 1949, Act of

1949, March 10, P.L. 30, §1371, et seq., 24 P.S. §13-1371,

et seq.; (4) 45 C.F.R. Part 121a; and (5) 22 Pa. Code,

Statement of the Case

Chapters 13 and 171, the district court’s opinion was based

exclusively upon 94-142.

After the court’s order of June 21, 1979, the follow-

ing orders were entered by the district court:

(a) On July 15, 1979 and July 18, 1980, an

order was entered enjoining defendants to maintain

the named plaintiffs in specified programs, each of

which exceeds 180 days per year and four of which

extend 365 days per year;

(b) On August 1, 1979 remedial order No. 1

was entered requiring Defendant Scanlon to take cer-

tain actions to insure the provision of more than 180

days of education to a group of children identified as

priority class members;

(c) On September 5, 1979 remedial order No.

2 was entered which required defendants and other

educational agencies in Pennsylvania to take specific

actions to provide the benefits of its opinion of June

21, 1979 to the entire class; and

(d) On September 6, 1979, final judgment was

entered in favor of the plaintiffs.

Each of the aforesaid orders was appealed by one or

more of the defendants to the Third Circuit Court of Ap-

peals where said appeals were consolidated for purposes of

briefing and argument. Argument was held on those ap-

peals before a three-judge panel of the United States Cir-

cuit Court of Appeals for the Third Circuit on January 14,

1980. On July 15, 1980, the circuit court of appeals is-

sued its opinion and order, per Judge Hunter with Judge

Van Dusen concurring and Judge Sloviter concurring and

dissenting, remanding these actions to the district court for

Statement of the Case

further proceedings consistent with the opinion of that

court. Although the court of appeals held that Pennsylva-

nia’s inflexible refusal to provide more than 180 days of

education for any child violates the terms of 94-142, the

court of appeals rejected much of the reasoning applied

by the district court.

In rejecting much of the district court’s rationale, the

circuit court ordered further consideration to be under-

taken by the district court upon motion of the parties. Such

a motion was filed by the Commonwealth of Pennsylvania

to vacate the district court’s orders. Said motion was de-

nied, hewever, by the district court by order dated October

27, 1980.

Factually, each of the five named plaintiff children is

handicapped; three being emotionally disturbed, one being

mentally retarded and the last being characterized by plain-

tiffs as a severely and profoundly impaired child suffering

a degenerative genetic disorder. Pursuant to 94-142, the

Commonwealth has given each child special education and

related services for 180 days per school year (which is the

length of the regular school year in Pennsylvania) , but has

refused to fund or to consider providing any programs in

excess of 180 days. When programming was provided by

the Commonwealth to the plaintiffs, educational progress

was made by each of the children. However, each child

experienced a degree of regression during breaks or inter-

ruptions in his/her program which was allegedly greater

than that experienced by ‘‘normal’’ children. It was be-

cause of this regression that the plaintiffs claimed that their

rights were being violated and that they were entitled to

programming in excess of 180 days.

Reasons for Granting the Writ

REASONS FOR GRANTING THE WRIT

The court of appeals has decided an important ques-

tion of federal law which has not been, but should be, set-

tled by your Honorable Court. The question affects hun-

dreds of thousands of handicapped students across the na-

tion, significantly impacts upon the costs of public edu-

cation, ultimately involves the basic mission of this nation’s

public schools, impacts upon the federal-state relationship

in the area of public education and affects the gloss to be

given to equal protection guarantees in the realm of public

education for the handicapped. Further, although the spe-

cific question to be decided in this case—namely, the legal-

ity of Pennsylvania’s 180 day rule—is ostensibly narrow,

in view of the utter lack of statutory specificity in defining

the phrase “free appropriate public education’”’,’ a deci-

* 94-142 defines the phrase ‘‘free appropriate public eduea-

tion’’ at 20 U.S.C. §1401(18). However the statutory definition is

only minimally helpful in actually defining in any given situation

what sort of educational program is required. It provides no guid-

ance, for example, as to the length of the program, class size, cur-

riculum content, required services or any other specific educational

item, leading one commentator to note:

‘*Although the Act sets forth general requirements states

must meet in order to qualify for receipt of federal funds, it

does not prescribe the specifie educational programs local

schools must make available in order to fulfill those require-

ments. Instead, the heart of the federal control mechanism is

a system of procedural safeguards which provides for parental

involvement in educational placemen* “ecisions. In effect, the

Act guarantees procedures whereby parents may challenge the

Reasons for Granting the Writ

sion by your Honorable Court will serve to provide a much

needed analytical model for the future determination of

whether any given program or service is required under

94-142. For these reasons, a writ of certiorari should be

granted.

A. The proper mission of public schools:

One cannot appreciate the nature and importance of

this case unless one looks beyond the pleadings, the evi-

dence and the briefs and recognizes this case for what it

is—to wit, a test to determine the proper mission of the

public schools of this nation. The extent to which the

plaintiffs claim that the mission of the public schools has

been altered can best be appreciated by considering the

plaintiffs’ motive in arguing that educational programming

in excess of state standards is necessary. Speaking through

their experts, the plaintiffs contend that year-round educa-

tional programming is necessary for a variety of reasons.

One expert testified that a student who needed physical

therapy would need year-round programming (N.T. 3-50).

appropriateness of their child’s educational program, but pro-

vides only the most general guidelines for resolving the sub-

stantive questions such challenges may present.’’

The Edueation for All Handicapped Act of 1975, 92 Harv. L. Rev.

1103 (1979).

One court noting the lack of statutory specificity said: ‘‘it has

been left entirely to the courts ... to give content to the require-

ment of an ‘appropriate education’.’’ Rowley vs. Hendrick Hudson

School District, 483 F. Supp. 528, (S.D.N.Y. 1980), aff’d. (with

notation to cite) F.2d (2d Cir. 1980), 3 EHLR 522:101.

(EHLR refers to the Education for the Handicapped Law Report

published by CRR Publishing Company, Washington, D.C.)

10

Reasons for Granting the Writ

Another testified that children who have not developed a

real image of themselves or who exhibited abusive sexual

behavior would need year-round programming (N.T. 4-

62-63). A third testified that one of the named plaintiffs

needed a year-round residential placement because she

needed as much peer interaction as possible (N.T. 6-49).

Perhaps most shocking, from the context of the proper mis-

sion of public schools, is the testimony of the fourth expert,

indicating that year-round residential placement is neces-

sary where there is a possibility of child abuse or a danger

to the family (N.T. 6-9). However, it is suggested that it

never has been, and 94-142 does not make it, the objective

of the schools to insure proper peer interaction, to develop

a child’s self-respect or to eliminate abusive sexual be-

havior. Certainly, the mission of our schools is not to pro-

tect the child from child abuse or the family from a dis-

ruptive child. Therefore, to the extent that the decisions

of the lower courts at bar leave the door open to the con-

tention that specific programs or services are required to

fulfill certain ‘‘needs” of children which traditionally have

not been met by the public school system with respect to

any child, handicapped or non-handicapped, the basic and

fundamental mission of the public schools most certainly

will be altered. A decision from your Honorable Court is

therefore necessary to forge the parameters of this most

important aspect of the case.®

* On this point, the Commonwealth essentially contends that

proper mission of public schools is to provide equal educational

opportunity to all school aged children, handicapped and non-

handicapped alike, and that this basic mission was not altered by

Congress in its enactment of 94-142. On the other hand, the plain-

tiffs contend that Congress altered the mission of public schools by

enacting 94-142 and that, with respect to handicapped students, the

11

Reasons for Granting the Writ

B. The need for an analytical model:

1. There is a lack of uniformity among the courts.

Although this area of the law is in its infancy, the

cases thus far adjudicated in the federal courts under 94-

142, involving claims that handicapped students are not

being provided with a “free appropriate public education”’,

have not reached uniform results either in the analysis of

the problem or in the definition of the phrase ‘free appro-

priate public education”. Not only is there an inconsis-

tency among the various courts that have had to address the

problem, but there is a difference of opinion within courts.

Indeed, three separate opinions were written by the circuit

court below with Circuit Judge Sloviter concurring and

dissenting.

To illustrate the necessity of having a statement from

your Honorable Court as to the proper method of analyzing

the mandates of 94-142, it is perhaps appropriate to recite

how various courts and judges have dealt with the problem

of adjudicating disputes under 94-142.

Beginning with the case at bar, Judge Newcomer ana-

lyzed 94-142 requirements using the following standards:

publie schools must guarantee a level of services that would insure

maximum achievement in the area of self-sufficiency regardless

of costs, without regard to the educational product that it actually

achieved in striving for that goal, and without li: ‘tation. Indeed,

counsel for plaintiff Armstrong on page 19 of its brief before the

circuit court argued, ‘‘[t]he definitions of ‘free appropriate edu-

cation’ and ‘special education’ convey the intention of Congress to

have every handicapped child educated without limitation.’’ (Em-

phasis added.) Similarly, on page 20 of its brief before the circuit

court, counsel for plaintiffs Battle and Bernard argued ‘‘[c]on-

trary to the appellant Seanlon’s position the Act and its purpose

are not ‘limited’.’’

12

Reasons for Granting the Writ

“[T he Act appears to demand that the state sup-

ply instruction designed to meet all of the handicapped

child’s ‘unique needs’ without limitation. * * * To de-

termine which unique needs of the handicapped child

must be met... , it is useful to approach the problem

by asking what is the goal of the education that the

Act requires the state to provide. * * * The congres-

sional intent was to provide for that education which

would leave these children, upon school’s completion,

as independent as possible... .”’ 476 F. Supp. at 603-

604.

In contrast, the circuit court below adopted a “process

of comparison” for analyzing the appropriateness of an

educational program. While not denominated as such by

the court, this “process of comparison” was set forth by

the circuit court in paragraphs 22, et seq. of its opinion.

Essentially, it takes the following form:

(a) The educational goals of the non-handi-

capped must be considered;

(b) to the extent that the handicapped can at-

tain those goals, the programs and services necessary

to enable the handicapped to reach those goals must

be provided; and

(c) to the extent that the handicapped cannot

attain those goals, the states must adopt reasonable

goals for the handicapped and provide reasonable

modes for achieving those goals.

In contrast to the aforesaid analyses, the district court

in Rowley vs. Board of Education of the Hendrick Hudson

School District, supra, conceptualized the problem as fol-

lows:

13

Reasons for Granting the Writ

“An ‘appropriate education’ could mean ‘ade-

quate’ education—that is, an education substantial

enough to facilitate a child’s progress from one grade

to another and to enable him or her to earn high school

diploma. An ‘appropriate education’ could also mean

one which enables the handicapped child to achieve

his or her full potential. Between these two extremes,

however, is a standard which I conclude is more in

keeping with the regulations, with the equal protection

decisions which motivated the passage of the Act, and

with common sense. This standard would require that

each handicapped child be given an opportunity to

achieve his full potential commensurate with the op-

portunity provided to other children. 483 F. Supp. at

534.

Although the Second Circuit Court of Appeals appar-

ently affirmed this standard, the majority did so with the

admonition that its decision may not be cited as authority

in any other case. F.2d at , 3 EHLR 552 at 102-

103. Further, Circuit Court Judge Mansfield, in a dissent-

ing opinion, stated that the foregoing standard is ‘‘an erro-

neous and impractical guideline or standard for determi-

ning whether a handicapped child’s education is ‘appropri-

ate’ within the meaning of the pertinent sections of the Act.

= F.2d at , 3 EHLR 552 at 103. Peculiarly

enough, the standard that would be adopted by Circuit

Judge Mansfield is somewhat similar to the standard

adopted by Judge Newcomer at bar, but which was re-

jected by the circuit court majority below. Judge Mans-

field’s standard was couched in the following terms:

“The language and legislative history of the Act

demonstrate that Congress visualized a much more

14

Reasons for Granting the Writ

practical objective, i.e., an education for each handi-

capped child that would enable the child to be as free

as reasonably possible from dependency on others,

would enable the child to become a productive mem-

ber of society, and would hopefully promote academic

achievement by the child that would roughly approxi-

mate that of his or her non-handicapped classmates.”

3 EHLR 552 at 106.

Consequently, there are no less than three analytical

approaches that have been utilized by the courts in deter-

mining the appropriateness of an educational program. We

suggest that the judicial recognition of these different ap-

proaches will confound educators and the courts alike un-

til and unless certain direction is given by your Honorable

Court.

2. The standard adopted by the Court below is un-

workable and unsupported by the Act.

Principally, the circuit court opinion below is based

upon a ‘‘needs”’ analysis which the court defines in the con-

text of educational goals and the pursuit of those goals.

However, as recognized by your Honorable Court and by

other courts, a legal standard based upon educational needs

and goals is unworkable because of the myriad of factors

impacting and influencing the effects of an educational

program.

In McInnis vs. Shapiro, 293 F. Supp. 327 (N.D. Ill.

1968) , aff'd. sub nom. McInnis vs. Ogilvie, 394 U.S. 322

(1969) , citing Reynolds vs. Simms, 377 U.S. 533 (1964),

the court dismissed an action as non-justiciable because it

found that there were “no ‘discoverable and manageable

standards’ by which a court [could] determine when” the

|

15

Reasons for Granting the Writ

law was being violated. 293 F. Supp. at 335. Similarly, in

Peter W. vs. San Francisco Unified School District, 60 Cal.

App. 3d 867, 131 Ca. Rpt. 854 (1976), and Donahue vs.

Copiaque Union Free School District, 407 NYS 2d 874

(App. Div. 1978), the courts held that educators may not

be sued for damages by an individual for an alleged failure

to reach certain educational objectives because there are

no judicially manageable standards. As the court said in

Peter W. vs. San Francisco Unified School District, supra,

“[u]nlike the activity of the highway or the market place,

classroom methodology affords no readily acceptable stan-

dards of care, or cause or injury.” 131 Cal. Rtpr. at 860.

In McInnis vs. Shapiro, supra, public school pupils in

Cook County, Illinois, challenged the constitutionality of

that state’s education financing statutes on the ground that

said statutes permitted wide variations in per-pupil expen-

ditures from school district to school district. Implicit in

the plaintiffs’ argument, as found by the court, was the

theory that only a financing statute which distributed

school funds in proportion to the educational needs of the

students was required by the Constitution. 293 F. Supp. at

331. Dismissing this argument, the court recognized that

due to a variety of factors, it could not determine when the

educational needs of the students were being met. The

factors relied upon by the court in reaching this conclusion

were varying efficiencies, shifting problems and techno-

logical advancements. The court couched these concepts as

follows:

‘A dollar spent in a small district may provide

less education than one used in a large district. As

stated above, -osts vary substantially throughout the

state. The desirability of a certain degree of local ex-

16

Reasons for Granting the Writ

perimentation and local autonomy in education also

indicates the impracticability of a single, simple for-

mula. Effective, efficient administration necessitates

decentralization so that local personnel familiar with

the immediate needs, can administer the school sys-

tem. As new teaching methods are devised and as ur-

ban growth demands changed patterns of instruction,

the only realistic way the state can adjust is through

legislative study, discussion and continuing revision of

the controlling statutes.”’ Id. at 336.

In Peter W. vs. San Francisco Unified School District,

supra, much the same analysis was employed by the court.

In that case, a high school graduate brought an action

against the school district seeking to recover for alleged

negligence on the part of the school district which deprived

him of basic academic skills. In declaring the impossibility

of establishing a duty of care, the court noted the follow-

ing:

“The science of pedagogy, itself is fraught with

different and conflicting theories of how or what a

child should be taught, and any layman might—and

~commonly does—have his own emphatic views on the

subject. The ‘injury’ claimed here is the plaintiff’s

inability to read and write. Substantial professional

authority attests that the achievement of literacy in

the schools, or its failure are influenced by a host of

factors which affect the pupil subjectively, from out-

side the formal teaching process, and beyond the con-

trol of its ministers. They may be physical, neuro-

logical, emotional, cultural, environmental; they may

be present but not perceived, recognized but not iden-

tified.

17

Reasons for Granting the Writ

We find in this situation no conceivable ‘work-

ability of a rule of care’... .” 131 Cal. Rpt. at 860-

861.

See also, Donahue vs. Copiaque Union School Dis-

trict, supra, for a similar analysis.

In the instant case, a handicapped pupil’s success in

achieving educational goals is affected by a host of factors

unrelated to the number of days of educational program-

ming that are provided. This concept, being a truism, was

naturally agreed to by all experts testifying in this case. In-

deed, the district court found as follows:

“From the expert testimony, the Court concludes

that several factors have an impact on whether and at

what rate a child learns. Surely, one of the most im-

portant and an immutable one is the nature and char-

acteristics of the child’s handicap. In many ways, this

factor defines the boundaries for learning. But other

factors operate to affect the handicapped child’s edu-

cational experience and can have a significant impact

on it. Teacher competency is certainly one of them.

So, too, is the functionality of the skill being taught; if

the skill is one that can be performed outside the class-

room, the chances that it will be learned and learned

at a quicker rate than otherwise possible increases.

Along these lines, the opportunity to practice outside

the formal classroom is a significant factor. And fi-

nally, to some unknown extent, the length of time that

a child has to practice a skill increases the likelihood

that the skill will be mastered.” 476 F. Supp. at 592.

Consequently, in view of the multitude of factors af-

fecting educational success, a standard based upon a

“‘needs-goals”’ analysis is unworkable.

18

Reasons for Granting the Writ

A second weakness or error found in the circuit court’s

analysis is the court’s defining the “unique needs”’ of the

child in the context of educational goals. There is no statu-

tory support for such an analysis and we submit that the

“unique needs”’ of a child is to be defined in the context of

a child’s handicapping condition, not in the context of edu-

cational goals. When 94-142 requires states and school

districts to provide special education which meets the

“unique needs” of the child, 20 U.S.C. $1401 (16) , the Act

is requiring simply that the handicapping condition of the

student is to be taken into consideration. It means, for ex-

ample, that the states may not use visual aides for a child

that is blind; rather, it means that braille must be provided.‘

*In March, 1980, the National Learning Resource Center of

Pennsylvania (which operates through a federally funded contract

from the Bureau of Education of the Handicapped, Washington,

D.C.), in conjunction with the Bureau of Special Education of the

Pennsylvania Department of Education, published a book entitled

‘‘Individualized Education Program Plans in Pennsylvania:

Guidelines for School Age I.E.P. Development.’’ At page 10 of

said publication, student needs to be addressed by I.E.P.’s were

characterized as follows:

‘‘The I.E.P. Plan contains three required components that

provide information to be used in the decision process. These

include a description of student needs related to curriculum,

related services, and special instructional media and materials.

Other types of student needs should be considered such as

learning type, social/psychological characteristics, and physi-

cal limitations.’’

See, Rowley vs. Board of Education of Hendrick Hudson Cen-

tral School District, supra, where it was said that ‘‘[w]hile it is

true that the law requires that the needs of each individual handi-

capped child be assessed, and in keeping with that goal eschews any

general formulations or guidelines, as a practical matter those needs

cannot be assessed without reference to generally accepted methods

of special education for the handicapped.’’ 483 F. Supp. at 535.

19

Reasons for Granting the Writ

A third error in the approach of the court below is its

equating of “state standards” with state “‘goals’’.° 94-142

specifically defines a “free appropriate public education”

as meeting “‘state standards”, 20 U.S.C. §1401 (18), yet

the circuit court stated that ‘‘the Act contemplates that in

the first instance each state shall have the responsibility of

setting individual educational goals and reasonable means

to attain those goals.’’ (Slip Opinion at p. 17). (See also,

Slip Opinion at p. 22). However, there is nothing in the

Act to support the court’s position that “‘standards’’ means

“goals’’ and we contend that it does not. Instead, we sub-

mit that standards connotes such things as class size,

length of school day, curriculum requirements, teacher

qualifications, and, in view of this lawsuit, the length of

the school year. We submit that ‘state standards” has

little, if anything, to do with educational goals and, to the

extent that the circuit court equates state standards with

goals, it ignores the fact that a free appropriate public

education is to be defined, in part, in the context of state

standards.

A fourth error in the lower court’s analysis is that if

the court is correct, that states may establish goals and the

means of achieving those goals, it cannot be determined

until such goals are established whether Pennsylvania’s

180 day rule precludes any child from reaching said goals.

It is suggested that if the goal of Pennsylvania is to pro-

vide simply for beneficial or functional programs, which

5 It is clear that the circuit court intends goals to mean the

ends or objectives that the educational program is going to attain

individually for each handicapped child. The court below does not

intend ‘‘goals’’ to mean, for example, the type or quality of edu-

cational system that the state would choose to provide.

20

Reasons for Granting the Writ

is all that equal protection requires,” then the 180 day

rule is valid.’ It has been established that each child does

®In San Antonio Independent School District vs. Rodriquez,

411 U.S. 1 (1973), the Texas school financing system survived an

equal protection attack because it provided ‘‘each child with an

opportunity to acquire the basic minimal skills’? even though it

created an environment in which some students benefited more

than others. In Frederick vs. Thomas, 408 F. Supp. 832 (E.D. Pa.

1976), the court held that an equal protection claim was stated be-

cause the plaintiffs alleged that they could not ‘‘derive any educa-

tional benefits’’ from the program that they were provided. Jd. at

835. In Fialkowski vs. Shapp, 405 F. Supp. 946 (E.D. Pa. 1975),

the court held that an equal protection claim was stated because

the plaintiffs alleged that ‘‘their children are being denied eduea-

tional opportunities’’, noting that ‘‘there existed constitutional

rights to a certain minimal level of education as opposed to a con-

stitutional right to a particular level of edueation.’’ Jd at 958.

Similarly, in New York State Association for Retarded Children

vs. Rockefeller, 357 F. Supp. 752 (E.D.N.Y. 1973), the court noted

that ‘‘a state is not constitutionally required to provide the men-

tally retarded with a certain level of special education.’’ Jd. at

763. In Sherer vs. Waier, 457 F. Supp. 1039 (W.D.Mis. 1977), a

motion to dismiss by the defendants was sustained because the com-

plaint [did] not allege that the defendants have denied Plaintiff

Kimber Sherer any education, but rather that defendants have re-

fused to provide special services to her... .’’ Jd. at 1047-1048. In

Doe vs. Koger, 480 F. Supp. 225 (N.D.Ind. 1979), the court said

that ‘‘{t|he equal protection clause does not require a state to guar-

antee more education to students with a greater need of education.’’

Id. at 230. Finally, in Mills vs. Board of Education of the District

of Columbia, 348 F. Supp. 866 (D.C.D.C. 1972), the court held

that insufficient funds were available to fund optimally both regu-

lar and special education programs. Equal protection simply pro-

hibits states from burdening the handicapped with a dispropor-

tionate share of the cutbacks.

* Judge Van Dusen apparently agrees with this proposition.

As pointed out in footnote No. 1 of the majority opinion below,

21

Reasons for Granting the Writ

benefit from the educational program provided by the

Con nonwealth. Each program has advanced each child’s

skills or improved behavior. It was not held otherwise by

the district court. None was being either ‘‘functionally”

or “effectively” precluded from a beneficial educational

program.

Therefore, it appears that the standard adopted by the

court below, in addition to being different from standards

adopted by other courts, is unworkable and based upon

several faulty premises. Consequently, the intolerable situ-

ation of Pennsylvania’s public school system being com-

pelled to operate under a confounding and faulty standard

must be rectified by your Honorable Court.

C. 94-142 was enacted to enforce equal protection

guarantees:

We submit that the standard to be applied in deter-

mining whether any given program fulfills the mandates

of 94-142 is the same standard that courts have utilized in

determining whether an educational program has fulfilled

the equal protection clause of the Federal Constitution.

In other words, if equal protection is not being violated,

neither is 94-142.

There is strong evidence that Congress enacted 94-

142 simply and solely to enforce the equal protection

Judge Van Dusen would restrict those eligible for programs in ex-

cess of 180 days to those students whose ‘‘over-all progress for the

year |is brought] to a virtual standstill’’ without the extended

program (Slip Opinion at p. 6, n. 1, p. 29).

22

Reasons for Granting the Writ

clause.* In Section 3(a) of 94-142, Congress siated the

following:

(9) it is in the national interest that the fed-

eral government assist state and local efforts to pro-

vide programs to meet the educational needs of the

handicapped children in order to assure equal pro-

tection of the law.”’ 20 U.S.C. §1401, n.

Similarly, in Senate Report No. 94-168, it was re-

ported that 94-142 was enacted in the belief ‘that the

Congress must take a more active role under its responsi-

bility for equal protection of the Jaws to guarantee that

handicapped children are provided equal educational op-

portunities.” S. Rep. No. 94-168, 94th Cong., Ist Sess.

[1975], U.S. Code, Cong. & Admin. News 1433. That

Senate Report also stated that 94-142 was developed be-

cause Congress ‘“‘recognizes the State’s primary responsi-

bility to uphold the Constitution of the United States and

their State Constitutions and State laws as well as Con-

gress’ own responsibility under the 14th Amendment to

assure equal protection of the law.” Jd. at 1446. At an-

other point in the Senate Report it was said that, “it is

this [unconstitutional] discriminatory treatment and ex-

clusion which Court cases, State and Federal laws are de-

signed to remedy.” Id. at 1451. Consequently, we con-

8 As was noted in Ex Parte Virginia, 100 U.S. 339 (1879),

‘‘Congress is authorized to enforce the prohibitions [of the 14th

Amendment] by appropriate legislation. Some legislation is con-

templated to make the amendments [to the Constitution] fully ef-

fective.’’ 100 U.S. at 345 (emphasis supplied by the Court). See

also, Katzenbach vs. Morgan, 384 U.S. 641 (1966), where the Court

held that the Voting Rights Act of 1965 was enacted to enforce the

14th Amendment.

23

Reasons for Granting the Writ

tend that Congress intended only to stimulate compliance

with the equal protection clause of the Federal Constitu-

tion through the enticement of federal awards to the state.

It is submitted that it is against this backdrop that all the

provisions of 94-142 must be read.

Regretably, 94-142 was not so interpreted by either

court below. We submit that the lower courts’ failure to

so interpret 94-142 renders the courts’ interpretation sus-

pect. We further submit that if 94-142 is to be so inter-

preted, it must be established by Your Honorable Court

presently so that future cases necessitating a proper inter-

pretation of 94-142 may be interpreted pursuant to a cor-

rect analysis.”

D. Impact upon Federal-State relations:

Local control over public education is a national

staple with which Congress has been cautious not to inter-

fere and which your Honorable Court has jealously pro-

° If 94-142 was to be interpreted in the context of equal pro-

tection, this matter will afford the court with a vehicle by which

the nature and extent of equal protection guarantees in the field of

educating the handicapped can be portrayed. Although there are

numerous district court decisions applying equal protection to

handicapped students, the precise bounds of the equal protection

guarantees as applied to handicapped students have not been dic-

tated by your Honorable Court. E.g., Fialkowski vs. Shapp, 405

F. Supp. 946 (E.D. Pa. 1975) ; Frederick vs. Thomas, 408 F. Supp.

946 (E.D. Pa. 1976) ; Mills vs. Board of Education for the District

of Columbia, 348 F. Supp. 866 (D.C.D.C. 1972) ; New York State

Association for Retarded Children vs. Rockefeller, 357 F. Supp.

752 (E.D. N.Y. 1973) ; Pennsylvania Association of Retarded Chiil-

dren vs. Commonwealth of Pennsylvania, 343 F. Supp. 297 (E.D.

Pa. 1974).

24

Reasons for Granting the Writ

tected, but which is being threatened by the opinions

below. With each state standard, such as Pennsylvania’s

180-day rule here, that is cast aside through interpretation

of 94-142 mandates, the traditional prerogatives of states

and local school districts will be eroded. Therefore, an

opinion should be expresseed by your Honorable Court

whether and to what extent the traditional local preroga-

tives of states and local school districts have been dis-

placed by 94-142.

In this vein, the Pennsylvania School Boards Associ-

ation contends that the 180-day standard adopted by Penn-

sylvania is a proper standard and of the nature which

Congress intended should remain within the authority of

school districts and states. We suggest that Congress spe-

cifically qualified 94-142 to require only what is required

by the standards of the state educational agency to reflect

its continued commitment to preserve local authority and

to prevent 94-142 from becoming a national school code

for the handicapped, a commitment which was expressed

in: 1965 by Congress as follows:

“It is the intention of the proposed legislation

[i.e., the Elementary and Secondary Education Act,

P.L. 89-750, one of the precursors to 94-142] not to

prescribe the specific types of programs or projects

that will be required in school districts. Rather, such

matters are left to the discretion and judgment of the

local public educational agencies since educational

needs and requirements for strengthening educational

opportunities for educationally deprived elementary

and secondary school pupils will vary from State to

State and district to district. * * * There may be cir-

cumstances where .. . the best approach in meeting

25

Reasons for Granting the Writ

the needs of educationally deprived children would

be to upgrade the regular programs.” S. Rep. No.

146, 89th Cong. Ist Sess. [1965] U.S. Code, Cong.

& Admin. News 1434.

This sentiment was echoed ten years later by the

Senate Committee on Labor and Public Welfare when it

stated that:

“The bill requires that the state educational

agency is responsible for . . . the general supervision

of educational programs for handicapped children

within the state... .” S. Rep. No. 94-168, supra, at

1441.

Congress thus clarified that neither it nor the Depart-

ment of Health, Education and Welfare would be respon-

sible for the general supervision of educational programs,

such being the function of the states.

Commenting upon 94-142, one writer stated the fol-

lowing:

‘Perhaps the most significant reason Congress

failed to prescribe more specific standards is the tra-

ditional notion that education is primarily a state

and local concern. Despite the far-reaching proce-

dural provisions of the present statute, Congress was

apparently unwilling to take the further step of order-

ing that specific programs be made available—a pro-

cess that could lead to federal allocation of state and

local funds. In the end, the hard choices required to

determine the extent of the rights of particular chil-

dren were consigned to the discretion of local admin-

istrators....” Enforcing the Right to an Appropriate

Education, 92 Harv. L.R. at 1109.

26

Reasons for Granting the Writ

These same concepts were repeatedly recognized by

your Honorable Court. In Milliken vs. Bradley, 418 U.S.

712, 741-742 (1974) , the Court said:

“No single tradition in public education is more

deeply rooted than local control over the operation of

schools; local autonomy has long been thought es-

sential both to the maintenance of community con-

cern and support for public schools and to the qual-

ity of the educational process. See, Wright vs. Coun-

cil of the City of Emporia, 407 U.S. 451, 469. Thus,

in San Antonio School District vs. Rodriquez, 411

U.S. 1, we observed that local control over the edu-

cation process afford citizens an opportunity to par-

ticipate in decision-making, permits the structuring

of school programs to fit local needs and encourages

‘experimentation, innovation and a healthy competi-

9 99

tion for educational excellence’,

In San Antonio School District vs. Rodriquez, 411

U.S. 1, 50 (1973), chronicling the benefits of local control

over educational programming, the court said:

“Each locality is free to tailor local programs to

local needs. Pluralism also affords some opportunity

for experimentation, innovation and a healthy com-

petition for educational excellence. An analogy to the

nation-state relationship in our federal system seems

uniquely appropriate. Mr. Justice Brandeis identified

as one of the peculiar strengths of our form of govern-

ment each State’s freedom to ‘serve as a laboratory,

and try novel socia! and economic experiments’. No

area of social concern stands to profit more from a

multiplicity of viewpoints and from a diversity of ap-

proaches than does public education.”

27

Reasons for Granting the Writ

Unfortunately, the continued viability of these con-

cepts is being subjected to question in view of the lower

courts’ opinions at bar.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

By WILLIAM FEAREN

By MICHAEL I. LEVIN

(Counsel for Pennsylvania School

Boards Association, Amicus

Curiae)

Dated: Nov. 12, 1980

Harrisburg, Pennsylvania