Petition for Writ of Certiorari — Roe ex rel. Roe v. Pennsylvania

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Jn the Supreme Court of the

Gnited States

October Term, 1986

STUDENT ROE, a Minor, by her Next Friend and Natural Guardian,

M. ROE,

Petitioner

VS.

COMMONWEALTH OF PENNSYLVANIA, SECRETARY OF

EDUCATION, MARGARET A. SMITH, in Her Official Capacity

COMMONWEALTH OF PENNSYLVANIA, EXECUTIVE

SECRETARY, STATE BOARD OF EDUCATION, JEFFREY

GROTSKY, in His — Capacity

anc

COMMONWEALTH OF PENNSYLVANIA, MEMBERS, STATE

BOARD OF EDUCATION, JCHN HERSHEY, SISTER

LAWREACE ANTOUN, MADGE BENOVITZ, KEITH DOMS,

ANNA LEE DOWLING, DONALD FOX, EARL HORTON,

PAULETTE JOHNSON, WILLIAM KIMMEL, HERBERT

LAUTERBACH, ROBERT BARENSFELD, NICHOLAS PANA-

GOPLOS and FRANK SULLIVAN, in Their Official Capacities

and

BENSALEM TOWNSHIP SCHOOL DISTRICT,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Doris APPLEBAUM

Counsel for Petitioner

6232 Madison Court

Bensalem, Pennsylvania 19020

215) 757-1005

Murrelle Printing Ca, Box 100, Sayre, Pa. 18840—{717) 888-2244

ee ee ne eit

Statement of Questions Presented for Review

STATEMENT OF QUESTIONS PRESENTED FOR

REVIEW

I. Whether Pennsylvanias administrative regulations

at 22 Pa. Code §§13.1 & 341.1, which create a preferred

educational classification for “gifted” public school

students, confer upon all of Pennsylvanias public school

students, but specifically Plaintiff, a property interest in

said “gifted” classification, which is protected by the

Fourteenth Amendment to the United States Constitution,

thus requiring the State to provide prior notice of intent to

exclude any public school students from said classification

or educational assignment?

II. After self-initiating the prescribed “due process”

procedures, whether Plaintiff was entitled to a “least

restrictive” standard of analysis of her application for gifted

special education assignment, because:

A. Pennsylvania implicitly agreed in its Court

approved settlement with the Pennsylvania Associa-

tion for Retarded Children, that under Pennsylvanias

Constitution, Art. III, §14, education is a guaranteed

right and, thus, “fundamental” for purposes of equal

protection analysis under Pennsylvanias Constitution,

Art. III, §32, and

B. The United States Constitution, Amend-

ment XIV, forbids Pennsylvania from applying differ-

ent standards of equal protection analysis or educa-

tional guarantee as between handicapped and non-

handicapped public school students without a reason-

able basis for the disparate treatment; and

Statement of Questions Presented for Review

C. There is no rational reason for Pennsylvania

to apply a “least restrictive alternative” standard of

analysis to the Applications of public school students

for handicapped special education, but not to the

Applications of public school students for gifted spe-

cial education;

D. Congress’ predication of the Education of

the Handicapped Act upon the Amended Consent

Decree in the PARC case, which implicitly regards

education to be a fundamental right in Pennsylvania

under Pennsylvanias Constitution, creates an imper-

missible dichotomy in the nature of federal education-

al rights guaranteed, as between handicapped and

non-handicapped public school students, under the

United States Constitution, Amendment V;

E. In the specific context of educational assign-

ment, the Free Speech Clause of the United States

Constitution, Amendment I, affords public school

students a “least restrictive” standard of analysis of

their applications for educational assignment, and a

“strict scrutiny” test of their claims of denial of the

equal protection of the laws.

III. Whether Pennsylvanias administrative regula-

tions at 22 Pa. Code §§13.1 & 341.1, which create and

establish gifted special education, are substantially related

to the State's statute creating and establishing the general

special education classification, which is well documented

to have been historically for the purpose of remediating

physical handicaps to learning?

ae Pk Re — = SAO AR TI AL Mr RR I a UES ek Katee te eee . A en RE ARE Rtn ils Hate

TABLE OF CONTENTS

Sibabeatibint PAGE

Statement of Questions Presented for Review . . . i

Table of Contents and Table of Citations...... iii

Petition for Writ of Certiorari................ 2

ey yo te Wek nc hs av a wv 3

EE Oe a 3

Constitutional Provisions, Statutes and Regula-

I Ay ek oe ax dae vo 5

a 15

Reasons for Granting the Writ:

I. The Third Circuit’s holding that Plain-

tiff had no cognizable interest in gifted

special education, thus Plaintiff had no

interest protectible by Due Process, :con-

flicts with applicable decisions of this

SA ior renee mama ek een rae 26

II. The Third Circuit’s holding that Plain-

tiff was not entitled to a “least restrictive

alternative” standard of review of her ap-

plication for gifted special education, rep-

resents a decision on an important ques-

tion of federal law which has not been,

but should be, settled by this Court ..... 31

III. The Third Circuit’s affirmance of the

District Court’s holding, that because

there is in its opinion, a rational relation-

ship between the enabling legislation for

special education and the agency regula-

ill

tions creating the “gifted” special educa-

tion classification, the State is not re-

quired to show that a substantial rela-

tionship exists, conflicts with applicable

decisions of this Couft.... 0.55.26. 6.5. 34

I oS ee rr eae th eee ee 36

TABLE OF CITATIONS

CASES:

Armstrong v. Manzo, 380 U.S. 545 (1965) ..... 30

Board of Education of the Hendrick Hudson

Central School District Board of Education

v. Rowley, 458 U.S. 176 (1982)........... 33

- Board of Regents of State Colleges v. Roth, 408

Sy UE ks a es a eae 21,

F.S. Royster Guano Co. v. Virginia, 253 U.S.

Ry En 5s hd hoa Gees ee kea es 35

Fuentes v. Shevin, 407 U.S. 67 (1972) ......... 29

Goss v. Lopez, 419 U.S. 565 (1975) ............ -

Hobson v. Hansen, 269 F.Supp. 401 (DC 1967),

affirmed sub nom Smuck v. Hobson, 408

Oe 17S CG Ge BO wn oc ce cece 32

Kleindienst v. Mandel, 408 U.S. 753 (1972) .... 34

Lindsley v. Natural Carbonic Gas Co., 220 U.S.

Oe NE orc ee a RRR TAS 35

Logan v. Zimmerman Brush Company, 455

ee Me SES ob fare cru aera yews ys 29, 32, 33

Memphis Light, Gas & Water Division v.

Cee, See OO. 4 MUP os pees s cate es 27, 29

Mills v. Board of Education, 348 F.Supp. 866

(EARe BOPED <Ac iti ioe Cire eee

Pennsylvania Association for Retarded Children

v. Commonwealth of Pennsylvania, Secre-

tary of Education et al., 334 F.Supp. 1257

(ED PA 1971) modified 343 F.Supp. 279

WR oo eee 16, 17, 18,

28, 31, 32,

San Antonio Independent School District v.

Rodriguez, 411 U.S. 1 (1973) ...17, 19, 21, 23.

William S. v. Gill, 536 F.Supp. 505 (ND IL

SUE C2 ix 09 kore es ce ae ee

Constitutional Provisions:

United States Constitution, Amendment I..... ii, 5,

10, Zi, 33,

United States Constitution, Amendment V .. 5, 16.

19, 21,

United States Constitution, Amendment XIV ..i. 5.

18, 21, 23, 29,

Constitution of Pennsylvania, Article III, Sec-

WO 86 ok tee ee eee i, 6, 18,

Constitution of Pennsylvania, Article III, Sec-

I TE A ele eee i, 6,

Statutes and Regulations:

Education of the Handicapped Act .....15, 16, 19,

OP R. OME... oe ee

HCI. eee. Se eee

ee | Regt

MG See. is eee

95 Ce. eee 6, 22, 26,

oy GE ene Rea lx: i, ii, 8, 15,

18, 22, 24, 26,

OO Pu. Ces BUS i 2s ee ees 27

99 Pa. Code $613.31 —.33 . 2... 2c ees 27

OS Ps: Ce SEs oes os ee oe 27

f, ae 2 © Genre rer i, 4, @, 86, Be,

18, 22, 24, 26, 35

92 Pau. Code 66001 11 —.16 . 2... ee cee: 27

TUG. TB Oe a ws hc tsi: 33

20 U.S.C. §1401(a)(1) ....- Pei nat 7

WUSC be.... 0... cee 4, 15

99 US. SICTID . «= 6 on ee eens es 3, 15

OR, SU 65 5 is a eee 4

/ oie oak Sinn 7S teres. eg eS 22

2 he. a eee rare eee eh ca 3, 15

ESS gh | re errr err TL 3, 15

Me te eee ea ie a eee 4, 15

Miscellaneous:

Pennsylvania Legislative Journal Fan eae 24

Ns ocak hee ae 35

Se eae re epee rae Prey roe 35

APPENDIX:

Memorandum Opinion of the Court of Appeals

ion Gh Te GA oo he i es 2a

Opinion and Order of the District Court for the

Eastern District of Pennsylvania .......... 5a

Order, dated June 27, 1966 ............... 13a

Special Education Opinion of the Pennsylvania,

Secretary of Education, No. 246.......... 15a

Order, dated February 5, 1985 ........... 27a

Petition for Writ of Certiorari

NO.

IN THE SUPREME COURT OF THE UNITED

STATES

October Term, 1986

STUDENT ROE, A MINOR

BY HER NEXT FRIEND AND NATURAL GUARDIAN,

M. ROE,

Petitioner

COMMONWEALTH OF PENNSYLVANIA,

SECRETARY OF EDUCATION, MARGARET | A.

SMITH,

IN HER OFFICIAL CAPACITY

AND

COMMONWEALTH OF PENNSYLVANIA,

EXECUTIVE SECRETARY, STATE BOARD OF EDU-

CATION,

JEFFREY GROTSKY, IN HIS OFFICIAL CAPACITY

AND

COMMONWEALTH OF PENNSYLVANIA,

MEMBERS, STATE BOARD OF EDUCATION,

JOHN HERSHEY, SISTER LAWREACE ANTOUN,

MADGE BENOVITZ, KEITH DOMS, ANNA LEE

DOWLING,

DONALD FOX, EARL HORTON, PAULETTE JOHN-

SON,

WILLIAM KIMMEL, HERBERT LAUTERBACH,

ROBERT BARENSFELD, NICHOLAS PANAGOPLOS

AND FRANK SULLIVAN, IN THEIR OFFICIAL CA-

PACITIES

Petition for Writ of Certiorari

AND

BENSALEM TOWNSHIP SCHOOL DISTRICT,

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

The Petitioner Student Roe, a minor, respectfully

prays that a Writ of Certiorari issue to review the judg-

ment and opinion of the United States Court of Appeals for

the Third Circuit, entered in the above-entitled proceed-

ing on February 2, 1987.

liebe

Opinions Below and Jurisdiction

OPINIONS BELOW

The opinion of the Court of Appeals for the Third Cir-

cuit is not reported, but is reprinted in the appendix

hereto, p. la, infra.

The opinion and order of the United States District

Court for the Eastern District of Pennsylvania (Lord, S. J.)

is reported at 638 F.Supp. 929, and is reprinted in the ap-

pendix hereto, p. 5a, infra.

The opinion and order of the Pennsylvania Secretary

of Education is unofficially reported at Special Education

Opinion No. 246, and is reprinted in the appendix hereto,

p. 15a, infra.

JURISDICTION

Invoking federal jurisdiction under 20 U.S.C.

§1415(e) (4) and 28 U.S.C. §§1331 & 1343, the Petitioner

brought this suit in the Eastern District of Pennsylvania.

On June 26, 1986, the Eastern District granted the

Respondents Motion for Judgment on the Pleadings and

dismissed Petitioners Complaint. See Appendix p. 13a,

infra.

On Petitioners appeal, the Third Circuit on February

2, 1987, entered a judgment and a memorandum opinion

affirming the Eastern Districts order directing that

petitioners Complaint be dismissed for failure to state a

Opinions Below and Jurisdiction

claim for relief under either 20 U.S.C. §1415(e) (2) or 42

U.S.C. §1983. See Appendix p. 2a, infra. No petition for

rehearing was sought.

The jurisdiction of this Court to review the judgment

of the Third Circuit is invoked under 28 U.S.C. §1254(1).

Constitutional Provisions,

Statutes and Regulations Involved

CONSTITUTIONAL PROVISIONS,

STATUTES AND REGULATIONS INVOLVED

UNITED STATES CONSTITUTION, AMENDMENT IL.

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof:

or abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

UNITED STATES CONSTITUTION, AMENDMENT

Vv.

No person shall be held to answer for a capital, or oth-

erwise infamous crime, unless on a presentment or in-

ditement of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual serv-

ice in time of War or public danger; nor shall any person

be subject for the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without-due process of law; nor shall

private property be taken for public use, without just com-

pensation.

UNITED STATES CONSTITUTION, AMENDMENT

XIV.

Section 1. All persons born or naturalized in the Unit-

ed States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

Constitutional Provisions,

Statutes and Regulations Involved

United States, nor shall any State deprive any persons of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protec-

tion of the laws. |

PENNSYLVANIA CONSTITUTION, ARTICLE IIL.

Section 14. Public school system.

The General Assembly shall provide for the

maintenance and support of a thorough and efficient

system of public education to serve the needs of the

Commonwealth.

* * * * *

Section 32. Certain local and special laws.

The General Assembly shall pass no local or spe-

cial law in any case which has been or can be provid-

ed for by general law and specifically the General As-

sembly shall not pass any local or special law:

1. Regulating the affairs of counties, cities,

townships, wards, boroughs or school districts:

[Numbers 2 through 8 are omitted as not rele-

vant. |

Nor shall the General Assembly indirectly enact

any special or local law by the partial repeal of a gen-

eral law; but laws repealing local or special laws may

be passed.

PENNSYLVANIA SCHOOL CODE OF 1949, AS

AMENDED.

24 P.S. §13-1371. Definition of exceptional children;

reports; examination.

Constitutional Provisions,

Statutes and Regulations Involved

(1) The term “exceptional children” shall mean chil-

dren of school age who deviate from the average in physi-

cal, mental, emotional or social characteristics to such an

extent that they require special educational facilities or

services and shall include all children in detention homes.

(2) It shall be the duty of the district superinten-

dent, in every school district in accordance with rules of

procedure prescribed by the Superintendent of Public In-

struction, to secure information and report to the proper

intermediate unit, on or before the fifteenth day of

October of each year, and thereafter as cases arise, every

exceptional child within said district. As soon thereafter as

possible the child shall be examined by a person certified

by the Department of Public Instruction as a public school

psychologist, and also by any other expert which the type

of handicap and the child’s condition may necessitate. A re-

port shall be made to the proper intermediate unit of all

such children examined and of all children residing in the

district who are enrolled in special classes.

UNITED STATES EDUCATION OF THE HANDI-

CAPPED ACT.

20 U.S.C. §1401. Definitions.

(a) As used in this chapter—

(1) The term “handicapped children” means mental-

ly retarded, hard of hearing, deaf, speech or language im-

paired, visually handicapped, seriously emotionally dis-

turbed, orthopedically impaired, or other health impaired

children, or children with specific learning disabilities,

who by reason thereof require special education and relat-

ed services.

Constitutional Provisions,

Statutes and Regulations Involved

PENNSYLVANIA STATE BOARD OF EDUCATION

REGULATIONS.

22 Pa. Code §13.1 Definitions.

The following words and terms, when used in this

chapter, have the following meanings, unless the context

clearly indicates otherwise:

[Non-relevant words and terms omitted. |

Exceptional persons—Persons of school-age who devi-

ate from the average in physical, mental, emotional or so-

cial characteristics to such an extent that they require spe-

cial educational programs, facilities or services and shall

include school-aged persons in detention homes and State

schools and hospitals.

(i) Handicapped school-aged persons—This term

shall include the following:

(A) Mentally handicapped persons who are educable

mentally retarded, trainable mentally retarded,

severely and profoundly mentally retarded and so-

cially and emotionally disturbed.

(B) Physically handicapped persons who are physically

handicapped, brain damaged, learning disabled,

speech or language impaired, visually handi-

capped and hearing impaired.

severe handicaps as defined in clauses (A) and (B).

(ii) Gifted and talented school-aged persons—Those

who, in accordance with criteria prescribed in standards

developed by the Secretary of Education, have outstanding

intellectual or creative ability, the development of which

Constitutional Provisions,

Statutes and Regulations Involved

requires special activities or services not ordinarily provid-

ed to regular children by local educational agencies.

PENNSYLVANIA DEPARTMENT OF EDUCATION

STANDARDS.

22 Pa. Code §341.1. Definitions.

The following words and terms, when used in this

chapter, have the following meanings, unless the context

clearly indicates otherwise:

[Non-relevant words and terms omitted. ]

Exceptional persons—Those persons evaluated in ac-

cordance with this chapter as being hearing impaired,

mentally gifted and talented, mentally retarded, physically

handicapped, learning disabled, brain damaged, speech

and language impaired, socially and emotionally distur-

bed, visually impaired, or severely multihandicapped.

These terms are further defined as follows:

(i) Brain damaged—{ Definition omitted. |

(ii) Hearing impaired—[{Definition omitted. ]

(iii) Learning disability—[{Definition omitted. ]

(iv) Mentally gifted—Outstanding intellectual and

creative ability the development of which requires special

activities or services not ordinarily provided in the regular

program. Persons shall be assigned to a program for the

gifted when they have an IQ of 130 or higher. A limited

number of persons with IQ scores lower than 130 may be

admitted to gifted programs when other educational crite-

ria in the profile of the person strongly indicate gifted abili-

ty.

(v) Mentally retarded—Impaired mental develop-

ment which adversely effects the educational performance

Constitutional Provisions,

Statutes and Regulations Involved

of a person. A mentally retarded person exhibits signifi-

cantly impaired adaptive behavior in learning, maturation,

or social adjustment as a result of sub-average intellectual

functioning. The degree of retardation and the level of so-

cial and academic functioning, not deviant behavior

patterns, shall be the factors in determining the individual-

ized program. A person shall be assigned to a program for

the mentally retarded when the evaluation and Individual-

ized Education Program indicate that such a person is ap-

propriate; provided that no person shall be assigned to a

program for the:

(A) educable mentally retarded unless the IQ score of

that person is lower than 80;

(B) trainable mentally retarded unless the IQ score of

that person is lower thar 55; or

the adaptive behavior of that person is so severely

impaired that education programing is oriented to

behaviors which may be considered absolutely

basic to higher levels of skilled performance; in-

dividuals with an IQ score lower than 30 may be

considered for these programs and shall be evalu-

ated by a physician prior to assignment.

(vi) Physically handicapped—{Definition omitted. |

(vii) Severely multihandicapped—{Definition omit-

ted. |

(viii) Socially and emotionally disturbed—{Defini-

tion omitted. |

(ix) Speech and language impaired—{Definition

omitted. |

Constitutional Provisions,

Statutes and Regulations Involved

(x) Talented—Outstanding talent as identified by a

team of educators and professionals competent in the areas

on art, music, dance, photographic arts, or theater, the de-

velopment of which requires special activities or services

not ordinarily provided in the regular program. A person

identified as talented shall be eligible to attend the Gov-

ernors School for the Arts.

(xi) Visually impaired—[Definition omitted. |

[Remaining non-relevant words and terms omitted. ]

UNITED STATES DEPARTMENT OF EDUCATION

REGULATIONS.

Chapter III. Office of Special Education and

Rehabilitative Services.

PROTECTION IN EVALUATION PROCEDURES.

34 C.F.R. §300.532. Evaluation procedures.

State and local educational agencies shall insure, at a

minimum, that:

(a) Tests and other evaluation materials:

(1) [Omitted as not relevant. |;

(2) Have been validated for the specific purpose

for which they are used; and

(3) [Omitted as not relevant. |:

(b) Tests and other evaluation materials include those

tailored to assess specific areas of educational need

and not merely those which are designed to

provide a single general intelligence quotient;

Constitutional Provisions,

Statutes and Regulations Involved

(d) No single procedure is used as the sole criterion

for determining an appropriate educational pro-

gram for a child; and

(e) The evaluation is made by a multidisciplinary

team or group of persons, including at least one

teacher or specialist with knowledge in the area of

suspected disability.

(f) The child is assessed in all areas related to the sus-

pected disability, including, where appropriate,

health, vision, hearing, social and emotional

status, general intelligence, academic perform-

ance, communicative status, and motor abilities.

34 C.F.R. §300.533. Placement procedures.

(a)

In interpreting evaluation data and in making

placement decisions, each public agency shall:

(1) Draw upon information from a variety of

sources, including aptitude and achievement

tests, teacher recommendations, physical con-

dition, social or cultural background, and adap-

tive behavior;

(2) Insure that information obtained from all of

these sources is documented and carefully con-

sidered;

(3) Insure that the placement decision is made by

a group of persons, including persons knowl-

edgeable about the child, the meaning of the

evaluation data, and the placement options;

and

Constitutional Provisions,

Statutes and Regulations Involved

(4) Insure that the placement decision is made in

conformity with the least restrictive environ-

ment rules in §§300.550-300.554.

(b) If a determination is made that a child is handi-

capped and needs special education and related

services an individualized education program

must be developed for the child in accordance

with §§300.340-300.349 of Subpart C.

LEAST RESTRICTIVE ENVIRONMENT.

34 C.F.R. §300.550. General.

(a) Each State educational agency shall insure that

each public agency establishes and implements procedures

which meet the requirements of §§300.550-300.556.

(b) Each public agency shall insure:

(1) That to the maximum extent appropriate, handi-

capped children, including children in public or

private institutions or other care facilities, are ed-

ucated with children who are not handicapped,

and

(2) That special classes, separate schooling or other

removal of handicapped children from the regular

educational environment occurs only when the na-

ture or severity of the handicap is such that educa-

tion in regular ciasses with the use of supple-

mentary aides and services cannot be achieved

satisfactorily.

34 C.F.R. §300.552. Placements.

Each public agency shall insure that:

(a) Each handicapped child’s educational placement:

Constitutional Provisions,

Statutes and Regulations Involved

(1) Is determined at least annually,

(2) Is based on his or her individualized education

program, and

(3) Is as close as possible to the child's home;

(b) The various alternative placements included under

(d)

§300.551 are available to the extent necesssary to

implement the individualized education program

for each handicapped child;

Unless a handicapped child's individualized edu-

cation program requires some other arrangement,

the child is educated in the school which he or she

would attend if not handicapped; and

In selecting the least restrictive environment, con-

sideration is given to any potential harmful effect

on the child or the quality of services which he or

she needs.

Statement of the Case

STATEMENT OF THE CASE

Petitioner has been a public school student in Penn-

sylvania for eleven years. In 1986, she instituted this civil

rights action, also sounding under the Education of the

Handicapped Act, pursuant to 42 U.S.C. §1983 and 20

U.S.C. §1415(e) (2). The jurisdiction of the District Court

was invoked under 28 U.S.C. §§1331 and 1343, and 20

U.S.C. §1415(e) (4). The complaint alleged that, from the

time she commenced her public school education in 1976

until she requested a Due Process Hearing in 1984, in or-

der to determine her eligibility for Gifted Special Educa-

tion pursuant to Pennsylvania State Board of Education

Regulations and Pennsylvania Department of Education

Standards, 22 Pa. Code §§13.1 & 341.1, she had never

been given notice that she was being excluded from gifted

special education or, indeed, that gifted special education

existed and that she could request assignment to the gifted

special education curriculum. Thus, petitioner complained

that she had been denied of a significant property interest,

the justification for which was plausibly disputed, without

prior notice or opportunity to be heard. Additionally, Peti-

tioner alleged in her complaint that Pennsylvania denied

her the equal protection of the laws in two respects. First,

she alleged that the gifted and talented classification creat-

ed by the Pennsylvania Board of Education's promulgation

of the definition of “exceptional persons” at 22 Pa. Code

§13.1, offends the Equal Protection Clause, because its

purpose is not substantially related to the purpose of the

General Assemblys enabling legislation for special educa-

Statement of the Case

tion, which historically was to remediate physical handi-

caps to learning. Second, Petitioner complained that Penn-

sylvania denied her the equal protection of the laws when

the special education hearing officer refused to judge her

application for gifted special education in accordance with

a least restrictive alternative standard, and again when the

Secretary of Education affirmed the decision of the hearing

officer that in Pennsylvania the least restrictive alternative

standard of educational assignment is not required by law.

The complaint alleged that Petitioner was entitled to the

least restrictive alternative standard in her application for

gifted special education, because Pennsyivanias Constitu-

tion explicitly guarantees a free public education to all its

school-aged children, including Petitioner, and that the

Secretary of Education in 1972, had explicitly and implicit-

ly recognized the “fundamentality” of education in Penn-

sylvania, and had agreed to “strictly scrutinize” the equal

protection complaints of mentally handicapped children in

the Amended Consent Decree approved for the settlement

of Pennsylvania Association for Retarded Children v.

Commonwealth of Pennsylvania, Secretary of Education,

343 F.Supp. 279 (ED PA 1972) (hereinafter referred to as

PARC v. Pa., Sec. of Ed., or “PARC II”). Thus, Petitioner

alleged that Pennsylvania denied her the equal protection

of the laws guaranteed to her by the United States Consti-

tution, Amendment XIV, when its special education hear-

ing officer and Secretary of Education did not judge her

application for gifted special education by the same stan-

dard as it is bound by law to judge the applications of public

school students for handicapped special education. Petitioner

further alleged that because the PARC case became the basis

of the 1975 federal Education of All Handicapped Children

Act and incorporated the “least restrictive” terms of the

Statement of the Case

Amended Consent Decree of the PARC case, the dichoto-

my thus created as between the educational right of handi-

capped and non-handicapped children by the different

renderings of education as either “fundamental” or “non-

fundamental” by Congress in 1975, and this Court in

1973, by its decision in San Antonio Independent School

District v. Rodriguez, 411 U.S. 1, is impermissible under

the United States Constitution, Amendment V. Lastly, Pe-

titioner inplicitly alleged that the Free Speech Clause of

the United States Constitution, Amendment I, in the con-

text of this case, also entitled her to a “least: restrictive

alternative” standard of review of her application for gifted

special education.

Petitioners alleged denial of procedural due process of

law is based upon the following facts and theories: (1)

Pennsylvania created in her and all public school students,

a property interest in gifted special education, when its

agencies created the educational assignment, admitted to

be an assignment preferred to regular education, by their

promulgation of the definition of “exceptional persons” as

including “gifted and talented” children at 22 Pa. Code

§§13.1 & 341.1; (2) Petitioners grade point average of 4.0,

standardized achievement test scores in the ninetieth per-

centile nationwide, teacher comments, extracurricular ac-

tivities, and an IQ test score of 121, gave her a putative

claim of entitlement to assignment to gifted special educa-

tion; and (3) she had never been notified by the State or

any of its agencies at any time, since the commencement of

her public school education in 1976, that an assignment to

gifted special education existed, that she was being exclud-

ed from it, or that if she believed she was not receiving a

public education appropriate to her needs and learning

abilities, she could request a hearing on her complaint and

Statement of the Case

possibly have her grievances redressed by assignment to

gifted special education.

Petitioners alleged denial of the equal protection of

the laws under the United States Constitution, Amend-

ment XIV, is based upon two separate and distinct theo-

ries. First, the complaint alleged that the States regula-

tions creating gifted special education through definitions

at 22 Pa. Code §§13.1 & 341.1, are not substantially relat-

ed to the State's legislation creating the special education

classification in the first instance, which historically was for

the purpose of remediating physical handicaps to learning.

Second, the complaint alleged that Pennsylvania’ refusal

to accord her a “least restrictive alternative’ standard in

the determination of her application for gifted special edu-

cation, denied her the equal protection of the laws under

the Fourteenth Amendment, because the State accords

that standard of review to the applications of handicapped

children applying for special education. Moreover, Peti-

tioner alleged that the Pennsylvania Secretary of Educa-

tion had, in part, predicated his settlement with the Penn-

sylvania Association for Retarded Children in PARC v. Pa.,

Sec. of Ed., supra, upon his acknowledgement of the claim

of PARC, that under Pennsylvanias Constitution, Article

Ill, section 14, a free public education is guaranteed to all

Pennsylvania school-aged children, thus requiring a “strict

scrutiny’ test of equal protection analysis under Pennsyl-

vanias Constitution, Article III, section 32, and appiication

of a “least restrictive alternative” standard of reviewing

applications for assignment to either special education or

regular education. Thus, Petitioner complained that she

was denied the equal protection of the laws when her ap-

plication for gifted special education was not reviewed by

the same standard as the applications of handicapped chil-

Statement of the Case

dren for assignment to either special education or regular

education.

Petitioners complaint also alleges that she is denied

the equal protection of the laws implicitly guaranteed to

her by the United States Constitution, Amendment V, be-

cause the Education of All Handicapped Children Act,

now renamed the Education of the Handicapped Act, is

based upon and incorporates the terms and provisions of

the Amended Consent Decree of PARC v. Pa., Sec. of Ed.,

supra, which terms and provisions, in part, were based

upon the parties joint recognition that in Pennsylvania

public education is a constitutionally guaranteed right and,

thus, deemed “fundamental”, whereas this Court's decision

in San Antonio Independent School District v. Rodriguez,

supra, held that education is not a right guaranteed by the

United States Constitution and, thus, not a federal

“fundamental” right for purposes of constitutional con-

struction. Petitioner, therefore, alleges that there is an im-

permissible dichotomy created as between the nature of

the educational rights held by the handicapped children

and the nature of the educational rights held by non-

handicapped children, as a result of the differences in

treatment of education by Congress and this Court.

Lastly, Petitioners complaint implicitly alleges that, in

any event, she is entitled to a “least restrictive alternative’

standard of review of her application for gifted special edu-

cation as a matter of her United States Constitutional guar-

antee to free speech, or the right to receive information

and ideas.

Petitioners complaint also alleged that Pennsylvania

denied her the equal protection of the laws by denying her

application for gifted special education based upon the

Statement of the Case

results of an IQ test score, because the test used to make

that classification was neither designed for the purpose of

determining outstanding mental ability, nor validated for

such use. Thus, Petitioner alleged that even under a

“rational relation” test of equal protection analysis, Penn-

sylvania had denied her the equal protection of the laws.

However, that question is not here presented to the Court,

because it appears that IQ test scores are irrevocably as-

sumed by the American public to do exactly what they say

they do, test intelligence. Also, because the inclusion of

that issue would likely unduly complicate already compli-

cated issues and detract from the greater importance of

those issues.

Petitioner was a middle school student at the time she

commenced the due process procedures under Pennsyl-

vanias administrative regulations for special education. To-

day, Petitioner is concluding her second year of high

school, and based upon her cumulative scholastic record,

activities and interests, she continues to believe that she is

in need of, and would benefit from, an assignment to gift-

ed special education.

In the District Court, the Pennsylvania Defendants

filed an Answer with seven affirmative defenses to Peti-

tioners Complaint. The Pennsylvania Defendants then

filed a Motion for Judgment on the Pleadings. The Respon-

dents’ Motion for Judgment on the Pleadings was granted

by the District Court on June 27, 1986. See Appendix p.

13a, infra.

Several aspects of the District Court's opinion grant-

ing Respondents’ Motion for Judgment on the Pleadings

require emphasis:

(1) The District Court rejected Petitioners claim,

that Pennsylvania denied her procedural due process of

2] -

Statement of the Case

law when it failed to notify her that she was about to be

excluded from gifted special education, or that gifted spe-

cial education existed as an alternative to or as an adjunct

of regular education, and that she could request a hearing

in order to determine her eligibility for assignment to gift-

ed special education, on the basis that she did not have a

“property interest” in gifted special education, because she

had not demonstrated that she possessed the minimum re-

quired IQ score of 130. Thus, the District Court concluded

that Petitioner had only “an abstract need or desire for”

gifted special education, and not “a legitimate claim of en-

titlement to it.” See Appendix p. 8a, infra.

(2) The District Court completely ignored and did

not discuss in its opinion, Petitioner's claim that Pennsylva-

nia had already agreed to apply a “least restrictive alterna-

tive” standard of review to the applications of handicapped

children for special education, and that Pennsylvania’

subsequent refusal to apply the same standard of review to

her application for gifted special education, impermissibly

denied her the equal protection of the laws as guaranteed

by the United States Constitution, Amendment XIV.

(3) The District Court likewise ignored and did not

discuss in its opinion granting Respondents Motion for

Judgment on the Pleadings, Petitioner's similar argument

with respect to the Education of the Handicapped Act and

this Courts decision in San Antonio Independent School

District v. Rodriguez, supra, under the United States

Constitution, Amendment V. See Appendix p. 10a, infra.

(4) The District Court rejected Petitioner's claim

that Pennsylvania denied her free speech or the right to

receive information and ideas under the United States

Constitution, Amendment I, when it refused to judge her

Statement of the Case

application for gifted special education by a “least restric-

tive alternative’ standard, on the ground that Petitioner

had “not identified any information or ideas which she has

been precluded from receiving,” in spite of the fact that

Petitioner had caused the entire gifted special education

curriculum for her grade level at the time of her due

process hearing to be placed of record with the hearing

officer, and subsequently with the District Court. See dl

pendix p. 10a, infra.

(5) The District Court did not discuss or determine

whether Pennsylvanias administrative regulations at 22 Pa.

Code §§13.1 & 341.1, which by definition create the gift-

ed special education classification, are substantially related

to the purpose of Pennsylvania’ legislation creating the

general special education classification, which historically

was for the purpose of remediating physical handicaps to

learning. Rather, the District Court decided that there ex-

ists a rational relationship between the agencies inclusion

of “gifted and talented” children within the definition of

“exceptional persons” at 22 Pa. Code §§13.1 & 341.1, and

the Legislature's definition of “exceptional persons’ at 24

P.S. §13-1371. See Appendix p. lla, infra.

In due course, Petitioner appealed to the Third Cir-

cuit from the final Order of the District Court and invoked

the Third Circuit's jurisdiction under 28 U.S.C. §1291 to

review “final decisions’ of district courts.

The Third Circuit thereupon reviewed the opinion of

the District Court and found that it had “applied the cor-

rect standards’, and moreover found that “no reversible er-

ror in the disposition of the issues” in the case had been

committed. Accordingly, the Third Circuit affirmed the

Order of the District Court. See Appendix p. 4a, infra.

Statement of the Case

Several aspects of the Memorandum Opinion of the

Third Circuit affirming the Order of the District Court dis-

missing Petitioners complaint, also require emphasis:

(1) The Third Circuit did not discuss the merits of

the District Courts opinion rejecting Petitioners claim of

denial of procedural due process of law, which was on the

basis that Petitioner did not possess a “property interest”

in gifted special education so as to require any notice to

her prior to being excluded therefrom by the State. The

Third Circuit, apparently, accepted the District Court's ra-

tionale and application of law on this issue. See Appendix

p. 3a, infra.

(2) The Third Circuit like the District Court, ig-

nored Petitioners complaint allegations and briefed argu-

ments that she was entitled to a “least restrictive alterna-

tive’ standard of reviewing her application for gifted spe-

cial education, because Pennsylvania had already agreed

to apply such standard to the applications of handicapped

children for special education and, thus, it would deny Pe-

titioner the equal protection of the laws as guaranteed to

her by the United States Constitution, Amendment XIV,

not to apply to her application for gifted special education

the same standard it was already applying to the applica-

tions of handicapped children for special education. In-

stead, the Third Circuit, like the District Court, held

simply that the Petitioner is not entitled to the relief she

seeks, because this Court had decided in San Antonio In-

dependent School District v. Rodriguez, supra, that educa-

tion is not a right guaranteed by the United States Consti-

tution, and, thus, not a “fundamental” right for purposes of

equal protection analysis. See Appendix p. 3a, infra.

(3) Even though Petitioner included in her Appen-

dix large portions of the gifted special education curricu-

Statement of the Case

lum and pointed out in her Brief that it was the informa-

tion and ideas contained in that curriculum to which she

was denied access, because of the State's refusal to apply a

“least restrictive alternative” standard of review to her ap-

plication for gifted special education, the Third Circuit did

not discuss in its Memorandum Opinion affirming the Or-

der of the District Court, Petitioner's contention that she is

entitled to a “least restrictive alternative’ standard of

review as a matter of her Constitutional guarantee to free

speech, which includes the right to receive information

and ideas. See Appendix p. 3a, infra. The District Court's

rejection of this claim by Petitioner was premised upon its

finding that she had not identified any information or ideas

to which she had been denied access.

(4) The Memorandum Opinion of the Third Circuit

entirely omits any discussion of Petitioners claim that

Pennsylvanias administrative regulations creating, by defi-

nition, the gifted special education classification, 22 Pa.

Code §§13.1 & 341.1, are not substantially related to

Pennsylvanias enabling legislation establishing the general

special education classification, which historically was for

the purpose of remediating physical handicaps to learning.

This omission by the Third Circuit was in spite of the fact

that Petitioner had included in her Addendum to her

Brief, pertinent copies of Pennsylvanias Legislative Jour-

nal tracing the history and purpose of Pennsylvanias ena-

bling legislation for special education, which was unequiv-

ocally for the purpose of remediating physical handicaps to

learning. See Appendix p. 2a, infra.

In short, the Third Circuit, like the District Court,

ignored or failed to consider Petitioner's claim of denial of

equal protection of the laws through disparate treatment

Statement of the Case

by Pennsylvania, for which there is no rational basis. The

remainder of Petitioners claims, which were discussed and

decided by the District Court, were also rejected by the

Third Circuit in a rather summary fashion, without further

consideration or discussion of the arguments made by Peti-

tioner in support of her claims on appeal. The Third Cir-

cuits affirmance of the Opinion and Order of the District

Court lends little in the way of elucidating the actual issues

Petitioner raised in her complaint and on appeal. Thus,

whether or not Petitioners complaint states a cause of ac-

tion for which relief can be granted, is actually still a mat-

ter largely undecided, and to the extent that it has been

decided, the rationale for the decision is contained only in

the District Court's Opinion and Order. See Appendix p.

4a, infra.

Reasons for Granting the Writ

REASONS FOR GRANTING THE WRIT

The Third Circuit’s holding that Plaintiff had no cogni-

zable property interest in gifted special education, thus

Plaintiff had no interest protectible by Due Process, con-

flicts with applicable decisions of this Court.

Pennsylvanias State Board of Education has promul-

gated that “gifted and talented” children, i.e., those with

“outstanding intellectual or creative ability” as defined by

the Secretary of Education, are within the “exceptional

persons” classification, and, thus, are entitled to assign-

ment to special education as provided by the Legislature

at 24 P.S. §13-1371. See 22 Pa. Code §13.1 at p. 8, supra.

The State's Secretary of Education has defined “mentally

gifted” as persons with “outstanding intellectual and crea-

tive ability the development of which requires special ac-

tivities or services not ordinarily provided in the regular

program.” By regulation of the Pennsylvania Department

of Education, children are presumed absolutely to be

“mentally gifted’, as thus defined, “when they have an IQ

of 130 or higher.” By deduction, children who have an IQ

below 130 are conclusively presumed not to possess

“outstanding intellectual and creative ability the develop-

ment of which requires special activities or services not

ordinarily provided in the regular program,” except “when

other educational criteria in the profile of the person

strongly indicate gifted ability.” See 22 Pa. Code §341.1 at

p. 9, supra.

) 27

Reasons for Granting the Writ

It would seem clear that the above definitions provid-

ing entitlement to special education pursuant to State

Statute are “rules or understandings that secure certain

benefits’, Board of Regents of State Colleges v. Roth, 408

U.S. 564, 577 (1972), and thus create property interests in

school-aged children of Pennsylvania, including your Peti-

tioner. Furthermore, as a result of the PARC Amended

Consent Agreement, the Pennsylvania State Board of Edu-

cation and Secretary of Education promulgated elaborate

“Due Process Procedures” in their regulations to protect

against unwarranted invasion by the State against

childrens interest in receiving an appropriate education.

These “Due Process Procedures” are specifically made ap-

plicable to “gifted and talented” children. See 22 Pa. Code

§§13.21, 13.31—.33, 13.62, 341.11—.18 (not re-printed in

this Petition, but provided to the Third Circuit in the Ad-

dendum to Appellant's brief). More recently this Court has

said that a “property” interest is created by “an indepen-

dent source such as state law’, and that the availability of

“local-law remedies is evidence of the State's recognition of

a protected interest.” Memphis Light, Gas & Water Divi-

sion v. Craft, 436 U.S. 1, 9, 11 (1978).

This Court also held in Goss v. Lopez, 419 U.S. 565,

575 (1975), that potential damage to a student's later op-

portunities for higher education and employment invades

his or her “liberty interest’, thus triggering the need for

prior notice and opportunity to challenge the invasion as a

safeguard against wrongful deprivation. Although not

pointed out in the Statement of the Case, infra, your Peti-

tioner did point out to the Third Circuit by way of Supple-

mental Appendix and Reply Facts, that gifted and talented

high school students at Petitioner's school—Bensalem

High School—receive added weighting factors for gifted

Reasons for Granting the Writ

courses for purposes of calculating their class rank. Thus,

Petitioner argued, she had suffered the invasion of a liber-

ty interest without benefit of prior notice and opportunity

to prevent the invasion.

With regard to the claimed “property” interest, how-

ever, Petitioner additionally argued below that, unlike

handicapped special education, gifted special education is

in fact the “preferred” educational assignment, thus a

fortiori triggering the need for prior notice and opportu-

nity to be heard before being excluded from that educa-

tional assignment. She argued by way of reverse analogy

from the District Court's discussion upon approval of the

initial Consent Agreement in the PARC case. See Pennsyl-

vania Association for Retarded Children v. Pennsylvania,

Secretary of Education, 334 F.Supp. 1257 (ED PA 1971)

(hereinafter “PARC I”). The District Court noted in PARC

I, and the Amended Consent Agreement of PARC II rec-

ognized, that assignment to regular education is deemed

to be the preferred educational assignment, thus trigger-

ing the need of prior notice and opportunity to be heard

upon the State's intended exclusion of any public school

student from regular education classes. Therefore, Peti-

tioner argued below that she was entitled to the same no-

tice and opportunity to be heard prior to her exclusion

from gifted special education classes. See PARC v. Pa., Sec.

of Ed. (PARC II), supra at 307. See also PARC v. Pa., Sec.

of Ed. (PARC I), supra at 1260.

However, the Third Circuit and the District Court

held that because Petitioner did not have an IQ score of

130, she nonetheless did not have a “property” interest in

gifted special education. Although Petitioner argued to the

Third Circuit that her educational record or profile at least

Reasons for Granting the Writ

brought her within the range of being a putative “gifted”

person, so as to invoke Fourteenth Amendment protection

of her as yet undetermined interest in special education,

the Court did not recognize any federal protection for such

a contingent interest. But Petitioner believes that the

Third Circuit's decision is in conflict with prior applicable

decisions of this Court.

For instance, in the very case cited by the District

Court in support of its holding, Board of Regents of State

Colleges v. Roth, supra at 577, this Court said that it is the

very purpose of “due process” hearings “to provide an op-

portunity for a person to vindicate those claims’, meaning

claims of entitlement “grounded in the statute defining eli-

gibility for them.” And, as the Court said in Memphis

Light, Gas & Water Division v. Craft, supra at 11, quot-

ing its earlier decision in Fuentes v. Shevin, 407 U.S. 67,

86 (1972): “The Fourteenth Amendment's protection of

‘property .. . has never been interpreted to safeguard

only the rights of undisputed ownership.” As more recently

stated by the Court in Logan v. Zimmerman Brush Com-

pany, 455 U.S. 422, 434 (1982):

[T]he State may not finally destroy a property interest

without first giving the putative owner an opportunity

to present his claim of entitlement.

Thus, Petitioner believes that the decision of the

Third Circuit upholding the District Court's judgment that

Petitioner never possessed a “property” interest in gifted

special education, which would be protectible by the

Fourteenth Amendment, is in error and in plain conflict

with this Court's previous applicable decisions.

Likewise, Petitioner believes that she also possessed a

cognizable “liberty” interest in gifted special education

Reasons for Granting the Writ

from the time she commenced her public school educa-

tion, and for this reason, also, was denied Due Process by

not being given the opportunity for a hearing prior to be-

ing excluded from a gifted special education assignment

and curriculum.

Petitioner's position appears to be supported by this

Court’ decisions cited above and in its longstanding

statement reiterated in Armstrong v. Manzo, 380 U.S.

545, 550 (1965):

Many controversies have raged about the cryptic and

abstract words of the Due Process Clause but there

can be no doubt that at a minimum they require that

deprivation of life, liberty or property by adjudication

be preceded by notice and opportunity for hearing ap-

propriate to the nature of the case. Mullane v. Central

Hanover Bank & Tr. Co., 339 U.S. 306, at 313, 70

Supreme Ct. 652, at 656, 94 L.Ed. 865.

(Emphasis added.)

Thus Petitioner believes that the Third Circuit has

decided two important questions of federal law, which have

not been, but should be settled by this Court, and other-

wise has decided a federal question in a way in conflict

with applicable decisions of this Court.

Reasons for Granting the Writ

The Third Circuit's holding that Plaintiff was not entitled

to a “least restrictive alternative” standard of review of

her application for gifted special education, represents a

decision on an important question of federal law which

has not been, but should be, settled by this Court.

In 1971, the Pennsylvania Association for Retarded

Children (hereinafter referred to as “PARC”) brought a

landmark class action suit against the Pennsylvania De-

partment of Education Secretary and the Pennsylvania

State Board of Education, et al., seeking declaratory and

injunctive relief from the state agencies refusal to admit

into its schools and educate some of its handicapped chil-

dren, and their transferring of other handicapped children,

without prior notice or opportunity to be heard, out of reg-

ular education and into special education classes or

schools. PARC claimed that such children were denied the

equa! protection of the laws under Pennsylvanias Constitu-

tion and the Constitution of the United States. More speci-

fically, PARC contended that the provisions of Pennsyl-

vanias Constitution at Article 3, Section 14, make educa-

tion in Pennsylvania a “fundamental” right for purposes of

equal protection scrutiny, inter alia. See Pennsylvania As-

sociation for Retarded Children v. Pennsylvania, Secre-

tary of Education, et al., 334 F.Supp. 1257 (ED PA 1971),

modified 343 F.Supp. 279, 283 (1972). In that case, the

Pennsylvania Secretary of Education, represented by the

Attorney General of Pennsylvania, agreed with the equal

protection claims of the Pennsylvania Association for

Retarded Children, and furthermore agreed to grant to the

handicapped children the relief they sought upon the basis

Reasons for Granting the Writ

that education in Pennsylvania is a “fundamental” or con-

stitutional right. Id., 343 F.Supp. at 299-300 & 307. This

interpretation is consistent with prior statements of the

Pennsylvania Attorney General in this case, and with in-

terpretations of PARC I and II by other United States Dis-

trict Courts. See Mills v. Board of Education, 348 F.Supp.

866, 873-76 (DC 1972); William S. v. Gill, 536 F.Supp.

505, 511 (ND IL 1982). See also Hobson v. Hansen, 269

F.Supp. 401, 492-517 (DC 1967), affirmed sub nom Srwuck

v. Hobson, 408 F.2d 175 (DC Cir 1969).

Plaintiff, therefore, has contended upon the basis of

this Court's decision in Logan v. Zimmerman Brush Com-

pany, supra at 438-444, that the Secretary's decision not to

review her application for gifted special education accord-

ing to a “least restrictive alternative’ standard, when she is

bound by her predecessors Amended Consent Agreement

to do so for handicapped children, PARC II, supra at 306

& 316, denies her the equal protection of the laws, which

is proscribed by the Fourteenth Amendment to the Unit-

ed States Constitution. Plaintiff contended in her Excep-

tions to the Hearing Officer's Recommendation, her appeal

Complaint to the United States District Court, and in her

appeal from the dismissal of her Complaint to the United

States Third Circuit Court of Appeals, that not to accord

her the same standard of review of her application for spe-

cial education as Pennsylvania accords to handicapped

children, i.e., the least restrictive alternative, effectively

creates twa classes of public school students: those for

whom education is “fundamental” and whose claims of

educational abridgement are scrutinized strictly, and those

whose educational rights are “non-fundamental” and

whose claims of educational abridgement are scrutinized

on a “rational” basis. Plaintiff further argued to a logical

| 33

Reasons for Granting the Writ

conclusion, that this state-created classification does not

bear a rational relationship to a legitimate governmental

objective, and that the classification must be declared un-

constitutional and the disparate treatment enjoined from

further practice and implementation. Logan v. Zimmerman

Brush Company, supra. Neither the Secretary, the Dis-

trict Court nor the Third Circuit discussed, considered or

even mentioned this express complaint made by Plaintiff,

which was even the central thrust of her complaint and

appeal.

Based upon and to the same effect, Plaintiff also ar-

gued that because the PARC case, supra, became the basis

of the 1975 federal Education of All Handicapped Children

Act, now known as the Education of the Handicapped Act

(20 U.S.C. $1400, et seq.), and said Act by Congress incor-

porated the “least restrictive alternative’ concept into its

placement provisions, which concept is indigenous to edu-

cation as a “fundamental” right, there has been created an

impermissible classification under the United States Con-

stitution, Amendment V: Those for whom education is es-

sentially a “fundamental” right or are entitled to a “least

restrictive alternative’ standard of placement-—handicap-

ped children, Education of the Handicapped Act, 20

U.S.C. §1400, et seq., and those for whom education is a

“non-fundamental” right or are not entitled to a “least re-

strictive alternative’ standard of educational placement—

regular or non-handicapped children, San Antonio Inde-

pendent School District v. Rodriguez, supra. See also

Board of Education of the Hendrick Hudson Central

School District Board of Education v. Rowley, 458 U.S.

176, 180 & fn. 2, 194-197 & fns. 18 & 21 (1982). Likewise,

the agencies and courts below declined to comment or

rule upon this challenge.

Reasons for Granting the Writ

Finally, Plaintiff argued, that even failing the above

arguments, she was nonetheless entitled to a “least restric-

tive alternative” standard of review of her application for

special education, based upon her Constitutional guaran-

tee to freedom of speech, United States Constitution,

Amendment I. Plaintiff believes that identification of the

Gifted Curriculum as the “information or ideas which she

has been precluded from receiving,” was sufficient

“identification” to implicate her First Amendment Right to

freedom of speech. See Appendix p. 10a, infra. See also

Kleindienst v. Mandel, 408 U.S. 753, 762-63 (1972).

Thus Plaintiff believes that the Third Circuit has both

decided and left undecided, important questions of federal

law which have not been, but should be, settled by this

Court, or otherwise has decided federal questions in a way

in conflict with applicable decisions of this court.

Ill.

The Third Circuit's affirmance of the District Court's

holding, that because there is in its opinion, a rational re-

lationship between the enabling legislation for special ed-

ucation and the agency regulations creating the “gifted”

special education classification, the State is not required

to show that a substantial relationship exists, conflicts

with applicable decisions of this Court.

Plaintiff contended in her Exceptions to the Hearing

Officers Recommendation, her appeal Complaint to the

United States District Court, and in her appeal to the

United States Court of Appeals for the Third Circuit, that

Reasons for Granting the Writ

the creation and implementation of Gifted Special Educa-

tion by virtue of 22 Pa. Code §13.1 and §341.1, is not

substantially related to furthering the purpose of the ena-

bling legislation for Special Education found at 24 P.S.

§13-1371, as amended. The District Court's decision, how-

ever, affirmed by the Third Circuit, only considered

whether or not the gifted special education classification is

rationally related to the enabling legislation for special ed-

ucation found at 24 P.S. §13-1371. However, this Court has

previously said that a classification drawn must rest upon

“some ground of difference having a fair and substantial

relation to the object of the legislation . . . .”, F.S. Royster

Guano Co. v. Virginia, 253 U.S. 412, 415 (1920) (emphasis

added). Furthermore, this Court has previously said that

“(w)hen the classification in . . . a law is called in question,

.. . the existence of that state of facts at the time that the

law was enacted must be assumed’, Lindsley v. Natural

Carbonic Gas Co., 220 U.S. 61, 78-79 (1911). On appeal

to the Third Circuit, your Petitioner attached as an Adden-

dum to her Brief, copies of pertinent pages from Pennsyl-

vanias Legislative Journals, which clearly showed that

Pennsylvanias enabling legislation for special education (24

P.S. §13-1371), originated in 1911 for the purpose of

remediating physical handicaps to learning, which purpose

has never been stated otherwise by Pennsylvanias legisla-

tors. Pennsylvanias Legislative Journal for 1937 also reveals

that the lawmakers used the word “exceptional” in lieu of

the word “handicapped” in the enabling legislation for spe-

cial education for that year. Thus, your Petitioner submits

that the Third Circuit's affirmance of the District Court's

application of a “rational relationship” test to her Equal

Protection argument with respect to the justification of the

classification of “gifted” special education, was in error and

in conflict with applicable decisions of this Court.

Conclusion

CONCLUSION

For these various reasons, this Petition for Certiorari

should be granted.

Respectfully submitted,

Doris APPLEBAUM

Counsel for Petitioner

6232 Madison Court

Bensalem, Pennsylvania 19020

(215) 757-1005

Memorandum Opinion, Court of Appeals

APPENDIX

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 86-1485

STUDENT ROE, A MINOR BY HER NEXT FRIEND

AND NATURAL GUARDIAN, M. ROE,

Appellant

COMMONWEALTH OF PENNSYLVANIA, SECRE-

TARY OF EDUCATION, MARGARET A. SMITH, IN

HER OFFICIAL CAPACITY,

and

COMMONWEALTH OF PENNSYLVANIA, MEM-

BERS, STATE BOARD OF EDUCATION, JOHN

HERSHEY, SISTER LAWREACE ANTOUN, MADGE

BENOVITZ, KEITH DOMS, ANNA LEE DOWLING,

DONALD FOX, EARL HORTON, PAULETTE JOHN-

SON, WILLIAM KIMMEL, HERBERT LAUTER-

BACH, ROBERT BARENSFELD, NICHOLAS

PANAGOPLOS AND FRANK SULLIVAN, IN THEIR

OFFICIAL CAPACITIES

and

BENSALEM TOWNSHIP SCHOOL DISTRICT,

Memorandum Opinion, Court of Appeals

APPEAL FROM THE UNITED STATES DISTRICT

COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 85-1230)

District Judge: Honorable. Joseph S. Lord, III

Submitted Pursuant to Third Circuit Rule 12(6)

January 22, 1987

Before: GIBBONS, Chief Judge, WEIS, Circuit Judge and

ZIEGLER, District Judge.’

Filed FEB 2 1987

MEMORANDUM OPINION OF THE COURT

WEIS, Circuit Judge.

This appeal stems from the Pennsylvania Department

of Education's refusal to allow plaintiff to participate in an

educational program for gifted students because her IQ

test score fell below that required for admission. Plaintiff

appealed the denial to the United States District Court,

which dismissed the complaint.

The court concluded that the federal Education of the

Handicapped Act, 20 U.S.C. §§1400 et seq., applied only

to handicapped children and consequently, the state's

* The Honorable Donald E. Ziegler, United States District Judge for

the Western District of Pennsylvania, sitting by designation.

Memorandum Opinion, Court of Appeals

placement of plaintiff was within the purview of its own

law. Moreover, plaintiff had no cognizable federal liberty

or property interest in gifted education and, therefore, the

procedure employed by the state did not violate the plain-

tiffs due process rights. Because it found no suspect class

or fundamental right to be implicated, the court evaluated

the plaintiff's equal protection claim under a rational rela-

tionship standard, and found that the use of IQ scores

passed muster. Student Roe v. Commonwealth of Pennsyl-

vania, 638 F.Supp. 929 (E.D. Pa. 1986).

Plaintiff maintains that the district court erred in dis-

missing her due process claims and in holding that the

Pennsylvania standards for enhanced educational benefits

are matters of state law only. She argues that because gift-

ed education is the preferred assignment, she was entitled

to notice and opportunity to be heard before being exclud-

ed from the program. She also contends the court erred in

finding that the state had not denied her liberty interest in

acquiring useful knowledge, and that the equal protection

claim should have been evaluated under a strict scrutiny

standard. Finally, plaintiff alleges that the trial court erred

in finding no infringement of a First Amendment right to

receive information and ideas resulting from denial of her

access to the gifted student program.

The plaintiffs eligibility is contingent upon her meet-

ing state law qualifications. The relevant Department of

Education regulations provide that “[plersons shall be

assigned to a program for the gifted when they have an IQ

of 130 or higher.” 22 Pa. Code §341.1(iv) (1979). Plaintiff

failed to meet that threshold requirement. Her federal

claims depend in large part on establishing education to be

a fundamental constitutional right. The Supreme Court,

however, has held otherwise. See San Antonio Independent

School District v. Rodriguez, 411 U.S. 1, 33-35 (1973).

Memorandum Opinion, Court of Appeals

We conclude that the district court applied the cor-

rect standards, and we find no reversible error in the dis-

position of the issues in this case. Accordingly, we will af-

firm the order of the district court.

TO THE CLERK:

Please tile the foregoing opinion.

s/Weis

Circuit Judge

| 5a

Opinion, District Court

FILED JUN 30 1986

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

STUDENT ROE, A MINOR, CIVIL ACTION

BY HER NEXT FRIEND AND :

NATURAL GUARDIAN, M. ROE :

—\—

COMMONWEALTH OF

PENNSYLVANIA, ET AL. NO. 85-1230

OPINION

Lord, S.]. June 27, 1986

Plaintiff, a student in the Bensalem Township School

District, raises various statutory and _ constitutional

challenges to her exclusion from gifted education. Suit is

brought in propria persona by her next friend and guardi-

an, who apparently is an attorney licensed in Pennsylvania

and admitted to practice before this court. The Common-

wealth of Pennsylvania defendants have moved for judg-—

ment on the pleadings. Because I conclude that, taking as

true all of plaintiff's allegations, and drawing therefrom all

inferences favorable to her, plaintiff can prove no set of

facts in support of her claim which would entitle her to

relief, see, e.g., Bryson v. Brand Insulations, Inc., 621

F.2d 556, 559 (3d Cir. 1980), defendants motion will be

granted.

Count I of plaintiff's complaint alleges a plethora of

violations of the Education of the Handicapped Act

(“EHA’). 20 U.S.C. §§1400-1454. Plaintiff's argument as to

Opinion, District Court

why the EHA applies to her exclusion from gifted educa-

tion is, at best, extraordinarily convoluted, difficult to ex-

plain and tangled into a veritable legal rat's nest. I shall do

my best to unravel the snarl. Plaintiffs argument goes like

this:

1. She is not handicapped.

2. The EHA should not apply to her. (It may

seem as though I should stop here, but plaintiff con-

tinues. )

3. Pennsylvania extends to gifted students the

same due process guarantees that it extends to handi-

capped students. See 22 Pa. Admin. Code §§ 13.21,

13.31—.33.

4. Plaintiff then makes the quantum leap to

conclude that all aspects of the EHA must be applied

to a determination of her entitlement to gifted educa-

tion. In support of this contention, plaintiff relies on a

well-known legal maxim: “You must take the bitter

with the sweet.”

Having thus unraveled plaintiffs argument, I con-

clude that it is entirely without merit. Plaintiff concedes

that, by its terms, the EHA applies only to handicapped

children. See 20 U.S.C. §§1400(c), 1401(a) (1). Therefore,

plaintiffs “bitter with the sweet” argument notwithstand-

ing, the extent to which Pennsylvania chooses to apply the

same procedural protections to its determinations regard-

ing the placement of students in gifted and handicapped

educational programs is, within constitutional limitations,

see infra pp. 6-10, solely a matter of state law.' According-

' Geis v. Board of Education, 774 F.2d 575 (3d Cir. 1985), is not to

the contrary. In Geis, the court held that state standards of educational

Opinion, District Court

ly, I will grant defendants motion for judgment on the

pleadings as to Count I of plaintiffs complaint.

Count II of plaintiff's complaint alleges that defendants

denied her procedural due process. Plaintiffs allegations as

to this claim are twofold. First, she alleges that gifted edu-

cation is the preferred educational placement, and there-

fore that defendants violated her rights by placing her in

regular education classes without prior notice and an op-

portunity to be heard. Second, she alleges that when she

initiated due process proceedings to determine her eligi-

bility for gifted education, the procedures employed by

defendants were constitutionally defective.

A threshold issue in any due process inquiry is wheth-

er the plaintiff was deprived of a constitutionally protected

interest. E.g., Board of Regents v. Roth, 408 U.S. 564,

569-71 (1972). Plaintiff argues that because gifted educa-

tion is the preferred educational assignment, she has both

a property and a liberty interest in being placed in gifted

education. I disagree.

Property interests are not created by the Constitu-

tion, but by independent sources, such as state law. E.g,

id. at 577. As to placement in gifted education, Pennsylva-

nia law provides as follows:

Persons shall be assigned to a program for the gifted

when they have an IQ of 130 or higher. A limited

number of persons with IQ scores lower than 130 may

opportunity for handicapped students are incorporated into the EHA,

and therefore enforceable in the federal courts. Id. at 579-81. However,

because the EHA does not apply to gifted students, Pennsylvania's

standards for gifted education are, ipso facto, not incorporated into the

EHA and are matters of state law only. Therefore, Geis is inapposite to

the present case.

Opinion, District Court

be admitted to gifted programs when other education-

al criteria in the profile of the person strongly indicate

gifted ability.

22 Pa. Admin. Code §341.1 (emphasis added).

Assuming, without deciding, that this regulation

creates a property interest in gifted education for students

with IQs of 130 or higher, it does not confer such an inter-

est upon plaintiff, as she does not allege that her IQ falls

within the specified range.? To have a property interest in

a benefit, a person must have “more than an abstract need

or desire for it. . . . He must. . . have a legitimate claim

of entitlement to it.” Roth, 408 U.S. at 577. Neither the

provision in the regulation that select students with IQs

under 130 may be admitted to gifted programs, nor, if

such is the case, the fact that gifted education is the pre-

ferred educational assignment, creates in plaintiff a legiti-

mate claim of entitlement to it. See, e.g., id. at 578 (dis-

cussing factors which would create a legitimate claim of

entitlement); see also Lisa H. v. State Board of Education,

67 Pa. Commw. 350, 354-58, 447 A.2d 669, 672-74 (1982)

(although all children in Pennsylvania have a property in-

terest in participating in the educational process, only ex-

ceptional children have a right to an individualized level or

quality of education), affd mem., 502 Pa. 613, 467 A.2d

1127 (1983). Therefore, I conclude that plaintiff does not

have a property interest in being placed in gifted educa-

tion.

Plaintiff bases her argument that she has a liberty in-

terest in being placed in gifted education on Meyer v.

Nebraska, 262 U.S. 390 (1923). In Meyer, the Court listed

* An exhibit attached to plaintiffs complaint shows that she scored

121 on an IQ test.

Opinion, District Court

as a liberty interest the right “to acquire useful knowl-

edge.” Id. at 399. Apparentiy, plaintiff believes that Meyer

bestows upon her a liberty interest in being placed in gift-

ed rather than regular education because gifted education

would, in her opinion, expose her to a greater volume of

useful knowledge. However, the Meyer Court was con-

cerned with access to broad areas of knowledge, see id. at

399-403, not with maximizing the volume of knowledge to

which an individual is exposed. Thus, plaintiff's argument

is spurious, as she has failed to identify, either in her com-

plaint, her brief, or at oral argument, a single area of use-

ful knowledge to which she has been denied access. There-

fore, I conclude that defendants have not deprived piaintiff

of a liberty interest by denying her placement in a pro-

gram of gifted education.°

Count III of plaintiffs complaint alleges four equal

protection and _ substantive due _ process violations.

Summarized briefly, plaintiff, challenges the creation by

the Board of Education of the gifted student classification,

the use of IQ scores to define mental giftedness, the fact

that students with [Qs of 130 or higher are placed in edu-

cational programs purportedly designed to maximize their

potential, while students with IQs under 130 are not enti-

tled to be placed in such programs, and the fact that only

exceptional students, i.e., those deemed gifted or handi-

capped, are legally entitled to be placed in the least re-

strictive educational environment.

* Having concluded that plaintiff has neither a property nor a liberty

interest in being placed in gifted education, I decline to address defen-

dants alternative argument that the process afforded plaintiff before de-

nying her placement in a gifted education program was constitutionally

adequate

10a

Opinion, District Court

Initially, I must determine the level of scrutiny to be

applied to plaintiff's claims. Scrutiny more rigorous than

the “rational relation” standard applies only if a suspect

classification is used or a fundamental right is affected.

See, e.g., Vance v. Bradley, 440 U.S. 93, 96-97 (1979)

(equal protection); Exxon Corp. v. Governor of Maryland,

437 U.S. 117, 124-25 (1978) (substantive due process); Roe

v. Wade, U.S. 113, 155-56 (1973) (substantive due pro-

cess). Plaintiff does not argue that defendants have used a

suspect classification and she concedes that education is

not a fundamental right under the United States Constitu-

tion. See San Antonio Independent School District. v.

Rodriguez, 411 U.S. 1, 33-35 (1973).* However, she argues

that two of her fundamental rights are infringed by her ex-

clusion from gifted education: a liberty interest in acquir-

ing useful knowledge, and a first amendment right to re-

ceive information and ideas. See Kleindienst v. Mandel,

408 U.S. 753, 762-63 (1972). For the reasons heretofore

explained, see supra p. 5, I reject plaintiff's liberty interest

argument, and, because plaintiff has not identified any in-

formation or ideas which she has been precluded from re-

ceiving, I find her first amendment argument equally un-

convincing.

Accordingly, plaintiffs claims must be evaluated

under the rational relation standard. Under this standard,

the proper inquiry is whether the regulations challenged

by plaintiff are “so unrelated to the achievement of any

* In Rodriguez, the Court suggested that the absolute denial of edu-

cational opportunity might provide a basis for finding an interference

with fundamental rights. 411 U.S. at 36-37. See also Plyler v. Doe, 457

U.S. 202, 223-24 (1982) (subjecting to heightened scrutiny a state's denial

of basic education to undocumented schooi-age children). However, this

issue is not before me, as plaintiff does not argue that she has been

denied access to a basic education.

lla

Opinion, District Court

combination of legitimate purposes’ that I can only con-

clude that defendants, in promulgating the challenged

regulations, acted irrationally. Vance, 440 U.S. at 97; see

also Benner v. Oswald, 592 F.2d 174, 181 (3d Cir.) (ration-

al relationship test applies to state regulations), cert. de-

nied, 444 U.S. 832 (1979)

Plaintiffs argument that the creation by defendants of

the gifted student classification is irrational in light of the

enabling legislation is not convincing as either a logical or

a factual matter. The enabling legislation requires the

Board of Education to prescribe standards for the educa-

tion of all exceptional children, Pa. Stat. Ann. tit. 24, §13-

1372(1), and defines exceptional children as those who

“deviate from the average . . . to such an extent that they

require special educational facilities or services.” Id. §13-.

1371. I fail to see how it could be irrational for the Board

of Education to conclude that children with high IQs

“deviate from the average” and thus come within the pur-

view of the enabling legislation. Moreover, since the crea-

tion of the gifted student classification by the Board of Ed-

ucation, the legislature has placed its imprimatur upon the

provision of special education to gifted children. See id.

§13-1372(3); Lisa H., 67 Pa. Commw. at 357 n.6, 447 A.2d

at 673 n.6.

Plaintiff's remaining arguments are equally unavail-

ing. Clearly. there are legitimate purposes to which defen-

dants’ policies bear a rational relation. Congress has found

and declared that “the Nation's greatest resource for solv-

ing critical national problems in areas of national concern is

its gifted and talented children.” Gifted and Talented

Children’s Education Act of 1978, Pub. L. No. 95-561,

§901(b)(1), 92 Stat. 2292, 2292, repealed by Omnibus

12a

Opinion, District Court

Budget Reconciliation Act of 1981, Pub. L. No. 97-35,

§587(a)(1), 95 Stat. 357, 480. Surely, it is both rational and

legitimate for Pennsylvania to provide special education to

gifted children in order to develop the abilities of those

students most likely to assume leadership roles in areas of

endeavor which are intellectually demanding.’

This is not to say that one may not question the edu-

cational and sociological wisdom of defendants’ policies,

particularly if, as plaintiff suggests, these policies have a

deleterious effect upon students who are not deemed gift-

ed. However, that there are arguments against defendants

policies does not make them irrational for purposes of an

equal protection or substantive due process analysis. See,

e.g., Vance, 440 U.S. at 97; Exxon, 437 U.S. at 124-25.

Nor, even if there are better methods available, is it irra-

tional for defendants to rely on IQ scores in making their

determinations of giftedness. See Student Doe v. Common-

wealth of Pennsylvania, 593 F. Supp. 54, 57 (E.D. Pa.

1984). Therefore, I hold that, even construing the

pleadings in the light most favorable to plaintiff, there is no

set of facts that plaintiff might prove in support of her

equal protection and substantive due process claims which

would entitle her to relief.

°In a section entitled “[s]tatement of purpose,” the Pennsylvania

regulations governing special education provide that “[iJt shall be the

policy of the Board [of Education] . . . to provide exceptional school-aged

persons with quality special education programs . . . which will ultimate-

ly enable them to participate as fully as possible in appropriate activities

of daily living.” 22 Pa. Admin. Code §13.2. Certainly, this purpose is

legitimate, and providing special education to gifted students, while per-

haps not compelled by this policy, is not inconsistent with it. At any rate,

where, as here, there are plausible reasons for the challenged action, my

inquiry need go no further. See United States Railroad Retirement Board

v. Fritz, 449 U.S. 166, 179 (1980).

13a

Opinion, District Court

Order

An order granting defendants motion for judgment on

the pleadings will be entered.°

s/Joseph S. Lord, III S.J.

ENTERED: 6-30-86

CLERK OF COURT

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

STUDENT ROE, A MINOR CIVIL ACTION

BY HER NEXT FRIEND AND =:

NATURAL GUARDIAN, M. ROE :

—-\y oe

COMMONWEALTH OF ;

PENNSYLVANIA, ET AL. : NO. 85-1230

ORDER

ORDERED that the motion of the Commonwealth of

Pennsylvania defendants for judgment on the pleadings is

GRANTED and plaintiffs claims against the Common-

wealth of Pennsylvania defendants are DISMISSED

WITH PREJUDICE.

IT FURTHER APPEARING (i) that defendant

Bensalem Township School District (“defendant Ben-

* In their memorandum of law in support of their motion for judg-

ment on the pleadings, defendants raised an abstention argument. How-

ever, defendants have since withdrawn that argument, and therefore I

have not considered it.

l4a

Opinion, District Court

Order

salem’) has neither entered an appearance nor answered

or otherwise responded to plaintiffs complaint for a period

of over one year, (ii) that plaintiff has not filed a motion for

a default judgment, thereby failing to prosecute her claims

against defendant Bensalem, but (iii) that it would be futile

for plaintiff to pursue her claim against this defendant in

light of the foregoing opinion, as her claims against defend-

ant Bensalem are identical to those against the Common-

wealth defendants, and therefore (iv) that plaintiff's com-

plaint affords a sufficient basis for dismissing her claims

against defendant Bensalem, see Bryson v. Brand In-

sulations, Inc., 621 F.2d 556, 559 (3d Cir. 1980), it is

FURTHER ORDERED that plaintiffs claims against

defendant Bensalem Township School District are DIS-

MISSED WITH PREJUDICE, mea sponte, for the

reasons set forth in the foregoing opinion.

BY THE COURT:

s/Joseph S. Lord, III S.J.

15a

Opinion, Secretary of Education

IN THE OFFICE OF THE SECRETARY

OF EDUCATION

COMMONWEALTH OF PENNSYLVANIA

IN RE THE

EDUCATIONAL : SPECIAL EDUCATION

ASSIGNMENT OF : OPINION NO. 246

NICOLE A., a student in

the Bensalem Township

School District

BACKGROUND

Nicole A. is a 13 year old child who resides with her

mother in the Bensalem Township School District (herein-

after referred wo as the district). Nicole is a regular eighth

grade student who was referred for elevation by her guid-

ance counselor in order to determine her eligibility for en-

rollment in a program of special education for the gifted.

The sole reason for the referral was that Nicole's parent re-

quested the evaluation. A psychologist employed by the

district performed the evaluation on January 24, 1983.

Rased upon the results of the evaluation and a review of

other pertinent criteria by a multidisciplinary team, the

district concluded that Nicole was not gifted and that no

change in her placement was warranted. Nicoles parent

was notified of the district's finding of nonexceptionality on

January 31, 1983. Accordingly, the district declined to

move Nicole from her regular education program to a spe-

cial education program for the gifted.

16a

Opinion, Secretary of Education

Nicoles parent, believing Nicole to be gifted and in

need of special education, pursued the administrative rem-

edies available to her under State Board of Education

regulations. 22 Pa. Code §13.1 et seq. The due process

hearing in this matter was held on November 8, 1984, and

was conducted in accordance with 22 Pa. Code §13.33.

The hearing officer issued his report on November 29,

1984. He recommended that Nicole be considered nonex-

ceptional and concluded that no special educational

placement should be made. Nicole's parent filed exceptions

to this decision on December 11, 1984. The district

responded to the exceptions on December 14, 1984.

DISCUSSION

The parents first exception is that the hearing officer

erred when he indicated that the parent's exhibits (P-1, P-

2, P-3) were not admitted into evidence at the due process

hearing. Although we can find no formal request for the

admission of P-1, P-2 or P-3 anywhere in the record, we

note that the hearing officer relied on these exhibits in ar-

riving at his decision. Furthermore, the district agrees that

the parents exhibits were received into evidence. There-

fore, we conclude that P-1, P-2 and P-3 are part of the rec-

ord in this case and that the parent’ first exception is

moot.

Il.

The issue here is whether Nicole A. is a mentally gift-

ed exceptional child under state law. If Nicole is a mentally

eer |

17a

Opinion, Secretary of Education

gifted exceptional child, she is entitled to an appropriate

program of special education. 24 P.S. §§13-1371(1), 13-

1372(3); 22 Pa. Code §13.1; Lisa H. v. State Board of Edu-

cation, 67 Pa. Cmwlth. 350, 447 A.2d 669, n. 6 (1982),

affd 502 Pa. 613, 467 A.2d 1127 (1983).

The special education regulations provide that a men-

tally gifted exceptional person is a person who possesses:

Outstanding intellectual and creative ability th.

development of which requires special activities or

services not ordinarily provided in the regular pro-

gram. Persons shall be assigned to a program for the

gifted when they have an IQ of 130 or higher. A limit-

ed number of persons with IQ scores lower than 130

may be admitted to gifted programs when other edu-

cational criteria in the profile of the person strongly

indicate gifted ability.

22 Pa. Code §341.1(iv). However, before we can deter-

mine whether Nicole qualifies as mentally gifted under

this standard, we must first address the parent's direct

challenge to the regulation itself. See Exceptions to Hear-

ing Officers Report (Exceptions), Paragraphs 5(i) and (k),

10, 21, 2, 27.

The Legislature has granted the State Board of Edu-

cation the power to adopt regulations respecting the edu-

cation and training of mentally gifted exceptional children.

24 P.S. §13-1372(1); Lisa H. v. State Board of Education,

supra. The State Board, at 22 Pa. Code §13.22(1), has au-

thorized the Secretary to establish the standards to be uti-

lized in determining a students eligibility for gifted special

education. Those standards are found in the Department's

definition of mentally gifted exceptional persons. 22 Pa.

Code §341. l(iv).

18a

Opinion, Secretary of Education

Section 341. 1(iv) was adopted pursuant to the Depart-

ments interpretive rule-making power. Therefore, this reg-

ulation will be held to be valid if it “tracks” the meaning of

the statute it interprets. Uniontown Area School District v.

Pennsylvania Human Relations Commission, 455 Pa. 52,

313 A.2d 156 (1973). We emphasize that courts traditional-

ly accord some deference to the interpretation of the agen-

cy charged with administering the statute. Uniontown

Area School District v. Pennsylvania Human Relations

Commission, supra.

The question here is whether Section 341. 1(iv) tracks

the meaning of the statutes it interprets. The applicable

statutory language is found in Sections 1371(1) and 1372(1)

of the Public School Code of 1949. Section 1371(1) defines

the term “exceptional children” to mean “children of

school age who deviate from the average in physical, men-

tal, emotional or social characteristics to such an extent

that they require special educational facilities or services. .

.. 24 PS. §13-1371(1). Section 1372(1) directs the State

Board to “adopt and prescribe standards and regulations

for the proper education and training of all exceptional

children. . . .” 24 PS. §13-1372(1). There is no further

guidance given in the act.

We hold, for the reasons set forth below, that Section

341. 1(iv) tracks the meaning of 24 P.S. §§13-1371(1) and

13-1372(1) and, therefore, is valid and has the force of law.

First, this regulation specifies those children who have

mental abilities which deviate from the average to such an

extent that they require special educational services. In so

doing, it tracks the intent of the statute that all exceptional

persons of school age be properly educated and trained.

Second, it is clear that the subject matter of this regulation

19a

Opinion, Secretary of Education

is within the special administrative competence of the De-

partment of Education. Consequently, Section 341. 1(iv) is

entitled to the maximum deference that a court will give to

an administrative agencys interpretive rule-making. Third,

we find it to be significant that Pennsylvanias legislators,

knowing the content of the rule, have continued to provide

funding for gifted special education programs. We believe

that all of these factors show that the standards which the

Department promulgated in 22 Pa. Code §341.1(iv) track

the meaning of the statutes and do not violate the legisla-

tive intent.

It should be emphasized that the regulation was is-

sued pursuant to proper procedure. Section 341. 1(iv) was

published in accordance with the requirements of Sections

201 and 202 of the Commonwealth Documents Law, 45

P.S. §§1201 and 1202. See 7 Pa. B. 1100, 1101, 2792, 2793

(1977). The parent had the opportunity to object to the

standards set forth in 22 Pa. Code §341.1(iv) when this

regulation was first published as proposed rulemaking. 45

P.S. 1201. Furthermore, the parent had the right to

present evidence and testimony, including expert educa-

tional testimony, to show that the regulation adopted by

the Department was unwise. 22 Pa. Code §§13.33(7),

13.32(20). However, we find no such evidence or testimo-

ny in the record. Accordingly, we hold that Section

341. 1(iv) is within the legislative intent. !

Since the challenged regulation tracks the meaning of

the statutes it interprets, we conclude that the regulation

is valid and has the force of law in this case. Uniontown

Area School District v. Pennsylvania Human Relations

Commission, supra.

20a

Opinion, Secretary of Education

Il.

We now must determine whether Nicole is a mentally

gifted exceptional person under 22 Pa. Code §341. l(iv). To

be deemed mentally gifted, the child must have an IQ of

130 or higher. In addition, a school district may admit

students into gifted programs when other educational cri-

teria strongly indicate gifted ability. 22 Pa. Code

$341. L(iv).

The documentary evidence and testimony of record

indicate that Nicoles IQ lies somewhere between 106 and

121 (N.T. 13, 29, 58, 59, 60, 62, 63; P-1, P-2, SD-1). Al-

though the parent argues that Nicoles IQ is 121, she does

not contend that her daughters IQ is 130 or greater (N.T.

29, 44, 141). Instead, the parent asserts that other educa-

tional criteria indicate that Nicole has gifted ability (N.T.

125, 126, 142, 154), and that the district erred when it

refused to admit Nicole into its gifted program (Excep-

tions, Paragraphs 10, 11, 22, 23, 24).

It is important to emphasize here that the last sen-

tence of Section 341.1 (iv) states that a school district “may”

admit students into gifted programs based on criteria

other than intelligence quotient. Therefore, the decision to

admit Nicole under this standard is within the sound dis-

cretion of the district and is not within our purview to or-

der or direct. Even if Nicole did qualify under the stan-

dard set forth in the last sentence of Section 341. 1(iv), the

Secretary could not order her admittance in view of the

discretion which is given to the district under that stan-

dard. Absent a showing that a public agency’s refusal to

exercise its discretionary authority was selectively applied

to a party, such refusal is not illegal and will not be

reversed upon review. Summit School, Inc. v. Department

2la

Opinion, Secretary of Education

of Education, 43 Pa. Cmwlth. 623, 402 A.2d 1142 (1979).

The parent does not argue selective application in this

case, and none appears in the record.

Consequently, the parents argument that Nicole is

gifted because other educational criteria in the profile indi-

cate gifted ability is moot. However, in order to fully ad-

dress the parents argument, we will determine whether

the hearing officer properly concluded that Nicole did not

qualify for admission under the last sentence of Section

341. l(iv).

22 Pa. Code §341.1(iv) provides, in part, that persons

with IQ scores lower than 130 may be admitted to gifted

programs when other educational criteria “strongly” indi-

cate gifted ability. The question, therefore, is whether

there are strong indications of giftedness in Nicoles profile.

The district testified that the other educational crite-

ria it utilizes in order to determine giftedness are teacher

recommendations, reading and data comprehension, the

ability to read several years above grade level, leadership

qualities, creativity, and the ability to work independently

(N.T. 26). The district further testified that the student's

entire school record is reviewed, both by the guidance

counselor and by the multidisciplinary team, as part of the

effort to determine whether the profile indicates giftedness

(N.T. 46-48).

The witnesses for the district considered these criteria

and concluded that Nicole's profile did not strongly indi-

cate gifted ability (N.T. 14, 55, 61-62, 86, 88, 108-109,

112).! The district's testimony is substantial, and is sup-

——————

' The parent has suggested that the teachers who completed Multi-

disciplinary Team Reports for Nicole (P-2, SD-2) did not know they were

22a

Opinion, Secretary of Education

ported by the exhibits which both parties submitted (P-2,

SD-2). The parent supports her position with selective ref-

erences to the profile (N.T. 140-142), and her testimony

that Nicole is able to discuss constitutional issues (N.T.

153-155). Based upon our review of the entire record, we

find substantial evidence that Nicole's profile does not

strongly suggest gifted ability. Although it is clear that Ni-

cole is a bright, motivated and involved student, it is

equally clear that the standard established by the last sen-

tence of Section 341.1(iv) has not been met in this case.

IV.

The parent continues to argue that education is a fun-

damental constitutional right in Pennsylvania and that Ni-

cole has been denied due process and equal protection

(Exceptions, Paragraphs 3, 5, 12, 14, 15). We hold that

this argument is without merit. Both the federal and state

courts have consistently held that a right to education is

not considered to be a fundamental right or liberty. San

Antonio Independent School District v. Rodriguez, 411

U.S. 1, 93 S.Ct. 1278 (1973); Danson v. Casey, 484 Pa.

415, 399 A.2d 360 (1979). The right to public education in

Pennsylvania is statutory and not constitutional. O'Leary v.

Wisecup, 26 Pa. Cmwlth. 538, 364 A.2d 770 (1976); Lisa

H. v. State Board of Education, supra. The right which

has been created by Pennsylvania’ constitution is a right

to participation in the educational process. Dallum v.

Cumberland Valley School District, 391 F.Supp. 358

assessing Nicoles need for gifted special education (Exceptions, Para-

graph 9(b)). This suggestion clearly is not supported by the record (N.T.

112-113; SD-2, Exhibits “D” and “E”). We note that the parent did not

avail herself of the opportunity to question the teachers directly. 22 Pa.

Code §13.32(19).

. 23a

Opinion, Secretary of Education

(M.D. Pa. 1981); Lisa H. v. State Board of Education,

supra. A student who is not exceptional is not entitled to a

particular level or quality of education. Danson v. Casey,

supra; Lisa H. v. State Board of Education, supra.

Since the record contains substantial support for the

hearing officer's finding that Nicole is not a mentally gifted

exceptional person, we hold that Nicole has no proerty

[sic] interest which is entitled to constitutional due process

or equal protection safeguards.

The parent argues that special education programs are

not meant for gifted and talented persons, and that the

provision of special education to gifted and talented per-

sons is not a legitimate state objective (Exceptions,

Paragraphs 5(e) and (j), 28). These exceptions are easily

dismissed.

With respect to the first exception, we note that both

the Commonwealth Court and the Supreme Court have

held that gifted and talented students are properly includ-

ed within the definition of exceptional persons. Lisa H. v.

State Board of Education, supra; Central York School Dis-

trict v. Department of Education, 41 Pa. Cmwlth. 383,

399 A.2d 167 (1979).

As to the second exception, we remind the parent that

the courts of Pennsylvania “will not inquire into the rea-

son, wisdom, or expediency of the legislative policy with

regard to education” when considering laws which relate to

the public school system. Danson v. Casey, supra, 484 Pa.

at 426, 399 A.2d at 366.

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Opinion, Secretary of Education

VI.

The parent also contends that the special education

due process procedures (22 Pa. Code §§13.31, 13.33 are

not appropriate (Exceptions, Paragraphs 3, 13, 14, 16), and

that Nicole was denied her right to an impartial hearing

officer (Exceptions, Paragraph 17).

The special education due process regulations were

adopted under the State Board's interpretive rule-making

powers. We believe that these regulations track the intent

of 24 P.S. §13-1372(1)—that “all exceptional children” be

properly educated and trained—by assuring, through a se-

ries of formal procedures, that “all” exceptional persons of

school age residing in Pennsylvania are identified. We

note that the due process procedures may be initiated by a

school district (22 Pa. Code $13.32) or by a parent (22 Pa.

Code §13.33), thereby increasing the chances that the leg-

islative mandate will be achieved. Since the special educa-

tion due process regulations track the intent of the statute,

we conclude that Sections 13.31 and 13.33 are valid and

have the force of law. Therefore, we dismiss this exception.

The next question is whether Nicole was denied the

right to an impartial hearing officer in this case because

the hearing officer voiced an opinion regarding the validity

of the test used by the district to determine giftedness

(N.T. 94-96). Although we agree that the hearing officer

should not have stated his opinion as he did, we do not |

believe that this incident, standing alone, was sufficient to

constitute the denial of an impartial hearing officer.

Our review of the record convinces us that the hear-

ing conducted in this matter was impartial and fair. The

hearing officer consistently displayed great patience

throughout a very difficult hearing (N.T. 132, 133, 134,

: 25a

Opinion, Secretary of Education

159). He was careful to allow the parent to make the rec-

ord she wished (N.T. 19, 22, 38-39, 51-52, 72, 86, 88, 89-

91, 113-114, 125), and attempted to help her on a number

of occasions (N.T. 84, 85, 153). The hearing officer also

asked for evidence that would enable him to know and un-

derstand Nicole (N.T. 37, 85, 125, 126, 153, 154), and

noted the evidence which did so (N.T. 153, 154). At one

point, the hearing officer requested that the district con-

sider certain evidence even though that evidence had not

accompanied the parents request that Nicole be allowed

into the gifted program (N.T. 54-55). In addition, the hear-

ing officer struck certain statements from the record when

requested to do so by the parent (N.T. 95).

Based upon a careful review of the entire record, we

find that this hearing was conducted before an impartial

hearing officer. Accordingly, we dismiss this exception.

We also disagree that the hearing in this matter was

conducted “backwards” (Exceptions, Paragraph 16). Since a

schoo! district determines whether a student is gifted, it

only makes sense for the hearing to begin with the school

districts explanation of the basis for its decision. This

procedure promotes efficiency and economy in the hearing

process because the parties know from the outset what is

in dispute and what is not.

Although the parent twice stated that she believed the

order of proof was backwards, she cid not formally object

(N.T. 42, 105). Moreover, there was no prejudice. The par-

ent was given wide latitude during the hearing and was

permitted to develop the record as she wished.

We dismiss the parent's allegation that she was physi-

cally unfit for the hearing and severely prejudiced thereby

(Exceptions, Paragraph 3(d)). The parent did not raise this

26a

Opinion, Secretary of Education

objection at the hearing and there is no evidence in the

record to support it Frankford Hospital v. Department of

Public Welfare, 77 Pa. Cmwlth. 448, 466 A.2d 260 (1983).

Finally, we will strike Appendix “A” to the parent's Ex-

ceptions. 22 Pa. Code §13.32(14) provides that the decision

of the hearing officer shall be based “solely” upon the evi-

dence presented at the hearing. This limitation is particu-

larly important in light of the requirement of 22 Pa. Code

§13.32(21) that the hearing officer render a decision in

writing no later than 20 days after the hearing.

VIL.

The parent argues that Nicole's score on the Wechsler

Intelligence Scale for Children-Revised (WISC-R) is not a

valid measure of her giftedness because this test is not val-

idated for this purpose (Exceptions, Paragraphs 5(i), 10,

26). The parent contends that a “least restrictive means”

test should be utilized (Exceptions, Paragraph 5(g)). The

parent defines this test as Nicole's “achievement in school

at the present time’ (N.T. 126).

We hold, for the reasons set forth in Section II above,

that the standard in Section 341. l(iv) is valid and that the

parents least restrictive means test need not be utilized by

the district.

We likewise dismiss the parent's exception to the dis-

tricts use of the WISC-R. There is no dispute that the

WISC-R measures a complex range of abilities and traits

(N.T. 86, 91). It is also clear that the gifted curriculum

child who is able to achieve a score of 130 or greater on the

test (N.T. 22-25). The district's witness also testified, with-

out dispute, that the WISC-R is a valid and reliable meas-

27a

Opinion, Secretary of Education

ure of the abilities it purports to measure (N.T. 92-94).

Accordingly, we find that the district's use of the WISC-R

is appropriate and dismiss the parent’ exception.

VII.

Finally, the parent argues that the district's gifted spe-

cial education programs do not comply with the require-

ment of 20 U.S.C. §1412(5) (B) that, to the maximum ex-

tent appropriate, handicapped children be educated with

children who are not handicapped (Exceptions, Paragraph

19). We dismiss the parent's exception. First, we find that

the parent lacks standing to raise this issue. Second, there

is substantial evidence directly contradicting the parent's

claim (N.T. 32-33). Third, the Education of the Handi-

capped Act, 20 U.S.C. §1400 et seq., does not apply to

Pennsylvanias gifted special education programs.

Accordingly, we make the following:

ORDER

This 8TH day of FEBRUARY, !985, it is hereby or-

dered and decreed that the hearing officers findings and

recommendations in this matter are adopted and the

— parent’ exceptions are dismissed.

s/Margaret A. Smith

Secretary of Education

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