# Petition for Writ of Certiorari — Roe ex rel. Roe v. Pennsylvania > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2207%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 483 U.S. 1021 ## Text 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 an 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; OR 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; OR 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 iv Mills v. Board of Education, 348 F.Supp. 866 (EARe BOPED