PARC v. Pennsylvania, 334 F.Supp.
1257 (E.D. PA 1972)
United States District Court,
E. D. Pennsylvania.
PENNSYLVANIA
ASSOCIATION FOR RETARDED CHILDREN, Nancy Beth Bowman, et al.,
Plaintiffs,
v.
COMMONWEALTH OF PENNSYLVANIA, David H. Kurtzman, et al.
Civ. A. No.
71-42.
Oct. 8, 1971.
Thomas K.
Gilhool, Philadelphia, Pa., for plaintiffs.
J. Shane
Craemer, Atty. Gen., Ed Weintraub, Deputy Atty. Gen., Harrisburg, Pa.,
for defendants.
Before ADAMS,
Circuit Judge, and MASTERSON and BRODERICK, District Judges.
ORDER,
INJUNCTION and CONSENT AGREEMENT
PER CURIAM.
And now, this
7th day of October, 1971, the parties having consented through their
counsel to certain findings and conclusions and to the relief to be
provided to the named plaintiffs and to the members of their class, the
provisions of the Consent Agreement between the parties set out below
are hereby approved and adopted and it is hereby so ordered.
And for the
reasons set out below it is ordered that defendants the Commonwealth of
Pennsylvania, the Secretary of the Department of Education, the State
Board of Education, the Secretary of the Department of Public Welfare,
the named defendant school districts and intermediate units and each of
the School Districts and Intermediate Units in the Commonwealth of
Pennsylvania, their officers, employees, agents and successors be and
they hereby are enjoined as follows:
(a) from
applying Section 1304 of the Public School Code of 1949, 24 Purd. Stat.
Sec. 13-1304, so as to postpone or in any way to deny to any mentally
retarded child access to a free public program of education and
training;
(b) from
applying Section 1326 or Section 1330(2) of the School Code of 1949, 24
Purd.Stat. Secs. 13-1326, 13-1330(2) so as to postpone, to terminate or
in any way to deny to any mentally retarded child access to a free
public program of education and training;
(c) from
applying Section 1371(1) of the School Code of 1949, 24 Purd.Stat. Sec.
13‑1371(1) so as to deny to any mentally retarded child access to a free
public program of education and training;
(d) from
applying Section 1376 of the School Code of 1949, 24 Purd.Stat. Sec.
13‑1376, so as to deny tuition or tuition and maintenance to any
mentally retarded person except on the same terms as may be applied to
other exceptional children, including brain damaged children generally;
(e) from
denying homebound instruction under Section 1372(3) of the School Code
of 1949, 24 Purd.Stat. Sec. 13-1372(3) to any mentally retarded child
merely because no physical disability accompanies the retardation or
because retardation is not a short-term disability.
(f) from
applying Section 1375 of the School Code of 1949, 24 Purd.Stat. Sec.
13-1375, so as to deny to any mentally retarded child access to a free
public program of education and training;
(g) to
immediately re-evaluate the named plaintiffs, and to accord to each of
them, as soon as possible but in no event later than October 13, 1971,
access to a free public program of education and training appropriate to
his learning capacities;
(h) to
provide, as soon as possible but in no event later than September 1,
1972, to every retarded person between the ages of six and twenty-one
years as of the date of this Order and thereafter, access to a free
public program of education and training appropriate to his learning
capacities;
(i) to provide,
as soon as possible but in no event later than September 1, 1972,
wherever defendants provide a pre-school program of education and
training for children aged less than six years of age, access to a free
public program of education and training appropriate to his learning
capacities to every mentally retarded child of the same age.
The above
Orders are entered as interim Orders only and without prejudice, pending
notice, as described in Paragraph 3 below, to the class of plaintiffs
and to the class of defendants determined in Paragraphs 1 and 2 below.
Any member of
the classes so notified who may wish to be heard before permanent Orders
are entered shall enter his appearance and file a written statement of
objections with the Clerk of this Court on or before October 20, 1971.
Any objections so entered will be heard by the Court at 10 o'clock on
October 22, 1971.
CONSENT
AGREEMENT
The Complaint
in this action having been filed on January 7, 1971, alleging the
unconstitutionality of certain Pennsylvania statutes and practices under
the Equal Protection Clause of the Fourteenth Amendment and certain
pendent claims; a three-judge court having been constituted, after
motion, briefing and argument thereon, on May 26, 1971; an Order and
Stipulation having been entered on June 18, 1971, requiring notice and a
due process hearing before the educational assignment of any retarded
child may be changed; and evidence having been received at preliminary
hearing on August 12, 1971;
Now, therefore,
this 7th of October 1971, the parties being desirous of effecting an
amicable settlement of this action, the parties by their counsel agree,
subject to the approval and Order of this Court, as follows:
I.
1. This
action may and hereby shall be maintained by plaintiffs as a class
action on behalf of all mentally retarded persons, residents of the
Commonwealth of Pennsylvania, who have been, are being, or may be denied
access to a free public program of education and training while they
are, or were, less than twenty-one years of age.
It is
expressly understood, subject to the provisions of Paragraph 44 below,
that the immediate relief hereinafter provided shall be provided to
those persons less than twenty-one years of age as of the date of the
Order of the Court herein.
2. This action
may and hereby shall be maintained against defendant school districts
and intermediate units as a class action against all of the School
Districts and Intermediate Units of the Commonwealth of Pennsylvania.
3. Pursuant
to Rule 23, Fed.R.Civ.P., notice of the extent of the Consent Agreement
and the proposed Order approving this Consent Agreement, in the form set
out in Appendix A, shall be given as follows:
(a) to the
class of defendants, by the Secretary of Education, by mailing
immediately a copy of this proposed Order and Consent Agreement to the
Superintendent and the Director of Special Education of each School
District and Intermediate Unit in the Commonwealth of Pennsylvania;
(b) to the
class of plaintiffs, (i) by the Pennsylvania Association for Retarded
Children, by immediately mailing a copy of this proposed Order and
Consent Agreement to each of its Chapters in fifty‑four counties of
Pennsylvania; (ii) by the Department of Justice, by causing an
advertisement in the form set out in Appendix A, to be placed in one
newspaper of general circulation in each County in the Commonwealth; and
(iii) by delivery of a joint press release of the parties to the
television and radio stations, newspapers, and wire services in the
Commonwealth.
II.
4. Expert
testimony in this action indicates that all mentally retarded persons
are capable of benefiting from a program of education and training; that
the greatest number of retarded persons, given such education and
training, are capable of achieving self-sufficiency, and the remaining
few, with such education and training, are capable of achieving some
degree of self- care; that the earlier such education and training
begins, the more thoroughly and the more efficiently a mentally retarded
person will benefit from it; and, whether begun early or not, that a
mentally retarded person can benefit at any point in his life and
development from a program of education and training.
5. The
Commonwealth of Pennsylvania has undertaken to provide a free public
education to all of its children between the ages of six and twenty-one
years, and, even more specifically, has undertaken to provide education
and training for all of its exceptional children.
6. Having
undertaken to provide a free public education to all of its children,
including its exceptional children, the Commonwealth of Pennsylvania may
not deny any mentally retarded child access to a free public program of
education and training.
7. It is the
Commonwealth's obligation to place each mentally retarded child in a
free, public program of education and training appropriate to the
child's capacity, within the context of a presumption that, among the
alternative programs of education and training required by statute to be
available, placement in a regular public school class is preferable to
placement in a special public school class and placement in a special
public school class is preferable to placement in any other type of
program of education and training.
III.
Section 1304
8. Section
1304 of the School Code of 1949, as amended, 24 Purd.Stat. Sec. 13‑1304,
provides:
"Admission of
beginners
The admission
of beginners to the public schools shall be confined to the first two
weeks of the annual school term in districts operating on an annual
promotion basis, and to the first two weeks of either the first or the
second semester of the school term to districts operating on a
semi-annual promotion basis. Admission shall be limited to beginners
who have attained the age of five years and seven months before the
first day of September if they are to be admitted in the fall, and to
those who have attained the age of five years and seven months before
the first day of February if they are to be admitted at the beginning of
the second semester. The board of school directors of any school
district may admit beginners who are less than five years and seven
months of age, in accordance with standards prescribed by the State
Board of Education. The board of school directors may refuse to accept
or retain beginners who have not attained a mental age of five years, as
determined by the supervisor of special education or a properly
certificated public school psychologist in accordance with standards
prescribed by the State Board of Education.
"The term
'beginners,' as used in this section, shall mean any child that should
enter the lowest grade of the primary school or the lowest primary class
above the kindergarten level."
9. The
Secretary of Education, the State Board of Education, the named School
Districts and Intermediate Units, on their own behalf and on behalf of
all School Districts and Intermediate Units in the Commonwealth of
Pennsylvania, each of them, for themselves, their officers, employees,
agents, and successors agree that they shall cease and desist from
applying Section 1304 so as to postpone or in any way to deny access to
a free public program of education and training to any mentally retarded
child.
10. The
Attorney General of the Commonwealth of Pennsylvania (hereinafter "the
Attorney General") agrees to issue an Opinion declaring that Section
1304 means only that a school district may refuse to accept into or to
retain in the lowest grade of the regular primary school or the lowest
regular primary class above the kindergarten level, any child who has
not attained a mental age of five years.
11. The
Attorney General of the Commonwealth of Pennsylvania shall issue an
Opinion thus construing Section 1304, and the State Board of Education
(hereinafter "the Board") shall issue regulations to implement said
construction and to supersede Sections 5‑200 of the Pupil Attendance
Regulations, copies of which Opinion and Regulations shall be filed with
the Court and delivered to counsel for plaintiffs on or before October
25, 1971, and they shall be issued and promulgated respectively on or
before October 27, 1971.
12. The
aforementioned Opinion and Regulations shall (a) provide for notice and
an opportunity for a hearing as set out in this Court's Order of June
18, 1971, before a child's admission as a beginner in the lowest grade
of a regular primary school, or the lowest regular primary class above
kindergarten, may be postponed; (b) require the automatic re-evaluation
every two years of any educational assignment other than to a regular
class, and (c) provide for an annual re-evaluation at the request of the
child's parent or guardian, and (d) provide upon each such re-evaluation
for notice and an opportunity for a hearing as set out in this Court's
Order of June 18, 1971.
13. The
aforementioned Opinion and Regulations shall also require the timely
placement of any child whose admission to regular primary school or to
the lowest regular primary class above kindergarten is postponed, or who
is not retained in such school or class, in a free public program of
education and training pursuant to Sections 1371 through 1382 of the
School Code of 1949, as amended 24 Purd.Stat. Sec. 13-1371 through Sec.
13-1382.
Section 1326
14. Section
1326 of the School Code of 1949, as amended, 24 Purd.Stat. Sec. 13-1326,
provides:
"Definitions
The term
'compulsory school age,' as hereinafter used, shall mean the period of a
child's life from the time the child's parents elect to have the child
enter school, which shall be not later than at the age of eight (8)
years, until the age of seventeen (17) years. The term shall not
include any child who holds a certificate of graduation from a regularly
accredited senior high school."
15. The
Secretary of Education, the State Board of Education, the named School
Districts and Intermediate Units, on their own behalf and on behalf of
all School Districts and Intermediate Units in the Commonwealth of
Pennsylvania, each of them, for themselves, their officers, employees,
agents and successors agree that they shall cease and desist from
applying Section 1326 so as to postpone, to terminate, or in any way to
deny access to a free public program of education and training to any
mentally retarded child.
16. The
Attorney General agrees to issue an Opinion declaring that Section 1326
means only that parents of a child have a compulsory duty while the
child is between eight and seventeen years of age to assure his
attendance in a program of education and training; and Section 1326 does
not limit the ages between which a child must be granted access to a
free, public program of education and training. Defendants are bound by
Section 1301 of the School Code of 1949, 24 Purd.Stat. Sec. 13-1301, to
provide free public education to all children six to twenty-one years of
age. In the event that a parent elects to exercise the right of a child
six through eight years and/or seventeen through twenty-one years of age
to a free public education, defendants may not deny such child access to
a program of education and training. Furthermore, if a parent does not
discharge the duty of compulsory attendance with regard to any mentally
retarded child between eight and seventeen years of age, defendants must
and shall take those steps necessary to compel the child's attendance
pursuant to Section 1327 of the School Code of 1949, 24 Purd.Stat. Sec.
13-1327, and related provisions of the School Code, and to the relevant
regulations with regard to compulsory attendance promulgated by the
Board.
17. The
Attorney General shall issue an Opinion thus construing Section 1326,
and related Sections, and the Board shall promulgate Regulations to
implement said construction, copies of which Opinion and Regulations
shall be filed with the Court and delivered to plaintiffs' counsel on or
before October 25, 1971, and they shall be issued and promulgated
respectively on or before October 27, 1971.
Section
1330(2)
18. Section
1330(2) of the School Code of 1949, as amended, 24 Purd.Stat. Sec.
13‑1330(2) provides:
"Exceptions to
compulsory attendance.
The provisions
of this act requiring regular attendance shall not apply to any child
who:
* * *
(2) Has been
examined by an approved mental clinic or by a person certified as a
public school psychologist or psychological examiner, and has been found
to be unable to profit from further public school attendance, and who
has been reported to the board of school directors and excused, in
accordance with regulations prescribed by the State Board of Education."
19. The
Secretary of Education, the State Board of Education, the named School
Districts and Intermediate Units, on their own behalf and on behalf of
all School Districts and Intermediate Units, each of them, for
themselves, their officers, employees, agents, and successors agree that
they shall cease and desist from applying Section 1330(2) so as to
terminate or in any way to deny access to a free public program of
education and training to any mentally retarded child.
20. The
Attorney General agrees to issue an Opinion declaring that Section
1330(2) means only that a parent may be excused from liability under the
compulsory attendance provisions of the School Code when, with the
approval of the local school board and the Secretary of Education and a
finding by an approved clinic or public school psychologist or
psychological examiner, the parent elects to withdraw the child from
attendance. Section 1330(2) may not be invoked by defendants, contrary
to the parents' wishes, to terminate or in any way to deny access to a
free public program of education and training to any mentally retarded
child. Furthermore, if a parent does not discharge the duty of
compulsory attendance with regards to any mentally retarded child
between eight and seventeen years of age, defendants must and shall take
those steps necessary to compel the child's attendance pursuant to
Section 1327 and related provisions of the School Code and to the
relevant regulations with regard to compulsory attendance promulgated by
the Board.
21. The
Attorney General shall issue an Opinion so construing Section 1330(2)
and related provisions and the Board shall promulgate Regulations to
implement said construction and to supersede Section 5‑400 of the Pupil
Attendance Regulations, a copy of which Opinion and Regulations shall be
filed with the Court and delivered to counsel for plaintiff on or before
October 25, 1971, and they shall be issued and promulgated respectively
on or before October 27, 1971.
Pre-School
Education
22.
Defendants, the Commonwealth of Pennsylvania, the Secretary of
Education, the State Board of Education, the named School Districts and
Intermediate Units, on their own behalf and on behalf of all School
Districts and Intermediate Units in the Commonwealth of Pennsylvania,
the Secretary of Public Welfare, each of them, for themselves, their
officers, employees, agents and successors agree that they shall cease
and desist from applying Section 1371(1) of the School Code of 1949, as
amended, 24 Purd.Stat. Sec. 13-1371(1) so as to deny access to a free
public program of education and training to any mentally retarded child,
and they further agree that wherever the Department of Education through
its instrumentalities, the School Districts and Intermediate Units, or
the Department of Public Welfare through any of its instrumentalities
provides a pre-school program of education and training to children
below the age of six, they shall also provide a program of education and
training appropriate to their learning capacities to all retarded
children of the same age.
23. Section
1371(1) of the School Code of 1949, as amended, 24 Purd.Stat. Sec.
13‑1371(1), provides:
"Definition of
exceptional children; reports; examination
(1) The term
'exceptional children' shall mean children of school age who deviate
from the average in physical, 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."
24. The
Attorney General agrees to issue an Opinion declaring that the phrase
"children of school age" as used in Section 1371 means children aged six
to twenty-one and also, whenever the Department of Education through any
of its instrumentalities, the local School District, Intermediate Unit,
or the Department of Public Welfare, through any of its
instrumentalities, provides a pre-school program of education or
training for children below the age of six, whether kindergarten or
however so called, means all mentally retarded children who have reached
the age less than six at which pre-school programs are available to
others.
25. The
Attorney General shall issue an Opinion thus construing Section 1371 and
the Board shall issue regulations to implement said construction, copies
of which Opinion and Regulations shall be filed with the Court and
delivered to counsel for plaintiffs on or before October 25, 1971, and
they shall be issued and promulgated respectively on or before October
27, 1971.
Tuition and
Tuition and Maintenance
26. The
Secretary of Education, the State Board of Education, the named School
Districts and Intermediate Units, on their own behalf and on behalf of
all School Districts and Intermediate Units in the Commonwealth of
Pennsylvania, each of them, for themselves, their officers, employees,
agents and successors agree that they shall cease and desist from
applying Section 1376 of the School Code of 1949, as amended, 24
Purd.Stat. Sec. 13-1376, so as to deny tuition or tuition and
maintenance to any mentally retarded person.
27. The
Attorney General agrees to issue an Opinion, and the Council of Basic
Education of the State Board of Education agrees to promulgate
Regulations, construing the term "brain damage" as used in Section 1376
and as defined in the Board's "Criteria for Approval ... of
Reimbursement" so as to include thereunder all mentally retarded
persons, thereby making available to them tuition for day school and
tuition and maintenance for residential school up to the maximum sum
available for day school or residential school, whichever provides the
more appropriate program of education and training. Copies of the
aforesaid Opinion and Regulations shall be filed with the Court and
delivered to counsel for plaintiff on or before October 25, 1971, and
they shall be issued and promulgated respectively on or before October
27, 1971.
28. Defendants
may deny or withdraw payments of tuition or tuition and maintenance
whenever the school district or intermediate unit in which a mentally
retarded child resides provides a program of special education and
training appropriate to the child's learning capacities into which the
child may be placed.
29. The
decision of defendants to deny or withdraw payments of tuition or
tuition and maintenance shall be deemed a change in educational
assignment as to which notice shall be given and an opportunity for a
hearing afforded as set out in this Court's order of June 18, 1971.
Homebound
Instruction
30. Section
1372(3) of the School Code of 1949, as amended, 24 Purd.Stat. Sec.
13-1372(3), provides in relevant part:
"Standards;
plans; special classes or schools
* * *
(3) Special
Classes or Schools Established and Maintained by School Districts.
*** If *** it
is not feasible to form a special class in any district or to provide
such education for any [exceptional] child in the public schools of the
district, the board of school directors of the district shall secure
such proper education and training outside the public schools of the
district or in special institutions, or by providing for teaching the
child in his home. ***"
31. The
Secretary of Education, the State Board of Education, the named School
Districts and Intermediate Units, on their own behalf and on behalf of
all School Districts and Intermediate Units in the Commonwealth of
Pennsylvania, each of them, for themselves, their officials, employees,
agents and successors agree that they shall cease and desist from
denying homebound instruction under Section 1372(3) to mentally retarded
children merely because no physical disability accompanies the
retardation or because retardation is not a short-term disability.
32. The
Attorney General agrees to issue an Opinion declaring that a mentally
retarded child, whether or not physically disabled, may receive
homebound instruction and the State Board of Education and/or the
Secretary of Education agrees to promulgate revised Regulations and
forms in accord therewith, superseding the "Homebound Instruction
Manual" (1970) insofar as it concerns mentally retarded children.
33. The
aforesaid Opinion and Regulations shall also provide:
(a) that
homebound instruction is the least preferable of the programs of
education and training administered by the Department of Education and a
mentally retarded child shall not be assigned to it unless it is the
program most appropriate to the child's capacities;
(b) that
homebound instruction shall involve education and training for at least
five hours a week;
(c) that an
assignment to homebound instruction shall be re‑evaluated not less than
every three months, and notice of the re‑evaluation and an opportunity
for a hearing thereon shall be accorded to the parent or guardian, as
set out in the Order of this Court dated June 18, 1971;
34. Copies of
the aforementioned Opinion and Regulations shall be filed with the Court
and delivered to counsel for plaintiffs on or before October 25, 1971,
and they shall be issued and promulgated respectively on or before
October 27, 1971.
Section 1375
35. Section
1375 of the School Code of 1949, as amended, 24 Purd.Stat. Sec. 13‑1375,
provides:
"Uneducable
children provided for by Department of Public Welfare
"The State
Board of Education shall establish standards for temporary or permanent
exclusion from the public school of children who are found to be
uneducable and untrainable in the public schools. Any child who is
reported by a person who is certified as a public school psychologist as
being uneducable and untrainable in the public schools, may be reported
by the board of school directors to the Superintendent of Public
Instruction and when approved by him, in accordance with the standards
of the State Board of Education, shall be certified to the Department of
Public Welfare as a child who is uneducable and untrainable in the
public schools. When a child is thus certified, the public schools
shall be relieved of the obligation of providing education or training
for such child. The Department of Public Welfare shall thereupon
arrange for the care, training and supervision of such child in a manner
not inconsistent with the laws governing mentally defective
individuals."
36. Defendants
the Commonwealth of Pennsylvania, the Secretary of Education, the State
Board of Education, the named School Districts and Intermediate Units,
on their own behalf and on behalf of all School Districts and
Intermediate Units in the Commonwealth of Pennsylvania, and the
Secretary of Public Welfare, each of them, for themselves, their
officers, employees, agents and successors agree that they shall cease
and desist from applying Section 1375 so as to deny access to a free
public program of education and training to any mentally retarded child.
37. The
Attorney General agrees to issue an Opinion declaring that since all
children are capable of benefiting from a program of education and
training, Section 1375 means that insofar as the Department of Public
Welfare is charged to "arrange for the care, training and supervision"
of a child certified to it, the Department of Public Welfare must
provide a program of education and training appropriate to the
capacities of that child.
38. The
Attorney General agrees to issue an Opinion declaring that Section 1375
means that when it is found, on the recommendation of a public school
psychologist and upon the approval of the local board of school
directors and the Secretary of Education, as reviewed in the due process
hearing as set out in the Order of this Court dated June 18, 1971, that
a mentally retarded child would benefit more from placement in a program
of education and training administered by the Department of Public
Welfare than he would from any program of education and training
administered by the Department of Education, he shall be certified to
the Department of Public Welfare for placement in a program of education
and training.
39. To assure
that any program of education and training administered by the
Department of Public Welfare shall provide education and training
appropriate to a child's capacities the plan referred to in Paragraph 49
below shall specify, inter alia,
(a) the
standards for hours of instruction, pupil-teacher ratios, curriculum,
facilities, and teacher qualifications that shall be met in programs
administered by the Department of Public Welfare;
(b) the
standards which will qualify any mentally retarded person who completes
a program administered by the Department of Public Welfare for a High
School Certificate or a Certificate of Attendance as contemplated in
Sections 8-132 and 8-133 of the Special Education Regulations;
(c) the reports
which will be required in the continuing discharge by the Department of
Education of its duty under Section 1302(1) of the Administrative Code
of 1929, as amended, 71 P.S. Sec. 352(1), to inspect and to require
reports of programs of education and training administered by the
Department of Public Welfare, which reports shall include, for each
child in such programs an annual statement of educational strategy (as
defined in Section 8-123 of the Special Education Regulations) for the
coming year and at the close of the year an evaluation of that strategy;
(d) that the
Department of Education shall exercise the power under Section 1926 of
the School Code of 1949, as amended, 24 Purd.Stat. Sec. 19-1926 to
supervise the programs of education and training in all institutions
wholly or partly supported by the Department of Public Welfare, and the
procedures to be adopted therefor.
40. The
Attorney General agrees to issue an Opinion so construing Section 1375
and the Board to promulgate Regulations implementing said construction,
which Opinion and Regulations shall also provide:
(a) that the
Secretary of Education shall be responsible for assuring that every
mentally retarded child is placed in a program of education and training
appropriate to his learning capacities, and to that end, by Rules of
Procedure requiring that reports of the annual census and evaluation,
under Section 1371(2) of the School Code of 1949, as amended, 24
Purd.Stat. 13- 1371(2), be made to him, he shall be informed as to the
identity, condition, and educational status of every mentally retarded
child within the various school districts.
(b) that should
it appear that the provisions of the School Code relating to the proper
education and training of mentally retarded children have not been
complied with or the needs of the mentally retarded child are not being
adequately served in any program administered by the Department of
Public Welfare, the Department of Education shall provide such education
and training pursuant to Section 1372(5) of the School Code of 1949, as
amended, 21 Purd.Stat. Sec. 13-1372(5).
(c) that the
same right to notice and an opportunity for a hearing as is set out in
the Order of this Court of June 18, 1971, shall be accorded on any
change in educational assignment among the programs of education and
training administered by the Department of Public Welfare.
(d) that not
less than every two years the assignment of any mentally retarded child
to a program of education and training administered by the Department of
Public Welfare shall be re-evaluated by the Department of Education and
upon such re‑evaluation, notice and an opportunity to be heard shall be
accorded as set out in the Order of this Court, dated June 18, 1971.
40. Copies of
the aforesaid Opinion and Regulations shall be filed with the Court and
delivered to counsel for plaintiffs on or before October 25, 1971, and
they shall be issued and promulgated respectively on or before October
27, 1971.
IV.
41. Each of
the named plaintiffs shall be immediately re-evaluated by defendants
and, as soon as possible, but in no event later than October 13, 1971,
shall be accorded access to a free public program of education and
training appropriate to his learning capacities.
42. Every
retarded person between the ages of six and twenty-one years as of the
date of this Order and thereafter shall be provided access to a free
public program of education and training appropriate to his capacities
as soon as possible but in no event later than September 1, 1972.
43. Wherever
defendants provide a pre-school program of education and training for
children less than six years of age, whether kindergarten or howsoever
called, every mentally retarded child of the same age as of the date of
this Order and hereafter shall be provided access to a free public
program of education and training appropriate to his capacities as soon
as possible but in no event later than September 1, 1972.
44. The
parties explicitly reserve their right to hearing and argument on the
question of the obligation of defendants to accord compensatory
educational opportunity to members of the plaintiff class of whatever
age who were denied access to a free public program of education and
training without notice and without a due process hearing while they
were aged six years to twenty-one years, for a period equal to the
period of such wrongful denial.
45. To
implement the aforementioned relief and to assure that it is extended to
all members of the class entitled to it, Dr. Herbert Goldstein and
Dennis E. Haggerty, Esquire are appointed Masters for the purpose of
overseeing a process of identification, evaluation, notification, and
compliance hereinafter described.
46. Notice of
this Order and of the Order of June 18, 1971, in form to be agreed upon
by counsel for the parties, shall be given by defendants to the parents
and guardian of every mentally retarded person, and of every person
thought by defendants to be mentally retarded, of the ages specified in
Paragraphs 42 and 43 above, now resident in the Commonwealth of
Pennsylvania, who while he was aged four years to twenty-one years was
not accorded access to a free public program of education and training,
whether as a result of exclusion, postponement, excusal, or in any other
fashion, formal or informal.
47. Within
thirty days of the date of this Order, defendants shall formulate and
shall submit to the Masters for their approval a satisfactory plan to
identify, locate, evaluate and give notice of all the persons described
in the foregoing paragraph, and to identify all persons described in
Paragraph 44, which plan shall include, but not be limited to, a search
of the records of the local school districts, of the intermediate units,
of County MH/MR units, of the State Schools and Hospitals, including the
waiting lists for admission thereto, and of interim care facilities,
and, to the extent necessary, publication in newspapers and the use of
radio and television in a manner calculated to reach the persons
described in the foregoing paragraph. A copy of the proposed plan shall
be delivered to counsel for plaintiffs who shall be accorded a right to
be heard thereon.
48. Within
ninety days of the date of this Order, defendants shall identify and
locate all persons described in paragraph 46 above, give them notice and
provide for their evaluation, and shall report to the Masters the names,
circumstances, the educational histories and the educational diagnosis
of all persons so identified.
49. By
February 1, 1972, defendants shall formulate and submit to the Masters
for their approval a plan, to be effectuated by September 1, 1972, to
commence or recommence a free public program of education and training
for all mentally retarded persons described in Paragraph 46 above and
aged between four and twenty-one years as of the date of this Order, and
for all mentally retarded persons of such ages hereafter. The plan
shall specify the range of programs of education and training, their
kind and number, necessary to provide an appropriate program of
education and training to all mentally retarded children, where they
shall be conducted, arrangements for their financing, and, if additional
teachers are found to be necessary, the plan shall specify recruitment,
hiring, and training arrangements. The plan shall specify such
additional standards and procedures, including but not limited to those
specified in Paragraph 39 above, as may be consistent with this Order
and necessary to its effectuation. A copy of the proposed plan will be
delivered to counsel for plaintiffs who shall be accorded a right to be
heard thereon.
50. If by
September 1, 1972, any local school district or intermediate unit is not
providing a free public education to all mentally retarded persons 4 to
21 years of age within its responsibility, the Secretary of Education,
pursuant to Section 1372(5) of the Public School Code of 1949, 24
Purd.Stat. 1372(5) shall directly provide, maintain, administer,
supervise, and operate programs for the education and training of these
children.
51. The
Masters shall hear any members of the plaintiff class who may be
aggrieved in the implementation of this Order.
52. The
Masters shall be compensated by defendants.
53. This Court
shall retain jurisdiction of the matter until it has heard the final
report of the Masters on or before October 15, 1972.
(s) Thomas K.
Gilhool
Attorney for Plaintiffs
(s) J. Shane
Creamer
Attorney General
(s) Ed
Weintraub
Deputy Attorney General
Attorneys for
Defendants
Acknowledged:
(s) Dr. David
H. Kurtzman
Secretary of Education
(s) Dr. William
F. Ohrtman
Director, Bureau of Special Education
(s) Mrs. Helene
Wohlgemuth
Secretary of Public Welfare
(s) Edward R.
Goldman
Commissioner of Mental Retardation.
APPENDIX A
NOTICE [FN*]
FN* (The
bracketed portions below will appear in the Notice but not in the
newspaper advertisement)
To: (1) All
parents and guardians of mentally retarded persons resident in the
Commonwealth of Pennsylvania
[(2) All School
Districts and Intermediate Units in the Commonwealth of Pennsylvania]
Notice is
hereby given (1) that a proposed Order approving a Consent Agreement and
issuing certain Injunctions in Pennsylvania Association for Retarded
Children et al. v. Commonwealth of Pennsylvania, E.D.Pa., C.A. No.
71-42, is on file with the Clerk of the United States District Court and
available for inspection there and in the offices of the Superintendent
of each School District and Intermediate Unit in the Commonwealth of
Pennsylvania and of each County Chapter of the Pennsylvania Association
for Retarded Children.
(2) That the
above mentioned action, on behalf of all mentally retarded persons who
have been denied access to a free, public program of education and
training, was begun on January 7, 1971, raising certain procedural and
substantive claims against the laws and practices of the Commonwealth of
Pennsylvania, the Department of Education, the Department of Public
Welfare, 12 named School Districts and Intermediate Units and the class
of all School Districts and Intermediate Units in the Commonwealth,
because of their failure to provide a free public education to all
mentally retarded children.
(3) That the
proposed Order would approve a Consent Agreement entered into by the
named parties on October 7, 1971, providing that each mentally retarded
child shall be accorded access to a program of education and training,
that notice and an opportunity for a hearing shall be accorded before
any change in the educational assignment of mentally retarded children,
that certain sections of the Public School Code shall be so construed,
and that certain Regulations so providing shall be promulgated
thereunder, and that a Special Master shall be appointed to oversee the
identification by defendants of all mentally retarded children who have
been denied an education and the formulation and implementation by
defendants of a plan to provide a free, public program of education and
training to all mentally retarded children as soon as possible and no
later than September 1, 1972, and would also issue certain Injunctions
consistent with the Consent Agreement.
(4) That the
parents or guardian of any mentally retarded child [or any school
district or intermediate unit] who may wish to make an objection to the
Proposed Order approving the Consent Agreement may do so by entering an
appearance and filing a statement of objections with the Clerk of the
United States District Court for the Eastern District of Pennsylvania,
9th and Chestnut Streets, Philadelphia, on or before October 20, 1971.
Hearing thereon shall be held before the Court at 10:00 o'clock A.M.,
October 22, 1971.
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