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PENNSYLVANIA ASSN. FOR RETARDED CHILDREN v. PENNSY

May 5, 1972

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



The opinion of the court was delivered by: MASTERSON

MASTERSON, District Judge.

This civil rights case, a class action, was brought by the Pennsylvania Association for Retarded Children *fn1" and the parents of thirteen individual retarded children on behalf of all mentally retarded persons between the ages 6 and 21 whom the Commonwealth of Pennsylvania, through its local school districts and intermediate units, is presently excluding from a program of education and training in the public schools. *fn2" Named as defendants are the Commonwealth of Pennsylvania, Secretary of Welfare, State Board of Education and thirteen individual school districts scattered throughout the Commonwealth. In addition, plaintiffs have joined all other school districts in the Commonwealth as class defendants of which the named districts are said to be representative.

 The exclusions of retarded children complained of are based upon four State statutes: (1) 24 Purd. Stat. Sec. 13-1375 *fn3" which relieves the State Board of Education from any obligation to educate a child whom a public school psychologist certifies as uneducable and untrainable. The burden of caring for such a child then shifts to the Department of Welfare which has no obligation to provide any educational services for the child; (2) 24 Purd. Stat. Sec. 13-1304 *fn4" which allows an indefinite postponement of admission to public school of any child who has not attained a mental age of five years; (3) Purd. Stat. Sec. 13-1330 *fn5" which appears to excuse any child from compulsory school attendance whom a psychologist finds unable to profit therefrom and (4) 24 Purd. Stat. Sec. 13-1326 *fn6" which defines compulsory school age as 8 to 17 years but has been used in practice to postpone admissions of retarded children until age 8 or to eliminate them from public schools at age 17.

  Plaintiffs allege that Sections 1375 (uneducable and untrainable) and 1304 (mental age of 5 years) are constitutionally infirm both on their faces and as applied in three broad respects. First, plaintiffs argue that these statutes offend due process because they lack any provision for notice and a hearing before a retarded person is either excluded from a public education or a change is made in his educational assignment within the public system. *fn7" Secondly, they assert that the two provisions violate equal protection because the premise of the statute which necessarily assumes that certain retarded children are uneducable and untrainable lacks a rational basis in fact. *fn8" Finally, plaintiffs contend that because the Constitution and laws of Pennsylvania guarantee an education to all children, *fn9" these two sections violate due process in that they arbitrarily and capriciously deny that given right to retarded children. Plaintiffs' third contention also raises a pendent question of state law, that is, whether the Pennsylvania Constitution as well as other laws of the Commonwealth already afford them a right to public education.

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

 In addition, plaintiffs contend that the clear intent of Section 1330 is to forgive parents from any criminal penalty for what otherwise would be a violation of compulsory attendance requirements, and consequently, use of this provision to exclude retarded children constitutes an impermissible misinterpretation of state law. Likewise, plaintiffs assert that Section 1326 relates only to the obligation of parents (under penalty of criminal sanctions) to place their children in public schools, and its use to exclude retarded children contravenes the obvious meaning of the statute. To place these questions of state law before us, plaintiffs advance the principle of pendent jurisdiction.

 Plaintiffs predicate jurisdiction of this court upon 28 U.S.C. § 1343(3) *fn10" and their causes of action under 42 U.S.C. §§ 1981 *fn11" and 1983. *fn12" By way of relief, they seek both a declaratory judgment that the statutes are unconstitutional and a preliminary and permanent injunction against the enforcement of these laws by the defendants. *fn13" On the basis of these pleadings, it was concluded that the case raised important and substantial federal questions requiring consideration by a three judge court under 28 U.S.C. § 2281. *fn14"

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

 In the interim, the parties agreed upon a Stipulation which basically provides that no child who is mentally retarded or thought to be mentally retarded can be assigned initially (or re-assigned) to either a regular or special educational status, or excluded from a public education without a prior recorded hearing before a special hearing officer. At that hearing, parents have the right to representation by counsel, to examine their child's records, to compel the attendance of school officials who may have relevant evidence to offer, to cross-examine witnesses testifying on behalf of school officials and to introduce evidence of their own. On June 18th, this Court entered an interim order approving the Stipulation.

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

 On October 7th, 1971 the parties submitted a Consent Agreement to this Court which, along with the June 18th Stipulation, would settle the entire case. Essentially, this Agreement deals with the four state statutes in an effort to eliminate the alleged equal protection problems. As a proposed cure, the defendants agreed, inter alia, that since "the Commonwealth of Pennsylvania has undertaken to provide a free public education for all of its children between the ages of six and twenty-one years" (Paragraph 5), therefore, "it is the Commonwealth's obligation to place each mentally retarded child in a free, public program of education and training appropriate to the child's capacity." (Paragraph 7.) To effectuate this result without conceding the unconstitutionality of the foregoing statutes or upsetting the existing statutory scheme, the Attorney General of the Commonwealth agreed to issue Opinions declaring in substance that: (1) Section 1375 means that "insofar as the Department of Public Welfare is charged to arrange for the care, training and supervision of a child certified to it, the Department of Public Welfare must provide a program of education and training appropriate to the capacities of that child" (Paragraph 37); (2) Section 1304 means " only that a school district may refuse to accept into or retain in the lowest grade of the regular primary school [as contrasted with a special primary school] any child who has not attained a mental age of five years" (Paragraph 10); (3) Section 1330(2) means " only that a parent may be excused from liability under the compulsory attendance provisions of the School Code when, with the approval of the local school board and the Secretary of Education and the finding by an approved school psychologist, the parent elects to withdraw the child from attendance; Section 1330(2) may not be used by defendants, contrary to parents' wishes, to terminate or in any way deny access to a free public program of education and training to any mentally retarded child." (Paragraph 20); and (4) Section 1326 means " only that parents of a child have a compulsory duty while the child is between eight and seventeen years of age to assure his attendance in a program of education and training; and Section 1326 does not limit the ages between which a child must be granted access to a free public program of education and training [and may not be used as such]." (Paragraph 16.) Thus, possible use of these four provisions to exclude (or postpone) retarded children from a program of public education was effectively foreclosed by this Agreement. And on October 22, 1971, the Attorney General issued these agreed upon Opinions.

 In addition, the Consent Agreement addresses itself to three other matters involving the education of retarded children which the plaintiffs did not specifically raise in their pleadings. First, in the area of pre-school education, the defendants agreed to cease applying 24 Purd. Stat. Sec. 13-1371 *fn15" so as to deny retarded children below the age of six access to a free pre-school program of education and training appropriate to their learning capacities whenever the school districts provide such a pre-school program to normal children below the age of six. The Attorney General again issued an Opinion so interpreting Section 1371(1).

 Next, the defendants agreed to cease applying 24 Purd. Stat. Sec. 13-1376 *fn16" so as to deny tuition or tuition maintenance to any mentally retarded person. Basically, Section 1376 provides for the payment of tuition to private schools by the Commonwealth and local school districts (75% and 25% respectively) where, with the approval of the Department of Education, a child afflicted with blindness, deafness, cerebral palsy, brain damage or muscular dystrophy is attending a private school. Prior to the Consent Agreement, this statute was interpreted not to apply to retarded children unless they also suffered from one of the maladies mentioned above. Consequently, if the public sector excluded a retarded child (who lacked a multiple disability) under Section 1375, 1304, 1330 or 1326, his parents had to assume the full financial burden of educating and training him in a private school. Often, because of the special care required, this burden assumed formidable proportions. *fn17" Thus, the Attorney General issued an Opinion "construing the term 'brain damage' as used in Section 1376 . . . 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 . . ." (Paragraph 27).

 Finally, the defendants agreed to cease applying 24 Purd. Stat. Sec. 13-1372(3) *fn18" so as "to deny [mentally retarded children] homebound instruction under that Section . . . merely because no physical disability accompanies the retardation or because retardation is not a short-term disability." (Paragraph 31.) Once again, the Attorney General issued an Opinion so construing this provision.

 
"The 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 . . . 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, there [sic] 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." (Paragraph 49) (emphasis added).

 Thus, if all goes according to plan, Pennsylvania should be providing a meaningful program of education and training to every retarded child in the Commonwealth by September, 1972.

 We then entered an interim order, without prejudice, pending notice to the class of plaintiffs and the class of defendants, which temporarily enjoined the defendants from applying (1) 24 Purd. Stat. Sections 13-1375, 1304, 1330(2), and 1371(1) "so as to deny any mentally retarded child access to a free public program of education and training;" (2) Section 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;" and (3) Section 13-1372(3) "[so as to deny] homebound instruction to any mentally retarded person merely because no physical disability accompanies the retardation or because it is not a short-term disability." *fn19"

 Next, in accordance with Rule 23(e), F.R. Civ. P., *fn20" a hearing was scheduled on any objections to the proposed settlement Agreements. We instructed the named plaintiffs and defendants to notify all remaining members of their respective classes (primarily by newspaper in the case of plaintiffs and by direct mailing for the defendants). Proper notice went out to the plaintiffs and only one appeared at the hearing. *fn21" None of the remaining defendants appeared, however, because the Commonwealth neglected to send them any notice. *fn22" Consequently, we ordered that new notice be given, and rescheduled the hearing for November 12, 1971.

 Notice of that hearing went out about October 29th, *fn23" and Philip Salkin, Esq. and William B. Arnold, Esq. appeared and filed objections on behalf of the Montgomery County Intermediate Unit and the Lancaster-Lebanon Intermediate Unit respectively. In addition, John D. Killian, Esq. appeared and objected for the Pennsylvania Association of Private Schools for Exceptional Children.

 Both attorneys for the Intermediate Units argued to the Court that the notice they received was inadequate to prepare their cases against both the Stipulation of June 18th and the Consent Agreement of October 7th. *fn24" They also argued that many districts and intermediate units failed to appear because they did not have enough time to analyze and react to the two rather lengthy and intricate proposals. The attorneys pointed out that since most school boards meet on the first week of each month, these bodies would not even have an opportunity to review the documents until after December 1st. *fn25"

 To extend every element of fairness in this important litigation, we ordered that a second individual notice be sent to all 29 intermediate units and 569 school districts, extending them an opportunity to object and be heard at yet another hearing on December 15, 1971. Following this second notice, the Allegheny Intermediate Unit No. 3, Chester County Intermediate Unit No. 24, Schuylkill Intermediate Unit No. 29, Delaware County Intermediate Unit, and 9 individual school districts within these four Units joined the opponents of the settlement.

 On December 15th and 16th, we heard from the objectors and their witnesses. Essentially, the complaining defendants challenged parts of the June 18th Stipulation (dealing with due process hearings) which they claimed were unnecessary, burdensome and administratively unwieldy and impractical. *fn26" The wisdom of a few minor portions of the October 7th Consent Agreement was also questioned. *fn27" Apart from questioning certain details of the Agreements, the objectors challenged our jurisdiction over the case and over themselves as purported members of a class. Finally, they raised the issue of abstention.

 Following this testimony, the proponents of the settlement met with the objectors in an effort to modify the two documents so as to satisfy every one involved. Intensive negotiations ensued. Final legal argument was scheduled for January 31, 1972.

 At the request of the litigants, we postponed final argument until February 7, 1972. On that date, only one defendant remained -- the Lancaster-Lebanon Intermediate Unit. All others had withdrawn their objections because subsequent modifications of the Stipulation and Consent Agreement by the proponents satisfied their complaints. *fn28" The Pennsylvania Association of Private Schools for Exceptional Children (which is not a member of either class) also expressed dissatisfaction at that hearing.

 The arguments presented by Lancaster-Lebanon are essentially legal, that is, the Intermediate Unit does not question the fairness of the proposed settlement to the members of either class, *fn29" rather it seeks to destroy the Agreements altogether by raising the issue of jurisdiction as well as the oft-mentioned, but seldom fully understood, issue of abstention.

 I. JURISDICTION

 A. Controversy Under Article III

 Preliminarily, the issue of whether the Lancaster-Lebanon Intermediate Unit can even raise jurisdictional issues at a hearing on the proposed settlement of a class action under Rule 23(e) arises. Theoretically, the scope of such a hearing is limited to an inquiry into the fairness of the settlement. See Moore's Federal Practice, § 23.80(4). Since jurisdictional issues relate to the very power of this court to hear this case and bind the parties, however, we think that the objectors must be permitted to raise them.

 Although not particularly pressed at final oral argument (which was devoted primarily to absention), Lancaster-Lebanon has raised two distinct jurisdictional issues throughout this litigation. First, Lancaster-Lebanon charges that there is no controversy before this court within the meaning of Article III, Sec. 2 of the United States Constitution because of alleged collusion and total agreement on the merits between the plaintiffs and the Commonwealth in conducting this suit. Secondly, the Intermediate Unit contends that this Court lacks jurisdiction to bind it to any Consent Agreement because the Lancaster-Lebanon Unit received no notice and had no opportunity to appear when the suit was first instituted. (See Section I.B., infra.). We find both contentions without merit.

 Undoubtedly, if two litigants commence a suit with the same goals in mind, no controversy exists to give the district court jurisdiction as required by Article III, Sec. 2. See Moore v. Charlotte-Mecklenburg Board of Education, 402 U.S. 47, 91 S. Ct. 1292, 28 L. Ed. 2d 590 (1971); United States v. Johnson, 319 U.S. 302, 63 S. Ct. 1075, 87 L. Ed. 1413 (1943); Muskrat v. United States, 219 U.S. 346, 31 S. Ct. 250, 55 L. Ed. 246 (1911). But a different case arises when litigants begin a suit as adversaries, and then at some later point decide to compromise the dispute. In such an instance, the court does not ipso facto lose jurisdiction over the matter for want of a controversy. Cf. Dixon v. Attorney General of Com. of Pa., 325 F. Supp. 966 (E.D. Pa. 1971) (Biggs, Circuit Judge). This latter rule flows from common sense as well as the fact that even in preparing a compromise, the parties may remain adversaries within the meaning of Article III.

 In June, 1971, it is true, the parties agreed to settle the issue of due process hearings. Even so, the defendants did not give the plaintiffs carte blanche to draw up any proposal of their choosing; rather the arts of negotiation and compromise were employed, with Commonwealth experts in the field of education also taking part in the discussions. *fn31"

 Despite negotiations on this front, the defendants steadfastly adhered to their original position on plaintiffs' equal protection claims. Indeed, it was not until after a day of testimony from four distinguished experts that the Commonwealth agreed to relent on this issue as well. Far from an indication of collusion, however, the Commonwealth's willingness to settle this dispute reflects an intelligent response to overwhelming evidence against their position.

 Once the compromise was prepared, of course, plaintiffs and the named defendants shared identical interests in seeking approval of the settlement. Nevertheless, because these defendants refused to concede the unconstitutionality of the statutes and continued to enforce them, the parties remained adversaries on the constitutional issues which are critical to our jurisdiction. Hence, we conclude that a controversy exists under Article III, Sec. 2.

 B. Over the Parties

 Next, Lancaster-Lebanon argues that it is not bound by these Consent Agreements or the Injunction because this Court lacks jurisdiction, not necessarily over the subject matter, but over it as a party. The Intermediate Unit predicates this assertion upon the concept that under the Due Process Clause, notice at the commencement of the litigation constitutes a prerequisite to a court's jurisdiction over the parties. As applied to the facts of this case, however, we disagree.

 We begin by holding that the defendants constitute a class under Rule 23(B)(1)(B), F.R. Civ. P. This section is appropriate because, as a practical matter, once the issues are decided against one school district within an intermediate unit, or one intermediate unit within the Commonwealth all other districts or intermediate units will ultimately be bound by the result. In other words, "adjudications with respect to individual members of the class [would] as a practical matter be dispositive of the interests of the other members not parties to the adjudication . . ." Rule 23(b)(1)(B). This result follows because (1) intermediate units have an obligation to coordinate the education of exceptional children where member school districts are unable to sustain individual programs, and (2) the Commonwealth, for reasons of economy and administration, must necessarily maintain a uniform set of rules and regulations governing the responsibilities of all school districts and intermediate units within the state. *fn32"

 The notice requirements for a (b)(1) class are set forth in Rule 23(d)(2) which provides as follows:

 
"(d) Orders of Conduct of Actions. In the conduct of actions to which this rule applies, the court may make appropriate orders:
 
. . .
 
(2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment . . ."

 Under this rule, notice of the litigation to members of the class is apparently discretionary, and "[in] the degree that there is cohesiveness or unity in the class and the representation is effective, the need for notice to the class will tend toward a minimum." *fn33" Indeed, most courts have held that where a class is adequately represented, no notice of the suit need be given under the Due Process Clause in order to bind all members of the class. See Management T.V. Sys. Inc. v. National Football League, 52 F.R.D. 162 (E.D. Pa. 1971); Northern Natural Gas Co. v. Grounds, 292 F. Supp. 619. *fn34"

 But we need not go this far, because the due process issue presented here is significantly different. In this case, the Lancaster-Lebanon Unit, and all 29 other intermediate units and 569 school districts received two notices of this proceeding and two opportunities to appear before this Court (November 12th and December 15th) prior to any final judgment on the fairness of the settlement proposals. And at these hearings, the defendants had an opportunity to recall any expert witness who testified at the August 12th hearing (at which the objectors were not present) for purposes of cross examination. Yet the defendants declined this invitation. In addition, we allowed them an opportunity to present contrary evidence on the merits, and the objecting defendants did produce the testimony which they felt was relevant. All then rested on the record. *fn35" Since the defendants had an adequate notice to appear and a meaningful opportunity to present evidence before we rendered final judgment on the settlement, we hold that the objecting defendants were afforded every element of procedural due process. See Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965).

 Further, we are satisfied that the Attorney General adequately represented the interests of all the defendants before the objectors entered the case. To the extent that inadequate representation during the early stages of litigation might constitute a denial of due process, *fn36" no such denial occurred in this case. By express agreement of counsel, the Attorney General assumed the arduous task of defending this action on behalf of the thirteen named school districts as well as the named officials. And the interests of these named school districts fairly reflected the interests of all school districts in the Commonwealth. Hence, the requirement that the class representatives not have interests antagonistic to those of other members of the class whom they are representing was satisfied.

 We have already reviewed the actions of the Attorney General in defending this case. And while conducting their defense, the Commonwealth kept the named parties fully informed of the progress of the litigation and advised them of the content of the proposed settlements. *fn37" Considering these facts, we reject Lancaster-Lebanon's attacks upon our jurisdiction over the parties.

 C. Over the Subject Matter

 Although no party questions the quality of plaintiffs' constitutional claims, it is basic constitutional law that federal district courts cannot acquire jurisdiction over the subject matter of a dispute by consent. Rather our jurisdiction (power) necessarily depends upon the United States Constitution and Acts of Congress. For this reason, consensus of the parties cannot interfere with our fundamental obligation to act only where the Constitution and Congress permit. Cf. Sibron v. New York, 392 U.S. 40, 58, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968); Young v. United States, 315 U.S. 257, 258-259, 62 S. Ct. 510, 86 L. Ed. 832 (1942). Consequently, we conclude that this court has a constitutional obligation to examine the record independently and satisfy ourselves that plaintiffs' claims are not "wholly insubstantial and frivolous." Bell v. Hood, 327 U.S. 678, 682-683, 66 S. Ct. 773, 90 L. Ed. 939 (1946).

 Such an inquiry becomes particularly important in the case of these defendants because we have entered an injunction which, by its terms, binds all school districts and intermediate units in the Commonwealth. Moreover, this injunction affects the enforcement of some half-dozen statutes by state officers. The injunctive power of this court must not be used lightly, especially when it operates against state statutes and officers.

 We begin with the contention that due process requires a hearing before retarded children may be denied a public education. It is not disputed that prior to this suit, parents of retarded children who are plaintiffs were not afforded a hearing or, in many instances, even notice of their child's exclusion from public school. *fn38" For example, the parents of David Tupi, a retarded child, were never officially informed of the decision to exclude him from school. Rather they were only made aware of the situation when the school bus which regularly brought him to school failed to show up. *fn39" Such crass and summary treatment of these children becomes suspect, we think, because of the stigma which our society unfortunately attaches to the label of mental retardation. *fn40" Dr. Goldberg testified at length concerning the historical roots of the stigma. *fn41"

 Organized efforts to educate the mentally retarded began about 1848 with the establishment of residential centers which were geared toward preparing mentally retarded individuals for a greater contribution to society as well as sheltering these individuals from a hostile society. About 1900, special education classes for the mentally retarded were started in public schools. These classes were originally denominated "opportunity classes," which indicated that the child was merely waiting somewhere to join the mainstream of the school life.

 But Dr. Goldberg stated that in the next decade:

 
"[The] wonderful idea of adjusting the individuals to our society became the dumping grounds for children who could not manage in other classes and started to be called classes for the feebleminded, classes for idiots, and so on . . .
 
And then the Eugenic Association in the United States started to raise quite of lot of cry that the American Society is going to pieces, mental retardation is hereditary, mentally retardates are criminals, are prostitutes as the [I.Q.] tests proved. Therefore, something very drastic has to be done.
 
And in 1912, the Eugenic Society, the Research Section of the Eugenic Society, namely, the American Breeders Association suggested that drastic measures be taken to prevent the Americans from becoming all feebleminded [such as] segregation or segregation during the reproductive period, for women, . . . organizing institutions for feebleminded women of child-bearing age in order to prevent them from having children, . . . compulsory sterilization law for women, and castration for men. . . . Another recommendation was euthanasia. This, of course, just introduced and I hope was not implemented. *fn42" . . . I really want to point out that the days we are talking about are not so far removed, that the stigma attached to mental retardation is still with us, with the general public." *fn43"

 Experts agree that it is primarily the school which imposes the mentally-retarded label and concomitant stigmatization upon children, either initially or later on through a change in educational assignment. This follows from the fact that the school constitutes the first social institution with which the child comes into contact. *fn45"

 Not only is the school the institution which normally imposes the stigma; sometimes, and perhaps quite often, a child is incorrectly labeled. A recent study of 378 educable mentally retarded students from 36 independent school districts in the five county Greater Philadelphia Area found that "the diagnosis for 25% of the youngsters found in classes for the [educable mentally] retarded may be considered erroneous. An additional 43% may be questioned." *fn46" The authors conclude: "[One] cannot help but be concerned about the consequences of subjecting these children to the 'retarded' curriculum . . . The stigma of bearing the label 'retarded' is bad enough, but to bear the label when placement is questionable or outright erroneous is an intolerable situation." *fn47"

 In the recent case of Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971), the United States Supreme Court considered the necessity of a due process hearing before the state stigmatizes any citizen. There the police, without notice to her or a prior hearing, had posted a notice in all retail liquor establishments forbidding sales to Mrs. Constantineau because of her "excessive drinking." The Court wrote:

 
"The only issue present here is whether the label or characterization given a person by 'posting,' though a mark of serious illness to some, is to others such a stigma or badge of disgrace that procedural due process requires notice and an opportunity to be heard. We agree with the district court that the private interest is such that those requirements . . . must be met." Id. at 436, 91 S. Ct. at 509.

 Considering just Constantineau and the evidence presented here, we are convinced that the plaintiffs have established a colorable claim under the Due Process Clause. *fn48"

 
"[All] mentally retarded persons are capable of benefitting from a program of education and training; *fn49" 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; *fn50" that the earlier such education and training begins, the more thoroughly and the more efficiently a mentally retarded person will benefit from it *fn51" 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." *fn52" Consent Agreement, Paragraph 4.

 Despite this evidence and despite the fact that Pennsylvania provides an education to most children, the State's 1965 Pennsylvania Mental Retardation Plan estimates that while 46,000 school age retarded children were enrolled in public schools, another 70,000 to 80,000 retarded children between the ages of 5 and 21 were denied access to any public education services in schools, home or day care or other community facilities, or state residential institutions (C.M.R.P. at 4, 92, 93, 142). *fn53"

 Because of an absence of adequate resources, facilities and teachers as well as the lack of a structured plan, even those whom the State serves in its institutions (i.e., residential centers, hospitals, etc.) do not always benefit. For example, Dr. Edward R. Goldman, Commissioner of the Office of Mental Retardation, Department of Welfare, testified that there are presently 4,159 children of school age in state institutions. But only 100 of these children are in a full program of education and training; 1,700 are in partial but inadequate programs, and 3,259 are in no program of any kind. *fn54" Moreover, the 1965 Pennsylvania Mental Retardation Plan reports that because of a lack of space, the State housed 900 mentally retarded persons at Dallas State Correction Institution, 3,462 at State mental hospitals and 104 in Youth Development Centers. And:

 
"Fewer than two percent of the residents of Pennsylvania's state schools leave the rolls each year; and half of those by death, rather than by discharge. A discharge rate of less than one percent has two implications: First, that beds are not opening up for persons in the community who need them; and second, that the state institutions continue to provide a program that barely rises above purely custodial care, if it rises at all." *fn55"

 Finally, the Report concludes:

 
"Nowhere is there a suitable commonwealth-supported local program for children of school age who are adjudged uneducable and untrainable by the public schools. Their normal fate is a waiting list for a state school and hospital, at which services do not conform to the spirit of the school code. *fn56"

 With these facts in mind, we turn to plaintiffs' equal protection argument. Plaintiffs do not challenge the separation of special classes for retarded children from regular classes or the proper assignment of retarded children to special classes. Rather plaintiffs question whether the state, having undertaken to provide public education to some children (perhaps all children) may deny it to plaintiffs entirely. We are satisfied that the evidence raises serious doubts (and hence a colorable claim) as to the existence of a rational basis for such exclusions. See, e.g., Brown v. Board of Education, 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955).

 One further jurisdictional matter remains. Plaintiffs' complaint contains two pendent state law claims which the Consent Agreement and our Injunction encompass. We find that, to the extent these claims involve distinct non-federal claims, *fn57" this Court has jurisdiction over them because "[the] state and federal claims . . . derive from a common nucleus of operative fact" and they are such that "[a plaintiff] would ordinarily be expected to try them all in one judicial proceeding." United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966). Compare Hurn v. Oursler, 289 U.S. 238, 53 S. Ct. 586, 77 L. Ed. 1148 (1933). On the other hand, to the extent that these claims emanate from unconstitutional results obtained by the improper use of statutes which themselves are not unconstitutional, plaintiffs, of course, have made out a federal claim. See 42 U.S.C. § 1983. *fn58"

 Lancaster-Lebanon vigorously contends that we should abstain, and stay our hand until the Pennsylvania courts decide whether the Constitution and laws of Pennsylvania already afford plaintiffs the rights they seek to establish in this federal suit. For the reasons discussed below, which are somewhat unique in the history of the doctrine of abstention, we decline to abstain in this case.

 We begin with the cardinal, yet often forgotten proposition that abstention is an equitable, not a jurisdictional doctrine. See, e.g., Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). Hence, sound discretion within the confines of judicial precedent controls our decision.

 Preliminarily, we must once again consider whether Lancaster-Lebanon can even raise this doctrine at a hearing on the proposed settlement of a class action. As previously indicated, such hearings are traditionally limited to the issues of the fairness of the proposed settlement or other matters expressly involving Rule 23. And an opportunity to object is extended primarily so that those who appear might offer the court, which acts as a guardian to absent class members, advice on the worth of the settlement agreement. Moreover, since the theoretical basis of class actions assumes that all members are bound by the legal strategies of those representing the class (provided such representation is adequate), we think that Rule 23 precludes Lancaster-Lebanon from raising the issue of abstention. Nevertheless, because abstention involves important considerations of federal-state relations, we have decided to entertain it in this case.

 The doctrine of abstention applies in narrow circumstances where a decision concerning a question of state law might be adequate to dispose of the case or may change the precise nature of the constitutional questions presented, and the answer to the state question involves unclear state law. See Askew v. Hargrave, 401 U.S. 476, 91 S. Ct. 856, 28 L. Ed. 2d 196 (1971); Reetz v. Bozanich, 397 U.S. 82, 90 S. Ct. 788, 25 L. Ed. 2d 68 (1970); Harman v. Forssenius, 380 U.S. 528, 534, 85 S. Ct. 1177, 14 L. Ed. 2d 50 (1965); Railroad Comm'n of Texas v. Pullman Co., supra; Gere v. Stanley, supra. The rationale behind this rule is two-fold. First, by abstaining, the federal court avoids needless, or at least, premature constitutional adjudication. Secondly, it avoids needless friction in federal-state relations. This second consideration becomes particularly weighty where a matter of paramount interest to the state, requiring local expertise to resolve, is involved. See, e.g., Railroad Comm'n of Texas v. Pullman, supra; Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943).

 Where there is no question of unclear state law, however, a federal court may not abstain merely because (1) state courts are as competent a forum to decide federal questions as are the federal courts, See Wisconsin v. Constantineau, supra; Zwickler v. Koota, 389 U.S. 241, 248, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967); Gere v. Stanley, supra, 453 F.2d at 208-209; or (2) paramount state interests are challenged in the suit, See, King-Smith v. Aaron, 455 F.2d 378 n. 3 (3rd Cir. 1972); Garvin v. Rosenau, 455 F.2d 233 (6th Cir. 1972). With this view of abstention in mind, we turn to the facts of this case.

 It is easiest to understand the abstention issue if we first assume that no Consent Agreement had been presented to the Court. In that event, plaintiffs' complaint would have divided neatly into two parts -- due process (procedural) and equal protection (substantive).

 As to the due process claim, the statutes challenged are clear; they simply make no provision for hearings for retarded children prior to exclusion from school or a change in educational assignment. Consequently, it would have been improper for us to abstain on this issue. See Wisconsin v. Constantineau, supra.

  The equal protection claim, however, requires closer scrutiny. The statutes challenged under this Clause (1375 and 1304) as well as those challenged under pendent state law (1330 and 1326) are all unclear, and as yet, uninterpreted by Pennsylvania Courts. *fn59" Indeed, the very fact that the Attorney General of the Commonwealth was able to construe these statutes so as to eliminate the alleged equal protection claims dispels any doubt about whether the statutes are capable of saving interpretations. Moreover, Article III, Section 14 of the Pennsylvania Constitution *fn60" may already afford plaintiffs their requested relief. *fn61" Undoubtedly proper judicial procedure requires that a federal court allow the state courts to face these state law issues before allowing an attack on federal constitutional grounds in the federal court. Hence, assuming that no Consent Agreement was presented, we would have been faced with an unusual situation -- divisible abstention -- half of the case commanding abstention and the other half requiring a decision. Under these circumstances, primarily because of the distinctiveness of the two issues and the fact that the federal due process claim could not have been avoided on state grounds, it would have been sensible to abstain on the equal protection issue but decide the due process question. *fn62" Such a severance nicely satisfies both the demand that we accept jurisdiction where properly invoked and the requirement that we avoid needless constitutional decisions on local matters.

 Since, in any event, we would not have abstained on the due process claim, the narrow issue before us is whether, given the existence of a final Consent Agreement, we ought now to abstain on the issue of equal protection. *fn63" Considering the present posture of this suit, we hold that judicial precedent as well as equitable principles dictate against such a disposition.

 To recapitulate, the fact that a question of state law adequate to dispose of the case involves unclear state law does not in itself trigger abstention. Rather, the decision to abstain flows ultimately from the fact that the federal court's handling of unclear state law may cause a needless constitutional decision as well as undue friction between the state and federal systems. Consequently, regardless of any unclear state law, if it is possible for federal litigation to go forward without violating either of these underlying precepts, abstention must be regarded as inappropriate. In this case, by approving the Amended Consent Agreement and Stipulation we avoid treading upon either precept.

 First, there is no risk of a needless or premature constitutional decision since the settlement itself eliminates the need to make any constitutional decisions at all concerning these unclear state statutes. Secondly, we find no risk of friction with the State of Pennsylvania in the administration of its local affairs since the Attorney General, Secretary of Education and Secretary of Welfare, the very officers who are responsible for administering the state's system of education, all affirmatively request that this court retain jurisdiction and not abstain. *fn64"


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