The opinion of the court was delivered by: GORBEY
This is an action under the Civil Rights Act challenging the constitutionality of the Public School Code, 24 P.S. §§ 13-1376 and 13-1377.
Relief requested includes the enjoining of the enforcement and execution of the aforesaid statute. Plaintiffs have also filed a motion for the convening of a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284, and have moved for the designation of a class action under Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure.
The named plaintiffs are three children who formerly attended public schools in their respective school districts and who are alleged to be "exceptional children" within the meaning of 24 P.S. § 13-1371. They are presently attending private schools which have been approved by the Commonwealth of Pennsylvania for tuition reimbursement. They allege that the total cost of their education at these schools exceeds the statutory tuition reimbursement, and in some instances may prevent the child of a poor family from getting an education because of an inability to pay the tuition costs which exceed the statutory maximum. In this situation the claim is made that the statutory provisions on their face and as applied violate the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. § 1983 of the Civil Rights Act.
Defendants have filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure contending that this court lacks subject matter jurisdiction because the amount in controversy, as to each plaintiff, is less than $10,000, exclusive of interest and costs.
This contention rests upon the fact that the dollar amount in excess of the statutory grant for the present academic year is respectively $200.00, $640.50, and $800.00.
The statutes challenged by plaintiffs provide that when children who are blind, deaf, afflicted with cerebral palsy, brain damage, muscular dystrophy, or who are socially and emotionally disturbed are accommodated by approved private schools, the school district and the Commonwealth of Pennsylvania share the costs of the tuition on a 25 - 75 per cent basis up to the following amounts:
$5,500 for a year for tuition and maintenance of residential students;
$4,125 for blind or deaf day students;
$3,500 for cerebral palsied, brain damaged and muscular dystrophied day students, and
$3,300 for socially and emotionally disturbed children.
In Count I of the complaint plaintiffs contend that the setting of a maximum tuition reimbursement grant constitutes discrimination against exceptional children certified to attend approved private schools in that all other children are afforded the opportunity for a free education while ...