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January 7, 1976

FREDERICK L., a minor by his mother, DELORES L., on behalf of himself and all others similarly situated
ARTHUR THOMAS, Individually and in his capacity as President of the Board of Education of Philadelphia MRS. EDWARD OBERHOLTZER, WILLIAM ROSS, ROBERT M. SEBASTIAN, AUGUSTUS BAXTER, MRS. LAWRENCE BONNIN, PHILIP DAVIDOFF, GEORGE HUTT, and ALEC WASHCO, JR., individually and in their capacities as members of the Board of Education of Philadelphia; MATTHEW COSTANZO, individually and in his capacity as Superintendent of Schools of the School District of Philadelphia; ALTHEA L. COUSINS, individually and in her capacity as Director of Pupil Personnel and Counseling of the School District of Philadelphia; MARECHAL-NEIL E. YOUNG, individually and in her capacity as Associate Superintendent for Special Education of the School District of Philadelphia; and THE SCHOOL DISTRICT OF PHILADELPHIA THE COMMONWEALTH OF PENNSYLVANIA ex rel ISRAEL PACKEL and JOHN C. PITTENGER

The opinion of the court was delivered by: NEWCOMER

Newcomer, J.

 This case is before the Court in an unusual posture. A trial on the merits was held while there was an outstanding "motion to dismiss." We will now deny that motion. Counsel will be given an opportunity to be heard in argument on the trial record before we make findings of fact and conclusions of law.

 Before setting forth our reasons for denying the motion, it is necessary to explain the basis for the unorthodox sequence of the proceedings. On January 9, 1974, a class action complaint was filed on behalf of Frederick L. and all other children with "specific learning disabilities," *fn1" who are allegedly deprived of an education appropriate to their specialized needs by the defendants, the School District of Philadelphia and named officials of said District. Federal jurisdiction was based on alleged violations of the United States Constitution and of the Civil Rights Act, 42 U.S.C. § 1983, and pendant state law claims were also pleaded. The original defendants answered the complaint on April 29, 1974. The Commonwealth of Pennsylvania was given leave to intervene as a party defendant on June 15, 1974. It filed an answer to the Complaint on September 30, 1974. There was extensive pretrial discovery, together with negotiations that brought the dispute close to settlement. On September 15, 1975, the defendant-intervenor, Commonwealth of Pennsylvania, filed a "Motion to Dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure," in which the original defendants subsequently joined. This motion was not properly presented under Fed. R. Civ. P. 12(b), since the Commonwealth had answered the complaint almost a year earlier. The court treated the motion as if it had been made pursuant to Rule 12(c), Motion for Judgment on the Pleadings. *fn2" However, Rule 12(c) provides, in pertinent part:

"After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." (Emphasis supplied)

 The Commonwealth filed its motion ten days after the originally scheduled trial date, and about a week before the new date, for which the court had reserved two weeks in its calendar. The court decided that at least one of the grounds asserted in the motion -- abstention -- raised serious issues, but they could not be thoroughly evaluated before the trial date. Unable to delay the trial but not wanting to deny the motion on a procedural ground, especially since the asserted grounds could be raised by motion at trial under Fed. R. Civ. P. 12(h) (2-3), *fn3" the court took the motion under advisement and commenced the trial.

 The motion asserts three grounds for dismissal of the complaint or stay of the proceedings: (a) failure to state a cause of action; (b) mootness; and (c) abstention. We will discuss each in turn. Although each ground is rejected, we have left open the possibility that partial abstention may become appropriate at some future time.

 A. Failure to State a Cause of Action

 The defendants do not deny that the plaintiffs have stated a colorable claim under state statutory law. By directing their arguments at the constitutional claims in the complaint, the defendants have, in effect, attacked the federal jurisdictional basis of the case. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). The question before us is whether the plaintiffs, under any of their constitutional theories, have stated a colorable claim which may entitle them to relief. Their claim under the Equal Protection Clause of the Fourteenth Amendment satisfies this test, and therefore we need not inquire into the soundness of the plaintiffs' right-to-education claim under the First, Ninth and Fourteenth Amendments.

 Second, the plaintiffs say that the Commonwealth and the School District of Philadelphia are providing mentally retarded children with a free public education especially suited to their individual needs, but are denying learning disabled children an equal educational opportunity, namely, a curriculum adapted to overcome their handicaps.

 Third, it is alleged that the state and the district are unlawfully discriminating between those few learning disabled children who it is specially instructing, and the plaintiffs who are not given special instruction.

 Whether the plaintiffs are to be deemed "excluded" from public education is, we think, a mixed question of fact and law. We note that the Supreme Court, in Lau v. Nichols, 414 U.S. 563, 94 S. Ct. 786, 39 L. Ed. 2d 1 (1974) did not reach the question whether non-English speaking Chinese children were, for the purposes of equal protection analysis, being constructively excluded from public educational services when they were admitted to the schools on the same basis as other children, that is, into classes conducted only in English. Furthermore, in San Antonio School District v. Rodriguez, 411 U.S. 1, 37, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973), the Court left open the possibility that the denial of a minimally adequate educational opportunity may trench upon a fundamental interest, if the state has undertaken to provide a free public education. *fn4" We find that the plaintiffs' legal propositions are not completely devoid of merit, and that their offer of proof on the factual question is satisfactory. Plaintiffs may be able to show that the defendants' policies must be subjected to strict scrutiny because a classification has functionally excluded them from a minimally adequate education.

 The complaint also includes a colorable claim that these classifications do not satisfy the equal protection test of rationality. The appropriate test for this case would not be the traditional rationality standard. See, e.g. Lindsley v. National Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S. Ct. 337, 55 L. Ed. 369 (1911). The interests implicated in this dispute require the defendants to show that their actions have a basis in fact which rationally advances an actual purpose of the legislative scheme. Weinberger v. Wiesenfeld, 420 U.S. 636, 43 L. Ed. 2d 514, 95 S. Ct. 1225 (1975); Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975); Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972); See also, Gunther, "Forward: In Search of An Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection," 86 Harv. L. Rev. 1 (1972); Davidson, "Welfare Cases and the 'New Majority': Constitutional Theory and Practice," 10 Harv. Civ. Rights-Civ. Lib. L. Rev. 513 (1975).

 Wiesenfeld, supra, involved a classification by sex, a quasi-suspect classification. Analogously, the instant case involves education, a quasi-fundamental interest. *fn5" Moreover, although learning disabled children are not a suspect class they do exhibit some of the essential characteristics of suspect classes -- minority status and powerlessness. We think that the Supreme Court, if presented with the plaintiffs' equal protection claim, would apply the as yet hard to define middle test of equal protection, sometimes referred to as "strict rationality." For example, in Weinberger, supra, the Court, without purporting to apply the compelling state interest test, noted that a legislative discrimination, even if it can be rationally explained and "is not entirely without empirical support," 43 L. Ed. 2d at 523, must nevertheless withstand scrutiny in light of the primary purposes of the legislative scheme of which it is a part.

 The policy of the Commonwealth of Pennsylvania is to make available for every child in the state a free public education appropriate to his needs. *fn6" The defendants contend that the current level and distribution of instructional services is rationally related to this goal, for the following reasons. Once the state undertakes to correct a social problem, it does not have to solve every aspect of the problem at the very beginning. The state of the art in the field of learning disabilities is uncertain both in regard to diagnosis and remedial instruction -- and it is therefore rational to move more slowly in that area than in the furnishing of appropriate instruction for normal and for mentally retarded children. An additional hindrance to establishing services for the learning disabled is said to be a dearth of trained personnel. The defendant admits, that subject to the constraints just noted as well as the limiting factor of finite resources, the state and district must expend their funds equitably and without entirely excluding any child from a public education. *fn7" The plaintiffs offer to prove that the factual contentions which the defendants rely on in this argument are incorrect.

 It would serve no purpose for us to speculate about which combinations of facts, if proven, would support or refute the equal protection claim stated in the complaint. The defendants will have to demonstrate that their classification of learning disabled children is a means to achieving the declared legislative purpose, and that the choice of the method has a basis in fact. Since the ...

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