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FREDERICK L. v. THOMAS

August 2, 1976

FREDERICK L., a minor by his mother, DELORES L., on behalf of himself and all others similarly situated, and DELAWARE VALLEY ASSOCIATION FOR CHILDREN WITH LEARNING DISABILITIES, plaintiff-intervenor,
v.
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 the 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; THE SCHOOL DISTRICT OF PHILADELPHIA; and THE COMMONWEALTH OF PENNSYLVANIA ex rel. ISRAEL PACKEL and JOHN C. PITTENGER, defendant-intervenor



The opinion of the court was delivered by: NEWCOMER

 Newcomer, J.

 This lawsuit involves the education of children and adolescents with specific learning disabilities (LD's) in the School District of Philadelphia (District). *fn1" The complaint alleges that the District does not have a remedial program for learning disabled children which satisfies Pennsylvania's special education statutes. It further alleges that the District has violated plaintiffs' rights under the United States Constitution. *fn2"

 A trial of issues raised by the class action claims in this suit was held between September 29, 1975, and October 9, 1975. *fn3" Two nationally recognized experts in the field of specific learning disabilities testified at length. Dr. Nettie Bartel, Chairperson of the Department of Special Education, Temple University, was called by the plaintiffs. Dr. Donald D. Hammill, Assistant Professor in Mental Retardation, University of Texas, testified in the Commonwealth's case. Plaintiffs' other witnesses were: Dr. Milton Brutton, Clinical Director of Vanguard School, Paoli, Pennsylvania; Mrs. Willetta Silva-Shadday, Itinerant Teacher, Cornman Diagnostic Center, School District of Philadelphia; Mr. Richard McCarthy, Administrative Officer, Division of Special Education, Pennsylvania Department of Education; and Mrs. Delores L., mother of the representative plaintiff. Mr. David A. Horowitz, Associate Superintendent of the Philadelphia Public School Systems, and Mr. Harry Gerlach, Deputy Commissioner of Basic Education in Pennsylvania, testified for the District and for the Commonwealth respectively.

 Upon consideration of the testimony, the exhibits introduced into evidence, and the proposed findings submitted by counsel, the court makes the following

 FINDINGS OF FACT

 Class Characteristics

 1. This action is brought on behalf of the class of all children attending public schools within the City of Philadelphia who have "specific learning disabilities" and who are deprived of an adequate and appropriate education for their specialized needs.

 2. For the purposes of this litigation the parties accept the definition of children with specific learning disabilities adopted by the Pennsylvania Department of Education. This definition states:

 
"Learning disabled pupils are those children who have a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. Such disorders include such conditions as perceptual handicaps, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. Such term does not include children who have learning problems which are primarily the result of visual, hearing, or motor handicaps, or mental retardation, or emotional disturbance, or of environmental disadvantage."

 3. Though of normal or potentially normal intelligence, children with learning disabilities may not interpret what they hear or see in the same way as children of equal intellectual ability. They may develop language disorders -- the inability to understand, assimilate, interpret or retain the speech of others in the same way as normal children. They may have difficulty engaging in abstract thinking or expressing their ideas in a form comprehensible to others.

 4. A learning disability is a gap in a person's psychological processes. For example, a learning disabled child may look normal and use language in a way that is typical for his age, yet any of the methods used in the regular classroom to teach him how to read may get nowhere.

 5. Professionals infer brain injury in children who are learning disabled, because 70 to 80 percent of such children exhibit "soft signs" (e.g. behavioral indicators) of mild neurological impairment. Also, 80 to 100 percent of children who are learning disabled will have abnormal electroencephalograms. Brain injury is a medical term which emphasizes the cause of what is also known as a learning disability. One widely believed theory is that learning disabilities are caused by damage to the central nervous system before or during the birth process or by disease during the child's early life. However, although all children with learning disabilities are inferred to be brain injured, some brain injured children may not be learning disabled, but may have cerebral palsy or may be mentally retarded. Educators use the term, learning disabled, because the focus of their effort is to identify and remediate the learning problem caused by the presumed neurological impairment.

 6. According to the consensus of experts in the field, the nationwide incidence of learning disabled children is 1% to 3%. The correct figure could be as high was 7%.

 7. In a city such as Philadelphia the incidence of learning disabilities in the public school population usually exceeds the national average. Two reasons for this phenomenon are: (a) In a city with a large number of poor people one expects to find lower quality of prenatal and natal care, and a higher incidence of birth injuries and early diseases which go unidentified and/or untreated. (b) Philadelphia has a large parochial school system which tends to enroll and hold on to normal students and rely on the public schools to educate exceptional children.

 8. The best estimate of the incidence of learning disabled students in the Philadelphia School District is 3%. With an enrollment of 263,000 pupils, the District has approximately 7,890 LD's.

 9. As children with learning disabilities enter the upper elementary and early junior high years, some of the behavioral signs of their learning disabilities will "soften" or disappear because of the effect of developmental factors based on age. For example, a child will tend to develop more control over his impulses. As a statistical matter, the percentage of learning disabled children identified in a school population varies inversely with age. In the case of any particular student, however, his learning disability is not likely to disappear with age absent some form of intervention.

 10. As they grow older, children with learning disabilities who are not helped are likely to continue falling behind in their school work. (The academic performance of the named plaintiff Frederick L., is typical of this phenomenon.) A hard working student can regress. Failure can cause frustration, loss of self esteem, and antagonism towards adults.

 11. In order to call attention to the seriousness of the problem of learning disabilities among adolescents, Dr. Hammill has suggested to the profession that it refer to learning disabled ...


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