20. Children who are mentally retarded or who have an emotional disturbance (not caused by a learning disability) may also be learning disabled.
21. A learning disabled student whose problem is not being remediated is likely to have great difficulty trying to read, and may be unable to do such a simple mathematical calculation as making change.
Identification of Specific Learning Disabilities
22. Three methods for identifying learning disabled pupils are: screening by test results; teacher referrals; parent referrals.
23. A test-screening program written by Dr. Nettie Bartel would be an effective means for identifying all learning disabled pupils in the district. In this program, all pupils performing in the lowest percentiles on certain standardized achievement tests would be identified initially. Other information about this group would be evaluated, so that pupils whose poor achievement was caused by low intelligence, sight or hearing handicaps, or lack of motivation, would be screened out. The remaining children and adolescents would be examined by psychologists to determine whether they were learning disabled. (Stipulation between plaintiffs and District).
24. No test-screening program comparable to the Bartel Proposal is in effect for the District, or is planned for implementation.
25. The District primarily relies on the teacher referral method for identifying its learning disabled students. According to Dr. Hammill, teacher referral generally is an adequate method for identifying students with severe and moderate learning disabilities. Drs. Brutton and Bartel testified that teacher referral was not an adequate method for identifying LD's in the District.
26. Drs. Hammill, Bartel, and Brutton made different factual assumptions when they rendered their opinions about teacher referrals. On close examination, the divergence of opinion is not based on substantially different theoretical viewpoints. The experts agree that the average classroom teacher can identify a child that is having trouble in school. But she cannot, without special training, diagnosis the cause of the problem. Dr. Hammill testified that teachers refer to diagnosticians, children who exhibit the behavioral characteristic of severe and moderate learning disabilities. However, Dr. Hammill also said he was not familiar with practices in Philadelphia or with the extent of services available for learning disabled children in the District.
27. The plaintiffs controverted Dr. Hammill's statement about teacher practices by adducing testimony from persons with direct knowledge of the District -- Dr. Bartel, Dr. Brutton, Mr. Horowitz, and Mrs. Silva-Shadday. Based on this testimony we find that teachers frequently do not refer students who may be learning disabled because:
(a) Teachers in the District are most likely to use psychological referrals for children whose behavior makes it difficult or impossible for the teacher to instruct the rest of the class. Students who are not functioning academically but also are not aggressive, are frequently promoted through the grades without a psychological referral.
(b) If the teacher does not believe there is a suitable program in which to place a child, she often will not make a psychological referral.
28. It is disputed whether parent referrals through parent-initiated due process hearings are an effective method for identifying LD's. There is not enough experience with the due process procedures to make definitive findings on this question. To utilize the procedure the parent has to (a) recognize her child is not functioning academically, (b) recognize that the cause of the child's underachievement may be something that requires special education instruction, (c) know that due process hearings are available, (d) believe that through a due process hearing her child -- though not a severe behavior problem -- may receive special help, (e) properly carry out the procedures for initiating the hearing, which includes obtaining an expert psychiatric opinion.
School District Services
29. The District provides a variety of remedial services which reach some of its learning disabled students. These services fall into two categories. First, services designated as special education are available only to children who have been identified as exceptional. Second, general remedial programs, not designated special education, are furnished to children who have not been labeled learning disabled. An unknown number of unidentified learning disabled pupils are included in general remediation programs. This raises two questions: (a) How many unidentified learning disabled pupils are in a general remediation program? (b) How valuable are general remediation services for overcoming specific learning disabilities? The evidence on these questions is inconclusive.
30. Table I, infra at 968-969, summarizes the services in the first program category, that is, in programs specifically designated for the learning disabled. The District has conceded that no special education support services which are specifically directed at the remediation of learning disabilities exist in the public schools for students above grade 7 and that only a small number of students in grades 5 and 6 receive special education support services directed at learning disabilities.
31. Programs which fall into the second category -- general remedial services reaching some unidentified learning disabled students -- are summarized in Table II, infra at 969-970.
32. The primary eligibility criterion for placement in one of the programs listed in Table II is "underachievement." The District considers approximately 40% of its enrolled pupils to be underachieving. Given 263,000 pupils, the students for Table II programs are drawn from a pool of 105,200 pupils. It is estimated that there are 7,890 learning disabled pupils in the District. These figures imply that only a small proportion of unidentified learning disabled children are receiving general remedial services. The defendants have not produced evidence that dispels this inference.
33. Table III, infra at 970, represents the level of services proposed by the District for 1975-76 in its Needs Budget, submitted to the Department of Education in June, 1975. In the words of Dr. Horowitz, the program levels were a "computation of what we really needed and what we would really deliver to the school children of Philadelphia." (R. 439).
34. The 1975-76 District Needs Budget Plan would, if implemented, provide LD's with appropriate education. (Stipulation). It has not been implemented.
35. It follows from Finding No. 34 that the first alternative plan would provide appropriate education for LD's no later than in its third year. This plan is not being implemented. Although District programs have expanded in 1975-1976, the degree of expansion is far from what would reasonably be expected in the first year of a three year phasing-in of the primary plan.
36. The preamble to the second alternative plan states:
"However, if this kind of coordinated L.D. program is not seen as possible within the next few years, some of the children needing this program could be provided for by . . .." (emphasis supplied) Defendant Exhibit 2.
Hence, this plan does not even purport to be one that would provide appropriate education for all LD's. Part II of this plan has been implemented. Parts I and III have not been fully implemented. There is no evidence above Part IV.
State Financing Procedures
37. The School District of Philadelphia is responsible for the Philadelphia Intermediate Unit. The intermediate units are charged with providing the special education services mandated by state law. Pursuant to 24 P.S. § 13-1372(5), if the Superintendent of Public Instruction (Superintendent)
determines that an Intermediate Unit is failing to fulfill that duty, the Department of Public Instruction (Department)
may assume control of the unit. No such takeover has been attempted or suggested with respect to Philadelphia.
38. Prior to the financing of the 1973-1974 special education programs, the Department approved budget requests submitted by districts or intermediate units to the extent that they were legal expenditures, i.e. they were earmarked for purposes which fit into the statutory categories for which state moneys could be spent. A result of this procedure was that the amount of money approved by the Department sometimes exceeded the then current legislative appropriations. It became necessary to ask the Legislature for supplemental appropriations to eliminate the deficiencies.
39. With the advent of the 1973-1974 programs, the Department eliminated deficiency allocations. Since that time, the budget allocation has been based on a flat percentage increase over the prior year appropriations. (This assumes that the costs have been appropriately identified and that the budget request equals or exceeds the figure arrived at under the fixed state formula).
40. Within the Division of Special Education of the Pennsylvania Department of Public Instruction, the official who reviews the educational plan submitted by the district or intermediate unit pursuant to 24 P.S. § 1372(2), is not the person who reviews the budget submitted in conjunction with the plan and who calculates the allocation for that budget (using the method described in the preceding finding of fact).
41. The State Board of Education passed regulations effective September 1, 1975, mandating that there be appropriate programs of education and training for all handicapped children including the brain injured learning disabled.
42. Pursuant to 24 P.S. § 1372(2), the Intermediate Unit of the School District of Philadelphia submitted to the Department a 1975-1976 plan which provided for the proper education and training of all public school students in Philadelphia with specific learning disabilities. Accompanying the plan was the "Special Education Needs Budget." The budget was based on an assessment of needs determined by principals, by specialists in the Division of Special Education, and by District psychologists. It was based upon the best estimates available to the School District on the number of handicapped children which should and could be served.
43. The needs budget requested an expansion in the number of itinerant teachers to 64. It requested an increase of 215 classes and 204 resource rooms for learning disabled students.
44. The Department reviewed the plan and budget in accordance with the bifurcated procedure described in Finding of Fact No. 40. The Department approved the plan. However, it allocated funds in an amount which did not take into account either the plan submitted pursuant to 24 P.S. § 1372(2) or the budget necessary to implement the plan. The allocation did not allow expansion of existing special education programs because the increase in funding was not as great as the increase in the cost of providing services at the same level as the previous year.
45. The District has taken the position that:
"The Commonwealth did not provide, and made no attempt to provide, funds adequate to implement its own regulations requiring appropriate education for children with specific learning disabilities." Defendant's Proposed Finding of Fact No. 8.