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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,
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


 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 "students," rather than to learning disabled "children."

 12. There is little controversy concerning the proper education and training of students with serious learning disabilities. As the problems become less severe, the amount of controversy increases proportionately. There is general agreement among professionals about what programs are appropriate for educating the 3% of the school population considered to be seriously learning disabled.

 13. As a part of planning remedial educational services, a professional judgment has to be made about the state of the art of instructional services which benefit children in different age groups. When the art is undeveloped, it is an accepted educational practice to begin an experimental program with younger children, and to expand it one grade upwards per year, following the path of the first group of children (as it grows up). A disadvantage of this approach is that pupils who are in the older age groups at the beginning years of the program never receive its benefits. Ordinarily, this situation is not acceptable from a professional viewpoint (aside from administrative and financial limitations) if there are viable methods of remedial instruction for the older students.

 14. Curriculum materials and the know-how are available to implement programs for students of all ages with learning disabilities. Although the profession has more experience with elementary school age pupils, Drs. Bartel and Brutton referred to programs for secondary students operating in Minneapolis, Houston, Pittsburgh, and other cities. Dr. Hammill stated that secondary programs can now be rapidly developed, and he expects that they will be appearing in large numbers. The District has stipulated with the plaintiffs that it is feasible to have a program for adolescents with learning disabilities.

 15. Emotionally disturbed persons have personal or social adjustment problems which prevent them from functioning to their capacity. A learning disabled child's frustrations in the classroom can cause him to become emotionally disturbed. Psychologists can distinguish between children whose learning problems are the result of emotional disturbance from children whose emotional problems are the result of a learning disability. Historically, classes for the emotionally disturbed children have emphasized psychiatric assistance. Recently, there has been substantial concern about the educational lags of the emotionally disturbed child. Therefore, it cannot be assumed that placement of a learning disabled/emotionally disturbed child in a class for the emotionally disturbed is either appropriate or inappropriate. However, such placement is probably less appropriate than special instruction directed at the pupil's learning problems.

 16. Mental retardation is a pervasive cognitive deficit. Even with the benefit of early and proper instruction, mentally retarded children have a limited prospect for academic progress.

 17. The District provides adequate and appropriate education for all mentally retarded children. (Stipulation).

 18. Children and adolescents with learning disabilities can usually become literate when provided with special education.

 19. The cost of educating a learning disabled child is equivalent to the cost of educating other exceptional children.

  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) *fn4" determines that an Intermediate Unit is failing to fulfill that duty, the Department of Public Instruction (Department) *fn5" 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.

 The District did not substitute other funds for the short-fall in the Department's allocation.

  46. Although the local intermediate unit is given the authority to determine budget allocations among various exceptional children, depending upon the intermediate unit's priorities, the Commonwealth has required that priority be given to services for the mentally retarded as a result of the P.A.R.C. Consent Decree. The Commonwealth has not permitted services for the mentally retarded to be cut back or decreased in any manner. 47. Ferman B. Moody, Director of the Bureau of Special and Compensatory Education in the Department of Education, the Special Education State Advisory Committee, and the staff of the Division of Special Education, stated in an internal memorandum dated August 6, 1974, that: (a) state laws which provide for the education and training of all exceptional children have not been enforced; (b) exceptional children other than the mentally retarded are discriminated against by the Commonwealth in the planning and programming of special education; (c) the Commonwealth of Pennsylvania is lagging behind other states in providing education for all its exceptional children; (d) all children with learning disabilities should be provided with an appropriate education. n6 TABLE I SPECIAL EDUCATION SERVICES FOR LEARNING DISABLED STUDENTS 1973-1976 PROGRAM STUDENTS RECEIVING SERVICES Elementary Secondary 1. Self-contained n1 Classrooms 1973-1974 157 0 1974-1975 n2 357 0 1975-1976 n3 616 0 2. Resource Rooms n4 1973-1974 NE * NE 1974-1975 n5 160 0 1975-1976 n6 NE 0 3. Private Schools n7 1973-1974 1974-1975 700 700 1975-1976 4. Itinerant Teachers n8 NE n9 NE n9


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