ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civ. No. 74-52).
Adams, Rosenn and Weis, Circuit Judges.
In recent years, increasing attention has been focused upon the educational needs of learning disabled children.*fn1 The lawsuit which has given rise to the present appeal is reflective of this trend. Filed in 1974, the complaint alleges that, in violation of Pennsylvania statutes and the United States Constitution, the School District of Philadelphia (the District) does not provide learning disabled students in its system with a minimally appropriate education.
After certifying the suit as a class action, the trial court declined to abstain, determined that the District had failed to meet its obligations under state law and decided that in order for the District to fulfill its responsibilities it would have to identify all learning disabled students in its educational system.
Since Judge Newcomer's opinion on the merits*fn2 lucidly sets forth the intricate backdrop for this litigation, we find it necessary to provide only a capsule review of the most salient facts.
Knowledge of the etiology and nature of specific learning disabilities is still in an embryonic state.*fn3 Thus, it is not surprising that there are many differences of opinion among experts in the field, and that whatever consensus does exist is on a relatively high plane of generality.
Authorities appear to agree that learning disabilities constitute disorders in basic psychological processes that inhibit victims from understanding, assimilating, interpreting or retaining language and other concepts in a normal manner. Though learning disabled students often have the basic capability for normal intelligence, their disabilities ordinarily prevent them from benefiting from regular instruction and from achieving their true potential. As a result, learning disabled students frequently experience substantial frustration, and such reaction is manifested in emotional disturbances and socially disruptive conduct.*fn4
While the exact causes of learning disabilities have not, as of yet, been pinpointed, medical testing has led experts to believe that brain injury, either at birth or during early childhood, is a major factor. Also, there is data indicating that the nationwide incidence of learning disability is between one and three per cent of the population.*fn5
It appears that experts agree that with the provision of special remedial services, learning disabled students can have a beneficial educational experience. The programs that are necessary to achieve this end depend on the severity of a pupil's disability. Those with the most serious disorders will need separate classes or other forms of special attention. On the other hand, students with less drastic problems can benefit from instruction in regular classrooms so long as supplemental supportive services are available. This latter approach is generally referred to as "mainstreaming."
Instruments for identifying learning disabled students are still in a developmental stage;*fn6 at this time the basic tools for the task are the administration of standardized achievement tests and subsequent psychological examinations. However, there is little uniformity in the process of selecting those pupils who possibly are learning disabled and should be analyzed by psychologists. Under some programs, tests are administered to an entire school population, and those in the lowest percentiles are then examined by psychologists who ascertain whether they suffer from learning disabilities. Other methods rely upon teacher or parent referrals of particular pupils to school psychologists for ultimate identification of learning disabled students.
It has been estimated that three per cent of the students in the District - approximately 8000 children - suffer from specific learning disabilities.*fn7 Nonetheless, the record discloses that only 1300 learning disabled students in the District have been identified. The District does not test-screen all pupils in order to identify those who are learning disabled. Rather, it places primary reliance upon teacher referrals to psychologists. Judge Newcomer found, however, that, for a number of reasons, the referral method is not an adequate way for identifying pupils suffering from learning disabilities.*fn8
At the present time, the District furnishes several varieties of remedial education for learning disabled students. First, certain special educational services are available to those learning disabled students who, pursuant to Pennsylvania statutes, have been identified as "exceptional."*fn9 Such services include full and part-time separate instruction for learning disabled students.*fn10 None of these types of special education, the Board has admitted, are provided to pupils in the seventh grade and above. And only relatively few students in the fifth and sixth grades receive these services.*fn11
The District also offers a number of general remedial services to "under-achievers,"*fn12 but such services are not specifically directed towards learning disabled students. Indeed, a student does not have to be identified as learning disabled or "exceptional" in order to be eligible for these programs. Moreover, since 40 per cent of the students in the system - about 105,000 children - are considered to be underachievers, it is far from clear whether the unidentified learning disabled students who are not in special education programs are receiving general remedial services.
Some efforts have been made by the District to increase the scope of available remedial programs. Then, in 1975, the District submitted a plan to the Pennsylvania Department of Education that would have provided special education for all learning disabled students in the system.*fn13 A "Special Education Needs Budget" detailing the appropriations required to implement the expanded services that the plan suggested was presented simultaneously. While the Pennsylvania Department of Education approved the special education plan, the Department did not provide sufficient funds to support the proposal.*fn14 The plan was thus not implemented by the District, and the services available to the learning disabled have not been expanded.
The problem of learning disabled children has been addressed by the Commonwealth through both statutes and regulations. Pennsylvania's Public School Code makes special provision for the education of "exceptional children."*fn15 "Exceptional children" are those "children of school age who deviate from the average in physical, mental, emotional or social ...