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SHARRI LEVY v. COMMONWEALTH PENNSYLVANIA (03/23/79)

decided: March 23, 1979.

SHARRI LEVY, A MINOR, BY HER PARENTS AND NEXT FRIENDS, RICHARD AND JEANNETTE LEVY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF EDUCATION, RESPONDENT



Appeal from the Order of the Secretary of Education in case of In Re: Special Educational Placement of Sharri L., No. 3-77 S.C.O. No. 6.

COUNSEL

Steven S. Goldberg, with him Janet F. Stotland, for appellant.

John A. Alzamora, Assistant Attorney General, for appellee.

Judges Rogers, DiSalle and Craig, sitting as a panel of three. Opinion by Judge DiSalle.

Author: Disalle

[ 41 Pa. Commw. Page 357]

This case is before us because of the inability of the local school district and intermediate unit, on the one hand, and the Department of Education, on the other, to agree on the precise nature of Sharri L.'s mental disability. Their disagreement has placed this child (now 16 years of age) between the Scylla of mental retardation and the Charybdis of brain injury. The situation stems from the fact that those who are responsible for the operation of our educational system apparently feel that before they can solve this problem, they must first find a label for Sharri.

Sharri had been attending the Parkway Day School, a private school for brain injured children, since September, 1969. In 1976, Sharri's parents requested the local school authorities to find an alternate placement for their daughter as she was approaching secondary school age and the Parkway Day School was relocating to other facilities a considerable distance away from its former location. The Lower Merion School District (School District), with the Montgomery County Intermediate Unit (Intermediate Unit) concurring, determined that Sharri was "brain injured" and recommended her for placement in the Vanguard School (Vanguard). Vanguard is approved by the Department of Education for the special education of brain injured children.*fn1 Sharri's mother approved

[ 41 Pa. Commw. Page 358]

    this educational assignment on August 25, 1976, and Sharri was enrolled and began attending Vanguard on September 8, 1976.

The School District thereafter forwarded a completed application, together with its favorable recommendation, to the Department of Education (Department) requesting approval of the placement. This application was received by the Division of Special Education (Division) of the Department on September 22, 1976. Following a review of the application, the Division rendered a decision on September 24, 1976, disapproving the recommended placement. Thereafter, on October 8, 1976, the Secretary of Education (Secretary) issued an Order to Show Cause why the placement of Sharri should not be disapproved. Hearings were held on January 13 and January 17, 1977. Subsequently, in an Opinion and Order dated May 20, 1977, the Secretary determined that Sharri was "mentally retarded" and therefore not a

[ 41 Pa. Commw. Page 359]

    proper candidate for placement in Vanguard. It is from this decision that the instant petition for review was filed.

In reviewing the Secretary's adjudication, we are required to affirm the decision unless a violation of constitutional rights has occurred, an error of law has been committed, or the findings of fact are not supported by substantial evidence. 2 Pa. C.S. ยง 704. Applying this standard to the instant case, our inquiry is limited to whether the ...


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