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June 21, 1979


The opinion of the court was delivered by: NEWCOMER



 In January 1978, five handicapped children and their parents commenced three class action lawsuits. Plaintiffs allege that defendants violated and continue to violate plaintiff children's constitutional and statutory rights by denying them a free publicly funded education in excess of 180 days, the provision of which they seek to compel in these suits. Since the actions began, one plaintiff, Patricia Battle, has turned twenty-one and, therefore, no longer seeks nor is eligible for future educational placement; however, she, as well as plaintiff Natalie Bernard, seeks damages for defendants' alleged deprivation of her rights.

 The trial of this matter demonstrates the important and difficult role the judiciary must play in the expanding field of educational law. In the 1970's, through judicial action *fn1" and federal legislation, *fn2" the rights of handicapped children have been enlarged and guaranteed and they and their parents have been given the power to enforce those rights in several forums, including federal court. *fn3" But when they come to court, as they do here, they ask it to rule on issues of law and to resolve factual debates between educators in a field with which the courts, to this point, have had little familiarity. Thus, besides determining questions of statutory interpretation of first impression, the Court here is called on to decide what effect interruptions in programming have on handicapped children, an issue on which educators disagree. Rendering these determinations are difficult, but they are crucial if the rights of handicapped children are to be protected.

 For purposes of trial on their common injunctive and declaratory issues, the three lawsuits were consolidated, and trial on those issues was held in March 1979.


 A. Parties

 The named plaintiff children are: John Garrett (Gary) Armstrong, Richard H., Mark Anderson, Patricia Sue Battle and Natalie Bernard. The children's parents are also named as plaintiffs.

 Plaintiff Gary Armstrong is eight years old and is classified for educational purposes as severely and profoundly impaired. He resides with his parents, plaintiffs John and Patricia Armstrong, in the Philadelphia School District. Presently, Gary attends a public Philadelphia School District facility as a day student, in a class for the severely and profoundly impaired.

 Plaintiff Mark Anderson also is handicapped by a severe emotional disturbance. Mark, who is nineteen, is a twelve month residential student at the Devereux Foundation. Plaintiff Eloise Anderson, Mark's mother, resides in the Philadelphia School District.

 When suit was instituted, plaintiff Patricia Sue Battle was twenty years old, attending as a residential student, The Woods Schools. She is severely emotionally disturbed and brain injured, and her parents, June and Donald Battle, reside in the Abington School District.

 Plaintiff Natalie Bernard is seventeen years old. Severely mentally retarded, as well as orthopedically handicapped, she is a residential student at Elwyn Institute. With her parents, plaintiffs Clara and Robert A. Bernard, she resides within the Marple Newtown School District.

 By Order dated February 21, 1979, the action captioned Armstrong v. Kline, Civil Action No. 78-172, was certified as a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure on behalf of a class composed of:

"All handicapped school aged persons in the Commonwealth of Pennsylvania who require or who may require a program of special education and related services in excess of 180 days per year and the parents or guardians of such persons."

 As the other two related cases were consolidated with the Armstrong action, no additional certifications were required and the consolidated actions are now proceeding on behalf of the above-described class.

 In all three actions, plaintiffs instituted suit against the then Secretary of Education, Caryl M. Kline, in her official capacity. In addition, Gary Armstrong, Richard H., Mark Anderson and their parents sued the School District of Philadelphia, the Superintendent of the School District, Michael Marcase, and members of the Philadelphia Board of Education. Besides the Secretary of Education, Patricia Sue Battle brought her action against the Abington School District, Dr. Carl B. Hoffman who is the Superintendent of the Abington School District, The Woods Schools and Dr. Harold S. Barbour, President of The Woods Schools. Similarly, Natalie Bernard also named the following individuals and entities as defendants: the Marple Newtown School District; Glenn M. Sanner, Superintendent of the Marple Newtown School District; Elwyn Institute; and, Dr. Gerald R. Clark, President of Elwyn Institute.

 Defendant school districts and the Department of Education (DOE), of which defendant Kline was the chief official, are recipients of federal financial assistance, including, but not limited to, funds received under the Education for All Handicapped Children's Act. As the state educational agency, the DOE is responsible for insuring that free and appropriate special educational services are provided to all handicapped school-aged persons in Pennsylvania. Defendant Philadelphia, Abington and Marple Newtown School Districts are local educational agencies, and defendant The Woods Schools and Elwyn Institute are approved private schools that may provide services to handicapped children and be eligible for reimbursement from public funds for the provision of those services.

 B. Defendants' Procedures, Practices and Policies

 The Department of Education, which has paramount responsibility within the Commonwealth for the design and financing of publicly funded education for handicapped and non-handicapped children, requires local school districts and their agencies to develop annually an individualized education program (IEP) for each handicapped child. The IEP maps out the child's educational program and placement, detailing the degree to which the child will be in special and regular settings, his or her current functioning level, short- and long-term educational goals, and the methods by which they are to be achieved. Before the IEP is formulated, the child is evaluated by educational and medical personnel appropriate to that child's handicap. A multidisciplinary team composed of persons familiar with the child then reviews these evaluations and all other relevant data and determines the type of educational program that it believes appropriate in light of the nature and severity of the child's handicapping condition. The child's parents or guardians review the IEP with the educators and are permitted to comment on it.

 If parents disagree with the school district or the DOE about any aspect of their child's educational program, placement or classification, a "due process procedure" may be initiated by any of the parties. A hearing examiner, who is not employed by the school or intermediate unit in which the case originates, will be appointed by the DOE and he or she will conduct a hearing.

 It is the policy and practice of DOE to refuse to provide or to fund the provision of education for any child, handicapped or non-handicapped, for a period in excess of 180 calendar days per year. It has instructed hearing officers conducting due process hearings that they are without authority to, and may not, order a special education program which is in excess of 180 days per year. Similarly, defendants Philadelphia, Abington and Marple Newtown School Districts will not provide or fund the provision of education for any of the children within their respective districts for a period in excess of 180 days.

 C. Plaintiffs' Attempt to Challenge the 180 Day Rule Prior to Instituting Suit

 In February, 1977, the Philadelphia School District placed plaintiff Gary Armstrong in the Torresdale School, which operates its educational program for approximately nine and one-half months per year. Following his placement at Torresdale, Gary's parents requested a special education due process hearing concerning both his program and placement. At the hearing held in March 1977, the issue of Gary's need for a continuous educational program in excess of 180 days was raised. Although she did not explicitly order the Philadelphia School District to provide Gary with a program of summer education, the hearing examiner decided that "as much programming as possible should be done to prevent regression." (P-5 at p. 25). "Expert opinion supported by professionals and parents . . . that a 12 month program for Gary was important to prevent regression during the summer months especially since degenerative processes are a characteristic of his syndrome," provided the basis for her decision. (Id. at p. 28) Believing that the hearing examiner had awarded Gary summer programming, his parents met with the Assistant Director of Special Education of the Philadelphia School District in May 1977. Nevertheless, he informed them that the School District would not fund a program of summer education for Gary, regardless of his needs, as it was not empowered to do so by the DOE. The meeting's participants drafted a letter to the Special Education Assistant for the DOE asking for confirmation of its position; in her reply, the Special Education Assistant confirmed what the School District believed, which was that a program of public or publicly funded special education was not available for the summer.

 Although the mothers of Richard H. and Mark Anderson protested the DOE's and the Philadelphia School District's failure to provide their children with year-round programming, neither requested a due process hearing on the issue; nevertheless, their counsel was informed that regardless of the circumstances, neither the DOE nor the School District would provide or fund an educational program for the boys in excess of 180 days.

 The parents of Natalie Bernard and Patricia Battle did not challenge defendants' application of the 180 day rule to their children's educational program.

 If plaintiffs had tried to challenge defendants' 180 day rule through the Commonwealth's due process procedures, their efforts would have been futile because of defendants' instructions to hearing examiners that such a program would not be available and that the hearing examiners were without authority to order it.

 Turning to the federal authorities, counsel for Armstrong, H., and Anderson plaintiffs wrote to the federal Office for Civil Rights of the Department of Health, Education and Welfare requesting an interpretive ruling on whether federal statutory law, i. e., the Education for All Handicapped Children Act and/or Section 504 of the Rehabilitation Act, can ever require defendants to provide a program of continuous education to a handicapped child. Prior to trial, the agency did not respond.

 On January 25, 1979, counsel for the Armstrong, H. and Anderson plaintiffs contacted the federal Bureau of Education for the Handicapped and requested a similar ruling from that agency. Again, no response was received before trial.

 D. Characteristics of the Class and of Named Plaintiffs Relevant To Their Educational Needs

 The children that plaintiffs allege are members of the class, as defined above, suffer from various handicapping conditions, but generally can be classified in two separate, occasionally overlapping, categories: severely and profoundly impaired by mental retardation with other handicaps; and severely emotionally disturbed.

 1. The Severely and Profoundly Impaired by Mental Retardation

 Although it is often difficult to categorize the degree of mental retardation from which an individual suffers, there are certain recognized labels for levels of mental retardation, which professionals employ to help discuss both the characteristics of an individual's handicap and his or her needs. These levels are:

 (a) Mildly retarded. The mildly retarded have an I.Q. range from 50 to 75. At the completion of their formal education, it is likely that these individuals will be able to read at the second or third grade level, do simple mathematics, and function in society. They do not look different from non-handicapped persons and often are unidentifiable once formal education has been terminated. They are likely to assume unskilled or semi-skilled positions in the workforce.

 (b) Moderately retarded. With an I.Q. range from 30 to 50 and frequently suffering from physical impairments, the moderately retarded are more likely than the mildly retarded to look "different." Moderately retarded children can be expected to learn simple arithmetic, have a sight vocabulary and perform simple reading skills.

 (c) Severely retarded. The severely retarded have an I.Q. below 30, are likely to be physically handicapped and have difficulty moving. They may enter the school system without toilet training and lack many basic self-help skills, such as dressing and feeding. Their language deficit is usually significant. Academically, one expects their achievements to be very limited, although they may be able to count, tell time and identify a few words on sight at the completion of their education.

 (d) The profoundly retarded. Being the lowest functioning group, the profoundly retarded are unlikely to be ambulatory or have any vocabulary. A profoundly retarded child's means of communication are minimal, perhaps limited to pointing or gesturing.

 As the severity of retardation increases, so does the likelihood that the child will have multiple handicaps; in fact, very few children who are severely or profoundly retarded do not have other impairments. For this reason, children who are severely or profoundly retarded are often referred to as "severely and profoundly impaired" (SPI).

 SPI children usually learn at a much slower rate than non-handicapped children and have difficulty remembering what they learn. The lower functioning the child is, the quicker he or she will forget information and lose skills that are not practiced. Generalizing the skills that are learned also presents problems for SPI children; they often do not recognize that they should use learned skills in an environment different than the one in which they were originally taught.

 Gary Armstrong is also labeled as an SPI child but, unlike many other SPI children, he was not mentally retarded at birth. He exhibited all the signs of a normal child until he was nearly two years old. After that, his rate of learning decreased, he became hyperactive and his parents could not toilet train him. Recognizing that Gary had a problem, his parents took him to doctors who diagnosed his condition as San Filippo, Type A Syndrome, a genetic disease. Persons suffering from San Filippo disease lack an enzyme essential to the metabolization of mucopolysaccharides. Without the enzyme to break them down, the mucopolysaccharides accumulate in the connective tissue of the body and cause progressive physical and mental deterioration. The symptoms of the disease, which begin to appear between one and one-half and three years of age, include coarsening of the features, progressive mental retardation, joint contractures, hyperactivity and seizures. Almost all San Filippo children begin to act in a violent and aggressive manner as the disease progresses. Their mobility decreases and they are confined to a wheelchair during the latter part of life. Persons with the disease have a life expectancy of less than twenty years. Because of their immobility and progressively worsening physical, emotional and mental states, which do not allow their parents to control them, they are usually institutionalized during the last stage of the illness. Death generally results from a secondary infection, such as pneumonia, which is easier to contract when institutionalized and immobile. The disease knows of no cure.

 San Filippo Syndrome severely affects intellectual development so that by the time they reach school age, children with this disease are in the severe to profound range of mental retardation, with limited receptive and expressive language skills. As the mucopolysaccharides build up and the disease progresses, the San Filippo child becomes more retarded, losing previously acquired skills.

 Gary Armstrong is presently severely to profoundly mentally retarded, hyperactive, physically disabled by progressive joint contractures, somewhat deaf and frequently the victim of psychomotor seizures.

 2. The Severely Emotionally Disturbed

 As with SPI children, it is often difficult to distinguish and identify the specific handicap from which a severely emotionally disturbed (SED) child suffers. Classifications utilized by professionals in the field frequently blend one with another. But, to aid in understanding the types of disabilities which these children endure and the characteristics of these disabilities, it is useful to employ the following categories in ...

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