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December 28, 1981

Lindy Sue GRKMAN, et al., Plaintiffs,
Robert G. SCANLON, et al., Defendants

The opinion of the court was delivered by: DUMBAULD

In the case at bar the Court is again called upon unwillingly *fn1" to function as a super-superintendent of schools. In that capacity, as Justice Robert H. Jackson noted, "we act in these matters not by authority of our competence but by force of our commissions." Board of Education v. Barnette, 319 U.S. 624, 640, 63 S. Ct. 1178, 1186, 87 L. Ed. 1628 (1943). The question for decision is where an eight-year old girl shall receive an "appropriate" education as mandated by federal law.

Congress provided, by the Act of April 13, 1970, 84 Stat. 178, 20 U.S.C. § 1413(a)(2), federal subsidy for States declaring their acceptance of "the goal of providing a free appropriate public education for all handicapped children." A "public" education includes one furnished in a private school but paid for from public funds if handicapped children "are placed in or referred to such (private) schools" by the State or local educational agency as a means of carrying out the federal requirements, and if the schools meet State standards and children have "all the rights" they would have in public schools. 20 U.S.C. § 1413(a)(4).

 The State must establish "procedures to assure that, to the maximum extent appropriate, handicapped children, including children in public or private institutions or other care facilities, are educated with children who are not handicapped, and that special classes, separate schooling or other removal of handicapped children from the regular educational environment occurs only when the nature or the severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. § 1412(5)(B). *fn2"

 The application submitted to the State by the local educational agency or intermediate educational unit *fn3" must provide assurances that they "will establish, or revise, whichever is appropriate, an individualized educational program *fn4" for each handicapped child at the beginning of each school year and will then review and, if appropriate revise its provisions periodically but not less than annually." 20 U.S.C. § 1414(a)(5).

 Procedural safeguards for the handicapped child and its parents are provided in 20 U.S.C. § 1415. These include written prior notice and an opportunity to complain whenever the local board or intermediate unit proposes to initiate or change the evaluation or placement of the child or the provision of a free appropriate education to the child. 20 U.S.C. § 1415(b)(1)(C) and (E).

 When a complaint is made "an impartial due process hearing" shall be conducted (20 U.S.C. § 1415(b)(2)), resulting immediately or ultimately in an "independent decision" upon completion of an impartial review. 20 U.S.C. § 1415(c) and (e)(2). Such decision is final, except for judicial review in State or federal court. In any such civil action "the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(e)(2).

 To determine what constitutes appropriate relief, the Court must in effect determine what constitutes an appropriate education. *fn5" That this provision of the statute authorizes an action de novo, rather than the conventional review of an administrative agency where the order is to be sustained if supported by substantial evidence on the record as a whole, *fn6" was decided by the Third Circuit Court of Appeals in Tokarcik *fn7" , supra note 2. The Court there noted that "a judicial suit under the Education Act is practically indistinguishable from the usual civil action in which issues are tried de novo." Perhaps another analogy would be to the review of a rate order of the Interstate Commerce Commission where a constitutional issue of confiscation is raised and additional evidence is sometimes taken in the reviewing court in addition to the administrative record. Mfrs. Ry. Co. v. U. S., 246 U.S. 457, 488-90, 38 S. Ct. 383, 391-92, 62 L. Ed. 831 (1918).

 With the legal framework in mind, we turn to the facts disclosed by the record in the case at bar.

 Lindy Sue Grkman was born March 12, 1973. When 11/2 years old, she was placed in the De Paul Institute, a private school which specializes in training the deaf, and has remained there ever since. For the school year 1978-79 her placement was duly documented under the laws and regulations, and was approved by the school district, the AIU, and Harrisburg. The AIU had no facilities for deaf children under school age. For the year 1979-80 she became of school age. The AIU at this time did not approve and forward to Harrisburg the placement papers (form DEBE 448 A) taking the position that it did operate an adequate facility for deaf children of school age. In due course the Secretary of Education directed placement of Lindy in an AIU class, after a "due process hearing." *fn8" The report of the hearing officer Dr. Thomas D. Marro was dated May 14, 1980. It was approved and confirmed by Secretary of Education Robert G. Scanlon on April 8, 1981. Suit was filed in this Court on July 1, 1981 and hearings held on August 13, 1981 and November 30, 1981. The administrative record was received in evidence *fn9" at the second hearing, and additional testimony was taken at the first hearing, and in the form of late-filed exhibits after the second hearing.

 Inasmuch as the order attacked in the case at bar relates to the school year 1979-80, and a new educational evaluation and placement is to be made annually, the Court made a valiant effort at the first hearing to impel the parties, if they could not settle the case, at least to confer with a view to completing timely re-evaluation before the start of the new school year (1981-82). Nothing came of these efforts, however, and at the second hearing the Court ruled that it would decide the case on the basis of the order under attack even though this amounted to "disposition of a dead horse."

 The Court concluded and ruled that under 20 U.S.C. § 1415(e)(3) the existing placement must continue until the Court disposed of the case. But the Court doubts whether its pronouncement that the statutory provision mandates the continuance of such placement amounts to a preliminary injunction, as a matter of technical analysis.

 Counsel for AIU ingeniously argued that the Secretary's determination constituted the status quo to be continued pendente lite. But that determination is the very wrong complained of which the instant proceeding seeks to remedy, and until its validity vel non is adjudicated by this Court in the case at bar it can not be given effect as the status quo ante litem motam. It is the last uncontested status preceding the controversy which constitutes the status quo to be continued by virtue of the statutory mandate. And in the case at bar that status is obviously the placement at De Paul (which originally took place, when Lindy was under school age, with the acquiescence and approval of all school authorities concerned).

 By reason of the continuance of that placement until disposition of the "dead horse" it became proper to dispose of the case as expeditiously as possible, and the Court ruled that no further evidence was admissible unless it was pertinent to the 1979-80 determination attacked in the instant proceedings (without prejudice, of course, to subsequent litigation when and if new placement orders, as required annually, were made and contested by Lindy's parents). Plaintiff's ...

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