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LISA H. AND NICHOLE H. v. STATE BOARD EDUCATION ET AL. (07/08/82)

decided: July 8, 1982.

LISA H. AND NICHOLE H., MINORS, BY THEIR MOTHER AND NATURAL GUARDIAN, DORIS H., PETITIONERS
v.
THE STATE BOARD OF EDUCATION ET AL., RESPONDENTS



Appeal from the Order of the Court of Common Pleas of Bucks County in the case of Lisa Applebaum and Nicole Applebaum, minors, by Doris Applebaum, their mother and natural guardian v. Bensalem Township School District, Robert H. Hays, Individually and in his capacity as District Superintendent of the Bensalem Township School District, Thomas P. Waters, Individually and in his capacity as Director of Elementary Education, Joseph S. Stroman, Individually and in his capacity as Early Childhood Education Supervisor, William Snyder, Individually and in his capacity as Director of Secondary Education, Bensalem Township School Board, David G. Costello, Individually and in his capacity as President of the Bensalem Township School Board, Robert A. Carr, Individually and in his capacities as Accountant for the Bensalem Township School District and Treasurer of the Bensalem Township School Board, Bucks County Intermediate Unit, George Rabb, Individually and in his capacity as Executive Director of the Bucks County Intermediate Unit, Commonwealth of Pennsylvania, Department of Education, Robert G. Scanlon, Individually and in his capacity as Secretary of the Commonwealth of Pennsylvania, Department of Education, The State Board of Education of the Commonwealth, John Hershey, Individually and in his capacity as Executive Director of the State Board of Education of the Commonwealth, No. 80-8650-10-5, dated September 16, 1980.

COUNSEL

Doris Applebaum, for petitioners.

Paul L. Stevens, of counsel: Curtin and Heefner, for respondent, Bucks County Schools, Intermediate Unit No. 22.

D. Donald Jamieson, with him Jeffrey Cooper, Mesirov, Gelman, Jaffe, Cramer & Jamieson, for respondents, Bensalem Township School District et al.

Ernest N. Helling, Assistant Attorney General, with him Michael A. Davis, Assistant Attorney General, Chief Counsel, for respondents, State Board of Education et al.

John D. Killian, Killian & Gephart, for Amicus Curiae, Pennsylvania Association for Gifted Education.

President Judge Crumlish and Judges Blatt, Williams, Jr., Craig and MacPhail. Opinion by Judge Blatt. Judges Mencer and Palladino did not participate in the decision in this case.

Author: Blatt

[ 67 Pa. Commw. Page 352]

The plaintiffs in this case are two elementary school students in the Bensalem Township, Bucks County School District (School District) who were evaluated but not selected to participate in the special education program for "gifted and talented school-aged

[ 67 Pa. Commw. Page 353]

    persons" provided by the defendants.*fn1 The plaintiffs assert that Section 13.1(ii) of the State Board of Education Regulations (Regulations), 22 Pa. Code § 13.1(ii) (Code), which defines "gifted and talented school-aged persons"*fn2 and all sections of the Code relating to it*fn3 are unconstitutional under both the United States and the Pennsylvania Constitutions because the program thereby provided infringes upon the petitioners' fundamental property right to a free public education appropriate to their needs. They argue that the program excludes them from available educational instruction without just cause, provides them with an education inferior to that afforded students in the special education program and results in the expenditure of less tax dollars on their education than on the education of students categorized as gifted and talented. By way of relief, they seek (1) a declaratory judgment that the provisions of the Code which relate to special education programs for "gifted and talented school-aged persons" be declared unconstitutional as a denial of equal educational opportunity and as an unauthorized delegation of judicial and legislative power; (2) that the defendants be permanently enjoined from applying the above sections; (3) that the Court protect the plaintiffs' right to equal education opportunity and (4) that the plaintiffs be awarded

[ 67 Pa. Commw. Page 354]

$60,000 in damages. The defendants filed numerous preliminary objections, several of which were argued and resolved by this Court at an earlier date;*fn4 the three remaining objections which were subsequently argued before the Court en banc are presently before us and are as follows: (1) by way of demurrer, that the plaintiffs have failed to state a cause of action inasmuch as they (a) have failed to allege any action on the part of the defendants which adversely affected the plaintiffs in any manner and (b) have failed to aver that they satisfy the criteria set forth at Section 341.1(iv) of the Regulations, 22 Pa. Code § 341.1(iv), i.e., that they are gifted and talented school-aged persons or that they were ever denied the right to be evaluated or considered for admission to the School District's special education program for children so designated; (2) that the plaintiffs lack the capacity to sue, inasmuch as their amended complaint fails to allege facts which, if proven, would provide them with standing to seek relief in that they allege no immediate, substantial or direct interest in the subject matter; and (3) that this Court lacks equity jurisdiction over the matter inasmuch as the plaintiffs have an adequate remedy at law and have failed to exhaust their administrative remedies.

The plaintiffs ground their plea for equitable relief upon an asserted constitutionally guaranteed fundamental property right to a free public education appropriate to their needs which they contend has ...


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