The opinion of the court was delivered by: DUMBAULD
Ordinarily an appellate court is bound to affirm a judgment on appeal when it is free of error. Binney v. C.&O. Canal Co., 33 U.S. 201, 8 Peters 213, 219, 8 L. Ed. 917 (1834). But if the law has changed pending the appeal the appellate court must apply the law in force at the time of its decision. The Peggy, 1 Cir. 103, 109-110, 5 U.S. 103, 2 L. Ed. 49 (1801).
After this Court's decision on December 28, 1981, in Grkman v. Scanlon, 528 F. Supp. 1032 (W.D. Pa. 1981), the Supreme Court decided Hendrick Hudson District Board of Education v. Rowley, 458 U.S. 176, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982), and the Third Circuit Court of Appeals on January 21, 1983, in a mimeographed opinion and judgment remanded the cause for further proceedings in accordance with the Supreme Court decision. 707 F.2d 1391.
The Court of Appeals referred to the following passage in the Supreme Court's opinion (102 S. Ct. at 3049, 73 L. Ed. 2d at 710) as embodying the prescribed standard:
When the language of the Act and its legislative history are considered together, the requirements imposed by Congress become tolerably clear. Insofar as a State is required to provide a handicapped child with a "free appropriate public education," we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State's educational standards, must approximate the grade levels used in the State's regular education, and must comport with the child's IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. (Italics supplied)
Basically two features are essential: (1) specially designed personalized instruction, deviating from the normal routine program offered to pupils generally, and geared to the particular needs of a handicapped child, and (2) related supportive services needed to enable the handicapped child to benefit from the special program provided.
The Court based these standards upon language derived from the statute (102 S. Ct. at 3041, 73 L. Ed. 2d at 700):
. . . the Act does expressly define "free appropriate public education":
"The term 'free appropriate public education' means special education and related services which (A) have been provided at public expense, under public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under Section 1414(a)(5) of this title." § 1401 (18) (emphasis added).
"Special education," as referred to in this definition, means "specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions." § 1401(16). "Related services" are defined as "transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a handicapped child to benefit from special education." § 1401(17).
Further illumination of the statutory standard as expounded by the Supreme Court is afforded by other passages of Justice Rehnquist's opinion. The same basic features are again emphasized in another description of the prescribed requirements (102 S. Ct. at 3041-3042, 73 L. Ed. 2d at 701):
According to the definitions contained in the Act, a "free appropriate public education" consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child "to benefit" from the instruction. Almost as a checklist for adequacy under the Act, the definition also requires that such instruction and services be provided at public expense and under public supervision, meet the State's educational standards, approximate the grade levels used in the State's regular education, and comport with the child's IEP. Thus, if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a "free appropriate public education" as defined by the Act. (italics supplied)
The Court made clear that "to require . . . the furnishing of every special service necessary to maximize each handicapped child's potential is, we think, further than Congress intended to go." (102 S. Ct. at 3047, 73 Ed. 2d at 707). See also ibid. 102 S. Ct. at 3041, at 701. [The lower court in Rowley had espoused that standard.]
It is sufficient, according to Justice Rehnquist, if there is some specialized instruction from which the child receives some benefit (102 S. Ct. at ...