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MARVIN GOLDSMITH v. LOWER MORELAND SCHOOL DISTRICT (06/29/83)

decided: June 29, 1983.

MARVIN GOLDSMITH, PARENT AND NATURAL GUARDIAN FOR MICHAEL GOLDSMITH, A MINOR ETC., APPELLANTS
v.
LOWER MORELAND SCHOOL DISTRICT, ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Marvin Goldsmith, parent and natural guardian for Michael Goldsmith, a minor and Marvin Goldsmith, in his own right v. Lower Moreland School District, et al., No. 82-1193.

COUNSEL

Jay A. Hurvitz, for appellants.

Philip Salkin, with him Richard H. Greenberg, Pearlstine, Salkin, Hardiman and Robinson, for appellees.

Judges Blatt, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 75 Pa. Commw. Page 289]

Marvin Goldsmith (Appellant), parent and natural guardian of Michael Goldsmith, appeals from an order of the Court of Common Pleas of Montgomery County which denied Appellant's motion for a preliminary injunction.

Michael Goldsmith was originally admitted into the kindergarten class at the Pine Road Elementary School in the Lower Moreland Township School District (School District) in September of 1981 when he was five years old. During August of 1981, Michael had

[ 75 Pa. Commw. Page 290]

    been given preliminary tests by School District personnel and was given additional psychological testing after his admission. As a result of his disruptive behavior and the indications of the preliminary testing, a meeting was held in October of 1981 at which Michael's parents were asked to permit neurological and psychological testing of Michael at the Montgomery County Intermediate Unit. The parents refused and arranged private testing for Michael. Reports of the independent evaluation arranged by the parents were submitted to the School District.

In January of 1982, the principal of the Pine Road School informed Michael's parents, by letter, that the School District was unable to provide an appropriate educational program for Michael and that, pending placement with the Montgomery County Intermediate Unit, he would be provided homebound instruction. Homebound instruction was refused by the parents and on January 26, 1982 the School District refused to admit Michael to the Kindergarten Spring semester at the Pine Road School.

Appellants filed a complaint and motion for injunctive and other appropriate relief in the Court of Common Pleas of Montgomery County on January 28, 1982, alleging a violation of Michael's right to due process in the School District's failure to hold a formal and complete hearing prior to the refusal to admit Michael to the Pine Road School in January. The court of common pleas held that a child below the age of six had no constitutional right to a kindergarten education and Michael was, therefore, not deprived of any liberty or property interest without due process of law.

Michael was admitted to the Fall 1982 semester and the District pursued the required procedures under the Public School Code of 1949*fn1 (Code) to ...


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