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SHAFFER v. BOARD OF SCH. DIRS. OF THE ALBERT GALLA

September 16, 1983

ELIZABETH P. SHAFFER, WILLIAM W. SHAFFER, DANIEL EVERETT BRANGARD, AUDRA VIRGINIA ENGLE, GARY N. COTTRELL, SUSAN RAE MOORE, minors by their guardians BETTY J. SHAFFER, WANDA R. BANGARD, PAULINE V. LAYHEW, DOLORES COTTRELL and DIANA J. MOORE, and in their own right, Plaintiffs,
v.
BOARD OF SCHOOL DIRECTORS OF THE ALBERT GALLATIN AREA SCHOOL DISTRICT, DORSEY CLEGG, THEODORE YANOWSKI, SARAH BARTUCH, ELROY ENLOW, CHARLES KING, JOHN A. KUPAS, JR., GEORGE E. LILLEY, THEODORE C. SHAFFER, FRANK STERLE, individually and in their capacity as members of the Board of School Directors of the Albert Gallatin Area School District, Fayette County, Pa., and MICHAEL E. Tippett, individually and in his capacity as Superintendent of the Albert Gallatin Area School District, Defendants



The opinion of the court was delivered by: SIMMONS

A. BACKGROUND

 On August 7, 1980, several concerned parents with kindergarten-age school children filed this class action complaint assailing a decision by the Board of Directors of the Albert Gallatin Area School District (hereinafter School District) to provide free transportation to kindergarten-age school children on only a one-way basis, either to or from school, but not both to and from school. Although Pennsylvania law does not mandate that a School District establish a kindergarten, the School District provides kindergarten classes for all eligible children residing within the district.

 Parents on public assistance who could not otherwise afford transportation for their kindergarten-age children filed this class action suit because the School District's decision effectively precluded their children from attending kindergarten classes. The indigent parents' complaint, as amended, alleged that the School District's action violated the due process and equal protection clauses of the United States Constitution; in addition, it raised several state law questions.

 This Court certified a class consisting of all kindergarten-age children and their parents, past, present, and future, who resided within the Albert Gallatin Area School District and who could not afford transportation for their school-age children either to or from school. Without reaching the plaintiffs' state law claims, this Court ruled that the School District's action was unlawful under the federal constitution and entered a permanent injunction against the School District ordering it to provide free transportation to all eligible children residing in the school district, commencing with the 1981-82 school year and continuing as long as kindergarten is offered by the School District.

 Applying a lesser standard of constitutional review on appeal, the Court of Appeals ruled that the School District's decision violated neither the due process nor the equal protection clauses of the fourteenth amendment. Because this Court did not rule on the plaintiffs' state law claims the Court of Appeals remanded the state law questions for this Court's discretionary determination. This Court will exercise its discretionary jurisdiction to hear the plaintiffs' state law claims.

 B. FINDINGS OF FACT

 This Court having heard arguments for and against the merits of a permanent injunction and having considered in favor of the plaintiffs the briefs and arguments of both parties and being duly advised makes the following finding of facts:

 1. This matter was remanded to this Court by the Court of Appeals for a discretionary determination on whether to retain jurisdiction over the remaining state law claims.

 2. Failure to retain jurisdiction will result in inconvenience, undue delay, additional expense, loss of judicial economy of effort and will otherwise unfairly prejudice the plaintiffs.

 3. Under Pennsylvania law the defendant School District has established kindergarten for all eligible school-age children in the school district.

 4. Plaintiffs represent the class of all past, present, and future kindergarten-age children and the parents of said children who would otherwise be eligible under state law for free transportation and who cannot provide the necessary transportation for their children to and from kindergarten, pursuant to Federal Rules of Civil Procedure 23(a), (b)(1) and (b)(2), as stipulated to by the parties; the defendants have failed to act on grounds generally applicable to this class.

 5. Diana Moore, who is a member of the class of plaintiffs, has an income of $760 per month for a family of 5, which is less than or equals the family's expenses for the necessities of life, and has no income remaining to provide for the transportation of her son to kindergarten.

 6. Sandra Verbus, who is a member of the class of plaintiffs, has an income of $250 per month for a family of 8, which is less than or equals the family's expenses for the necessities of life, and has no income remaining to provide for the transportation of her son and daughter to kindergarten.

 7. Diana Moore and Sandra Verbus, and their families live approximately six miles from the school building where their children would attend kindergarten, and their children would not be able to walk to the school throughout the school year without endangering their health, safety and welfare.

 8. As a result of the School District's refusal to provide round-trip transportation for kindergarten students, the named and unnamed plaintiffs have been and shall be effectively precluded from attending kindergarten because these indigent parents cannot provide an alternative means of transportation.

 9. Children who have had kindergarten need less special education, participate in fewer remedial classes, continue in school longer, perform better on achievement tests and generally progress more rapidly than those who have not had kindergarten.

 10. The kindergarten experience involves the use of many and varied teaching aids including games, puzzles, blocks, clay, crayons, records, and cassettes which named and unnamed plaintiffs cannot financially afford to provide for their children at home.

 11. Children who are able to attend kindergarten have a definite advantage over those members of the plaintiff class who, because of financial inability, are unable to attend kindergarten.

 C. Conclusions of Law

 1. The Court concludes that retention of jurisdiction over this matter is necessary to avert undue prejudice to the plaintiffs and for reasons of judicial economy.

 2. Transportation for kindergarten children, when provided by the School District, must be provided to each child both to and from their respective school.

 3. The Court concludes that it was the intent of the state legislature that "transportation" for public school students, if provided at all, should be provided on a round-trip basis. "Transportation for public school children" is not in fact "transportation," as was intended by the General Assembly of Pennsylvania, unless and until "two-way" or "round-trip" transportation is afforded to all children.

 4. In adopting section 1361 of the Public School Code of 1949, the Pennsylvania state legislature contemplated that only two-way or round-trip transportation would be provided for public school ...


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