Appeal from the Order of the Secretary of Education in case of Bermudian Springs School District et al. v. Commonwealth of Pennsylvania, Department of Education, No. 838 C.D. 1979.
John D. Killian, Killian & Gephart, for petitioners.
Ernest N. Helling, Assistant Counsel, for respondent.
Judges Rogers, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 82 Pa. Commw. Page 567]
This case raises the issue of the allocation under Pennsylvania law of responsibility for educating handicapped children. The case arose when, in October of 1978, the Board of Directors of the Lincoln Intermediate Unit*fn1 (hereinafter, "the LIU") adopted changes to its special education plan. The changes provided for suspension of operation by the LIU of classes for educable mentally retarded students (hereinafter, "EMR classes") in four constituent school districts, including the instant petitioners, Bermudian Springs, Conewago Valley, and Littlestown Area School Districts. The LIU's decision placed responsibility for operation of all EMR classes on each individual school district, with the LIU providing support services and supervision for such classes.*fn2 The plan
[ 82 Pa. Commw. Page 568]
amendment was approved by the Department of Education (Department) on December 5, 1978.
The four dissenting districts thereafter sought reconsideration by the Department of its decision to approve the LIU's plan modification. Reconsideration was denied, and the districts were informed that approval of the amendments would stand. In May of 1979, one of the four districts acceded to the plan changes. The other three filed a petition for review in this court, wherein they challenged the failure of the Department to hold a hearing on whether the LIU's plan amendment should be approved. This Court, by order dated June 29, 1979, remanded the case with directions that the petitioners be afforded a hearing. The remand was without prejudice to the petitioners renewing their petitions for review if they failed to achieve their desired relief through the administrative process.
Hearings were held on June 9, 10 and 30, 1980 before a hearing officer designated by the Department. The hearing officer submitted a report to the Secretary of Education concluding that approval of the
[ 82 Pa. Commw. Page 569]
LIU's plan amendment was appropriate. After considering exceptions filed by the petitioners to the report, the Secretary issued an adjudication and order adopting the findings and conclusions of the hearing officer. Whereupon, petitioners filed their second petition for review in this court. The petitioners' position is that the LIU was not authorized to modify its special education plan to terminate EMR classes in their districts without their consent. Furthermore, they contend that the Secretary's order is invalid because the Department failed to show that the petitioners can effectively and efficiently provide for the EMR classes.
We find no support for the petitioners' contention that the LIU had an obligation to continue to operate EMR classes in their districts unless each district consented to the cessation of such classes. On the contrary, the authorities establish overwhelmingly that the primary responsibility for identifying all exceptional children and developing appropriate educational programs*fn3 to meet their needs is placed on ...