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decided: May 16, 1984.


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.

Author: Williams

[ 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 the local school districts. That is the import of the Public School Code, which at Section 1372(4)*fn4 reads:

Special Classes or Schools Established and Maintained by School Districts. Except as herein otherwise provided, it shall be the duty of the board of school directors of every school district to provide and maintain, or to jointly provide and maintain with neighboring districts, special classes or schools in accordance with the approved plan. . . . If the approved

[ 82 Pa. Commw. Page 570]

    plan indicates that it is not feasible to form a special class in any district or to provide such education for such child in the public schools of the district, the board of school directors of the district shall secure such proper education and training outside the public schools of the district or in special institutions, or by providing for teaching the child in his home. . . .

In contrast, Section 1372(4) of the Code*fn5 prescribes that the powers and duties of the intermediate unit are ". . . to provide, maintain, administer, supervise and operate such additional classes or schools as are necessary or to otherwise provide for the proper education and training for all exceptional children who are not enrolled in classes or schools maintained and operated by school districts or who are not otherwise provided for." (Emphasis added.)

The regulations of the Department are even more explicit in placing the primary responsibility for development and operation of special education programs on the local school districts. 22 Pa. Code ยง 13.11(b) identifies the responsibilities of the school districts and the intermediate units as follows:

The primary responsibility for providing an appropriate program of education or training, or both, shall be that of a school district. Where such school district board cannot provide an appropriate program effectively and efficiently, it shall use the services of the intermediate unit. The services of approved private schools, state schools, and out-of-state institutions may be used, as hereinafter provided, where intermediate unit boards and school district boards agree that they cannot provide services

[ 82 Pa. Commw. Page 571]

    effectively and efficiently for handicapped schoolaged persons.*fn6

Finally, this court has repeatedly cited the primacy of the school districts' responsibility for special education programs. See e.g. XXX [Editor's Note: name excised to comply with VersusLaw's privacy policy.] v. Department of Education, 48 Pa. Commonwealth Ct. 155, 160, 408 A.2d 1202, 1205 (1979) ("It is the responsibility of the school district first and the intermediate unit next to provide programs of education or training. . . ."); Savka v. Department of Education, 44 Pa. Commonwealth Ct. 62, 403 A.2d 142 (1979).

In light of the foregoing authorities, there is no question that the LIU was not bound to continue EMR classes absent a showing that the petitioners themselves could not efficiently and effectively provide an appropriate educational program for EMR children in their districts. We find no basis for holding that by operating the classes in petitioners' districts for several years, the LIU was estopped from discontinuing their operation. Nor do we detect any factual or legal error in the Secretary's conclusion that the amendment procedure utilized by the LIU was valid.

Finally, we find no error in the Secretary's conclusion that the petitioners failed to show that they could not operate EMR classes efficiently or effectively. The petitioners do not contend that they satisfied this burden. Rather, they assert that the burden was upon

[ 82 Pa. Commw. Page 572]

    the Department to establish that the petitioners could efficiently and effectively operate EMR classes. Such an allocation of the burden would be inconsistent with the school districts bearing primary responsibility for providing special education programs. Neither the statute, regulations nor logic suggest that school districts may relieve themselves of their statutory duty by merely withholding their consent to plan modifications and requiring other agents in the public education system to prove the districts' capacity to perform their educational responsibilities. In light of the petitioner's failure to present substantial evidence -- indeed any evidence -- that they could not effectively or efficiently operate EMR classes, we must affirm the Secretary's conclusion that the record does not justify imposing responsibility for operation of the classes on the intermediate unit.

Accordingly, we affirm the order of the Secretary.


And Now, this 16th day of May, 1984, the Order of the Secretary of the Pennsylvania Department of Education is affirmed.



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