Appeal from the Order of the Department of Education in the case of Re: Education Law Center, Inc. (ELC's) Request for Information, dated March 5, 1984.
Leonard Rieser, with him, Dennis Luttenauer, for petitioners.
Kathleen F. McGrath, Deputy Attorney General, with her, Allen C. Warshaw, Senior Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for respondent.
Judges MacPhail, Barry and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Judge Williams, Jr., did not participate in the decision in this case.
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This case is before us pursuant to a petition for review of a refusal by the Department of Education (Department) to grant the Pennsylvania Association for Children and Adults with Learning Disabilities, Janet Stotland and Leonard Rieser (Petitioners), access to certain documents pertaining to special education programs for "exceptional children."*fn1
Because there were no official proceedings below and the entire record consists of correspondence in the form of letters between the parties, we set forth as facts only those matters upon which the briefs of the parties are essentially in agreement.
The Commonwealth, through both statutes and regulations, has specially provided for the education
[ 91 Pa. Commw. Page 533]
of "exceptional children" by intermediate units and school districts. Section 1372(2) of the Public School Code of 1949 (Public School Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 13-1372(2), requires that the Department ensure that intermediate units and school districts adopt and implement plans for the proper education and training of all exceptional children within the Commonwealth. These plans must be submitted to the Department for approval. Id. Special classes must then be provided and maintained in accordance with an approved plan. Section 1372(3) of the Public School Code, 24 P.S. § 1372(3).
The Department has promulgated implementing regulations which reiterate the obligation of local school districts and intermediate units to prepare plans which provide for the education of exceptional children. 22 Pa. Code § 13.6. All special education programs, whether operated by an intermediate unit or a school district,*fn2 are to be incorporated into an intermediate unit plan which shall be submitted to the Department for its approval. Id. ; 22 Pa. Code § 341.35(a). The Department shall approve those plans the format and contents of which satisfy the criteria established by the Department. 22 Pa. Code § 341.35(a). Those plans which do not meet these criteria will be disapproved. 22 Pa. Code § 341.35(c). Prior to disapproval, however, personnel from the Division of Special Education shall discuss the plan and suggest modifications with the appropriate intermediate unit or school district. Id. If a plan is ultimately disapproved,
[ 91 Pa. Commw. Page 534]
the IU shall be entitled to an administrative hearing. 22 Pa. Code § 341.35(d). Department approval of a special education plan is a condition precedent to the right to receive funding from the Commonwealth for the costs of providing special education. Sections 1373 and 2509 of the Public School Code, 24 P.S. §§ 13-1373 and 25-2509; 22 Pa. Code § 341.71.
In addition to the criteria established by the Department for the approval of special education plans, the Department's regulations further provide that if the percentage of persons from any racial or ethnic group assigned to special education programs is significantly disproportionate to the distribution of that group in the school district or intermediate unit, the school district or intermediate unit must, to maintain the assignments, adduce evidence that the assignments are justified and that the disproportion is necessary to promote a compelling education interest of the persons affected. 22 Pa. Code § 13.2(c).
The Commonwealth's policy of ensuring all handicapped children the right to a free appropriate education, as well as its plan requiring school districts and intermediate units to submit their special education plans to the Department for approval enables these agencies to qualify for federal assistance under the Education for All Handicapped Children Act, 20 U.S.C. §§ 1411-1420. See 20 U.S.C. § 1414. Moreover, the Commonwealth's goal and procedure whereby school districts and intermediate units may not discriminate against members of minority groups in the ...