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STUDENT ROE v. PENNSYLVANIA

June 27, 1986

STUDENT ROE, a Minor, by her Next Friend and Natural Guardian, M. Roe
v.
COMMONWEALTH OF PENNSYLVANIA, et al.



The opinion of the court was delivered by: LORD

 Plaintiff, a student in the Bensalem Township School District, raises various statutory and constitutional challenges to her exclusion from gifted education. Suit is brought in propria persona by her next friend and guardian, who apparently is an attorney licensed in Pennsylvania and admitted to practice before this court. The Commonwealth of Pennsylvania defendants have moved for judgment on the pleadings. Because I conclude that, taking as true all of plaintiff's allegations, and drawing therefrom all inferences favorable to her, plaintiff can prove no set of facts in support of her claim which would entitle her to relief, see, e.g., Bryson v. Brand Insulations, Inc., 621 F.2d 556, 559 (3d Cir. 1980), defendants' motion will be granted.

 Count I of plaintiff's complaint alleges a plethora of violations of the Education of the Handicapped Act ("EHA"). 20 U.S.C. §§ 1400-1454. Plaintiff's argument as to why the EHA applies to her exclusion from gifted education is, at best, extraordinarily convoluted, difficult to explain and tangled into a veritable legal rat's nest. I shall do my best to unravel the snarl. Plaintiff's argument goes like this:

 
1. She is not handicapped.
 
2. The EHA should not apply to her. (It may seem as though I should stop here, but plaintiff continues.)
 
3. Pennsylvania extends to gifted students the same due process guarantees that it extends to handicapped students. See 22 Pa. Admin. Code §§ 13.21, 13.31-.33.
 
4. Plaintiff then makes the quantum leap to conclude that all aspects of the EHA must be applied to a determination of her entitlement to gifted education. In support of this contention, plaintiff relies on a well-known legal maxim: "You must take the bitter with the sweet."

 Having thus unraveled plaintiff's argument, I conclude that it is entirely without merit. Plaintiff concedes that, by its terms, the EHA applies only to handicapped children. See 20 U.S.C. §§ 1400(c), 1401(a)(1). Therefore, plaintiff's "bitter with the sweet" argument notwithstanding, the extent to which Pennsylvania chooses to apply the same procedural protections to its determinations regarding the placement of students in gifted and handicapped educational programs is, within constitutional limitations, see infra slip op. pp. 6-10, solely a matter of state law. *fn1" Accordingly, I will grant defendants' motion for judgment on the pleadings as to Count I of plaintiff's complaint.

 Count II of plaintiff's complaint alleges that defendants denied her procedural due process. Plaintiff's allegations as to this claim are twofold. First, she alleges that gifted education is the preferred educational placement, and therefore that defendants violated her rights by placing her in regular education classes without prior notice and an opportunity to be heard. Second, she alleges that when she initiated due process proceedings to determine her eligibility for gifted education, the procedures employed by defendants were constitutionally defective.

 A threshold issue in any due process inquiry is whether the plaintiff was deprived of a constitutionally protected interest. E.g., Board of Regents v. Roth, 408 U.S. 564, 569-71, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). Plaintiff argues that because gifted education is the preferred educational assignment, she has both a property and a liberty interest in being placed in gifted education. I disagree.

 Property interests are not created by the Constitution, but by independent sources, such as state law. E.g., id. at 577. As to placement in gifted education, Pennsylvania law provides as follows:

 
Persons shall be assigned to a program for the gifted when they have an IQ of 130 or higher. A limited number of persons with IQ scores lower than 130 may be admitted to gifted programs when other educational criteria in the profile of the person strongly indicate gifted ability.

 22 Pa. Admin. Code § 341.1 (emphasis added).

 Assuming, without deciding, that this regulation creates a property interest in gifted education for students with IQs of 130 or higher, it does not confer such an interest upon plaintiff, as she does not allege that her IQ falls within the specified range. *fn2" To have a property interest in a benefit, a person must have "more than an abstract need or desire for it. . . . He must . . . have a legitimate claim of entitlement to it." Roth, 408 U.S. at 577. Neither the provision in the regulation that select students with IQs under 130 may be admitted to gifted programs, nor, if such is the case, the fact that gifted education is the preferred educational assignment, creates in plaintiff a legitimate claim of entitlement to it. See, e.g., id. at 578 (discussing factors which would create a legitimate claim of entitlement); see also Lisa H. v. State Board of Education, 67 Pa. Commw. 350, 354-58, 447 A.2d 669, 672-74 (1982) (although all children in Pennsylvania have a property interest in participating in ...


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