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NANCY M v. SCANLON

June 30, 1987

Nancy M
v.
Scanlon, et al.


Ditter, J.


The opinion of the court was delivered by: DITTER

DITTER, J.

 The question presented in this case is the constitutionality of a Pennsylvania law that allows a school district to differentiate between non-resident, dependent foster children and other non-resident children.

 I.

 Plaintiffs brought this class action to challenge the validity of section 13-1305(b), *fn1" of the Pennsylvania Public School Code of 1949, 24 Pa. Cons. Stat. Ann. §§ 1-101 et seq. (Purdon 1962 & Supp. 1987), on the basis that it violates their rights under state and federal constitutional and statutory law. *fn2" Section 1305(b) permits a Pennsylvania school district to refuse to accommodate non-resident, dependent children who live in foster homes within the district. *fn3"

 Dependent children under Pennsylvania's Juvenile Act, 42 Pa. Cons. Stat. Ann. §§ 6301 et seq. (Purdon 1982 & Supp. 1987), are minors who lack the parental care or control necessary for their physical, mental, emotional, or moral well being. See 42 Pa. Cons. Stat. Ann. § 6302. These children are removed from their parental homes by court order and placed by state licensed agencies either with foster parents, who receive compensation for the support of the child, or in institutions. Foster parents, as that term is used in this memorandum, include only those who receive compensation for the support of children who have been adjudicated dependent. Placement agencies prefer foster homes over institutions for the emotional well-being of the child. Children who are placed in a school district other than where their parents reside are non-resident children. See infra note 7 and accompanying text.

 The parties have completed discovery and have filed cross-motions for summary judgment. Additionally, the Pennsylvania School Boards Association has filed an amicus curiae brief in opposition to the plaintiffs' motion. I will grant plaintiffs' motion on the basis that section 1305(b) is unconstitutional on its face and as applied to the plaintiff class and subclass because it violates the equal protection clause of the fifth amendment, applicable to the states through the fourteenth amendment. Consequently, I will not consider the other grounds raised by plaintiffs to challenge this statute.

 II.

 In 1971, plaintiff Nancy M., a handicapped child, was adjudicated dependent, was removed from her natural mother and home in Philadelphia, and eventually, in 1980, was placed with a qualified foster mother residing in Norristown. Since 1976, Nancy M. had been attending a private school for handicapped students. However, in July of 1981 her age exceeded the school's limit and she requested that the Norristown Area School District provide an educational program for her during the 1981-82 school year. The district denied her request, pursuant to section 1305(b), on the basis that it could not place her in an appropriate special education program within the district and refused to accommodate her throughout the subsequent appellate proceedings until July of 1982.

 Similarly, plaintiff Bruce A. is a handicapped child who, at birth, was adjudicated dependent under the Juvenile Act and, at the age of two, was placed in a foster home in Norristown. Bruce A. attended public school in Norristown from 1972 until 1980 when he was temporarily removed from the foster home because of problems arising from his disability. Prior to returning to his foster home in 1981, Bruce A. requested that the district provide an education for him. The district refused, pursuant to section 1305(b), on the basis that it could not place him in an appropriate special education program within the district and refused to accommodate him throughout the subsequent appellate proceedings until April of 1983.

 These individuals represent the following plaintiff class:

 
All school-aged residents of Pennsylvania who are now or in the future adjudicated dependent under the Juvenile Act and who are subject to the provisions of Pa. Stat. Ann. tit. 24, § 1305(b) (Purdon 1970)

 and subclass:

 
All school-aged handicapped residents of Pennsylvania who are now or in the future adjudicated dependent under the Juvenile Act and who are subject to the provisions of Pa. Stat. Ann. tit. 24, § 1305(b)(Purdon 1970)

 see Court Order (December 29, 1982) (emphasis added), which have brought suit against the Pennsylvania Secretary of Education, the Pennsylvania Commissioner of Basic Education, the Norristown Area School District, and the Norristown ...


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