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decided: March 22, 1988.


Appeal from the Order entered January 31, 1986 in the Commonwealth Court of Pennsylvania at No. 1345 C.D. 1984, which affirmed the Order entered April 11, 1984 by the Secretary of Education as Special Education Opinion No. 229.


John Philip Diefenderfer, Newtown, for appellant.

Michael I. Levin, Harrisburg, for amicus -- Pennsylvania School Bds. Assoc.

Caryl Oberman, Philadelphia, for amicus -- Pennsylvania Assoc. for Gifted Educ.

John A. Alzamora, Mary Beth O'Hara Osborne, Harrisburg, for Department of Educ.

Thomas E. Coval, Willow Grove, David M. Donaldson, Deputy Atty. Gen., Andrew S. Gordon, Chief, Deputy Atty. Gen., for appellees.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Stout, J., did not participate in the consideration or decision of this matter.

Author: Flaherty

[ 517 Pa. Page 542]


The issue in this case is whether the Public School Code and regulations promulgated by the Department of Education require school districts to provide an individualized program of education for mentally gifted students, or whether school districts may lawfully elect to provide only generalized education programs for such students.

In 1981 Centennial School District (the school district) devised an individualized education program (IEP) for an exceptional student, Terry Auspitz, which recommended that Terry be included in the district's program for mentally gifted students. This program (an "enrichment" program) added certain materials to the regular curriculum, but did not attempt to provide accelerated instruction in particular academic areas. Terry's parents agreed that their son should participate in the enrichment program, but they asserted that the enrichment program was insufficient to address Terry's need for accelerated instruction in reading and mathematics. Because the parents and the school district could not agree on the IEP, the parents requested a due process hearing as provided for in 22 Pa. Code § 13.32.

[ 517 Pa. Page 543]

The hearing officer concluded that Terry was a mentally gifted student whose academic abilities were advanced beyond his chronological age and that Terry required placement in an age-appropriate setting because his social and emotional development were not advanced beyond that typical of his chronological age. Further, he determined that Terry should be given specialized instruction in mathematics and reading in addition to inclusion in the "enrichment" program provided by the district. The hearing officer wrote:

Within the Commonwealth of Pennsylvania, mentally gifted students are considered to be educationally exceptional and therefore entitled to an individually prescribed educational program appropriate to their unique educational needs. The fact that most school districts meet this obligation by providing a part-time program of educational enrichment does not mean that such programming is appropriate for all mentally gifted students. In order to provide an appropriate program for an individual student, that student's IEP must be developed based on his current educational levels and needs regardless of administrative considerations. Further, unlike other educationally exceptional students, mentally gifted students may receive their education within the regular and/or special education programs of the school; this determination is to be based on the student's individual needs and IEP as well.

In the case of Terry, his current educational program is neither appropriate nor adequate in terms of his intellectual potential and levels of academic achievement reflected by considerable evaluation. His inconsistent classroom performance and distracting behaviors can be viewed as indications of boredom and cries for attention from a child whose intellectual development has far exceeded his emotional social [sic] development. In meeting his educational needs, this imbalance must be remembered. Therefore, as much of his educational program as possible should be provided in age-appropriate normalized settings. Although this will undoubtedly present administrative

[ 517 Pa. Page 544]

    and instructional difficulties and challenges to the school staff, it is consistent with both Terry's needs and the legal mandate for education within the least restrictive environment.

On March 2, 1983, the school district filed exceptions to the hearing officer's decision with the Secretary of Education. In affirming the hearing officer, the Secretary wrote:

Simply because PDE has approved the district's program of enrichment for gifted students does not relieve the district of its duty under 24 P.S. § 13-1371, § 13-1372, 22 Pa.Code § 13.31, § 341.1, and § 341.15, to provide Terry with an appropriate academic education. Furthermore, the fact that PDE approves a district's special education program does not mean that the program is necessarily appropriate for all students within a particular exceptionality or that individual modifications may not be necessary to meet individual needs . . . .

A regular program with special instruction in accordance with a child's IEP specifying enrichment could be appropriate for certain exceptional children, however, such a gifted enrichment program without advanced instruction in reading and math is not appropriate for Terry. See In re the Educational assignment of Eric L., Special Education Opinion # 119 (1978). Moreover, the district is specifically responsible for developing educational programs appropriate for the needs of each child, not of all children generally. Shanberg v. Comm. Secretary of Ed., 57 Pa. Commw. 384, 426 A.2d 232, 233 (1981).

Secretary's Opinion at 10. The school district appealed this order to Commonwealth Court, which on January 31, 1986, affirmed the decision of the Secretary. Commonwealth Court stated that each school district is required to identify exceptional children and to develop an appropriate program of education suited to each child's individual needs. The court also observed that the Secretary of Education is responsible for determining what educational program is

[ 517 Pa. Page 545]

    suited for each individual child. 94 Pa. Commw. 530, 537, 503 A.2d 1090, 1094 (1986). The court added:

As for whether the IEP prescribed by the Secretary is in accordance with the law, we note that 22 Pa.Code § 341.15, which sets forth the elements of an IEP, requires that the IEP include a statement of the specific educational services that are to be provided to the child, including a "description of all special education and related services required to meet the unique needs of the child . . . ." Moreover, 22 Pa.Code § 13.22 specifies that "[c]urricula for gifted and talented school-aged persons shall be conducted in accordance with standards established by the Secretary and shall include provisions for . . . (3) Amount of supervision and special teaching, determined by the type and degree of mental abilities or talents." In approving an IEP for Terry, the ...

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