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March 23, 1989

THOMAS K. GILHOOL, Secretary of Education of the Commonwealth of Pennsylvania

The opinion of the court was delivered by: HUYETT, 3RD


 This is an class action seeking declaratory and injunctive relief under Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794, and the Education of the Handicapped Act ("EHA"), 20 U.S.C. § 1400, et seq. The defendant is the Secretary of Education of the Commonwealth of Pennsylvania, the official responsible for the administration of the Pennsylvania Department of Education (PDE). Pursuant to the class certification stipulation and order filed August 22, 1988, the plaintiff class is composed of:

All handicapped children presently in the public education system who have been assigned or referred to special education programs operated by the Carbon-Lehigh Intermediate Unit; and all children who may in the future be so assigned or referred.

 Presently pending is plaintiffs' motion for summary judgment.

 I. Facts

 The evidentiary basis for the plaintiffs' motion is an extensive factual stipulation which was filed by the parties in conjunction with the class certification materials. *fn1" Rather then set out the stipulation in detail, I adopt these undisputed facts by reference, and summarize the salient facts for purposes of the present motion.

 When a handicapped child in Pennsylvania is found to be in need of special education programs that cannot be provided by the district, he or she is referred to the intermediate unit (IU) serving that district. Typically, students referred to IUs are those with relatively severe handicaps, because the specialized services required by these children often cannot readily be provided by the home district. Moreover, districts with only a few children suffering from a particular type of handicap often find it impractical to set up programs for them within the local district.

 In assigning children to special education classes, districts and IUs must ensure that each placement provides opportunities for interaction with non-handicapped children to the maximum extent appropriate. Many children served by IU programs are indeed capable of being educated in special classes in regular schools attended by their non-handicapped peers. However, IUs do not own or operate regular schools. Instead, IUs must obtain classroom space from member school districts, or from other sources.

 The Carbon-Lehigh Intermediate Unit (CLIU) serves the fourteen school districts of Carbon and Lehigh counties. It operates approximately 95 classes for handicapped students. These classes include 65 single-district classes, which consist of students from one district who typically have mild handicaps, and 30 multi-district classes, which consist of students from various districts who typically have more severe handicaps.

 Defendant has candidly admitted to a number of problems with the CLIU program, all stemming from the failure of the school districts of Carbon and Lehigh counties to provide adequate classroom space for handicapped children enrolled in the CLIU program. These problems have been compounded by the recent growth in the population of the area served by the CLIU, which has led member school districts to allocate additional space for non-handicapped students. As a result, for the period from 1982 to the present, the CLIU has not has access to "comparable space" (i.e., space comparable to that provided to non-handicapped students) in regular schools for its handicapped students.

 Consequently, as set out in greater detail below, the CLIU (a) has had to place students in facilities that are not comparable to those furnished non-handicapped students, (b) has been required to shift handicapped students from district to district and from school to school, (c) has placed children in facilities that are excessively restrictive and separate from the facilities for non-handicapped children, and (d) has been unable to open new classes needed by handicapped children assigned to it.

 a. Non-comparable Facilities

 b. Relocation of classes

 From 1982 to the present, CLIU students -- typically children in multi-district classes with more severe handicaps -- have been shifted among classroom locations to make classroom space available to non-handicapped children. In some instances, these moves have been to a less central location, i.e., farther from the students' homes. As a result, some handicapped children presently ride a school bus for up to one and three quarter hours in each direction.

 c. Restrictive and Separate Facilities

 From 1982 to the present, as a result of CLIU's inability to obtain adequate classroom space in regular schools, some CLIU students have been educated in facilities that are separate from and more restrictive than the regular school environment. Such facilities have included separate schools or centers, separate wings or sections of regular schools, and mobile classrooms and trailers.

 d. Inability to Open Classrooms

 From 1982 to the present, as a result of CLIU's inability to obtain adequate space in regular schools, the CLIU has been unable to open enough special education classes to meet the needs of class members. In some instances, school districts have refused to make space available for classes of children with particular types of handicaps, e.g., students with severe or profound mental retardation or social or emotional disturbances. In several instances, the proposed classes were necessary to ensure that the children received appropriate special education programs.

 II. Discussion

 Summary judgment is appropriate if there exists no genuine issue material fact and the moving party is entitled to judgment as a matter of law. Small v. Seldows Stationery, 617 F.2d 992, 994 (3d Cir. 1980). The court does not resolve questions of disputed fact, but simply decides whether there is a genuine issue of fact which must be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Ettinger v. Johnson, 556 F.2d 692 (3d Cir. 1977). The facts must be viewed in the light most favorable to the opposing party, and reasonable doubt as to the existence of a genuine issue of material fact is to be resolved against the moving party. Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). However, "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be ...

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