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June 23, 1992

BRIAN CORDERO, a minor, by his mother, IRISH BATES, et al., Plaintiffs

The opinion of the court was delivered by: SYLVIA H. RAMBO

 Before the court is the motion for summary judgment of the plaintiff class. This motion has been fully briefed, including an amicus curiae brief filed by the Pennsylvania Association of School Districts, and is therefore ripe for disposition.


 This action challenges the Commonwealth of Pennsylvania's system for educating its disabled children. As presently configured, Pennsylvania's special education system involves the use of both public and private schools. Generally, public school placement for disabled children -- special classes within "mainstream" schools, for instance -- is favored. If a child's needs cannot be addressed in that setting, however, the child's school district may, at the Commonwealth's expense, place the child in one of a number of private schools approved by the Commonwealth. However, the undisputed reality of the situation is that access to the private schools is limited. Most of the approved facilities are located on the western or eastern borders of the state, and even in those institutions the number of available spots is relatively few. The Commonwealth does not provide funding for private placements in schools not approved by the Pennsylvania Department of Education ("PDE"), the agency charged with overseeing public education in the Commonwealth.

 The net result of this state of affairs is that disabled children whose districts lack the means to provide them appropriate special education are saddled with delays of months, and in some cases years, while they wait for the districts in which they live to find a suitable private school for them.

 In response, several disabled children and their parents brought suit against the Commonwealth and the Department of Education pursuant to 20 U.S.C. § 1415(e) of the Individuals with Disabilities Education Act ("IDEA"), which empowers individuals to bring private actions to ensure that handicapped children receive "free appropriate public educations." The original Plaintiffs also launched a claim pursuant to § 504 of the Rehabilitation Act, 29 U.S.C. § 794, which authorizes the disabled to bring suit against governmental entities for unequal distribution of services. Plaintiffs contend that the design of the Commonwealth and PDE's "approved private school system" coupled with the failure to implement workable alternate programs causes many disabled children in the Commonwealth to wait unreasonable lengths of time to secure appropriate education. The action seeks declaratory and injunctive relief.

 On September 6, 1991, this court issued a memorandum and order creating a class of plaintiffs in this action. The class consists of

all Pennsylvania children with disabilities whose school districts have determined that they cannot currently be appropriately educated in a public educational setting and who have been waiting for more than thirty days for the provision of an appropriate educational placement; and all Pennsylvania children who may in the future meet these criteria.

 Order of Court (September 6, 1991).

 The plaintiff class has now moved for summary judgment on the liability portion of their claims. If judgment with regard to liability were granted, Plaintiffs ask that the court fashion remedial relief addressing the following concerns: (1) the placement in appropriate educational environments of disabled children known to be currently awaiting placements; (2) the creation of methods for identifying on a continuing basis all other children experiencing delays in placement and of plans to insert them in appropriate settings; (3) the creation of methods for determining what elements of education are missing from those offered by the state and the implementation of plans to enlarge the number of placement options so that children may be placed appropriately and without delay (as envisioned by Plaintiffs, this process would utilize the resources of the state Department of Public Welfare as well as the Department of Education); and (4) the creation and implementation of plans for compensatory educational services for the plaintiff class.


 The standards for the award of summary judgment under Federal Rule of Civil Procedure 56 are well known. As the Third Circuit Court of Appeals recently capsulized:

Summary judgment may be entered if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Equimark Comm. Finance Co. v. C.I.T. Financial Serv. Corp., 812 F.2d 141, 144 (3d Cir. 1987). If evidence is "merely colorable" or "not significantly probative" summary judgment may be granted. Anderson, 106 S. Ct. at 2511; Equimark, 812 F.2d at 144. Where the record, taken as a whole, could not "lead a rational trier of fact to find for the nonmoving party, summary judgment is proper." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).

 Hankins v. Temple Univ., 829 F.2d 437, 440 (3d Cir. 1987). Once the moving party has shown that there is an absence of evidence to support the claims of the nonmoving party, the nonmoving party may not simply sit back and rest on the allegations in his complaint, but instead must "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The court will consider Plaintiffs' motion under these standards.

 I. The IDEA and a "Free Appropriate Public Education"1

 The IDEA is the latest incarnation of the Education of the Handicapped Act ("EHA"), which provides federal funding to states and to local educational agencies (e.g., school districts) so that they may provide a range of educational services to disabled children. *fn2" In exchange for the federal dollars, however, the Act imposes on the states a number of requirements. First and foremost among them is the mandate that every handicapped student be given a "free appropriate public education." 20 U.S.C. § 1412(1). This education must be provided "regardless of the severity of [the student's] handicap." Id. § 1412(2)(C).

 The IDEA incorporates a definition of free appropriate public education:

Special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, . . . and (D) are provided in conformity with the individualized education program required under section [1414(a)(5) of this title].

 Id. § 1401(18).

 States are required under the IDEA to put in place various procedures to ensure that the child is receiving a free appropriate public education, and that if he is not, avenues are available to redress any problems. See id. § 1415(b), (e); Board of Educ. v. Rowley, 458 U.S. 176, 182-83 (1982).

 The principal means of carrying out the dictates of the IDEA is the Individualized Education Program ("IEP"), where the available educational and other options and services are shaped to fit the needs of each individual handicapped child. Id. § 1401(16); Honig v. Doe, 484 U.S. 305, 311 (1988). An IEP is made up of a detailed written plan of action created by a team of specialists (including educators, psychologists, physicians, and various therapists) which summarizes the student's abilities, sets goals for his progress, and forecasts what type of services the child may need. 20 U.S.C. §§ 1401(19); 1414(a)(5). The local education agencies must review and, if necessary, revise the IEP on an annual basis at minimum. Id. §§ 1414(a)(5); 1413(a)(11).

 The IDEA places the responsibility for the development and implementation of policies and procedures to guarantee disabled children a free appropriate public education on the states. Id. § 1412(1)-(2).

 While the state has a central function in the educational scheme envisioned by the IDEA, school districts and parents are to be the front line providers of care and education. Smith v. Robinson, 468 U.S. 992, 1011 (1984); Rowley, 458 U.S. at 208-09. Like the state, school districts are charged with providing a free, appropriate public education to the disabled children within their borders. 20 U.S.C. § 1414(a)(1). In Pennsylvania, the individual districts are instructed to provide and maintain special education services, and a complex web of statutes and regulations have been put in place by the legislature and the State Board of Education to carry out this mandate. Pa. Stat. Ann. tit. 24, § 13-1372(3) (1992 Supp.); see also 22 Pa. Code §§ 14.1 - 14.74; §§ 342.1 - 342.74. The General Assembly has provided various formulae for the disbursement of funds to the districts. 24 Pa. Cons. Stat. Ann. § 25-2509 (1992 Supp.).

 II. Does Pennsylvania's System, As Operated, Deny the Plaintiff Class a "Free Appropriate Education?"3

 Plaintiffs have launched what amounts to a four prong attack against Pennsylvania's system for educating disabled children and the responsible agencies' actions (or inactions) in ensuring that the children receive a free appropriate public education. According to Plaintiffs, Defendants' system: (1) does not tailor educational placements to the individual child's needs; (2) does not make available a continuum of education options so that a range of placement settings are available and one may be chosen which will most benefit the child; (3) results in many children being placed in environments more restrictive than necessary (that is, that children who do not necessarily require such services are being placed at home or in residential settings where they will have little contact with other children); and (4) fails to identify and correct violations of the protected children's rights.

 Defendants essentially argue in return that any delays and violations of the IDEA suffered by class members are attributable to the actions of the individual districts, and that Pennsylvania has done all that is required by the IDEA.

 The court will in this section first summarize Plaintiffs' four arguments, then discuss the merits of those arguments together with Defendants' counterarguments.

 1. Have Defendants Failed to Ensure that Class Members Have Access to Appropriate Placements?

 Plaintiffs point out that the IDEA requires that individual attention be paid to each student, and that each student is to be placed in an educational environment tailored to his needs. Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 172-73 (3d Cir. 1988), cert. denied sub nom, Central Columbia School Dist. v. Polk, 488 U.S. 1030 (1989); see 20 U.S.C. §§ 1412(4), 1414(a)(5); 34 C.F.R. §§ 300.340-347 (regarding IEPs). Pennsylvania has delegated to individual school districts the front line responsibility of developing individualized plans and goals for the handicapped students. 22 Pa. Code §§ 14.2(d), 14.41.

 In the present case, the plaintiff class consists of children who have been waiting to be placed in a private school for longer than 30 days. Plaintiffs state that PDE officials have admitted that on a statewide basis, the typical process of locating a private school placement takes in excess of 60 to 80 days, and sometimes may take six months or longer. Plaintiffs' Statement of Undisputed Facts at P32(a) (hereinafter Plaintiffs' UDF). In areas outside the urban western and eastern ends of the state, long waits for private placement are typical. For instance, in the Blast Intermediate Unit ("IU") No. 17, serving Bradford, Lycoming, Sullivan and Tioga Counties, the average wait from the referral date to actual placement in a private school is between three and six months. Plaintiffs' UDF at P32(g). In the Central IU, which ministers to Clearfield, Clinton and Centre Counties, the average wait for the six children who have been placed over the past three years has been two to three months, while seven other children who qualified for private placement were not admitted to the recommended schools. Id. at P32(i). The necessary inference to be drawn from these facts is that, while in this holding pattern, the children remain in placements which have been adjudged unsuitable or simply remain at home.

 The numerous affidavits of parents and guardians of disabled children from around the state submitted by Plaintiffs bear this inference out. The affidavits are replete with discussions of individual children who have remained in homebound instruction or in classes already determined to be inappropriate while they waited for long periods ...

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