have established that Pennsylvania's system of special education clearly violates the dictates of the IDEA.
As defined by the IDEA, the state's role amounts to more than creating and publishing some procedures and then waiting for the phone to ring. The IDEA imposes on the state an overarching responsibility to ensure that the rights created by the statute are protected, regardless of the actions of local school districts. Honig v. Doe, 484 U.S. 305 (1988); Kruelle v. New Castle County School Dist., 642 F.2d 687, 696-97 (3d Cir. 1981); Lester H. v. Gilhool, C.A. No. 86-6852, slip op. (E.D. Pa. Nov. 9, 1989), aff'd, 916 F.2d 865 (3d Cir. 1990), cert. denied, 111 S. Ct. 1317 (1991); Hendricks v. Gilhool, 709 F. Supp. 1362, 1367-69 (E.D. Pa. 1989). The state must assure that in fact the requirements of the IDEA are being fulfilled. 20 U.S.C. § 1412(6); 34 C.F.R. § 300.600.
Accordingly, with regard to the state's liability in this action, the fact that local agencies are not performing up to par or that parents are not fulfilling their duties becomes irrelevant. It is the state's obligation to ensure that the systems it put in place are running properly and that if they are not, to correct them. This is the crux of the state's liability in this matter.
There does not appear to be any dispute that numerous handicapped children in the Commonwealth are not receiving free appropriate public educations. The record here reveals that significant numbers of handicapped children are made to wait inordinate amounts of time to obtain placements in private schools which may not even be appropriate for them and which may cause the separation of families when it is not necessary. The record also shows that some parents are forced to release custody of their children so that they may obtain appropriate educational services through county welfare agencies, and even then the families may be forced to pay for part of these services. It is not difficult for this court to conclude that many of these problems stem from the lack of available special educational alternatives in many local school districts around the state. The problem is exacerbated by a lack of centralized supervision by the PDE. Given the breadth of the problem described in subsections II.A.1 - 4 and PDE's want of response, the court is of the opinion that Defendants have stumbled with regard to the supervisory responsibility imposed by the IDEA. As written and applied, the Commonwealth's present procedures provide only for the passive reception of information in individual situations regarding individual disagreements as to treatments and services. The Commonwealth, additionally, has apparently been well aware of these ongoing problems but has taken only slight corrective action. As noted in subsection II.A.4 of this memorandum, the dereliction of this supervisory duty constitutes a violation of the Act in and of itself.
This state of affairs is not without cost: During their extended waiting periods, many parents who filed affidavits reported that their handicapped children had regressed and that their behavior had begun to deteriorate.
Defendants assert that the individual problems here may be resolved through the procedures already established. The court agrees with Plaintiffs on this issue, however. By definition the class of plaintiffs here are young people who have already been found to require a type of placement currently not available and thus have remained in limbo for a period of time over a month. The court is convinced that the roots of this state of affairs may be traced to the design of the system itself: the absence of procedures for identifying geographic areas within the state which are lacking an adequate continuum of placement options; the failure to investigate and encourage wider development of publicly-operated classes; the lack of monitoring to address situations where an individual or groups of individuals have been waiting excessive periods for an appropriate placement; and the lack of coordination between the state's Department of Education and Department of Welfare all contribute to the problem. The delays, moreover, are recurring and continuous, and may not be rectified through the existing hearings process.
See Lester H. v. Gilhool, No. 86-6852, slip op. at 23 (E.D. Pa. Nov. 9, 1989).
The violation of even one child's rights under the Act is sufficient to visit liability on the state. This is a proposition that has been reiterated time and again. See, e.g., Honig ; Kruelle, 642 F.2d at 696-97; Lester H. ; Todd D. v. Andrews, 933 F.2d 1576, 1582-83 (11th Cir. 1991), reh'g denied, 943 F.2d 1316 (1991); Miener v. Missouri, 800 F.2d 749, 752-53 (8th Cir. 1986).
Here, however, there is evidence of numerous and continuing instances of children being denied their guarantee of a free appropriate public education. Given this circumstance, this court is well within its powers to declare that the Defendants' special education system as well as its supervision and leadership under the act are inadequate and to order injunctive relief to fix the problems. In Battle v. Pennsylvania, 629 F.2d 269 (3d Cir. 1980), the Third Circuit considered whether Pennsylvania's policy of limiting special education to no more than 180 days per year transgressed the predecessor act to the IDEA. The court found that:
the inflexibility of the defendants' policy of refusing to provide more than 180 days of education [is] incompatible with the Act's emphasis on the individual. . . . The 180 day rule imposes with rigid certainty a program restriction which may be wholly inappropriate to the child's educational objectives. This, the Act will not permit.