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BRIAN B. v. PENNSYLVANIA DEPT. OF EDUC.

June 18, 1999

BRIAN B., ET AL.
v.
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF EDUCATION, ET AL.



The opinion of the court was delivered by: Pollak, District Judge.

OPINION

A Pennsylvania statute enacted in 1997, 24 P.S.A. § 13-1306.2(a), authorizes Pennsylvania school districts to withhold education from persons of school age who are incarcerated in county correctional institutions following conviction as adults. The statute states that "[a] person under twenty-one (21) years of age who is confined to an adult local correctional institution following conviction for a criminal offense who is otherwise eligible for educational services as provided under this act shall be eligible to receive educational services from the board of school directors in the same manner and to the same extent as a student who has been expelled. . . ." Since students who have been "expelled" are only entitled to very meager "educational services," if any, the effect of this statute is to authorize the withholding of all or virtually all education from persons of school age who are incarcerated, pursuant to conviction, in county correctional institutions — as distinct from persons of school age who are incarcerated, pursuant to conviction, in state correctional institutions or who are confined, pursuant to adjudication of delinquency, in juvenile detention facilities; state correctional institution inmates of school age and juvenile detention facility inmates of school age must be provided the same education guaranteed to all other Pennsylvania residents of school age. In their motion for a preliminary injunction restraining the enforcement of 24 P.S.A. § 13-1306.2(a), plaintiffs claim that the statute's disparate treatment of those whom they view as similarly situated groups of inmates violates the equal protection clause. The extensive record developed by the parties on the motion for a preliminary injunction lends strong support to plaintiffs' contention that withholding education from any category of inmates of school age, pursuant to 24 P.S.A. § 13-1306.2(a), is a policy freighted with gravely detrimental social consequences. Nonetheless, I am not persuaded that there is a reasonable probability that at a final hearing on the merits I would conclude that this barely-arguably-penny-wise but almost-indisputably-pound-foolish statute is unconstitutional. Accordingly, I must deny the motion for a preliminary injunction.

I. Facts and Procedural History

Plaintiffs are a class*fn1 of persons under the age of twenty-one presently confined in so-called "local [i.e., county] correctional institution[s]."*fn2 In December of 1996, Brian B. and five other young men brought this action against the Pennsylvania Department of Education, Department of Education Secretary Eugene Hickok ["Secretary Hickok" or "the Secretary"], and the school districts in which Delaware County Prison, Philadelphia House of Corrections, and York County Prison are located, alleging "violations of their rights to basic and special education as guaranteed them by the United States Constitution, federal statutes and state law." Amended Compl. at 1-2.*fn3

The Pennsylvania Public School Code requires school districts to provide free educational services to persons under the age of twenty-one residing within their boundaries.*fn4 When plaintiffs filed their original complaint, the Pennsylvania Public School Code generally required that, at the high school level, this education consist of five and a half hours of instruction per day — 27.5 hours per week — for 180 days per year. No distinction was made between incarcerated and unincarcerated persons. 24 P.S.A. §§ 13-1306, 13-1306.2. Though the Public School Code did not distinguish between incarcerated and unincarcerated persons, practice did. Education was generally not provided to persons under the age of twenty-one incarcerated in county correctional institutions, though it was provided to persons of the same age incarcerated in state correctional institutions or held in juvenile facilities. After plaintiffs initiated this action challenging that practice, the Pennsylvania legislature amended the Public School Code to codify the practice. The pertinent Code provision — Section 13-1306.2(a) — now reads in relevant part:

    (a) A person under twenty-one (21) years of age who
  is confined to an adult local correctional
  institution following conviction for a criminal
  offense who is otherwise eligible for educational
  services as provided under this act shall be eligible
  to receive educational services from the board of
  school directors in the same manner and to the same
  extent as a student who has been expelled pursuant to
  section 1318.

24 P.S.A. § 13-1306.2(a). Expelled students under the age of seventeen are entitled to "some [educational] provision," 22 Pa.Code § 12.6 — but "some" has been construed to be a minimal guarantee. See Abremski v. Southeastern Sch. Dist. Bd. of Directors, 54 Pa.Cmwlth. 292, 421 A.2d 485, 488 (1980). Expelled students who have reached their seventeenth birthday are not entitled to any education. 22 Pa. Code § 12.6. Thus, the effect of 24 P.S.A. § 13-1306.2(a) is to substantially curtail, or wholly eliminate, the educational entitlement of convicted county correctional institution inmates under the age of twenty-one.

In November of 1997 — nearly a year after the initiation of this litigation — plaintiffs entered into an Interim Agreement with the Pennsylvania Department of Education and Secretary Hickok [the "Commonwealth defendants"], after which plaintiffs and the Commonwealth defendants jointly requested that this court hold in abeyance all motions pending against the Commonwealth defendants with the exception of plaintiffs' "claims against Secretary Hickok challenging the constitutionality of 24 P.S.A. § [13-]1306.2(a) under the Equal Protection Clause of the Fourteenth Amendment and Plaintiffs' request that the Court enjoin the enforcement of 24 P.S.A. § [13-]1306.2(a)." Interim Agreement ¶ 10. An order to this effect was entered on November 24, 1997. The sole question now before this court is whether plaintiffs are entitled to a preliminary injunction pending a full trial determining whether 24 P.S.A. § 13-1306.2(a) violates the equal protection clause.

A telephone conference was held on November 21, 1997, during which this court discussed, with all parties, procedural matters related to the upcoming preliminary injunction hearing. In this telephone conference, the local school districts expressed their willingness to rest on the Commonwealth defendants' defense of § 13-1306.2(a), and it was decided that the school districts' presence at the preliminary injunction hearing was not essential, though they were welcome to attend. The preliminary injunction hearing began on November 24, 1997, with counsel for the plaintiffs, the Commonwealth defendants, and the Central York School District present. The plaintiffs and the Commonwealth defendants submitted a joint stipulation to over a hundred facts, as well as a series of stipulated documents. None of the individual school districts contested the accuracy or authenticity of any of the information or documents set forth in the stipulations. On the first day of the hearing, the Commonwealth defendants argued — as they had not in their motion to dismiss plaintiffs' amended complaint — that there was no case or controversy between the plaintiffs and them. See 11/24/97 Tr. at 36-57.

The next day, at the close of plaintiffs' case-in-chief, the Commonwealth defendants resumed their argument that the case was not justiciable with respect to them. I did not rule on the issue at that time, and instead invited counsel for the Philadelphia School District and Garnet Valley School District to join the proceedings. Because the school districts remained parties to the action and there was a possibility that the Commonwealth defendants would be determined not to be proper defendants, I informed the school districts that, should the Commonwealth defendants prevail on their claim of nonjusticiability and hence be dismissed as defendants, the school districts would be entitled to cross-examine plaintiffs' witnesses and present any case-in-chief that they wished to present. See 11/25/97 Tr. at 169-71.*fn5 Near the end of that discussion, plaintiffs conceded that, pursuant to the Eleventh Amendment, the Pennsylvania Department of Education (PDE) was not a proper defendant, leaving Secretary Hickok the sole defendant as to plaintiffs' claims for injunctive and declaratory relief with respect to state authorities.*fn6

In all, the preliminary injunction hearing took two days, during which four witnesses testified and dozens of exhibits were introduced. Following preparation of a transcript of the hearing, the plaintiffs and two of the defendants — Central York School District and Secretary Hickok — submitted post-trial memoranda. At my request, the plaintiffs and Secretary Hickok prepared a supplemental set of fact stipulations, related to the legislative history of § 13-1306.2 and to Pennsylvania law and practice regarding commitment to and transfer between county and state prisons. Those supplemental stipulations were filed on February 19, 1998. I address the motion for preliminary injunction in light of the entire evidentiary record.

A.

In Pennsylvania, persons who have not yet reached their twenty-first birthday ("school-aged persons") can be tried as alleged delinquents by a juvenile court or tried as alleged adult criminals in a criminal court. Under Pennsylvania law, the juvenile court generally has jurisdiction over a "child" accused of criminal offenses. The Pennsylvania Juvenile Act defines "child" as a person:

  under the age of 18 years [or] under the age of 21
  years who has committed an act of delinquency before
  reaching the age of 18 years; or [who] was
  adjudicated dependent before reaching the age of 18
  years and who, while engaged in a course of
  instruction or treatment, requests the court to
  retain jurisdiction until the course has been
  completed, but in no event shall a child remain in a
  course of instruction or treatment past the age of 21
  years.

42 P.S.A. § 6302.

A child charged with delinquency in a juvenile court will, if adjudicated delinquent and found in need of custodial instruction or treatment, be confined in a juvenile facility. If convicted as an adult, the child will, if sentenced to incarceration, be sentenced in the same way as any adult person convicted in criminal court.*fn7

B.

Under Pennsylvania law, persons who have reached their sixth birthday but have neither reached their twenty-first birthday nor graduated from high school are entitled to a free education. 24 P.S.A. § 5-501; 24 P.S.A. § 13-1301. Persons who have reached their eighth birthday but have neither reached their seventeenth birthday nor graduated from high school are required to attend school. 24 P.S.A. §§ 13-1326, 13-1327. At the high school level, school districts are required to provide 27.5 hours of instruction a week and 180 days of instruction per year. 24 P.S.A. § 15-1504.

There are several exceptions to these general rules. School districts are not required to provide the weekly 27.5 hours of education to students who have been expelled, who are homebound, or who are incarcerated, pursuant to conviction, in a county correctional institution. "Students who are less than 17 years of age are still subject to the compulsory school attendance law even though expelled, and they must be provided an education." 22 Pa. Code § 12.6(e). "[T]he student's school district has the responsibility to make some provision for the child's education." 22 Pa.Code § 12.6(h). The term "some provision" has been construed to mean that "local school officials [may] determine the amount and type of alternate instruction necessary and appropriate in each case." Abremski v. Southeastern Sch. Dist. Bd. of Directors, 54 Pa.Cmwlth. 292, 421 A.2d 485, 488 (1980) (finding one weekly ninety-minute in-school session as augment to home-study plan adequate for expelled student under age seventeen). There does not appear to be any educational entitlement for expelled students who have reached their seventeenth birthday. Homebound students engaged in a home study program commonly receive no more than five hours of instruction per week. See 22 Pa.Code § 11.25(b)-(c); 11/24/97 Stipulated Facts ¶¶ 91, 93.

The statute challenged in this case — 24 P.S.A. § 13-1306.2(a) — limits the schooling provided to school-aged persons incarcerated, pursuant to conviction, in county correctional facilities to the quantum of education provided throughout the Commonwealth to "expelled students."*fn8 As described above, "expelled" students who are sixteen or younger are entitled to have "some provision" made for their education; those who are seventeen to twenty do not appear to be entitled to any education. While as little as ninety minutes a week of in-school education has been deemed sufficiently augmentative of a home-based plan to constitute "some provision," see Abremski, 421 A.2d at 488, school districts routinely apply "for payment of up to five hours of instruction per week for each student receiving homebound instruction," 11/24/97 Stipulated Facts ¶ 93; "[h]omebound instruction is also provided by school districts when a student is expelled from school," 11/24/97 Stipulated Facts ¶ 94.*fn9 On these facts, it appears to be a fair inference that, by virtue of § 13-1306.2(a), persons who are sixteen or younger and are incarcerated pursuant to conviction in county correctional institutions are likely to receive as much as, but almost assuredly no more than, five hours of instruction per week.

By contrast, school-aged persons who have been convicted of a crime and are incarcerated in state correctional institutions are provided full-time schooling, which consists of five and a half hours of daily instruction year-round. 11/24/97 Stipulated Facts ¶ 49. School-aged persons in juvenile facilities are provided five and a half hours a day of instruction for 180 days a year. 11/24/97 Stipulated Facts ¶ 62. The Secretary has acknowledged that the Individuals with Disabilities Education Act ["IDEA"], 20 U.S.C. § 1400 et seq., entitles school-aged persons who have special educational needs — whether or not incarcerated in county institutions — to a free appropriate public education pursuant to an individualized education program under the IDEA. See Interim Agreement; see also Pennsylvania Department of Education, Basic Education Circular — Education Services for Students Incarcerated in Local Correction Institutions § II (Jan. 15, 1998).*fn10

The amount of basic educational services provided to a school-aged person who has been charged with or convicted of a crime therefore depends upon: 1) whether the person is adjudicated as a delinquent juvenile or convicted as an adult; 2) whether the person is assigned to a county or state correctional institution; and 3) the person's age. In sum, local school districts may withhold all or nearly all basic educational services from convicted school-aged persons who are incarcerated in county correctional institutions; but basic educational services may not be withheld from (a) convicted school-aged persons incarcerated in state correctional institutions, (b) juvenile delinquents housed in state or county juvenile facilities, or (c) pretrial detainees incarcerated in any sort of correctional facility.*fn11

II. Presence of a Justiciable Case or Controversy

Secretary Hickok argues that there is no case or controversy between him and the plaintiff class. Commonwealth Def. Post-Trial Br. at 27. For support, the Secretary points to 1st Westco Corp. v. School Dist. of Philadelphia, 6 F.3d 108 (3d Cir. 1993). 1st Westco was a law suit precipitated by a decision of the Philadelphia School District that a contractor's use of out-of-state employees on school projects violated a section of the Pennsylvania Public School Code. The contractor sued the School District, claiming that the statute relied on by the School District was constitutionally infirm, and the School District then filed a third-party complaint against two high-ranking Commonwealth officials: the Secretary of Education and the Attorney General. In the third-party complaint, the School District asserted that it had — some years before — asked the Secretary whether the statute was constitutional. The Secretary had asked the Attorney General whether the statute was constitutional, and the Attorney General had informed the Secretary that the statute was constitutional and that the Secretary was bound to enforce it. On appeal, the Third Circuit held that there was no case or controversy between the School District on the one hand and the Secretary and the Attorney General on the other. With respect to the Secretary the court found that, although the Secretary was charged — as head of the Department of Education — with the duty of enforcing the statute in every other school district in the state, he had no such duty with respect to the Philadelphia School District; this was because "the state legislature, for reasons best known to them, limited this authority to review and approve specifications to second, third, and fourth class school districts and excluded Pennsylvania's first class school district. 24 Pa.Stat.Ann. § 7-731. Philadelphia is Pennsylvania's only first class school district. Id. at § 2-202. Thus the Secretary has no statutory power to enforce section 754 against the School District." Id. at 113. The Attorney General was found to be even remoter from the fray.*fn12

This case is different in two salient respects. First, the Secretary is not a third-party defendant haled into court by a school district alleging it relied on a constitutional opinion rendered years earlier. Secretary Hickok is a named defendant whose issuance of a Basic Educational Circular*fn13 outlining local school districts' responsibilities under § 13-1306.2(a) was disseminated promptly after the statute was passed. Second, the Pennsylvania General Statutes charge the Secretary of Education with "administer[ing] all of the laws of this Commonwealth with regard to the establishment, maintenance, and conduct of the public schools. . . ." 71 P.S.A. § 352(a). To carry out his duties, the Secretary has been delegated substantial enforcement authority; he may, for example, "prescrib[e] penalties" for violations of the school laws. Id.; see also 11/24/97 Tr. at 38. Moreover, Secretary Hickok is authorized to "prescribe, alter and amend basic criteria" of the Commonwealth's statewide educational plan, and is specifically required to ensure that those criteria are in accord with "all applicable laws and regulations of the Federal government." 71 P.S.A. § 366. Unlike 1st Westco — where the Secretary's general power to penalize a school district for failure to follow contracting rules did not extend to the Philadelphia School District — this case involves a Secretary whose general power to "prescrib[e] penalties" against those school districts that fail to abide by the law extends to the school districts whose actions are at issue. See 71 P.S.A. § 352(a). Secretary Hickok is thus a proper defendant.

III. The Preliminary Injunction Motion

A. Standard for Issuance of a Preliminary Injunction

The Third Circuit has stated:

  Four factors govern a district court's decision
  whether to issue a preliminary injunction: (1)
  whether the movant has shown a reasonable probability
  of success on the merits; (2) whether the movant will
  be irreparably injured by denial of the relief; (3)
  whether granting preliminary relief will result in
  even greater harm to the nonmoving ...

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