APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Civil Action Nos. 78-0132, 78-0133, 78-0172
Before Hunter, Van Dusen, and Sloviter, Circuit Judges.
The Education for All Handicapped Children Act, 20 U.S.C. §§ 1401-1420 (1976), requires that every state which elects to receive federal assistance under the Act provide all handicapped children with the right to a "free appropriate public education," id. § 1412, and establishes detailed procedures for implementing that right. Id. § 1415. The Commonwealth of Pennsylvania, a recipient of aid under the Act, has established an administrative policy which sets a limit of 180 days of instruction per year for all children, handicapped or not. We are called upon, in this case of first impression, to examine the scope and purpose of this recent act and to decide whether Pennsylvania's policy and the statute may coexist. We conclude that they may not.
This case is before us on interlocutory appeal from the grant of declaratory and injunctive relief ordered pursuant to a finding by the district court that the 180 day rule deprives the members of the plaintiff class of a free appropriate public education and violates their right to procedural safeguards under the Act. We have jurisdiction under 28 U.S.C. § 1292(a)(1) (1976).
The case began as three class actions which were filed in January of 1978 by five handicapped children and their parents. The actions were consolidated for trial on their common injunctive and declaratory issues and the class of "(a) ll handicapped school aged persons in the Commonwealth of Pennsylvania who require or who may require a program of special education and related services in excess of 180 days per year and the parents or guardians of such persons" was certified. Armstrong v. Kline, 476 F. Supp. 583, 586 (E.D.Pa.1979).*fn1
The plaintiffs sued numerous defendants, including the Commonwealth of Pennsylvania, the Pennsylvania Department of Education, the state Secretary of Education, the local school district in which each named plaintiff resides, and the superintendent of each district. The complaint alleged that policies of the defendants, specifically the Commonwealth's 180 day rule, the school districts' refusal to fund the provision of more than 180 days of educational programming, and the statutory provisions which set an annual ceiling on per student expenditures, Pa.Stat.Ann. tit. 24, §§ 13-1376, 13-1377 (Purdon Supp. 1979-80), violate the Education for All Handicapped Children Act, 20 U.S.C. §§ 1401-1420 (1976), the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1976 & Supp. II 1978), the due process and equal protection clauses of the Constitution, and various state laws. At this stage of the proceeding, however, the district court has only passed upon the validity of the 180 day rule under the Education for All Handicapped Children Act. We shall, therefore address only that question, leaving the other issues to the district court in the first instance.
The Education for All Handicapped Children Act, 20 U.S.C. §§ 1401-1420 (1976), represents an attempt by Congress to assist the states in meeting the burdens imposed upon them by the widespread judicial recognition*fn2 of the right of handicapped children to a free public education appropriate to their needs. S. Rep. No. 168, 94th Cong., 1st Sess. 6, reprinted in (1975) U.S.Code Cong. & Admin.News, pp. 1425, 1429-33. The Act establishes a program of cooperative federalism which sets requirements which must be complied with in order for states to be eligible to receive financial assistance. A number of these requirements are relevant to the instant case. First, each state seeking assistance must have "in effect a policy that assures all handicapped children the right to a free appropriate public education," 20 U.S.C. § 1412(1) (1976), and must develop a plan which details the policies and procedures which insure the provision of that right. Id. § 1412(2). Each state must also establish the requisite procedural safeguards, id. § 1412(5), and must insure that local educational agencies in the state will establish the individualized educational programs required by the Act, id. § 1412(4). Compliance is enforced by the requirement that the state plan must be submitted to and approved by the Commissioner of Education before the state is entitled to assistance. Id. § 1413.
At the center of the controversy in this case is the definition of "free appropriate public education." According to the Act, "free appropriate public education" means
special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the state educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and (D) are provided in conformity with the individualized educational program required under section 1414(a)(5) of this title.
Id. § 1401(18). "Special education" is defined as "specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions." Id. at § 1401(16). "Related services" are those services which "may be required to assist a handicapped child to benefit from special education . . . ." Id. § 1401(17). These include transportation and developmental, corrective, and supportive services such as speech pathology, audiology, recreation, psychological services, certain medical services,*fn3 physical therapy, occupational therapy, and counseling services. Id.
The individualized educational program (IEP) provides the vehicle for giving content to the required "free appropriate public education." The IEP is a
written statement for each handicapped child developed in any meeting by a representative of the local educational agency or an intermediate educational unit who shall be qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of handicapped children, the teacher, the parents or guardian of such child, and, whenever appropriate, such child, which statement shall include (A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.
Id. § 1401(19). The IEP must be reviewed and revised by the local educational agency at least annually. Id. § 1414(a)(5).
In order to assure that the IEP is properly formulated to provide a free appropriate public education, the Act prescribes several procedural safeguards. Whenever the local agency proposes to change or refuses to change the identification or evaluation of a child, or the provision of a free appropriate public education to a child, the child's parents or guardian must be notified, and the parents or guardian must be given the opportunity to present complaints about any such matter. Id. § 1415(b)(1). When a complaint is made, the parents or guardian are entitled to an impartial due process hearing, conducted by a hearing examiner unrelated to the local agency involved in the care of the child, or by the state educational agency. Id. § 1415(b) (2). If the hearing is conducted by a hearing examiner, any aggrieved party may appeal to the state educational agency. Id. § 1415(c).*fn4 Any party aggrieved by the decision of the state agency has a right to appeal to a state court of competent jurisdiction or to a district court of the United States. Id. § 1415(e)(2).
The facts found by the district court are not disputed on appeal. Since District Judge Newcomer's opinion, reported below as Armstrong v. Kline, 476 F. Supp. 583 (E.D.Pa.1979), sets forth these facts in detail, we shall content ourselves with a review of only those necessary to our decision.
A. Education of the Handicapped in Pennsylvania.
The Pennsylvania Department of Education (DOE) is the agency charged with the responsibility of providing education to handicapped children in compliance with the Act. Pursuant to the Act, the DOE requires local school districts to prepare an annual individualized educational program (IEP) for each handicapped child. The program is developed subsequent to an evaluation by educators and medical personnel by a multidisciplinary team familiar with the child. The IEP evaluates the child's current level of ability, establishes the child's program and placement, and sets long and short term educational goals. After it is formulated, the parents or guardian of the child are permitted to review and comment on the IEP. Although they comply with these procedures, the districts that are defendants in this action refuse to provide or fund more than 180 days per year of education for any child. Id. at 586-87.
If the parents are unsatisfied with any aspect of their child's classification, placement or program, as established in the IEP, they are entitled to an appeal to an impartial hearing examiner. The hearing examiner is appointed by the DOE and may not be an employee of the district or intermediate unit*fn5 from which the case originates. It is, however, the policy and practice of the DOE to refuse to provide or to fund the provision of education in excess of 180 days per year for any child, handicapped or nonhandicapped.*fn6 In keeping with this policy, the DOE has instructed hearing examiners that they are "without authority to, and may not, order a special education program which is in excess of 180 days per year." Id. at 587.
Although the plaintiff class has been broadly defined, the district court classified the handicapped children involved into two general groups: the severely and profoundly impaired by mental retardation alone or, as is frequently the case, combined with other impediments; and the severely emotionally disturbed. These conditions vary greatly from child to child and generalization is difficult and may suggest seductively simple solutions. However, it is necessary briefly to attempt to describe the salient characteristics of these children.
The Severely and Profoundly Impaired (SPI) are generally regarded as children whose I.Q. is below 30. The severely retarded
are likely to be physically handicapped and have difficulty moving. They may enter the school system without toilet training and lack many basic self-held skills, such as dressing and feeding. Their language deficit is usually significant. Academically, one expects their achievements to be very limited, although they may be able to count, tell time and identify a few words on sight at the completion of their education.
Id. at 588. The profoundly retarded are the next and lowest subgroup. A profoundly retarded child is unlikely to possess any vocabulary or to be ambulatory. Communication is typically limited to gesturing. Id. SPI children tend to learn much more slowly than nonhandicapped children and tend much more quickly to forget what they have learned. Additionally, SPI children tend to have great difficulty generalizing skills they have leaned from one environment to another. Id.
Severely Emotionally Disturbed (SED) children suffer from a wide variety of disturbances including autism, characterized by an inability to relate to and communicate with others, symbiosis, marked by an inseparable relationship with one other person, and schizophrenia which is characterized by strange relationships with other individuals and an inability to cope with reality.*fn7 Id. at 589-90. SED children frequently exhibit bizarre behavior and are typically unable to accept changes of routine or environment or to deal with frustration. Id. These characteristics, combined with the inability of SED children to exercise self-control, frequently affect their learning capabilities in much the same way as the abilities of SPI children are affected. Thus, they have difficulty leaning new skills and have difficulty generalizing skills. SED children also frequently enter the educational system lacking in many basic self help skills. Id.
The educational programs of SPI and SED children depend on the individual abilities of each child. Where basic self help and social skills such as toilet training, dressing, feeding, and communication are lacking, formal education begins at that point. If the child masters these fundamentals, the education moves on to more difficult but still very basic language, social, and arithmetic skills, such as counting, making change, and identifying simple words. In addition, SED children typically require professional assistance in handling their emotional disturbances. Id. at 591.
The modest objectives of the educational programs of SPI and SED children are related to each child's potential and typically include "acquiring additional self help skills, avoiding institutionalization or attaining that level of independence with regard to self care that he or she can live in a community living arrangement or at home and work in a sheltered workshop." Id. at 590. For some, but not all, SPI and SED children, standing in the way of the attainment of some of these objectives is the effect of breaks in the educational program which are created, at least in part, by the 180 day rule. The district court found that "as a result of programming interruptions some SPI children lose a large amount of skills and development . . . ." Id. at 593. A similar regression of skill development is found among SED children who also experience a decline in emotional development. Although this regression also occurs in nonhandicapped children, the effect is significantly greater among many SPI and SED children. Id. at 595. The ...