CONSENT AGREEMENT
The Complaint in this action having been
filed on January 7, 1971, alleging the unconstitutionality of
certain Pennsylvania statutes and practices under the Equal Protection
Clause of the Fourteenth Amendment and certain pendent claims;
a three-judge court having been constituted, after motion,
briefing and argument thereon, on May 26, 1971; an Order and
Stipulation having been entered on June 18, 1971, requiring notice
and a due process hearing before the educational assignment of
any retarded child may be changed; and evidence having been received
at preliminary hearing on August 12, 1971;
Now, therefore, this 7th of October 1971,
the parties being desirous of effecting an amicable settlement
of this action, the parties by their counsel agree, subject to
the approval and Order of this Court, as follows:
I.
- 1. This action may and hereby shall be maintained by plaintiffs
as a class action on behalf of all mentally retarded persons,
residents of the Commonwealth of Pennsylvania, who have been,
are being, or may be denied access to a free public program of
education and training while they are, or were, less than twenty-one
years of age.
It is expressly understood, subject to the provisions of Paragraph
44 below, that the immediate relief hereinafter provided shall
be provided to those persons less than twenty-one years of age
as of the date of the Order of the Court herein.
- 2. This action may and hereby shall be maintained against
defendant school districts and intermediate units as a class action
against all of the School Districts and Intermediate Units of
the Commonwealth of Pennsylvania.
- 3. Pursuant to Rule 23, Fed. R. Civ. P., notice of the extent
of the Consent Agreement and the proposed Order approving this
Consent Agreement, in the form set out in Appendix A, shall be
given as follows:
- (a) to the class of defendants, by the Secretary of Education,
by mailing immediately a copy of this proposed Order and Consent
Agreement to the Superintendent and the Director of Special Education
of each School District and Intermediate Unit in the Commonwealth
of Pennsylvania;
(b) to the class of plaintiffs, (i) by the Pennsylvania Association
for Retarded Children, by immediately mailing a copy of this proposed
Order and Consent Agreement to each of its Chapters in fifty-four
counties of Pennsylvania; (ii) by the Department of Justice, by
causing an advertisement in the form set out in Appendix A, to
be placed in one newspaper of general circulation in each County
in the Commonwealth; and (iii) by delivery of a joint press release
of the parties to the television and radio stations, newspapers,
and wire services in the Commonwealth.
II.
- 4. Expert testimony in this action indicates that all mentally
retarded persons are capable of benefiting from a program of education
and training; that the greatest number of retarded persons, given
such education and training, are capable of achieving self-sufficiency,
and the remaining few, with such education and training, are capable
of achieving some degree of self-care; that the earlier such education
and training begins, the more thoroughly and the more efficiently
a mentally retarded person will benefit from it; and, whether
begun early or not, that a mentally retarded person can benefit
at any point in his life and development from a program of education
and training.
5. The Commonwealth of Pennsylvania has undertaken to provide
a free public education to all of its children between the ages
of six and twenty-one years, and, even more specifically, has
undertaken to provide education and training for all of its exceptional
children.
6. Having undertaken to provide a free public education to all
of its children, including its exceptional children, the Commonwealth
of Pennsylvania may not deny any mentally retarded child access
to a free public program of education and training.
7. It is the Commonwealth's obligation to place each mentally
retarded child in a free, public program of education and training
appropriate to the child's capacity, within the context of a presumption
that, among the alternative programs of education and training
required by statute to be available, placement in a regular public
school class is preferable to placement in a special public school
class and placement in a special public school class is preferable
to placement in any other type of program of education and training.
III.
Section 1304
8. Section 1304 of the School Code of 1949, as amended, 24 Purd.
Stat. Sec. 13-1304, provides:
"Admission of beginners
The admission of beginners to the public schools shall be confined
to the first two weeks of the annual school term in districts
operating on an annual promotion basis, and to the first two weeks
of either the first or the second semester of the school term
to districts operating on a semi-annual promotion basis. Admission
shall be limited to beginners who have attained the age of five
years and seven months before the first day of September if they
are to be admitted in the fall, and to those who have attained
the age of five years and seven months before the first day of
February if they are to be admitted at the beginning of the second
semester. The board of school directors of any school district
may admit beginners who are less than five years and seven months
of age, in accordance with standards prescribed by the State Board
of Education. The board of school directors may refuse to accept
or retain beginners who have not attained a mental age of five
years, as determined by the supervisor of special education or
a properly certificated public school psychologist in accordance
with standards prescribed by the State Board of Education.
"The term 'beginners,' as used in this section, shall mean
any child that should enter the lowest grade of the primary school
or the lowest primary class above the kindergarten level."
- 9. The Secretary of Education, the State Board of Education,
the named School Districts and Intermediate Units, on their own
behalf and on behalf of all School Districts and Intermediate
Units in the Commonwealth of Pennsylvania, each of them, for themselves,
their officers, employees, agents, and successors agree that they
shall cease and desist from applying Section 1304 so as to postpone
or in any way to deny access to a free public program of education
and training to any mentally retarded child.
10. The Attorney General of the Commonwealth of Pennsylvania (hereinafter
"the Attorney General") agrees to issue an Opinion declaring
that Section 1304 means only that a school district may refuse
to accept into or to retain in the lowest grade of the regular
primary school or the lowest regular primary class above the kindergarten
level, any child who has not attained a mental age of five years.
11. The Attorney General of the Commonwealth of Pennsylvania shall
issue an Opinion thus construing Section 1304, and the State Board
of Education (hereinafter "the Board") shall issue regulations
to implement said construction and to supersede Sections 5-200
of the Pupil Attendance Regulations, copies of which Opinion and
Regulations shall be filed with the Court and delivered to counsel
for plaintiffs on or before October 25, 1971, and they shall be
issued and promulgated respectively on or before October 27, 1971.
12. The aforementioned Opinion and Regulations shall (a) provide
for notice and an opportunity for a hearing as set out in this
Court's Order of June 18, 1971, before a child's admission as
a beginner in the lowest grade of a regular primary school, or
the lowest regular primary class above kindergarten, may
be postponed; (b) require the automatic re-evaluation every two
years of any educational assignment other than to a regular class,
and (c) provide for an annual re-evaluation at the request of
the child's parent or guardian, and (d) provide upon each such
re-evaluation for notice and an opportunity for a hearing as set
out in this Court's Order of June 18, 1971.
13. The aforementioned Opinion and Regulations shall also require
the timely placement of any child whose admission to regular primary
school or to the lowest regular primary class above kindergarten
is postponed, or who is not retained in such school or class,
in a free public program of education and training pursuant to
Sections 1371 through 1382 of the School Code of 1949, as amended
24 Purd. Stat. Sec. 13-1371 through Sec. 13-1382.
Section 1326
14. Section 1326 of the School Code of 1949, as amended, 24 Purd.
Stat. Sec. 13-1326, provides:
"Definitions
The term 'compulsory school age,' as hereinafter used, shall mean
the period of a child's life from the time the child's parents
elect to have the child enter school, which shall be not later
than at the age of eight (8) years, until the age of seventeen
(17) years. The term shall not include any child who holds a
certificate of graduation from a regularly accredited senior high
school."
- 15. The Secretary of Education, the State Board of Education,
the named School Districts and Intermediate Units, on their own
behalf and on behalf of all School Districts and Intermediate
Units in the Commonwealth of Pennsylvania, each of them, for themselves,
their officers, employees, agents and successors agree that they
shall cease and desist from applying Section 1326 so as to postpone,
to terminate, or in any way to deny access to a free public program
of education and training to any mentally retarded child.
16. The Attorney General agrees to issue an Opinion declaring
that Section 1326 means only that parents of a child have a compulsory
duty while the child is between eight and seventeen years of age
to assure his attendance in a program of education and training;
and Section 1326 does not limit the ages between which a child
must be granted access to a free, public program of education
and training. Defendants are bound by Section 1301 of the School
Code of 1949, 24 Purd. Stat. Sec. 13-1301, to provide free public
education to all children six to twenty-one years of age. In
the event that a parent elects to exercise the right of a child
six through eight years and/or seventeen through twenty-one years
of age to a free public education, defendants may not deny such
child access to a program of education and training. Furthermore,
if a parent does not discharge the duty of compulsory attendance
with regard to any mentally retarded child between eight and seventeen
years of age, defendants must and shall take those steps necessary
to compel the child's attendance pursuant to Section 1327 of the
School Code of 1949, 24 Purd. Stat. Sec. 13-1327, and related
provisions of the School Code, and to the relevant regulations
with regard to compulsory attendance promulgated by the Board.
17. The Attorney General shall issue an Opinion thus construing
Section 1326, and related Sections, and the Board shall promulgate
Regulations to implement said construction, copies of which Opinion
and Regulations shall be filed with the Court and delivered to
plaintiffs' counsel on or before October 25, 1971, and they shall
be issued and promulgated respectively on or before October 27,
1971.
Section 1330(2)
18. Section 1330(2) of the School Code of 1949, as amended, 24
Purd. Stat. Sec. 13-1330(2) provides:
"Exceptions to compulsory attendance.
The provisions of this act requiring regular attendance shall
not apply to any child who:
* * *
- (2) Has been examined by an approved mental clinic or
by a person certified as a public school psychologist or psychological
examiner, and has been found to be unable to profit from further
public school attendance, and who has been reported to the board
of school directors and excused, in accordance with regulations
prescribed by the State Board of Education."
19. The Secretary of Education, the State Board of Education,
the named School Districts and Intermediate Units, on their own
behalf and on behalf of all School Districts and Intermediate
Units, each of them, for themselves, their officers, employees,
agents, and successors agree that they shall cease and desist
from applying Section 1330(2) so as to terminate or in any way
to deny access to a free public program of education and training
to any mentally retarded child.
20. The Attorney General agrees to issue an Opinion declaring
that Section 1330(2) means only that a parent may be excused from
liability under the compulsory attendance provisions of the School
Code when, with the approval of the local school board and the
Secretary of Education and a finding by an approved clinic or
public school psychologist or psychological examiner, the parent
elects to withdraw the child from attendance. Section 1330(2)
may not be invoked by defendants, contrary to the parents' wishes,
to terminate or in any way to deny access to a free public program
of education and training to any mentally retarded child. Furthermore,
if a parent does not discharge the duty of compulsory attendance
with regards to any mentally retarded child between eight and
seventeen years of age, defendants must and shall take those steps
necessary to compel the child's attendance pursuant to Section
1327 and related provisions of the School Code and to the relevant
regulations with regard to compulsory attendance promulgated by
the Board.
21. The Attorney General shall issue an Opinion so construing
Section 1330(2) and related provisions and the Board shall promulgate
Regulations to implement said construction and to supersede Section
5-400 of the Pupil Attendance Regulations, a copy of which Opinion
and Regulations shall be filed with the Court and delivered to
counsel for plaintiff on or before October 25, 1971, and they
shall be issued and promulgated respectively on or before October
27, 1971.
Pre-School Education
- 22. Defendants, the Commonwealth of Pennsylvania, the Secretary
of Education, the State Board of Education, the named School Districts
and Intermediate Units, on their own behalf and on behalf of all
School Districts and Intermediate Units in the Commonwealth of
Pennsylvania, the Secretary of Public Welfare, each of them, for
themselves, their officers, employees, agents and successors agree
that they shall cease and desist from applying Section 1371(1)
of the School Code of 1949, as amended, 24 Purd. Stat. Sec. 13-1371(1)
so as to deny access to a free public program of education and
training to any mentally retarded child, and they further agree
that wherever the Department of Education through its instrumentalities,
the School Districts and Intermediate Units, or the Department
of Public Welfare through any of its instrumentalities provides
a pre-school program of education and training to children below
the age of six, they shall also provide a program of education
and training appropriate to their learning capacities to all retarded
children of the same age.
23. Section 1371(1) of the School Code of 1949, as amended, 24
Purd. Stat. Sec. 13-1371(1), provides:
"Definition of exceptional children; reports; examination
- (1) The term 'exceptional children' shall mean children
of school age who deviate from the average in physical, mental,
emotional or social characteristics to such an extent that they
require special educational facilities or services and shall include
all children in detention homes."
24. The Attorney General agrees to issue an Opinion declaring
that the phrase "children of school age" as used in
Section 1371 means children aged six to twenty-one and also, whenever
the Department of Education through any of its instrumentalities,
the local School District, Intermediate Unit, or the Department
of Public Welfare, through any of its instrumentalities, provides
a pre-school program of education or training for children below
the age of six, whether kindergarten or however so called, means
all mentally retarded children who have reached the age less than
six at which pre-school programs are available to others.
25. The Attorney General shall issue an Opinion thus construing
Section 1371 and the Board shall issue regulations to implement
said construction, copies of which Opinion and Regulations shall
be filed with the Court and delivered to counsel for plaintiffs
on or before October 25, 1971, and they shall be issued and promulgated
respectively on or before October 27, 1971.
Tuition and Tuition and Maintenance
26. The Secretary of Education, the State Board of Education,
the named School Districts and Intermediate Units, on their own
behalf and on behalf of all School Districts and Intermediate
Units in the Commonwealth of Pennsylvania, each of them, for themselves,
their officers, employees, agents and successors agree that they
shall cease and desist from applying Section 1376 of the School
Code of 1949, as amended, 24 Purd. Stat. Sec. 13-1376, so as to
deny tuition or tuition and maintenance to any mentally retarded
person.
27. The Attorney General agrees to issue an Opinion, and the Council
of Basic Education of the State Board of Education agrees to promulgate
Regulations, construing the term "brain damage" as used
in Section 1376 and as defined in the Board's "Criteria for
Approval . . . of Reimbursement" so as to include thereunder
all mentally retarded persons, thereby making available to them
tuition for day school and tuition and maintenance for residential
school up to the maximum sum available for day school or residential
school, whichever provides the more appropriate program of education
and training. Copies of the aforesaid Opinion and Regulations
shall be filed with the Court and delivered to counsel for plaintiff
on or before October 25, 1971, and they shall be issued and promulgated
respectively on or before October 27, 1971.
28. Defendants may deny or withdraw payments of tuition or tuition
and maintenance whenever the school district or intermediate unit
in which a mentally retarded child resides provides a program
of special education and training appropriate to the child's learning
capacities into which the child may be placed.
29. The decision of defendants to deny or withdraw payments of
tuition or tuition and maintenance shall be deemed a change in
educational assignment as to which notice shall be given and an
opportunity for a hearing afforded as set out in this Court's
order of June 18, 1971.
Homebound Instruction
30. Section 1372(3) of the School Code of 1949, as amended,
24 Purd. Stat. Sec. 13-1372(3), provides in relevant part:
"Standards; plans; special classes or schools
* * *
- (3) Special Classes or Schools Established and Maintained
by School Districts.
* * * If * * * it is not feasible to form a special class in
any district or to provide such education for any [exceptional]
child in the public schools of the district, the board of school
directors of the district shall secure such proper education and
training outside the public schools of the district or in special
institutions, or by providing for teaching the child in his home.
* * *"
31. The Secretary of Education, the State Board of Education,
the named School Districts and Intermediate Units, on their own
behalf and on behalf of all School Districts and Intermediate
Units in the Commonwealth of Pennsylvania, each of them, for themselves,
their officials, employees, agents and successors agree that they
shall cease and desist from denying homebound instruction under
Section 1372(3) to mentally retarded children merely because no
physical disability accompanies the retardation or because retardation
is not a short-term disability.
32. The Attorney General agrees to issue an Opinion declaring
that a mentally retarded child, whether or not physically disabled,
may receive homebound instruction and the State Board of Education
and/or the Secretary of Education agrees to promulgate revised
Regulations and forms in accord therewith, superseding the "Homebound
Instruction Manual" (1970) insofar as it concerns mentally
retarded children.
33. The aforesaid Opinion and Regulations shall also provide:
- (a) that homebound instruction is the least preferable
of the programs of education and training administered by the
Department of Education and a mentally retarded child shall not
be assigned to it unless it is the program most appropriate to
the child's capacities;
(b) that homebound instruction shall involve education and
training for at least five hours a week;
(c) that an assignment to homebound instruction shall be re-evaluated
not less than every three months, and notice of the re-evaluation
and an opportunity for a hearing thereon shall be accorded to
the parent or guardian, as set out in the Order of this Court
dated June 18, 1971;
- 34. Copies of the aforementioned Opinion and Regulations shall
be filed with the Court and delivered to counsel for plaintiffs
on or before October 25, 1971, and they shall be issued and promulgated
respectively on or before October 27, 1971.
Section 1375
35. Section 1375 of the School Code of 1949, as amended, 24
Purd. Stat. Sec. 13-1375, provides:
"Uneducable children provided for by Department of Public
Welfare
"The State Board of Education shall establish standards for
temporary or permanent exclusion from the public school of children
who are found to be uneducable and untrainable in the public schools.
Any child who is reported by a person who is certified as a public
school psychologist as being uneducable and untrainable in the
public schools, may be reported by the board of school directors
to the Superintendent of Public Instruction and when approved
by him, in accordance with the standards of the State Board of
Education, shall be certified to the Department of Public Welfare
as a child who is uneducable and untrainable in the public schools.
When a child is thus certified, the public schools shall be relieved
of the obligation of providing education or training for such
child. The Department of Public Welfare shall thereupon arrange
for the care, training and supervision of such child in a manner
not inconsistent with the laws governing mentally defective individuals."
- 36. Defendants the Commonwealth of Pennsylvania, the Secretary
of Education, the State Board of Education, the named School Districts
and Intermediate Units, on their own behalf and on behalf of all
School Districts and Intermediate Units in the Commonwealth of
Pennsylvania, and the Secretary of Public Welfare, each of them,
for themselves, their officers, employees, agents and successors
agree that they shall cease and desist from applying Section 1375
so as to deny access to a free public program of education and
training to any mentally retarded child.
37. The Attorney General agrees to issue an Opinion declaring
that since all children are capable of benefiting from a program
of education and training, Section 1375 means that insofar as
the Department of Public Welfare is charged to "arrange for
the care, training and supervision" of a child certified
to it, the Department of Public Welfare must provide a program
of education and training appropriate to the capacities of that
child.
38. The Attorney General agrees to issue an Opinion declaring
that Section 1375 means that when it is found, on the recommendation
of a public school psychologist and upon the approval of the local
board of school directors and the Secretary of Education, as reviewed
in the due process hearing as set out in the Order of this Court
dated June 18, 1971, that a mentally retarded child would benefit
more from placement in a program of education and training administered
by the Department of Public Welfare than he would from any program
of education and training administered by the Department of Education,
he shall be certified to the Department of Public Welfare for
placement in a program of education and training.
39. To assure that any program of education and training administered
by the Department of Public Welfare shall provide education and
training appropriate to a child's capacities the plan referred
to in Paragraph 49 below shall specify, inter alia,
- (a) the standards for hours of instruction, pupil-teacher
ratios, curriculum, facilities, and teacher qualifications that
shall be met in programs administered by the Department of Public
Welfare;
(b) the standards which will qualify any mentally retarded
person who completes a program administered by the Department
of Public Welfare for a High School Certificate or a Certificate
of Attendance as contemplated in Sections 8-132 and 8-133 of the
Special Education Regulations;
(c) the reports which will be required in the continuing discharge
by the Department of Education of its duty under Section 1302(1)
of the Administrative Code of 1929, as amended, 71 P.S. Sec. 352(1),
to inspect and to require reports of programs of education and
training administered by the Department of Public Welfare, which
reports shall include, for each child in such programs an annual
statement of educational strategy (as defined in Section 8-123
of the Special Education Regulations) for the coming year and
at the close of the year an evaluation of that strategy;
(d) that the Department of Education shall exercise the power
under Section 1926 of the School Code of 1949, as amended, 24
Purd. Stat. Sec. 19-1926 to supervise the programs of education
and training in all institutions wholly or partly supported by
the Department of Public Welfare, and the procedures to be adopted
therefor.
- 40. The Attorney General agrees to issue an Opinion so construing
Section 1375 and the Board to promulgate Regulations implementing
said construction, which Opinion and Regulations shall also provide:
- (a) that the Secretary of Education shall be responsible
for assuring that every mentally retarded child is placed in
a program of education and training appropriate to his learning
capacities, and to that end, by Rules of Procedure requiring that
reports of the annual census and evaluation, under Section 1371(2)
of the School Code of 1949, as amended, 24 Purd. Stat. 13-1371(2),
be made to him, he shall be informed as to the identity, condition,
and educational status of every mentally retarded child within
the various school districts.
(b) that should it appear that the provisions of the School
Code relating to the proper education and training of mentally
retarded children have not been complied with or the needs of
the mentally retarded child are not being adequately served in
any program administered by the Department of Public Welfare,
the Department of Education shall provide such education and training
pursuant to Section 1372(5) of the School Code of 1949, as amended,
21 Purd. Stat. Sec. 13-1372(5).
- (c) that the same right to notice and an opportunity
for a hearing as is set out in the Order of this Court of June
18, 1971, shall be accorded on any change in educational assignment
among the programs of education and training administered by the
Department of Public Welfare.
(d) that not less than every two years the assignment of
any mentally retarded child to a program of education and training
administered by the Department of Public Welfare shall be re-evaluated
by the Department of Education and upon such re-evaluation, notice
and an opportunity to be heard shall be accorded as set out in
the Order of this Court, dated June 18, 1971.
- 40. Copies of the aforesaid Opinion and Regulations shall
be filed with the Court and delivered to counsel for plaintiffs
on or before October 25, 1971, and they shall be issued and promulgated
respectively on or before October 27, 1971.
IV.
41. Each of the named plaintiffs shall be immediately re-evaluated
by defendants and, as soon as possible, but in no event later
than October 13, 1971, shall be accorded access to a free public
program of education and training appropriate to his learning
capacities.
42. Every retarded person between the ages of six and twenty-one
years as of the date of this Order and thereafter shall be provided
access to a free public program of education and training appropriate
to his capacities as soon as possible but in no event later than
September 1, 1972.
43. Wherever defendants provide a pre-school program of education
and training for children less than six years of age, whether
kindergarten or howsoever called, every mentally retarded child
of the same age as of the date of this Order and hereafter shall
be provided access to a free public program of education and training
appropriate to his capacities as soon as possible but in no event
later than September 1, 1972.
44. The parties explicitly reserve their right to hearing and
argument on the question of the obligation of defendants to accord
compensatory educational opportunity to members of the plaintiff
class of whatever age who were denied access to a free public
program of education and training without notice and without a
due process hearing while they were aged six years to twenty-one
years, for a period equal to the period of such wrongful denial.
45. To implement the aforementioned relief and to assure that
it is extended to all members of the class entitled to it, Dr.
Herbert Goldstein and Dennis E. Haggerty, Esquire are appointed
Masters for the purpose of overseeing a process of identification,
evaluation, notification, and compliance hereinafter described.
46. Notice of this Order and of the Order of June 18, 1971, in
form to be agreed upon by counsel for the parties, shall be given
by defendants to the parents and guardian of every mentally retarded
person, and of every person thought by defendants to be mentally
retarded, of the ages specified in Paragraphs 42 and 43 above,
now resident in the Commonwealth of Pennsylvania, who while he
was aged four years to twenty-one years was not accorded access
to a free public program of education and training, whether as
a result of exclusion, postponement, excusal, or in any other
fashion, formal or informal.
47. Within thirty days of the date of this Order, defendants shall
formulate and shall submit to the Masters for their approval a
satisfactory plan to identify, locate, evaluate and give notice
of all the persons described in the foregoing paragraph, and to
identify all persons described in Paragraph 44, which plan shall
include, but not be limited to, a search of the records of the
local school districts, of the intermediate units, of County MH/MR
units, of the State Schools and Hospitals, including the waiting
lists for admission thereto, and of interim care facilities, and,
to the extent necessary, publication in newspapers and the use
of radio and television in a manner calculated to reach the persons
described in the foregoing paragraph. A copy of the proposed
plan shall be delivered to counsel for plaintiffs who shall be
accorded a right to be heard thereon.
48. Within ninety days of the date of this Order, defendants shall
identify and locate all persons described in paragraph 46 above,
give them notice and provide for their evaluation, and shall report
to the Masters the names, circumstances, the educational histories
and the educational diagnosis of all persons so identified.
49. By February 1, 1972, defendants shall formulate and submit
to the Masters for their approval a plan, to be effectuated by
September 1, 1972, to commence or recommence a free public program
of education and training for all mentally retarded persons described
in Paragraph 46 above and aged between four and twenty-one years
as of the date of this Order, and for all mentally retarded persons
of such ages hereafter. The plan shall specify the range of programs
of education and training, their kind and number, necessary to
provide an appropriate program of education and training to all
mentally retarded children, where they shall be conducted, arrangements
for their financing, and, if additional teachers are found to
be necessary, the plan shall specify recruitment, hiring, and
training arrangements. The plan shall specify such additional
standards and procedures, including but not limited to those specified
in Paragraph 39 above, as may be consistent with this Order and
necessary to its effectuation. A copy of the proposed plan will
be delivered to counsel for plaintiffs who shall be accorded a
right to be heard thereon.
50. If by September 1, 1972, any local school district or intermediate
unit is not providing a free public education to all mentally
retarded persons 4 to 21 years of age within its responsibility,
the Secretary of Education, pursuant to Section 1372(5) of the
Public School Code of 1949, 24 Purd. Stat. 1372(5) shall directly
provide, maintain, administer, supervise, and operate programs
for the education and training of these children.
51. The Masters shall hear any members of the plaintiff class
who may be aggrieved in the implementation of this Order.
52. The Masters shall be compensated by defendants.
53. This Court shall retain jurisdiction of the matter until
it has heard the final report of the Masters on or before October
15, 1972.
(s) Thomas K. Gilhool
(s) J. Shane Creamer
Attorney for Plaintiffs
Attorney General
(s) Ed Weintraub
Deputy Attorney General
Attorneys for Defendants
Acknowledged:
(s) Dr. David H. Kurtzman
Secretary of Education
(s) Dr. William F. Ohrtman
Director, Bureau of Special Education
(s) Mrs. Helene Wohlgemuth
Secretary of Public Welfare
(s) Edward R. Goldman
Commissioner of Mental Retardation.
APPENDIX
NOTICE *
To: (1) All parents and guardians of mentally
retarded persons resident in the Commonwealth of Pennsylvania
[(2) All School Districts and Intermediate
Units in the Commonwealth of Pennsylvania]
Notice is hereby given (1) that a proposed
Order approving a Consent Agreement and issuing certain Injunctions
in Pennsylvania Association for Retarded Children et al. v. Commonwealth
of Pennsylvania, E.D. Pa., C.A. No. 71-42, is on file with the
Clerk of the United States District Court and available for inspection
there and in the offices of the Superintendent of each School
District and Intermediate Unit in the Commonwealth of Pennsylvania
and of each County Chapter of the Pennsylvania Association for
Retarded Children.
(2) That the above mentioned action, on
behalf of all mentally retarded persons who have been denied access
to a free, public program of education and training, was begun
on January 7, 1971, raising certain procedural and substantive
claims against the laws and practices of the Commonwealth of Pennsylvania,
the Department of Education, the Department of Public Welfare,
12 named School Districts and Intermediate Units and the class
of all School Districts and Intermediate Units in the Commonwealth,
because of their failure to provide a free public education to
all mentally retarded children.
(3) That the proposed Order would approve
a Consent Agreement entered into by the named parties on October
7, 1971, providing that each mentally retarded child shall be
accorded access to a program of education and training, that notice
and an opportunity for a hearing shall be accorded before any
change in the educational assignment of mentally retarded children,
that certain sections of the Public School Code shall be so construed,
and that certain Regulations so providing shall be promulgated
thereunder, and that a Special Master shall be appointed to
oversee the identification by defendants of all mentally retarded
children who have been denied an education and the formulation
and implementation by defendants of a plan to provide a free,
public program of education and training to all mentally retarded
children as soon as possible and no later than September 1, 1972,
and would also issue certain Injunctions consistent with the Consent
Agreement.
(4) That the parents or guardian of any
mentally retarded child [or any school district or intermediate
unit] who may wish to make an objection to the Proposed Order
approving the Consent Agreement may do so by entering an appearance
and filing a statement of objections with the Clerk of the United
States District Court for the Eastern District of Pennsylvania,
9th and Chestnut Streets, Philadelphia, on or before October 20,
1971. Hearing thereon shall be held before the Court at 10:00
o'clock A.M., October 22, 1971.
* (The bracketed portions below will appear
in the Notice but not in the newspaper advertisement)
© 1995 - 2008, Touro Law Center
