D.C., K.C. аnd K.J., Appellants v. SCHOOL DISTRICT OF PHILADELPHIA.
Commonwealth Court of Pennsylvania.
Argued March 2, 2005. Decided July 20, 2005.
879 A.2d 408
ORDER
AND NOW, this 20th day of July, 2005, the order of the Court of Common Pleas of Schuylkill County dated December 10, 2004, in the above-captioned matter is hereby affirmed.
Judge PELLEGRINI concurs in the result only.
Marsha L. Levick and Len Rieser, Philadelphia, for appellants.
Scott F. Cooper, Philadelphia, for appellee.
BEFORE: COLINS, President Judge, SMITH-RIBNER, Judge, PELLEGRINI, Judge, LEADBETTER, Judge, and SIMPSON, Judge.
OPINION BY Judge SMITH-RIBNER.
Juveniles D.C., K.C. and K.J. (Students) appeal from an order of the Court of Common Pleas of Philadelphia County in their action filed as a class action seeking a declaration that Section 2134 of the Public School Code of 1949 (School Code), Act of March 10, 1949, P.L. 30, as amended, added by Section 19 of the Act of June 29, 2002, P.L. 524,
I. Background
In June 2002 the legislature added Section 2134 to Chapter 21 of the School Code relating to school districts of the first class. The Philadelphia School District is the only school district of the first class among the 500 school districts. Initially, Section 2134 provided that any student returning from placement or who was on probation as a result of being adjudicated delinquent under
The School District then was required to place the student in one of four alternative education settings. They include: an “alternative education program” as defined in Article XIX-C of the School Code, headed “Disruptive Student Programs,” added by Section 11 of the Act of June 25, 1997, P.L. 297,
In September 2002 two students filed a complaint challenging Section 2134, and on December 9, 2002 the legislature amended the section. As amended, Section 2134 still requires the School District to place students returning from juvenile delinquency placement (but not on probation) or criminal conviction into a transition center for up to four weeks and to develop transition plans. Further:
(c) The transition plan developed under subsection (b)(2) may provide for the student‘s direct return to a regular classroom where the underlying offense did not involve any of the following:
(i) Possession of a weapon.
(ii) Possession, use or sale of controlled substances as defined in the Act of April 14, 1972 (P.L. 233, No. 64), known as “The Controlled Substance, Drug, Device and Cosmetic Act.”
(iii) Possession, use or sale of alcohol or tobacco by any person on school property.
(iv) An act of violence as defined in
section 1310-A(h) [added by Section 3 of the Act of November 22, 2000, P.L. 672,24 P.S. § 13-1310-A(h) ].
Subsection (d) provides that a student whose transition plan does not provide for immediate return to the regular classroom shall be placed in one of the four alternative education settings; subsection (e) specifies information to be provided.
On January 17, 2003, an amended complaint was filed naming D.C., K.J. and K.C. as additional plaintiffs and withdrawing certain legal claims stated in the original complaint. The amended complaint alleged that D.C. was a sixteen-year-old student who attended 10th grade during 2001-2002. In May 2002 he was arrested for unauthorized use of an automobile, and he was adjudicated delinquent on that charge and was placed in a residential placement facility until his discharge in August 2002. Reports indicated that he “adjusted well to the program” and “worked well with others.” D.C. was not allowed to return to his high school, and he was advised to report to a transition center. Thereafter, he was assigned to an alternative school for disruptive students operated by Community Education Partners; it does not offer inter-scholastic sports and has limited scholastic opportunities. K.J. and K.C. had similar experiences.1
After several court conferences, the parties agreed that there were no material issues of fact in dispute and that discovery would provide no benefit. The Students filed a motion for summary judgment, and the School District filed a cross-motion for summary judgment.2 After noting the heavy burden involved in challenging the constitutionality of a statute, the trial court first considered whether Section 2134 is special legislation in violation of Article III, Section 32. The court initially concluded that Section 2134 applied uniformly to school districts of the first class. Under federal equal protection analysis, which applies to Article III, Section 32 claims, the court stated that disruptive and violent students have a deleterious effect on the education process and that there is a legitimate state interest in ensuring that students returning from placement and those in regular classrooms receive an education without fear of disruption and/or violence.
The trial court rejected the Students’ contention that Section 2134 violates the equal protection provision of Article I, Section 26 of the Pennsylvania Constitution, which provides: “Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.” The court disagreed with the Students’ argument that a fundamental right to reputation was involved, stating that the classification made by Section 2134 was based solely upon population. Because Section 2134 did not target suspect classifications, nor was based on grounds warranting intermediate scrutiny, the court concluded that the rational basis review applied. It stated that, because of the School District‘s large size, returning students would be less likely to recеive individual attention and might fail to adjust and then cause disruption to the learning environment.
Regarding the claim of violation of the Due Process Clause of the Federal Constitution, the trial court noted that in Pennsylvania there is a statutory entitlement to a public education, see
Regarding allegations of stigma, the trial court cited the leading case of Paul v. Davis, 424 U.S. 693 (1976), for the “stigma plus test” under federal due process principles. The United States Supreme Court rejected the proposition that reputation alone is a “liberty or property” interest sufficient to invoke federal constitutional due process protections, apart from some more tangible interests such as employment. Regardless of whether any stigma attached to the Students by virtue of their being sent to the alternative education setting, the trial court concluded that the Students did not meet the second prong of the test: it did not affect a property interest and it was not disciplinary in character.
The trial court also addressed the Students’ contention that Section 2134 impermissibly creates an irrebuttable presumption. It noted that in Department of Transportation, Bureau of Driver Licensing v. Clayton, 546 Pa. 342, 684 A.2d 1060 (1996), the court rejected assertions that the doctrine had been invalidated and held that an entitlement given by the state such as a driver‘s license may not be taken away arbitrarily by a presumption that cannot be challenged in a meaningful manner. The trial court did not regard Section 2134 as effecting removal from the regular classroom and concluded that it did not create an irrebuttable presumption that deprived the Students of a protected interest or entitlement.
Finally, the trial court addressed the Students’ argument that Section 2134 violated due process principles under the Pennsylvania Constitution, based upon as
II. Special Legislation
The Court turns first to the Students’ contention in Part II of their brief that Section 2134 is impermissible special legislation, because a decision in their favor on this point would invalidate the entire statute. Article III, Section 32 of the Pennsylvania Constitution, relating to certain local and special laws, provides:
The General Assembly shall pass no local or special law in any case which has been or can be provided for by general law and specifically the General Assembly shall not pass any local or special law:
1. Regulating the affairs of counties, cities, townships, wards, boroughs or school districts....
Article III, Section 20, relating to classification of municipalities, provides that the legislature “shall have the power to classify counties, cities, boroughs, school districts, and townships according to population, and all laws passed relating to any class ... shall be deemed general legislation within the mеaning of this Constitution.”
In Harrisburg School District v. Zogby, 574 Pa. 121, 136, 828 A.2d 1079, 1088 (2003), the court explained that the Article III, Section 32 special legislation prohibition and other provisions such as the Uniformity Clause, Article XIII, Section 1, “have been understood to include principles of equal protection under the law” and warranted like treatment to the Equal Protection Clause of the United States Constitution. Such principles, however, did not “vitiate the Legislature‘s power to classify” nor “prohibit differential treatment of persons having different needs, provided the classifications at issue bear a reasonable relationship to a legitimate state purpose.” Id. at 137, 828 A.2d at 1089 (citations omitted). Further, “a classification, though discriminatory, will be deemed reasonable if any state of facts reasonably can be conceived to sustain it.” Id. at 137, 828 A.2d at 1089 (citations omitted).
The Students argue that although the legislature may adopt targeted legislation in appropriate circumstances, Section 2134 actually creates a subclass—Philadelphia youth adjudicated delinquent returning from juvenile placement—without any substantial relationship between the goals of the legislation and the decision to apply it to Philadelphia students only. The Students refer to reports referenced in support of their motion for summary judgment indicating that two other counties
As the School District notes, “[a] statute duly enacted by the General Assembly is presumed valid and will not be declared unconstitutional unless it ‘clearly, palpably and plainly violates the Constitution.‘” Zogby, 574 Pa. at 135, 828 A.2d at 1087 (quoting Purple Orchid, Inc. v. Pennsylvania State Police, 572 Pa. 171, 178, 813 A.2d 801, 805 (2002)). The courts frequently have rejected challenges to legislation as applicable to only one class of school district or city. See, e.g., Danson v. Casey, 484 Pa. 415, 399 A.2d 360, 367 (1979) (upholding revenue structure applicable only to first class school district). The School District, amicus Commonwealth and amici Presiding Officers (Senate President pro tempore and Speaker of the House of Representatives), emphasize that in Zogby the court upheld legislation that as a practical matter created a classification currently limited only to the Harrisburg School District.4 In a reply brief the Students contend that Section 2134 does not apply uniformly even within the School District, and they maintain that DeFazio may not be distinguished and that, unlike in Zogby, there are no codified legislative findings here regarding a pilot program.
On the narrow issue of whether the legislature may establish a formal transition procedure in a first class school district for students returning from juvenile placement or conviction, as distinct from the issue of a right tо hearing before placement elsewhere, the Court concludes that the Legislature did not violate Article III, Section 32. As the briefs indicate, each year the Philadelphia School District receives between 1200 and 1500 students returning from juvenile placement. The sheer numbers of students overall and of returning students justify a legislative conclusion that a formal transition program is reasonable to assess the status of the returning students and to establish transition plans to attempt to enhance their
III. Due Process
Entirely distinct issues are raised, however, in regard to the Students’ claim that they have a right to a hearing to challenge an assignment to some setting other than a regular classroom. The Students assert that except where Section 2134 comes into play, under
First, the Students contend that the trial court erred in holding that Section 2134 does not violate the Due Process Clauses of the United States and Pennsylvania Constitutions. It erroneously characterized the transfer of returning students under Section 2134 as “administrative” rather than “disciplinary” action, although by its own terms Section 2134 provides for placement of students in public or private alternative education programs or institutions created for “disruptive” students. In Everett v. Marcase, 426 F.Supp. 397 (E.D.Pa.1977), where involuntary transfers between regular schools for disciplinary reasons were at issue, the court rejected the School District‘s contention that the matter did not deprive a student of any constitutionally cognizable property right. The court acknowledged that a school district “may for purely administrative purposes, assign pupils from one school to another.” Id., 426 F.Supp. at 400. It stated, however: “An administrative transfer is vastly different from a disciplinary transfer.... The terminology of a ‘disciplinary’ transfer suggests punishment. Even though such transfers may in certain specific instances be for the good of the pupil as well as the transferring school, it nonetheless bears the stigma of punishment.” Id. Moreover, the Supreme Court in Goss v. Lopez, 419 U.S. 565 (1975), held that where a state establishes a free public school system, a pupil may not be suspended from school even temporarily without some form of procedural due process.
The Students maintain that the Due Process Clause is implicated when state action results in stigma. Under the “stigma plus” test from Paul a plaintiff must show (1) some utterance of a statement that is sufficiently derogatory to injure his or her reputation, which is capable of being proved false, and (2) some material and state-imposed burden or alteration of his or her status or of a right. They argue that Section 2134 brands a wide variety of youth, adjudicated for both violent and non-violent offenses, as disruptive and not fit to attеnd regular classes, regardless of whether they actually are. In Goss the Supreme Court noted that even the relatively brief suspensions at issue there could seriously damage the students’ standing with their fellow pupils and teachers “as well as interfere with later opportunities for higher education and employment.” Goss, 419 U.S. at 575, 95 S.Ct. at 736.
The Students renew their argument that Section 2134 creates an irrebuttable presumption that all Philadelphia students returning from juvenile placement must be assigned to a transition center and that certain of these students must be referred to an alternative education setting for disruptive students. Section 2134 relies upon the basic fact of adjudication of delinquency to justify a presumed fact, i.e., that all these students are dangerous or disruptive, with no opportunity to rebut the presumption. Likewise, Section 2134 creates an irrebuttable presumption that all returning students, or at a minimum all subject to the automatic exclusion under Section 2134(c), would be disruptive and dangerous in a regular classroom.6
Finally, they note that under the Pennsylvania Constitution, a citizen‘s interest in reрutation is afforded even higher protection than under the United States Constitution. In R. v. Department of Public Welfare the court held that because reputation is expressly mentioned in Article I, Sections 1 and 11, it is a fundamental interest that may not be abridged without constitutional protections. The Students strongly dispute the trial court‘s conclusion that Section 2134 caused no separate and distinct harm. They reference Nixon v. Department of Public Welfare, 576 Pa. 385, 839 A.2d 277 (2003), and Warren County Human Services v. State Civil Service Commission (Roberts), 844 A.2d 70 (Pa.Cmwlth.), appeal denied, 581 Pa. 687, 863 A.2d 1152 (2004), where the courts
The School District cites the analysis of procedural due process set fоrth in Mathews v. Eldridge, 424 U.S. 319 (1976): courts must consider the private interest affected; the risk of an erroneous deprivation of such an interest; the probable value of additional safeguards; and the government‘s interest, including burdens to it from providing additional procedures. The true crux of the School District‘s argument is the assertion that Section 2134 does not impact a protected right because it is not disciplinary in character. It agrees that school administrators may not label students as disruptive and remove them from regular classrooms without due process, but it contends that the Students’ removal was not by the School District but instead was by the juvenile court. Also the School District and amici maintain that any stigma to the Students’ reputations arose from the fact of their delinquency adjudications. The School District notes the court‘s conclusion reached in R. v. Department of Public Welfare under the Mathews analysis, and it argues that Nixon and Warren County Human Services do not apply because the Students did not raise a substantive due process claim. In any event, the School District asserts that Section 2134 is rational and is related to the constitutional mandate of providing students a free appropriate public education.7
The School District continues to maintain that the United States Supreme Court all but abandoned the irrebuttable presumption doctrine in favor of a rational basis analysis in Weinberger v. Salfi, 422 U.S. 749 (1975). The Presiding Officers argue that Section 2134 does not create an irrebuttable presumption, at least where a student did not commit one of the offenses specified in Section 2134(c), because the School District may return the student to the regular classroom. The School District contends that if Section 2134 affects any rights, it fully comports with due process because the students received complete due process safeguards in the delinquency proceedings. Further, only a minimal interest is involved if there is any deprivation of rights, and the burden on the School District in providing a hearing would outweigh that minimal interest.
Based on its review, the Court in general is persuaded by the Students’ due process arguments. On the pivotal question of whether the assignments to an alternative education setting under Section 2134 are disciplinary or merely administrative in character, the Cоurt observes first that the structure and framework of Section 2134 unquestionably supports the Students’ characterization. As amended, Section 2134 provides that after evaluation in a transition center a returning student may be returned to a regular classroom, unless his or her offense triggers the auto
There is no doubt that placements under Article XIX-C and XIX-E are made to programs specifically designated for “disruptive” students, and nothing in the record supports the School District‘s assertion that Section 2134 students are not intermingled with ones sent there for being disruptive. The School District and others attempt to characterize placements from the transition center as being equivalent to discretionary placements based upon purely administrative concerns. However, they nowhere assert that any students other than those determined to be disruptive following procedures under
The Court finds telling the fact that the trial court, the School District and the Amici, when discussing the rational basis that the legislature had for adopting Section 2134, consistently and repeatedly refer to the need to address the problem of the return of disruptive and violent students from juvenile placement and the legitimate need of the School District to protect the regular classroom environment against disruption. To say in the same breath that the exclusion of these students is not disciplinary is simply untenable. Furthermore, the Court does not agree that the due process afforded in the juvenile adjudication addressed the interests raised here.
In delinquency prоceedings, the juvenile court lacks jurisdiction over the decision on a student‘s school placement upon return. The initial decision on a returning student‘s fitness for the regular classroom is designed to be made at the transition center, and that decision turns on factors that could not be known at the time of the juvenile adjudication. Simply stated, the juvenile proceeding is not adapted to consideration of the matter at issue in this case. Clayton; Soja.
For some students, subject to the automatic exclusion under Section 2134(c), there is no possibility of immediate return to the regular classroom. Under Clayton, these students are subject to an irrebuttable presumption that they are not fit to return. As in Clayton, where a regulation prevented a driver from presenting evidence on the central issue of his medical fitness to drive, Section 2134(c) creates an irrebuttable presumption that certain returning students are not fit for the regular classroom, regardless of whether the student performed in an exemplary manner during juvenile placement or otherwise does not pose a threat to thе regular classroom setting. In Clayton the court found a violation of procedural due process in the failure to provide an opportunity to challenge on the central issue, and the same is true in this case in regard to Section 2134(c). In Goss the Supreme Court explained that the fundamental requirement of due process is the opportunity to be heard in a hearing that is appropriate for the situation presented. Recognizing the difficulties faced by “vast and complex” schools and the need for school officials to maintain order, the Supreme Court nevertheless required that effective notice and some informal hearing be afforded a disciplined student to allow for “a meaningful
IV. Equal Protection
There remains only the Students’ contention that the trial court erred in failing to provide heightened scrutiny to their claim of a violation of the equal protection provision of Article I, Section 26 of the Pennsylvania Constitution. Heightened scrutiny applies where a law affects a fundamental right or discriminates against a suspect class. Petition of Berg, 712 A.2d 340 (Pa.Cmwlth.), aff‘d, 552 Pa. 126, 713 A.2d 1106 (1998). The trial court, they argue, failed to follow R. v. Department of Public Welfare, which held that Pennsylvania regards reputation as a fundamental right. Therefore, it failed to require strict scrutiny. This Court has stated: “Under a strict scrutiny analysis, the burden is on the government to demonstrate that the law is narrowly tailored to achieve a compelling governmental interest.” Petition of Berg, 712 A.2d at 342. The Students contend that Section 2134 cannot withstand strict scrutiny because Pennsylvania can demonstrate no compelling interest in mandating the removal of only Philadelphia adjudicated delinquent youth returning from placement from regular classrooms without any procedural safeguards whatsoever.
The School District posits that Philadelphians or adjudicated delinquents do not make up any suspect classification, and the right to a public education is not a fundamental right but rather a statutory one, which is limited by statutory provisions. Lisa H. v. State Board of Education, 67 Pa.Cmwlth. 350, 447 A.2d 669 (1982), aff‘d, 502 Pa. 613, 467 A.2d 1127 (1983). Further, it notes that the courts have repeatedly upheld the rationality of treating Philadelphia and the Schoоl District differently. See, e.g., Danson. The Presiding Officers adopt the trial court‘s position that Section 2134 classifies by school district; therefore, strict scrutiny is not triggered.
The Court‘s conclusions on the issues discussed above inform the outcome here. As the Court noted in n5 above,
V. Relief
The Court clearly has not concluded that the entire transition scheme established by Section 2134 is unconstitutional. To the contrary, the Court is aware of the principle embodied in Article III, Section 14: “The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public education tо serve the needs of the Commonwealth.” The Court similarly is aware of the seriousness of reintegrating large numbers of students returning from juvenile placements and therefore does not find the transition program to be wholly flawed, particularly with regard to student referral to the transition center for up to four weeks to allow for a plan setting goals and conditions for the students to meet.
In two respects, however, the Court concludes that Section 2134 is un
The informal hearing provided for in
Second, in regard to Section 2134(c), the inflexible prohibition against a return to the regular classroom for students adjudicated delinquent or convicted of specified underlying offenses represents an unconstitutional irrebuttable presumption and violates procedural due process under Clayton. Accordingly, Section 2134(c) is unconstitutional to the extent that it precludes consideration in an informal hearing, if one is requested, of the central issue of whether a student is currently fit to return to the regular classroom after completing the transition center assignment for up to four weeks. Therefore, the Court shall reverse in part the trial court‘s grant of summary judgment to the School District and denial of summary judgment to the Students. The absolute denial of any оpportunity for the Students to challenge their transfer to an alternative education setting violates due process.
Judge COHN JUBELIRER and Judge LEAVITT did not participate in the decision in this case.
ORDER
AND NOW, this 20th day of July, 2005, the order of the Court of Common Pleas of Philadelphia County granting the motion for summary judgment filed by the School District of Philadelphia is affirmed to the extent that it concluded that Section 2134 of the Public School Code of 1949,
Concurring and Dissenting Opinion by Judge SIMPSON.
I agree with the majority‘s resolution of the Students’ special legislation challenge to Section 2134 of thе School Code (Transition Statute). However, I respectfully dissent from the conclusions regarding a denial of procedural due process. For the reasons that follow, I would affirm the grant of summary judgment to the School District of Philadelphia.
First, the named Students2 failed to present a factual basis to prevail because they failed to prove any deprivation whatsoever.
By agreement, the case proceeded to summary judgment without any discovery and without any hearing. Reproduced Record (R.R.) at 3a-4a. Although the School District made an extensive submission in support of its motion, see Supplemental Reproduced Record, the named Students did not. Thus, there is neither testimony nor affidavit from any witness for the named Students, including from the named Students themselves.
At the summary judgment stage, a party may not rest on the pleadings but must identify expected proof.
The Students bear a heavy burden of overcoming the presumed constitutionality of the statute. DeFazio. Their failure to offer any factual support for their claims of deprivation is fatal.3
The Fourteenth Amendment to the United States’ Constitution forbids a State to deprive any person of life, liberty or property without due process of law. Protected interests in property are normally not created by the Constitution. Rather, they are сreated and their dimensions are defined by an independent source such as state statutes or rules entitling the citizen to certain benefits. Goss v. Lopez; see Levine v. Dep‘t of Educ., 79 Pa.Cmwlth. 357, 468 A.2d 1216 (1984) (to be entitled to a due process hearing, one must have suffered the loss of a property or liberty interest, and denial of a promotion to a college professor involved neither).
In Pennsylvania, a student may not be suspended or expelled without a hearing.
The named Students cite no statute or regulation upon which a right to reenter regular class is based. My independent research discloses no source for such a right. In the absence of a property right to reenter regular class after removal by the juvenile court, due process does not attach. Seе Schmader v. Warren County Sch. Dist., 808 A.2d 596 (Pa.Cmwlth.2002) (15-minute disciplinary detention was not exclusion from school rising to constitutional deprivation); Adamek v. Pennsylvania Interscholastic Athletic Ass‘n, Inc., 57 Pa.Cmwlth. 261, 426 A.2d 1206 (1981) (no property right to participation in interscholastic athletics).4
Federal cases do not compel a different result. Thus, in Goss v. Lopez, 419 U.S. at 576, 95 S.Ct. 729, the United States Supreme Court concluded that students’ “total exclusion from the educational process” implicated a property interest in education worthy of due process protection. This protection was extended somewhat by the district court in Everett v. Marcase to a disruptive, involuntary transfer out of a regular class to another location. Neither of those situations is present here. Students are not totally excluded from the education process by the Transition Statute. Also, Students are not removed from a regular class by the Transition Statute. Instead, they are returning to the public school after removal by the juvenile court. See Dallam v. Cumberland Valley Sch. Dist., 391 F.Supp. 358 (M.D.Pa.1975) (property interest in education created by Pennsylvania is true here, where the preexisting adjudication of delinquency and the exceptional disposition to a placement facility create obvious causation questions. Seе Roman v. Appleby, 558 F.Supp. 449 (E.D.Pa.1983) (discussing embarrassment from juvenile court proceedings).
Third, the named Students distort the significance of the predicate disposition by the juvenile court. They argue that the adjudication of delinquency is remote in time and without information pertinent to a return to public school. However, it is not the adjudication of delinquency that is significant here; rather, it is the momentous disposition of removal from the community and commitment to a juvenile facility that is crucial to understanding why the Transition Statute operates reasonably.
In juvenile court proceedings, delinquency adjudication is the functional equivalent of establishment of guilt in adult criminal court. See
Thereafter, the juvenile court makes a decision regarding disposition. This is the functional equivalent of a sentence in adult criminal law. This is usually done with the aid of a comprehensive social study and invеstigation.
Several disposition choices are available to the juvenile court, the most serious of which is removal from the family and commitment to an institution.
determined to be consistent with the protection of the public interest and best suited to the child‘s treatment, supervision, rehabilitation, and welfare, which disposition shall, as appropriate to the individual circumstances of the child‘s case, provide balanced attention to the protection of the community, the imposition of accountability for offenses committed and the development of competencies to enable the child to become a responsible and productive member of the community.
The juvenile court remains involved during the months of residential placement. The juvenile court must review such a placement every six months and shall hold a formal disposition review hearing at least every nine months.
Thus, it is not the adjudication hearing that is most significant in the present context. More important are the subsequent social study and report, disposition hearing, and disposition review hearings. During these stages all relevant, current information about a child, including educational information, is gathered, and determinations of the degree of restriction are made. The named Students fail to acknowledge the ongoing, comprehensive role of the juvenile court in disposition.
In essence, it is the severity of the predicate disposition, usually reserved as a last resort, rather than the fact of adjudication, which explains why the Transition Statute operates reasonably. The Transition Statute only applies to delinquent and criminal students in such extreme circumstances that they must be removed from family, school and community for an extended period. They are fully protected by the court.6 As discussed, there is a rational basis for the Transition Statute to operate in this manner.
For these reasons, I would affirm.
Judge LEADBETTER joins in this dissent.
Notes
(a) General rule. If the child is found to be a delinquent child the court may make any of the following orders of disposition determined to be consistent with the protection of the public interest and best suited to the child‘s treatment, supervision, rehabilitation, and welfare, which disposition shall, as appropriate to the individual circumstances of the child‘s case, provide balanced attention to the protection of the community, the imposition of accountability for offenses committed and the development of competencies to enable the child to become a responsible and productive member of the community:
(1) Any order authorized by section 6351 (relating to disposition of dependent child).
(2) Placing the child on probation under supervision of the probation officer of the court or the court of another state as provided in section 6363 (relating to ordering foreign supervision), under conditions and limitation the court prescribes.
(3) Committing the child to an institution, youth development center, camp, or other facility for delinquent children operated under the direction or supervision of the court or other public authority and approved by the Department of Public Welfare.
(4) If the child is 12 years of age or older, сommitting the child to an institution operated by the Department of Public Welfare.
(5) Ordering payment by the child of reasonable amounts of money as fines, costs, fees or restitution as deemed appropriate....
(6) An order of the terms of probation may include an appropriate fine considering the nature of the act committed or restitution not in excess of actual damages caused by the child....
In selecting from the alternatives set forth in this section, the court shall follow the general principle that the disposition imposed should provide the means through which the provisions of this chapter are executed and enforced consistent with section 6301(b) (relating to purposes) and when confinement is necessary, the court shall impose the minimum amount of confinement that is consistent with the protection of the public and the rehabilitation needs of the child.