41 Pa. Commw. 356 | Pa. Commw. Ct. | 1979
Opinion by
This case is before us because of the inability of the local school district and intermediate unit, on the one hand, and the Department of Education, on the other, to agree on the precise nature of Sharri L.’s mental disability. Their disagreement has placed this child (now 16 years of age) between the Scylla of mental retardation and the Charybdis of brain injury. The situation stems from the fact that those who are responsible for the operation of our educational system apparently feel that before they can solve this problem, they must first find a label for Sharri.
Sharri had been attending the Parkway Day School, a private school for brain injured children, since September, 1969. In 1976, Sharri’s parents requested the local school authorities to find an alternate placement for their daughter as she was approaching secondary school age and the Parkway Day School was relocating to other facilities a considerable distance away from its former location. The Lower Merion School District (School District), with the Montgomery County Intermediate Unit (Intermediate Unit) concurring, determined that Sharri was ‘‘brain injured” and recommended her for placement in the Vanguard School (Vanguard). Vanguard is approved by the Department of Education for the special education of brain injured children.
The School District thereafter forwarded a completed application, together with its favorable recommendation, to the Department of Education (Department) requesting approval of the placement. This application was received by the Division of Special Education (Division) of the Department on September 22, 1976. Following a review of the application, the Division rendered a decision on September 24, 1976, disapproving the recommended placement. Thereafter, on October 8, 1976, the Secretary of Education (Secretary) issued an Order to Show Cause why the placement of Sharri should not be disapproved. Hearings were held on January 13 and January 17, 1977. Subsequently, in an Opinion and Order dated May 20, 1977, the Secretary determined that Sharri was “mentally retarded” and therefore not a
In reviewing the Secretary’s adjudication, we are required to affirm the decision unless a violation of constitutional rights has occurred, an error of law has been committed, or the findings of fact are not supported by substantial evidence. 2 Pa. C.S. §704. Applying this standard to the instant case, our inquiry is limited to whether the Secretary’s determination that Sharri is mentally retarded is supported by substantial evidence.
The Department, in defending this classification, places much, if not sole, reliance on the results of Sharri’s intelligent quotient (IQ) tests. On the WISC verbal scale she attained an IQ of 65. Consequently, it is argued that under the IQ criteria set forth in the General Standards for Special Education Programs and Services for Exceptional Children (Standards), Sharri must be considered retarded.
In light of this conclusion, we have examined the remaining portions of the record to see whether other evidence exists to support the Secretary’s finding. Testifying on behalf of the Department were the program supervisor of the mentally retarded program in its Division of Special Education, and the chief of special education programs and services in its Bureau of Special and Compensatory Education. Nowhere in their testimony, nor in that presented elsewhere in the record, is there an unequivocal statement that Sharri’s disability is definitely a result of mental retardation.
The final question we must consider is whether the School District and Intermediate Unit gave proper consideration to Sharri’s placement in a public school program of special education. The Department’s regu
1. A regular class in a regular school with supporting services.
2. A school district special education program in a regular school, including homebound instruction.
3. A school district special education program in a special facility.
4. An intermediate unit program in a regular school.
5. An intermediate unit program in a special facility.
6. An approved private school program.
7. A State school program.
8. An approved out-of-state program.
The Department argues, therefore, that even assuming Sharri to be brain injured, her assignment to Vanguard was improper since her special education needs could be provided for by the public schools. Again, we are compelled to disagree, based on the facts of this particular case.
There is an abundance of expert testimony suggesting that to place Sharri in a public school program, even if it were supplemented by individualized attention, would be deleterious to her educational, social, and emotional well-being. These experts noted that prior to her placement in Vanguard, Sharri was not attaining her intellectual potential. However, after she began attending Vanguard, a dramatic change in her behavior occurred. Rather than continuing to be withdrawn, anti-social, and unable to understand or cope with her limitations, she began to maintain friendships, involve herself in extra-curricular activities, and deal effectively with her handicaps. They
In conclusion, we hold the Secretary’s finding that Sharri is mentally retarded to be unsupported by subsantial evidence and that her refusal to approve the recommended placement for Sharri at the Vanguard School was improper. Accordingly, we reverse.
Order
And Now, this 23rd day of March, 1979, the order of the Secretary of Education, dated May 20, 1977,
Sections 1371 and 1372 of the Public School Code of 1949 (School Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§13-1371, 13-1372, require that all handicapped school-aged children be provided with an appropriate education. If the local school dis
The Department argues: “By the I.Q. criteria set forth in the Standards, Sharri must be considered to be retarded. Plainly then she does not qualify as a brain injured/learning disabled pupil. The I.Q. scores included in the record constitute substantial evidence and provide sufficient grounds for the Secretary’s rejection of the placement application. The appellant has, however, contested reliance upon I.Q. scores alone as being a proper basis for determining that a child is mentally retarded. . . . Nevertheless, I.Q. scores-are what the cited section of the Standards utilizes for categorizing a child as mentally retarded. I.Q. scores are therefore the proper regulatory criteria.”
The Department’s brief summarizes this evidence as follows: “Thus, it is stated that: Sharri has ‘cognitive limitations’ and measures ‘as a mentally deficient child’ [ft. 279a] ; there are ‘some inherent limitations to the youngster’s cognitive capacity and that her thinking ability tends to be delimited and concrete’ [R. 283a] ; ‘It is clear that her thinking is concrete, that complex thought operations are difficult for her to negotiate and that discriminative and integrative thinking is restricted’ [R. 283a]; she has ‘innate restrictions in regard to capacity for cognitive operations’ [R. 284a]; she has been diagnosed as suffering from an intellectual deficit [R. 285a]; Sharri’s low I.Q. scores are ‘representative of Sharri’s intellectual potenial’, ‘Sharri’s ability to think analytically and synthetically fell within the Mental Defective Range’ . . .; abstract reasoning ‘seems to be beyond Sharri’s grasp at the present time’ [R. 318a]; Sharri suffers from ‘mild mental retardation’ . . . .”
Representative of their opinions was the following statement by Dr. Patricia M. Bricklin who testified: “I don’t see anything in the data that has been available to me that speaks to subaverage general intellectual functioning which originates during the formative years of life. . . . The I.Q. scores in my opinion are not a result of subaverage general intellectual functioning which originates during the formative years of life.”
In this regard, we find the testimony of Dr. Viktoria M. Possoff, Shax*ri’s private psychiatrist, to be particularly persuasive. In a report dated January 7, 1976, Dr. Possoff made the following obsexwations concerning Sharri’s placement at Vanguard:
When arrangements were made for Sharri to attend Vanguard, she viewed this very positively and, in spite of her fear of new situations, felt optimistic about the change.
Since Sharri has been at Vanguard, there has been progressive improvement. In our sessions now, I see a cheerful hopeful young girl who talks about her friends and her extra-curricular activities; explores her feelings and ways to improve interpersonal relationship; and, for the first time, is beginning to xxnderstaixd and deal with her limitations. . . .
This social and emotional growth that Sharri is making is new and far from solidified. It is very much dependent on environmental conditions. At Vanguard, Sharri has found an environment uniquely suited to her needs in the makeup of the school population and the types of activities available. Most certainly, if Sharri is involuntarily transferred from Vanguard to a class for mentally retarded children at another school, she again will withdraw, isolate herself and regress. (Emphasis added.)
Dr. Karl Menninger, world-renowned as an expert in the field of psychiatry, has cautioned against the possible harmful effects that pedantic labeling has had on those afflicted by mental illness:
In the early part of the century the object of psychiatry was primarily to identify and distinguish the forms and evidences of mental illness. ... We dutifully employed historic designation and historic conception associated with them. . . . Our concern now is not so much what to call something as what to do about it.
. . . The object of the process of diagnostication ... is ... to provide a sound basis for formulating a treatment program, a planned ameliorative intervention.
For this process current nosologies and diagnostic nomenclature are not only useless but restrictive and obstructive. This does not mean the discarding of useful terminology or syndrome appellations.
The pragmatic point in the whole matter hinges upon the effect that labeling is apt to have upon those who might bring about improvement in the patient were they not deterred by the implications of the label. This means not only the physicians but his relatives and friends, the community at large, and even the patient himself.
. . . Diagnosis must examine and identify and describe the nature and course of the illness in such a way that effective treatment can be instituted. (Emphasis in original.)
Menninger, The Vital Balance, 2, 33, 46, 48 (1963).