67 Pa. Commw. 350 | Pa. Commw. Ct. | 1982
Opinion by
The plaintiffs in this case are two elementary school students in the Bensalem Township, Bucks County School District (School District) who were evaluated but not selected to participate in the special education program for “gifted and talented school-
The plaintiffs ground their plea for equitable relief upon an asserted constitutionally guaranteed fundamental property right to a free public education appropriate to their needs which they contend has been directly affected and impaired by enactment and
It is true, of course, that a state may create a legitimate claim of entitlement to a public education, even though not constitutionally obliged even to establish and maintain a public school system, and that once it has chosen to do so and has required its children to attend, it has then extended a right to education to its students, and has thereby established a property interest in education which is subject to the protection of the Fourteenth Amendment to the Federal Constitution. Goss v. Lopez, 419 U.S. 565 (1975). And Article III, Section 14 of the Pennsylvania Constitution
*356 The General Assembly shall provide for the maintenance and support of a thorough and .efficient system of public education to serve the needs of the Commonwealth. (Emphasis added.)
This mandate of our state constitution, however, does not confer an individual right upon each student to a particular level or quality of education but, instead, imposes a constitutional duty upon the legislature to provide for the maintenance of a thorough and efficient system of public schools throughout the Commonwealth. Danson v. Casey, 484 Pa. 415, 399 A.2d 360 (1979). This Court has previously recognized that the right to a public education in Pennsylvania is not a fundamental right but rather, a statutory one and that as such, it limited by statutory provisions. O’Leary v. Wisecup, 26 Pa. Commonwealth Ct. 538, 364 A.2d 770 (1976). And, it is well-recognized that:
In considering laws relating to the public school system [enacted pursuant to the mandate of the Pennsylvania Constitution], courts will not inquire into the reason, wisdom, or expediency of the legislative policy with regard to education, but whether the legislation has a reasonable relation to the purpose expressed in Article X, Section 1 [the predecessor provision of Article III, section 14], and whether the fruits and effects of such legislation impinge the Article by circumscribing it, or abridging its exercise by future legislatures within the field of “a thorough and efficient system of public schools.”
Danson v. Casey, 484 Pa. at 426, 399 A.2d at 366 (quoting Teachers’ Tenure Act Cases, 329 Pa. 213, 224, 197 A. 344, 352 (1938)). Under our statutory scheme, a school district is not required to devise an educational program which makes the best use of each student’s
The defendants also object that the plaintiffs lack standing to sue in this matter. Standing requires an aggrieved party, and .one “who is not adversely affected in any way by the matter which he seeks to challenge is not ‘aggrieved’ thereby and has no standing to obtain a judicial resolution of his challenge.” William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 280 (1975). The plaintiffs, as persons denied admission to the gifted and talented program because of their failure, upon evalu
The defendants further object that the plaintiffs have an adequate remedy at law and have failed to exhaust their administrative remedies. The plaintiffs allege that, after having been evaluated and not accepted for the gifted program, they were not afforded due process notice of that action. The Regulations, however, set forth the due process procedures to be followed with regard to all exceptional or thought-to-be exceptional school-aged children, with Section 13.32 (1) of the Regulations, 22 Pa. Code §13.32(1), providing, in the event the school district initiates the due process procedure, that:
When any exceptional or thought to be exceptional school-aged person is recommended for a change in educational status by a school district, intermediate unit, or any school official, notice of the proposed action shall first be given to the person and the parent. If the parent desires, the parent may, in writing, indicate satisfaction with the recommendation and waive the parent conference.
The school, therefore, is required to give notice to the student and the parent only when it is proposing a change in the student’s educational status, and the section does not apply to the plaintiffs because they
The Regulations also make specific provision for parent-initiated due process opportunities for all exceptional and thought-to-be exceptional students, including those who have never had a special educational assignment. Section 13.31(b) of the Regulations, 22Pa. Code §13.31 (b), provides that:
(b) The parent of any school-aged person shall, upon presentation to the school district of written evidence that their child is an exceptional or thought to be exceptional person, and receiving less than an appropriate program of education or training, have the right to request due process procedures.
Section 13.33 of the Regulations, 22 Pa. Code §13.33, makes specific provision for parent-initiated due process procedures :
*360 (1) Any parent who believes their school-aged person is any of the following:
(ii) An exceptional person classified as nonexceptional.
(iv) Receiving less than an appropriate program of education and training, or both. The parent may forward to the school district written evidence which supports the contentions of the parent.
(2) Upon receipt of the documents required by paragraph (1) of this section, the school district superintendent shall initiate, within ten days, a program placement conference. (Emphasis added.)
Obdeb
And Now, this 8th day of July, 1982, the remaining preliminary objections of the defendants in the above-captioned matter are sustained and the ease is hereby dismissed.
The State Board of Education, Department of Education, Bensalem School District and School Board, Bucks County Intermediate Unit No. 22 (I.U. No. 22) and various officers and employees thereof.
Section 13.1 (ii) of the Regulations, 22 Pa. Code §13.1 (ii), defines gifted and talented school-aged persons as:
Those who, in accordance with criteria prescribed in standards developed by the Secretary of Education, have outstanding intellectual or creative ability, the development of which requires special activities or services not ordinarily provided to regular children by local educational agencies.
22 Pa. Code §§13.21, 13.22, 13.23, 13.31, 13.32, 13.33, 341.1 (iv) and 341.1 (x).
The objections considered in onr unrepor.ted opinion of July 16, 1981 were overruled with the exception of that of I.U. No. 22 and George Raab, its director, that this Court lacked in personam jurisdiction over them because of improper service upon them and the defendants’ motion to strike the petitioners’ request for attorney’s fees. I.TT. No. 22 and Raab were subsequently properly served and are, therefore, present parties to this action.
Pa. Const, art. Ill, §14.
The plaintiffs’ argument that, absent a statutory mandate to do so, the State Board and the Department of Education usurped the power of the legislature by expanding the definition of “exceptional children” to include “gifted and .talented school-aged persons,” Section 13.1 (ii) of the Code, 22 Pa. Code §13.1 (ii), is without merit. Section 1371(1) of the Public School Code of 1949 (School Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §13-1371(1), provides in pertinent part:
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. . . .
The definition of “gifted and talented school-aged persons” stated in Section 13.1 (ii) of the Code identifies children who deviate from the norm mentally and creatively and, as such, fall well within the parameters of the legislative definition of “exceptional children.” It should be borne in mind that if a regulation of an administrative agency is consistent with the statute under which it is promulgated, the agency’s interpretation of that regulation is entitled to controlling weight except where the interpretation is clearly erroneous or inconsistent with the regulation. Barr v. Department of Public Welfare, Pa. Commonwealth Ct. , 435 A.2d 678 (1981). (Emphasis added.) The legislature specifically recognized and placed its imprimatur upon the program by its 1977 amendment of Section 13-1372(3) of the School Code, 24 P.S. §13-1372(3), which provides, inter alia, that “the institution of special classes and programs at the secondary level for exceptional children who are gifted and talented students may be deferred until September 1978. . . .” (Emphasis added.)