OPINION OF THE COURT
ADAMS, Circuit Judge.
In recent years, increasing attention has been focused upon the educational needs of
After certifying the suit as a class action, the trial court declined to abstain, determined that the District had failed to meet its obligations under state law and decided that in order for the District to fulfill its responsibilities it would have to identify all learning disabled students in its educational system.
I. THE BACKGROUND
Since Judge Newcomer's opinion on the merits
Knowledge of the etiology and nature of specific learning disabilities is still in an embryonic state.
Authorities appear to agree that learning disabilities constitute disorders in basic psychological processes that inhibit victims from understanding, assimilating, interpreting or retaining language and other concepts in a normal manner. Though learning disabled students often have the basic capability for normal intelligence, their disabilities ordinarily prevent them from benefiting from regular instruction and from achieving their true potential. As a result, learning disabled students frequently experience substantial frustration, and such reaction is manifested in emotional disturbances and socially disruptive conduct.
While the exact causes of learning disabilities have not, as of yet, been pinpointed, medical testing has led experts to believe that brain injury, either at birth or during early childhood, is a major factor. Also, there is data indicating that the nationwide incidence of learning disability is between one and three per cent of the population.
It appears that experts agree that with the provision of special remedial services, learning disabled students can have a beneficial educational experience. The programs that are necessary to achieve this end depend on the severity of a pupil's disability. Those with the most serious disorders will need separate classes or other forms of special attention. On the other hand, students with less drastic problems can benefit from instruction in regular classrooms so long as supplemental supportive services are available. This latter approach is generally referred to as "mainstreaming."
Instruments for identifying learning disabled students are still in a developmental
It has been estimated that three per cent of the students in the District—approximately 8000 children—suffer from specific learning disabilities.
At the present time, the District furnishes several varieties of remedial education for learning disabled students. First, certain special educational services are available to those learning disabled students who, pursuant to Pennsylvania statutes, have been identified as "exceptional."
The District also offers a number of general remedial services to "under-achievers,"
Some efforts have been made by the District to increase the scope of available remedial programs. Then, in 1975, the District
The problem of learning disabled children has been addressed by the Commonwealth through both statutes and regulations. Pennsylvania's Public School Code makes special provision for the education of "exceptional children."
A series of duties are imposed on various governmental entities by the Code. Local school authorities must "report . . . every exceptional child" within the district.
In 1975, the Commonwealth issued regulations to effectuate this statutory framework.
II. THE PROCEEDINGS BELOW
This suit was filed in January, 1974, and was certified as a class action in May of that year. The class is composed of "all children attending public schools within the City of Philadelphia who have `specific learning disabilities' and who are deprived of an education appropriate to their specialized needs." In July of 1974, the trial court granted a motion by the Commonwealth to intervene as a defendant.
After extensive discovery had been conducted, trial was scheduled for September, 1975. On September 15, 1975, a week and one-half before the trial was due to commence, the Commonwealth filed a motion requesting that the district court dismiss the action or in the alternative to postpone an adjudication of the controversy pursuant to the abstention doctrine.
In January, 1976, Judge Newcomer denied the Commonwealth's motions.
The district court rendered its decision on August 2, 1976.
There were several components to the state law holding. First, Judge Newcomer determined that, under Pennsylvania law, learning disabled children are entitled to an "appropriate" or "proper" education. He then ruled that the District had not met this responsibility,
The opinion of the trial court did not provide for immediate relief; instead, after further proceedings were held, Judge Newcomer issued Remedial Order Number 1 on August 13, 1976. This directive is only the first step in the process of crafting a remedy. It provides that a master be appointed to oversee and monitor the implementation of the court-ordered relief. The District was commanded to submit a plan to the Master by October 15, 1976, ". . . which is reasonably calculated to identify all of its learning disabled pupils." This identification arrangement was to be put into effect immediately after its final approval.
Judge Newcomer's order also mandated the eventual submission of interim and final plans for "the appropriate placement of all students identified as learning disabled." In addition, it directed that the final plan go into effect by the beginning of the 1978-79 school year.
After careful consideration of all the contentions raised by the parties, we have concluded that (a) appellate jurisdiction is present; (b) the district court did not abuse its discretion by declining to abstain; and (c) the order requiring the District to submit a plan for identifying all learning disabled students in the system should be affirmed.
III. APPELLATE JURISDICTION
The only jurisdictional basis that has been urged upon the Court is 28 U.S.C. § 1292(a)(1), which confers upon the courts of appeals the power to review "interlocutory orders of the District Courts . . . granting . . . injunctions . . .." But it has been argued by the plaintiffs that Remedial Order Number 1 cannot properly be classified as an injunction, and that it therefore is not an appealable order.
Plaintiffs concede that the order before us resembles, on its face, a mandatory injunction since it requires the District to submit and ultimately implement a program for identification of learning disabled students, as well as to present and eventually put into force plans for the proper education of these pupils. Nonetheless, they maintain that the order lacks the element of irreparable harm to the losing party that characterizes appealable injunctive decrees. This is so, they reason, since the only action that is immediately required is the submission of plans—particularly the identification plan. And before any arrangement would go into effect it would have to be approved by the district court. In sum plaintiffs maintain that only after the trial judge has approved the specific plans will an appeal be timely.
The principal buttress of the plaintiffs' argument is the opinion of the Second Circuit in Taylor v. Board of Education,
In an opinion by Judge Friendly, the Second Circuit dismissed the appeal, stating that it had "no power to entertain the Board's appeal until the District Court has finished its work by directing the Board to take or refrain from action."
The District has responded to the plaintiffs' contention by urging that the situation before us is distinguishable from the one which confronted the Taylor Court. It notes, in particular, that the Second Circuit interpreted the order in Taylor as a mere request to submit a plan, whereas Judge Newcomer's decree can be interpreted only as an unequivocal command to produce a plan. Indeed, the District asserts that Judge Newcomer's remedial order should be construed as mandating identification of learning disabled students, while simultaneously deferring implementation of the order. Finally, the District contends that the specifics of the identification plan that is ultimately adopted will add nothing to this Court's perception of the issues, since the District has maintained from the beginning that it is not required to identify all learning disabled students.
In support of its position, the District has cited Board of Public Instruction v. Braxton,
Writing for the Fifth Circuit,
We recognize that decisions regarding appellate jurisdiction are of great significance to the smooth functioning of our judicial system, and that the importance of underlying substantive issues should in no way alter our determination as to appealability.
Taylor, in our view, is not at odds with our decision. Unlike the situation in that case, delaying the day for appellate review here will not clarify the questions on appeal. In Taylor the exact desegregation plans offered by the school board and ultimately to be adopted by the school district had the potential to alter in a material manner the issues that would be presented to the court of appeals. The determination that desegregation was necessary and that a remedial plan must be submitted provided
The precise ingredients of the plan for identification of learning disabled students will have no such metamorphosizing effect on our understanding of this case. Judge Newcomer has clearly ordered that all learning disabled children be identified. Identification, unlike desegregation, knows no degrees. The precise plan ultimately adopted will determine how identification is accomplished, but the nature of the plan cannot affect the extent to which identification is done. Because deferring review will not alter the appellate perspective, it would appear to us that the present appeal is not premature.
Moreover, we believe that postponing appellate review in this case would subject the District to serious harm. This is so since compliance with Judge Newcomer's order regarding the identification plan will require it to become enmeshed in a remedial regime which the District asserts it should not be caught up in. Much time and effort will be needed to devise an identification program, and an immediate decision might obviate the need for such activity. We thus hold that Remedial Order Number 1, insofar as it requires the School District to submit a plan to identify all learning disabled students, is an injunctive order appealable under 28 U.S.C. § 1292(a)(1).
The defendants maintain, on appeal, that the facts of this case are such that Judge Newcomer was required to have abstained from rendering a decision in order to permit the state courts to pass upon the state law issues contained in plaintiffs' complaint. We are unable to accept this proposition.
In a line of cases beginning with Railroad Commission of Texas v. Pullman Co.,
Invocation of the Pullman doctrine, the cases have also recognized, often entails
The District and the Commonwealth assert that the present case contains all of the elements that are prerequisite to abstention. A difficult federal constitutional question—whether all students are entitled to a minimally appropriate education—has been posed. But the litigation also involves a state law issue, and the resolution of such issue possibly could avoid the necessity of a decision on the federal constitutional question. This is so, the defendants urge, since a determination that state law directs that the plaintiffs be provided with an adequate education and that the District has defaulted upon its obligations would obviate the constitutional problem.
Moreover, the defendants claim that the relevant state law is unclear on its face. They assert that there is a dispute over precisely which students the District is required to identify in order to be in conformity with state law. Judge Newcomer accepted plaintiffs' claim that all learning disabled children must be identified, whereas the defendants maintain that only those learning disabled pupils who are "exceptional" need be identified. And they insist that while the statutes and regulations unambiguously provide that "exceptional children" must receive a "proper" or "appropriate" education, it is not at all clear what constitutes such an education.
The defendants thus submit that Judge Newcomer should have abstained in order to give the state courts an opportunity to resolve these difficult state law issues. This path, according to them, would have been particularly suitable for two reasons: first, there are no state court decisions interpreting the statutes and regulations; and second, because these enactments are of state-wide applicability, an erroneous interpretation would have serious ramifications on educational programs throughout the Commonwealth.
To fortify this argument, the defendants have called our attention to Reid v. Board of Education,
Abstention was appropriate in that case, the Second Circuit agreed, noting that the New York provisions that were involved were "sensitive and complex" and not clear.
At the outset of our abstention analysis, we must take cognizance of the fact that the litigation at hand does not present an "orthodox" abstention situation. In a recent decision, the Supreme Court described Pullman cases as those where "a federal constitutional claim is premised" on an unclear state law issue.
Nonetheless, we believe that the facts of this case place it within the general ambit of Pullman. The constitutional issue is accompanied by a pendent state law claim. And even though the two problems are not inextricably intertwined, resolution of the state law claim might make it unnecessary to confront the federal constitutional question. Further, an incorrect interpretation of state law might arguably interfere with important state policies.
In considering whether the trial court should have abstained, we must assess the level of clarity of the state materials. This is a difficult task since, as commentators have noted, the Supreme Court has not fully illuminated the question of the degree of ambiguity that makes abstention appropriate.
Although they are not completely free from ambiguity, the statutes and regulations appear to us to establish a fairly straight-forward educational scheme: local school districts must provide those students who, for a variety of internal or environmental reasons, cannot benefit from an ordinary educational regimen with remedial educational services designed to help them overcome their handicaps. This is not to say that no problems will arise in the course of implementing this general command. But it does suggest that abstention was not a compulsory step, particularly at this stage of the proceedings.
Even granting that there is some ambiguity in the state enactments, we believe that other factors rendered the district court's decision not to abstain an act that was within its discretion. In particular, we must take into account two factors: (a) the motion for abstention was made more than one year after the complaint was filed, and (b) for the trial court to have withdrawn from adjudication would have caused an extended delay in the ultimate disposition of this litigation. The Supreme Court has stated on several occasions that the possibility of substantial retardation in the progress of a lawsuit and consequent prejudice to the rights of plaintiffs are considerations indicating that abstention is not called for in a particular situation.
The opinion of the Second Circuit in Reid does not, in our view, conflict with the decision reached here. Reid came to the Second Circuit in a posture that was markedly different from that of the present litigation. There, the district court had found that abstention was an appropriate response, one that the Court of Appeals could not deem erroneous. Certainly, if Judge Newcomer had decided to abstain in the case before him, the question for review would be considerably altered. However, he elected not to abstain, and our task is to determine only whether such action constituted an abuse of discretion.
Additionally, the Second Circuit noted in Reid that an expeditious resolution of the relevant state law problems was likely since lawsuits addressing those questions were already pending in state court. That would certainly minimize the possibility that abstention would significantly prejudice the rights of the plaintiffs. Here, however, no such lawsuits are pending, and there appear to be no factors that would reduce the probability that abstention could lead to harm to members of the plaintiff class.
We conclude, therefore, that it was not an abuse of discretion for the district court to decline to abstain at this time. The importance of the fact that we have been presented with a decision declining to abstain should be emphasized. Judge Newcomer has left open the possibility that he might reconsider the abstention question if further proceedings, particularly those concerning the educational services that the District may have to provide to members of the plaintiff class, tendered difficult and sensitive questions of state law.
V. IDENTIFICATION OF STUDENTS
We now turn to the remaining issue, namely, whether Judge Newcomer erred in requiring the District to identify all learning disabled students in the system.
The District maintains that such an order goes beyond the Pennsylvania statutory mandate. Under Pennsylvania law, only "exceptional" children are entitled to special educational services.
In reply, the plaintiffs have put forward a series of contentions to support Judge Newcomer's conclusion. They urge, first, that the state regulations indicate that all learning disabled students are to be considered
The plaintiffs also propose a more functional argument. They note that a large proportion of the learning disabled students in the Philadelphia public school system are presently unidentified. If such students were identified, it might be ascertained that some of them are not in need of special education. However, the plaintiffs add, the only means by which it can be determined which learning disabled children are "exceptional," and thus entitled under state law to special services, is to identify the entire population of learning disabled children, to assess the severity of the disability of each of them, and thereby to determine whether they are in need of special education.
We find this latter proposition to be persuasive. Identification is a means to the end of assuring that those children who are entitled to special educational services receive them. The District's present identification methods, as Judge Newcomer found, are somewhat haphazard and ineffective.
It is important to emphasize those matters upon which we express no opinion. We do not rule upon the content of the education that Pennsylvania law requires the District to provide to its "exceptional" children. Nor do we address the problem of precisely which students must be given an "appropriate" education under the relevant statutes and regulations. We hold only that Judge Newcomer did not err in ordering that the District, in order to meet its statutory obligations towards "exceptional" children, must initially identify and evaluate all learning disabled students.
The order of the district court insofar as it mandates the identification of all learning disabled students in the District will be affirmed.
This definition is also included in the Education of the Handicapped Act, 20 U.S.C. § 1401(15).
The regulations define an appropriate program as "a program of education or training for exceptional school-aged persons which meets their individual needs as agreed to by a parent, school district or intermediate unit personnel; or as ordered by a hearing officer; or upon appeal as ordered by the Secretary of Education." Id. § 13.1.
Judge Newcomer also rejected the mootness contention. This point has not been pressed on appeal and we cannot say that the district court erred in reaching its conclusion.
Additionally, Judge Newcomer concluded that the District had violated its duty to provide special educational services in accordance with an approved plan. Id. at 972.
Since we are deferring review of these problems, consideration of another of the District's contentions—that Judge Newcomer erred by not ordering the Commonwealth to provide funding for the expanded services that his opinion might ultimately require— would also seem inappropriate at this time. This is so since the issue will be in concrete form only after appellate consideration of all of Judge Newcomer's conclusions of law and after the precise educational program that may be required is approved.