Chapter 8: Meaningful Provisions in Consent Decree

18:08:59:07 - LS: We'll start again by talking about the Consent Decree, I'm wondering what you think some of the more meaningful, or most meaningful provisions are in the consent decree?

TG: Well, the most important words, of course are at the start. It is the injunction to the school districts, uh, to provide a free, to provide access to a free education appropriate to the capabilities of each child, to every child with retardation - those days we just said retarded child., in Pennsylvania. Those provisions were tracked, as were most of the provisions of the order directly into public law 94142 the Education for All Handicapped Children Act of 1975, now know as IDEA. Um, the second provision was very important, was the statement in the orders of a preference for educating uh, retarded children with children who were not retarded. And it was, it was stated in terms of there's a preference for the placement of the child in regular education over special education and in regular education or even special education over institutional education or what have you. And that gave rise to what is miscalled in the popular parlance, unfortunately, the least restrictive alternative requirement of 94142 the Education for All Handicapped Children Act. In fact, what that provision says in the Act and the language of the orders in the PARC case were suggestive of it was that children with disabilities shall be educated to the maximum extent appropriate with children who are not disabled. And if you pause for a minute and try to get the single phrase that would sum that up it would be integration! Not least restrictive environment. Least restrictive environment came from that run of cases that was about improving the institution and it came from a longer tradition of free speech cases where when you were doing anything that touched on free speech, you had to choose the way of doing it that was least restrictive of free speech. It was not from the quality side of the Constitution, but from the due process side of the Constitution. And in my experience and observation, has caused an enormous lot of trouble, that phrase, because everybody and the school districts like to play games with this as long as they can, least restrictive of what? And we each of different things and the time spent in, anyway, but everybody knows what integration is. Anyway, that was the second most important provision and the third, third most important third and fourth most important were those where the orders required that families and children should be given the opportunity to be heard if they were not satisfied with the nature and the quality of the education, the content of the education and the means of the education which the school district was providing. Uh, that's been very important. And the fourth was a provision for the Commonwealth plan for the education and training, and the commonwealth plan for the location, identification and enrollment of all children and those plans which became Orders of the Court and ultimately included the requirement of consultation be the Department in putting those plans together, this was in the Court's orders, and the a consultation be the school districts at the local level with task forces of families and people with disability. Um, and that, thereby, in addition to the due process forums we had the consultation forums which have been used by generations of parents since, um, to drive home their rights and make them real and to give them the content necessary to bring them to life in any particular child's experience. 18:14:40:12

18:14:40:15 - 18:16:48:23 LS: Tom, as we had discussed earlier, many of the parents involved with PARC were worried about suing the Commonwealth. I was wondering what the Commonwealth's response was to the Consent Decree?

TG: Uh, they, the Commonwealth embraced it, um, warmly. Um , it was common in those days in state departments of state bureaucracies, I use that word bureaucracy as a word of celebration and approval as it was when Faber first used it. And the genius of a bureaucracy was that it was designed to focus on the purpose of the law and never to vary, to keep one's eye always on the purpose and in whatever different circumstances arise to pursue it. Well, it used to be very common for state departments to be manned by people who believed in the purposes of the Department, both the education departments and the public welfare departments. Indeed, in the days since the Civil Rights Movement, and the Disability Movement, and the Women's Movement, some people have chosen to become lawyers because of the opportunity it represents, to do things that are good for and with people. IN the old days people. In the '40's for example, and the '50's, people would go into state bureaucracies to pursue those purposes. And so both ion the Department of Public Welfare, which had responsibility for such education as went on in institutions, and in the Department of Ed- later was all given to the Department of Education so that it would be run generically, And in the Department of Education there were people who were in the same mind as the Plaintiffs, and who were delighted to do it.

18:16:49:00 - 18:17:36:11 LS: Was there a Right to Education Office established at this time?

TG: Yes, Yes, it was established under the Decree. There were two Masters appointed as well. One was Dennis Haggerty, of PARC fame, and the other was Professor Goldstein [Herbert Goldstein, EdD], from Yeshiva University in New York. Um, and the state task force met regularly with the leadership of the Department of Education on the Right to Education and the Right to Education Office carried the particular responsibility for all of the state officials who had been defendants to implement it.