Chapter Two: Education Law Center, Catherine D vs. Pittenger, Armstrong vs. Kline

Lisa: But you said you didn’t know anything but obviously somebody thought you knew something because the folks at the Education Law Center, um, I believe recruited you to work for them.  And I wondered if you could tell me a little bit how, about how it was that you came to work at the Education Law Center and when it is that you started?

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Janet: Well, I started in late 1976 and at that point I had arisen to be, if you want to call it risen, to be the Managing Attorney of the West Philadelphia office, which was in a time of vast expansion.  So at that point I had approximately 45 staff members in my office, attorneys, paralegals, um, support staff and so it was a huge management job and I was, at that point, seven years out of law school and I had never had a trial, I had relatively little legal experience but I had all of this administrative and managerial responsibility because I was still the most, one of the most senior people in the program at this point.  No one in their right mind would now put someone with my level experience in a job like that but it was what you did cause it was who, it was, they were the times.  So I felt very strongly that, much as I loved my work and my colleagues, I needed a job in the social justice arena where I could be of use but where I could really grow as an attorney and do some of the legal work I had been trained to do as opposed to being sort of stuck in a management box primarily for the rest of my career. 

So I was looking for work that seemed exciting and the job of the managing attorney for the Education Law Center, which was just opening in the Philadelphia area, I think it had been around for about 12 months, the principal office was in New Jersey was opening, there was an add and so I showed up to interview for it, still quite confused about whether I really wanted to leave but feeling that it was worth exploring and one of the curious stories is I went to that interview, then went back to my office to work 80 hours a week, forgot all about it and then I got a phone called from the Director who worked out of the New Jersey office saying I’ve been to the board, we’re prepared to offer you the job.  I’d forgotten his name, I’d forgotten, I had heard nothing in this interval of time so I had basically forgotten about the whole thing.  He said, so can you come?  And so I had to, at that point, confront what I hadn’t actually emotionally confronted which is did I really want to leave, um, and was this my next job.  And I was very fortunate, actually, that I made the decision to come cause it was a good choice and it has, it has been where I have been for the next 35 years of my career.

Lisa: Thank you.  So Janet, when you joined the Education Law Center the education system for kids was already or for kids with disabilities in the process of reform, the Right to Education had passed, um, at least in Pennsylvania the right to education was fallowed a few years later by IDEA, um.  Can you just tell us a little bit about the significance of those pieces of legislation and maybe what IDEA did that the Right to Education did not do?

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Janet: Well, as you mentioned the extraordinarily important case of PARC vs. Commonwealth of Pennsylvania on behalf of children with intellectual disabilities had been litigated and then eventually settled and the schools, the public schools of the Commonwealth, which had been closed in many respects to kids with individual, intellectual disabilities were open. A big deal!

One of the two cases in the country that were the foundation for the Federal Law which is now known as the Individuals with Disabilities Education Act (IDEA) which was passed in 1975 and went into effect in 1977.  So in many ways the IDEA, then called the Education for the Handicapped Act, uh, codified and nationalized what PARC had accomplished here for Pennsylvania.  But it’s interesting to note that PARC was on behalf of a class of children then called children with retardation, mental retardation, now called intellectual disabilities, but did not include in the class children with other kinds of disabilities who also needed special education services. 

It was the Education Law Center in the very first year, even before I got there, that brought the case called Catherine D vs. Pittenger, which was then settled, in which expanded, um, the PARC remedy to all children with other disabilities who needed special ed.  So my office was engaged in the struggle to get children with special needs into special education from the very get go.  So when I arrived it was a very natural thing for me to pick up and to expand on that work.  Um, the IDEA, as I say, was a new law.  It was passed just before I got there but it went into effect just after I got to the Education Law Center so our first major case, my first major case at the Education Law Center, a case called Armstrong vs. Kline, was one of the first cases filed under the, under the IDEA, the Education for the Handicapped Act, um, and so they were very exciting times for lawyers in this area because we had all these new laws to work with and it was sort of on the shoulders of the attorneys at the Education Law Center and throughout the nation to make sure that the IDEA really fulfilled its promise for all kids with disabilities.

Lisa:  Thank you.  Then we can stop for one minute. 

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Lisa: Janet, you were just talking about the Catherine D. case, I wonder if there were any other foundational cases to the IDEA?

Janet: Well, here in Pennsylvania, again, um, because we needed to expand the PARC remedy to other, children with other kinds of disabilities there was an important case filed, not by me because it was before I got to the Education Law Center although my office was involved with it, and the Community Legal Services, on behalf of adolescent students with specific learning disabilities in the Philadelphia School District.  And this, also, was a case filed on state law claims and with Constitutional claims because the IDEA didn’t yet exist so it couldn’t be under federal law.  And Judge Newcomer, who ended up with a number of important early cases including Armstrong vs. Kline which I mentioned, was the presiding judge and he found that there were roughly three thousand children with specific learning disabilities in the Philadelphia School District of whom only about 13 hundred had been identified.  There were programs for young kids with specific learning disabilities under grade five but for five, six and then for grade seven there were few if any programs to meet those children’s needs and the plaintiffs wanted to make sure that all of these children were identified, evaluated and given special services.  Uh, the, it was admitted that were no programs for the older group and actually one of the complicating factors was that since PARC had resulted in court enforceable mandates a lot of the energy of the State in these early years was focusing on children with intellectual disabilities and the resources and attention were focused there.  So the roll out of programs for children with other disabilities was sort of taking second place. 

This case helped precipitate not only thousands of children with specific learning disabilities getting the programs they needed but also sort of redirected the Department [of Education], which was also a defendant, that it couldn’t neglect children with other kinds of disabilities as it did that roll out.  So it was important for, as I said, for thousands of kids in Philly but I think it also helped statewide expand the Special Ed entitlement to all kids who needed them.

Lisa: Janet, we were just talking about the Fredrick L. case and that case focused on students with learning disabilities.  You had a personal interest in that subject area, I believe.

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Janet: I did.  My older sister, um, was severely dyslexic and did not learn to read until she was in fifth or sixth grade although she was exceptionally bright. But people at that point, the discipline didn’t really know what children with specific learning disabilities were, really was essentially not acknowledged, it was too new and my mother went here, to Temple, to Temple Reading Lab to learn how to teach my sister because there were no programs in the public schools that could do that.  And so the idea that children and older children with specific learning disabilities would be identified, acknowledged to have special needs, and to get the services they need was personally important to me as well as professionally important and of course important to all other similarly situated families.

Lisa: The cases that you described certainly underscored some gaps in the system, so gaps, perhaps, in IDEA. Another gap in the system, perhaps, was the refusal of most school districts to extend education beyond the normal school year and I’m curious, why, why would some children need more than what the school district would offer from September through June?

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Janet: Well, that question was the key question in the case I mentioned, Armstrong vs. Kline.  Were there children who needed more than the traditional 180 days?  What did they look like?  How did they differ from kids who didn’t have disabilities?  And how did they differ from other kids with disabilities who could learn sufficiently within the 180 period? 

And the first trial I ever had was the Armstrong vs. Kline case and because it was so early in the life of the IDEA it was one of the first cases filed on any issue under the IDEA, everything was new, everything was exciting and everything was difficult.  And this was an especially difficult case to start interpreting the IDEA because it turned out that there was absolutely no empirical research, no one had explored this question of extended, what came to be known as Extended School Year or ESY programs.  And we became involved because we were approached by families who felt that their children could not make sufficient progress without this kind of programing and it fell to us to create a factual record that explained to the judge, as I mentioned Judge Newcomer, who these children were, why they needed this kind of programing, why interruptions in their programming for summer or some instances for even less time caused what we called regression or loss of important skills and why it was that, uh, that unless these learning characteristics were taken into account they would never achieve the reasonable goals they could otherwise achieve, which for our plaintiffs were, um, avoiding institutionalization, remaining with their families and living independently in their community. 

These were achievable goals for our plaintiffs but not if their programming was limited to 180 days.  So we had to prove that through their teachers, through experts and others who recounted to the judge their experience helped describe who these kids were and persuaded the court that we were correct and the State was wrong - that there were these children and that their needs could not be met within the 180 day school year.

Lisa: Tell us about Gary Armstrong and what it was, um, that he needed and how he needed to be served.

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Janet: Gary Armstrong whose parents, John and Patricia Armstrong, were just the most splendid people, as many of the parents are that I’ve worked with over the years, but Patricia Armstrong, who has outlived her husband and Gary, who passed away age 12 or 13, is still one of the city’s preeminent advocates for children with disabilities and has helped thousands and thousands of, of youngsters over the years.  Well, they came to us because Gary, at that point, was about seven years old and Gary’s story was that when he was born he appeared intellectually, physically and in every way to be an average child.  But around age two Gary started to show some problems.  He, his parents could not toilet train him and he started to have various behavioral issues, tantruming, that kind of thing.  His parents took him to a physician who diagnosed him as having a genetic progressive syndrome, very tragic, which over time would inevitably cause him to lose intellectual function, mobility, to become more difficult, um, to manage and for many children like that, at least at that point, uh, many of them ended up by their teens, uh, in institutions and rarely lived into their 20s so this was a very tragic situation.  But his family desperately wanted to keep him home, they didn’t want to be his course, in an institution and in order to do that he needed to maintain skills, self-help skills, behavioral skills, he was becoming deaf, he had to learn to communicate, he had mobility problems, he had to be kept mobile. 

So they wanted the school experience be one that would maximize his opportunities to maintain his skills as long as possible and they knew that because of Gary’s learning characteristics, and let me explain what they were because that became, they became the core characteristics for whom ESY was needed.  He learned very slowly, he had intellectual disabilities, when his program was interrupted he lost a great deal of what he had laboriously built up during the school year and when school started again he was very slow to relearn, something we then dubbed recoupment.  So we dubbed this set of characteristics, which we found in talking to experts and teachers and others, characterized other children with disabilities.  We called it the regression-recoupment cycle, the laborious effort to slowly learn, the break in program which caused the loss of those skills and then the very slow relearning process.  So instead of having an effect the way we described it to the judges they didn’t get 180 days worth of education because by the time you subtracted all the time it, it, the regression-recoupment cycle eliminated from their learning program they had maybe five months, maybe six months of learning.  So our view was that, that the IDEA, and this was the legal theory that was, those were the facts of the case, the legal theory of the case was that the central core of the IDEA is each child’s strengths and weaknesses, um, needs and capabilities needed to be assessed through the evaluation process, that was mandatory. 

The other thing that’s mandatory, it still is, then a team, including the parent, sits down, the IEP team, to decide what in view of that sets of strengths and weaknesses, and individual characteristics and the characteristics of that disability, the child’s program needs to look like.  For these children the ability to make reasonable progress, which was the, or meaningful progress, which was, uh, would come to be the sort of definition of what a free appropriate public education means, for them to achieve the goals, again for Gary to avoid institutionalization and remain in his family, that the program could simply not stop at 180 days or those goals would not be achievable. 

So our theory was that the policy of the State which said in no instance could you get more than 180 days was in conflict with the IDEA’s mandate, that programs had to be individualized to meet each child’s needs and the court found that not only were we correct, uh, factually, that there were such children and they couldn’t make reasonable goals, there were four named plaintiffs of which Gary was the lead plaintiff, alphabetically at least.  That, that factually we were correct and that that scenario in fact, violated the IDEA’s requirement that programs be individualized. And then that decision was then appealed to the Circuit Court, Circuit Court of Appeals for, the Third Circuit covers Pennsylvania, New Jersey, Delaware and the Virgin Islands.  And the Third Circuit said that’s right, there are these kids, the lower court was correct and that its factual findings are at least, um, and within his scope of his discretion and legally that’s correct. 

You know it’s really interesting, I went back for this interview to look at that decision, which is quite a lengthy decision, which goes at great length to explain who these children were, what their learning needs are, how they learn because here was a judge who didn’t know anything about kids with disabilities, um, he didn’t know anything about special education and here he was being confronted with the need to learn through this trial about these children and then to the, for the first time interpret substantively and on a lot of procedural issues, important new procedural issues, what this brand new important law meant.  And it’s really, uh, it’s very moving, it was moving to me to see what a careful, conscientious job he did and it, it’s just an interesting read for people who are interested in the history of disability advocacy and legal precedence.

Lisa: Did you have a favorite moment in that trial?

Janet: I did.

Lisa: Can you tell us about it?

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Janet: Yes.  Um, as I say, it was my first trial and scared out of my wits doesn’t begin to describe how I felt about this.  And I went to everyone saying this is my first trial, I have no idea what I’m doing, please help.  Um, the defen-, I was greatly helped by the fact that the defendant’s theory was ridiculous.  The defendants conceded that there were children who learn slowly, couldn’t very well deny it, they even conceded that there were children who lost skills.  What their factual defense was, is there was no proof, there were no studies and hence no proof that the loss of skills was due to the break in programming.  They attributed it to, and their experts testified, that it was attributable to bad parenting, ill-informed parenting, bad teaching, bad programs but not based on a break in program. 

So their first expert witness got on the stand and said that.  I got up in cross examination and said to her, “So time and program has nothing to with this phenomenon of losing skills?” She said “No”.  I said, “So your view is for 180 day school year, that’s it, that meets every kid’s needs, doesn’t matter.”  She said, “Yes that’s my view.” I said so what happens if the school year’s 170 days?  She said, “Still fine.”  I said, “what happens if it’s 150 days?”  “Well I think it’s okay.”  “What happens if it’s 50 days?”  “Well there wouldn’t be enough time.” And I sat down.  So as you can see the argument that time and program had nothing to do with this really simply wasn’t a sustainable proposition but I enjoyed that cross examination enormously.

Lisa: So what impact did this have on real kids and Gary’s life and does the case continue to have an impact? 

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Janet: Well Extended School Year programs are now available throughout the country.  It’s now a part of the regulations that interpret the Individuals with Disabilities Education Act, much of what the court found in its remedy is now included in those regulations and so what was law only in the Third Circuit has now, for many years, been law for kids throughout the country   Um, and people don’t even know that there was a time when Extended School Year programing was not part of the norm; so I think it had a huge impact.  Also the judge’s finding that individualized meant individualized and that State policies that didn’t allow that kind of individualized determination, that said this is the rule for all kids with disabilities, were going to have to fall under the IDEA. 

So that had application in lots of cases I brought and lots of cases that a lot of other people brought.  It also was the first case to establish some important procedural precedents like when is it that families have to go through the hearing system and when can they go directly to court which the doctrine called ‘exhaustion’.  And the judge basically said, if you can’t get the remedy out of the hearing process, which they couldn’t have in this case because the State had ordered hearing officers to say no, yes, why, 180 is the cap then you could go directly to court for remedy and that’s been an important vehicle. 

For the Armstrong family, uh, it, it I think made all the difference.  Gary did stay home till his death when he was 12 or 13 years old.  I don’t think there’s any question that his access to that programming made that difference.