2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-12-2000

Brian B. v. Comm of PA Education

Precedential or Non-Precedential:

Docket 99-1576

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Filed October 12, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 99-1576 

BRIAN B., by and through his mother, LOIS B.; 

ABDUL R., by and through his mother, DENA R.; 

BYRON A., by and through his mother, CARRIE W.; 

RONELLE W., by and through his mother, PAMELA J.; 

STEVEN S., by and through his guardian, NANCY F.; 

ANTHONY T., by and through his mother, CHRISTINE H.; 

KENNETH R., by and through his mother, NANCY R.; 

JEREMIAH M., by and through his mother, SUSAN M.; 

on behalf of themselves and all others similarly situated 

v. 

COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF 

EDUCATION; EUGENE W. HICKOK, in his official capacity 

as Secretary of the Department of Education; GARNET

VALLEY SCHOOL DISTRICT; PHILADELPHIA SCHOOL 

DISTRICT; CENTRAL YORK SCHOOL DISTRICT 

 Brian B.; Abdul R.; Byron A.; Ronelle W.; 

 Steven S.; Anthony T.; Kenneth R.; Jeremiah M., 

 Appellants 

On Appeal From the United States District Court 

For the Eastern District of Pennsylvania 

(D.C. Civil Action No. 96-cv-07991) 

District Judge: Honorable Louis H. Pollak 

Argued March 2, 2000 

BEFORE: ROTH, BARRY and STAPLETON, Circuit Jud ges 

(Opinion Filed: October 12, 2000) 
 Marsha L. Levick (Argued) 

 Juvenile Law Center of Philadelphia 

 1315 Walnut Street, Fourth Floor 

 Philadelphia, PA 19107 

 Attorney for Appellants 

 Michael L. Harvey (Argued) 

 Office of the Attorney General 

 of Pennsylvania 

 Department of Justice 

 Strawberry Square 

 15th Floor 

 Harrisburg, PA 17120 

 Attorney for Appellees 

 Theresa Glennon 

 Temple University 

 School of Law 

 1719 North Broad Street 

 Philadelphia, PA 19122 

 Attorney for Amici Curiae 

 American Civil Liberties Union of 

 Pennsylvania; Center for Law and 

 Education; National Center for 

 Youth Law; Youth Law Center; 

 Children and Family Justice 

 Center of Northwestern University 

 School of Law; Professor Theresa 

 Glennon; and Professor Dean Hill 

 Rivkin 

 2 
 Thomas B. Schmidt, III 

 Pepper, Hamilton & Scheetz 

 P.O. Box 1181 

 Harrisburg, PA 17108-1181 

 Attorney for Amici Curiae 

 American Probation and Parole 

 Association; Center for Children's 

 Policy, Practice and Research; 

 Center for Health, Achievement, 

 Neighborhood, Growth and Ethnic 

 Studies (Changes); Center for 

 Research and Evaluation in Social 

 Policy; The Center on Juvenile & 

 Criminal Justice; Citizens United 

 for the Rehabilitation of Errants 

 (Cure); Council of Juvenile 

 Correctional Administrators; 

 Criminal Justice Center, The 

 College of New Jersey; Dr. Barry 

 Krisberg, National Council on 

 Crime and Delinquency; National 

 Center on Institutions and 

 Alternatives; National Council on 

 Crime and Delinquency; National 

 Juvenile Detention Association; 

 National Legal Aid and Defender 

 Association; Pennsylvania Prison 

 Society; and The Sentencing 

 Project 

OPINION OF THE COURT 

STAPLETON, Circuit Judge: 

Brian B. and a class of similarly situated school-aged 

youths ("Plaintiffs") appeal the District Court's denial of 

their motion for a preliminary injunction barring 

enforcement of a Pennsylvania statute on constitutional 

grounds. The statute, 24 Pa. Cons. Stat. S 13-1306.2(a) 

("Subsection A"), limits the education available to youths 

convicted as adults and incarcerated in adult, county 

 3 
correctional facilities. The Defendants are the Pennsylvania 

Department of Education ("DOE"), its secretary, and three 

local school districts. 

The District Court had jurisdiction under 28 U.S.C.

SS 1331 and 1343. We have appellate jurisdiction under 28 

U.S.C. S 1292(a)(1). 

I. 

Pennsylvania law confers on youths between the ages of 

6 and 21 the right to a public education until the 

completion of high school. See 24 Pa. Stat. Ann. tit. 13, 

S 1301. In accordance with this statutory mandate, 

juveniles who have been adjudicated delinquent and youths 

who have been convicted as adults and sentenced to state 

correctional institutions receive full education programs. 

Subsection A, however, provides that youths convicted as 

adults and sentenced to adult, county facilities are only 

entitled to the minimal education provided to expelled 

students: 

 A person under twenty-one (21) years of age who is 

 confined to an adult local correctional institution 

 following conviction for a criminal offense who is 

 otherwise eligible for educational services as provided 

 under this act shall be eligible to receive educational 

 services from the board of school directors in the same 

 manner and to the same extent as a student who has 

 been expelled. . . . 

24 Pa. Cons. Stat. S 13-1306.2(a). County facilities are the 

only "local" ones. 

An expelled student under age 17 has a right to only 

minimal educational services (about 5 hours per week 

versus the usual 27.5 hours), and an expelled student 17 

or older is not entitled to education at all. See 22 Pa. Code 

S 12.6(e) (providing that expelled students under 17 are still 

entitled to education). As a result, Subsection A 

substantially limits, and for those 17 and over eliminates, 

the educational opportunities of youths convicted as adults 

and sentenced to adult, county correctional facilities. 

Although Subsection A treats these youths as if they were 

 4 
expelled, there is no requirement that they be expelled or 

that their offenses be school-related. 

Subsection A thus differentiates between school-aged 

youths convicted as adults based upon the locale of their 

incarceration: state inmates receive a full education, while 

county inmates receive limited education. A youthful 

offender's place of incarceration depends on the length of 

sentence and in certain cases the discretion of the

sentencing judge. Those sentenced to two years or less are 

confined in county facilities. Those sentenced tofive years 

or more go to state facilities. Sentences between two and 

five years can be served in either a county or state facility 

at the discretion of the sentencing judge. See 42 Pa. Const. 

Stat. S 9762. 

Pre-trial detainees and special education students are the 

only exceptions from Subsection A. As a result of a

settlement agreement prompted by this case, all schoolaged youths confined as pre-trial detainees receive a full 

educational program, as do all school-aged youths who 

require special education because of a disability. 

The District Court applied rational basis review under the 

Equal Protection Clause and concluded that the Plaintiffs 

had failed to show the reasonable probability of success on 

the merits necessary for a preliminary injunction. The 

Plaintiffs insist that because Subsection A burdens

education, the statute warrants heightened scrutiny under 

Plyler v. Doe, 457 U.S. 202 (1982). Moreover, the Plaintiffs 

contend that even if Plyler's intermediate scrutiny does not 

apply, Subsection A also fails to pass constitutional muster 

under rational basis review. 

A district court considering a motion for preliminary 

injunction must decide: 

 (1) whether the movant has shown a reasonable 

 probability of success on the merits; (2) whether the 

 movant will be irreparably harmed by denial of the 

 relief; (3) whether granting preliminary relief will result 

 in even greater harm to the nonmoving party; and (4) 

 whether granting the preliminary relief will be in the 

 public interest. 

 5 
Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d 

Cir. 1999) (citing ACLU v. Black Horse Pike Regional Bd. of 

Educ., 84 F.3d 1471, 1477 n.2 (3d Cir. 1996) (en banc)). 

"We review a district court's [disposition] of a preliminary 

injunction according to a three-part standard. Legal 

conclusions are reviewed de novo, findings of fact are 

reviewed for clear error, and the `ultimate decision to grant 

or deny the preliminary injunction' is reviewed for abuse of 

discretion." ACLU v. Reno, 217 F.3d 162, 2000 U.S. App. 

LEXIS 14419, at *27 (3d Cir. June 22, 2000) (quoting 

Maldonado v. Houstoun, 157 F.3d 179, 183 (3d Cir. 1998), 

cert. denied, 526 U.S. 1130 (1999)). 

II. 

We have held that the heightened scrutiny applied in 

Plyler v. Doe, 457 U.S. 202 (1982), is limited to "unique 

circumstances" that are absent here: 

 In Plyler, the Supreme Court applied intermediate 

 scrutiny to a statute that prohibited the disbursement 

 of state funds for the education of the children of 

 undocumented aliens. Plyler, however, expressly 

 reaffirms the Court's holding in San Antonio

 Independent School District v. Rodriguez, 411 U.S. 1, 35 

 (1973), that education is not a fundamental right and 

 therefore that burdens on education are not subject to 

 heightened scrutiny. It was the "unique circumstances" 

 of a burden on education coupled with the 

 disadvantaging of children of aliens that led to 

 heightened scrutiny in Plyler, and the Court

 subsequently has expressly limited Plyler to those 

 circumstances. 

Philadelphia Police & Fire Assoc. for Handicapped Children, 

Inc. v. City of Philadelphia, 874 F.2d 156, 165 (3d Cir. 

1989) (quoting Kadrmas v. Dickinson Public Schools, 487 

U.S. 450, 459 (1988)). 

The Supreme Court has declined to extend Plyler's 

heightened scrutiny to other education cases. In Kadrmas, 

the Court addressed "the constitutionality under the 

fourteenth amendment equal protection clause of a school 

bus service user fee. The Court rejected Kadrmas' 

 6 
contention that those who could not afford the fee were 

denied equal access to education and that such a denial 

implicated heightened scrutiny." Philadelphia Police & Fire 

Assoc. for Handicapped Children, 874 F.2d at 165 n.5. 

Notably, Kadrmas distinguished Plyler on the ground that 

the children in Plyler were innocent victims of their parents' 

illegal immigration: 

 We have not extended [Plyler] beyond the "unique 

 circumstances" that provoked its unique confluence of 

 theories and rationales. Nor do we think that the case 

 before us today is governed by the holding in Plyler. 

 Unlike the children in that case, Sarita Kadrmas has 

 not been penalized by the government for illegal 

 conduct by her parents. 

Kadrmas, 487 U.S. at 459 (citations and internal quotation 

marks omitted). 

The youth covered by Subsection A are being punished 

as a result of their own illegal conduct, not because of the 

illegal conduct of their parents. Accordingly, the heightened 

scrutiny applied in Plyler is inappropriate here. Lacking a 

basis for heightened scrutiny, we must apply the rational 

basis review ordinarily applied to social and economic 

legislation. 

"[I]f a law neither burdens a fundamental right nor

targets a suspect class, we will uphold the legislative 

classification so long as it bears a rational relationship to 

some legitimate end." Romer v. Evans, 517 U.S. 620, 631 

(1996). "In the ordinary case, a law will be sustained if it 

can be said to advance a legitimate government interest, 

even if the law seems unwise or works to the disadvantage 

of a particular group, or if the rationale for it seems 

tenuous." Romer, 517 U.S. at 632. Indeed, under rational 

basis review, legislation enjoys a presumption of validity, 

and the plaintiff must negate every conceivable justification 

for the classification in order to prove that the classification 

is wholly irrational. See Federal Communications Comm'n v. 

Beach Communications, 508 U.S. 307, 314-15 (1993). 

III. 

The Defendants tender four justifications for the 

distinction Subsection A draws between county and state, 

 7 
adult institutions: "1) space limitations in county

correctional institutions; 2) higher per-student cost in 

county correctional institutions; 3) security concerns that 

would arise in state correctional institutions if education 

were discontinued; and 4) the greater need for education in 

state correctional institutions, independent of security 

concerns." Appellant's Br. App. 34-35. 

First, the record indicates that 13 of the 73 adult, county 

correctional facilities in Pennsylvania do not have sufficient 

space to provide a complete educational program, and the 

legislature may have determined that requiring a full 

educational program in these institutions would require 

them to either preempt other services or to renovate at 

additional expense. Under rational basis review, a statute 

survives even if it is over-inclusive. Thus, if the legislature 

decides that space limitations in a fraction of the adult, 

county facilities justify the uniform limitation on education 

in adult, local facilities, that decision is not an irrational 

means of responding to the space concerns at some adult, 

local facilities. 

Second, although some adult, county facilities have more 

school-aged inmates than state institutions, state facilities 

generally have higher youth populations. As the DOE

Secretary puts it, "the legislature may have intended to 

reduce average per-pupil expenditures by not providing 

education to correctional facilities that house few convicted 

offenders, where per-pupil costs might well be higher." 

Appellant's Br. App. 38. While Plaintiffs perceive an 

inconsistency between this rationale and the decision to 

require school districts to pay for the education of all 

school-aged pre-trial detainees, all special education 

students, and all inmates in juvenile detention, we agree 

with the Defendants that a reasonable legislator might find 

these choices compatible. It is not irrational to require 

education regardless of location for pre-trial detainees 

because the guilt of these defendants has not been 

adjudicated and they thus could be seen as retaining 

Pennsylvania's general right to education. The legislature 

could also view education for special needs students as 

having a higher priority than education generally. Finally, 

the per-pupil cost in juvenile facilities may rationally be 

 8 
perceived as lower because the entire population is of 

school age. In each case, the necessity of legislative linedrawing "renders the precise coordinates of the resulting 

legislative judgment virtually unreviewable, since the 

legislature must be allowed leeway to approach a perceived 

problem incrementally." Beach Communications , 508 U.S. at 

316; see also Williamson v. Lee Optical of Okla., Inc., 348 

U.S. 483, 489 (1955) ("Evils in the same field may be of 

different dimensions and proportions, requiring different 

remedies. Or so the legislature may think. Or the reform 

may take one step at a time, addressing itself to the phase 

of the problem which seems most acute to the legislative 

mind. The legislature may select one phase of onefield and 

apply a remedy there, neglecting the others."). 

Third, the record indicates that before Subsection A was 

enacted, inmates in state correctional institutions received 

full educational services while school-aged county inmates 

did not. The Secretary suggests that curtailing education in 

state facilities would raise security concerns not similarly 

raised in county facilities. It is not irrational to believe that 

the discontinuation of an existing program is more likely to 

engender inmate hostility than the failure to institute one 

that inmates have never experienced. A perceived difference 

in security risks provides a rational basis for Section A's 

distinction between state and local institutions. 

Fourth, the legislature could have determined that the 

longer term youth population found in the state 

correctional system would benefit more from educational 

services than the more transient population found in 

county jails. An offender's term in a county correctional 

institution could be less than a school year, a situation that 

could not occur for a school-aged youth incarcerated in a 

state correctional institution. While it may be true, as 

Plaintiffs insist, that even short breaks in education can 

render a youth less likely to complete his education, a 

legislature's non-arbitrary judgment about educational 

priorities is not subject to judicial second-guessing. 

Thus, each of the justifications tendered by the 

 9 
Defendants provides a rational basis for the distinctions 

drawn by Subsection A.1 

IV. 

Because the Plaintiffs have not shown a reasonable 

probability that the statute will be overturned, the District 

Court did not abuse its discretion in denying their motion 

for preliminary injunction. The District Court's order of 

June 17, 1999, will be affirmed. 

_________________________________________________________________ 

1. This fact distinguishes this case from Romer v. Evans, 517 U.S. 620 

(1996), the Supreme Court's most recent case applying rational basis 

review and invalidating a statute on equal protection grounds. The Court 

there struck down a Colorado constitutional amendment barring the 

adoption -- and mandating the repeal -- of any state or local law 

specifically protecting homosexuals from discrimination. The Court 

explained that the amendment identified a classification of persons by a 

single trait and then disadvantaged that group "across the board" in all 

situations. Romer, 517 U.S. at 633. Because the amendment was "a 

status-based enactment divorced from any factual context," it was not 

possible to "discern a relationship to [any] legitimate state interests." 

Romer, 517 U.S. at 635. In contrast, juveniles convicted as adults and 

held in adult, county correctional facilities are not a group identified 

by 

a single trait, and the burden imposed on them by Subsection A is 

limited to a specific educational context that, as we have shown, enables 

us to discern a rational connection with legitimate state interests. 

 10 
ROTH, Circuit Judge, dissenting: 

I agree with the majority that the proper standard of 

review for this case is rational basis scrutiny. I disagree, 

however, that Subsection A, which restricts the educational 

opportunities available to school-age county inmates, 

survives a rational basis review. In my view, Pennsylvania's 

treatment of this category of prisoners is arbitrary and 

violates equal protection. For that reason, I respectfully 

dissent. 

I. 

The Equal Protection Clause of the Fourteenth 

Amendment prohibits a State from "deny[ing] to any person 

within its jurisdiction the equal protection of the laws." U.S. 

Const. amend. XIV, S 1. Its central tenet requires that 

States treat like cases alike but may treat unlike cases 

differently. See Plyler v. Doe, 457 U.S. 202, 216 (1982). To 

determine whether a particular classification meets this 

obligation, courts examine, with varying levels of scrutiny, 

the relationship between the government's objective and the 

means to achieve it. Absent the singling out of a suspect 

class, such as race or gender, or the infringement of a 

fundamental right, courts apply the minimal level of 

scrutiny -- rational basis review. 

The rational basis standard requires that a State express 

a rational relationship between the classification and some 

legitimate government interest. I recognize that this 

standard poses a nearly insurmountable hurdle to parties 

challenging a particular statute, requiring them to prove 

that there is no rational relationship, actual or hypothetical, 

between the stated end and the classification. See FCC v. 

Beach Communications, Inc., 508 U.S. 307, 315 (1993). 

Moreover, statutory classifications may be drawn so that 

"reform may take one step at a time," permitting the 

legislature to "select one phase of one field and apply a 

remedy there, neglecting others." Williamson v. Lee Optical 

of Oklahoma, Inc., 348 U.S. 483, 489 (1955). 

In finding that Subsection A passes rational basis 

scrutiny, the majority relies almost exclusively on Lee 

Optical and Beach Communications, Inc., each of which 

 11 
reviewed the scope of economic regulation. As the majority 

observes, legislation that does not target a suspect class or 

infringe a fundamental right enjoys a presumption of 

validity and federal courts ought to tread lightly when 

reviewing a statute under this standard. See Maj. Op. at 7. 

Yet the majority's analysis bends too far to accommodate 

this standard. 

I am aware of what rational basis review precludes.

Under Lee Optical and its progeny, a court cannot secondguess the legislature's wisdom or its policy judgment. A 

court would overstep its boundaries if it were to invalidate 

a law because it thought the law was bad for the 

community or because it believed that, in light of competing 

record evidence offering support for two options, the 

legislature made the wrong choice. See Beach 

Communications, Inc., 508 U.S. at 314 ("[J]udicial 

intervention is generally unwarranted no matter how

unwisely [a court] may think a political branch has acted."). 

Nevertheless, making a legislative judgment "virtually 

unreviewable," id. at 316, does not make it nonjusticiable. 

Yet this is the practical effect of the majority's terse 

treatment of the Plaintiffs' plight. 

There are limits to the deference owed to the legislature. 

As the Plaintiffs point out, the Supreme Court has applied 

rational basis scrutiny more circumspectly when legislation 

impinges on sensitive issues or controversial social policies. 

In such cases, the legislative classification must"find some 

footing in the realities of the subject addressed by the 

legislation." Heller v. Doe, 509 U.S. 312, 321 (1993) 

(upholding Kentucky law imposing different burdens of 

proof for civil and criminal involuntary commitment

procedures). Moreover, the State may not "rely on a

classification whose relationship to an asserted goal is so 

attenuated as to render the distinction arbitrary or 

irrational." City of Cleburne v. Cleburne Living Center, 473 

U.S. 432, 446 (1985) (invalidating municipal ordinance 

requiring special use permit only for proposed group home 

for mentally retarded but not for other group homes). If the 

classification is motivated by invidious discrimination or if 

there is too flimsy a relationship between the means 

employed and the purported end, a court would be well 

within its authority to invalidate such a classification: 

 12 
 The search for the link between classification and 

 objective gives substance to the Equal Protection 

 Clause; it provides guidance and discipline for the 

 legislature, which is entitled to know what sorts of laws 

 it can pass; and it marks the limits of our authority. 

 . . . By requiring that the classification bear a rational 

 relationship to an independent and legitimate 

 legislative end, we ensure that classifications are not 

 drawn for the purpose of disadvantaging the group 

 burdened by the law. 

Romer v. Evans, 517 U.S. 620, 632-33 (1996) (invalidating 

Colorado ban on any official action designed to protect 

homosexuals from discrimination). 

Subsection A's disparate treatment of school-age county 

inmates demonstrates a disconnect between the 

classification and its purported objective for several 

reasons. Most importantly, Pennsylvania law entitles 

individuals between 6 and 21 years of age to a free public 

education through high school. See 24 Pa. Stat. Ann. tit. 

13, S 1301. Rights and benefits provided by a state law are 

subject to applicable constitutional constraint. See 

Goldberg v. Kelly, 397 U.S. 254, 262 (1970) (requiring due 

process before termination of individual's federal and state 

welfare benefits). Although a state is not obligated to 

provide its citizens benefits such as education, when it 

elects to do so, it may not deny that benefit to some citizens 

for arbitrary reasons. See Griffin v. Illinois , 351 U.S. 12 

(1956) (invalidating state law that required purchase of 

transcript as precondition to appeal because no rational 

relationship between indigence and guilt). Moreover, while 

education is not a fundamental right, laws affecting 

education may be distinguished from other social legislation 

because of education's "importance . . . in maintaining our 

basic institutions, and the lasting impact of its deprivation 

on the life of the child." Plyler, 457 U.S. at 221. Thus, we 

ought not to allow education to be curtailed arbitrarily. 

In addition, concern that an unpopular group is being 

singled out for discrimination is a cornerstone of equal 

protection analysis. See United States v. Carolene Products 

Co., 304 U.S. 144, 152-153 n. 4 (1938). While we do not 

consider prisoners a suspect class, they represent a group 

 13 
to whom the legislature has limited political accountability. 

Yet political accountability is central to rational basis 

review: 

 The Constitution presumes that . . . even improvident 

 decisions will eventually be rectified by the democratic 

 process and that judicial intervention is generally 

 unwarranted no matter how unwisely we may think a 

 political branch has acted. 

Vance v. Bradley, 440 U.S. 93, 97 (1979) (upholding

mandatory retirement age of 60 for Foreign Service 

employees). Thus, while certainly not requiring a 

heightened level of scrutiny, even under rational basis 

review, limited political accountability obligates a court to 

"insist on knowing the relation between the classification 

adopted and the object to be attained." Romer , 517 U.S. at 

632. 

Finally, the interest the State promotes must be 

legitimate. Invidious discrimination -- whether motivated 

by antipathy or by a desire to harm a politically impotent 

group -- is an illegitimate aim. See Cleburne , 473 U.S. at 

447. Sometimes, an improper motive is obvious. In 

Cleburne, it was the neighborhood's negative attitudes 

toward and fear of the mentally retarded. See id. at 448. In 

United States Dept. of Agriculture v. Moreno, 413 U.S. 528 

(1973), it was Congress's ulterior motive to prevent 

"hippies" from participating in the food stamp program. See 

id. at 534. Unlike Cleburne and Moreno, here we have no 

"smoking gun" that proves antipathy toward countyincarcerated, school-age prisoners. The cursory 

explanations that Pennsylvania's DOE offers to justify 

Subsection A's classifications, however, especially in 

reference to an important benefit like education, suggest an 

apathy that borders on antipathy. As such, Subsection A's 

isolation of this particular group of school-age inmates 

awakens my skepticism. 

II. 

Applying these concepts of rational basis review to

Subsection A, I find that the Pennsylvania DOE relies on 

inconsistent, piecemeal rationalizations to justify its 

 14 
categorization that cordons off this single group of youth 

offenders. The application of Subsection A createsfive 

different categories of school-age inmates: countyincarcerated school-age inmates; state-incarcerated schoolage inmates; pre-trial school-age detainees, wherever 

housed; school-age inmates requiring special education, 

wherever housed; and inmates of the juvenile detention 

system. Only county-incarcerated school-age inmates are 

treated as "expelled students." See 24 Pa. Cons. Stat. S 13- 

1306.2(a). I find that this categorization and the 

rationalizations offered for it lack "some footing in the 

realities of the subject addressed by the legislation." Heller, 

509 U.S. at 321. A review of each of these classifications 

illustrates their arbitrariness. 

The first classification is the distinction, on which the 

majority concentrates, between school-age convicts 

incarcerated in county facilities and those placed in state 

facilities. The Pennsylvania DOE offers four objectives to 

justify this distinction: (1) inadequate county facilities, (2) 

higher per-student costs to educate inmates confined to 

county facilities, (3) a comparatively greater need to educate 

state-incarcerated, school-age prisoners, and (4) security 

concerns in state facilities. I find that none of these 

justifications supports the denial to school-age county 

inmates of the educational benefits that their counterparts 

in state facilities receive. 

With respect to the first justification, the Pennsylvania 

DOE does not argue that the county facilities have no 

space, only that it could be inconvenient for a few facilities 

to reschedule other programs or, in some instances, to 

accommodate the schooling of more school-age convicts. 

Obviously, however, these facilities have some space for 

educational use because classes are provided for pre-trial 

detainees and for special education students. Moreover, the 

space available must be flexible because the number of 

inmates presently eligible for schooling may fluctuate from 

day to day. There is no indication that the other school-age 

inmates in county facilities cannot be accommodated in 

that same space. Furthermore, when considering 

scheduling problems, the nature and impact of what is 

being scheduled cannot be ignored. I would hope that the 

 15 
scheduling of space for educational programs would be 

given some priority. 

While rational basis review may not require a State to 

prove its justifications, it does afford challengers the 

opportunity to rebut these justifications. See Beach 

Communications, Inc., 508 U.S. at 315. In my view, the 

Plaintiffs have rebutted the "inadequate space" justification. 

As for the second reason, the higher per-student cost in 

county facilities, a closer look also reveals its irrationality. 

Were Pennsylvania DOE really concerned about lowering 

the average cost of inmate education, no county inmates 

would be educated. The DOE tries to articulate why it is 

willing to incur higher costs for some county inmates, but 

not for others. First, it argues that pre-trial detainees, as 

opposed to convicted school-age inmates, may be educated 

because they have yet to be proven guilty. Not only is that 

rationale unrelated to the purported per-student cost 

objective, but it suggests that convicted state inmates 

should also be denied education, something the Plaintiffs 

have not requested.1 Second, the DOE argues that special 

education students are required by federal law, 2 not state 

law, to receive a free education. But an obligation, arising 

under a federal statute, does not justify the arbitrary 

elimination of the state's own obligation to provide 

education to one group of students and not to another. 

Moreover, it begs the question why state-incarcerated 

inmates, who do not have learning disabilities, should be 

educated. In fact, given that the Pennsylvania DOE is 

educating two categories of school-age county inmates, it is 

more likely to achieve economies of scale and lower perstudent cost by educating all three categories of school-age 

_________________________________________________________________ 

1. Whether guilt is relevant to retaining educational benefits raises a 

different question: What is rational about imposing an additional 

punishment on an inmate solely based on where he is incarcerated? 

Because Plaintiffs have not suggested, however, that the denial of 

education is an ex post facto punishment, I merely pose this question 

rhetorically. 

2. School-age individuals with special education needs are generally 

entitled to have their needs met through individualized educational 

programs at the state's expense under the Individuals with Disabilities 

Education Act. See 20 U.S.C. S 1400 et seq. 

 16 
county inmates, rather than only the two. Moreover,

technological developments, such as closed-circuit 

television, can facilitate the providing of educational 

programs at a lower per-student cost, whether one, two, or 

three categories of inmates are selected to receive those 

programs. 

Fiscal integrity is a legitimate goal. States may not, 

however, achieve that goal by making invidious or arbitrary 

distinctions. See Zoebel v. Williams, 457 U.S. 55, 61-62 

(1982) (invalidating Alaska dividend distribution program 

because it favored established over new state residents). By 

randomly demonstrating a willingness to assume education 

costs for some county prisoners but not for others, the 

Pennsylvania DOE's rationales become arbitrary, and thus 

impermissible.3 

The third objective, the greater need to educate inmates 

in state facilities, fails too for the reasons Plaintiffs assert. 

First, the argument that the county inmate population is 

too transient is subverted by the Pennsylvania DOE's 

decision to educate an even more transient class-- pretrial detainees. Second, the notion that state inmates are 

incarcerated longer and thus are less likely to return to 

their education after their release from confinement is 

belied by the Plaintiffs' data. See e.g., 11/25/97 Tr. at 5- 

12; 83-88; Stipulated Facts P 5, P 54,P 59 (describing 

harmful effects of break in education of even one year). 

Third, this rationale is undermined by the fact that it is the 

sentencing judge who determines whether school-age 

_________________________________________________________________ 

3. Plaintiffs also assert that the cost argument is a red herring because 

the school districts receive an allocation to cover educational costs for 

all 

students residing in a particular district, including those incarcerated 

in 

a county correctional facility. See Appellant's Br. at 46-49. See also 24 

Pa. Cons. Stat. S 13-1306.2(c) which appears to bear out this assertion: 

 (c) The department shall effectuate necessary procedures for the 

 transfer of funds from the school district of residence to the 

school 

 district in which the local correctional institution is located. In 

 effectuating the transfer of funds, the department may deduct the 

 appropriate amount from the Basic Education Funding allocation of 

 any school district which had resident students who were provided 

 educational services in the local correctional facility. 

 17 
inmates, convicted as adults and sentenced to between two 

and five years, will be confined in a state or county facility. 

Thus, there will be some inmates in county facilities who 

are serving the same sentence as state inmates but not 

receiving the same educational benefit -- and the only 

reason for the differential treatment is the discretion of the 

sentencing judge.4 Combined, these inconsistencies make 

this objective not only arbitrary but fallacious. 

The fourth objective, concern for security in state

facilities, is irrelevant in the context of this case. As the 

District Court concluded, whatever the merits of 

Pennsylvania's overall concern about the role education 

plays in promoting security in state facilities, the Plaintiffs 

are not requesting that we deny state inmates their

educational benefits. See Brian B., et al. v. Commonwealth 

of Pennsylvania, 51 F. Supp. 2d 611, 633 (E.D. Pa. 1999). 

In sum, the Pennsylvania DOE's purported objectives are 

undermined by its decision to deny the educational benefits 

to county-incarcerated, school-age inmates that it is willing 

to provide to pre-trial detainees and to special education 

inmates in the same facilities. The reasons for 

distinguishing this category of school-age inmates in the 

county facilities are so unrelated to the purported objectives 

of limited space and higher per-student cost that they can 

only be arbitrary. As a result, the broader distinction 

between state and county inmates cannot itself withstand 

the limited scrutiny that rational basis review applies. 

These flawed justifications bear as little rational

relationship to the statutory classification at hand as the 

reasons offered by the City of Cleburne to justify its 

differential treatment of the mentally retarded. See 

Cleburne, 473 U.S. at 448-50. 

Finally, Plaintiffs attack the two remaining classifications: 

expelled students and convicted juvenile delinquents. The 

link to expelled students -- apparently Pennsylvania's 

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4. Under Pennsylvania law, felons sentenced to up to two years are 

housed in county facilities, those with sentences offive years or more are 

confined to state facilities, and those sentenced to between two and five 

years may be incarcerated in either facility at the sentencing judge's 

discretion. See 42 Pa. Cons. Stat. S 9762. 

 18 
attempt to insulate Subsection A from challenge-- grants 

county-incarcerated, school-age inmates, under 17 years of 

age, the same minimal education benefits that expelled 

students receive.5 Yet, these two groups of school-age 

individuals are not similarly situated and thus should not 

be treated alike. A student is expelled from school when he 

violates school rules. As a consequence of his violation of 

school rules, an expelled student is denied a publicly 

funded education, a quid pro quo. He can still, however, 

obtain an education at his own expense. It is very unlikely, 

however, that the offense underlying the conviction of a 

county-incarcerated, school-age inmate was a violation of 

school rules. Moreover, county-incarcerated, school-age 

inmates cannot obtain an alternative education, privately 

funded or not, while in prison; and the reason for the 

denial of state-provided education is probably not related to 

the inmate's underlying offense. Thus, the relationship 

between expelled students and school-age county inmates 

is so attenuated as to render its linkage irrational. 

Similarly, the distinction between confined juveniles and 

school-age county inmates lacks foundation. The District 

Court concluded that the juvenile justice system-- as a 

distinct penal system -- is primarily concerned with 

rehabilitation, so that providing its inmates an education 

furthers its primary objective. See Brian B., 51 F. Supp. 2d 

at 630 n.23. While sensible, this explanation does not go on 

to explain why state-incarcerated, school-age inmates 

convicted as adults receive education but countyincarcerated ones do not. For that reason, the explanation 

must fail. 

None of the objectives the Pennsylvania DOE offers can 

justify its isolating this one group of school-age county 

inmates. I find that the Plaintiffs have done what rational 

_________________________________________________________________ 

5. Expelled students under 17 years of age must receive a minimum 

education benefit while those over 17 years of age lose their entitlement 

to any education. See Pa. Code S 12.6(e). The local school districts have 

discretion to decide what constitutes the minimal benefit. See Ambreski 

v. Southeastern Sch. Dist. Bd. of Directors, 421 A.2d 485, 488 (Pa. 

Commw. Ct. 1980). This minimum amount ranges from as little as 90 

minutes a week to a maximum of 5 hours a week. See Brian B, et al., 51 

F. Supp. 2d at 617-18. 

 19 
basis review requires of them: They have demonstrated that 

there is no rational relationship between the statutory 

classification and the purported government objectives. See 

Beach Communications, Inc., 508 U.S. at 315 ("[T]hose 

attacking the rationality of the legislative classification have 

the burden `to negative every conceivable basis which might 

support it.' ") (quoting Lehnhausen v. Lake Shore Auto Parts, 

Co., 410 U.S. 356, 364 (1973)). As a result, I would hold 

that Subsection A denies this class of school-age county 

inmates equal protection of the law. 

III. 

The majority characterizes the Pennsylvania DOE's set of 

piecemeal justifications as falling within Lee Optical's "one 

step at a time" rubric, which permits a legislature to 

conclude that only part of a problem needs to be solved 

initially, and under which courts defer to the legislature's 

discretion to decide which part that is. See Maj. Op. at 8-9. 

But the seeming coherence of this incremental approach is 

illusory. As the analysis above demonstrates, the rationales 

for distinguishing among county inmates are unrelated to 

cost and space. Nor do Pennsylvania's other purported 

reasons, such as inmate guilt or student expulsion, suggest 

an alternative policy or evil to link these disparate 

categories that set county-incarcerated, school-age inmates 

apart. 

Nevertheless, despite the absence of a "reasonably 

conceivable state of facts that could provide a rational 

basis" for the categories, see Heller, 509 U.S. at 320 (citing 

Beach Communications, Inc., 508 U.S. at 313), the majority 

upholds the classifications with no more than a perfunctory 

review. See Maj. Op. at 7-10. As I read the cases, even 

when applying rational basis scrutiny, our task of 

"adjudication is not a mechanical exercise nor does it 

compel `either/or' determinations." See Griffin, 351 U.S. at 

26 (Frankfurter, J., concurring). Thus, while Lee Optical 

and Beach Communications, Inc., give states a wide berth to 

craft solutions to policy problems "one step at a time," they 

do not forbid our review of challenged social or economic 

legislation. 

 20 
In conclusion, a state is not obligated by the federal 

Constitution to provide its citizens with a free public 

education. Once it decides to do so, however, it may not 

arbitrarily deny some of its citizen access to this benefit. In 

Pennsylvania's case, its hodgepodge of justifications for 

treating school-age county inmates differently than every 

other conceivable category of school-age prisoners, in adult 

or juvenile confinement, and treating them like expelled 

students, with whom they share no rational connection, 

amounts to just this type of prohibited arbitrary denial. As 

Justice Jackson once wisely observed, "we are much more 

likely to find arbitrariness in the regulation of the few than 

of the many." Railway Express Agency, 336 U.S. at 113. 

Pennsylvania's restriction of education to countyincarcerated, school-age inmates aptly proves this point. 

I believe, therefore, that the Plaintiffs have shown a 

likelihood of success on the merits. Accordingly, I

respectfully dissent and would remand this case to the 

District Court for it to determine whether the Plaintiffs have 

satisfied the other elements required for a preliminary 

injunction.6 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

6. Because the District Court concluded that the Plaintiffs were unlikely 

to prevail on the merits, it refrained from evaluating the other elements 

required for a preliminary injunction. See Brian B., 51 F. Supp. 2d at 

635. 

 21