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A E duc a t ion

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 99-1576

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. e du/thir dc ir c uit_2000/216Filed 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 si tuated

v.

COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF EDUCATION; EUGENE W. HICKOK, in his official capaci ty 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

2Thomas 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-a ged youths ("Plaintiffs") appeal the District Court's d enial of their motion for a preliminary injunction barring enforcement of a Pennsylvania statute on constituti onal 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, coun ty

3correctional facilities. The Defendants are the Pen nsylvania

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 un der 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. ti t. 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 pr ograms. Subsection A, however, provides that youths convict ed as adults and sentenced to adult, county facilities ar e only entitled to the minimal education provided to expel led

students:

A person under twenty-one (21) years of age who is
confined to an adult local correctional inst itution 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 w ho has been expelled. . . .

24 Pa. Cons. Stat. S 13-1306.2(a). County facilitie s are the only "local" ones.

An expelled student under age 17 has a right to onl y minimal educational services (about 5 hours per wee k versus the usual 27.5 hours), and an expelled stude nt 17
or older is not entitled to education at all. See 2 2 Pa. Code S 12.6(e) (providing that expelled students under 1 7 are still entitled to education). As a result, Subsection A substantially limits, and for those 17 and over eli minates, the educational opportunities of youths convicted a s adults and sentenced to adult, county correctional facilit ies. Although Subsection A treats these youths as if the y were

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

that their offenses be school-related.

Subsection A thus differentiates between school-age d youths convicted as adults based upon the locale of their
incarceration: state inmates receive a full educati on, while county inmates receive limited education. A youthfu l offender's place of incarceration depends on the le ngth of
sentence and in certain cases the discretion of the sentencing judge. Those sentenced to two years or l ess are confined in county facilities. Those sentenced tofi ve years or more go to state facilities. Sentences between t wo and five years can be served in either a county or stat e 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 sch oolaged youths confined as pre-trial detainees receive a full educational program, as do all school-aged youths w ho require special education because of a disability.

The District Court applied rational basis review un der the Equal Protection Clause and concluded that the Plai ntiffs had failed to show the reasonable probability of su ccess 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 P laintiffs contend that even if Plyler's intermediate scrutiny does not apply, Subsection A also fails to pass constitution al muster
under rational basis review.

A district court considering a motion for prelimina ry injunction must decide:

(1) whether the movant has shown a reasonabl e probability of success on the merits; (2) wh ether the movant will be irreparably harmed by denial of the relief; (3) whether granting preliminary rel ief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest.

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

Cir. 1999) (citing ACLU v. Black Horse Pike Regiona l Bd. of Educ., 84 F.3d 1471, 1477 n.2 (3d Cir. 1996) (en ba nc)). "We review a district court's [disposition] of a pr eliminary injunction according to a three-part standard. Lega l conclusions are reviewed de novo, findings of fact are reviewed for clear error, and the `ultimate decisio n 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) (quotin g Maldonado v. Houstoun, 157 F.3d 179, 183 (3d Cir. 1 998), cert. denied, 526 U.S. 1130 (1999)).

II.

We have held that the heightened scrutiny applied i n Plyler v. Doe, 457 U.S. 202 (1982), is limited to " unique
circumstances" that are absent here:

In Plyler, the Supreme Court applied interme diate scrutiny to a statute that prohibited the di sbursement
of state funds for the education of the chil dren of undocumented aliens. Plyler, however, expres sly reaffirms the Court's holding in San Antonio Independent School District v. Rodriguez, 41 1 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 circ umstances" of a burden on education coupled with the disadvantaging of children of aliens that le d to heightened scrutiny in Plyler, and the Court subsequently has expressly limited Plyler to those
circumstances.

Philadelphia Police & Fire Assoc. for Handicapped C hildren, 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 Ka drmas, the Court addressed "the constitutionality under th e fourteenth amendment equal protection clause of a s chool bus service user fee. The Court rejected Kadrmas'

6contention that those who could not afford the fee were

denied equal access to education and that such a de nial implicated heightened scrutiny." Philadelphia Polic e & Fire Assoc. for Handicapped Children, 874 F.2d at 165 n. 5. Notably, Kadrmas distinguished Plyler on the groun d that the children in Plyler were innocent victims of the ir parents' illegal immigration:

We have not extended [Plyler] beyond the "u nique circumstances" that provoked its unique conf luence of
theories and rationales. Nor do we think tha t the case before us today is governed by the holding i n Plyler. Unlike the children in that case, Sarita Kad rmas has not been penalized by the government for ill egal conduct by her parents.

Kadrmas, 487 U.S. at 459 (citations and internal qu otation marks omitted).

The youth covered by Subsection A are being punishe d as a result of their own illegal conduct, not becau se of the illegal conduct of their parents. Accordingly, the heightened scrutiny applied in Plyler is inappropriate here. L acking a basis for heightened scrutiny, we must apply the ra tional basis review ordinarily applied to social and econo mic legislation.

"[I]f a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legisla tive classification so long as it bears a rational relat ionship to some legitimate end." Romer v. Evans, 517 U.S. 620, 631 (1996). "In the ordinary case, a law will be sustai ned if it can be said to advance a legitimate government inte rest,
even if the law seems unwise or works to the disadv antage of a particular group, or if the rationale for it s eems tenuous." Romer, 517 U.S. at 632. Indeed, under rat ional basis review, legislation enjoys a presumption of v alidity, and the plaintiff must negate every conceivable jus tification for the classification in order to prove that the c lassification is wholly irrational. See Federal Communications Co mm'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 s tate,

7adult institutions: "1) space limitations in county

correctional institutions; 2) higher per-student co st in county correctional institutions; 3) security conce rns that
would arise in state correctional institutions if e ducation were discontinued; and 4) the greater need for educ ation in state correctional institutions, independent of sec urity 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, an d the legislature may have determined that requiring a fu ll educational program in these institutions would req uire them to either preempt other services or to renovat e 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 a dult,
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 intend ed to reduce average per-pupil expenditures by not provid ing
education to correctional facilities that house few convicted offenders, where per-pupil costs might well be high er." Appellant's Br. App. 38. While Plaintiffs perceive an inconsistency between this rationale and the decisi on to require school districts to pay for the education o f all school-aged pre-trial detainees, all special educat ion students, and all inmates in juvenile detention, we agree with the Defendants that a reasonable legislator mi ght find these choices compatible. It is not irrational to r equire education regardless of location for pre-trial deta inees because the guilt of these defendants has not been adjudicated and they thus could be seen as retainin g Pennsylvania's general right to education. The legi slature could also view education for special needs student s as having a higher priority than education generally. Finally, the per-pupil cost in juvenile facilities may ratio nally be

8perceived as lower because the entire population is of

school age. In each case, the necessity of legislat ive linedrawing "renders the precise coordinates of the res ulting legislative judgment virtually unreviewable, since the legislature must be allowed leeway to approach a pe rceived problem incrementally." Beach Communications , 508 U.S. at 316; see also Williamson v. Lee Optical of Okla., I nc., 348 U.S. 483, 489 (1955) ("Evils in the same field may be of different dimensions and proportions, requiring dif ferent remedies. Or so the legislature may think. Or the r eform may take one step at a time, addressing itself to t he phase of the problem which seems most acute to the legisl ative mind. The legislature may select one phase of onefi eld 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 edu cation in state facilities would raise security concerns not similarly raised in county facilities. It is not irrational t o believe that the discontinuation of an existing program is more likely to engender inmate hostility than the failure to insti tute one that inmates have never experienced. A perceived di fference in security risks provides a rational basis for Sec tion 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 educati onal services than the more transient population found i n county jails. An offender's term in a county correc tional institution could be less than a school year, a sit uation that could not occur for a school-aged youth incarcerate d in a state correctional institution. While it may be tru e, as Plaintiffs insist, that even short breaks in educat ion can render a youth less likely to complete his educatio n, a legislature's non-arbitrary judgment about educatio nal priorities is not subject to judicial second-guessi ng.

Thus, each of the justifications tendered by the

9Defendants provides a rational basis for the distin ctions

drawn by Subsection A.1

IV.

Because the Plaintiffs have not shown a reasonable probability that the statute will be overturned, th e District Court did not abuse its discretion in denying their motion for preliminary injunction. The District Court's or der 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 applyi ng rational basis review and invalidating a statute on equal protecti on grounds. The Court
there struck down a Colorado constitutional amendme nt barring the adoption -- and mandating the repeal -- of any stat e or local law specifically protecting homosexuals from discrimina tion. The Court explained that the amendment identified a classific ation of persons by a single trait and then disadvantaged that group "acr oss the board" in all situations. Romer, 517 U.S. at 633. Because the ame ndment was "a status-based enactment divorced from any factual co ntext," it was not possible to "discern a relationship to [any] legiti mate state interests." Romer, 517 U.S. at 635. In contrast, juveniles conv icted as adults and held in adult, county correctional facilities are n ot a group identified by a single trait, and the burden imposed on them by S ubsection A is limited to a specific educational context that, as we have shown, enables us to discern a rational connection with legitimate state interests.

10ROTH, 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 edu cational opportunities available to school-age county inmate s, survives a rational basis review. In my view, Penns ylvania's treatment of this category of prisoners is arbitrar y and violates equal protection. For that reason, I respe ctfully
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 s uspect class, such as race or gender, or the infringement of a fundamental right, courts apply the minimal level o f scrutiny -- rational basis review.

The rational basis standard requires that a State e xpress a rational relationship between the classification and some legitimate government interest. I recognize that th is standard poses a nearly insurmountable hurdle to pa rties challenging a particular statute, requiring them to prove that there is no rational relationship, actual or h ypothetical,
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 th e legislature to "select one phase of one field and a pply 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 whi ch

11reviewed the scope of economic regulation. As the m ajority

observes, legislation that does not target a suspec t class or infringe a fundamental right enjoys a presumption o f validity and federal courts ought to tread lightly when reviewing a statute under this standard. See Maj. O p. at 7. Yet the majority's analysis bends too far to accomm odate
this standard.

I am aware of what rational basis review precludes. Under Lee Optical and its progeny, a court cannot s econdguess the legislature's wisdom or its policy judgme nt. A court would overstep its boundaries if it were to i nvalidate 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, t he 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 "virtua lly unreviewable," id. at 316, does not make it nonjust iciable. 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 legis lature. As the Plaintiffs point out, the Supreme Court has applied rational basis scrutiny more circumspectly when leg islation impinges on sensitive issues or controversial socia l policies. In such cases, the legislative classification must" find some footing in the realities of the subject addressed b y the legislation." Heller v. Doe, 509 U.S. 312, 321 (199 3) (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 go al is so attenuated as to render the distinction arbitrary o r irrational." City of Cleburne v. Cleburne Living Ce nter, 473 U.S. 432, 446 (1985) (invalidating municipal ordina nce requiring special use permit only for proposed grou p home for mentally retarded but not for other group homes ). If the classification is motivated by invidious discrimina tion or if there is too flimsy a relationship between the mean s employed and the purported end, a court would be we ll within its authority to invalidate such a classific ation:

12The search for the link between classificati on and

objective gives substance to the Equal Prote ction 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 b ear a rational relationship to an independent and legitimat e legislative end, we ensure that classificati ons are not drawn for the purpose of disadvantaging the group burdened by the law.

Romer v. Evans, 517 U.S. 620, 632-33 (1996) (invali dating Colorado ban on any official action designed to pro tect homosexuals from discrimination).

Subsection A's disparate treatment of school-age co unty
inmates demonstrates a disconnect between the classification and its purported objective for seve ral reasons. Most importantly, Pennsylvania law entitle s 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. Se e Goldberg v. Kelly, 397 U.S. 254, 262 (1970) (requir ing due process before termination of individual's federal and state welfare benefits). Although a state is not obligate d to provide its citizens benefits such as education, wh en it elects to do so, it may not deny that benefit to so me citizens for arbitrary reasons. See Griffin v. Illinois , 35 1 U.S. 12 (1956) (invalidating state law that required purcha se of transcript as precondition to appeal because no rat ional relationship between indigence and guilt). Moreover , while education is not a fundamental right, laws affectin g education may be distinguished from other social le gislation because of education's "importance . . . in maintai ning our basic institutions, and the lasting impact of its d eprivation on the life of the child." Plyler, 457 U.S. at 221. Thus, we ought not to allow education to be curtailed arbitr arily.

In addition, concern that an unpopular group is bei ng 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

13to whom the legislature has limited political accou ntability.

Yet political accountability is central to rational basis
review:

The Constitution presumes that . . . even im provident decisions will eventually be rectified by th e democratic process and that judicial intervention is ge nerally unwarranted no matter how unwisely we may th ink 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 b asis review, limited political accountability obligates a court to "insist on knowing the relation between the classif ication 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 mot ivated by antipathy or by a desire to harm a politically i mpotent 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 attitu des toward and fear of the mentally retarded. See id. a t 448. In United States Dept. of Agriculture v. Moreno, 413 U .S. 528 (1973), it was Congress's ulterior motive to preven t "hippies" from participating in the food stamp prog ram. See id. at 534. Unlike Cleburne and Moreno, here we hav e no"smoking gun" that proves antipathy toward countyincarcerated, school-age prisoners. The cursory explanations that Pennsylvania's DOE offers to just ify Subsection A's classifications, however, especially in reference to an important benefit like education, s uggest an apathy that borders on antipathy. As such, Subsecti on A's isolation of this particular group of school-age in mates awakens my skepticism.

II.

Applying these concepts of rational basis review to Subsection A, I find that the Pennsylvania DOE reli es on inconsistent, piecemeal rationalizations to justify its

14categorization that cordons off this single group o f youth

offenders. The application of Subsection A createsf ivedifferent categories of school-age inmates: countyincarcerated school-age inmates; state-incarcerated schoolage inmates; pre-trial school-age detainees, wherev er housed; school-age inmates requiring special educat ion, wherever housed; and inmates of the juvenile detent ion system. Only county-incarcerated school-age inmates are treated as "expelled students." See 24 Pa. Cons. St at. 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 legislati on." Heller,
509 U.S. at 321. A review of each of these classifi cations
illustrates their arbitrariness.

The first classification is the distinction, on whi ch the majority concentrates, between school-age convicts incarcerated in county facilities and those placed in state facilities. The Pennsylvania DOE offers four object ives to justify this distinction: (1) inadequate county fac ilities, (2) higher per-student costs to educate inmates confine d to county facilities, (3) a comparatively greater need to educate state-incarcerated, school-age prisoners, and (4) s ecurity
concerns in state facilities. I find that none of t hese justifications supports the denial to school-age co unty
inmates of the educational benefits that their coun terparts
in state facilities receive.

With respect to the first justification, the Pennsy lvania 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 convic ts. Obviously, however, these facilities have some spac e for educational use because classes are provided for pr e-trial detainees and for special education students. Moreo ver, the space available must be flexible because the number of inmates presently eligible for schooling may fluctu ate from day to day. There is no indication that the other s chool-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 tha t the

15scheduling 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 challenger s the opportunity to rebut these justifications. See Beac h Communications, Inc., 508 U.S. at 315. In my view, the Plaintiffs have rebutted the "inadequate space" jus tification.

As for the second reason, the higher per-student co st in county facilities, a closer look also reveals its i rrationality. Were Pennsylvania DOE really concerned about loweri ng the average cost of inmate education, no county inm ates would be educated. The DOE tries to articulate why it is willing to incur higher costs for some county inmat es, but not for others. First, it argues that pre-trial det ainees, as opposed to convicted school-age inmates, may be edu cated because they have yet to be proven guilty. Not only is that rationale unrelated to the purported per-student co st objective, but it suggests that convicted state inm ates should also be denied education, something the Plai ntiffs have not requested.1 Second, the DOE argues that sp ecial education students are required by federal law, 2 n ot state law, to receive a free education. But an obligation , arising under a federal statute, does not justify the arbit rary elimination of the state's own obligation to provid e education to one group of students and not to anoth er. Moreover, it begs the question why state-incarcerat ed inmates, who do not have learning disabilities, sho uld be educated. In fact, given that the Pennsylvania DOE is educating two categories of school-age county inmat es, it is more likely to achieve economies of scale and lower perstudent cost by educating all three categories of s chool-age

___________________________________________________ ______________

1. Whether guilt is relevant to retaining education al 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, tha t the denial of education is an ex post facto punishment, I merely pose this question rhetorically.

2. School-age individuals with special education ne eds are generally entitled to have their needs met through individual ized educational programs at the state's expense under the Individua ls with Disabilities Education Act. See 20 U.S.C. S 1400 et seq.

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

technological developments, such as closed-circuit television, can facilitate the providing of educati onal 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 n ot, however, achieve that goal by making invidious or a rbitrary distinctions. See Zoebel v. Williams, 457 U.S. 55, 61-62 (1982) (invalidating Alaska dividend distribution p rogram because it favored established over new state resid ents). By randomly demonstrating a willingness to assume educ ation 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 in mates in state facilities, fails too for the reasons Plai ntiffs assert. First, the argument that the county inmate populati on 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 inma tes are incarcerated longer and thus are less likely to ret urn to
their education after their release from confinemen t 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 (describ ing harmful effects of break in education of even one y ear). Third, this rationale is undermined by the fact tha t 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, includi ng 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 bea r out this assertion:

(c) The department shall effectuate necessar y procedures for the
transfer of funds from the school district o f residence to the

school
district in which the local correctional ins titution is located. In effectuating the transfer of funds, the depa rtment may deduct the appropriate amount from the Basic Education Funding allocation of any school district which had resident stude nts who were provided
educational services in the local correction al facility.

17inmates, convicted as adults and sentenced to betwe en two

and five years, will be confined in a state or coun ty facility. Thus, there will be some inmates in county faciliti es who are serving the same sentence as state inmates but not receiving the same educational benefit -- and the o nly
reason for the differential treatment is the discre tion 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 ca se. As the District Court concluded, whatever the merits of Pennsylvania's overall concern about the role educa tion plays in promoting security in state facilities, th e Plaintiffs are not requesting that we deny state inmates their educational benefits. See Brian B., et al. v. Commo nwealth 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 ed ucation
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 t hey can only be arbitrary. As a result, the broader distinc tion between state and county inmates cannot itself with stand the limited scrutiny that rational basis review app lies. These flawed justifications bear as little rational relationship to the statutory classification at han d as the reasons offered by the City of Cleburne to justify its differential treatment of the mentally retarded. Se e Cleburne, 473 U.S. at 448-50.

Finally, Plaintiffs attack the two remaining classi fications: expelled students and convicted juvenile delinquent s. The link to expelled students -- apparently Pennsylvani a's

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4. Under Pennsylvania law, felons sentenced to up t o two years are housed in county facilities, those with sentences o ffive years or more are confined to state facilities, and those sentenced t o between two and five years may be incarcerated in either facility at the sentencing judge's
discretion. See 42 Pa. Cons. Stat. S 9762.

18attempt to insulate Subsection A from challenge-- g rants

county-incarcerated, school-age inmates, under 17 y ears of age, the same minimal education benefits that expel led students receive.5 Yet, these two groups of school- age individuals are not similarly situated and thus sho uld not be treated alike. A student is expelled from school when he violates school rules. As a consequence of his viol ation of school rules, an expelled student is denied a publi cly funded education, a quid pro quo. He can still, how ever, 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 violat ion of school rules. Moreover, county-incarcerated, school -age inmates cannot obtain an alternative education, pri vately 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 relation ship between expelled students and school-age county inm ates is so attenuated as to render its linkage irrationa l.

Similarly, the distinction between confined juvenil es and school-age county inmates lacks foundation. The Dis trict Court concluded that the juvenile justice system-- as a distinct penal system -- is primarily concerned wit h rehabilitation, so that providing its inmates an ed ucation 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 inmat esconvicted as adults receive education but countyincarcerated ones do not. For that reason, the expl anation
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

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5. Expelled students under 17 years of age must rec eive 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 b enefit. See Ambreski v. Southeastern Sch. Dist. Bd. of Directors, 421 A. 2d 485, 488 (Pa. Commw. Ct. 1980). This minimum amount ranges from a s 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.

19basis review requires of them: They have demonstrat ed that

there is no rational relationship between the statu tory classification and the purported government objecti ves. See Beach Communications, Inc., 508 U.S. at 315 ("[T]ho se attacking the rationality of the legislative classi fication have the burden `to negative every conceivable basis whi ch might support it.' ") (quoting Lehnhausen v. Lake Shore A uto Parts, Co., 410 U.S. 356, 364 (1973)). As a result, I woul d hold that Subsection A denies this class of school-age c ounty inmates equal protection of the law.

III.

The majority characterizes the Pennsylvania DOE's s et of piecemeal justifications as falling within Lee Opti cal's "one step at a time" rubric, which permits a legislature to conclude that only part of a problem needs to be so lved initially, and under which courts defer to the legi slature's discretion to decide which part that is. See Maj. O p. at 8-9. But the seeming coherence of this incremental appro ach is illusory. As the analysis above demonstrates, the r ationales for distinguishing among county inmates are unrelat ed to cost and space. Nor do Pennsylvania's other purport ed reasons, such as inmate guilt or student expulsion, suggest an alternative policy or evil to link these dispara te categories that set county-incarcerated, school-age inmates
apart.

Nevertheless, despite the absence of a "reasonably conceivable state of facts that could provide a rat ional basis" for the categories, see Heller, 509 U.S. at 320 (citing Beach Communications, Inc., 508 U.S. at 313), the m ajority upholds the classifications with no more than a per functory 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, 35 1 U.S. at 26 (Frankfurter, J., concurring). Thus, while Lee O ptical and Beach Communications, Inc., give states a wide berth to craft solutions to policy problems "one step at a t ime," they do not forbid our review of challenged social or ec onomic legislation.

20In conclusion, a state is not obligated by the fede ral

Constitution to provide its citizens with a free pu blic education. Once it decides to do so, however, it ma y not arbitrarily deny some of its citizen access to this benefit. In Pennsylvania's case, its hodgepodge of justificatio ns 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 exp elled students, with whom they share no rational connecti on, amounts to just this type of prohibited arbitrary d enial. As Justice Jackson once wisely observed, "we are much more likely to find arbitrariness in the regulation of t he few than of the many." Railway Express Agency, 336 U.S. at 1 13.Pennsylvania's restriction of education to countyincarcerated, school-age inmates aptly proves this point.

I believe, therefore, that the Plaintiffs have show n 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 Plai ntiffs have satisfied the other elements required for a prelimi nary injunction.6

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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6. Because the District Court concluded that the Pl aintiffs were unlikely to prevail on the merits, it refrained from evaluat ing the other elements required for a preliminary injunction. See Brian B. , 51 F. Supp. 2d at

635.

21