Opinions of the United
2000 Decisions                                                                                                             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Precedential or Non-Precedential: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 school-
aged 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, 

(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., 

, 158 (3d
Cir. 1999) (citing ACLU v. Black Horse Pike Regional Bd. of
Educ., 

, 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, 

, 2000 U.S. App.
LEXIS 14419, at *27 (3d Cir. June 22, 2000) (quoting
Maldonado v. Houstoun, 

, 183 (3d Cir. 1998),
cert. denied, 

(1999)).

II.

We have held that the heightened scrutiny applied in
Plyler v. Doe, 

(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, 

, 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, 

, 165 (3d Cir.
1989) (quoting Kadrmas v. Dickinson Public Schools, 

, 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 

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.

(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, 

, 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." 

. 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, 

, 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 line-
drawing "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., 

, 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, 

(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. 

. 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."

. 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, 

, 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., 

, 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., 

, 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 second-
guess 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, 

("[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," 

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, 

, 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, 

, 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, 

, 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, 

, 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 , 

(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." 

. 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., 

, 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, 

, 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 

In
United States Dept. of Agriculture v. Moreno, 

(1973), it was Congress's ulterior motive to prevent
"hippies" from participating in the food stamp program. See

Unlike Cleburne and Moreno, here we have no
"smoking gun" that proves antipathy toward county-
incarcerated, 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: county-
incarcerated school-age inmates; state-incarcerated school-
age 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." 

. 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, 

. 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 per-
student 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, 

, 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-- pre-
trial 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, 

, 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

.

Finally, Plaintiffs attack the two remaining classifications:
expelled students and convicted juvenile delinquents. The
link to expelled students -- apparently Pennsylvania's
_________________________________________________________________

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 

n.23. While sensible, this explanation does not go on
to explain why state-incarcerated, school-age inmates
convicted as adults receive education but county-
incarcerated 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, 

, 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 

.

                               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, 

("[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., 

, 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 

(citing
Beach Communications, 

), 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 

(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 

.
Pennsylvania's restriction of education to county-
incarcerated, 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 

.
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