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Emily Z. v. Mt. Lebanon School Dist.

October 29, 2007

EMILY Z., A MINOR BY HER PARENTS AND NEXT FRIENDS, RICHARD Z AND NORA Z., RICHARD Z. AND NORA Z. PLAINTIFFS,
v.
MT LEBANON SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Ambrose, Chief District Judge

OPINION and ORDER OF COURT

SYNOPSIS

A student and her parents contend that the Defendant School District condoned excessive bullying and thereby denied her a free appropriate public education ("FAPE"). The Family seeks redress under the Individuals With Disabilities Education Act ("IDEA"), the Rehabilitation Act ("Rehab Act"), the Americans With Disabilities Act ("ADA") and 42 U.S.C. § 1983. The School District seeks the entry of summary judgment in its favor on all claims. I agree with the School District that the entry of judgment in its favor is appropriate.

OPINION

Plaintiff Emily Z ("the Student") was a third grade student at Defendant Mt. Lebanon School District ("the School District") during the 2003-2004 school year. She had been identified as "other health impaired" because of a nonverbal learning disability and an Individualized Education Plan ("IEP") had been developed prior to the commencement of that school year. According to the Student's parents, shortly after the beginning of the school year, the Student began being bullied and verbally attacked by her peers. The Student's Mother tracked the incidents in her daily calendar and represents that they complained of the same to the School District on an almost daily basis. Based upon unsatisfactory peer interactions, the School District began collecting data and conducting observations for a functional behavioral assessment in the Fall of 2003.

The Family contends that shortly before Thanksgiving, the Student was choked and slammed against the wall of the coatroom by a peer. Dr. Christine Heisler, the Principal, investigated the incident and required both children who were involved to apologize to one another. Dr. Heisler spoke to the children in the class about appropriate behavior and classroom procedures were changed.

Specifically, a behavior support plan was added to the Student's IEP in December, 2003. Janet Niedzwicki, an inclusion specialist, provided additional support to the classroom. A personal care assistant was also assigned to the classroom, and Cathy McCain, a guidance counselor, gave classroom lessons to the students regarding behavior, feelings and acceptance.

The Student's behavior plan was modified in March of 2004. A personal care assistant was assigned to help the Student interact appropriately with other students on the playground, during lunch and in the hallways. The Student was also provided with social skills training in a small group setting two times a week during the second semester of the 2003-2004 school year. Though the School District sought and obtained permission to reevaluate the Student, the evaluation was not completed because the Student and her Family moved from the School District.

The Family contends that the School District never satisfactorily addressed the bullying and verbal attacks. The Family requested a due process hearing alleging that the IEP was not being implemented properly, that the Student had not received a free, appropriate public education under the IDEA, and that § 504 of the Rehab Act had been violated because of the bullying and verbal attacks at school.*fn1 Following four due process hearings, the Hearing Officer concluded that the School "District was not indifferent and did take steps to address the concern that [the Student] was being victimized." The Hearing Officer also determined that the School District had not denied the Student a FAPE and therefore she was not entitled to compensatory education. Finally, the Hearing Officer found that the Student had not been discriminated against under § 504 of the Rehab Act.

The Family appealed the decision to the Pennsylvania Department of Education Appeals Panel. The Appeals Panel*fn2 concluded that Emily had made significant academic progress during the academic year and that she had made progress in IEP goals. It also determined that the School District personnel responded in an appropriate manner to complaints of negative interactions with other children. Specifically, the Appeals Panel found that the School District "neither tolerated, condoned or tacitly supported negative reactions by other students." Consequently, the Appeals Panel agreed with the Hearing Officer that the Student had not been denied a FAPE under the IDEA and that she was not entitled to compensatory education.

The Family then initiated this litigation. They contend that the Student was denied a FAPE in violation of the IDEA, 20 U.S.C. § 1400 et seq., that the Student was discriminated against in violation of § 504 of the Rehab Act, 29 U.S.C. § 794, that she was discriminated against in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. §1201 et seq., and that the School District violated 42 U.S.C. § 1983. The School District has filed a Motion for Summary Judgment. See Docket No. [21]. The Family has filed a three and one half page, largely non-responsive, Opposition. After careful consideration, and for the reasons set forth below, the Motion is granted.

ANALYSIS

I. THE IDEA CLAIM

A. Standard of ...


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