The opinion of the court was delivered by: Bartle, C.J.
Plaintiffs in this putative class action are eight African American students or former students of the Lower Merion School District, their parents, and two advocacy organizations, the Concerned Black Parents, Inc. and The Mainline Branch of the NAACP. Each of the students or former students is classified as having a learning disability. Plaintiffs Amber, Crystal, and Michael Blunt have sued the Lower Merion School District and Lower Merion School Board (hereinafter "District Defendants"), while the remaining plaintiffs have sued the Pennsylvania Department of Education ("PDE") in addition to the District Defendants.
Pending before the court is the motion of the District Defendants for judgment on the pleadings against the Blunt plaintiffs under Rule 12(c) of the Federal Rules of Civil Procedure with respect to Count VI of the Third Amended Complaint. Count VI, brought solely by the Blunt plaintiffs, asserts a claim under the Pennsylvania Public School Code, 22 PA.
Plaintiffs, other than the Blunts, currently seek to remedy alleged wide-spread violations of the Individuals with Disabilities Education Act ("IDEA), 20 U.S.C. § 1400, et seq., Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, et seq., § 504 of the Rehabilitation Act, 29 U.S.C. § 794, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution. The Blunt plaintiffs now assert only a claim under state law. All plaintiffs contend that the defendants have failed to ensure that African American students with a learning disability receive an appropriate education without regard to race.
The Complaint in this matter was filed on July 30, 2007. The Amended Complaint was filed on September 26, 2007. On February 15, 2008, we ruled on the defendants' motion to dismiss the Amended Complaint for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim for which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Among other things, we dismissed all of the Blunts' federal claims. On August 5, 2008, the Third Amended Complaint was filed.
In deciding this motion for judgment on the pleadings, we review the facts and inferences to be drawn from the pleadings in the light most favorable to the non-movant as we would in connection with a motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Janney Montgomery Scott, Inc. v. Shepard Niles, Inc., 11 F.3d 399, 406 (3d Cir. 1993).
Generally, the plaintiffs contend the Lower Merion School District routinely misuses below grade level programs and modified classes by placing African American students in these programs in order intentionally to segregate them from their class and the regular curriculum. They further allege the School District removes these students, in some cases, to avoid evaluating their eligibility for services under the IDEA. The PDE has allegedly failed to enforce the IDEA's mandate that it ensure that children with disabilities receive an appropriate education in the least restrictive environment. The Non-Blunt plaintiffs further contend the PDE has failed to ensure that African American children are not proportionally over-represented in special education classes.
The plaintiff students or former students involved in this litigation are Amber Blunt, Lydia Johnson, Saleema Hall, Chantae Hall, Walter Whiteman, Eric Allston, Richard Coleman and Quiana Griffin. Amber Blunt is a 20 year old African American graduate of the Lower Merion School District. While attending school, she was identified as a student with a specific learning disability.
According to the Third Amended Complaint, plaintiff Lydia Johnson is a 19 year old African American student who was eligible to be graduated in June of 2006. Lydia's mother chose to keep her in the School District for a thirteenth year because of Lydia's severe reading deficiencies. The School District first identified Lydia's learning disability in her first grade year. She was referred for Occupational Therapy and also received intensive learning support services. A re-evaluation in her sixth grade year revealed Lydia's reading skills were significantly below grade level and her math skills were similarly below grade level. In the tenth grade, Lydia's disability was classified as "educably mentally retarded." In 2004, the Lower Merion School District concluded that "to meet success, Lydia requires a small group setting with some individualized instruction particularly when any reading is required." Specialized instruction was not provided. Although a 2006 re-evaluation report concluded that Lydia's reading skills were significantly below grade level, the School District determined that she met the graduation requirements.
Plaintiff Saleema Hall, it is alleged, is an African American seventh-grade student currently enrolled in Welsh Valley Middle School. She suffers from a speech or language impairment and receives services under the IDEA. Saleema has been continually placed in below grade level classes.
Plaintiff Chantae Hall purportedly has been a student in the Lower Merion School District since kindergarten. She is currently in the tenth grade. Chantae participated in a tutorial program between her kindergarten and first grade year. She was identified as needing specially designed instruction in the second grade. Throughout her years in the School District, a learning support teacher has been assigned to Chantae's regular teacher, and she has participated in a part-time learning support program.
The Third Amended Complaint asserts that plaintiff Eric Allston is a 19 year old African American graduate of Lower Merion School District. Eric was identified as a student with a disability and was placed in special education classes. During his tenure in the Lower Merion School District, Eric participated in an itinerant emotional support program, the REACH pullout reading program, and the PRIDE program, which is an emotional support initiative. In the seventh grade, Eric was transferred to Welsh Valley Middle School. For high school, Eric attended the Harriton High School, which also offered him participation in the PRIDE program. In eleventh grade, Eric participated in vocational technical classes. In November of 2004, he was transferred to Lincoln High School, a private school located in ...