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George A. v. Wallingford Swarthmore School Dist.

September 3, 2009

GEORGE A., THROUGH HIS PARENTS AND NEXT FRIEND, TAMEKA A. PLAINTIFFS,
v.
WALLINGFORD SWARTHMORE SCHOOL DISTRICT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Schiller, J.

MEMORANDUM

George A. ("Ricky"), through his mother, Tameka A., and Tameka A. in her own right and as Ricky's parent and natural guardian, sued the Wallingford Swarthmore School District ("WSSD") and Rudolph Rubeis, the Superintendent for WSSD. The Complaint contains six counts but the issue currently before the Court is where Ricky will start his senior year of high school. To settle that issue, Ricky and his mother filed a motion for a temporary restraining order, claiming that WSSD's refusal to allow Ricky to attend Strath Haven High School ("Strath Haven") violates the "stay-put" provision of the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1415(j). The Court held a hearing on the motion on September 1, 2009. For the reasons that follow, the motion is granted.

I. BACKGROUND

Ricky is eighteen years old and lives with his mother, Tameka, in the Chester Upland School District ("CUSD"). He cannot hear at all in his left ear and has only limited residual hearing in his right ear. His hearing loss cannot be corrected with the use of hearing aids. His disability qualifies him for special education services under the IDEA. Ricky requires intensive language remediation and needs the daily support of a teacher of the deaf. He also needs appropriate acoustic accommodations, daily equipment checks and weekly consultations by an audiologist.

Although Ricky lives in the CUSD, since age three he has attended the hearing support program operated by the Delaware County Intermediate Unit ("DCIU"), which is located in the WSSD. The DCIU teaches deaf children how to listen and speak. It has provided Ricky numerous services beginning in pre-school, including digital hearing aids and FM auditory services. Ricky was not attending his neighborhood school in the CUSD because, according to his June 11, 2008 Individualized Education Plan ("IEP"), "Special Education supports and services required in the student's IEP cannot be provided in the Neighborhood School." Therefore, Ricky has attended Strath Haven since ninth grade. He is a member of the Strath Haven community, as he has been mainstreamed for math, history, career college preparation, and gym; he also played on the school's football team.

During the 2007-08 school year, Ricky was involved in two physical altercations at school. As a result, his IEP team conducted a functional behavior assessment and his IEP was modified in June of 2008 to address his behavioral issues. The June 2008 IEP is the last one with which Tameka agreed. The IEP anticipated that the duration of services and programs offered to Ricky would extend to June 11, 2009 and that Ricky would graduate in 2010.

The IEP pointed out that Ricky's hearing loss interfered with his ability to access oral information as well as his ability to fully comprehend information, such as directions, and new concepts, when presented orally. Although not behaviorally aggressive or abusive, Ricky often refused support and instruction from his hearing support teacher. The IEP noted however that Ricky's willingness to receive help had recently improved and that he also put forth a more concerted effort to succeed in his schoolwork. He also experienced "emotional frustration" due to the loss of one grandparent and the sickness of another. The IEP reported that Ricky has good social skills, is inquisitive, athletic, artistic, and has a good sense of humor.

According to the IEP, Strath Haven was the "agency responsible" for helping Ricky take the ACT exam, meeting college entrance requirements, and providing a guidance counselor to discuss post-secondary schooling options. The IEP also articulated extensive goals and objectives aimed at, inter alia, expanding his vocabulary, sharpening his listening skills, and improving the intelligibility of his speech. The IEP also called for program modifications and specially designed instruction to assist Ricky's learning, including a note taker, access to captioned films, access to an FM system and monitoring of his auditory equipment. Ricky also received consultations with an audiologist, psychological counseling, and spent time in a small group for language and speech help.

In October of 2008, Ricky was involved in another physical altercation at Strath Haven for which he was suspended for five days. On October 28, 2008, with the June 11, 2008 IEP still in effect and following Ricky's five-day suspension, Ricky's IEP team met to determine whether his outburst was a manifestation of his disability. Ultimately, the team concluded that Ricky's disability did not cause the conduct for which he was suspended nor was it directly or substantially related to his disability. It was noted, however, that his disability may have been a small reason for his behavior. The IEP team also found that Ricky's altercations were not the direct result of a failure to implement his IEP. Consequently, a forty-five day diagnostic placement in another school was recommended to help determine his needs. A Notice of Recommended Educational Placement ("NOREP") dated October 29, 2008, proposed to change Ricky's educational placement for disciplinary reasons and stated that he was to attend County Alternative High School for a forty-five day placement. The NOREP stated that if the action was not approved by Ricky's parent, he would remain in his current placement only if mediation or a due process hearing was requested. If not, the recommended action would be implemented. Tameka expressed her desire to explore other alternatives but relented and signed the NOREP on December 2, 2008 because Ricky was not permitted to attend school until she signed. On December 4, 2008, Ricky began his schooling at the County Alternative High School, which maintains a segregated high school environment for students with behavioral and emotional needs.

A reevaluation report completed while Ricky was at County Alternative High School concluded that he appeared to be working hard to avoid conflicts and physical altercations with peers and that he was often pleasant and cooperative. His grades were also much improved. However, the report also noted that both Ricky and Tameka wished for his return to Strath Haven.

A proposed IEP dated June 30, 2009 sought to place Ricky at Chester High School for his senior year but notes that "Special Education supports and services required in the student's IEP cannot be provided in the neighborhood school." Finally, an August 6, 2009 NOREP recommended that Ricky enroll in Chester High School for the 2009-10 academic school year because he was not permitted to return to Strath Haven. A number of options were considered, including a return to WSSD, but Strath Haven refused. Tameka refused to agree to the placement and sought a due process hearing.

II. DISCUSSION

The "stay-put" provision of the IDEA, 20 U.S.C. § 1415(j), states that "during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child . . . until all such proceedings have been completed." The stay-put provision operates as an automatic injunction and prevents schools from unilaterally altering a student's educational placement and thereby excluding disabled students from school. Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3d Cir. 1996); Honig v. Doe, 484 U.S. 305, 323 (1988). The language of the stay-put provision clearly demonstrates Congress' intent that "all handicapped children, regardless of whether their case is meritorious or not, are to remain in their current educational placement until the dispute with regard to their placement is ultimately resolved." Pardini v. Allegheny Intermediate Unit, 420 F.3d 181, 190 (3d Cir. 2005) (quoting Drinker, 78 F.3d at 865).

The issue before this Court is what was Ricky's "then-current educational placement" at the time the dispute arose. Under the stay-put provision, the current educational placement "refers to the operative placement actually functioning at the time the dispute first arises. If an IEP has been implemented, then that program's placement will be the one subject to the stay put provision." Drinker, 78 F.3d at 867 (quoting Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625-26 (6th Cir. 1990)). If no IEP is in effect when the dispute arises, the stay-put placement is that under which the child is actually receiving instruction at the time the dispute arises. See Pardini, 420 F.3d at 190-91. The "then-current educational placement" is defined as the IEP "actually functioning when the stay-put is invoked." Drinker, 78 F.3d at 867. It is usually the placement found in the ...


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