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R.B., A Minor, By and Through Her Parent v. Mastery Charter School

December 29, 2010


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


On November 17, 2010 Plaintiff R.B., acting through her mother ("Parent"), brought this action against Mastery Charter School ("Mastery") and The School District of Pennsylvania ("District"), appealing the decision of a Due Process Hearing Officer who refused to return R.B. to Mastery during the pendency of due process hearings conducted pursuant to the Individuals with Disabilities Education Act ("IDEA"). Presently before the Court is Plaintiff's Motion for a Mandatory Stay-Put Injunction, *fn1 and the District and Mastery's separate Motions to Dismiss Plaintiff's complaint pursuant to 12(b)(1) and (6). *fn2 Having considered the parties' arguments fully, and the evidence and testimony adduced at a hearing before this Court on December 16th and 17th, 2010, and for the reasons stated below, the Court enters the following Memorandum and accompanying Order.



R.B. is a 19-year-old female diagnosed with Trisomy 21 (Down's Syndrome), who currently lives with her mother in Philadelphia, Pennsylvania. *fn4 She qualifies for special education services under the IDEA *fn5 because the results of educational, cognitive, and functional assessments identify her as a student with mild to moderate retardation. According to her most recent Individualized Education Plan ("IEP")-which is outdated by two years-R.B.'s academic level of functioning ranges between a second to third grade instructional level. *fn6 In addition to her cognitive disabilities, R.B. also has physical impairments that impede her ability to function independently in the general classroom environment: she was born with a congenital heart defect and underwent open heart surgery to repair a ventral-septal defect before the age of two, has "hypermobile joints," a heart murmur, soft palate, and sleep apnea. *fn7 R.B.'s cognitive and physical disabilities substantially impede her ability to participate in the general classroom setting, and according to numerous IEPs and Evaluation Reports, she has received support from Therapeutic Support Staff (TSS) *fn8 , and one-to-one academic aides *fn9 throughout her academic career.

R.B. attended her designated "neighborhood school," the District's Pickett School, from 2005 until 2007, when Mastery took over management of the school. Although students are typically required to participate in a lottery to gain admittance to Mastery, neighborhood students already attending Pickett-including R.B.-automatically became students of Mastery. After Mastery took over Pickett, responsibility for implementing R.B.'s special education program transferred from the District to Mastery.

The Mastery IEP team developed two IEPs for R.B. The first Mastery IEP, dated November 2, 2007, provided a one-to-one aide for R.B. *fn10 Daniel Kurtz, who was responsible for supervising the implementation of R.B.'s educational program at the time the 2007 IEP was developed, testified that the IEP team provided the aide solely because of "the school district's obligation to provide a one-to-one, based on what their IEP said was a court order." *fn11 Kurtz further testified that R.B.'s IEP team did not believe that R.B. showed a need for one-to-one academic assistance. *fn12 Therefore, R.B's 2008 IEP did not include a one-to-one aide as a related service. *fn13 It is unclear whether a one-to-one academic aide ever actually provided support to R.B. while she attended Mastery, *fn14 and Parent contends she assumed the responsibility for providing the aide, and occasionally served as R.B.'s aide in the classroom and elsewhere due to staffing and cost considerations. *fn15

Although it was not documented in either Mastery IEP, while R.B. attended Mastery, she received individual support from a TSS, who, among other responsibilities, monitored R.B.'s health issues, assisted R.B. to and from school, helped her transition between classes, and helped her copy text from the chalkboard into her notes. *fn16 Parent testified that TSS workers were unreliable, and that when they were absent, she would escort R.B. to school, situate her in the classroom, and sometimes assist her in the classroom throughout the school day. *fn17 Although Mastery's personnel controverted Parent's assertion that she was permitted to remain in the classroom during the day, all agreed that Parent would regularly escort R.B. to and situate her in her first class. *fn18

The record also shows that Mastery accommodated R.B.'s health needs by modifying its strict attendance policy requirements. *fn19 Parent testified that R.B.'s sleep apena, in combination with her heart condition, made it impossible for her to consistently wake up by the beginning of school, and caused her to miss school frequently. *fn20 Because of the variability of R.B.'s attendance and her medical needs, until April 2009, Mastery did not record attendance for R.B., nor did they pursue standard truancy protocols in response to R.B.'s frequent absences. *fn21

In March 2009, a conflict developed between Mastery and Parent after Parent brought R.B. to school earlier then usual, and had difficulty locating R.B.'s classroom. Ms. Seaton, the principal of Mastery, testified that when Parent entered the building, she refused to sign in and then disrupted an ongoing class and a faculty meeting. *fn22 After the incident, on March 6, 2009, Ms. Seaton sent Parent a letter limiting Parent's entry into Mastery, informing her that she was "no longer welcome to enter our building unless [she had] a scheduled appointment with an administrator." *fn23 Parent interpreted the letter as a no-trespass notice, which made it impossible for her to transport R.B. to school and situate her in the classroom, and thus prevented R.B. from attending school. Soon after receiving the letter, Parent stopped bringing R.B. to school.

Emails between Mastery personnel indicate that on April 28, 2009, Mastery-for the first time-began to mark R.B. absent. *fn24 Although it is unclear what prompted the change in Mastery attendance procedures for R.B., a May 12 email about how to "code" R.B's attendance noted concerns that Parent's "decision to keep [R.B.] out of school due to legal action [was] hurting our attendance figures." *fn25 On June 19, 2009, after sending three written communications to the parent, and pursuant to Pennsylvania State Law, *fn26 Mastery unilaterally dropped R.B. from enrollment. There is no evidence that Mastery provided Parent with a copy of the Procedural Safeguards for special education students, attempted to convene a meeting of R.B.'s IEP team, or considered whether or not R.B.'s absences were a manifestation of her disability prior to dropping R.B. from the rolls. Since the disenrollment was unilateral, it occurred without the informed consent of Parent.

R.B. has not been in school-nor has she received any special education services-since this dispute arose in March 2009. She is now nineteen years old, and will only qualify for special education services until age twenty-one.


On April 16, 2009, Parent, acting pro se , made her first attempt to initiate legal proceedings by filing a complaint against the District and Mastery in the Eastern District of Philadelphia. *fn27 Her complaint was dismissed on August 28, 2009 due to procedural deficiencies. *fn28 Just under a year later, on March 29, 2010, Parent filed a Complaint and a Request for a Preliminary Injunction and Temporary Restraining Order against Mastery and the District in the Philadelphia Court of Common Pleas. *fn29 The Court dismissed her request after R.B.'s former counsel failed to appear at the hearing, and upon finding that the Plaintiff had failed to establish service of the Complaint.

On October 5, 2010, Parent filed a Complaint for Due Process in the Pennsylvania Office for Dispute Resolution against Mastery and the District. After both Defendants moved to dismiss the complaints, the Hearing Officer asked Parent to respond and asked the parties to brief the issue of where R.B. belonged (or should "stay-put") during the pendency of the administrative proceedings. Parent and the District argued that Mastery was the appropriate stay-put placement for R.B. On November 1, 2010, the Hearing Officer declined to determine R.B's stay-put placement until the underlying Due Process complaint was resolved, finding that "there was no operative placement actually functioning at the time this dispute first arose," and that the "legitimacy of the Student's disenrollment is a mixed question of fact and law that cannot be resolved before the hearing." *fn30

On November 17, 2010, Parent, on behalf of R.B., appealing the Hearing Officer's refusal to issue a stay-put order during the pendency of these proceedings by filing this Complaint and pending Motion for a Stay-Put Injunction in this Court. Both Defendants subsequently moved to dismiss the complaint. On December 16th and 17th, this Court conducted an evidentiary hearing and has now reviewed the testimony, arguments, evidence, and governing law. All Motions are no ripe for disposition.


In 1970, Congress enacted the IDEA to ensure that "all children with disabilities are provided a 'free appropriate public education which emphasizes special education and related services designed to meet their unique needs [and] to assure that the rights of [such] children and their parents or guardians are protected.'" *fn31 "[T]he primary vehicle for implementing these congressional goals" is the IEP, *fn32 which describes the child's present educational and functional performance, establishes annual goals for improvements in that performance, and "describes the specially designed instruction and services that will enable the child to meet those objectives." *fn33 In

addition to the protections offered by the IEP, Congress also included procedural safeguards within the IDEA that allow parents and students to challenge a local educational agency's decisions through administrative proceedings. *fn34 Pennsylvania has adopted a two-tier special education administrative hearing system that consists of an evidentiary hearing at the local level before a single impartial hearing officer, ...

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