IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
December 29, 2010
R.B., A MINOR, BY AND THROUGH HER PARENT , PLAINTIFF,
MASTERY CHARTER SCHOOL, AND THE SCHOOL DISTRICT OF PHILADELPHIA DEFENDANTS.
The opinion of the court was delivered by: Rufe, J.
MEMORANDUM OPINION AND ORDER
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.
A. F ACTUAL B ACKGROUND*fn3
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 According to her most recent Individualized Education Plan ("IEP")-which is outdated by two years-R.B.'s academic level of functioning ranges between a second to third grade instructional level.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.
B. P ROCEDURAL H ISTORY
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.
C. L EGAL B ACKGROUND
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, followed by an independent review at the "state" level before a panel of three impartial appellate officers. *fn35
During the pendency of judicial or administrative proceedings, §1415(j) of the IDEA-commonly referred to as the "stay-put" provision-mandates that "unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement." *fn36 Under this provision "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." *fn37
1 . Charter Schools and the IDEA
The IDEA conditions the grant of federal education funding upon
the requirement that states provide a "free appropriate public
education" (FAPE) to children who are identified with one or more of
thirteen specific disabilities. *fn38 State
Educational Agencies fulfill the federal mandate by ensuring that each
local educational agency ("LEA") complies with IDEA. *fn39
Each LEA has an affirmative obligation to identify and
serve appropriately all eligible children with disabilities within its
Under Pennsylvania's statutory scheme, charter schools are independent LEAs and "assume the duty to ensure that a FAPE is available to a 'child with a disability' in compliance with IDEA and its implementing regulations." *fn40 Under this scheme, Mastery Charter School bears full responsibility for providing special education services to students with disabilities.
A. T HE S CHOOL D ISTRICT' S 12(b)(6) MOTION TO DISMISS
A complaint can be dismissed for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) if the plaintiff has not presented "'enough facts to raise a reasonable expectation that discovery will reveal evidence' of [a] necessary element." *fn41 A court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine, whether under any reasonable reading of the complaint, the plaintiff may be entitled to relief." *fn42 However, Plaintiffs' "bald assertions" or "legal conclusions" need not be accepted as true by the court. *fn43 At this stage, the court does not determine whether the non-moving party will prevail, but whether it will be permitted to offer evidence in support of the claims in the complaint. *fn44
This particular pleading standard, described in Federal Rule of
Civil Procedure 8(a)(2) as "a short and plain statement of the claim
showing that the pleader is entitled to relief" *fn45
has been addressed twice by the Supreme Court of the
United States in recent years, first in Bell Atlantic
Corp. v. Twombly *fn46 and then in
Ashcroft v. Iqbal. *fn47 The Court in Twombly
articulated a "plausibility" standard that a plaintiff must meet by
its factual allegations to survive a motion to dismiss.
*fn48 The Court described it as a level higher
than suspicion or speculation. *fn49 The
Iqbal Court clarified that "where the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not 'show[n]'-'that the pleader is
entitled to relief.'" *fn50
During the proceedings on December 16, 2010, the Court granted the School District's Motion to Dismiss Plaintiff's Motion for failure to state a claim upon which relief can be granted. *fn51
Although the Complaint names the School District as a defendant, it does not seek any relief from the school district. Similarly Plaintiff's Motion for a Mandatory IDEA Stay-Put Injunction does not seek relief against the School District; plaintiff seeks an order that Mastery is R.B.'s "stay-put" educational placement during the pendency of proceedings. Indeed, Plaintiff conceded that "based on our presentation of evidence we have not presented a case against the School District of Philadelphia." *fn52 Because the complaint makes no claims against the School District, its Motion to Dismiss for failure to state a claim is hereby GRANTED.
B. J URISDICTION
The School District and Mastery both move to dismiss the Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction because Parent did not exhaust her administrative remedies. *fn53
Although this Court has jurisdiction to hear disputes arising under the IDEA pursuant to 20 U.S.C. § 1415(i)(3)(A), before an aggrieved individual may bring an action in state or federal court for a violation of the IDEA, they typically must seek recourse from the administrative procedures established by the statute. *fn54 Ordinarily, the plaintiff's failure to exhaust administrative remedies deprives the court of subject matter jurisdiction over any IDEA claims. *fn55 Here, Parent has not exhausted her administrative remedies: the hearing officer's decision was issued prior to the commencement of any due process hearing on the merits of this case, which has been continued until January 2011.
But the exhaustion requirement is not an inflexible rule. In enacting IDEA; "Congress specified that exhaustion is not necessary if (1) it would be futile to resort to the IDEA's due process procedures; (2) an agency has adopted a policy or pursued a practice of general applicability that is contrary to the law; or (3) it is impossible that adequate relief can be obtained by obtained by pursuing administrative remedies." *fn56
The Plaintiff "bear[s] the burden of showing that [she] should be
permitted to avoid the administrative procedures." *fn57
Here-noting that Pennsylvania administrative due process
hearings can take "well over a school year," and citing specific
Pennsylvania due process cases as evidence-Plaintiff persuasively
argues that it is impossible to obtain adequate relief from violations
of § 1415(j) through the administrative process. *fn58
Although the exhaustion requirement applies to challenges to a proposed IEP, many courts have recognized that it does not apply to an action to establish a child's pendent placement under the stay-put provision. *fn59 For example, the Ninth Circuit has concluded that "exhausting the administrative process would be inadequate because the stay-put provision (and therefore the preliminary injunction) is designed precisely to prevent harm while the proceeding is ongoing." *fn60
Similarly, in Murphy v. Arlington Central School District Board of
Education, then-Judge Sotamayor held that "[t]he administrative
process is 'inadequate' to remedy violations of § 1415(j) because,
given the time-sensitive nature of the IDEA's stay-put provision, 'an
immediate appeal is necessary to give realistic protection to the
claimed right.'" *fn61 Because "[a] belated
administrative decision upholding a student's stay put rights provides
no remedy for the disruption already suffered by the student . . . as
a practical matter, access to immediate interim relief is essential
for the vindication of this particular IDEA right." *fn62
That conclusion is consistent with the principle that the
exhaustion requirement does not apply to stay-put injunctions because
the purpose of the stay put is to prevent disruption during
proceedings to exhaust. The Supreme Court has relied on this principle
in explaining that both parents and school officials could seek
injunctive relief to enforce or alter the pendent placement of a child
under the stay-put provision. *fn63
Although the Third Circuit has not addressed the issue, the reasoning behind courts' rejection of the exhaustion requirement in this context is persuasive. Because we find that "access to immediate interim relief is essential for the vindication of this particular IDEA right," this Court has subject matter jurisdiction over this matter. *fn64 Accordingly, the 12(b)(1) motions of both Mastery and the District will be denied.
C. T HE S TAY-P UT P ROVISION
1. Legal Standard
The stay-put provision represents Congress's "policy choice" that
"the danger of excluding a handicapped child entitled to an
educational placement from that placement was much greater than the
harm of allowing a child not entitled to an educational placement to
remain in that placement during the pendency of judicial
proceedings." *fn65 Accordingly, the stay-put
provision "protect[s] handicapped children and their parents during
the review process," by "block[ing] school districts from effecting
unilateral change in a child's educational program." *fn66
The stay-put provision functions, "in essence, as an
automatic preliminary injunction" by directing that "during the
pendency of any proceedings conducted pursuant to this section . . .
the child shall remain in the then-current
educational placement of the child." *fn67
Although Plaintiff need not meet the traditional preliminary injunction standard, *fn68 an injunction under the stay-put provision is only available where the LEA proposes or effects a change in a student's "educational placement." *fn69 Therefore, the threshold question is whether Mastery's decision to disenroll R.B. constitutes a change in educational placement. If R.B.'s disenrollment is not a change in educational placement within the meaning of the IDEA, then Mastery was free to disenroll R.B. If, however, R.B.'s disenrollment was a change-in-placement, Mastery is obligated to permit R.B. to remain in her "then-current educational placement." Therefore, if Parent shows that a change in placement has occurred, this Court's narrow inquiry is limited to identifying the proper stay-put placement. *fn70
2. Change in Educational Placement
Although neither the text nor legislative history of IDEA defines the phrase " change in educational placement," the Third Circuit "gives the term . . . an 'expansive reading.'" *fn71 Because the "touchstone" inquiry is "whether the decision is likely to affect in some significant way the child's learning experience," *fn72 Plaintiff must "identify, at a minimum, a fundamental change in, or elimination of a basic element of the education program." *fn73 Under this approach, "'identifying a change in . . . placement is something of an exact science,'" and "is, necessarily, fact specific." *fn74
Although there are no reported judicial decisions considering whether a public school's unilateral disenrollment of special education students is a change in placement, there is a substantial body of case law analyzing whether the modification or termination of an educational program constitutes a "fundamental change" or "elimination." *fn75 Those cases distinguish between inconsequential modifications in a student's program and those which "significantly affect the child's learning experience." *fn76 Unlike program modifications, which change an aspect of a child's special education program, eliminations result in the complete cessation of the delivery of special education services. Courts have found indefinite expulsions, *fn77 graduation, *fn78 and transfers from a school outside the district to those within the district *fn79 all implicate the stay-put rule.
Here, Plaintiff argues that Mastery twice changed R.B.'s placement. First, Parent asserts that when Mastery "banned" her from coming to its campus, she was no longer able to act as a oneto-one aide for R.B. In Parent's view, that change eliminated a crucial related service necessary for R.B. to function in the classroom and constituted a "fundamental change." Second, Parent argues more compellingly that Mastery terminated R.B.'s educational placement by unilaterally disenrolling her on June 19, 2009. *fn80
In response, Mastery argues that "there has been no change in this student' [sic] program or placement," and claims that the true issue here "is not program or placement under the IDEA, but truancy." *fn81 Citing Pennsylvania Law, Mastery claims that it was obligated to disenroll R.B.-regardless of either her Special Education status or the dispute between the Parties- because R.B. had been absent for ten consecutive days. *fn82 Mastery shifts the blame for R.B.'s dis-enrollment from itself to Parent, and claims that "[i]t was not Mastery that precluded the student's attendance, it was the parent." *fn83 In addition, Mastery argues that R.B.'s disenrollment was only a "change in location" and not a change in educational placement.
Because this Court now holds that Mastery's unilateral disenrollment of R.B. was a change in placement, it need not decide herein the highly controverted issue of whether R.B.'s Parent was a "fundamental part" of R.B.'s program-or whether Mastery actually barred Parent from its campus. That said, if Mastery required Parent to make an appointment with an administrator in order to bring R.B. to school and situate her in the classroom every time a TSS worker was absent, they created an impossible situation. The record establishes that R.B.'s educational program as-implemented accommodated R.B.'s inability to independently arrive at school and situate herself in her classroom. Given the need for expedient decision-making in the context of a injunctive hearing, however, and the availability of an alternate grounds upon which our decision may rest, we decline to undertake that inquiry, which is better suited for the due process proceedings.
The decision to disenroll R.B., however, is a different matter. *fn84 Although the question of whether a disenrollment constitutes a change in placement is a matter of first impression, principles drawn from the body of law governing disciplinary-based exclusions and graduations provide a useful analytical framework. In both graduation and disciplinary exclusion cases, any change in a special education child's placement must comply with the procedural safeguards-regardless of what outcome state or local laws might dictate for a special education student's non-disabled peers. *fn85
For instance, the disciplinary removal of a student with a
disability is construed as a change in placement, and may require a
school to evaluate the student, conduct a team meeting, propose an
alternate special education plan, and provide special education
services pending an agreed upon placement. *fn86
Similarly, courts have held that graduation is a "change
in placement" which triggers
the protections of the stay-put provision. In Cronin v. Board of
Education, *fn87 the court analogized
graduation to long-term suspensions and expulsions because both
"result[ed] in total exclusion of a child from his or her educational
placement." *fn88 Noting that "[n]o change in
placement seems quite so serious nor as worthy of parental involvement
and procedural protections as the termination of placement in special
education," the Court found that a student's removal from his high
school program by graduation during the pendency of proceedings
violated the stay-put provision. *fn89 Like a
graduation, indefinite suspension, or expulsion, the unilateral
disenrollment of a special education student, which results in the
absolute termination of a child's special education program, and
purportedly the termination of a LEA's responsibility to deliver FAPE,
is a change in placement.
Although R.B.'s disenrollment was not necessarily a disciplinary action, it was precipitated by R.B.'s chronic absenteeism. The record-which includes letters authored by Mastery-provides ample documentation that R.B.'s disability and medical condition frequently caused her to miss school, and that Mastery modified R.B.'s schedule to accommodate her individual needs. *fn90 As the agency responsible for administering R.B's educational program,
Mastery arguably had an affirmative duty to respond to the absences-potentially caused by R.B.'s disability-through educational intervention. *fn91 If R.B.'s absences were caused by Mastery's policy choice to require Parent to make an appointment in order to visit the school, Mastery was obligated to provide alternate arrangements so that R.B. could consistently get to school and to her classroom. If every school was able to rid itself of a problematic special education student or her parent by treating them exactly the same as a non-disabled student, as Mastery has done here, the protections of IDEA would be eviscerated.
Finally, Mastery's argument that this was merely a "change in
location" is not compelling. It is true, as Mastery claims, that "the
stay-put provision of the IDEA is not construed so narrowly as to
mandate the student remain in the exact physical location where he or
she was schooled at the time the dispute arose." *fn92
The LEA may, in its discretion, make changes in the
physical location of a child's program, if it does not significantly
affect the student's program. *fn93 But
although LEAs may exercise discretion over how and where they implement a
student's IEP, their primary obligation to implement the IEP
remains. *fn94 At the time Mastery improperly
disenrolled R.B., it was-pursuant to its charter and state
law-responsible for providing a FAPE to R.B; and as the party that
effected the allegedly unlawful change in placement during the
pendency of judicial proceedings, that responsibility continues.
Mastery's argument, that when it disenrolled R.B. the responsibility
to provide a FAPE to R.B. shifted automatically to the School District
of Philadelphia, has no support in fact or in law. *fn95
Case law does not present a single ruling where an LEA's
responsibility for delivering FAPE to an individual student was
vitiated simply by closing its doors to that student.
*fn96 Even where a child's then-current
educational placement is simply no longer available, the LEA retains
responsibility for providing the student with placement in a similar
program during the pendency of proceedings. *fn97
The line of cases relied on by Mastery are inapposite, because most "program not placement" cases involve proposed changes of schools or classrooms (over which the LEA retains responsibility). Without exception, each case in which the court stresses the importance of program over placement arises where a LEA proposes an inter-district transfer between classes or schools. There is no case where an LEA has successfully cited "program over placement," to justify its refusal to fulfill its responsibilities under FAPE where no alternative location has been provided by the school district for IEP program implementation. Here, Mastery claims that because the District has similar programming options available for R.B., the District then assumes responsibility for R.B.'s educational placement.
Mastery's attempt to evade its obligations under the IDEA by passing the buck-in this case, a special-needs student's education-to the District is troubling. As a Charter School, Mastery is bound by all the obligations of IDEA. *fn98 Children with disabilities who attend public charter schools and their parents retain all rights under IDEA and its regulations-a body of laws which were enacted to "strip schools of the unilateral authority they had traditionally employed to exclude disabled students, from school." *fn99 Indeed, the sole purpose of the stay-put provision is to "prevent local educational authorities from unilaterally changing a student's existing educational program." *fn100
Mastery is correct in asserting that state law provides that a student must be disenrolled after ten consecutive absences. But that law does not exist in a vacuum; because R.B. is a student eligible for special education, Pennsylvania Education Code and the IDEA are also applicable. And to the extent that IDEA might conflict with that state law, it prevails under the Supremacy Clause of the Constitution. *fn101 Ultimately, Mastery's legal position is untenable. If Mastery seeks to remove her, it must follow the IDEA- it cannot unilaterally expel her from her educational placement during the pendency of proceedings. *fn102 We therefore conclude that R.B.'s removal from Mastery in June 2009 violated the stay-put provision of the IDEA because proceedings were initiated by the Parent in April 2009 remained pending at that time and the disenrollment constituted a change in placement.
3. R.B's Current Educational Placement Mastery implausibly argues that it was not R.B.'s then-current educational placement at the time she was disenrolled. *fn103 "Because the term [stay-put] connotes preservation of the status quo, it refers to the operative placement actually functioning at the time the dispute first arises." *fn104 If an IEP has been implemented then that program's placement will be the one subject to the stay-put provision." *fn105
As this Court has noted, Mastery's argument that location is not
synonymous with program is unpersuasive; as R.B.'s LEA, Mastery bears
ultimate responsibility for ensuring that R.B.'s program is
implemented. Mastery's argument that location is not a component of
"educational placement" is not compelling. *fn106
While "as a general matter, the location of the services
is not conclusive in determining what constitutes the educational
placement of the student," the physical location of services "cannot
be entirely divorced from the inquiry." *fn107
Instead, "'[t]he meaning of 'educational placement' falls
somewhere between the physical school attended by a child and the
abstract goals of a child's IEP.'" *fn108 In
George A., the District Court rejected Defendant's argument that the
location of services was irrelevant, and acknowledged student's
"extensive history" at a
particular school as relevant to the determination of his current
educational placement. *fn109
Similarly, in M.K. & R.K v. Roselle Bd. of Education, factors including the distance between classrooms, available facilities, and physical location were relevant to the determination of then-current educational placement. *fn110
Here, we find that Mastery's location is relevant to R.B.'s
educational placement. As Parent testified, Mastery's proximity to
R.B.'s home (essentially across the street) mitigated R.B.'s
difficulty getting to school, and provided needed access to R.B.'s
doctor's office in the case of medical emergency. *fn111
In addition, Mastery is a small school, which R.B. is
able to navigate because of her familiarity with the location.
*fn112 Finally, Mastery provided R.B. with
instruction in very small classes, where she was given "lot[s] of
individual attention." *fn113
Since R.B. was attending Mastery at the time the dispute arose, and because Mastery's learning support program is R.B.'s identified placement in the most recent IEP, dated October 28, 2009, R.B.'s current educational placement is Mastery Charter School, Pickett Campus. Although the extent to which parent was a component of R.B.'s program remains unclear on this record, Mastery must continue to accommodate R.B.'s physical needs and ensure that R.B. is able to get to school and situate herself in the classroom. If that no longer entails permitting Parent to bring R.B. to school when a TSS is unavailable, Mastery is responsible for making alternative arrangements.
For all the reasons detailed above, Mastery must immediately reinstate R.B.'s enrollment during the pendency of the state proceedings, unless Mastery officials and Parent agree on a satisfactory alternative arrangement.
Based on the foregoing discussion, the Court will GRANT Plaintiff's Motion for a Preliminary Stay-Put Injunction. Since Plaintiff's Complaint is solely for injunctive relief, and because the Court has found Plaintiff's complaint meritorious, Mastery's Motion to Dismiss is DENIED. However, the Court finds that Plaintiff has failed to sufficiently allege a claim for relief against the School District of Philadelphia. Accordingly, the School District's Motion to Dismiss is GRANTED on 12(b)(6) grounds.
An appropriate Order follows.