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P.V.

February 19, 2013

P.V., A MINOR, BY AND THROUGH HIS PARENTS,
PEDRO VALENTIN AND YOLANDA CRUZ, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, ET AL., PLAINTIFFS,
v.
:
THE SCHOOL DISTRICT OF PHILADELPHIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Legrome D. Davis, J.

MEMORANDUM

This lawsuit concerns the School District of Philadelphia's (the "School District") treatment of, and policies governing, school children with autism. The four (4) named plaintiffs in the purported class action lawsuit, P.V., M.M., J.V., and R.S.,*fn1 are all autistic students at Richmond Elementary School, a Kindergarten through Grade 5 ("K-5") school in the Philadelphia School District (the "School District"). (Doc. No. 1, at ¶¶ 15-18). Plaintiffs contend that the School District transfers students with autism automatically from one school to another, simply because they complete a certain grade, more frequently than the School District transfers non-disabled students who therefore, unlike autistic children, enjoy continued, uninterrupted attendance in K-5 schools or K-8 schools. (Doc. No. 1, at ¶ 1). Plaintiffs further allege that the decision-making process leading up to the transfer of an autistic student is conducted with little to no parental notice or involvement, and without the required consideration of the children's individualized circumstances. (Doc. No. 1, at ¶ 2). Plaintiffs contend that this is particularly problematic because children with autism have difficulty transitioning from one environment to another. (Doc. No. 1, at ¶ 1).

Claiming that the School District's policy of transferring autistic students violates several statutes, the four (4) plaintiffs filed suit against the School District; the School Reform Commission; Arlene Ackerman, Superintendent of the School District of Philadelphia, in her official capacity; and Linda Williams, Interim Deputy Chief of Special Education for the School District of Philadelphia, in her official capacity (collectively, "Defendants"). Seeking systemic relief from the allegedly unlawful transfer policy, Plaintiffs filed a motion for class certification, which is now ripe for disposition.

I. FACTS

Because we write primarily for the parties involved, we discuss only the facts relevant to resolving the instant motion. Unless stated otherwise, the following facts are not in dispute. In the 2011-2012 school year, over 1600 students in K-8 in the School District were identified as having autism. (See Doc. No. 48, Ex. 28; Doc. No. 50, Ex. 11; see also Doc. No. 48, Ex. 18, at 36). The School District provides autism support classrooms for these children, which are generally divided into three "grade levels" based on age: kindergarten through second grade ("K-2"), third grade through fifth grade ("3-5"), and sixth grade through eighth grade ("6-8"). (See Doc. No. 1, at ¶ 36; Doc. No. 50, at 3). Although there are three different grade levels, a school sometimes offers only one grade level of autism support. When a student requiring autism support completes the highest grade level provided in his or her current school, the School District transfers that student to a different school where those services can continue to be provided.*fn2 (See Doc. No. 48, Ex. 21, at 43; Doc. No. 50, at 5). This process is referred to as an "upper-level transfer" or "upper-leveling." (See Doc. No. 48, Ex. 21, at 37-39, 42-43; Doc. No. 50, Ex. 13, at 37-38).

The building assignment decision is not made by a student's Individualized Education Program ("IEP") team and parents are generally not involved in the process. (See Doc. No. 48, Ex. 2, at 3, ¶ 2; Doc. No. 50, at 5). Rather, the building assignment is determined predominantly by the School District's division directors. (Doc. No. 48, Ex. 2, at 6; Ex. 3, see also Doc. No. 50, Ex. 12, at 55). To make that determination, the directors first consider the number of students coming to the School District known to require services in an autism support program, as well as building locations with available space for autism support classrooms. The directors then consider each student's IEP and "place[] each student with autism in the school that [they feel] will best meet that student's needs." (Doc. No. 50, Ex. 16, at ¶ 8).

The School District concedes that it provides parents with no written notice prior to the building assignment decision. Rather, the School District generally does not advise parents that their child will be transferred until after the decision concerning the transfer has been made. (See Doc. No. 50, Ex. 16, at 10). The first notification to the student's parents about their child's transfer comes from the student's school, and is usually issued in late spring. There is no formal procedure for the initial notification; parents may be informed of the transfer through a meeting, phone call, or simply an email. (See Doc. No. 48, Ex. 21, at 66-67). A few weeks later, the division directors send a "follow up" letter to "ensure that the parent is informed." (Id.). Although the School District eventually notifies parents that their child will be transferred, it admits that is has no formal policy governing the adequateness of that notification. (See Doc. No. 48, Ex. 21, at 72-75; Ex. 23, at 86-87).

Plaintiffs allege that the experiences of the named plaintiffs illustrate the inadequacies of the School District's process of upper-leveling students with autism in grades K-8. For instance, P.V. is a student with autism who attends Richmond Elementary School. At the end of the 2009-10 school year, when P.V. was finishing second grade, Richmond offered only K-2 autism support in its building. Accordingly, the School District planned to transfer P.V. to another school when he finished second grade. At the end of the school year, P.V.'s mother received only a verbal warning from P.V.'s teacher that P.V. might be transferred from Richmond Elementary to another school in the fall. (Doc. No. 48, Ex. 11, at 583-84). Despite receiving no formal or written notice about the possibility of a transfer for her child, P.V.'s mother began receiving transportation letters over the summer, indicating that P.V. would be attending Feltonville Elementary School that fall. (Id.). When the school year started, however, P.V.'s mother was informed through a secretary that P.V. would in fact remain at Richmond. (Id.).

Like P.V., M.M. is a student with autism who attends Richmond Elementary School. On or around June 15, 2010, the School District advised M.M.'s mother via M.M.'s home-school notebook that M.M. could no longer remain at Richmond for his third grade year during the 2010-11 school year. The note did not indicate to what school M.M. would be transferred. (See Doc. No. 48, Ex. 8, at 623-25). Throughout the summer of 2010, M.M.'s mother received no other information on the potential transfer until a few weeks prior to the start of the school year, and only after she contacted the School District directly.*fn3 (See id. at 625-26).

Uncertain about where their children would be attending school that fall, the parents of P.V. and the parents of M.M. both filed for an administrative hearing in 2010, challenging, among other things, the School District's upper-leveling process. (See Doc. No. 48, Exs. 1 and 2). In a consolidated ruling, the hearing officer, Brian Jason Ford, concluded that "the District violated the Parent's right to participation by reassigning the Student [P.V. and M.M.] to a different school building without sending IDEA-compliant prior written notice." (Doc. No. 48, Exs. 1 and 2, at 15). Ford noted, however, that he "lacks authority to order wholesale changes to the District's procedures," so he merely encouraged the School District "to alter its procedures on a broader scope, if only to avoid a plethora of identical claims from similarly situated students."

(Id.).*fn4

Plaintiffs bring this lawsuit seeking systemic relief from the School District's allegedly unlawful policy of upper-leveling children with autism.*fn5 Plaintiffs emphasize that because they cannot obtain structural relief through an administrative hearing, judicial intervention and class action certification are necessary. The injunctive relief specifically sought by Plaintiffs has somewhat varied throughout their Complaint and subsequent motions. On a very broad scale, Plaintiffs ask this Court to order the School District to completely discontinue the upper-leveling transfer process, and require "that any school which contains an autism support classroom shall offer autism programming for the same years that the school provides programming for children who are not disabled." (Doc. No. 1, at 21-22; see also Doc. No. 48, at 1-2). Short of eliminating the upper-leveling process in its entirety, Plaintiffs seek this Court to order the School District to provide for a level of parental notice and involvement prior to the transfer decision that is consistent with the requirements set forth by state and federal education law. (See Doc. No. 1, at 8; Doc. No. 17, at 2l Doc. No. 48, at 2). To obtain that level of parental involvement, Plaintiffs maintain that the School District must publicly disseminate a list of all the schools within the School District that house any autism support classroom. (See Doc. No. 1, at 21; Doc. No. 17, at 2; Doc. No. 48, at 2).

The relief sought by Plaintiffs is based upon the violation of four separate statutes. Specifically, Plaintiffs allege that the process of upper-leveling violates the Individual and Disabilities Act, 20 U.S.C. § 1400 et seq. ("IDEA") and Chapter 14 of the Pennsylvania Code ("Chapter 14"), "as it occurs with little or no parental notice or involvement, without required consideration of children's individualized circumstances, and in direct violation of the mandated individual planning process of the IDEA." (Doc. No. 1, at ¶ 2; see also ¶ 56 (citing U.S.C. § 1414(d) and § 1415)). Plaintiffs contend that upper-leveling also violates § 504 of the Rehabilitation Act ("§ 504"), and Title II of the American with Disabilities Act ("ADA"), because the transfer "is based solely on the fact that children have autism." (Doc. No. 1, at ¶ 2).

Plaintiffs bring this instant motion, seeking class action certification. Specifically, Plaintiffs seek to certify a class consisting of students with autism in grade levels K-8 in the School District who have been transferred, are in the process of being transferred, or are subject to being transferred pursuant to the School District's upper-leveling policy. The proposed class definition also includes all parents and guardians of those children, and future members of the class. (See Doc. No. 48, at 12).

Defendants argue that Plaintiff's class certification motion should be denied for three separate reasons. First, Defendants argue that the named Plaintiffs lack standing. Second, Defendants contend that Plaintiffs fail to satisfy the numerosity, commonality, typicality, and adequate representation prongs of Rule 23(a). Finally, Defendants aver that Plaintiffs do ...


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