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P.V., A Minor, By and Through His Parents v. the School District of Philadelphia

February 19, 2013


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



A. Statutory Framework of IDEA The crux of Plaintiffs' case relates to alleged violations of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. (1996). Before addressing the facts, it is helpful to understand the statutory framework of the IDEA. The IDEA seeks to provide all children with disabilities with "a free appropriate public education ["FAPE"] which emphasizes special education and related services to meet their unique needs." 20 U.S.C. § 1400. To ensure that the disabled child receives an educational program tailored to his or her specific needs, the child's parents, teacher, and a representative of the local education agency collaborate to design an "individualized education program" ("IEP") for the child. 20 U.S.C. § 1414. Based on the child's individual needs, the IEP sets forth the child's educational level, performance, and goals.

After the IEP is drafted, the School District issues a Notice of Recommended Educational Placement ("NOREP"),*fn1 which contains a form to either approve or disapprove the IEP. The NOREP must include a description and explanation of the action taken by the school district and a disclosure that the child's parents may challenge the school district's decision. See § 1415(c). To ensure parents retain the opportunity to stay involved on decisions affecting their child's IEP, the parents must also be provided with a NOREP whenever the school district "proposes to initiate or change" the "educational placement of the child." 20 U.S.C. § 1415.

B. Factual Background and Procedural History

This class action was initiated by parents of students with autism, who allege that the School District of Philadelphia (the "School District") transfers autistic students in kindergarten through eighth grade ("K-8") without providing the level of parental notice and involvement required under state and federal law. Seeking systemic relief for the alleged violations, Plaintiffs filed a motion for class certification, which we granted.*fn2

In the 2011-2012 school year, 1,684 students in K-8 in the School District were identified as having autism (See Doc. No. 51, Ex. 8), most of whom require access to an autistic support classroom. (See Doc. No. 51, Ex. 21, at 55). Depending on the child's age, he or she will be placed into one of three autistic support classrooms based on "grade level": kindergarten through second grade ("K-2"), third grade through fifth grade ("3-5"), and sixth grade through eighth grade ("6-8"). (See Doc. No. 51, Ex. 3, at ¶ 2). Although there are three different groups, a school sometimes offers only one grade level of autistic 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.*fn3 (See Doc. No. 49, Ex. L, at 43; Ex. G, at 104). This process is referred to as an "upper-level transfer" or "upper leveling."*fn4 (See Doc. No. 49, Ex. L, at 38; Doc. No. 51-1, at ¶ 10; Doc. No. 51, Ex. 3, at ¶¶ 14-16).

The building assignment decision is not made by a student's IEP team and parents are generally not involved in the process. (See Doc. No. 51, Ex. 21, at 57; Doc. No. 51, Ex. 3, at ¶ 23; Doc. No. 54, at ¶ 25). Rather, the building assignment is determined "pretty much unilaterally" by the School District's division directors. (Doc. No. 51, Ex. 3, at ¶ 23; see also Doc. No. 49, Ex. L, at 55). To make the determination, the directors first consider the number of students coming to the School District known to require services in an autistic support program, as well as building locations with available space for autistic 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. 51, Ex. 20, 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. 54-1, at ¶ 31). 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. 54-1, at ¶ 36). The discovery materials provided by Plaintiffs reflect that the notification given to parents about the transfer of their autistic child is often terse, at best. In one instance, for example, a student with autism was sent home with only a "strip" of paper, stating that the child would be attending a different school the following year. The strip of paper did not include the location of the student's new school, of which the parents were not informed until only a few weeks before the new school year. (See Doc. No. 51-1, Ex. 22; Ex. 32, at 50-53; see also Doc. No. 51-1, at ¶ 40; Doc. No. 54-1, at ¶ 40).

In another instance, the mother of an autistic child received only an oral comment from her child's teacher, telling her that her child might be transferred from Richmond Elementary to another school in the fall. Despite receiving no formal or written notice about the possibility of a transfer for her child, the mother began receiving transportation letters, indicating that her child would be attending Feltonville Elementary School that fall. When the school year started, however, the child's mother was informed through a secretary that her son would actually remain at Richmond. (See Doc. No. 51-1, Ex. 31, at 583-84; see also Doc. No. 51-1, at ¶ 39; Doc. No. 41, at ¶ 39). Plaintiffs present additional evidence, reflecting similar scenarios.*fn5

Plaintiffs now bring this class action lawsuit against the School District of Philadelphia, seeking systemic relief from the allegedly unlawful process of "upper leveling." Throughout this litigation process, the declaratory and prospective injunctive relief sought by Plaintiffs has seemingly varied between the 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 autistic support classroom. (See Doc. No. 1, at 21; Doc. No. 17, at 2; Doc. No. 48, at 2).

Plaintiffs emphasize that they cannot obtain this structural relief through an administrative hearing, so judicial intervention is necessary. Specifically, Brian Jason Ford, the hearing officer presiding over P.V.'s and M.M.'s (two of the four named plaintiffs) administrative hearings, 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. 51, Ex. 3, at 15; Ex. 4, at 16). 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.).

Plaintiffs bring this class action seeking systemic relief from the School District's process of upper-leveling children with autism. In the first two counts of the Complaint, 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." In the other two counts, Plaintiffs contend that upper-leveling 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). Both parties have filed motions for summary judgment, which are now ripe for disposition.


A. Standard of ...

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