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Kk v. Pittsburgh City Schools

United States District Court, Third Circuit

October 16, 2013

K.K. Plaintiff,
v.
PITTSBURGH CITY SCHOOLS, Defendant.

MEMORANDUM OF LAW RE: PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT (DOC. NOS. 28 AND 30)

ARTHUR J. SCHWAB, District Judge.

I. Introduction

This case centers on alleged disability-based discrimination by the Pittsburgh City Schools against a former student of the Center for Advanced Studies ("CAS") at Allderdice High School. Doc. No. 1. Plaintiff ("K.K."), in her two Count Complaint, has alleged substantive and procedural violations of Section 504 of the Rehabilitation Act of 1973 ("Section 504"). Doc. No. 1, 17-19. Presently before this Court are Cross-Motions for Summary Judgment filed by Plaintiff and Defendant Pittsburgh City Schools ("School District"). Doc. Nos. 28 and 30.

II. Statement of Facts

K.K. is a 2010 graduate of the School District of Pittsburgh. Doc. No. 41, ¶ D1. K.K. was born on January 22, 1992, and is twenty-one (21) years old. Id. at ¶ D2. She attended Allderdice High School and participated in the school's CAS gifted program, which included a rigorous academic course load. Id. at ¶¶ D6-7, P2.

K.K. experienced severe vomiting and flu symptoms in the spring of her Junior year (2009). Id. at ¶ D8. She was diagnosed with gastroparesis. Id. at ¶ P3. She was hospitalized intermittently and missed school as a result. Id. at ¶ D10. The School District provided homebound instruction to K.K. during the spring of her Junior year and through the rest of that school year. Id. at ¶ D11, P4. Homebound instruction was provided by Mr. Hai Le, who continued to work with K.K. as her privately paid private tutor throughout the summer. Id. at ¶¶ D12-13. With this help, K.K. completed her 11th grade coursework except for a Chemistry course and a Japanese 3 course. Id. at ¶¶ D14, P4, P9.

K.K. began her Senior year generally symptom-free. Id. at ¶ D15. K.K.'s senior year course load was "unusually" rigorous, included several non-mandatory courses, and did not afford her a lunch period. Id. at ¶¶ D17-18. K.K.'s CAS advisor and her academic counselor met with K.K. and her parents to express concern over the weight of her academic schedule given the unusual rigor and the two incomplete courses from 11th grade. Id. at ¶ D19. K.K. dropped two courses and dropped Calculus BC in favor of a less rigorous Calculus AB. Id. at ¶¶ D20-21.

In early 2009, K.K.'s parents informed the high school that her symptoms had returned. Id. at ¶ D22. K.K.'s parents were initially hopeful that K.K.'s illness would be temporary. Id. at ¶ D23. On several occasions, the School District suggested that her parents apply for homebound instruction for K.K.. Id. at ¶ D24. K.K.'s parents and school personnel met on October 28, 2009, to discuss K.K.'s recent absences and services available to help her meet her academic needs. Id. at ¶ D25. The high school offered school-based Student Assistance Program ("SAP") services which could have included mental health services or basic counseling. Id. at ¶ D26. The parents declined due to K.K.'s private counseling. Id. at ¶ D27. The school recommended that K.K. begin homebound instruction again. Id. at ¶ D28. Homebound instruction was approved for K.K. beginning on November 3, 2009. Id. at ¶ D29. K.K.'s parents requested Mr. Le, but he was unavailable due to his full schedule. Id. at ¶ D30. Allderdice teacher Kathy Hoelzle was assigned as K.K.'s homebound instructor. Id.

K.K. was found eligible as a qualified student with a disability protected under Section 504 and Chapter 15 on November 10, 2009. Id. at ¶ D32. A 504 team was formed that considered information from K.K.'s pediatrician and gastroenterologist to formulate appropriate Section 504 plan accommodations. Id. at ¶ D33. K.K.'s parents requested several accommodations be considered for the 504 plan including more than two and a half hours of homebound instruction per week and a single point of contact for coordinating her 504 services and monitoring her academic progress. Id. at ¶ P11. K.K.'s pediatrician advised that "[a] strict homebound schedule will not promote [K.K.'s] well-being and is not in her best interest." Id. at ¶ D36. The November 10, 2009, plan included the following: (1) K.K. was to received homebound instruction through December 1st with renewals as necessary; (2) K.K. would be given the option to attend school when her health permitted her to do so, and would notify the school counselor if/when she planned to be in attendance; (3) 50% extended time on assignments; and (4) access to the nurse's office or the CAS office in the event of a medical emergency. Id. at ¶¶ D34, P14. K.K.'s teachers were provided with the plan on November 13, 2009. Id. at ¶ D35. K.K.'s parents signed the plan on November 17, 2009, and requested an conference to discuss concerns, which the School District thought centered on the details of homebound instruction. Id. at ¶¶ D37-38, P15.

K.K. participated in the plan's modified homebound schedule, which permitted her to attend school when her health permitted. Id. at ¶ D40. She spent much of the time between November 10, 2009 and the end of January 2010 absent from school. Id . By mid-November, the School District learned that K.K.'s parents had retained legal counsel and the School District then involved its own legal counsel. Id. at ¶ D39.

Ms. Hoelzle instructed K.K. until the first week of December when she communicated to K.K.'s Parents and the School District that she would not be able to provide further homebound instruction. Id. at ¶¶ D41, P18. Mr. Le was instructed by a District Assistant Superintendent to begin instructing K.K. on December 11, 2009. Id. at ¶ D43. Mr. Le was qualified to provide direct instruction in Calculus, English, and History. Id. at ¶¶ D47, P25. He primarily facilitated work for K.K. in Physics, Chinese 4, and Japanese 4. Id. at ¶ D47.

The School District customarily provides 2.5 hours of homebound instruction per week for students who are temporarily unable to attend school. Id. at ¶ D46. This procedure was communicated to K.K.'s parents. Id.

On December 14, 2009, District legal counsel received correspondence that K.K. had been diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood. Id. at ¶ D50, P25. The School District then issued a Permission to Evaluate for eligibility under the Individuals with Disabilities Education Act to K.K.'s Parents. Id. at ¶ D52. Permission was not granted. Id . As of mid-December 2009, K.K. and her parents firmly believed that K.K.'s teachers demonstrated professionalism and a high level of commitment to her education. Id. at ¶ D53.

On January 13, 2010, K.K.'s 504 team, with counsel for both parties and the high school's Social Worker present, reconvened to revise her accommodation plan. Id. at ¶¶ D54, P28. The January 13, 2010, 504 plan revision included the following: (1) homebound instruction through the end of January 2010 to allow for transition back to the school environment; (2) modification of the School District's attendance policy so that K.K. was not penalized for medical absences; (3) permission to eat and drink throughout the school day; (d) permission to enter and exit the school building as needed, with the requirement that K.K. sign in and out at the school's front door; (e) K.K. was not required to attend homeroom, but would rather proceed directly to her first period class; (f) modification of K.K.'s schedule to allow for free periods and one class period of direct instruction per week in English, Calculus, Japanese, Chinese, and Physics; (g) assignment to her Physics' instructor's study hall; (h) the school principal or designee would assist teachers in providing make-up work that is not duplicative; (i) K.K. would not be penalized on tests or assignments regarding information or concepts not previously taught; (j) in the case of a medical relapse, the School District would assign a single point of contact for K.K. and this individual would be responsible for: coordinating makeup assignments; collecting study guides, lesson plans and notes for current classes; corresponding with K.K.'s parents to ensure ...


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