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Jalen Z. v. School District of Philadelphia

United States District Court, E.D. Pennsylvania

May 15, 2015

JALEN Z. et al., Plaintiffs,
v.
SCHOOL DISTRICT OF PHILADELPHIA, Defendant

For JALEN Z., A MINOR, BY AND THROUGH HIS PARENT AND NEXT FRIEND, LU Y., LU Y., ON HER OWN RIGHT, Plaintiffs: CARYL A. OBERMAN, LEAD ATTORNEY, THE LAW OFFICES OF CARYL ANDREA OBERMAN, WILLOW GROVE, PA.

For SCHOOL DISTRICT OF PHILADELPHIA, Defendant: MILES H. SHORE, CHOOL DISTRICT OF PHILA OFFICE OF GENERAL COUNSEL, PHILADELPHIA, PA.

MEMORANDUM

EDUARDO C. ROBRENO, UNITED STATES DISTRICT JUDGE.

Table of Contents

I. BACKGROUND

A. Factual Background

B. Procedural History

II. CROSS-MOTIONS FOR JUDGMENT ON THE ADMINISTRATIVE RECORD

A. Standard of Review

B. Discussion

1. Adequacy of the IEP

a. Legal standards

b. Analysis: Procedural deficiencies

c. Analysis: Substantive deficiencies

i. Inadequate reevaluation report

ii. No one-on-one aide

iii. Inadequate related services

iv. Inadequate transition plan

v. No positive behavior support plan

vi. Retrospective testimony of proposed

placement

2. Denial of Pendency

a. Legal standard

b. Analysis

C. Conclusion

III. MOTION FOR SUMMARY JUDGMENT

A. Standard of Review

B. Claim II: Section 504 of the Rehabilitation Act

and the ADA

C. Claim III: Title VI

D. Conclusion

IV. CONCLUSION

A mother and her autistic son (collectively, " Plaintiffs" ) bring this action against the School District of Philadelphia (" the District" or " Defendant" ), claiming that the District failed to provide the son with an appropriate educational placement under the Individuals with Disabilities Education Act (" IDEA" ), and that the District illegally discriminated against Plaintiffs, in violation of § 504 of the Rehabilitation Act, the Americans with Disabilities Act (" ADA" ), and Title VI of the Civil Rights Act. This case comes to the Court after the final adjudication of a due process proceeding by a Pennsylvania Special Education Hearing Officer. Before the Court are cross-motions for judgment on the administrative record and Defendant's motion for summary judgment on the non-IDEA claims. For the reasons that follow, the Court will grant in part and deny in part the cross-motions for judgment and will grant Defendant's motion for summary judgment.

I. BACKGROUND

A. Factual Background[1]

Jalen Z. (" Student" ) is a nine-year-old autistic boy who through 2011 had been receiving services under an early intervention individualized education program (" IEP" ) in the Elwyn Special Education for Early Development Success (" SEEDS" ) program. Compl. ¶ 52; P-1, at 3-4.[2] In November of 2011, Student's parents resolved a dispute with Elwyn over his programming--a resolution under which, inter alia, Student's IEP was modified for 2012 and he received a number of banked compensatory education hours. Compl. ¶ 54; FF ¶ 3. His parents used these banked hours to contract primarily with the Lovaas Institute to provide home-based services for Student.

In the 2012-2013 academic year, Student was scheduled to transition to a school-based program. Compl. ¶ 55. Accordingly, his mother, Lu Y. (" Parent" ), began working with the District to develop an appropriate transitional IEP. Id. ¶ ¶ 55-64. However, Parent objected to the resulting IEP, for substantive reasons as well as for her inability to observe a classroom similar to that in which Student would be placed. Id. ¶ ¶ 55-90. She ultimately rejected the District's Notice of Recommended Educational Placement (" NOREP" )--the document the District uses to notify parents of a proposed IEP--and requested mediation. Id. ¶ ¶ 91-93. Mediation attempts were unsuccessful and, now into the 2012 school year, Parent rejected the District's offered placement at F. Amedee Bregy Elementary School. Id. ¶ 94; FF ¶ 29.

Parent ultimately filed a request for a due process hearing, Compl. ¶ ¶ 94-107, which took place over seven sessions from December 2012 through March 2013, id. ¶ 10. During that time, the Hearing Officer issued two decisions. In the first, an interim decision dated February 18, 2013, the Hearing Officer held that the District was not required as a matter of law to provide Student's early intervention services during the pendency of the due process proceedings. Decision 1, at 4. In the second and final decision, dated May 14, 2013, the Hearing Officer held that, although the IEP contained certain deficiencies and needed to be " refined," it was nonetheless " reasonably calculated to yield meaningful educational benefit" and provided Student a free appropriate public education (" FAPE" ) as required by the IDEA. Decision 2, at 15-16. The Hearing Officer ordered that a number of improvements be made to the IEP. In addition, he denied Student and Parent compensatory education and reimbursement for their costs in providing for Student's education during the pendency of the proceedings. Id. at 17.

B. Procedural History

On August 12, 2013, Plaintiffs brought this action against Defendant, contesting the Hearing Officer's decision and bringing related claims of discrimination. Specifically, Plaintiffs allege the following: (1) error in administrative decisions, in violation of the IDEA (Count I); (2) discrimination, in violation of § 504 of the Rehabilitation Act and the ADA (Count II); and (3) national origin discrimination, in violation of Title VI (Count III). Compl. ¶ ¶ 131-151.

Plaintiffs seek reversal of the Hearing Officer's two decisions, an order amending Student's IEP to Plaintiffs' specifications, compensatory education and/or reimbursement for costs incurred in providing Student's educational services during the pendency of the due process proceedings (and this matter), damages related to the District's alleged discrimination, and attorneys' fees and costs. Id. at 31-33.

On December 31, 2013, Plaintiffs filed a Motion to Supplement the Administrative Record (ECF No. 13), to which Defendant responded on January 17, 2014 (ECF No. 14). After holding a hearing on the matter, the Court issued an order on July 11, 2014, granting, in part, Plaintiffs' motion by admitting the evaluation and testimony of an independent speech and language pathologist. ECF No. 27. Subsequently, the parties filed cross-motions for judgment on the supplemented administrative record (ECF Nos. 29, 31) and responses thereto (ECF Nos. 33, 35), all of which correspond to Count I. Defendant also moved for summary judgment on Counts II and III (ECF No. 30), to which Plaintiffs responded (ECF No. 34). After an evidentiary hearing on November 10, 2014, at which the speech pathologist testified, the parties filed supplemental briefing. ECF Nos. 38, 41-44. The parties' motions are now ripe for disposition.

II. CROSS-MOTIONS FOR JUDGMENT ON THE ADMINISTRATIVE RECORD

A. Standard of Review

This Court has jurisdiction to review the decision of a state hearing officer under 20 U.S.C. § 1415(i). " When considering an appeal from a state administrative decision under the IDEA, district courts apply a nontraditional standard of review, sometimes referred to as 'modified de novo' review." D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d Cir. 2010). The Court makes its own findings by a preponderance of the evidence, Shore Reg'l High Sch. Bd. of Educ. v. P.S. ex rel. P.S., 381 F.3d 194, 199 (3d Cir. 2004), but also gives " 'due weight' and deference to the findings in the administrative proceedings." Bayonne Bd. of Educ., 602 F.3d at 564. This means that " [f]actual findings from the administrative proceedings are to be considered prima facie correct, and if the reviewing court does not adhere to those findings, it is obliged to explain why." Id. (internal quotation marks omitted). " Specifically, . . . a District Court must accept the state agency's credibility determinations unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion." Shore Reg'l High Sch, 381 F.3d at 199 (emphasis omitted) (internal quotation marks omitted).

Where the Court hears additional evidence, it is " free to accept or reject the agency findings depending on whether those findings are supported by the new, expanded record and whether they are consistent with the requirements of the [IDEA]." Oberti v. Bd. of Educ. of the Borough of the Clementon Sch. Dist., 995 F.2d 1204, 1220 (3d Cir. 1993). However, " where the District Court does not hear additional evidence it must find support for any factual conclusions contrary to the ALJ's in the record before it." S.H. v. State-Operated Sch. Dist. of Newark, 336 F.3d 260, 270 (3d Cir. 2003).

Generally, the " burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief." Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005).

As a final note, at no time in the review process may the Court " substitute [its] own notions of sound educational policy for those of the school authorities which [it] review[s]." Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).

B. Discussion

Plaintiffs' primary grounds for reversing the Hearing Officer's decisions are the following: (1) the Hearing Officer incorrectly held that the IEP provided Student with a FAPE and failed to remediate the IEP in his May 14, 2013, order; and (2) the Hearing Officer improperly denied pendent placement for Student during the due process hearings and related proceedings. Compl. ¶ ¶ 131-145. The Court evaluates these arguments in turn.

1. Adequacy of the IEP

Plaintiffs essentially claim that the District failed to provide Student a FAPE as required by the IDEA.

a. Legal standards[3]

" A FAPE is 'an educational instruction specially designed . . . to meet the unique needs of a child with a disability, coupled with any additional related services that are required to assist a child with a disability to benefit from [that instruction].'" K.C. ex rel. Her Parents v. Nazareth Area Sch. Dist., 806 F.Supp.2d 806, 813 (E.D. Pa. 2011) (alterations in original) (quoting Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007)) (internal quotation marks omitted).

The IDEA does not require a FAPE to be a perfect or ideal education. Congress's purpose in enacting the IDEA was to " open the door of public education to handicapped children on appropriate terms" more than it was to " guarantee any particular level of education once inside." Rowley, 458 U.S. at 192. To satisfy its duty to provide a qualifying student with a FAPE, a school district must develop an IEP that responds to the student's identified educational needs by identifying the student's present abilities, goals for improvement, services designed to meet those goals, and a timetable for reaching those goals. Bayonne Bd. of Educ., 602 F.3d at 557.

Substantively, an IEP must be " reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 206-07. The " IDEA calls for more than a trivial educational benefit and requires a satisfactory IEP to provide significant learning and confer meaningful benefit." Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 247 (3d Cir. 1999) (citations omitted) (internal quotation marks omitted), superseded by statute on other grounds as recognized by P.P. ex rel. Michael P. v. W. Chester Area Sch. Dist., 585 F.3d 727 (3d Cir. 2009). " More than trivial" implies more than just " access to the schoolhouse door." Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 182 (3d Cir. 1988). A school district must, in designing an IEP, identify goals for meaningful improvement relating to a student's potential. W. Chester Area Sch. Dist., 585 F.3d at 729-30. Importantly, evaluations of an IEP's adequacy can only be determined " as of the time it [was] offered to the student, and not at some later date." Fuhrmann ex rel. Fuhrmann v. E. Hanover Bd. of Educ., 993 F.2d 1031, 1040 (3d Cir. 1993).

Procedural violations of the IDEA, particularly in relation to an IEP, typically only justify prospective injunctive relief, not compensatory relief or tuition reimbursement. C.H. v. Cape Henlopen Sch. Dist., 606 F.3d 59, 66 (3d Cir. 2010). However, " a school district's failure to comply with the procedural requirements of the [IDEA] will constitute a denial of a FAPE . . . if such violation causes substantive harm to the child or his parents." Id. Substantive harm occurs when a party can establish, by a preponderance of the evidence, that " the procedural inadequacies (i) [i]mpeded the child's right to a FAPE; (ii) significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent's child; or (iii) caused a deprivation of the educational benefit." Id. at 67 (quoting 34 C.F.R. § 300.513(a)(2)) (alteration in original).

When designing an IEP for a behaviorally challenged student, school districts must " consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior." 34 C.F.R. § 300.324(a)(2)(i). Generally, the IDEA only requires a functional behavioral assessment (" FBA" ) " where a [student] has been identified with a disability and has an IEP in place, yet still displays behavioral problems." D. K. v. Abington Sch. Dist., No. 08-4914, 2010 WL 1223596, at *9 (E.D. Pa. Mar. 25, 2010), aff'd 696 F.3d 233 (3d Cir. 2012). Additionally, a school district must consider " positive behavioral interventions" where a student's behavior impedes his learning. 20 U.S.C. § 1414(d)(3)(B)(i). Other courts, however, have held that an FBA is not required where " the IEP sets forth other means to address the student's problematic behaviors." M.H. v. N.Y. City Dep't of Educ., 712 F.Supp.2d 125, 158 (S.D.N.Y. 2010); see also A.C. ex rel. M.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009) (finding an IEP adequate, even though it lacked an FBA, where it included other behavior management strategies). Per the Second Circuit, " the sufficiency of [a district's] strategies for dealing with [problematic] behavior 'is precisely the type of issue upon which the IDEA requires deference to the expertise of the administrative officers.'" A.C., 553 F.3d at 172-73 (citing Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 382, 74 Fed.Appx. 137 (2d Cir. 2003)).

b. Analysis: Procedural deficiencies

Plaintiffs first attack the District's offered IEP as procedurally deficient. They allege that, inter alia, (1) the District failed to assess Student in areas of documented need, (2) the IEP team failed to include a regular education teacher, or any teacher who would provide services to Student, (3) Parent was not included in decisions about school placement and configuration of Student's services, (4) the District decided which related services Student would receive based, not on his individual needs, but on policy and practice, (5) the placement decision was made by an administrator who never met Student and was not a member of his evaluation or IEP team, (6) Parent was not informed of the proposed program content--particularly a proposed research-affiliated program, (7) Parent had no information on Student's proposed classroom schedule, (8) Parent had no information on how large the " large group" speech therapy sessions would be, (9) Parent was given no input on the length, composition, or frequency of Student's proposed speech therapy sessions, (10) Parent was told she could only observe an elementary school autistic support class after she agreed to the placement, and (11) Parent was not provided prior written notice identifying Student's building placement. Pls.' Br. 29-31.[4] Defendant does not directly address these arguments, although it does aver that Parent was aware of the District's proposed placement from correspondence she had with a District administrator. Def.'s Resp. 14-15. The Hearing Officer did not find any procedural violations in the IEP-creation process.

Plaintiffs cite scant record evidence in support of these allegations. For example, with respect to the allegation that Student's IEP team was improperly constituted, Plaintiffs point only to Parent's testimony, Pls.' Br. 29 (citing Hr'g Tr. 59, 1248-53); see also Hr'g Tr. 60-62, which was contradicted by signatures of the IEP team listed on the IEP itself, SD-14, at 2. With respect to the allegation that Parent was " precluded from participation in decisions about [Student's] school placement and the configuration of his related services," Pls.' Br. 29, Plaintiffs cite to testimony from a School District speech therapist explaining that parents do not have input to the determination of the quantity of speech therapy services provided, id. (citing Hr'g Tr. 609, 633-34). With respect to the allegation that Defendant would not allow Parent to observe an elementary school autistic support class until she agreed to the placement, Plaintiffs offer only Parent's testimony. Id. at 31 (citing Hr'g Tr. 68-69). This testimony was countered by testimony from Cynthia Alvarez, a District administrator who worked with Parent, that Parent viewed a beginning-level autistic support class. Hr'g Tr. 235-39 (cited at Def.'s Br. 37). Finally, with respect to the alleged failure to provide prior written notice of the building placement, Plaintiffs cite Parent's testimony that the IEP team did not discuss the specific placement, Pls.' Br. 13 (citing Hr'g Tr. 65-67); to an email from Alvarez on June 18, 2012, directing an associate not to disclose the building placement, id. (citing SD-15, at 1); and to an email from Alvarez on August 28, 2012, notifying Parent of the building placement, id. at 8 (citing P-36, at 1). Against this, Alvarez testified that her policy was to consider parent input in the placement location decision, as well as to discuss placement at the IEP meeting. Def.'s Br. 37 (citing Hr'g Tr. 287). Even assuming that Plaintiffs' general allegations are largely true, they do not by themselves establish that the IEP process was procedurally deficient.

Moreover, other than a brief reference to " deliberate indifference" and " gross mismanagement," Plaintiffs offer no argument for why these procedural violations constitute substantive harm under Cape Henlopen. Pls.' Br. 31. Plaintiffs' allegations implicate only the second Cape Henlopen factor and have not " significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent's child." Cape Henlopen, 606 F.3d at 67 (quoting 34 C.F.R. § 300.513(a)(2)). Parent was present at the IEP conference, Compl. ¶ ¶ 62-65, and did not object to the process at that time, Def.'s Br. 6.[5]

Plaintiffs' evidence does not disrupt the presumption that the Hearing Officer's factual determination is correct. In addition, the nontestimonial record evidence does not sufficiently contradict the Hearing Officer's credibility determinations--particularly those respecting Parent's testimony vis-à-vis Alvarez's. See Shore Reg'l High Sch., 381 F.3d at 199. Therefore, the Court will affirm the Hearing Officer's decision that the District's alleged ...


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