United States District Court, W.D. Pennsylvania
C.L., by and through his parent and natural guardian, K.B., Plaintiffs,
MARS AREA SCHOOL DISTRICT, ADAM M. KOSTEWICZ, DR. WILLIAM J. PETTIGREW, J. DAYLE FERGUSON, REBECCA BROWN, GORDON MARBURGER, STEVEN B. BOGGS, RITA DORSCH, JANE DUNN, JOHN KENNEDY, CHRISTINE VELENTA and BONNIE L. WEAVER, Defendants.
TERRENCE F. McVERRY, Senior District Judge.
C.L., by and through his parent and natural guardian, K.B. ("Plaintiffs"), brings this action under the Individuals with Disabilities Education Act ("IDEA"), 42 U.S.C. § 1401 et seq.; Section 504 of the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 794; the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; 42 U.S.C. § 1983; and Pennsylvania law. Plaintiffs "seek the value of compensatory education, monetary damages, attorney's fees, and other appropriate judicial relief due to the School District's: (1) abject failure to properly initiate, prepare, and implement an Individualized Education Program (IEP'); (2) refusal to properly evaluate C.L. and provide necessary aides, support and services; (3) protect the bodily integrity of C.L, and (4) wrongful expulsion in violation of the IDEA which was overturned by a Due Process Hearing Officer." Am. Compl. ¶ 1, ECF No. 21. In addition to the Mars Area School District, the Amended Complaint names various School District administrators, employees, and School Board members as Defendants: Adam M. Kostewicz, the principal of the Mars Primary School; Dr. Richard Glosser, the School District's psychologist; Eileen Deklewa, a guidance counselor in the School District; Dr. William J. Pettigrew, the School District's superintendent; and J. Dayle Ferguson, Rebecca Brown, Gordon Marburger, Steven B. Boggs, Rita Dorsch, Jane Dunn, John Kennedy, Christine Velenta, and Bonnie L. Weaver, each of whom is a member of the School Board (collectively, the "individual Defendants").
Pending before the Court is Defendants' MOTION TO DISMISS AMENDED COMPLAINT IN CIVIL ACTION PURSUANT TO RULE 12(b)(1) AND 12(b)(6), along with a brief in support. ECF Nos. 25, 26. Plaintiffs have filed a brief in opposition to Defendants' motion. ECF No. 28. Accordingly, the motion is ripe for disposition.
When this action was initiated, C.L. was a seven-year-old first grader in the School District. Am. Compl. ¶¶ 20, 59. He suffers from Oppositional Defiance Disorder ("ODD"), Attention Deficit Hyperactivity Disorder ("ADHD"), and craniosynostosis. Id. ¶¶ 15-16.
C.L. attended kindergarten at Heart Prints Center for Early Education, where he received wraparound services through a community behavioral health organization. Id. ¶¶ 67-68. Such services included a combination of Therapeutic Staff Support ("TSS"), Mobile Therapy ("MT"), and a Behavioral Specialist Consultant ("BSC"). Id. ¶ 69. These services enabled C.L. to do "very well" in kindergarten. Id. ¶ 70.
C.L. enrolled in the School District after completing kindergarten, and his wraparound services ceased. Id. ¶ 71. At the time of C.L.'s enrollment, K.B. informed Kostewitz, the principal, and Deklewa, the guidance counselor, about C.L.'s disabilities and how they would affect his interactions and performance in school. Id. ¶ 72. In response, the School officials advised K.B. that C.L. had to "be observed" before an individualized education program ("IEP") was developed for him. Id. ¶ 73. On September 17, 2014, Kostewitz contacted K.B. to report that the School District had been "having issues with C.L., " and a meeting between the School District and K.B. was scheduled to discuss C.L.'s disability and treatment. Id. ¶¶ 77-78. C.L.'s BSC and Ellen J. Humitsky of Heart Prints Center were present at the meeting, along with the School District representatives and K.B. Id. ¶ 78. At the meeting, the School District recommended that C.L. be placed immediately in an alternative schooling program. Id. ¶ 79. K.B. refused, and instead the School District agreed to begin evaluating C.L. for an IEP. Id. ¶ 63; Hr'g Officer's Decision ¶ 9, ECF No. 21-2. Plaintiffs allege, however, that the School District delayed C.L.'s evaluation to prevent the development and implementation of the IEP. Am. Compl. ¶ 64.
On September 18, 2014, C.L. was suspended for throwing a shoe and was held out of class without a tutor until September 21, 2014. Id. ¶¶ 81-83. Plaintiffs claim that C.L.'s suspension was unlawful because the conduct giving rise to the suspension was a manifestation of C.L.'s disabilities. Id. ¶ 82. They also claim that K.B. was not provided with written notice of the suspension. Id. ¶ 83. On September 30, 2014, C.L. was suspended, again allegedly without written notice or cause. Id. ¶ 84. The principal also allegedly grabbed C.L. by the arm and dragged him down the hall in front of his classmates, causing him fear and humiliation. Id. ¶ 85. According to Plaintiffs, this "was done for the purpose of ostracizing C.L. from his classmates, thereby preventing his integration into the classroom environment." Id. ¶ 87. Furthermore, Plaintiffs allege, "[t]he physical attack and refusal to help C.L. with his disability was part of a pattern and practice by the School District to prevent C.L. from integrating with the other non-disabled first grade children and terrify and humiliate C.L. to the point he does not want to return to school." Id. ¶ 88. The principal allegedly pulled C.L.'s arm on other occasions, and as a result, C.L. now experiences anxiety, nightmares, difficulty sleeping, and is withdrawn from the classroom environment. Id. ¶ 90.
On October 6, 2014, the School District assigned an aide to work with C.L., but the aide was allegedly "untrained in the area of behavioral treatment and completely unable to perform any appropriate behavioral intervention and modification." Id. ¶ 91. According to the Amended Complaint, the School District intentionally assigned the inexperienced aide to try to make C.L. to act out, which would in turn allow the School District to move C.L. to an off-site educational environment. Id. ¶ 92.
On October 10, 2014, the School District moved C.L.'s desk away from the desks of his classmates "to exclude [him] from any reasonable class interaction and humiliate him as a result of his disability." Id. ¶ 93. That same day, the principal grabbed C.L. forcibly by the shoulders and pressed down on his torso, causing him pain and discomfort and frightening him to the extent that he "does not want to re-enter the primary school." Id. ¶ 97. The principal then paraded C.L. in front of his classmates with a police escort as the students lined up for the buses at the end of the day. Id. ¶ 101.
Plaintiffs further allege that the School District placed C.L. in a "safe room" on unspecified occasions, where he was locked away for in excess of three hours at a time without a tutor or other adult supervision. Id. ¶ 95. The School District also allegedly promoted and facilitated the harassment of C.L. by other students, with the intent to cause C.L. to act out, which would give the School District an ostensible basis for removing C.L. from the regular school setting. Id. ¶ 115. Also, on unspecified occasions, C.L. was forced to eat lunch by himself away from other students. Id. ¶ 93.
Sometime in late September or early October 2014, K.B. filed a due process complaint related to C.L.'s suspensions. On October 20, 2014, after learning of the due process complaint, the School District allegedly suspended C.L. again, and the Adams Township Police Department was apparently called in relation to the incident leading to his suspension. Id. ¶¶ 101-04. On October 22, 2014, the School District attempted to avoid participation in an inter-agency service planning team ("ISPT") meeting, allegedly to prevent C.L. from receiving wraparound services. Id. ¶ 105. According to Plaintiffs, this was "part of the School District's systemic plan and scheme to place C.L. in a restrictive off-site placement." Id. ¶ 106.
On October 27, 2014, the School District alleged that C.L. pushed a student, kicked a teacher, and overturned tables in a classroom, and the next day, the School District decided to initiate expulsion proceedings against C.L. Id. ¶¶ 117-18. K.B., however, claimed that C.L.'s conduct was a manifestation of his disability. Id. ¶ 117. In addition, according to the Amended Complaint, the allegation that C.L. kicked a teacher was a fabrication. Id. ¶ 119. Because C.L.'s IDEA evaluation was underway, the School District held a manifestation determination review before proceeding with the expulsion. At the review, the School District's IEP team allegedly "rubber stamped" a previous determination by the School District that C.L.'s conduct on October 27, 2014, was not a manifestation of his ADHD and ODD. Id. ¶ 121. According to Plaintiffs, The IEP team did not consult an independent psychologist before makings its manifestation determination. Id. ¶ 121. Furthermore, the School District disregarded the testimony of a psychologist retained by K.B., who opined that the conduct at issue was a manifestation of C.L.'s disabilities. Id. ¶ 123.
Immediately following the manifestation determination review, the School District began an expulsion hearing, which, in Plaintiffs' words, was tantamount to a "kangaroo court." Id. ¶¶ 121, 124, 125. In support of that description, Plaintiffs point to a number of procedural errors that allegedly occurred at the hearing: the School District's attorney acted as both the hearing officer and counsel for the School District; notice was not provided in accordance with the requirements of 22 Pa. Code § 12.8(b)(1); the School District violated the "stay put" provision in the IDEA by not allowing C.L. to return to school pending the outcome of the proceedings; an evaluation report was not completed prior to the manifestation determination; K.B. was never provided with a copy of the School District's expulsion policy; the School District's policies and procedures were never provided to K.B.; the complaint against C.L. was not sufficiently detailed; an informal hearing was not conducted, as required by School District policy; C.L.'s suspensions were not initiated with the requisite written notice; the hearing officer permitted references to C.L.'s prior suspensions, even though no manifestation determination review was conducted for these suspensions; a formal decision was never rendered; and notice of C.L.'s right to appeal the results of the hearing was not provided. Id. ¶ 126. At the conclusion of the hearing, the School Board members recommended that C.L. should be expelled. Id. ¶ 128. According to the Amended Complaint, however, KB was not notified that the School Board had approved the expulsion, as is required by Pennsylvania law. Id. ¶ 132. Furthermore, Plaintiffs allege that no other first grader in the School District has ever been suspended or expelled for pushing a child or flipping a chair - the conduct that triggered C.L.'s expulsion. Id. ¶ 130.
The School District's IDEA evaluation report had not been completed prior to the manifestation determination review and expulsion hearing. The report was, however, completed sometime prior to November 11, 2014. Id. ¶ 137. In the report, Glosser, Adams, and Deklewa indicated that C.L.'s disruptive behaviors - being argumentative, defying requests, possessing poor control of emotional responses, breaking rules, having destructive tendencies, and being manipulative - were a manifestation of his disabilities. Id. ¶ 138. Despite what they had concluded in the report, however, Glosser, Kostewicz, and Deklewa testified during the expulsion proceedings that C.L.'s actions on October 27, 2014, were not a manifestation of his disabilities. Id. ¶ 140.
B. The Administrative Process
K.B. appealed the School Board's manifestation determination, and an expedited due process hearing was held before Pennsylvania Special Education Hearing Officer Anne Carroll, Esq., on November 10, 2014. Id. ¶¶ 143-44. The two issues before the hearing officer were:
1. Did the School District accurately and appropriately determine that behaviors in which Student engaged on October 27, 2014 were not a manifestation of Student's disability?
2. Was the District, therefore, justified in imposing the same discipline it would have imposed on a non-IDEA eligible student for a serious violation of the District's code of student conduct, i.e., Student's expulsion from the District for the 2014/2015 school year?
Hr'g Officer's Decision 3. The hearing officer issued her decision on November 24, 2012, and concluded that the School District's manifestation determination was "clearly erroneous" since there was a "direct and substantial relationship" between C.L.'s disabilities and his conduct on October 27, 2014. Id. at 19. In addition, the hearing officer found that the School District had "blatantly violated IDEA placement and discipline procedures." Id. at 18. As she explained:
... the District's approach to the manifestation determination review and its unreasonable determination that the same behaviors that support the conclusion that Student has an IDEA disability, and by reason thereof, needs specially designed instruction, were not a manifestation of disability on one particular day, leads directly to the inference that the District was determined to effect a change of Student's educational placement. Notably, District counsel elicited testimony from the school counselor that from nearly the beginning of the current school year, the ...