P.V. v. School District of Philadelphia

289 F.R.D. 227, 2013 U.S. Dist. LEXIS 21909, 2013 WL 603107
CourtDistrict Court, E.D. Pennsylvania
DecidedFebruary 19, 2013
DocketCivil Action No. 2:11-cv-04027
StatusPublished
Cited by3 cases

This text of 289 F.R.D. 227 (P.V. v. School District of Philadelphia) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
P.V. v. School District of Philadelphia, 289 F.R.D. 227, 2013 U.S. Dist. LEXIS 21909, 2013 WL 603107 (E.D. Pa. 2013).

Opinion

MEMORANDUM

LEGROME D. DAVIS, District Judge.

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.,1 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 [229]*229have 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.

1. 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.2 (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 Doe. 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; Doe. 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.” (Doe. 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 Doe. 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-level[230]*230ing 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.3 (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).

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Bluebook (online)
289 F.R.D. 227, 2013 U.S. Dist. LEXIS 21909, 2013 WL 603107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pv-v-school-district-of-philadelphia-paed-2013.