Jalen Z. v. Sch. Dist. of Phila., Civil Action No. 13–4654.

• Decision Date: 15 May 2015
• Docket Number: Civil Action No. 13–4654.
• Parties: JALEN Z. et al., Plaintiffs, v. SCHOOL DISTRICT OF PHILADELPHIA, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

104 F.Supp.3d 660

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

Civil Action No. 13–4654.

United States District Court, E.D. Pennsylvania.

Signed May 15, 2015.

104 F.Supp.3d 665

Caryl A. Oberman, The Law Offices of Caryl Andrea Oberman, Willow Grove, PA, for Plaintiffs.

Miles H. Shore, School District of Phila, Philadelphia, PA, for Defendant.

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

Table of Contents

I. BACKGROUND 666

A.	Factual Background	666
B.	Procedural History	667

II. CROSS–MOTIONS FOR JUDGMENT ON THE ADMINISTRATIVE RECORD 668

A.	Standard of Review	668
B.	Discussion	668

1. Adequacy of the IEP 668

a.	Legal standards	669
b.	Analysis: Procedural deficiencies	670
c.	Analysis: Substantive deficiencies	672

i.	Inadequate reevaluation report	672
ii.	No one-on-one aide	672
iii.	Inadequate related services	672
iv.	Inadequate transition plan	674
v.	No positive behavior support plan	675
vi.	Retrospective testimony of proposed placement	675

2. Denial of Pendency 678

a.	Legal standard	678
b.	Analysis	678

C. Conclusion 682

III. MOTION FOR SUMMARY JUDGMENT 682

A.	Standard of Review	682
B.	Claim II: Section 504 of the Rehabilitation Act and the ADA	682
C.	Claim III: Title VI	683
D.	Conclusion	683

IV. CONCLUSION 685

104 F.Supp.3d 666

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 Background¹

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 3–4.²In November of 2011, Student's

104 F.Supp.3d 667

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...