R.B. v. Mastery Charter Sch.

• Decision Date: 29 December 2010
• Docket Number: Civil Action No. 2:10–cv–06722.
• Citation: 762 F.Supp.2d 745
• Parties: R.B., a Minor, by and through her PARENT, Plaintiff,v.MASTERY CHARTER SCHOOL, and the School District of Philadelphia, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

762 F.Supp.2d 745

R.B., a Minor, by and through her PARENT, Plaintiff,

v.MASTERY CHARTER SCHOOL, and the School District of Philadelphia, Defendants.

Civil Action No. 2:10–cv–06722.

United States District Court, E.D. Pennsylvania.

Dec. 29, 2010.

Ilene Young, Doylestown, PA, for Plaintiff.Glenna M. Hazeltine, John E. Freund, III, King Spry Herman Freund & Faul, Bethlehem, PA, Miles H. Shore, School District of Philadelphia Office of General Counsel, Philadelphia, PA, for Defendants.

MEMORANDUM OPINION AND ORDER

RUFE, District Judge.

On November 17, 2010 Plaintiff R.B., acting through her mother (“Parent”), brought this action against Mastery Charter School (“Mastery”) and The School District of Pennsylvania (“District”), appealing the decision of a Due Process Hearing Officer who refused to return R.B. to Mastery during the pendency of due process hearings conducted pursuant to the Individuals with Disabilities Education Act (“IDEA”). Presently before the Court is Plaintiff's Motion for a Mandatory Stay–Put Injunction,¹ and the District and Mastery's separate Motions to Dismiss Plaintiff's complaint pursuant to 12(b)(1) and (6).² Having considered the parties' arguments fully, and the evidence and testimony adduced at a hearing before this Court on December 16th and 17th, 2010, and for the reasons stated below, the Court enters the following Memorandum and accompanying Order.

I. BACKGROUND

A. Factual Background ³

R.B. is a 19–year–old female diagnosed with Trisomy 21 (Down's Syndrome), who currently lives with her mother in Philadelphia, Pennsylvania.⁴ She qualifies for special education services under the IDEA ⁵ because the results of educational, cognitive, and functional assessments identify her as a student with mild to moderate retardation. According to her most recent Individualized Education Plan (“IEP”)—which is outdated by two years—R.B.'s academic level of functioning ranges between a second to third grade instructional level. ⁶ In addition to her cognitive disabilities, R.B. also has physical impairments that impede her ability to function independently in the general classroom environment: she was born with a congenital heart defect and underwent open heart surgery to repair a ventral-septal defect before the age of two, has “hypermobile joints,” a heart murmur, soft palate, and sleep apnea.⁷ R.B.'s cognitive and physical disabilities substantially impede her ability to participate in the general classroom setting, and according to numerous IEPs and Evaluation Reports, she has received support from Therapeutic Support Staff (TSS) ⁸, and one-to-one academic aides ⁹ throughout her academic career.

R.B. attended her designated “neighborhood school,” the District's Pickett School, from 2005 until 2007, when Mastery took over management of the school. Although students are typically required to participate in a lottery to gain admittance to Mastery, neighborhood students already attending Pickett—including R.B.—automatically became students of Mastery. After Mastery took over Pickett, responsibility for implementing R.B.'s special education program transferred from the District to Mastery.

The Mastery IEP team developed two IEPs for R.B. The first Mastery IEP, dated November 2, 2007, provided a one-to-one aide for R.B.¹⁰ Daniel Kurtz, who was responsible for supervising the implementation of R.B.'s educational program at the time the 2007 IEP was developed, testified that the IEP team provided the aide solely because of “the school district's obligation to provide a one-to-one, based on what their IEP said was a court order.” ¹¹ Kurtz further testified that R.B.'s IEP team did not believe that R.B. showed a need for one-to-one academic assistance.¹² Therefore, R.B.'s 2008 IEP did not include a one-to-one aide as a related service. ¹³ It is unclear whether a one-to-one academic aide ever actually provided support to R.B. while she attended Mastery,¹⁴ and Parent contends she assumed the responsibility for providing the aide, and occasionally served as R.B.'s aide in the classroom and elsewhere due to staffing and cost considerations.¹⁵

Although it was not documented in either Mastery IEP, while R.B. attended Mastery, she received individual support from a TSS, who, among other responsibilities, monitored R.B.'s health issues, assisted R.B. to and from school, helped her transition between classes, and helped her copy text from the chalkboard into her notes.¹⁶ Parent testified that TSS workers were unreliable, and that when they were absent, she would escort R.B. to school, situate her in the classroom, and sometimes assist her in the classroom throughout the school day.¹⁷ Although Mastery's personnel controverted Parent's assertion that she was permitted to remain in the classroom during the day, all agreed that Parent would regularly escort R.B. to and situate her in her first class.¹⁸

The record also shows that Mastery accommodated R.B.'s health needs by modifying its strict attendance policy requirements.¹⁹ Parent testified that R.B.'s sleep apnea, in combination with her heart condition, made it impossible for her to consistently wake up by the beginning of school, and caused her to miss school frequently.²⁰ Because of the variability of R.B.'s attendance and her medical needs, until April 2009, Mastery did not record attendance for R.B., nor did they pursue standard truancy protocols in response to R.B.'s frequent absences.²¹

In March 2009, a conflict developed between Mastery and Parent after Parent brought R.B. to school earlier then usual, and had difficulty locating R.B.'s classroom. Ms. Seaton, the principal of Mastery, testified that when Parent entered the building, she refused to sign in and then disrupted an ongoing class and a faculty meeting.²² After the incident, on March 6, 2009, Ms. Seaton sent Parent a letter limiting Parent's entry into Mastery, informing her that she was “no longer welcome to enter our building unless [she had] a scheduled appointment with an administrator.” ²³ Parent interpreted the letter as a no-trespass notice, which made it impossible for her to transport R.B. to school and situate her in the classroom, and thus prevented R.B. from attending school. Soon after receiving the letter, Parent stopped bringing R.B. to school.

Emails between Mastery personnel indicate that on April 28, 2009, Mastery—for the first time—began to mark R.B. absent.²⁴ Although it is unclear what prompted the change in Mastery attendance procedures for R.B., a May 12 email about how to “code” R.B.'s attendance noted concerns that Parent's “decision to keep [R.B.] out of school due to legal action [was] hurting our attendance figures.” ²⁵ On June 19, 2009, after sending three written communications to the parent, and pursuant to Pennsylvania State Law,²⁶ Mastery unilaterally dropped R.B. from enrollment. There is no evidence that Mastery provided Parent with a copy of the Procedural Safeguards for special education students, attempted to convene a meeting of R.B.'s IEP team, or considered whether or not R.B.'s absences were a manifestation of her disability prior to dropping R.B. from the rolls. Since the disenrollment was unilateral, it occurred without the informed consent of Parent.

R.B. has not been in school—nor has she received any special education services—since this dispute arose in March 2009. She is now nineteen years old, and will only qualify for special education services until age twenty-one.

B. Procedural History

On April 16, 2009, Parent, acting pro se, made her first attempt to initiate legal proceedings by filing a complaint against the District and Mastery in the Eastern District of Philadelphia.²⁷ Her complaint was dismissed on August 28, 2009 due to procedural deficiencies.²⁸ Just under a year later, on March 29, 2010, Parent filed a Complaint and a Request for a Preliminary Injunction and Temporary Restraining Order against Mastery and the District in the Philadelphia Court of Common Pleas.²⁹ The Court dismissed her request after R.B.'s former counsel failed to appear at the hearing, and upon finding that the Plaintiff had failed to establish service of the Complaint.

On October 5, 2010, Parent filed a Complaint for Due Process in the Pennsylvania Office for Dispute Resolution against Mastery and the District. After both Defendants moved to dismiss the complaints, the Hearing Officer asked Parent to respond and asked the parties to brief the issue of where R.B. belonged (or should “stay-put”) during the pendency of the administrative proceedings. Parent and the District argued that Mastery was the appropriate stay-put placement for R.B. On November 1, 2010, the Hearing Officer declined to determine R.B.'s stay-put placement until the underlying Due Process complaint was resolved, finding that “there was no operative placement actually functioning at the time this dispute first arose,” and that the “legitimacy of the Student's disenrollment is a mixed question of fact and law that cannot be resolved before the hearing.” ³⁰

On November 17, 2010, Parent, on behalf of R.B., appealing the Hearing Officer's refusal to issue a stay-put order during the pendency of these proceedings by filing this Complaint and pending Motion for a Stay–Put Injunction in this Court. Both Defendants subsequently moved to dismiss the complaint. On December 16th and 17th, this Court conducted an evidentiary hearing and has now reviewed the testimony, arguments, evidence, and governing law. All Motions are no ripe for disposition.

C. Legal Background

In 1970, Congress enacted the IDEA to ensure that “all children with disabilities are provided a ‘free appropriate public education which emphasizes special education and related services designed to meet their unique needs [and] to assure that the rights of [such] children and their parents or guardians are protected.’ ” ³¹ “[T]he primary vehicle for implementing these congressional goals” is the IEP,³² which describes the...