T.R. v. Sch. Dist. of Phila.

• Decision Date: 30 November 2016
• Docket Number: CIVIL ACTION No. 15–4782
• Citation: 223 F.Supp.3d 321
• Parties: T.R., et al., Plaintiffs, v. SCHOOL DISTRICT OF PHILADELPHIA, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

223 F.Supp.3d 321

T.R., et al., Plaintiffs,

v.SCHOOL DISTRICT OF PHILADELPHIA, Defendant.

CIVIL ACTION No. 15–4782

United States District Court, E.D. Pennsylvania.

Signed November 30, 2016

Maura I. McInerney, Education Law Center, Paul H. Saint–Antoine, Chanda A. Miller, Ginene A. Lewis, Lucas B. Michelen, Drinker, Biddle & Reath LLP, Daniel Urevick–Ackelsberg, Sonja D. Kerr, Michael Churchill, Public Interest Law Ctr of Philadelphia, Philadelphia, PA, for Plaintiffs.

Marjorie M. Obod, Patrick M. Northen, Dilworth Paxson LLP, Philadelphia, PA, for Defendant.

Memorandum Opinion

Goldberg, District Judge

Plaintiffs filed this putative class action alleging that the School District of Philadelphia ("School District") provides inadequate translation and interpretation services to limited English proficient ("LEP") students with disabilities and their parents. Plaintiffs assert that this failure deprives students and their parents of the ability to meaningfully participate in the Individualized Education Program ("IEP") process. Plaintiffs contend that the School District's actions violate the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act, Americans with Disabilities Act, 22 PA §§ Code 14–15, the Equal Education Opportunities Act and Title VI of the Civil Rights Act of 1964.

Presently before me is the School District's motion to dismiss Plaintiffs' Complaint. For the following reasons, I will deny the School District's motion in its entirety.

I. FACTUAL BACKGROUND AND STATUTORY FRAMEWORK

As it is necessary to understand the basis of Plaintiffs' claims, the relevant portions of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., and related regulations are discussed briefly below.

A. IDEA Framework

Under the IDEA, any state that receives federal educational funding must provide children within that state with a "free appropriate public education" ("FAPE"). See 20 U.S.C. §§ 1412(a)(1)(A), 1401(9). A FAPE "consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child ‘to benefit’ from the instruction." Bd. of Educ. v. Rowley , 458 U.S. 176, 188–89, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The IDEA "contemplates that school districts will achieve these goals by designing and administering a program of individualized instruction for each special education student set forth in an Individualized Education Plan." D.S. v. Bayonne Bd. of Educ. , 602 F.3d 553, 557 (3d Cir. 2010) (citing 20 U.S.C. §§ 1412(a)(4), 1414(d) ).

An IEP is a "written statement for each child with a disability that is developed, reviewed, and revised" by the student, school district personnel and the student's parents. 20 U.S.C. § 1414(d)(1)(A)(i), (B) ; 34 C.F.R. §§ 300.320 –324. Parents must be given a copy of the IEP at no cost to the parents. 34 C.F.R. § 300.332(f).

In order to conduct an initial evaluation of a student or begin the provision of special education services, a school must obtain written parental consent. This consent requires that the parent "has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language , or through another mode of communication." 34 C.F.R. § 300.9(a),(b) (emphasis added).

The IDEA requires that the parent(s) of a student with a disability be invited to each IEP team meeting and afforded an opportunity to participate. 20 U.S.C. § 1414 ; 34 C.F.R. §§ 300.321, 327, 501(c). To that end, the school is required to notify "parents of the meeting early enough to ensure that they will have an opportunity to attend and inform the parents of the purpose of the meeting and who will be present." 34 C.F.R. § 300.322(b)(1)–(2).

The IDEA contains procedural safeguards designed, in part, to ensure "that families of such children have meaningful opportunities to participate in the education of their children at school and at home." 20 U.S.C. § 1400(c)(5)(B). For example, the school "must take whatever action is necessary to ensure that the parent understands the proceedings of the IEP Team meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English." 34 C.F.R. § 300.322(e).

Additionally, students suspected of having a disability must be evaluated "in the child's native language or other mode of communication and in the form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is clearly not feasible to so provide or administer." 34 C.F.R. § 300.324(a)(2)(ii) ; see 20 U.S.C. § 1414(b)(3)(A) (emphasis added).

The IDEA also requires that parents of students with disabilities receive prior written notice before a school proposes to initiate or change or refuses to initiate or change "the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to the child." 20 U.S.C. § 1415(b)(3). The IDEA mandates that schools develop "[p]rocedures designed to ensure that [this notice] is in the native language of the parents, unless it clearly is not feasible to do so." Id. § 1415(b)(4). In Pennsylvania, the form used to provide prior written notice is called a Notice of Recommended Educational Placement ("NOREP").

B. Factual Allegations

The following factual allegations are taken from the Complaint:¹

— T.R. and A.G. are students in the School District. Both students have learning disabilities and are limited English proficient ("LEP"). T.R.'s mother, Barbara Galarza, and A.G.'s Guardian, Margarita Peralta, are also both LEP. Spanish is the native language of the four named Plaintiffs. (Compl. ¶¶ 2, 16–19.)²

— As of November 2013, the School District reported that there were approximately 25,900 families whose primary home language was not English and that approximately 19,760 families had requested documents in a language other than English. During the same time period, the School District's records indicate that 1,887 students with IEPs had a home language other than English. (Compl. ¶¶ 42, 51–52.)

— During the 2012–2013 school year, only 487 special education documents of any type were orally interpreted. The School District's interpretation services are provided primarily by approximately 55 Bilingual Counseling Assistants. These individuals, however, do not provide translation services. (Compl. ¶ 53.)

— During the 2012–2013 school year, the School District employed an outside contractor that may have translated some special education documents. However, as of the 2013–2014 school year, the School District no longer employed this outside contractor. Additionally, the Translation and Interpretation Center, an internal department within the School District, never translated an IEP in its entirety.³ (Compl. ¶¶ 51–54.)

— Despite knowledge of the foregoing, the School District has adopted a policy in which it fails to timely and completely translate IEPs, NOREPs, evaluations, re-evaluations, progress reports, assessments and other IEP process documents for LEP students with disabilities and their parents. The School District also has failed to provide translated evaluations and re-evaluations to parents at least ten school days prior to IEP team meetings. (Compl. ¶¶ 55–56.)

— Although the School District has attempted to provide some interpretation services during IEP team meetings, those efforts have been sporadic and incomplete. Additionally, the School District has failed to conduct evaluations of LEP students in their native language. (Compl. ¶ 57.)

In light of the above allegations, Plaintiffs urge that LEP parents have been denied "their right to informed consent, notice, decision making regarding program and placement, and meaningful participation in the IEP process, including IEP team meetings." Plaintiffs further urge that LEP students have been denied "equal educational opportunities to participate fully and equally in the IEP process and in the District's educational programs" as well as the ability to "receive adequate IEP–related services" and a FAPE. (Compl. ¶¶ 57–59.)

C. Claims

Plaintiffs, on behalf of themselves and other similarly situated students and parents, bring the following claims: (1) Failure to provide meaningful parental and student participation in violation of IDEA, 20 U.S.C. §§ 1400 et seq. on behalf of the Parent Class and Student Class (Count One); (2) Failure to conduct evaluations of students in their native language in violation of the IDEA, 20 U.S.C. §§ 1400 et seq. on behalf of the Parent Class and members of the Student Class who are LEP (Count Two); (3) A violation of the Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, and 22 Pa. Code § 15 on behalf of the Student Class (Count Three); (4) A violation of the Equal Education Opportunities Act ("EEOA"), 20 U.S.C. § 1703(f) on behalf of the Student Class (Count 4); (5) A violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d on behalf of the Parent Class and members of the Student Class who are LEP (Count 5); (6) A violation of 22 Pa. Code § 14 on behalf of the Parent Class and Student Class (Count Six); and (7) Failure to provide regular education forms in violation of 22 Pa. Code § 15 on behalf of the Parent Class and Student Class (Count Seven).⁴

Plaintiffs seek to represent two classes composed of:

A. All parents as defined by 34 C.F.R. § 300.30(a) with limited English proficiency and whose children now or in the future are enrolled in the School District of Philadelphia and identified or eligible to be identified as children with a disability within the meaning of the IDEA and/or Section 504 and related state laws ("Parent Class"); and

B. All students who now or in the future are enrolled in the School District of Philadelphia in grades kindergarten through the

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