|
|
|
|
JUDICIAL & ADMINISTRATIVE DECISIONS
|
|
Perkiomen Valley School District v. R.B., et al, 2021 WL 1390764 (E.D. Pa. 2021)
SPECIAL EDUCATION; SECTION 504; ADA; GIFTED EDUCATION
FAPE • Educational Offer of Nonresidential Program • Tuition Reimbursement
• Private School
Perkiomen Valley School District’s (Perkiomen) motion for summary judgment was denied in this case alleging violations of the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504) and the Americans with Disabilities Act (ADA). Since before she was one year old, R.B. has been eligible for special education under the IDEA, and she has been considered a protected handicapped student under Section 504 and is classified as having an intellectual disability and a speech/language impairment. Since the summer of 2008, R.B. has been a resident of Perkiomen. In her 13th school year, R.B. was 18 years old and had an eighth grade reading level. R.B. participated in the Montgomery County Intermediate Unit Apartment Program five days a week in the afternoon. In the fall, R.B.’s parents began exploring alternative programs that focused on independent living skills for R.B.’s 2015-16 school year and discovered a New York residential transition program for students with intellectual disabilities, the Vocational Independence Program (VIP). R.B.’s parents asked Perkiomen to fund R.B.’s placement at VIP, but were denied. In May of 2015, R.B.’s parents notified Perkiomen that they believed R.B. was not ready to graduate at the end of the 2014-15 school year and they retained an outside expert to author an independent transition evaluation report of R.B. It was the expert’s opinion that VIP was appropriate for R.B. The parents provided this report to Perkiomen and told Perkiomen that R.B. had been accepted at VIP. Perkiomen again denied the parents’ request to fund R.B.’s placement at VIP. In early summer 2015 another individualized education program (IEP) meeting was held where all parties agreed that R.B. was not ready to graduate and needed “additional programming.” Perkiomen proposed that R.B. attend either the high school, the Technical College High School - Pickering Program’s Early Childhood Education Program (Pickering) or another school-age career preparation program for the 2015-16 school year and offered Extended School Year (ESY) services. R.B. was not able to attend an ESY program due to family vacations, and the parents were not happy with Pickering. R.B.’s parents asked again for Perkiomen to fund R.B.’s placement at VIP, and the request was denied. Thereafter, R.B. was enrolled in VIP. R.B. attended VIP for the next two school years. During the two-year time frame, there were additional IEP meetings and reevaluations of R.B. The parents continued to ask Perkiomen to fund the placement of R.B. at VIP but the requests were denied. Experts disagreed on the appropriate course of action for R.B., resulting in a due process hearing in late December 2017.
The hearing officer determined that R.B.’s parents had established that Perkiomen’s proposed programs for the 2015-16 and 2016-17 school years “were not appropriate for [R.B.] in terms of individualized, outcome-oriented post-secondary transition programming” and that VIP was appropriate for R.B. The hearing officer ordered Perkiomen to “reimburse the Parents only for tuition and related academic costs (training, books, and supplies) for the 2015-16 (at 100%) and 2016-17 (at 50%) school years” but not R.B.’s residential and travel expenses at VIP. A federal complaint followed and Perkiomen filed a motion for summary judgment alleging that R.B.’s parents were not entitled to reimbursement for the private placement for either school year. R.B.’s parents also filed a motion for summary judgment, alleging that they were entitled to the tuition reimbursement as well as the residential and travel expenses.
The court focused on the IDEA and referenced the processes available to parents who disagree with a proposed IEP, noting that “parents who unilaterally change their child’s placement during the pendency of review proceedings, without the consent of state or local school officials, do so at their own financial risk.” The court then reviewed whether Perkiomen offered a free and appropriate public education (FAPE) to R.B. and determined that what Perkiomen was offering was not suitable for R.B. and therefore, R.B. was not offered a FAPE. The court turned to whether VIP was an appropriate private placement for R.B. and determined that under all of the circumstances, VIP was appropriate. The court next reviewed the appropriate equitable relief and determined that Perkiomen must reimburse R.B.’s parents the cost of R.B.’s room and board as well certain transportation costs related to when R.B. started the semester and ended the semester. Accordingly, Perkiomen’s motion for summary judgment was denied and R.B.’s parents’ motion for summary judgment was granted.
Click here for the opinion.
Mary E. Price v. Commonwealth Charter Academy Cyber School, 2021 WL 1405876 (E.D. Pa. 2021)
SPECIAL EDUCATION; SECTION 504; ADA; GIFTED EDUCATION
Compensatory Education • Wrongful Use of Civil Proceedings
The District Court partially granted Commonwealth Charter Academy Cyber School’s (CCA) motion for summary judgment and denied Price’s motion. Price is the mother of minor T.R., who is a student at CCA. T.R. is diagnosed with multiple mental disabilities that affect T.R.’s learning. In September 2016, following an administrative hearing, the hearing examiner found that CCA had denied T.R. a free and appropriate public education (FAPE) and granted T.R. a compensatory education award (CEA) of 2,820 hours of compensatory education services. The decision directed “[CCA] … to pay a third party provider to provide the compensatory education services at the prevailing rate in the community where the services are provided. The Parent selected third party provider may use the compensatory education hours to provide whatever specially–designed instruction, related services, assistive technology, supplemental services, and aids necessary to make [T.R.] whole.... [CCA] should reimburse the service provider at the customary rate for services rendered in the market or location where the services are provided. Four times a year the third party provider, selected by the Parent, will give the Parent a progress report verifying the Student’s measurable progress.” In July 2019, Price notified CCA that she wanted to use the CEA for T.R. to receive full-time services at a private school, Fusion Academy (Fusion). Fusion had proposed to provide 401, 50-minute “sessions” of services to T.R. for the year, resulting in a total of only 334.17 hours of instructional time for the year, which is less than half of the number of hours that CCA was obligated to ensure T.R. received (990 hours). CCA made several proposals to Price to address the deficit but Price rejected all of the proposals. Price made some counterproposals as well but those were rejected by CCA. In the end, the parties couldn’t reach agreement on how many hours should be deducted from the CEA for the services provided by Fusion. Meanwhile, Price entered into a “Consultancy Agreement” contract with a company named Advocacy Unlimited “to provide services on behalf of [T.R.] after negotiations with CCA regarding [T.R.]’s full-time educational plan at Fusion stalled.” The “Consultancy Agreement” indicated that: (1) the contract is between “[Advocacy Unlimited] and (the “Parent”) Mary Price on behalf of T.R. (the “child”)”; and (2) CCA was the entity that would pay Advocacy Unlimited’s fees, despite the fact that CCA was not a party to the contract. Thereafter, in August 2019, a behavioral health consultant contacted CCA, attempting to advocate on Price’s behalf for Price’s desired resolution. Later, CCA received invoices from the consultant seeking payment for the services she provided. CCA did not pay the invoices. Ultimately, Price commenced this action under the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act (Section 504), seeking enforcement of the hearing officer’s administrative decision that granted a compensatory education award to T.R. CCA later asserted counterclaims against Price for wrongful use of civil proceedings and sought a declaratory judgment regarding its obligation to pay for compensatory education services for T.R. Before the court in this decision was the parties’ cross-motions for summary judgment.
The court addressed each count of the complaint. Count I of Price’s complaint pertained to enforcement of the hearing officer’s decision. Price contended that CCA did not comply with the decision by proposing unacceptable plans and refusing to pay for the behavioral health consultant. The court reviewed each of the seven proposals and counterproposals and determined that all of CCA’s proposals were consistent with the CEA and all of CCA’s rejections of the counterproposals were equally consistent. Additionally, the court found that the services provided by the behavioral health consultant were not qualified services under the CEA. Accordingly, summary judgment on Count I of the complaint was rendered in favor of CCA. The court reviewed Count II of Price’s complaint alleging retaliation under Section 504 and denied Price’s motion for summary judgment because there was no support in the record for her factual allegations. The court moved to the counterclaim filed by CCA and denied CCA’s motion for summary judgment regarding a declaration on the market rate for tutoring services. Finally, the court focused on Count II of CCA’s counterclaim regarding the wrongful use of civil proceedings and denied Price’s motion for summary judgment because Price failed to show the absence of a genuine issue of material fact.
Click here for the opinion.
Vickie McClain v. Connellsville School District, 2021 WL 1737465 (W.D. Pa. 2021)
EMPLOYMENT DISCRIMINATION
Sexual Harassment • Title VII • Hostile Work Environment
The District Court granted, in part, and denied, in part, Connellsville School District’s (Connellsville) motion to dismiss the employment discrimination claim filed by McClain. The facts as alleged in the complaint state that McClain is a clerk who has worked at Connellsville since 2003. In 2015, she ended a romantic relationship with Connellsville’s director of security. According to McClain, he became “increasingly verbally abusive and extremely hostile while in the workplace” when she ended their relationship. She alleges that he “exercised the powers of his authority to sexually harass” her. She filed a complaint about the behavior with Connellsville in or around June 2015, expressing her fears for her safety relating to the director of security’s behavior. However, his behavior remained “unchecked” and his conduct “continued to [sic] several years during which time [McClain] was harassed and demeaned by [the director of security] on a regular basis.” In 2019, McClain complained to the principal of the high school because the director of security was monitoring McClain’s activities. The director of security then “publicly berated [McClain] regarding her job performance,” accusing her of engaging in activities outside the scope of her job duties, and “proceeded to verbally abuse [McClain] for a perceived act of insubordination.” McClain filed a complaint asserting discrimination based on sex and retaliation in violation of Title VII and the Pennsylvania Human Relations Act (PHRA).
At the outset, the court dismissed parts of McClain’s claims as untimely. The court then turned to the disparate treatment and hostile work environment claims based on sexual harassment. The court dismissed the disparate treatment claim because the complaint did not allege facts that supported an inference of circumstances giving rise to discrimination. However, the claims for hostile work environment were determined to be plausible since McClain alleged that Connellsville had actual knowledge of the alleged harassment and failed to address it. The court also dismissed the retaliation claims since McClain failed to plead a causal connection between her protected conduct and the adverse employment actions.
Click here for the opinion.
D.A., by and through his parents D.A. and W.A. v. Penn Hills Public School District, 2021 WL 1929287 (W.D. Pa. 2021)
SPECIAL EDUCATION; SECTION 504; ADA; GIFTED EDUCATION
Discrimination • ADA • Section 504
PUPIL TRANSPORTATION
Failure-to-Accommodate • Interplay between ADA, Section 504 and IDEA
The District Court granted D.A.’s motion of summary judgment in this case involving a non-FAPE failure-to-accommodate claim. D.A., a minor, is a resident of the Penn Hills School District (Penn Hills) who is enrolled in a private parochial school. D.A. has attended parochial school throughout his entire educational career and has never enrolled in any of the public schools in Penn Hills. Penn Hills provides transportation services for students enrolled in public schools in the district and to students who are enrolled in eligible nonpublic schools within a 10-mile distance of district boundaries, including D.A.’s private parochial school. Before the 2019-20 school year, Penn Hills provided D.A. with door-to-door transportation to his school under a “Section 504 Service Agreement” he had with the district. But in September 2019, Penn Hills informed D.A.’s parents that it would be discontinuing the door-to-door transportation. In January 2020, a settlement was reached after the parents filed a complaint with the U.S. Department of Education Office of Civil Rights. On February 10, 2020, Penn Hills’ superintendent informed D.A.’s parents that the district was “concluding services provided through [D.A.’s] Chapter 15/Section 504 Service Agreement … due to [D.A.’s] enrollment in [the private parochial school].” The subsequent due process complaint that the parents filed was dismissed by the hearing officer and this complaint followed.
This case involved pure issues of law. D.A. argued that the undisputed material facts established the elements of D.A.'s equal access, failure-to-accommodate theory. Penn Hills did not take issue with any of D.A.’s asserted facts but, instead, rejected the suggested legal framework for analyzing their claim. According to Penn Hills, to resolve this case, the court needed to “assess whether [Penn Hills] discriminated against D.A. by offering only the transportation other students have access to, and reserving door-to-door transportation to those students who have enrolled in [Penn Hills] public school program.” Penn Hills asserted that, as a matter of law, it did not have to provide this specialized transportation to “parentally placed 504 students who are not dually enrolled, so long as [Penn Hills] has offered a [Free Appropriate Public Education] to the student within its own district.” In other words, Penn Hills asserted that it does not need to provide “FAPE-related services” to a privately enrolled student. Since Penn Hills offered D.A. a free and appropriate public education (FAPE) and his parents opted out, the district argued that it did not discriminate against D.A. by denying his requested accommodation.
The court started by analyzing what type of claim D.A. was pursuing and determined that D.A.’s claim was whether Penn Hills denied D.A. equal access to its busing services by refusing his requested accommodation of door-to-door transportation. The court analyzed the Americans with Disabilities Act (ADA), the Rehabilitation Act (Section 504) and the Individuals with Disabilities Education Act (IDEA) and found that a student can bring a claim for simple discrimination under the ADA and Section 504, regardless of the school district’s obligation to provide a FAPE. The court established a test to determine whether a complaint against a school concerns the denial of a FAPE or addresses disability-based discrimination. Based on this test, the court concluded that this case was properly analyzed under an equal-access, failure-to-accommodate framework. In analyzing this case under that framework, the court granted D.A.’s motion for summary judgment. The court stated, “Irrespective of Penn Hills’ FAPE-related obligations, under the ADA and Section 504, Penn Hills ‘must afford disabled and nondisabled students an equal opportunity to receive transportation for nonacademic purposes.’ The reason for this rule lies in the interplay between Pennsylvania’s statutory requirements for providing transportation to and from school and federal law. That is, Pennsylvania law states that if a school district provides transportation to its enrolled students, it must also provide that same transportation to eligible private-school students within a ten-mile distance of the district’s boundaries. Once the district offers that service to all those students, federal law states it cannot discriminate against students with disabilities by denying them equal access.”
Click here for the opinion.
|
|
PUBLIC SECTOR ARBITRATION
|
|
|
Thank you to all who plan to or who have contributed recent or older but useful arbitration opinions and awards.
PLEASE KEEP THEM COMING!
|
|
National Defense Authorization Act for Fiscal Year 2021
On January 1, 2021, the National Defense Authorization Act for Fiscal Year 2021 was enacted. As part of this enactment, 10 U.S.C. § 503(c) was amended, mandating that schools provide military recruiters with access to various information related to students. Here is a link to the amendment.
Public Hearing Notice regarding Title IX of the Education Amendments of 1972
On May 19, 2021, the Office of Civil Rights announced that a virtual public hearing will be held from June 7, 2021, to June 11, 2021, to gather information for improving enforcement of Title IX. Here is a link to the public hearing notice.
|
|
MARK YOUR CALENDAR
Register now! Solicitors Symposium: July 8 & 9, 2021
The School Solicitors Symposium is an annual, multiday educational and networking program specially focused on issues and trends having particular impact on legal representation of public school entities. As many aspects of life and law practice begin to return to some semblance of normalcy, we are increasingly eager to resume the informative and collegial gatherings of the PA School Board Solicitors Association. Although the 2021 Symposium will be conducted remotely due to the ongoing pandemic, like the traditional in-person event, it will include networking and brainstorming opportunities in addition to topical presentations, all offered in a relaxed atmosphere. We look forward to “seeing” you there! Attendees can earn seven continuing legal education credits (six substantive, one ethics). Click here to register now! The first 100 registrants will receive a “swag bag” mailed to their home prior to the event.
2021 topics include:
- Title IX Update – a look at the future of the 2020 regulations, protection of LGBTQ students and other emerging issues
- School Law Update – a lively overview of what’s happening in the courts, new statutes and regulations, and other developments directly impacting public school operations and liability exposures
- Achieving a Sane Work-Life Balance (ethics and professionalism)
- Reviewing Board Policies with an Equity Lens – the solicitor’s role in identifying potential equity barriers and shortfalls in the way district policies are worded and implemented
- Economic Furloughs of Professional Employees – legal requirements and practical considerations involved in preparing for and implementing reductions in force for purely economic reasons
- Cybersecurity & Privacy Compliance – what solicitors need to know to help clients ensure that district systems and data are protected from cyber threats and privacy breaches
The program also will include multiple roundtable discussion sessions where attendees can exchange information, ideas and strategies about trends in various focus areas, such as:
- Arbitrators and Arbitrations
- Pandemic Response and Recovery
- Labor Negotiation Trends
- Special Education Hotspots
- Tax Assessment Litigation Developments
- Developing Policies Protecting Transgender Students
Save the Date: School Law Workshop - September 27, 2021
We remain optimistic that the School Law Workshop on Monday, September 27 will be an in-person event, as planned, at Kalahari Resorts & Conventions in the Pocono Mountains. More information to come!
|
|
|
CONTINUING LEGAL EDUCATION WEBINARS
The Continuing Legal Education (CLE) Distance Learning area of the PSBA website and distance learning platform has gone live and is now available here! This spring, PSBA concluded a 12-week series of CLE webinars for attorneys. Recordings of these webinars can be accessed at any time, at the convenience of the participant. Most recorded programs provide one CLE credit hour. A list of currently available programs that can be purchased for viewing and credit can be found here.
Questions? Contact PSBA Legal Services staff at clelegal@psba.org.
|
|
|
INFORMATION FROM PSBSA
For questions about Pennsylvania School Board Solicitors Association (PSBSA) membership status and dues invoices, as well as about the PSBSA officers, board of directors, bylaws and other governance information, please call Stuart Knade at (800) 932-0588, ext. 3377, or email him at Stuart.Knade@psba.org.
The Solicitors Association is looking forward to the upcoming year of programs and dissemination of information regarding legal developments in school law. If you have ideas for legal programs, please send the ideas to your regional director or Stuart Knade or Linda Randby.
Let us Know
Got a tip, a link, a correction, a question, a comment, an observation, a clarification, a wisecrack, an idea you’d like to see addressed? We are always glad to hear from you.
Have you changed your email address, mailing address, or phone number? Please let us know. For questions about this publication, contact Linda Randby (717) 506-2450, ext. 3378. |
|
|
School Board Solicitors Association Officers
John G. Audi, Esq., President
Rachel K. Lozosky, Esq., President-Elect
Benjamin L. Pratt, Esq., Secretary
Vincent L. Champion, Esq., Immediate Past-President
Legal Services Team
Stuart L. Knade, Esq.
Linda J. Randby, Esq.
|
|
Copyright © 2021 Pennsylvania School Boards Association, All rights reserved.
No claim of copyright to information on other websites or to original U.S. Government Works.
The School Law EDition is a biweekly publication of the Pennsylvania School Board Solicitors Association (PSBSA) and the Pennsylvania School Boards Association (PSBA). This publication is distributed to members of the Solicitors Association and administrators who have purchased the comprehensive subscription package. Except for distribution within the school entity or law office, no part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or otherwise, without the prior written permission of PSBA. This material cannot be shared with other school entities or law firms. All inquiries about reprint permission should be sent to Linda Randby, Editor.
You are receiving this email as a member of the Pennsylvania School Boards Association.
Our mailing address is:
Pennsylvania School Boards Association
400 Bent Creek Blvd
Mechanicsburg, PA 17050-1873
Add us to your address book
unsubscribe from this list
update subscription preferences
|
|
|
|
|
|
|
|
|
|
