Jon Campisi Feb. 25, 2013, 10:00am

A federal judge has ruled that the Philadelphia School District’s process of “upper leveling,” or transferring students with autism from school to school without adequate parental input, violates the Individuals with Disabilities Education Act.

In an accompanying but separate opinion, U.S. District Judge Legrome Davis, who sits in the Eastern District of Pennsylvania, simultaneously granted class certification to the plaintiffs in the litigation, who are parents of children with autism who allege they were not afforded the opportunity to weigh in on the district’s decision to transfer the special needs students to different schools.

The plaintiffs, who are being represented by attorneys with the Public Interest Law Center of Philadelphia and the firm Dechert LLP, contended they were not invited to participate in meaningful discussions with regard to what schools their respective children would be sent to after aging out of a particular school’s autism support program.

The district has what it calls blocked grade levels for kindergarten through second, third through fifth, and sixth through eighth grades, although some schools in the district only offer one block, meaning those students would have to be moved to a school that offers the other blocked levels as the children get older.

In his decision, Davis noted that an unplanned transition for students with autism is very likely to affect their learning because difficulty with transition is itself one of the leading characteristics of children with autism.

The lead plaintiffs, Pedro Valentin and Yolanda Cruz, who were suing on behalf of their son, identified in the suit only as “P.V.,” and others similarly situated, maintained that the district’s “upper leveling” policy violates the Individuals with Disabilities Education Act, or IDEA, which is designed to provide students with disabilities with a “free and appropriate public education,” or FAPE.

To ensure that a special needs child receives an educational program tailored to his or her specific needs, the child’s parent, teacher and a school district representative collaborate to design an “individualized education program,” or IEP.

After the IEP’s drafting, the district issues a Notice of Recommended Educational Placement, or NOREP, which contains a form to either approve or disapprove the IEP.

Parents must receive a NOREP whenever a district proposes to “initiate or change” the child’s educational placement, background information on the case shows.

In this case, the plaintiffs alleged that the Philadelphia School District transfers students with autism in kindergarten through eighth grade without providing the level of parental notice and involvement required under both state and federal law.

The plaintiffs sought class certification because they maintained many other parents were being affected in the same way.

In his memorandum opinion, Judge Davis wrote that the school district concedes that it provides parents with no written notice prior to the decision to reassign special needs students to other buildings within the school system.

“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,” Davis wrote.

Furthermore, the judge noted that the district has no formal procedure in place for the initial notification, with officials notifying parents of the transfer through a meeting, phone call or email.

“Although the School District eventually notifies parents that their child will be transferred, it admits that [it] has no formal policy governing the adequateness of that notification,” Davis wrote. “The discovery materials provided by Plaintiffs reflect that the notification given to parents about the transfer of their autistic child is often terse, at best.”

One example of a notification was the “strip of paper” given to one set of parents that didn’t include the new school’s location, the judge noted.

In that case, the parents were notified of the transfer only a few weeks before the new school year.

The plaintiffs in the case sought to have the court order the school district to completely discontinue its “upper leveling” transfer process, and require that schools containing autism support classrooms offer the same programming for the same year years that the school provides programming for children who don’t have special needs.

Short of that, the parents sought to have the court order the district to provide for a level of parental notice and involvement prior to the transfer decision that is consistent with the requirements set forth by state and federal law.

Davis issued his ruling after both parties in the litigation had filed for summary judgment.

The judge ended up determining that the plaintiffs, who he ruled have legal standing to pursue their claims – the district had contested this point – were correct in their allegation that the school district’s process of upper-leveling children with autism violates the procedural safeguards under the IDEA, and “seriously deprives parents the opportunity to participate in the decision-making process regarding the educational placement of their autistic child.”

However, Davis partially sided with the district, ruling that the transfer process doesn’t violate the Americans with Disabilities Act or the Rehabilitation Act.

The judge wrote that the transfer process is presumably due to financial and administrative concerns, and that the students are transferred to ensure they continue to receive adequate services pursuant to their IEP’s.

Davis wrote that while such a transition is “likely to affect the educational experience of a child with autism,” the plaintiffs have provided no proof that the services received by a transferred student with autism are deficient, “so as to prevent that student from gaining a meaningful access to educational benefits.

“For that reason,” Davis continued, “we cannot find that transferring students with autism to ensure they receive their IEP in an age-appropriate setting is an unreasonable accommodation under the ADA or,” the Rehabilitation Act.

The ruling was viewed as a positive development by the attorneys representing the class of parents.

“This is a significant victory for the families of children with autism in Philadelphia who have, for too long, been subjected to the autism shuffle,” Sonja Kerr, the director of disability rights for the Public Interest Law Center of Philadelphia, said in a statement. “Now, the District will have to plan so that parents of these children are equal participants at the table in planning for their children’s education. As the District is planning massive school closures, the decision is welcomed because it will help families in this transition.”

Attorney Cheryl Krause, who was part of the team from Dechert that represented the parents, said in her own statement that the court’s decision “highlights the importance of parents’ input into the fundamental decision about what school can best serve the needs of their child with autism.

“We are gratified that the rights of these children have been protected in this way,” Krause stated.

In the end, Davis partially granted the plaintiffs’ motion for summary judgment and ordered the school district to “alter its upper-leveling process for children with autism to provide prior written notice and a level of parental participation that complies with the procedural requirements under the IDEA.”

The Public Interest Law Center of Philadelphia noted that this class action lawsuit was the first case to come out of the center’s Philadelphia Project, which is a program aimed at securing systemic improvements to special education in Philadelphia by educating parents about their rights, representing families in administrative hearings, filing class action suits to address the systemic issues and coordinating efforts among a coalition of special education advocates.

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