Philly School District faces federal civil rights lawsuit over controversial transfer policy

By Jon Campisi | Jun 23, 2011

The parents of four elementary-age students with autism have filed a federal civil rights lawsuit against the School District of Philadelphia, alleging the process of transferring students with special needs to another school after three-grade intervals is illegal.

The parents of four elementary-age students with autism have filed a federal civil rights lawsuit against the School District of Philadelphia, alleging the process of transferring students with special needs to another school after three-grade intervals is illegal.

Sonja Kerr, an attorney with the Public Interest Law Center of Philadelphia, filed the class action claim June 20 in the U.S. District Court for the Eastern District of Pennsylvania.

In the lawsuit, the parents, whose children are only identified in the suit by initials, question the legality of the district’s supposed “Automatic Autism Transfer Policy,” by which children with autism are routinely reassigned to other schools at the end of grades two and five.

The policy, the lawsuit states, violates both the federal Individuals with Disabilities Education Act and Chapter 14 of the Pennsylvania Code, the state equivalent of the federal statute.

In the lawsuit, Kerr wrote that children with autism typically have difficulty with transitioning from one environment to another because of impairments in communication and social interaction skills, and the school district’s transfer policy puts that much more of a burden on special needs students already dealing with change issues.

The lawsuit takes issue with the district’s policy of transferring students with autism to different schools for grades three through five and six through eight.

The move is strictly based “on their status as children with autism,” the lawsuit states. “Non-disabled children enjoy continued and uninterrupted attendance in K-5 schools or K-8 schools.”

The parents who are party to the class action suit are Pedro Valentin and Yolanda Cruz, whose child, “P.V.,” is in third grade; Carla Murphy, whose child, “M.M.,” is also a third-grader; Sharon and Ismael Vargas, whose son, 8-year-old “J.V.,” is a second-grader; and Heather and Matthew Sanasac, whose child, 8-year-old “R.S.,” is also a second grader.

All four students attend Richmond Elementary School in the city’s Port Richmond section.

Each of the four sets of parents involved filed individual administrative claims with the school district in the months leading up to the lawsuit, and on April 15 of this year, the district was warned by an IDEA hearing officer that it should “alter its procedures [regarding transfers of children with autism] on a broader scope if only to avoid a plethora of identical claims from similarly situated students,” the lawsuit states.

In May of this year, the suit states, the district received “J.V.’s” hearing request, and admitted that it still had no grade three to five autism support classroom at Richmond Elementary.

As of June, despite the hearing officers’ pronouncements, the district would not confirm “abandonment of the faulty Automatic Autism Transfer Policy,” the lawsuit states.

“The District appears committed to the Policy as a matter of administrative convenience,” the lawsuit states, referencing words by the state hearing officer.

Kerr, the lawyer who filed the lawsuit, said in a phone interview with the Pennsylvania Record that because of special education laws, a hearing with district officials and a state hearing officer must commence before other avenues are explored.

She decided to file suit, she said, only after no action was taken on the part of the district to correct the problem.

“This hearing officer … made very clear findings that this policy exists,” Kerr said of the student transfer policy.

While the district would not comment specifically on the lawsuit, Deputy Media Relations Chief Shana Kemp released a statement saying the district plans to “vigorously defend” itself against the litigation.

“The School District can state with certainty that, contrary to what is stated in the complaint, there is no ‘Automatic Autism Transfer Policy,’” the statement read. “To the extent possible, children with disabilities remain in their assigned school until they transition, with their non-disabled peers, to middle or high school.”

The lawsuit, however, paints a different picture.

Plaintiff Murphy, for example, said that in late spring 2010, the school district advised her via her son’s home-school notebook that he would not be allowed to remain at Richmond Elementary past grade three because of the district’s Automatic Autism Transfer Policy, according to the lawsuit.

By the fall of 2010, it was not clear where the child would attend school that year so he returned to Richmond. Murphy requested “stay put” protection from the school, which eventually resulted in her son being allowed to complete one more year at Richmond, the suit states.

“As of the filing of this complaint, Ms. Murphy presently does not know if M.M. will be allowed to return to Richmond for his fourth grade year,” according to the complaint.

Similar incidences occurred with the other plaintiffs, the lawsuit contends.

Kerr, in her phone interview, said she is surprised the district officially denies such a transfer policy exists since the hearing officer found the exact opposite to be true.

“It’s clear they have this type of policy,” she said.

Perhaps the most telling part of the situation, at least in Kerr’s mind, is that the district was apparently aware of these parental complaints as far back as 2004.

“It’s not like, ‘oh we just heard about this problem,’” Kerr said. “That’s kind of disingenuous of the district to say this problem doesn’t exist.”

Kerr said the courts should soon grant a motion for class action certification, after which additional plaintiffs would be able to sign on as parties to the lawsuit.

Kerr said she’s already spoken with other parents who have expressed interest in the case.

One parent, she said, claims that her 13-year-old son has been transferred to different schools eight times.

One parent who spoke with the Pennsylvania Record who is not directly involved with the lawsuit, but is familiar with the alleged transfer policy, said her 8-year-old son had trouble after transitioning out of his previous school last year at the end of grade three.

Aimee Boothman, of Northeast Philadelphia, said she believes the lawsuit has merit.

“They are brilliant for doing this [litigation] because it’s right,” she said by phone. “The kids go through three years of school … and then all of a sudden they’re uprooted, they go to different schools, and they have to start over again.”

Boothman said “autistic kids have trouble with routine,” and a policy like this makes things even worse for them.

Kerr said parents like Boothman and the plaintiffs are the reason she took on the case.

“We’re not trying to suggest that the district has to place autism classrooms in every school,” Kerr clarified.

What parents would like to see, she said, are autism support classrooms in schools that are “equivalent to the age range of the school.”

“We’re asking them to be thoughtful about where they’re putting the classrooms,” she added.

The plaintiffs in the lawsuit aren’t seeking monetary damages. They’re only aim is injunctive relief to get the district to revise its transfer policy.

Kerr said her goal is to make parents aware that they can have an effect on the education of their children.

“I think there’s a lot of parents out there who don’t even know that they have any rights,” she said.

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