Blunt v. Lower Merion School Dist.

559 F.Supp.2d 548

Amber BLUNT, et al. v. LOWER MERION SCHOOL DISTRICT, et al.

Civil Action No. 07-3100.

United States District Court, E.D. Pennsylvania.

February 15, 2008.

Opinion Denying Reconsideration June 6, 2008.

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Barbara E. Ransom, Judith A. Gran, Philadelphia, PA, for Amber Blunt, et al.

Megan A. Guernsey, Wisler Pearlstine LLP, Blue Bell, PA, Michael D. Kristofco, Wisler Pearlstine Talone Craig, et al Office Court at Walton Point, Blue Bell, PA, Amy C. Foerster, Com of PA, Harrisburg, PA, for Lower Merion School District, et al.

MEMORANDUM

BARTLE, Chief Judge.

Plaintiffs are seven students or former students of the Lower Merion School District, the parents of six of these students, and two advocacy organizations, Concerned Black Parents and the Mainline Branch of the NAACP. Each of the individually named plaintiffs is African American. Plaintiffs filed this putative class action on July 30, 2007 seeking injunctive and monetary relief against defendants for disability and race discrimination.

The defendants, as set forth in the Amended Complaint, can be divided into two groups. First are the School District defendants: (1) the Lower Merion School District ("School District"); (2) School District Superintendent, Jamie Savedoff; (3) School District Director of Pupil Services, Michael Kelly; Lower Merion School Board ("School Board"); (5) School Board President, Susan Guthrie; (6) School Board Vice President, Linda Doucette-Ashman; and (7) School Board Members, Gary Friedlander, Lyn Kugel, Diane Dibonaventuro, Theodore Lorenz, Jerold Novick, Lisa Pliskin and David Ebby.¹ There are also the Commonwealth defendants, which were added when the Amended Complaint was filed on September 26, 2007:(1) the Pennsylvania Department of Education ("Department of Education"); (2) the Secretary of the Department of Education, Gerald Zahorchak; and (3) the Director of the Department of Education's Bureau of Special Education, John Tommasini. All of the individually named defendants were sued in their official capacities only.

Plaintiffs' Amended Complaint contains six counts alleging violations of: (1) Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. in Count I; (2) Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. in Count II; (3) Section 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 794 in Count III; (4) Title VI of the Civil Rights Act ("Title VI"), 42 U.S.C. § 2000d in Count IV; (5) the Civil Rights Act of 1964 (" § 1983"), 42 U.S.C. § 1983 in Count V; and (6) the Pennsylvania Public School Code of 1949 ("Public School Code"), 24 Pa. Stat. Ann. § 1371, et seq. and the State Board of Education Regulations promulgated thereunder, specifically 22 Pa.Code §§ 14.121(b) and (c) and 14.122 in Count VI.

Now pending before the court are the motions of the School District defendants and Commonwealth defendants to dismiss the Amended Complaint under Rule 12(b)(1) for lack of subject matter jurisdiction and under 12(b)(6) for failure to state a claim for which relief can be granted. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.1991); Gould Elecs. Inc. v. U.S., 220 F.3d 169, 178 (3d Cir.2000).

I.

For present purposes, we will accept as true the following facts set forth in the Amended Complaint. Cat. Pub. Employees' Ret. Sys. v. Chubb Corp., 394 F.3d 126, 143 (3d Cir.2004).

Plaintiff Amber Blunt is a former student of the School District who was graduated from Lower Merion High School on June 9, 2005. Despite the fact that Amber had consistently struggled in school, the School District did not identify her as a student with a specific learning disability or provide her with an individualized education program until she was in the tenth grade. Even then, the support with which Amber was furnished did not take into account Amber's intention of pursuing post-secondary education. In particular, the School District failed to develop and implement a proper post-graduation transition plan. Amber's parents, plaintiffs Crystal and Michael Blunt, requested transitional services in the form of a six-week remedial program required by West Chester University as a condition of Amber's admission to that institution. The School District rejected the Blunts' request on April 8, 2005.

On April 11, 2005, the Blunts requested a due process hearing under the IDEA. They contended that in violation of the IDEA the School District had failed to provide Amber with a free appropriate public education. The due process hearing was held over the course of two sessions — the first on May 19, 2005, and the second on June 20, 2005. According to the Blunts, the hearing officer did not permit them sufficient time to put on their case while the School District was afforded ample opportunity to do so. They maintain that, as a result of their truncated presentation, much of the information pertinent to Amber's case was omitted from the record and they were thus denied a full and fair opportunity to address the appropriateness of the transitional services provided to her. On July 25, 2005, the Hearing Officer issued his decision. He determined among other things that the School District failed to design an appropriate transition plan for Amber and denied her any relief for this failure. Both the Blunts and the School District filed exceptions to the Hearing Officer's decision. After considering the matter, the Appeals Panel ruled on August 31, 2005 that Amber should receive "30 hours of compensatory education for remedial transition services." It limited Amber's entitlement to compensatory education to one year before the request for a due process hearing was filed. Amber, Crystal and Michael Blunt ("Blunt plaintiffs") thereafter filed this action challenging the Appeals Panel's decision.

The Blunt plaintiffs also allege that Amber was discriminated against on the basis of race when she was placed into a kindergarten summer reading program attended primarily by African-American students and placed into a high school summer mathematics course attended by a disproportionately high percentage of African-American students.

Plaintiff Lydia Johnson is a former student of the School District. In 1995, when she was in first grade, the School District identified her as a student with a learning disability and began giving her support services. Although those services were discontinued, Lydia received an evaluation and an individualized education program in 2000, which was reviewed and reevaluated in 2004 and again in 2006. Though Lydia was eligible to be graduated in 2006, she declined her diploma because her mother did not consider her sufficiently prepared to do so. During the 2006-2007 school year, Lydia returned to Lower Merion High School two mornings a week for additional instruction. Neither she nor her mother, plaintiff Linda Johnson, has requested a due process hearing challenging the development or implementation of her individual education plan.

Plaintiff Saleema Hall is a seventh grade school student in the School District. She was evaluated by the School District in 2004, was classified as a student with a specific learning disability and has been provided with a regular education program with pull-out participation in a below-grade-level class comprised of approximately 90% African-American students. Her sister, plaintiff Chantae Hall is a tenth grade student in the School District. She was evaluated in 2000 and provided with an individualized education program. Chantae was reevaluated in 2003 and 2007 and has received continuous support services during this period. When Chantae was placed in two learning support classes with students who had disabilities, the students were predominately African American. Plaintiff Carol Durrell, the mother of Saleema and Chantae, has expressed concerns to the School District about her daughters' education but has not sought a due process hearing.

Plaintiff Walter (Jonathan) Whiteman is a ninth grade Lower Merion student. He was identified as a student in need of special education services when he was in first grade. He was pulled from the general education curriculum to participate in classes with a below-grade-level curriculum and therefore was denied access to the general education classes provided to his Caucasian peers. His mother, plaintiff Christine Dudley, has requested additional assistance from the School District for her son but has not pursued a due process hearing.

Plaintiff Eric Allston is a former student of the School District who was graduated from Lincoln Academy in May, 2005. He was evaluated by the School District multiple times, beginning in 1998. Each evaluation reflected that Eric needed learning support and emotional support services. Eric was transferred to a variety of different schools and was consistently placed in programs and classes outside of the general education curriculum. All of these programs and classes have been predominantly and disproportionately African American. Although his guardian has complained about Eric's educational services to the School District in the past, no due process hearing has been pursued.

Plaintiff Richard Coleman is a third grade student in the School District who was evaluated and classified in 2005 as a student with a specific learning disability and with a secondary exceptionality of speech or language impairment in need of specially designed instruction. Richard has attended both a part-time learning support class and general education classes. According to the Amended Complaint, he received racially discriminatory treatment as a result of the composition of the learning support class and was also discriminated against in the general education class by his teacher. He asserts that he suffered the racially discriminatory treatment in violation of...