J.D. v. Pa. Virtual Charter Sch.

J.D., a student with a disability, and D.D., his parent, on her own behalf and on behalf of J.D., Plaintiffs v. THE PENNSYLVANIA VIRTUAL CHARTER SCHOOL, Defendant

Case No. 19-cv-0129-JMY

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

November 30, 2020

MEMORANDUM

YOUNGE, J.

This is an appeal from the due process decision of a Hearing Officer under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400, et seq. ("IDEA") and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"). The issue that was before the Hearing Officer, and is now before this Court, is whether the school district (hereinafter "PA Virtual" or "Defendant") met its obligations to the student, J.D., under the IDEA and Section 504. Specifically, J.D.'s mother, D.D., contends that J.D. was denied a free appropriate public education for the summer 2018 extended school year, and further alleges that PA Virtual's proposed programming for the 2018-2019 school year was inappropriate pursuant to the IDEA and Section 504.

Pending before this Court are two cross-motions: (1) Defendant's Motion for Judgment on the Administrative Record ("Def. Mot.," ECF No. 13), and (2) Plaintiffs' Motion for Judgment on the Administrative Record ("Plfs.' Mot.," ECF No. 14). The Court will first provide an overview of the IDEA and Section 504, the applicable standard of review in administrative proceedings, and the procedural history of this case. The Court will then summarize the Hearing Officer's findings of fact and conclusions of law. Finally, the Court will analyze the merits of the parties' arguments raised in their respective motions for judgment on the administrative record.

For the reasons set forth below, the Court will grant Defendant's motion and deny Plaintiffs' cross-motion; thereby affirming the Hearing Officer's decision.¹

I. IDEA AND SECTION 504 OVERVIEW

A. IDEA

In 1975, Congress provided that it would make funds available for state special education programs on the condition that states implement policies assuring a "free appropriate public education" (commonly known as a "FAPE") for all their disabled children. 20 U.S.C. § 1412(a)(1)(A); see also C.H. v. Cape Henlopen Sch. Dist., 606 F.3d 59, 65 (3d Cir. 2010) ("Under the IDEA, a state receiving federal educational funding must provide children within that state a FAPE."). "Congress passed the law known today as the [IDEA] 'to assure that all children with disabilities have available to them . . . a [FAPE] which emphasizes special education and related services designed to meet their unique needs[.]'" Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 756 (3d Cir. 1995) (quoting 20 U.S.C. § 1400(c)).

"A school district provides a FAPE by designing and implementing an individualized instructional program set forth in an Individualized Education Plan ('IEP'), which must be reasonably calculated to enable the child to receive meaningful educational benefits in light ofthe student's intellectual potential." P.P. v. W. Chester Area Sch. Dist., 585 F.3d 727, 729-30 (3d Cir. 2009) (internal quotations omitted); see also Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 187-204 (1982). "Meaningful benefit" means that a student's program affords the student the opportunity for significant learning in light of his or her individual needs, not simply de minimis or minimal education progress. Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist., 137 S. Ct. 988, 1000 (2017); see also K.D. by & through Dunn v. Downingtown Area Sch. Dist., 904 F.3d 248, 254 (3d Cir. 2018).

"An IEP is developed through collaboration between parents and school districts, and must include an assessment of the child's current education performance, must articulate measurable educational goals, and must specify the nature of the special services that the school will provide." Perkiomen Valley Sch. Dist. v. S.D. by & through J.D., 405 F. Supp. 3d 620, 624-25 (E.D. Pa. 2019) (internal quotation marks and citation omitted). If "parents believe that the school district is not providing a FAPE for their child, they may unilaterally remove him [or her] from the school, enroll him [or her] in a different school, and seek tuition reimbursement for the cost of the alternative placement." Munir v. Pottsville Area Sch. Dist., 723 F.3d 423, 426 (3d Cir. 2013).

The IDEA provides recourse in the form of an impartial administrative due process hearing. See 20 U.S.C. § 1415(f). "If either party is aggrieved by the findings and decision reached after such a hearing, the IDEA further allows that party to file a civil suit in state or federal court." S.D., 405 F. Supp. 3d at 625. "When parents challenge a school's provision of a FAPE to a child, a reviewing court must (1) consider whether the school district complied with the IDEA's procedural requirements, and (2) determine whether the educational program wasreasonably calculated to enable the child to receive educational benefits." Mary T. v. Sch. Dist. of Phila., 575 F.3d 235, 249 (3d Cir. 2009).²

B. Section 504

Section 504 also requires that Pennsylvania schools provide a FAPE to children with disabilities. See 34 C.F.R. § 104.33(a). Specifically, under Section 504 recipients of federal funds must "provide a [FAPE] to each qualified handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's handicap." Id.; see also A.B. v. Abington Sch. Dist., 440 F. Supp. 3d 428, 434 (E.D. Pa. 2020) ("As for Section 504, it and the IDEA do 'similar statutory work.'") (citing P.P., 585 F.3d at 735). In other words, Section 504 "is parallel to the IDEA in its protection of disabled students: it protects the rights of disabled children by prohibiting discrimination against students on the basis of disability[.]" P.P., 585 F.3d at 735; see also 34 C.F.R. § 104.4. A student with a disability who is otherwise qualified to participate in a school program, and was denied the benefits of the program or otherwise discriminated against, has been discriminated against in violation of Section 504. See S.H. v. Lower Merion Sch. Dist., 729 F. 3d 248, 260 (3d Cir. 2013). A student who claims discrimination in violation of the obligations of Section 504 must show deliberate indifference on the part of the school district. Id. at 263-64.³

II. STANDARD OF REVIEW FOR ADMINISTRATIVE PROCEEDINGS

In considering a challenge to an administrative decision on an IDEA claim, district courts employ a "modified de novo" standard of review. S.H. v. State-Operated Sch. Dist. of City of Newark, 336 F.3d 260, 270 (3d Cir. 2003). Under this standard, "although the [d]istrict [c]ourt must make its own findings by a preponderance of the evidence," it "must also afford due weight to the [Hearing Officer's] determination." Shore Reg'l High Sch. Bd. of Educ. v. P.S. ex rel. P.S., 381 F.3d 194, 199 (3d Cir. 2004). Specifically,

factual findings from the administrative proceedings are to be considered prima facie correct, and if a reviewing court fails to adhere to them, it is obliged to explain why. In addition, if a state administrative agency has heard live testimony and has found the testimony of one witness to be more worthy of belief than the contradictory testimony of another witness, that determination is due special weight. [T]his means that a [d]istrict [c]ourt must accept the state agency's credibility determinations unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion.

Id. (internal quotation marks and citations omitted).

Further, "claims for compensatory education and tuition reimbursement are subject to plenary review as conclusions of law . . . [W]hether the District fulfilled its FAPE obligations—[is] subject to clear error review as [a] question of fact." P.P., 585 F.3d at 735. Lastly, the burden of proof is on the party bringing the administrative complaint, a burden that continues on appeal. See L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 391-92 (3d Cir. 2006) (citing Schaffer v. Weast, 546 U.S. 49, 62 (2005)).

III. PROCEDURAL BACKGROUND⁴

On May 9, 2018, PA Virtual offered notice of a proposed change in placement to an approved private school for J.D.; D.D. disagreed with it and timely filed for a due process hearing. ("Compl.," ECF No. 2 ¶¶ 20-24.) On October 11, 2018, after a two-day hearing, Pennsylvania Special Education Hearing Officer Michael J. McElligott, Esq. resolved the dispute in favor of PA Virtual. (See Hearing Officer's Final Decision and Order, ODR No. 20703-17-18 ("Admin. Dec.").) The Hearing Officer found that PA Virtual "met its obligations to [J.D.] under the terms of the IDEA [and Section 504] in its last-proposed March/April 2018 IEP and placement at a specialized school [(i.e., the Elwyn-Davidson School)] for summer 2018 extended school year [('ESY')] programming and for 2018-2019 programming." (Admin. Dec. at 19.)

On January 9, 2019, Plaintiffs initiated this action against PA Virtual seeking reversal of the Hearing Officer's decision. (See ECF No. 1.) In their Complaint, Plaintiffs attack the Hearing Officer's decision on several grounds: (1) "[t]he decision of the Hearing Officer is erroneous in that critical findings of fact are not supported by and/or are in direct contradiction of established facts" (Compl. ¶ 29); (2) "[t]he Hearing Officer committed errors of law by concluding that [D.D.] was provided with adequate notice of the proposed placement" (id. ¶¶ 30, 34); (3) the proposed placement was not the least restrictive environment such that PA Virtual failed to provide J.D. with a FAPE for the 2018 ESY programming and for the 2018-2019 school year (id. ¶¶ 30, 35); (4) the Hearing Officer violated the IDEA by refusing D.D.'s counsel the opportunity to cross-examine J.D.'s father, by denying D.D. the opportunity to call critical witnesses, and by directing the order of witnesses without adequate advance notice (id. ¶¶ 29, 31,37); and (5) the...