J.L. v. Lower Merion Sch. Dist.

J.L., et al., Plaintiffs, v. LOWER MERION SCHOOL DISTRICT, Defendant.

CIVIL ACTION NO. 20-1416-KSM

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

March 12, 2021

MEMORANDUM

MARSTON, J.

In this case, Plaintiffs J.L. and F.L., individually and on behalf of their child A.L., and A.L., individually (collectively, "Plaintiffs"), allege that Defendant Lower Merion School District (the "District") failed to provide A.L. with a free appropriate public education ("FAPE") in violation of the Individuals with Disabilities Education Act ("IDEA"), Section 504 of the Rehabilitation Act, and state law. (Doc. No. 1.) Plaintiffs also allege that the District intentionally discriminated against A.L. in violation of Section 504 and the Americans with Disabilities Act ("ADA"). (Id.) The parties dispute whether Plaintiffs' ADA claim is separate from their IDEA and Section 504 claims. This dispute has practical import because it impacts whether Plaintiffs are entitled to a jury trial on their ADA claim.

The Court ordered the parties to brief the issue of whether Plaintiffs' ADA claim is independent of Plaintiffs' IDEA and Section 504 claims, and how that should impact discovery and the Court's scheduling order. (See Doc. No. 20.) The parties filed their briefs on July 24, 2020 (Doc. Nos. 21 & 22) and replied to each other's briefs (Doc. Nos. 23 & 24). The Court held oral argument on February 25, 2021. (Doc. No. 27.) For the reasons that are discussed below, the Court finds that Plaintiffs' ADA claim is not separate from their IDEA and Section 504 claims and was fully exhausted before the hearing officer, and that they therefore are not entitled to a jury trial or full discovery on that claim.

I.

Taking the factual allegations in Plaintiffs' complaint as true, the facts of this case are as follows.

A.L., now nineteen years old, is non-verbal and began communicating using a letterboard¹ and communication support person in the summer of 2017, just before entering eleventh grade. (Doc. No. 1 at ¶¶ 2, 43, 61-66.) Prior to using the letterboard to communicate, A.L. studied in an autistic support classroom with "a life skills curriculum," but after he began using the letterboard, he was placed "in some grade level regular education classes." (Id. at ¶¶ 6-7.) However, despite his desire to use the letterboard "throughout the school day" and his parents' repeated requests throughout mid- to late-2017 that the District incorporate the letterboard into his individualized education program ("IEP") and train district staff on how to use it,² the District did not change A.L.'s IEP, "did not agree to implement [A.L.]'s use of the letterboard to communicate," and did not respond to his parents' request that a neutral third-party psychologist evaluate A.L. using the letterboard. (Id. at ¶¶ 71-79.) During this time, A.L.'s parents also sent District officials videos of A.L. using the letterboard to communicate, includingto complete homework assignments. (Id. at ¶ 84.)

Without having heard back from the District, A.L.'s parents hired Dr. Anne Robbins, a neuropsychologist and Pennsylvania-licensed school psychologist, to evaluate A.L.'s cognitive, speech, and language abilities. (Id. at ¶¶ 12, 81-82.) Those tests showed that A.L. had "average to . . . superior" abilities when using the letterboard, but that he was substantially less able to communicate using speech. (Id. at ¶¶ 82-83.)

In January 2018, the District allowed A.L. to use the letterboard in his reading support class. (Id. at ¶ 85.) However, the District did not train school staff on how to use the letterboard with A.L. (Id.) It was not until April 2018, after allowing A.L. to participate in another regular education class with the letterboard, that the District agreed to train some school personnel. (Id. at ¶¶ 86-88.) However, the District refused to train A.L.'s one-on-one aide on how to use the letterboard, and ultimately cancelled the scheduled training. (Id. at ¶¶ 89-90.) A.L.'s parents requested that one of them be allowed to serve as A.L.'s communication support person until the District had trained school staff. (Id. at ¶ 91.) The District initially agreed to allow one of A.L.'s parents to serve as a communication support person during A.L.'s reading support class (the only time he was allowed to use the letterboard to communicate), but then went back on that agreement. (See id. at ¶¶ 85, 91-92.) On September 12, 2018, the District said that it would neither allow A.L. to use the letterboard nor permit one of A.L.'s parents to serve as his communication support person. (Id. at ¶ 95.)

Subsequently, the District held a three-day preliminary training session with some school personnel (but not A.L.'s one-on-one aide) on how to serve as a communication support person to an individual using a letterboard. (Id. at ¶ 93.) At the end of this training, the District prohibited A.L.'s use of the letterboard to communicate in school, but the District lied about thisdecision to A.L.'s parents, claiming that they were still considering Plaintiffs' request. (See id. at ¶ 94.) The District later issued a revised IEP for A.L., in which they concluded that the training did not support A.L.'s use of the letterboard in school because there was no research demonstrating the effectiveness of this communication technique in a school setting. (Id. at ¶ 95.)

Also in the fall of 2018, the District requested permission for their psychologist to evaluate A.L. (See id. at ¶¶ 96, 99-100.) A.L.'s parents agreed to this request, and asked that the District's psychologist speak with A.L.'s doctors and review the information that they (the parents) had provided to the District about A.L.'s use of the letterboard to communicate. (Id. at ¶ 97.) The District's psychologist did not comply with the parents' "multiple" requests, even after one of A.L.'s parents reported that A.L. was experiencing increased anxiety. (Id. at ¶¶ 99-100.)

Due to his increased anxiety at school, A.L. went to visit his own psychiatrist. (See id. at ¶ 101.) The psychiatrist advised that without using the letterboard, A.L. could not "fully access his school curriculum or . . . make appropriate emotional and academic gains." (Id.) The psychiatrist recommended that A.L.'s parents remove him from school, because, without "an effective way to communicate," A.L.'s mental health would "further deteriorat[e]," potentially leading to "worsening aggression and self-injurious behaviors." (Id.) The next day, November 6, 2018, A.L.'s parents withdrew A.L. from school and informed the District that "they would seek reimbursement from the District for the cost of appropriate educational programming for" A.L. (See id. at ¶¶ 101-02.)

On November 28, 2018, the District held an IEP meeting for A.L., but failed to address Plaintiffs' concerns. (Id. at ¶¶ 103-04.) On December 20, 2018, however, the District issued a revised IEP for A.L. and agreed to allow A.L. to use a letterboard and a communication supportperson at school "as a reasonable accommodation under [the] ADA," but refused to fund a communication support person. (Id. at ¶¶ 105, 107.) Moreover, the revised IEP did not include a transition plan for A.L. to return to school despite his more than six-week absence, did not include any educational program to address his "extreme stress and anxiety," and did not include academic and behavior goals related to A.L.'s regular education classes. (Id. at ¶ 106.)

A.L.'s parents, concerned about A.L.'s mental health, did not to send him back to the District's school. (See id. at ¶ 108.) Instead, they elected to homeschool him, providing him with "15-20 hours per week of academic lessons in English/Language Arts, math, science[,] and social studies with highly qualified tutors." (Id. at ¶ 109.)

On February 27, 2019, Plaintiffs filed a due process complaint³ with the Pennsylvania Department of Education. (Id. at ¶ 29; see also Doc. No. 21-1 at p. 3.)⁴ In that proceeding, Plaintiffs sought compensatory education, reimbursement for their expenses in privately educating A.L., and reimbursement for Dr. Robbins's evaluation. (Doc. No. 21-1 at p. 3.) Additionally, Plaintiffs alleged that the District discriminated against A.L. in violation of Section 504 and the ADA. (Id.) However, Plaintiffs argued that the hearing officer did not have jurisdiction over their ADA claim. The hearing officer issued his decision on December 15, 2019. (Id. at p. 34.)

After reviewing the "extremely voluminous record," including tens of thousands of pages of documents and the testimony of sixteen witnesses, the hearing officer concluded that the District had provided A.L. with a FAPE. (Id. at pp. 4, 25.) Specifically, he found that the District "made a reasonable and thoughtful decision" to deny A.L. the use of his letterboard given their "concerns regarding the lack of research and training issues involving the Spelling to Communicate methodology, as well as the ethical issues involving the significant doubt that the results are the authentic voice of [A.L.]." (Id. at p. 25.) The hearing officer also found that Plaintiffs were not entitled to reimbursement for their expenses in privately educating A.L., or for Dr. Robbins's evaluation. (Id. at pp. 28-29, 30-31.) Finally, the hearing officer concluded that Plaintiffs had failed to demonstrate that A.L. was discriminated against in violation of Section 504 or the ADA. (Id. at pp. 32-33.) In reaching that decision, the hearing officer assumed, but did not decide, that he did not have jurisdiction over Plaintiff's ADA claim. (Id. at p. 32.) However, the hearing officer alternatively ruled that if he did have jurisdiction over Plaintiffs' ADA claim, the District did not violate the ADA. (Id. at p. 33.)

Unsatisfied with the hearing officer's decision, Plaintiffs filed their complaint in this Court on March 12, 2020. (Doc. No. 1.) In their complaint, Plaintiffs advance three claims. First, they argue that the hearing officer...