T.R. v. Sch. Dist. of Phila.

458 F.Supp.3d 274

T.R., et al., Plaintiffs,

v.SCHOOL DISTRICT OF PHILADELPHIA, Defendant.

CIVIL ACTION No. 15-4782

United States District Court, E.D. Pennsylvania.

Filed April 30, 2020

Maura I. McInerney, Margaret M. Wakelin, Education Law Center, Daniel Urevick-Ackelsberg, Michael Churchill, Public Interest Law Center of Philadelphia, Paul H. Saint-Antoine, Carol Frances Trevey, Chanda A. Miller, Lucas B. Michelen, Victoria Leigh Andrews, Faegre Drinker Biddle & Reath LLP, Philadelphia, PA, for Plaintiff A Minor.

Maura I. McInerney, Education Law Center, Paul H. Saint-Antoine, Carol Frances Trevey, Chanda A. Miller, Lucas B. Michelen, Victoria Leigh Andrews, Faegre Drinker Biddle & Reath LLP, Michael Churchill, Daniel Urevick-Ackelsberg, Public Interest Law Center of Philadelphia, Philadelphia, PA, for Plaintiff Margarita Peralta.

Margaret M. Wakelin, Education Law Center, Victoria Leigh Andrews, Paul H. Saint-Antoine, Faegre Drinker Biddle & Reath LLP, Philadelphia, PA, for Plaintiffs Madeline Perez, Manqing Lin.

Danielle Goebel, Marjorie M. Obod, Katharine Virginia Hartman, Dilworth Paxson LLP, Philadelphia, PA, for Defendant.

MEMORANDUM OPINION

Goldberg, J.

Plaintiffs, who are students in the School District of Philadelphia ("School District") and their parents, have filed this putative class action lawsuit under the Individuals with Disabilities Education Act ("IDEA"), Section 504 of the Rehabilitation Act, the Americans with Disabilities Act ("ADA"), 22 Pa. Code §§ 14–15, the Equal Education Opportunities Act ("EEOA"), and Title VI of the Civil Rights Act of 1964. Plaintiffs allege that the School District's provision of translation and interpretation services to limited English proficient parents is deficient such that it deprives those parents of the ability to meaningfully participate in the special education process and the development of individualized education programs ("IEP's").

On April 18, 2020, I denied class Plaintiffs’ Motion for Class Certification, leaving as plaintiffs: L.R. and D.R. (minors), their mother Madeline Perez, R.H. (a minor), and his mother Manqing Lin (collectively, "Plaintiffs").¹ The School District has moved for summary judgment on all of Plaintiffs’ claims. For the following reasons, I will grant the Motion and enter judgment in favor of Defendant due to Plaintiffs’ failure to exhaust administrative remedies.

I. FACTUAL AND PROCEDURAL HISTORY

The following facts are undisputed unless otherwise noted.²

A. School District Practices

The IDEA, 20 U.S.C. § 1400, et seq., requires that, in order to accommodate the educational needs of children with disabilities, there must be a process of written notice, parent consent, evaluation, creation and review of documents, and development of an IEP in conjunction with school staff and parents, all of which is known as the "IEP process." The central question in here turns on the implementation of this IEP process for children with disabilities from homes with where the parents are not fluent in the English language, or limited English proficient ("LEP").

1. General School District Translation/Interpretation Services

The School District's Office of Family and Community Engagement ("FACE") provides translation and interpretation services, as well as professional development for District staff and administrators on how to best support parents who are LEP. The School District maintains a document management system where some documents, such as the School District's attendance and transportation policies, are translated into the eight most common languages and remain publicly available on the School District's website. (DSUF ¶¶ 8–9; PC ¶¶ 8–9.) Deputy Chief of FACE, Jenna Monley, testified that the School District also translates into the eight languages other documents that are sent home to parents, such as report cards and teacher letters to the class. (Def.’s Mot. Summ. J., Ex. A, Dep. of Jenna Monley ("Monley Dep."), 78:5–81:20.) Plaintiffs have pointed to evidence that many general school documents are not regularly translated. (Pls.’ Resp., Ex. 3, Decl. of Anna Perng ("Perng Decl."), ¶ 26; Pls.’ Resp., Ex. 5, Decl. of Manqing Lin ("Lin Decl."), ¶ 8; Pls.’ Resp., Ex. 6, Decl. of Madeline Perez, ¶ 7.)

At the school-level, School District employees can make requests to FACE to have documents translated and may also directly use the School District's Bilingual Counseling Assistants ("BCAs"). (Monley Dep. 77:4–80:24.) The School District's translation and interpretation services are available throughout the school year and are utilized both at key meetings (e.g. , IEP meetings, report card conferences) and for day-to-day communications (e.g. attendance issues, permission slips). (Def.’s Mot. Summ. J., Ex. B, Special Education Parent/Guardian Rights; Def.’s Mot. Summ. J. Ex. C, Dep. of Ludy Soderman ("Soderman Dep."), 51:9–23, 97:17–23.) For example, if a teacher needs to send a letter home to parents about a particular student, and if the school's BCA knows the target language, then the BCA will translate that letter for the teacher without involving the FACE office. (Monley Dep. 79:21–80:23.)

Nonetheless, the School District's translation and interpretation services are not always available because the demand for interpreters often exceeds the number of staff available. (Pls.’ Resp., Ex. 12.) And BCAs are not available in every school building every day. (Soderman Dep. 173:24–174:19.) Rather, BCAs are provided to school buildings by request and generally reserve their time for shorter, one-page documents. (Soderman Dep. 124:12–20, 152:4–9.) In turn, not all employee requests for translation are fulfilled. (Pls.’ Resp., Ex. 9, Dep. of Marie Capitolo ("Capitolo Dep."), 146:7–7.)

In addition to the BCAs, the School District uses the Language Line—a telephonic interpretation service—as a backup option when the parent's language is not spoken by a BCA. (Soderman Dep. 39:4–40:17.) With telephonic interpretation, anyone in the school can call and request services.

2. Translation/Interpretation Services for Special Education

In the special education realm, the School District offers various services to LEP parents. Parents receive a copy of the Procedural Safeguards in their native language at various times throughout the special education process. In addition, parents are given a Special Education Parental/Guardian Rights Notice, which inform them that they can request interpretation and translation services during the special education process. This document is translated into the eight most common languages in the District and is also read aloud at IEP meetings and interpreted if necessary. (Def.’s Mot. Summ. J., Ex. D., Decl. of Natalie Hess ("Hess Decl") ¶¶ 7–8.)

In advance of a student's IEP meeting, the School District's practice is to prepare a draft IEP in English. Some occasions arise where the School District deviates from that practice and does not provide a draft prior to the meeting. (Def.’s Mot. Summ. J., Ex. H, Dep. of Marie Capitolo ("Capitolo Dep."), 43:6–44:18.) Nevertheless, the School District's protocol is to allow parents sufficient time to review the draft with both the Special Education Liaison for their child's school and one of the BCAs. (Def.’s Mot. Summ. J., Ex. E ¶ 4; Hess Decl. ¶ 9.) Over the past year, the District has hired additional BCAs to better serve families who do not speak English. (Hess Decl. ¶ 10.) BCAs and other school staff are trained in practices for providing interpreter services for IEP meetings. (Soderman Dep. 45:4–46:10.)

According to the School District's practices and procedures, and "per IDEA regulations," Notices of Recommended Placement ("NOREPs"), Procedural Safeguards, and Permissions to Re-evaluate "must be in the parents/guardians’ native language, unless it is clearly not feasible to do so." (Def.’s Mot. Summ. J., Ex. E.) The Procedural Safeguards, as well as a Special Education Parental/Guardian Rights Notice, are provided to parents of special education students that are initially identified and annually at IEP meetings. (Hess Decl. ¶¶ 7–8; Def.’s Mot. Summ. J., Ex. B.) Although the School District's practice is that students should be evaluated by a bilingual certified school psychologist, (Pls.’ Opp'n, Ex. 7, Dep. of Natalie Hess ("Hess Dep.") 184:17–185:7), oftentimes the evaluation is done by a school psychologist working alongside a translator. (Soderman Dep. 106:17–108:4; Decl. of William Del Toro Vargas ("Vargas Decl.") ¶ 14.)

Plaintiffs posit that the School District's protocols are not always followed in practice. (Perez Decl. ¶¶ 15, 34; Vargas Decl. ¶ 20.) Plaintiffs do not dispute that these translation and interpretation services are, in many instances, provided to LEP parents, but they challenge the quantity, quality, and consistency of those services. Plaintiffs dispute that the Special Education Parental/Guardian Rights Notice sufficiently apprises LEP parents of their right to obtain adequate translation and interpretation services, and they contend that Procedural Safeguards are often not provided to parents in their native languages. Further, Plaintiffs cite evidence that many of the documents, such as NOREPS and Permissions to Re-evaluate, are often not translated into parents’ native languages. (PC ¶¶ 16–18, 20.) As to the draft IEPs, Plaintiffs posit that while it may generally be the practice to prepare these draft IEPS, they are not fully translated for LEP parents, even when specifically requested, and are not provided sufficiently in advance. (Hess Dep. 269:5–7; Lin Decl. ¶ 18.)

Plaintiffs also allege that not all staff that provide such interpretive services are specially trained since the School District will often use bilingual teachers, principals, staff secretaries, and sometimes individuals who worked outside the School District. (Hess Dep. 46:11–47:22; Soderman Dep. 137:14–138:9; 144:3–15.) Ludy Soderman, Director of Multilingual Family Support at the School...