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holding a parent may recover for sums she expended and losses stemming from efforts to provide her child with education services when the school district failed to fulfill its obligation
Summary of this case from Kerri H. v. Marple Newtown School DistrictOpinion
CIVIL ACTION NO. 01-5094
September 30, 2003
MEMORANDUM AND ORDER
On May 13, 2003, the parties filed a notice of consent to have me conduct all further proceedings in this action. See Docket Entry No. 50. Presently before this court is the Plaintiffs' motion for partial summary judgment on the issue of liability only and Defendant's motion for summary judgment and for disposition on the administrative record. Upon consideration of these motions, the parties' respective responses, the record, and the applicable caselaw, and as discussed more fully below, Plaintiff's motion will be granted in part and denied in part, and Defendant's motion will be granted in part and denied in part.
I. BACKGROUND
The factual history is compiled from a review of the complaint and answer, as well as the parties' motions for summary judgment, and their responses, inclusive of all exhibits thereto, and the court record. All facts, and reasonable inferences therefrom, are considered in the light most favorable to each non-moving party.
A. The IDEA
The Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1400 (2002), et seq. mandates that "all children with disabilities between the ages of 3 and 21 receive a `free appropriate public education' ("FAPE"). 20 U.S.C. § 1412(a)(1)(A). The statute and its implementing regulations provide a complex scheme by which evaluations are conducted and educational programs implemented. See 20 U.S.C. § 1414; 34 C.F.R. § 300.320-350, 300.500-543." Joseph M. v. Southeast Delco School District, 2001 U.S. Dist. LEXIS 2994 at *3 (E.D.PA. March 19, 2001).
The essence of the entitlement to F APE is provided through an Individualized Education Plan ("IEP") which consists of a detailed written statement arrived at by a multi-disciplinary team which summarizes the child's abilities and outlines the goals for the child's education and specifies the services the child will receive. In Pennsylvania, a Comprehensive Evaluation Report ("CER") is developed in the creation of the IEP. Id. at *3-4.
B. Factual Background
The background of the instant matter is set forth by the Special Education Due Process Appeals Review Panel as follows:
Jason D[ombrowski], whose date of birth is 7/12/78, is an eligible student who resides in the Wissahickon School District (hereinafter referred to as "the District"). More specifically, the District has identified him as a student with mental retardation who also has a seizure disorder and symptoms of autism and Tourette Syndrome.
. . . the District placed Jason, with the Parents' approval, as a day student at the Devereux Kanner Center, which is an approved private school.
The 5/4/98 Comprehensive Evaluation Report ("CER"), which the Parents signed, concluded that the placement "appear[s] to be meeting Jason's needs" and recommended its continuation. It included progress information from his teacher and the report of a District observation.
On 2/26/99, Devereux provided the Parent and District a nine-month summary of Jason's progress in relation to his IEP goals.
The 5/6/99 IEP, which included participation of the Montgomery County Department of Mental Health and Mental Retardation ("MH/MR") representative as well as the Parent, identified various needs, including emotional and behavioral problems, social interaction, and self-toileting. To address goals for social-emotional development, functional academics, and vocational skills, it provided for one-on-one support, adaptive physical education, and transportation. It also continued his placement at the Devereux Kanner Center.
On 8/6/99, Devereux sent the Parent and the District a three-month summary review of Jason's progress in terms of his IEP goals.
On 9/27/99, Jason's Parent telephoned and followed up with a FAX to the District's special education director requesting an immediate meeting based on "major concerns about his physical safety" and corresponding concerns about noncompliance in terms of his IEP. [emphasis in original]
On 9/29/99, at the requested meeting, the Parent referred to a report of six injuries that Jason received allegedly as the result of clearly insufficient staffing and supervision, and she requested an alternative in-home program plus five months of compensatory education. They discussed a possible alternative placement that included not only a 1:1 assistant and five hours per week of home-based instruction from the District but also a wraparound therapeutic support specialist ("TSS"), presumably provided by MH/MR, for 30 hours per week.
Starting approximately a week before the meeting, Jason's Parent kept him at home, and MH/MR supplied emergency home staffing for 40 hours per week.
On 10/5/99, with the Parent's concurrence, the District formally initiated Jason's disenrollment from Devereux. However, the District was not successful in its initial efforts to find a suitable 1:1 assistant or certified homebound teacher.
On 11/8/99, Jason's mother sent the District's special education director a request to move forward on an educational program for him in place of the TSS-based at-home program. She enclosed a letter from Jason's physician for this purpose. She included in her request that the District facilitate Jason's transition to "an adult training/recreation setting where he can spend at least part of the day".
On 11/12/99, the District authorized homebound instruction for five hours per week. However, it was unsuccessful in efforts to arrange for an instructor.
On 11/12/99, Jason's mother met again with the special education director, explaining that identification of a placement must take into consideration Jason being age 21 and also noting regression in Jason's social interaction, specifically his tolerance for other people.
Subsequently, the District's special education director continued her unsuccessful efforts to provide staffing for Jason and to find him a suitable placement.
On 2/1/00, she shared with the Parent the information she had collected from potential placements, asked the Parent to visit these sites, and promised to "fully compensate" Jason for the time he had been without an educational program.
On 4/03/00, they received notice from Indian Creek Foundation that it would not accept Jason for its adult training facility based on staffing issues, specifically the lack of a 1:1 assistant.
The special education director continued her efforts to find an appropriate placement for Jason. Jason's Parent also continued to make notable efforts to locate and investigate possible placements for Jason.
In May 2000, after exhausting her leave time with her employer to supplement the limited and not entirely reliable MH/MR staffing, Jason's Parent suffered a nervous breakdown.
On 2/8/01, after the District failed to respond directly to 6/6/00 and 10/19/00 letters from the Parent's attorney, the Parent requested a due process hearing. On 2/23/01, the District processed the request to the Office of Dispute Resolution.
On or about 5/15/01, per the District's arrangements, Jason's mother participated in an intake interview for him at the Center Point Training Center.
On 6/11/01, Center Point Training Center confirmed accepting Jason into its program, with the understanding that the District would provide him a 1:1 assistant and transportation. This arrangement is what the District considers its proposal for compensatory education. Yet, the Parent did not find this proposal entirely satisfactory, asserting that this placement lack[ed] an educational component or related therapies beyond vocational training.
On 8/18/01, after conducting hearing sessions on 5/10/01 and 8/8/01, the hearing officer issued his decision, ordering the District to provide Jason with compensatory education equal to the number of school days from 9/30/[99] to the end of the 1999-2000 school year at the rate of two hours per day. As the second part of his order, he declined to award attorneys' fees or money damages, because he did not have authority to do so. (footnotes omitted) In Re the Educational Assignment of Jason D., a Student in the Wissahickon School District, Special Education Opinion No. 1180, at 1-4 (The Special Education Due Process Appeals Review Panel, September 19, 2001).
The Appeals Panel affirmed the hearing officer's order. Id. at 9.
On October 9, 2001, Plaintiffs Diane Dombrowski ("Diane") and Jason Dombrowski ("Jason") filed the instant matter, which alleges causes of action against the Wissahickon School District ("Wissahickon" or "the District") under the IDEA and under 42 U.S.C. § 1983. "The plaintiffs claim that the district failed to provide Jason with a [FARE] after he was disenrolled from the Devereux Foundation, and that their procedural due process rights were violated during the IDEA administrative proceedings. See Diane Dombrowski, et al. v. Wissahickon School District, CA No. 01-5094, Order and Memorandum at 2-3 (E.D.Pa. December 14, 2001).
Jurisdiction in this Court is appropriate as Plaintiffs have exhausted their administrative remedies pursuant to the administrative review procedures of the IDEA. See 20 U.S.C. § 1415.
II. LEGAL STANDARD
A. Summary Judgment
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(e). "Facts that could alter the outcome are `material', and disputes are `genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Ideal Dairy Farms, Inc. v. John Labatt, LTD, 90 F.3d 737, 743 (3d Cir. 1996) (citation omitted).
The party seeking summary judgment always bears the initial responsibility for informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial burden can be met simply by showing that there is an absence of evidence to support the non-moving party's case. After the moving party has met its initial burden, the non-moving party must come forward with specific facts showing that there is a genuine issue for trial. The non-moving party must present concrete evidence supporting each essential element of its claim. See Moyer v. Borough of North Wales, CA No. 00-1092, 2001 WL 73428 at *1 (E.D.Pa. January 25, 2001) ( citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
On summary judgment, it is not the court's role to weigh the disputed evidence and decide which is more probative. The court must always consider the evidence, and all reasonable inferences from it, in the light most favorable to the non-moving party. "If the opponent [of summary judgment] has exceeded the `mere scintilla' of evidence threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent." Id. ( quoting Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992)).
B. Scope of Review under the IDEA
As stated by the Honorable Berle M. Schiller of this Court, in Bucks County Department of Mental Health/Mental Retardation v. Barbara De Mora, 227 F. Supp.2d 426 (E.D.Pa. 2002),
Under the IDEA, a reviewing court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate. See 20 U.S.C. § 1415(i)(2)(B). Thus, the reviewing court should not adopt the traditional summary judgment standard of review. See Heather S. v. State of Wis., 125 F.3d 1045, 1052 (7th Cir. 1997).
Instead, reviewing courts should apply a "modified" de novo standard of review. See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982). In doing so, courts must form their own opinions of the record, evaluating each element of the hearing officer's ruling. See Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 252 (5th Cir. 1997). District courts have discretion to determine how much deference to accord to the administrative proceeding. See Oberti v. Bd. of Educ., 995 F.2d 1204, 1219 (3d Cir. 1993).
. . . . .
Under the IDEA, when a state or local government agency fails to provide adequate services for a child, the court "shall grant such relief as the court determines is appropriate" 20 U.S.C. § 1439(a)(1). The Supreme Court provided addressed the meaning of "appropriate" relief in School Committee of Burlington v. Massachusetts Department of Education, 471 U.S. 359 (1985). In particular, the Court explained: "The statute directs the court to `grant such relief as [it] determines is appropriate.' The ordinary meaning of these words confers broad discretion on the court, and the type of relief is not further specified, except that it must be `appropriate.'" Burlington, 471 U.S. at 369. As the Third Circuit has further explained: "[W]e discern nothing in the text or history suggesting that relief under IDEA is limited in any way, and certainly no `clear direction' sufficient to rebut the presumption that all relief is available. The expansive language of § 1415(f) . . . contains no restrictions on forms of relief." W.B. v. Matula, 67 F.3d 484, 494 (3d Cir. 1995). Thus, "the power of the Court to fashion an appropriate remedy for an IDEA violation is quite broad." O.F. v. Chester Upland Sch. Dist., Civ.A. No. 00-779, 2002 U.S. Dist. LEXIS 17343, at * 18 (E.D.Pa. Sept. 9, 2002) (citing Matula, 67 F.3d at 494-95). De Mora, 227 F. Supp.2d at 428-429.
III. DISCUSSION
A. Jason Dombrowski's Claim for Violation of the IDEAJason Dombrowski, and Diane Dombrowski on his behalf, asserts that the Wissahickon School District violated the IDEA in that it failed to provide him with proper educational services after he was disenrolled from Devereux. See Plaintiffs' Motion for Partial Summary Judgment at 4. Wissahickon contends that Jason's claims are barred by statute in that Jason reached the age of 21 on July 12, 1999, prior to the start of the 1999-2000 school year. See Defendant's Answer to Plaintiffs' Motion for Partial Summary Judgment at 3-4.
The IDEA states that "[a] State is eligible for assistance under this part [ 20 U.S.C.S. §§ 1411, et seq.] for a fiscal year if the State demonstrates to the satisfaction of the Secretary that the State has in effect policies and procedures to ensure that it meets each of the following conditions: A free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive . . . " 20 U.S.C.S. § 1412(a)(1)(A). "Each State must have on file with the Secretary information that shows that . . . the State has in effect a policy that ensures that all children with disabilities aged 3 through 21 residing in the State have the right to FAPE . . ." 43 C.F.R. § 300.121(a).
Pennsylvania's 24 P.S. § 13-1301 reads:
Every child, being a resident of any school district, between the ages of six (6) and twenty-one (21) years, may attend the public schools in his district, subject to the provisions of this act. Notwithstanding any other provision of law to the contrary, a child who attains the age of twenty-one (21) years during the school term and who has not graduated from high school may continue to attend the public schools in this district free of charge until the end of the school term.
Though at the time of Jason's withdrawal from Devereux it was unclear whether the IDEA's ceiling of age 21 ended on a student's 21st, rather than the 22nd birthday, this issue need not be resolved in this action because Wissahickon agreed to treat Jason as eligible through the 1999-2000 school year. See in Re The Educational Assignment of Jason D., Special Education Opinion No. 1180 at 3, n. 17; 7, n. 44. See also, Answer, Second Affirmative Defense, at [3].
It was not until June, 2002, that the Public School Code of 1946 was amended by Act 88 of 2002 to state that a child who reaches the age of 21 during the school term, and who has not graduated from high school, is entitled to attend the public schools in his district free of charge until the end of the school term.
Wissahickon's Second Affirmative Defense reads:
The Plaintiff, Jason Dombrowski, was no longer entitled to educational services from the District at the conclusion of the 1999-2000 school year, since he had reached the age of 21.
The statements of Michael Connolly, Esquire, counsel to the District at the Due Process Hearing held before Max Wald, Ph.D. on August 8, 2001, further corroborate the District's acceptance of responsibility for Jason's education during the time period at issue:
Now with respect to compensatory education, let me make it clear that the district doesn't disagree that some amount of compensatory education is due here.
. . . . .
So, we agree that from December of 1999, through June or through the end of May, beginning of June of 2000, the student is entitled to compensatory education.
. . . . .
I think that the issue in this case is clear. The issue is to what extent this compensatory education can go.
The district doesn't disagree that some amount of compensation is due. N.T. 8/8/01, 26, 31, 113.
Dr. Wald referred to the District's position in his decision of August 18, 2001.
Emphasis must be focused on the Gilhool principle that indicates that compensatory education is available to address deficiencies even after age 21. It is therefore this Hearing Officer's intention to award Jason a full measure of compensatory education for each day of school missed during the 1999-2000 school year. The amount of compensatory education awarded will be in line with that offered by the District added to an additional block of time viewed by this Hearing Officer as necessary to assist Jason in moving closer to the IEP Goals and Objectives in the stated areas of "Social/Emotional, Vocational, Functional Academics, and Physical Education." Decision, Due Process Hearing for Jason Dombrowski, at 8, August 18, 2001.
In Lester H., et al. v. Thomas K. Gilhool, et al., 916 F.2d 865, 872 (3d Cir. 1990), the Court opines:
Lester . . . is only requesting a remedy to compensate him for rights the district already denied him. He has the right to ask for compensation because the School District violated his statutory rights while he was still entitled to them.
If Honig stands for the proposition defendants assert, school districts would be immune from suit if they simply stopped educating intended beneficiaries of the EHA at age 18 or 19. Those beneficiaries' cases would take at least two years to be reviewed, and even if the reviewing courts found the school districts' behavior egregious, the courts would be powerless to aid the intended beneficiaries because those beneficiaries would now be over age 21. We cannot believe that either Congress or the Supreme Court meant to allow a school district to withhold a disabled minor's educational rights at age 18 or 19 without remedy.
The Appeals Panel affirmed the Hearing Officer's award of compensatory education. See In Re the Educational Assignment of Jason D, Special Education Opinion No. 1180 at 8.
Also testifying that Wissahickon had a responsibility to provide Jason with a FAPE after his removal from Devereux was Denise Fagan, Elementary School Principal and former Director of Special Education in the District:
Q. Okay. You don't disagree that the District had a responsibility to provide Jason Dombrowski with FAPE after he was taken out of Devereux in September of 1999, do you?
A. No, I do not disagree with that.
Q. And I'm going to show you what we will mark as Fagan-6, Bate Stamp Document 000344, which I believe is a letter from you to Diane Dombrowski dated February 1st, 2000; is that a true and correct copy of that letter?
A. Yes.
. . . . .
Q. Okay. And the third paragraph of that letter says, "Thank you for your cooperation. Jason will be fully compensated for the time he has not been in program. Please call me if you have any questions or concerns."
A. Yes.
Q. Okay. And you wrote that letter?
A. Yes, sir.
Q. Okay. And you wrote that as the Director of Special Education for the District?
A. Yes, sir. N.T. 7/9/02, 196-197.
Further, Diane testified that the subject of Jason's age had been addressed by Wissahickon.
Q. Right. So, at the time we started to look in September of 1999, when Jason was withdrawn from Devereux, he had turned 21; is that correct?
A. He had turned 21 and Mrs. Fagan had written me a letter in regard to — she agreed to support Jason, although he was 21 years of age, the district was aware of that and the district had agreed to support him at Devereux for an additional year. His birthday fell after their fiscal year, not necessarily in September, so they had, at this point, agreed to an extra year because of Jason meeting the criteria to get that extra year. N.T. 8/8/01, 97-98.
The Appeals Review Panel "credit[ed] both the District and the Parent for their diligence in trying to find an appropriate placement for Jason for his final year of eligibility. [It agreed] with the hearing officer that this was not a case of lack of good faith on either side." In Re the Educational Assignment of Jason D., Special Education Opinion No. 1180 at 7. The record shows that after Diane unilaterally withdrew Jason from further attendance at the Devereux Kanner Center on September 22, 1999, Wissahickon acted quickly in meeting with Diane to discuss her concerns and her wishes for the remainder of Jason's education experience. The efforts expended by both Wissahickon and Diane on Jason's behalf are also clearly chronicled. Nonetheless, the record reveals the absence of a FAPE for Jason at a time when he was eligible for such an education, thus indicating a violation of the IDEA. Furthermore, the acceptance of responsibility for compensatory education, in response to that violation, by those speaking on behalf of the District is evident.
Wissahickon now asserts in its motion for summary judgment that as all of Plaintiffs' claims arise from purported wrongdoing in the 1999-2000 school year, the District is not required to provide an education to Jason, since he reached the age of 21 on July 12, 1999. See Wissahickon's Brief in Support of its Motion for Summary Judgment and Disposition on the Administrative Record ("Wissahickon's Brief) at [7].
Wissahickon refers to that section of 24 P.S. § 13-1301 which states that "a child who attains the age of twenty-one (21) years during the school term and who has not graduated from high school may continue to attend the public schools in [his] district free of charge until the end of the school term." As previously noted, § 13-1301 was amended to include this statement in the year 2002, making its application to Jason's situation retroactive. "No statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly." 1 Pa.C. S. § 1926. 24 P.S. § 13-1301 contains no retroactivity language, and Wissahickon has cited no other source which would indicate an intent by the General Assembly to apply the statute in this manner. This, in addition to the District's acceptance of responsibility for Jason's education through the 1999-2000 school year, requires a denial of Wissahickon's motion for summary judgment concerning Jason's IDEA claim. Considering the respective motions in a light most favorable to the mon-moving party, the motion of Plaintiff Jason Dombrowski, and of Diane Dombrowski on his behalf, for partial summary judgment on the issue of liability is granted, and Wissahickon's motion for summary judgment is denied as to Jason's IDEA claim.
B. Diane Dombrowski's Claim for Violation of the IDEA
Diane, in her own right, seeks reimbursement of the sums she expended, and the losses she experienced, stemming from the efforts she made to provide educational services to Jason during the time period when Wissahickon failed to fulfill its obligations. See Plaintiffs' Motion for Partial Summary Judgment at 4.
The IDEA grants to parents of special needs children specific procedural rights, which they may enforce in administrative proceedings, as well as in federal court. See Collinsgru v. Palmyra Board of Education, 161 F.3d 225, 233 (3d Cir. 1998). However, this does not imply that parents also possess the same underlying substantive rights possessed by their children. Id. at 236.
[P]laintiff may not bring suit on [her] own behalf under IDEA because, as the Third Circuit held in Collinsgru v. Palmyra Bd. Of Educ., 161 F.3d 225, 227 (1998), [she] does not have substantive rights under that Act. In Collinsgru, the Third Circuit discussed at length the consideration of parental rights under IDEA, and held that although IDEA provides parents with some individual procedural rights, "Congress's decision to endow parents with these procedural rights should not be read, under the language of the IDEA to imply that parents also possess the same underlying substantive rights that their children possess." Id. At 227. Furthermore, the Collinsgru court refused to read joint parental substantive rights into IDEA, holding, "because neither the statutory language nor the legislative history clearly implies that Congress intended parents to have joint rights with their children under the IDEA, we will not read joint rights into the Act." Id. At 235. Thus, plaintiff may not assert any of [her] own — or joint — substantive rights under IDEA. Carpenter v. Pennell School District Elementary Unit, 2002 U.S. Dist. LEXIS 15152 at *6-7 (E.D.Pa., August 9, 2002).
Nevertheless, in De Mora, Judge Schiller found that "the IDEA does not preclude a parent from seeking and obtaining reimbursement for her time expended in providing early intervention services for her child under certain circumstances." De Mora, 227 F. Supp.2d at 427.
In De Mora, the parent had suggested to Bucks County's Department of Mental Health/Mental Retardation ("Bucks County") that her child, who qualified for early intervention services, would benefit from the "Lovaas methodology of early intervention." Id. at 427. Bucks County rejected the request. Id. Subsequently, the parent obtained training for herself in the Lovaas methodology and performed these techniques herself. Finding that the program provided by Bucks County was inappropriate and that Lovaas was appropriate, the special education due process appeals panel reimbursed the parent for "consultation, training and direct implementation" of the Lovaas method, and this decision was affirmed by Judge Schiller. Id. at 428. In discussing the limited applicability of De Mora, Judge Schiller notes that "[i]n [De Mora], there ha[d] been (1) an underlying failure on the part of the local agency to provide appropriate early intervention services (2) that caused the child's parents to secure an appropriate and efficacious early intervention program later found to be appropriate, (3) in which a parent received training and then effectuated the program". Id. at 430, n. 11.
Assuming that De Mora can be applied to other areas of special education, as well as early intervention services, I look to the three guidelines listed therein concerning a parent's reimbursement for her efforts to provide education services to her child and apply them to the instant matter. There is no denying that there was a failure on the part of Wissahickon to provide an appropriate FAPE to Jason. However, there is no evidence that Diane, herself, secured an appropriate and efficacious program for Jason which was later found to be appropriate. Neither is there evidence that she received training in a particular educational program nor that she effectuated such a program. Again, looking at the evidence in a light most favorable to the non-moving parties, the motion of Plaintiff Diane Dombrowski, in her own right, for partial summary judgment on the issue of liability is denied, and Wissahickon's motion for summary judgment is granted as to Diane's IDEA claim.
C. Jason Dombrowski's Claim under 42 U.S.C. § 1983
Jason, and Diane on his behalf, also asserts a claim against Wissahickon for violation of his rights under 42 U.S.C. § 1983. He claims a clear violation of his right to education under the IDEA, and the Third Circuit's holding in W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995). See Plaintiffs' Motion for Partial Summary Judgment at 5.
"In order for a local government entity to have liability under § 1983, a plaintiff must establish that the deprivation of [his] rights was the result of an official policy, custom or practice. See Monell v. Dept. of Soc. Servs. of the City of New York, 436 U.S. 658, 690 (1978); Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 252 (3d Cir. 1999)." Dombrowski v. Wissahickon, CA No. 01-5094, Order and Memorandum at 3 (E.D.Pa., December 14, 2001).
As the Third Circuit stated in Matula, "[s]ection 1983 does not confer substantive rights, but merely redresses the deprivation of those rights elsewhere secured. Those rights may be created by the Constitution or federal statute, and hence in a § 1983 action a person may challenge federal statutory violations by state agents." Id., at 493. "Far from inferring a congressional intent to prevent § 1983 actions predicated on IDEA then, we conclude that Congress explicitly approved such actions. Accordingly, § 1983 supplies a private right of action for the instant case." Id. at 494.
"Where a section 1983 claim is based on a violation of the IDEA all the plaintiff must show is the statutory violation." Joseph M. v. Southeast Delco School District, 2001 U.S. Dist. LEXIS 2994, *32(E.D.Pa. March 19, 2001). Having already concluded that Wissahickon violated the IDEA by failing to provide Jason with a FARE for the majority of the 1999-2000 school year, the District must be held liable under § 1983. The motion for partial summary judgment of Jason Dombrowski, and Diane Dombrowski on his behalf, on the issue of liability is granted, and Defendant Wissahickon's motion for summary judgment concerning this is denied as to Jason's § 1983 claim.
D. Diane Dombrowski's Claim under 42 U.S.C. § 1983
Diane also asserts a claim pursuant to § 1983. She states that she is prepared to present evidence at trial which will tie her claims for personal injury losses to the emotional breakdown she suffered while Jason was not receiving his F APE and while she was "trying to put together whatever program she could for his benefit." Plaintiffs' Motion for Partial Summary Judgment at 12.
"[A]n aggrieved parent . . . is not barred from seeking monetary damages in a § 1983 claim based on an IDEA violation." Dombrowski, CA No. 01-5094, Order and Memorandum (quoting Matula, 76 F.3d at 495).
The Third Circuit also opines:
We caution that in fashioning a remedy for an IDEA violation, a district court may wish to order educational services, such as compensatory education beyond a child's age of eligibility, or reimbursement for providing at private expense what should have been offered by the school, rather than compensatory damages for generalized pain and suffering. W.B. v. Matula, 67 F.3d 484, 495 (3d Cir. 1995).
In support of her claim, Diane cites Agresta v. Sambor, 687 F. Supp. 162 (E.D.Pa. 1988) and Susavage v. Bucks County School Intermediate Unit No. 22, 2002 U.S. Dist. LEXIS 1274 (E.D.Pa. January 22, 2002). In Agresta, the son of the Plaintiffs was shot and killed by police. See Agresta, 687 F. Supp. at 163. In Susavage, Plaintiff, a severely disabled child, was strangled on her way to school by a faulty school bus harness. See Susavage, 2002 U.S.Dist. LEXIS at *3.
Susavage cites Agresta in stating that a cause of action does exist for a § 1983 claim based upon a violation of parents' due process rights.
A parent's rights of companionship and association with the children are substantive due process rights for which termination damages may be awarded. Agresta v. Sambor, 687 F. Supp. 162, 167 (E.D.Pa. 1988) (parents could seek civil rights damages for termination of parental relationship with married, adult child as a result of child's death), aff'd. mem., 993 F.2d 223 (3d Cir. 1993). Susavage, 2002 U.S. Dist. LEXIS at *42.
In Susavage, Plaintiffs were "deprived of protected substantive due process rights to companionship and association with their daughter". Id. Diane has not been deprived of the substantive due process right of Jason's companionship and association with him by the District; he is still very much with her.
Wissahickon avers in its motion for summary judgment that Plaintiffs assert a violation of procedural due process in that the special education due process hearing officers were biased. See Wissahickon's Brief at [10]. Plaintiffs do allege in their complaint that "[they] have been deprived of their right to due process hearings and impartial fact-finders in that all fact-finders have no independence and a conflict of interest in being selected and compensated by the Commonwealth of Pennsylvania and its agencies which agency is a defendant in the present matter". Complaint at 4, ¶ 15. This allegation is not raised by Plaintiffs in their motion for partial summary judgment, but they do address it in their response to Wissahickon's motion.
Where the law permits review of the merits of a purportedly biased administrative decision by appeal, there is no viable procedural due process claim unless the appeal process itself is unconstitutional. See Bella v. Walker, 840 F.2d 1124, 1128 (3d Cir. 1988), cert. denied 488 U.S. 851, 109 S.Ct. 134 (1988) and 488 U.S. 868, 109 S.Ct. 176 (1988). "There is no deprivation of due process provided the State has provided a claimant with `a means to receive redress for the deprivation . . .' whether or not the means are utilized." Mize v. Borough of Kennett Square, 1997 U.S. Dist. LEXIS 4386 *16-17 ( quoting Cohen v. City of Philadelphia, 736 F.2d 81, 85 (3d Cir. 1984)). Under the IDEA, Plaintiffs may challenge a hearing officer's decision before an appeals panel, and subsequently in state or federal court. See 20 U.S.C. § 1415(i)(2). To further ensure an unbiased proceeding, a hearing may not be conducted by an individual who is an employee of the school district that is involved in the education of the child. See 34 C.F.R. § 300.508(a)(1).
Plaintiffs, in their response, list a series of "procedural shortcomings" that prevent the correction of errors on appeal. They include: 1) "IDEA proceedings tend to be conducted expeditiously with no formal discovery before hearings"; 2) "[w]hile the school districts hold all the cards, parents and their attorneys have to scramble to find out whatever they can to prepare for the hearing"; 3) "armed with limited knowledge, parents and students then have to present their case to fact finders who come from the educational arena"; 4) "these fact finders cannot even award attorneys' fees if the parents/student prevail." Plaintiffs' Answer to Defendant's Motion for Summary Judgment at 12. Plaintiffs go on to describe how the administrative process worked a particular injustice in the instant matter because the "stay put" provision of the IDEA did not apply to Jason. Id. at 13.
When a disagreement arises concerning the FAPE of a particular student, the "stay-put" provision of the IDEA requires that the student remain in his current placement pending resolution of the matter. See 20 U.S.C. § 1415(j). "[Jason], due to Wissahickon's actions, was not in a placement when the request for a due process hearing was filed. Therefore, the `stay put' provision did not apply. Unlike other students, the ongoing administrative proceedings only served to place [Jason] further behind." Id. at 13. It is true that the stay-put provision of the IDEA does not apply herein. However, Jason was not in a placement during these administrative proceedings due to his unilateral withdrawal from Devereux by his mother.
20 U.S.C. § 1415(j) reads in pertinent part:
. . . during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child,. . .
Plaintiffs have failed to allege any occurrences in their list of procedural shortcomings that are particular to this matter. "Such conclusory allegations cannot not be accepted at face value in this area of the law." Pace Resources, Inc. v. Shrewsbury Township, 808 F.2d 1023, 1026 (3d Cir. 1987). See also Bieros v. Nicola, 860 F. Supp. 223, 225 (E.D.Pa. 1994). A more substantial indication of a constitutional violation is required. See Pace Resources, Inc., 808 F.2d at 1026.
Upon considering the evidence in a light most favorable to the mon-moving parties, I conclude that Diane Dombrowski's motion for partial summary judgment on the issue of liability for her § 1983 claim must be denied, and Wissahickon's motion for summary judgment is granted as to Diane's § 1983 claim.
E. Wissahickon's Motion for Disposition on the Administrative Record
Wissahickon asserts that could Plaintiffs "assert an IDEA claim . . . the Court should review the administrative record, and giving `due weight' to the decisions reached therein, affirm the decisions of the Hearing Officer and Appeals Panel." Wissahickon's Brief at [13].
"Under the IDEA, the reviewing court `is obliged to conduct a modified de novo review, giving "due weight" to the underlying administrative proceedings.'" S.H. v. State-Operated School District of the City of Newark, 336 F.3d 260, 270 (3d Cir. 2003) ( quoting MM v. Sch. Dist. Of Greenville County, 303 F.3d 523, 530-31 (4th Cir. 2002)). "Factual findings from the administrative proceedings are to be considered prima facie correct." Id. At 531.
In discussing Pennsylvania's two-tier system of administrative review in IDEA cases, we stated that the appeals panel "should defer to the hearing officer's findings based on credibility judgments unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion or unless the record read in its entirety would compel a contrary conclusion." Carlisle, 62 F.3d at 529. A federal district court reviewing the administrative fact finder in the first instance is similarly required to defer to the ALJ's factual findings unless it can point to contrary non-testimonial extrinsic evidence on the record. S.H., 336 F.3d at *21.
Upon reaching his decision, the Hearing Officer, at Jason's Due Process Hearing held on August 8, 2001, carefully laid out Jason's background, and he thoroughly delineated his findings of fact. He further noted Plaintiffs' requests. "At the onset [Diane] requested compensatory education for Jason, payment of legal fees, and a financial damage award based upon the loss of her job and the accompanying fringe benefits, as well as the loss of her emotional health and well being." Decision: Due Process Hearing for Jason Dombrowski at 5. Diane asked for "compensatory education for the past three years as a means of being compensated for a denial of a free appropriate public education as well as to remediate other perceived ills." Id. 6.
As has been previously stated, Wissahickon has indicated an acceptance of responsibility for a period of compensatory education for Jason.
The Hearing Officer, after a thorough discussion, awarded Jason "a full measure of compensatory education for each day of school missed during the 1999-2000 school year." Id. at 8. He added an additional block of time to that offered by the District "to assist Jason in moving closer to the IEP Goals and Objectives in the stated areas of "Social/Emotional, Vocational, Functional Academics, and Physical Education." Id. In regard to Diane's request for financial damages, he noted that "[p]arents are not a protected group within the IDEA", and he had "no power in the matter of awarding financial compensation for damages [to] the Parent." Id. at 9. As for reimbursement of legal fees, he held that "[v]irtually all courts and hearing officers considering the issue of fees have held that state hearing officers lack jurisdiction to award fees."
The Special Education Due Process Appeals Review Panel carefully analyzed the above decision and affirmed the first part of the hearing order. See In Re the Educational Assignment of Jason D., Special Education Opinion No. 1180 at 8. It held that "the hearing officer was correct in identifying that the starting point for compensatory education was when the District knew or had reason to know of the denial of FARE." Id. at 5. However, he was also correct "in citing the exclusion for the time reasonably required for the District to rectify the problem." Id. at 6.
Finally, the proper measure should be the FARE which the child was entitled to but did not receive, which in this case was encompassed in his apparently appropriate IEP. Here, the applicable IEP provided for a full-time placement, thus clearly amounting to specially designed instruction ("SDF') for the entire day and expressly including adaptive PE. Moreover, it also provided for supplemental aids and services in the form of a 1:1 assistant and the related service of transportation. It was this total FAPE that the lack of proper staffing at Devereux since May 1999 effectively denied and that the District did not reasonably rectify before July 2000, which was the end of Jason's eligibility.
On the other hand, the IEP did not provide for the other services sought by the Parent, such as physical and music therapy. Instead, according to this record at least, MH/MR provided such services, presumably as part of its separable wraparound provisions.
Similarly, there is no basis for magnifying or compounding the award to take into account the student's regression, particularly when there is no clear measure of such. Rather, the case law suggests equitably approximating the amount of the original denial of F APE within the timeframe of that denial.
Additionally, we credit both the District and the Parent for their diligence in trying to find an appropriate placement for Jason for his final year of eligibility. We agree with the hearing officer that this was not a case of lack of good faith on either side.
Finally, the District points to the Center Point placement as its arrangement for compensatory education. However, although this may have been its proposal, the District failed to preponderantly prove that the Parents's accepted this placement as the full compensation promised by the District. Although this placement, understood to start with a reasonable transition and to last for one full year amply suffices for the duration of the compensatory education award, this provision for transportation and a 1:1 aide does not suffice in terms of the measure of FAPE. Rather, the District must provide the equivalent of the missing SDl. Given Jason's current adult needs, as recognized in the IEP's transition plan and its goals, the primary vocational component of Center Point's program serves as the equivalent for the majority of this SDI, but the hearing officer's award of two hours per day equitably fulfills the remaining deficiency.
Thus, we affirm the first part of the hearing order. Although the duration and measure of such awards defy exactitude, his order is, in the circumstances of this case and on balance, equitable (footnotes omitted). Id. at 6-8.
The Panel repeated the Hearing Officer's finding that the awarding of attorney's fees and/or money damages are not within the power of hearing officers and upheld the Hearing Officer' s second order. It found, moreover, that "the clear inclusion of this claim in the Parent's Exceptions more than borders on being frivolous, sanctionable conduct on her attorney's part." Id. at 8-9.
The Hearing Officer clearly and logically articulated the appropriate time frame for Jason's compensatory education as that of "each day of school missed during the 1999-2000 school year". Compensatory education is designed to provide a student with the services he or she should have received consistent with FAPE, but which he or she was denied. Though Plaintiffs requested three years of compensatory education, nothing was provided to justify that amount of time, and, as held by the Appeals Panel, "there is no clear measure of such". Upon conducting a "modified de novo" review of the Administrative Proceedings herein, and giving due weight to the Hearing Officer's decision and the Appeal Panel's holding that Wissahickon must provide the equivalent of Jason's SDI, I conclude that Wissahickon's motion for disposition on the administrative record must be granted as to Plaintiffs' IDEA claims.
IV. CONCLUSION
Consistent with the above discussion, Plaintiffs' Motion for Summary Judgment on the Issue of Liability is granted in part and denied in part. Defendant's Motion for Summary Judgment is granted in part and denied in part. Defendant's Motion for Disposition on the Administrative Record concerning the IDEA claims is granted.
ORDER
AND NOW, this 30th day of September, 2003, upon consideration of the parties' motions for summary judgment and Defendant's Motion for Disposition on the Administrative Record, their respective responses, and consistent with the above discussion, it is hereby ORDERED that:
1. Plaintiff's Motion for Partial Summary Judgment on the Issue of Liability Only (Docket Entry No. 42) is GRANTED IN PART AND DENIED IN PART as follows:
a. With respect to the motion of Jason Dombrowski, and Diane Dombrowski on Jason's behalf, concerning the IDEA claim, the motion is GRANTED.
b. With respect to the motion of Diane Dombrowski, in her own right, concerning the IDEA claim, the motion is DENIED.
c. With respect to the motion of Jason Dombrowski, and Diane Dombrowski on Jason's behalf, concerning the 42 U.S.C. § 1983 claim, the motion is GRANTED.
d. With respect to the motion of Diane Dombrowski, in her own right, concerning the 42 U.S.C. § 1983 claim, the motion is DENIED.
2. Defendant's Motion for Summary Judgment and for Disposition on the Administrative Record (Docket Entry No. 41) is GRANTED IN PART AND DENIED IN PART as follows:
a. Wissahickon's Motion for Summary Judgment concerning Jason Dombrowski and Diane Dombrowski on Jason's behalf is DENIED.
b. Wissahickon's Motion for Summary Judgment concerning Diane Dombrowski, in her own right, is GRANTED.
c. Wissahickon's Motion for Disposition on the Administrative Record of the IDEA claim is GRANTED.