Defendant's Attorney: Michael Jacqueline Mintz and Beth N. Shore

Description: Philadelphia, Pennsylvania education law lawyers represent the Plaintiff who sued Defendants on Individual with Disabilities Education Act violation theories.


The Individuals with Disabilities Education Act (“IDEA”) requires states to provide a “free appropriate public education” (“FAPE”) to all students who qualify for special education services. 20 U.S.C. §1400, et seq.

K.W. is a minor student with disabilities as defined under 20 U.S.C. § 1401 and is qualified for special education services under the IDEA. (ECF No. 1 ¶ 6 in Civil Action 22-04347).[1] K.W. has been attending the Upper Darby School District (the “District”) since the fall of 2016. ECF No. 20-1 at 3; ECF No. 21-1 at 1.[2] K.W. previously resided with his mother, Taneesha B. (“K.W.'s Mother”), and he currently resides with his father, Thomas K. (“K.W.'s Father”) (all collectively “the Family”).

This case arises from cross-complaints appealing Special Education Hearing Officer Cathy A. Skidmore's (“Hearing Officer Skidmore” or the “Hearing Officer”) administrative decision (ECF No. 5-3), which was issued on July 31, 2022, following evidentiary hearings on April 21, June 15, and June 16, 2022. ECF No. 1 ¶ 4 in Civil Action 22-04347).

Presently before the Court are fully briefed cross motions for judgment on the administrative record. See ECF Nos. 20, 21, 24, 25, 26. For the reasons set forth below, the Family's Motion for Summary Judgment on the Administrative Record (ECF No. 20) is granted in full and the District's Motion for Summary Judgment on the Administrative Record (ECF No. 21) is denied.

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In April 2019 the District, through its IEP process, placed K.W. at the Vanguard School (“Vanguard”), where he remained for the 2019-20 school year. ECF No. 5-3 ¶ 9; ECF No. 20-1 at 3 (citing ECF No. 5-14, Ex. P-24 at 3). On September 19, 2019, an independent educational evaluation (“IEE”) conducted by Dr. Steven Kachmar (“September 2019 IEE”) revealed that K.W. had significant disabilities in executive functioning and social-emotional and behavioral functioning, including hyperactivity, rule-breaking behavior, aggression, anxiety and depression, and inattention, and well-below-average social skills. ECF No. 5-3 ¶¶ 10-14; ECF No. 20-1 at 4.

Unlike K.W.'s later IEPs, the Vanguard IEP described some of K.W.'s behavioral problems, such as shouting obscenities an average of three times a week, hitting and kicking an average of 1.8 times per week, and eloping from the classroom an average of three times per week. ECF No. 5-14, Ex. P-16 at 30-32. During the spring of 2020, K.W. was removed from Vanguard, and the District convened an IEP meeting. ECF No. 5-3 ¶ 16. K.W.'s IEP was not revised at this point to include an individualized Positive Behavior Support Plan (“PBSP”) based on an Functional Behavioral Assessment (“FBA”). Id. at 7, n.7.

Then, at the start of the 2020-21 school year, the District placed K.W., through the IEP process, at the Philadelphia Campus of the Y.A.L.E. School (“YALE”), a private academic school licensed through the Pennsylvania Department of Education (“PDE”). ECF No. 5-3 ¶ 17; ECF No. 20-1 at 3. K.W. began the school year attending YALE virtually due to the COVID-19 pandemic and started attending in-person on November 2, 2020. ECF No. 5-3 ¶ 19; ECF No. 20-1 at 4. On December 4, 2020, the District convened an IEP meeting to develop K.W.'s first IEP while at YALE. ECF No. 5-3 ¶ 24; ECF No. 20-1 at 4. This IEP noted that K.W. did not “exhibit behaviors

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that impede his learning or the learning of others” despite his history of disruptive behavior. ECF No. 5-10, Ex. SD-5 at 10; ECF No. 5-12, Ex. P-2 at 10; cf. ECF No. 5-7, N.T. 190-92; see also, ECF No. 5-12, Ex. P-1 at 18 (“[K.W.]'s educators report that he engages in a clinically significant level of aggressive behaviors.”). In fact, this IEP did not include any goals related to K.W.'s social-emotional skills, behavior, or self-regulation. See ECF No. 5-10, Ex. SD-5; ECF No. 5-12, Ex. P-2.

During the 2020-21 school year, K.W.'s Mother “advocated” for K.W. when she had concerns about K.W.'s academic progress, his peer interactions, or about YALE's staff. ECF No. 5-3 ¶ 33; ECF No. 20-1 at 5. K.W.'s Mother expressed concerns about K.W.'s “frequency of speech services, the effectiveness of his 1:1, and his academic progress to the District and YALE, but the IEP was not revised.” ECF No. 20-1 at 5. K.W. exhibited behavioral problems during the school year, which required de-escalation. ECF No. 5-3 ¶ 29.

The record shows that K.W. was often frustrated, yelling, or running around the classroom. ECF No. 5-7, N.T. 190-92, 206-07. YALE employed the School-Wide PBSP rather than an individualized PBSP based on a functional assessment of behavior.[6] ECF No. 5-3 ¶ 29; ECF No. 20-1 at 6.

On February 24, 2021, the IEP team reconvened to discuss some of K.W.'s Mother's concerns, but the District did not revise K.W.'s Special Considerations section to address K.W.'s behavioral needs. ECF No. 5-3 ¶ 30; see also, ECF No. 5-11, Ex. SD-23 at 9. During the summer and early fall of 2021, testing was conducted by Dr. Eric Mitchell at Neurodiversity Consultants LLC following K.W.'s Mother's request to obtain an IEE from the District.

ECF No. 5-3 ¶ 35; ECF No. 20-1 at 6. A final report was issued on September 25, 2021 (the “Mitchell Evaluation”). ECF No. 2-10 at 6; see also, ECF No. 5-12, Ex. P-3. This report found that K.W. required an individualized PBSP based on an FBA-a suggestion the District still failed to implement. See ECF No. 5-12, Ex. P-3 at 36.

The only behavioral data in the record from the 2020-21 and 2021-2022 school years was captured between September 23 to November 19, 2021. ECF No. 5-13, Ex. P-6 at 19. This data comes from Behavior Analyst Sandra Rogers. See id. The data show that from the start of the 2021-22 school year, K.W.'s behavior “deteriorated . . . on average engaging in physical aggression at least 1 time per day; verbal aggression at least 3.5 times per day; inappropriate social behavior at least 14 times per day; peer taunting at least 1 time per day; task refusal at least 1 time per day; and elopement less than 1 time per day.” ECF No. 20-1 at 7; ECF No. 5-13, Ex. P-6 at 19; see also, ECF No. 5-6, N.T. 314-17.

Ms. Rogers recommended “additional behavioral supports” and the “completion of a Functional Behavior Assessment and Individualized Positive Behavioral Support Plan as the Tier 1 and Tier 2 supports are insufficient at this time to produce a sustained and meaningful reduction in challenging behaviors” ECF No. 5-13, Ex. P-6 at 19. Yet, the December 2020 IEP was still in place and the District did not convene an IEP meeting or create an individualized PBSP with parental input, nor did it conduct an FBA. ECF No. 5-3 ¶ 45; ECF No. 20-1 at 7.

On November 4, 2021, the District received notice from YALE that YALE was terminating its services for K.W., and that his last day would be Friday, November 19, 2021. ECF No 5-3 ¶ 50; ECF No. 21-1 at 1-2. This date was later extended to Wednesday, November 24, 2021. ECF No. 5-3 ¶ 51; ECF No. 20-1 at 8; ECF No 21-1 at 11. The Hearing Officer speculated that YALE would have updated K.W.'s IEP to include an individualized PBSP based on an FBA. ECF No. 53 at 26. However, this assessment was based on the retrospective “word” of YALE employees. Id.

On November 14, 2021, counsel for the District emailed counsel for the Family that the District had made initial referrals to four schools: Devereaux, DCIU-New Pathways, Fairwold, and Royer Greaves School for the Blind. ECF No. 21-1 at 12; ECF No. 20-1 at 8; see also ECF No. 5-10, Ex. SD-12. On or about November 15, 2021, the Family filed a due process complaint challenging K.W.'s removal from YALE for taking place outside of the IEP process. ECF No. 53 ¶ 52; ECF No. 20-1 at 8.

On November 17, 2021, the District informed the Family that it was convening an IEP meeting on Monday, November 22, 2021 with staff from Devereux Brandywine, the new placement the District was already recommending before any parental input or an IEP meeting. ECF No. 20-1 at 8. The District issued Prior Written Notice to the Family of an impending meeting of the IEP team to discuss K.W.'s placement, which the Family “rejected.” ECF No. 5-13, Ex. P6 at 82-85; see also, ECF No. 20-1 at 9. K.W.'s counsel advised the District via email that day that the Family was not available on the day selected by the District due to scheduling conflicts, but that the Family wanted to participate in the IEP meeting. ECF No. 5-3 ¶ 52; ECF No. 20-1 at 9.

Later that month, on November 30, 2021, the parties, including counsel, participated in another IEP meeting. ECF No. 5-3 ¶ 56; ECF No. 20-1 at 10; ECF No. 21-1 at 13. According to the District, its plan was to implement the same IEP K.W. had at YALE, which did not include an individualized PBSP based on an FBA. ECF No. 28 at 20:19-24. On December 15, 2021, the District and Family reached an interim agreement whereby the District would make referrals to five additional schools (selected by the Family). ECF No. 5-14, Ex. P-19; ECF No. 5-3 ¶ 56; ECF No. 21-1 at 14-15. While the agreed-upon referrals were pending, the District would provide reading and math instruction through Neurodiversity Consultants, a private program that helps support individuals with Autism, in K.W.'s home. ECF No. 5-3 ¶ 55; ECF No. 21-1 at 14-15.

In late January 2022 the District began to provide the agreed-upon tutoring, which was “inconsistent” and ended due to “issues with the District providing payment for travel time.” ECF No. 20-1 at 10. On February 28, 2022, K.W.'s Mother was displaced from her residence, so K.W. temporarily moved outside of the district. ECF No. 5-7, N.T. 44-45, 88. By the end of February 2022 K.W. had not been accepted to any of the five schools. ECF No. 5-3 ¶ 54; ECF No. 21-1 at 15; see also, ECF No. 5-11, Ex. SD-42; ECF No. 5-11, Ex. SD-43.

K.W.'s Parents then filed a new administrative due process action against the District, alleging that the District had denied K.W. a FAPE (Free Appropriate Public Education). ECF No. 5-16; see also, ECF No. 21-1 at 15. In April 2022, the District agreed to pay travel time associated with the tutoring services, but no one ever reached out to the Family to restart services. ECF No. 20-1 at 10. Finally, on July 31, 2022, Hearing Officer Skidmore issued her administrative decision. ECF No. 21-1 at 2.

Outcome: 11/02/2023 39 REPLY to Response to Motion re 36 MOTION for Bond approval and stay of judgment filed by UPPER DARBY SCHOOL DISTRICT. (Attachments: # 1 Exhibit A)(SHORE, BETH) (Entered: 11/02/2023)
11/02/2023 40 ORDER THAT UPPER DARBY SCHOOL DISTRICT'S REPLY TO K.W. ET AL'S RESPONSE IN OPPOSITION TO UPPER DARBY SCHOOL DISTRICT'S MOTION FOR APPROVAL OF A SUPERSEDEAS BOND AND STAY OF JUDGMENT UNDER RULE 62 (b); K.W. ET AL SHALL FILE A REPLY ON OR BEFORE 11/3/23 AT NOON; ETC.. SIGNED BY HONORABLE CHAD F. KENNEY ON 11/2/23. 11/2/23 ENTERED AND E-MAILED.(JL) (Entered: 11/02/2023)

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