Memorandum Opinion
Plaintiffs filed this putative class action alleging that the School District of Philadelphia (“School District”) provides inadequate translation and interpretation services to limited English proficient (“LEP”) students with disabilities and their parents. Plaintiffs assert that this failure deprives students and their parents of the ability to meaningfully participate in the Individualized Education Program (“IEP”) process. Plaintiffs contend that the School District’s actions violate the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act, Americans with Disabilities Act, 22 PA §§ Code 14-15, the Equal Education Opportunities Act and Title VI of the Civil Rights Act of 1964.
Presently before me is the School District’s motion to dismiss Plaintiffs’ Complaint. For the following reasons, I will deny the School District’s motion in its entirety.
I. FACTUAL BACKGROUND AND STATUTORY FRAMEWORK
As it is necessary to undеrstand the basis of Plaintiffs’ claims, the relevant portions of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and related regulations are discussed briefly below.
A. IDEA Framework
Under the IDEA, any state that receives federal educational funding must provide children within that state with a “free appropriate public education” (“FAPE”). See 20 U.S.C. §§ 1412(a)(1)(A), 1401(9). A FAPE “consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child ‘to benefit’ from the instruction.” Bd. of Educ. v. Rowley,
An IEP is a “written statement for each child with a disability that is developed, reviewed, and revised” by the student, school district personnel and the student’s parents. 20 U.S.C. § 1414(d)(1)(A)(i), (B); 34 C.F.R. §§ 300.320-324. Parents must be given a copy of the IEP at no cost to the parents. 34 C.F.R. § 300.332(f).
In order to conduct an initial evaluation of a student or begin the provision of special education services, a school must obtain written parental consent. This consent requires that the parent “has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or through another mode of communication.” 34 C.F.R. § 300.9(a),(b) (emphasis added).
The IDEA requires that the parent(s) of a student with a disability be invited to each IEP tеam meeting and afforded an opportunity to participate. 20 U.S.C. § 1414; 34 C.F.R. §§ 300.321, 327, 501(c). To that end, the school is required to notify “parents of the meeting early enough to ensure that they will have an opportunity to attend and inform the parents of the purpose of the meeting and who will be present.” 34 C.F.R. § 300.322(b)(l)-(2).
The IDEA contains procedural safeguards designed, in part, to ensure “that families of such children have meaningful opportunities to participate in the education of their children at school and at home.” 20 U.S.C. § 1400(c)(5)(B). For example, the school “must take whatever action is necessary to ensure that the parent understands the proceedings of the IEP Team meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English.” 34 C.F.R. § 300.322(e).
Additionally, students suspected of having a disability must be evaluated “in the child’s native language or other mode of communication and in the form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is clearly not feasible to so provide or administer.” 34 C.F.R. § 300.324(a)(2)(ii); see 20 U.S.C. § 1414(b)(3)(A) (emphasis added).
The IDEA also requires that parents of students with disabilities receive prior written notice before a school proposes to initiate or change or refuses to initiate or change “the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to the child.” 20 U.S.C. § 1415(b)(3). The IDEA mandates that schools develop “[procedures designed to ensure that [this notice] is in the native language of the parents, unless it clearly is not feasible to do so.” Id. § 1415(b)(4). In Pennsylvania, the form used to provide prior written notice is called a Notice of Recommended Educational Placement (“NOREP”).
B. Factual Allegations
The following factual allegations are taken from the Complaint:
— T.R. and A.G. are students in the School District. Both students have learning disabilities and are limited English proficient (“LEP”). T.R.’smother, Barbara Galarza, and A.G.’s Guardian, Margarita Peralta, are also both LEP. Spanish is the native language of the four named Plaintiffs. (Compl. ¶¶ 2,16-19.) 2
— As of November 2013, the School District reported that there were approximately 25,900 families whose primary home language was not English and that approximately 19,-760 families had requested documents in a language other than English. During the same time period, the School District’s records indicate that 1,887 students with IEPs had a home language other than English. (Compl. ¶¶ 42, 51-52.)
— During the 2012-2013 school year, only 487 special education documents of any type were orally interpreted. The School District’s interpretation services are provided primarily by approximately 55 Bilingual Counseling Assistants. These individuals, however, do not provide translation services. (Compl. ¶ 53.)
— During the 2012-2013 school year, the School District employed an outside contractor that may have translated some special education dоcuments. However, as of the 2013-2014 school year, the School District no longer employed this outside contractor. Additionally, the Translation and Interpretation Center, an internal department within the School District, never translated an IEP in its entirety.3 (Compl. ¶¶ 51-54.)
— Despite knowledge of the foregoing, the School District has adopted a policy in which it fails to timely and completely translate IEPs, NO-REPs, evaluations, re-evaluations, progress reports, assessments and other IEP process documents for LEP students with disabilities and their parents. The School District also has failed to provide translated evaluations and re-evaluations to parents at least ten school days pri- or to IEP team meetings. (Compl. ¶¶ 55-56.)
— Although the School District has attempted to provide some interpretation services during IEP team meetings, those efforts have been sporadic and incomplete. Additionally, the School District has failed to conduct evaluations of LEP students in their native language. (Compl. ¶ 57.)
In light of the above allegations, Plaintiffs urge that LEP parents have been denied “their right to informed consent, notice, decision making regarding program and placement, and meaningful participation in the IEP process, including IEP team meetings.” Plaintiffs further urge that LEP students have been denied “equal educational opportunities to participate fully and equally in the IEP process and in the District’s educational programs” as well as the ability to “receive adequate IEP-related services” and a FAPE. (Compl. ¶¶ 57-59.)
C. Claims
Plaintiffs, on behalf of themselves and other similarly situated students and parents, bring the following claims: (1) Fail
Plaintiffs seek to represent two classes composed of:
A. All parents as defined by 34 C.F.R. § 300.30(a) with limited English proficiency and whose children now or in the future are enrolled in the School District of Philadelphia and identified or eligible to be identified as children with a disability within the meaning of the IDEA and/or Section 504 and related state laws (“Parent Class”); and
B. All students who now or in the future are enrolled in the School District of Philadelphia in grades kindergarten through the age of legal entitlement who are identified or eligible to be identified as children with a disability within the meaning of the IDEA and/or Section 504 and relаted state laws, whether or not they are classified as English language learners and whose parents as defined by 34 C.F.R. § 300.30(a) are persons with limited English proficiency (“Student Class”).
(Compl. ¶ 41.)
D. Statement of Interest
The United States, through the Department of Justice, has submitted a statement of interest.
H. LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b)(1) permits a party to bring a motion to dismiss for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). The burden of establishing federal jurisdiction rests with the party asserting its existence. DaimlerChrysler Corp. v. Cuno, 547 U.S.
A facial attack, as the adjective indicates, is an argument that considers a claim on its face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court. Id. at 358. When evaluating a facial attack, like the one before me, courts apply the same standard of review used when “considering a motion to dismiss under Rule 12(b)(6), i.e., construing the alleged facts in favor of the non-moving party.” Aichele,
To survive a motion to dismiss pursuant to Federal Rule of Civil Procеdure 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ ” Ashcroft v. Iqbal,
III. DISCUSSION
A. IDEA
The School District has moved to dismiss Plaintiffs’ IDEA claims on the grounds that the Court lacks subject matter jurisdiction over the putative class members because they failed to exhaust their administrative remedies. Alternatively, the School District argues that, even if the Court has jurisdiction, Plaintiffs have failed to allege facts that give rise to a plausible claim for systemic relief.
1. Subject Matter Jurisdiction/Exhaustion of Administrative Remedies
Under the IDEA, “any aggrieved party who received an adverse administrative determination regarding his or her complaints with respect to IDEA compliance may bring an action in a ‘[sjtate court of competent jurisdiction or in a district court of the United States, without regard to the amount in controversy,’ 20 U.S.C. § 1415(i)(2)(A), within 90 days of the final administrative decision, 20 U.S.C. § 1415(i)(2)(B).” Blunt v. Lower Merion Sch. Dist.,
A plaintiff, however, can bypass the IDEA’S administrative process (1) “where exhaustion would be futile or inadequate;” (2) “where the issue presented is purely a legal question;” (3) “where the administrative agency cannot grant relief;” or (4) “when exhaustion would work severe or irreparable harm upon a litigant.” Beth
The School District argues that I do not have subject matter jurisdiction over the putative class members because they have failed to exhaust their administrative remedies as required by the IDEA. The School District urges that the putative class members should not be excused from the pursuit of administrative remedies because the Complaint does not adequately allege a systemic legal deficiency.
The School District contends that Plaintiffs have failed to allege that the District adhered to a рolicy or system-wide practice that violates the IDEA. According to the School District, the vast majority of allegations concern the two named student Plaintiffs and the remaining allegations are conclusory. The School District urges that, rather than identifying “any affirmative policy adopted by the School District, the Plaintiffs instead complain of the School District’s refusal to adopt policies advocated by Plaintiffs.” (Def.’s Br. p.16.)
In response, Plaintiffs point to the following paragraphs of the Complaint, which they assert adequately allege a systemic violation:
Plaintiffs T.R. and A.G. and their guardians seek common injunctive relief to have the District adopt and implement a new written special education plan and policy to (1) provide legally mandated translation and interpretation services to members of the Parent Class and the Student Class, including the timely and complete translation of IEP process documents; and (2) require evaluations to be conducted in a child’s native language unless it is clearly not feasible to do so. Despite these numbers and its knowledge of the problem, the District has adopted a policy in which it does not timely and completely translate IEPs, NOREPs, evaluations, re-evaluations, progress reports, assessments, and other IEP process documents outlining students’ procedural and educational rightsinto the native languages spoken and/or read by LEP students and their parents. The District has been and continues to be aware that LEP parents and LEP students need timely and complete translations of regular education forms that pertain to their children’s educational placement and needs, such as home instruction forms, ESOL placement letters, and progress reports. Instead, the District has adopted a policy and procedures which are ineffective to provide adequate support and which it knows does not fulfill its obligations or fails to meet the needs of Parent Plaintiffs, members of the Parent Class, Student Plaintiffs, and members of the Student Class who are LEP.
(Compl. ¶¶ 45, 55, 99.)
After review of the Complaint, I conclude that it sufficiently alleges a systemic legal deficiency—namely, the insufficient and untimely provision of interpretation and translation serviсes. The Complaint contains supporting allegations regarding the supposedly objectionable practices the School District engages in pursuant to this policy. Plaintiffs’ systemic legal deficiency theory does not amount to a challenge to the individual determinations the School District reached concerning the two named student Plaintiffs. Rather, as alleged, Plaintiffs have identified a systemic practice by the School District that interferes with the ability of LEP students with disabilities to receive a FAPE and/or the ability of LEP parents to meaningfully participate in the planning and decision-making embodied in the IEP process.
Additionally, even if the School District is correct that pleading a policy is necessary, Plaintiffs have аdequately alleged that the School District adhered to a system-wide policy of inaction. Contrary to the School District’s position, as a general principle, a policy of inaction is nonetheless a policy. See, e.g., City of Canton, Ohio v. Harris,
It is certainly possible that a developed record may not establish Plaintiffs’ systemic legal deficiency theory. However, at this stage, the Complaint’s allegations must be accepted as true and, viewed in this light, there are adequate allegations of a systemic violation of the IDEA. As such, the members of the Parent and Student Class will be excused from exhausting their administrative remedies.
2. Failure to State a Claim for Systemic Relief
Next, the School District argues that, even if sufficiently alleged, Plaintiffs’ systemic deficiency theory and corresponding requested relief are contrary to the IDEA and its regulatory framework.
In support, the School District points to guidelines promulgated by the Department of Justice, which instruct that the “question of whether to provide written translations of documents should be. determined on a case by case basis.” (Def.’s Br. p.17 (citing DOJ Guidance, Fed. Rеg. Vol. 67, No. 117 at 41463.))
In response, Plaintiffs point to provisions of the IDEA which require the School District to systematically provide certain documents, such as the ,IEP and notice of changes thereto, in writing. See 20 U.S.C. § 1415(d)(l)(A)(i); 34 C.F.R. 300.320, 300.323 (IEP); 20 U.S.C. § 1415(b)(3), (c) (prior written notice of decision to initiate or change a program or refusal to do so must be in writing). Plaintiffs emphasize that the notice required by § 1415(b)(3) must be provided in .the “native language of the parents, unless it clearly is not feasible to do so.” 20 U.S.C. § 1415(b)(4). . ,
■ According to Plaintiffs, the only discretionary component recognized by the IDEA is whether translation is feasible (i.e. whether the parent’s language is not a written language). Alternatively, Plaintiffs argue that even if the School District were correct that it has some discretion in deciding which IEP documents should be translated on a ■ case-by-case basis, the Complaint alleges that the School District is not exercising any discretion in light of the fact that it has not fully translated an IEP for a single LEP parent. ■
For several reasons, I conclude that the School District’s reliance' on the DOJ Guidelines and argument that the systemic deficiencies alleged are contrary to the IDEA is unavailing. First, the guidelines upon which the School District relies interpret Title VI, not the IDEA and it is the Department ■ of Education, not the DOJ that is tasked with promulgating regulations to implement the IDEA. See § 20 U.S.C. § 1406. As such, the DOJ Guidelines are not entitled to deference in the IDEA context.
Second, even if the Sсhool District is correct that the decision as to which documents to translate must be made on a ease-by-case basis, nothing in the Complaint suggests that the - School District is
Lastly, the IDEA does include a general mandate that certain documents be provided to LEP parents in writing and in their native language, and also that evaluations be conducted in the student’s native language. See, e.g., 20 U.S.C. § 1415(b)(3)— (4), 34 C.F.R. § 300.324(a)(2)(ii).
The Complaint adequately alleges that the School District has adopted a policy in contravention of these statutory and regulatory requirements. At this stage, I conclude that systemic failures and corresponding relief are sufficiently alleged. As such, the School District’s motion to dismiss Plaintiffs’ IDEA claim for failure to state a claim will be denied.
B. Rehabilitation Act, the ADA and 22 Pa. Code § 15
The School District also argues that the claims raised under the Rehabilitation Act, the ADA and 22 Pa. Code § 15 should be dismissed because the Complaint does not allege that the School District discriminated against the Student Plaintiffs on the basis of disability.
Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability in the United States,... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
In relevant part, the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
To state a claim under either the ADA or Section 504 of the RA, plaintiffs must allege that: “(1) they are handicapped or disabled as defined under the statutes; (2) they are otherwise qualified to participate in the program at issue; and (3) they were precluded from participating in a program or receiving a service or benefit because of their disability.” CG v. Pennsylvania Dep’t of Eduс.,
The School District urges that the Complaint is devoid of allegations that the School District discriminated against the Student Plaintiffs on the basis of disability. As such, the School District argues that both the Section 504 and ADA claims must be dismissed.
Plaintiffs respond that the Complaint adequately alleges that the School District’s failure to provide adequate translation and interpretation services deprives the Student Plaintiffs of educational services necessary for them to receive a FAPE. Plaintiffs argue that precedent from the United States Court of Appeals for the Third Circuit supports the proposition that the failure to provide students with disabilities a FAPE genеrally violates the ADA and Section 504 as well as the IDEA.
I conclude that, at this stage, the allegations that the School District failed to provide the Student Plaintiffs with a FAPE are sufficient to support their ADA and Section 504 claims. The Third Circuit has held that the “[fjailure to provide a FAPE violates Part B of the IDEA and generally violates the ADA and RA because it deprives disabled students of a benefit that non-disabled students receive simply by attending school in the normal course—a free, appropriate public education.” CG,
The School District also asserts that the Student Plaintiffs’ Section 504 claim fails because the Complaint does not allege that disability was the “sole cause of the alleged discrimination.” (Def.’s Mot. p. 22.) According to the School District, the Complaint alleges that the supposed discrimination was based on limited English proficiency not disability.
However, as discussed above, the denial of a FAPE generally violates Section 504 “because it deprives disabled students of a benefit that non-disabled students receive simply by attending school in the normal course—a free, appropriate public education.” CG,
C. Equal Education Opportunity Act and Title VI
The School District also seeks dismissal of Plaintiffs’ claims made under
In relevant part, the EEOA provides that “[n]o State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by.. .the failurе by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.” 20 U.S.C. § 1703(f).
To state a plausible claim under the EEOA, “Plaintiffs must establish: (1) language barriers; (2) defendant’s failure to take appropriate action to overcome these barriers; and (3) a resulting impediment to students’ equal participation in instructional program.” CG v. Pa. Dep’t of Educ.,
Under Title VI of the Civil Rights Act, “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d.
The School District urges that Plaintiffs have failed to state a claim under the EEOA and Title VI because the Complaint does not adequately allege discrimination based on Plaintiffs’ national origin.
In Mumid, the United States Court of Appeals for the Eighth Circuit held that “[w]hile Title VI prohibits discrimination on the basis of national origin, language and national origin are nоt interchangeable... .A policy that treats students with limited English proficiency differently than other students in the district does not facially discriminate based on national origin.”
Plaintiffs respond that the School District ignores the “well-recognized interrelationship between limited English proficiency and national origin.” (Pls.’ Resp. p. 21.) As an example in the EEOA context, Plaintiffs cite to CG v. Pennsylvania Department of Education,
In their statement of interest, the United States notes that, consistent with Lau, numerous federal courts have found that language based discrimination constitutes a form of national origin discrimination prohibited by Title VI. See, e.g., United States v. Maricopa Cty., Ariz.,
The United States also points to federal regulations and guidance which require federal funding recipients to take reasonable steps to communicate with LEP persons in languages other than English to ensure meaningful access under Title VI. (See Statement of Interest pp. 8-10.) The United States asserts and the School District concedes that the DOJ’s guidance on a recipient’s obligations to LEP individuals are entitled to deference in the Title VI context.
I conclude that the Supreme Court’s pronouncement in Lau instructs that language based discrimination can constitute an actionable form of national origin discrimination. The numerous cases cited by the United States and the DOJ’s guidance, read in conjunction with Lau, foreclose dismissal of Plaintiffs’ EEOA and Title VI claims.
Neither Mumid nor K.A.B. mention, let alone distinguish, the Supreme Court’s holding in Lau. See United States v. Maricopa County,
For these reasons, I conclude that the School District’s reliance on Mumid and K.A.B. is unpersuasive. At this stage, Plaintiffs’ allegations are sufficient to state a claim under the EEOA and Title VI. Therefore, the School District’s motion to dismiss Plaintiffs’ EEOA and Title VI claims will be denied.
IV. CONCLUSION
For the foregoing reasons, the School District’s motion to dismiss will be denied. An appropriate Order follows.
ORDER
AND NOW, this 30th day of November, 2016, upon consideration of “Defendant’s Motion to Dismiss Plaintiffs’ Complaint” (Doc. No. 14), the response and reply thereto, following oral argument, and in
Notes
. When deciding a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court must assume the veracity of all well-pleaded facts found in the complaint. Ashcroft v. Iqbal,
. The School District has not challenged the sufficiency of the Complaint’s allegations as they pertain to the individual claims brought by the named Plaintiffs, As such, I have not set forth those allegations.
. The School District disputes the veracity of this allegation. (Def.’s Reply p.3 n.2.) However, at this stage of the proceedings, I must accept this allegation as true,
, The Complaint refers to the following documents as "regular education forms:” report cards, homebound forms, pre-English Language class placement letters, and progress reports. (Compl. 11 6.)
. The statement of interest was filed pursuant to 28 U.S.C. § 517 which provides: "[t]he Solicitor General, or any officer of tire Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States” and 20 U.S.C. § 1709 which provides that the Attorney General may intervenе in an action filed by an individual to enforce the EEOA,
. The School District urges that the systemic deficiency theory on which Plaintiffs rely is analogous to a theory rejected in Mrs. M v. Bridgeport Bd. of Educ.,
In Mrs. M, the plaintiffs alleged that the school system had engaged in a "pattern and practice of illegally over-identifying minority school children as mentally retarded.” Id. at 130-31. The court declined to excuse the putative class members from exhausting their administrative remedies because these claims required an evaluation of each individual child and, thereforе, administrative proceedings were necessary to develop the factual record on those issues. Id. at 133-34. In reaching this conclusion, the court distinguished the plaintiffs' over-identification claims from those at issue in Mrs. W. v. Tirozzi,
Viewed in the light most favorable to Plaintiffs, the allegations in the Complaint beforе me are more akin to Mrs. W than Mrs. M. Here, Plaintiffs challenge a policy of general applicability, which they have at least plausibly alleged is incapable of being remedied through the available administrative process.
. As noted below, the corresponding system wide relief is also adequately alleged. Along those lines, the Hearing Officer who conducted A.G.’s administrative proceedings concluded that he had no authority to find that the School District’s alleged "policy or practice results in violations per se, or results in violations for all similarly situated students or parents." (Pis,’ Resp. p. 5.) The Hearing Officer’s finding provides additional support for my conclusion that the administrative process is an inadequate mechanism for resolving the supposedly systemic deficiencies Plaintiffs have identified. See Komninos,
. The School District offered several additional arguments in support of their motion to dismiss Plaintiffs' IDEA claim. (See, e.g,, Def.’s Mot. p. 19-21) (urging dismissal on the grounds that the requested relief would
. In their initial motion, the School District urged that the DOJ Guidelines should be afforded deference. (Def.'s Mot. p. 17 n,6.) However, in its reply, the School District reversed course and urged that the guidelines are not entitled to any deference when interpreting the IDEA. (Def.'s Reply p, 10.)
. Chapter 15 of the Pennsylvania Code "implements the statutory and regulatory requirements of Section 504.” 22 Pa. Code § 15.1. As Chapter 15 does not preempt or expand the rights and liabilities under Section 504 of the RA, courts treat Chapter 15 as coextensive with Section 504 of the RA. See, e.g., A.W. ex rel. H.W. v. Middletown Area Sch. Dist.,
. The Third Circuit has "explained that ‘the substantive standards for determining liability under the Rehabilitation Act and the ADA are the same.’ ” Blunt,
. The School District offers nearly identical arguments in support of its motions to dismiss Plaintiffs' EEOA and Title VI claims. As such, I have considered the arguments togeth-
. I note that the portion of Mumid upon which the School District relies analyzes Title VI not the EEOA.