THE SCHOOL DISTRICT OF PHILADELPHIA v. KIRSCH et al

Filing 30

MEMORANDUM AND ORDER THAT THE CROSS MOTIONS FOR JUDGMENT ON THE ADMINISTRATIVE RECORD ARE GRANTED IN PART AND DENIED IN PART. THE DISTRICT'S MOTION TO DISMISS PARENT'S COUNTERCLAIMS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT IS GRANTED IN PART AND DENIED IN PART. PARENTS' MOTION FOR LEAVE TO AMEND THEIR COUNTERCLAIMS IS DENIED. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 11/30/15. 12/1/15 ENTERED & E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SCHOOL DISTRICT OF
PHILADELPHIA
v.
ROBERT KIRSCH and KAREN MISHER,
Parents of A.K., a minor
SCHOOL DISTRICT OF
PHILADELPHIA
v.
ROBERT KIRSCH and KAREN MISHER,
Parents of N.K., a minor

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CIVIL ACTION
NO. 14-4910

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CIVIL ACTION
NO. 14-4911

ORDER
AND NOW, this 30th day of November, 2015, upon consideration of motions by the
School District of Philadelphia for judgment on the administrative record and on the
counterclaims of parents Robert Kirsh and Karen Misher 1 and parents’ response 2; parents’ crossmotions for judgment on the administrative record 3 and the District’s response 4; motions by the
District to dismiss parents’ counterclaims or, in the alternative, for summary judgment, 5 and
parents’ response; 6 and parents’ motion for leave to amend their counterclaims 7 and the
District’s response 8 and consistent with the accompanying memorandum of law, it is ORDERED
that:
1
2
3
4
5
6
7
8

Filed as Dkt. No. 21 in Civ. A. 14-4910 and Dkt. No. 20 in Civ. A. 14-4911.
Filed as Dkt. No. 26 in Civ. A. 14-4910.
Filed as Dkt. No. 22 in Civ. A. 14-4910 and Dkt. No. 18 in Civ. A. 14-4911.
Filed as Dkt. No. 25 in Civ. A. 14-4910.
Filed as Dkt. No. 20 in Civ. A. 14-4910 and Dkt. No. 19 in Civ. A. 14-4911.
Filed as Dkt. No. 24 in Civ. A. 14-4910.
Filed as Dkt. No. 27 in Civ. A. 14-4910.
Filed as Dkt. No. 28 in Civ. A. 14-4910.

1)

the cross motions for judgment on the administrative record are GRANTED IN
PART and DENIED IN PART as follows:
a)

The District’s motion is GRANTED insofar as the District seeks to affirm
the Hearing Officer’s decisions that it offered A.K. and N.K. a FAPE in
December 2013. The District’s motion is DENIED insofar as the District
seeks to reverse the Hearing Officer’s decisions that the District was
obligated to reimburse parents for the basic costs of tuition and
transportation at the private school for A.K. and N.K. from September
2013 through December 2013;

b)

Parents’ motion is GRANTED insofar as parents seek to affirm the
Hearing Officer’s decisions that the District denied A.K. and N.K. a FAPE
from the start of the 2013-14 school year through December 2013 and
insofar as they seek to affirm the Hearing Officer’s decisions that A Step
Up Academy was an appropriate private placement for A.K. and N.K.
Parents’ motion is DENIED insofar as they seek to reverse the Hearing
Officer’s decisions that the District offered A.K. and N.K. a FAPE in
December 2013; and

c)
2)

The Hearing Officer’s decisions are AFFIRMED.

The District’s motion to dismiss parent’s counterclaims or, in the alternative, for
summary judgment is GRANTED IN PART and DENIED IN PART as follows:
a)

The District’s motion is DENIED to the extent that the District seeks
dismissal of parents’ counterclaims for lack of subject-matter jurisdiction;

b)

The District’s motion is GRANTED to the extent that the District seeks

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judgment in its favor with respect to parents’ claim that the District denied
A.K. and N.K. a FAPE with its offered 2014-15 IEPs; and
c)

The District’s motion is GRANTED to the extent that the District seeks
judgment in its favor with respect to parents’ counterclaims under the
ADA and Section 504 of the Rehabilitation Act.

3)

Parents’ motion for leave to amend their counterclaims is DENIED.

It is FURTHER ORDERED that
1)

The District is obligated to reimburse parents for the basic costs of basic costs of
A.K. and N.K.’s tuition and transportation at A Step Up Academy from
September 2013 to December 2013; and

2)

Pursuant to 20 U.S.C. § 415(j) -- IDEA’s stay put provision -- the District is also
obligated to reimburse parents for the basic costs of A.K. and N.K.’s tuition and
transportation at A Step Up Academy from December 2013 through the
exhaustion of all appeals from the decisions of the Hearing Officer.

Counsel for the parties shall, within thirty days from the date of this Order, confer and
reach a stipulation with respect to:
1)

A proposed form of judgment consistent with this Order and the accompanying
memorandum of law; and

2)

The amounts due under this Order.

If a stipulation cannot be reached, counsel may request a hearing. Any petition for counsel fees
shall be submitted after entry of a final order entering judgment.

s/Thomas N. O’Neill, Jr.
THOMAS N. O’NEILL, JR., J.
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