K.K. et al v. PITTSBURGH PUBLIC SCHOOLS

Filing 50

MEMORANDUM OPINION RE: 28 30 Parties' Cross Motions for Summary Judgment. An appropriate Order follows. Signed by Judge Arthur J. Schwab on 10/16/2013. (lcb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
K.K.
Plaintiff,

12cv1603
ELECTRONICALLY FILED

v.
PITTSBURGH CITY SCHOOLS,
Defendant.

MEMORANDUM OF LAW RE: PARTIES’ CROSS-MOTIONS FOR SUMMARY
JUDGMENT (DOC. NOS. 28 AND 30)
I.

Introduction

This case centers on alleged disability-based discrimination by the Pittsburgh City
Schools against a former student of the Center for Advanced Studies (“CAS”) at Allderdice High
School. Doc. No. 1. Plaintiff (“K.K.”), in her two Count Complaint, has alleged substantive and
procedural violations of Section 504 of the Rehabilitation Act of 1973 (“Section 504”). Doc. No.
1, 17-19. Presently before this Court are Cross-Motions for Summary Judgment filed by
Plaintiff and Defendant Pittsburgh City Schools (“School District”). Doc. Nos. 28 and 30.
II.

Statement of Facts

K.K. is a 2010 graduate of the School District of Pittsburgh. Doc. No. 41, ¶ D1. K.K.
was born on January 22, 1992, and is twenty-one (21) years old. Id. at ¶ D2. She attended
Allderdice High School and participated in the school’s CAS gifted program, which included a
rigorous academic course load. Id. at ¶¶ D6-7, P2.
K.K. experienced severe vomiting and flu symptoms in the spring of her Junior year
(2009). Id. at ¶ D8. She was diagnosed with gastroparesis. Id. at ¶ P3. She was hospitalized

intermittently and missed school as a result. Id. at ¶ D10. The School District provided
homebound instruction to K.K. during the spring of her Junior year and through the rest of that
school year. Id. at ¶ D11, P4. Homebound instruction was provided by Mr. Hai Le, who
continued to work with K.K. as her privately paid private tutor throughout the summer. Id. at ¶¶
D12-13. With this help, K.K. completed her 11th grade coursework except for a Chemistry
course and a Japanese 3 course. Id. at ¶¶ D14, P4, P9.
K.K. began her Senior year generally symptom-free. Id. at ¶ D15. K.K.’s senior year
course load was “unusually” rigorous, included several non-mandatory courses, and did not
afford her a lunch period. Id. at ¶¶ D17-18. K.K.’s CAS advisor and her academic counselor
met with K.K. and her parents to express concern over the weight of her academic schedule
given the unusual rigor and the two incomplete courses from 11th grade. Id. at ¶ D19. K.K.
dropped two courses and dropped Calculus BC in favor of a less rigorous Calculus AB. Id. at ¶¶
D20-21.
In early 2009, K.K.’s parents informed the high school that her symptoms had returned.
Id. at ¶ D22. K.K.’s parents were initially hopeful that K.K.’s illness would be temporary. Id. at
¶ D23. On several occasions, the School District suggested that her parents apply for
homebound instruction for K.K.. Id. at ¶ D24. K.K.’s parents and school personnel met on
October 28, 2009, to discuss K.K.’s recent absences and services available to help her meet her
academic needs. Id. at ¶ D25. The high school offered school-based Student Assistance
Program (“SAP”) services which could have included mental health services or basic counseling.
Id. at ¶ D26. The parents declined due to K.K.’s private counseling. Id. at ¶ D27. The school
recommended that K.K. begin homebound instruction again. Id. at ¶ D28. Homebound
instruction was approved for K.K. beginning on November 3, 2009. Id. at ¶ D29. K.K.’s parents

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requested Mr. Le, but he was unavailable due to his full schedule. Id. at ¶ D30. Allderdice
teacher Kathy Hoelzle was assigned as K.K.’s homebound instructor. Id.
K.K. was found eligible as a qualified student with a disability protected under Section
504 and Chapter 15 on November 10, 2009. Id. at ¶ D32. A 504 team was formed that
considered information from K.K.’s pediatrician and gastroenterologist to formulate appropriate
Section 504 plan accommodations. Id. at ¶ D33. K.K.’s parents requested several
accommodations be considered for the 504 plan including more than two and a half hours of
homebound instruction per week and a single point of contact for coordinating her 504 services
and monitoring her academic progress. Id. at ¶ P11. K.K.’s pediatrician advised that “[a] strict
homebound schedule will not promote [K.K.’s] well-being and is not in her best interest.” Id. at
¶ D36. The November 10, 2009, plan included the following: (1) K.K. was to received
homebound instruction through December 1st with renewals as necessary; (2) K.K. would be
given the option to attend school when her health permitted her to do so, and would notify the
school counselor if/when she planned to be in attendance; (3) 50% extended time on
assignments; and (4) access to the nurse’s office or the CAS office in the event of a medical
emergency. Id. at ¶¶ D34, P14. K.K.’s teachers were provided with the plan on November 13,
2009. Id. at ¶ D35. K.K.’s parents signed the plan on November 17, 2009, and requested an
conference to discuss concerns, which the School District thought centered on the details of
homebound instruction. Id. at ¶¶ D37-38, P15.
K.K. participated in the plan’s modified homebound schedule, which permitted her to
attend school when her health permitted. Id. at ¶ D40. She spent much of the time between
November 10, 2009 and the end of January 2010 absent from school. Id. By mid-November, the

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School District learned that K.K.’s parents had retained legal counsel and the School District
then involved its own legal counsel. Id. at ¶ D39.
Ms. Hoelzle instructed K.K. until the first week of December when she communicated to
K.K.’s Parents and the School District that she would not be able to provide further homebound
instruction. Id. at ¶¶ D41, P18. Mr. Le was instructed by a District Assistant Superintendent to
begin instructing K.K. on December 11, 2009. Id. at ¶ D43. Mr. Le was qualified to provide
direct instruction in Calculus, English, and History. Id. at ¶¶ D47, P25. He primarily facilitated
work for K.K. in Physics, Chinese 4, and Japanese 4. Id at ¶ D47.
The School District customarily provides 2.5 hours of homebound instruction per week
for students who are temporarily unable to attend school. Id. at ¶ D46. This procedure was
communicated to K.K.’s parents. Id.
On December 14, 2009, District legal counsel received correspondence that K.K. had
been diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood. Id. at ¶
D50, P25. The School District then issued a Permission to Evaluate for eligibility under the
Individuals with Disabilities Education Act to K.K.’s Parents. Id. at ¶ D52. Permission was not
granted. Id. As of mid-December 2009, K.K. and her parents firmly believed that K.K.’s
teachers demonstrated professionalism and a high level of commitment to her education. Id. at ¶
D53.
On January 13, 2010, K.K.’s 504 team, with counsel for both parties and the high
school’s Social Worker present, reconvened to revise her accommodation plan. Id. at ¶¶ D54,
P28. The January 13, 2010, 504 plan revision included the following: (1) homebound instruction
through the end of January 2010 to allow for transition back to the school environment; (2)
modification of the School District’s attendance policy so that K.K. was not penalized for

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medical absences; (3) permission to eat and drink throughout the school day; (d) permission to
enter and exit the school building as needed, with the requirement that K.K. sign in and out at the
school’s front door; (e) K.K. was not required to attend homeroom, but would rather proceed
directly to her first period class; (f) modification of K.K.’s schedule to allow for free periods and
one class period of direct instruction per week in English, Calculus, Japanese, Chinese, and
Physics; (g) assignment to her Physics’ instructor’s study hall; (h) the school principal or
designee would assist teachers in providing make-up work that is not duplicative; (i) K.K. would
not be penalized on tests or assignments regarding information or concepts not previously taught;
(j) in the case of a medical relapse, the School District would assign a single point of contact for
K.K. and this individual would be responsible for: coordinating makeup assignments; collecting
study guides, lesson plans and notes for current classes; corresponding with K.K.’s parents to
ensure continued progress with coursework; and coordinating homebound services; and (k)
access to the nurse’s office or the CAS office in the case of a medical emergency. Id. at ¶¶ D55,
P29. K.K.’s academic counselor, Nancy Wallach was responsible for monitoring the revised 504
plan. Id. at ¶¶ D69, P28. The plan included a date for review or reassessment of March 30,
2010. Id. at ¶ 30.
K.K’s concerns with anxiety were also discussed, including a discussion of support
available that could assist K.K.. Id. at ¶¶ D56-58. K.K. met with the School Social Worker one
time to discuss stress and anxiety. Id. at ¶ D58. K.K. and her parents did not complete release
forms which were provided to them that would have enabled the School District to communicate
with K.K.’s private therapist. Id. at ¶ D59.
The Allderdice Principal devised a weekly schedule including K.K.’s direct instruction
periods and met with teachers to communicate the terms of the revised 504 plan. Id. at ¶ D60.

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Each teacher agreed to meet with K.K. and provide direct instruction during their preparation
period. Id. at ¶ D61. K.K.’s outstanding first semester coursework was collected by the
Principal and hand delivered to her home. Id. at ¶ D62.
As of January 22, 2010, K.K. was symptom free and she received a good report from her
psychologist. Id. at ¶ D63. An update was sent to the Coordinator of Health Services in the
District’s Central Office and Mr. Le. Id. at ¶ D64. K.K. ended homebound instruction on
January 29, 2010, and she returned to school full time in early February 2010. Id. at ¶¶ D65-66.
On her first day back at school, K.K. learned that her physics teacher expected her to
immediately take the previous semester’s final. Id. at ¶ P31. K.K. became overwhelmed with
the amount of work she had to make up and her demanding school schedule and sought refuge in
the school library. Id. at ¶¶ D72, P34. K.K. told the library attendant that she was a partial
homebound student and did not need to attend classes. Id. at ¶ D73. K.K. was repeatedly absent
from February through June 2010. Id. at ¶ D74. Her teachers permitted her to come and go
according to her wishes in class and direct instruction sessions. Id. at ¶ D76. When she was
absent, her teachers believed that it was because of her medical condition. Id. at ¶ D77.
During K.K.’s senior year the following accommodations were made: (1) teachers
reduced the coursework K.K. was expected to complete compared with her nondisabled peers;
(2) K.K. was permitted to use notes and study guides on closed-book exams; (3) K.K. was
permitted to take selected English exams orally rather than in written format; (4) K.K. received
extensions on assignments; (5) K.K.’s English exam was graded without a late penalty even
though school had been recessed for several weeks; and (6) K.K.’s attorney was able to review
and edit draft college admission letters sent by the School District on K.K.’s behalf and review

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her final transcript before it was sent, which other students were not permitted to do. Id. at ¶¶
D87-92, 100-101.
On April 6, 2010, the School District’s counsel communicated to counsel for K.K.’s
parents that it had concerns about K.K.’s class absences. Id. at ¶ D78. On April 21, 2010, a
meeting was convened by K.K.’s parents with her 504 team. Id. at ¶ P34. K.K. admitted to her
parents and to her English and Calculus teachers that she was retreating to the library when she
was not in class or a one-on-one direct instruction. Id. at ¶ D79.
In May 2010, K.K.’s parents and school staff learned that K.K. was retreating to the
library for all of her classes. Id. at ¶ D82. At the end of the month, the School District was
informed by K.K.’s legal counsel that K.K. had experienced a medical relapse and was unable to
attend class. Id. at ¶ D83. As a result, the School District implemented provisions of the January
504 plan including appointment of a school contact person and providing an application for
homebound services. Id. at ¶ D84. K.K.’s chemistry teacher offered to privately instruct K.K. to
lessen her anxiety. Id. at ¶ D85. K.K. attended one of the two scheduled sessions. Id.
K.K. completed the academic year at home with the assistance of private tutors. Id. at ¶
D86. K.K. and her parents elected not to proceed with homebound instruction. Id. K.K. had 36
unexcused and 39 excused absences during her senior year. Id. at ¶ D102. Under the School
District’s absence policy, these absences could have resulted in K.K. failing all of her classes.
Id. at ¶ D103. K.K. was not penalized. Id. K.K. was ranked 21st in her graduating class of 336
students. Id. at ¶ D95. K.K. was accepted to and matriculated into John Hopkins University in
the fall of 2010. Id. at ¶ D104.
On November 21, 2011, K.K.’s parents filed an administrative due process complaint
with the Pennsylvania Office for Dispute Resolution (“ODR”). Id. at ¶ D106. K.K.’s parents

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alleged that K.K. had been discriminated against with deliberate indifference in violation of
Section 504. Id. at ¶ D107. The Special Education Hearing Officer issued a decision in favor of
the District. Id. at ¶¶ D109-110. K.K. and her parents appealed this decision by filing the
present case before this Court. Id. at ¶ D111.
III.

Standard of Review

Summary judgment may be granted if, drawing all inferences in favor of the non-moving
party, “the movant shows that there is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).
A fact is “material” if proof of its existence or non-existence might affect the outcome of
the suit under applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, (1986). “Facts
that could alter the outcome are material facts.” Charlton v. Paramus Bd. of Educ., 25 F.3d 194,
197 (3d Cir.1994). Disputes must be both (1) material, meaning concerning facts that will affect
the outcome of the issue under substantive law, and (2) genuine, meaning the evidence must be
such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S.
at 248.
A party moving for summary judgment has the initial burden of supporting its assertion
that fact(s) cannot be genuinely disputed by citing to particular parts of materials in the record –
i.e., depositions, documents, affidavits, stipulations, or other materials – or by showing that: (1)
the materials cited by the non-moving party do not establish the presence of a genuine dispute, or
(2) that the non-moving party cannot produce admissible evidence to support its fact(s).
Fed.R.Civ.P. 56(c)(1).
Conversely, in order to defeat a motion for summary judgment, the non-moving party
must support its assertion that fact(s) are genuinely disputed by citing to particular parts of

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materials in the record, or by showing that: (1) the materials cited by the moving party do not
establish the absence of a genuine dispute, or (2) the moving party cannot produce admissible
evidence to support its fact(s). Id.
In reviewing a motion for summary judgment, the Court “does not make credibility
determinations and must view facts and inferences in the light most favorable to the party
opposing the motion.” Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d
Cir.1995).
IV.

Discussion

Plaintiff’s Complaint contains the following causes of action: (1) procedural violations of
Section 504, and (2) substantive violations of Section 504. Doc. No. 1.
Section 504 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). To prevail on a claim
under Section 504 in a public school context, a plaintiff must show that he or she: “(1) has a
disability; (2) was otherwise qualified to participate in a school program; and (3) was denied the
benefits of the program or was otherwise subject to discrimination because of [his or her]
disability.” Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 189
(3d Cir. 2009). The parties only dispute whether the third element is satisfied. Id. Additionally,
Defendant contends that there is no evidence in the record establishing the necessary causation
element to prove that Plaintiff is entitled to damages. Doc. No. 32 at 8–11.
Where a plaintiff seeks compensatory damages under Section 504, he or she must show
intentional discrimination on the part of the defendant rising to a level of “deliberate

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indifference.” S.H. ex rel Durrell v. Lower Merion School District, --- F.3d ---, slip op. at 31–32
(Sept. 5, 2013). In order to meet this standard, Plaintiff must show that the School District: (1)
knew that a federally protected right was substantially likely to be violated, and (2) failed to act
despite that knowledge. Id. at *36 (citing Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1139 (9th
Cir. 2001)). Plaintiff is not required to show that Defendant had “personal ill will or animosity
toward” Plaintiff, but still must show that the discrimination resulted from a “deliberate choice,
rather than negligence or bureaucratic inaction.” Id. at *30 (internal quotations omitted).
Plaintiff cites to several alleged failures in K.K.’s 504 plans and their implementation to
support her contention that Defendant acted with deliberate indifference which, in essence,
center on: insufficient amounts of weekly homebound instruction; issues with obtaining a
homebound instructor who was qualified to assist K.K. with her rigorous course load; failure to
hold requested meetings with K.K.’s parents or hold follow-up review of 504 plans; and failing
to supervise and properly implement K.K.’s 504 plans. Doc. No. 41. The Court must determine
if these facts would create “an inference that the school district acted with deliberate indifference
toward [K.K.] because of her disability.” Chambers v. Sch. Dist. of Philadelphia Bd. of Educ.,
827 F.Supp. 2d 409, 426 (E.D. Pa. 2011). Both parties concede that Plaintiff must demonstrate
that the School District’s conduct was more than negligent and involved an element of
deliberateness. Chambers, 827 F.Supp.2d at 426, Doc. No. 29, 6, Doc. No. 43, 4.
The material facts of this case do not demonstrate that the School District acted with
deliberate indifference towards K.K.. When viewed in the light most favorable to Plaintiff, the
facts may reflect an imperfect approach to a student that struggled to finish her high school
career because of health problems. However, evidence has not been presented to support an
inference that the School District had knowledge that K.K.’s federally protected rights were

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substantially likely to be violated and they failed to act. Although evidence arguably has been
presented that the School District may not have sufficiently supervised K.K.’s 504 plan or
responded to every one of K.K.’s parents’ concerns, unlike Chambers v. Sch. Dist. of
Philadelphia Bd. of Educ., - - - Fed. Appx. - - - - 2013 WL 5225182, * 4-5 (3d Cir. Sept. 17,
2013), there is no evidence of “serious and repeated” failures on the School District’s part. At
most, Plaintiff has demonstrated an imperfect plan imperfectly implemented. There is no
evidence that School District was on notice that K.K.’s rights were ever in jeopardy.
Despite Plaintiff’s contentions otherwise, there is no evidence that Defendant
“intentionally refused to take any remedial or corrective action to remedy the problem.” Scaggs
v. New York Dept. of Educ., 2007 WL 1456221, at * 16 (E.D.N.Y. 2007)(cited by Plaintiff, Doc.
No. 29, 7). Isolated failures to respond promptly to parental concerns, hold a follow-up meeting,
etc., are not more than negligence. The evidence as a whole demonstrates that the School
District considered K.K.’s and her parents’ concerns in formulating plans along with that of
professionals involved (K.K.’s physicians, the school social worker, etc.). This Court in no way
seeks to minimize the stress K.K. and her parents undoubtedly experienced. However, like all
human beings, school counselors, administrators, and other education professionals are not
infallible.
The School District took reasonable actions to assist K.K., some of which were not
accepted by K.K. or her parents, which negates the alleged deficiencies of its overall course of
action. Indeed, rather than continuing with the original 504 plan, the School District, after
meeting with various involved parties, modified K.K.’s 504 plan to attempt to assist her. This
Court’s role is not to determine what should or could have been done better, but only to
determine if Plaintiff has presented sufficient evidence to demonstrate the School District’s

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deliberate indifference. When the totality of the School District’s conduct is reviewed, even
accepting the deficiencies alleged by Plaintiff, Plaintiff has failed to establish a violation of any
federally protected right or any deliberate indifference towards her because of her disability.
Therefore, summary judgment will be entered in favor of Defendant.1
V.

Conclusion

Evidence does not support Plaintiff’s claims against Defendant, and no genuine issue of
material fact exists. Therefore, Defendant’s Motion for Summary Judgment (Doc. No. 30) will
be granted and Plaintiff’s Motion for Summary Judgment (Doc. No. 28) will be denied.
An appropriate Order follows.
s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge

cc:

All Registered ECF Counsel and Parties

1

Because Plaintiff has failed to demonstrate the School District’s liability, the Court need not
address the School District’s arguments related to causation. The Court also necessarily finds
that Plaintiff is not entitled to declaratory or injunctive relief.
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