W. et al v. UPPER PERKIOMEN SCHOOL DISTRICT
Filing
39
ORDER THAT THE MOTION FOR JUDGMENT ON THE SUPPLEMENTAL ADMINISTRATIVE RECORD FILED BY PLAINTIFFS IS GRANTED IN PART AND DENIED IN PART. THE MOTION FOR JUDGMENT ON THE SUPPLEMENTAL ADMINISTRATIVE RECORD FILED BY DEFENDANT THE UPPER PERKIOMEN SCHOOL DISTRICT IS GRANTED IN PART AND DENIED IN PART. PLAINTIFFS ARE DIRECTED TO SUBMIT A PETITION FOR ATTORNEYS FEES WITHIN TEN DAYS OF THE DATE OF THIS ORDER; ETC.. SIGNED BY CHIEF JUDGE PETRESE B. TUCKER ON 8/5/13. 8/6/13 ENTERED AND E-MAILED, MAILED.(jl, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TYLER W., by and through his parents,
Daniel W. and Kelly W., and DANIEL W.
and KELLY W., individually.
Plaintiffs,
v.
UPPER PERKIOMEN SCHOOL
DISTRICT,
Defendant.
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CIVIL ACTION
NO. 08-5247
ORDER
AND NOW, this _______ day of August, 2013, upon consideration of the motion for
judgment on the supplemented administrative record filed by plaintiffs, Tyler W., Daniel W., and
Kelly W. (Doc. No. 24); the motion for judgment on the supplemented administrative record
filed by defendant, the Upper Perkiomen School District (Doc. No. 25); the responses to both
motions; and the supplemental briefs submitted by both parties; IT IS HEREBY ORDERED
and DECREED that plaintiffs’ motion is GRANTED IN PART and DENIED IN PART and
that defendant’s motion is GRANTED IN PART and DENIED IN PART as follows:
1.
To the extent that plaintiffs challenge the decision of the appeals panel of the
ODR claiming a denial of FAPE due to an improper evaluation, an inappropriate
IEP, violation of the LRE mandate, excessive transportation time, and the failure
to provide a proper ESY program, the plaintiffs’ motion is DENIED. The
decision of the appeals panel to grant plaintiff 19.5 hours of compensatory
education based on the denial of related services during the school year and ESY
during summer of 2007 is AFFIRMED. Defendant’s motion is GRANTED and
judgement is ENTERED in favor of the defendant on these claims.
2.
To the extent that plaintiffs challenge the decision of the appeals panel of the
ODR claiming that Tyler is entitled to full days of compensatory education from
August 28, 2006, to December 11, 2006, based on failure to implement his IEP,
plaintiffs’ motion is GRANTED and judgment is ENTERED in plaintiffs’ favor.
Defendant’s motion is DENIED. Insofar as the hearing officer only granted five
hours of compensatory education for this period, and the appeals panel affirmed,
their orders are VACATED.
3.
To the extent that plaintiffs seek relief under the Americans with Disabilities Act
(“ADA”), their ADA claim is DISMISSED for lack of subject-matter jurisdiction
due to failure to exhaust this claim in the administrative proceedings.
3.
Plaintiffs are entitled to an award of 439.5 hours of compensatory education. The
parties shall confer within thirty (30) days of the date of this order to agree on the
manner in which the compensatory education will be provided. The parties will
promptly report to this Court the status of an agreement thereon.
IT IS FURTHER ORDERED that plaintiffs are directed to submit a petition for
attorneys’ fees within ten (10) days of the date of this order. Defendant will submit a response
within ten (10) days of receipt of plaintiffs’ petition.
BY THE COURT:
/s/ Petrese B. Tucker
_________________________
Hon. Petrese B. Tucker, C.J.
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