The U.S. District Court for the Eastern District of Pennsylvania ruled on February 19th that the School District of Philadelphia’s “upper leveling” process by which it transfers children with autism from school to school without adequate notice to or opportunity for input from parents violates the federal Individuals with Disabilities Education Act (“IDEA”). The court certified a class of children with autism represented by four parents who did not receive notice or any opportunity for parental participation in meeting with school district staff before their children were abruptly transferred to different schools. The families are represented by the the Law Center and a team of lawyers from Dechert LLP.

The Law Center’s Director of Disability Rights, Sonja Kerr, commented: “This is a significant victory for the families of children with autism in Philadelphia who have, for too long, been subjected to the autism shuffle. Now, the District will have to plan so that parents of these children are equal participants at the table in planning for their children’s’ education. As the District is planning massive school closures, the decision is welcomed because it will help families in this transition. ”

In the court’s decision, Judge LeGrome Davis noted that an unplanned transition for children with autism is likely to affect their learning because difficulty with transition is one of the defining characteristics of children with autism.

“[P]arents learn of the new building assignment only after it has been unilaterally decided upon by division directors, with no opportunity for parents to contribute to the discussion. The notification is sometimes no more than one sentence on a strip of paper, informing the parent that their child will be attending a different school in the fall. Moreover, the notification is generally sent only weeks prior to the start of the next school year, leaving parents minimal time to plan for their autistic child’s transition from one educational setting to another,” the decision stated. “We therefore conclude that the School District’s process of upper-leveling children with autism violates the procedural safeguards under the IDEA, and seriously deprives parents the opportunity to participate in the decision-making process regarding the educational placement of their autistic child.”

The court granted the PILCOP/Dechert motion for summary judgment and ordered the District to “alter its upper-leveling process for children with autism to provide prior written notice and a level of parental participation that complies with the procedural requirements under the IDEA.”

The Dechert team advising the plaintiff families includes lead counsel Cheryl Krause as well as David Stanoch, Darla Woodring, Daniel Bowers, David Caroline, Jeffrey Rubin, Tara Kelly (nee Coney) and Bernard McCue.

“The Court’s decision highlights the importance of parents’ input into the fundamental decision about what school can best serve the needs of their child with autism,” said Krause. “We are gratified that the rights of these children have been protected in this way.”