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S.S. v. City of Springfield

United States District Court, D. Massachusetts

December 16, 2016

S.S., a minor, by his mother, S.Y., on behalf of himself and other similarly situated students; the PARENT/PROFESSIONAL ADVOCACY LEAGUE; and the DISABILITY LAW CENTER, Plaintiffs,
v.
CITY OF SPRINGFIELD, MASSACHUSETTS; DOMENIC SARNO, in his official capacity as Mayor of City of Springfield; SPRINGFIELD PUBLIC SCHOOLS; DANIEL J. WARWICK, in his official capacity as Superintendent of Springfield Public Schools, Defendants.

          MEMORANDUM AND ORDER ON PLAINTIFFS' MOTIONS TO EXCLUDE OR LIMIT AND FOR EVIDENTIARY HEARING (DKT. NOS. 96, 162, AND 171)

          MARK G. MASTROIANNI United States District Judge.

         I. Introduction

         Plaintiffs bring this proposed class action on behalf of all students who have been diagnosed with mental health disabilities and enrolled not in a neighborhood school but in one of several schools operated by Defendant, Springfield Public Schools (“SPS”), and collectively referred to in this litigation as the Springfield Public Day School (“SPDS”). “Neighborhood school” is a term used in this litigation to refer to elementary and middle schools which primarily enroll students based on their residential address and high schools which enroll students through the High School Choice Plan. Each student enrolled at the SPDS has been formally diagnosed with a mental health disability. Plaintiffs assert students attending the SPDS are not only segregated from nondisabled students, but also receive educational services that are demonstrably inferior to those offered at neighborhood schools, are unable to access extracurricular activities available at neighborhood schools, and are subjected to dangerously punitive discipline.

         Plaintiffs' allegations paint a picture of the SPDS which is both troubling and vigorously disputed by Defendants. Despite the concerning allegations, Plaintiffs have not brought claims arising directly from the operation of the SPDS, including claims Defendants failed to provide students who attended SPDS with educational services that met the requirements of the Individuals with Disabilities in Education Act (“IDEA”), 20 U.S.C. § 1400, et seq. Instead, Plaintiffs contend Defendants violated Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, et seq., by adopting a policy and practice of not providing students with mental health disabilities with necessary services in neighborhood schools. As a result of that policy or practice, a portion of students with mental health disabilities have been segregated at the SPDS, rather than attending neighborhood schools where they could have access to educational services that is equal to that enjoyed by non-disabled students.

         Specifically, Plaintiffs assert Defendants enrolled members of the proposed class at the SPDS rather than offer services in those neighborhood schools that would enable members of the proposed class to be educated in neighborhood schools. Central to Plaintiffs claims are their contentions, supported by the opinions of Dr. Peter Leone, Plaintiffs' proffered expert, that Defendants have violated the ADA by failing to offer “school-based behavior services” or “SBBS” in its neighborhood schools and that all members of the proposed class would be able to attend neighborhood schools if SBBS were offered. Plaintiffs thus seek an order compelling Defendants to provide SBBS in its neighborhood schools.

         On November 19, 2015, this court denied Defendants' motions to dismiss. (Dkt. No. 102.) Prior to the court's ruling, Plaintiffs filed their Motion for Class Certification (Dkt. No. 96). Following a period of discovery, the parties filed supplemental briefing on the Motion for Class Certification in July and August of 2016. Defendants subsequently filed a Motion to Exclude or Limit the Testimony of Peter Leone, Plaintiffs' proffered expert (Dkt. No. 162), and a separate Motion for an Evidentiary Hearing (Dkt. No. 171), which Plaintiffs have opposed. For the reasons discussed below, Plaintiffs' motion will be denied and Defendants' motions will be found moot.

         II. Factual Background

         In this section, the court briefly summarizes the factual background relevant to this decision. This includes an overview of the way SPS provides services to members of the proposed class; a description of SBBS, as that term is used both to describe Defendants' alleged shortcomings and Plaintiffs' proposed remedy; and brief portraits of the individual members of the proposed class who have been identified by the parties. The court does not recite the concerning, and contested, allegations Plaintiffs make regarding the operation of the SPDS because such facts are relevant only to establish that students attending the SPDS do not have access to educational services equal to their counterparts who attend neighborhood schools, an issue that is not relevant to Plaintiffs' Motion for Class Certification.

         A. Overview of SPS Services for Students with Mental Health Disabilities

         During the 2015-16 school year, SPS enrolled 25, 479 students who attended academic programs in sixty different buildings. (Dkt. No. 166, Supp. Mem. in Opp. to Class Cert. 3.) The majority of these students attend a neighborhood school. Approximately 5, 000, or 20% of all SPS students, were students with disabilities. (Dkt. No. 97, Mem. in Support of Mot. for Class Cert. 2.) Dkt. No. 166 at 3.) In 2014, between 600 and 700 students were classified by SPS as having a mental health disability that interferes with their education. (Dkt. No. 97 at 2.) Approximately one-third of these students, or about 1% of SPS students, were enrolled at the three separate schools which comprise the SPDS. (Id.) As of May 1, 2016, 86 students were enrolled at the elementary school, 61 at the middle school, and 99 at the high school. (Dkt. No. 166-5, Aff. of Rhonda Jacobs 1.) Only students diagnosed with a mental health disability attend the SPDS. Each student placed at the SPDS receives services pursuant to an Individual Education Program (“IEP”).

         The majority of SPS students with mental health disabilities are not enrolled at the SPDS. (Dkt. No. 166 at 5.) Some portion of these students attend neighborhood schools and are enrolled in a Social Behavioral Support (“SEBS”) program. The SEBS program provides an increased level of academic support to students who “exhibit significant and pervasive emotional and behavioral disabilities which affect overall psychological and academic functioning over a long period of time.” (Dkt. No. 166 at 4.) For elementary and middle school students, the SEBS program is delivered using separate, “pull-out” classrooms. (Id.) High school students are provided with “behavioral and therapeutic supports throughout the day.” (Id.) The SEBS program is offered in most, but not all, neighborhood schools. (Id.)

         SPS has also adopted a Positive Behavioral Interventions and Supports (“PBIS”) program, though the program has not yet been implemented at all schools. The PBIS program is intended to provide “proactive systems for improving student academic and behavioral outcomes for all students.” (Id.)The PBIS program is not one particular intervention, but rather is a “framework that guides selection, integration, and implementation of the best evidence-based academic and behavioral practices for improving important academic and behavior outcomes for all students.” (Id.)

         Plaintiffs allege SPS has not adequately implemented the programs they do offer. Plaintiffs have submitted email correspondence between various SPS employees who provide or coordinate special education evaluations and services to students. Among the issues documented in these emails are instances in which staff at a particular school failed to act in a manner consistent with SPS policies (Dkt. 159-3, 159-5, 159-6); staff at a particular school sought to have difficult students placed at the SPDS without properly documenting the need for such a placement (Dkt. 159-4, Dkt. 159-15); incomplete records may have prevented a student from receiving services (Dkt. 159-7); and students received inadequate behavior intervention plans (“BIPs”) or their BIPs were inadequately implemented (159-14, 159-16). Many, if not all, of the issues raised by the emails arose in the context of activities related to SPS's compliance with its obligations under the IDEA. Plaintiffs assert the lapses documented in these emails also support their position that policies or practices existed within SPS which violated the ADA.

         B. SBBS

         In addition to alleging SPS has not adequately implemented the programs they offer, Plaintiffs assert those programs are inadequate to provide equal access to educational services to students with mental health disabilities. As defined by Plaintiffs, SBBS does not consist of a particular intervention or protocol. Instead, Plaintiffs define SBBS as a combination of four separate services: “(a) comprehensive assessment, including determination of the purpose and triggers for the child's behavior; (b) a school-based intervention plan that relies on positive support, social skills building, a care coordinator, and adjustments as needed to the curriculum or schedule; (c) training for school staff and parents in implementing the plan; and (d) coordination with non-school providers involved with the child.” Plaintiffs assert, and their proffered expert, Peter Leone, Ph.D., has opined, that all members of the proposed class could be educated in neighborhood schools if Defendants provide SBBS. Dr. Leone has also opined that members of the proposed class require SBBS and that there exists “a professional consensus” that students like those in the proposed class require SBBS in order to be educated in neighborhood schools and to have equal access to educational services. Though Plaintiffs and Dr. Leone discuss SBBS as though the term refers to a single program that has been formally studied and found effective for students like those in the proposed class, Plaintiffs conceded, at the hearing, that the term SBBS was created for this litigation. Though invited to do so by the court, Plaintiffs have not provided the court with any peer-reviewed studies establishing the effectiveness of programs similar to SBBS.

         C. Members of the Proposed Class

         Plaintiffs seek certification of a class comprised of all students who have been diagnosed with mental health disabilities and enrolled at the SPDS, rather than a neighborhood school. They have named one plaintiff, S.S. who is a member of this class. In addition, they have submitted declarations from the parents of D.S., J.R., J.C., and L.P., each of whom is a member of the proposed class. Dr. Leone provided brief descriptions of four other members of the proposed class: A.Mu., K.L., K.H., and W.C. Defendants have supplemented the information about some of these proposed class members and have provided declarations from the parents of L.C., J.M., and Z.A., three other members of the proposed class. The court briefly summarizes the information it has received regarding each of these students.

         S.S.

         S.S., the one named plaintiff who is part of the proposed class, has mental health disabilities including depression, attention deficit hyperactivity disorder, attention deficit disorder, and a mood disorder. He attended various neighborhood elementary schools from first grade through fourth grade. He was initially evaluated by SPS in second grade, but was not found to be eligible for special education services at that time. During fourth grade, S.S. experienced emotional and behavioral problems at school. SPS performed a psychoeducational evaluation, and S.S. also received a private psychological evaluation. SPS found S.S. eligible for special education services at that time and proposed an IEP for him. His mother accepted the IEP and S.S. began attending the SPDS elementary school at the beginning of his fifth grade year. S.S. continued to have difficulties while attending the SPDS and eventually SPS proposed S.S. be placed in an even more restrictive program within the SPDS. After consenting to the placement, S.S.'s mother filed an appeal using the administrative process provided for by the IDEA. As part of her appeal, she raised class claims similar to those raised here; however those claims were later dismissed by agreement of the parties.

         While the administrative process was pending, SPS placed S.S. at the SEBS program at Chestnut Accelerated Middle School (“Chestnut”), a neighborhood school, for an extended evaluation. At the end of the extended evaluation period SPS returned S.S. to the SPDS. The administrative process initiated by S.S.'s mother concluded with a finding that S.S.'s placement at the SPDS satisfied the requirements of the IDEA and a less restrictive placement in the SEBS program at Chestnut would not have done so. S.S. has not appealed that finding, but has exhausted the administrative process available under the IDEA.

         D.S.

         D.S. is a member of the proposed class. He attended a neighborhood elementary school prior to being enrolled at the SPDS. (Dkt. No. 159-8, Declaration of D.S., father of D.S.) While a student at the neighborhood school, D.S. was disciplined for certain behaviors. (Id.) His father does not remember the staff at the neighborhood school making any effort to determine whether the behavior was the result of D.S.'s disability; however, Defendants assert D.S. was in a SEBS program, received a Functional Behavioral Assessment (“FBA”), and had a BIP while attending his neighborhood school. When D.S. was in fourth grade, his mental health disability resulted in a one-week hospitalization. (Id.) Following the hospitalization, D.S. was placed at the SPDS. (Id.) The placement was later made permanent. D.S.'s father was not aware of any efforts made to coordinate care between the school and outside providers or to determine whether D.S. could return to his neighborhood school with proper supports. (Id.). Despite providing SPS with documentation from D.S.'s therapist recommending he be moved out of the SPDS, D.S. remains at the SPDS. He is currently placed in the Transitions program at the SPDS high school pursuant to an Agreement Reached Through Mediation signed by D.S.'s father.

         Plaintiffs do not contend D.S. has exhausted the administrative process available under the IDEA.

         J.R.

         J.R. is a member of the proposed class. He has a mental health disability and began attending school at the SPDS during the 2015-16 school year. Prior to being transferred to the SPDS, J.R. attended school at the Chestnut Accelerated Middle School (“Chestnut”), a neighborhood school. While attending Chestnut, J.R. was frequently suspended from school for behavioral problems related to his mental health ...


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