ODR No. 01539-1011 AS

Child’s Name: M.M.

Date of Birth: [redacted]

Dates of Hearing:
December 10, 2010; February 3, 2011; February 4, 2011; February 9, 2011


Parties to the Hearing: Parent[s]

The School District of Philadelphia


Sonja Kerr, Esquire
Public Interest Law Center of Philadelphia 1709 Benjamin Franklin Parkway, 2nd Floor Philadelphia, PA 19103

Jennifer Nestle, Esquire
Assistant General Counsel School District of Philadelphia 440 North Broad Street, Suite 313

Date Record Closed: March 25, 2011 Date of Decision: April 15, 20111

Hearing Officer: Brian Jason Ford, Esquire


This due process hearing was requested by the Parent on behalf of her child, the Student, against the District on September 10, 2010.2 The Parent raises a number of issues, described below, all of which arise under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (IDEA). In general, the Parent alleges that the Student has spent years outside of the neighborhood school in a highly restrictive, over enrolled Autistic Support (AS) classroom. That classroom, which is the only AS classroom in the Student’s school building, is supposed to serve students between kindergarten and second grade. After second grade, students are transferred to different school buildings that house AS classrooms that range from third to fifth grade. This process is known as “upper leveling” and is done without IEP team participation. Placement decisions are made and parents are informed after the fact. Non-disabled students normally attend the Student’s school building from kindergarten through eighth grade.

It so happens that the Parent believes that the Student’s AS teacher is a remarkably good teacher. By all accounts, she is. The Parent opposes any effort to remove the Student from that teacher’s classroom while simultaneously arguing that the classroom should not be over enrolled and that the Student should have greater opportunities for inclusion. Despite the teacher’s good faith efforts, the Parent contends that over- enrollment and lack of inclusion have deprived the Student of FAPE. The Parent also contends that the upper leveling process, as applied to the Student and Parent, violates the IDEA.

Issues concerning the upper leveling process and the classroom’s over-enrollment in this case are substantively identical to claims raised by another parent, represented by the same attorney, in a different case – ODR No. 01541-1011 AS. After considerable pre-hearing discussions, it was determined that the two cases would be heard together so that identical evidence and testimony need not be presented twice. The Parent’s explicit consent to this procedure must be noted.


The following issues were presented for the Hearing Officer’s consideration:

  1. May the District transfer the Student out of the Student’s current Autistic Support classroom to an Autistic support classroom in another school building?
  2. Should the Student’s educational program be altered to provide greater and meaningful opportunities for inclusion with non-disabled peers?
  3. Must the District increase supports and staff training in the school building that the Student currently attends to enable the Student’s continued enrollment with greater opportunities for inclusion?
  4. Is the Student entitled to compensatory education to remedy a denial of a free appropriate public education from September of 2008 through the present?

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