999 F.Supp. 750 (D.Md. 1998), Civ. A. S 97-421, King v. Board of Educ. of Allegany County, Maryland

Docket Nº:CIV. A. S 97-421.
Citation:999 F.Supp. 750
Party Name:Robert KING, Karen King, Individually and as Next Friend of Mark King, a Minor v. BOARD OF EDUCATION OF ALLEGANY COUNTY, MARYLAND.
Case Date:April 24, 1998
Court:United States District Courts, 4th Circuit, District of Maryland

Page 750

999 F.Supp. 750 (D.Md. 1998)

Robert KING, Karen King, Individually and as Next Friend of Mark King, a Minor

v.

BOARD OF EDUCATION OF ALLEGANY COUNTY, MARYLAND.

No. CIV. A. S 97-421.

United States District Court, D. Maryland.

April 24, 1998

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Conrad W. Varner, Varner & Kaslick, Frederick, MD, for Plaintiffs.

Rochelle S. Eisenberg, Edmund J. O'Meally, Blum, Yumkas, Mailman, Gutman & Denick, P.A., Baltimore, MD, David B. Consiglio, Andrews and Wagner, Altoona, PA, for Defendants.

ORDER AND JUDGMENT

SMALKIN, District Judge.

The plaintiffs, not having timely filed any objection to the Report and Recommendation of Magistrate Judge Grimm entered herein March 27, 1998, and the defendant's objection having been filed only in the event the Court would reject the Magistrate Judge's Report and Recommendation, it is, by the Court, this 24th day of April, 1998, ORDERED and ADJUDGED:

1. That the Magistrate Judge's Report and Recommendation BE, and the same hereby IS, ADOPTED;

2. That the defendant's motion for summary judgment BE, and it hereby IS, GRANTED;

3. That the plaintiffs' motion for summary judgment BE, and it hereby IS, DENIED:

4. That plaintiffs' request for leave to file an additional report BE, and it hereby IS, DENIED:

5. That defendant's motion to reconsider the exclusion of additional evidence BE, and it hereby IS, DENIED;

6. That judgment BE, and it hereby IS, entered in favor of the defendant and against the plaintiffs, as to all counts, with each party to bear its own costs;

7. That this case BE, and it hereby IS, CLOSED; and

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8. That the Clerk of Court mail copies hereof to counsel for the parties and to Magistrate Judge Grimm.

REPORT AND RECOMMENDATION

March 23, 1998.

GRIMM, United States Magistrate Judge.

Plaintiffs Robert and Karen King have sued the Board of Education of Allegany County (ACSB), alleging, in substance, that their eight-year-old son, Mark, has been denied a free appropriate public education in violation of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, and the Rehabilitation Act of 1973, 29 U.S.C. § 794. By Order dated June 19, 1997, the Court denied without prejudice the defendant's motion to dismiss these claims, so that the parties could submit additional documentary evidence pursuant to 20 U.S.C. § 1415(e) (2). 1 (Paper No. 20). Both parties have since submitted additional evidence in support of their positions, and now pending are the parties' cross-motions for summary judgment, briefed in papers 22 through 25. Having heard the argument of counsel on February 24, 1998, and upon consideration of the parties' additional evidence and written submissions, I recommend that the plaintiffs' motion be denied and that the defendant's motion be granted. Also pending are the defendant's motion to reconsider this Court's Order allowing the submission of additional evidence (Paper Nos. 28 and 29), and the plaintiffs' request for leave to file an additional report (Paper No. 29 at 5). I recommend that these motions be denied.

A. Summary of the Additional Evidence Submitted by the Parties

1. Plaintiffs' Additional Evidence

The following exhibits were submitted as additional evidence in support of the plaintiffs' supplemental answer to the defendant's motion for summary judgment (Paper No. 15): King Exhibit F, a Learning Accomplishment Profile ("LAP") dated May 1997; King Exhibit G, an affidavit from Mark's father, dated July 25, 1997; King Exhibit H, an affidavit from Dr. Corinne Jensema, 2 dated July 28, 1997, which itself contains 4 exhibits; and King Exhibit I, an affidavit from Jane McBride, Ph.D., the principal of the West Virginia School for the Deaf and Blind ("WVSDB") which authenticates three exhibits: an Individual Education Plan ("IEP") for Mark dated May 6, 1996, the LAP regarding Mark's progress at WVSDB, dated May 16, 1997, and his April 11, 1997 IEP for the WVSDB. Relevant portions of these exhibits will be discussed in further detail below.

King Exhibit F contains Mark's LAP from the WVSDB. This exhibit, dated May 16, 1997, was prepared by Ms. Janet Kesnser, Mark's classroom teacher. The LAP reports a comparison of Mark's performance on April 14, 1996 and May 8, 1997, with respect to various fine motor manipulation, cognitive matching, cognitive counting, language/cognitive naming, language/cognitive comprehension, gross motor (body movement), gross motor (object movement), and self-help (eating, dressing, grooming, toileting, and self-direction) tests. The summary sheet for this exhibit states:

Mark showed a definite improvement on this test. His developmental age (DA) centered around 36 months with a DA of 48 months on cognitive: matching and self-help: toileting and a DA of 42 months on self-help: grooming. His former test scores reflected a DA of 24 months or less, with a DA of 36 months in self-help: toileting and grooming. Mark's raw score for the total test nearly doubled from 83 in April 1996 to 162 in May 1997.

(King Exhibit F at 1).

King Exhibit G is an affidavit from Mark's father, Robert King, commenting on his observations of Mark since his enrollment in WVSDB. Mr. King states that, at the school, Mark's hearing aids are cleaned and checked

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daily, and he has his own FM system to amplify his hearing aids. He reports that Mark can "initialize" approximately 100 signs and respond to approximately 100-200. In addition, Mr. King says that Mark can read eight words and sign "stop, go, in, out, up, down, on, and off." He states that Mark's speech has improved, as has his eating behavior, although he is still quite selective about what he will eat. Mr. King states that Mark is in a class with three other children, one teacher and one aide. He states that "homework" is sent home each day for Mark, and parental training also is provided.

King Exhibit H is an affidavit from Dr. Jensema, dated July 28, 1997, with three exhibits. The first is her CV, which was previously summarized in the Report and Recommendation issued by this Court on May 30, 1997. (King Exhibit H at 5-14). The second exhibit is her report, dated April 29, 1997, which summarizes her opinions about Mark's educational needs. (King Exhibit H.1 at 1). Although also summarized in the previous Report and Recommendation, this report merits additional discussion.

Dr. Jensema states that she first became involved with Mark in the spring of 1996. She met with Mark and his family, observed the program at Cash Valley Elementary School where he was placed by the defendant, and observed Mark at school at the WVSDB. In addition, she conducted a review of Mark's case. The essence of her opinion is that despite the fact that Mark's hearing impairment was discovered before he was even one month old, 3 the Allegany County Public Schools ("ACPS") reacted too slowly to his needs for individualized audiological services. She noted that it was not until February 1991 that Mark received speech and language consultations every six months, and not until May 1993 before he received direct speech and language therapy, and February 1994 before he received three days per week of instructional services. Dr. Jensema also was critical of the fact that Mark did not begin to receive audiological services until September 1994, and that the ACPS had not implemented the recommendations of Mark's audiologist, Dr. Resnick. She further noted that it was not until January 1995 that the defendant involved the Maryland School for the Deaf in assessing Mark's needs. She attributed the fact that Mark's testing showed only a four month improvement in speech and language development over a three year period to the failure of the ACPS to properly address Mark's learning needs.

Dr. Jensema discussed the significance of the delay in Mark receiving the services she believed he needed. She expressed the view that a hearing impairment deprives a child of the most important avenue by which oral communication is established. This is significant because the ability of a child to quickly assimilate rules of language "dramatically" decreases as age increases. Thus, a failure to introduce a child with a hearing impairment to language for a several year period in early life means that he or she will learn language at a much slower rate. In Mark's case, she believed that the failure to provide him with early instruction in visual access to language, as well as audiological services, had a profound negative impact on his cognitive development. When combined with the fact that Mark has Downs syndrome, a form of mental retardation which leaves him with an IQ of roughly 50 percent of a normal child, his ability to communicate his thoughts, and, indeed, his thought process itself, will be very limited.

In her affidavit, Dr. Jensema discussed the difference between teaching a hearing impaired child American Sign Language ("ASL") and "speech supported by sign." ASL does not follow spoken English word order, but instead has its own rules of grammar, syntax and semantics, which are influenced by "subtleties" such as "arching of the eyebrows, placement of the tongue, and rate of sign production." She noted that every English word does not have a corresponding sign, and every sign does not have a corresponding English word. In contrast, when children are placed in classes where they are taught speech supported by sign, as was proposed for Mark at Cash Valley, normal English word order, syntax and semantics

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are used for the signs which are taught. However, because the instruction depends upon spoken word communication as well as use of sign, a child with a hearing...

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