Avaras ex rel. N.A. v. Clarkstown Cent. Sch. Dist.
| Decision Date | 15 October 2018 |
| Docket Number | No. 15 CV 9679 (NSR),15 CV 9679 (NSR) |
| Parties | CONNIE AVARAS, individually and as parent of N.A., Plaintiffs, v. CLARKSTOWN CENTRAL SCHOOL DISTRICT, BOARD OF EDUCATION FOR THE CLARKSTOWN CENTRAL SCHOOL DISTRICT, and NEW YORK STATE DEPARTMENT OF EDUCATION, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Connie Avaras, individually and as parent of N.A., brings this action pro se against the Clarkstown Central School District (the "District"), the Board of Education for the District (the "Board") (collectively the "District Defendants"), the New York State Department of Education (the "Department"), and the following Department officials: Mary Ellen Elia, the State Commissioner of Education ("Elia"), Christopher Suriano, the Assistant Commissioner of Special Education ("Suriano"), Joanne LaCrosse, Coordinator of Special Education Policy and Professional Development ("LaCross"), Noel Granger, Supervisor of Program Development and Support Services ("Granger"), and Jackie Bumbalo, Coordinator of Upstate Regional Special Education Quality Assurance ("Bumbalo") (collectively, the "Department Officials" and with the Department, "Department Defendants")1 pursuant to the Individuals with Disabilities EducationImprovement Act ("IDEA" or "IDEIA"), 20 U.S.C. § 1400 et seq., Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq., Section 504 of the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 794, and 42 U.S.C. § 1983 ("Section 1983"). Predominantly, Ms. Avaras seeks judicial review of a decision made by a State Review Officer ("SRO") at the Department, who affirmed the decision of an Independent Hearing Officer ("IHO"), finding that the District did not violate its Child Find obligation and offered N.A. a free and appropriate public education for the 2011-2012 and 2013-2014 school years. Ms. Avaras contends that she is entitled to tuition reimbursement and transportation expenses for her unilateral alternative. The District counter-claims for review of the IHO's decision finding that the District failed to provide a free appropriate public education for the 2012-2013 year and that Ms. Avaras's unilateral alternative was appropriate. Plaintiff also alleges the Defendants' treatment of N.A. and herself violated the ADA, RA, and Section 1983.
Before the Court are two motions: (1) District Defendants' motion for summary judgment; and (2) the Department's motion to dismiss. For the reasons set forth below, the District Defendants' motion is GRANTED in part and DENIED in part. The SRO's decision is AFFIRMED in part and REVERSED in part. Plaintiff's claims asserted against the District Defendants pursuant to the ADA, RA, and Section 1983 are DISMISSED.2 The Department's motion is GRANTED and all claims against it and the Department Defendants are DISMISSED.
I. Factual Background
The parties have submitted briefs, statements of material facts pursuant to Local Civil Rule 56.1, and the record and exhibits from the proceedings below,3 which reflect the following factual background.
An independent hearing was held to determine the appropriateness of the education plan provided by the District to N.A., which lasted for 10 days over a period of seven months, beginning on December 13, 2013 and ending on July 23, 2014. The following nine witnesses testified during the hearings: Arnold Fucci (executive director of pupil services), David Carlson (chairperson on the Committee of Special Education ("CSE")), Lisa Maher (principal of Woodglen Elementary ("Woodglen")), Meredith Grant (school psychologist), Ilene Mirenberg (special education teacher), Suzanne Braniecki, Ph.D. (clinical psychologist), Rhonda Graff (general education teacher), Erin Castle (co-founder and co-director of Hawk Meadow Montessori School("Hawk Meadow")), and Plaintiff.4 The Court summarizes the salient portions of the documentary and testimonial evidence below, referring to the IHO's summary and specific record citations as needed.
N.A. was a student at Woodglen, a school within the District, until his parents placed him in an alternative program for his second grade year. (C.R. 8, 43.) N.A.'s struggles with reading, decoding, reading comprehension, and math concepts were first noticed by the District in kindergarten. (C.R. 42-43.) At that time, he began receiving educational support services in theform of "academic intervention services" ("AIS") and Response to Intervention" ("RTI") services in the form of "Fundations", a researched based reading program beginning in October or November of 2010. (C.R. 43; C.R. 308 (Fucci).) Such "building level" services were provided during the regular school day for the majority of N.A.'s kindergarten year. (C.R. 308-09 (Fucci).)5
As N.A. began his first grade year, the District acknowledged that he was still experiencing educational difficulties, and therefore resumed the RTI services that they were providing to him in kindergarten. (C.R. 43.) On September 22, 2011, Plaintiff executed a consent form acknowledging that N.A. would be receiving additional educational support services. (C.R. 985-86 (D-6).) RTI services are typically provided on an eight week cycle, after which evaluations and reviews are conducted to ascertain whether a student needs additional or fewer services. (C.R. 385 (Maher), C.R. 419 (Grant).) After Tier 3 is implemented, if the review demonstrates that a student is "not meeting needs at that point, the school may make a school referral, and request from the parent consent to evaluate for a full psychoeducation, and make a referral to the Committee on Special Education." (C.R. 331 (Fucci).)
N.A. continued to receive Tier 3 RTI services for the majority of his first grade year, until in May of 2012, Plaintiff requested that the District perform an evaluation to ascertain whether he would be eligible for special education services. (C.R. 987 (D-7.) She thereafter provided consent for the District to perform the requisite evaluation for purposes of the CSE meeting. (C.R. 988 (D-8).)
Prior to his evaluation by the District, Plaintiff had N.A. evaluated by Suzanne Braniecki, who specializes in neuropsychology and pediatric psychology. (C.R. 45.) Dr. Braniecki conducted a battery of tests assessing, inter alia, N.A.'s levels of verbal functioning, perceptual reasoning, auditory and visual attention, and academic testing. (C.R. 1025-1034 (D-25).) Ultimately, Dr. Braniecki concluded that N.A.'s "neurocognitive profile [was] notable for variable working memory skills, below average visual processing skills and weak reading and writing skills." (C.R. 1032.) Dr. Braniecki noted, inter alia, that N.A. would "benefit from a multisensory approach to learning where he receives much support", including 1:1 support services. (C.R. 1033.) Finally, Dr. Braniecki diagnosed N.A. with a learning disability, opining that his symptoms reflected "classic dyslexia." (C.R. 510-11.)
On June 4, 2012, Plaintiff wrote a letter to the District rejecting the RTI services and indicating that they were inappropriate for her son, noting that she reserved the right to place him in private school at the District's expense. (C.R. 643-644 (Plaintiff); 989 (D-10).) The next day, a social history report was prepared, (C.R. 866 (P-O), 997 (D-12)), and the District sent notice of a scheduled CSE on June 6, 2012, (C.R. 991 (D-11).) On June 15, 2012, a classroom observation was conducted to analyze N.A.'s receptiveness in the classroom. (C.R. 48.) The observation revealed that N.A. "appeared distracted" and had difficulty following oral instruction. (C.R. 48; 862 (P-L).)
Carolyn Stimmel, the District psychologist that filled in for Grant while she was on leave, prepared a psychoeducational report following an evaluation of N.A. performed on June 11, 2012. (C.R. 997 (D-12).) Stimmel included the results from Dr. Braniecki's examinations into her evaluation. (C.R. 47.) Stimmel noted that N.A.'s immediate auditory memory was low average, "his scanning speed is significantly below average", as was his ability to read fluently. (C.R.1002.) Stimmel recommended that the information be shared with the CSE to plan an Individualized Education Plan ("IEP"), and that N.A. would benefit from "extra help sessions", reading practice at home, and consultation services, if necessary. (C.R. 1003.)
Carlson convened a CSE meeting on June 19, 2012 to assess N.A.'s entitlement to special education services based on a potential classification of a learning disability. (C.R. 48.) Mirenberg, Carlson, Maher, Ms. Ritter (who prepared the social history report), and Plaintiff were present at the CSE meeting. (C.R. 49.) The team reviewed data available to them, including, psychoeducational evaluations, the social history, and the reports regarding the classroom observations. (C.R. 48.) As a result of the meeting, the CSE classified N.A. as learning disabled and recommended an IEP which provided for 15:1 special class instruction in English Language Arts ("ELA") and math, along with counseling as a related service. (C.R. 386-87 (Maher).) Plaintiff accepted N.A.'s classification as learning disabled, but rejected the proposed services, as she thought the 15:1 classroom recommendation was too restrictive. (C.R. 371 (Maher).) As a result, the CSE team adjusted the recommendation to add consultant teacher services once per week, and 5:1 resource room in math for 30 minutes daily. (C.R. 371-72 (Maher), 955 (D-3).) Plaintiff again disagreed with this recommendation. (C.R. 50.)
The District also provided Plaintiff with the requisite documentation attendant to the creation of an initial IEP for a student newly classified as learning disabled, including, the Prior Written Notice, Proposed Initial Eligibility for Special Education, and Request for Consent for the parents' signature. (C.R. 50.) The...
To continue reading
Request your trial