B.L. v. New Britain Bd. of Educ.
| Decision Date | 29 September 2005 |
| Docket Number | No. CIV.A. 3:02CV767 CFD.,CIV.A. 3:02CV767 CFD. |
| Court | U.S. District Court — District of Connecticut |
| Parties | B. L., individually and through her parents and next friends, Mr. and Mrs. T.L., Plaintiffs, v. NEW BRITAIN BOARD OF EDUCATION, Defendant. |
Lawrence W. Berliner, Klebanoff & Phelan, PC, West Hartford, CT, for Plaintiffs.
Nicole Alexandra Bernabo, Lawrence J. Campane, Sullivan, Schoen, Campane, Connon, Hartford, CT, Mark J. Sommaruga, for Defendant.
RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Plaintiff B.L. ("B" or "the student"), a young girl living in the town of New Britain, brings this action against the defendant, the New Britain Board of Education ("New Britain" or the "Board"),1 through her parents, ("the Ls"), acting as her next friends, and pursuant to the United States Constitution; the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. ("IDEA"); Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 ("Rehabilitation Act"); and Connecticut's special education laws, Conn Gen.Stat. § 10-76 et seq.2 Specifically, the Ls appeal the decision of a due process administrative hearing officer, who ruled that the Board offered B an appropriate educational program for the 2001-2002 school year, and, therefore, her parents were not entitled to reimbursement for their unilateral placement of B at a private educational academy for that school year.
The complaint alleges that the hearing officer's final decision: (1) violated B's right to receive a free appropriate public education as provided by the IDEA; (2) violated B's right to receive a free appropriate public education and other civil rights in violation of the Rehabilitation Act; (3) violated B's right to due process of the law, as secured by the Fourteenth Amendment of the United States Constitution; and (4) violated B's rights under the special education laws of Connecticut. The plaintiffs seek equitable relief in the form of a reversal of the hearing officer's decision, as well as reimbursement of the fees incurred at the private educational academy and attorney's fees.
The plaintiffs have moved for summary judgment on count four of the complaint. The Board has moved for summary judgment as to the entire complaint.
B resides with her parents in New Britain, Connecticut, and attended New Britain Public Schools during the period encompassed by the complaint, up to and including the 2000-2001 school year. Since 1996-97, when she was in the first grade, B had been receiving remedial reading services. While B was in the second grade, her parents reported that B was having increased difficulty with simple paperwork and raised questions regarding B's attention and inconsistent academic performance. At a Planning and Placement Team ("PPT") meeting on February 23, 1998, the Board agreed to undertake the comprehensive evaluation requested by the parents.4
A comprehensive evaluation was performed in March 1998, and it contained three separate assessments: intellectual, educational and social/emotional. The intellectual assessment suggested that B was "solidly functioning within the Average range," had a verbal scale IQ of 102, a performance scale IQ score of 106 and a full scale IQ score of 104. B's performance on verbal and nonverbal tasks indicated "even cognitive development." In the verbal area, B demonstrated a relative strength in social judgment and general common sense, as well as above average abilities in word knowledge, general fund of information, and good conceptual thinking. B demonstrated weaknesses, however, in numerical reasoning ability and perception of spatial relations.
The education assessment indicated that B was academically functioning on grade level in the areas of reading and writing, but math skills were significantly below her measured intellectual potential.
The social/emotional assessment suggested that B's externalizing behaviors were consistently within average expectations, but B's tendency to be "nervous, fearful or worried about real or imagined problems (anxiety)" was deemed clinically significant and her ability to adapt readily to changes in the environment was consistently rated with the "at-risk" range.
On April 14, 1998, a Multidisciplinary Composite Evaluation Report for Students Suspected of Being Learning Disabled was completed for B. The PPT subsequently determined that there was a discrepancy between B's ability and achievement in mathematical computations and mathematical reasoning. The PPT further determined that this discrepancy was not the result of visual, hearing or motor impairment; mental retardation; emotional disturbance; environmental, cultural or economic disadvantage; or lack of motivation or opportunity to learn. The PPT concluded that the discrepancy was not correctable without special education or related services. Therefore, because B was eligible for special education and related services, an individual education plan ("IEP") was developed for her by the PPT. This IEP, which would cover the remainder of the second grade and all of third grade, called for twenty-seven hours of regular education and three hours of special education services per week for B.
On March 8, 1999, the IEP team met to review the student's progress in third grade. Although the teachers noted that the B had made both academic and social progress, there was agreement that she should continue in the special education inclusion program ("the SEI") based upon weaknesses in math skills, written language and organizational ability. The parents also indicated that they were considering keeping B in the third grade for an additional year, and the Board noted it would support that decision. In addition, B's special education services were increased to five hours per week in the IEP developed for the 1999-2000 school year.
By letter dated August 16, 1999, the parents notified the Board that they were obtaining an independent psycho-educational evaluation of B, and stated that "[w]e do agree with [B's] retention in third grade so long as [she] receives the support around [her] areas of deficit, which include learning disabilities and health impairments." The letter also stated that "a complete language evaluation of [B] is necessary as it is clear that [she] is impaired significantly in reading and writing," and that "this testing should include a look at [Bs] central auditory processing." Dr. Janet Schrager performed a psycho-educational evaluation of B on July 16, 1999.5 Dr. Schrager then issued a report detailing her evaluation of B.
In November 1999, the parents requested that an independent consultant review all of B's records, interview the parents and the Board staff, observe B throughout the school day, perform supplemental testing if necessary, and determine whether B's IEP is appropriate or requires revision. Dr. Miriam Cherkes-Julkowski was selected to conduct the independent evaluation. Dr. Cherkes-Julkowski conducted testing and interviews on April 19, 2000, and observed B in the school setting on April 28, 2000. Dr. Cherkes-Julkowski prepared a report of her evaluation shortly thereafter.
The PPT reconvened on June 1, 2000, in order to develop an IEP for the 2000-2001 school year, during which B would be in the fourth grade. At that meeting, the parents raised questions regarding some of Dr. Cherkes-Julkowski's findings and recommendations, and the Board agreed to contact Dr. Cherkes-Julkowski in order to obtain a clarification. The PPT then developed goals for B in the areas of math, reading, written language skills, verbal reasoning, phonological awareness, and developing self-concept. The PPT also agreed that "Inspiration" computer software would be used to help B organize writing tasks, direct counseling services would be added for one half-hour each week, that B's special education teacher would consult with the Board speech/language pathologist regarding intervention plans for phonemic awareness and effective formulation of curriculum language content in her verbal and written expression, and that B would be permitted extra time on all assignments and on tests as needed. On June 9, 2000, Dr. Cherkes-Julkowski provided the Board with a telephonic and written response to its request for clarification on behalf of the parents.
On September 7, 2000, the PPT met again to discuss Dr. Cherkes-Julkowski's supplemental responses and additional questions and concerns from the parents. At that meeting, the Board denied the parents' request for a central auditory processing evaluation because it was not mentioned in Dr. Cherkes-Julkowski's report. Although the Board also denied the parents' request for an assistive technology evaluation, it did agree to obtain more information on such an evaluation. The PPT referred B to Dr. Joel Bregman for a diagnostic school psychiatric consultation. B met with Dr. Bregman on November 8, 2000, and the entire L family met with Dr. Bregman on December 5, 2000. Dr. Bregman did not observe the student in the classroom setting.
On December 20, 2000, the PPT met to review Dr. Bregman's evaluation report. At that meeting, it was agreed that the school psychologist, after meeting with Dr. Bregman, would prepare further objectives for the IEP goal related to the development of positive self-concept. At that meeting, the parents also expressed concern about the amount of time B was spending outside of the classroom on specialized instruction. B's regular education teacher responded that she was not permitted to teach something new when any student was out of the class for other instruction. After that meeting, the special education teacher tried to meet with B and two other students receiving specialized instruction in the back of the regular education classroom, rather than in a separate office for specialized instruction. This effort was abandoned soon thereafter.
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