C.B. ex rel. C.B. v. Special School Dist. No. 1, Civil No. 09-312(DSD/AJB).
| Decision Date | 20 July 2009 |
| Docket Number | Civil No. 09-312(DSD/AJB). |
| Citation | 641 F.Supp.2d 850 |
| Parties | C.B. by and through his parents, B.B and C.B., Plaintiffs, v. SPECIAL SCHOOL DISTRICT NO. 1, Minneapolis, Minnesota, Defendant. |
| Court | U.S. District Court — District of Minnesota |
Margaret O'Sullivan Kane, Esq., St. Paul, MN, for plaintiff.
Laura Tubbs Booth, Esq., Plymouth, MN, for defendant.
This matter is before the court on the parties' cross-motions for summary judgment. Based upon a review of the file, record and proceedings herein, and for the reasons stated, the court grants defendant's motion.
This case arises under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Plaintiff C.B. is a minor with a learning disability who attended Hale Elementary School ("Hale") from 2002 to 2007. Hale is a public school in defendant Special School District No. 1 ("District"). (A.R. Ex. 74 at 37.)
C.B. began kindergarten at Hale in fall 2002. Shortly thereafter, the District began providing reading assistance to C.B. in his general education classroom. (A.R. Ex. 30 at 4-5.) C.B.'s reading skills did not improve, and in November 2003 the District created an independent education program ("IEP") team1 to assess his skills and develop an IEP.2 (A.R. Ex. 32 at 21.) A January 2004 evaluation indicated that "despite receiving additional small group and individualized reading instruction," C.B. was "severely underachieving in basic reading" and his reading skills were "significantly discrepant from the expected level for his age." (Id. at 25.) For instance, on the Woodcock Johnson III Achievement Test ("Woodcock Johnson test"), C.B. placed in the first percentile in reading relative to his peers. (Id. at 22.) As a result, the IEP team concluded that C.B. was eligible for special education services "to increase his reading skills in the areas of letter and sound recognition, writing of alphabet letters, sight word recognition, decoding skills and reading fluency." (Id. at 25; Ex. 33 at 37.)
The goal of C.B.'s first grade IEP was to "increase his reading skills from a readiness level to a first grade level." (A.R. Ex. 33 at 37.) To accomplish this, the District provided C.B. with thirty minutes of daily direct instruction from special education teacher Lynda Kelley ("Kelley"). A June 10, 2004, report indicated that C.B. had made "slow progress" toward the IEP goal and that he could read first grade material at a rate of thirteen words per minute. This fell far short of the sixty-five-word-per-minute rate expected of students who have completed first grade. (A.R. Ex. 31 at 1-2; Ex. 76 at 671.)
C.B.'s second and third grade IEPs set forth the same goal as the first grade IEP. (A.R. Ex. 37 at 14; Ex. 38 at 8.) At this time, the District was providing C.B. sixty minutes per day of direct reading instruction and forty minutes per week of direct instruction in study skills. (A.R. Ex. 45.) Reports in June and September 2005, however, again indicated that C.B. had made "slow progress." By the end of third grade, C.B. could read first grade material at a rate of thirty-three words per minute. (A.R. Ex. 35 at 1; Ex. 38 at 8; Ex. 52 at 20.)
Kelley tutored C.B. in the Orton-Gillingham reading program for a total of nine hours during the summer between third and fourth grade. (A.R. Ex. 75 at 472.) According to Kelley, C.B. "responded well" to the program and his reading scores improved. (A.R. Ex. 44; Ex. 75 at 472.) When C.B. returned to Hale for fourth grade in fall 2006, however, Kelley noted that he had regressed. (A.R. Ex. 75 at 506.)
Due to the ongoing concerns about C.B.'s skill level, the District conducted a comprehensive reevaluation of his performance and educational needs in October 2006. (A.R. Ex. 43 at 45.) The evaluation again determined that C.B. was "severely underachieving" in reading and writing. (Id. at 55.) C.B.'s standard score in reading on the Woodcock Johnson test placed him in the .10 percentile relative to his peers. (Id. at 48; Ex. 76 at 599.) Furthermore, the report noted a "severe discrepancy" between C.B.'s underachievement in reading and writing and his "average" intellectual ability. (A.R. Ex. 43 at 56.)
At an October 12, 2006, IEP team meeting, the District recommended that C.B. transfer to a public school in Minneapolis that offered the Federal Setting III Coordinated Learning for Academic and Social Success Program ("CLASS program"). (A.R. Ex. 46 at 1; Ex. 75 at 523.) The CLASS program provides a special, research-based curriculum designed for elementary school students with severe disabilities. (A.R. Ex. 46 at 1-2; Ex. 76 at 713-14.) Students in the CLASS program receive small group and one-on-one special education instruction and spend thirty percent of their day in the general education environment. (A.R. Ex. 46 at 1-2; Ex. 75 at 524-25.) C.B.'s mother, however, refused to pursue the CLASS program because C.B. had friends at Hale and she was concerned that transferring schools would negatively impact his self-esteem and social skills. (A.R. Ex. 74 at 211-12; Ex. 75 at 525-26.) As a result, the District did not include the CLASS program in C.B.'s IEP. (A.R. Ex. 76 at 702-03.)
The goal of C.B.'s fourth grade IEP was to "increase his reading skills from a beginning first grade level to an end of first grade level." (A.R. Ex. 42 at 32.) To achieve this goal, Kelley used three different reading programs with C.B., including the Orton-Gillingham program, and tracked C.B.'s reading fluency each week. (A.R. Ex. 75 at 468.) By the end of the fourth grade, C.B. could read first grade material at a rate of sixty words per minute. (A.R. Ex. 52 at 22, Ex. 75 at 548.) This rate, however, remained well behind the 132 words per minute of fourth grade material expected of students finishing the fourth grade. (A.R. Ex. 42 at 32; Ex. 75 at 550-52.)
C.B. attended Field Community School in Minneapolis for fifth grade. (A.R. Ex. 49.) At the beginning of the school year, C.B.'s reading rate had dropped to forty-two words per minute at a first grade level. (A.R. Ex. 59 at 236.) At a September 2007 meeting, C.B.'s mother again refused the IEP team's recommendation to transfer C.B. to the CLASS program, and the program was not included in the IEP. (A.R. Ex. 74 at 132-33; Ex. 76 at 738.)
The goal of C.B.'s fifth grade IEP was to "increase his reading skills from a first grade level to a second grade level." (A.R. Ex. 59 at 236.) A progress report written at the end of the school year stated that C.B. had made "slight progress" toward this goal and could read second grade material at a rate of fifty-five words per minute. (A.R. Ex. 58 at 209.) C.B.'s mother, however, believed that the report overestimated C.B.'s abilities and contacted Dr. Susan Sorti ("Sorti") to conduct a cognitive neuropsychological assessment of C.B. (A.R. Ex. 74 at 148-50, 152-53.) After a June 2008 evaluation, Sorti concluded that C.B. had "average intellectual capabilities," but noted that (A.R. Ex. 50 at 42-43.) Sorti diagnosed C.B. with an auditory processing disorder, dysgraphia and dyslexia and recommended that C.B. attend Groves Academy ("Groves"), a private school that specializes in educating children with learning disorders. (Id. at 33, 42-43; Ex. 74 at 156-57; Ex. 75 at 278.) C.B.'s mother immediately began the process of enrolling C.B. at Groves. (A.R. Ex. 74 at 157.)
On July 17, 2008, C.B.'s parents notified the District that they intended to enroll C.B. at Groves because his special education program "continues to remain the same with little change year after year to the goals and objectives" and "recent outside testing reflected that C.B. has made no demonstrable progress." (A.R. Ex. 51 at 1; Ex. 74 at 162-63.) In addition, C.B.'s parents asked the District to pay for C.B.'s tuition at Groves. (A.R. Ex. 51 at 1; Ex. 74 at 162-63.) The District refused this request by letter on July 21, 2008, stating that C.B.'s "level of direct service in reading has increased each year," and C.B. is "making slow but steady progress." (A.R. Ex. 51 at 2, 4.) Furthermore, the letter noted that the District had twice recommended that C.B. transfer to the CLASS program but that C.B.'s parents had rejected this option. (Id. at 4.) Lastly, the District offered to hold an IEP team meeting to discuss the concerns of C.B.'s parents. (Id.) C.B.'s parents rejected the District's offer and on August 27, 2008, signed an enrollment contract with Groves. (A.R. Ex. 50 at 31-32.)
On September 1, 2008, C.B.'s parents requested a special education administrative hearing pursuant to 34 C.F.R. § 300.532(a) to contest the District's reimbursement decision. Hearings occurred before an independent hearing officer ("IHO") for three days beginning on November 19, 2008. After receiving exhibits and listening to the testimony of witnesses, the IHO determined in a December 19, 2008, order that the District did not provide C.B. a free and appropriate public education ("FAPE"), that Groves was an appropriate placement and that C.B., by and through his parents, was entitled to $6,800 for the cost of enrollment at Groves for the 2008 to 2009 school year. (IHO Order at 19, 22, 25.) C.B. brought this action on February 9, 2009, seeking attorney's fees and costs arising from the administrative hearing. The District filed a counterclaim on March 4, 2009, appealing the IHO's decision. The parties' separate motions for summary judgment are now before the court.
"Because judges are not trained educators, judicial review under the IDEA is limited." E.S. v. Indep. Sch. Dist., No. 196 Rosemount-Apple Valley, 135 F.3d 566, 569 (8th Cir.1998). Although the court must base its decision on the preponderance of the evidence, it must also...
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