C.B. v. Special Sch. Dist. No. 1

• Decision Date: 21 April 2011
• Docket Number: No. 09–3104.,09–3104.
• Citation: 636 F.3d 981
• Parties: C.B., by and through his parents, B.B. and C.B., Appellant,v.SPECIAL SCHOOL DISTRICT NO. 1, MINNEAPOLIS, MINNESOTA, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

636 F.3d 981

266 Ed. Law Rep. 71

C.B., by and through his parents, B.B. and C.B., Appellant,

v.SPECIAL SCHOOL DISTRICT NO. 1, MINNEAPOLIS, MINNESOTA, Appellee.

No. 09–3104.

United States Court of Appeals, Eighth Circuit.

Submitted: May 13, 2010.Filed: April 21, 2011.

Margaret O'Sullivan Kane, argued, St. Paul, MN, for appellant.Laura Tubbs Booth, argued, Plymouth, MN, for appellee.Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges.COLLOTON, Circuit Judge.

C.B. is a child with a learning disability who resides within the Special School District No. 1 (“School District”) in Minneapolis, Minnesota. C.B. and his parents allege that the School District violated his rights under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., by denying him a free appropriate public education to which he is entitled under the statute. C.B. transferred to a private educational institution, and he and his parents claim that they are entitled to reimbursement from the School District for one year of private tuition.

The district court ruled that the School District had failed to provide a free appropriate public education to C.B., but granted summary judgment in favor of the School District on the ground that C.B. and his parents were not entitled to reimbursement for private tuition. C.B. and his parents appeal. We reverse and remand for further proceedings.

I.

C.B. began kindergarten in 2002 at Hale Elementary School, a public school in Minneapolis for students in kindergarten through fourth grade. Within weeks of his enrollment, C.B.'s teacher noticed that he did not know many letters and sounds and was making slow progress in reading. C.B.'s mother also recognized her son's difficulty and expressed concern to his teacher that C.B. might be dyslexic.

By the time C.B. reached first grade, the School District determined that a special education evaluation was necessary. As part of the evaluation, C.B. took the Woodcock–Johnson III Achievement Test and placed in just the first percentile for reading skills. C.B. was diagnosed with a learning disability in reading and writing, and the School District determined that he was eligible for special education services.

The School District assembled a team of teachers and other officials qualified in special education who developed an individualized educational program (“IEP”) for C.B. in January 2004, in accordance with the requirements of the IDEA. See 20 U.S.C. § 1414(d). The IEP set an annual goal to “increase his reading skills from a readiness level to a first grade level.” C.B. was placed in a regular classroom, but he was also provided with thirty minutes of special reading instruction per day in a group setting.

At the time of the initial IEP, C.B. could read first grade material at a rate of three words per minute. C.B.'s measured reading rate increased to thirteen words per minute by the end of the school year, but remained far below the sixty words per minute expected of students finishing first grade. The School District characterized C.B.'s progress in a June 2004 report as “slight.”

The School District formulated C.B.'s second grade IEP in September 2004, and reiterated the goal of the initial IEP to “increase his reading skills ... to a first grade level.” Periodic evaluations continued to indicate “slight progress” in reading, but by the end of second grade, C.B.'s reading rate for first grade material was still far short of expectations. Records from C.B.'s third grade year exhibit few changes. The annual reading skills goal in his third grade IEP was the same as in prior years, but the District determined that an additional sixty minutes per week of special education in writing were appropriate. Periodic reports showed the same “slight progress,” and testing at the end of third grade indicated a reading rate of thirty-two words per minute.

During the summer between third and fourth grade, C.B.'s special education instructor at Hale, Lynda Kelley, invited him to attend a program in which the Orton–Gillingham reading method would be used. This program was not sponsored by the School District. After a total of nine one-hour sessions, Kelley reported significant increases in C.B.'s reading and spelling scores, and noted that the intervention was more successful than any she had used.

By the time C.B. started fourth grade, however, much of the progress he made during the summer sessions had been lost. Kelley attributed this setback to a lack of continuous instruction. Concerned about C.B.'s regression, Kelley recommended that the student's three-year special education re-evaluation be conducted in October 2006, three months earlier than scheduled. The evaluation showed that C.B.'s response to prior interventions was “[i]nadequate,” and that he was “severely underachieving” in reading and writing. On one broad measure of reading ability on the Woodcock–Johnson III test, for example, C.B.'s scores declined to the 0.10 percentile. The evaluation also noted a “severe discrepancy” between C.B.'s intellectual ability, which measured in the “average range,” and his underachievement in reading.

Following the re-evaluation, team members met to prepare an IEP for C.B.'s fourth grade year. Notes from this meeting indicate that C.B. was socialized and well behaved, but he continued to struggle with word recognition. According to Kelley, District officials discussed with C.B.'s mother the possibility of transferring her son to another public school in Minneapolis that offered the Coordinated Learning for Academic and Social Success (“CLASS”) program. The CLASS program is designed to help students with disabilities, including secondary behavioral problems, who are in need of intensive special education services. One teacher is assigned to every twelve to fifteen students in the program, and more than sixty percent of each school day is devoted to specialized instruction focusing on basic academic, social, and problem-solving skills. C.B.'s mother was not interested in the CLASS program at that time because she was concerned that such a move would hurt her son's self-esteem and social skills. Neither the IEP conference notes nor the fourth grade IEP reference the CLASS program.

The annual reading goal established in 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.” The School District increased his special reading instruction to sixty minutes per day. During the academic year, one of C.B.'s teachers expressed concern about the student's inability to focus in class, and recommended to C.B.'s mother that she look into Groves Academy as an alternative placement. Groves is a private school in St. Louis Park, Minnesota, that specializes in educating children with learning disabilities. By the end of fourth grade, C.B.'s reading level was less than what he had achieved the previous summer, and far below the fluency expected of a student at the end of fourth grade.

In the fall of 2007, C.B. began attending fifth grade at Field Middle School in Minneapolis, another public school near the student's home. An evaluation at the beginning of the school year indicated that C.B.'s reading fluency had again decreased over the summer. Members of the IEP team met in September 2007 to create a new IEP, and again discussed the CLASS program. Notes summarizing the IEP conference indicate that the CLASS program was one of three options reviewed with C.B.'s mother. C.B.'s mother was concerned that the CLASS program was designed for students with behavioral problems and would not be a good fit for her son. C.B.'s mother also wanted him to attend school with his friends, one of whom helped him with his homework by reading materials to him. Therefore, she agreed to an option proposed by the District that permitted C.B. to stay at Field.

C.B.'s fifth grade IEP acknowledged growing concern from his parents and teachers about his “slow progress” in reading, and set a goal to “increase his reading skills from a first grade level to a second grade level.” A report at the end of fifth grade, however, indicated only “slight” and “moderate” progress, and C.B.'s reading fluency for second grade material was measured at fifty-five words per minute, well below the reading ability of his peers.

Because of their son's continued lack of progress, C.B.'s parents arranged for him to meet with Dr. Susan Storti, a neurocognitive psychologist and language specialist, in June 2008. Dr. Storti administered a series of cognitive and behavioral tests, including the Woodcock–Johnson III test, which indicated that C.B.'s reading skills remained in the first percentile. Dr. Storti concluded that C.B. presented with “average” intelligence and appeared to be a “positive and resilient young man.” Dr. Storti diagnosed C.B. with an auditory processing disorder and severe dyslexia and dysgraphia. She advised C.B.'s parents to consider placing their son at Groves Academy.

C.B.'s mother then began the process of enrolling C.B. at Groves. In July 2008, C.B.'s parents notified the School District by letter of their intention to enroll C.B. at Groves and requested that the District pay his private school tuition. They stated in the letter that their decision to seek a private placement was based on the fact that their son's special education program “continues to remain the same with little change year after year to the goals and objectives.” C.B.'s parents also noted the fact that their son had “made no demonstrable progress” in his years in Minneapolis public schools, and expressed their belief that he had not “been provided with the right interventions to address his disabilities.”

The School District refused the request to pay C.B.'s private school tuition. The District stated that C.B. was making “slow but steady progress” in public school, and that the amount of special education services he received had...