Cavanagh v. Grasmick
| Decision Date | 24 November 1999 |
| Docket Number | No. CIV. AMD 98-3400.,No. CIV. AMD 99-543.,CIV. AMD 98-3400.,CIV. AMD 99-543. |
| Citation | 75 F.Supp.2d 446 |
| Parties | Matthew CAVANAGH, et al., Plaintiffs v. Nancy GRASMICK, et al., Defendants |
| Court | U.S. District Court — District of Maryland |
Julie Ann Starbuck, Holly Lynn Parker, Michael J. Eig, Matthew B. Bogin, Eig, Parker & Starbuck, Washington, DC, for plaintiffs.
J. Joseph Curran, Jr., Attorney General, Dana Hendricks Murray, Assistant Attorney General, Baltimore, Andrew W. Nussbaum Knight, Manzi, Nussbaum & LaPlaca, Upper Marlboro, MD, for defendants.
These actions were brought by Martin Cavanagh in his own right and on behalf of his son, Matthew (together, the "Cavanaghs"), relying principally upon the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400, et seq., against defendants, the Maryland State Department of Education and its Superintendent, Nancy S. Grasmick (together, "MSDE") and the Prince George's County Public Schools and its Superintendent, Jerome Clark (together, "PGCPS").1 The Cavanaghs allege, inter alia, that defendants failed to provide Matthew with a "free appropriate public education" ("FAPE") for the 1997-98 and 1998-99 school years and otherwise violated IDEA in myriad respects.
The Cavanaghs filed separate actions for each of the school years at issue and the actions have been consolidated.2 Pending before the court are MSDE's Motion to Dismiss, or in the Alternative, For Summary Judgment, and PGCPS's Motion for Summary Judgment. I have reviewed the administrative record and thoroughly examined the parties' submissions; no hearing is necessary. For the reasons discussed below, I will grant defendants' motions.
I. FACTS
Matthew, now 16 years old, has a history of congenital hydrocephalus and Arnold-Chiari Malformation Syndrome.3 He is classified as "other health impaired" and qualifies for special education services under the IDEA.4 As a result of his condition, and although he presents socially as a normal child, his cognitive functioning falls within the mentally deficient range. He has difficulty with focusing, retaining information and with spatial and visual perception.
During the 1996-97 school year, Matthew attended seventh grade and received regular and Intensity III special education services at the Benjamin Tasker Middle School ("Tasker"), a public school within the PGCPS system.5
During Matthew's year at Tasker, the Cavanaghs concluded that its services were not meeting Matthew's educational needs. They requested an Admission, Review and Dismissal ("ARD") meeting6 with PGCPS to discuss accommodations to meet Matthew's educational needs and to develop an Individualized Education Plan ("IEP").7 Between early and mid-1997, the Cavanaghs submitted Matthew to the Kennedy Kreiger Institute ("Kennedy Krieger") for evaluation and retained the services of Dr. Laura Soloman, an independent special education consultant, to assist them in identifying an appropriate program for Matthew.8 In the course of negotiations between the Cavanaghs and PGCPS regarding Matthew's year at Tasker and Matthew's future educational placement for the upcoming 1997-98 school year, the parties reached an impasse and the Cavanaghs filed a due process hearing request.
On or about August 28, 1997, and prior to the completion of the requested due process hearing, the Cavanaghs and PGCPS reached a settlement agreement. The parties agreed that Matthew's educational needs for the 1997-98 school year could be accommodated by the special education services provided in the special education "wing" at Kettering Middle School ("Kettering"), another public school placement within the PGCPS system.9
Following Matthew's assignment to Kettering, but before Matthew enrolled, the Cavanaghs took a tour of the school. Undoubtedly, they were impressed with the understanding that the Kettering program included functional life skills instruction combined with intensive one-on-one instruction for Matthew with a personal aide.10
Matthew started eighth grade at Kettering on September 2, 1997. Shortly thereafter, on September 11, 1997, the Kettering ARD team met to develop an IEP for Matthew.11 Dr. Soloman attended the meeting with Mrs. Cavanagh. Mr. Cavanagh, who was out of town at the time, did not attend. Based on her own evaluation of Matthew, Dr. Soloman, on behalf of the Cavanaghs, submitted for consideration by the ARD team her proposals regarding the appropriate reading, math, written language, functional life, self-help, organizational, business and services skills objectives for Matthew for the 1997-98 school year. To meet these objectives, Dr. Soloman suggested a functionally- and vocationally-oriented program. In addition, Mrs. Cavanagh expressed her concern at the meeting that the IEP should emphasize the development and reinforcement of Matthew's reading skills.12 Incorporating some of the suggestions made by Dr. Soloman and Mrs. Cavanagh, the ARD team developed an IEP for Matthew that provided for Intensity IV special education services at Kettering.
Matthew's IEP articulated eight annual goals, each consistent with the Cavanaghs' and PGCPS' mutual conclusion that a functional vocational educational program would meet Matthew's educational needs.13 The annual goals were to be achieved through 56 enumerated objectives and measured by, for the most part, teacher-made tests, record-keeping and review of Matthew's work samples. Matthew's IEP was to be executed during 27.5 hours of special education instruction in the Kettering wing, to be divided between CRI/CBI functional vocational classes and self-contained academic classes in Reading, Math, Science, English and Social Studies. The IEP did not allocate the 27.5 hours between CRI/CBI classes and self-contained classes with any particularity. Itinerant special education services, such as occupational and psychological therapy, were to be furnished on a consultation basis. The IEP also provided for a full-time aide to assist Matthew with organization and recording of assignments.
To supplement Matthew's special education services and to provide the least restrictive environment, the IEP also provided for 3.5 hours of regular education, which included interaction with non-disabled peers in Physical Education and Creative Arts classes. The subjects covered by the Creative Arts class — Art, Power Math, Drama and Music — changed on a quarterly basis. In addition to regular classes, Matthew's IEP provided for interaction with non-disabled peers during meals, assemblies, special events, recreational activities, student clubs, field trips and locker assignments. The IEP, which was agreed to by the Cavanaghs,14 called for a 45 day review.
On November 5, 1997, the ARD reconvened for its scheduled 45 day review to assess Matthew's progress at Kettering, to make any needed adjustments to Matthew's IEP and to take up any issues raised by the Cavanaghs and Dr. Soloman. What can be distilled from the record is that during Matthew's first four weeks or so at Kettering, the following concerns were brought to light by the Cavanaghs: (1) that Matthew required more reading time;15 (2) that the functional vocational lessons in the CRI class were below Matthew's abilities;16 and (3) that the CBI field trips (i) conflicted with Matthew's reading time on Tuesdays, and (ii) combined with CRI, were generally repetitive and redundant in view of Matthew's abilities.17
To address their concern about improving Matthew's reading ability, the Cavanaghs proposed adjusting Matthew's schedule to include a substantial period of time each day for interaction with his aide for the purpose of concentrating intensely on basic reading and to help Matthew develop a reading strategy. See PGCPS Exhibit 6. Strengthening Matthew's reading skills, the Cavanaghs hoped, would facilitate the improvement of Matthew's writing and mathematics skills. See id. To address their concern that the instruction provided in the CRI setting appeared to be below Matthew's ability, Dr. Soloman concluded following her October 29, 1997, observation of CRI class that Matthew would be better served by tailoring the CRI lessons to his level by grouping him with two or three of the similarly-functioning youngsters. See Tr. I at 765-66. To address the concern that the CBI class conflicted with Reading class and was at times overly repetitive, the Cavanaghs made no specific proposal, yet both the Cavanaghs and PGCPS affirmed their belief that a functional and vocational instruction program was consistent with Matthew's needs. See Tr. I at 642; id. at 768-69 () (testimony of Dr. Soloman).
To accommodate the Cavanaghs' concern that Matthew required more concentrated instruction in reading, the ARD team added another reading objective to Matthew's IEP.18 To accommodate the Cavanaghs' concern that the CRI instruction was below Matthew's ability, the ARD team made adjustments by removing CRI from Matthew's schedule, and placing in its stead a self-contained Science and Health class that was part of the wing. See Tr. I at 647; id. at 762; compare Parents Exhibit 13 (Schedule, Matthew Cavanagh), with Parents Exhibit 17 (Proposed Non-CRI Schedule, Matthew Cavanagh). To accommodate the Cavanaghs' concern about the conflict between CBI and Matthew's Reading class and the repetitive nature of the field trips, the IEP was also modified to allow Matthew to attend CBI field trips only when the parents believed Matthew could benefit from the trip.19
While Matthew's schedule was modified at the November 5 meeting, on the whole the addition of the reading objective and the curtailment of Matthew's...
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