G.B. v. Tuxedo Union Free Sch. Dist.

• Citation: 751 F.Supp.2d 552
• Decision Date: 30 September 2010
• Docket Number: No. 09–CV–859 (KMK).,09–CV–859 (KMK).
• Parties: G.B. and L.B., on behalf of their minor child, N.B., and on their own behalves, Plaintiffs,v.TUXEDO UNION FREE SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Southern District of New York

751 F.Supp.2d 552

G.B. and L.B., on behalf of their minor child, N.B., and on their own behalves, Plaintiffs,

v.TUXEDO UNION FREE SCHOOL DISTRICT, Defendant.

No. 09–CV–859 (KMK).

United States District Court, S.D. New York.

Sept. 30, 2010.

Mary Jo Whateley, Esq., Legal Services of Hudson Valley, for Plaintiffs.Mark Craig Rushfield, Esq., Shaw, Perelson, May & Lambert, LLP, Poughkeepsie, NY, for Defendant.

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

“G.B.” and “L.B.” (collectively, “Plaintiffs”) bring this action against the Tuxedo Union Free School District (“Defendant,” or “the District”), on behalf of their eight-year-old daughter “N.B.,” who suffers from autism. The Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., requires that children with disabilities be educated with non-disabled children “to the maximum extent appropriate.” N.B.'s parents allege that the District violated this mandate by removing N.B. from her mainstream preschool class, and attempting to place her in a special education class made up entirely of students with severe disabilities. N.B.'s parents placed her in a mainstream private school class at their own expense, and are now suing the District under IDEA for, inter alia, reimbursement of N.B.'s tuition. Both parties have moved for summary judgment. For the reasons stated herein, the Court grants Plaintiffs' motion, and denies Defendant's motion.

I. Background

A. Factual Background

N.B. is an eight-year-old girl who has been diagnosed with Pervasive Development Disorder—Not Otherwise Specified (PDD–NOS), a form of autism. (Transcript of Administrative Hearing (“Tr.”) 455–46; Tr. 1093; Administrative Record, Parents Ex. (“Parents Admin. Ex.”) B., at 1; Administrative Record, District Ex. (“District Admin. Ex.”) 28, at 1.) ¹ N.B. has “a mixture of various strengths and weaknesses.” (Tr. 1093.) She has difficulty controlling her emotions and struggles with social interaction. (Tr. 1094.) She also has “poor” speech intelligibility and “significant language delay.” (State Office of Review Ex. (“SRO Ex.”) 1; see also Tr. 1094, 1108.) ² N.B. has displayed “a short attention span, limited eye contact, distractibility, and a high activity level,” engaged in “limited interactions with peers and adults,” and has “had difficulty transitioning from one activity to another,” becoming “agitated at times.” (SRO Ex. 1, at the tenth unnumbered page.) Her strengths include a good memory (Tr. 1094), and the ability to “model[ ] behaviors” she observes (Tr. 1199).

On April 18, 2005, the District's Committee on Preschool Special Education (CPSE) met to develop an Individualized Education Program (IEP) for N.B. for the upcoming 2005–06 school year. (SRO Ex. 4.) N.B. was approximately three and one-half years old at the time. The CPSE determined that N.B. had “significant delays in speech skills, language skills, motor skills, social skills and attentional skills, which interfere with participation in age appropriate activities” ( id. at 3), and classified her as “a preschool child with a disability,” ( id. at 5). Still, the CPSE decided against placing N.B. in a special education class because, in its opinion, special education was “overly restrictive and [N.B.'s] needs could be met in a less restrictive environment.” ( Id. at 3.) Instead, the CPSE decided to place N.B. in the YMCA's “Y's Beginnings/Little Pals” program, a mainstream preschool. ( Id. at 2.) The CPSE explained that N.B. “requires a small teacher-to-student ratio with minimal distractions,” and, therefore, “would benefit from a small structured preschool or nursery education class to provide her with age appropriate role models in language and social skills.” ( Id. at 4.) On the CPSE's recommendation, N.B. attended the YMCA's “Y's Beginnings/Little Pals” preschool four days a week for two and one-half hours a day, accompanied by a 1:1 aide who helped her keep pace with the class. ( Id. at 2.) Additionally, the CPSE arranged for N.B. to receive therapy at home. ( Id. at 1–2.) ³

N.B. appears to have made positive strides during the 2005–06 school year. The teacher of N.B.'s mainstream preschool class went out of her way to note that N.B. “has made many friends in class,” and “is doing wonderfull [sic].” (SRO Ex. 6, at 1, 4.) “I am seeing such an improvement,” she continued, “especially in her social skills.” ( Id. at 4.) Likewise, a report from one of N.B.'s tutors noted her linguistic progress. (SRO Ex. 2.) Specifically, it noted that N.B. “initiated naming objects in a purposeful manner, expressively made her needs and desires known,” could answer questions regarding her name and age, and was “learning to speak in sentences, such as, ‘I want ––––.’ ” ( Id. at 2.) N.B. continued, however, “to demonstrate difficulty with consistent appropriate eye contact.” ( Id.)

Dawn Sanchez, N.B.'s long-time therapist,⁴ witnessed N.B.'s progress during the 2005–06 school year. That year, Ms. Sanchez worked with N.B. twice a week in N.B.'s home, and would occasionally attend N.B.'s school to oversee her teacher and 1:1 aide. (Tr. 407, 1231.) Ms. Sanchez noted advances in N.B.'s social and academic skills. (Tr. 1233.) For example, N.B. demonstrated the ability to count (Tr. 1255), identify objects and body parts (Tr. 1250–51, 1272), and recognize letters and some words, (Tr. 1272–73). “Mrs. B.,” N.B.'s mother, also noticed these advancements. She testified that “[t]he children naturally gravitated to N.B. in the preschool,” and would fight about “who would get to sit next to N.B. in the classroom at the table for lunch.” (Tr. 1439.) By the end of the year, Mrs. B. said that N.B. knew the alphabet, the colors, and the body parts, and could count to fifty. (Tr. 1443–47.)

On June 5, 2006, the CPSE met to review N.B.'s progress during the 2005–06 school year, and to determine her placement for the 2006–07 school year. (District Admin. Ex. 9.) The CPSE issued an IEP that was similar to the last two. The '06–'07 IEP stated that N.B., now age four, had the expressive skills of a two-year-old, and, parroting a report issued two years earlier (SRO Ex. 1), noted that she had “a short attention span, high activity level, distractibility and limited eye contact.” (District Admin. Ex. 9, at 4.) The IEP also repeated, verbatim, the 4/18/05 IEP's finding that N.B. has “significant delays in speech skills, language skills, motor skills, social skills and attentional skills, which interfere with participation in age appropriate activities.” ( Id. at 3.) The '06–'07 IEP found that N.B. needed to improve, inter alia, language skills, social interaction with peers and adults, cooperative play skills, and frustration tolerance. ( Id. at 4–5) The CPSE again determined that N.B. “would benefit from a small structured preschool or nursery education class to provide her with same age appropriate role models in language and social skills” ( id.), and again declared that “a special class program ... was rejected” because “it would be overly restrictive and [N.B.'s] needs could be met in a less restrictive environment,” ( id. at 6). The portion of the IEP that directs the CPSE to explain “the extent, if any, to which the student will not participate in general education programs” reads “Not Applicable.” ( Id. at 3.) Yet, in an apparent contradiction, the IEP states that N.B. “will attend the Fred S. Keller School for the 2006/07 school year,” and “start in a self-contained classroom.” ( Id. at 5.) The IEP added that “[s]hould it be appropriate to move to an integrated classroom, the Committee will hold a meeting and document the change to reflect that recommendation.” ( Id.) ⁵ The IEP never stated that placement in a mainstream classroom would be inappropriate, much less explained why that might be the case. (District. Admin. Ex. 9.) ⁶ The IEP also provided N.B. with home therapy.⁷

The District's testimony has not explained why the CPSE decided to place N.B. in a self-contained classroom for the 2006–07 school year. In fact, there is even a dispute about whether the CPSE actually decided to place N.B. in a self-contained class for the 2006–07 year. Nancy Teed, who chaired every CPSE meeting regarding N.B. (Tr. 82), testified that Mr. and Mrs. B. agreed to place N.B. in the Keller School, with full knowledge that the class consisted solely of disabled students. (Tr. 87–88, 131–32, 608–23.) Ms. Teed said that Keller was planning on integrating N.B.'s class as soon as it received the necessary state certification. (Tr. 256–57, 335–36.) But, she noted, pursuant to N.B.'s IEP, Keller “was to inform [Teed] if they in fact were ... mov [ing] to a formal integrated classroom.” (Tr. 261.) If that occurred, Ms. Teed would have reconvened the CPSE to determine whether an integrated class was appropriate for N.B. (Tr. 269.) But, the class was not integrated while N.B. was there, at least according to Ms. Teed. (Tr. 261.)

Mrs. B. tells a different story. She attended all her daughter's 2006 CPSE meetings, and testified that the Committee never discussed placing N.B. in a self-contained class. (Tr. 1628–29.) The reason the Committee did not discuss whether it was necessary to place N.B. in a self-contained class, according to Mrs. B., is because it was not. (Tr. 1614.) Instead, Keller was chosen precisely because it was supposed to be integrated a few weeks after N.B. joined the class. ( Id.) Mrs. B swore that “I never would put [N.B.] in a self-contained program that was going to be there forever. It was a couple of weeks, that's what they told me.” ( Id.) Mrs. B. stated that both Ms. Teed and Dr. Robin Nuzzolo, the director of the Keller school, understood that it was Mrs. B.'s intent for N.B. to be in an integrated class, and told her that N.B.'s class would be integrated within three weeks of her arrival. (Tr. 516–17, 520.) ⁸ According to Mrs. B., N.B.'s class at Keller appeared to be integrated in October 2006. (Tr. 517, 545, 1428...