Hiller v. Bd. of Educ. of Brunswick Cent. Sch. D.

• Decision Date: 02 August 1990
• Docket Number: No. 87-CV-1141.,87-CV-1141.
• Citation: 743 F. Supp. 958
• Parties: David HILLER, a Handicapped child by his Parents and Natural Guardians Robert HILLER and Nancy Hiller, Plaintiff v. BOARD OF EDUCATION OF the BRUNSWICK CENTRAL SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Northern District of New York

743 F. Supp. 958

David HILLER, a Handicapped child by his Parents and Natural Guardians Robert HILLER and Nancy Hiller, Plaintiff v. BOARD OF EDUCATION OF the BRUNSWICK CENTRAL SCHOOL DISTRICT, Defendant.

No. 87-CV-1141.

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

August 2, 1990.

COPYRIGHT MATERIAL OMITTED

Cooper Erving Savage Nolan & Heller, Albany, N.Y., for plaintiff; Robert G. Wakeman, of counsel.

Whiteman Osterman & Hanna, Albany, N.Y., for defendant Bd. of Educ. of Brunswick School Dist.; Melvin H. Osterman, Kenneth S. Ritzenberg, Jonathan Wood, of counsel.

Robert Abrams, Atty. Gen. of State of N.Y., Albany, N.Y., for defendant Thomas Sobol; Lawrence L. Doolittle, Asst. Atty. Gen., of counsel.

MEMORANDUM-DECISION AND ORDER

McCURN, Chief Judge.

Plaintiff David Hiller ("David"), by his parents Robert Hiller ("Mr. Hiller") and Nancy Hiller ("Mrs. Hiller"), brings this action pursuant to the Education for All Handicapped Children Act ("EAHCA" or "Act"), 20 U.S.C. § 1400 et seq., alleging that plaintiff is a handicapped child who was denied a free, appropriate education while a student at the defendant Brunswick Central School District ("Brunswick" or "Brittonkill"). Plaintiff seeks a declaration from this court stating that he is a handicapped child within the meaning of the Act; as well as $15,228.00 plus interest in monetary relief, which amount includes a demand for $10,000 in punitive damages against the defendant. Brunswick claims that David has never been a child with a handicapping condition, and that even had he been so handicapped, the education plaintiff received, and the services the defendant provided David during his attendance at Brunswick comported with the requirements of the EAHCA. For the reasons stated below, this court finds that (1) David was not a child with a handicapping condition during the 1985-86 or 1987-1988 school years, and (2) the education and services provided by the defendant to the plaintiff during the academic year 1986-1987 satisfied the requirements of the EAHCA. This matter was tried to the court without a jury from February 28, 1990 to March 6, 1990. Pursuant to Rule 52, Fed.R.Civ.P. the court makes the following:

Findings of Fact

David entered the defendant's school system as a fifth grade student in September of 1985 after he and his parents moved from Albany, New York into the Brunswick school district. At the time of this transfer, Brunswick received academic and other records from David's prior school, records which gave no indication that the plaintiff ever suffered from any physical or learning disability or any handicapping condition.

Towards the end of September, David's fifth grade teacher, Hope Davis ("Davis") noticed that the plaintiff was experiencing problems with handwriting, organization, attention and following directions; therefore she arranged to meet with Mrs. Hiller to discuss Davis' concerns about the plaintiff. After this meeting, Davis referred the plaintiff to the school district's Child Study Team ("CST") in an attempt to ascertain the cause of plaintiff's learning problems.¹ At the time she filled out the CST referral form, Davis did not believe David had a learning disability, but, at the request of Mrs. Hiller, Davis asked the CST to determine whether the plaintiff was suffering from a learning disability, and if so what remedial actions Brunswick should undertake.²

On October 9th, 11th, and 15th of 1985, the Chairperson of the CST Debra Marcal ("Marcal"), Brunswick's psychologist, with the consent of Mrs. Hiller, performed various tests on David which tested plaintiff's intelligence, achievement, and visual-motor integration skills.

On the Wechsler Intelligence Scales for Children — Revised ("WISC-R") test, David achieved a verbal score of 119, a performance score of 102, and a full scale IQ of 112. These test results indicated that David had high average functioning skills, above average verbal abilities, and average spacial abilities. Marcal testified at trial that David's IQ, based upon his WISC-R score, was high average. When given the Peabody Individual Achievement Test ("PIAT"), David performed at or above his current grade level in all areas but spelling, where he was functioning at a level one year below his fellow classmates.³ His performance on the Visual Motor Integration Test ("VMI") was four years below his grade level, with his problems resulting from his weak attention span and difficulties in copying from the blackboard to his own paper.⁴ David also successfully completed the test of written language ("TOWL"), which measures an individual's handwriting skills as well as their overall abilities to compose an essay. His handwriting appeared to be legible and was similar to that of an average seventh grader.⁵

At the conclusion of this battery of tests, Marcal noted that David:

Is a 5th grade boy of high average intelligence and average achievement in school. His performance of those skills that he possesses is sometimes hindered, however, by his poor attention spans and weak copying skills.⁶

While Marcal did not find David to be a learning disabled child, she did note that he had some learning problems which might be improved by modifications to his current classroom programs.⁷ In response to Marcal's suggestions, David's fifth grade teacher implemented a remedial program for David designed to strengthen those areas in which plaintiff was academically weak.⁸

Approximately four months after Brittonkill's evaluation of David, Mrs. Hiller privately arranged to have her son evaluated by a team of professionals at the Boston Children's Hospital ("BCH"). After this evaluation, David's mother notified Brittonkill about the study and requested that she be given an opportunity, prior to receiving its written report, to orally inform Brunswick personnel about the results of the BCH study. The defendant granted Mrs. Hiller's request, and met with her on February 14, 1986. While at this meeting, Mrs. Hiller stated that she wanted David referred to the Committee on the Handicapped.⁹ She also told those present that the persons at the BCH believed David should not do any writing in the classroom, but rather that all of his writing tasks should be performed on a word processor.¹⁰ Relying on Mrs. Hiller's representations concerning the BCH's study, assertions which subsequently proved to be at variance with the actual written report, Brunswick implemented several changes in David's educational program which included, inter alia, the use of a word processor for all of plaintiff's written work. However, after allowing David unrestricted access to this device for several weeks, Davis noticed that disciplining David had become more of a problem, and that the plaintiff's use of the word processor was causing a deterioration in his organizational skills and his ability to shift his focus from one subject to another while in the classroom; therefore Davis limited the time David could spend using the word processor while in school.

On March 10, 1986, Mrs. Hiller wrote to Darlene Egelson ("Egelson"), the chairperson of the CSE, and requested in writing that the CSE designate David as a child with a handicapping condition. In this letter, Mrs. Hiller also provided Brunswick with a copy of the BCH report. This study observed, inter alia, that Davis had noticed that the plaintiff had difficulty concentrating during class, was easily distracted and demonstrated impulsivity in his work style.¹¹ The report also noted that plaintiff's fine motor skills were compromised by his impulsive behavior and his disorganized approach to tasks.¹² The study offered numerous suggestions relating to David's academic program at Brunswick, and concluded that (i) David would benefit from approximately thirty minutes to one hour of remedial assistance daily, (ii) writing assignments should be highly structured for David, (iii) plaintiff would benefit from practice in advanced word attack skills and spelling drills, (iv) David should be encouraged to learn word processing, and (v) the use a typewriter or a word processor at home and in school would be a useful adjunct in developing his skills in written expression by reducing the effort required in the mechanics of the task.¹³

In response to Mrs. Hiller's request, Brittonkill notified the plaintiff's parents in writing that a CSE meeting would be held on April 8, 1986. At this meeting, the CSE heard presentations provided by plaintiff's mother, his teacher Hope Davis, and Brittonkill's psychologist Debra Marcal concerning David's condition.¹⁴ The CSE also reviewed the findings of the BCH. Towards the end of this meeting, chairperson Egelson asked the members of the CSE if anyone present would recommend that David be classified as a child with a handicapping condition, however none of the members present so motioned. Realizing that the plaintiff nonetheless had special needs, Egelson emphasized to the members of the CSE that it was "incumbent upon Brunswick to make some other provisions for David", and accordingly arranged to have another meeting concerning the plaintiff's classroom programs on April 10, 1986.¹⁵

The chairperson of the CSE, the school principal, a speech pathologist, David's fifth grade teacher and Mrs. Hiller all met on this date to devise yet another remedial program for the remainder of David's fifth grade year. At the meeting, Mrs. Hiller conceded that her son had poor work habits that he would have to "unlearn" in order to be successful at school.¹⁶ Brunswick explained to Mrs. Hiller the remedial program it had developed for the plaintiff, a plan which Mrs. Hiller conceded at trial met with her approval.¹⁷ This program was implemented by the defendant, and David subsequently passed all of his fifth grade courses¹⁸ as well as the statewide fifth grade writing test.¹⁹

On May 6, 1986, Mrs. Hiller met with the persons who were to become David's sixth grade teachers, and discussed with...