James S. v. Town of Lincoln
| Decision Date | 23 August 2012 |
| Docket Number | C.A. No. 11-236 ML |
| Parties | JAMES S. AND MICHELLE S., individually and on behalf of their son J.S., and J.S., Plaintiffs, v. TOWN OF LINCOLN and LINCOLN SCHOOL DEPARTMENT, Defendants. |
| Court | U.S. District Court — District of Rhode Island |
This case is brought by James S. and Michelle S., ("Mrs. S.") individually and on behalf of their son, J.S., and J.S., ("Plaintiffs"), pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA"). Plaintiffs seek reversal of a hearing officer's decision that J.S. made progress in the Lincoln Public School System and that the Lincoln School Department's ("Lincoln") August 28, 2008, individual educational plan ("IEP") was designed to provide J.S. with a free appropriate public education ("FAPE"). Defendants seek an order affirming the hearing officer's decision. The matter is before the Court on the parties' cross-motions for summary judgment.
J.S. attended kindergarten and first grade in the North Providence Public Schools.During first grade, however, J.S.'s family moved to Lincoln and J.S. began attending Lincoln Public Schools. Lincoln prepared its first IEP for J.S. in April 2002.2 At least fourteen IEPs were implemented during the time J.S. attended Lincoln schools. Mrs. S.3 signed and accepted the educational program in a majority of those IEPs. Throughout his academic career in the Lincoln school system, J.S.'s teachers described him as polite, well-behaved, cooperative, respectful, and motivated to learn.
As part of its evaluation process, Lincoln prepared quarterly reports on J.S.'s IEP goals and objectives. The reports measured J.S.'s progress by noting whether he (1) had achieved the objective, (2) made progress toward the objective, or (3) made no progress toward the objective.4 An April 1, 2002, progress report for first grade reflected that J.S. was making progress on all educational goals and objectives and that he had achieved two short-term objectives out of twenty-six. At the end of the 2001-2002 academic year, however, Lincoln recommended that J.S. repeat the first grade and Mrs. S. agreed.
J.S. repeated first grade in the September 2002-June 2003 academic year. During the latter part of the school year, Lincoln provided a reading specialist from the Dyslexia Association to work with J.S. A June 4, 2003, progress report reflected that J.S. was making progress on all educational goals. During the summer of 2003, J.S. attended a summer reading program for children with dyslexia. By the end of the summer, J.S.began to read.
J.S. was placed in a self-contained classroom in second grade (September 2003-June 2004).5 During second grade, J.S. improved from a level 5 to a level 14 in reading. A June 10, 2004, progress report reflected that J.S. was making progress on all educational goals. Again, during the summer of 2004, J.S. attended the summer reading program for children with dyslexia. By the end of the summer, J.S.'s reading skills had improved significantly.
For third grade (September 2004-June 2005) J.S. remained in a self-contained classroom. At the administrative hearing, Mrs. S. testified that she often observed J.S. in his second and third grade classroom and that he was distracted and disorganized. A September 2004 Lincoln referral for evaluation report stated that J.S. showed weakness in written expression but that he had "improved tremendously" in reading and math. Plaintiffs Exhibit 17 at 2.
Mrs. S. testified that it was during third grade that J.S. first started exhibiting a negative attitude toward school. In October 2004, Lincoln performed a special education reevaluation of J.S., and although his intelligence quotient was in the high average range and his reading vocabulary was in the 97th percentile, he scored extremely low in math calculation, math fluency and spelling. IEP meetings were conducted in December 2004 and February 2005. Once again, a progress report reflected that J.S. was making progress on all educational goals. During third grade, J.S. no longer qualified for special education services in reading.
Mrs. S. did not accept the educational program outlined in a May 12, 2005, IEP. The IEP provided that J.S. was to spend 22.5 hours per week in a self-contained classroom. The progress report on the May 12, 2005, IEP showed that J.S. made progress.
In fourth grade (September 2005-June 2006) J.S. was placed in a co-taught regulareducation classroom over Mrs. S.'s objection. J.S. was in the regular education classroom for 19.5 hours per week with 7.5 hours of special education support for writing, math, and certain "behavior" issues, i.e., work initiation and attention. Mrs. S. opposed this placement because she believed J.S. was having difficulties in the self-contained classroom and she feared he would be overwhelmed in the regular education classroom. Mrs. S visited J.S.'s fourth grade classroom occasionally. She believed that J.S. was disruptive to the class because J.S. was often not on task and he had to be repeatedly redirected by the teacher. The progress report on J.S.'s March 30, 2006, IEP showed progress in all areas and the attainment of four goals.
In April 2006, J.S. underwent a neuropsychological assessment. J.S. was diagnosed with dyslexia, auditory processing disorder, written language disorder and attention deficit disorder. Mrs. S. arranged for several other independent evaluations of J.S. and she provided the results of the evaluations to Lincoln.
J.S. was in a co-taught regular education classroom for fifth grade (September 2006-June 2007). In September 2006, J.S. underwent a psychological evaluation which concluded that J.S.'s "presentation" was "consistent with a diagnosis of Asperger's Syndrome." Plaintiffs' Exhibit 47 at 14. In May 2007, Mrs. S. visited the Lincoln Middle School to view a self-contained classroom that Lincoln was recommending for J.S. for the following school year. Mrs. S., however, decided that a self-contained classroom was not an appropriate placement for J.S.
In the summer of 2007 Mrs. S received a letter from Lincoln requesting parental consent for J.S. to undergo a clinical psychological evaluation. Mrs. S. agreed to the evaluation; she selected Dr. Karen Holler to perform the evaluation. During a June 14, 2007, IEP meeting, Mrs. S. requested that J.S. be placed in a private school. Lincoln, however, did not agree that theappropriate placement for J.S. was a private school. Mrs. S did not sign the June 14, 2007, IEP.
J.S.'s fifth grade report card reflected the following grades: reading B-, writing D, spelling A-, math C+, science B, and social studies B+. In homework, listening, independent working, and following directions, J.S. received grades of "poor." The progress report on the June 14, 2007, IEP showed that J.S. was making progress.
For sixth grade (September 2007-June 2008) J.S. returned to a self-contained classroom for 6 hours per week, later increased to 11 hours per week, with an additional 7.5 hours of special education support. In November 2007, Mrs. S requested an IEP meeting because J.S. was experiencing problems in math class. Mrs. S. testified at the administrative hearing that, in sixth grade, she had significant difficulty in getting J.S. to go to school. At or near this time, J.S. became unwilling to do his homework and Mrs. S. hired a tutor. J.S., however, chose not to work with the tutor. By the end of the school year, Mrs. S. could not get J.S. to do his homework.
Mrs. S.'s testimony at the administrative hearing covered approximately 400 pages and was supplemented by approximately 90 exhibits. Mrs. S.'s testimony detailed her dissatisfaction with J.S.'s progress in the Lincoln school system. Although Mrs. S. testified that J.S. possessed a good vocabulary, she also testified that he had significant difficulties in reading (comprehension and drawing inferences), writing, and basic math. She also explained that J.S. did not perform well in spelling and was unable to complete his homework without help. Mrs. S. admitted that she was confused about the meaning of the term "progress" on Lincoln reports. She measured J.S.'s progress by comparing J.S. to her two daughters.
Amy Delfarno ("Delfarno"), J.S.'s sixth grade special education teacher, testified thatJ.S. made academic and organizational gains in sixth grade. Delfarno stated that J.S. was able to work independently but he often needed breaks. Delfarno testified that J.S. completed several writing assignments that were assigned to regular education students. Delfarno stated that she modified J.S's. math curriculum by allowing him to use multiplication charts and a calculator. Near the end of sixth grade, J.S. tested at one year below grade in reading fluency (i.e., speed and accuracy) while his reading comprehension was at a high-average level.
Although Delfarno modified some assignments for J.S., J.S. received a grade of 83 on an unmodified social studies' test. Delfarno testified that it was difficult to make J.S. accountable for his homework, and although she offered to stay after school to help J.S. with his homework, Mrs. S. declined Delfarno's offer. Delfarno testified that she did not understand why J.S. was not doing his homework because he was "performing and doing [the] work in school." January 10, 2011, Transcript at 99.
Pamela Mackey ("Mackey"), J.S.'s sixth grade regular education science teacher, testified that J.S. was able to handle the class work but, at times, required modifications from Delfarno. J.S. passed all of his subjects in sixth grade and for final grades received three As, two Bs and one C. Delfarno testified, however, that these grades were based on J.S.'s "individualized instruction." Id. at 138. A progress report issued in April of 2008 reflected that J.S. was making progress in all areas and that he had attained two short-term objectives out of approximately forty.
Dr. Holler, a...
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