K.A.B. v. Downingtown Area Sch. Dist.
| Decision Date | 16 July 2013 |
| Docket Number | CIVIL ACTION NO. 11-1158 |
| Parties | K.A.B., by and through his parents, Susan B. and John B., and SUSAN B. and JOHN B., individually. Plaintiffs, v. DOWNINGTOWN AREA SCHOOL DISTRICT, Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Plaintiffs are a minor child, K.A.B., and his parents, Susan and John B. They bring this action against defendant, the Downingtown Area School District ("District"), alleging violations of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. ("IDEA"); section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("section 504"); Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12132 et. seq. ("ADA"); Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("Title VI"); and the Equal Education Opportunities Act of 1974, 20 U.S.C. §§ 1701 et seq. ("EEOA"). All claims are based on the District's failure to timely identify K.A.B. as learning disabled and its failure to provide adequate special-education programs.
Before me is plaintiffs' motion for judgment based on the administrative record and defendant's motion for summary judgment. For the reasons below, I will affirm the decision of the administrative law judge, who largely rejected plaintiffs' IDEA and section-504 claims, and I will grant summary judgment to the District on these claims. I will grant summary judgment tothe District on the ADA, Title VI, and EEOA claims, which were not addressed at the administrative level. I will direct both parties to brief the issue of attorneys' fees, because the plaintiffs received partial relief at the administrative level.
This action stems from the filing of a due process complaint in the Pennsylvania Office of Dispute Resolution ("ODR") by Susan and John B. against the District in January 2010. As mandated by the IDEA, a due process hearing was held before a hearing officer in the summer and fall of 2010. The hearing officer rendered her opinion in November 2010, setting forth her factual findings and legal conclusions. By law, "[f]actual findings from the administrative proceedings are to be considered prima facie correct." S.H. v. State-Operated Sch. Dist. of Newark, 336 F.3d 260, 270 (3d Cir. 2003). Thus, a district court must defer to the agency's findings "unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion or unless the record read in its entirety would compel a contrary conclusion." Id. "Extrinsic evidence" includes any documents or objective evidence that may clash with a witness's testimony. See Carlisle Area Sch. v. Scott P. ex rel. Bess P., 62 F.3d 520, 528 (3d Cir. 1995) (citing Anderson v. Bessemer City, 470 U.S. 564, 575 (1985)). Such evidence can be part of the administrative record, or it may be newly submitted to the district court. See S.H., 336 F.3d at 270 n.3 ("Under the IDEA, the District Court could have taken additional evidence." (citing 20 U.S.C. § 1415(e)(2)). Unlike factual findings, the administrative law judge's legal conclusions are subject to plenary review. See Munir v. Pottsville Area Sch. Dist., No. 3:10-cv-0855, 2012 WL 2194543, at *3 (M.D. Pa. June 14, 2012) (citing Warren G. v. Cumberland Cnty. Sch. Dist., 190 F.3d 80, 83 (3d Cir.1999)).
The following account of the facts is based on the hearing officer's decision (Admin. R. Ex. 2 ("HOD")), because after careful review of the evidentiary record, I find no reason to depart from her factual findings.1 K.A.B. was born in Russia on January 16, 2001. Br. Supp. Mot. J. Admin. R. ( ) The parents adopted K.A.B. from a Russian orphanage in December 2005, just prior to his fifth birthday. (HOD ¶ 2; Pls.' Factual Statement and Proposed Findings of Fact ¶ 11.) A month after his arrival in the United States, the parents requested that K.A.B. be evaluated for developmental progress and language skills at the Chester County Intermediate Unit. (Admin. R. Ex. 10, at 12.) The evaluation was inconclusive as to whether he needed services because K.A.B. was not conversant in English. (HOD ¶ 5.) Around the same time, K.A.B.'s parents put him in occupational therapy; the therapist noted no problems. (Id. ¶ 6.)
A few months later, K.A.B. began attending a private preschool program. After six months, in August 2006, he entered kindergarten at a District elementary school. K.A.B. continued to attend half-days at the private preschool. The parents provided extensive information about K.A.B.'s background to the District when he entered kindergarten. (Id. ¶¶ 9, 11-12.) Shortly before starting kindergarten, K.A.B. was evaluated for speech/language problems. Again, the evaluation was inconclusive as to whether there was a language disorder or K.A.B. simply needed more exposure to English. (Id. ¶¶ 7-8.)
Once K.A.B. started kindergarten, his parents requested another speech/language and occupational-therapy evaluation. November 2006 reports indicated that K.A.B. was not eligible for speech/language or occupational-therapy services at that time. In August 2007 his parents hadhim evaluated again for speech/language disabilities. No therapy was recommended and the evaluation was inconclusive due to the fact that K.A.B. was an early English-language learner. (Id. ¶¶ 11-12.)
In kindergarten and first grade, K.A.B. was enrolled in regular-education classes. However, he received Instructional Support Team ("IST") services and English as a Second Language ("ESL") services throughout this time period.2 (Id. ¶ 13.) K.A.B. exhibited problems in reading fluency, but made progress; again, reading was difficult, in part because K.A.B. was still acquiring English vocabulary. For most of first grade, K.A.B.'s teacher did not think a special-education evaluation was necessary. At the end of the school year, K.A.B.'s teacher discussed the possibility of an evaluation with his parents. (Id. ¶¶ 22, 24-25, 29, 34.)
Beginning in August 2008 (the summer after first grade) and continuing through second grade, K.A.B.'s parents purchased twice-weekly one-hour tutoring sessions for him. The tutor was a first-grade teacher at the elementary school that K.A.B. attended. K.A.B. also continued to receive IST and ESL services. At the beginning of second grade, his parents gave the District permission to evaluate him for special-education services. (Id. ¶¶ 31, 34.)
For the first part of second grade, K.A.B. received about an hour a day of reading support from the IST teacher and spent thirty minutes a day in ESL working on reading. (Id. ¶ 32.) OnNovember 26, 2008 (during second grade), an evaluation report declared K.A.B. eligible for special education under the classification of learning disabled. The evaluation found not only academic weaknesses, but weaknesses in organization, attention, and focus. (Id. ¶¶ 34, 38.) Pursuant to the evaluation, an Individualized Education Program ("IEP") was developed for K.A.B. With the implementation of the first IEP in December 2008, K.A.B. began receiving special-education services and IST services were discontinued. (Id. ¶¶ 15, 39.) At this point, K.A.B. was in the regular-education classroom for all instruction except language arts and ESL. He spent two hours and fifteen minutes per day on language arts in the special-education setting, with ten to eleven other students. (Id. ¶¶ 42-43, 45.)
In April 2009, another evaluation disclosed certain speech/language issues. Goals focused on speech/language deficiencies were incorporated into K.A.B.'s IEP as of May 2009 and it was updated to provide thirty minutes of speech/language therapy per week. (Id. ¶¶ 57, 92.) After second grade, K.A.B. was enrolled in a summer program to strengthen his academic abilities. While the parents chose the program, the District partially paid for it. (Id. ¶ 54.)
Prior to the start of third grade, the District offered to fund a neuropsychological evaluation for K.A.B. with an evaluator of the parents' choice. The evaluation was conducted by Dr. Kristen Herzel, and an evaluation report report issued in November 2009. It found weaknesses in reading, writing, and spelling, as well as issues related to speech/language articulation. This evaluation again noted difficulties in organization, focus, and attention. It added that K.A.B. demonstrated emotional issues related to anxiety, perfectionism, and low self-esteem. (Id. ¶ 56; Admin. R. Ex. 11 P-24.)
K.A.B.'s IEP was revised in November 2009 (partway through third grade). Itincorporated recommendations from the Herzel evaluation and was approved by the parents. Pursuant to this IEP, K.A.B. received 140 minutes of language arts instruction per day in the learning-support setting. There were ten students in the special-education class, and K.A.B. would receive 1:1 reading instruction for approximately thirty minutes a day. K.A.B. also continued receiving speech/language therapy. Finally, K.A.B. remained in ESL; he received 1:1 instruction for thirty minutes three times a week. (HOD ¶¶ 57, 59-61, 95.)
From almost the start of K.A.B.'s special-education program in December of 2008, his parents became frustrated with what they perceived as a lack of progress. (Id. ¶ 40.) In April 2010, less than a year after the first neuropsychological evaluation in November of 2009, the parents had K.A.B. privately evaluated by Dr. Karen Kelly. In her report, Kelly diagnosed K.A.B. with developmental dyslexia, a disability that affects reading ability and executive functioning (including skills such as organization). While noting deficits in attention and focus, the evaluation did not separately diagnose an attention disorder. (Id. ¶ 70; Admin. R. Ex. 11 P-41.) K.A.B.'s parents expressed their concerns to the District often, finally pulling K.A.B. from District educational programs at the end of third grade. The District offered an "Extended School Year" program to K.A.B. in the summer of 2010, but he did not attend. His parents placed him in...
To continue reading
Request your trial