A.K. v. Westhampton Beach Sch. Dist.
| Decision Date | 06 January 2021 |
| Docket Number | 17-cv-0866 (GRB)(SIL) |
| Parties | A.K, a minor (CHRISTIAN KILLORAN, as parent), Plaintiffs, v. WESTHAMPTON BEACH SCHOOL DISTRICT, MICHAEL RADDAY-SUPERINTENDENT, SUZANNE M. MENSCH, HALSEY C. STEVENS, STACY RUBIO, CLAIRE BEAN, JAMES N. HULME, JOYCE DONNESSON, and GEORGE R. KAST, JR. (individually and collectively as Board of Education Members), Defendants. CHRISTIAN KILLORAN and TERRIE KILLORAN, individually and on behalf of their infant son, A.K., a minor, Plaintiffs, v. WESTHAMPTON BEACH SCHOOL DISTRICT, MICHAEL RADDAY (individually and in his official capacity as SUPERINTENDENT), SUZANNE M. MENSCH, HALSEY C. STEVENS, STACY RUBIO, CLAIRE BEAN, JAMES N. HULME, JOYCE DONNESSON, and GEORGE R. KAST, JR. (individually and in their respective official capacities as Board of Education Members), Defendants. |
| Court | U.S. District Court — Eastern District of New York |
REPORT AND RECOMMENDATION
Presently before the Court, on referral from the Honorable Gary R. Brown for Report and Recommendation, are Plaintiffs' motions for summary judgment as to: (1) Plaintiffs' Fifth Cause of Action appealing both the independent hearing officer ("IHO") Dr. James A. Monk's ("IHO Monk") and state review officer ("SRO") Steven Krolak's ("SRO Krolak") 2017 decisions upholding Defendants' educational program recommendations; and (2) Plaintiffs' Seventh Cause of Action appealing SRO Krolak's 2018 decision denying a request to modify A.K.'s educational placement during the pendency of litigation. Pro se Plaintiffs Christian Killoran and Terrie Killoran (together, the "Parents"), individually and as parents to A.K., their child with Down syndrome (collectively, the "Plaintiffs"), commenced this action against Defendants Westhampton Beach School District ("Westhampton" or the "District"), Michael Radday, Suzanne M. Mensch, Halsey C. Stevens, Stacy Rubio, Claire Bean, James N. Hulme, Joyce Donnesson and George R. Kast, Jr. (collectively with the District, "Defendants") by way of Complaint dated February 16, 2017. See Complaint ("Compl."), Docket Entry ("DE") [1]. Plaintiffs' Second Amended Consolidated Complaint alleges violations of (1) the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq.; (2) the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; (3) 42 U.S.C. § 1983; and (4) Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) et seq. See Second Amended Consolidated Complaint ("SACC"), DE [52]. Plaintiffs' SACC additionally: (5) appeals the 2017 administrative decisions of IHO Monk and SRO Krolak; (6) seeks an equitable order directing Defendants to enroll A.K. and to utilize an inclusion consultant to design A.K.'s IndividualizedEducational Plan ("IEP") for implementation within the District; and (7) appeals the July 11, 2018 SRO Krolak decision. On June 5, 2020, Plaintiffs filed both fully briefed motions for summary judgment, which Defendants oppose. See DE [104], [105]. On August 11, 2020, Judge Brown referred Plaintiffs' motions to this Court for a Report and Recommendation as to whether they should be granted. For the reasons set forth herein, the Court respectfully recommends denying both of Plaintiffs' motions for summary judgment in their entirety.
The following facts are taken from the SACC, administrative record contained in DE [43] and supporting documents. Unless otherwise noted, these facts are not in dispute. Plaintiffs have filed numerous administrative proceedings and multiple actions in this Court. In the interest of brevity, only the proceedings relevant to the issues presented in Plaintiffs' motions are discussed below.
At the time the SACC was filed, A.K. was a fifteen-year-old boy, and as set forth above, he was born with Down syndrome. SACC ¶ 2. A.K., classified as a student with an intellectual disability, attended elementary school in the Remsenburg-Speonk School District ("Remsenburg") from kindergarten through grade 2. See August 15, 2017 Decision of IHO Monk ("Monk Decision"), DE [43-4], at 7. A.K. was verbal and could read and decode words but had difficulty understanding them, needing substantial prompting and repetition. See id. He struggled with short stamina, and needed a one-to-one aide for toileting assistance, dressing with zippersand buttons and holding onto crayons. See id. A.K. attended grades 3 and 4 in the Center Moriches School District, and returned to Remsenburg for grades 5 and 6. See Id. at 7-8. In grades 5 and 6, A.K. attended an integrated co-teaching class, learning with both disabled and non-disabled peers, and received the support of a one-to-one aide, as well as speech and language therapy, occupational therapy and physical therapy. See id. at 8.
Special education programs in Westhampton include integrated co-taught services and resource room. See id. For resident students for whom the District does not have an appropriate program to meet those students' needs, Westhampton often places such students in another district, a BOCES program, an approved private school, a day school program or a state operated school or residential program. See id.
The Parents were unwavering in their desire for A.K. to be educated within the District, but Westhampton ultimately determined that it did not have enough students to warrant creating a program to meet A.K.'s needs. See id. As a result, he was sent out-of-District for school. See id. at 2. The Parents objected to having A.K. educated full-time outside the District for the 2016-2017 and 2017-2018 school years, and filed claims for a State administrative proceeding.
In response to the Parents' objections, hearings were held by: (1) IHO Nancy Lederman ("IHO Lederman"), who issued her decision on January 26, 2017; (2) IHO Monk, who issued his decision on August 15, 2017; and (3) SRO Krolak, who issued his decision on October 18, 2017. The Parents also filed a claim for an administrativeproceeding before IHO Leah Murphy ("IHO Murphy") after the District denied their request to modify A.K.'s educational placement during the pendency of this and related proceedings. In response to the second claim, hearings were held by: (1) IHO Murphy, who issued an interim administrative decision on June 15, 2018; and (2) SRO Krolak, who issued his decision on July 11, 2018.
The Parents filed a due process complaint on May 10, 2016, objecting to Westhampton's denial of in-district placement for A.K. for the 2016-2017 school year. See January 26, 2017 Decision of IHO Lederman ("Lederman Decision"), DE [43-14], at 1-2. After a different IHO granted the District's motion to dismiss the due process complaint, an SRO vacated the dismissal and ordered the matter remanded to the previous IHO, unless the parties agreed to consolidation before a different IHO in a pending proceeding before Remsenburg. See id. at 2. The Parents, Westhampton and Remsenburg attended prehearing conferences on July 26, 2016 and August 4, 2016, subsequent to which the cases were consolidated, and hearings were held on August 29, 2016 and September 1, 2016. See id.
IHO Lederman received a copy of the due process complaint the Parents filed against Westhampton, challenging the District's recommended placement for A.K. for the 2016-2017 school year. See id. On October 11, 2016, that matter was consolidated with the proceedings before the Westhampton and Remsenburg districts. See id.
On October 14, 2016, IHO Lederman conducted an impartial hearing on Plaintiffs' due process complaint. See id. at 3. The hearing continued on October 17,November 10 and November 14 of that year, and on November 10, 2016, the Parents withdrew all complaints against Remsenburg. See id. In her January 26, 2017 decision, IHO Lederman directed Westhampton to formally enroll A.K within the District and assume responsibility for convening a Committee on Special Education ("CSE") in order to provide an appropriate placement for A.K. See Monk Decision at 3. IHO Lederman further directed the District to retain a "qualified consultant on inclusion" to advise and report to the District on inclusion for A.K. at the middle school level. See id.
Westhampton retained two consultants: the District chose one consultant, Victoria Regan, and the Parents chose the other, Kathleen Feeley. See id. IHO Lederman charged both consultants with reviewing A.K.'s education record and examining instructional programs and curricula available in the District to assess whether supplementary aids and supports would allow him to benefit from inclusion in any classes within the District, and to make recommendations in accordance with the results of their review, and both consultants complied. See id. at 4. The consultants were permitted to, and did, examine instructional programs in other districts to assess whether supplementary aids and supports would allow A.K. to benefit from inclusion in available classes, and to make recommendations in accordance with their results. See id.
IHO Lederman instructed the District to convene a CSE to develop an IEP and provide an appropriate placement for A.K. within 10 days of receiving the consultants' reports. See id. at 4. IHO Lederman directed that the CSE receive andconsider the consultants' reports, as well as invite them to the CSE meeting to report orally on their findings, and include such results and recommendations of their reports on A.K.'s IEP. See id. Both consultants appeared at CSE meetings, but the IEP had not been finalized as of the date of the hearing before IHO Monk. See id. Finally, IHO Lederman concluded that, to the extent inclusion in a general education or less restrictive self-contained class is not recommended by the CSE, placement is to be in a class with students with similar needs and not in a class with "mostly non verbal students," and that if the District intends to place A.K....
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