Manchester School Dist. v. Christopher B.

• Decision Date: 02 December 1992
• Docket Number: Civ. No. 91-248-SD.
• Citation: 807 F. Supp. 860
• Parties: MANCHESTER SCHOOL DISTRICT v. CHRISTOPHER B.
• Court: U.S. District Court — District of New Hampshire

807 F. Supp. 860

MANCHESTER SCHOOL DISTRICT v. CHRISTOPHER B.

Civ. No. 91-248-SD.

United States District Court, D. New Hampshire.

December 2, 1992.

Robert Murphy, Manchester, NH, for plaintiff.

Leila Connor, Manchester, NH, for defendant.

ORDER

DEVINE, Senior District Judge.

This order addresses defendant Christopher B.'s motion for clarification and for reconsideration of the court's order of September 4, 1992 ("Order"). On September 8, 1992, the court entered judgment on the Order. The instant motion was filed on September 18, 1992.

1. BACKGROUND

a. The Individuals with Disabilities Act

Congress set forth the purpose of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (formerly the Education of the Handicapped Act) ("Act"), at 20 U.S.C. § 1400(c) (Supp.1992):

(c) Purpose

It is the purpose of this chapter to assure that all children with disabilities¹ have available to them, within the time periods specified in section 1412(2)(B)² of this title, a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, to assure that the rights of children with disabilities and their parents or guardians are protected, to assist States and localities to provide for the education of all children with disabilities, and to assess and assure the effectiveness of efforts to educate children with disabilities.

(Emphasis added.)

Under the Act, the term "free appropriate education" is defined as

special education and related services that —

(A) have been provided at public expense, under public supervision and direction, and without charge,

(B) meet the standards of the state educational agency,

(C) include an appropriate preschool, elementary, or secondary school education in the state involved, and

(D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title.

20 U.S.C. § 1401(a)(18) (emphasis added).

The term `individualized education program' means a written statement for each child with a disability developed in any meeting by a representative of the local educational agency or an intermediate educational unit who shall be qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities, the teacher, the parents or guardian of such child, and, whenever appropriate, such child, which statement shall include,

(A) a statement of the present levels of educational performance of such child,

(B) a statement of annual goals, including short-term instructional objectives,

(C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs,

....

(E) the projected date for initiation and anticipated duration of such services, and

(F) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.

....

20 U.S.C. § 1401(a)(20) (Supp.1992) (emphasis added).

As the United States Supreme Court recognized in Burlington School Comm. v. Massachusetts Dept. of Educ., 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985),

The modus operandi of the Act is the ... `individualized educational program IEP.' The IEP is to be developed jointly by a school official qualified in special education, the child's teacher, the parents or guardian, and, where appropriate, the child.

. . . . .

Apparently recognizing that this cooperative approach would not always produce a consensus between the school officials and the parents, and that in any disputes the school officials would have a natural advantage, Congress incorporated an elaborate set of what it labeled `procedural safeguards' to insure the full participation of the parents and proper resolution of substantive disagreements. Section 1415(b) entitles the parents `to examine all relevant records with respect to the identification, evaluation, and educational placement of the child,'³ to obtain an independent educational evaluation of the child,⁴ to notice of any decision to initiate or change the identification, evaluation, or educational placement of the child,⁵ and to present complaints with respect to any of the above.⁶ The parents are further entitled to `an impartial due process hearing,' ... to resolve their complaints.⁷

The Act also provides for judicial review in state or federal court to `any party aggrieved by the findings and decision' made after the due process hearing.

The Act confers on the reviewing court the following authority:

The court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate. § 1415(e)(2).⁸

Id., 471 U.S. at 367-69, 105 S.Ct. at 2001-02 (emphasis added).

b. Factual Background

Defendant Christopher B. ("Christopher") was born on March 13, 1976. During the 1990-91 school year at issue, he was in the eighth grade. Christopher has received special education services from plaintiff Manchester (New Hampshire) School District ("School District") since entering public school in 1982, at which time he received speech and language services while attending preschool.

The School District first evaluated Christopher in June 1982. The testing consisted of a Wechsler Pre-School and Primary Scale of Intelligence (WPPSI), a Draw-a-Person Test, a Visual Motor Integration Test, and a Vineland Adaptive Behavior Scale. The WPPSI yielded a low average to borderline range of intelligence scores. Christopher was coded as "Other Health Impaired", New Hampshire Admin.Rules Ed. ("ED") 1101.09(7), with a secondary coding of "Speech/Language", ED 1101.09(10) when he entered kindergarten in the fall of 1982. His IEP for that year provided for two half-hour periods of group speech therapy per week.

In March 1983, Christopher's primary coding was changed to mentally retarded, the basis of which was the original 1982 testing.⁹ Christopher was then placed in a self-contained program for mentally retarded students at the Weston School, where he remained through December 1988. His class there consisted of 12 students, a teacher, and an aide. The Weston School provided Christopher with speech/language therapy, transportation services, and some occupational therapy.

In April and May of 1985, the School District performed Christopher's required triennial testing, ED 1107.03(i). The District's evaluator used a standard Binet Intelligence Scale, Wide Range Achievement Test (WRAT), and Human Figure Drawing. Christopher again achieved a borderline IQ score. At that time, he was reading at a grade level of 1.6 and had a math grade level of 1.9. He was then nearing the end of the third grade. The evaluator recommended continuation of placement in a program for mentally retarded students, with support service in the areas of speech/language and occupational therapy.

In June 1988, the District conducted another triennial evaluation. The testing, which involved use of the Wechsler Intelligence Scale for Children-Revised (WISCR), Human Figure Drawing, and Bender Visual Motor Gestalt, again showed Christopher to be in the borderline to low average range of intellectual ability. The evaluator concluded that Christopher was not mentally retarded, and referred him for further learning disabilities evaluation and continuation in a self-contained program.

Christopher continued at the Weston School through June 1988, despite the evaluator's conclusions that he was not mentally retarded. During the summer of 1988, Christopher's mother wrote to the school superintendent expressing concern over what she feared was improper coding, placement, and programming, and requesting an independent evaluation. The School District denied the evaluation request, stating that even if Christopher's code was changed to "other health impaired", such a change would not necessarily result in changed placement. The School District conducted a learning disabilities evaluation in the fall of 1988, the results of which showed low performance levels in math and reading.

Later that fall, Christopher's evaluation/placement team began consideration of the previous testing results. Although the team received one doctor's opinion that Christopher was learning-disabled, with secondary emotional problems, the team proposed a new coding of serious emotional impairment, with a secondary code of speech/language impairment. In January 1989, Christopher was placed in a self-contained program for emotionally disturbed students at the Webster School for a twenty-day trial placement, which was eventually extended by one month.

The Webster placement was, to say the least, a failure. In the first place, the staff there did not believe that Christopher's primary code should be emotional disturbance. In March of 1989, Christopher reported to his parents that other Webster students had threatened him with violence if he did not submit to various sexual contacts, and that he had been sexually molested on the school bus. Mr. and Mrs. B. removed Christopher from school and accepted the School District's offer of home tutoring. The tutoring continued through the end of March, at which time Christopher returned to the Weston School, in a different level special needs class, for the rest of the 1988-89 school year.

In February 1989, Mr. and Mrs. B. took Christopher for an evaluation at the Thom Clinic in Boston. The placement team reviewed the results of the Thom Clinic evaluation on March 10, 1992, and decided that Christopher should be coded "other health impaired", with a secondary speech/language coding. Mr. and Mrs. B. agreed to the other health coding after the School District agreed to incorporate some of the Thom...