Miller ex rel. S.M. v. Board of Edu. of Albuquerque

• Decision Date: 31 July 2006
• Docket Number: No. CIV. 05-502 MPA/WPL.,CIV. 05-502 MPA/WPL.
• Citation: 455 F.Supp.2d 1286
• Parties: Leslie and Jack MILLER, on behalf of their minor child, S.M., Plaintiff, v. BOARD OF EDUCATION OF THE ALBUQUERQUE PUBLIC SCHOOLS, Defendants.
• Court: U.S. District Court — District of New Mexico

455 F.Supp.2d 1286

Leslie and Jack MILLER, on behalf of their minor child, S.M., Plaintiff, v. BOARD OF EDUCATION OF THE ALBUQUERQUE PUBLIC SCHOOLS, Defendants.

No. CIV. 05-502 MPA/WPL.

United States District Court, D. New Mexico.

July 31, 2006.

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Gail S. Stewart, Steven Granberg Attorney at Law, Albuquerque, NM, for Plaintiff.

Michael L. Carrico, Andrea Robeda, Modrall, Sperling, Roehl, Harris & Sis, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

ARMIJO, District Judge.

THIS MATTER comes before the Court on the parties' briefing regarding Plaintiffs' claims under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 to 1487,¹ [Doc. 46, 52, 55] and the following motions: (1) Defendant APS' Motion to Strike Plaintiffs' Designated Expert Witness and to Prohibit Reliance Upon or Reference to the Report, Opinion and Conclusions of Such Witness [Doc. 27] filed on. January 3, 2006; (2) Plaintiffs' Objection to Magistrate's Order [Doc. 51] filed on March 23, 2006; (3) Defendant APS' Motion for Summary Judgment on Plaintiffs' Section 504 and ADA Claims [Doc. 56] filed on April 14, 2006; (4) Plaintiffs' Motion to Bifurcate and Certify 23(b)(2) Class [Doc. 58] filed on April 14, 2006; and (5) Plaintiffs' Motion for Consideration of Additional Evidence on Plaintiffs' IDEA Claims [Doc. 59] filed on April 14, 2006. Having considered the parties' submissions, the relevant law, and being otherwise fully advised in the' premises, the Court grants in part and denies in part Defendant's Motion to Strike, denies Plaintiffs' Motion to Bifurcate and Certify 23(b)(2) Class, overrules Plaintiffs' Objection to Magistrate's Order, grants Defendant's Motion for Summary Judgment, grants in part and denies in part Plaintiffs' Motion for Consideration of Additional Evidence, and affirms the portions of the Administrative Appeal Officer's (AAO's) decision which are challenged in Plaintiffs' Complaint. As a result of these rulings, the only remaining issue in this case is whether Plaintiffs are entitled to an award of attorney fees for their counsel's work in the administrative proceedings. The Court will vacate the scheduled trial date and order supplemental briefing on this remaining issue before entering a final judgment.

I. BACKGROUND

The history of this litigation is set forth in the Memorandum Opinion and Order [Doc. 30] filed on January 18, 2006, and the Memorandum Opinion and Order filed in Board of Education of Albuquerque Public Schools v. Miller, Civil No. 05-487 MCA/LFG (D.N.M. July 22, 2005). This action originated as a challenge to the decision of an Administrative Appeal Officer (AAO) awarding equitable relief in an administrative proceeding conducted pursuant to the procedures set forth in IDEA. At issue in the administrative proceeding was the public education that the student, S.M., received from Albuquerque Public Schools (APS) during the sixth, seventh, and eighth grade at Cleveland Middle School. Part of the equitable relief awarded by the AAO in that proceeding took the form of reimbursement for private educational services and assistive technology that Plaintiffs Leslie and Jack Miller purchased for S.M. through August 2005, just before the student started high school. APS unsuccessfully attempted to enjoin this portion of the AAO's ruling in No. 05-487 MCA/LFG.

Soon after the filing of that action, Plaintiffs Leslie and Jack Miller filed the present civil action (No. 05-502 MCA/WPL) against APS challenging other portions of the AAO's decision under the IDEA and asserting additional claims under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794a(a)(2), and Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 42 U.S.C. § 12132. In their Complaint [Doc. 1], Plaintiffs identify the following issues which provide the basis for their IDEA claim challenging certain portions of the AAO's decision² that resulted from the administrative proceedings: (1) whether the AAO applied the correct burden of proof; (2) whether the AAO erroneously deferred to Defendant's choice of Wilson Reading over Alternative Language Therapy (ALT) as a methodology for providing S.M. with reading instruction; (3) whether the AAO erroneously excluded evidence suggesting that Defendant's choice of methodology was the result of "predetermination" rather than an individualized consideration of S.M.'s educational needs; (4) whether the AAO erred in not finding a deprivation of Free Appropriate Public Education (FAPE) or awarding additional relief based on Defendant's alleged failures to provide more complete access to Books on Tape³ during all relevant school years; and (5) whether the AAO erroneously excluded evidence regarding Defendant's alleged "systemic failure" in the provision of Books on Tape and failed to account for that failure as a cause of the alleged denial of FAPE to S.M. Plaintiffs also seek an award of attorney fees under the IDEA.

The focus of Plaintiffs' Complaint is on two special educational needs: (1) the need for remediation in the form of special instruction aimed at increasing reading skills or developing reading strategies that are tailored to the student's disability, and (2) the need for accommodation in the form of assistive technologies or aids that allow the student to convert written information to an auditory format so that he may keep up with other subjects at his grade level and function in a regular-education classroom notwithstanding the fact that he does not read at grade level. As a factual matter, the parties dispute the adequacy or appropriateness of different methodologies aimed at meeting the student's need for remediation (e.g., ALT versus Wilson Reading), as well as the adequacy or appropriateness of various approaches to meeting his need for accommodation (e.g., Books on Tape versus the Kurzweil system).

As a legal matter, the parties also disagree as to whether Defendant has the authority to choose one means of meeting these special educational needs when Plaintiffs prefer another. More specifically, Plaintiffs contend that Defendant loses the authority to make such choices when it is proven that, in past years, school personnel failed to meet the student's needs by any means, thereby forcing the parents to obtain private education using a particular methodology in order to meet these needs. Plaintiffs also contend that there is a need for consistency in the means chosen and that Defendant should not be permitted to unilaterally change to a different means of meeting the student's needs after the student has become accustomed to using another.

In addition to their IDEA claims noted above, Plaintiffs' Complaint [Doc. 1] contains generic allegations that Defendant violated Section 504 of the Rehabilitation Act and Title II of the ADA. In the Initial Pretrial Report [Doc. 17], Plaintiffs clarify that these generic allegations are premised on the following assertions: (1) that Defendant fails to have a workable system in place for provision of Books on Tape to students with reading disabilities across the APS district, and (2) that consistent with a longstanding policy and practice of not offering the ALT method of reading instruction to students with reading disabilities, Defendant has intentionally refused to provide S.M. with the ALT method of reading instruction that he needs.

Plaintiffs primarily seek declaratory and injunctive relief in this action. The parties have stipulated that Plaintiffs are not seeking compensatory damages for emotional distress, pain and suffering, loss of educational opportunity, or loss of future earning capacity. [Doc. 20, 21, 47, 48.] Insofar as Plaintiffs have continued to purchase private aids or services for the student after the period for which the AAO ordered reimbursement, however, Plaintiffs may seek reimbursement for such additional aids or services not covered by the AAO's decision.

In addition to the claims and relief which are specific to S.M., Plaintiffs have moved to certify and bifurcate. a claim on behalf of a class of APS students with specific learning disabilities in reading or dyslexia who allegedly are affected by a systemic failure to offer or provide Books on Tape throughout the school district. With respect to the claim on which they seek class certification, Plaintiffs pray for declaratory and injunctive relief on behalf of the entire class but do not seek compensatory damages.

The parties also are in dispute as to whether discovery should be expanded, and additional evidence considered, regarding Plaintiffs' contentions about the significance of Books on Tape and APS's alleged systemic failures in educating students with specific learning disabilities in reading or dyslexia.. Specifically, Plaintiffs object to the Magistrate Judge's Memorandum Opinion and Order [Doc. 49] denying their motion to compel interrogatory responses and production of documents regarding the closing of APS's language clinic in 1998, the reallocation of APS resources and employees after that closing, and information about APS's provision of Books on Tape (or other means by which non-readers may access the general curriculum) to other students throughout the APS system over the course of several years. [Doc. 51.] And Defendant moves to strike the proposed testimony of Plaintiffs' expert regarding the significance of Books on Tape as a mechanism for educating students who have difficulty reading. [Doc. 27.]

Because the relevance of such expert testimony, as well as Plaintiffs' discovery requests, depends in part on whether this litigation will proceed as a class action, I first address the motion for class certification before turning to the evidentiary motions. After ruling on those motions, I will then analyze the merits of Plaintiffs' claims under the IDEA, ADA, and Section 504 based on my review of the Administrative Record and the admissible evidence...