Somoza v. New York City Dept. of Educ., 06 CV 5025(VM).

• Decision Date: 21 February 2007
• Docket Number: No. 06 CV 5025(VM).,06 CV 5025(VM).
• Parties: Alba SOMOZA, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
• Court: U.S. District Court — Southern District of New York

Page 373

475 F.Supp.2d 373

Alba SOMOZA, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.

No. 06 CV 5025(VM).

United States District Court, S.D. New York.

February 21, 2007.

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Anthony N. Michael, Kaye Scholer, LLP (NYC), New York, NY, for Plaintiff.

Janice Louise Birnbaum, New York City Law Depart. Office of the Corporation Counsel, New York, NY, for Defendant.

DECISION AND ORDER

MARRERO, District Judge.

Plaintiff Alba Somoza ("Somoza") brought this case against defendant New York City Department of Education (the "DOE") alleging that she was denied a free appropriate public education, to which she is entitled under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (the "IDEA" or the "Act"), and Article 89 of the New York State Education Law. The Court conducted a three-day bench trial to determine whether, in fact, Somoza was denied a free appropriate public education, or whether, as the DOE contends, her claims are barred either by the statute of limitations or by a settlement agreement signed by her mother, Mary Somoza ("Mary Somoza"). For the reasons described below, the Court finds that Somoza's claims are not barred by the statute of limitations or the settlement agreement, and it remands the matter to the DOE's Impartial Hearing Office for a ruling on the merits of Somoza's claims.

I. BACKGROUND

A. FACTS¹

Somoza was born on December 19, 1983. She suffers from cerebral palsy, from which she has been severely disabled since birth. She is non-ambulatory, has limited motor control of her arms, legs, and head, and is unable to speak. As a result, she requires assistance in all daily life activities. She communicates through the use of assistive technology devices, which she operates using a switch installed in the headrest of her wheelchair. Somoza's twin sister, Anastasia Somoza ("Anastasia"), suffers from a less severe case of cerebral palsy, which allows her to speak and use her hands.

Somoza entered New York City public schools at PS 234 in 1989. For the first three years of her education, she was placed in a segregated classroom program for students with a wide variety of different disabilities, including cerebral palsy, Down syndrome, emotional disturbances, and mental retardation.

In September, 1991, at the direction of the DOE, Somoza was evaluated by Dr. Andrea Blau ("Blau"), an expert in the field of special education. Blau's report, prepared at the time, indicates that Somoza had "normal to above normal cognitive functioning" and that she understood both English and Spanish. However, she was not effectively using her communication device to express herself, in part because of a lack of available trained personnel at her school. As a result, her ability to express herself was largely limited to gesturing. Blau's report concluded: "Alba's ability to achieve her academic potential will depend to a large degree upon her developing age appropriate language and literacy skills. She appears to have the capacity to acquire these skills but due to the constellation of challenges she faces it will require a unique and intensive intervention approach. Technology based intervention is essential." (Trial Ex. 17.)

In the spring of 1993, Somoza, then nine years old and enrolled in the third grade at PS 234, was again evaluated by Blau and other experts at the direction of the DOE following a request by Mary Somoza. According to the assessment of Somoza's educational skills, she performed at a first grade level in most areas, including reading, writing, and mathematics. Blau concluded at that time that "Alba requires intensive tutoring and very specific curriculum adaptations to facilitate both her literacy skills acquisition and her ability to receive an appropriate education." (Trial Ex. 26.) Blau's report called for a greater use of assistive technology, some of which was available at the school but not being used in Somoza's classroom. (See id.) Both Blau and Mary Somoza testified that these recommendations were not implemented by the DOE. (See Trial Tr. at 77, 410.)

In an accompanying assessment of Somoza's speech and language skills, Blau noted that she tested above average for her age in receptive language skills, a performance that Blau described as "extremely impressive for a bi-lingual child, especially for a child with such a severe speech impairment." (Trial Ex. 25.) Somoza's expressive language skills, on the other hand, were more limited, due in large part to her inexperience with her communication devices. Other comments by Blau portrayed Somoza in 1993 as a person with an active mind and a strong desire to improve her communication skills so that she might better express her thoughts to those around her. Blau remarked that Somoza "strives for independence," and that "[r]arely does she come in contact with a person who does not recognize her cognitive potential." (Id.) "Quite unique," wrote Blau, "is Alba's ability to convey her intellectual spark despite her extreme communicational challenges." (Id.)

As another aspect of the 1993 assessment, Somoza was given an intelligence test, the Columbia Mental Maturity Scale, on which she received a score of 132, placing her in the 97th percentile of her age group with respect to general reasoning ability and further indicating strong intellectual promise despite her physical disabilities.

In the fall of 1993, Somoza was transferred into a regular classroom at PS 234 for the fourth grade. This transfer came after Mary Somoza requested an impartial hearing with the aim of removing Somoza from the segregated classroom, where, in her opinion, her daughter "was completely not being educated." (See Trial Tr. at 406, 474.) According to the complaint, this placement in a regular classroom was obtained through the indirect assistance of President Clinton, who had taken an interest in Somoza's case. (See First Am. Compl. at ¶ 28.) Mary Somoza did not believe that her daughter belonged in the fourth grade and requested that she be held back a year, but this request was denied.

From 1996 to 2002, Somoza attended secondary school at the School of the Future, a New York City public school that provides both regular and special education. Mary Somoza chose this school in part because it embraced the use of technology in the classroom. Somoza was placed in an "inclusion program," which means that she attended a regular classroom and followed the general education curriculum, as opposed to one limited to children with disabilities. Elizabeth Proano ("Proano"), a special education teacher at the school who worked exclusively with Somoza and Anastasia, provided support to Somoza in her classes and adapted the general education curriculum so that she could participate in it. For example, when the curriculum for the entire class involved memorizing the countries in Africa, Somoza's assignment was limited to the memorization of six of them. (See Trial Tr. at 371-72.) When the rest of the class learned chemistry, Somoza was asked to memorize "something from the element table." (Id. at 387.)

Even this simplification of the general education curriculum tailored for Somoza appears to have been performed inconsistently, and it was a point of debate at the trial whether Somoza's assignments at the School of the Future were consistently appropriate to her level of academic ability. Examples are suggested by entries in Somoza's eleventh grade homework notebook made by her teachers recording the content of lessons and assignments covered as part of Somoza's curriculum during that school year. (See Trial Ex. 50.) Mary Somoza testified that the homework book included assignments that were "physics, chemistry, and topics that Alba could absolutely under no circumstances complete." (See Trial Tr. at 418.)² Thus, much evidence in the record suggests that school officials did not customize the "unique and intensive intervention approach" specifically geared towards reaching a particular set of academic goals to develop Somoza's "age appropriate language and literacy skills" that Blau had recommended as essential to Somoza's education in 1991. (Trial Ex. 17.) Rather, her teachers instead attempted to adapt, on an ad hoc basis, material from the regular high school curriculum that seemed manifestly well beyond Somoza's academic level simply by lowering its level of difficulty and removing large and meaningful portions of its substantive content.

Blau testified that although a reduction in the amount of work might have been necessary in Somoza's case, primarily because of the fatigue prolonged effort caused Somoza, proper adaptation of a curriculum to address Somoza's unique educational challenges and needs also required more extensive modification of the basic literacy lessons so as to allow Somoza to benefit from the content of other aspects of the academic curriculum. (See id. at 508.) Blau concluded that during the six-year period that Somoza attended the School of the Future, she lacked "a truly customized approach." (See id. at 516.)

Perhaps because Somoza's assignments were not always academically appropriate for her, the evidence also suggests that her teachers and tutors, undoubtedly motivated by the most sincere empathetic intentions, played a large role in completing them. For example, Yuichi Tamano ("Tamano"), Somoza's assistive technology consultant during Somoza's last two years at the School of the Future, testified that he actually did most of the work for Somoza's final project in 2002. (See id. at 232-34.)

Somoza's reaction to her educational situation was to communicate extreme frustration with the extent to which her expressive communication skills lagged her curiosity, desire to learn, and innate mental ability. Tamano testified that Somoza became increasingly frustrated over time as she became less able to participate in the regular curriculum. (See id. at 225....