O.V. v. Durham Pub. Sch. Bd. of Educ.

• Decision Date: 15 April 2021
• Docket Number: 1:17cv691
• Court: U.S. District Court — Middle District of North Carolina
• Parties: O.V., et al., Plaintiffs, v. DURHAM PUBLIC SCHOOLS BOARD OF EDUCATION, et al., Defendants.

O.V.,¹ et al., Plaintiffs, v. DURHAM PUBLIC SCHOOLS BOARD OF EDUCATION, et al., Defendants.

1:17cv691²

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

April 15, 2021

MEMORANDUM OPINION AND ORDER

This case comes before the Court on "Defendant Durham Public Schools Board of Education's Motion for Judgment on the Administrative Record" (Docket Entry 108) (the "Durham Board's Administrative Motion"), "Defendant Durham Public Schools Board of Education's Motion for Summary Judgment" (Docket Entry 110) (the "Durham Board's Summary Judgment Motion"), "Plaintiffs' Motion for Judgment on the Record" (Docket Entry 112) (the "Plaintiffs' Administrative Motion"), and "Plaintiffs' Motion for Summary Judgment" (Docket Entry 114) (the "Plaintiffs' Summary Judgment Motion"). For the reasons that follow, the Court will deny the Durham Board's Administrative Motion, grant in part and deny inpart Plaintiffs' Administrative Motion (collectively, the "Administrative Motions"), and grant in part and deny in part both the Durham Board's Summary Judgment Motion and Plaintiffs' Summary Judgment Motion (collectively, the "Summary Judgment Motions").³

BACKGROUND

I. Procedural Background

The Durham Public Schools Board of Education (the "Durham Board" or "Respondent") filed "an action seeking relief from the State Hearing Review Officer's partial reversal of the Administrative Law Judge's decision dismissing all of [Minh Pham ('M.P.'), Peter Varlashkin ('P.V.'), and O.V.'s] claims with prejudice in the underlying administrative hearing." Durham Public Sch. Bd. of Educ. v. O.V. ("DPS v. O.V."), No. 1:17cv690, Docket Entry 1 (the "Durham Board's Complaint"), ¶ 1 (M.D.N.C. July 25, 2017). Per the Durham Board's Complaint, State Review Officer (the "SRO") Lisa Lukasik erroneously reversed the decision of Administrative Law Judge (the "ALJ") Melissa Lassiter "specifically on the question of least restrictive environment" (the "LRE") in O.V.'s "proposed [Individualized Education Program (the "IEP")] for the 2015-[20]16 school year" (at times, the "May 2015 IEP"), id.,¶ 20. See id., ¶ 17(c). "Because ALJ Lassiter had dismissed all claims and therefore not ordered any remedy, the [SRO] remanded to ALJ Lassiter for determination on," id., ¶ 21, "what appropriate relief were the parents entitled to as a remedy," id., ¶ 17(e). During the pendency of that remand, see id., ¶ 21, "[t]he [Durham] Board, having been aggrieved by the decision of the [SRO], [filed an] action seeking relief from the [SRO's] reversal of the ALJ's decision on the issue of the May 20, 2015 IEP's appropriateness," id., ¶ 22.

Separately, M.P. and P.V., individually and on behalf of their minor child, O.V., (collectively, the "Plaintiffs" or "Petitioners"), initiated an action against the Durham Board, various Durham Public School System (the "DPS") employees, and the North Carolina Department of Public Instruction (the "NCDPI") for their alleged "failure to provide O.V. a free appropriate public education" (a "FAPE"), their alleged "discriminatory conduct against Plaintiffs based on O.V.'s disability in an education program receiving federal funds," and certain defendants' alleged "breach[ of] a settlement agreement." (Docket Entry 1 (the "Complaint") at 1-2.) In response to NCDPI's motion to dismiss, Plaintiffs sought leave to amend their Complaint. (See Docket Entry 30.) After the Court (per the undersigned) granted their amendment request (see Docket Entry 33 at 4), Plaintiffs filed an amended "Complaint for Damages" (Docket Entry 36) (the "AmendedComplaint"), which replaced NCDPI with the North Carolina State Board of Education (the "State Board") and certain state officials as defendants in this action (see, e.g., id., ¶¶ 40-52 (identifying parties)). Thereafter, all defendants moved to dismiss the Amended Complaint. (See Docket Entries 42, 47.)

As relevant here, the Court (per United States District Judge Catherine C. Eagles) granted the various dismissal motions, except as to Plaintiffs' breach of contract claim and their claims against the Durham Board, arising on or after November 26, 2014, under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (the "IDEA"), the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"), and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq. ("Section 504"). (See Docket Entry 61 at 1-2.) Prior to the dismissal motions' resolution, Plaintiffs moved for leave to file a supplemental complaint challenging "the final administrative decision" (Docket Entry 46 at 3) regarding the decisions on remand from the original SRO decision (see generally Docket Entry 46-2). The Court (per the undersigned) granted Plaintiffs leave, authorizing the filing of their "First Supplemental Complaint" (Docket Entry 45) (see Text Order dated Feb. 22, 2018 (granting "[the] Motion for Leave to File Supplemental Complaint and accepting [Plaintiffs'] First Supplemental Complaint")). Accordingly, the following claims remain in this litigation: (1) Plaintiffs' challenge both (A) tothe ALJ's and SRO's determination that "Plaintiffs failed to meet their burden to prove that [Durham Board] failed to provide O.V. a FAPE in the LRE from November 27, 2014, through June 12, 2015, based on the stipulation from [the] parties that O.V. made progress during that time" (Docket Entry 36, ¶ 320) and (B) to the SRO's affirmation of the ALJ's finding that Plaintiffs failed to establish "the appropriateness of Plaintiffs' private placement and tuition reimbursement" (id., ¶ 323); (2) Plaintiffs' challenge to "the [SRO's] Decision on Remand," which Plaintiffs contend "impermissibly delegate[s the SRO's] authority to determine relief to [the Durham Board] and improperly fail[s] to designate the decision as upholding in part and reversing in part the ALJ's Decision on Remand" (Docket Entry 45, ¶ 332.32); (3) Plaintiffs' ADA and Section 504 claims against the Durham Board that arise on or after November 26, 2014 (see Docket Entry 61 at 2); (4) Plaintiffs' breach of contract claim against the Durham Board (see id.); and (5) the Durham Board's challenge to the SRO's "determination that it did not offer a [FAPE] in the [LRE] to [O.V.] in the IEP developed on May 20, 2015," DPS v. O.V., Docket Entry 1, ¶ 3.

II. Plaintiffs' Allegations

As relevant to the remaining claims,⁴ the Amended Complaint alleges:

At all pertinent times, O.V., a child "with Down syndrome, Mixed Receptive-Expressive Language Disorder, Lack of Coordination, Apraxia of speech, and other Symbolic Dysfunction," has resided with his parents in Durham County. (Docket Entry 36, ¶¶ 40, 41, 54.) O.V. enrolled in DPS as a preschooler for the 2009-2010 school year, and continued attending public school in Durham until November 9, 2015, when his parents "withdrew [him] from the DPS and enrolled him in Pinewoods Montessori, a private school in Hillsborough, North Carolina" (id., ¶ 254). (See id., ¶¶ 84-255.) Throughout O.V.'s DPS enrollment, the Durham Board practiced an "unwritten and illegal policy of removing disabled children from general education classrooms by the third (3rd) grade if [the Durham] Board believes the disabled child will be unsuccessful on the state mandated end of grade tests or requires a modified curriculum." (Id., ¶ 74.)

As part of O.V.'s enrollment in DPS, the "[Durham] Board conducted a psychoeducational evaluation of O.V. on May 7, 2009,"which revealed borderline development and deficient adaptive behavior skills, but "no behavior problems." (Id., ¶ 91.) Based on these results, the Durham "Board determined [that] O.V. was eligible for services under the IDEA in the category of Developmentally Delayed and . . . required occupational, physical, and speech therapies as related services in order to benefit from special education." (Id., ¶ 92.) Having "predetermined" upon meeting him that "they would place [O.V.] in the most restrictive environment," namely, "in the separate classroom, segregated from his non-disabled peers" (id., ¶ 85), Dr. Kristin Bell, the Durham Board's Executive Director of Exceptional Children (see id., ¶ 44), and the Durham Board developed O.V.'s first IEP, pursuant to which "O.V. would not have any access to his non-disabled peers" (id., ¶ 94 (emphasis in original)). This IEP "provided for special education for two (2) days per week for 270 minutes in the Exceptional Children's (EC) classroom and occupational, speech, and physical therapies." (Id.)

During the two years that O.V. attended DPS preschool, M.P. and P.V. "continuously requested [that] O.V. be permitted to be educated with his non-disabled peers, but [the Durham] Board and [Dr.] Bell explained O.V.'s disabilities rendered him unfit to have full access to children who did not have disabilities." (Id., ¶ 88.) During this period, "[the Durham Board and Dr. Bell] never considered a less restrictive environment and never considered whatsupports and services might allow O.V. to be successful in the regular preschool classroom, even though O.V. could have been integrated into the regular education setting with supplemental aids and services." (Id., ¶ 86.) In addition, they "manipulated the IEP documents in IEP meetings to support their plan for O.V. to be perpetually assigned to the separate classroom." (Id., ¶ 95.) For example, the Durham Board and Dr. Bell falsely documented that the IEP "'Team discussed all placement options and rejected serving [O.V.] in any placement option other than a [special education] classroom'" even though they never discussed "all placement options with O.V.'s parents," M.P. and P.V., and "no record of any discussion of any inclusive preschool placement" exists. (Id. (alterations in original).)

At an IEP meeting in July 2009, the Durham Board and Dr. Bell "increased O.V.'s time in the special education classroom from 270 minutes to 390 minutes — the entire school day" (id., ¶ 97 (emphasis omitted)) — without "discuss[ing]...