Weaver ex rel. J.W. v. Millbrook Cent. Sch. Dist.
| Decision Date | 06 September 2011 |
| Docket Number | No. 09–CV–692 (KMK).,09–CV–692 (KMK). |
| Citation | 276 Ed. Law Rep. 284,812 F.Supp.2d 514 |
| Parties | John WEAVER and Diane Weaver, parents of J.W., a disabled child, Plaintiffs, v. MILLBROOK CENTRAL SCHOOL DISTRICT, Defendant. |
| Court | U.S. District Court — Southern District of New York |
OPINION TEXT STARTS HERE
RosaLee Charpentier, Esq., Law Office of Salamon Davis, New York, NY, for Plaintiffs.
Mark Craig Rushfield, Esq., Shaw, Perelson, May & Lambert, LLP, Poughkeepsie, NY, for Defendant.
John and Diane Weaver (collectively “Plaintiffs”) bring this action pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., seeking to overturn the determination of the State Review Officer (“SRO”) that Millbrook Central School District (“Defendant” or “Millbrook”) is not required to reimburse Plaintiffs for their unilateral placement of their child, J.W., at the Kildonan School (“Kildonan”), and seeking pendency payments. Defendant moves for summary judgment. Plaintiffs also request summary judgment.1 For the reasons given below, Defendant's Motion is granted.
J.W. is a learning-disabled child who attended sixth grade in 2007–08, the only year in dispute in this case. ¶¶ 1, 2; Opp'n to Def.'s Rule 56.1 ( ) 2 Plaintiffs removed J.W. from public school and placed him at Kildonan in September 2004. (Pls.' 56.1 Stmt. ¶ 48.) 3 Plaintiffs sought tuition reimbursement for the 2004–05 and 2005–06 years, and resolved those claims by settlement with Defendant. ( Id. ¶ 49.) Though Plaintiffs offer conflicting statements about when they received tuition reimbursement for the 2006–07 year, those payments are not in dispute here. ( Id. ¶¶ 53–54 (denied by Defendant).) On May 3, 2007, Defendant's Committee on Special Education (“CSE”) proposed a new individualized education program (“IEP”) for the 2007–08 year. ( Id. ¶ 55.) A hearing was held before an impartial hearing officer (“IHO”), who determined on September 23, 2008 that the proposed IEP provided a free appropriate public education (“FAPE”) for J.W. .) The IHO also concluded, however, that the District was obligated to fully reimburse the parents for J.W.'s tuition at Kildonan for the 2007–08 school year as payment for the student's pendency placement. ( Id. at 4–5, 9.) Plaintiffs appealed and Defendant cross-appealed to the SRO. (Pl.'s 56.1 Stmt. ¶ 66.) The SRO determined that the IEP did not provide a FAPE, but that Plaintiffs' placement of J.W. at Kildonan was not appropriate. (Application of a Student with a Disability, by his Parents, for Review of a Determination of a Hr'g Officer Relating to the Provision of Educ. Servs. by the Bd. of Educ. of the Millbrook Cent. Sch. Dist., No. 08–130 (Dec. 8, 2008) (“SRO Op.”) 14–15, 19 (attached as Ex. B to Def.'s Answer).) Defendant does not contest the SRO's finding that the IEP did not provide a FAPE. (Pl.'s 56.1 Stmt. ¶ 69.)
The SRO determined that Plaintiffs had not met their burden of demonstrating that Kildonan was an appropriate placement for J.W. primarily because of the lack of detailed evidence in the record. (SRO Op. 18–19.) The SRO noted that “[t]he Kildonan interim progress reports contained in the hearing record describe both the school's special education program, and the student's progress within it, in vague, nebulous terms that render a specific analysis of either exceedingly difficult.” ( Id. at 18.) More specifically, the SRO found that “[t]he[ ] reports do not detail the student's specific deficits in reading and mathematics, nor do they contain sufficiently detailed information regarding the curriculum, level of materials being used[,] or objective academic expectations for the student's content area classes,” and that “Kildonan's grading system as utilized in its interim progress reports [was] so overly broad as to prevent any meaningful assessment of the student's actual progress.” ( Id. at 18–19.)
The SRO based these conclusions on, inter alia: (1) a grading system with only three gradations—“beginning,” reflecting 0%–25% “compliance relative to a given skill,” “developing,” reflecting 25%–80% compliance, and “secure,” reflecting =80% compliance; (2) mixed testing results showing improvement in some areas but regression or no change in others; and (3) reports from teachers and tutors which reported progress in some areas and regression in others, and which did not provide specifics about skills mastered. ( Id. at 16–18 (internal quotation marks omitted).)
Kildonan's interim reports demonstrate mixed progress, which is summarized in the following table: 4
( ) Thus, in general, and by Kildonan's metrics, between October 2007 and April 2008, J.W. improved in mathematics, literature, history, social studies, and science, and regressed in music and elementary art. The November 2007 and March 2008 reports are accompanied by general descriptions of the courses offered in certain subject areas and overviews of J.W.'s capacity in those areas without any description of skills acquired or specific, measurable goals. A more detailed analysis of the reports suggests that while the overall direction of J.W.'s progress was positive, the road was bumpy. For example, a comparison of the two most recent reports—March 2008 and April 2008—demonstrates that J.W.'s overall performance in Literature remained the same, while his performance on specific measured criteria was mixed, showing improvement in some areas and regression in others. 5 Similarly, the two areas in mathematics in which J.W. was rated B in October 2007 are not the same as the two areas in which J.W. was rated B in March 2008. Finally, after the October 2007 review, J.W. was placed in a special class of only four students who needed more intensive help with mathematics. (IHO Tr. 459–61.) J.W.'s other classes (aside from music and art) appear to have contained a maximum of six students. ( Id. at 464.)
Kildonan also conducted standardized testing of J.W. in twelve areas in May 2006, October 2006, May 2007, October 2007, and May 2008, the results of which are summarized below (bold indicates improvement, italics indicate regression):
+--------------------------------------------------------------------------------------+
¦ ¦May, ¦October, 2006 ¦May, 2007 ¦October, ¦May, 2008 ¦
¦ ¦2006 ¦ ¦ ¦2007 ¦ ¦
+--------------------+--------+---------------+---------------+-----------+------------¦
¦Word Identification ¦14th% ¦27th% ile ¦14th% ile ¦27th% ile ¦20th% ile ¦
¦ ¦ile ¦ ¦ ¦ ¦ ¦
+--------------------+--------+---------------+---------------+-----------+------------¦
¦Word Attack ¦27th% ¦24th% ile ¦32nd% ile ¦25th% ile ¦26th% ile ¦
¦ ¦ile ¦ ¦ ¦ ¦ ¦
+--------------------+--------+---------------+---------------+-----------+------------¦
¦GORT 6 Rate ¦2nd% ile¦1st% ile ¦1st% ile ¦5th% ile ¦9th% ile ¦
+--------------------+--------+---------------+---------------+-----------+------------¦
¦GORT Accuracy ¦2nd% ile¦1st% ile ¦1st% ile ¦9th% ile ¦16th% ile ¦
+--------------------+--------+---------------+---------------+-----------+------------¦
¦GORT Fluency ¦1st% ile¦
As this table shows, J.W.'s progress was uneven. The overall trend is positive in the “reading” areas, but generally negative in the mathematics areas. The areas in which J.W. had regressed between May 2006 and May 2008 were Word Attack, Mathematics—Concepts, and Mathematics—Total. The decline in mathematics between October 2007 and May 2008 is surprising in view of the more intensive mathematics instruction J.W. was receiving. (IHO Tr. 459–61.)
The record also contains letters from J.W.'s teachers, both dated May 9, 2008, providing a general outline of J.W.'s progress. Similarly, the record contains one of Kildonan's brochures, which explains that the school was founded to provide an educational alternative for dyslexic students and that it offers one-on-one tutorials following the Orton–Gilligham language training system, as well as a core curriculum that emphasizes multisensory teaching and other techniques designed for students with specific language difficulties. The fact that J.W. received one-on-one tutoring for fifty minutes daily also is confirmed in the record. (IHO Tr. 462.) 7
On September 10, 2007, a different IHO had found that, with respect to the 2006–2007 school year, Defendants had not provided J.W. a FAPE and that Kildonan was an appropriate placement for him. (Pls.' 56.1 Stmt. ¶ 51.) That decision was not appealed and so became final. ( Id. ¶ 52.) The IHO in this case found that the Defendant was liable to Plaintiffs for tuition for the 2007–08 school year because Kildonan was the “student's pendency placement.” (IHO Op. 5.) The SRO agreed that “Kildonan constitute[d] the student's pendency placement by virtue of the [Defendant's] election not to appeal the prior [IHO's] decision,” but held that the pendency requirement was not triggered until February 28, 2008, when Plaintiffs filed their due process complaint notice. (SRO Op. 20.) In doing so, the SRO held that Plaintiffs' letter of August 21, 2007, which informed the Defendant that Plaintiffs rejected the proposed IEP, did not trigger the pendency provisions. ( Id.)
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