Wong v. Bd. of Educ.

• Citation: 478 F.Supp.3d 229
• Decision Date: 07 August 2020
• Docket Number: No. 3:16-cv-1873 (VAB),3:16-cv-1873 (VAB)
• Parties: James WONG and Suzanne Hoy, Plaintiffs, v. BOARD OF EDUCATION, Defendant.
• Court: U.S. District Court — District of Connecticut

478 F.Supp.3d 229

James WONG and Suzanne Hoy, Plaintiffs,

v.BOARD OF EDUCATION, Defendant.

No. 3:16-cv-1873 (VAB)

United States District Court, D. Connecticut.

Signed August 7, 2020

Lawrence W. Berliner, Law Office of Lawrence W. Berliner, LLC, Westport, CT, for Plaintiffs.

Craig S. Meuser, Chinni & Meuser LLC, Avon, CT, for Defendant.

RULING AND ORDER ON CROSS-MOTIONS FOR JUDGMENT ON THE ADMINISTRATIVE RECORD

Victor A. Bolden, United States District Judge

On October 17, 2016, James Wong and Suzanne Hoy ("Plaintiffs" or "Parents") filed a lawsuit against the Board of Education of Southington, Connecticut ("Southington"), alleging that Southington violated their son's ("Student") right to a free appropriate public education ("FAPE") under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA"); the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"); and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) ("Section 504"). Notice of Removal, ECF No. 1 (Nov. 15, 2016).

This action is an administrative appeal of a due process hearing officer's decision, dated September 1, 2016, in Student v. Southington Board of Education , Case No. 16-0517 ("Final Decision"), which found that Southington provided Student with a FAPE for the 2013-2014 school year (from the period of May 10, 2014 to the end of the school year); the 2014-2015 school year; the 2015-2016 school year; and the 2016-2017 school year. Final Decision Case No. 15-0517, Wong v. Southington , ECF No. 90-1 at 29 (Sept. 1, 2016) ("Final Decision").

Both Plaintiffs and Southington have moved for judgment on the administrative record.

For the following reasons, Plaintiffs’ motion is DENIED and Southington's motion is GRANTED.

I. BACKGROUND

A. Administrative Complaint

On May 9, 2016, Plaintiffs filed a Request for Impartial Special Education Hearing for Southington's alleged denial of a FAPE for Student, "leaving the parent[s] with no alternative but to write a letter of ‘Unilateral Placement at Public Expense’ to Southington Catholic School." Request for Impartial Special Education Hearing, ECF No. 90-1 at 5 (May 9, 2016) ("Hearing Request"). Plaintiffs alleged, inter alia , that:

• Southington denied Student his rights under Section 504 and the ADA by identifying him "late" as a "twice exceptional Gifted Disabled child." Id.

• Southington denied Student an appropriate Individualized Education Plan ("IEP"). Id. at 5–6.

• Southington did not hold adequate Planning and Placement Team ("PPT") meetings, nor did school staff "come prepared to the August [2015] PPT." Id. at 6.

• Student "additionally suffered discrimination as a twice exceptional gifted disabled ‘Asian Student of Color’ and was harassed by" school staff. Id.

• Southington denied Student an "accessible curriculum for both of his sixth and seventh grade years after having been forced to struggle with his visual disability that the [ ] elementary school staff failed to [i]dentify[.]" Id.

• School administrators "systematically harassed the student and the parents causing great pain, unnecessary stress, humiliation, embarrassment, harm, loss of time, loss of educational hours and financial damages." Id.

• School administrators retaliated against Plaintiffs for their unilateral placement by 1) "stripp[ing] the Service Plan completely from the items that it had contained even those that would not have cost any money" and 2) "den[ying] [Student] of the ‘door to door bus service’ that had been provided for [sixth] and [seventh] grade and continued as per written in his IEP for [eighth] grade." Id.

• Southington failed to 1) schedule and pay for prescribed vision therapy; 2) "provide timely triennial testing even after this was requested by the Catholic Schools for High School Transitional Planning"; 3) hold a PPT after the Plaintiffs’ "multiple requests and notification that the SpEd had stripped the IEP of the student's needed testing accommodations"; 4) "coordinate the requisite testing accommodations for the PSAT"; 5) "keep to their commitment to send in someone to train the teachers at Southington Catholic once a month in Executive Functioning training." Id. at 6–7.

Plaintiffs proposed the following as a resolution with Southington:

• reimbursement for all costs associated with Plaintiffs’ unilateral placement of Student at Southington Catholic School, id. at 7, including for "mileage and driver's time for door to door service for [half] of school year," id. at 8;

• compensation for "tuition reimbursement ... for years lost of Middle School appropriate education with four years of High School tuition," id. at 7;

• "Compensatory Services for not providing appropriate executive functioning services and handwriting/cursive ... in the IEP," including summer tutoring, id. ; and

• "More frequent Vision Therapy sessions throughout the summer with transportation to and from the 4D Vision Gym in Cromwell to be continued until cured," id.

B. The Hearing Officer's Decision

On June 13, 2016, Hearing Officer Janis C. Jerman ("Hearing Officer Jerman") held a telephonic pre-hearing conference. Final Decision and Order, ECF No. 90-1 at 10 (Sept. 1, 2016) ("Final Decision"). After previously ruling on a motion to dismiss—where she dismissed certain allegations for lack of subject matter jurisdiction, standing, ripeness, or falling outside the two year statute of limitations—Hearing Officer Jerman identified seven issues to resolve:

1. Did Southington provide Student with a FAPE for the 2013-14 school year from the period May 10, 2014 to the end of the school year?

2. Did Southington provide Student with a FAPE for the 2014-15 school year?

3. Did Southington provide Student with a FAPE for the 2015-16 school year?

4. Did Southington provide Student with a FAPE for the 2016-17 school year?

5. If Southington didn't provide Student with a FAPE, is Student's unilateral private placement appropriate?

6. If the answer to #5 is in the affirmative, are Student's Parents entitled to reimbursement for the cost of the unilateral private placement

7. If the answer to the first four questions are in the negative, what shall be the remedy?

Id. at 10–11. Throughout the underlying administrative hearings, Plaintiffs appeared on behalf of Student, without counsel. Id. at 10.

Hearing Officer Jerman presided over four hearing dates, two days for each side to present their case, on July 18, 2016; July 26, 2016; July 27, 2016; and August 17, 2016. Id. at 11.

On September 1, 2016, Hearing Officer Jerrman issued her Final Decision and Order ("Final Decision"). Id. at 10–31. She made fifty-eight findings of fact and thirteen conclusions of law. Id.

On December 20, 2012, during his fifth-grade year, Southington found Student eligible for special education services under the primary disability of Specific Learning Disability ("SLD"). Id. at 12. Parents participated in the Planning and Placement Team ("PPT") meeting to develop an Individualized Education Program ("IEP") for Student. Id.

During 2013, the PPT met several times to revise Student's IEP, including after an occupational therapy screener indicated that Student wasn't meeting grade level expectations for writing. Id. The PPT also incorporated recommendations from an independent psychological evaluation of Student and an optometrist. Id. Some of the PPT's recommendations, such as counseling and completion of behavior rating scales, were denied by Parents. Id.

At the January 30, 2014 PPT meeting, which was Student's annual review, Parents requested changing Student's primary disability designation from SLD to Visual Impairment. Id. at 13. The PPT declined "based on the Federal Register definition of Visual Impairment and based on the [Board of Education and Services for the Blind ("BESB") consultant's] report and recommendations." Id. Despite not meeting the criteria, Southington "provided services and accommodations to meet his vision needs, including assistive technology and [occupational therapy]." Id. The IEP also provided Student "access to a software program that converts speech to text and vice versa." Id. at 14.

Applicable to all school years, Hearing Officer Jerman found:

The credible evidence supports a finding that Parents were invited to all PPT meetings; had an opportunity to ask questions, present recommendations, and invite advocates or other relevant professionals to participate; that certain of their requests were implemented; and that they had time at PPT meetings and before IEPs were implemented to raise additional concerns. There is also credible evidence that the PPT convened regularly at Parents’ request....

The [IDEA] requires [Southington] to have an IEP in effect at the beginning of each school year for each child with a disability. The credible evidence supports a finding that BOE had an IEP in effect for Student the beginning of each school year at issue in this case.... that PPT decisions were not based on funding but were based on providing Student with FAPE. For example at Parents’ request, BOE purchased an expensive software package for Student that was not in use elsewhere in the district.... the services, supports and accommodations were tailored to Student's needs.... Parents did not produce evidence that any of their advocacy or complaints against [Southington] officials in any way impacted Student's educational program or the provision of FAPE.

Id. at 19–21. Hearing Officer Jerman also highlighted testimony that school administrators "working directly with Student and his educational program did not witness any bullying, harassment, or discrimination or receive complaints of such," and that credible evidence in the record supports the finding that "any frustration felt about Parents’ advocacy had no negative impact on Student's education." Id. at 21. As discussed more specifically below, she found that Southington provided a FAPE to Student for all four academic years at issue.

i. 2013-2014 Academic Year

Hearing Officer Jerman first found that, "[d...