Evans
claims various procedural errors by the District in developing Frank's
1994-95 Individual Educational Program ("IEP") and also claims that
Frank's 1994-95 IEP did not meet the substantive requirement that
it be reasonably calculated to confer educational benefit. The hearing
officer found in favor of the District, and the State Review Officer
dismissed Evans' appeal. Although the Supreme Court has held that
reviewing courts should be cautious in cases questioning the efficacy
of a state educational program, see Hendrick Hudson Board of Educ.
v. Rowley, 458 U.S. 176, 206, 73 L.Ed.2d 690, 102 S.Ct. 3034 (1982),
a thorough review of the record here has convinced the Court that
the findings and conclusion of the state administrative officers simply
do not merit deference. Because this review has indicated that the
findings and conclusions of the state administrative officers are
largely unsupported, I begin by proceeding through the evidence in
some detail.
Facts
Frank
is a fifteen year old boy of above average intelligence. He suffers
from dyslexia, a severe learning disability that hinders his ability
to decipher written symbols. Dyslexia has a neurological basis, and
although there is no cure, a dyslexic child can learn methods to decipher
words. Although Frank was not diagnosed with dyslexia until the summer
of 1994, Evans testified that, from the time he entered school, Frank
has had problems with spelling, reading and writing. She also testified
that he has always experienced anxiety, sometimes accompanied by physical
symptoms, in connection with tests.
In
1993, Evans enrolled Frank in the District's Buckeley Middle School,
where he was placed in a regular education seventh grade class for
the 1993-94 school year. Concerned with his difficulty in reading
and spelling, Evans referred Frank to the District's Committee on
Special Education ("CSE") in November of 1993. He was psychologically
and educationally evaluated in December of that year.
The
school psychologist, Donna Smith, reported that testing showed that
Frank had a high IQ. She found that his verbal ability was superior,
and that his ability to acquire information through auditory and oral
modes was significantly greater than that of his peers. She noted,
however, that Frank slowed down while performing visual motor tasks
to assure his accuracy. She also found that writing and copying symbols
were his weaknesses, but that his writing ability nevertheless appeared
to be at age level.
In
addition, Smith's projective testing revealed that Frank had a negative
perception of his abilities in school, physical appearance, and popularity
with peers, that he had "needs for security," that "he feels that
despite the times he works hard he 'does bad' and he 'can't get it
all right,'" and that he "experiences himself as perceived as 'different'
by his peers." She recommended that the CSE consider alternate ways
of helping Frank obtain information in the classroom, such as having
him obtain copies of class notes and teaching him alternative ways
of recording information, that he receive remedial help in spelling
and a spell-checker, and that his progress be monitored.
Interviewed
by Smith in November 1993, Evans reported that Frank's self-image
was "poor right now due to negative experience in school," that he
experienced "mood swings and frustration in regard to school," that
he was frustrated with his writing, spelling and reading problem,
that "he feels that he is stupid."
Using
the Woodcock Johnson Achievement Test, the school special education
teacher, Roberta Bloomer, performed an educational evaluation. Frank
received the following grade equivalent scores:
5.8
in letter-word recognition, and
8.3
in passage comprehension, resulting in
6.5
for broad reading;
8.9
in mathematical calculation, and
10.1
in applied problems, resulting in
9.4
in mathematics;
3.1
in dictation (spelling), and
8.9 in writing samples, resulting in
4.3
for written language.
Because
of Frank's weaknesses in reading and spelling, Bloomer also gave him
the Boder Test of Reading and Spelling, in which Frank reportedly
identified words at the 6th and 7th grade level and read on the fifth
to sixth grade level, but spelled correctly only 20% of the words
given to him. Bloomer noted that Frank spelled phonetically, but did
not use non-phonetic spelling patterns.
The
CSE met on December 10, and considered Frank's psychological and educational
evaluations, but, despite what Patricia Zeisler, the chair of the
CSE and principal of Buckeley, identified as "a discrepancy between
. . .the verbal and performance subtest scores, which often is associated
with a learning disability," it did not classify him as a child with
a disability. The CSE notified Evans that it declined to classify
Frank because testing results did not indicate the presence of a learning
disorder at that time. Instead, Frank received remedial instruction
in reading and spelling by Bloomer, and counseling by Smith. Bloomer
worked with Frank in the classroom as an inclusion teacher, helped
him organize his notebook, and monitored his homework and performance
in class. Bloomer also provided individual instruction to him during
study periods four times a week plus one or two other 40-minute periods
each week, and used glass analysis, an alternative method of word
decoding with him. She also worked with him to improve his writing
and spelling by using a computer. At Evans' request, counseling was
discontinued shortly after it had begun because Frank evidently did
not feel comfortable with Smith.
On
March 22, 1994, the CSE reconvened. Bloomer reported that Frank required
more assistance to be successful in the classroom. She told the CSE
that he needed help with note-taking, and developing his study and
organizational skills, in addition to assistance in improving his
reading, spelling and writing skills. Although no additional tests
were conducted, the CSE relied upon Bloomer's oral report to recommend
that Frank be classified as learning disabled. There was no written
report of the basis of that determination. Zeisler testified that
the CSE decided to use Frank's spelling deficit as the basis for the
classification. His spelling score on the Woodcock Johnson was not
reflected in his IEP, however.
The
CSE further recommended that Frank receive consultant teacher services
twice a day with Bloomer, and be permitted to use testing modifications,
such as extended time limits, taking tests in alternate locations
and giving oral responses to test questions. Frank's IEP included
annual goals to improve keyboarding, writing and study skills.
According
to Bloomer, Frank's testing was modified in all subject areas. He
was given multiple choice questions, with short answers. Often Bloomer
would read the tests to him so that he could dictate answers. Where
longer writing was required, he was permitted to write in phrases,
and she would later work with him to produce full sentences. Frank's
homework assignments were also modified so that they were shorter.
In addition, although it was not reflected in the IEP, Bloomer provided
individual instruction for 40-minute periods approximately eight times
per week. She worked with Frank in all subject areas, but primarily
in writing. Despite these additional services and testing modifications,
Frank's performance declined between March and the end of the school
year.
Frank
failed every major academic subject that year. He received a grade
of "Unsatisfactory" in language arts, social studies, science and
mathematics. Teacher comments on his report card indicate that he
had difficulty following classroom procedures, had not completed assignments
and was absent a lot. Bloomer testified that Frank did not achieve
any of the goals included in the March IEP.
In
May, increasingly concerned about Frank's academic difficulties and
emotional problems, Evans requested that Frank be independently evaluated
by a private psychologist. Dr. Howard Susser assessed Frank's cognitive
skills using the Wide Range Achievement Test ("WRAT"). Frank received
the following grade equivalent scores:
9.8
broad cognitive abilities,
13.6
oral language,
2.3
long term retrieval,
5.7
processing speed,
3.5
auditory processing,
7.8
visual processing,
10.3
knowledge,
16.9
short term memory, and
16.9
fluid reasoning.
Frank
also received grade equivalent scores of:
4
(beginning) in reading,
2
(end) in spelling,
7
(beginning) in arithmetic.
Dr.
Susser reported that Frank's reading, decoding and spelling skills
were impaired by weaknesses in processing speed, auditory processing
and long-term memory retrieval skills, and specifically in sound blending
and memory for names, but that Frank's significant strength in reasoning,
comprehension, language skills and short-term memory compensated for
his weaknesses. He summarized Frank's learning disability as an auditory
processing deficit, a long-term retrieval or associative learning
deficit and a weakness in processing speeds, which led to difficulties
in spelling and decoding.
Dr.
Susser also reported that emotionally and behaviorally, Frank's most
significant problem was internalizing his feelings. Dr. Susser explained
that Frank had two significant conflicts, the first being Oedipal,
which had led to difficulty in developing independence from his mother,
and the second relating to his learning disability. Dr. Susser reported
that school learning could have been a route to independence and separation
from his mother, but had been blocked by his academic difficulties.
Dr. Susser explained that the two conflicts conspired together in
such a way that Frank had difficulty in expressing his independence
positively. According to Dr. Susser, Frank experienced significant
anxiety and depression.
Dr.
Susser recommended that Frank receive psychotherapy with a male therapist,
remedial instruction in reading, writing, and spelling, and possibly
use a "spell check" computer program and tape record classes. Dr.
Susser also recommended that his teachers should be made to understand
that comments on his report card such as "if he only worked harder,
he would do better. . ." would be counterproductive.
The
CSE met again on June 14, before Frank's report card came out, and
prepared part of Frank's IEP for the 1994-95 school year (the IEP
was dated June 1, 1994). Despite Frank's complete failure in seventh
grade, the District proposed to promote Frank to the eighth grade
and to continue for the 1994-95 school year substantially the same
modifications and services that had to date not helped him. The CSE
recommended that Frank continue to receive daily individual instruction,
but from special education teacher Elizabeth Villanti rather than
Bloomer, and concentrating on social studies, rather than writing.
The CSE also recommended that he receive the standard services given
to all learning disabled students: enrollment in a 12:1 special education
class for English and consultant teacher services (in math and science)
two periods per day. The CSE also relied upon Dr. Susser's report
to prepare a "learning plan," which suggested techniques for Frank's
teachers. These techniques included many of the modifications to testing,
classwork and homework that Bloomer had already begun, such as providing
Frank with class notes, permitting oral responses, shortening homework
reading assignments, etc.
The
goals and objectives of the IEP were formulated at that meeting but
were not finalized because the CSE wanted input from Evans, who was
not present at the meeting. Unable to contact Evans, however, Villanti
wrote the goals herself in August.
That
summer, Evans enrolled Frank, at her expense, in the summer program
of the Kildonan School, a private school for children with dyslexia,
which is not on the state-approved list. Students at Kildonan are
taught using the principles of the Orton-Gillingham method. According
to Margaret Mabie and Diana King, experts in dyslexia and the Orton-Gillingham
method, because dyslexics do not learn by having someone simply tell
them something, and because they cannot remember, for example, the
spelling of a word by simply looking at it, they must learn through
a multi-sensory procedure, using multiple sensory systems--visual,
auditory and kinesthetic.
In
the beginning, each letter of the alphabet must be taught to dyslexics
through multi-sensory procedures. Because they cannot discriminate
between sounds like most people, in order to learn a sound, they must
say it, feeling its distinction in their mouths, in association with
seeing it written and writing it themselves. The technical rules of
a language, learned visually by many people, must also be taught to
the dyslexic. For example, the dyslexic must learn that when a word
begins with "k" the following vowel is "i," "e" or "y," but that most
words beginning with a "k" sound actually begin with "c." Dyslexics
do not learn by reading a rule, such as "i" before "e" except after
"c". . ., on the blackboard. Nor do they learn by having someone recite
them a rule, even repeatedly. Rather, they a rule must be learned
through daily multi-sensory drill and practice, until it becomes automatic.
In
addition, according to Mabie and King, because dyslexics cannot absorb
the structure of a language visually or by being told, they must learn
it sequentially, starting with small units, such as the order of letters
in the alphabet, gradually adding larger pieces, such as learning
the spelling of sounds and how syllables are divided, and then proceeding
to the rules of sentence structure and idea formation. In addition,
because, through Orton-Gillingham, the dyslexic learns progressively,
building upon the information that he has mastered, his confidence
remains intact. Instructed in accordance with principles of Orton-Gillingham,
a dyslexic's skill level remains commensurate with his abilities,
and he does not experience the frustration caused by having a wide
discrepancy between intellectual ability and academic achievement.
What
distinguishes a dyslexic student from a low-level functioning, mildly
retarded student is that the mildly retarded student may not have
the capability to acquire or absorb the knowledge necessary to progress
in school, but the dyslexic merely requires a different approach to
learning language skills. If a dyslexic is taught language skills
in an appropriate manner from the beginning of his education, he can
manage effectively in a regular classroom.
When
Frank arrived at Kildonan, according to King, he had "pathetically
weak skills in decoding." Katherine Schantz, the current academic
dean and director of admission at the Kildonan School, conducted Frank's
initial interview. She discovered that Frank's family had a history
of dyslexia, and her pre-testing of Frank led her to the conclusion
that Frank was profoundly dyslexic. In June, Schantz conducted the
following tests on which Frank received the following grade equivalent
scores:
3.8
WRAT-R2 (word identification),
5.1
Gray Oral Reading (reading speed and accuracy),
6.1
Gates-Macginitie Silent Reading Test (Level 5/6K & L) (vocabulary),
4.1
Gates-Macginitie (reading comprehension),
3.1
Morrison-McCall (spelling),
3.9
IOTA,
7
WRAT-3 (arithmetic).
Schantz
concluded that Frank's disability was in a very specific subskill
of language, namely phonological coding, which manifested itself most
profoundly in testing for sound-syllable relationships. Frank's phonological
coding disability effected his spelling, his speed in reading, writing
and mathematics, as well as his interpretation of reading matter.
Schantz also observed that, as is typical of students where there
is a wide discrepancy between intellectual potential and skill, Frank
was quite frustrated and emotionally fragile. Schantz's primary concern
at that time was that Frank did not have access to reading as a way
of learning, that is, he was still reading in order to learn to read,
but could not use reading as a way to learn. Because of what she characterized
as his "cognitive wealth," however, she believed Frank's prognoses
was excellent.
Frank
was assigned a male tutor for the summer and concentrated on three
areas: (1) word identification so that he could read more difficult
material that would sustain his interest; (2) making his handwriting
more automatic because, as Schantz testified, for dyslexics the kinesthetic
exercise of writing is essential in establishing sound-syllable relationships;
and (3) oral reading in the context of a tutorial to assist him in
establishing the speed and automation necessary to become an independent
reader.
At
the end of the summer in August, Frank was tested again. The testing
revealed that he had made considerable progress during the summer
in the areas of word identification, reading speed and accuracy, and
comprehension. He received the following scores:
8.8
WRAT-R2 (word identification),
7.3
Gray Oral Reading (reading speed and accuracy),
7.3
Gates-Macginitie Silent Reading Test (Level 5/6K & L) (vocabulary),
9.5
Gates-Macginitie (reading comprehension),
4.7
Morrison-McCall (spelling).
Schantz
testified that Frank had developed certain systematic ways to attack
unfamiliar words, that he had learned a whole system of what types
of syllables were in the english language and how to address phonetic
issues, that he was reading with greater speed and somewhat greater
accuracy near grade level, although not up to his intellectual capacity,
and that he could read to learn, instead of merely reading to learn
to read.
In
his academic report, Frank's tutor commented that Frank was a "responsible,
and determined student, he completed his assignments regularly.. .
. As the summer progressed, he took increasing pride in his accomplishments,
and his interest increased with constant reinforcement and academic
variety." The tutor reported that Frank had made outstanding progress
in his handwriting, significant progress in phonics, solid gains in
spelling and that he had learned to write with more focus, detail,
and organization. The tutor recommended that Frank develop a daily
reading habit, that he never be penalized for spelling errors, that
he should be required to use cursive writing for all written work,
that he develop proficiency in key-boarding and word-processing skills,
that testing and homework be modified, that he receive instruction
from a trained Orton-Gillingham tutor, and that he attend Kildonan
for the school year.
Over
the summer, Evans requested and reiterated her request for an impartial
hearing in letters dated July 5 and September 1. A hearing was not
scheduled at that time, but Evans met with the District for mediation
on three occasions, early in September. The parties have differing
perceptions about the outcome of the mediation. Zeisler testified
that she believed that the parties had agreed that the District would
employ Mabie, an Orton-Gillingham trained instructor, to conduct Frank's
individual instruction. Evans testified that she agreed, at Zeisler's
suggestion, to have a psychiatric evaluation done by a physician for
a diagnosis of dyslexia so that the CSE could make a recommendation
to the Board of Education to keep Frank at Kildonan, to have Mabie
"screen" Frank to determine his needs, and then to meet with the CSE
again to discuss placement. She also testified that the parties agreed
that Frank would remain where he was, at Kildonan, until another arrangement
could be worked out.
Mabie
testified that when Zeisler called her, she agreed to meet with Frank
and do a quick screening. She never made a commitment to the District,
but indicated that she would try to fit him into her schedule. She
testified, however, that she agreed to the screening before she knew
anything about Frank's background. Ultimately, Mabie never did the
screening because she did not have time, but also because she began
to "question[ ] whether an hour a day with me was all this child needed."
Mabie felt that Frank was in "very bad shape." "When I saw his background
I felt that my one hour a day was just, you know, this much (indicating)
and he needed a whole lot more."
By
this time, however, Evans had enrolled Frank in the Kildonan School
for the 1994-95 school year. At Kildonan, Frank continued the tutorial,
at a frequency of five times per week for 45 minutes, that was started
in the summer. His schedule included prealgebra, preliminary chemistry/physics,
American history, literature and studio arts/ceramics, in addition
to a proctored study hall and an individual tutorial. Each class was
taught by an Orton-Gillingham trained teacher who presented the material
using the Orton-Gillingham method. Through the course of a period,
the materially was presented both orally and in writing, and assignments
were both oral and written. In addition, testing was modified as necessary.
Frank was "fast-tracked" with intellectually superior students who
were very similar in profile in terms of being dyslexic or dysgraphic,
although some did not have Frank's degree of difficulty in reading.
Schantz
testified that in terms of content, Frank's classes were not modified,
but that the volume of independent work was reduced. She observed
that his motivation increased noticeably over the year, he was inspired
by books that he was reading in his literature class, he was much
more engaged, he made friends, he felt challenged intellectually and
was responding well, and he was well adjusted and well-liked by his
teachers.
Kildonan
conducted its regular mid-school year battery of tests in February
of 1995, on which Frank received the following scores:
8.2
Woodcock-Johnson (letter/word identification),
3.3
Woodcock-Johnson subtest (word attack),
11.3
WIAT (reading comprehension),
4.7
Barnell-Loft (spelling).
Schantz
explained that Frank exhibited no notable progress on the word attack
subtest because it specifically isolated his deficit. Because this
deficit is part of his neurological make-up, when isolated, it will
remain largely unchanged. Frank's report card for the end of the 1994-95
fall term indicated that his reading had progressed, and that he had
a good grasp of pre-algebra. Although he still needed work on writing
and sequencing, he was generally doing considerably better in a number
of other areas.
But,
in September of 1994, as Frank began the fall term at Kildonan and
the parties grew frustrated with mediation, an impartial hearing was
scheduled for the 21st. It was later adjourned with the consent of
both parties until October 26. Meanwhile, Evans received a letter
notifying her of a CSE meeting on October 4. The letter stated that
the purpose of the meeting was to "review placement at Kildonan,"
and "program Review (increase or decrease level of services)."
On
October 4, Evans met with the CSE and requested that the CSE recommend
placement at Kildonan. She testified that she was asked to bring along
a representative from Kildonan so that placement there could be considered.
King, the founder and former director of the Kildonan School, attended
the CSE meeting, discussed Frank's participation in the School's summer
program, and recommended that Frank attend the Kildonan School as
a residential student during the 1994-95 school year. The CSE also
considered a letter from Dr. Harold Levinson, who evaluated Frank
over the summer, and who opined that Frank had "dyslexia secondary
to a cerebellar-vestibular dysfunction." Dr. Levinson recommended
that Frank remain at the Kildonan School.
The
CSE, however, recommended placement in the District's school and amended
Frank's IEP for the 1994-95 school year by replacing the individual
instruction in social studies with individual, multi-sensory instruction
in reading and writing for 60 minutes four days per week with Mabie--as
the parties had discussed at their mediation--and inserting counseling
for 30 minutes per week by a private psychologist who would consult
with the school psychologist twice per week. Annual goals relating
to American history and keyboarding were deleted, and new goals relating
to mathematics and counseling were added. In describing Frank's current
level of functioning, the IEP incorporated two scores, in reading
comprehension and vocabulary, from Kildonan's August 1994 testing.
Disagreeing with the CSE's placement recommendation, Evans insisted
that the hearing scheduled for October 26 proceed.
As
noted above, following that meeting, Mabie declined to provide the
multi-sensory services to Frank. Thus, the District was not in a position
to implement its IEP. On October 26, the parties met just prior to
the commencement of the impartial hearing. At that meeting, the parties
came to an agreement that obviated the need for a hearing. The terms
of that agreement are highly disputed, but the result was that the
impartial hearing was called off and Frank continued at the Kildonan
School at the expense of the District. The parties asked the hearing
officer to retain jurisdiction, in the event that there was a subsequent
disagreement.
On
Nov. 7, the District hired a substitute multi-sensory reading and
writing instructor, Constance Moore, who was to tutor Frank 40 minutes
each day and spend the extra 20 minutes of the hour consulting with
Frank's core curriculum teachers. Moore is currently a private tutor.
She has a teaching degree in elementary education, and a permanent
teaching certificate for kindergarten through sixth grade. She has
taught kindergarten, second grade and elementary reading, and at least
one highschool boy. She is not certified in either special education
or Orton-Gillingham instruction. She taught at the Kildonan school
part-time for three years, and full-time for five years, where for
less than a year, she was trained in Orton-Gillingham instruction
by King.
King
testified that Moore is not qualified "for work with an adolescent.
Under supervision, in a structured supervision she works well with
young children.. . . With an adolescent you have to be prepared to
go into the more advanced language skills. You have to be well organized
and appropriate in your relationships with an adolescent." King testified
that Moore is not qualified in those areas of work required by adolescents.
She further testified that Moore is not qualified or competent to
instruct, train or otherwise consult with other teachers as to how
to work with a specific student under the Orton-Gillingham approach.
Sometime
after November 14, Evans informed Zeisler that she had spoken with
Moore and concluded that she was not qualified to provide Frank with
the instruction he required. In a letter, dated December 5, Zeisler
informed Evans that the District would no longer be responsible for
paying Frank's tuition at the Kildonan School. In response, Evans
requested another meeting of the CSE, and in a letter dated January
4, 1995, she requested an impartial hearing.
The
CSE did not meet until January 19. Thus, it was not until January
19 that Frank's IEP was amended to reflect the changes made after
Mabie declined to accept Frank as a student and the parties came to
their October agreement that obviated the need for a hearing. On January
19, Evans reiterated that she would pursue the impartial hearing.
The District agreed at that time to pay Frank's tuition at the Kildonan
School until the hearing officer rendered his decision.
The
impartial hearing began on February 8 and, after 11 sessions, concluded
on June 6. In his decision, dated July 10, the hearing officer found
that the current designation of Frank's handicapping condition was
"unknown," that the District was reasonable in proceeding cautiously
in classifying Frank when he first arrived in the District, that a
detailed plan of action for addressing Frank's needs was agreed to
after the CSE meeting in June of 1994, that "there is nothing in the
record to refute the fact that the school district established an
appropriate IEP for [Frank] for 1994-95," that the record indicated
that the District had complied with the procedural requirements for
preparing Frank's IEP for the 1994-95 school year and that the IEP
was reasonably calculated to provide education benefit in the least
restrictive environment. He directed the District to put in place
immediately a program similar to that outlined in the October 1994
IEP, but also to update it.
Evans
appealed this decision to the State Review Officer. In a decision
dated September 29, 1995, the State Review Officer dismissed the appeal
on the grounds that the IEP proposed by the CSE was appropriate and
that it was available as of January 19, 1995.
Except
for a brief period following the District's decision to terminate
its tuition payments on December 5, 1994, Frank attended the Kildonan
School at the District's expense from October 1994 until December
1995. Evans made two unsuccessful attempts to send Frank to Rhinebeck's
high school in January and February of this year, but Frank ran away.
Thus, Frank has not attended any school from January through April
of this year, when this Court granted Evans' motion for a preliminary
injunction.
Discussion
1. Legal Standards
The
IDEA permits an aggrieved parent to bring an action in district court.
In reviewing the decision of the state educational agency,
the court shall receive the records of the administrative proceedings,
shall hear additional evidence at the request of a party, and, basing
its decision on the preponderance of the evidence, shall grant such
relief as the court determines is appropriate. 20 U.S.C. §
1415(e)(2).
The
role of the reviewing court, however, is circumscribed. Rowley,
458 U.S. at 206, cautioned that "the provision that a reviewing court
base its decision on the 'preponderance of the evidence' is by no
means an invitation to the courts to substitute their own notions
of sound educational policy for those of the school authorities which
they review." The Court held that "due weight" must be given to the
state administrative proceedings. See Rowley,
458 U.S. at 206. In this regard, "[a] number of other courts, including
the Second Circuit, have held that the administrative findings in
lawsuits brought under the [IDEA] should be accorded some degree of
deference." Mavis v. Sobol, 839 F. Supp. 968, 986 (N.D.N.Y.
1993) (quoting Hiller v. Board of Educ., 743 F. Supp. 958,
968 (N.D.N.Y. 1990). See Karl v. Board of Educ., 736 F.2d 873,
876-77 (2d Cir. 1984).
In
assessing the appropriateness of the educational program offered by
the state, Rowley
held that the proper inquiry is twofold: "First, has the State complied
with the procedural requirements set forth in the Act? And second,
is the individualized educational program developed through the Act's
procedures reasonably calculated to enable the child to receive educational
benefits?" Rowley,
458 U.S. at 206-07. As the party challenging the findings of the administrative
determination, Evans has the burden of proof. See Hiller
v. Board of Educ., 743 F. Supp. 958, 967-68 (N.D.N.Y. 1990).
2.
Procedural Requirements
Detailed
procedural provisions lie at the heart of the IDEA. These processes
are designed to guarantee that each handicapped student's education
is tailored to his unique needs and abilities. The Act, and the regulations
promulgated pursuant to it, contain procedures for determining whether
the appropriate placement is regular or special education, for preparing
an IEP, for changing the placement or the IEP, and for removing the
child from regular education. 20 U.S.C. §§ 1412 & 1415;
34 C.F.R. §§ 300.300 - 300.576. "The Act's procedural guarantees
are not mere procedural hoops through which Congress wanted state
and local educational agencies to jump. Rather, 'the formality of
the Act's procedures is itself a safeguard against arbitrary or erroneous
decisionmaking.'" Daniel R.R. v. State Board of Educ., 874
F.2d 1036, 1041 (5th Cir. 1989) (quoting Jackson v. Franklin County
School Board, 806 F.2d 623, 630 (5th Cir. 1986). Both Congress
and the Supreme Court place great importance on the procedural provisions
incorporated into § 1415. See Rowley,
458 U.S. at 102 ("the importance Congress attached to these procedural
safeguards cannot be gainsaid.")
A
violation of the Act's procedural guarantees may be a sufficient ground
for holding that a school system has failed to provide a free appropriate
public education and, thus, has violated the Act. See Daniel,
874 F.2d at 1041. Procedural flaws do not automatically require a
finding of a denial of a free appropriate education, but procedural
inadequacies that result in the loss of educational opportunity clearly
result in the denial of a free appropriate education. See W.G.
v. Board of Trustees, 960 F.2d 1479, 1484 (9th Cir. 1991) (citing
Burke County Board of Educ. v. Denton, 895 F.2d 973, 982 (4th
Cir. 1990).
Evans
raises four claims of procedural error:
(1)
failure to convene an impartial hearing within 45 days of her request
on July 7, 1994, in violation of 34 C.F.R. 300.512(a);
(2)
failure to have a proper IEP ready to implement at the start of
the school year, in violation of 34 C.F.R. §§ 300.342;
(3)
failure to include in the IEP a statement of Frank's present level
of educational functioning and strategies to evaluate progress,
in violation of 20 U.S.C. § 1401(a)(19) and 34 C.F.R. §§
300.346(a); and
(4)
failure, when developing the IEP, to include Frank's classroom teacher
in the evaluation team, to conduct a classroom observation of Frank,
and to prepare a written report that included a statement of the
basis for the determination that Frank was learning disabled, in
violation of 34 C.P.R. §§ 300.543, 300.344(a)(1)-(2) &
300.540(a)-(c).
I
discuss each alleged error in turn.[1]
In
a letter, dated July 7, 1994, Evans requested an impartial hearing.
A hearing was not scheduled, however, until September 21, after the
school year had begun. The IDEA's implementing regulation provides
that the District "shall ensure that not later than 45 days after
the receipt of a request for a hearing . . . a final decision is reached
in the hearing." 34 C.F.R. § 300.512(a)(1). Although a hearing
officer may grant an extension of the 45-day limit at the request
of either party, see 34 C.F.R. § 300.512(c), here, a hearing
was not even scheduled until 71 days after Evans' request. Instead,
the District arranged for mediation of the dispute.
The
hearing officer made no specific findings or conclusions in connection
with this alleged procedural violation. The State Review Officer specifically
found that the District had failed to schedule promptly a hearing
and found that it had offered no factual basis or legal authority
in support of its argument that Evans waived her right to receive
a written decision of the hearing officer within 45 days by agreeing
to mediation. However, after noting "that both parties bear responsibility
for the protracted proceeding which has occurred," the State Review
Officer merely admonished the District to "ensure that hearings are
commenced promptly after it receives hearing requests."
The
Act, however, was intended to ensure prompt resolution of disputes
regarding appropriate education for disabled children. This includes,
of course, the administrative review process. The legislative and
administrative concern for prompt final resolution has been reflected
in judicial opinions. See e.g. Spiegler v. District of Columbia,
275 U.S. App. D.C. 260, 866 F.2d 461, 466-67 (D.D.C. 1989). Section
300.512(a) specifically sets forth that it is the District's duty,
and not the parent's, to ensure that a timely hearing and decision
takes place after the parent requests an impartial hearing of the
IEP decision. Thus, I believe that the State Review Officer's admonishment
falls short of the mark, but I do not rest my decision on that basis
alone.
Evans
next alleges that the District failed to have a proper IEP ready to
implement at the start of the new school year. The hearing officer
found that the October 1994 IEP "was determined appropriate upon [Frank]'s
arrival in the Rhinebeck School System at that time."[2]
The State Review Officer found, however, that there was no dispute
that the IEP which the CSE recommended on October 4 could not have
been implemented at that time, because Mabie, who was to provide individual
tutoring, had declined to provide her services. The State Review Officer
found that, although a change in a child's service provider is not
normally considered to be a change in a child's program, upon hiring
Moore, the District also intended to change the amount of service,
which required an amendment to Frank's IEP by the CSE. Thus, the State
Review Officer found that the District "did not have an appropriate
program" until January 19, 1995 when it amended Frank's IEP, and thus
by implication, that the District did not have an appropriate program
at the start of the school year.
Under
the IDEA, the general rule is that placement should be based on an
IEP. See 34 C.F.R. § 300.552. The IDEA's implementing regulation
provides that
at
the beginning of each school year, each public agency shall have
in effect an IEP for every child with a disability who is receiving
special education from that agency. . . An IEP must . . .be in effect
before special education and related services are provided to a
child; and. . .be implemented as soon as possible following the
[CSE] meetings.34 C.F.R. § 300.342.
The note
following this provision states that "it is expected that the IEP
of a child with a disability will be implemented immediately following
the [CSE] meetings."
Here,
as the State Review Officer found, the District did not have an appropriate
program in effect until Frank's IEP was revised in January 1995, four
months into the 1994-95 school year. Thus, the District's decision
to place Frank at Buckeley at the start of the 1994-95 school year,
before it had an IEP in effect on which to base that placement, constitutes
a procedural violation of the Act. Cf. Spielberg v. Henrico County
Public Schools, 853 F.2d 256, 259 (4th Cir. 1988).
The
third alleged procedural error is the failure to include in the IEP
a statement of Frank's present level of educational functioning and
strategies to evaluate his progress, in violation of 20 U.S.C. §
1401(a)(19) and 34 C.F.R. §§ 300.346(a)(1), (2) & (5).
Under the Act, an IEP must be a written statement of specially designed
instruction to meet the unique needs of a handicapped child, which
includes:
(A)
a statement of the present levels of educational performance of
such child;
(B) a statement of annual goals, including short-term instructional
objectives;
(C) a statement of the specific educational services to be provided
to such child, and the extent to which such child will be able to
participate in regular educational programs;
(D) the projected date for initiation and anticipated duration of
such services, and
(E) appropriate objective criteria and evaluation procedures and
schedules for determining, on at least an annual basis, whether
instructional objectives are being achieved. 20 U.S.C. § 1401(a)(19);
see also 34 C.F.R. §§ 300.346(a)(1), (2) & (5).
Frank's
October 1994 and January 1995 IEPs listed his IQ test scores, as well
as broad reading, broad mathematics, broad written language, and general
knowledge scores, from evaluations performed by the CSE in December
1993. In addition, they included two test scores--in reading comprehension
and vocabulary--from a test administered at the Kildonan School in
August 1994. Based on this information, the State Review Officer found
that the IEPs stated Frank's current level of educational performance.
(The hearing officer made no specific finding with regard to whether
the IEPs set forth Frank's present level of educational functioning.)
Both
IEPs, however, fail to establish with precision Frank's individual
needs. Frank's current level of functioning for reading and writing
was presented in a broad score, thereby masking his areas of deficit,
according to uncontroverted expert testimony. According to Schantz,
who has expertise in the fields of clinical psychology and intellectual,
emotional and social testing, the Woodcock Johnson has a subtest in
word attack skills, on which Frank, as is typical of dyslexics, scores
much lower. The broad, composite score for reading depresses his reading
comprehension abilities, which are actually much higher than indicated,
but inflates his word attack skills, his area of deficit. As a result,
Frank's needs cannot be accurately projected based on a broad score.
Neither
IEP reveals Frank's scores in spelling or word attack--those areas
where his deficit most profoundly manifests itself--in spite of extensive
evaluations carried out by Dr. Susser and at Kildonan and which were
available to the CSE. There is no indication in the record why only
two of the scores from the test administered by Kildonan were included
in the IEP, or why those two scores in particular were included.
Mabie,
the Orton-Gillingham trained instructor hired by the District originally
to tutor Frank, who, at her own learning center established ten years
ago, educationally evaluates primarily dyslexic students, testified
that the testing results reflected in the IEP did not give her the
type of information she needed to identify Frank's areas of deficit.
As a result, she inquired of the District whether she could do her
own testing. She testified that she,
found
the IEP confusing . . . In the comprehension they had a score
of 9.5. My first reaction was why is this child, he is in ninth
grade, why is he having a problem if he is reading at grade level.
It didn't make much sense to me. And then it had broad reading,
6.5; written language of 4.3. I didn't see any spelling score
at all and it just did not give me enough. I wanted to find out
where the difficulty--in other words, I wanted to give him a test
so I could find out what his work attack skill was, word identification,
word comprehension, passage comprehension.
In
addition to masking his deficit, most of the scores used to describe
Frank's current level of educational functioning were obtained as
a result of testing done in December 1993. Thus, the October 1994
IEP essentially described Frank's level of functioning ten months
previously and the January 1995 IEP described Frank's level of functioning
from the previous year. The District's own witness, Zeisler, even
conceded, in connection with the June 1994 IEP which differed from
the October 1994 and January 1995 IEPS only in that it did not include
the two scores from the Kildonan testing, that the IEP did not reflect
Frank's current functioning level, because he was not to be tested
again until the fall of 1994.
Even
if I were to defer to the State Review Officer's finding that the
IEP adequately described Frank's current functioning level, notwithstanding
the fact that it wholly failed to identify his particular areas of
deficit and was based on information that was at least ten months
old, I still find that the IEPs did not adequately set forth strategies
for evaluating progress, in violation of 20 U.S.C. § 1401(a)(19)
and 34 C.F.R. § 300.346(a)(2). The Act's requirement of periodic
and individualized assessments of each handicapped child evinces a
recognition that children develop quickly and that a placement decision
that may have been appropriate a year ago may no longer be appropriate
today.
Neither
the hearing officer nor the State Review Officer made a specific finding
in connection with whether Frank's IEP provided adequate short term
instructional objectives.
Appendix
C defines "short term instructional objectives" as "measurable, intermediate
steps between a handicapped child's present level of educational performance
and the annual goals that are established for the child." 34 C.F.R.
ch. 3, App. C, question 39.
The
objectives are to "serve as milestones for measuring progress toward
meeting the [annual] goals." 34 C.F.R. ch. 3, App. C, question 39
They "provide a mechanism for determining. . .whether the child is
progressing in the special education program. . .and whether the placement
and services are appropriate to the child's special learning needs.
In effect, these requirements provide a way for the child's teacher(s)
and parents to be able to track the child's progress in special education."
34 C.F.R. ch. 3, App. C, question 37.
The
IEPs include only broad, generic objectives and vague, subjective
methods for monitoring Frank's progress.
For
example, the first goal in Frank's October 1994 IEP provided that
he would be evaluated on the listed objectives by reference to "teacher
observation" and "80% accuracy." With reference to the second goal,
the October 1994 IEP provided that Frank would be evaluated by "teacher
observation" and "80% success."
Although
the IEP repeatedly incants these phrases--"teacher observation," "80%
success"--because there is little indication of what Frank's level
of success was when the IEP was written, it fails to specify strategies
for adequately evaluating Frank's academic progress and determining
which teaching methods are effective and which need to be revised.
Again, Zeisler conceded, with regard to the June 1994 IEP, which used
the same mantra to a large extent, that it did not set forth measurable
criteria to assess progress.
Villanti's
testimony is also enlightening on this issue. She had not met Frank
when she wrote the goals and objectives that appear on the October
1994 and January 1995 IEPs, but based them on information that she
acquired from Bloomer, Smith and Zeisler at the June CSE meeting.
Villanti wrote a goal that Frank would increase computation skills
in math at the eighth grade level, but testified that she had no idea
why he had failed seventh grade math. She wrote a goal for eighth
grade physical science, but testified that she did not know whether
he had passed seventh grade science or what his functioning level
was in physical science. She wrote a goal for spelling, but testified
that she did not know what his functioning level in spelling was.
She testified that she did not know why there were no goals for the
individual instruction in social studies that she was to provide Frank.
Finally, she testified that she did not know why the IEP did not reflect
the other scores obtained from testing by Kildonan, the fact that
Frank failed every subject his seventh grade year, or teacher information.
The
fourth procedural failure raised by Evans is the District's failure,
when developing the 1994-95 IEPs, to include Frank's classroom teacher
in the evaluation team, to conduct a classroom observation of Frank,
and to prepare a written report that included a statement of the basis
for the determination that Frank was learning disabled, in violation
of 34 C.F.R. §§ 300.543, 300.344(a)(1)-(2) & 300.540
(a)-(c).
Neither
the hearing officer nor the State Review Officer made specific findings
with regard to the fourth alleged procedural violation. The CSE has
never prepared a written report that included a statement of the basis
for the determination that Frank was learning disabled. Rather, he
was classified in March 1994, based upon Bloomer's oral report to
the CSE, that Frank required more assistance to be successful in the
classroom. The minutes from this CSE meeting are perfunctory. They
state only that "Mrs Bloomer reported on individual reading and spelling
work. Organized notebook & folder for every subject. Helped him
with his Expo 94 project." Although Zeisler testified that the decision
to classify was based upon his deficit in spelling, Frank's level
of functioning in spelling has never appeared on any IEP.
Evans
also alleges that Frank's 1994-95 IEPs were not developed with input
from his teachers at Kildonan, in violation of 20 U.S.C. § 1401(a)(19)
and 34 C.F.R. § 300.344(a)(2). A classroom observation was never
conducted at Kildonan, and none of Frank's teachers at Kildonan ever
attended a CSE meeting.
However,
Bloomer, Frank's special education teacher during his seventh grade
year, attended the CSE meeting in June 1994, at which Frank's 1994-95
IEP was substantially developed. In addition, King attended the CSE
meeting in October 1994, in which the IEP was amended to include some
information from the summer program at Kildonan. At that meeting,
King discussed Frank's participation in the summer program at Kildonan.
Although Frank's 1994-95 IEP could only have been improved by a classroom
observation at Kildonan and participation of people knowledgeable
about his particular learning disability and his experience in the
summer program and at Kildonan itself, in light of Bloomer's participation
in the June 1994 meeting and King's participation in the October 1994
meeting, the Court finds that any violation in this regard was not
alone sufficient to result in the loss of educational opportunity.
When
viewed in light of the standards discussed above, the hearing officer's
decision that the District met the necessary procedural requirements
is unsupported by the facts of record and incorrect as a matter of
law.
Uncontroverted
testimony, for the most part, establishes that the District did not
convene an impartial hearing within 45 days of Evans' request and
did not have an IEP ready to implement at the start of the school
year, did not include in the IEP a statement of Frank's present level
of educational functioning, specifically in his areas of deficit,
did not include in the IEP a statement of objective strategies to
evaluate progress, and did not prepare a written report of the basis
for the determination that Frank was learning disabled. The nature
and number of these procedural violations support only one conclusion--that
Frank was not given the educational opportunity that the procedural
requirements of the IDEA were intended to protect.
3.
Substantive Requirement
A school
district is not required to implement a program that will maximize
the handicapped child's potential. Rowley,
458 U.S. at 198-99. Rather, a handicapped child has a right to "personalized
instruction with sufficient support services to permit the child to
benefit educationally from that instruction." Rowley,
458 U.S. at 203. Rowley
explained that
implicit
in the congressional purpose of providing access to a 'free appropriate
public education' is the requirement that the education to which
access is provided be sufficient to confer some educational benefit
upon the handicapped child.. . . We therefore conclude that the
'basic floor of opportunity' provided by the Act consists of access
to specialized instruction and related services which are individually
designed to provide educational benefit to the handicapped child.
Rowley,
458 U.S. at 200-02.
The view
held by the District and adopted by the hearing officer and the State
Review Officer is that Frank's 1994-95 IEP was reasonably calculated
to confer educational benefit. Although this Court is required, in
recognition of the expertise of the administrative agency, to give
some deference to the conclusions of the hearing officer and the State
Review Officer, I note first that there is a discrepancy between the
findings of the hearing officer and the State Review Officer. While
the hearing officer found the IEP of October 4, 1994 appropriate,
the State Review Officer found that the District did not have an appropriate
IEP available until the October 1994 IEP was amended by the CSE in
January 1995. More importantly, however, a comprehensive review of
the record reveals that the District's view, and the conclusion of
the hearing officer and State Review Officer, are directly contradicted
by the testimony of each of the experts on dyslexia.
The
testimony of the experts on dyslexia clearly establishes that to benefit
educationally Frank requires an intensive program of individualized,
integrated, multi-sensory, sequential training.
Katherine
Schantz, a doctoral student at Harvard University in consulting psychology,
with professional and clinical experience in therapy and testing of
children, and fifteen years experience with learning disabled adolescents,
dyslexics in particular, testified that dyslexics are very difficult
to teach, particularly those like Frank in whom the discrepancy between
intellectual ability and skill is wide. She testified that in order
to learn dyslexics need more drilling in all systems--auditory, visual
and kinesthetic--and more personal contact than other students. She
testified that a severely dyslexic student such as Frank needed specific
training in a multi-sensory, sequential approach on a daily basis.
She further testified that because Frank is dyslexic, he could learn
only through the use of such a method.
Schantz
expressly denied that anything less than an intensive program of study
through a multi-sensory, sequential approach could confer educational
benefit. She explained that the danger is that any other approach
would not take into account Frank's social and emotional fragility.
She testified that dyslexic students, and particularly Frank because
of his wide discrepancy between ability and skill, are emotionally
fragile and at risk for depression. She stated that particularly severe
dyslexics must be carefully schooled so that their self-image progresses,
and thus, they benefit greatly from being with other dyslexics for
a period of time so that they understand they are not alone in their
struggle.
Schantz
further explained that merely having a trained tutor explain the needs
of such students to academic core subject area teachers who are not
trained in an appropriate approach, as the District proposed, would
not be sufficient because not only would it exacerbate Frank's emotional
and social difficulties by singling him out for special attention,
but that mere modifications to classwork and homework were not adequate.
The presentation of the subject matter had to be done differently.
She testified that counseling in such a setting would not assist Frank
and that he was not secure enough with his disability to be returned
to a mainstream environment.
Diana
King, who has 45 years of experience in the education of dyslexic
students, has founded a school for dyslexics, and has lectured and
trained teachers both in the United States and abroad for 40 years,
testified that Frank's disability was such that it should have been
identified before he entered first grade, and that his years of failure
had exacerbated his condition. King testified that it would not be
appropriate to return Frank to a regular education classroom, even
with a daily 40-minute tutorial by a multi-sensory trained teacher.
She stated that to change the program that is currently working for
Frank would put him at risk for even more profound educational failure.
Margaret
Mabie has a bachelor's degree in psychology and master's degrees in
special education and administrative supervision, as well as significant
graduate hours in teaching techniques, primarily Orton-Gillingham,
for dyslexic students. She was an assistant professor for 15 years
at the State University College at New Paltz, where she started a
special education program. She has also taught reading in middle school
and high school, and has had her own learning center for ten years,
where she does educational evaluations of mainly dyslexic students,
teaches math and trains teachers. She has also taught graduate education
classes in language procedures at Columbia University. Mabie has never
been employed by the Kildonan School.
Mabie
testified that Frank does not have the ability to benefit from regular
education classes and that a daily 40-minute instruction using a multi-sensory,
sequential approach could not meet his needs. She explained that with
such a session he could not even begin to address the primary difficulties
he experiences in reading, writing or spelling. She testified that
even with one hour of service a day, it would be very hard for Frank
to participate in the other regular education programs for the rest
of the day. In fact, she testified that Frank would be "in deep trouble
in high school subjects," going from one teacher to another, even
with compensatory help. She stated that it would take a couple years
before he would be able to survive in a regular classroom.
Mabie
further testified that although regular academic subject teachers
should be advised as to Frank's difficulties, she explained that there
is a "big gap" between telling them what to do and their knowing what
to do or how to do it. She explained that the situation is such, that
is with the numbers of students regular education teachers have and
the demands made upon them, that they are not able to adapt their
presentation of subject matter nor able to devote the time needed
to a particular student or group of students. For example, she testified,
typically a dyslexic student will be given a spell check as a way
to address his difficulties with spelling. She explained that a spell
check does not work well with dyslexics because in order to use a
spell check, one must have some idea of the correct word when given
a choice of words. Dyslexics, however, are unable to remember the
spelling of a word simply by looking at it.
These
experts all had the opportunity to review Frank's educational records
and/or assess him. According to each one, the program currently proposed
by the District to educate Frank is not reasonably calculated to provide
him with educational benefit, and in fact may harm him. The concordance
of these experts on dyslexia, in conjunction with the record evidence,
unmistakably demonstrates the accuracy of their conclusions. Their
expert opinion is borne out by the fact that Frank's academic performance
showed no improvement and even deteriorated since he began receiving
special education at Buckeley.
Rowley
held that in the regular education system, "the grading and advancement
system. . .constitute[ ] an important factor in determining educational
benefit." Rowley,
485 U.S. at 203; accord Angevine v. Jenkins, 752 F. Supp. 24,
27 (D.D.C. 1990). Rowley
explained that:
the
IEP, and therefore the personalized instruction, should be formulated
in accordance with the requirements of the Act and, if the child
is being educated in the regular classrooms of the public education
system, should be reasonably calculated to enable the child to achieve
passing marks and advance from grade to grade. Rowley,
485 U.S. at 203-04.
Here,
Bloomer testified that despite her intensive individual instruction
eight times per week, and homework and classwork modifications, Frank's
performance declined. In fact, he failed every major academic subject
of his seventh grade year. The only significant service changes incorporated
in his 1994-95 IEP--beyond the services that were being provided between
March and June of Frank's seventh grade year--were placement in a
special education English class and a multi-sensory tutorial.
There
is no evidence in the record, however, as to the profile of the proposed
special education English class, except that provided by the District
in response to a request from Evans made in July 1994. Neither the
exhibit nor the testimony of the District's witnesses provides any
indication of whether Frank and the other students are appropriately
grouped in terms of their academic or educational achievement and
learning characteristics, and social and emotional development. In
fact, the class profile as of July 1994 appears to place Frank with
a hearing impaired student and a speech impaired student, as well
as two other learning disabled students, whose learning disability
is unspecified. Information on the class profile is vital because
the capabilities and needs of the other students in the proposed class
are relevant factors in determining whether Frank's placement in such
a class would benefit him educationally.
The
record also fails to establish that the multi-sensory tutorial is
reasonably calculated to confer some educational benefit on Frank.
In addition to the testimony of the experts on dyslexia that Frank
will not benefit from a daily 40-minute multi-sensory tutorial, there
is compelling evidence that the proposed instructor was not qualified
to teach adolescents or to instruct, train or otherwise consult with
teachers as to how to work with Frank using the approach he requires.
The proposed instructor is neither certified in special education
nor in Orton-Gillingham instruction. The person who trained the proposed
instructor in Orton-Gillingham testified in no uncertain terms that
the proposed instructor was not qualified to work with Frank, nor
to consult with his regular education teachers about how to work with
Frank.
Rowley
has explicitly cautioned that the IDEA contemplates meaningful access
to a public education: "it would do little good for Congress to spend
millions of dollars in providing access to a public education only
to have the handicapped child receive no benefit from that education."
Rowley,
458 U.S. at 200-01.
Even
a showing of minimal improvement on some test results would not compel
a finding that an IEP is reasonably calculated to confer some educational
benefit. Courts have agreed that "the Act does not permit states to
make mere token gestures to accommodate handicapped students; its
requirement for modifying and supplementing regular education is broad."
Daniel R.R., 874 F.2d at 1048; Hall v. Vance County Board
of Educ., 774 F.2d 629, 636 (4th Cir. 1985) ("Clearly, Congress
did not intend that a school system could discharge its duty under
the IDEA by providing a program that produces some minimal academic
advancement, no matter how trivial."); Chris D. v. Montgomery County,
753 F. Supp. 922, 931 (M.D.Ala. 1990) ("The Act requires a plan of
instruction under which educational progress is likely.")
The
uncontroverted testimony of the experts on dyslexia demonstrates that
an integrated, multi-sensory, sequential method is a necessity rather
than an optimum situation for Frank, because of the nature and severity
of his dyslexia and his associative emotional problems. Thus, in holding
that the District's IEP is not reasonably calculated to confer educational
benefit on Frank, this Court has not been unfaithful to Rowley's
directive that "courts must be careful to avoid imposing their view
of preferable education methods upon the States." Rowley,
458 U.S. at 207.
Evans'
claim has not presented a contest of experts in which a court must
choose between competent expert testimony presented by opposing parties.
While the District presented evidence from experts in special education,
none has any specific expertise in the area of Frank's disability.[3]
In
addition, Schantz's expert opinion as to Frank's emotional fragility,
and its impact upon his ability to function in a regular school classroom,
is borne out not only by overwhelming evidence in the record below,
but by the additional testimony of Dr. Sal Massa presented to this
Court at the hearing on April 2, 1996. According to Schantz, Frank
made significant progress, both academically and emotionally, at Kildonan
because he was schooled in a method that permitted his skill to develop
at a level commensurate with his intellectual ability.[4]
Dr.
Susser's report indicates that Frank has experienced significant emotional
conflict, anxiety and depression directly associated with his learning
disability. Each of the experts on dyslexia testified that Frank exhibited
an incapacitating sense of frustration that is typical in severe dyslexics
whose intellectual abilities are significantly greater than their
level of achievement.
The
District terminated its funding of Kildonan following the issuance
of the State Review Officer's decision. At the time of the hearing
before this Court on April 1-2, 1996, Frank had not attended school
since December 1995.
Massa,
a school psychologist with a Ph.D in Clinical Psychology and considerable
experience with learning disabled students, testified that Frank's
current emotional problems have effected his academic performance
to such an extent that he ought now not to be classified simply as
learning disabled, but as multiply handicapped. Based upon meetings
with Frank in February and March 1996, and a review of his records,
Dr. Massa diagnosed Frank with an adjustment disorder. He testified
that an adjustment disorder, by its nature, is specific to a situation.
In Frank's case, it is specific to the public school situation, which
for him is associated with failure. He has neither adjusted to being
out of school nor to the prospect of returning to Buckley.
The
testimony and documentary evidence tell a compelling story of a very
intelligent, but emotionally vulnerable, child who is at great risk
of dropping out of school, despite a demonstrated capacity to succeed
academically, socially and emotionally in an appropriate program.
The expert testimony establishes that, the nature of Frank's dyslexia
in conjunction with his emotional problems, is such that he needs
an intensive program of individualized, integrated, multi-sensory,
sequential training with students of similar needs. The IEP proposed
for Frank is not such a program, and therefore cannot meet his needs.
It
does not appear to this Court that either the hearing officer or the
State Review Officer considered the testimony of the experts on dyslexia.
Because the officers' conclusions are unsupported by the record as
a whole and incorrect as a matter of law, they simply do not merit
deference.[5] See P.J. v. State of Connecticut,
788 F. Supp. 673, 679 (D. Conn. 1992). In addition, given the overwhelming
evidence of the significant relationship between Frank's academic
performance and his emotional problems, the officers could not have
reasonably concluded that Frank's education was not significantly
impeded or adversely affected by his emotional difficulties, which
are directly associated with his learning disability.
While
the 1994-95 IEP certainly touches upon some of the necessities for
Frank to benefit from an educational program, as the court has already
found, it reduces or omits several of the types of services that those
who know Frank, and have expertise and experience in his type of learning
disability, believe are essential to his benefiting from an educational
program. For instance, one such omission involves the presentation
of subject matter in a multi-sensory, sequential manner. The failure
to use an approach that will provide Frank with the tools to become,
for example, an independent reader is alone an important reason why
the District's IEP does not provide an appropriate education. Therefore,
neither prong of the Rowley test has been met under the facts, and
Evans is entitled to relief under 20 U.S.C. § 1415(e)(2). In
fashioning remedies for violations of the IDEA, the court is authorized
to "grant such relief as the court determines is appropriate." 20
U.S.C. § 1415(e)(2). The court's discretion in fashioning relief
is broad. Burlington School Committee v. Dept. of Educ., 471
U.S. 359, 369, 85 L.Ed.2d 385, 105 S.Ct. 1996 (1985).
In
light of the foregoing, Evans is entitled to a declaratory judgment,
and this matter is remanded to the District's CSE with instructions
to develop an IEP for Frank which will address his particular needs,
consistent with this decision. The District shall make a concerted
effort to ensure that Frank attend classes with students who have
similar learning disabilities and intellectual abilities, and in which
the subject matter is presented from a multi-sensory, sequential approach.
Pending the development of such an IEP, Frank shall remain in his
current educational placement. The parties shall settle a judgment,
including appropriate injunctive relief, on or before June 30 on 10
days notice.
Evans
is not entitled to relief on her claim under 42 U.S.C. § 1983.
While such a claim is not precluded because it is brought simultaneously
with a claim under the IDEA, in order to obtain relief under §
1983, a plaintiff must establish that a constitutional violation outside
the scope of the IDEA has occurred. See Bonar v. Ambach, 771
F.2d 14, 18 (2d Cir. 1985). Such a violation has not been established.
SO
ORDERED.
[1]
The District argues that Evans failed to raise these procedural violations
both in her complaint and in the administrative proceedings below.
The complaint, however, states a claim for procedural violations of
the IDEA. The complaint need not set forth the plaintiff's theory
of recovery. Evans also discussed each alleged violation in her pre-trial
brief so that the District was free to adduce evidence or supplement
the record at the hearing before this Court. In addition, a litigant
is generally free to amend a complaint to conform with the evidence
at any time during the proceedings. See Federal Rules of Civil procedure
15(b). Finally, this Court finds that, although the hearing officer
did not make specific findings in regard to some of the alleged procedural
violations, the record reveals that the alleged violations were repeatedly
raised below.
[2]
Frank entered the Rhinebeck School System in October of 1993. This
finding about the October 1994 IEP is mentioned first in the hearing
officer's chronological march through the evidence.
The
language of the hearing officer's finding--"upon [Frank]'s arrival
in the Rhinebeck School System"--and its erroneous placement in the
chronology leads this Court to the conclusion that the hearing officer
was confused about when the October 1994 IEP was developed and implemented.
[3]
The District presented testimony from two of its special education
teachers. Although both have masters degrees in special education
or learning disabilities, neither has any apparent expertise in dyslexia.
The District also presented testimony from the school psychologist,
who has a master's degree in school psychology, but no apparent expertise
in dyslexia. Finally, Zeisler has a master's degree in reading problems
and a Ph.D in organizational structures in connection with special
education decision-making. While Zeisler has considerable experience
with education of the learning disabled, she also has no apparent
expertise in the education of dyslexics.
[4]
My reference to Frank's progress at Kildonan is not inconsistent with
the IDEA's "reasonably calculated to confer educational benefit" standard.
I am mindful of the fact that a district court is not to decide which
program offers the greatest benefits to a child, but whether the program
offered to the child by the District enables him to receive educational
benefits. The fact that Frank made good progress at Kildonan is merely
an indication that that type of program was appropriate and effective.
[5]
Frank's poor record of attendance and timeliness appeared to play
a significant role in the decision of the hearing officer. Frank was
absent 29 days (10 of which were unexcused) and late 44 days (all
of which were unexcused) during his seventh grade year. Although the
problem with tardiness appears to have been solved by his taking a
bus to school when he attended Kildonan, his poor attendance appears
to have continued.
Although,
in light of all the evidence, this Court cannot reasonably conclude
that Frank's absences were the cause of his inability to learn in
the program proposed by the District, as even Smith, the District's
own witness, testified that it became apparent that "it wasn't his
lack of attendance" that caused him to be unable to pick up on material
introduced to him in class, it nevertheless considers Frank's poor
attendance record to be a very serious matter. Almost every teacher
that Frank had at Buckeley and Kildonan have commented in various
reports that his absences have affected his performance. Like the
hearing officer, this Court believes that "this child needs every
advantage possible to help him succeed and . . .need [not] be caught
in this dilemma."
That
it would do little good for Congress to spend millions of dollars
in providing access to a public education only to have it squandered
at the whim of a parent who takes a child on vacation while school
is in session is a natural corollary to Rowley's caveat that
the IDEA contemplates meaningful access to a public education. Rowley,
458 U.S. at 200-01.
