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August 2, 1990


The opinion of the court was delivered by: McCURN, Chief Judge.


Plaintiff David Hiller ("David"), by his parents Robert Hiller ("Mr. Hiller") and Nancy Hiller ("Mrs. Hiller"), brings this action pursuant to the Education for All Handicapped Children Act ("EAHCA" or "Act"), 20 U.S.C. § 1400 et seq., alleging that plaintiff is a handicapped child who was denied a free, appropriate education while a student at the defendant Brunswick Central School District ("Brunswick" or "Brittonkill"). Plaintiff seeks a declaration from this court stating that he is a handicapped child within the meaning of the Act; as well as $15,228.00 plus interest in monetary relief, which amount includes a demand for $10,000 in punitive damages against the defendant. Brunswick claims that David has never been a child with a handicapping condition, and that even had he been so handicapped, the education plaintiff received, and the services the defendant provided David during his attendance at Brunswick comported with the requirements of the EAHCA. For the reasons stated below, this court finds that (1) David was not a child with a handicapping condition during the 1985-86 or 1987-1988 school years, and (2) the education and services provided by the defendant to the plaintiff during the academic year 1986-1987 satisfied the requirements of the EAHCA. This matter was tried to the court without a jury from February 28, 1990 to March 6, 1990. Pursuant to Rule 52, Fed.R.Civ.P. the court makes the following:

Findings of Fact

David entered the defendant's school system as a fifth grade student in September of 1985 after he and his parents moved from Albany, New York into the Brunswick school district. At the time of this transfer, Brunswick received academic and other records from David's prior school, records which gave no indication that the plaintiff ever suffered from any physical or learning disability or any handicapping condition.

Towards the end of September, David's fifth grade teacher, Hope Davis ("Davis") noticed that the plaintiff was experiencing problems with handwriting, organization, attention and following directions; therefore she arranged to meet with Mrs. Hiller to discuss Davis' concerns about the plaintiff. After this meeting, Davis referred the plaintiff to the school district's Child Study Team ("CST") in an attempt to ascertain the cause of plaintiff's learning problems.*fn1 At the time she filled out the CST referral form, Davis did not believe David had a learning disability, but, at the request of Mrs. Hiller, Davis asked the CST to determine whether the plaintiff was suffering from a learning disability, and if so what remedial actions Brunswick should undertake.*fn2

On October 9th, 11th, and 15th of 1985, the Chairperson of the CST Debra Marcal ("Marcal"), Brunswick's psychologist, with the consent of Mrs. Hiller, performed various tests on David which tested plaintiff's intelligence, achievement, and visual-motor integration skills.

On the Wechsler Intelligence Scales for Children — Revised ("WISC-R") test, David achieved a verbal score of 119, a performance score of 102, and a full scale IQ of 112. These test results indicated that David had high average functioning skills, above average verbal abilities, and average spacial abilities. Marcal testified at trial that David's IQ, based upon his WISC-R score, was high average. When given the Peabody Individual Achievement Test ("PIAT"), David performed at or above his current grade level in all areas but spelling, where he was functioning at a level one year below his fellow classmates.*fn3 His performance on the Visual Motor Integration Test ("VMI") was four years below his grade level, with his problems resulting from his weak attention span and difficulties in copying from the blackboard to his own paper.*fn4 David also successfully completed the test of written language ("TOWL"), which measures an individual's handwriting skills as well as their overall abilities to compose an essay. His handwriting appeared to be legible and was similar to that of an average seventh grader.*fn5

At the conclusion of this battery of tests, Marcal noted that David:

  [I]s a 5th grade boy of high average intelligence
  and average achievement in school. His performance
  of those skills that he possesses is sometimes
  hindered, however, by his poor attention spans and
  weak copying skills.*fn6

While Marcal did not find David to be a learning disabled child, she did note that he had some learning problems which might be improved by modifications to his current classroom programs.*fn7 In response to Marcal's suggestions, David's fifth grade teacher implemented a remedial program for David designed to strengthen those areas in which plaintiff was academically weak.*fn8

Approximately four months after Brittonkill's evaluation of David, Mrs. Hiller privately arranged to have her son evaluated by a team of professionals at the Boston Children's Hospital ("BCH"). After this evaluation, David's mother notified Brittonkill about the study and requested that she be given an opportunity, prior to receiving its written report, to orally inform Brunswick personnel about the results of the BCH study. The defendant granted Mrs. Hiller's request, and met with her on February 14, 1986. While at this meeting, Mrs. Hiller stated that she wanted David referred to the Committee on the Handicapped.*fn9 She also told those present that the persons at the BCH believed David should not do any writing in the classroom, but rather that all of his writing tasks should be performed on a word processor.*fn10 Relying on Mrs. Hiller's representations concerning the BCH's study, assertions which subsequently proved to be at variance with the actual written report, Brunswick implemented several changes in David's educational program which included, inter alia, the use of a word processor for all of plaintiff's written work. However, after allowing David unrestricted access to this device for several weeks, Davis noticed that disciplining David had become more of a problem, and that the plaintiff's use of the word processor was causing a deterioration in his organizational skills and his ability to shift his focus from one subject to another while in the classroom; therefore Davis limited the time David could spend using the word processor while in school.

On March 10, 1986, Mrs. Hiller wrote to Darlene Egelson ("Egelson"), the chairperson of the CSE, and requested in writing that the CSE designate David as a child with a handicapping condition. In this letter, Mrs. Hiller also provided Brunswick with a copy of the BCH report. This study observed, inter alia, that Davis had noticed that the plaintiff had difficulty concentrating during class, was easily distracted and demonstrated impulsivity in his work style.*fn11 The report also noted that plaintiff's fine motor skills were compromised by his impulsive behavior and his disorganized approach to tasks.*fn12 The study offered numerous suggestions relating to David's academic program at Brunswick, and concluded that (i) David would benefit from approximately thirty minutes to one hour of remedial assistance daily, (ii) writing assignments should be highly structured for David, (iii) plaintiff would benefit from practice in advanced word attack skills and spelling drills, (iv) David should be encouraged to learn word processing, and (v) the use a typewriter or a word processor at home and in school would be a useful adjunct in developing his skills in written expression by reducing the effort required in the mechanics of the task.*fn13

In response to Mrs. Hiller's request, Brittonkill notified the plaintiff's parents in writing that a CSE meeting would be held on April 8, 1986. At this meeting, the CSE heard presentations provided by plaintiff's mother, his teacher Hope Davis, and Brittonkill's psychologist Debra Marcal concerning David's condition.*fn14 The CSE also reviewed the findings of the BCH. Towards the end of this meeting, chairperson Egelson asked the members of the CSE if anyone present would recommend that David be classified as a child with a handicapping condition, however none of the members present so motioned. Realizing that the plaintiff nonetheless had special needs, Egelson emphasized to the members of the CSE that it was "incumbent upon [Brunswick] to make some other provisions for David", and accordingly arranged to have another meeting concerning the plaintiff's classroom programs on April 10, 1986.*fn15

The chairperson of the CSE, the school principal, a speech pathologist, David's fifth grade teacher and Mrs. Hiller all met on this date to devise yet another remedial program for the remainder of David's fifth grade year. At the meeting, Mrs. Hiller conceded that her son had poor work habits that he would have to "unlearn" in order to be successful at school.*fn16 Brunswick explained to Mrs. Hiller the remedial program it had developed for the plaintiff, a plan which Mrs. Hiller conceded at trial met with her approval.*fn17 This program was implemented by the defendant, and David subsequently passed all of his fifth grade courses*fn18 as well as the statewide fifth grade writing test.*fn19

On May 6, 1986, Mrs. Hiller met with the persons who were to become David's sixth grade teachers, and discussed with them the educational needs she believed David would have in the sixth grade. Approximately two weeks later, on May 19th, Sandy Surra, a speech pathologist for Brittonkill, re-administered the TOWL to David, at the request of the CST. His scores on this test were in the average range for all components of the exam except for that portion of the TOWL which tests an individual's writing abilities.*fn20 Surra therefore recommended that David's spelling and handwriting difficulties be monitored by Brittonkill, and that his progress in these areas be periodically rechecked.*fn21

On June 19, 1986, David's parents once again privately arranged for an independent psychological evaluation of their son. In his report concerning David, Dr. Robert C. Williams ("Dr. Williams"), a licensed psychologist, recommended that (i) David be identified as a student with a learning disability known as dysgraphia, (ii) David's curriculum be adjusted to allow for the use of a word processor for written assignments, (iii) alternative testing procedures be devised by Brunswick for David, (iv) David be taught remedial cursive writing, if at all, "independently of other content", and (v) resource room help be provided for the plaintiff as needed.*fn22 As a result of Williams' report, on July 9, 1986, Mrs. Hiller's attorney, Robert G. Wakeman, wrote a letter to Egelson (as the CSE chairperson) requesting, among other items, an impartial hearing to challenge Brunswick's April 8, 1986 determination not to classify plaintiff as a handicapped child, and reimbursement of the costs of Dr. Williams' psychological evaluation of David.

Approximately one month after receiving this letter, representatives of Brittonkill met with David's mother and her attorney at an informal meeting on August 11, 1986. While there, the defendant, in an effort to avoid further conflict and in a futile attempt by it to avoid litigation, agreed to classify the plaintiff as a student with a handicapping condition. They agreed to hold a meeting of the CSE on September 9, 1986 wherein the Committee formally determined that David was a child with a learning disability,*fn23 and proceeded to formulate a Phase I Individualized Education Program ("IEP") for the plaintiff.*fn24 This IEP was memorialized in a writing, and provided accommodations for David in his regular classroom and for the use of a word processor for some of his written assignments at his teacher's discretion.*fn25 Brittonkill implemented this IEP as the plaintiff entered sixth grade at Brunswick.

On October 8, 1986, David's resource room*fn27 teacher, Donna Fitzgibbons Langley ("Fitzgibbons Langley"), met with Mrs. Hiller to discuss the Phase II IEP Fitzgibbons Langley had tentatively prepared for use with David. This proposed IEP provided for writing and spelling remediation in the resource room, as well as remedial assistance to supplement plaintiff's regular academic classes. Mrs. Hiller objected to this Phase II IEP in that it addressed topics other than David's writing, spelling, and organizational skills. In an effort to appease David's mother, Brunswick revised its proposed Phase II IEP, and on October 23, 1986, at a meeting attended by Mrs. Hiller and her attorney, Brittonkill developed a Phase II IEP for the plaintiff which incorporated those changes requested by Mrs. Hiller.*fn28

On November 7th, 10th, 11th, and 12th of 1986, hearing officer Gordon S. Purrington heard testimony presented by both parties concerning the education David was receiving at Brunswick. After reviewing all of the evidence before him, the hearing officer found, inter alia, that (i) Brittonkill reversed its earlier finding that David was not handicapped because it wished to avoid conflict and possible litigation, (ii) although Brittonkill's CSE failed to comply with most of the due process procedures concerning "Notice" as required in the Commissioner of Education's ("the Commissioner's") regulations (8 N.Y.C.R.R. § 200.5(a)), such deficiencies were not prejudicial to the plaintiff in this particular instance, (iii) Brittonkill similarly failed to comply with the Commissioner's regulations when it failed to arrange for a CSE meeting within thirty days of Mrs. Hiller's request on February 14, 1986; however, as with Brittonkill's violations concerning the "Notice" requirements, these violations were nonprejudicial, (iv) the defendant had acted in good faith, responsibly, and timely in developing the Phase II IEP, (v) David did not have to use a word processor at all times, but that there was substantial evidence that its use may be required for extended writing tasks, (vi) plaintiff's parents were not entitled to reimbursement for either of the two independent evaluations they had arranged for their son, (vii) the Phase I IEP was appropriate for David, but that it lacked sufficient detail, and (viii) the Phase II IEP should be revised so as to integrate the courses David was being taught in the resource room with plaintiff's other classes.*fn29 The hearing officer then remanded the IEPs back to Brunswick's CSE noting that:

  Overall, I find that the Phase I and Phase II IEP
  to be appropriate in meeting the needs of this
  child except in the areas noted. I remand these
  matters to the Committee on Special Education and
  that such deficiencies be corrected within 30 days
  after respondent has received this document. The
  child will continue in his present program during
  that time.*fn30

The CSE met on January 22, 1987 to develop a revised Phase I IEP in response to the hearing officer's directive. This tentative IEP provided for the use of a word processor:

Additionally, the IEP provided David with supplemental resource room assistance with Fitzgibbons Langley five times per week, and remedial assistance with Linda Macaione, a speech and language therapist, also for five times a week. Mrs. Hiller argued that David should not be taken out of his mainstream classes ten times per week, and that the portion of the proposed Phase I IEP which recommended the same was inappropriate. In yet another attempt to accede to the demands of plaintiff's mother, the CSE modified this tentative IEP and provided for supplemental assistance and remediation for David only eight times a week. Nevertheless, Mrs. Hiller refused to accept this modified Phase I IEP proposal, and Brunswick and the Hillers ultimately failed to reach an agreement concerning the provisions of plaintiff's new Phase I IEP. When the plaintiff's parents appealed the hearing officer's decision to the Commissioner of Education four days after this meeting, David's "then current" Phase I IEP remained in place.

On April 30, 1987, the Commissioner issued a ruling concerning the plaintiff wherein he sua sponte found that David was not a learning disabled child, and ordered Brunswick to annul its decision to label David as learning disabled.*fn32

The following week, David was administered additional tests by the school's psychologist in order to ascertain whether David was in fact a child with a handicapping condition. Plaintiff's scores on these exams indicated that he was not learning disabled. For example, his results on the Stanford Binet Intelligence Scale indicated that the plaintiff possessed an IQ of 104, and that David fell within the average range for functioning skills; results comparable to the findings of the WISC-R performed on David approximately nineteen months previously.*fn33 Plaintiff's performance on the TOWL and the VIM tests demonstrated above average scores in the reading and math portions of the exams, and low average written language skills. David's relatively weak performance on this TOWL was explained by Marcal when she wrote, at the conclusion of David's psychological testing, that it was "important to mention [David's] haste in completing the TOWL. His effort on this instrument was notably less than on other measures administered by this examiner."*fn34 Marcal expanded on this comment when she testified at trial that David's low scores in the areas of thematic maturity, word usage, and style were attributable to the fact that he attempted to write (from memory) the same story on this administration of the TOWL that he had written for the TOWL he took in May of 1986.

In summarizing David's performance on these exams, Marcal noted in her psychological report of the plaintiff that:

  [W]hile David's written language and fine motor
  skills continue to fall below grade, they do show
  growth from his previous evaluation and his TOWL
  again falls into the average range of achievement
  compared to his agemates.*fn35

On May 21, 1987, Brittonkill's CSE met and recommended that David not be eligible for special education services for the 1987-88 school year.*fn36 This decision was based upon the abovementioned psychological examinations performed on the plaintiff, as well as the testimony of David's sixth grade teachers.*fn37 At Mrs. Hiller's request, the CSE reconvened on June 11, 1987, and, based upon all of the information before it, clarified its May 21st determination and voted that David not be labeled as a child with a handicapping condition.*fn38 David went on to successfully complete all of his sixth grade courses at Brunswick.*fn39

The defendant continued to implement the special education components contained in plaintiff's IEPs until January of 1988,*fn40 when Brittonkill was notified by Mrs. Hiller that David had been withdrawn from Brunswick and enrolled in the Christian Brother's Academy ("CBA"); a private, sectarian school which offers no specific services for handicapped children, offers no special education programs or services and is not on the Commissioner's approved list of private schools in which handicapped students may be placed.

Mrs. Hiller and Ernest J. Casile, Jr., a teacher and school administrator of the CBA, testified at trial that David has been doing well academically while a student at the CBA.*fn41 His academic improvement is partly attributable to the tutoring David is receiving after is classes at the CBA.

Conclusions of Law

(1) Which party bears the burden of proof in the instant

The first issue this court must resolve concerns the allocation of the burden of proof in this district court proceeding. The plaintiff contends that Brunswick must prove the appropriateness of its classification, programs and placement of David while the defendant argues that the burden of proof is properly placed on the plaintiff in that he is the party seeking to overturn the decision of the state educational agency. Since the Second Circuit has not yet ruled directly on this issue, a review of other court's decisions in this area is instructive.

In Lascari v. Board of Educ., 116 N.J. 30, 560 A.2d 1180 (1989), the Supreme Court of New Jersey concluded that:

  [T]he obligation of the parents at the due process
  hearing should be merely to place in issue the
  appropriateness of the IEP. The school board
  should then bear the burden of proving that the
  IEP was appropriate.

Id., 560 A.2d at 1188. The court reasoned that its holding was consistent with the intent of the statutory and regulatory schemes of the EAHCA, and that the burdens of persuasion and of production should be placed on the party ...

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