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December 23, 1993

GARY MAVIS and RUTH MAVIS, on behalf of themselves and their minor daughter, EMILY MAVIS, Plaintiffs,
THOMAS SOBOL, as Commissioner of Education of the State of New York, and THE BOARD OF EDUCATION, SOUTH LEWIS CENTRAL SCHOOL DISTRICT, Defendants.


The opinion of the court was delivered by: NEAL P. MCCURN



 Plaintiffs Gary and Ruth Mavis commenced this action on behalf of their daughter, Emily, alleging that the defendant, South Lewis Central School District Board of Education ("District"), violated what is now known as the Individuals With Disabilities Education Act ("IDEA" or "the Act"), *fn1" 20 U.S.C. § 1400 et seq., by failing to provide Emily with a "free appropriate public education" as required under the Act. *fn2" Also named as a defendant in this action is the New York State Commissioner of Education, Thomas Sobol ("the Commissioner"). *fn3" On November 13, 1990, the court heard oral argument on the parties' cross-motions for summary judgment pursuant to Fed. R. Civ. P. 56.

 Following oral argument, the court read a decision into the record denying every aspect of the Commissioner's motion, except that pertaining to the merits of plaintiffs' IDEA claims. *fn4" The court reserved decision on that aspect of the Commissioner's motion. The court also reserved decision on the District's motion for summary judgment, which also pertains solely to the substance of plaintiffs' IDEA claims. Similarly, the court reserved decision on plaintiffs' cross-motion for summary judgment. At that time, the court strongly urged the parties to settle this matter without court intervention, and with that goal in mind the court decided to hold its decision in abeyance while the parties conferred. Unfortunately the parties were not able to resolve this matter, even with additional assistance from the court in July, 1991.

 For the next two years there were off again-on again settlement negotiations directly between the parties, but none of them proved fruitful. With another school year fast approaching, and the fourth since the commencement of this lawsuit, on August 16, 1993 the plaintiffs and the District advised the court that a settlement would not be forthcoming. They therefore requested that the court issue a decision on the pending cross-motions for summary judgment. At that time, permission was sought and granted for the filing of supplemental memoranda of law and supplemental documentation. Having had the opportunity to carefully review all of the submissions made in connection with these motions, including the quite lengthy administrative record, the court is now in a position to render its decision with respect thereto.

 As with many IDEA cases, the controversy here centers on exactly what constitutes a "free appropriate public education" for Emily. To fully appreciate the parties' respective positions on that issue, it is necessary to carefully examine the history of this litigation, including a fairly detailed review of the various classroom settings in which Emily has been placed over the years.


 I. 1986-87 Academic Year

 At around two years of age, Emily Mavis was diagnosed as having mild mental retardation. In 1986 at six years of age, she began attending Glenfield Elementary School, her neighborhood school. When she first entered Glenfield in the fall of 1986, the District had not yet classified her as a child with a disability. Emily was placed in Ms. McAuliffe's regular kindergarten then. *fn5" Emily continued in that setting throughout the 1986-87 academic year. Although she did not receive any special education services at that time, she did receive speech therapy once or twice a week. Affidavit of Ruth Mavis (Oct. 26, 1990) ("Mavis Affidavit I") at P 8. For purposes of this lawsuit, that year can be described as uneventful.

 During May and June, 1987, with the plaintiffs' consent, Emily was evaluated by Peter Dawson - a District psychologist and at the time the District's chairperson for the Committee on Special Education ("CSE"). That evaluation showed that Emily was "moderately mentally retarded with concurrent deficits in adaptive behavior." Id. at 3, P 10.

 II. 1987-88 Academic Year

 The following academic year (1987-88), Emily remained in Ms. McAuliffe's kindergarten class. However, prior to the start of this academic year, Mr. Dawson recommended to the CSE that Emily be classified as mentally retarded and that she be placed in an "Option II" special class. *fn6" Mr. Dawson did recommend, however, that Emily be "mainstreamed" for music and physical education. *fn7" At a CSE meeting to review Emily's evaluation, which the plaintiffs attended, it was decided that Emily would continue in Ms. McAuliffe's kindergarten class until a second psychological evaluation could be done and additional classroom observations made. That course of action came about because the CSE itself, after plaintiffs presented reports from a neurologist and an occupational therapist which conflicted with Mr. Dawson's recommendations, could not reach a consensus as to Emily's needs or as to her placement.

 At the start of that school year, in September, 1987, the District arranged a second psychological evaluation with a Dr. Jack Landy. Dr. Landy's attempts to evaluate Emily at this time were unsuccessful and he was unable to reach any definite conclusion as to her diagnosis. On December 3, 1987, another CSE meeting was convened to discuss Emily's status. Plaintiffs were again present. The CSE formally identified Emily as a child with a handicapping condition and classified her as "mentally retarded." That classification is not in dispute. The CSE then recommended that while Emily should continue in that same kindergarten setting, she needed the assistance of a half-time aide and she should also receive speech therapy. Those recommendations were included in the CSE's Phase I IEP. *fn8" After plaintiffs agreed with the CSE's recommendation, it was implemented in January, 1988.

 Simultaneously with the implementation of the Phase I IEP, Emily's teacher prepared a Phase II IEP containing specific goals and objectives for Emily, which differed from those of the other kindergarten students. Emily was expected, however, to work on part of the regular kindergarten curriculum. Despite the fact that neither Emily's kindergarten teacher nor her half-time aide had any special education background, by June, 1988, Emily had achieved 14 of the 24 goals outlined in the Phase II IEP.

 At Mr. Dawson's request, Dr. Landy again attempted to evaluate Emily; this time he was successful. Id. at P 22. Consistent with other professionals who had evaluated Emily, Dr. Landy found "that [she] was functioning at the lower end of the middle range of mental retardation." Id. The CSE then met in May, 1988, to reevaluate Emily's IEP. The CSE made the following recommendations, which represented a change from its prior recommendations:

1. Option II as a primary placement. *fn9"
2. Mainstreaming and integration in the following areas:
language development in option I music and gym with grade 1 lunch, assemblies, field trips
3. Speech therapy 30 minutes/day, 5 days/week.

 Affidavit of Robert E. Hornik, Jr. (Nov. 6, 1990) ("Hornik Affidavit I"), exh. B thereto (May 12, 1988 CSE Minutes) at 4. Plaintiffs disagreed with those recommendations because basically they wanted Emily to remain in a regular first grade classroom while at the same time receiving special education services. Therefore, as they had a right to do, plaintiffs requested an impartial due process hearing. *fn10"

 III. 1988-89 Academic Year

 Prior to the time of that hearing, Emily was again evaluated; this time by Roberta Schnorr. *fn11" Currently Dr. Schnorr is an assistant professor in the Education Department at the State University of New York at Oswego. In her initial report which is quite extensive and is part of the record on these motions, Dr. Schnorr concluded "that Emily's needs could be met by placement in a regular class with some special services," such as a qualified aid to provide support to Emily both on an individual basis and in group setting. Id. at P 27 and exh. A thereto at 27. In August, 1988, a two day hearing was conducted before an impartial hearing officer appointed by the District. Pending a decision from the hearing officer, in September, 1988, for the third consecutive year, Emily was placed in McAuliffe's kindergarten class. In accordance with the December, 1987 IEP, Emily continued to receive a half-time aide and speech therapy.

 On September 19, 1988, the impartial hearing officer issued a decision. She found that although Emily was appropriately classified as mentally retarded, due to the insufficiency of the record, she was unable to reach a decision as to whether the CSE's recommended placement was appropriate. See Affidavit of Peter Dawson ("Dawson Affidavit I") (May 30, 1990), exh. 2 thereto (Sept. 18, 1989 Hearing Officer Decision) at 15-16. More specifically, the hearing officer identified the following deficiencies:

Although in Exhibit 25 the District purports to offer a profile of the Option II class in which EMILY would be placed, neither the exhibit nor the testimony of the District's witnesses provides sufficient specificity concerning EMILY and the other students in the proposed placement regarding the four areas of need by which students are deemed to be appropriately grouped; academic or educational achievement and learning characteristics; social development; physical development; management needs . . . . These areas must be considered in addition to ranges in chronological age and instructional level.

 Id., exh. 2 thereto at 15 (citations omitted). The hearing officer opined that in her view such information was vital because "the capabilities and needs of the other children in the proposed placement are relevant factors in determining the appropriateness of such placement, and the District has failed to establish that the capabilities and needs of the other children in the proposed placement are similar to those of EMILY. . . ." Id. (citations omitted). The hearing officer also outlined a host of other omissions:

the Phase I IEP developed for EMILY fails to establish with precision the individual needs of this pupil. The child's current level of functioning for both reading and math were presented as a single level, with no indication of the child's language development, in spite of extensive evaluations which have been carried out and are available to the CSE. . . . The IEP offers no statement of needs or objectives for the child in the area of physical development, though the Regulations of the Commissioner of Education clearly indicate that this includes more than gross physical development or medical needs . . . . The IEP also fails to describe and provide for the student's individual learning style, nor does it indicate the maximum class size and the staff to student ration which would be appropriate. The IEP does not indicate whether EMILY is to be mainstreamed in art, and it fails to indicate the expected school credential.

 Id. at 15-16 (citations omitted). Accordingly, the hearing officer remanded the matter to the CSE instructing it to

develop[] . . . a more complete Phase I IEP in accordance with the requirements of the Regulations of the Commissioner of Education. . . . The District must also develop a profile of the Option II class in which it is proposed to place EMILY with sufficient specific information in the areas delineated within the Regulations to allow the Hearing Officer to determine whether the proposed placement is appropriate.

 Id. at 16 (citation omitted). *fn12"

 Shortly thereafter, on October 13, 1988, the CSE again met with the plaintiffs present. The CSE then prepared a new IEP for Emily, modifying its placement recommendation. Specifically, the CSE recommended:

1. Option I - Maximum class size: 12 Student to teacher ratio: 12:1 *fn13"
2. Mainstreaming in art, music, gym on the first grade level.
Lunch will be with the Option I class in the lunchroom with typical students the same approximate age. Emily will join field trips and assemblies on an individual or group basis with other age appropriate classes.
3. Speech therapy - 30 min/day, 5 days/week

 Hornik Affidavit I, exh. C thereto at 3 (Oct. 13, 1988 CSE Minutes). According to the District, the reason for that modification was that "[(a)] the class profiles for the Option I class and the Option II class had changed between May 1988 and October 1988, thus making the Option I class an appropriate placement for Emily in an environment less restrictive than the prior Option II placement and (b) the CSE believed that the plaintiffs would find the modified recommendation less objectionable." District's Rule 10(j) Statement at P 10. Plaintiffs objected to that modified recommendation based upon their continued belief that Emily's "needs could be met in a first grade class." Mavis Affidavit I at P 35.

 The impartial hearing was reconvened on November 29, 1988, to consider the CSE's modified recommendation. After hearing additional testimony, on January 16, 1989, the hearing officer rendered a decision upholding the CSE's modified recommendation. In particular, the hearing officer found that:

It was clearly established, and all witnesses were in agreement, that Emily is not capable of carrying out the regular first grade curriculum. Also, It [sic] was demonstrated that Emily attained limited success in the regular kindergarten program, although she was in the same grade for a second year and had the assistance of a half-time aide. Thus the recommended placement is both appropriate and the least restrictive environment in which to provide Emily her educational program.

 Dawson Affidavit I, exh. 2 thereto (Hearing Officer Decision of Jan. 16, 1989) at 11.

 Plaintiffs then appealed that decision to the Commissioner. On May 2, 1989, the Commissioner issued a written decision dismissing that appeal stating, "Based on the record before me, I conclude that petitioners' daughter would not be appropriately placed in a regular first grade program with special education support services." Id., exh. 3 thereto (Commissioner's Decision) at 4-5. The Commissioner further found that "the academic component of the placement recommended for petitioners' daughter to be appropriate to meet her educational needs because it provides her with the individualized attention and academic support she requires at a level commensurate to her ability." Id. at 5.

 IV. 1989-Present

 On August 31, 1989, plaintiffs commenced the present action seeking judicial review of the Commissioner's decision. In the meantime, Emily has remained in the regular education program at Glenfield Elementary School. During the 1989-90 academic year, Emily attended a regular first grade class at Glenfield Elementary. The following year she was placed in a combination first and second grade classroom. The District has continued to provide her with speech therapy and a half-time aide, Mavis Affidavit at P 42, although provision of these services was sporadic during the last academic year (1992-93). See Affidavit of Ruth (Aug. 25, 1993) ("Mavis Affidavit II") at PP 22-23.

 In the years since the commencement of this lawsuit, Emily has advanced from grade to grade so that currently she is enrolled in a regular sixth grade class. See Mavis Affidavit II at P 22. The District is quick to point out though that this advancement has been so that Emily would not be too far removed from her chronological peers. Affidavit of Robert J. Hornik, Jr. (Sept. 17, 1993) ("Hornik Affidavit II") at P 4. The District also explains that Emily's placements over the years have been in accordance with the various statutory and regulatory "stay-put" *fn14" provisions; those placements have also come about as a result of compromises reached between the District and the plaintiff parents.

 Not surprisingly, the District's view of Emily's most recent placements differs from that of the plaintiffs. The District readily admits that it did not consider Emily's placement during the 1992-93 academic year to be "appropriate." Hornik Affidavit II at P 5. The District explains, however, that through the years Emily's placements have been the result of many compromises by both the District and the plaintiffs. Regardless of whether or not a given service or program was provided to Emily, the bottom line as far as the District is concerned is that during the last academic year (1992-93), Emily's behavior deteriorated. Paul Platz, Emily's "open area and home base teacher" from January, 1993 through the end of that school year opined, based upon his observations, "that Emily's behavioral problems seemed to increase as Emily became more familiar with places and people. That is, as Emily settles into a situation, she seems to act out more." Affidavit of Paul Platz (Sept. 17, 1993) at P 12. Mr. Platz also noted that "Emily has had episodes of "acting out" outside the classroom. . . [,]" although he did not elaborate upon this. Id. at P 13. The District attributes what it perceives as the deterioration in Emily's behavior to the fact that a regular classroom environment simply is not appropriate for Emily.

 The District is now moving for summary judgment, contending that the CSE's recommended placement for Emily is appropriate as a matter of law. The District further contends that summary judgment is appropriate on plaintiffs' claim for attorney's fees because plaintiffs are not a prevailing party under 20 U.S.C. § 1415(e)(4)(B), *fn15" and thus are not entitled to recover attorneys' fees thereunder. Lastly, the District contends that it is entitled to summary judgment on plaintiffs' claim pursuant to § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, because "the evidence clearly demonstrates that the School District has taken all of the steps ...

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