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EVANS v. BOARD OF EDUC. OF THE RHINEBECK CENT. SCH

June 10, 1996

CATHERINE EVANS, Parent of a disabled child, F.Z., Plaintiff, against THE BOARD OF EDUCATION OF THE RHINEBECK CENTRAL SCHOOL DISTRICT, Defendant.


The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 BACKGROUND

 Plaintiff Catherine Evans commenced this action on behalf of her son, Frank, seeking declaratory and injunctive relief and alleging that defendant Rhinebeck Central School District Board of Education ("the District") violated the Individuals with Disabilities Education Act ("IDEA" or "the Act"), 20 U.S.C. § 1400 et seq., and her civil rights under 42 U.S.C. § 1983, by failing to provide Frank with a "free appropriate public education" as required under the Act. On January 29, 1996, the parties appeared before this Court on Evans' motion for a temporary restraining order and preliminary injunction enjoining the District to maintain Frank at his current educational placement, the Kildonan School, pending further proceedings.

 This Court denied Evans' application for a TRO based on the evidence before it at that time, and ordered the trial on the merits to be advanced and consolidated with the hearing of the application for a preliminary injunction. See Fed.R.Civ.P. 65(a)(2). A hearing on the preliminary injunction application and on the merits was conducted on April 1-2, 1996. In a decision, dated April 15, 1996, and amended May 6, 1996, the Court granted Evans' motion for a preliminary injunction, enjoining the District to maintain Frank at Kildonan, pending the Court's decision on the merits. This Memorandum Decision and Order constitutes the Court's findings of fact and conclusions of law on the merits.

 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.

 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 ...


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