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WALL v. MATTITUCK-CUTCHOGUE SCH. DIST.

November 19, 1996

MICHAEL WALL, a minor, by his mother and next best friend, LAURA WALL, Plaintiff, against MATTITUCK-CUTCHOGUE SCHOOL DISTRICT, Defendant.


The opinion of the court was delivered by: BLOCK

 BLOCK, District Judge :

 Plaintiff, Laura Wall ("Wall"), brings this action on behalf of her son, Michael Wall ("Michael"), against Defendant, Mattituck-Cutchogue School District ("School District"), pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., seeking reimbursement for tuition expenses incurred during Michael's enrollment at a private residential school for dyslexic children. See School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359, 369, 85 L. Ed. 2d 385, 105 S. Ct. 1996 (1985) (holding that IDEA's grant of equitable authority empowers a court to order school authorities to reimburse parents for the cost of private special education). Presently before the Court is Wall's motion for summary judgment. For the reasons discussed below, the Court finds that the School District's special education program for Michael was appropriate. Accordingly, the Court denies Wall's motion, enters summary judgment in favor of the School District, and dismisses the complaint. Although this case is clear on the merits, the process for district court review of IDEA actions is conceptually quizzical, and thus, the Court endeavors to review and clarify this process.

 I. BACKGROUND

 A. Undisputed Facts

 The following facts were stipulated to by the parties in a document entitled "Facts Agreed Upon By Parties." Michael was born on January 24, 1982. In 1991, he was classified as learning disabled after evaluation by the School District's Committee on Special Education ("CSE"). He was placed in a self-contained special education classroom for his third and fourth grades. At the end of the fourth grade, Michael's verbal and mathematical skills were tested. On the Woodcock Reading Mastery Test, he received a grade equivalent score of: 12.9 letter identification, 2.4 word identification, 2.9 word attack, 3.7 word comprehension, and 2.8 passage completion. In the mathematical area, on a wide-range achievement test, his scores placed at the fourth grade level.

 In May 1993, on a Metropolitan Achievement Test, Michael received grade equivalent rankings of: 2.0 vocabulary, 2.1 work recognition, 1.8 total reading, 2.1 reading comprehension, 3.5 math concepts, 3.2 math problem solving, 3.7 math comprehension, 3.5 total math, 1.0 spelling, 3.3 language grammar, and 2.5 total language. Michael's private reading tutor, Ruth Nettleton ("Nettleton"), gave him a similar test on May 26, 1993. He scored grade equivalent rankings of 2.3 word identification, 1.5 word attack and 2.4 passage comprehension. On June 25, 1993, the Landmark School, a private school for learning disabled children, administered another Woodcock Reading Mastery Test. Michael scored grade equivalent rankings of 2.8 word identification and 1.6 word attack. During the summer of 1993, Michael attended a six-week summer course at the Landmark School. After the completion of this summer course, the Landmark School administered a further reading test. Michael scored grade equivalent rankings of 2.7 word identification and 2.4 word attack.

 As a result of all these testings, several CSE meetings, Michael's past school performance, and his record of performance at the Landmark summer program, the CSE recommended, on August 12, 1993, that Michael be placed in the School District's fifth grade self-contained special education classroom during the 1993-94 school year for reading, social studies, spelling and math. The CSE recommended mainstreaming Michael in regular fifth grade classrooms for all other subjects -- science, English, art, music, library, homeroom, and physical education. *fn1"

 On August 16, 1993, a planning meeting was held by the School District. Among those in attendance were Patricia Beck ("Beck"), Michael's teacher in the special education classroom, Judith Finn ("Finn"), the School District's Director of Special Education, and Wall. At this meeting, the parties discussed Michael's proposed Individual Education Program ("IEP") for the upcoming 1993-94 school year. *fn2" Michael's mother received explanations pertaining to the proposed curriculum and texts to be utilized, a review of the make-up of the other students in the special education class, and procedures for parent-teacher communication during the school year. After the conference, Wall accepted Michael's IEP. Michael's placement in the special education classroom was subsequently approved by the School District's Board of Education.

 Michael commenced the fifth grade on September 8, 1993 in the School District's East Cutchogue school building, which contained all of the School District's fifth and sixth grade students. During the first week of school, Beck performed various informal classroom tests on Michael. The results of Michael's testing reflected his learning difficulties, particularly in reading and math. Beck tailored Michael's instruction based on these results.

 During the academic school day there were anywhere from two to eight children in the special education classroom with Beck and a teaching assistant. Michael would receive his math, reading and spelling instruction from Beck. Much of the teaching was individualized, employing a one-on-one method. The reading instruction included concentration on spelling, punctuation, capitalization and decoding skills.

 On September 27, 1993, Wall met with Beck, Peggy Dickerson ("Dickerson"), Michael's regular fifth grade classroom teacher, and Finn. The meeting concerned Michael's apparent difficulties with his English studies. Beck and Finn recommended that Michael no longer be mainstreamed in English, and Wall shortly thereafter concurred. On October 25, 1993, a parent-teacher conference was held between Wall, Beck, Dickerson, Finn and James Gilvarry ("Gilvarry"), the principal of Michael's school. At this meeting, Wall expressed her displeasure with several physical classroom occurrences between Michael and another special education student. The meeting was adjourned, at Wall's request, to allow Michael to be psychologically evaluated.

 On December 2, 1993, a parent-teacher conference was held with Beck, Michael, and his mother. The main topics concerned Michael's unhappiness at school, his school performance, and procedures for completing homework. Further, Beck stated her intention to recommend that Michael be mainstreamed in social studies following the Christmas recess.

 On January 3, 1994, Wall notified Beck of her displeasure with the special education program. In particular, she referred to an incident that took place over the Christmas vacation when two students in the special education class had telephoned Michael and teased him about his stuttering. Beck informed Wall that since this occurrence happened outside of school, she could not do anything about it. In turn, Wall informed both Beck and Gilvarry that she was removing Michael from the school. She thereafter enrolled Michael in the Landmark School and, subsequently, on January 13, 1994, requested a hearing before an impartial hearing officer. *fn3" The hearing commenced on March 10, 1994.

 B. Evidence Presented at the Hearing

 At the hearing, Wall did not challenge the appropriateness of the IEP. Instead, she asserted that the School District had improperly implemented the IEP by failing to use a specific reading instruction approach, the Orton-Gillingham method. *fn4" Wall also argued that the School District failed to group Michael in a class with children having similar abilities and needs, as required by the Commissioner of the New York Department of Education's regulations. *fn5" The hearing spanned from March 10, 1994 to May 25, 1994, producing 1761 pages of minutes and forty-eight exhibits. Testimony was received from several persons, including Beck, the School District's psychologist Dr. Michael Cardillo, child psychologist Dr. Robert T. Matuozzi, Dickerson, Landmark School public liaison Karl Pulkkinen ("Pulkkinen"), and Wall.

 With regard to the grouping issue, testimony was presented pertaining to Michael's needs in relation to the needs of the other children in his special education class. Beck was questioned extensively about the learning disorders, levels of academic achievement, physical development, and management needs of each child. She testified that although Michael had the lowest scores in reading, he was at the top of his class in other areas. There was also testimony confirming isolated incidents of antagonism and occasional physical conflict between Michael and another student in his special education class.

 With regard to the adequacy of Michael's instruction, Wall contended that the School District should have consistently used the Orton-Gillingham method of reading instruction. She presented several witnesses who extolled the virtues of Orton-Gillingham. Specifically, Charles Richardson ("Richardson"), a self-employed educational consultant, testified that Orton-Gillingham was the only effective strategy to teach reading to children with Michael's impediments. However, Richardson had never taught in a special education setting and, furthermore, was not a certified teacher. Pulkkinen also criticized Beck's approach. However, he too was not qualified as a special education or reading teacher, and was not trained in the Orton-Gillingham method. Wall also presented the testimony of Michael's private tutor, Nettleton, who criticized Beck for not using the Orton-Gillingham method. However, on cross-examination, Nettleton admitted that Orton-Gillingham was not the only method that could achieve positive results.

 Beck testified that she held a Master's Degree in Special Education, had twenty-four credit hours beyond the Master's level, and was certified in Orton-Gillingham. She testified that she used Orton-Gillingham with Michael on occasion, but did not believe it was necessary to do so exclusively. The School District elicited testimony from several witnesses, including Richardson and Nettleton, ...


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