The opinion of the court was delivered by: DAVID HURD, District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Peggy Watson ("plaintiff") brings this suit against
defendant Kingston City School District ("District") alleging
failure to provide her son, Ben, with a free appropriate public
education ("FAPE"), in violation of the Individuals with
Disabilities in Education Act, 20 U.S.C. § 1415(i)(2) ("IDEA").
Specifically, plaintiff contests a State Review Officer's ("SRO")
conclusion that her son's Individualized Education Program
("IEP") for the 2001-02 school year was appropriate. Both parties have moved for summary judgment pursuant to Fed.
R. Civ. P. 56.*fn1 Oral argument was heard on March 25,
2004, in Albany, New York. Decision was reserved.
Ben was classified as learning-disabled by the District's
Committee on Special Education ("CSE") in December 1993 due to
auditory-language processing problems. (Docket No. 12, p. 1.) In
accordance with the IDEA, the CSE developed yearly IEPs for Ben.
(Docket No. 33, SD-6, 7, 10, 20, 33, 41) ("Admin. Rec. SD-__").
His disputed 2000-01 IEP, modified after settlement, provided
that Ben: (1) be placed in special, non-inclusive classes for
English, Math, Science and Social Studies with 12 students for 1
regular classroom teacher and 1 special education teacher, (2)
receive speech/language therapy once a week, and (3) receive
multi-sensory reading instruction. (Admin. Rec. SD-41, p. 1.)
On October 2, 2000, plaintiff sought an independent
audiological evaluation from Professor Gertner ("Gertner") of
Kean University. Gertner found that Ben had trouble hearing and
repeating words. He recommended that Ben be placed in a reading
program that utilized Orton-Gillingham instruction ("O-G"), a
form of multi-sensory reading instruction. Gertner also
recommended that Ben be instructed in smaller, sound-controlled
classrooms, with as much one-on-one instruction as possible.
(Admin. Rec. SD-43.)
On October 10, 2000, the CSE suggested that Ben receive a
behavioral evaluation because he was being disruptive in class.
(Admin. Rec. SD-45.) Plaintiff asked the District to implement Gertner's recommendation that the
school use the O-G method of instruction and that her son be
placed in a private school, in order to negate the potential
stigma of Ben being viewed as a special education student. Id.
The District denied plaintiff's requests.
Ben spent approximately one month at a District school in the
fall of 2000, before being removed from the District school by
plaintiff. (Admin. Rec. SD-47.) He was subsequently home-schooled
from October until December 2000, and then began tutoring
sessions in January. Id. District teachers tutored Ben in all
his classes except Math, for which he received instruction from
his grandmother, a retired teacher. Id. Testimony below
indicated that before voluntarily leaving the District, Ben
voiced his concern and anger about being classified as a special
education student, (Docket No. 29, pp. 67, 83-85), and that at
plaintiff's request, the District had begun investigating the
possibility of placing Ben in an "integrated" classroom setting,
(Docket No. 18, p. 11.)
Plaintiff obtained a second independent evaluation from Dr.
Phoebe Liss ("Liss") in December 2000. Liss also recommended that
Ben receive O-G instruction in a small classroom environment.
(Admin. Rec. SD-49.) The CSE thought that Liss's recommendations
could be applied within the District, although it was cognizant
that Ben was concerned about being stigmatized for receiving
special education services. Ben's home-schooling continued
throughout the spring of 2001. (Docket No. 28, p. 4.)
In June 2001, the CSE developed Ben's 2001-02 IEP. In creating
the IEP, the CSE considered Ben's auditory-processing needs and
level of academic performance, as shown by his April 2000 WIAT
and November 1999 WISC III scores. (Docket No. 41.) While not
included in the IEP, additional material was assessed by the CSE,
including Ben's IQ scores and successful English Regents exam results, Gertner's and
Liss's independent evaluations, spring 2001 tutoring evaluations
completed by District instructors, two psychology exams conducted
by the District, and previous IEPs. (Docket No. 28, p. 6; Docket
No. 29, pp. 65-67.) The District also discussed mainstreaming
alternatives with plaintiff, Ben's potential need for an FM
trainer, and preferential seating within classrooms. (Docket No.
28, p. 6; Docket No. 29, pp. 60-62, 247.)
Based on Ben's needs, the CSE developed a series of related
objectives to assist Ben in progressing through the high school
curriculum. These objectives focused on improving his language,
mathematical, organizational, study, and attending skills. The
CSE also provided Ben with special education services that would
help him to successfully meet the IEP's objectives, while placing
him in a less restrictive classroom environment. (Docket No. 41;
Docket No. 29, pp. 36, 40.) These services included speech
therapy and multi-sensory education sessions to improve his
vocabulary and comprehension skills. The IEP also stipulated that
several classroom modifications would be put in place, such as
repetition of material by the classroom instructor and
modification of tests and assignments. (Docket No. 29.)
Ben's 2001-02 IEP specifically recommended that Ben continue to
be classified as learning-disabled but that he be placed in a
larger, more inclusive classroom setting. The CSE also stated
that once every six school days he should receive one-on-one
speech therapy for forty minutes and multi-sensory reading
instruction for thirty minutes. (Docket No. 41.) Plaintiff requested an impartial review of the 2001-02 IEP on
July 1, 2001. She was particularly concerned that the IEP did not
include appropriate academic and social peers for Ben. (Admin.
The impartial hearing officer ("IHO") reviewed the proposed IEP
and found that it was inappropriate for Ben. (Docket No. 27, pp.
9-10.) Specifically, the IHO stated that the CSE had
insufficiently developed Ben's IEP because (1) it had not
personally observed him in the home-school setting, (2) the IEP
was not created when Ben had started home-schooling, (3) it had
not considered the recommendations of Gertner or Liss, or the
prospect of Ben attending a private school, (4) the IEP did not
include an assistive technology evaluation, and (5) the language
instruction was not sufficient in length or ...