United States District Court, N.D. New York
July 14, 2004.
PEGGY WATSON, as a parent of Ben Watson, a disabled student, Plaintiff,
KINGSTON CITY SCHOOL DISTRICT, Defendant.
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 frequency. Id. The
IHO advised the CSE to revise the IEP based on his
recommendations and to specifically consider implementing an O-G
program of instruction. Id.
To address concerns about what she felt were ambiguities in the
IHO's decision, plaintiff appealed to the State Review Officer
("SRO"). On November 25, 2002, the SRO reversed the finding of
the IHO and reinstated the IEP. (Docket No. 28, p. 9.) The SRO
found that the CSE had sufficient knowledge of Ben's needs and
that the IEP sufficiently addressed those needs. Id. at 1-9.
Specifically, the SRO found that because Ben's home-schooling was
a temporary, interim placement, the CSE was not required to
observe it. Id. at 6. An assistive technology evaluation was
deemed unnecessary by the SRO. Id. The SRO also found that Ben
did not need continuous O-G instruction throughout the day
because his speech therapy and multi-sensory sessions would
sufficiently address his disability. Id. at 8. The SRO regarded
the IEP's comprehensive approach of combining special education sessions with in-class modifications as
"especially significant for this student, in view of his feelings
about being identified as a student with a disability." Id.
A. Summary Judgment Standard
Summary judgment must be granted when the pleadings,
depositions, answers to interrogatories, admissions and
affidavits show that there is no genuine issue as to any material
fact, and that the moving party is entitled to summary judgment
as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986); Richardson v. N.Y. State Dep't of Corr. Servs.,
180 F.3d 426, 436 (2d Cir. 1999). Facts, inferences therefrom, and
ambiguities must be viewed in a light most favorable to the
nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Once the moving party has met the initial burden of
demonstrating the absence of a genuine issue of material fact,
however, the nonmoving party "must set forth specific facts
showing that there is a genuine issue for trial." Fed.R.Civ.P.
56; Anderson, 477 U.S. at 250. At that point, the nonmoving
party "must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Elec.,
475 U.S. at 386. Indeed, to withstand a summary judgment motion,
the nonmoving party must demonstrate that sufficient evidence
exists upon which a reasonable jury could return a verdict in its
favor. Anderson, 477 U.S. at 248-49; Matsushita Elec., 475
U.S. at 587.
The purpose of the IDEA is to provide all disabled students
with a FAPE. 20 U.S.C. § 1400(d). States receive federal funding
for complying with the IDEA by developing specialized education plans and services for students with
disabilities (IEPs). 20 U.S.C. § 1412(a)(1)(A). The IDEA also
mandates schools provide a FAPE to students in the least
restrictive environments available, to be achieved primarily
through mainstreaming disabled students into non-disabled
classroom settings. The only exception to the mainstreaming
requirement is when "the nature or severity of the handicap is
such that education in regular classes . . . cannot be achieved
satisfactorily." 20 U.S.C. § 1412(a)(5), 1412(5); see also
Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 98 L.Ed.2d 686
(1998); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 (2d
Cir. 2003); Wall v. Mattituck-Cutchogue Sch. Dist., 945 F. Supp. 501
While the IDEA requires districts to provide appropriate
education to disabled students, this is not necessarily
synonymous with offering disabled students the best educational
opportunities available. The IDEA only requires that districts
give disabled students a "basic floor of opportunity . . .
consisting of access to specialized institutions and related
services which are individually designed to provide educational
benefit." Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist.
v. Rowley, 458 U.S. 176, 201, 102 S.Ct. 3034, 73 L.Ed.2d 690
The Supreme Court in Rowley held that the IDEA offered
disabled students both procedural and substantive guarantees. 458
U.S. at 192. Specifically, school districts must (1) comply with
certain procedural mandates in the statute when formulating an
IEP for a disabled student, and (2) ensure that the substantive
contours of the IEP adopted are reasonably calculated to confer
an educational benefit upon the child. Id. The District's
compliance with these two requirements both alleged by
plaintiff to be unsatisfied will be discussed in reverse order. 1. Substantive Challenges to IEP
Plaintiff alleges that the 2001-02 IEP is substantively
inappropriate, in essence, because it did not implement Gertner's
and Liss's recommendations. Plaintiff is particularly concerned
that the IEP did not include O-G instruction or appropriate
intellectual and social peers for Ben. (Docket No. 28, p. 5;
Docket No. 18 p. 19.) She claims that the Kildonan School, a
private school specializing in educating dyslexic students, would
provide Ben with an appropriate education. Id.
The administrative record and rulings are crucial in
determining the appropriateness of Ben's IEP because a Court's
ability to review administrative hearings, regarding whether a
district has complied with the IDEA, is restricted. Sherman v.
Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 (2d Cir.
2003). Judges are not trained educators and are required to
afford significant deference to State educational agencies'
decisions, 20 U.S.C. § 1415(b), 1415(c), without "imposing their
view of preferable educational methods upon the states."
Rowley, 458 U.S. at 207. Any questions regarding appropriate
methodology are left to individual states to decide. Doe v. Bd.
of Educ. of Tullahoma City Sch.'s, 9 F.3d 455, 458 (6th Cir.
1993) ("[The IDEA] giv[es] utmost deference to specific
educational decisions once it is determined that they stem from
the procedures outlined in the Act."). This deference to the
final decision issued by a state agency on an issue of
educational methodology is no less appropriate simply because the
SRO has disagreed with the IHO. Karl v. Bd. of Education of
Geneseo CSD, 736 F.2d 873, 877 (2d Cir. 1984) ("We believe
Rowley requires that federal courts defer to the final decision
of the state authorities and that deference may not be eschewed
merely because a decision is not unanimous or the reviewing authority disagrees with the hearing officer"); see
also Mavis ex rel. Mavis v. Sobol, 839 F. Supp. 968, 986
Here, while an argument could be made that the 2001-02 IEP did
not provide Ben with the best educational services given his
situation, there is sufficient support in the administrative
record that the programming recommended by the CSE and approved
by the SRO satisfies the substantive requirement of the IDEA.
Quite simply, all of the areas about which plaintiff protests
e.g., class size, peer group, type of instruction involve
questions of methodology more appropriately answered by the state
and district decision-makers.
The SRO specifically examined plaintiff's concerns and found
that the IEP appropriately identified and considered them,
developed adequate objectives, and provided educational services
that would allow Ben to attain his objectives. (Docket No. 28,
pp. 7-9.) It was noted that O-G instruction would not fully
address Ben's needs because it is a form of multi-sensory
education that focuses primarily on phonics, whereas his reading
difficulties are with comprehension. Id. at 8. The SRO
therefore held that plaintiff's request for private O-G
instruction was unwarranted because Ben's objectives could be
successfully met with the District's more comprehensive use of
multi-sensory education. Id. These conclusions cannot and will
not be disturbed.
The mere fact that a separately hired expert has recommended
different programming does nothing to change this, as deference
is paid to the District, not a third party. See Pascoe v.
Washingtonville Cent. Sch. Dist., No. 96 Civ. 4926, available at
1998 WL 684583 (S.D.N.Y. Sept. 29, 1998) (holding that
recommendation that a student be given private O-G instruction
did not, in itself, invalidate substantive recommendations in
IEP); see also Tucker v. Bay Shore Union Free Sch. Dist.,
873 F.2d 563, 567 (2d Cir. 1989) (stating that an IEP need not confer "everything that might be thought
desirable by loving parents"). So long as the administrative
record provides sufficient support that the substantive contours
of the IEP are reasonably calculated to confer educational
benefits, as it does here, it is not within a Court's purview to
upset the programming recommended by the CSE.
2. Procedural Challenges to IEP
Although plaintiff also lodges procedural challenges to the
formulation of the IEP under the first Rowley factor, the
defects in this regard, if any, were minor and, given the
substantive propriety of the IEP, do not rise to a level where
relief under the IDEA is appropriate. Grim v. Rhinebeck Cent.
Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003) ("[not every]
procedural error in the development of an IEP renders that IEP
legally inadequate under the IDEA."); Evans v. Bd. of Educ. of
Rhinebeck Cmty. Sch. Dist., 930 F. Supp. 83, 93-94 (S.D.N.Y.
1996) ("procedural flaws do not automatically require a finding
of a denial of a free appropriate education . . .").
It cannot be said that the programming in Ben's 2001-02 IEP is
not reasonably calculated to confer an educational benefit upon
him. Any procedural flaws that accompanied the formulation of
this IEP were minor in nature, and do not alone equate to the
denial of a FAPE under the IDEA.
Accordingly, it is
1. Defendants' motion for summary judgment is GRANTED;
2. Plaintiff's cross-motion for summary judgment is DENIED; and
3. The complaint is DISMISSED. The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.