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IN THE MATTER OF THE APPL./J.R. AND B.R. v. BD. OF EDUC.

November 22, 2004.

In the Matter of the Application of J.R. and B.R. on behalf of S.R., their minor child, Plaintiffs,
v.
BOARD OF EDUCATION OF THE CITY OF RYE SCHOOL DISTRICT, Defendant.



The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge

OPINION AND ORDER

Plaintiffs J.R. and B.R. on behalf of S.R., their minor child, bring this action pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1401 et seq., and N.Y. EDUC. LAW § 4404(3), against defendant the Board of Education of the City of Rye School District (the "District"),*fn1 seeking review of an administrative decision, affirmed by the State Review Officer ("SRO") at the New York State Education Department's Office of State Review, that declined to award them tuition reimbursement for their unilateral placement of S.R. in a private school for the 2002-03 school year.*fn2 Plaintiffs move for summary judgment and seek an order directing the District to reimburse tuition in the amount of $36,700, and an award of reasonable attorney's fees and costs. (Pls. Mem. Supp. Summ. J. at 11.) The District also moves for summary judgment and seeks an order upholding the administrative decisions and dismissing plaintiffs' Complaint. (Def. Mem. Supp. Summ. J. at 26.) For the reasons set forth herein, the Court grants defendant's motion for summary judgment dismissing plaintiffs' Complaint, and deny as moot plaintiffs' motion for summary judgment.*fn3 BACKGROUND

The administrative record and the additional evidence submitted by plaintiff reveal the following factual background.*fn4 S.R. is now a fourteen-year-old eighth-grade student. She has been diagnosed with Trisomy-14 Mosaic Type ("Trisomy"), a genetic disorder that has caused her numerous disabilities, including speech and language impairments, fine and gross motor difficulties, visual problems and an auditory processing disorder.*fn5 (Hr'g Tr. at 873-74, 1029-30.) S.R. also has been diagnosed with bipolar disorder for which she is treated with medication. (Id. at 978.) S.R. has been classified as a special education student since she was three years old, and has received from the District a variety of special education services from her preschool years until 2002. In September 2002, plaintiffs enrolled S.R. in the seventh grade at the Eagle Hill School ("Eagle Hill"), a private facility located in Greenwich, Connecticut.*fn6 (Id. at 840; Complt. ¶¶ 19-20.)

  While enrolled in the District's elementary and middle schools, S.R. received, in accordance with individual education plans ("IEPs") formulated by the District's Committee on Special Education (the "CSE"), special education services of general education with full inclusion, speech and language therapy, and counseling. (Complt. ¶¶ 19-21; Def. Mem. Supp. Summ. J. at 2.) According to plaintiffs, S.R. began to experience increased academic and social difficulties as a sixth grader during the first part of the 2001-02 academic year; these problems at school were accompanied by difficulties with her behavior at home.*fn7 (Complt. ¶ 22; Hr'g Tr. at 871.) Plaintiffs met with S.R.'s teachers in October 2001 to discuss these problems, and informed them of her affliction with Trisomy. (Hr'g Tr. at 871-73.) Thereafter, plaintiffs requested a CSE meeting because they were concerned about S.R.'s ability to remain in the middle school based on her emotional state that was evidenced by her behavior at home in the evenings; that meeting was held on October 29, 2001.*fn8 (Id. at 876-77; Def. Ex. 3 at 6.) At the October 2001 meeting, plaintiffs asked the CSE to consider placing S.R. in a self-contained special education class. (Hr'g Tr. at 878; Def. Ex. 3 at 6-7.) The CSE declined this request as "unnecessarily restrictive" and not in S.R.'s best interest because reports from her teachers indicated that she was actually adjusting well to middle school. (Def. Ex. 3 at 7.) The minutes of the CSE meeting also indicate that the chairperson, special education director Roberta Wiener, believed that many of S.R.'s academic difficulties stemmed from anxieties that would be addressed in subsequent counseling sessions. (Id. at 6.) Ultimately, as a result of the October 2001 meeting, the CSE made modifications to S.R.'s IEP that: (1) added a socio-emotional goal directed at improving her in-school behavior; and (2) provided assistance in developing her time management and organizational skills. (Id. at 1, 5.)

  According to plaintiffs, S.R. continued to struggle during the remainder of the 2001-02 academic year. They testified that she complained frequently about the difficulty of her school work; in April 2002, she wrote a letter to her teachers about her frustration.*fn9 (Hr'g Tr. at 879-80, 899-900; Pls. Ex. CCC.) They also testified S.R. experienced social difficulties as she had few friends and was often bullied and harassed by other students. (Hr'g Tr. at 884-88, 896.) Plaintiffs remained in contact with S.R.'s teachers, guidance counselor and school psychologist during this time, but her academic and social problems did not abate. (Id. at 879-902.)

  In March 2002, the CSE met again to develop S.R.'s IEP for the following 2002-03 academic year. (Def. Ex. 6 at 2.) Plaintiffs again requested that S.R. be placed in a self-contained special education class. (Id. at 3.) According to the minutes of the meeting, the CSE declined this request because, upon consideration of S.R.'s social and academic progress during the year as reported by her teachers, "it would be a disservice to [S.R.] to place her in a more restrictive setting as she is flourishing in the inclusion program." (Id.) The CSE did, however, modify the IEP to provide S.R. with a forty-minute session with a resource teacher in the Learning Center four times per week,*fn10 in addition to modified class projects, and testing and classroom accommodations that included the provision of a word processor and preferential seating. (Id.) Later in March 2002, plaintiffs notified the District in writing that they were considering sending S.R. to Eagle Hill for the 2002-03 year, and submitted an appropriate transportation request. (Pls. Exs. AAA, BBB.)

  With respect to S.R.'s mental health during the relevant time period, plaintiffs had her evaluated by Jeanne Dietrich, a private clinical psychologist, in October 2001. (Hr'g Tr. at 710, 714.) In light of their concerns about S.R.'s adjustment to middle school, plaintiffs asked Dietrich to determine whether she should be placed in a private school instead. (Id. at 714.) Dietrich's subsequent diagnostic testing then revealed that although S.R. valued learning and was interested in school, she had severely compromised language comprehension and visual perception abilities. (Id. at 716-24; Pls. Ex. UUU at 8-11.) Dietrich also administered academic testing; her administration of the Wechsler Individual Achievement Test (the "WIAT") of S.R.'s mathematical, reasoning, and language abilities demonstrated that, as a result of her language difficulties, she had a generally low level of academic functioning. (Hr'g Tr. at 727-29.) Dietrich also found that S.R.'s perceptual difficulties negatively impacted her personality testing as well. (Id. at 730-31.) She ultimately recommended that plaintiffs should enroll S.R. in a private school, and obtain additional language therapy for her. (Id. at 732.)

  Subsequently, in June 2002, Dietrich observed that S.R. seemed more stressed than she had been in October.*fn11 (Id. at 739-40.) The June 2002 WIAT retesting showed that although S.R. had grown older, her language skills remained at the third-grade level; her math results had, however, improved. (Id. at 737-40; Pls. Ex. RR at 5.) Dietrich noted that these low scores were consistent with contemporaneous pre-admission test results obtained by Eagle Hill and Windward, another private school to which plaintiffs had considered sending S.R. She reiterated her recommendation that S.R. be enrolled in an intense special education program in a school that could provide a small student-teacher ratio.*fn12 (Hr'g Tr. at 750-63; Pls. Ex. RR at 5.)

  Thereafter, on August 15, 2002, plaintiffs notified the District in writing that they were enrolling S.R. in Eagle Hill for seventh grade starting in September 2002. (Def. Ex. 7.) The CSE then held another review of her IEP on August 28, 2002. (Def. Ex. 9 at 3.) At this review, plaintiffs discussed with the CSE S.R.'s bipolar diagnosis and emotional state. (Id.; Hr'g Tr. at 172-74.) The CSE also heard from Barbara Gaines, the speech and language pathologist, about S.R.'s "dramatic improvement" in speech therapy, and from Karetsos, Sandhaus and Carrie Tartaglia, her sixth-grade teachers, about her continued progress in math and language skills. (Def. Ex. 9 at 2-3.) S.R.'s end-of-year grades decline was discussed; the CSE noted that she passed all of her classes, and that factors contributing to the decline were: (1) test anxiety; and (2) S.R.'s awareness that she would not be returning to the District's middle school. (Id. at 3.) Ultimately, the CSE adhered to its prior decision that S.R. continue with the full inclusion program, but also scheduled her for an additional period per week in the Learning Center. (Id. at 1.) Thus, the final 2002-03 IEP for S.R. provided: (1) full inclusion with a full-time special education teacher for core subject areas; (2) the Learning Center five times weekly in forty-minute sessions; (3) counseling once weekly for thirty minutes; and (4) speech/language therapy once weekly in a group, and once weekly on an individual basis. (Id. at 1.) Accommodations for S.R. continued to include computer and word processor access, preferential seating, time extensions, reduced homework and assignments, and pass/fail grading for foreign language courses. (Id. at 1, 3.) All members of the CSE, except plaintiffs, agreed to this IEP. (Id. at 3.) Shortly thereafter, plaintiffs unilaterally enrolled S.R. at Eagle Hill, where she started the seventh grade in September 2002. (Hr'g Tr. at 4.)

  Plaintiffs filed a request for an impartial hearing on February 3, 2003. (Joint Ex. 1.) A hearing was held over six days in the Spring of 2003 before IHO Joseph Quinn, a former school principal with thirty-three years of educational experience. (Hr'g Tr. at 4.) Witnesses testifying at the hearing about S.R.'s academic progress and mental health status included plaintiffs, Wiener, teachers Sandhaus, Karetsos and Tartaglia, guidance counselor Susan Salese, and Coleman, Perry, Gaines and Dietrich. The hearing officer issued a written decision in the District's favor on June 18, 2003, finding that: (1) the March 2002 and August 2002 IEPs were "adequate to provide S.R. with a free and appropriate public education in the least restrictive environment"; (2) plaintiffs did not cooperate with the CSE in seeking private placement for S.R.; and (3) plaintiffs' request for tuition reimbursement was "without cause." (IHO Op. at 1.) In so concluding, the IHO found credible the District witnesses' testimony that although S.R. was struggling, she was making academic progress in the public school setting. (Id. at 5-6.)

  Plaintiffs appealed the IHO's decision to the SRO, who in October 2003 upheld the ruling denying reimbursement. (SRO Op. at 4.) In his written opinion, the SRO concluded that S.R. was on the honor roll and was therefore "performing well, given the limits imposed by her speech and language impairment." (Id. at 3.) The SRO also noted that modifications to the IEP, including the addition of multiple short-term objectives under larger goals including "social/emotional/behavioral" and "speech/language," demonstrated that the CSE was responsive to plaintiffs' concerns about S.R.'s emotional and psychiatric difficulties and specifically her "manic and psychotic" episode in July 2002. (Id.) Ultimately, the SRO dismissed the administrative appeal and declined to reach the propriety of the unilateral Eagle Hill placement, concluding that the "District has met its burden of demonstrating that the proposed placement for the 2002-2003 school year was reasonably calculated to confer an educational benefit on [S.R.] in the least restrictive environment." (Id. at 4.) Thereafter, plaintiffs brought the present action in this Court for review of the SRO's decision. Additional facts will be set forth as necessary in the Discussion section of this Opinion and Order.

  DISCUSSION

  I. Governing Law

  A. Substance of ...


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