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N.C. ex rel M.C. v. Bedford Central School District

February 7, 2007

MR. AND MRS. N.C., ON BEHALF OF THEIR SON M.C., PLAINTIFFS,
v.
BEDFORD CENTRAL SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Stephen C. Robinson, U.S. District Judge

MEMORANDUM DECISION AND ORDER

I. Background

A. Procedural History

On August 10, 2004, Mr. and Mrs. N.C. (the "Plaintiffs") filed this lawsuit, on behalf of their son M.C., against the Bedford Central School District (the "Defendant") pursuant to the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. §§ 1400, et seq. The original Complaint seeks review of an April 2004 determination by New York State Department of Education State Review Officer Paul F. Kelly (the "SRO") affirming the February 2004 decision of Impartial Hearing Officer George Kandilakis ("IHO Kandilakis") which held that M.C. was not a student with a disability under the IDEA for the 2003-2004 time period because he did not meet the requirements for being emotionally disturbed. Plaintiffs, who unilaterally placed M.C. into an alternative school environment beginning in April 2003, also seek a ruling that this alternative placement was appropriate and that Plaintiffs are therefore entitled to reimbursement under the IDEA for part of the 2002-2003 school year and all of the 2003-2004 school year. Both parties submitted motions in support of their positions.

While this Court was considering those motions, Plaintiffs requested a pre-motion conference so that they could seek this Court's leave to file a Supplemental Complaint. At a conference held on October 13, 2006, this Court granted leave to file the Supplemental Complaint as part of the original action. Plaintiffs' Supplemental Complaint seeks review of a February 2006 determination by the SRO*fn1 affirming the November 2005 decision of Impartial Hearing Officer Edward Luban ("IHO Luban") which held that M.C. was not a student with a disability under the IDEA for the 2004-2005 school year because he did not meet the requirements for being emotionally disturbed. Plaintiffs, who continued their unilateral placement of M.C. through the 2004-2005 school year, also seek a ruling that this alternative placement was appropriate and that Plaintiffs are therefore entitled to reimbursement under the IDEA for the 2004-2005 school year. Both parties submitted motions in support of their positions on December 13, 2006. This Court will address Plaintiffs' motions for the 2003-2004 time period and the 2004-2005 school year in a single opinion, as the two issues involve virtually identical factual and legal issues. For the reasons discussed below, this Court finds in favor of the Defendant with regard to both academic years at issue.

B. IDEA

Congress enacted the IDEA to promote the education of children with disabilities. See, e.g., Schaffer v. Weast, 126 S.Ct. 528, 531 (2005). Under the IDEA, a school district must provide each student with a disability with "special education and related services." 20 U.S.C.§ 1401(9). Parents "may present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." 20 U.S.C. § 1415(b)(6). The parents involved in such a complaint "shall havean opportunity for an impartial due process hearing." 20 U.S.C. § 1415(f). In New York, such hearings are conducted before an IHO who is appointed by the local board of education. See N.Y. Educ. L. § 4404(1). The IHO's decision may be appealed to an SRO, see N.Y. Educ. L. § 4404(2), and the SRO's decision may be challenged in either state or federal court. See20 U.S.C. § 1415(i)(2)(A).

C. Facts

Beginning in 1999-2000, when M.C. was in seventh grade, Mrs. N.C.'s male cousin began a course of sexual misconduct with M.C. that included, but was not limited to, watching pornographic videos with M.C. and urging M.C. to engage in sexual intercourse with a female while the cousin watched. See N.C. ex rel M.C. v. Bedford Cent. Sch. Dist., 348 F. Supp. 2d 32, 35 (S.D.N.Y. 2004) (describing underlying facts); Dist. Ex. 22 at 4-5.*fn2 In May 2000, Plaintiffs obtained an Order of Protection against the cousin, but the cousin continued to contact M.C. without Plaintiffs' knowledge. 2004 IHO Tr. at 399-404. By 2001-2002, when M.C. was in ninth grade, the cousin's conduct had escalated to sodomy.*fn3 2004 IHO Tr. 759-60, 812-15; Dist. Ex. 22 at 5. In addition to these experiences, M.C. was diagnosed with Attention Deficit Hyperactivity Disorder and phonemic processing deficits at the age of 15, and beginning in April 2002, M.C. began receiving certain accommodations for his learning disabilities under § 504 of the Rehabilitation Act. See Par. Ex. A; Dist. Ex. 12 at 2, Dist. Ex. 22 at 4.

i. 2003-2004 school year

M.C. started the 2002-2003 school year as a tenth-grade student at Fox Lane High School ("Fox Lane") in the Bedford Central School District. In or about September or October 2002, M.C. began seeing Scott Gillet, a psychotherapist, on a weekly basis, and met with him for six months. Dist. Ex. 11 at 1; Dist. Ex. 25 at 2; 2004 IHO Tr. at 824. For several months, starting approximately in January 2003, M.C. was also under the care of a psychiatrist, Dr. Elon Schwartz, who prescribed anti-depressant and anti-psychotic medications for M.C. See Dist. Ex. 11 at 1; 2004 IHO Tr. at 826-28. In December 2002, M.C. was suspended from school for fighting; he was suspended again in January 2003 for an assault on a student, and again in March 2003 for possession of marijuana and drug paraphernalia.*fn4 See Par. Ex. M at 1, 6; Dist. Ex. 32 at 1-3. Shortly after the second suspension, on March 10, 2003, Plaintiffs referred M.C. to Defendant's Committee on Special Education (the "CSE") and sought to have him classified as emotionally disturbed, which would have qualified him for educational services under the IDEA; a CSE meeting was scheduled for May 22, 2003. See Dist. Exs. 3, 9.

As part of the CSE referral process, M.C. underwent an educational evaluation on April 3, 2003 that consisted of diagnostic tests in reading, mathematics, and written language. M.C. was rated as average or above average on all components of the reading and mathematics examinations, and was rated average or above average on six of the seven sections of the writing skills examination. In addition, the examiner concluded that M.C. "showed progress in patience, cooperation and attitude throughout the testing period," while also recommending that M.C. "should still focus on improving behavior." Dist. Ex. 10.

School Psychologist Dr. Jeffrey Shein conducted a psychological evaluation of M.C. on March 26, 2003, and issued a report on April 5, 2003. The final report was based on the results of verbal and written tests, materials completed by Plaintiffs, and an interview with M.C. Among other things, Shein concluded that M.C.'s responses to certain questions placed him at the "upper limit of the moderate range of depression," but that other indicators "failed to reach the cut-off score for clinical depression." Dist. Ex. 11 at 4. M.C. self-reported more problems than are typically reported by boys aged 11 to 18, particularly with regard to "attention problems, rule-breaking behavior, and problems of an aggressive nature." Id. at 5. Mrs. N.C.'s ratings of her son on one particular screening instrument met or exceeded the threshold scores for a range of disorders, and Mrs. N.C. also reported that M.C. had talked about killing himself. Id. at 6; 2004 IHO Tr. at 259-60. Shein later testified that M.C.'s mood was not depressed during the evaluation, and that he did not see any signs of irritability. 2004 IHO Tr. at 733-35.

School Social Worker Dr. William Reulbach submitted a social history report concerning M.C. on April 10, 2003, in which he referenced M.C.'s "extremely traumatic history beginning when he was twelve years old." Dist. Ex. 12 at 2. According to Reulbach, M.C.'s "acting out and oppositional behavior escalated during tenth grade" and "he continued to medicate his depression with pot." Id.; see also Dist. Ex. 22 at 3-4 (updated Social History report).

M.C.'s ninth grade report card indicates final average grades in his six courses of 89, 86, 83, 83, 80, and 76, for an overall average of 84.17; M.C. was on the honor roll for three quarters in ninth grade. See Dist. Ex. 14A, 14B; 2004 IHO Tr. at 187. In tenth grade, in the final marking period before he left Fox Lane, M.C. received grades in his four classes of 84, 81, 78, and 75, though M.C.'s overall average grade in the first marking period was 71.25 and in the second marking period was 70.75.*fn5 Though he was enrolled in fewer courses, M.C.'s scores in tenth grade ultimately were similar to his scores in ninth grade. See Dist. Ex. 14A, 14B.

On April 15, 2003, prior to the CSE hearing, Plaintiffs made the unilateral decision to place M.C. in the Family Foundation School ("Family Foundation"), a restrictive boarding school targeted at "students who have suffered from any form of arrested development or problem behavior." Dist. Ex. 15; Joint Ex. 1 at 7; see 2004 IHO Tr. at 174-75, 614-15. One of the central pedagogical principles of Family Foundation is that it employs "methods derived from the 12-step self-help program of Alcoholics Anonymous." Id. Family Foundation has not been approved by the New York State Education Department for special education. See 2004 IHO Tr. at 173, 444.

At the CSE session on May 22, 2003, one of M.C.'s ninth grade teachers described him as "one of the best students" in ninth grade, but noted that M.C. exhibited increased difficulty with homework completion, tests, and attending class in tenth grade. See Dist. Ex. 16 at 2. Reulbach reported at the meeting that M.C. began to share "traumatic history" toward the end of his ninth grade year year, and that M.C.'s drug-related issues significantly increased in the fall of sophomore year. Id. at 2-3. Nevertheless, the CSE determined that M.C. did not meet the criteria to be classified as a student with a disability -- specifically, M.C. was not eligible for a classification of "student with an emotional disturbance" for the purposes of the IDEA, and was therefore ineligible for services pursuant to the statute.*fn6 Id. at 3; see 2004 IHO Tr. at 185-87. In response to the CSE's findings, Plaintiffs filed a request for an impartial hearing to challenge the CSE decision. See Dist. Ex. 17.

A pre-hearing conference was held before IHO Kandilakis on June 24, 2003, and the parties agreed to defer the impartial hearing so that the CSE could consider additional information, including medical reports prepared by Gillet and Schwartz, a classroom observation of M.C. at Family Foundation, and specific evidence of the sexual abuse, none of which was presented at the May 22, 2003 meeting. See 2004 IHO Tr. at 45; Dist. Ex. 26. A second CSE meeting was scheduled for July 31, 2003.

At the July 31, 2003 CSE meeting, the CSE reviewed additional documentation including an updated social history, Dist. Ex. 22, the classroom observation, Dist. Ex. 23, and letters from Schwartz and Gillet, Dist. Exs. 24, 25. See 2004 IHO Tr. at 159. The revised social history, completed by Reulbach on July 15, 2003, described M.C. as "well liked by both students and teachers and recognized by all as a leader." Dist. Ex. 22 at 4; 2004 IHO Tr. at 195, 197-98. Reulbach did, however, note teacher reports of disruptive behavior, inattentiveness, lack of self-control, and other misbehavior throughout M.C.'s middle school years, including a suspension from the eighth grade graduation dance because of conflict with school authority figures. Dist. Ex. 22 at 2-3; Dist. Ex. 32 at 7-9. This report also described the close counseling relationship between Reulbach and M.C., and the basic facts of the sexual abuse suffered by M.C. Id. at 4-5. Reulbach further discussed how M.C.'s behavior deteriorated at home after M.C.'s abusive interactions with his cousin. Id. at 6. M.C. told Reulbach that he was smoking pot during school in late fall 2002, and Reulbach speculated based on information from other students that that M.C. might be involved in more extensive drug use. Id. at 5-6; 2004 IHO Tr. at 406-08. This was confirmed by Mr. N.C. during his testimony before IHO Kandilakis. 2004 IHO Tr. at 800-03; see also Dist. Ex. 35 at 4. Reulbach concluded that in ninth grade, M.C. "maintained high academic and behavioral standards despite his sexual abuse and family conflict," but that "after his substance abuse escalated in his tenth grade year.his behavior both in and out of school deteriorated." Id. at 7.

The letter submitted by Schwartz on July 9, 2003 declared that M.C. "is diagnosed with major depression, single episode, severe without psychotic features" and "post traumatic stress disorder." During the July 31, 2003 CSE meeting, Reulbach, who is also trained in making clinical diagnoses, specifically disagreed with the major depression diagnosis, and expressed his belief that without his drug use, M.C would have been able to work through any post-traumatic stress through therapy. See Dist. Ex. 28 at 4; 2004 IHO Tr. at 223-24; 2004 IHO Op. at 10. Schwartz further concluded that M.C. did not have a primary drug problem, but that he had developed secondary drug abuse "in an attempt to numb or mask painful feelings." Dist. Ex. 24. Reulbach also disagreed with this conclusion. 2004 IHO Tr. at 460-61. According to the testimony of Mr. N.C., M.C. only saw Schwartz a total of three times. 2004 IHO Tr. at 827.

Gillet's letter indicates that most of M.C.'s pathology stems from the sexual abuse, and that in the period after the abuse, "his drug and alcohol use became greater and his anger and rage also became a major treatment concern at home and in school." Dist. Ex. 25 at 2-3. According to Gillet, M.C. at times felt suicidal and despondent and over time, he "began to have less and less impulse control at school" and also "became difficult at home." Id. at 3-4. Reulbach later testified before IHO Kandilakis that he did not observe M.C. to have any characteristics of suicidal behavior. 2004 IHO Tr. at 465. Gillet, who met with M.C. on a weekly basis for a period of several months, did not diagnose M.C. with depression.

After the July 31, 2003 CSE meeting, the Committee determined again that M.C. did not meet the criteria to be classified as a student with a disability, and therefore did not require special education services. See Dist. Ex. 28. Specifically, the CSE members believed that even after having specifically considered M.C.'s "horrific trauma," the student did not qualify as having an "emotional disturbance" as he had not experienced any impact on his education. 2004 IHO Tr. at 230-31; Dist. Ex. 28 at 5. The CSE believed that it was M.C.'s drug use that caused his deterioration, rather than the sexual abuse. 2004 IHO Tr. at 231. On August 13, 2003, Plaintiffs informed Defendants that they did not agree with the CSE's July 31 conclusions, and requested that the hearing before IHO Kandilakis be continued. Dist. Ex. 29.

The proceedings before IHO Kandilakis continued on October 28, November 17, December 2, and December 19, 2003. Defendant submitted 34 exhibits and the testimony of two witnesses -- Reulbach and Linda Schluter, Assistant Superintendent for Pupil Personnel Services. Plaintiffs submitted 14 exhibits as well as the testimony of Shein, Mr. N.C., and Renee Gotthardt, a Social Worker at Family Foundation. Much of the evidence presented to IHO Kandilakis is cited in the paragraphs above. In addition to the material previously discussed, Gotthardt testified that M.C. was evaluated by Dr. Charles Moss, the consulting psychologist at Family Foundation upon his arrival there, and it was determined that M.C. did not require regular treatment with Dr. Moss. 2004 IHO Tr. at 659-61. Moss diagnosed M.C. with substance abuse and dysthymic disorder, Dist. Ex. 35 at 6, but the staff and Family Foundation did not view M.C. as being at a crisis point. 2004 IHO Tr. at 660. Dysthymic disorder in children is characterized by an irritable or depressed mood that occurs for most of the day, more days than not, for at least one year. See Pl. Mem. at Ex. 3, p.2.

After consideration of all of the evidence, IHO Kandilakis issued an opinion on February 18, 2004 affirming the CSE's decision that M.C. did not satisfy the requirements for classification as emotionally disturbed. IHO Kandilakis concluded that M.C. had not demonstrated an inability to learn that could not be explained by intellectual, sensory, or health factors, and that he had the ability to build and maintain satisfactory relationships with peers and teachers. 2004 IHO Op. at 17. Further, IHO Kandilakis determined that M.C. did not exhibit inappropriate types of behavior or feelings under normal circumstances to the extent necessary to support a finding of emotional disturbance. In sum, IHO Kandilakis agreed with the analysis that drug use, and not sexual abuse, was the reason for M.C.'s "downward spiral" and that a classification as emotionally disturbed was inappropriate and unnecessary. Because IHO Kandilakis affirmed the CSE decision on this point, he did not address the issue of whether Family Foundation was an appropriate placement for M.C. -- without the threshold determination that M.C. was eligible for special educational services, Plaintiffs could not be awarded tuition reimbursement for M.C.'s period of enrollment at Family Foundation.

On April 28, 2004, the SRO affirmed IHO Kandilakis's decision and dismissed Plaintiffs' appeal, concluding that the record did not establish that M.C. exhibited any of the five characteristics of emotional disturbance enumerated in New York State regulations over a long period of time to a degree that adversely impacted his educational performance. 2004 SRO Op. at 5. The SRO found that M.C. "performed academically in a manner commensurate with his cognitive ability," and determined that his grades illustrated that his emotional condition did not have a significant effect upon his educational performance. Further, M.C. "built and maintained a number of satisfactory relationships." Id. According to the SRO, M.C. did not exhibit inappropriate behavior under normal circumstances because his circumstances were decidedly not normal. Id. at 6. Finally, the SRO found that M.C. did not exhibit a generally pervasive mood of depression; despite the varying diagnoses in the record, the SRO observed that "the two mental health professionals most familiar with [M.C.] ...


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