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Gavrity v. New Lebanon Central School District

September 29, 2009


The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge



Plaintiffs Joann and Paul Gavrity, parents of M.G., a student with a disability, bring this action against defendants New Lebanon Central School District ("the District") and Superintendent Patrick Gabriel under the Individuals with Disabilities in Education Act, 20 U.S.C. § 1401-1482 ("IDEA"), the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796l, and 42 U.S.C. § 1983, alleging a violation of the Equal Protection Clause of the United States Constitution.

In their first causes of action,*fn1 plaintiffs allege that the individualized education plans ("IEPs") the District formulated for M.G.'s fifth (2003-2004) and sixth (2004-2005) grade years failed to offer a "free appropriate public education", in violation of the IDEA.*fn2 Plaintiffs seek reimbursement for the tuition and costs associated with their unilateral placement of M.G. at The Kildonan School, a private school for dyslexic students, for his fifth and sixth grade years.

In their second causes of action, plaintiffs allege that under New York State Education Law § 4402(4)(d), defendants were required, but refused, to provide M.G. with transportation to Kildonan. Plaintiffs contend defendants' denials of their transportation requests for both school years were discriminatory and in retaliation for their commencement of administrative proceedings to challenge the IEPs, in violation of the ADA, the Rehabilitation Act, and the Equal Protection Clause of the Constitution.

Prior to filing the instant actions, plaintiffs commenced separate administrative proceedings before Impartial Hearing Officers ("IHOs") challenging the 2003-2004 IEP and 2004-2005 IEP. In the first proceeding, plaintiffs claimed the 2003-2004 IEP was defective procedurally and substantively under the IDEA, and sought reimbursement for the tuition and transportation costs associated with their placement of M.G. at Kildonan for the 2003-2004 school year. The IHO conducted a hearing and issued a decision finding that the 2003-2004 IEP the District's Committee on Special Education ("CSE") formed for M.G. offered a free appropriate public education and denying plaintiffs' claim for reimbursement. Plaintiffs appealed and a State Review Officer ("SRO") affirmed. Action 1:05-CV-1024 followed.

Plaintiffs initiated a second administrative proceeding to obtain reimbursement for tuition and transportation costs associated with their placement of M.G. at Kildonan for the 2004-2005 school year. Plaintiffs claimed procedural and substantive violations of the IDEA in connection with M.G.'s 2004-2005 IEP. After a hearing, the IHO denied plaintiffs' claim. Plaintiffs appealed and an SRO affirmed. Action 1:06-CV-317 followed.

Presently before the Court are plaintiffs' motion for summary judgment and defendants' cross-motion for summary judgment.


The administrative record formed as a result of plaintiffs' request for a hearing regarding their entitlement to reimbursement for M.G.'s Kildonan tuition and transportation costs for the 2003-2004 school year consists of numerous documents, more than 1,300 pages of hearing testimony before an impartial hearing officer ("IHO"), and decisions by the IHO and SRO. The record, in relevant part, is summarized below.

A. Facts

M.G. was born on February 2, 1993. T. 683. M.G.'s father, Mr. Gavrity testified that M.G.'s hearing was tested when he was three or four because he "[d]idn't seem to be talking well" but that otherwise M.G. was "within developmental guidelines." Transcript of Hearing on 2003-2004 IEP, p. 684 ("T. 684"). Mr. Gavrity stated that M.G. attended preschool for one year before entering kindergarten, and although "his speech was somewhat difficult to understand" and "he struggled with words", he seemed "relatively normal . . . at that point." T. 685.

Mr. Gavrity testified that M.G. did well socially in kindergarten. Id. Mr. Gavrity stated that when, at the end of M.G.'s kindergarten year, plaintiffs told the elementary school principal that M.G. could not identify letters, "people started noticing that something was wrong." T. 685-86.

1. 1999-2000 First Grade

Mr. Gavrity testified that when M.G.'s teacher screened him at the beginning of first grade and found he could not identify letters, she immediately requested services for him and referred him to the District's child study team. T. 686-87. In November 1999, the child study team recommended that M.G. undergo a speech language evaluation. T. 688. In February 2000 an IEP was formalized classifying M.G. as "speech/hearing impaired" and recommending that M.G. receive language training, reading training, and speech services. T. 688-89, 692. According to Mr. Gavrity, test results indicated that by the end of first grade M.G. was reading at the grade equivalent of kindergarten, seven months. T. 691.

2. 2000-2001 Second Grade

Mr. Gavrity stated that although M.G. received reading services in second grade, he did not progress and his reading was poor. T. 697. Mr. Gavrity testified that the "aide time in the classroom was inconsistent" and that the speech services provided "did not seem to be the ones needed for him to proceed." Id. Mr. Gavrity testified that at the end of second grade M.G.'s Wechsler Individual Achievement Test ("WIAT") indicated that he was reading at the grade equivalent of first grade, nine months, or 1.9. T. 698-99, P. Ex. E.

On May 4, 2001, the CSE met to plan for M.G.'s third grade year. T. 700. On May 15, 2001, M.G. underwent an occupational therapy evaluation by Judith Hamm. D. Ex. 13. Hamm reported that testing "indicated difficulties with figure ground discrimination" which could have "academic implications in reading and written work." Id. Hamm recommended "a home listening program that improves auditory and visual processing skills" as well as "organizational skills." Id.

In a social history dated August 16, 2001, J. Richard Morgan, school social worker, reported that M.G. had no problems relating to and playing with peers, enjoyed playing sports, and had no problematic behavior areas. D. Ex. 15. Morgan stated, however, that M.G. had difficulty with speech development and "alphabet and language based skills." Id.

On August 28, 2001, M.G. underwent an audiological evaluation by Alice Bassen, MA, CCC-A. D. Ex. 14. Bassen reported that the results suggested M.G. was "having some temporal processing problems,*fn4 some questionably auditory closure problems,*fn5 some binaural separation and integration problems,*fn6 possible problems with interhemispheric transfer of information and selective auditory attention problems."*fn7 Id. Based on the testing results, Bassen recommended that M.G. receive preferential classroom seating "away from noise" and "temporal pattern training". Id. Bassen also recommended "auditory closure activities", "selective auditory attention management", building M.G.'s organizational skills, providing directions to M.G. "in small increments", and an "at home program to help [M.G.] listen in background noise". Id.

3. 2001-2002 Third Grade

In third grade, M.G. received pull-out reading services and consulting time in the classroom as needed. T. 703. Mr. Gavrity testified that the CSE met on September 14, 2001, to review M.G.'s visual*fn8 and audiological evaluations. Id. As a result of that meeting, the District obtained a "FM device" for M.G. to counteract distractions coming from noise in the classroom.

T. 705-06. According to Mr. Gavrity, however, M.G. had to share it with another student and the teachers did not use it because they found it "difficult" and "didn't like it". T. 706.

Amy Brandoline, M.G.'s third grade reading teacher, assessed his skills in March 2002 and reported that she: would place [M.G.] at an end of first grade-beginning of second grade reading level. Even though he was able to complete tasks at the mid-second grade level, most of the work was slow and laborious for him. His fluency and word recognition skills are not automatic and are lacking in consistency.

D. Ex. 10.

Mr. Gavrity testified that M.G. was struggling emotionally at the end of third grade, T. 713, and test results indicated that he was reading at the 2.9 grade level. P. Ex. E, T. 716.

On June 20, 2002, the CSE met to conduct an annual review of M.G.'s progress and formulate an IEP for fourth grade. P. Ex. F. Mullen stated that during this meeting plaintiffs indicated that M.G. had not progressed "to their satisfaction." T. 174. In response, Mullen suggested an outside evaluation. Id. According to Mullen, plaintiffs agreed and M.G.'s mother recommended that Barbara Read conduct the evaluation. Id. The CSE arranged for this evaluation to commence on September 18, 2002. Id.

4. Summer 2002 Camp Dunnabeck

During the summer of 2002, plaintiffs sent M.G. to Camp Dunnaback at Kildonan for six weeks.*fn9 At Dunnabeck, M.G. took the Wide Range Achievement Test - Third Edition (WRAT- 3), the Gray Oral Reading Test ("GORT-4"), and the Gates-MacGinitie Silent Reading Test in June 2002, and again in August 2002. P. Ex. H. The documents containing M.G.'s test scores state that they "were obtained under optimum conditions" and warn that "[c]aution should be exercised in interpreting test results. It must, for instance, be remembered that the final testing was done under optimum conditions at the end of a period of intensive study." Id. While at Dunnabeck, M.G.'s scores in reading skills on the WRAT-3 improved from a school grade equivalent of 3.2 to 4.3. Id. M.G.'s scores in reading rate and accuracy on the GORT-4 showed improvement from a grade equivalent of less than 1.0 in both areas to 1.2 in rate and 1.7 in accuracy. Id. M.G.'s scores on the GORT-4 in reading fluency stayed at less than 1.0. Id.

M.G.'s scores on the Gates MacGinitie test improved from 1.6 to 2.7 in reading vocabulary, and from 2.1 to 3.3 in reading comprehension. Id. M.G.'s scores in spelling skills on the WRAT-3 improved from 2.2 to 2.9. Id.

According to a document dated August 10, 2002 by Ula Zolet from Dunnabeck, M.G.: adjusted well to tutoring, becoming more self-confident and interested in his work as the summer proceeded. He arrived to class on time and in good humor. He had difficulty focusing during study hall although with the help of a proctor he completed his assignments . . . . [M.G.] is familiar with the basic elements of phonics but needs continued practice applying them when reading unfamiliar words . . . .

Spelling is a challenge . . . he has difficulty working within the Simultaneous Oral Spelling method. He needs to sound out all the phonemes in order to be successful when spelling . . . . [M.G.] enjoys to write [sic] creatively, but finds it difficult to transfer his thoughts onto paper. He can write basic paragraphs but found writing expanded paragraphs overwhelming. He worked on sentence structure including capitalization, punctuation, and syntax. He enjoys letter writing, however, as it is not so structured as expository writing . . . . [M.G.] enjoys reading although he struggles to express verbally what he comprehends. . . . . [M.G.] completed a large amount of work this summer and should return to school in the fall with a greater level of confidence . . . .


According to Dunnabeck's recommendations: [M.G.] should continue to receive remedial instruction by a trained Orton-Gillingham tutor. The Orton-Gillingham Approach follows a systematic and sequential introduction of sound-symbol relationships and promotes greater phonological awareness. These language concepts are taught using multi-sensory techniques in order to strengthen visual and auditory memory for language. He has benefitted from one-on-one supportive tutoring using this approach.

[M.G.] should continue using the cursive writing skills that have been established over the summer. He should continue to use cursive in all his written work. Under no circumstances should he be permitted to revert to printing. Consistent, legible cursive writing is the key kinesthetic element of the Orton-Gillingham Approach and necessary for reinforcing reading and spelling concepts and communicating knowledge.

A daily period should be set aside for practice reading aloud.

Before [M.G.] starts to write, either by hand or on the computer, he should create a scratch outline, web, or map . . . .

[M.G.] may need a quiet, distraction-free environment in which to take tests.

We recommend that a specific time and quiet place be set aside each day for completing homework and that [M.G.] might benefit from a homework tutor.

P. Ex. H.

5. 2002-2003 Fourth Grade

On August 29, 2002 and September 18, 2002, M.G. underwent a psycho-educational evaluation by Read. D. Ex. 11. Read found that M.G.'s "current evaluation shows cognitive and academic profiles that are consistent with phonological dyslexia" and that he likely had "multiple deficits in the essential psycho-linguistic abilities necessary for the development of reading and writing skills. Specifically [M.G.] demonstrates significant difficulties with phonemic awareness and manipulation, short-term and working memory, cognitive speed/fluency, on-demand associative recall and rapid naming." Id. Read further indicated that despite the "instructional energy": focused on [M.G.'s] educational program over the past few years . . . . there appears to be a persistence of concerns about [M.G.'s] rate of progress in essential reading and writing skills. [M.G.'s] parents are worried (not unjustifiably) about what they perceive as a growing gap between [M.G.'s] independent competence in literary skills v. the increasing demands of the regular curriculum.

D. Ex. 11. Read concluded that "in light of his current cognitive and academic profiles" M.G.'s "educational program needs to undergo a qualitative shift in structure and methodology." Id.

Read made extensive recommendations regarding reading, written language, and mathematics and set forth "general instructional considerations". Id. Specifically, Read recommended that M.G.'s reading instruction be "carefully structured and 'code-emphasis' in nature" and that any program "should be multisensory in design - - based upon the principles of Orton-Gillingham - - with input coupled with visual and auditory modalities." Id. In her report,

Read identified materials she believed would help M.G. improve his reading and writing, including the "Language!" program, which, she explained, would "ensure the integration of [M.G.'s] phonological and linguistic foundation . . . into the basic skills for reading and writing, and then through to comprehension and written expression." Id. Read also recommended "Speed Drills for Decoding Automaticity", "Making Words", the "Glass Analysis Decoding" program, "The Phonological Awareness Profile", and "Magnetic Poetry or Magnetic Poetry for Kids". Id.

On October 25, 2002, the CSE convened to incorporate the recommendations from Read's report into M.G.'s 2002-2003 IEP. T. 178, D. Ex. 9. Read participated in the CSE meeting via telephone. T. 726. Young testified that the CSE "went over [Read's] suggestions and evaluations and we did talk about the fact that since we would be using a Language curriculum, which at that point we were just beginning, that we probably would need fluency goals and objectives." T. 100-01. Young stated that the CSE set goals and objectives for comprehension, fluency, and phonemic awareness.*fn10 T. 45.

Young testified that no one at the meeting disagreed with Read's findings or recommendations and that M.G.'s mother "was strongly recommending [the Language! program]". T. 39, 41. Mr. Gavrity testified that although Read recommended approximately fifteen programs for M.G., the District only purchased and utilized the Language! program. T. 871-72. Mr. Gavrity stated that none of the recommendations in the audiological evaluations were implemented to help M.G.'s auditory processing. T. 728.

Young testified that the District purchased the Language! program and she used its curriculum with M.G. from that point forward. T. 41-42. Young stated that although she had no classroom hours or credentials in any Orton-Gillingham program, she was trained in the Language! program and had used the multi-sensory reading approach in the prior language arts classes. T. 95, 96.*fn11 Young explained that the Language! curriculum was a "systematic sequential program. It is based on mastery. It teaches phonemic awareness, writing, reading using word programs. It is diagnostic in that you can see what a student needs and help him develop in those areas." T. 42. Young stated that it was a "multi-sensory program in that all the senses are used. Spelling connects to reading . . . . The phonemic awareness has some hand signals that are used to sweep the words." T. 43. Young stated that the Language! curriculum was comprehensive and included lesson plans. T. 97. Young testified that they "had daily fluency drills, both phonetic and non-phonetic in each unit" as well as "timed readings and . . . phonemic awareness drills each day for 10 to 15 minutes." T. 46. Young explained that in the Language! program, "whatever the mastery skill was that you were working on that to move on, you would have to meet that 85 percent mastery." T. 103.

Young testified that during the time she worked with M.G., he "was making progress. He didn't progress in every point, but he was making satisfactory progress." T. 48. Young stated that she "would have hoped he would have made more progress," but that Read had warned her, based on M.G.'s dyslexia and test results, that "[in a year] perhaps we could expect three to four months progress." T. 54-55. Young testified that she had no concerns about the Language! program and expected to use it again. T. 54.

Mr. Gavrity stated that he met with Young most months during the school year and she gave him "an overview of how [M.G.] was doing in class and how things were progressing." T. 852.

6. Fourth Grade Progress

According to his fourth grade "Quarter 1" report, M.G.'s progress in language arts, including reading, writing, speaking, and listening, was "satisfactory" or "better than satisfactory" most areas. D. Ex. 4. His ability "to summarize", recognize the "main idea", and "to work independently", however, was "less than satisfactory". Id. The report indicated that M.G.'s "ability to express himself in creative writing has increased. Support is necessary for summarization and finding the main idea. [M.G.] has demonstrated correct spelling usage in his writing of previous spelling words." Id. In math, science, social studies, art, and music, M.G.'s progress ranged from satisfactory to outstanding. Id. In the category of "deportment", including the areas of self-discipline, respect toward others, behavior "in hallways, play ground, and cafeteria", M.G.'s progress ranged between satisfactory and outstanding. Id. In the area of showing "appropriate emotional control" M.G.'s progress was "S-/S", meaning "less than satisfactory/satisfactory". Id.

M.G.'s fourth grade "Quarter 2" report indicated that his progress in language arts ranged from "satisfactory" to "better than satisfactory". Id. M.G.'s Quarter 3 report in the area of language arts indicated that M.G.'s progress was generally "satisfactory". Id. His ability to summarize, "discuss important details" and "use class[] time productively", however, was "less than satisfactory". Id. In math, science, social studies, deportment, art and music, M.G.'s progress ranged between "satisfactory" and "outstanding". Id.

According to the progress reports, by the fourth quarter, M.G. was "not progressing as expected" in the areas of phonetic fluency and non-phonetic fluency, but his reading skills were "emerging" and he was "progressing satisfactorily" in his "ability to use appropriate expression and voice inflection in his reading of connected text" as well as his "independent use of strategies to decode unknown words, syllabication, word families, phonemic knowledge, prefixes and suffixes and context clues." D. Ex. 5.

In an undated letter, Martha Raftery, M.G.'s fourth grade classroom teacher, wrote that

M.G. has "demonstrated competence" in math and social studies, but to "complete class work", M.G. "requires a high level of support from the special education teacher." D. Ex. 7. Raftery reported that M.G. has "a small group of loyal friends", gets along with classmates, and often works with his classmates on projects. Id. Raftery further stated that M.G.'s classroom participation is improving and that his "work shows that he is capable of completing the class work with assistance." Id.

In February 2003, reading teacher Amy Brandoline administered "the Fox In the Box" standardized assessment to M.G. D. Ex. 8. Brandoline reported that M.G. "read 85 words correctly, which is an increase of ten from last year. He read these much more quickly than before. He rarely stopped to sound out a word." Id. M.G. was able to "read 44 real words, and 22 [pseudo] words. Both had decreased by one from last year. However, he was much faster than previously. He didn't need to sound out every word." Id. Regarding reading accuracy, the report indicated that M.G. "benchmarked on the level 4 (end of grade 1) book". Id. M.G. "scored well in comprehension at all levels. He was able to retell the stories and answer literal, inferential, and critical questions." Id.

In a letter dated April 3, 2003, Frederick Ruhe, science teacher, wrote that M.G. was "an interested, usually enthusiastic student. He has little difficulty understanding concepts presented and makes effective use of his time in class. [M.G.] works well in group situations or on an individual basis. On occasion he needs redirection but, in general is an active and engaged participant." D. Ex. 7.

7. Preparation for 2003-2004 Fifth Grade

In a letter to Mullen dated March 30, 2003, plaintiffs requested that M.G. "attend the Kildonan School, in Amenia, N.Y. next year as an out of district placement" and that "this placement be funded by the school district." D. Ex. 19. Plaintiffs also requested that the District provide transportation for M.G. to and from Kildonan. Id. Mullen testified that she was aware, prior to learning that plaintiffs planned to enroll M.G. in Kildonan, that they were not pleased with M.G.'s progress and felt that his grade levels should have been higher. T. 190.

In a letter to plaintiffs dated March 31, 2003, Mullen advised that the CSE planned to meet on May 13, 2003 to review plaintiffs' request for special education services for M.G. D. Ex. 16.

In a letter to plaintiffs dated April 16, 2003, Superintendent Gabriel wrote to outline the provisions made for M.G. in response to the CSE's recommendations, including the purchase and implementation of the Language! program recommended by Barbara Read, testing accommodations, counseling, and small group instruction. D. Ex. 19. Superintendent Gabriel also advised plaintiffs that because the Kildonan School is not approved by the New York State Education Department, it was "not an option for any of our students." Id.

As part of the annual review process, on May 8, 2003, M.G. underwent a psycho-educational evaluation by Thomas Evers, MS/CAS. D. Ex. 6. Evers characterized M.G.'s overall behavior during the assessment as "industrious, pleasant and cooperative." Id. Evers reported M.G.'s scores on the TOWRE in sight word efficiency indicated a grade equivalence level of 2.0 and a grade equivalence level of 2.6 in phonemic decoding. Id. Evers also administered a Piers'-Harris Children's Self Concept Scale, and stated that "[w]ith respect to his total score" M.G. "reported a general and positive sense of self-concept and self-esteem." Id.

a. June 5, 2003 CSE Meeting

The CSE met on June 5, 2003, to discuss the 2003-2004 IEP. Mullen testified that CSE members reviewed M.G.'s progress notes, report cards, teacher comments, special education teacher testing, and school psychologist testing, and performed observations in order to ascertain M.G.'s "present levels of performance" and needs in the economic, social, physical, and management areas. T. 199.

Young testified that in order to aid in the development of M.G.'s IEP, she conducted testing, interviewed M.G.'s teachers, and met with plaintiffs three times. T. 55. Young stated that at the meeting, everyone who had worked with M.G. brought their reports and the CSE "discussed [M.G.'s] progress through the year." T. 56.

Mullen testified that the CSE planned to continue to use the Language! program and follow Read's recommendations regarding special education services, program modifications, and testing modifications. T. 199. Mullen testified that Young felt M.G. was "moving through quite nicely." T. 201. Mullen stated that "during that meeting people felt that there was progress being made. It was not progress that was year long, but . . . Barbara Read also had indicated that progress was going to be slow because you were going back to teaching the basics" of reading, spelling, and writing. T. 200.

Mullen stated that plaintiffs always offered "a lot of input" during the CSE meetings that they discussed their concerns about M.G.'s emotional condition. T. 201. Mullen testified that plaintiffs were concerned about the amount of time M.G. was spending outside the classroom and she explained to them that to implement the Language! program in a small group or one-on-one setting, as Read recommended, M.G. had to be pulled out of the classroom. T. 202. Mullen stated that during the meeting plaintiffs informed the CSE that M.G. would be attending Kildonan for the 2003-2004 school year. T. 203.

According to Mr. Gavrity, plaintiffs objected to the IEP because they felt it was "not going to meet his needs. He wasn't going to learn under their system. They had been working with him for five years and he had limited progress throughout." T. 784.

In a letter dated June 6, 2003, plaintiffs informed Superintendent Gabriel that they were rejecting the CSE's proposed placement and sending M.G. to Kildonan for the 2003-2004 school year, and would seek reimbursement from the District for M.G.'s Kildonan tuition and transportation costs. P. Ex. J.

After the June 5, 2003 meeting, Superintendent Gabriel asked Young to review the goals and objectives in the IEP "and to . . . tighten them up a bit and make them more curriculum- based." T. 57. Young "went back to the [Language!] curriculum . . . . looked at what [M.G.] would be expected to master" and broke the goals and objectives "down into quarters so that there would be a clear picture of what was expected of [M.G.] to master quarterly." Id. For example, Young testified:

[M.G.] still had not gotten to the point where we had hoped for him to be so I included goals and objectives for not only reading accuracy, but rate of speed per minute and that was the first goal.

[M.G.] needed to learn prefixes and suffixes so that was included as a goal . . . . I broke them down into what the curriculum set forth for each unit of study. In other words, I was specific in the fact that, for instance, he would use suffixes e-d, i-n-g, s, apostrophe s, e-s, e-r, e-s-t and e-n. So each quarter then I could test him and it would be very clear to both Parents and to the Committee that he did indeed either accomplish that objective or did not. Those would be - - I would use 30 words specifically that had those suffixes on them.

T. 62-63.

In a letter to M.G.'s mother dated July 18, 2003, Superintendent Gabriel advised that because Kildonan "has not been approved by the Commissioner of the New York State Education Department to provide special education and related services to children with disabilities in New York", it had no authority to place M.G. there. D. Ex. 19. Superintendent Gabriel further advised, citing New York State Education law § 4402(4)(d), that the District could only provide transportation to Kildonan "if the CSE determines that the private school where the student will receive special education offers substantially similar services to those offered by the Committee on Special Education." Id.

In a letter to Mullen dated August 13, 2003, plaintiffs rejected the CSE's proposed placement and advised that they intended to enroll M.G. at the Kildonan School for the 2003-2004 school year at public expense. Id. Plaintiffs stated that they felt "the Language Arts Class is not an appropriate intervention, as it has not provided meaningful educational benefit over the past year" and that M.G. was "entering 5th grade reading at a 2nd grade level." Id. Plaintiffs further wrote:

The school's response to [M.G.'s] lack of progress is to pull him out of the regular education curriculum for greater amounts of time by increasing his services to include resource room. This further isolates [M.G.] from his peers. This feeling of isolation in combination with his learning disabilities has lead [sic] to a great deal of frustration and lowering of his self esteem in regard to school work and the school environment. These issues overflow into his home life, and we have spent many days with him crying for 2-3 hours and stating that he is "stupid" after a particularly tough day at school or an incident that arose out of his frustration in this learning environment.

Id. Plaintiffs again requested that the District provide "daily round trip transportation for [M.G.] to the Kildonan School". Id.

In a letter to plaintiffs dated August 15, 2003, Mullen wrote that Superintendent Gabriel "had asked me to schedule a CSE meeting to review your request for transportation for [M.G.]", a CSE meeting was scheduled for August 25, 2003, and that the CSE would "also address the concerns you raise in your letter". Id.

b. August 25, 2003 CSE Meeting

All CSE members, except special education teacher Young, attended the August 25, 2003 meeting. Mr. Gavrity stated that because Young not there, they "couldn't question her on what changes she was going to be making to the goals and objectives, what strategy changes she was going to be making, what criteria she was going to be using to monitor his progress." T. 792.

According to Mullen, plaintiffs again stated that M.G. was not progressing adequately. T. 218-219. Mullen responded that because the District had been implementing the Language! program for approximately seven months, not enough time had passed to determine whether the program was working. T. 219. Mullen testified that because plaintiffs were "still concerned about [M.G.'s] lack of progress . . . we wanted to make sure that the goals were really portraying the progress in the Language! [c]urriculum." T. 209. Mullen stated that after the meeting, she asked Young to make sure the objectives in the IEP "were clear about what was actually being taught in that curriculum through the goals and objectives." Id.

Mullen stated that at the meeting, the CSE learned of plaintiffs' belief that the District had not responded adequately to M.G.'s emotional issues, i.e., crying, outbursts, and frustration. T. 234. Mullen testified that the CSE was concerned about M.G.'s emotional issues, which they believed were "due to his academics". Id. Mullen stated that the CSE offered counseling, a functional behavioral assessment, and a psychiatric evaluation. T. 235-36. Mullen testified that plaintiffs responded that they had spoken with M.G.'s pediatrician about his emotional issues and they did not want to pursue the CSE's offers at that point. T. 236.

Mullen stated that she gave plaintiffs the "opportunity to call and ask us or meet with Mrs. Young after the fact if they had any questions regarding that IEP." T. 300.

In a letter to plaintiffs dated August 29, 2003, Mullen wrote that the CSE revised M.G.'s 2003-2004 IEP to address the emotional issues plaintiffs had described and "to better define the specifics of the special education instruction he would have received if he returned to the District." D. Ex. 3. Mullen wrote that based on plaintiffs' concerns, the CSE recommended that

M.G. undergo a psychiatric evaluation and functional behavioral assessment so that the District could "construct a behavioral plan, if needed." Id. Mullen advised plaintiffs that in response to their concerns about M.G.'s reading program, she had "Sandy Young, draft specific goals and objectives, as discussed at the meeting, that track the curriculum she has been using with him." Id. Finally, Mullen informed plaintiffs that the CSE considered and denied their request for transportation to Kildonan "based on its determination that the Kildonan School, which provides small group instruction exclusively to students who are disabled, is not similar to the program recommended by the District." Id.

Mullen testified that the CSE denied plaintiffs' transportation request because the statute required the programs be similar before a District could cover transportation costs and the CSE found that Kildonan, which was self-contained, and District's program, which recommended that

M.G. stay in mainstream education, were different. T. 256.

In a letter to Mullen dated September 2, 2003, plaintiffs stated that M.G. would be attending Kildonan for the 2003-2004 school year. D. Ex. 2. Plaintiffs stated they were "surprised" with the content of Mullen's letter because "[a]t no time during the CSE meeting" were they asked for "consent to conduct a functional behavioral assessment or psychiatric evaluation." Id. Plaintiffs attached "the signed consent form" to their letter and requested that the

District provide copies of "the tests that will be administered and the reasons for these tests." P. Ex. P.

8. 2003-2004 IEP

The 2003-2004 IEP classifies M.G. as having a learning disability. D. Ex. 3. The IEP reports M.G.'s April 12, 2003 WIAT testing results: basic reading score "SS 82, grade level 2.4"; spelling "SS 90, grade level 3.6"; reading comprehension "SS 89, grade level 3.1"; listening comprehension "SS 116, grade level 7.9"; and written expression "SS 96, grade level 3.9". Id.

The IEP also reported M.G.'s May 2003 Test of Word Reading Efficiency (TOWRE) results: "Sight word efficiency, SS 77, grade level 2.0; Phonemic decoding efficiency, SS 89, grade level, 2.6. Total word reading efficiency standard score - 80." Id.

The IEP stated that M.G. needs: "to continue to develop decoding skills to enhance spelling, automaticity, fluency and reading comprehension"; "encouragement to tackle unfamiliar words"; and "assistance in understanding word problems in math". Id.

The IEP recommended that M.G.: be placed in a special language arts class five times per week for 60 minutes per day; receive resource room services five time per week, for 40 minutes per day; and receive consultant teacher services in science and social studies class twice per week and services from a teaching assistant in science and social studies on the remaining three days of the week. Id. Regarding removal from the general education environment, the IEP explained that M.G. required "individualized and intensive instruction in a separate location as well as opportunities for preview and repetition of key concepts in science and social studies". Id.

The IEP recommended that M.G. receive certain program modifications, accommodations, and supplementary aids and services, including: testing accommodations; study guides for science and social studies; "organizers for all writing assignments in social studies and science"; simplification and clarification of directions from teachers; assistance with comprehension of questions involving math word problems; "several exposures and extra examples when introducing new concepts"; small group discussions involving assigned reading; quiet time to regain control when needed; books on tape for home use; preferential seating; modification of homework assignments; outlines and visual cues in all classes; and parent conferences with consultant and homeroom teacher. Id.

Attached to the IEP are fourteen pages of annual goals and objectives or benchmarks related to reading and writing, including criteria, procedures, and schedule for completion. Id. For example, the first goal states: "Given a text at his instructional level and one minute to read, [M.G.] will read with 90% accuracy and at a rate of 100 wpm." The objective indicates 90% means a rate of 70-75 words per minute. The procedure ...

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