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A.J. v. Board of Education

January 8, 2010

A.J., BY HIS PARENTS AND NATURAL GUARDIANS, C.L.J. AND C.J., AND C.L.J. AND C.J., INDIVIDUALLY, PLAINTIFFS,
v.
BOARD OF EDUCATION, EAST ISLIP UNION FREE SCHOOL DISTRICT, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiffs C.L.J. and C.J. (collectively, "Plaintiffs") bring this action on behalf of their son, A.J., pursuant to the Individual with Disabilities Education Act (the "IDEA"), 20 U.S.C. § 1400 et seq., seeking review of a denial of educational benefits. The defendant Board of Education, East Islip Union Free School District (the "District") determined that A.J. did not qualify for benefits under the IDEA and, on administrative review, an Impartial Hearing Officer ("IHO") and a State Review Officer ("SRO") agreed. The District moves for an Order pursuant to 20 U.S.C. § 1415(i)(2)(c)(iii) dismissing Plaintiffs' Complaint. For the reasons that follow, the District's motion is granted and the Complaint is dismissed.

BACKGROUND

The material facts, drawn from the Complaint, the parties' Local 56.1 Statements,*fn1 and the record below, are undisputed unless otherwise noted.

I. A.J's Request for Disability Classification is Denied by the District

A.J. is presently an elementary school student in the District. During the 2004-2005 school year, A.J. attended his first year of preschool in the District. Having noted significant delays in A.J.'s fine motor and social emotional functioning, the District's Committee of Preschool Special Education ("CPSE") determined that A.J. met the criteria for classification as a preschool student with a disability. A.J. received occupational therapy two times per week at a sensory integrated gym, and special education services in his classroom.

In May 2005, the District's CPSE determined that A.J. would not be eligible to receive preschool special education services for the 2005-2006 school year due to teacher reports of steady progress and because he had reached kindergarten age. Nonetheless, Plaintiffs decided to keep A.J. in preschool for the 2005-2006 school year at their own expense. A.J. attended the same preschool he had attended during the previous year with the same teachers, but he attended as a regular education student and not as a preschool student with a disability.

According to A.J.'s mother, A.J. began to "fall apart" as a regular education student during the 2005-2006 school year. On January 20, 2006, A.J.'s mother attended a parent-teacher conference where A.J.'s teachers reportedly indicated that A.J. was "fine" academically, but that his behavior was disruptive, compulsive and all-consuming. In February 2006, Plaintiffs referred A.J. to the District's Committee on Special Education ("CSE") for an evaluation, citing concerns regarding his socialization behaviors. Thereafter, a school psychologist completed a parent-initiated CSE referral for A.J. Based upon the psychologist's conversation with Enid Herbert ("Herbert"), A.J.'s classroom teacher, the psychologist wrote on the referral form that A.J. "does well academically [but] has difficulty socializing with peers." (Dist. Ex. 28.)

In May 2006, the District's CSE met to determine A.J.'s eligibility for special education and determined that A.J. was ineligible for such services because he did not evidence a disability, noting that "[t]he classroom teacher reports that [A.J.] is making steady progress." (Dist. Ex. 3.) The CSE reconvened in June 2006 to consider some additional evidence proffered by Plaintiffs and again determined that A.J. did "not evidence a handicapping condition." (Dist. Ex. 4.) The CSE indicated that it would meet on or before October 19, 2006 to review A.J.'s progress in kindergarten. (Dist. Ex. 3.)

In reaching its decisions, the CSE reviewed several reports submitted by Plaintiffs, including: (1) three medical evaluations diagnosing A.J. with Asperger's Disorder on the Autism spectrum ("Asperger's") and Attention Deficit Hyperactivity Disorder ("ADHD"); (2) an April 2006 report from A.J.'s private behavioral doctor indicating that A.J. "will require services when he enters school in September 2006, most significantly services that support development of pragmatic social skills" (Dist. Ex. 14); and (3) a May 2006 progress report from A.J.'s private occupational therapist indicating that A.J. had "serious social issues that need consistent intervention." (Dist. Ex 11.) The CSE also reviewed several evaluations of A.J. conducted by District personnel, including: (1) a March 2006 classroom observation report by Rose Mary Curtin ("Curtin"), a special education teacher, which notes that A.J. "exhibited inappropriate behaviors and required frequent redirection. His interactions with his peers were often inappropriate" (Dist. Ex. 8); (2) a March 2006 speech evaluation report finding that A.J. "exhibited above average skills in overall language development" (Dist. Ex. 5); (3) a March 2006 school psychologist report indicating that A.J. functioned within the average range and had average verbal and nonverbal abilities (Dist. Ex. 6); and (4) a March 2006 education evaluation finding that A.J. "does well academically but has difficulty socializing with his peers. (Dist. Ex. 7.)

II. Plaintiffs' Request for an Impartial Hearing and the IHO Decision

On July 26, 2006, Plaintiffs filed a request for an impartial hearing, arguing that their private evaluations supported a classification of Autism based on Asperger's and also supported their son's need for special education services. Plaintiffs disputed the findings reached by the May 2006 and June 2006 CSEs and requested reimbursement for privately obtained occupational therapy and counseling.

An impartial hearing convened on September 28, 2006, and after eight days of testimony concluded on October 25, 2006. A.J.'s mother testified that her son's behavior deteriorated during the 2005-2006 school year, and that the 2006-2007 school year proved thus far to be much of the same. She testified that A.J. started hitting others, using inappropriate language, and required frequent redirection.

A.J.'s kindergarten teacher for the 2006-2007 school year testified that A.J. had excellent work habits and was happy to be in the classroom. She also testified that A.J. had exhibited some inappropriate behaviors such as touching another child, saying unkind words, and throwing things. However, she stated that these behaviors are not unique to A.J. and that she could adequately deal with these behaviors in class.

Curtin, a special education teacher who had performed a March 2006 classroom observation, also testified. She stated that A.J.'s behavior did not negatively affect the other students and that while there was room for improvement, it was nothing the classroom teacher could not handle.

Dr. Monica Deschryver, a recently retired psychologist, testified that she observed A.J. in the classroom and that he demonstrated impulsive and hyperactive behavior, yet at no point did the teacher lose control over the classroom.*fn2

By decision dated November 16, 2006, the IHO denied Plaintiffs' request for relief, finding that Plaintiffs failed to meet their burden of establishing that the District erred in determining that A.J. should not be classified as a child with Autism. Although the evaluations submitted by Plaintiffs supported a diagnosis of Asperger's on the Autism spectrum, the IHO nonetheless found that A.J. was not eligible for special educations services, explaining:

Assuming arguendo that the reported behaviors are an established fact, we have to look at the criteria for autism under the Commissioner's regulations:

1) the student must display characteristic symptoms of the condition and

2) It must be established that the condition adversely affects a student's educational performance. (J.D. v. Pawling School District, 224 F.3d 60 (2d Cir. 2000)

It is the second prong that the District relies upon and the part the Parent must sustain. The question before us is whether the described behaviors severely impact and impede the child's ability to learn. Clearly they do not since [A.J.] is progressing well academically. It is the District's contention that his behavior does not impede his ability to learn, and I concur with that conclusion. The District evaluators in Exhibits 5, 6, 7, and 8 determined that [A.J.'s] behavior did not rise to the level of severe, or serve as an impediment to his learning. . . .

The child's classroom teacher, who spends a full day in the Kindergarten class with the student, testified that his behavioral symptoms do[] not rise to a level that would qualify him for classification under the regulations and that his academics do not suffer in any respect. She perhaps occupies the best vantage point from which to make that judgment. That determination was also corroborated by the Parent rebuttal witness who testified that the child's ...


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