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Schreiber v. East Ramapo Central School District

March 31, 2010

PHILIP AND DARYL SCHREIBER, AS PARENTS OF DISABLED CHILD, S.S., PLAINTIFFS,
v.
EAST RAMAPO CENTRAL SCHOOL DISTRICT AND SUPERINTENDENT MITCHELL J. SCHWARTZ, IN HIS INDIVIDUAL OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Kenneth M. Karas, District Judge

OPINION AND ORDER

Plaintiffs Philip and Daryl Schreiber ("Parents" or "Plaintiffs") are the parents of S.S., a child classified in 2004 as learning disabled by Defendant East Ramapo Central School District (the "District"). Parents brought this action against the District and against Defendant Mitchell J. Schwartz ("Schwartz"), in his "individual official capacity" as Superintendent of the District, pursuant to the Individuals with Disabilities Act, 20 U.S.C. § 1400 et seq. ("IDEA"), seeking review of three State Review Officer ("SRO") decisions regarding reimbursement for tuition they paid for S.S. to attend the Yeshiva of New Jersey, Bergen County ("YNJ") for the 2004-05, 2005-06, and 2006--07 school years. Parents also assert entitlement to compensatory relief for alleged discrimination, pursuant to 42 U.S.C. § 1983 ("§ 1983") and § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 ("§ 504"), as well as to reasonable attorneys' fees.

Parents have moved for summary judgment on all of their claims. Defendants have also moved for summary judgment on all of Parents' claims. For the reasons set forth below, Parents' Motion for Summary Judgment is denied, and Defendants' Motion for Summary Judgment is granted.

I. Background

A. Statutory Background

To put the factual background into context, the Court briefly notes the relevant statutory framework of the IDEA. Under the IDEA, states receiving federal funds are required to provide a free appropriate public education ("FAPE") to "all children with disabilities." 20 U.S.C. § 1412(a)(1)(A); see also Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 179 (1982). To meet this obligation, school districts within a state must provide "special education and related services tailored to meet the unique needs of a particular child, [which are] 'reasonably calculated to enable the child to receive educational benefits.'" Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 207) (internal quotation marks and citation omitted). These services must be administered in accordance with an Individualized Education Plan ("IEP"), which school districts must have in place at the start of each school year. See 20 U.S.C. § 1414(d)(2)(A).

In New York, if a parent disagrees with an IEP prepared by a school district, the parent may challenge the IEP by requesting an "[i]mpartial due process hearing," 20 U.S.C. § 1415(f), before an impartial hearing officer ("IHO") appointed by a local board of education, see N.Y. Educ. Law § 4404(1)(a). The resulting decision may be appealed to a SRO, see N.Y. Educ. Law § 4404(2); see also 20 U.S.C. § 1415(g), and the SRO's decision may be challenged in either state or federal court, see 20 U.S.C. § 1415(i)(2)(A). Also, "[i]f parents believe that [the school district] has failed [to provide a FAPE], they may, at their own financial risk, enroll the child in a private school and seek retroactive reimbursement for the cost of the private school from the [district]." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 (2d Cir. 2007).

B. Factual Background

1. S.S.'s Early Childhood Classification as Learning Disabled

Parents first requested that the District evaluate S.S. for special education services in March 1997, when S.S. was pre-school aged. (Pls.' Statement of Material Facts ("Pls.' Years 1 & 2 56.1 Stmt.") ¶ 2; Defs.' Reply Statement of Material Facts ("Defs.' Years 1 & 2 56.1 Reply") ¶ 2.)*fn1 A state-approved evaluation center recommended that the District provide S.S. with special services. (Pls.' Years 1 & 2 56.1 Stmt. ¶ 4.) The District's Committee on Preschool Special Education ("CPSE") subsequently classified S.S. as disabled and created an IEP to address S.S.'s needs. (Id. ¶ 7.) The IEP recommended occupational therapy once a week. (Defs.' Statement of Material Facts Pursuant to Local Rule 56.1 ("Defs.' 56.1 Stmt.") ¶ 24.) Parents declined to place S.S. in one of the District's schools, instead enrolling her for pre- kindergarten in Ashar, a nonpublic yeshiva school, for the 1997-98 school year. (Pls.' Years 1 & 2 56.1 Stmt. ¶ 8.) The District provided S.S. with weekly occupational therapy. (Id.)

The District's records show that on June 16, 1998, prior to the start of the 1998-99 school year, S.S. was declassified as disabled at Parents' request. (Defs.' 56.1 Stmt. ¶¶ 25-27; Defs.' Impartial Hearing I ("IH I") Ex. 12.) In fact, a form from the CPSE indicates that one of S.S.'s parents signed the form noting his or her disagreement with the CPSE recommendation to refer S.S. to a Committee on Special Education ("CSE") for kindergarten. (Defs.' IH I Ex. 12.) The form also has a handwritten note reflecting that S.S. was declassified as per "parent request." (Id.) Parents refute the District's contention that S.S. was "declassified" at their request (Pls.' Aff. ¶ 4), contending that they signed the form to indicate their disagreement with the District's recommended services, and to discontinue the weekly occupational therapy, not to declassify S.S. (IH I Tr. 718-20 (Test. of Daryl Schreiber ("D. Schreiber").) According to Parents, "no notice [was given] to [them]" that S.S. had been "'declassified' or terminated from special education eligibility." (Pls.' Aff. ¶ 4.) The District presented evidence that a representative explicitly notified Parents that "without [their] consent to" a CSE meeting, S.S. would not get services.*fn2

(IH I Tr. 1005, 1008-09, 1012-13 (Test. of Marlene Slackman).) Consistent with the District's view, from the 1998-99 school year through the 2000-01 school year, "no services were provided [to S.S. by the District] and no . . . contacts were undertaken" between the Parties. (Pls.' Aff. ¶ 4; IH I Tr. 271-72, 276-77 (D. Schreiber).) During that time, Parents enrolled S.S. in the Yeshiva of Spring Valley ("YSV"), a nonpublic yeshiva school,for kindergarten, first grade, and second grade (IH I Tr. 268, 682), and there is no record of them following up with the District to pursue CSE review or any special education services.

2. Evaluation of S.S. During the 2001-02 School Year

In June 2001, prior to S.S. beginning third grade, Parents requested that S.S. be evaluated for special education services by YSV. (Pls.' Years 1 & 2 56.1 Stmt. ¶ 21.) YSV referred S.S. to the District for an evaluation. (Id.) The document containing the educational evaluation noted that S.S. was "referred for an educational evaluation because she [was] having some academic difficulty."*fn3 (Pls.' IH I Ex. B, at 1.) There is no suggestion that the District was told that S.S, was viewed as being disabled or was being referred to the CSE. In any event, the educational evaluation showed that S.S. lagged in "spelling, written expressive language and vocabulary," and that she exhibited "[m]ore significant lags . . . in silent reading comprehension." (Id. at 3.) The evaluation also stated that S.S. had "above grade level skills in reading recognition, phonics, and reading comprehension and listening comprehension," as well as "grade appropriate skills" in "math computation." (Id.) A separate psychological evaluation revealed that S.S. had a "sense of lowered self esteem." (Pls.' IH I Ex. A, at 3.) Both the educational and psychological evaluations included recommendations to improve S.S.'s reading comprehension and written expressive language skills. (Id. at 4; Pls.' IH I Ex. B, at 3.) Specifically, the educational evaluation recommended "remedial reading instruction" and practice in certain comprehension skills. (Pls.' IH I Ex. B, at 3.) No recommendation was made that S.S. was disabled or that S.S. be referred to the CSE.

After the evaluations were completed, the District did not conduct a CSE meeting to develop an IEP for the 2001-02 school year. (Pls.' Aff. ¶ 9; Pls.' Years 1 & 2 56.1 Stmt. ¶ 26.) Parents claim that they requested a referral to the CSE (Pls.' Aff. ¶ 6), but offer no documentation to support this assertion. Instead, Parents suggest that the results of the psychological report and the educational evaluation themselves demonstrate the need for referral to the CSE. However, the psychological report notes that the educational testing evaluation "indicated age appropriate functioning except in silent reading and written language areas." (Pls.' IH I Ex. A, at 2.) The ultimate conclusion of the psychologist was that S.S. was a "second grader currently functioning in the lower portion of the average range intellectually. Verbal comprehension and auditory attention were average while perceptual organization was low average. Moderate deficits were noted in visual sequencing and visual synthesis which appear to depress reading comprehension." (Id. at 3.) There is no indication in either the psychological report or the educational evaluation that S.S. was viewed as disabled, and Parents have failed to demonstrate that they, YSU, or the private evaluators requested a CSE. Indeed, the record contains not a single letter from Parents expressing concern about why the District had not referred S.S. to a CSE or why no IEP was proposed for S.S. Instead, Parents thereafter removed S.S. from YSV and enrolled her in another private yeshiva school, Ateres, for third grade, fourth grade, and fifth grade. (Pls.' Years 1 & 2 56.1 Stmt. ¶ 28.) Parents appear to have not made any request during these years to have S.S. referred to the District's CSE.

3. Evaluation of S.S. During the 2004-05 School Year

In June 2004, prior to S.S. beginning sixth grade, Parents referred S.S. for a private psychoeducational evaluation because of their continuing concern about her performance in school. (Pls.' Aff. ¶ 11; IH I Tr. 290-91; Defs.' IH I Ex. 5, at 1.) A psychoeducational evaluation provided by Aliza Zucker, a school psychologist, and her supervisor, Dr. Judith Silver, showed that S.S.'s cognitive abilities were average overall, but that she exhibited significant weakness in reading and spelling. (Defs.' IH I Ex. 5, at 3, 6.) "[H]er verbal expression [was] in the [l]ow [a]verage range, evident in whole speech as well as poor word knowledge and retrieval." (Id. at 6.) While she exhibited average problem solving skills, her problem solving was "often interfered with by her language weakness." (Id. at 6-7.) S.S. also exhibited problems with spelling and with phonological processing. (Id. at 7.) "[I]t [was] more difficult for [S.S.] to perceive, break down and compose sounds and sound combinations than for other children her age." (Id.) These symptoms were all consistent with a diagnosis of dyslexia. (Id.) S.S. exhibited average overall math skills, though she did "process[] math tasks at a slower rate compared to other children her age." (Id. at 5.) Psychologically, the evaluation showed that S.S.'s "academic difficulties and negative attitude toward school are not solely attributable to her limitations in ability, but to her personality and emotional functioning as well." (Id. at 7.) S.S. demonstrated low-self esteem, a failure to recognize her personal strengths, and "feelings of helplessness." (Id.)

The evaluation recommended that S.S. be educated within a regular school setting with the addition of "an integrative resource room program," and "extended time [testing], reading assistance, and multiple choice tests." (Id.) The evaluation also suggested that S.S. "be given the opportunity to organize clubs, activities, or projects to boost self-esteem by fostering" her "strength as an organizer and a leader." (Id.) To further boost her self esteem, the evaluation recommended regular psychotherapy for S.S. (Id. at 8.) To address S.S.'s deficiencies in language, the evaluation recommended that Parents consult with a speech-language pathologist to discuss the benefits of language therapy. (Id.) The speech-language pathologist with whom Parents consulted recommended language therapy for S.S. "to address the weaknesses she presents in auditory comprehension, oral expression, reading and writing," and a "structured writing remediation program" to help S.S. with writing. (Defs.' IH I Ex. 6, at 7-8.) This evaluation, done on August 26, 2004, also noted that S.S.'s "parents are considering transferring her to [YNJ], another dual curriculum program though [S.S.] would be in a self-contained classroom." (Id. at 2.)

After the private evaluations were completed in August 2004, Parents decided to pull S.S. out of Ateres and to enroll her in the sixth grade class at YNJ, a private yeshiva school, for the 2004-05 school year. (Pls.' Aff. ¶ 16; IH I Tr. 312 (D. Schreiber).) Parents then requested a CSE meeting with the District in September 2004 and provided the District with copies of the private evaluations they had obtained. (Pls.' Aff. ¶ 15; Defs.' 56.1 Stmt. ¶ 37.) The District convened the CSE meeting on November 3, 2004. (Defs.' 56.1 Stmt. ¶ 43.) At the meeting, the CSE classified S.S. as learning disabled and developed an IEP for the 2004-05 school year. (Defs.' IH I Ex. 1, at 1; IH I Tr. 20-21 (Test. of Rosemary Bair ("Bair")).) The IEP noted that S.S.'s "significant academic deficits, particularly in reading, interfere with her ability to progress in the mainstream without support." (Defs.' IH I Ex. 1, at 2.) The IEP recommended that S.S. receive daily resource room services for forty minutes per day in a classroom with one teacher and a maximum of four other learning disabled students. (Id. at 1; IH I Tr. 23 (Bair).) The IEP also recommended that S.S. be given extended time for tests, which would be administered in a location separate from other students. (Defs.' IH I Ex. 1, at 1; IH I Tr. 23-24 (Bair).) These were the only special services recommended in the IEP to address S.S.'s needs. TheIEP included goals and objectives in the areas of study skills, reading, writing, and math. (Defs.' IH I Ex. 1, at 5-7.) The IEP did not include any social or emotional goals for S.S, instead stating that S.S. had "no social and emotional needs that should be addressed through special education at this time." (Id. at 3.) Parents were "hesitant" about the IEP, but they did not state their disagreement with the IEP at the meeting. (Defs.' 56.1 Stmt. ¶ 50; IH I Tr. 25-27 (Bair).) Parents left the meeting with the consent for services form in hand, but they did not thereafter return the form or otherwise consent. (IH I Tr. 26-27 (Bair).)

Parents did not formally object to the IEP until February 7, 2005, when they requested an impartial hearing on the IEP. (Pls.' Aff. ¶ 18; IH I Ex. 1, at 1.) Parents claimed that the November CSE meeting was procedurally inadequate because the District had failed to conduct an observation of S.S. prior to the November CSE meeting, as required by N.Y. Comp. Codes R. & Regs. tit. 8 § 200.4(b)(1)(iv), and that none of S.S.'s teachers was present at the meeting. (IH I Ex. 1, at 1.) Substantively, Parents argued that the IEP's recommended program, including its overall goals and objectives, was inappropriate for S.S. (Id. at 2.) Parents sought tuition reimbursement for S.S.'s YNJ tuition. (Id.) In response, the District prepared an updated social history, observed S.S. during her Hebrew class at YNJ, and conducted an educational evaluation of S.S. (Defs.' IH I Exs. 7, 9.) The school psychologist who observed S.S. stated that the secular studies teacher at YNJ believed S.S. was "making satisfactory academic progress," although S.S. was, at times, "reluctant to comply . . . with directions." (Defs.' IH I Ex. 7, at 1.) Similarly, the religious studies teacher reported to the District observer that S.S. was making progress and was "well-behaved" and "eagerly complie[d] and follow[ed] directions." (Id.) After observing S.S. in class, the school psychologist stated "there are questions as to whether or not this program is offering instruction in the least restrictive environment." (Id. at 4.) In the updated educational evaluation, the District's school psychologist recommended that S.S. be encouraged to read grade-level material and suggested that "[c]ontinued academic support would be . . . beneficial . . . to facilitate achievement." (Defs.' IH I Ex. 9, at 2.)

On March 17, 2005, the District convened another CSE meeting in which additional teachers, including one of S.S.'s teachers from YNJ, participated. (Defs.' IH I Ex. 2, at 4; IH I Tr. 66-67 (Bair).) The CSE ultimately proposed an IEP with a projected start of March 29, 2005 and a review date of June 23, 2006; in other words, the IEP was to cover the remainder of the 2004-05 school year and the 2005-06 school year. (Defs.' IH I Ex. 2, at 1.) The new IEP recommended the same classification, program, and placement in the resource room recommended by the November 2004 CSE, and continued to state that "no social and emotional needs . . . should be addressed through special education at this time." (Id. at 1, 3.) The new IEP stated that "[a]lthough [YNJ] feels that [S.S.] is making satisfactory progress in her current self-contained setting, after much discussion this committee feels that this setting is too restrictive to meet this student's needs." (Id. at 4.) Parents did not consent to the IEP at the meeting. (IH I Tr. 35-36 (Bair).) Instead, Parents again left the meeting with the consent form in hand, but they did not provide consent to implement the proposed IEP. (Id. at 30-31.) S.S. continued to attend YNJ throughout the 2004-05 school year. (Pls.' Aff. ¶ 41.)

4. S.S.'s 2004-05 School Year at YNJ

S.S.'s program at YNJ, a yeshiva, consisted of religious and Hebrew instruction in the morning and secular studies in the afternoon. (Defs.' 56.1 Stmt. ¶¶ 56-57.) At YNJ, S.S. was enrolled in a "transitional program" designed to help S.S. build skills that ideally would enable her to eventually be mainstreamed in a "regular classroom." (IH I Tr. 312-13 (D. Schreiber).) The transitional program is a "self-contained, skills-based program." (Defs.' 56.1 Stmt. ¶ 51.) YNJ sought to address S.S.'s needs through reading instruction in the Wilson Program - a multi-sensory reading program similar to the Orton-Gillingham method recommended in the 2004 evaluation - three times a week, one-on-one. (IH I Tr. 532, 591 (Test. of Barbara Goldstein ("Goldstein")).) To improve S.S.'s fluency, YNJ assisted S.S. with "guided reading with the teacher," as well as "individual reading time." (Id. at 540.) To address S.S.'s deficiencies in writing, YNJ used Judith Hochman's Basic Writing Skills Program in all academic courses that involved writing. (Id. at 533.) YNJ provided independent attention for S.S. to develop her vocabulary, and utilized a Target Spelling program to improve her deficiencies in spelling. (Id. at 538-39.) Both S.S.'s YNJ teachers and Parents felt that S.S. made both academic and emotional progress after attending YNJ for one school year. (Id. at 313 (D. Schreiber); id. at 541-45 (Goldstein).) Although YNJ did not offer S.S. psychological counseling, the director of the YNJ program spoke with Parents about arranging counseling for S.S. (Defs.' 56.1 Stmt. ¶ 55.)

For the 2004-05 school year, S.S. was only mainstreamed with "regular" students for morning prayers, breakfast, recess, lunch, gym, computers (once weekly), bible class (once weekly), social skills classes, and monthly community-service projects group. (IH I Tr. 528 (Goldstein); Defs.' 56.1 Stmt. ¶ 58.) During the 2004-05 school year, S.S. was not mainstreamed for any academic subjects, and she was taught in small classes comprised of no more than eight students, one teacher, and one teaching assistant. (IH I Tr. 527 (Goldstein); Defs.' 56.1 Stmt. ¶ 54.) YNJ considered mainstreaming S.S. for the 2004-05 school year for math, because the evaluations of S.S. from August 2004 showed that her math skills were on grade-level. (IH I Tr. 547, 604 (Goldstein).) Nevertheless, YNJ independently assessed S.S. for the mainstream math program and determined that she did not qualify, both because of her deficiencies in reading and because of the intensity of YNJ's mainstream math program. (Id. at 547-48, 604-06.)

5. S.S.'s 2005-06 School Year at YNJ

Parents contend that the District did not convene a meeting of the CSE to evaluate S.S.'s needs for the 2005-06 school year and that it did not prepare an IEP for S.S for that school year. (Pls.' Aff. ¶¶ 33-34.) On its face, the IEP prepared by the District at the CSE meeting on March 17, 2005 covered the end of the 2004-05 school year through the entirety of the 2005-06 school year. (Defs.' IH I Ex. 2, at 1.) Dr. Rosenshein, who was not an employee of the District and who did not participate in the CSE meeting, stated that, in his opinion, the June 2006 review date was an error because an IEP should be created for each school year. (IH I Tr. 429 (Test. of Joel S. Rosenshein ("Rosenshein")).)

Throughout the 2005-06 school year, Parents continued S.S.'s enrollment at YNJ. (Pls.' Aff. ¶ 35.) Parents claim that they felt that S.S. had made progress in the 2004-05 school year, and that they believed that she would continue to make progress in the 2005-06 school year. (Pls.' Aff. ¶ 41.) Ms. Goldstein, the head of YNJ's transitional program, testified that prior to the beginning of the 2005-06 school year, YNJ planned to place S.S. in a mainstream science class (IH I Tr. 579 (Goldstein).) Evidence not available to IHO I shows that S.S. was, in fact, mainstreamed for 7th grade science. (Impartial Hearing III ("IH III") Tr. 132 (Test. of Philip Schreiber ("P. Schreiber")); Pls.' IH III Ex. G.) Evidence suggests that S.S. was also mainstreamed once a week in writing toward the end of the 2005-06 school year. (Pls.' Aff. Ex. EE, at 4; Pls.' IH III Ex. H, at 1.) 6. S.S.'s 2006-07 Evaluation and School Year at YNJ On March 27, 2006, the District requested in a letter that Parents consent to the District reevaluating S.S. in order to "make appropriate recommendations for the coming school year." (Defs.' IH III Ex. 2.) In May 2006, Parents consented to the evaluation, to YNJ exchanging information with the District, and to the District observing S.S. in class. (Pls.' IH III Ex. I.) The District conducted its evaluation in June 2006. (Pls.' IH III Ex. H.) The evaluation showed that S.S. scored in the 7th percentile for "word reading" and had "some difficulty in sounding out many multi-syllabic words;" showed "poor knowledge of spelling rules and homophones;" had confidence in writing an essay but showed weaknesses in using "mature vocabulary words, grammar and capitalization and punctuation;" and scored in the 37th percentile for "numerical operations," showing "confidence when asked to complete math processes" but difficulty with "fractions, decimals, and simple algebraic equations." (Id. at 2.) The evaluator concluded that S.S. appeared most competent in "mathematical computations skills" and was confident about creative writing. (Id. at 1.) "Spelling, vocabulary and critical reading skills" were below grade level and specific "skills in written expressive language . . . [were] apparent weaknesses." (Id. at 3.) The evaluator recommended "small group instruction" for S.S. to address her deficits and stated that S.S. should "continue her fine work in the area of mathematical computation." (Id.)

After the evaluation, the District's school psychologist sent a letter to Parents, dated July 19, 2006, stating that Parents had a "right to refer" S.S. to the CSE and asking Parents to complete and return a referral letter. (Defs.' IH III Ex. 4.) In August 2006, Parents responded by letter, stating that no IEP was in place for 2006-07, and that they were enrolling S.S. in YNJ, and that they would "seek full tuition reimbursement and related costs" from the District. (Defs.' IH III Ex. 5.) A slew of correspondence followed between the District and Parents, in which the District accused Parents of failing to cooperate and requested that Parents consent to a CSE meeting and to providing access to YNJ's records. (Defs.' IH III Exs. 7-8.) The District eventually requested records from YNJ (Defs.' IH III Ex. 11), and later wrote another letter to Parents stating that YNJ had not yet sent any records and again asking Parents to consent to an evaluation of S.S., (Defs.' IH III Exs. 12, 13). No IEP was developed for the 2006-07 school year, and Parents again unilaterally placed S.S. at YNJ. (Rule 56.1 Statement on Pls.' Mot. for Summ. J. on Year #3 ("Pls.' Year 3 56.1 Stmt.") ¶¶ 13-14.)

Several IEPs were prepared by YNJ during the 2006-07 school year to track S.S.'s goals and progress. The IEPs stated that S.S.'s reading "improved tremendously," though she still had "difficulty with unfamiliar words." (Pls.' IH III Ex. C, at 10, 22.) By the end of the year, S.S. had completed the entire Wilson reading program and was "able to sound out most words independently." (Id. at 32.) S.S. had greater difficulty "when reading in content areas," and had difficulty retaining information. (Id. at 33.) The June 2007 IEP stated that S.S. had showed "great improvement in her understanding of social studies concepts," but that S.S. needed to review class lessons daily and to ask more questions. (Id.) S.S.'s writing also seemed to improve as her IEPs state that she was "able to organize single paragraphs without using an outline," was able to use "varied sentence structures and conjunctions" (id. at 12, 24), and was able to write a three-page social studies term paper with the help of "specific guiding questions and directions," (id. at 34). The IEPs stated that S.S. had "become more confident in her relationships with her peers" (id. at 14), was "quick to socialize" (id. at 20), and had "developed friendships with girls in the mainstream class," (id. at 35). The March 2007 IEP noted that S.S.'s behavior, which was "previously exceptional, ha[d] declined" (id. at 26), but the June 2007 IEP stated that her behavior had improved, (id. at 35). The June 2007 IEP stated that, overall, S.S. "progressed nicely both academically and socially." (Id. at 35.)

In 2006-07, S.S. was mainstreamed in math and received good marks on her mainstream classwork evaluation for math. (Pls.' IH III Ex. G; id. Ex. C, at 8.) S.S. was removed from the mainstream science class because unlike the 7th grade class, which was more hands-on, the 8th grade class involved intensive reading. (IH III Tr. 143-144 (P. Schreiber).) S.S. was not mainstreamed in any other secular academic classes besides math. (Pls.' IH III Ex. G.) S.S. continued to be mainstreamed in certain religious studies classes, such as "Prophets" and Bible studies, as well as computers and physical education. (Id.) The March 2007 religious studies IEP commented on S.S.'s performance in the mainstream classes, noting that although S.S. often forgot homework and did not follow instructions, "[w]hen supported with reviews and one-onone sessions, [S.S.] . . . is capable of doing well, even in the mainstream classes." (Pls.' IH III Ex. C,at 20.) Similarly, the November 2007 IEP for religious studies stated that S.S. interacted well with her peers "especially when grouped with her friends in the parallel eighth grade class," and that S.S. was "motivated to do well in the mainstream classes . . . and her scores reflect comprehension and review." (Id. at 30.) The IEP stated that "[S.S.] does not perform as well in the smaller classes" because she did "not review nightly[,] . . . put the appropriate effort into mastering new skills and material," or accept "all of the responsibilities of a student." (Id.)

7. Administrative Review of IEPs and the Private Placement

a. IHO I's Decision

IH I, requested by Parents on February 7, 2005, was held on five dates between July 6, 2005 and October 31, 2005. (SRO Decision No. 06-013, dated Mar. 27, 2007 ("SRO I Decision") 7.) In the impartial hearing, Parents sought reimbursement for S.S.'s tuition at YNJ for the 2004-05 and 2005-06 school years, fees related to counseling and language therapy for S.S., costs related to S.S.'s tutoring, and costs for private evaluations conducted in 2004.*fn4 (IHO Decision dated Dec. 30, 2005 ("IHO I Decision") 1.)

IHO I concluded that the November 3, 2004 and March 17, 2005 IEPs would not provide S.S. with a FAPE as required by the IDEA, but he denied all of Parents' requests for reimbursement. (Id. at 4-6.) Specifically, based on the evidence presented at the hearing, IHO I determined that "S.S. [was] in need of a program that addresse[d] her verbal needs, which focus[ed] on weakness in her verbal comprehension and associated spelling and vocabulary deficits which impede[d] her ability to express herself in writing." (Id. at 3.) IHO I concluded that the IEPs proposed by the District were inappropriate because they did not address S.S.'s needs for speech-language services, counseling, or one-on-one remedial reading. (Id. at 5.) IHO I determined that S.S. required a program that "meets S.S.'s verbal ...


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