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R.S. and S.S. O/B/O A.S v. Lakeland Central School District

March 30, 2011

R.S. AND S.S. O/B/O A.S., PLAINTIFFS,
v.
LAKELAND CENTRAL SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: John G. Koeltl, District Judge:

MEMORANDUM OPINION AND ORDER

The plaintiffs, R.S. and S.S. (the "plaintiffs"), bring this action on behalf of their son, A.S., pursuant to the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., against the Lakeland Central School District (the "District"). The plaintiffs appeal the decision of the State Review Officer ("SRO") denying their claim for reimbursement of A.S.'s tuition for Kildonan School, a private school at which they unilaterally placed A.S. for the 2007-08 school year. The SRO's decision affirmed the decision of an Impartial Hearing Officer ("IHO"). The parties have cross-moved for summary judgment. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 20 U.S.C. § 1415(i)(2)(A).

I.

"Under the IDEA, states receiving federal funds are required to provide 'all children with disabilities' a 'free appropriate public education.'" Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) [hereinafter Gagliardo II] (quoting 20 U.S.C. § 1412(a)(1)(A)); see also Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998). A free appropriate public education ("FAPE") must provide "special education and related services tailored to meet the unique needs of a particular child, and be 'reasonably calculated to enable the child to receive educational benefits.'" Walczak, 142 F.3d at 122 (quoting Bd. Of Educ. V. Rowley, 458 U.S. 176, 207 (1982) (internal quotation marks and citation omitted)). Because the IDEA expresses a "strong preference for children with disabilities to be educated, 'to the maximum extent appropriate,' together with their non-disabled peers, special education and related services must be provided in the least restrictive setting consistent with a child's needs." Id.(internal citation omitted); see also Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003).

These services are administered through a written individualized education program ("IEP"), which must be updated at least annually. Walczak, 142 F.3d at 122; see also 20 U.S.C. § 1414(d). In New York, the responsibility for developing an appropriate IEP for a child is assigned to a local Committee on Special Education ("CSE"). Walczak, 142 F.3d at 123.

Parents in New York who wish to challenge their child's IEP as insufficient under the IDEA may request an impartial due process hearing before an IHO appointed by the local board of education. Id. (citing 20 U.S.C. § 1415(f) and N.Y. Educ. Law § 4404(1)). A party may appeal the decision of the IHO to an SRO, and the SRO's decision may be challenged in either state or federal court. Id. (citing 20 U.S.C. § 1415(g), 1415(i)(2)(A) and N.Y. Educ. Law § 4404(2)).

Under the IDEA, a district court independently reviews the administrative record, along with any additional evidence presented by the parties, and must determine by a preponderance of the evidence whether the IDEA's provisions have been met.*fn1

Grim, 346 F.3d at 380; see also Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997). This independent review, however, is "by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Rowley, 458 U.S. at 206. The Court of Appeals for the Second Circuit has explained that "federal courts reviewing administrative decisions must give 'due weight' to these proceedings, mindful that the judiciary generally 'lack[s] the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.' " Gagliardo, 489 F.3d at 113 (quoting Rowley, 458 U.S. at 206, 208; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 191 (2d Cir. 2005). Deference to the decision in the administrative record is particularly appropriate when the administrative officers' review has been thorough and careful, and when the Court's decision is based solely on the administrative record. See Walczak, 142 F.3d at 129; Frank G. v. Bd. of Educ., 459 F.3d 356, 367 (2d Cir. 2006); see also S.W. v. N.Y.C. Dep't of Educ., 646 F. Supp. 2d 346, 351 (S.D.N.Y. 2009).

II.

The following facts and procedural background are taken from the administrative record.

S.S. and R.S. are the adoptive parents of A.S. (Pls.' 56.1 Statement ¶ 8; Def.'s Resp. to Pls.' 56.1 Statement ("Def.'s 56.1 Resp.") ¶ 8.) A.S. was born in 1995 and, at the beginning of the 2007-08 school year, was twelve years old. (Pls.' 56.1 Statement ¶ 7; Def.'s 56.1 Resp. ¶ 7.) He is classified as a student with a learning disability and is eligible for special education services under the IDEA. (Pls.' 56.1 Statement ¶ 27; Def.'s 56.1 Resp. ¶ 27.) A.S. has been a special education student since preschool. (Pls.' 56.1 Statement ¶ 25; Def.'s 56.1 Resp. ¶ 25.) A.S. attended public school in the District from preschool through fifth grade, which A.S. repeated at the plaintiffs' request. (Pls.' 56.1 Statement ¶¶ 25, 63; Def.'s 56.1 Resp. ¶¶ 25, 63.)

According to the plaintiffs, at the end of first grade A.S. had no reading skills and his speech was unintelligible. (Pls.' 56.1 Statement ¶ 31; Def.'s 56.1 Resp. ¶ 31.) S.S. testified that A.S.'s speech and reading problems persisted through the second time A.S. completed fifth grade. (Pls.' 56.1 Statement ¶ 66; Def.'s 56.1 Resp. ¶ 66.) Beginning in the third grade, the plaintiffs observed that A.S. was having social problems. (Pls.' 56.1 Statement ¶ 39; Def.'s 56.1 Resp. ¶ 39) According to S.S.'s testimony, A.S. began to throw tantrums and struggled to make friends. (Pls.' 56.1 Statement ¶ 39; Def.'s 56.1 Resp. ¶ 39.) In addition, A.S. was bullied and developed incredibly low self-esteem, calling himself "stupid" and "retarded." (Pls.' 56.1 Statement ¶ 46; Def.'s 56.1 Resp. ¶ 46.)

S.S. communicated with the CSE about the IEP it developed for A.S. each year throughout A.S.'s time in the District. (Pls.' 56.1 Statement ¶¶ 27, 32-33, 37, 52-54, 59, 63, 86; Def.'s 56.1 Resp. ¶¶ 27, 32-33, 37, 52-54, 59, 63, 86.) Dissatisfied with the District's IEP, the plaintiffs notified the District that they were rejecting the IEP proposal for the 2007-08 school year, and placing A.S. in Kildonan on March 5, 2007. (Def.'s 56.1 Statement ¶ 5; Pls.' Statement of Controverted Facts in Opposition to Defendant District's Motion for Summary Judgment*fn2 ("Pls.' Statement of Controverted Facts") ¶ 5.)

On April 27, 2007, Doctor Nelson Dorta, a Pediatric Neuropsychologist retained by the plaintiffs, evaluated A.S., and on June 4, 2007, he issued a Neuropsychological Evaluation report (the "Dorta Report") based on his evaluation. (Def.'s 56.1 Statement ¶ 6; Pls.' Statement of Controverted Facts ¶ 6; Def.'s 56.1 Resp. ¶ 111.) Dr. Dorta testified that A.S. had "classical dyslexia, with phonological difficulties and accompanying language difficulty," and that "A.S. needed a specialized program for children with language-based learning disorders." (Pls.' 56.1 Statement ¶ 16; Def.'s 56.1 Resp. ¶ 16.) Dr. Dorta also noted ...


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