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C.L. and G.W., Individually and On Behalf of C.L., A Child With A Disability v. Scarsdale Union Free School District

March 22, 2012

C.L. AND G.W., INDIVIDUALLY AND ON BEHALF OF C.L., A CHILD WITH A DISABILITY, PLAINTIFFS,
v.
SCARSDALE UNION FREE SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Seibel, J.

OPINION AND ORDER

Before the Court are Plaintiffs' Motion for Summary Judgment, (Doc. 13), and Defendant's Cross-Motion for Summary Judgment, (Doc. 16). Plaintiffs C.L. and G.W. bring this action, individually and on behalf of their child C.L. ("CL"), pursuant to the Individuals with Disabilities Education Improvement Act ("IDEIA"), 20 U.S.C. §§ 1401 et seq.;*fn1 Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and Article 89 of the New York State Education Law, N.Y. Educ. Law §§ 4401--4410-b, against Defendant Scarsdale Union Free School District (the "District"). Plaintiffs seek review of an administrative decision by a State Review Officer ("SRO") at the New York State Education Department annulling in part the decision of an Impartial Hearing Officer ("IHO"). The IHO found that (1) the District "failed to classify CL as a student with a disability and eligible for special education provided pursuant to an [Individualized Education Program ("IEP")] under the IDEIA [and] denied the student [a Free and Appropriate Public Education ("FAPE")]"; (2) CL's parents' placement of CL at a private school for the 2008--2009 school year was an "appropriate, if not an ideal placement for CL"; and (3) no equitable considerations militated against tuition reimbursement for Plaintiffs. (IHO Decision 25, 30, 33.)*fn2 The SRO agreed with the IHO's conclusion on the first point (albeit on different grounds); disagreed on the second point, finding that CL's parents had not met their burden of showing that they selected an appropriate private school placement; and did not reach the third point. (SRO Decision 17, 21, 23.)*fn3

Neither party appeals the first finding-that CL should have been classified as a student with a disability and eligible for special education services. Plaintiffs seek an order reversing the SRO's decision on the second point and awarding Plaintiffs tuition reimbursement for the year 2008--2009. Plaintiffs also request "compensatory education and monetary relief" for their claim under Section 504 of the Rehabilitation Act. (Compl. ¶ 40.)*fn4 Defendants seek an order affirming the SRO's decision and dismissing Plaintiffs' Complaint. For the reasons set forth below, the Court denies Plaintiffs' Motion for Summary Judgment and grants Defendant's Cross-Motion for Summary Judgment dismissing Plaintiffs' complaint.

I.Background

The following facts are undisputed except where noted.

A. CL's Performance at Greenacres Elementary School

1. Kindergarten: 2004--2005

CL entered kindergarten at Greenacres Elementary School ("Greenacres") in Scarsdale, New York in the fall of 2004 and continued to attend Greenacres until he finished third grade in June 2008. (Ps' 56.1 ¶ 3;*fn5 Compl. ¶¶ 7--8.) Around October 2004, CL began receiving language and speech services at school to focus on breathing techniques and address disfluency. (D's 56.1 ¶ 9.)*fn6 Around January 2005, CL started meeting with a special education teacher in a small group in the learning resources center ("LRC")*fn7 for 30 minutes twice per week for pre-reading instruction. (Id. ¶ 10.) On March 23, 2005, a committee established pursuant to Section 504 of the Rehabilitation Act (the "504 Committee") convened to assess CL's performance and need for occupational therapy services ("OT"); the 504 Committee recommended that CL receive OT once per week. (Id. ¶ 11; D's Exs. 1--2.)*fn8

2. First Grade: 2005--2006

On October 24, 2005, the 504 Committee met to develop an accommodation plan for CL for that school year. (D's Ex. 7.) The 504 Committee recommended OT twice per week, speech and language therapy ("SLT") once per week and an LRC class with six students four times per week. (Id.; D's 56.1 ¶¶ 12--13.) At the end of the year, CL scored in the seventy-fifth percentile in his LRC assessment, and his report card demonstrated that he made progress in almost every area. (D's 56.1 ¶ 13; Tr. 257:5--7;*fn9 D's Ex. 10.) In his non-LRC academic subjects, CL primarily received grades of two ("understanding is emerging but not consistent") and three ("understands most of the time") on his report card. (D's Ex. 9.) Over the course of the year, CL improved in almost every academic category, although he continued to "need improvement" in some of his work habits. (Id.)

3. Second Grade: 2006--2007

On October 26, 2006, the 504 Committee reconvened to develop an accommodation plan for CL for the current school year. (D's 56.1 ¶ 14.) They recommended a plan similar to that for the previous year-LRC four times per week, OT twice per week, and SLT once per week. (Id.; D's Ex. 11.) Plaintiffs opted not to have CL participate in SLT and OT through the District and instead provided that therapy privately. (D's 56.1 ¶ 16.) Plaintiffs contend that this decision was based on the District's indication that it was unable to provide CL with the appropriate therapy. (Ps' Reply 56.1 ¶ 16;*fn10 Tr. 623:19--624:21, 632:25--633:11.) CL's report card that year reflected a solid mix of grades two ("inconsistent"), three ("good"), and four ("excellent"). (D's Ex. 16.) The end-of-year comments stated that "CL has successfully completed the second grade curriculum." (Id.) Although he sometimes needed "reteaching" for new concepts, "[h]e continued to make progress in the academic areas." (Id.) CL's LRC teacher noted he had made "excellent progress." (D's 56.1 ¶ 15; Tr. 260:18--20.)

In April and May of 2007, Plaintiffs obtained a psychoeducational evaluation for CL administered by the Soifer Center. (D's Ex. 13.) On June 6, 2007, at Plaintiffs' request, the 504 Committee met to review the results of that evaluation. (See D's Exs. 13, 15.) The results indicated that intellectually, CL "functions within the upper end of the Low Average range," (D's Ex. 13 at 9), and that CL's weakest skills were his "attention, executive functions, and language processing," (id.). The evaluator recommended that Plaintiffs (1) consult with a doctor about CL's attention disorder; (2) confer with the school to obtain services such as an aide and time in the LRC; (3) monitor CL's emotional development; and (4) ensure CL receives "educational therapy," OT, and SLT. (Id. at 11--12; Ex. 17 at 2.) CL's classroom teacher "verified the findings" from the Soifer Center for the 504 Committee, noting that although CL had made "overall progress" that year, he still faced a number of difficulties-for example, "C.L. often fidgets and requires refocusing"; he "seek[s] additional help from the adults in the room when he is unsure"; and he "frequently requires reteaching of new concepts." (Ps' 56.1 ¶ 17; D's Ex. 12 at 2.) Based on this information, the 504 Committee revised CL's program for the following school year by adding various testing accommodations and an aide in CL's classroom for three hours per day to help with CL's attention and executive functioning issues. (D's 56.1 ¶ 22; D's Ex. 12 at 1.) Plaintiffs continued to decline OT and SLT services through the District. (D's 56.1 ¶ 24; Ps' Reply 56.1 ¶ 24.)

4. Third Grade: 2007--2008

The 504 Committee reconvened on October 17, 2007 to discuss CL's progress. At the meeting, the Committee took note of CL's Attention Deficit Disorder diagnosis and his continuing problems with fine motor development and visual coordination. (D's Ex. 20.) They decided to continue CL's current plan of LRC four times per week, an aide three hours per day, OT and SLT (which the parents declined), and various testing accommodations. (Id.) That year, CL became more resistant to attending LRC. (D's 56.1 ¶ 29.) Plaintiffs assert that this resistance stemmed from CL's increasing anxiety about being pulled out of the classroom on a regular basis. (Ps' Reply 56.1 ¶ 29; D's Ex. 25 at 2; Ps' 56.1 ¶ 38.)

On November 9, 2007, Plaintiffs requested that the District's Committee on Special Education ("CSE") evaluate CL for the purposes of developing an Individualized Education Program ("IEP") for him pursuant to the IDEIA. (Ps' 56.1 ¶ 27; D's Ex. 21.) In anticipation of the CSE meeting, Plaintiffs provided the CSE with an outside neurodevelopmental evaluation, performed on June 19, 2007 by Dr. Marilyn Agin, (Ps' 56.1 ¶ 20; D's Ex. 17), and an update from CL's occupational therapist, (D's 56.1 ¶ 30; D's Ex. 19). Dr. Agin reported that CL "has demonstrated the ability to meet academic standards in the early grades given educational supports. He has the intellectual potential to succeed if his deficits in executive functions, . . . variable attention and focus, and language-based learning issues, [sic] are properly addressed in the classroom." (D's Ex. 17 at 5.) Dr. Agin also noted that she was "concerned about [CL's] emotional well-being and self-esteem as well as his ability to succeed academically," and recommended that his parents "investigate a private educational setting with an expertise in teaching children with attentional and learning issues for the September 2008 school year." (Id.) She ultimately recommended for CL the same services and accommodations the District offered CL-LRC four times per week, OT, SLT, and an aide in the classroom-as well as various other classroom accommodations, an after-school tutor, an auditory processing dysfunction evaluation, and omega 3 fatty acids. (Id. at 5--6.)

In conjunction with the CSE review, the District also evaluated CL, administering speech, language, and educational testing and having a psychologist do an in-classroom observation of CL. (D's 56.1 ¶ 31.) The speech and language evaluator reported that CL "does not meet the eligibility criteria to receive classified speech and language services. His testing results were consistently in the average to significantly above average range on tasks of form, content and usage of linguistic concepts." (D's Ex. 28.) On the Stanford Diagnostic Reading Test, CL scored in the eighty-second percentile on the phonetic analysis subtest; ninety-second percentile on the vocabulary subtest; and forty-third percentile on the comprehension subtest. (D's 56.1 ¶ 36; D's Ex. 27.) On the Stanford Diagnostic Math Test, CL scored in the thirty-eighth percentile on the concepts and abilities subtest and the eighty-fourth percentile on the computation subtest. (D's 56.1 ¶ 37.)*fn11 On the writing assessment, CL scored in the forty-fifth percentile. (Id. ¶ 38.) During the classroom observation, CL was "following the assignment, remained focused for the most part, and with clarification from an adult in the classroom, was able to complete his assignment." (Id. ¶ 39.)

The CSE met on January 8, 2008 and reviewed the various evaluation results, CL's recent report card, progress reports, and social and developmental history, and heard from CL's teacher, Mr. O'Rourke, concerning CL's classroom performance and behavior. (D's Ex. 25 at 2; D's 56.1 ¶¶ 40--41.) Based on that information, the CSE determined that CL "does not have a significant disability which would make him eligible for special education services." (D's Ex. 25 at 2.) The CSE also decided to reduce CL's time in the LRC from four to two days, although the parties differ as to why the CSE took this action. (D's 56.1 ¶ 43; Ps' Reply 56.1 ¶ 43.)

The 504 Committee met on May 20, 2008 to formulate a plan for the next school year. (D's 56.1 ¶ 44; D's Ex. 36.) The Committee took note of the following information: CL's teacher, Mr. O'Rourke, reported that CL "made notable strides as a learner" and "has shown improvement in all academic subject areas," but that CL's "attention continues to interfere with his performance," (D's Ex. 36 at 2); CL's LRC teacher noted that CL scored in the sixty-first percentile on the Stanford Abbreviated Comprehension Test and in the eightieth percentile on the Stanford Open-Ended Test and that his "primary issues remain attention and maturity," (id. at 3); and Dr. Glen Krielsheimer, a private psychologist who attended the meeting at the request of CL's parents, diagnosed CL with a non-verbal learning disability, (id.). The Section 504 Committee decided that CL would continue to receive LRC twice per week, an aide in the classroom, and OT and SLT (which Plaintiffs continued to decline). (Id. at 3; D's 56.1 ¶¶ 47-- 48.)

Plaintiffs disagreed with the District's proposed plan for the 2008--2009 school year and placed CL at Eagle Hill School ("Eagle Hill") in Greenwich, Connecticut. (Ps' 56.1 ¶¶ 44--45.) On June 19, 2008, Plaintiffs informed the Greenacres principal by letter that CL would not be attending Greenacres for the 2008--2009 school year and instead would be attending Eagle Hill. (D's 56.1 ¶ 49.) On June 5, 2009, Plaintiffs filed a request for an impartial hearing seeking reimbursement for the Eagle Hill tuition for the 2008--2009 school year. (Ps' 56.1 ¶¶ 45, 57; D's Ex. 40.)

B. Administrative Proceedings 1. IHO Decision

The IHO held a hearing on September 24--25 and October 8--9, 2009, and in a decision dated December 21, 2009, made several findings. First, the IHO found that the District had denied CL a FAPE when it determined that CL was not eligible for special education pursuant to an IEP for the 2008--2009 school year, and therefore had violated the IDEIA and Section 504 of the Rehabilitation Act. (IHO Decision 28, 30.) Second, the IHO found that Plaintiffs' placement of CL at Eagle Hill was appropriate, "if not . . . ideal," because, among other things, Eagle Hill "addresses self-esteem and confidence building in addition to academic remediation, and C.L. has needs in these areas"; Eagle Hill's curriculum and accommodations are tailored to the needs of each student and progress is checked and adjustments made on a daily basis; the process through which CL applied and was admitted to Eagle Hill was "likely to result in an appropriate placement"; teachers at Eagle Hill use "instructional strategies" to address many of CL's needs, including "language issues, anxiety, self-confidence, and difficulty working independently"; CL participated in a small group tutorial class two periods per day to focus on written expression and study skills, and the rest of his classes were relatively small as well; CL had an advisor who met with him daily, observed him, and participated in staff meetings ...


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