Opinion
Civil No. CCB-04-301.
March 4, 2005
MEMORANDUM
Now pending are cross-motions for summary judgment by defendant, Dr. Bernard J. Sandusky, Superintendent of Queen Anne's County Public Schools and plaintiffs, Bryan Nicholas Taylor, by and through his parent and next friend, Jacqueline Milan Dolch. Taylor and Dolch sued the defendant seeking reimbursement for tuition expenses pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. No hearing is deemed necessary. See Local Rule 105.6. For the reasons that follow, the parties' respective motions will be granted in part and denied in part.
BACKGROUND
Bryan Nicholas Taylor ("Taylor"), age 13, has a specific learning disability and speech and language impairments that make him eligible for special education and related services under the Individuals with Disabilities Education Act ("IDEA"). (Def.'s Hearing Ex. QA2-2.) Taylor's cognitive ability is in the average range. (ALJ Decision, at 6.) Taylor attended public schools in Queen Anne's County from grades one through five. During that time, he received special education services from the Queen Anne's County Public Schools ("QACPS") board pursuant to the Individualized Education Programs ("IEP") that were developed for him annually. (Pls.' Hearing Exs. NT 15, 23, 25.) The IEP for Taylor's third grade year provided for 12.5 hours per week of special education in a general education classroom and indirect speech-language therapy for .50 hours per week. (ALJ Decision, at 5; Pls.' Hearing Ex. NT 23.) The fourth grade IEP was identical to the third grade IEP. Taylor did not master any academic goals and objectives on his fourth grade IEP. (ALJ Decision, at 6; Pls.' Hearing Ex. NT 24.) In grade four, Taylor's word recognition and comprehension were equivalent to the end of the second grade level. (Pls.' Hearing Ex. NT 23.) Nevertheless, Taylor's fifth grade IEP reduced the special services offered to him. He was provided with 8 hours per week of special education in a general education classroom and .25 hours per week of indirect speech-language therapy. (ALJ Decision, at 6; Pls.' Hearing Ex. NT 25.) Taylor's word recognition and comprehension when he was in fifth grade was at the third grade level. Due to his school-related disabilities, Taylor was subjected to teasing by his peers and his overall self-esteem became low. (ALJ Decision, at 13; Hearing Tr. 45.)
An IEP meeting for sixth grade was held on March 6, 2002. The team suggested an IEP that was identical to the fifth grade IEP. Taylor's mother, Jacqueline Milan Dolch ("Dolch"), had Taylor independently evaluated by Dr. Joan Mele-McCarthy (ALJ Decision, at 7) and presented the test results and recommendations to the IEP team. (ALJ Decision, at 8.) After consideration, the team presented a new IEP on April 24, 2002, which increased Taylor's special education instruction from 8 to 10 hours per week in a general education classroom. At the second IEP meeting, the team also gave Dolch some test results indicating that Taylor had progressed five months in reading from April to October 2001, five months in math for that same six month period, and 15 months in writing. (Pls.' Hearing Ex. NT 14.) Convinced the IEP offered insufficient assistance for Taylor to succeed in a general education curriculum and challenging the progress reportedly shown by the test results, Dolch refused to sign the IEP. (Id.) Dolch switched Taylor to Radcliffe Creek School ("Radcliffe Creek") for the 2002-2003 school year. Radcliffe Creek primarily educates children with diagnosed learning disabilities or other school-related disabilities. Dolch then requested a hearing to obtain reimbursement for Taylor's private school placement for the 2002-2003 school year. QACPS employees evaluated Taylor prior to the due process hearing. According to their test results, Taylor's reading level declined from May 2002 to May 2003 (Def.'s Hearing Ex. QA6-6a), and his writing composite score dropped from 78 in March 2001 to 58 in June 2003 (Pls.' Hearing Ex. NT 20, at 3; Def.'s Hearing Ex. QA-7c). Similarly, Taylor's receptive language score dropped from 91 in April 2001 (Def.'s Hearing Exs. QA4-4d, 4e) to 75 in May 2003 (Def.'s Hearing Ex. QA-8a) and his expressive vocabulary score of 85 in April 2001 (id.) dropped to 72 in May 2003 (Def.'s Hearing Ex. QA-8a). The QACPS employees did not observe Taylor in class or speak to his teachers about his performance. (Pls.' Mot. for Summ. J., Ex. 6, Def. Response to Interrogatories #6, 7.) After a three-day hearing involving testimony from a number of experts, Administrative Law Judge Guy J. Avery ("ALJ") agreed with Dolch that the proposed IEP was inadequate and not reasonably calculated to provide educational benefit to Taylor. He agreed with QACPS that Radcliffe Creek did not provide Taylor with an appropriate education and was not a proper placement for Taylor. Therefore, he denied Dolch's claim for reimbursement of tuition expenses.
ANALYSIS
The IDEA provides parents "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." 20 U.S.C. § 1415 (b)(6). After parents present a complaint, they are entitled to an impartial due process hearing conducted by the State or local educational agency. See 20 U.S.C. § 1415 (f)(1). If the parents are not satisfied with the findings and decision of that hearing, they may challenge it in district court. See 20 U.S.C. § 1415 (i)(2)(A). "[I]n reviewing administrative decisions in IDEA cases, the district court must make an independent decision based on a preponderance of the evidence, while giving due weight to the state administrative proceeding." Sanger v. Montgomery County Bd. of Educ., 916 F.Supp. 518, 520 (D.Md 1996) (citing Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982)). Administrative findings are considered "prima facie correct" and a district court, to the extent it does not follow them, must explain why it does not. County School Bd. of Henrico County, Virginia v. Z.P, ex rel. R.P., 2005 WL 327026, *6 (4th Cir. 2005); A.B. v. Lawson, 354 F.3d 315, 325 (4th Cir. 2004). Likewise, the court "should be reluctant indeed to second-guess the judgment of education professionals."MM v. Sch. Dist. of Greenville County, 303 F.3d 523, 532 (4th Cir. 2002) (quoting Tice v. Botetourt County Sch. Bd., 908 F.2d 1200, 1207 (4th Cir. 1990)). "[T]he task of education belongs to the educators who have been charged by society with that critical task." Springer by Springer v. Fairfax County Sch. Bd., 134 F.3d 659, 663 (4th Cir. 1998) (quoting Hartmann v. Loudoun County., 118 F.3d 996, 1000 (4th Cir. 1997).
While the parties identified their papers as cross-motions for summary judgment, the Fourth Circuit recently explained that the district court proceeding should more accurately be compared to a bench trial, decided on motions for judgment. County School Bd. of Henrico County, Virginia v. Z.P, ex rel. R.P., 2005 WL 327026, *15 n. 7 (4th Cir. 2005).
To determine whether a disabled child is being afforded a free appropriate public education ("FAPE"), courts conduct a two-prong analysis. "First, the Court must determine whether the state or local educational authority complied with the procedures set forth in the Act. Second, the Court must determine whether the IEP was reasonably calculated to enable the child to receive educational benefits." Bd of Educ. of Frederick County. v. I.S., 325 F.Supp.2d 565, 578 (D.Md. 2004) (citing Rowley, 458 U.S. at 206-07). Taylor and Dolch do not allege any violations of the procedural requirements of the IDEA. Thus, this court turns to the second prong of the inquiry. According to the Supreme Court, a student has been offered a FAPE if the IEP is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207; AB v. Lawson, 354 F.3d at 319; Wagner v. Bd. of Educ. of Montgomery County, 340 F.Supp.2d 603, 606 (D.Md. 2004). The Court explained that Congress did not mean a "potential-maximizing education,"Rowley, 458 U.S. at 197, n. 21, but "sought primarily to identify and evaluate handicapped children and to provide them with access to a free public education." Id. at 3048. To the "maximum extent appropriate," the disabled child should be placed in the least restrictive environment to achieve the FAPE and participate in the same activities as non-disabled peers. AB v. Lawson, 354 F.3d at 319; 20 U.S.C. § 1412(a)(5)(A); see also 34 C.F.R. § 300.550.
The ALJ conducted the due process hearing on May 21, 2003, May 29, 2003, and June 16, 2003. (ALJ Decision, at 1.) After considering the testimony of 9 witnesses and admitting 45 exhibits, (id. at 3-4), the ALJ found that QACPS had not offered Taylor an FAPE for the 2002-2003 school year and instructed them to assemble another IEP meeting to revise the proposed IEP. (Id. at 21-22, 24-25.) He also found that Radcliffe Creek was not an appropriate placement for Taylor and therefore denied the plaintiffs' claim for tuition reimbursement. (Id. at 23-24.)
The Supreme Court in Sch. Comm. of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359 (1985) set up a two-part test to determine when parents should be reimbursed for private school placement. First, the court must determine that the IEP designed for the child was inappropriate. 471 U.S. at 370. Second, the court must find that the unilateral private placement resulted in an appropriate education. Id. See also County School Bd. of Henrico County, Virginia v. Z.P, ex rel. R.P., 2005 WL 327026 at *11. Giving due weight to the findings of the ALJ, the court agrees that the IEP proposed by QACPS, essentially a duplicate of the prior IEP under which Taylor had not met goals and objectives (ALJ Decision at 20-21), was not reasonably calculated to provide Taylor a FAPE. Accordingly, the court must determine whether Radcliffe Creek offered an appropriate education for Taylor.
The standard used to evaluate whether a public school IEP is appropriate, the "some educational benefit" criterion, is also applied to private school programs when tuition reimbursement is claimed. Florence County Sch. Dist. Four v. Carter, 950 F.2d 156, 163 (4th Cir. 1991), aff'd, 510 U.S. 7 (1993). The ALJ held that "while it is evident that the 2002-2003 IEP that is in contention was inadequate and inappropriate, it is clearer still that the placement of the Child at Radcliffe Creek was inappropriate as well." (ALJ Decision, at 23.) The ALJ based his findings on the test scores and evaluations done after Taylor had been a student at Radcliffe Creek, stating that "not only did the Child fail to progress at Radcliffe Creek, his scores on the WIAT II, CELF III, and CRER diminished, some significantly." (Id. at 24.)
The Wechsler Individual Achievement Test, or the WIAT, is an educational achievement assessment test given to Taylor in March 2001. (Def.'s Hearing Ex. QA 4-4c.) The subsequent edition of this test, the WIAT II, was done in May 2003. (Def.'s Hearing Ex. QA-7c.) CELF III is the Clinical Evaluation of Language Fundamentals III conducted in April 2001 and May 2003. (Def.'s Hearing Exs. QA 4-4d, e; QA-8a.) CRER stands for the Comprehensive Receptive and Expressive Vocabulary Test given to Taylor in April 2001 and May 2003. (Def.'s Hearing Exs. QA 4-4e; QA-8a.)
The plaintiffs' contention that the tests were not good indicators of Taylor's performance is unpersuasive. First, Charles Moore ("Moore"), the QACPS staff member who conducted the WIAT-II test on Taylor in 2003, testified that one subtest on one portion of the WIAT-II, the writing sample subtest, had a lower correlation to the WIAT than the other subtests. (Transcript at 554.) However, Moore noted that difference in his report. (QA-7a.) To compensate for the lower correlation, Moore analyzed Taylor's actual writing performance on the two tests. (Id.) Second, even if the court were to disregard that subtest, or disregard the WIAT tests entirely, Taylor's regression in the other subtests or whole tests is enough evidence of a decline in his overall performance. (QA-7c, QA 4-4d, e; QA-8a, QA-8b, QA-6a.)
The plaintiffs also object to the tests because they assert that QACPS manipulated the reports for the purposes of the hearing. The test results, however, were obtained prior to the administrative hearing, although the reports were prepared during the course of the hearings. (Exs. QA-8a, QA-7c, QA-6c.) Similarly, the court is not convinced by the plaintiffs' allegations that the evaluators timed their reports or destroyed test protocols to harm the plaintiffs' case. Finally, it was within the ALJ's discretion to allow the reports to be completed and provided to the parents even though that evidence was not disclosed to the plaintiffs pursuant to the "five-day rule."
Though the reports help explain the test data, the scores alone indicate regression.
Other than their own speculation, plaintiffs have not provided evidence that indicates that QACPS deliberately withheld the test results or reports from the plaintiffs. As plaintiffs themselves mention in their brief, the defense attorney explicitly stated in his opening statements to the ALJ on May 21, 2003 that he was planning on using the test results to show that the private placement in Radcliffe Creek was inappropriate. (Pls.' Mem. at 26; Tr. 23.) Plaintiffs made no efforts to get the results or to object to their admission until the second hearing date, May 29, 2003. (Tr. 295.) Regarding the destruction of protocols, QACPS explained that it was the evaluator's practice to shred the test protocol after inputting the scores. In any event, QACPS found a copy of the pertinent documents in another file, and forwarded it to the plaintiffs following their document requests. (Pls.' Mot. for Summ. J., Ex.6 at Interrogatory Response No. 1; Def.'s Reply at 7.)
The "five-day rule" requires parties to disclose evaluations they plan on using at the hearing to all other parties at least five business days prior to a hearing. ( 20 U.S.C. 1415(f)(2)(A); Def.'s Reply Mem., Ex. 1, Letter from the United States Department of Education's Office of Special Education Programs.)
In addition to the regression in Taylor's performance, the ALJ found the unilateral placement to be inappropriate because it violated the IDEA's mandate to educate the child in the "least restrictive environment." (Id.) In DeVries v. Fairfax County Sch. Bd., 882 F.2d 876 (4th Cir. 1989), the Fourth Circuit noted that "[m]ainstreaming of handicapped children into regular school programs where they might have opportunities to study and to socialize with nonhandicapped children is not only a laudable goal but is also a requirement of the Act." Id. at 878. On the other hand, the preference for mainstreaming does not outweigh the need to provide a child with an appropriate education.Carter, 950 F.2d at 160. The court does not need to rely on this aspect of the opinion, however, because the ALJ was clearly correct about the lack of educational benefit shown at Radcliffe Creek for the 2002-2003 school year.
The plaintiffs request that the court receive additional evidence as permitted under 20 U.S.C. § 1415(i)(2)(B)(ii). The Fourth Circuit has adopted the strict approach to the concept of additional evidence that was outlined in Town of Burlington v. Dep't of Educ. for Commonwealth of Mass., 736 F.2d 773, 790 (1st Cir. 1984). See Springer v. Fairfax County Sch. Bd., 134 F.3d 659, 666-67 (4th Cir. 1998). Proffered exhibits include test results from a test taken after the administrative hearing and progress reports from the 2003-2004 school year. Most of the plaintiffs' additional evidence is of questionable probative value to the 2002-2003 school year. First, the progress reports from the 2003-2004 school year note that Taylor's reading level in June 2004 was between the second and third grade levels (Pls.' Mot. for Summ. J., Ex.2.) but in May 2002 he had been reading at the end of third grade level. (Def.'s Hearing Ex. QA6-6a.) Second, plaintiffs include notes from an IEP meeting on October 21, 2003 and two subsequent letters to allege that QACPS did not believe its May 2003 testing was accurate and therefore agreed to pay for independent evaluations. (Pls.' Mot. for Summ. J., Exs.3-5.) As the defendant demonstrated in its reply brief and attached exhibit, however, QACPS agreed to independent evaluations to avoid further litigation (Id., Ex.3) and refused to remove the May 2003 test results from Taylor's records because it felt the tests were accurate. (Def.'s Reply Mem., Ex. 4.) Thus, this court sees little value in granting plaintiffs' request to admit additional evidence.
The new test results and progress reports are likely relevant to a decision as to the educational benefit of the student's later years at Radcliffe Creek. In response to the court's inquiry, plaintiff's counsel provided ALJ Novotny, Jr.'s decision of January 31, 2005, ordering reimbursement for the 2003/2004 and 2004/2005 school years. ALJ Novotny's decision has not, however, been relied on in any way in reaching my decision in this case.
A separate order follows.
ORDER
1. QACPS' motion for summary judgment is Granted in part and Denied in part;
2. plaintiffs' motion for summary judgment is Granted in part and Denied in part;
3. the decision of Administrative Law Judge Avery is AFFIRMED;
4. copies of this Order and the accompanying Memorandum shall be sent to counsel of record; and
5. the Clerk of the Court shall CLOSE this case.