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Mary McLeod Bethune Day Academy Public Charter School v. Bland

February 20, 2008

MARY MCLEOD BETHUNE DAY ACADEMY PUBLIC CHARTER SCHOOL, PLAINTIFF,
v.
TERRI BLAND, AS NEXT FRIEND OF THE MINOR CHILD, T.B., AND T.B., INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Alan Kay United States Magistrate Judge

MEMORANDUM OPINION*fn1

Pending before the Court are Plaintiff's Motion for Summary Judgment [13], Defendants' Opposition [14], and Plaintiff's Reply [16], as well as Defendants' Motion for Summary Judgment [11] and Plaintiff's Opposition [15].*fn2 At issue is whether the Hearing Officer erred in awarding T.B. 375 hours of compensatory education in the form of individual tutoring as a remedy for being denied a free and appropriate public education. Having reviewing the submissions of the parties, the Administrative Record, and the relevant case law, the Court issues the following Memorandum Opinion.

I. Background

T.B. is a twelve year-old special education student at Mary McLeod Bethune Day Academy Public Charter School ("MMB"). (Pl.'s Statement of Material Facts [13-2] ("Pl.'s Statement") ¶ 1.)*fn3 T.B. began attending MMB during the 2005-2006 school year and was in fifth grade during the 2006-2007 school year. (Def.'s Statement of Material Facts [11-2] ("Def.'s Statement") ¶ 3; Pl.'s Statement ¶ 1.) During the 2004-2005 school year, T.B. attended school at God's Universal Church, and during the 2003-2004 school year, he attended Robert Brent Elementary. (Tr. of 1/17/07 Hr'g ("Tr. I") at 45.)

A. T.B.'s IEPs

An Individualized Educational Program ("IEP") that was prepared on February 9, 2004, while T.B. was a student at Brent Elementary provided that T.B. would receive ten hours of specialized instruction from a special education teacher each week. (Administrative Record ("A.R.") at 195.) The IEP was subsequently revised on May 3, 2004 to provided for twelve hours of specialized instruction per week. (Id. at 204.) Upon enrolling her son at MMB, Ms. Bland provided the school with a copy of these IEPs, but MMB never implemented them. (Tr. I at 46, 48.)

In March 2006, a new IEP was developed for T.B. that provided for forty-five minutes of occupational therapy and fifteen hours of specialized instruction per week. (A.R. at 157.) As with the earlier IEPs, MMB never implemented the March 2006 IEP. (Tr. I at 48.) According to Ms. Abedin, the Special Education Coordinator at MMB, T.B. did not receive the full fifteen hours per week of specialized instruction and did not receive any services from a special education teacher during December 2006. (Tr. of 3/23/07 Hr'g ("Tr. II") at 20-21, 24. See also A.R. at 4.)

A fourth IEP was developed for T.B. on December 11, 2006, after Ms. Bland filed her due process complaint in this case. (A.R. at 243.) This IEP directed that T.B. receive one hour of occupational therapy and fifteen hours of specialized instruction per week. (Id.) The specialized instruction was to include one hour of individualized tutoring in reading. (Id.) Ms. Abedin clarified that this meant one hour of tutoring per day, for a total of five hours per week. (Tr. II at 14.) Although Ms. Bland did not believe that this IEP was appropriate or complete, she authorized the school to implement it. (A.R. at 243.)

B. T.B.'s Grades and Test Scores

In November 2005, shortly after T.B. began attending MMB, he "was referred for a psychoeducational evaluation to assess his cognitive ability and academic achievement to assist in the determination of appropriate academic intervention." (A.R. at 150.) His general cognitive ability, as tested by the Weschsler Intelligence Test for Children, 4th Edition, was "within the Borderline range of intellectual functioning," which means that he might "experience difficulty in keeping up with his peers in a wide variety of situations that require age-appropriate thinking and reasoning abilities." (Id. at 152.) T.B. also scored "within the Extremely Low to the Low Average range of academic functioning" on the Wechsler Individual Achievement Test, 2nd Edition. (Id. at 153.) The psychologist who performed the tests recommended that T.B. "would benefit from intensive individualized instruction daily in reading, spelling, writing and math." (Id. at 155.)

Ms. Bland brought T.B. for testing at Sylvan Learning Center on September 29, 2006 because she was frustrated with MMB's failure to implement T.B.'s IEP. (Tr. I. at 52.) Sylvan found that T.B., who at the time was eleven years and eleven months old, tested at the age equivalent of six years and six months. (A.R. at 180.) Based on T.B.'s test scores, Sylvan recommended a program of 200 or more hours of tutoring in reading, 108 or more hours of tutoring in math, and 100 or more hours of tutoring in writing. (Id. at 182, 186, 189.)

A Progress Report from October 3, 2006 noted that T.B. was working below grade level in language arts, mathematics and social studies. (Id. at 228.) T.B.'s report card for the fifth grade, first quarter shows that he received a failing grade in reading, language arts, mathematics and science and a "C" in social studies. (Id. at 28.)

Finally, on March 29, 2007, the special education teacher at MMB administered the Qualitative Reading Inventory, 4th Edition, ("QRI-IV") to T.B. (Id. at 10.) This test "measures a student's ability to read and comprehend short passages on a variety of topics." (Id.) The teacher reported that "[o]n the third grade passage, [T.B.] scored at an instructional level," which led her to conclude ...


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