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S.S. v. Howard Road Academy

November 12, 2008

S.S., A MINOR, BY HIS MOTHER AND NEXT FRIEND, TAMIKA SHANK, ET AL., PLAINTIFFS,
v.
HOWARD ROAD ACADEMY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiffs S.S., a minor child, and his mother, Tamika Shank, bring this action pursuant to the Individuals with Disabilities Education Improvement Act of 2004 ("IDEIA"), 20 U.S.C. § 1400 et seq., alleging that defendants failed to provide S.S. with a free appropriate public education ("FAPE") while he was enrolled at Howard Road Academy ("HRA"). Before the Court are the parties' cross-motions for summary judgment. For the reasons stated herein, the Court will grant both motions in part and remand the case to the hearing officer for further proceedings.

I. BACKGROUND

A. Statutory Framework

Congress enacted the IDEIA "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). To accomplish this goal, the Act requires that for each child identified as eligible for special education, a team composed of the child's parents, teachers, and other education specialists must develop an individualized education program ("IEP") that sets forth, among other things, the child's present levels of academic achievement and performance, measurable annual goals and how progress toward those goals will be measured, and special education and related services to be provided. Id. § 1414(d)(A)(i). A parent who disagrees with the IEP or otherwise believes that his or her child has been denied a FAPE is entitled to an impartial due process hearing. Id. § 1415(f)(1)(A). Any party aggrieved by the hearing officer's decision may bring a civil action challenging it. Id. § 1415(i)(2)(A).

B. Factual Background

S.S. is a thirteen-year-old boy who has been diagnosed with a language-based learning disability and a reading disorder. (Pls.' Stmt. of Material Facts [Pls.' Stmt.] ¶¶ 1, 7.) He attended HRA from fourth grade through the first half of seventh grade. (Am. Compl. ¶ 10; Defs.' Stmt. of Material Facts [Defs.' Stmt.] ¶ 2.)

Fourth Grade, 2004-2005

In January 2005, when S.S. was in fourth grade, an IEP was developed for him, which classified him as a student with a learning disability and provided that he was to receive 17 hours per week of specialized instruction and one hour per week of speech and language therapy. (Administrative Record ("AR") at 207.) Education services were to be provided in a combination general education setting and resource classroom. (AR at 215.)

In February 2005, Maureen Burnham, a speech-language pathologist contracted by HRA, evaluated S.S. (See AR at 257-59.) Ms. Burnham concluded that S.S. was "exhibiting receptive language disorder which is impacting his core language skills as well as his overall language memory. However, his expressive language abilities appear to be a strength, and he is functioning within one standard deviation from the mean with such tasks." (AR at 259.) Based on the evaluation, Ms. Burnham recommended that S.S. continue speech/language therapy twice a week for 30-minute sessions to address his receptive language deficits. (AR at 259.)

In May 2005, Dr. Monica Blanton-Lacey conducted a comprehensive psycho-educational evaluation of S.S., including administration of the Wechsler Intelligence Scale for Children -- Fourth Edition ("WISC-IV") and the Wechsler Individual Achievement Test -- Second Edition ("WIAT-II"). (See AR at 145-55, 260-70.) She concluded that:

Within the area of achievement, [S.S.] demonstrated personal strength in Reading Comprehension on the WIAT-II. On the Reading Comprehension subtest, [S.S.] demonstrated Average skills on tasks that assessed his capability to read sentences and paragraphs and answer questions about what was read. Conversely, [S.S.] demonstrated relatively weak skills on the subtests of Math Reasoning and Pseudoword Decoding. [S.S.] demonstrated Borderline skills on the Math Reasoning subtest, which consists of tasks that require him to understand number, consumer math concepts, geometric measurement, basic graphs, and solve one-step word problems. On the Pseudoword Decoding subtest, a measure of one's ability to correctly apply phonetic decoding rules when reading a series of nonsense words, [S.S.] also demonstrated Borderline skills. [S.S.] does not meet the criteria for a formal diagnosis of a learning disability; however, [S.S.'s] performance in the aforementioned areas suggest[s] that he is in need of remedial services to assist him in improving his skills within these areas. (AR at 152, 267 (emphasis in original).) While she offered a number of recommendations, Dr. Blanton-Lacey did not recommend a full-time special education placement. (See AR at 153-54, 268-69.)

Fifth Grade, 2005-2006

During fifth grade, S.S. appears to have performed relatively well. Although the record does not contain grades for the first half of the year, during the second half of the school year S.S. received average or above average grades. Specifically, in the third quarter S.S. received Cs in reading, language arts, science, mathematics, paragon, and spelling, while in the fourth quarter he received an A in reading, Bs in language arts and spelling, and Cs in science, mathematics, and paragon.*fn1 (AR at 78, 271.)

An IEP was developed in the middle of the school year in January 2006. (AR at 118, 216.) The meeting to develop the IEP was attended by Donna Johnson, HRA's special education coordinator; LaToya Jones-Davis, S.S.'s special education teacher; Jennifer Brooks, S.S.'s speech pathologist; and S.S.'s father. (AR at 118, 127, 216.) At the meeting, Ms. Jones-Davis indicated that S.S. had "made steady progress in areas of reading, spelling and written language," and Ms. Brooks stated that he had made "steady progress" in speech therapy. (AR at 127.) Accordingly, the IEP team decided to reduce S.S.'s hours of specialized instruction from 17 to 12, but retained the one hour per week of speech therapy. (AR at 118, 128, 216.) The team also determined that extended school year services ("ESY") were unnecessary. (AR at 128-30.) The IEP indicated that education services were to be provided in a "general education [setting] with assistance," speech therapy was to take place outside the classroom, and S.S.'s level of need for services was deemed to be low. (AR at 122, 126, 223-24.) By the end of June 2006, S.S. was making progress on two of the three short-term objectives in support of his annual goal in reading, one of three objectives in support of his annual written language goal, and four of four objectives in support of his annual math goal.*fn2 (AR at 123-25, 219-22.) S.S. was suspended from school for three days in March of that school year for throwing soap on the restroom floor and in another student's hair. (AR at 206.)

Sixth Grade, 2006-2007

During his sixth grade year, S.S. began to struggle academically. His grades fell dramatically. Specifically, in the first quarter, he received an F in reading/language arts, Ds in science and paragon, and a C in mathematics; in the second quarter, he received an F in reading/language arts, Ds in science and mathematics, and a C in paragon; in the third quarter, he received Ds in reading/language arts, science, and paragon and an F in mathematics; and in the fourth quarter, he received a C in reading/language arts, an F in science, and Ds in mathematics and paragon.*fn3

S.S.'s IEP team, which included Ms. Johnson; Ms. Jones-Davis; Gayle Dinkins, S.S.'s language arts teacher; Iva Alexander, S.S.'s speech pathologist; his mother; and his two educational advocates, met in February 2007. (AR at 97, 225.) At their meeting, Ms. Dinkins reported that S.S. "tries hard," but his "comprehension is low [and] he has problems writing down information." (AR at 107, 234.) Moreover, Ms. Dinkins indicated that S.S. resisted individual assistance, and his mother stated that he would not let her help him with homework. (AR at 107, 234.) Therefore, the IEP team decided to increase the amount of S.S.'s specialized instruction back to 17 hours per week and add one hour per week of psychological counseling "to help him cope with what's going on in his life (at home)," while also retaining the one hour per week of speech therapy. (AR at 97, 107, 109, 225, 234, 236.) In addition, the team recommended ESY services during the summer and that various testing be done to identify the reasons for S.S.'s academic struggles. (AR at 97, 108-10, 225, 233-36.) The IEP described the placement as "general education with/services," with speech therapy and psychological counseling to take place outside the classroom, and S.S.'s level of need for services was deemed to be moderate.*fn4 (AR at 105, 231.) S.S.'s mother signed the IEP, thereby indicating her agreement with its contents and her consent to its implementation. (See AR at 97, 225.) The IEP indicates that S.S. had mastered two of the six short-term objectives in support of his annual social-emotional goal by the end of May 2007, but does not otherwise indicate whether progress was made on any of the other goals.*fn5 (See AR at 99-104.)

In the months following the IEP meeting, several tests were done in an attempt to identify the reasons for S.S.'s academic problems. In March 2007, Iva Alexander, a speech-language pathologist contracted by HRA, evaluated S.S. and found that he had deficits in receptive and expressive language and vocabulary development. (AR at 144, 256.) Moreover, she determined that S.S.'s most significant weaknesses were in the areas of "concepts and following directions" and "recalling sentences," which led her to conclude that he might experience difficulties in following directions orally and in curricular workbooks, in taking notes or writing messages, and in his ability to remember spoken sentences of increasing complexity in meaning and structure. (AR at 141, 254.) Based on her findings, Ms. Alexander recommended that S.S. continue to receive speech and language therapy for one hour per week with emphasis on "improving auditory processing skills, improving critical thinking/listening skills, improving logic/reasoning skills, and increasing receptive vocabulary."*fn6 (AR at 144, 256.)

In April 2007, Charla White, a licensed clinical psychologist contracted by HRA, also administered tests, including the WISC-IV and the Woodcock Johnson-III Tests of Achievement ("WJ-III"), to determine the reasons for S.S.'s academic difficulties. Dr. White observed that on tasks, S.S. "lacked persistence and gave up easily." (AR at 247.) Moreover, she found that S.S.'s overall cognitive abilities were in the low average range, his verbal comprehension was in the borderline range, his perceptual reasoning and working memory were in the average range, and his processing speed was in the low average range. (AR at 247.) Based on his performance on the WJ-III, Dr. White found that S.S.'s "skills in Broad Reading, Math, and Spelling were in the Low Average [range] and below grade and age expectations. His ability to formulate sentences independently was an area of strength." (AR at 249.) She concluded that S.S.'s decline in academic performance "appears to be influenced by the following factors: increased demands of sixth grade in conjunction with skill deficits in core areas, and lack of persistence." (AR at 249.)

Plaintiffs hired another licensed clinical psychologist, Laura Wilding, who tested S.S. in three sessions in May, June, and July 2007. (See AR at 241, 530.) In her report, Dr. Wilding concluded that [S.S.] demonstrates poor phonemic awareness which impacts his ability to decode. His sight word reading ability is relatively good which suggests that with rehearsal and contextual clues, he is able to recognize words. However, with poor decoding ability and phonemic awareness, he will face challenges when required to decode unfamiliar words. These results suggest diagnoses of a Language Based Learning Disability as well as a Reading Disorder. (AR at 244 (emphasis in original).) Based on this diagnosis, Dr. Wilding concluded that "[S.S.] will be most successful in a highly structured classroom with a low student-to-teacher ratio" and that he "needs individualized, systematic, daily instruction by a reading specialist." (AR at 244.)

Dr. Wilding provided a more detailed analysis in her October 23, 2007 testimony during the administrative hearing. Specifically, she explained that many of S.S.'s scores from the WJIII test that she had administered showed that he had significant difficulties in the areas of reading and language. Specifically, she testified that, although he was almost 13 years old at the time she evaluated him, S.S.'s reading and decoding skills were equivalent to those of a child "8 or 9-ish" years old. (AR at 547.) Moreover, she indicated that his reading difficulties affected his math scores such that his scores on basic calculation problems were in the average range, while his scores on word problems were in the very low average range. (AR at 550.) When comparing S.S.'s scores on the WJ-III test that she administered with those he received on the WIAT-II in 2005, Dr. Wilding concluded that S.S. "hasn't made very much progress . . . in the reading and writing areas" or in his receptive language skills, and that his oral language scores had actually declined, although she indicated that he had shown improvement in math. (AR at 552-53, 555-56.) She also criticized the reading and written language goals set forth in S.S.'s February 2007 IEP as inadequate and recommended that counseling goals be included in the IEP. (See AR at 562-67.) Moreover, Dr. Wilding testified that S.S. required a self-contained, full-time special education setting because he has shown that it's not possible for him to interact and learn in a setting as large as the setting that he is in right now. And he is going to need to get services ...


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