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L. v. LOWER MERION SCHOOL DISTRICT

April 2, 2002

MOLLY L., BY AND THROUGH HER NATURAL PARENTS AND NEXT FRIENDS, B.L. AND M.L., PLAINTIFFS,
V.
LOWER MERION SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: DuBOIS, Judge.

MEMORANDUM

INTRODUCTION

Molly L., is an eight-year-old girl who, with her parents B.L. and M.L., resides within the Lower Merion School District ("the District"). B.L. and M.L. enrolled Molly in the District in February 2000, intending that she enter a first-grade classroom at the beginning of the 2000-2001 school year. Because Molly suffers from disabling conditions, including severe asthma, gross motor difficulties, and extreme sensitivity to sensory stimulations, the District prepared a "Section 504 Service Agreement" under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Rehabilitation Act" or "Section 504"), and Chapter 15 of the Pennsylvania School Code, enumerating nineteen accommodations that the District would implement on Molly's behalf. B.L. and M.L. rejected the Section 504 Service Agreement and unilaterally placed Molly in the private Gladwyne Montessori School ("GMS"). B.L. and M.L. then commenced a due process hearing before a Pennsylvania special education hearing officer seeking reimbursement for tuition they paid to GMS. The Hearing Officer rejected the parents' request, finding that the District's accommodations provided Molly with a free appropriate public education.

Molly, through B.L. and M.L. (referred to collectively as "plaintiffs"), subsequently filed a one-count Complaint in this Court under the Rehabilitation Act seeking reimbursement of $9,000 for tuition at GMS, attorney's fees, and independent evaluation fees. Presently before the Court are Plaintiffs' Motion for Summary Judgment on the Administrative Record Below (Document No. 7, filed September 18, 2001), and Defendant's Response to Plaintiffs' Motion for Summary Judgment and Cross Motion for Summary Judgment (Document No. 8, filed September 28, 2001). As memorialized in the Court's Scheduling Order of July 30, 2001, the parties agree that the Court should decide the case based on the administrative record.

For the reasons set forth in this Memorandum, the Court denies plaintiffs' Motion for Summary Judgment and grants defendant's Cross Motion for Summary Judgment. Accordingly, judgment is entered in favor of defendant and against plaintiffs.

BACKGROUND

The facts of the case are taken from the administrative record, and may be summarized as follows:

During the 1999-2000 school year, Molly attended a kindergarten program at the Beth Hillel private preschool. H.O., F.F. No. 3.*fn1 After B.L. and M.L. enrolled Molly in the District in February 2000, the District assigned four staff members to observe Molly at Beth Hillel. H.O., F.F. No. 9 (citing R. at 27, 71, 97, 128).*fn2 Molly's teacher at Beth Hillel informed the observing staff members that Molly had a history of being hypersensitive to sensory stimulation, including odors, touch, and loud noises; that Molly had difficulty staying in one position and would rock or rub her body against the chair in which she was sitting; and that Molly needed teacher support when she felt overwhelmed and when she was anxious. H.O., F.F. No. 11 (citing R. at 31, 75, 101, 111-13, 143, 190). Although the District's observers did not see evidence confirming all of the preschool teacher's assessments of Molly, id., the parties agree that Molly has a motor delay of two years, is generally hypotonic, lacks balance when walking, walks slowly, has decreased muscle strength, and has severe problems with asthma and endurance. H.O., F.F. No. 12 (citing R. at 274-77). A psychologist hired by the parents to evaluate Molly, Dr. Karen Berberian, found that Molly was functioning intellectually in the average to high-average range; Dr. Berberian found Molly to be a "charming delightful, socially appropriate, outgoing child," who, "[g]lobally speaking," was "a very competent child." R. at 177.

Following the August 29, 2000, meeting, the District proposed a Section 504 Service Agreement ("Service Agreement"), which placed Molly at Belmont Hills Elementary School and provided nineteen individual accommodations that purportedly addressed Molly's disabilities. See Pls.' Mot. Ex. 1 at 3 ("Accommodations"). Seven of those accommodations are relevant for purposes of the pending motions, as follows:

Provision of a "classroom aide" who would be available to Molly throughout the school day. Accommodations at ¶ 3.
Use of a "non-verbal signal" to make Molly "aware of inappropriate sensory stimulation." Id. at ¶ 5.
Having the classroom aide supervise Molly at recess, a physical therapist evaluate Molly on the playground to ensure Molly's safe negotiation of playground equipment, and allowing Molly to enter and exit recess during less congested times. Id. at ¶ 7.
Allowing Molly "preferential seating" in the school lunchroom "to minimize the environmental influences," giving Molly the "option to eat in a separate, quiet environment if that is needed," and having an aide in the lunch room. Id. at ¶ 9.
Having an aide meet Molly at the school bus and allowing Molly to "be the last one off of the bus to avoid being bumped." Id. at ¶ 10.
Forewarning Molly of "Buzzers that go off at specific times," forewarning the aid of scheduled fire drills so "she can prepare Molly," and, during "unexpected fire drills or emergencies," having the aide "hold Molly's hand" to assist Molly in leaving the building. Id. at ¶ 13.
Allowing Molly to "opt out of activities that have sensory components that are negative to her" including art class activities. Id. at ¶ 14.

On September 8, 2000, B.L. signed the District's Notice of Recommended Assignment; on the Notice B.L. checked a box stating that he did not approve of the District's recommended accommodations and wrote as follows: "Does not appropriately address Molly's needs. Will also be unacceptably restrictive." Pls.' Mot. Ex. 2. The parents had previously notified the District by letter dated August 29, 2000, that they were placing Molly at GMS for the 2000-2001 school year and would be seeking reimbursement of tuition. H.O., F.F. No. 22.

The parents then requested a special education due process hearing seeking reimbursement of tuition they had paid to GMS. A hearing was held before Hearing Officer Barbara G. Meranze ("Hearing Officer") on three separate dates: November 1, 2000, November 22, 2000, and December 4, 2000. Thereafter, the Hearing Officer issued an undated decision including findings of fact, a discussion of the case, and four orders. Pls.' Mot. Ex. 4. The Hearing Officer concluded that the District had provided a free appropriate public education in the accommodations included in the Section 504 Service Agreement, H.O. Order No. 1, and, accordingly, concluded that the parents were not entitled to tuition reimbursement. H.O. Order No. 2. Despite these rulings in favor of the District, the Hearing Officer also ordered the District to "meet with the [parents] and enlarge upon the accommodations offered, so that the [parents] are aware of the extent of what is being offered." H.O. Order No. 3. Additionally, the Hearing Officer ordered the District to "arrange for the modulation of bells and buzzers in the areas of the Belmont Hills School to which Molly is to be assigned." H.O. Order No. 4.

Plaintiffs then commenced the present action under the Rehabilitation Act, seeking reimbursement of tuition, attorney's fees, and independent evaluation fees.

DISCUSSION

Plaintiffs argue in their Motion that the seven specific accommodations in the Section 504 Service Agreement discussed above, see supra § II, were "not educationally appropriate." Specifically, plaintiffs assert that the Service Agreement was inappropriate in that it provided for: (1) a one-on-one aide who would have singled Molly out from her peers; (2) the use of non-verbal signals to make Molly aware of inappropriate sensory simulation; (3) Molly's participation in recess periods with very large groups of children; (4) including Molly in a large school lunchroom or excluding Molly from peer interaction during the daily lunch period; (5) transporting Molly to and from school on a daily basis in a large school bus; (6) using loud buzzers in Molly's presence and forewarning Molly about pending buzzer activations notwithstanding the fact that such warnings would not help Molly tolerate the buzzer noise; and (7) allowing Molly to opt out of activities without first calling for adaptations and modifications of activities. Plaintiffs also raise a general, catchall, argument based on the testimony of Molly's treating psychologist, Dr. Berberian, that the accommodation plan would not allow Molly to make meaningful educational progress.

Aside from bare citations to the record purportedly supporting plaintiffs' assertions that the above-listed accommodations are not educationally appropriate, plaintiffs provide no argument as to why the accommodations are inappropriate. The District counters plaintiffs' conclusory arguments by asserting that plaintiffs' witnesses testified inconsistently and, generally, failed to explain how the accommodations in the Service Agreement were inappropriate. Before addressing the parties' arguments, the Court will briefly discuss the legal principles governing the Court's evaluation of plaintiffs' Rehabilitation Act claim.

A. GOVERNING LEGAL PRINCIPLES

The Court divides its analysis of the governing legal principles into two separate sections considering (1) the substantive law and (2) the appropriate standard of review the Court should adopt in evaluating the administrative record.

1. Substantive Law

The substantive requirements of the Rehabilitation Act in the education context are equivalent to the requirements set forth in the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA"). See Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 253 (3d Cir. 1999) ("Ridgewood") (citing W.B. v. Matula, 67 F.3d 484, 492-93 (3d Cir. 1995)) (explaining Third Circuit's holding that "that there are few differences, if any, between IDEA's affirmative duty and § 504's negative prohibition"). The regulations implementing the Rehabilitation Act track the language of IDEA and provide that districts subject to the Act's requirements "shall provide a free appropriate public education to each qualified handicapped person who is in the [district]'s jurisdiction." 34 C.F.R. § 104.33(a); see also W.B., 67 F.3d at 493 (discussing Rehabilitation Act implementing regulations). Thus, although IDEA does not apply in this case,*fn3 the Court's analysis is informed by IDEA and cases interpreting that statute.

For plaintiffs to prevail on their Rehabilitation Act claim, they must prove that (1) Molly is "disabled" as defined by the Act; (2) Molly is "otherwise qualified" to participate in school activities; (3) the District is a "recipient" of federal financial assistance; and (4) Molly was excluded from participation in, or denied the benefits of education in the District. Ridgewood, 172 F.3d at 253. Plaintiffs need not prove that the School District's allegedly discriminatory acts were intentional. Id. The parties agree that the only disputed element of the § 504 analysis is the fourth element — whether Molly was excluded from participation in, or denied the benefits of education in the District. The sole question for this Court's consideration is, therefore, whether the District's Section 504 Service Agreement provided a "free appropriate public ...


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