The opinion of the court was delivered by: DuBOIS, Judge.
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.
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
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
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.
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.
Based on its staff members' observations, as well as information
obtained from the parents, early intervention teachers, therapists, and
private physicians, the District prepared a Comprehensive Evaluation
Report dated May 24, 2000. H.O., F.F. No. 13. Notwithstanding the alleged
inconsistencies between the preschool teacher's assessments of Molly and
the District's staff members' observations, the District agreed with the
parents that Molly was a disabled child and, therefore, eligible for
services under the Rehabilitation Act and Chapter 15 of the Pennsylvania
School Code. Accordingly, the District scheduled a meeting with the
parents to discuss services that could be provided for Molly upon her
entering into a District school; after two meetings were postponed, the
parents and the District met on August 29, 2000. H.O., F.F. Nos. 14-16.
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
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
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
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
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.
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 ...