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Leighty v. Laurel School District

October 12, 2006

AMY LEIGHTY, A MINOR, WHO SUES BY AND THROUGH HER PARENTS AND NATURAL GUARDIANS, MARSHA AND CHRIS LEIGHTY, ON THEIR OWN BEHALF, PLAINTIFFS,
v.
LAUREL SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM OPINION AND ORDER

Before the Court for disposition are PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Document No. 11), with brief in support (Document No. 13), and DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Document No. 14), with brief in support (Document No. 15). Upon consideration of the filings of the parties, the evidence of record and the relevant statutory and case law, Plaintiff's Motion for Summary Judgment will be denied and Defendant's Motion for Summary Judgment will be granted.

Background

Plaintiffs Amy, Marsha and Chris Leighty [hereinafter "Plaintiffs" or "Leightys"] commenced this action against the Laurel School District [hereinafter "Defendant" or "District"] under the Individuals with Disabilities Education Act [hereinafter "IDEA"], 20 U.S.C. § 1400 et seq., and the matter is before the Court pursuant to 20 U.S.C. § 1415(i)(2). Plaintiff Amy Leighty, a student being educated in the District, has specific learning disabilities in the areas of reading, writing, speech and language. Plaintiff's Concise Statement of Material Facts at ¶ 3.*fn1 In April, 1996, pursuant to an evaluation, it was determined that she was eligible for special education. Id. at ¶ 4. The parties agree that Amy is a "child with a disability" within the meaning of 20 U.S.C. § 1401(3). Id. at ¶ 5. She has been receiving special education services, including learning support and speech and language therapy, since entering first grade. Id. at ¶ 6.

On October 6, 2000, a Comprehensive Evaluation Report [hereinafter "CER"] found Amy to have a Verbal IQ of 75, a Performance IQ of 94, and a Full Scale IQ of 83 on the Wechsler Intelligence Scale for Children, Third Edition [hereinafter "WISC-III"]. Id. at ¶ 7. This evaluation included a scaled score of 76 on the Developmental Test of Visual-Motor Integration and standard scores of 65-68 in reading, 65-74 in math and 77 in writing on the Woodcock-Johnson Achievement Test. Id. at ¶ 8. The evaluation report recommended that Amy be provided with an increase in speech and language support, continued resource room instruction in reading, and continued assistance in regular education classes such as math, science and social studies. Id. at ¶ 9. A similar private evaluation found her to have a Verbal IQ of 79, a Performance IQ of 102, and a Full Scale IQ of 88. Id. at ¶ 10.

As a child with a learning disability, Amy had an "individualized education program" [hereinafter "IEP"] within the meaning of 20 U.S.C. §§ 1412(a)(4), 1414(d). An IEP written in January, 2002, governing her sixth-grade school year, included goals and objectives related to her auditory processing and phonological awareness. Id. at ¶ 13. She was to be provided with speech and language therapy, small group assistance in her regular education classes, the assistance of an aide, assistive technology, and continued learning support for reading, language arts, spelling and social studies. Id. A subsequent IEP was prepared for the 2002/2003 school year, which was the year that Amy spent in seventh grade. Id. at ¶ 14. This IEP included increased speech and language therapy, continued learning support for reading, English and geography, and a study hall. Id.

During the fall of 2002, at the request of Amy's parents, Dr. Robin Barack, Ph.D., performed a psychological evaluation to determine the extent of Amy's progress through the educational system. Id. at ¶ 15. Dr. Barack's evaluation indicated that Amy had a Verbal IQ of 71, a Performance IQ of 90, and a Full Scale IQ of 78 on the WISC-III. Id. at ¶ 16. Having concluded that Amy was not making reasonable educational progress, Dr. Barack recommended that she be placed in the Kathern Dean Tillotson School [hereinafter "Tillotson"], which was designed specifically to educate disabled children. Id. at ¶ 18. Tillotson is an approved private school under 20 U.S.C. § 1412(a)(10)(B)(ii).

During the 2002/2003 school year, Amy received passing grades in all of her subjects. Id. at ¶ 19. The District issued a new CER on May 1, 2003. Id. at ¶ 20. This CER incorporated the private testing conducted at the request of Amy's parents and reported that Amy was receiving A's and B's in her regular education courses and B's and C's in her English and reading courses. Id. The CER indicated that Amy had made educational progress, but her parents filed a dissenting opinion. Id. at ¶¶ 21-22. On June 4, 2003, a revised IEP was created for Amy's eighth-grade school year. Id. at ¶ 23. In July, 2003, at the request of Amy's parents, Dr. Barack performed an updated psychological evaluation to determine the educational progress that Amy was making. Id. at ¶ 24. During this evaluation, Amy obtained slightly lower scores on the Woodcock-Johnson Achievement Test. Id. at ¶ 25.

Dr. Barack again opined that Amy had failed to make reasonable educational progress in the areas of reading, writing and math. Id. at ¶ 26. She continued to recommend that Amy attend a private school for children with learning disabilities, such as Tillotson, so that she could receive an intensive program to improve her reading, writing and math skills. Id. at ¶ 27. Dr. Barack relied on standardized test scores dating back to 2000 in order to formulate her opinion that Amy had not made reasonable educational progress during the 2002/2003 school year. Id. at ¶ 28. Results of Amy's Woodcock-Johnson III Tests of Achievement indicated that her scores went down to anywhere from two to seven points between November, 2002, and July, 2003. Id. at ¶ 29. One test score stayed the same, while another went up by one point. Id. Additional group achievement tests administered on March 31, 2003, found that Amy was functioning in the "non-mastery" level in the areas of reading, language, math, science and social studies. Id. at ¶ 31.

On July 24, 2003, Dr. Imad T. Jarjour, M.D., diagnosed Amy as having a moderate neurological impairment, thereby making her eligible for placement at Tillotson. Id. at ¶ 32. During the fall of 2003, a due process hearing was conducted pursuant to 20 U.S.C. § 1415(f). Id. at ¶ 33. On December 30, 2003, Hearing Officer David Lee [hereinafter "Hearing Officer"] issued an opinion in which he ordered the District to conduct a comprehensive assistive technology evaluation and to incorporate the resulting recommendations into Amy's IEP. Id. at ¶ 38. He also ordered the District to provide Amy with a total of eight hours of compensatory education for assistive technology "consultation/follow-up" and transition services. Id. Since the Hearing Officer concluded that the District had provided Amy with a "free appropriate public education" [hereinafter "FAPE"] as defined by 20 U.S.C. § 1401(9), he concluded that she was not entitled to compensatory educational services for the 2002/2003 school year. Id. at ¶ 39. He also determined that Amy was not entitled to be placed at Tillotson, since it was not deemed to be the "least restrictive environment" within the meaning of 20 U.S.C. § 1412(a)(5). Id.

Amy's parents filed exceptions challenging the Hearing Officer's conclusions that the District had provided Amy with a FAPE and that she was not entitled to be placed at Tillotson. Id. at ¶ 40. On February 4, 2004, the Appeals Panel unanimously affirmed the Hearing Officer's decision. Id. at ¶ 41. The Appeals Panel relied on Amy's grades, curriculum-based assessments, speech and language evaluation skills, and standardized test scores in order to form its decision that Amy had been provided with a FAPE. Id. at ¶ 42. It was determined that, in order for Amy to retain her relative position with respect to the standardized test scores, she needed to make one-year gains in terms of academic achievement. Id. at ¶ 44.

Discussion

The Leightys contend that the Appeals Panel's decision is contrary to the IDEA, that Amy is entitled to be placed at Tillotson, and that they are entitled to compensatory educational services for the violation of Amy's rights under the IDEA. Complaint, pp. 8-9. Both parties have filed motions for summary judgment, which are currently pending before the Court and, therefore, the subject of this opinion. Jurisdiction in this Court is proper under 20 U.S.C. § 1415(i)(2)(A), which permits an IDEA action such as this to be "brought in any State court of competent jurisdiction or in a district court of the United States, without regard to the amount in controversy." Under § 1415(i)(2)(C), the Court: "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." The parties in the instant case agree that no additional evidence is needed to supplement the record. Plaintiff's Motion for Summary Judgment at ¶ 4; Defendant's Motion for Summary Judgment at ¶ 5. The Court has received the records of the administrative proceedings and may, accordingly, proceed to make a determination pursuant to § 1415(i)(2)(C)(iii).

In Board of Education v. Rowley, 458 U.S. 176 (1982), commenting on the IDEA's predecessor statute, the U.S. Supreme Court explained that "the provision that a reviewing court base its decision on the 'preponderance of the evidence' is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Rowley, 458 U.S. at 206. The Court went on to say that the fact that the statute requires the reviewing court to receive the records of the administrative proceedings "carries with it the implied requirement that due weight shall be given to [those] proceedings." Id. The U.S. Court of Appeals for the Third Circuit recently noted that, "[w]hen deciding an IDEA case, the District Court applies a modified version of de novo review and is required to give due weight to the factual findings" made during the course of the administrative proceedings. L.E. v. Ramsey Board of Education, 435 F.3d 384, 389 (3d Cir. 2006). In Shore Regional High School Board of Education v. P.S., 381 F.3d 194 (3d Cir. 2004), the Court of Appeals stated as follows:

The burden of proof that a District Court must apply when an IDEA decision by a state agency is challenged is unusual. Although the District Court must make its own findings by a preponderance of the evidence, the District Court must also afford due weight to the [agency's] determination. Under this standard, factual findings from the administrative proceedings are to be considered prima facie correct, and if a reviewing court fails to adhere to them, it is obliged to explain why. In addition, if a state administrative agency has heard live testimony and has found the testimony of one witness to be more worthy of belief than the contradictory testimony of another witness, that determination is due special weight. Specifically, this means that a District Court must accept the state agency's credibility determinations unless the non-testimonial, ...


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