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Jose A. Lebron, et al v. North Penn School District

February 14, 2011

JOSE A. LEBRON, ET AL., PLAINTIFFS,
v.
NORTH PENN SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Anita B. Brody, J.

MEMORANDUM

This dispute involves plaintiff parents' objections to a defendant school district's educational plan for their autistic son. Plaintiffs claim that the school district's proposed kindergarten plan violated the Individuals with Disabilities Education Act ("IDEA" or "the Act").

I.BACKGROUND

IDEA's predecessor statute was enacted in response to a congressional finding that a majority of children with disabilities did not receive appropriate educational services. Oberti v. Bd. of Educ. of Clementon Sch. Dist., 995 F.2d 1204, 1213 (3d Cir. 1993); see 20 U.S.C. § 1400(c)(2). Today, IDEA authorizes federal grants to states on the condition that they provide appropriate education to children with disabilities and that they do so in accordance with the Act. 20 U.S.C. § 1411. The Act describes how states should evaluate eligible children's educational needs and develop individualized educational plans ("IEPs"). 20 U.S.C. §§ 1412--1414. An IEP is a written document that is tailored for a particular child's unique needs. 20 U.S.C. § 1414(d). It describes the child's present abilities and challenges, sets measurable goals and methods to measure the child's progress towards those goals, and prescribes services and modifications for the child. Id.; 34 C.F.R. § 300.320(a); see 22 Pa. Code § 14.102(a)(2)(xxvii) (incorporating 34 C.F.R. § 300.320 by reference).

Plaintiffs bring this action on behalf of P.L., a seven-year-old boy who resides in North Penn School District ("District").*fn1 Pa. Special Educ. Hearing Officer Order, No. 00004-0910LS (Aug. 24, 2009), R. Ex. 2, at 3, ¶ 1 [hereinafter Decision]. When P.L. was almost three years old, P.L. was diagnosed with a developmental disorder, id. ¶ 4; he was later identified as autistic with a speech and language impairment, id. ¶ 2. For the 2008-2009 school year, P.L. attended a private pre-kindergarten program for two-and-a-half hours per weekday in a class of typical peers. Id. ¶ 6. In addition, he received services including weekly speech and language therapy, occupational therapy, monthly teacher support, a weekly social skills group, and weekly behavior support and socialization training. Id. at 4, ¶ 7.

The Defendant District became responsible for providing P.L. with special education services beginning in kindergarten, the 2009-2010 school year. Id. at 3, ¶ 1. In preparation, P.L. was evaluated and observed in order to design an appropriate IEP. Id. ¶ 10. On May 11, 2009, an IEP meeting was held to discuss P.L.'s IEP for the upcoming kindergarten year. R. at Ex. 4, P-1 at 3. On May 22, 2009, the District formally recommended an IEP to P.L.'s parents ("Parents") that provided for P.L. to attend a regular education kindergarten program with supplemental special education services. R. at Ex. 4, P-7. The Parents did not agree with the recommended supplemental services. R. at Ex. 4, P-8 at 5. An informal meeting was held to discuss their concerns. R. at Ex. 4, P-1 at 3; R. at Ex., 4, P-12 at 1.

Though the District and the Parents ultimately agreed on P.L.'s needs and the types of services that the District recommended,*fn2 the parties could not agree on the amount and location of his supplemental services. The District recommended that P.L. spend all fifteen hours a week of a regular education kindergarten program and that he also attend an additional fifteen hours a week in a support class for similar students with high-functioning autism. R. at Ex. 4, P-11 at 2, 4. Because the support class was not currently available for kindergartners at P.L.'s neighborhood school, the IEP was to be implemented at nearby Montgomery Elementary School.

R. at Ex. 4, P-15 at 2, 5. The Parents agreed with the recommendation that P.L. attend a regular education classroom, but they objected to sending P.L. to a different school and to an additional class composed entirely of students with similar needs. R. at Ex. 4, P-8 at 5; R. at Ex. 4, P-11, at 3. Instead of a daily support class, they preferred that P.L. receive itinerant services and that his program be implemented at his neighborhood school. R. at Ex. 4, P-1 at 4.

On July 1, 2009, the Parents requested an expedited due process hearing pursuant to 20 U.S.C. § 1415(f) to challenge the District's kindergarten IEP. R. at Ex. 4, P-1. On August 5, 2009, the parties appeared before an impartial Pennsylvania Special Education Hearing Officer ("Hearing Officer") to resolve their dispute. The Parents argued that the proposed IEP did not provide P.L. with an education in the least restrictive environment. They wanted P.L. to attend a regular education class at his neighborhood school and be provided with: a one-to-one aide present in the class to assist him, speech and language services sessions in the classroom, as well as after-hours services with speech and language therapists. See R. at Ex. 4, P-1 at 3-4. The District argued that it had considered the program that the Parents suggested, but concluded that ad hoc services would not provide P.L. with an appropriate education for his needs. See, e.g., R. at Ex. 3, Tr. 30:3-34:7; R. at Ex. 4, P-7 at 1; R. at Ex. 4, P-8 at 2. It explained that the supplemental autistic class would better educate P.L. and that such a class could not currently be provided for kindergartners at his neighborhood school. R. at Ex. 4, P-7 at 34; R. at Ex. 4, P-15 at 5.

On August 24, 2009, the Hearing Officer issued a decision in favor of the District.*fn3

Decision 17. She found that the Parents did not meet their burden of showing the District's proposed IEP was inappropriate. She rejected the Parents' least restrictive environment argument because the District's plan did not seek to remove P.L. from any part of the regular education instruction. On November 18, 2009, the Parents filed suit in this Court to challenge the Hearing Officer's conclusions, pursuant to 20 U.S.C. § 1415(i)(2)(A). The Parents ask that this Court vacate the administrative order, issue a declaratory judgment that the District's IEP violated IDEA, and reimburse them for attorney fees and costs.*fn4

II.LEGAL STANDARD

In an IDEA action, 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." 20 U.S.C. § 1415(i)(2)(C). District courts employ a "modified de novo" review of the administrative proceedings. S.H. v. State-Operated Sch. Dist. of Newark, 336 F.3d 260, 270 (3d Cir. 2003). The administrative agency's factual findings are given "due weight." Shore Regional High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir. 2004). A reviewing court defers to those factual findings unless the court "can point to contrary non-testimonial extrinsic evidence on the record." S.H., 336 F.3d at 270; Carlisle Area Sch. v. Scott P. by & Through Bess P., 62 F.3d 520 (3d Cir. 1995). While this standard is not as deferential as that used to review other agency actions, courts are not free to "substitute their own notions of sound education policy for those of the educational agencies they review." Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 757 (3d Cir. 1995) (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 205-06 (1982)).

III.DISCUSSION

There are a number of motions and briefs before me. Both parties move for summary judgment. ECF Nos. 29, 41, 45 (Defendant's motion and related briefing); 31, 42, 43 (Plaintiffs' summary judgment brief*fn5 and related briefing). The Defendant also moves to strike Plaintiffs' motion for summary judgment and the evidence attached thereto, ECF No. 36, and Plaintiffs respond with a cross-motion to admit additional evidence, ECF No. 40; see also ECF Nos. 44, 46 (related briefings). Collectively, these filings present the following questions: (a) should Plaintiffs' additional evidence be admitted; (b) was the Hearing Officer correct in finding that the IEP did not violate IDEA; and (c) are Plaintiffs statutorily eligible for attorney fees?

A. Review of Additional Evidence

Plaintiffs ask the Court to admit three pieces of additional evidence: (1) an expert report by Educational Consultant Marie Lewis; (2) a report signed by behavioral analyst Tim Nipe; and (3) P.L.'s progress report for his kindergarten year at a private school.*fn6 Pls.' Cross-Motion 1-2, ECF No. 40. This evidence was not offered to the Hearing Officer before she issued her decision. Defendant moves to strike these submissions on a number of grounds--from procedural improprieties to irrelevance.

IDEA allows parties to proffer evidence outside of the administrative record to a district court. 20 U.S.C. § 1415(i)(2)(C)(ii). After reviewing the evidence, however, it is within the discretion of the court to decide to exclude it. Susan N., 70 F.3d at 760. Courts have rejected a bright-line rule as to when evidence should be excluded. Id. (citing Town of Burlington v. Dep't of Educ. for Mass., 736 F.2d 773, 790-91 (1st Cir. 1984)). Rather, courts review proffered evidence to determine whether it is "relevant, non-cumulative and useful in determining whether Congress's goal has been reached for the child involved." Susan N., 70 F.3d at 760. After-acquired evidence about how a child actually fared subsequent to an school district's action "may be considered only with respect to the reasonableness of the district's decision at the time it was made." Susan N., 70 F.3dat 762. This type of evidence should be used quite cautiously to ensure that a court does not second-guess "a school district with information to which it could not possibly have had access at the time it made those decisions . . . ." Id.

1. The Lewis Report

The Parents urge the Court to consider an expert report prepared on May 4, 2010 by Educational Consultant Marie Lewis, Ph.D. ("Lewis Report"). The report primarily offers an analysis of the Hearing Officer's weighing of evidence. E.g., Lewis Report 3 (claiming that the Hearing Officer did not "give adequate weight" to two of Plaintiffs' exhibits); 6 (speculating that "administrative convenience was a determining factor"). Plaintiffs attempt to persuade this Court to rely on her report by analogizing it to a judge who uses "her own expert to evaluate the defendant" for a criminal sentencing. Pls.' Cross-Motion 15 n.2, ECF No. 40. This analogy is inapt because Lewis's report evaluates the Hearing Officer's abilities-not P.L.'s. While courts sometimes accept expert evaluations of a student in IDEA actions, these evaluations should not present legal analysis. See Moorestown Twp. Bd. of Educ. v. S.D., 2010 U.S. Dist. LEXIS 109856, at *12-13 (D.N.J. Oct. 15, 2010) (rejecting proffered expert evidence in IDEA action insofar as the testimony constituted legal analysis). One's opinion about whether an administrative hearing officer complied with the law is not a proper subject for an expert evaluation. Lewis's criticisms would have been more suitably submitted to an attorney to use to formulate arguments to the Court-they will not be admitted as evidence.

To the extent that the Lewis Report contains some opinions that are within the capacity of an educational expert to offer, the author does not explain her basis for arriving at these conclusions sufficiently for me to accord them with any weight. E.g., Lewis Report 4, 7-9 (recommending educational services for P.L. without identifying a methodology or any personal interaction with P.L. upon which her recommendations are based). The probative value of the Lewis Report is also undermined by the mistaken belief that the recommended autistic support class was to replace, rather than supplement, instruction in a regular education classroom for P.L. Lewis Report 11 ("The use of a 1:1 Aide was used as a reason for placing [P.L.] in a more restrictive setting and defining him as having a disability that was so severe as to not allow him to participate in a regular education setting. . . . A full range of supplemental aides in regular education are regularly available . . .to avoid taking a child out of the regular education and placing them, [sic] in more restrictive environments, [sic] like an ...


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