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Bethlehem Area School District v. Diana Zhou

April 9, 2013

BETHLEHEM AREA SCHOOL DISTRICT
v.
DIANA ZHOU



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

MEMORANDUM AND ORDER

In bringing this case, a school district relies upon a provision of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C.A. § 1415(i)(3)(B)(i)(III), that permits recovery of costs from a parent who has presented a claim or subsequent cause of action for any improper purpose.*fn1

In support of my conclusion that the district is entitled to its costs, I hereby make the following:

FINDINGS OF FACT

1. The Bethlehem Area School District is a regularly constituted school district of Pennsylvania. It provides educational services to children from the city of Bethlehem, two boroughs, and two townships and does so with sixteen elementary schools, four middle schools, and two high schools. During the times that are important in this litigation, it had approximately 15,000 students of whom approximately 2,200 were children who had disabilities, ranging from those with minimal special needs to those who had total care requirements.

2. School districts in Pennsylvania are governed by a series of laws, two of which are important here: the IDEA, §§ 20 U.S.C. 1400 et seq., a federal law, and the Special Education for Gifted Students ("SEGS"), 22 Pa. Code § 216.1 et seq., a state law.

3. The IDEA requires that the school district provide to each child with disabilities a free, appropriate, public education, one that is specially designed to meet the child's needs together with such related services that are required to do so. The education and services shall be under public supervision and direction and are to be without cost to the child and his or her parents.

4. The IDEA does not require the school district to provide the best possible education but one that is more than minimal. The IDEA does not require a school to provide all that a parent wants or whatever may be required for a child to reach his or her fullest potential. The IDEA does not require a guarantee that a child will even be equipped to get a job, raise a family, and become a contributing member of society.

5. The IDEA requires that school districts develop and put into place an Individual Education Plan ("IEP") for each child with disabilities so that there will be benefits that can be measured. An IEP is appropriate if the data shows that the child is making progress based upon that plan. Parents play a significant role in this process. They serve as members of a team that develops the IEP and their concerns for enhancing the education of their child must be considered by the IEP team. Nonetheless, the IDEA places the primary responsibility for developing and executing an educational program on the state acting through it agencies. In addition, the IDEA relies heavily upon the expertise of school districts to meet its goals. Schaffer v. Weast, Superintendent, Montgomery County Schools, et al., 546 U.S. 49 (2005).

6. Other members of the IEP team include at least one regular teacher, at least one special education teacher, a representative of the district, and if appropriate, the child. The IEP is created by the team -- the particular views of each member will be considered but his or her ideas will not be determinative.

7. The goal is always to provide for a child's needs in the regular education setting, referred to as the least restrictive environment, rather than taking him or her from the regular classroom to some other classroom.

8. The SEGS program requires specially designed instruction based on the student's need and ability and as well as opportunities to participate in acceleration or enrichment, or both. As with the IDEA's requirement for the preparation of an IEP, SEGS requires the preparation of a Gifted Individual Education Plan ("GIEP") so that a gifted child's needs will be identified and progress toward stated goals can be measured.

9. Upon the completion of an IEP, the district prepares a Notice of Recommended Educational Placement ("NOREP") for each IEP. On receipt of a student's NOREP, the parent indicates whether he or she approves or disapproves the recommended program. If the parent disagrees, he or she has the option of requesting a pre-hearing conference, a mediation, or a due process hearing. If the parent does not indicate a request for one of these three options, a school district may choose to implement the proposed IEP.

10. A parent who is not satisfied with the NOREP challenges it by filing a complaint. The district then convenes a pre-hearing conference. The parent meets with the relevant members of the IEP team who have specific knowledge of the facts identified in the complaint. At this meeting, the parent and the district representative discuss the complaint, the facts that form its basis, and whether the team can resolve any outstanding issues.

11. Mediation is a voluntary process. The parties meet with a neutral state officer who will attempt to bring them to an agreement. Mediation is more formal than a pre-hearing conference, but less formal and in most instances an easier forum for resolving disputes than the final step, a due process hearing

12. At a due process hearing, a state officer hears testimony, considers documents, briefs, and argument, makes findings, and ultimately decides whether the IEP is appropriate or not. The district is represented by counsel and the parent may be, but is not required to be represented by counsel.

13. The filing of a complaint by a parent requires extensive preparation by the district. Meetings with counsel require participation by supervisors, principals, counselors, and teachers, all of whom must set aside their regular duties. Teachers cannot meet with their classes and thus substitute teachers must be provided. Counsel must be paid -- and depending how long hearings may last -- the district may incur expenses from $10,000, $60,000 to $70,000, or even higher. See N.T., Aug. 6, 2012, at 48 (Agretto testimony).

14. If a school district prevails when a parent has requested a due process hearing and believes that the parent filed or pursued the complaint for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation, the IDEA permits the district to seek its costs, including attorneys fees, against the parent. 20 U.S.C. § 1415(i)(3)(B)(i)(III).

15. It is that provision of the IDEA which forms the basis of this suit. *fn2

16. Diana Zhou is the mother of two sons, M.Z., who was born on November 24, 1995, and J.Z., who was born on February 23, 1999, both of whom were district students. Mrs. Zhou was born in China and Mandarin Chinese is her native language. She studied electrical engineering in China, came to the United States in the 1980s, and was graduated from the University of Arizona in 1989 with a degree in electrical engineering. She was employed as an electrical engineer for 10 years but is no longer employed.

17. Mrs. Zhou's parents lived with her and the two boys. Mandarin Chinese is the only language spoken in the home.

18. Although not perfect, Mrs. Zhou's English was understandable and the district's teachers, counselors, and administrators had no difficulty in communicating with her.

19. Mrs. Zhou appeared before me at a hearing and as a trial witness. Although she sometimes spoke too rapidly for me to follow what she was saying, I had little difficulty in understanding her when she spoke slowly. She did not appear to have any significant difficulty understanding the testimony of other witnesses, or questions posed to her when she testified. On occasion she asked for the translation of a word.

20. Both M.Z. and J.Z. are gifted students and both received gifted services from the district. In addition, M.Z. was diagnosed as having Central Auditory Processing Disorder ("CAPD") and Pervasive Developmental Disorder Not Otherwise Specified ("PDD-NOS"). The former is not a problem of hearing but interpreting what is heard, especially if the environment is less than ideal. The latter is considered a form of autism, usually a milder form, and lacking in some of autism's characteristics.

21. Mrs. Zhou is ambitious for her two sons and their success in life -- not merely to achieve, but to excel. Early on she recognized that both were gifted. Blessed with tremendous energy and ability, she read, studied, planned, suggested, and made demands upon the district. Mrs. Zhou is highly intelligent, well-informed, and uncompromising. To further her knowledge, Mrs. Zhou met with other parents whose children also suffered from autism. She suggested programs and methods to take the place of those the district was using. She devised reports she wanted the boys' teachers to complete. She submitted check lists and charts to better record progress. If there were district programs and services that Mrs. Zhou accepted, there were always additions, stipulations, and something more that she wanted.

22. It is necessary for a parent to meet with his or her child's teachers and counselors. A parent is encouraged to take part in the preparation of IEPs. However, the sheer volume of a parent's suggestions, requests, and demands, their nature, and a parent's insistence that they be adopted, especially if the IDEA's purposes and limitations are ignored, may be unreasonable, lacking in good faith, and even may be evidence of an improper purpose.

23. From before M.Z. entered kindergarten in September of 2001, Mrs. Zhou was aware that she could formally challenge decisions made by the district concerning the education of her sons. In June of 2001, she requested a pre-hearing conference so she could discuss her concerns about an IEP that had been prepared for M.Z. and his needs if he was to be successful in school. Trial Exhs., Z-3, Z-4.

24. In May of 2003, Mrs. Zhou requested a due process hearing despite the fact that there had been several pre-hearing conferences and a mediation. Mrs. Zhou disagreed with the IEP that had been prepared for M.Z. and wanted each of his teachers to complete a weekly skills-in-training chart she had provided.

25. When M.Z. entered kindergarten in 2001 and thereafter, Claire Hogan was the elementary school supervisor of special education overseeing the needs of approximately 500 children. Over the years while M.Z. was in elementary school, Ms. Hogan had numerous meetings and conversations with Mrs. Zhou, formal and informal, as well as in connection with the preparation of IEPs and for mediations and hearings.

26. Ms. Hogan testified that Mrs. Zhou continually rejected the district's recommendations for the district's services to M.Z. despite his progress, and although she understood Ms. Hogan's explanations, Mrs. Zhou insisted that things be done her way. She tried to dictate curriculum, wanted weekly reports from each of her son's teachers, and presented books, charts, and strategies that she had found. If Mrs. Zhou did not get exactly what she wanted, she would access her rights and go for a pre-hearing conference, a mediation, or a due process hearing despite the similarity of issues and the fact that the district's position was previously affirmed at the due-process level. She requested hearings when other hearings were still pending. Ms. Hogan spent "many, many hours" meeting with Mrs. Zhou and there were hearings that lasted until midnight. Ms. Hogan rearranged her schedule so she could try to obtain Mrs. Zhou's agreements.

27. Ms. Hogan testified further that in her 28 years in education, 18 as an administrator for special education services, no parent had asked for as many pre-hearings conferences, mediations, and due process hearings as had Mrs. Zhou. Ms. Hogan considered Mrs. Zhou's filings to be improper.

28. I accept Ms. Hogan's statements, conclusions, and opinions as being accurate and include them as part of these findings of fact.

29. In 2005, Michele M. Fragnito was the principal at the elementary school that M.Z. and J.Z. attended. In that capacity, she had many contacts with Mrs. Zhou and was thoroughly familiar with Mrs. Zhou's suggestions, requests, demands, and the programs provided for M.Z. and J.Z. Some of Mrs. Zhou's demands were unreasonable. Mrs. Zhou's refusal to accept plans presented to her made necessary a constant revision of GIEPs and IEPs. Ms. Fragnito testified that no matter what was provided, Mrs. Zhou wanted more. Mrs. Zhou telephoned teachers directly while they were busy in the classroom and violated the school's sign-in procedures.

30. Ms. Fragnito testified that in her 35 years in education, 20 of them as an elementary school principal, she had never known a parent to exercise her due process rights as Mrs. Zhou did. Mrs. Zhou initiated between four and six due process hearings, even filing for a new one while another hearing was pending. In each instance, the district prevailed with the hearing officer determining that the services being provided were in keeping with that which was required.

31. I accept Ms. Fragnito's statements, conclusions, and opinions as being accurate and include them as part of these findings of fact.

32. Richard Agretto, the district's director of special education, testified that Mrs. Zhou always wanted more for M.Z. than other students were receiving -- their class size reduced, more acceleration, occupational therapy services, always more for M.Z. despite the fact that he was making appropriate progress with the services that were already in place. Over time, hundreds and hundreds of hours of conversations and discussions took place between Mrs. Zhou and the school's staff. Mrs. Zhou used due process hearings to challenge the services that were planned and provided, but each time she did so, the district's position was affirmed. Nonetheless, whenever a due process hearing was requested teachers were pulled from their classrooms, administrators taken from their buildings, substitute teachers provided and paid. The expenses all added up.

33. Mr. Agretto stated the district felt Mrs. Zhou was holding over its head the threat of due process knowing the hearings' impact on the staff, and that these hearings left the IEP team ...


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