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G.S. v. Fairfield Board of Education

United States District Court, D. Connecticut

July 7, 2017

G.S., by and through her parents and next friends, L.S. and R.S., Plaintiff,
v.
FAIRFIELD BOARD OF EDUCATION, Defendant.

          RULING RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT (DOC. NOS. 34 & 35)

          Janet C. Hall United States District Judge.

         TABLE OF CONTENTS

         I. INTRODUCTION ...................................................................................................... 2

         II. BACKGROUND ....................................................................................................... 3

         A. Facts ..................................................................................................................... 3

         B. Procedural History: Due Process Hearing ............................................................ 9

         III. LEGAL STANDARDS ......................................................................................... 11

         A. IDEA Framework ................................................................................................ 11

         B. Motion for Summary Judgment in IDEA Cases: Standard of Review ................. 14

         IV. DISCUSSION ..................................................................................................... 17

         A. Ninth Grade (2015-16) ....................................................................................... 17

         1. Fairfield's IEP as a FAPE .............................................................................. 18

         2. Spire School as an Appropriate Placement .................................................. 22

         3. Equitable Considerations .............................................................................. 27

         B. Eighth Grade (2014-15) ..................................................................................... 32

         1. Bullying ......................................................................................................... 34

         2. Fairfield's IEP as a FAPE .............................................................................. 38

         a. Emotional Support ..................................................................................... 39

         b. Executive Functioning ................................................................................ 41

         c. Writing Goals ............................................................................................. 44

         V. CONCLUSION ....................................................................................................... 47

         I. INTRODUCTION

         Plaintiff G.S. (“Student”) filed this suit to contest certain conclusions of a Hearing Officer appointed by the Connecticut State Department of Education to hear her claims that defendant Fairfield Board of Education (“Fairfield” or “the Board”) violated the Individuals with Disabilities Education Act (“IDEA”). See generally Compl. (Doc. No. 1) ¶¶ 22-29. Fairfield has filed a counterclaim, in which it alleges error in other portions of the Hearing Officer's Final Decision and Order. See generally Answer (Doc. No. 19) at 7 ¶ 1 - 12 ¶ 13.

         Each party has filed a Motion for Summary Judgment. Student's Motion seeks a ruling from this court: (1) affirming the Hearing Officer's determination that the 2015-16 Individualized Education Program (“IEP”) proposed by Fairfield was not appropriate; (2) affirming the Hearing Officer's determination that the Spire School was an appropriate placement for Student; (3) reversing the Hearing Officer's determination that Fairfield need not reimburse Student's parents (“Parents”) for the costs of their unilateral placement of Student at the Spire School for the 2015-16 school year, due to equitable considerations; (4) reversing the Hearing Officer's determination that the 2014-15 IEP was appropriate; and (5) reversing the Hearing Officer's determination that the 2014-15 IEP did not need to be modified in light of several incidents Student perceived as bullying. See Pl.'s Mot. for Summ. J. on Administrative R. (“Pl.'s Mot.” or “Plaintiff's Motion”) (Doc. No. 34) at 1-2. Fairfield's Motion asks this court to reverse the Hearing Officer's determination that the 2015-16 IEP was not appropriate, and to reverse the Hearing Officer's determination that the Spire School was an appropriate placement. See Def.'s Mot. for Summ. J. (“Def.'s Mot.” or “Defendant's Motion”) (Doc. No. 35) at 1. Both parties have filed Oppositions to their opponent's Motion, see generally Def.'s Mem. of Law in Opp'n to Pl.'s Mot. for Summ. J. (“Def.'s Opp'n” or “Defendant's Opposition”) (Doc. No. 38); Pl.'s Opp'n to Def.'s Mot. for Summ. J. (“Pl.'s Opp'n” or “Plaintiff's Opposition”) (Doc. No. 41), and Replies in support of their own Motion, see generally Pl.'s Reply to Def.'s Obj. to Pl.'s Mot. for Summ. J. (“Pl.'s Reply” or “Plaintiff's Reply”) (Doc. No. 42); Reply Mem. of Law in Supp. of Def.'s Mot. for Summ. J. (“Def.'s Reply” or “Defendant's Reply”) (Doc. No. 43).

         For the reasons set forth below, Student's Motion is GRANTED IN PART AND DENIED IN PART, and Fairfield's Motion is DENIED.

         II. BACKGROUND

         A. Facts[1]

         When she was in kindergarten, Student was diagnosed with Attention Deficit Hyperactivity Disorder-Predominantly Inattentive Type. See Pl.'s Local Rule 56(a)1 Statement (“Pl.'s L.R. 56(a)1”) (Doc. No. 34-2) at 2 ¶ 3. Several years later, on June 17, 2011, Student was determined to be eligible for special education and services. See Id. at 2 ¶ 4. Student also has spinal issues, which have resulted in two surgical procedures and in her ongoing use of a wheeled backpack. See id. at 2-3 ¶¶ 5-6.

         The school years most relevant in this case are Student's seventh grade year (2013-14), eight grade year (2014-15), and ninth grade year (2015-16). For her seventh and eighth grade years, Student attended public school. For her ninth grade year, Student attended the Spire School, after a unilateral placement by her parents. Over the course of these three years, nine planning and placement team (“PPT”) meetings were held. See id. at 4 ¶ 12.

         In the 2013-14 (seventh grade) school year, Student's IEP included certain special education services: “2.10 hours of writing instruction weekly in the general education setting, 1.67 hours of weekly small group/individual learning strategies instruction, [ ] .7 hours a week of small group/individual academic support, ” and .7 hours per week of occupational therapy, but no counseling. See id. at 4 ¶ 14. Student's teachers kept track of Student's behaviors relevant to her IEP goals, and occasionally sent this information to Student's parents (“Parents”). See id. at 4 ¶ 15. However, Parents' requests for such information were sometimes fulfilled only after a significant delay or not at all. See id. at 5 ¶ 16.

         During the 2013-14 school year, Student was upset by several interactions, one with a teacher and others with her peers. In September 2013, Student reported that, when she forgot a pen and pencil, her Spanish teacher told the class that someone should lend Student a pencil, because Student chews on pencils. See id. at 6 ¶ 20. Other students in the class laughed at the teacher's remark, and when Student tried to return the pen she had borrowed, her classmate threw away the pen and elicited more laughter directed at Student. See id. In May 2014, a different classmate-though one who was also in Student's Spanish class-made a mean-spirited comment to Student. See id. at 6 ¶ 21. Last, in June 2014, Student was upset by another student's comments regarding Student's late arrival to class. See id. at 6 ¶ 22. Fairfield does not dispute the occurrence of these events, but suggests they were promptly investigated and the individuals involved in each incident were appropriately disciplined. See Def.'s Local 56(a)2 Statement (“Def.'s L.R. 56(a)2”) (Doc. No. 38-1) at 2 ¶ 20 - 3 ¶ 22.

         Writing objectives that had been included in Student's March 2014 IEP were not present in her May 2014 IEP. In October 2014, at Parents' request, a PPT meeting was convened, at which writing goals were added to Student's then-operative IEP. See Pl.'s L.R. 56(a)1 at 5 ¶ 18. Parents hired a private writing tutor to work with Student in October 2014. See id. at 5 ¶ 19. After Student had an upsetting experience at the summer program in which she took part between seventh and eighth grades, Parents hired Dr. Timothy Heitzman to begin counseling Student, in an effort to address social, emotional, and executive functioning issues. See id. at 6 ¶ 23.

         Student's IEP for the 2014-15 (eighth grade) school year contained the following special education services: “2.10 hours of writing instruction weekly in the general education setting, 1.67 hours of weekly small group/individual learning strategies instruction, [ ] [1.4] hours a week of small group/individual academic support, ” and .5 hours per week of occupational therapy. See id. at 7 ¶ 25. Though the IEP was modified in October 2014 to reflect that Student's “behavioral/social/emotional development was not age appropriate, ” the IEP did not include any goals or objectives to address this need until April 2015. See id. at 7 ¶ 26. In May 2015, Student began to receive thirty minutes of counseling every two weeks. See id. at 7 ¶ 25.

         As she had during her seventh grade year, Student reported being upset by several incidents during the 2014-15 school year. In October 2014, Student claimed that a classmate made fun of her in Art class and, later, that the same peer had taken pictures of her at an off-campus event. See id. at 7-8 ¶ 25. Fairfield does not dispute that Student made these allegations, but asserts that they were investigated and could not be substantiated. See Def.'s L.R. 56(a)2 at 6-7 ¶¶ 5-6. Student's mother (“Mother”) also spoke with a school dean about her concern that several students had pushed past Student in a buffet line during an overnight field trip to Philadelphia. See Pl.'s L.R. 56(a)1 at 8 ¶ 30. Again, Fairfield acknowledges that Mother relayed her concerns, but suggests that Student was not able to identify any student involved in the alleged occurrence. See Def.'s L.R. 56(a)2 at 7 ¶ 7. Last, in May 2015, Mother reported to school officials that Student claimed students had been kicking Student's wheeled backpack. See Pl.'s L.R. 56(a)1 at 8 ¶ 29. Once more, Fairfield admits that Mother reported Student's perceptions, but school officials could not substantiate them after investigation. See Def.'s L.R. 56(a)2 at 3 ¶ 29; id. at 7-8 ¶ 8.

         Leading up to the PPT meeting to plan for Student's ninth grade year, Mother learned that Fairfield would recommend that Student enroll in “collaborative classes, ” taught by both a special education teacher and a regular education teacher and containing both special education students and other students. See Pl.'s L.R. 56(a)1 at 8 ¶ 31; Def.'s L.R. 56(a)2 at 4 ¶ 31. On April 2, 2015, Dr. Heitzman sent an email to school officials with questions about Student's proposed schedule for ninth grade, and indicated his belief that “placement with an equivalent social peer group need[ed] to take priority over learning-needs peer group.” Pl.'s L.R. 56(a)1 at 8 ¶ 32. Mother also met with Fairfield's Director of Special Education in early April 2015 regarding Student's concerns about placement in a collaborative classroom and to discuss alternative options. Pl.'s L.R. 56(a)1 at 8 ¶ 33.

         On April 21, 2015, the PPT convened to discuss the appropriate placements for Student's ninth grade year. See id. at 9 ¶ 34. Notably, in February 2015, Student had been accepted into an aquaculture program in Bridgeport for the following school year. Pl.'s Local Rule 56(a)2 Statement (“Pl.'s L.R. 56(a)2”) (Doc. No. 41-1) at 2 ¶ 3. Student suggests that, as of April 2015, she was expected to attend the aquaculture program for part of the day, requiring the PPT to develop an appropriate program for the remainder of the day. See id. Fairfield recommended the following placements for Student's 2015-16 school year: collaborative classes for English, Global Studies, and Math; Learning Center Support for 2 hours and 45 minutes each four-day cycle; 30 minutes per week of occupational therapy and an occupational therapy consultation once per month; and 30 minutes of counseling every two weeks. See Pl.'s L.R. 56(a)1 at 9 ¶ 34. Three days after the PPT meeting, Mother sent an email to Fairfield officials, requesting that Dr. Heitzman be permitted to observe ninth grade collaborative classes. See id. at 9 ¶ 35. That request was denied, as were subsequent requests by Parents to observe the collaborative classes. See id.

         Student attended an orientation for the aquaculture program on May 21, 2015. See Pl.'s L.R. 56(a)2 at 8 ¶ 21. There, Student saw children who she thought had bullied her in middle school. See id. at 8 ¶ 22.

         In June 2015, Parents hired Dr. Laura Seese to serve as a private education consultant. See id. at 8 ¶ 23. Dr. Seese is a certified school psychologist and school administrator. See id. at 8 ¶ 24. Based on Student's records, an interview with Mother, and an interview with Student, Dr. Seese prepared a report for Parents in August 2015. See id. at 9 ¶¶ 27-28. In preparing that report, Dr. Seese did not speak with Fairfield teachers or officials. See id. at 9 ¶ 29. Ultimately, Dr. Seese suggested that 30 minutes of counseling every two weeks was insufficient to address Student's needs, see Id. at 9-10 ¶ 31, and recommended that Student be placed at the Spire School, see Pl.'s L.R. 56(a)1 at 9-10 ¶ 36.

         Within the first ten days of August, Parents informed Fairfield, in writing, of their intent to unilaterally place Student at the Spire School for the 2015-16 school year. See Pl.'s L.R. 56(a)1 at 10 ¶ 37; Def.'s L.R. 56(a)2 at 5 ¶ 37. On August 22, 2015, Dr. Seese completed her report and Parents provided Fairfield with a copy. See Pl.'s L.R. 56(a)1 at 10 ¶ 37. Three days later, Parents executed an enrollment contract with the Spire School. See id.

         A PPT meeting was subsequently convened on September 11, 2015, after Student had begun ninth grade at the Spire School. See id. at 10 ¶ 38. At that meeting, the PPT added a collaboratively taught science class to Student's IEP, see id., and Fairfield suggested that Student participate in an intake process with Effective School Solutions (“ESS”), a contractor that Fairfield had engaged to provide services to students with certain mental health issues, see id. at 10 ¶ 39; Pl.'s L.R. 56(a)2 at 12 ¶ 39. Parents declined the intake interview, and the IEP's provision of 30 minutes of counseling every two weeks remained the same. See Pl.'s L.R. 56(a)1 at 10 ¶ 40. At the September 11, 2015 meeting, Fairfield denied Parents' requested placement of Student at the Spire School. See id.

         The Spire School is a state-approved special education school, with all of its teachers certified by the Connecticut Department of Education. See Pl.'s L.R. 56(a)2 at 14 ¶¶ 46-47. In order to be eligible for admission to the Spire School, students must have mild to moderate learning disabilities, social or emotional needs, and be performing academically at or above grade level. See id. at 14 ¶ 48. The Spire School provides occupational therapy and employs a clinical psychologist, licensed professional counselor, social worker, and two school counselors, any of whom Student can meet and/or speak with. See id. at 14 ¶¶ 49-50. The Spire School follows the same general core curriculum as public schools in Connecticut. See id. at 14 ¶ 57. Many of Student's classes have only a few other students in them, and Student was the only student in at least one of her classes. See id. at 14 ¶¶ 63-64.

         B. Procedural History: Due Process Hearing

         A Hearing Officer appointed by the Connecticut Department of Education heard testimony and received evidence from Student and from Fairfield, regarding the lawfulness of the education provided by Fairfield. On July 21, 2016, the Hearing Officer rendered her decision. See Final Decision & Order (“H.O. Decision”) at 1.[2] In the course of adjudicating the dispute before her, the Hearing Officer made findings of fact, see generally id. at 3-16, as well as conclusions of law, see generally id. at 16-22. The Hearing Officer reached five conclusions that are at issue in this case.

         First, the Hearing Officer determined that the “proposed IEP for the 2015-2016 school year was not appropriate . . . because the therapeutic services offered were not sufficient for Student who was transitioning to high school and who suffers from significant anxiety which exacerbates her executive functioning issues.” See Id. at 17 ¶ 3.

         Second, the Hearing Officer concluded that the Spire School qualified as “appropriate, ” at least for the purposes of a unilateral placement. See id. at 20 ¶ 6.

         Third, the Hearing Officer decided that tuition reimbursement for Student's ninth grade year was not warranted. See id. at 20-21 ΒΆ 6. Because Parents refused to take part in the intake process for ESS, the Hearing Officer concluded that ...


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