UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
DAVID BRUNO, : Plaintiff, :
: 3:02CV2192(WWE) v. :
GREENWICH BOARD OF EDUCATION, : Defendant. :
RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT
Plaintiff David Bruno, a student who qualified for special
education services during his high school education, seeks
reversal of an administrative hearing officer’s final decision
that denied him compensatory education and services. He alleges
that the hearing officer’s decision violates the Individuals with
Disabilities Education Act ("IDEA") (count one), Section 504 of
the Rehabilitation Act of 1973 (count two), the Fourteenth
Amendment of the United States Constitution (count three) and
state special education laws (count four).
In a prior motion for summary judgment, defendant argued that no gross violation of the statute occurred so as to afford
plaintiff a right to compensatory education. Plaintiff cross
moved for summary judgment, arguing that defendant’s gross
procedural violations of the statute conferred a right to
compensatory education. In a ruling dated May 5, 2005, this
Court denied the cross motions for summary judgment in light of
disputed issues of fact as to whether notice of the statutory
procedural safeguards had been properly provided to plaintiff and
his mother.
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On June 7, 8, and 9, 2005, the Court heard evidence
regarding defendant’s compliance with the statute’s mandate to
provide notice of the procedural safeguards. On June 9, the
Court ruled from the bench that defendant had failed to provide
notice of the procedural safeguards to plaintiff, although it had
properly provided such notice to plaintiff’s mother. The Court
then instructed the parties to submit post-hearing briefs that
reinvoked the motions for summary judgment and addressed the
effect of defendant’s failure to provide plaintiff with the
requisite notice. The parties have so complied.
Having resolved the disputed issues of fact identified in
its previous ruling, the Court now deems the procedural posture
of this case to be a consideration of cross motions for summary
judgment. Upon review, the Court will grant defendant’s motion
for summary judgment.
FACTUAL BACKGROUND
The Court incorporates herein the factual background stated
in the Court’s previous rulings. However, the Court briefly
recites the following undisputed facts, including the findings of fact made at the June hearing and those that are reflected by the
administrative record that are relevant to this ruling.
This case is an appeal from the final decision and order of
hearing officer Margaret Slez, in which she concluded that 1)
plaintiff’s eligibility for graduation was properly determined,
and that plaintiff was no longer entitled to special education
services after graduation; 2) the Individual Education Programs
("IEPs") developed at the Planning and Placement Team ("PPT")
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meetings prior to plaintiff’s graduation clearly stated the
student’s anticipated date of graduation as June 2000; 3)
plaintiff had received appropriate prior written notice of
graduation; and 4) no procedural violations sufficient to warrant
an award of compensatory education had occurred.
This Court finds that plaintiff’s mother received proper
notice of IDEA’s procedural safeguards. However, defendant
failed to provide plaintiff with adequate notice of IDEA’s
procedural safeguards.
Plaintiff received no notice that rights accorded to his
mother would be transferred to him when he turned 18 on September
14, 1999, although he testified at the June hearing that he
"generally" understood that the relevant educational rights were
his to exercise after he had reached the age of majority.
Plaintiff never received notice of the PPT meetings on
December 14, 1999, May 26, 2000, or September 5, 2001, although
he attended all of these meetings with his mother. Plaintiff was
never sent a copy of the document entitled "Procedural Safeguards
for Parents of Children in Special Education." However, during
the PPT meetings, copies of this document were accessible on a
table in the room where the PPT meeting took place.
DISCUSSION
A motion for summary judgment will be granted where there is
no genuine issue as to any material fact and it is clear that the
moving party is entitled to judgment as a matter of law. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Only when
reasonable minds could not differ as to the import of the
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evidence is summary judgment proper." Bryant v. Maffucci, 923
F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849 (1991).
The burden is on the moving party to demonstrate the absence
of any material factual issue genuinely in dispute. American
International Group, Inc. v. London American International Corp.,
664 F. 2d 348, 351 (2d Cir. 1981). In determining whether a
genuine factual issue exists, the court must resolve all
ambiguities and draw all reasonable inferences against the moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). If a nonmoving party has failed to make a sufficient
showing on an essential element of his case with respect to which
he has the burden of proof, then summary judgment is appropriate.
Celotex Corp., 477 U.S. at 323. If the nonmoving party submits
evidence which is "merely colorable," legally sufficient
opposition to the motion for summary judgment is not met.
Anderson, 477 U.S. at 249.
IDEA
Plaintiff argues that the hearing officer’s decision should
be overturned as a matter of law because defendant’s procedural
inadequacies resulted in the denial of free appropriate public
education ("FAPE") as mandated by the IDEA.
Under the IDEA, when a federal court reviews the findings
and conclusions reached in a state administrative proceeding, it
must base its decision on the preponderance of the evidence,
after reviewing the administrative record and any additional
evidence presented. 20 U.S.C. § 1415(i)(2)(B); M.S. v. Bd. of
Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96,
102 (2d Cir. 2000), cert. denied, 532 U.S. 942 (2001). Federal 4
courts do not "rubber stamp" administrative decisions but must
accord "due weight" to these proceedings. Walczak v. Fla. Union
Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). This is not
an invitation to the courts to substitute "their own notions of
sound educational policy for those of the school authorities
which they review." Bd. of Educ. of Hendrick Hudson Cent. Sch.
Dist. v. Rowley, 458 U.S. 176, 206 (1982). In Cerra v. Pawling
Cent. School Dist., 427 F.3d 186, 191 (2d Cir. 2005), the Second
Circuit emphasized that district courts should pay deference to
administrative judgments on matters of educational policy. The
Supreme Court has interpreted the IDEA as strictly limiting
judicial review of state administrative decisions. D.F. v.
Ramapo Central District, - - F.3d - -, 2005 WL 3118420 *2 (2d
Cir.).
Generally, a disabled child does not have a right to demand
a public education beyond the age of 21, although a claim for
compensatory education may be proper where gross violations of
the statute occurred that effectively deprived the child of the
right to a FAPE. See Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir.
1990)(gross violation of statutory regulations resulted in
exclusion of the mentally retarded student from school for a
substantial period of time); see also Burr by Burr v. Ambach, 863
F.2d 1071, 1078 (2d Cir. 1988)(compensatory education proper
where regulations were "grossly violated," resulting in exclusion
of student from school for substantial period of time). The
Second Circuit has conditioned the award of compensatory
education on the presence of a gross deprivation of the right to
a FAPE. M.C. v. Central Regional School District, 81 F.3d 389, 5
396 (3rd Cir. 1996). In Burr, the gross procedural violation
found to confer a right to compensatory education consisted of
undue delay in an agency hearing and administrative review so
that the disabled child was deprived of the benefit of the
statutory "stay-put" provision. In Mrs.C., a claim for
compensatory education was appropriate where plaintiff alleged
that the defendants had taken advantage of the student’s
infirmities in order to evade the statutory procedures, resulting
in the student’s complete exclusion from an educational placement
until he was 21.
Review of the Hearing Officer’s Denial of Request for Compensatory Education In considering plaintiff’s appeal of the hearing officer’s
denial of his request for compensatory education, the Court must
consider whether defendant denied plaintiff a FAPE. In so doing,
the Court must engage in Rowley’s two step process. First, the
Court must consider whether the board complied with the
procedures set forth in the IDEA; and secondly, the Court must
determine whether the IEP developed through these procedures was
reasonably calculated to enable the child to receive educational
benefits. Rowley, 458 U.S. at 206-207. If the Court finds
procedural or substantive deficiencies, the Court considers
whether plaintiff is entitled to reimbursement for the
compensatory education and independent evaluation. See Walczak,
142 F.3d at 129.
Procedural Compliance
The Court must first consider whether the board complied
with the IDEA’s procedural process. "The core of the statute" is
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the collaborative process between parents and schools, primarily
through the IEP process. See Schaffer v. Weast, 126 S.Ct. 528,
532 (2005). An IEP is a procedural mechanism that protects a
child’s rights to a FAPE. 20 U.S.C. § 1414(d). It is a tailored
written outline of the unique educational needs of an individual
student and the services required to meet those needs. Walczak,
142 F.3d at 122.
While Congress sought to protect individual children by
providing for parental involvement in the development of state
plans and policies and in the formulation of the child’s IEP, all
procedural rights accorded to the parents transfer to the student
when the student reaches the age of majority. See 20 U.S.C. §
1415(m); 34 CFR § 300.517.
In designing the child’s IEP, the PPT must include a
qualified special education representative of the school board,
the child’s teacher, one or more of the child’s parents, and may
also include individuals who evaluate the child or provide
special education services to the child. P.J. v. State of
Connecticut Bd. of Education, 788 F.Supp. 673, 676 n. 1 (D.Conn.
1992).
Section 1415(d) provides that a copy of the existing
procedural safeguards must be made available to the parents or to
the student if the rights have transferred to the student. These
procedural safeguards include the right to, inter alia,
independent evaluations, prior written notice of any proposals to
initiate or change an educational program or placement, parental
consent, access to educational records, complaint procedures,
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discipline procedures, mediation and due process hearings, filing
of a civil action, and recovery of attorneys’ fees. 20 U.S.C. §
1415.
The Court has found that defendant failed to provide
plaintiff with the written notice of the IDEA’s procedural
safeguards, written notice of the PPT meetings and minutes, and
written notice of the transfer of rights after plaintiff reached
the age of majority. Plaintiff asserts that if he had known his
procedural safeguard rights, he would have had a more meaningful
participation in the development of his IEP, and he would have
made more informed decisions.
The Court’s inquiry into whether the IDEA’s procedural
obligations were fulfilled focuses on whether plaintiff was
afforded an adequate opportunity to participate in the
collaborative IEP process. Cerra, 427 F.3d at 193. In this
instance, the procedural non-compliance did not result in
plaintiff’s exclusion from the collaborative IEP process
regarding his educational placement. Here, plaintiff attended the
PPT meetings with his mother. He also had ready access to the
document, "Procedural Safeguards for Parents of Children in
Special Education" and the meeting minutes. Plaintiff testified
at the June hearing that he understood that he had the right to
exercise his legal rights. He stated further that, during the
PPTs in the 1999-2000 school year, alternatives to graduation
were discussed, including his right to remain in high school and
postpone graduation. He rejected this option because he "didn’t
want to be in school anymore."
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Thus, in light of plaintiff’s participation at the PPT
meetings, his admitted comprehension of his rights upon obtaining
the age of majority, and his access to the relevant documents,
including "Procedural Safeguards for Parents of Children in
Special Education," the Court is satisfied that defendant’s non-
compliance with the statute’s notice requirements did not
preclude plaintiff from a meaningful opportunity to participate
in the collaborative IEP process. Plaintiff had ample
opportunity to review and become versed in his rights to the
IDEA’s procedural safeguards, and no evidence suggests that
defendant took advantage of plaintiff’s infirmities in order to
evade compliance with statutory regulations as occurred in Mrs.
C. Accordingly, defendant’s non-compliance is not a gross
violation resulting in a deprivation of a FAPE as required to
confer a right to compensatory education.
Substantive Compliance
A school district complies with the IDEA’s substantive
requirements if a student’s IEP is reasonably calculated to
enable the child to receive educational benefits. Rowley, 458
U.S. at 207. The IEP must be likely to produce progress, not
regression. See Weixel v. Bd. of Educ., 287 F.3d 138, 151 (2d
Cir. 2002). A valid IEP must open the door of public education
for a disabled child in a "meaningful way". Walczak, 142 F.3d at
130. However, the IEP need provide only a basic floor of
opportunity, and a school district is not required to furnish
"every special service necessary to maximize each handicapped
child’s potential." Cerra, 427 F.3d at 195. When a learning-
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disabled child is in a mainstream class, "the attainment of
passing grades and regular advancement from grade to grade" is
generally considered evidence of satisfactory progress. Walczak,
142 F.3d at 130.
In her findings of fact, the hearing officer found that:
the student’s IEPs were a combination of mainstream academic courses and time in the resource room for specific skill- building, monitoring by teachers, and work on homework.... The student started high school with poor social skills, no interaction with others, sometimes displaying "explosive" and "aggressive" behaviors, but he "improved" over four years and by senior year was able to "self-censor."
She noted that plaintiff had advanced from grade to grade
and had earned a 2.3 cumulative average. However, in accordance
with plaintiff’s testimony and that of the board social worker,
plaintiff had not regularly participated in counseling sessions
as provided for in his IEP. Nevertheless, "the student showed
growth in terms of social interaction...." Thus, the hearing
officer concluded that his academic progress met the general
education requirements established by both defendant and the
State of Connecticut. She held further that no evidence was
presented establishing that the "student required modification of
the state and local graduation requirements or that the PPT had
found such requirements to be inappropriate."
Plaintiff challenges the hearings officer’s conclusions,
arguing that defendant’s IEP failed to provide him with a FAPE
during the 1999-2000 school year and that plaintiff had failed to
meet the level of progress prescribed by the IEP. Specifically,
plaintiff points out that he received "D" grades in two of his
courses, while the IEP sets an objective of "C" in all courses.
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Further, plaintiff asserts that defendant was aware that
plaintiff was not participating in his weekly counseling sessions
with the school social worker as provided for in his IEP.
Plaintiff asserts that defendant’s failure to provide him with a
FAPE during the 1999-2000 school year resulted in his graduation
from high school with unmet academic, social and vocational
needs. Plaintiff relies, inter alia, upon the independent
psychological evaluation of Dr. Adrienne Smaller, who met with
plaintiff a little more than a year after his graduation. Dr.
Smaller observed that plaintiff appeared "to be doing well now,"
but remained "quite vulnerable in the area of vocational and
social skills" and was in "need of some direction with regard to
work-related social skills."
The Court is mindful that the hearing officer rendered her
decision after a seven-day administrative hearing, and that
"[d]eference is particularly appropriate when, as here, the state
hearing officers’ review has been thorough and careful." Walczak,
142 F.3d at 129. In addition, the hearing officer’s
determination that plaintiff was properly graduated from high
school implicates "the kind of educational policy decision a
district court may not make absent objective evidence in the
record suggesting that the [hearing officer] has reached an
erroneous conclusion." Cerra, 427 F.3d at 196.
The Court recognizes that plaintiff was not completely
successful in fully meeting the objectives of his IEP, and that
after graduation he incurred social difficulties in work-related
social environments. Based on these observations, the Court
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concludes that plaintiff may have benefitted from more services.
However, defendant need not provide the optimal level of
services. Walczak, 142 F.3d at 132. Here, plaintiff’s 1999-2000
IEP provided "a basic floor of opportunity", thereby satisfying
the requirements for a FAPE. Rowley, 458 U.S. at 201. The
evidence presented at the administrative hearing demonstrated
that plaintiff had made more than trivial progress. Generally,
his final exam grades reflect above average achievement. For his
final grades, he received primarily grades of "C" and "B" in his
coursework. His cumulative grade point of 2.3 reflects that
plaintiff had achieved an average level of achievement. The
school social worker noted that plaintiff had shown growth in his
social skills. Accordingly, no evidence suggests that the
hearing officer reached an erroneous conclusion that plaintiff
was eligible to graduate and that he was not entitled to
compensatory education. Summary judgment will enter in favor of
defendant on the IDEA count.
Rehabilitation Act
Plaintiff alleges that the final decision of the hearing
officer violated plaintiff’s right to a FAPE as required by the
Rehabilitation Act, 29 U.S.C. § 794. Defendant asserts that
plaintiff cannot establish a Rehabilitation Act claim.
In order to maintain his Rehabilitation Act claim, plaintiff
must establish that he is a disabled person under the Act, who
has been excluded from benefits of a federally funded program or
special service because of his disability. Mrs. C., 916 F.2d at
74. Where a plaintiff challenges the adequacy of a FAPE as
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required by the IDEA, plaintiff must demonstrate bad faith or
gross misjudgment. A.W. v. Marlborough Company, 25 F. Supp.2d
27, 31-32 (D.Conn. 1998).
Here, there is no evidence demonstrating that plaintiff has
been excluded from benefits due to his disability. Consistent
with the foregoing discussion, the Court finds that plaintiff
received a FAPE, was properly graduated from high school, and is
therefore no longer eligible for special education services from
the Greenwich Public Schools. 20 U.S.C. § 1412(a)(1)(B)(i); 34
C.F.R. § 300.22(a)(3)(i); Conn. Gen. Stat. § 10-67d(b)(1).
Further, the Court finds that plaintiff is not entitled to
compensatory education services since no gross violations
occurred and, accordingly, plaintiff is not now "qualified" for
special education services from the Greenwich Public School.
The Court will grant summary judgment in defendant’s favor on
claim for relief pursuant to the Rehabilitation Act.
Fourteenth Amendment Due Process Violation
Plaintiff alleges that the "final decision of the Due
Process Hearing Officer has violated plaintiff’s right to Due
Process of Law as secured by the Fourteenth Amendment to the U.S.
Constitution."
The Due Process Clause of the Fourteenth Amendment requires
that, generally, the state must afford a person due process of
law prior to a deprivation of a constitutionally protected
liberty or property interest. U.S. Const. amend XIV, § 1; Bd. of
Regents v. Roth, 408 U.S. 564, 569-70 n. 7 (1972). Thus, in
order to sustain an action for deprivation of property without
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due process of law, a plaintiff must identify a property right
and show that the state actor has deprived plaintiff of that
right without due process.
As stated previously, the Court affirms the hearing
officer’s decision and finds that plaintiff received special
education services while in high school, was properly graduated
from high school and is not entitled to compensatory education.
Accordingly, he has no property interest to maintain a due
process claim. Summary judgment will enter on this claim.
Violation of State Law
Plaintiff’s remaining claim of count four is based on
violation of state educational law. The Court will decline to
exercise supplemental jurisdiction over the remaining state-law
claims pursuant to 28 U.S.C. § 1367(c)(3).
CONCLUSION
For the foregoing reasons, defendant’s motion for summary
judgment is GRANTED. Count four is dismissed without prejudice
since the Court declines to exercise supplemental jurisdiction
over the remaining state-law claims pursuant to 28 U.S.C. § 1367(c)(3). The clerk is instructed to enter judgment in favor
of defendant and to close this case.
___________/s/_____________________ WARREN W. EGINTON SENIOR UNITED STATES DISTRICT JUDGE
Dated at Bridgeport, Connecticut this 6th day of January,
2006.
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