D. Conn.: S. v. Fairfield Board of...

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

G.S., by and through her parents and

next friends, L.S. and R.S., : CIVIL ACTION NO. Plaintiff, : 3:16–cv–1355 (JCH)

v. : : JULY 7, 2017 FAIRFIELD BOARD OF EDUCATION, : Defendant. :

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

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. Facts1

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

1 Unless otherwise noted, the parties have indicated that these facts are undisputed, by way of

statements in their respective Local Rule 56(a) filings. See generally Pl.’s Local Rule 56(a)1 Statement (“Pl.’s L.R. 56(a)1”) (Doc. No. 34-2); Def.’s Local Rule 56(a)1 Statement (“Def.’s L.R. 56(a)1”) (Doc. No. 35-2); Def.’s Local Rule 56(a)2 Statement (“Def.’s L.R. 56(a)2”) (Doc. No. 38-1); Pl.’s Local Rule 56(a)2 Statement (“Pl.’s L.R. 56(a)2”) (Doc. No. 41-1). The facts set forth above are limited to those necessary to rule on the pending Motions.

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.

2 The Hearing Officer’s Final Decision and Order—filed manually along with the rest of the

administrative record—is also available online, at http://www.sde.ct.gov/sde/lib/sde/PDF/DEPS/Special/Hearing_Decisions/2016/16_0165.pdf.

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 ¶ 6. Because Parents refused to take

part in the intake process for ESS, the Hearing Officer concluded that reimbursement

for Student’s tuition at the Spire School was inappropriate. See id.

Fourth, in performing the test set out in T.K. v. New York City Department of

Education, 779 F. Supp. 2d 289 (E.D.N.Y. 2011), the hearing officer applied the

definition of “bullying” set out in section 10-222d of the Connecticut General Statutes,

which the Officer determined was not prohibited. See id. at 17–19 ¶ 5. Under that

definition, the incidents about which Student complained did not qualify as “bullying.”

See id. However, the Hearing Officer also noted that, even assuming arguendo that the

reported incidents did qualify as “bullying,” Fairfield neither was deliberately indifferent

to nor failed to take reasonable steps to prevent them. See id. at 19 ¶ 5 (discussing

“third prong” of four-part test set out in T.K. v. N.Y.C. Dep’t of Educ., 779 F. Supp. 2d

289 (2011)).

Fifth, and finally, the hearing officer concluded that Student was not denied a free

appropriate public education (“FAPE”) for the 2014–15 school year as a result of

Fairfield’s failure to include writing goals until October 2014. See id. at 17 ¶ 4. The

hearing officer rejected all of Student’s arguments that the 2014–15 IEP was not

appropriate. See id. at 22 ¶ 2.

III. LEGAL STANDARDS

A. IDEA Framework

The IDEA is designed, in large part, “to ensure that all children with disabilities

have available to them a free appropriate public education that emphasizes special

education and related services designed to meet their unique needs and prepare them

for further education, employment, and independent living . . . .” 20 U.S.C.

§ 1400(d)(1)(A). At the heart of the IDEA is the requirement that public schools provide

a free appropriate public education (“FAPE”) to children with disabilities. See 20 U.S.C.

§ 1412(a)(1)(A) (requiring that state provide “[a] free appropriate public education . . . to

all children with disabilities residing in the [s]tate between the ages of 3 and 21 . . .”). In

order to comply with the IDEA’s mandates, a FAPE must provide “an educational

program reasonably calculated to enable a child to make progress appropriate in light of

the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1,

137 S. Ct. 988, 1001 (2017).

School districts are subject to a number of substantive and procedural

requirements, all focused on providing disabled children with FAPEs. Most notably,

school districts must develop an individualized education program (“IEP”) for each

student with a disability. See generally 20 U.S.C. § 1414(d). IEPs are written

statements that set forth annual goals for disabled children, see 20 U.S.C.

§ 1414(d)(1)(A)(i)(II), the way in which progress towards those goals will be measured

and reported, see 20 U.S.C. § 1414(d)(1)(A)(i)(III), and a description of the services that

will be provided to disabled children to enable them to achieve these goals, see

20 U.S.C. § 1414(d)(1)(A)(i)(IV). IEPs must be reviewed periodically, but no less often

than once per year, to determine whether the child is achieving the annual goals set out

in the IEP, and must be revised to address, inter alia, “any lack of expected progress

toward the annual goals and in the general education curriculum, where

appropriate . . . .” See 20 U.S.C. § 1414(d)(4)(A).

In reviewing the adequacy of an IEP, the “question is whether the IEP is

reasonable, not whether the court regards it as ideal.” Endrew F., 137 S. Ct. at 999. As

noted above, the IDEA requires that a FAPE must provide “an educational program

reasonably calculated to enable a child to make progress appropriate in light of the

child’s circumstances.” Id. at 1001. The “IDEA does not require a school district to

furnish ‘every special service necessary to maximize each handicapped child’s

potential.’” D.B. v. Ithaca City Sch. Dist., No. 16-3491-cv, 2017 WL 2258539, at *3

(2d Cir. May 23, 2017) (summary order) (quoting Board of Educ. v. Rowley, 458 U.S.

176, 199 (1982)). Indeed, the Second Circuit has noted that disabled students are

entitled only to an “appropriate education, not one that provides everything that might be

thought desirable by loving parents.” Bryant v. N.Y.S. Educ. Dep’t, 692 F.3d 202, 215

(2d Cir. 2012) (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d

Cir. 1998)).

If, however, a child has previously received special education services from a

school district and parents enroll a disabled child in a private school without the district’s

consent, “a court or a hearing officer may require the [district] to reimburse the parents

for the cost of that enrollment” if the district has not provided a FAPE in a timely

manner, prior to enrollment in the private school. 20 U.S.C. § 1412(a)(10)(C)(ii). In

certain situations, however, reimbursement for the parents’ enrollment costs may be

reduced or denied. See 20 U.S.C. § 1412(a)(10)(C)(iii). For parents to receive

reimbursement for tuition costs stemming from a “unilateral placement” in a private

school—that is, when parents enroll their child in private school without the district’s

consent—parents must show that: (1) the school district failed to provide the disabled

child with a FAPE; (2) they placed the student in an appropriate private school; and (3)

that the equities favor reimbursement. See J.C. v. Katonah-Lewisboro Sch. Dist.,

No. 16-1838, 2017 WL 1906729, at *1 (2d Cir. May 9, 2017) (summary order) (citing

C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 73 (2d Cir. 2014)).

As a general matter, “the same considerations and criteria that apply in

determining whether the [s]chool [d]istrict’s placement is appropriate should be

considered in determining the appropriateness of the parents’ placement.” Frank G. v.

Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). That standard has been

set out in some detail just above. See supra at 11–12 (citing Endrew F., 137 S. Ct. at

992). However, this general rule—that courts conduct the same inquiry to determine if a

private placement is “appropriate” as they do to determine if a school district’s

placement is “appropriate”—is subject to certain exceptions. For example, the private

placement may be “appropriate” even if it does not meet the definition of a “free

appropriate public education.” See Frank G., 459 F.3d at 364; cf. 20 U.S.C. § 1401(9)

(defining FAPE). More specifically, private placements need not “meet state education

standards or requirements” and need not “provide certified special education teachers

or an IEP for the disabled student,” in order to be considered “appropriate.” See Frank

G., 459 F.3d at 364 (citations omitted). Parents also “may not be subject to the same

mainstreaming requirements as a school board.” Id. (quoting M.S. ex rel. SS. v. Bd. of

Educ. of City Sch. Dist. of City of Yonkers, 231 F.3d 96, 105 (2d Cir. 2000)).

In determining whether the equities favor reimbursement for a private placement,

“the district court enjoys broad discretion in considering equitable factors relevant to

fashioning relief.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir.

2007) (citing Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993)). “Important

to the equitable consideration is whether the parents obstructed or were uncooperative

in the school district’s efforts to meet its obligations under the IDEA.” C.L. v. Scarsdale

Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014) (citing Warren G. ex rel. Tom

G. v. Cumberland Cty. Sch. Dist., 190 F.3d 80, 85–86 (2d Cir. 1999)). However, both

the Second Circuit and other courts in this District have held that parents’ subjective

intent regarding whether they will keep their child in public school has no relevance to

the equitable analysis, absent some “relevant manifestation of that intent . . . .” A. v.

Greenwich Bd. of Educ., No. 3:15–cv–203 (CSH), 2016 WL 3951052, at *19 (D. Conn.

July 20, 2016); see also C.L., 744 F.3d at 840.

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

“IDEA appeals are generally resolved in full via cross-motions for summary

judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure.” A.,

2016 WL 3951052, at *8. “Though the parties in an IDEA action may call the procedure

a motion for summary judgment, the procedure is in substance an appeal from an

administrative determination not a summary judgment motion.” M.H. v. N.Y.C. Dep’t of

Educ., 685 F.3d 217, 226 (2d Cir. 2012) (quoting Lillbask ex rel. Mauclaire v. State of

Conn. Dep’t of Educ., 397 F.2d 77, 83 n.3 (2d Cir. 2005)). “[A] motion for summary

judgment in an IDEA case often triggers more than an inquiry into possible disputed

issues of fact. Rather, the motion serves as a pragmatic procedural mechanism for

reviewing a state’s compliance with the procedures set forth in the IDEA . . . and

determining whether the challenged IEP is reasonably calculated to enable the child to

receive educational benefits.” Id. at 225–26(quoting Lillbask, 397 F.2d at 83 n.3). The

court must “grant such relief as [it] determines is appropriate,” based on a

preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(C)(iii).

The IDEA sets up a system in which “responsibility for determining whether a

challenged IEP will provide a child with an appropriate public education rests in the first

instance with administrative hearing and review officers,” whose rulings are “then

subject to ‘independent’ judicial review.” Walczak v. Florida Union Free Sch. Dist., 142

F.3d 119, 129 (2d Cir. 1998). “[D]istrict court[s] must engage in an independent review

of the administrative record and make a determination based on a preponderance of the

evidence,” but “the Supreme Court has cautioned that such review 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.” Cerra v. Pawling Cent. Sch. Dist.,

427 F.3d 186, 191–92 (2d Cir. 2005) (quotation marks and citations omitted). “While

federal courts do not simply rubber stamp administrative decisions, they are expected to

give ‘due weight’ to these proceedings, mindful that the judiciary generally ‘lack[s] the

specialized knowledge and experience necessary to resolve persistent and difficult

questions of educational policy.’” Walczak, 142 F.3d at 129 (quoting Board of Educ. v.

Rowley, 458 U.S. 176, 205 (1982)).

The Second Circuit has instructed that courts “must defer to the administrative

decision [of the hearing officer] particularly where the state officer’s review has been

thorough and careful.” D.B. v. Ithaca City Sch. Dist., No. 16-3491-cv, 2017 WL

2258539, at *3 (2d Cir. May 23, 2017) (summary order) (quoting M.W. ex rel. S.W. v.

N.Y.C. Dep’t of Educ., 725 F.3d 131, 138–39 (2d Cir. 2013)). In M.H. v. New York City

Department of Education, 685 F.3d 217 (2d Cir. 2012), the Second Circuit rejected the

invitation to create a bright-line rule as to the measure of deference to be afforded

different types of determinations by the hearing officer, see 685 F.3d at 243–44, and

instead set forth a more holistic framework:

In many determinations made by administrative officers, the district court's analysis will hinge on the kinds of considerations that normally determine whether any particular judgment is persuasive, for example whether the decision being reviewed is well-reasoned, and whether it was based on substantially greater familiarity with the evidence and the witnesses than the reviewing court. But the district court's determination of the persuasiveness of an administrative finding must also be colored by an acute awareness of institutional competence and role. As the Supreme Court made clear in [Board of Education of Hendrick Hudson Central School District, Westchester County v.] Rowley, [458 U.S. 176 (1982),] the purpose of the IDEA is to provide funding to states so that they can provide a decent education for disabled students consistent with their traditional role in educating their residents. In policing the states' adjudication of IDEA matters, the courts are required to remain conscious of these considerations in determining the weight due any particular administrative finding.

By way of illustration, determinations regarding the substantive adequacy of an IEP should be afforded more weight than determinations concerning whether the IEP was developed according to the proper procedures. Decisions involving a dispute over an appropriate educational methodology should be afforded more deference than determinations concerning whether there have been objective indications of progress. Determinations grounded in thorough and logical reasoning should be provided more deference than decisions that are not. And the district court should afford more deference when its review is based entirely on the same evidence as that before the [hearing officer] than when the district court has before it additional evidence that was not considered by the state agency.

685 F.3d at 244 (citations omitted). In evaluating challenges to different aspects of a

hearing officer’s decision, the court must evaluate each conclusion in turn to determine

how much deference it is due.

IV. DISCUSSION

The court’s analysis of the issues raised by the cross-motions for summary

judgment will proceed in five parts, addressing the following questions in turn:

(1) whether Fairfield failed to offer Student a FAPE for the 2015–16 school year;

(2) whether the Spire School was an appropriate placement for the 2015–16 year;

(3) whether equitable considerations negate Parents’ right to reimbursement for

Student’s unilateral placement at the Spire School; (4) whether the Hearing Officer

applied the wrong legal test in determining whether school officials were obligated to

convene an IEP Team meeting, after Student’s complaints about perceived bullying;

and (5) whether Fairfield offered Student a FAPE for the 2014–15 school year.

A. Ninth Grade (2015–16)

Student seeks reimbursement for expenses associated with her unilateral

placement at the Spire School for the 2015–16 school year. See Pl.’s Mot. at 2. As

noted above, in order to receive such reimbursement, Parents must show: (1) that

Fairfield did not provide a FAPE for that year; (2) that the Spire School was an

appropriate placement; and (3) that equitable considerations favor reimbursement. See

J.C. v. Katonah-Lewisboro Sch. Dist., No. 16-1838, 2017 WL 1906729, at *1 (2d Cir.

May 9, 2017) (summary order) (citing C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746

F.3d 68, 73 (2d Cir. 2014)).

The parties disagree as to the correctness of the Hearing Officer’s determination

on each point. First, Student argues that this court should affirm the Hearing Officer’s

conclusion that the 2015–16 IEP was inappropriate, see Pl.’s Mem. of Law in Supp. of

Mot. for Summ. J. on Admin. Record (“Pl.’s Mem. in Supp.” or “Plaintiff’s Memorandum”)

(Doc. No. 34-1) at 1, 15, while Fairfield suggests that this conclusion should be

reversed, see Mem. of Law in Supp. of Def.’s Mot. for Summ. J. (“Def.’s Mem. in Supp.”

or “Defendant’s Memorandum”) (Doc. No. 35-1) at 7. Second, Student urges the court

to affirm the Hearing Officer’s determination that the Spire School is an appropriate

placement, see Pl.’s Mem. in Supp. at 19, while Fairfield argues for reversal, see Def.’s

Mem. in Supp. at 15. Last, as to the equitable considerations prong of the test, the

roles are reversed: Student argues that the Hearing Officer’s evaluation of the equitable

considerations at issue here should be reversed, see Pl.’s Mem. in Supp. at 21, while

Fairfield argues that the Hearing Officer’s decision on this point should be affirmed, see

Def.’s Opp’n at 1–2.

The court will address each question in turn. Ultimately, the court concludes that

the Hearing Officer properly found that the IEP for 2015–16 was not appropriate and

that the Spire School was an appropriate placement. However, the court reverses the

Hearing Officer’s determination that equitable considerations counseled against

awarding Parents reimbursement for Spire School tuition.

1. Fairfield’s IEP as a FAPE

Fairfield’s protestations to the contrary notwithstanding, the Hearing Officer

correctly concluded that the IEP offered for 2015–16 was inappropriate. The Hearing

Officer acknowledged that the IEP’s “goals and objectives were reasonably calculated

for Student to make progress in the areas of concern noted . . . and Student’s grades

indicate that she was able to make progress in the general education curriculum during

the year . . . .” H.O. Decision at 17 ¶ 3. However, “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.” Id. “[T]he

inclusion of 30 minutes of counseling every two week[s] was not sufficient, even if

Student was not going to attend the Aquaculture Program, with its multiple daily

transitions which were inappropriate for the Student.” Id.

The legal standard applicable in determining the propriety of IEPs is set out in

detail above. See supra Part III.A. As the Supreme Court recently made clear, the

IDEA requires that school districts provide “an educational program reasonably

calculated to enable a child to make progress appropriate in light of the child’s

circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct.

988, 1001 (2017). While district courts must subject hearing officers’ determinations to

independent judicial review, see Walczak v. Florida Union Free Sch. Dist., 142 F.3d

119, 129 (2d Cir. 1998), decisions regarding the substantive adequacy of an IEP are

entitled to some measure of deference, more so than are other determinations that

IDEA hearing officers are called on to make, see M.H. v. N.Y.C. Dep’t of Educ., 685

F.3d 217, 244 (2d Cir. 2012).

As a preliminary matter, for the purposes of deciding whether Fairfield offered a

FAPE for the 2015–16 school year, the court notes that the September 2015 IEP is of

virtually no relevance. But see Def.’s Mem. in Supp. at 12–15 (discussing September

2015 PPT meeting). Parents enrolled Student in the Spire School in late August, when

the operative IEP was the one discussed on April 21, 2015. See Pl.’s Mem. in Supp.

at 17. Thus, in determining whether reimbursement is proper, the court looks to the IEP

in effect at the time Parents effectuated the unilateral placement, rather than to any

September 2015 alterations which were put in place after Parents had signed a contract

with the Spire School and after the school year had begun.

Fairfield’s arguments that the April 21, 2015 IEP was appropriate are grounded in

its view that, at the time the PPT met in April 2015, there was no indication in Student’s

educational or medical history that thirty minutes of counseling every two weeks would

be insufficient. See Def.’s Mem. in Supp. at 9–10 (citing L.O. v. N.Y.C. Dep’t of Educ.,

822 F.3d 95, 113 n.15 (2d Cir. 2016), for proposition that IEPs “must be evaluated

prospectively as of the time of [their] drafting”). Student disagrees, arguing that there

were indications prior to April 2015—and in the record before the Hearing Officer—that

Student required substantial emotional support. See Pl.’s Opp’n at 5–6. Student offers

several additional justifications for a finding that the IEP was inappropriate, though the

Hearing Officer did not rest her decision on any of these bases. See generally Pl.’s

Mem. in Supp. at 15–19; Pl.’s Opp’n at 3–8.

The Hearing Officer’s determination that the 2015–16 IEP did not provide

sufficient counseling is a conclusion as to the substantive adequacy of an IEP and,

because it is well reasoned, it is entitled to some degree of deference from this court.

See M.H., 685 F.3d at 244. Upon independent review, and giving appropriate

deference to the Hearing Officer’s decision, the court concludes that the 2015–16 IEP

did not provide Student with a FAPE, because it provided insufficient counseling

services.

Fairfield’s contention that “no information was available at the time to the PPT [in

April 2015] indicating that 30 minutes of counseling every two weeks for anxiety issues

might not be sufficient,” see Def.’s Mem. in Supp. at 10, is unavailing. Admittedly, the

analyses demanded by the IDEA require somewhat speculative inquiries into what

services might or might not be appropriate for a given student. However, it is not the

case that the Hearing Officer’s conclusion that the April 2015 IEP provided insufficient

counseling was “pure speculation,” as Fairfield contends. See Def.’s Mem. in Supp. at

11. In advance of the April 2015 PPT meeting, Dr. Heitzman sent an email to Fairfield

officials indicating that Student had “[l]ots of issues” related to her feeling that she did

not have “others to love and to provide her with a sense of belonging,” and that Student

was “not even close to achieving” “feelings of self-worth, respect for self and respect

from others.” Parents’ Ex. 90 at 1.3 This email came several months after the October

27, 2014 IEP noted that Student was not performing at an “Age Appropriate” level in the

“Behavioral/Social/Emotional” Area. See Bd.’s Ex. 138B at 5. Furthermore, in his

testimony before the Hearing Officer, Dr. Heitzman repeatedly discussed his

concerns—expressed to Fairfield in April 2015—regarding Student’s anxiety, its

triggers, and its consequences. See, e.g., Mar. 8, 2016 Hr’g Tr. at 195:18–195:24,

199:12–199:15, 202:8–202:13, 227:15–227:18.

Fairfield also places great weight on Parents’ apparent failure to object to the IEP

proposed in April 2015 on the specific grounds that it did not provide sufficient

counseling services, instead trumpeting its employees’ suggestion that counseling

3 All citations to exhibits and testimony introduced before the Hearing Officer refer to documents

filed manually and under seal, in order to protect the privacy of Student.

should be added for the first time. See Def.’s Mem. in Supp. at 10; Def.’s Reply at 2–3.

Accepting Fairfield’s description of the development of the April 2015 IEP, it seems

highly relevant, in deciding whether the IEP was adequate, that Fairfield viewed Student

as having such severe emotional problems that it suggested adding counseling services

sua sponte. See Def.’s Mem. in Supp. at 10 (“Although no request for counseling was

made by the Parents or their representatives, counseling for anxiety was added as a

new service in the April 2015 IEP at the suggestion of the school-based [PPT]

members.” (citation omitted)).

In sum, despite Fairfield’s citations to certain information in the record that might

support its arguments, see, e.g., Def.’s Mem. in Supp. at 10–11; Def.’s Reply at 1–2, the

Hearing Officer had before her a substantial amount of information suggesting that

Student “suffers from significant anxiety which exacerbates her executive functioning

issues,” H.O. Decision at 17 ¶ 3. Her conclusion regarding the substantive adequacy of

the IEP is therefore entitled to deference in this court’s independent review. Because

the court concludes that the 2015–16 IEP was inappropriate, it need not reach Student’s

additional arguments regarding the substantive inadequacy of the ninth grade IEP. See

generally Pl.’s Mem. in Supp. at 15–19; Pl.’s Opp’n at 3–8.

The court denies Fairfield’s Motion for Summary Judgment, insofar as it asks the

court to find the 2015–16 IEP appropriate, and grants Student’s Motion for Summary

Judgment, insofar as it seeks affirmance of the Hearing Officer’s decision on this point.

2. Spire School as an Appropriate Placement

The Hearing Officer also concluded that the Spire School was an appropriate

unilateral placement for Student. See H.O. Decision at 20–21 ¶ 6. Noting that the Spire

School is a “state approved private special education school,” and acknowledging that

the School “is clearly a restrictive environment,” the Hearing Officer found that “it is

appropriate for the purposes of a unilateral placement.” See id.

As discussed more extensively above, see supra Part III.A, parents may receive

reimbursement for unilateral placements when the public school district does not offer a

FAPE in a timely manner, see 20 U.S.C. § 1412(a)(10)(C)(ii). However, the private

school in which the student is placed must be appropriate, which requires that the

unilateral placement meet most of the same criteria the school district’s IEP must meet.

See Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). Most

relevant here, parents “may not be subject to the same mainstreaming requirements as

a school board.” Id. (quoting M.S. ex rel. SS. v. Bd. of Educ. of City Sch. Dist. of City of

Yonkers, 231 F.3d 96, 105 (2d Cir. 2000)). Indeed, the Second Circuit has admonished

hearing officers for giving dispositive weight to the restrictiveness of a unilateral

placement in finding it inappropriate. See C.L. v. Scarsdale Union Free Sch. Dist., 744

F.3d 826, 839–40 (2d Cir. 2014) (“[T]he [hearing officer] improperly gave dispositive

weight to the restrictiveness of [the unilateral placement] in reaching the conclusion that

it was inappropriate for [the student].”).

Fairfield’s argument that the Spire School is an inappropriate unilateral

placement is grounded in its belief that the School is “overly sheltered, insular and

restrictive.” Def.’s Mem. in Supp. at 19, 21. Fairfield suggests the inappropriateness of

the Spire School is evidenced by Student’s becoming more dependent on prompting

from teachers and staff. See id. at 20. By contrast, Student points to evidence that she

has improved in many areas identified for additional attention/instruction, see Pl.’s

Opp’n at 9–13, and suggests that Fairfield’s challenge to the small class sizes at the

Spire School runs contrary to the philosophy underpinning the IDEA, see id. at 11.

Fairfield candidly admits that Student “is doing well academically, has made

friends, and is participating in clubs and the student council at Spire.” Def.’s Reply at 7;

see also Def.’s Mem. in Supp. at 19. Nevertheless, the Board insists that this progress

is to be disregarded because Student’s success has come about “in the context of a

very small and insulated community of peers.” See Def.’s Reply at 7. The Hearing

Officer rightly rejected this dismissive attitude toward Student’s achievements, and

toward the Spire School in general.

The Hearing Officer found—and Fairfield appears not to dispute—that the Spire

School is a state-approved private special education school. See H.O. Decision at 15

¶ 93; Pl.’s L.R. 56(a)1 at 11 ¶ 42; Def.’s L.R. 56(a)2 at 5 ¶ 42. The Spire School staff

includes fifteen certified teachers, four special education teachers, a clinical

psychologist, a licensed professional counselor, a social worker, and two school

counselors. See id. at 15 ¶ 94. Similarly, there is no dispute that Student’s peers at the

Spire School “have mild to moderate learning disabilities and some sort of social or

emotional needs such as anxiety, depression or a mood disorder and are on or at grade

level.” Id. Moreover, many of Student’s classes include only a handful of other

students. See Def.’s Mem. in Supp. at 19; Pl.’s Opp’n at 10.

Nevertheless, Fairfield urges the court to afford no deference to the Hearing

Officer’s determination that the Spire School is an appropriate placement, because

“[t]he [H]earing [O]fficer neither mentioned the evidence of Student’s extremely small

academic class sizes consisting exclusively of students requiring special education

services nor considered the harm to Student from such a severely restrictive

educational environment.” See Def.’s Reply at 8. This mischaracterizes the Hearing

Officer’s decision. To be sure, the Hearing Officer did not make extensive findings or

offer a lengthy discussion about the small class sizes at the Spire School. She did,

however, find that students at the Spire School all had mild to moderate learning

disabilities and social or emotional needs. See H.O. Decision at at 15 ¶ 94. Most

importantly, in reaching her decision, the Hearing Officer unequivocally expressed

awareness of the restrictiveness of the Spire School, though she ultimately found Spire

appropriate as a unilateral placement. H.O. Decision at 20 ¶ 6 (“The Spire School is

clearly a restrictive environment, however it is appropriate for the purposes of a

unilateral placement.” (emphasis added)). Therefore, Fairfield’s suggestion that the

Hearing Officer ignored these characteristics of the Spire School ring hollow. Because

Parents were not subject to the same mainstreaming requirements as is Fairfield, see

Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006), they were not

obligated to “demonstrate that the Student required classes with a three or four-to-one

student/teacher ratio or a self-contained setting limited solely to special education

students in order to obtain educational benefits,” see Def.’s Reply at 8.

Moreover, though Fairfield cherry-picks evidence from the record that it claims

indicates Student has regressed at the Spire School, see Def.’s Reply at 5–7, the

preponderance of the evidence indicates to the contrary. There is little doubt that not all

of Student’s issues are resolved. See Pl.’s Opp’n at 9–10 (acknowledging that Student

“exhibited anxiety and executive dysfunction when she started at the Spire School,” that

she “ate pencils” during the first part of ninth grade, and that she received help from

teachers who scribed her homework and tests, when necessary); Mar. 1, 2016 Hr’g Tr.

at 105:6–105:13 (Seese). Several witnesses, however, recounted in glowing terms

Student’s improvement emotionally and socially at the Spire School. See, e.g., Mar. 8,

2016 Hr’g Tr. at 91:15–91:18 (Heitzman) (“I think her anxiety is always going to interfere

with learning, but it happens much less at Spire. You know, this past year, it’s

happened less, I would say.”); Mar. 21, 2016 Hr’g Tr. at 123:1–123:3 (Spire School Life

Coach Chelsea Horblitt) (“The kids love her. She’s on student council. She—she feels

very confident and that—that just shows in her friendships.”); Mar. 1, 2016 Hr’g Tr. at

106:20–106:23 (Seese) (“[S]he feels much more comfortable. I think she has been

willing to take more risks than she ever did before.”). It is hardly a surprise that

Student’s anxiety and emotional challenges were temporarily exacerbated by her

transition to a new school. Nevertheless, the weight of the evidence suggests that

Student has performed well academically and has improved socially and emotionally at

the Spire School. Though Student continues to struggle with executive functioning

issues, the evidence suggests that the Spire School has worked to develop a plan to

address these issues. See Mar. 21, 2016 Hr’g Tr. at 103:13–104:16.

Fairfield never offers any citation to the record or support for its rhetoric about the

purported dangers of placing Student in small classes. See, e.g., Def.’s Mem. in Supp.

at 20 (“Given the cloistered, overly restrictive environment at Spire and her lack of

progress there in coping independently with her executive function issues, upon

graduation what chance does Student have of successfully adjusting to college, even at

a small college?”). By contrast, there was plenty of evidence in the record to suggest

that Student is, for the most part, making progress at the Spire School. See, e.g.,

Mar. 8, 2016 Hr’g Tr. at 91:15–92:2; Mar. 21, 2016 Hr’g Tr. at 122:9–123:20. Even

more important, Fairfield’s suggestion that the Hearing Officer neglected to consider the

restrictiveness of the Spire School is undermined by even a cursory reading of the

Hearing Officer’s Decision. As such, the court concludes that the Hearing Officer’s

decision was well-reasoned and supported by a preponderance of the evidence.

Fairfield’s Motion for Summary Judgment is denied, insofar as it seeks reversal

of the Hearing Officer’s conclusion that the Spire School was an appropriate unilateral

placement. Student’s Motion for Summary Judgment is granted, insofar as it sought to

affirm that portion of the Hearing Officer’s Decision.

3. Equitable Considerations

With the court having determined that the 2015–16 IEP was inappropriate and

that the Spire School was an appropriate unilateral placement, Student is entitled to her

tuition costs for the Spire School if the equities favor reimbursement. See J.C. v.

Katonah-Lewisboro Sch. Dist., No. 16-1838, 2017 WL 1906729, at *1 (2d Cir. May 9,

2017) (summary order) (citing C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 73

(2d Cir. 2014)). “[A] district court enjoys broad discretion in considering equitable

factors relevant to fashioning relief.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d

105, 112 (2d Cir. 2007) (citing Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16

(1993)). “Important to the equitable consideration is whether the parents obstructed or

were uncooperative in the school district’s efforts to meet its obligations under the

IDEA.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014) (citing

Warren G. ex rel. Tom G. v. Cumberland Cty. Sch. Dist., 190 F.3d 80, 85–86 (2d Cir.

1999)).

The Hearing Officer decided that the equities did not favor reimbursement for

tuition at the Spire School for the 2015–16 school year, “due to the refusal to consent to

the evaluation for ESS and the unreasonableness of Parents[’] actions in choosing not

to cooperate with the District in its efforts to find the least restrictive placement for their

child.” See H.O. Decision at 20–21 ¶ 7. The Hearing Officer began by noting the

Board’s obligation to educate special education students with other students to the

“maximum extent appropriate.” See id. (citing 34 C.F.R. § 300.114(a)(2)). According to

the Hearing Officer, Parents’ refusal to participate in the intake process for ESS

“because they were afraid Student would be singled out as a special education student

was unreasonable,” and obstructed the Board’s ability to comply with its mainstreaming

obligations under the IDEA.4 See id.

Student suggests that the Hearing Officer made numerous errors in reaching her

conclusion that the equities did not favor reimbursement, most notably that basing her

conclusion on the refusal to participate in the ESS intake process was error. See Pl.’s

Mem. in Supp. at 23–25; Pl.’s Reply at 5–6. By contrast, Fairfield urges affirmance on

the grounds that the dispute over ESS was properly considered, and that the Parents

were generally uncooperative with the Board from the time Student lost interest in

attending the aquaculture program. See Def.’s Opp’n at 24–27.

4 Some of Student’s briefing on the pending Motions appears to suggest that the Hearing Officer’s

determination on this issue should be reversed because “she measured the restrictiveness of the private placement at the Spire School against the restrictiveness of the Fairfield public school option.” See Pl.’s Mem. in Supp. at 22. This is not an accurate description of the Hearing Officer’s Decision: the Hearing Officer faulted Parents for not cooperating with Fairfield’s efforts to fulfill its own mainstreaming obligations. See H.O. Decision at 20–21 ¶ 7; Def.’s Opp’n at 24. Therefore, Student’s arguments for reversal of the Hearing Officer’s Decision on the grounds that she improperly imposed a requirement that Parents’ unilateral placement qualify as the “least restrictive environment” is without merit.

At the outset, the court notes that the Hearing Officer’s determination as to the

equitable considerations is entitled to minimal deference: it is not the type of question on

which the Hearing Officer might be expected to bring special expertise to bear. In

conducting its own, independent review of the record, this court concludes that the

Hearing Officer’s reliance on the ESS intake process as indicative of Parents’ lack of

cooperation, see H.O. Decision at 20–21 ¶ 7, was misplaced. To be sure, courts—and

hearing officers—are given broad discretion in deciding which factors are relevant to

deciding whether equitable considerations favor reimbursement. See Galiardo, 489

F.3d at 112. That being the case, the Hearing Officer was, and this court is now,

permitted to take into account the dispute that arose at the September 2015 PPT

meeting regarding the ESS intake process.

Yet Parents’ refusal to participate in that process can hardly support the weight

the Board would have the court place on it. At the time Fairfield asked Parents to

participate the ESS intake process, they had already signed a contract with the Spire

School and the school year had already begun. See H.O. Decision at 14 ¶¶ 81–82. As

such, Parents’ rejection of the invitation to participate in the ESS intake process—

whether reasonable or not—has little bearing on whether equitable considerations

justify reimbursement for the 2015–16 school year.5 It certainly does not support a

conclusion that Parents are not entitled to reimbursement for 2015–16 tuition, where the

IEP has been found deficient and the unilateral placement appropriate.

5 Though the Hearing Officer explicitly based her conclusion that the equities did not favor

reimbursement for 2015–16 tuition on the Parents’ refusal to participate in the ESS intake process, see H.O. Decision at 20–21 ¶ 7, her focus on this issue would have been proper in considering whether to award the two years of prospective placement at the Spire School that Student also requested, see id. at 21 ¶ 8. Here, by contrast, Parents are not requesting prospective reimbursement.

Having rejected the Hearing Officer’s justification for denying reimbursement, the

court now turns to the other grounds Fairfield suggests justify a determination that the

equities do not favor reimbursement. Fairfield claims several times that Parents

engaged in misleading, dishonest conduct leading up to their notifying the Board of the

unilateral placement at the Spire School. See Def.’s Opp’n at 22, 24–25. The Hearing

Officer did not invoke any such finding in concluding that reimbursement was

inappropriate. The Hearing Officer did find that “Parents did not notify the District that

Student was no longer interested in attending the Aquaculture program” in June 2015.

See H.O. Decision at 14 ¶ 79. However, the Hearing Officer did not draw any explicit,

adverse inference against Parents from this fact, nor did she express any belief that

Parents had already decided to send Student to private school or that Student had

categorically ruled out attending the aquaculture program. Mother testified that she

began considering private school options for Student in June 2015 in light of the

concerns Student expressed about attending the aquaculture program, but that, “if

[Student] had gone to [public high school], she would have gone to Aqua [the

aquaculture program].” See Mar. 21, 2016 Hr’g Tr. at 58:14–59:18.

Though Parents were clearly dissatisfied with Fairfield’s proposed IEP, it does

not appear that they were engaged in the duplicitous conduct that Fairfield ascribes to

them. See Def.’s Opp’n at 22 (accusing Parents of “deliberately fail[ing] to notify the

District until August 2015” that Student would not attend the aquaculture program).

Specifically, Fairfield does not point to any concrete evidence to support their claim that

Parents acted “in order to deprive the District of the opportunity to convene a PPT

meeting before the end of the school year.” See id. at 25. Given that Parents informed

Fairfield of their intent to effectuate the unilateral placement at least ten days before

they signed a contract with the Spire School and that Parents had not yet decided to

pursue private school options for Student at the time of the most recent IEP meeting,

the court concludes that reimbursement should not be reduced or denied for failure to

give Fairfield adequate notice. See 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(aa)–(bb).

To the extent that Fairfield argues that Dr. Seese’s failure to contact school

officials in preparing her report for parents was inequitable, see Def.’s Opp’n at 22, that

argument is unpersuasive. According to Fairfield, this lack of contact was indicative of

Parents having already selected the Spire School for a unilateral placement. See id.

However, as noted above, parents’ subjective intent regarding whether they will keep

their child in public school has no relevance to the equitable analysis, absent some

“relevant manifestation of that intent . . . .” A. v. Greenwich Bd. of Educ., No. 3:15–cv–

203 (CSH), 2016 WL 3951052, at *19 (D. Conn. July 20, 2016); see also C.L. v.

Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014). It does not appear

that the documents or information collected by Dr. Seese in preparing her report is

“relevant” in any way: whatever Parents’ subjective intent was, preparation of an

independent report hardly indicates a lack of cooperation cognizable in this equitable

analysis.

Last, Fairfield takes aim, once again, at Parents’ refusal to embrace its

employees’ assertions that collaborative classes were “just as academically rigorous as

other classes,” asserting that Parents’ “concerns were unfounded.” Def.’s Opp’n at 22;

see also id. at 25 (“The Parents removed Student because they did not want her to

attend collaboratively taught classes in ninth grade.”). To be sure, there is evidence in

the record to suggest that skepticism of collaborative classes may indeed have been the

motivating factor in Parents’ decision to effectuate a unilateral placement. See Mar. 21,

2016 Hr’g Tr. at 58:14–59:10. Again, though, parents’ subjective intent regarding

whether they will keep their child in public school is generally not relevant to this

equitable considerations analysis. C.L., 744 F.3d at 840. Here, Fairfield asks the court

to conduct the type of inquiry into subjective intent that has no bearing on determining

whether reimbursement is appropriate: the Hearing Officer and this court have

determined that the IEP did not provide a FAPE, whether Parents’ concerns about

collaborative classes were unfounded or not. At any rate, there was no specific conduct

stemming from this belief that is inequitable.

Because the aspersions Fairfield casts upon Parents are unsupported by the

record, and because Parents’ refusal to consent to the ESS intake process is of virtually

no relevance in determining whether reimbursement for 2015–16 is appropriate, the

court concludes that reimbursement for 2015–16 tuition at the Spire School is proper.

Parents apparently acted in good faith and cooperatively, until they became

disenchanted with Fairfield’s IEP—one that this court has found inadequate—and

sought a unilateral placement for their daughter. The equities favor tuition

reimbursement, and so the court grants Student’s Motion for Summary Judgment,

insofar as it seeks reversal of the Hearing Officer’s determination of the balance of the

equities.

B. Eighth Grade (2014–15)

In addition to claiming the inappropriateness of Fairfield’s 2015–16 IEP, Student

claims she was not provided with a FAPE for her eighth grade year, 2014–15, during

which she attended public middle school. The Hearing Officer concluded that the IEP

offered for eighth grade was appropriate. See H.O. Decision at 17–19 ¶¶ 4–5.

Accordingly, she denied Parents’ request for reimbursement of private tutoring and

counseling expenses. See id. at 21–22 ¶ 8.

Claiming that the Hearing Officer’s “conclusion is logically inconsistent with her

finding that the program for the ninth grade was not appropriate because the therapeutic

services were not sufficient for the Student,” Pl.’s Mem. in Supp. at 26 (quotation marks

and citation omitted), Student argues that she is entitled to reimbursement for these

expenses, see id. at 31, 39. Student offers four justifications for her belief that the IEP

was inappropriate: (1) that bullying or perceived bullying so interfered with Student’s

education that she was denied a FAPE, see generally id. at 26–31; Pl.’s Reply at 6–11;

(2) that Student’s IEP did not provide sufficient emotional support, see generally Pl.’s

Mem. in Supp. at 32–33; Pl.’s Reply at 11–12; (3) that Student’s IEP did not

appropriately address “her profound executive functioning disability,” see generally Pl.’s

Mem. in Supp. at 33–36; and (4) that the absence of writing goals at the beginning of

the 2014–15 school year rendered the IEP per se inappropriate, see generally Pl.’s

Mem. in Supp. at 36–37; Pl.’s Reply at 12–13. Unsurprisingly, Fairfield disagrees on

each point. See generally Def.’s Opp’n at 4–10 (bullying), 10–14 (emotional support),

14–18 (executive functioning), 18–20 (writing).

The court addresses each point in turn, and concludes that the Hearing Officer

was correct: the 2014–15 IEP offered a FAPE, and Student and Parents are not entitled

to reimbursement for either private tutoring or counseling.

1. Bullying

The Hearing Officer concluded that Student was not denied a FAPE as a result of

bullying during her eighth grade year. See H.O. Decision at 17 ¶ 5. Invoking the four-

part test set out in T.K. v. New York City Department of Education, 779 F. Supp. 2d 289

(E.D.N.Y. 2011), the Hearing Officer found that the conduct alleged did not meet the

definitions of bullying set out either by Connecticut statute, see Conn. Gen. Stat. § 10-

222d, or by United States Department of Education Office of Special Education

Programs, see Dear Colleague Letter, U.S. Dep’t of Educ., Office of Special Educ. &

Rehabilitative Servs. (Aug. 20, 2013) (“Dear Colleague Letter”).6 See H.O. Decision at

18–19 ¶ 5. Thus, the first prong of the T.K. test was not met. Even assuming arguendo

that the acts reported by Mother and Student qualified as bullying, the Hearing Officer

found that Fairfield officials were not “indifferent to Student’s reports and took

reasonable steps to address issues as staff were made aware of them”; therefore, the

third prong of T.K.’s test was not satisfied. See id. Because the Hearing Officer

determined that Student fell short at both the first and third prongs of the T.K. analysis—

the test for which Student apparently advocates—the alleged bullying did not qualify as

a substantive denial of a FAPE. See id.

Student’s argument is somewhat difficult to parse. She appears to argue that

incidents of bullying by teachers and peers in seventh grade provide support for a

conclusion that she was denied a FAPE in eighth grade. See Pl.’s Mem. in Supp. at 28,

30 (invoking incident with Spanish teacher that took place during seventh grade). She

6 This document is available at:

https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/bullyingdcl-8-20-13.pdf.

also faults the Hearing Officer for focusing on the definition of bullying set out by

Connecticut statute, rather than “whether the perceived harassment is interfering with [ ]

Student’s ability to access her education . . . .” See id. at 28. More significantly,

however, Student’s theory appears to be that her unsubstantiated reports of bullying

during eighth grade obligated Fairfield to call a PPT meeting to address these reports,

and that the Board’s failure to do so violated her right to a FAPE. See id. at 28–29.

Indeed, Student makes clear that, in her view, “[t]he fact that [ ] Student perceived

bullying that school administrators were unable to verify is evidence of the Student’s

severe disability and her need for far more intense services.” Pl.’s Reply at 8. The

suggestion is, of course, that it matters not at all whether Student was actually bullied,

but rather that unconfirmed allegations to that effect trigger obligations on the part of the

school district.

Student repeatedly obfuscates the obvious difference between this case and the

bullying described in T.K., proscribed by Connecticut statute and condemned in U.S.

Department of Education guidance: none of the reports of bullying alleged to have

occurred during Student’s eighth grade year were substantiated. Specifically, Student

invokes aspects of T.K. that she believes are favorable to her case, see, e.g., Pl.’s

Mem. in Supp. at 30–31 (“The factual parallels with T.K. are uncanny.”), while glossing

over the lack of substantiation for her bullying claims. Nevertheless, the court agrees

with Student that T.K. provides a useful “standard for finding a substantive violation of a

[s]tudent’s right to a FAPE.” See Pl.’s Mem. in Supp. at 27.7 T.K. set out a four-part

7 In fact, neither party objects to the use of the test set out by Judge Weinstein in T.K. See Pl.’s Mem. in Supp. at 27, 30–31; Def.’s Opp’n at 6–10; Pl.’s Reply at 7.

inquiry to determine whether bullying has caused a substantive denial of a FAPE:

(1) whether the student was the victim of bullying, see 779 F. Supp. 2d at 317;

(2) whether the school had notice of substantial bullying of the student, see id. at 318;

(3) whether the school failed to take reasonable steps to address the harassment, see

id.; and (4) the bullying caused the student’s educational benefit to be adversely

affected, see id.

At the outset, it is the court’s view that the incidents in which Student was teased

during seventh grade—which were confirmed—are of minimal relevance in determining

whether alleged bullying in eighth grade interfered with Student’s right to a FAPE. But

see Pl.’s Reply at 6 (“Although seventh grade is not at issue, the accumulation of events

is relevant to understanding [ ] Student’s individual emotional needs during eighth

grade.”). The relevant focus of the court’s inquiry into whether alleged bullying resulted

in the denial of a FAPE for eighth grade is those incidents that occurred in eighth

grade.8

With regard to the first prong of the T.K. test, the court need not decide whether

the definition of bullying set out in Connecticut statute, which Student disfavors and

claims the Hearing Officer should not have invoked, or the description of bullying in

OSEP’s Dear Colleague Letter should govern claims of the substantive denial of a

FAPE. Both require that bullying or some kind of harassment actually have taken place.

See, e.g., Dear Colleague Letter at 2. Neither addresses “perception[s] of

8 The Hearing Officer likely discussed the bullying incidents in seventh grade in greater detail, see

H.O. Decision at 18–19 ¶ 5, because one of the questions she addressed that is not at issue before this court was whether Fairfield denied “Student a FAPE for that portion of the 2013-2014 school year beginning on September 23, 2013 and running through the conclusion of the school year,” see H.O. Decision at 22 ¶ 1.

mistreatment . . . .” See Pl.’s Reply at 7. As such, Student was not the subject of

bullying under either definition during her eighth grade year.

Student’s claims also fail under the third prong of the T.K. test because,

notwithstanding her assertions to the contrary, see Pl.’s Mem. in Supp. at 29 (criticizing

“school’s tepid investigations”), on the record before the court, Fairfield promptly and

diligently investigated each instance of alleged bullying. Setting aside Student’s

hyperbole, she points to no record evidence that would indicate Fairfield’s investigations

were unreasonable or inadequate. The Hearing Officer concluded that the weight of the

evidence suggested that “the District was not indifferent to Student’s reports and took

reasonable steps to address issues as staff was made aware of them.” See H.O.

Decision at 19 ¶ 5. The court agrees. Therefore, Student’s claims that bullying denied

her a FAPE fail at both the first and third steps of the T.K. framework.

Embracing Student’s preferred analysis—which looks to a student’s perception of

bullying—would render the IDEA unworkable for the school districts charged with

complying with it. It would make little sense to require that schools convene PPT

meetings every time a student complains of bullying, when those claims cannot be

confirmed. When reports of bullying are substantiated or clearly and directly interfere

with a disabled child’s ability to receive a FAPE, see T.K., 779 F. Supp. 2d at 318; 20

U.S.C. § 1414(d)(4)(A)(ii)(I), such intervention may well be appropriate. Here, there is

no such obvious link between the unconfirmed reports of bullying and any inability to

access a FAPE. The court cannot conclude that the IDEA requires schools to convene

the PPT whenever they receive such unsubstantiated allegations of bullying.

In sum, Student’s allegations of bullying do not meet the test set out in T.K. for

substantive denial of a FAPE: her claims could not be confirmed, after reasonable

investigation by the school district. As such, the court denies Student’s Motion for

Summary Judgment, insofar as it seeks a determination that she was denied a FAPE as

a result of instance of perceived bullying during the 2014–15 school year.

2. Fairfield’s IEP as a FAPE

The Hearing Officer concluded that “[t]he District did not deny Student a FAPE

for the 2014-2015 school year.” H.O. Decision at 22 ¶ 2. In this appeal from the

Hearing Officer’s Decision, Student claims: (1) that she was provided with insufficient

emotional support services, see Pl.’s Mem. in Supp. at 32–33; Pl.’s Reply at 11–12;

(2) that her “profound executive functioning disability” was not addressed, see Pl.’s

Mem. in Supp. at 33–36; Pl.’s Reply at 14–15; and (3) that omission of writing goals

from her IEP for the first months of eighth grade deprived her of a FAPE, see Pl.’s Mem.

in Supp. at 36–37; Pl.’s Reply at 12–13. Student asserts that she “is not asking the

court to second guess the factual determinations made by the Hearing Officer. Instead,

Plaintiff is asking the court to review the logical and legal conclusions reached from

those facts.” See Pl.’s Reply at 11. Once again, Fairfield disagrees on each point. See

Def.’s Opp’n at 10–14 (emotional support), 14–18 (executive functioning), 18–20

(writing goals).

As set forth in more detail below, the court concludes that none of Student’s

claims of error in the Hearing Officer’s decision are persuasive. Fairfield provided

Student with a FAPE for the 2014–15 school year.

a. Emotional Support

The crux of Student’s claim that emotional support services should have been

provided in the 2014–15 IEP is her contention that the Hearing Officer’s conclusion is

“logically inconsistent with her finding that the program for the ninth grade was not

appropriate because ‘the therapeutic services [offered] were not sufficient for the

Student . . . .’” See Pl.’s Mem. in Supp. at 26 (quoting H.O. Decision at 17 ¶ 3). This

claim of logical inconsistency is easily rejected: it does not follow from the Hearing

Officer’s conclusion that Student needed more extensive counseling services for ninth

grade—when, for example, she would have been transitioning to a new school (or to a

new school and the aquaculture program)—that a FAPE for the 2014–15 school year

would also have included such extensive services. While that might be the case,

Student’s claim that she required counseling services in 2014–15 must succeed or fail

independently, on its merits, rather than necessarily following from the Hearing Officer’s

conclusion regarding the ninth grade IEP.

Setting aside Student’s “logical[ ] inconsisten[cy]” argument, there is not evidence

in the record to support a conclusion that the 2014–15 IEP was insufficient for failure to

include counseling services. Student relies primarily on communications from Dr.

Heitzman to school officials, in which Student says Dr. Heitzman told the school

psychologist, Walter Young (“Young”), that Student “required regular counseling.” See

Pl.’s Mem. in Supp. at 32 (citing Mar. 8, 2016 Hr’g Tr. at 45–48). Contrary to Student’s

characterization of this testimony, Dr. Heitzman said no such thing. Rather, he testified

that he was concerned that Student did not understand how to meet with Young, and

advised that Young should proactively reach out to Student, given her negative

experience over the summer. See Mar. 8, 2016 Hr’g Tr. at 47:10–48:6;9 see also id. at

162:3–162:8 (“I wasn’t recommending weekly counseling with [Student]. I was

recommending that she needs it, and this would be a good time to set up what [‘as-

needed’] means.”). Although Dr. Heitzman indicated his belief that Student should meet

with Young at the beginning of the school year, he did not suggest that Young should

set regular meeting times.10

Relatedly, Student claims that she “was not permitted to [see Young] on a regular

basis.” See Pl.’s Mem. in Supp. at 32. In support of this claim, she cites to one specific

instance, in which one of Student’s special education teachers did not let her speak to

Young until she “had a solution.” See Bd.’s Ex. 179 at 39–40. Though a meeting was

apparently set up to address concerns about this teacher preventing Student from

speaking with Young, see id., there is no indication in the record that Student was

prevented from meeting with Young “on a regular basis” or that this single incident so

disrupted her education as to interfere with her right to a FAPE. All of the testimony to

which Student points is either related to this one, apparently isolated incident, see

Mar. 18, 2016 Hr’g Tr. at 44:14–44:22; Mar. 21, 2016 Hr’g Tr. at 19:3–20:22—from

which she expands to make much broader claims about the unavailability of counseling

than are supported by the evidence—or are nonspecific, see Mar. 8, 2016 Hr’g Tr.

9 In part, Dr. Heitzman testified as follows: “[W]hat I was asking Walter [Young] to do was to try to

extend himself to find her [Student] in the beginning of the year, find her in the beginning and sit down with her even to review some of the things that happened, review some of the summer. Review how she was feeling, but also to sit down and to define what it means to be as needed. You know, what—how that’s going to work, just so she had a working knowledge of that.” Mar. 8, 2016 Hr’g Tr. at 47:22–48:6. 10 Any suggestion by Dr. Seese that “Student had serious emotional issues at the beginning of

eighth grade [fall of 2014],” see Pl.’s Mem. in Supp. at 32 (citing Mar. 1, 2016 Hr’g Tr. at 76), is of very little weight. Dr. Seese did not meet Student until the spring of 2015. See Pl.’s L.R. 56(a)2 at 9 ¶¶ 27– 28.

at 49:1–51:3. To the extent Student is unhappy that Young was not always available

when she wanted to speak with him, see Pl.’s Mem. in Supp. at 32 (citing Mar. 18, 2016

Hr’g Tr. at 105, in which Mother indicated that Student sometimes could not see Young

because she “had to schedule an appointment, and the appointment would not be right

at that instant” or because “he was in a meeting”), there is no evidence to suggest that

this deprived Student of a FAPE.

The evidence to which plaintiff points is unpersuasive, and the court thus

concludes by a preponderance of the evidence that she was not denied a FAPE

because of the 2014–15 IEP’s failure to include emotional support services.

b. Executive Functioning

Student appears primarily to assert two related errors regarding the 2014–15 IEP

and its executive functioning goals: first, that the Board tried to incentivize behaviors

with a plan that had failed during seventh grade, see Pl.’s Mem. in Supp. at 34–35, and,

second, that the IEP’s inappropriateness is evidenced by significant “regression, not

progress” on Student’s executive functioning skills during eighth grade, see Pl.’s Reply

at 14–15. Fairfield suggests that it revised the motivational methods regularly, see

Def.’s Opp’n at 16–17, and that Student made “progress on her goals and objectives for

the 2014[–]2015 school year, but with some variability,” see id. at 14.

Student is correct that, when the PPT meets to review an IEP, it must revise the

IEP “as appropriate, to address . . . [a]ny lack of expected progress toward the annual

goals . . . and in the general education curriculum, if appropriate . . . .” See 34 C.F.R.

§ 300.324(b)(1)(ii)(A); see also 20 U.S.C. § 1414(d)(4)(A)(ii)(I).11 Student refers to

testimony from Dr. Heitzman, in which he articulated his view that it was clear by

October 2014, that Student’s behavior plan was not working. See Pl.’s Mem. in Supp.

at 34–35 (citing Mar. 8, 2016 Hr’g Tr. at 58–67). Notably, Student cites to no evidence

that suggests either that the school district had utilized these behavioral motivators in

seventh grade without success, or that Fairfield persisted in them knowing that they did

not work. On the other hand, there was evidence before the Hearing Officer—cited by

Fairfield, see Def.’s Opp’n at 16–17—that to the extent school officials were conscious

of shortcomings in the behavior plan in October 2014, they worked to address them.

See, e.g., May 6, 2016 Hr’g Tr. at 139:5–142:1; May 10, 2016 Hr’g Tr. at 16:4–16:24.

Therefore, the court cannot conclude by a preponderance of the evidence that Student’s

right to a FAPE was violated by this alleged failure to modify behavioral motivation

techniques.

Next, Student claims that the data collected by Fairfield “clearly showed

regression, not progress.” See Pl.’s Reply at 14. Student’s argument is without merit.

Student claims that “[e]ighth grade was a year of profound regression on executive

functioning,” without citing the record evidence from which she derives the figures she

offers.12 See Pl.’s Mem. in Supp. at 34. On an independent review of the record, the

11 Because the court concludes that the evidence does not support a finding that Student was not

making progress on her executive functioning goals, the court need not decide whether section 1414(d)(4)(A)(ii)(I) of title 20 of the United States Code imposes an obligation to call a PPT meeting anytime a Student is not making progress toward the annual goals. See Pl.’s Reply at 14. However, the court notes that, given the immediately preceding subsection, it might view Student’s reading of the statute with some skepticism. See 20 U.S.C. § 1414(d)(4)(A)(i) (requiring only that IEP be reviewed “periodically, but not less frequently than annually, to determine whether the annual goals for the child are being achieved”). 12 The court notes that the way in which plaintiff cites to the record in this portion of her briefing is

entirely unhelpful. For example, Student writes that: “The behavioral data for eighth grade showed

court was unable to find a basis for the assertion of “profound regression” on these skills

in eighth grade, but simply that the progress was, as might be expected, uneven. The

data set forth in Fairfield’s Exhibit 142A is separated by class and by week, which

means there are presumably no more than five entries for many of these categories, i.e.

Monday to Friday. See, e.g., Bd.’s Ex. 142A at 1 (measuring whether Student “Arrived

to class on time”). That being the case, there is significant week-to-week and subject-

to-subject variability in Student’s success on these objectives. For example, during the

week of September 22, 2014, Student arrived on time to Math 0% of the time, Social

Studies 100% of the time, and Science 50% of the time, see id. at 1–2; during the week

of March 2, 2015, she arrived to each of these classes on time 100% of the time, but

only 50% of the time to Spanish and 75% of the time to Language Arts, see id. at 21–

22. Such fluctuations are common in many of the other areas measured as well.

Accordingly, there is not support in the record for the conclusion that eighth grade was a

year of “profound regression.” See id. at 24–26.

Though Student suggests that the IEP report on her eighth grade progress is

deficient because of a failure to provide “data to evidence progress on her objectives,”

see Pl.’s Mem. in Supp. at 34 (citing Bd.’s Ex. 143 at 2–5), Fairfield appears to have

regression across numerous categories,” citing to the Board’s Exhibit numbered 142A. See Pl.’s Mem. in Supp. at 34. In the next five sentences, Student cites specific percentages that she claims reflect her success (or lack thereof) at achieving certain objectives “at the end of seventh grade” and “at the end of eighth grade,” respectively. See id. Unfortunately, Student provides no citation to the record after any of these figures, and so it is impossible to verify or otherwise reference them. Exhibit 142A sets forth data collected from September through March of Student’s eighth grade year, without any data from “the end of seventh grade” or from “the end of eighth grade.”

Student’s Reply is similarly wanting, insofar as she follows a claim that “[t]he data clearly showed regression, not progress” with an “Id.” citation that referred back to a string cite referencing dozens of pages from each of two exhibits. See Pl.’s Reply at 14.

In the future, counsel for Student is advised to avoid citing to the record—which here includes thousands of pages of documents—in such an unhelpful way.

accompanied this report with further explication of its analyses, including some concrete

data, see generally Bd.’s Ex. 144. Fairfield candidly acknowledges that the progress

Student made was not unabated, see Def.’s Opp’n at 16, but, according to

contemporaneous documentation, she made “Satisfactory” progress in most of her IEP

goals in her eighth grade years, see generally Bd.’s Ex. 147.13

In light of the foregoing, the court concludes by a preponderance of the evidence

that the 2014–15 IEP was not deficient for failure to provide for improvement in

executive functioning.

c. Writing Goals

Last, the court turns to Student’s argument that the “lack of writing goal[s] [in the

May 2014 IEP] per se rendered the IEP inappropriate.” Pl.’s Reply at 12. The Hearing

Officer resolved the factual dispute as to whether the writing goals were dropped

inadvertently or purposefully, concluding that “[t]he record supports a finding that the

District[’s] statement that the goals were inadvertently dropped in the October IEP was

inaccurate.” H.O. Decision at 17 ¶ 4. She found it relevant that “[c]hanges to the goals

and objectives were noted in the IEP summary,” and that “[p]arents had a copy of the

draft IEP without the writing goal before the [May 2014] PPT meeting.” Id. Ultimately,

the Hearing Officer concluded that Student was not denied a FAPE by the lack of writing

goals for the first few months of her eighth grade year.

13 Moreover, although not directly relevant to the question of whether Student improved her

executive functioning skills, it does not appear in dispute that she succeeded academically in eighth grade: Student achieved grades between B- and A, with one exception, see Bd.’s Ex. 172, and exceeded school and district averages on state standardized testing, see Bd.’s Ex. 173.

Although Student’s briefing could be read as seeking to relitigate whether the

writing goals were removed purposefully or inadvertently, see, e.g. Pl.’s Mem. in Supp.

at 37 (suggesting that Student was denied FAPE “[w]hichever story is true”), the court

takes seriously her concession that she “is not asking the court to second guess the

factual determinations made by the Hearing Officer,” see Pl.’s Reply at 11. In any

event, there was evidence before the hearing officer to support her finding. See, e.g.,

May 18, 2016 Hr’g Tr. at 62:13–63:4; June 2, 2016 Hr’g Tr. at 103:13–104:4. As such,

and on the recommendation of Student, the court affords the determination of the

Hearing Officer the proper measure of deference, and concludes by a preponderance of

the evidence that the writing goals were removed purposefully.

Student is left with two arguments as to why this removal violated her right to a

FAPE: (1) that she had a “substantial writing deficit” that was not addressed at the

beginning of her eighth grade year, see Pl.’s Mem. in Supp. at 37; and (2) that the

miscommunications between Fairfield and Parents—which Student characterizes as

“deception” or “falsehood,” see Pl.’s Mem. in Supp. at 37—constitute a procedural

violation of the IDEA, see Pl.’s Mem. in Supp. at 37; Pl.’s Reply at 13. As for the first of

these arguments, Student cites to no evidence that suggests she had a “substantial

writing deficit,” apart from noting that writing goals were included in an IEP developed

after the December 23, 2014 PPT meeting. See Pl.’s Mem. in Supp. at 37. In her

Reply, she does not address the issue. See Pl.’s Reply at 12–13. Moreover, Fairfield

points out that Student received “writing support in general education cross curriculum”

three times per week as a part of her May 2014 IEP, notwithstanding the lack of

separate writing goals. See Def.’s Opp’n at 19 (citing Bd.’s Ex. 133 at 2). The court

thus concludes by a preponderance of the evidence that the lack of writing goals at the

beginning of her eighth grade year did not constitute a substantive violation of Student’s

right to a FAPE.

Student also suggests that the conflicting messages from Fairfield officials

regarding whether the writing goals were omitted purposefully “significantly impeded the

parents’ opportunity to participate in the [decision-making] process regarding the

provision of a free appropriate public education” to Student. Pl.’s Mem. in Supp. at 37

(quoting 20 U.S.C. § 1415(f)(3)(E)(ii)(II)); Pl.’s Reply at 13 (same). Student’s argument

is unpersuasive. By all accounts, Parents received a draft of the IEP prior to the

May 2014 PPT meeting. See May 3, 2016 Hr’g Tr. at 224:6–224:14. Student’s

assertions to the contrary notwithstanding, the record does not support a finding that

Fairfield “significantly impeded the parents’ opportunity to participate in the

decisionmaking process” leading up to or in the immediate aftermath of the May 2014

PPT meeting. Similarly, whatever misimpression was conveyed by the October 2014

IEP’s note that the writing goals were added in after being “inadvertently” omitted, there

is no indication whatsoever that this miscommunication “impeded” at all, let alone

“significantly impeded,” Parents’ ability to participate in the cooperative development of

an IEP for their daughter. In fact, Parents appear to have achieved the outcome they

desired: writing goals were added back to Student’s IEP.

There is simply no indication that the removal of writing goals, and the

interactions between Parents and Fairfield related thereto, violated Student’s

substantive or procedural rights under the IDEA. That being the case, the court

concludes by a preponderance of the evidence that the IEP for the 2014–15 school year

was appropriate.

V. CONCLUSION

After addressing each parties’ arguments in great detail above, the court

summarizes its conclusions.

Student’s Motion for Summary Judgment is GRANTED IN PART AND DENIED

IN PART. It is granted insofar as it asks the court to affirm the determination of the

Hearing Officer that the IEP provided for 2015–16 was not appropriate and that the

Spire School was an appropriate placement. Student’s Motion is also granted insofar

as it seeks reversal of the Hearing Officer’s determination that the equities militate

against reimbursement for the cost of the unilateral placement. It is denied insofar as it

seeks reversal of the Hearing Officer’s conclusion that the 2014–15 IEP was

appropriate, whether because of perceived bullying or because of a lack of sufficient

emotional support, executive functioning, and writing-related services.

Fairfield’s Motion for Summary Judgment is DENIED in all respects.

Student is entitled to Spire School tuition costs for the 2015–16 school year. She

is not entitled to reimbursement for private tutoring or counseling provided during the

2014–15 school year.

SO ORDERED.

Dated at New Haven, Connecticut this 7th day of July, 2017.

/s/ Janet C. Hall Janet C. Hall United States District Judge

S. v. Fairfield Board of Education