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DECISION ORDER
Case Number: 600315
Student’s Name:
District: Central Sch. Dist.
Hearing Requested By: Parents
Hearing Officer: Martin J. Kehoe III, Esq.
Introduction
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parents as Parents and the student will be referred to as Student. This is a reimbursement case influenced by allegations of bullying.
Overview
In this case the Parents assert that their son has been victimized by a long series of bullying incidents resulting in a situation that requires a removal from the District school setting.
The longstanding problems put their son in a false light and, because of the more threatening aspects of the bullying behaviors, have resulted in post-traumatic stress disorder (“PTSD”). The belated complaints of the Parents were taken seriously by the District. Several investigations were commenced concerning the bullying behavior, and the District convened several CSE meetings in an attempt to keep the Student in School. The
Student and the Parents disagreed with the District’s effort to keep the Student in school, and the Parents ultimately placed the Student in a Private School where he is now thriving.
Parents’ Position
The Parents allege that the District did not provide the Student with a FAPE during the 2012-2013, 2013-2014, and 2014-2015 school years (The Student’s tenth (10th); eleventh (11th); and twelfth (12th) grade years). (Ex. A-8)
2012-2013: Tenth (10th) Grade
The Parents argue that the District knew the Student was the victim of bullying, yet the District failed to conduct a New York Dignity for all Students Act (“DASA”) investigation.
(Ex. A-9)The Parents argue that failure to address bullying constitutes a denial of FAPE.
(Id.) Moreover, the CSE failed to provide appropriate goals and services to deal with the harassment. (Ex. A-10)
2013-2014: Eleventh (11th) Grade
The Parents argue that the District knew the Student’s attendance was deteriorating, yet the District failed to provide the Student with adequate services. Specifically, the District did not provide a timely functional behavioral assessment (“FBA”), or a timely behavior intervention plan (“BIP”). (Ex. A-10) The Parents allege that the District failed to address the Student’s safety once personal threats were directed at him by the Parent of another
Student. (Id.)
2014-2015: Twelfth (12th) Grade
The Parents allege that the District engaged in a pattern of unnecessary delay in developing an IEP for the 2014-2015 school year; the Parents were forced to attend three (3) CSE meetings rather than one (1); the District engaged in impermissible predetermination, thereby denying the Parents a meaningful opportunity to participate; and the District failed to meaningfully consider a continuum of placement options, or any placement other than the same Public School. (Id)
District’s Position
In general, the District’s position is that the Student was provided a FAPE while he attended the Public School. (Tr. 25)
2012-2013: Tenth (10th) Grade
The District argues that a DASA investigation was conducted in the spring of the Student’s tenth (10th) grade year. (Ex. 2) The report did not return any incidents of bullying during the Student’s ninth (9th) grade year; though it did return two (2) incidents of alleged online harassment during the Student’s tenth (10th) grade year. (Ex. 2) The District maintains that it responded to both. Moreover, the issues raised for this school year are moot insofar as no meaningful relief can fashioned for the year which has passed.
2013-2014: Eleventh (11th) Grade
The District acknowledges the alleged threats made against the Student by the parent of another student. (Tr. 22) The District argues that the parent of another student is not an individual included under DASA. (Ex. 2) Nevertheless, the District addressed the issue, the parent was told that he could not return to school property, and nothing happened subsequent. (Tr. at 23) As with the previous school year, the issues raised for the 2013- 2014 school year are moot.
2014-2015: Twelfth (12th) Grade
Following the cancellation of the CSE meeting scheduled for March 2014, the CSE met in April and then reconvened twice in June. (Ex. 2) At those times, it agreed to provide the Student with home instruction while it developed the FBA and BIP. (Id.) The ultimate goal was to re-integrate the Student into the Public School with a behavior plan. (Id.) The CSE reconvened to review the plan in June of 2014. (Id.) The District argues that statements made to the CSE as early as April of 2014 made it clear that the Parents did not intend for the Student to return to the Public School. (Tr. at 24) The District acknowledges that the Student had a falling out with students and even a staff member at the Public School, but the Student’s decision not to return was not based upon any failure of the CSE. (Tr. at 25)
Student History
At the time the Complaint Notice was filed, the Student was a seventeen (17) year-old boy attending the eleventh (repeating for the second time) (11th) grade in a Private School. (Ex.
5) The Student is diagnosed with Disorder (“ ”). (Ex.
3; 4; 5) The Student’s earliest evaluation on record in this case is dated May 14, 1997 (sic) (December 2009) (Ex. 8) This date appears to be printed in error. Therein, it was reported that the Student has been classified since the second (2nd) grade. (Id. at 2) In addition to the evaluation reported other diagnoses of , Not Otherwise Specified and Disorder. (Id. at 3)
The record does not include an evaluation from the time between the evaluation identified as Exhibit 8, dated May 14, 1997 (likely 2007), and the psychological Report dated January 5, 2010. (Ex.s 8 and 17, respectively) The January 5, 2010 Report is the next evaluation in the chronology. (Ex. 17) The summary of this Report indicated that the Student’s intellectual functioning was in the above-average range, and this was consistent with past evaluations. (Id. at 6) The Student’s weaknesses were in the areas of planning and organization attention and conduct. (Id.)
The next evaluation in the record is the Educational Evaluation dated December 6, 2012.
(Ex. 13) This Report indicates that the Student was assessed via the Wechsler Individual Achievement Test – III (WIAT-III). (Id. at 1) The Student scored in the average or above-average range in every academic category except sentence building, where his score was below average. (Id. at 2)
The Student was next administered a evaluation on April 2, 2013. (Ex. 16)
The School psychologist noted that the Student was in the above-average range of cognitive abilities. (Id. at 2) His composite intelligence index of placed him in the nd percentile for students his age. (Id.) To the extent that the Student struggled, these struggles were typical of a Student with ADHD. (Id.)
The March 17, 2014 evaluation is the next relevant evaluation in the chronology. (Ex. 7)
This Report indicated that the Student seeks to avoid school work. (Id. at 2) Also, the Student experienced difficulty keeping up with his studies, and he has mood problems.
(Id.) The Student demonstrated above-average cognitive ability on the Reynolds
Intellectual Assessment Scale (“RAIS”). (Id. at 3) The evaluator refrained from making a conclusive diagnosis of Learning Disorder given the Student’s performance on psychological testing. (Id. at 6) Instead, the indicated that the Student’s social history may be the cause of his difficulties. (Id.)
Preliminary Findings
After reviewing the record and reflecting upon the testimony and documents used in this case, I make the following observations and findings of fact: During tenth grade there was a concern by the Parents that the Student was gaining a negative reputation and they alerted the District to derogatory comments made about the Student by classmates on the internet (See ex. F dated March 13, 2013). I conclude after reviewing testimony of Assistant Principal that the Student did gain a negative reputation among faculty and staff as a result of the off-campus negative publicity. (Tr. pp. 469-470, 725-726) (Ask FM (Tr. 940) and
Facebook (Ex. D & EE) The assistant Principal took prompt action to investigate the incident and felt assured that the source of the problem was quieted. Nevertheless, one cannot un-ring a bell and I conclude that it would be expected that the Student would suffer some level of embarrassment. Going forward, the CSE recommended an IEP. (Ex. 3) I
stop short of a FAPE analysis because the no meaningful relief can be ordered for that school year and the issue is moot1 in terms of available relief. Factually, however, this information is relevant to the history of the Student, what the CSE reasonably knew and the status of the Student at the time that the 2014-2015 IEP was being developed.
(approximately April 2014 through August 2014)
1 In general, cases dealing with issues such as desired changes in IEPrivate School, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted (see, e.g., Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 05-058; Application of a Child with a Disability, Appeal No. 04- 027; Application of a Child with a Disability, Appeal No. 00-037; Application of the Bd. of Educ., Appeal No. 00-016; Application of a Child with a Disability, Appeal No. 96-37). Administrative decisions rendered in cases concerning such issues arising out of school years that have since expired may no longer appropriately address the current needs of the student (see Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 [5th Cir. 1989]; Application of a Child with a Disability, Appeal No. 07-139; Application of the Bd. of Educ., Appeal No. 07-028; Application of a Child with a Disability, Appeal No. 06-070; Application of a Child with a Disability, Appeal No. 04-007). See SRO 11-102 Likewise, the issue of FAPE for the 2013-2014 school year is a moot point. However there are several helpful facts that offer continuity to the Student’s situation as the 2014-2015 IEP was developed. First the Student was involved in a frightful altercation with the Parent of a female student on campus at a school event. It is reasonable to conclude that this was a cause of embarrassment to the Student. See comments in ’s report (Ex. 7 p.2)
The District responded to the situation with discretion. They forwarded the information to the Parents and advised the option of police involvement while directly confronting the assailant and directing him off of school property. Subsequently the Student began failing his Spanish class and became estranged from the stagecraft activities which had previously consumed much of his time. Then, one day during February, classmates got a hold of a failing grade and began making fun of the Student. The Parent’s complained to the District, they sent the Student to a Private and instigated the meta-historical DASA investigation (see ex.37) Several CSE meeting were scheduled and rescheduled. Following the first CSE meeting for the 2014-2015 school year it was discovered that a fellow student had published a song on the internet about the Student. The song was shocking for its subject matter and it is reasonable to assume that the Student would react emotionally about the fact that it was published to others. This prompted a further investigation by the District. Around this time the student stopped attending.
Discussion
In the following pages I approach the complaint notice first by dismissing the 2012-13 and 2013-14 school year claims based upon the doctrine of mootness. I then proceed to apply a traditional three prong analysis common to reimbursement claims. Prong one is comprised of the procedural issues of timeliness of the CSE process, a claim of predetermination and a claim that alternate programs were not considered during the CSE process which I dismiss and, then I analyze the substantive claims first relating to the issue of bullying and then in relation to the program offered by the CSE for the 2014-15 school year. Regarding each of the substantive issues, I find for the District.
Because of the eccentricities of this case and the sympathetic appeal of the Parental position, as a cautionary exercise I include an analysis of Prong II – the propriety of the Parental placement. Here I find that the Parents did not carry their burden insofar as they failed to demonstrate that the unilateral placement could address any of the Student’s special education needs.
Finally I weigh the equities in this matter. While the Student may be deserving of some level of empathy owing to a long past history of bullying incidents, even perhaps to an understanding of his decision to leave the District, I find that his steadfast position, as a seventeen year old, of complete refusal to co-operate with the District’s extensive efforts to reintegrate him into the District school has turned the equities against him. On the other hand the District has presented a case that supports a finding of good faith and competent professional efforts to address the “bullying” allegations and to program for the special needs of a Student with complicated needs in a dynamic, evolving high school setting.
The law regarding reimbursement
A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents if the services offered by the board of education were inadequate or inappropriate; the services selected by the parents were appropriate; and equitable considerations support the parents’ claim. Florence
County Sch. Dist. Four v. Carter. 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t.
of Educ., 471 U.S. 359, 369-70 (1985). This framework may be referred to as the Burlington/Carter Test. The first prong of this test; whether the services offered by the board of education were inadequate or inappropriate, is the proper heading under which to consider the alleged violations in this case.
Prong I
The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998).
Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child with a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley)
This straightforward obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR200.6[a][1]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2dCir. 2012]) "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck
Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at 10 [S.D.N.Y. Feb. 9, 2007]).
Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c)
caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]).
Prong I - procedural violations
I turn now to the instant case and start the analysis with the alleged procedural violation of the District delaying the CSE process. A CSE meeting was scheduled for March 31, 2014 and it was cancelled without explanation. Four additional meetings were scheduled, three of which the Parents participated.
April 23, 2014
The District scheduled an annual review for April 23, 2014. The CSE convened to discuss a number of issues including the Student’s “social adjustment” and escalating difficulties.
The meeting name was changed to a “program review” and a subsequent CSE meeting was scheduled. (See Ex. 4)
June 5, 2014 & June 23, 2014
That meeting occurred on June 5, 2014 at which point the Assistant Principal reviewed a Behavior Intervention Plan (BIP) and the DASA reports which were recently completed.
A number of strategies were discussed concerning the information that was being provided.
Yet another CSE meeting was required on June 23, 2014 in order to complete the annual review. A detailed transition plan was suggested with alternatives in the event that the Student needed additional supports. (See comments on Ex. 5)
Following the submission by the Parents of their “ten day notice” the District scheduled another CSE meeting but the Parents refused to attend and the meeting never took place.
(Tr. Pp. 154, 155 and 886)
While I understand the Parents position and respect their right to disagree with the District, I find that the agenda set for the CSE meetings was not unreasonable. To the extent that there were technical violations of the regulatory timelines I find them to be de minimus.
Moreover, the Parents had ample opportunity to participate and attend the CSE meetings. They did attend three meetings with capable counsel and were active participants advocating for their son, reviewing new information, participating in the formulation of strategies, and cooperating with the disclosure of information. Thus I do not find predetermination or a narrow view of only a single program but rather a diligent attempt to include various points of view. Unfortunately for the Parents, their viewpoint was not chosen by the CSE.
Because I do not find that the procedures employed (a) impeded the student's right to a FAPE (see substantive analysis below), (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (see substantive analysis below)
(20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]), I dismiss the Parents claim that the procedures employed by the District were flawed such that a FAPE was denied.
Prong I - substantive analysis “Bullying”
Here, I frame the central issue as whether the Student has improperly been subjected to bullying such that the District shall become responsible for the denial of a FAPE. The short answer is no and before getting to my reasoning I shall set forth the existing legal standard which I adopt:
The applicable standard should take into account administrative advice that has long been given to schools in how to apply the IDEA and other child protective legislation. By giving weight to this guidance, the expectations of the parties are not upset, and precise notice of expected conduct is provided. To that end, under IDEA the question to be asked is whether school personnel was deliberately indifferent to, or failed to take reasonable steps to prevent bullying that substantially restricted a child with learning disabilities in her educational opportunities.
This standard does not impose a new obligation on schools. For at least ten years the Department of Education has informed schools that they are legally obligated to comply with it. A school is responsible for addressing harassment incidents about which it knows or reasonably should have known. In some situations, harassment may be in plain sight, widespread or well-known to students and staff, such as harassment occurring in hallways, during academic or physical education classes, during extracurricular activities, at recess, on a school bus, or through graffiti in public areas. In these cases, the obvious signs of the harassment are sufficient to put the school on notice. In other situations, the school may become aware of misconduct, triggering an investigation that could lead to the discovery of additional incidents that, taken together, may constitute a hostile environment.
Earlier, the Department of Education had advised schools that "[w]hen disability harassment limits or denies a student's ability to participate in or benefit from an educational institution's programs or activities, the institution must respond effectively. Where the institution learns that disability harassment may have occurred, the institution must investigate the incident promptly and respond appropriately." Conduct need not be outrageous to fit within the category of harassment that rises to a level of deprivation of rights of a disabled student. The conduct must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment. (citation omitted). Where a student is verbally abused repeatedly and suffers other indignities such as having his property taken or is struck by his fellow students, and a school does nothing to discipline the offending students despite its knowledge that the actions have occurred, the student has been deprived of substantial educational opportunities. (citation omitted)
The rule to be applied is as follows: When responding to bullying incidents, which may affect the opportunities of a special education student to obtain an appropriate education, a school must take prompt and appropriate action. It must investigate if the harassment is reported to have occurred. If harassment is found to have occurred, the school must take appropriate steps to prevent it in the future. These duties of a school exist even if the misconduct is covered by its anti-bullying policy, and regardless of whether the student has complained, asked the school to take action, or identified the harassment as a form of discrimination.
It is not necessary to show that the bullying prevented all opportunity for an appropriate education, but only that it is likely to affect the opportunity of the student for an appropriate education. The bullying need not be a reaction to or related to a particular disability.
In its October 2010 Bullying and Harassment letter, the Department of Education provides an illustration of when a school is required to act, and what type of response is required. It is useful in applying the above test. A hypothetical student with a disability is verbally teased by other students and on one occasion is tackled, hit with a binder, and has his personal affects thrown in the garbage. DOE Bullying and Harassment Letter at 8-9. The student approaches teachers and guidance counselors who suggest counseling, but they do nothing to punish the bullies. Id.
The bullying then continues and the student, who was once doing well, begins showing the signs of victimization at the hands of other children. Id. at 9. The school in this hypothetical responded in part to the bullying, in offering the student counseling to deal with what he was going through. But it did not respond adequately. It did not fully investigate the bullying or punish those who were perpetrating the harassment. In this example, the school deprived the student of his educational benefit. T.K. v. NEW YORK CITY DEPARTMENT OF EDUCATION
(E.D.N.Y. 4-25-2011),779 F. Supp.2d 289 (internal citations omitted, my emphasis)
The following instances of bullying or harassment occurred in the two year period previous to the October 3, 2014 filing date of the Parent’s complaint.
In the winter of Student’s tenth grade year (2012-13), the Parents reported their concern to the District regarding Student’s application to participate in the LIFE program at school.
Certain other students in the District had posted derogatory statements about Student in the social media item Facebook. (Ex. D, Tr. P. 733) The Parents were fearful that the reputation implied by the postings might compromise Student’s application to the LIFE Program.
The District conducted an appropriate investigation including discovery of and contact with the offending students. The assistant principal admonished those students. No additional complaints were made following the conclusion of this part of the District’s investigation.
(Ex. 37 p.4) A similar complaint by Student’s parents dealt with negative comments about Student made on the social media item AskFM. The comments were made anonymously, so it was impossible for the District to contact any of the authors.
The District acted appropriately by contacting the director of the LIFE program and directing him to insure that any such AskFM statements regarding Student must be ignored while considering the Student’s application. (Ex. 37 p.4)
On October 3, 2013 Student reported that the father of a female student confronted him and threatened Student to stay away from that female, his daughter. The threat is associated with some relationship Student may have had with the daughter. The District acted properly by contacting the parent of the female student and admonishing him to stay away from Student when on the school campus. (Ex. 37 p.4) There was no further incident involving this adult.
In February 2014 the Parent reported an incident to Student’s english class teacher. The class had taken a test, and each test paper was graded by a classmate other than the test taker. Student’s grade was low, and it was shared with other classmates; subsequently, the Student was subject to being teased about the result. The Parent’s concern over this incident was favorably resolved at the Parent-teacher level. (Ex. 37 p.5) On April 25, 2014 the Parent reported an instance of cyber-bullying by another student.
That student had written a song containing accusations of illegal and immoral acts by Student along with threats of physical harm. The song was posted on Soundcloud, had been played, and the file had been downloaded by at least one student. The result was extremely stressful to the Student. The file was forwarded to an assistant principal. A subsequent investigation revealed that the particular website was no longer accessible and that the downloaded copy had been erased. No further complaints regarding this incident have been made. (Ex. 37 p.5)
I find that the District has acknowledged the bullying incidents noted above in the period relevant to the complaint notice of October 3, 2014, has addressed each, and has dealt appropriately in each instance. This holds true even when considering the longitudinal sequence of complaints taken together. I view the instances through the lens that the District wore. As each incident was identified, the DASA coordinator properly investigated and resolved the concern. This is a prospective analysis and the only one available as the complaints are being identified and resolved.
However, in hindsight the claims were continuing over time, and they were of similar character (they seemed to involve female students) and collectively they were disparaging.
Ultimately the Student suffered a negative reputation. But in assessing the severity of the situation, I am reluctant to find that the Student was victimized by a hostile environment such that the District was obligated to a remedy beyond what was proposed in the substantive program subsequently developed (see below - Prong I substantive standard what the school did.). I credit the testimony of the Assistant Principal who stated: “I think it is a safe place for [the Student].”
Take the example of the reported threat to the Student from the father of a female student.
Assuming that I indulge myself in the presumed facts of the classic tale of father protecting a daughter from an interloping male, I am left unconvinced that this was a truly serious incident; there was no police involvement, arrest or an order of protection. It is also reported that the Student continued in school in close proximity to the female student in class and even the father during an assembly later in the year. (Tr. 828-831) Two other points are worth noting: One, the Assistant Principal was present immediately following the reported incident. The Student told him “. . . it’s no big deal.” (Tr. 341) Also, although the IEP service of counseling was offered, the Student chose not to pursue the incident with the counselor at school but rather began skipping the scheduled counseling sessions. (Tr.
645) Likewise the Student opted not to pursue talks with a guidance counselor. Although anxiety was noted in the Student by the counselor when discussing the incident, the Student was given further assurances and the topic was dropped. (Tr. 564) I cannot support a classification of severe harassment in this instance.
I now turn to the idea that the harassment as being persistent or pervasive. While I view the acts above that were investigated as isolated instances, they certainly did keep on coming. It may even be fair to say that the problem was pervasive. I now turn to the program the District offered in light of the reports.
Prong I substantive standard - what the school did.
In response to the problems encountered by the Student, The District began a comprehensive plan to re-integrate the Student into the District’s High School. (See exhibits 4 and 5)
In the context of several CSE meetings recommendations were made to prepare and consider a functional behavior assessment (FBA) and behavior intervention plan (BIP).
Then, considering these assessments, the CSE made a plan for the summer so that the Student could salvage the academic credits which were in jeopardy at the end of his 11th grade year. This incorporated the offer of tutoring by an independent contractor (Ex. 5 p.1)
along with home tutoring support by one of his teachers. (Ex.5 p.1) Counseling was continued, and off-cite locations were liberally considered including home instruction. As to strategies other than those posed by the District to induce the Student to return to school, the Student’s own Private psychologist testified that “these people” (i.e., the District staff)
are “. . .thinking like me. . .”. (Tr. 1059) He added: “. . .[I]n theory, the desensitization idea was the right idea had the goal been to get him back to [the District school]”. (Tr.1059)
The plan stipulates that the Student will be allowed to utilize the small group therapeutic
TSP program as often as he needs. Further, the Student would have a certain staff individual who would be his “go to” person at any time he felt stressed. (Ex. 5 p.2) This is consistent with the observation of the Student’s Private Psychologist; when asked whether it was important to have “someone that he could go to”, the psychologist responded “Absolutely”
(Tr. 1065) I do not find that the District failed in its responsibility toward Student. There was no denial of a FAPE.
Prong II
On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent.
Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:
“ . . . [P]arents need . . . only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006]
The Student is classified as having Other Health Impairment (Ex.1, 1); accordingly, the Student warrants Special Education (SE) attention and services (e.g., see Ex.3, Ex.4, and
Ex.5). The Parents unilaterally enrolled the Student in the Private School via contract dated
7/29/2014 (Ex. M) after having provided a ten-day notice to the District dated 8/6/2014
(Ex. B).
The Private School is a general education school with relatively small classes of four to nine students. (Tr.1085-1086). The Student has developed friends there and started playing soccer once again at the Private School. (Tr. 1144-1145). The Student had acquired a bad reputation associated with harassment and bullying (see supra) at the District school.
However, he has gotten a “fresh start” at the Private School (Tr. 1146); it has provided an escape from the severe embarrassment he suffered and has, thereby, offered the opportunity for concentrating on school work. In the first marking period of the fall term at the Private School, the Student earned passing grades save for english (Ex.O, 1)---a topic with which he had had difficulty in the past (Ex.4, 6). Both Student and Parents seem very satisfied with the Private School along with the results produced thus far.
The Student’s teachers at the Private School do not have Special Education degrees (Tr.
1118-1120), nor are they necessarily certified by the New York State Education Department (Tr. 1123). The Private School has not reviewed any of Student’s records at the District; neither has the Private School performed tests or evaluations of Student, nor has the Private School prepared an IEP (Tr. 1125). Any IEP’s developed at the District would be summarized, taken under advisement, and acted upon as considered appropriate by the Private School staff (Tr. 1125-1126). The Private School does not employ a school psychologist or dedicated social worker (Tr. 1123-1124). These circumstances pose a potential shortcoming for a student with special education needs.
Thus, the Student appears, at the outset, to be doing reasonably well academically and socially at the Private School. However, the Private School does not employ a staff accomplished in Special Education topics. As the Student continues, familiar problems from the past are likely to occur owing to his classification and ADHD condition; and, should that happen, the Private School may not be in a position staff-wise to deal with such issues.
In this case I find that the Parent has not demonstrated that the Private School provides educational instruction specially designed to meet the unique needs of the Student.
Prong III
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington
v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][I] ; see 34 C.F.R. § 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools."
(Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004])
In this instance, the Parents signed the contract with the Private School on or about July 29, 2014. However, their position was well known to the District for several months. In fact the Parents’ lawyer announced their intent to seek any school but a District school from their first public encounter in April 2014. (Ex. 4 p.2)
When CSE met again on June 5, 2014 the Parents authorized the District to deal with Student directly thereby absolving themselves of the responsibilities (Tr. 152-154). At this point the Student decided he was not going to meet with District personnel, teachers, counselors or the CSE. Finally, after providing their ten day notice in August, the Parents refused to accept an invitation to another CSE meeting. This litigation ensued.
Throughout this hearing I find that the Parents were credible and, from their point of view,
I do not fault them. However, their actions did not comport with the mandate of cooperation required by IDEA. The "core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools." Schaffer v. Weast, 546 U.S. 49, 53 (2005).I note their reticence in reporting complaints to the district at the behest of their son and later their intransigence concerning any school but the District.
On the other hand the Parents claim the CSE acted in dilatory fashion. I disagree. The
Student presented a complicated situation in dynamic circumstances, and the District witnesses presented a compelling presentation of professionalism and accountability for their actions.
Dated: August 30, 2015
It is therefore ORDERED
The complaint notice is dismissed.
___________________
Martin J. Kehoe III, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before the service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be viewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing to the 25- for 35-day period.” (8 NYCRR §279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.