UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
DAVID STRECK and DONNA 1:04-CV-202 STRECK, GLS/DRH
Plaintiffs,
v.
BOARD OF EDUCATION OF THE EAST GREENBUSH CENTRAL SCHOOL DISTRICT, et al.,
Defendants.
APPEARANCES: OF COUNSEL:
FOR THE PLAINTIFFS:
Donohue, Sabo Law Firm FRED HUTCHISON, ESQ. 24 Aviation Road ALVIN O. SABO, ESQ. Albany, NY 12212-5056
FOR DEFENDANTS:
Lemire, Johnson Law Firm FRANCINE R. VERO, ESQ. 2534 Route 9 GREGG T. JOHNSON, ESQ. P.O. Box 2485 Malta, NY 12020
Gary L. Sharpe U.S. District Judge
MEMORANDUM, DECISION AND ORDER
I. Introduction
On remand from the Second Circuit, the court addresses the just
value of plaintiff David Streck’s compensatory reading program award.
After consideration of the parties arguments and evidentiary submissions,
the court awards plaintiffs $8,640.00 in reimbursement for Mr. Streck’s
compensatory reading program and independent neuropsychological
evaluation
II. Background
Mr. Streck was a student at the East Greenbush Central School
District (the “School District”) from September 1988 to June 2002. (See
Compl. ¶ 1; Dkt. No. 1.) In 1991, he was classified as having a learning
disability and an individualized education program was created for him. Id.
Just prior to Mr. Streck’s graduation, his mother, Plaintiff Donna Streck,
claimed that he had been denied a free and appropriate public education
(“FAPE”) - as he was unable to read - and an administrative hearing was
requested. Id. at ¶¶ 70, 76.
On October 29, 2003, a State Review Officer (“SRO”): (1) found that
Mr. Streck had been denied a FAPE; (2) ordered “that the district provide
the student with compensatory education in the form of reimbursement for
the projected cost of [his] reading program as it is implemented at the
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Landmark College;” (3) denied reimbursement for “tuition, room and board,
travel,” and all other “required fees and expenses ... except to the extent
that such costs and/or fees are specifically associated with the
implementation of the reading program;” (4) ordered that if Mr. Streck
“chooses to avail himself of a reading program other than the program
offered at Landmark College, the district is only required to provide
reimbursement in an amount equal to or less than the cost of the reading
program at Landmark College;” (5) ordered “that the district’s obligation to
provide the student with compensatory education shall last no more than
three years;” and (6) granted plaintiffs reimbursement for the costs of Mr.
Streck’s independent neuropsychological evaluation (See SRO decision;
Dkt. No. 60:3.) Subsequently, the School District offered payment to the
Strecks in the amount of $3,200 pursuant to the SRO’s order. (See Pl. Ex.
D; Dkt. No. 60:6.) The Strecks rejected this payment.
Thereafter, on February 26, 2004, the Strecks filed this action,
asserting claims under the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400, et seq., and various other state and federal
laws. (See generally Compl.; Dkt. No. 1.) On defendants’ 12(b)(6) motion,
the court dismissed all of plaintiffs’ claims, with the exception of the IDEA
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claim against the School District. (See Dkt. Nos. 31, 41, 55.) Judgment
was granted against the School District on the IDEA claim in the amount of
$6,200. (See Dkt. No. 50.) Of this award, $4,700 was determined to be
the value of David Streck’s compensatory education at Landmark College,
while the remaining $1,500 reimbursed plaintiffs’ expenses for Mr. Streck’s
independent examination. (See 11/29/06 Order at 3 n.4; Dkt. No. 49.)
Plaintiffs appealed,1 and on May 30, 2008, the Second Circuit found that
the court’s $4,700 award lacked an evidentiary basis. (See Dkt. No. 62.)
The court’s decision was otherwise affirmed, and the case was remanded
solely “for a redetermination of the just value of the compensatory reading
education awarded by the SRO.” Id. The court addresses this issue
presently.
III. Discussion
Plaintiffs contend that they should be awarded $150,230.70 as the
just value of the compensatory reading program at Landmark College.
(See Pl. Br. at 4, 6; Dkt. No. 81.) This request represents $34,000 in tuition
at Landmark for the 2002-2003 school year; $5,500 in room and board at
1 The School District’s check for the $6,200 award was returned by the plaintiffs upon their appeal.
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Landmark; $2,125 for a laptop computer and software fee at Landmark;
$2,205.70 for other costs and expenses at Landmark; and $106,400 for two
years of prospective education at the Total Learning Centers. See id. at 1-
6. The court finds this request to be grossly excessive.
First, as to the 2002-2003 tuition at Landmark, a cursory review of Mr.
Streck’s curriculum reveals that only three of his nine2 courses - a reading
tutorial, RS091 and CP101 - specifically focused on the development of
reading skills. (See David Streck Aff. ¶ 6; Dkt. No. 79:1, Ex. A to David
Streck Aff.; Dkt. No. 79:2, Ex. B to David Streck Aff.; Dkt. No. 79:3.)
Nonetheless, plaintiffs contend reimbursement for the entire $34,000 tuition
is appropriate because Landmark and its entire curriculum are specifically
designed for students with dyslexia and dysgraphia disabilities like Mr.
Streck. (See Pl. Br. at 2-3; Dkt. No. 81.) Be that as it may, the School
District is required to pay for a compensatory reading program, not a
comprehensive college education targeting Mr. Streck’s disability.
Additionally, as the School District notes, plaintiffs have conveniently failed
to mention that approximately 37% of Mr. Streck’s tuition at Landmark
2 It is unclear to the court whether Mr. Streck had a reading tutorial in both the Fall and Spring semesters. If so he actually had ten classes.
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appears to have been covered by grants, scholarships and other financial
aid. (See Ex B to Donna Streck Aff.; Dkt. No. 80:3.) Accordingly, the court
will award plaintiffs tuition reimbursement for 63% of the pro-rated cost of
Mr. Streck’s three reading specific classes at Landmark, for a total of
$7,140 ($34,000 / 3 x .63).
As for plaintiffs’ attempt to gain reimbursement for room and board, a
laptop computer and other expenses at Landmark, (see Pl. Br. at 3-4; Dkt.
No. 81.), the court declines to grant such an award. It is true that all of
these expenses, with the exception of room and board, appear to have
been necessarily incurred by students at Landmark. However, the court is
not convinced that such expenses were “specifically associated with the
implementation of the reading program,” as opposed to the Landmark
education in general. As such, they will not be reimbursed.
Additionally, the court declines to award plaintiffs the $106,400 they
seek for two years of anticipated tuition at the Total Learning Centers, (see
Pl. Br. at 4-6; Dkt. No. 81.), as it is well settled that the IDEA allows parents
to recover only actual, not anticipated, expenses for private school tuition
and related expenses. See, e.g., Diaz-Fonseca v. Puerto Rico, 451 F.3d
13, 32-33 (1st Cir. 2006); Emery v. Roanoke City Sch. Bd., 432 F.3d 294,
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298-300 (4th Cir. 2005). As such, plaintiffs are not now entitled to
reimbursement for the remaining two years of Mr. Streck’s compensatory
reading program.
Finally, the plaintiffs are entitled to $1,500 for Mr. Streck’s
independent neuropsychological evaluation. (See Ex C to Donna Streck
Aff.; Dkt. No. 80:4.) Accordingly, plaintiffs are awarded $8,640.00 in
reimbursement.
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that plaintiffs are awarded $8,640.00 in reimbursement
for Mr. Streck’s compensatory reading program and independent
neuropsychological evaluation; and it is further
ORDERED that the Clerk of the Court provide a copy of this Order
to the parties by regular mail.
IT IS SO ORDERED.
Albany, New York Dated: July 16, 2009
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