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G. v. the Council Rock School District et al.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DAVID G., an adult with a disability, CIVIL ACTION Plaintiff No. 06-1523

THE- COUNCIL ROCK SCHOOL FI! ” E D DISTRICT, SFP 24 7009 Defendant MICHAELE .U.z, Clerk By Dep. Clerk

MEMORANDUM

United States Magistrate Judgc M. Faith Angeli has filed a Report and Recommendation (“R&R”) on cross-motions for judgment on the administrative record in

this case seeking review of a decision by the Special Education Appeals Review Panel

following a duc process hearing before a hearing officer. This court has considered the

record of the proceedings before the hearing officer, the decisions of the hearing officer

and the Appeals Panel, the R&R, plaintiff David G.’s objections to the R&R, and

defendant Council Rock School District’s responses. The court approves and adopts

Magistrate Judge Angell’s recommendations to: grant in part and deny in part plaintill’s

motion; grant in part and deny in part defendant’s motion; affirm the Appcals Panel’s

decision that defendant provided a free and appropriate public education (*FAPE”) for

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7th, 8th, 11th, and 12th grades; affirm the decision that FAPE was not provided for part

of 9th and 10th grades; and remand for further proceedings with regard to whether FAPE

was provided in the 2nd through 6th grade years.

The facts and lengthy procedural history of this case are set out in Magistrate

Judge Angell’s R&R as well as in the decision of the hearing officer. This court refers to

those discussions and focuses on plaintiff David G.’s objections to the R&R. David urges

rejection of the Magistrate Judge’s recommendations that the court find that plaintilf he

graduated in June 2004; that he was provided with appropriate transitional services; and

that he was provided with FAPE from 7th to 12th grade, with the exception of 9th and

10th grades. Plaintiff also argues that the hearing officer’s grant of compensatory

education was “overly and unnecessarily restrictive in its use and in its temporal

limitation and therefore docs not provide appropriate relief.” Plaintiff asks for, instead,

monetary damages or the establishment of a fund on his behalf. Finally, though plaintiff

asks the court to adopt the Judge Angell’s recommendation that the question of FAPE for

2nd through 6th grade be addressed (rather than considered waived, as the hearing

examiner found), he asks the court to enter judgment rather than remand the question to

the hearing examiner. Plaintiff argues that the record clearly establishes the lack of FAPE

and so remand on this issuc is unnecessary.

The defendant schoo! district argues that plaintiff's objections are without merit;

defendant does not have any objections of its own other than to refer to the arguments it

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made before the hearing examiner and the Magistrate Judge.’

The court adopts Judge Angell’s recommendation that the hearing officer erred in

finding that plaintiff was barred from claiming a denial FAPE between the 2nd and 6th

grades. The court also adopts Judge Angell’s recommendation that this issuc be

remanded to the hearing officer and rejects plaintiff's suggestion thal the court decide the

issue. The hearing examiner heard the testimony of the witnesses on this issue and is in a

better position than this court to evaluate that testimony, as well as the documentary

evidence she already received on this issue, in the first instance. Morever, because the

hearing officer wisely heard from the parties on all the years of plaintiff's schooling so as

not to have to reopen the record later (though the court concludes that she improperly

limited the years she reviewed), a remand should not occasion too great a further delay.

The recommendation to adopt the hearing officcr’s conclusions regarding the

provision of FAPE in 7th, 8th, 11th, and 12th grades is adopted, and plaintiffs objections

to the contrary are rejected. The hearing officer found that though David’s IEPs “could

not stand alone as an indication of the delivery of FAPE,” the “the overwhelming

appropriateness of [plaintiff’s] program was amply illustrated through the lestimony of

[plaintiffs] teachers and other support personnel.” Problems with IEPs such as

vagueness or failure to set measurable goals may constitute a denial of FAPE if they

'Defendant seeks leave to file a sur-reply to plaintiffs’ reply brief regarding its objections. Docket No. 51. That motion is granted; the court has read and considered all the filings of counsel in this case.

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result in “the loss of educational opportunity, seriously infringe upon the parents’

opportunity to participate in the IEP formulation process, or cause a deprivation of

educational benefits.” Souderton Area School Dist. v. J.H., 2009 WL 349733, *6 (E.D.

Pa., Feb. 11, 2009) (citations omitted). The record does not contain evidence that any

such consequences resulted here. The hearing cxaminer found that plaintiff received

educationa! benefits and made meaningful educational progress as a result of the

instruction provided to him. Her conclusion that defendant provided an appropriate

education in 7th, 8th, 1 {th, and 12th grades will be affirmed.

Plaintiff's objection Lo the recommendation that the court adopt the hearing

afficer’s finding that plaintiff graduated in 2004 is rejected. There is no non-testimonial

extrinsic evidence in the record to contradict this factual finding. Additionally, plaintiffs

contention that defendant failed to provide adequate transitional services before plaintiff

graduated is not correct--the record is replete with evidence of the transitional services

provided to David at his original high school, through the Middle Bucks Institute of

Technology program, and at the Sloan School.

Judge Angell’s recommendation that the hearing officer’s conclusion that FAPE

was not provided in 9th and 10th grades will be adopted. The hearing officer noted that

David had a specific and identified reading disability and found the reading instruction he

was provided for those years to have been inadequate, Plaintiff does not object to this

conclusion, but rather objects to the specifics of the hearing officer’s award of

compensatory education. The court agrees with Judge Angell that this objection is

without merit. This court also “commend[s] the Hearing Officer for fashioning an

individually-tailored remedy designed to meet David’s specific needs.”

Finally, plaintiff, in his reply brief, asserts his entitlement to an award of money

damages under the Americans with Disabilities Act and § 504 of the Rehabilitation Act.’

Plaintiff requests a hearing for the purpose of establishing the amount of any damages

award. Defendant contends that this claim was not part of the motion for judgment on the

administrative record and, even if it may be considered, is barred by the statutory

requirement that claims for harms allegedly occurring prior to the age of majority be

brought within two years of a plaintiff's eightcenth birthday. Should such damages be

available, defendant also contends that any recovery would be limited by the statute of

limitations to damages for harms occurring two years before the complaint was filed on

April 11, 2006.

Because the case will be remanded to the hearing officer to determine whether

plaintiff was denicd FAPE for his elementary school years, the exact scope of defendant’s

liability to plaintiff is not yet known. The court will therefore not rule on plaintiff's

eligibility for monetary damages at this time.

"In his initial objections to the R&R, plaintiff had requested “monetary damages or that the District be required to establish a specified fund for his benefit” but had not mentioned any statute creating an entitlement to such damages other than the IDEA.

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E.D. Pa.: G. v. the Council Rock... | Special Education Law