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Doe v. Belchertown Public Schools

United States District Court, D. Massachusetts

November 13, 2018




         I. Introduction

         Jane Doe (“Student”) and her grandparents and legal guardians (“Grandparents” or, separately, “Grandmother” or “Grandfather”) (collectively “Plaintiffs”) have brought this suit pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., against co-defendants, Belchertown Public Schools (the “School District”) and the Massachusetts Bureau of Special Education Appeals (“BSEA”). Pending before the court are cross-motions for summary judgment. Plaintiffs had counsel for the proceeding before the BSEA. They filed this action pro se and then obtained new counsel shortly before summary judgment motions were filed. The court held a hearing on the parties' cross motions for summary judgment January 12, 2018. During that hearing, counsel for Plaintiffs advanced several new arguments and requested the opportunity to file supplemental briefing. Over objections from Defendants, the court allowed the request. Plaintiffs filed their supplemental memorandum and Defendants responded. The court now considers the original and supplemental filings.

         Plaintiffs challenge the September 23, 2016 decision by a BSEA hearing officer denying Plaintiffs' request for retroactive reimbursement and prospective payment of expenses incurred for Student to attend Wilbraham Monson Academy (“WMA”) during the 2014-2015, 2015-2016, and 2016-2017 school years. The hearing officer determined the Individualized Education Plan (“IEP”) proposed by the School District for each year was reasonably calculated to provide Student a free appropriate public education (“FAPE”) in the least restrictive environment (“LRE”), as required under the IDEA, and that WMA was not an appropriate placement for Student. Plaintiffs ask the court to conclude the offered IEPs were insufficient and either that the WMA placement was appropriate or that Student is entitled to a compensatory education award. Alternatively, Plaintiffs ask the court remand the case back to the BSEA for further hearing regarding Student's educational needs and/or the regarding the cumulative harms of procedural violations found by the hearing officer. Plaintiffs also seeks an award of attorney's fees for the attorney expenses associated with the BSEA appeal. The School District and BSEA ask this court to affirm the September 23, 2016 BSEA decision and deny attorney's fees because Plaintiffs do not qualify as prevailing parties.

         II. Background

         A. Educational History

         Student attended a public elementary school operated by the School District until third grade, when she was found eligible to receive special education services to address a language-based learning disability. The School District developed an IEP for her and, consistent with that IEP, placed her at Curtis Blake Day School (“Curtis Blake”) a private, out-of-district, special education school. At Curtis Blake, Student participated in an intensive integrated language based program. Student remained at Curtis Blake through the end of eighth grade (the 2013-2014 school year).

         During her five years at Curtis Blake, Student made “commendable academic gains, ” especially during her final year when she progressed from a third grade reading level to an emergent seventh grade reading level. On April 30, 2014, Student's special education team (“Team”) met to consider her IEP for the period from May 22, 2014 through May 21, 2015. During that meeting Student and Grandparents expressed a desire for Student to attend high school at WMA, a private, general education, college preparatory high school. Student was familiar with WMA because other family members had attended the school. She indicated she wanted to attend WMA so she could access more challenging academics, typical peers, and extracurricular activities. Staff from Curtis Blake who attended the meeting expressed concern about placing Student at WMA because the school did not offer the type of special education curriculum offered at Curtis Blake. They worried about Student's ability to progress academically without access to the types of instructional methods offered at Curtis Blake. Neither Curtis Blake staff nor staff from the School District supported Student's choice of placement. At the time of the meeting, all parties believed Student did not need a new placement because she could remain at Curtis Blake for ninth grade. Although Student was fourteen years old at the time of the meeting, the Team did not discuss establishing a transition plan for Student.

         Following the April 30, 2014 Team meeting, the School District offered Student an IEP placing her in an unnamed “substantially separate program” within Belchertown High School (“BHS”), the public high school operated by the School District. The BHS program was not discussed at the Team meeting and Student and Grandparents were surprised by the proposed placement. Student and Grandmother observed the program and concluded it would not be appropriate for Student for several reasons including the level of noise and lack of structure in the classroom and their assessment that the academic program was not sufficiently challenging to prepare Plaintiff for a four year college and career in health care. Grandmother rejected the proposed IEP and requested a Team Meeting. She later wrote a letter to the Massachusetts Department of Elementary and Secondary Education (“DESE”), complaining about the School District's unilateral decision to change Student's placement from an out-of-district placement to an in-district placement. The dispute over the proposed IEP caused Curtis Blake to become Student's stay-put placement. Curtis Blake later announced it would not be offering a ninth grade program during the 2014-2015 school year and, therefore, could no longer be Student's stay-put placement.

         Counsel for Grandparents wrote to the School District and requested WMA as an alternative stay-put placement, asserting any alternative stay-put placement should be at a private school. In response, the School District proposed White Oak School (“White Oak”) as a substitute stay-put placement. Like Curtis Blake, White Oak is a DESE-approved private, special education school serving students with language-based learning disabilities. Student's family agreed that White Oak would be designated the new stay-put placement.

         Student began attending White Oak on September 2, 2014. Within a short time, Student was unhappy with the placement. She believed the curriculum was not sufficiently rigorous to prepare her to attend a four-year college. The lengthy commute-White Oak is over an hour from Student's home-prevented her from participating in extracurricular activities. Student also felt isolated and unsafe with some of the other students. At the BSEA hearing, Student reported hiding in the bathroom with another girl in order to avoid certain boys during the period between arriving at school and the start of the school day. Student's discomfort appears to have been related to a significant gender imbalance among the students at White Oak. Of the nine ninth graders who began the 2014-2015 school year at White Oak, seven were boys and two were girls. Both Student and the other girl left White Oak without completing the 2014-2015 school year.

         During September Student participated in testing at White Oak and with a school psychologist and a speech and language pathologist both employed by the School District. Following that testing, a Team Meeting was held on September 24, 2014. Student attended that meeting and expressed her continued to desire to attend WMA. Student also shared her dissatisfaction with White Oak, but without raising specific concerns related to safety or the impact of safety concerns on her ability to learn.

         After the Team Meeting, the School District drafted a new IEP for Student. Pursuant to the new IEP Student was to continue attending White Oak. The new IEP also included a Transition Planning Form which described Plaintiff's goal to complete high school in June of 2018, then attend a four-year college as a residential student, and to work in the medical field on a part-time basis while in college and full-time after graduating. The associated Action Plan identified supports to help Student reach the goals set out in the Transition Planning Form.

         On October 8, 2014, Grandmother accepted the IEP, but rejected the placement at White Oak. At that time she requested a meeting to discuss the location for delivery of services. Two days later, Grandparents' attorney notified the School District they would be placing Student at WMA because they believed such a placement to be the most appropriate for Student. The School District responded on October 15, 2014 to acknowledge the unilateral decision to place Student at WMA, reiterate the opinion of the School District that White Oak was the most appropriate placement for Student, and confirm that School District would not pay for a placement at WMA.

         Student began attending WMA on October 20, 2014. She remained there for the rest of the 2014-2015 school year. During that time, her academic performance fluctuated. Despite putting in substantial effort, Student received a warning letter from the WMA academic review board in February of 2015. Several months later, at the end of the 2014-2015 school year, Student's reports indicated that her academic performance was improving. Her final grades for ninth grade included a C- in English and Algebra 1, a D in Global Studies, and a D in Physics.

         Prior to the start of the 2015-2016 school year, Grandparents informed the School District of their intention to continue Student's placement at WMA and to seek retroactive reimbursement for the placement. On September 22, 2015, Student's Team conducted its annual IEP review. Student, her father, Grandmother, and an educational advocate all participated in that meeting via conference call together with staff from WMA. Those participating in the meeting agreed Student would benefit from more academic support. WMA agreed to: provide Student with accommodations through a Student Learning Plan which set out special teaching strategies to be implemented in reading, writing, and math; give Student access to assistive technology, extended time, breaks, no spelling penalties, and, at the discretion of the teacher, access to a scientific calculator during assessments; and provide trained special education teachers to work with Student for approximately two hours per week.

         The 2015-2016 IEP offered by the School District changed the Student's placement from White Oak, which was no longer a stay-put placement, to the Language Learning Program (“LLP”), the same partial inclusion program at BHS, Student and Grandmother had visited at the end of the 2013-2014 school year. The Service Delivery grid of the proposed IEP included a fifteen minute weekly consultation with a Speech and Language pathologist and almost twenty hours per week of instruction with a certified special education teacher or paraprofessional. The IEP included a Transition Planning Action Plan identical to the one in the 2014-2015 ...

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