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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CHRISTINA LIEF F/B/O TASHA LIEF, Plaintiff, v. CAPE HENLOPEN SCHOOL DISTRICT and the DELAWARE DEPARTMENT OF EDUCATION, Defendants. ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 06-274 (GMS)

DEFENDANTS' OPENING BRIEF IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT YOUNG CONAWAY STARGATT & TAYLOR, LLP Scott A. Holt, Esquire (No. 3399) Michael P. Stafford, Esquire (No. 4461) The Brandywine Building 1000 West Street, 17th Floor P.O. Box 391 Wilmington, Delaware 19899-0391 Telephone: (302) 571-6623; 571-6553 Facsimile: (302) 576-3299; 576-3461 Email: [email protected]; [email protected] Attorneys for Defendant Cape Henlopen School District Dated: July 24, 2007

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Table of Contents Page NATURE AND STAGE OF THE PROCEEDINGS................................................................... 1 SUMMARY OF THE ARGUMENT .......................................................................................... 2 STATEMENT OF FACTS ......................................................................................................... 4 A. 1. 2. 3. 4. B. 1. 2. 3. C. Third Grade 2002/2003. .............................................................................................. 4 T.L.'s Third Grade IEP ........................................................................................... 4 Initial Placement ..................................................................................................... 4 The IEP team does not sit idle ................................................................................. 5 T.L. makes academic and behavioral progress throughout the Third Grade.............. 7 The Fourth Grade IEP (2003/2004 school year)........................................................... 9 Placement.............................................................................................................. 10 Occupational Therapy. .......................................................................................... 11 T.L. makes meaningful educational progress ......................................................... 12 The Fifth Grade IEP (2004/2005 school year). .......................................................... 12

1. Placement.............................................................................................................. 13 2. The IEP Team considered the 2004 KKI Report and adopted most of its recommendations. ......................................................................................................... 14 3. T.L.'s educational progress during 5th grade. ......................................................... 14 D. The Proposed Sixth Grade IEP (2005/2006 school year) ........................................... 15 STANDARD OF REVIEW ...................................................................................................... 18 ARGUMENT ........................................................................................................................... 20 I. II. T.L. RECEIVED A FAPE DURING HER ENROLLMENT IN THE DISTRICT. ........ 21 THE PROPOSED IEP FOR THE 2005/2006 REGULAR SCHOOL YEAR WAS REASONABLY CALCULATED TO PROVIDE MEANINGFUL EDUCATIONAL BENEFITS. .................................................................................................................. 27 NO PROCEDURAL VIOLATIONS OCCURRED. ...................................................... 28 T.L. WAS PLACED IN THE LEAST RESTRICTIVE ENVIRONMENT FOR 5th GRADE AND UNDER THE PROPOSED 6th GRADE IEP.......................................... 30 PLAINTIFF'S OBJECTIONS TO DAVID JEFFERSON'S TESTIMONY AND THE PANEL'S CREDIBILITY DETERMINATIONS ARE WITHOUT MERIT. ................ 32

III. IV. V.

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VI.

PLAINTIFF'S "SECTION 1983" CLAIM MUST BE DISMISSED BECAUSE THE THIRD CIRCUIT HAS HELD THAT CLAIMS UNDER SECTION 504 AND THE IDEA ARE NOT ENFORCEABLE THROUGH SECTION 1983................................. 34 THE ALLEGATIONS OF HEARING OFFICER BIAS AND ERRORS IN THE CONDUCT OF THE DUE PROCESS HEARING ARE WITHOUT MERIT. .............. 35 THE ELEVENTH AMENDMENT AND THE DOCTRINE OF SOVEREIGN IMMUNITY BAR ANY NON-IDEA OR SECTION 504 CLAIMS RAISED BY PLAINTIFF IN THE PETITION AGAINST THE DELAWARE DEPARTMENT OF EDUCATION. .............................................................................................................. 39

VII. VIII.

CONCLUSION ........................................................................................................................ 40

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TABLE OF AUTHORITIES Cases A.W. v. Jersey City Public Schools, 486 F.3d 791 (3d Cir. 2007)............................................................................................. 3, 35 Alex R. v. Forestville Cmty. Unit Sch. Dist. #221, 375 F.3d 603 (7th Cir. 2004)................................................................................................. 22 Baer v. Klagholz, 339 N.J. Super. 168 (N.J. Super. Ct. 2001)............................................................................ 30 Bd. of Educ. v. Bauer, 2000 Westlaw 1481464 (D. Md. 2000) .......................................................................... passim Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982) ............................................................................................................. 18 Brown v. Wilson County Sch. Bd., 747 F. Supp. 436 (M.D. Tenn. 1990) .................................................................................... 19 Burlington Sch. Comm. v. Department of Educ., 471 U.S. 359 (1985) ............................................................................................................. 20 Carlisle Area Sch. v. Scott P., 62 F.3d 520 (3d Cir. 1995).................................................................................................... 30 Clear Creek Indep. Sch. Dist. v. J.K., 400 F. Supp. 2d 991 (S. D. Tex. 2005)............................ 25 Coale v. Del. Dep't of Educ., 162 F. Supp. 2d 316 (D. Del. 2001) ...................................................................................... 26 D.M. ex rel. E.L. v. Red Clay Consol. Sch. Dist., 2007 Del. Fam. Ct. LEXIS 21 (Del. Fam. Ct. Feb. 13, 2007) .....................................22, 26, 38 DiBuo v. Bd. of Educ., 309 F.3d 184 (4th Cir. 2002)................................................................................................. 28 Doe v. Cates, 499 A.2d 1175 (Del.Supr. 1983); .................................................................................... 22, 40 Doe v. Tullahoma City Sch., 9 F.3d 455 (6th Cir. 1993) .................................................................................................... 22 Edelman v. Jordan, 415 U.S. 651 (1974) ............................................................................................................. 39 Fisher v. Bd. of Educ. of the Christina Sch. Dist., 856 A.2d 552 (Del. 2004) ............................................................................................... 18, 21 Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993) ........................................................................................................... 20 Fort Zumwalt Sch. Dist. v. Clynes, 119 F.3d 607 (8th Cir. 1997)................................................................................................. 21

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Fuhrmann v. East Hanover Bd. of Educ., 993 F.2d 1031 (3d Cir. 1993)................................................................................................ 26 H.W. v. Highland Park Bd. of Educ., 108 Fed. Appx. 732 (3d Cir. 2004) ................................................................................. 26, 34 Hendricks Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982) ............................................................................................................. 22 J.P. v. W. Clark Cmty Schs., 230 F. Supp. 2d 910 (S.D. Ind. 2002).................................................................................... 25 Jones v. Washington County Bd. of Educ., 15 F. Supp. 2d 783 (D. Md. 1998) ........................................................................................ 19 Kerkam v. McKenzie, 862 F.2d 884 (D.C. Cir. 1991), subsequent opinion, 931 F.2d 84 (D.C. Cir. 1991) ................................................................ 22 King v. State, 203 A.2d 74 (1964)............................................................................................................... 40 Knable v. Bexley City Sch. Dist., 238 F.3d 755 (6th Cir. 2001)................................................................................................. 28 Lewisville Indep. Sch. Dist. v. Charles W., 81 Fed. Appx. 843 (5th Cir. 2003) ........................................................................................ 21 M.A. v. Voorhees Twp. Bd. of Educ., 202 F. Supp. 2d 345, 364 (D.N.J. 2002)........................... 32 N.S. v. Commonwealth of Pa. Dep't of Educ., 875 F. Supp. 273 (E.D. Pa. 1995).......................................................................................... 29 Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368 (3d Cir. 1991)................................................................................................ 21 Oberti v. Board of Educ., 995 F.2d 1204 (3d Cir. 1993).......................................................................................... 30, 31 Pagano v. Hadley, 535 F. Supp. 92 (D. Del. 1982) ............................................................................................. 39 Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171 (3d Cir. 1988).................................................................................................. 22 Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238 (3d Cir. 1999)............................................................................................ 20, 22 Roland M. v. Concord Sch. Comm., 910 F.2d 983 (1st Cir. 1990).................................................................................................. 26 Ross v. Framingham Sch. Comm., 44 F. Supp. 2d 104 (D. Mass. 1999), aff'd, 229 F.3d 1133 (1st Cir. 2000), cert. denied, 531 U.S. 1089 (2001) ................................................................................. 19, 21

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S.H. v. State-Operated Sch. Dist., 336 F.3d 260 (3d Cir. 2003)............................................................................................ 18, 21 Schoenbach v. District of Columbia, 309 F. Supp. 2d 71 (D.D.C. 2004) ........................................................................................ 28 Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194 (3d Cir. 2004)............................................................................................ 18, 34 Springer v. Fairfax County Bd. of Educ., 134 F.3d 659 (4th Cir. 1998)................................................................................................. 18 Susan N. v. Wilson Sch. Dist., 70 F.3d 751 (3d Cir. 1995).............................................................................................. 18, 26 T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572 (3d Cir. 2000)............................................................................................ 20, 30 T.S. v. Indep. Sch. Dist. No. 54, 265 F.3d 1090 (10th Cir. 2001)............................................................................................. 28 Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127 (5th Cir. 1993).................................................................................................. 31 Town of Burlington v. Dept. of Educ., 736 F.2d 773 (1st Cir. 1984) ................................................................................................. 18 Turnbull v. Fink, 668 A.2d 1370 (Del. Supr. 1995) .......................................................................................... 40 Union Sch. Dist. v. Smith, 15 F.3d 1519 (9th Cir.) .......................................................................................................... 19 W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995)................................................................................................... 21 W.E.B v. Appoquinimink Sch. Dist., 2003 U.S. Dist. LEXIS 12695 (D. Del. July 8, 2003) ............................................................ 18 W.G. v. Bd. of Trustees, 960 F.2d 1479 (9th Cir. 1992)............................................................................................... 28 Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119(2d Cir. 1998) .................................................................................................. 26 Weiss by Weiss v. School Bd. of Hillsborough County, 141 F.3d 990 (11th Cir. 1998)............................................................................................... 28 Statutes 14 Del. C. § 3138...................................................................................................................... 38 20 U.S.C. § 1415(i)(2)(C)(ii) .........................................................................................18, 29, 35 29 U.S.C. § 794 .................................................................................................................... 3, 35 34 C.F.R. § 104.4 ..................................................................................................................... 21 34 C.F.R. § 300.512............................................................................................................ 29, 38 vi

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42 U.S.C. § 1983 .............................................................................................................2, 34, 39 Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq ................................................................................................ passim Other Authorities Delaware Constitution, Article I, Section 9 ............................................................................... 39 Delaware Valley Sch. Dist., 38 IDELR 224 (SEA PA 2003)............................................................................................. 37 Marblehead Public Schools, 36 IDELR 170 (SEA MA 2002) ........................................................................................... 37 U.S. Const. Amend XI.............................................................................................................. 39

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NATURE AND STAGE OF THE PROCEEDINGS On June 10, 2005, Plaintiff requested an administrative due process hearing alleging that the Cape Henlopen School District (hereinafter, "the District") had violated the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq (hereinafter, "the IDEA"). On January 31, 2006, the administrative due process hearing panel (hereinafter, "the Panel") issued its Hearing Decision and Order rejecting all of Plaintiff's claims. In the matter of T.L., DE DP 05-26. Plaintiff filed a Petition- Appeal Hearing Decision and Order (hereinafter, "the Petition") appealing the decision in the Family Court of the State of Delaware on March 29, 2006. Defendants removed the instant action to the United States District Court for the District of Delaware on April 27, 2006. (D.I. 1). Plaintiff contested the removal and sought remand to the Family Court. (D.I. 4). The Court, however, denied Plaintiff's motion for remand. (D.I. 6). Defendants filed an Answer to the Petition on May, 31, 2006. (D.I. 3). Discovery closed on June 30, 2007. This is Defendants Opening Brief in support of their Motion for Summary Judgment.

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SUMMARY OF THE ARGUMENT The Defendants are entitled to judgment as a matter of law on all the claims raised in Plaintiff's Petition. 1. The Court must affirm the Panel's denial of Plaintiff's request for reimbursement

of private school tuition for T.L.'s attendance at The Key School at the Carolina Day School and her request for compensatory education services to be delivered at that location because T.L received a free appropriate public education (hereinafter, "FAPE") while enrolled in the District and because her proposed IEP for the 2005/2006 regular school year (T.L.'s 6th grade year) was reasonably calculated to confer meaningful educational benefits. The Panel's decision is free from legal error and supported by ample evidence in the record that demonstrates that T.L. made meaningful educational progress while enrolled in the District, and that her IEPs appropriately addressed her areas of need. In reaching this decision, the Panel credited the extensive testimony of Mr. David Jefferson, a school psychologist employed by the District, and correctly discounted the testimony of Dr. Fields. This credibility determination by the Panel is entitled to deference because the evidence in the record does not justify a contrary conclusion by this Court. 2. In addition, Defendants are entitled to judgment as a matter of law on Plaintiff's

claims of hearing officer bias and the conduct of the due process hearing. The record shows that Plaintiff made no objection to any of the panel members, and never asked that any panel member recuse themselves during the hearing. In addition, the record shows that Plaintiff received the procedural rights and safeguards afforded to parents under the IDEA. 3. Finally, Defendants are entitled to judgment as a matter of law on Plaintiff's claim

under 42 U.S.C. § 1983 ("Section 1983") because the Third Circuit has recently held that Section

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1983 is not available to provide a remedy for alleged violations of 29 U.S.C. § 794 ("Section 504") or the IDEA. A.W. v. Jersey City Public Schools, 486 F.3d 791 (3d Cir. 2007).

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STATEMENT OF FACTS A. Third Grade 2002/2003. 1. T.L.'s Third Grade IEP

T.L. entered the Cape Henlopen School District as a 3rd grade student. Previously, T.L. had been identified as a special education student in Virginia, and she arrived in the District with an IEP from her previous school. In September, 2002, T.L.'s IEP team met and developed her 3rd grade IEP. In developing the IEP, the team relied on multiple sources of information including past evaluations, teacher observations, T.L.'s classroom performance, and input from Plaintiff. (McMahon, 7/25, pp. 37-38; D-105; D-106; D-107). T.L.'s 3rd grade IEP was reasonably calculated to meet her needs (as they existed at the time) and contained goals and objectives in the areas of reading, language arts, math, social skills, and behavior. (D-107). The IEP contained present levels of performance for all the goals and objectives. All the IEP goals were stated in measurable terms and included measurable short-term objectives designed to describe how T.L. would progress towards each of her longterm goals. Among other components, T.L.'s 3rd grade IEP contained three pages of accommodations, modifications, supports and services set out by her specific areas of need, including reading, decoding, comprehension, fluency, spelling, written expression, math, behavior, auditory processing, and organization. (D-107). T.L.'s 3rd grade IEP was developed over the course of two meetings in September, 2002, and Plaintiff signed in agreement with the program and placement outlined in the IEP. (D-107). 2. Initial Placement

Taking into consideration T.L.'s unique individual needs, the IEP team initially placed her in the intensive learning center ("the ILC") for 3rd grade. (McMahon, 7/25, pp. 21-22). The

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ILC is a small, self-contained1 classroom which consisted of six (6) students, a special education teacher, and a paraprofessional. The small setting allowed Mrs. McMahon, the ILC special education teacher, to modify the curriculum, adjust the pace of instruction to each students' individual level, and provide frequent positive reinforcement. (McMahon, 7/25, pp. 21-24). Mrs. McMahon utilized a multisensory approach in her classroom. (McMahon, 7/25, p. 45). A multisensory approach allows the student to engage all of their senses in the learning process through such devises as, for example, the use of manipulatives and kinesthetics. (McMahon, 7/25, pp. 45-46). According to Mrs. McMahon, T.L. "fit right in"- she was a "happy child," and she loved to work with the other students in the ILC, and she responded positively to the multisensory approach McMahon utilized in the classroom. (McMahon, 7/25 pp. 22; 25; 4647). 3. The IEP team does not sit idle

Throughout the 2002/2003 school year, T.L.'s IEP team did not sit idle but instead actively sought out additional information about T.L. through formal evaluations in order to clarify her needs. For example, T.L. received an occupational therapy evaluation on November 15, 2002, an auditory processing evaluation on March 26, 2003, and a comprehensive psychoeducational evaluation from the Kennedy Krieger Institute (hereinafter, "KKI") in the spring of 2003. (McMahon, 7/25, pp. 40, 143-144; D-90; D-91; D-99; D-105). When the IEP team received the results of T.L.'s various evaluations, the IEP convened, reviewed each evaluation, and incorporated nearly all of the recommendations into T.L.'s

1

In this context, "self-contained" refers to the fact that the students in the ILC spend most of the school day there and are always accompanied by the ILC special education teacher and/or the ILC paraprofessional when they travel outside the ILC. (McMahon, 7/25, pp. 21-24).
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educational program. In the instances where the IEP team did not adopt a recommendation, the team had a specific reason for not doing so. On November 18, 2002, the IEP team reviewed T.L.'s occupational therapy evaluation which reported that T.L. tested above her age level on all tested areas. As a result, the IEP team concluded that T.L. did not need direct occupational therapy at the time, and Plaintiff did not contest this decision. (D-98; D-99). On April 30, 2003 the IEP team reviewed T.L.'s auditory processing evaluation from the Bayhealth Medical Center. To their credit, T.L.'s teachers had already been using many of the techniques listed in the Bayhealth report, such as the use of visuals. (McMahon, 7/25, p. 97). The IEP team nevertheless revised T.L.'s IEP to incorporate Bayhealth's recommendations (i.e. the use of an FM system, additional visual cues, Earobics, a daily schedule, a written agenda, redirecting T.L. in class, focusing on the concept of time with her, and sending home her writing prompts and strategies). (McMahon, 7/25, pp. 40-42; 96-97; D-89; D-107). Throughout the 2002/2003 school year, the IEP team met on at least ten occasions. Plaintiff attended and actively participated in every meeting. The IEP team received Plaintiff's input, and often made changes to T.L.'s educational program at Plaintiff's request. For example, when Plaintiff expressed a specific interest in T.L.'s organizational skills, the IEP team met and discussed it several times. The IEP team added organizational accommodations to the IEP to supplement what was already being done. (McMahon, 7/25, p. 41; D-107). To address T.L.'s rocking behavior, her teachers started using a special non-tippable chair provided by Plaintiff. (McMahon, 7/25, pp. 85-86). Plaintiff, also asked the IEP team to utilize the behavioral program "1-2-3 Magic" in the classroom with T.L. Although T.L.'s teachers were already using a number of behavioral techniques with her, they responded to Plaintiff's request, received training in "1-

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2-3 Magic," and began using it with T.L. (McMahon, 7/25, pp. 93-94; Pepper, 7/25, pp. 40-41). The IEP team ultimately adopted a behavior plan for T.L. that was largely dictated by Plaintiff and which focused more on teacher behavior than T.L.'s. (McMahon, 7/25, pp. 92-93; 158-161; D-107; D-52). 4. T.L. makes academic and behavioral progress throughout the Third Grade.

The evidence in the record shows that T.L. entered the District in the fall of 2002 with very limited reading skills2 but made significant progress in the Reading Mastery Program and was reading more independently by the end of the school year. (McMahon, 7/25, pp. 26-27, 3334; 169). Although she could not write a complete sentence at the beginning of the 3rd grade, (McMahon, 7/25, p. 26), by the end of the year, T.L. was writing four to five sentence paragraphs independently. (McMahon, 7/25, pp. 25-26). T.L.'s educational progress is also readily apparent from her near mastery of every goal and objective contained in the 3rd grade IEP. Specifically, in the area of reading under T.L.'s 3rd grade IEP: · In September, 2002, T.L. was only able to read a word list at the 2nd half of the 2nd grade level with 17% accuracy. By June, 2003, she had advanced to reading word lists at the 3rd grade level with 94% accuracy. (McMahon, 7/25, pp. 61-62; D-107). In September, 2002, T.L. could read orally a story passage at the 2nd half of the 2nd grade level with 97% accuracy. By June, 2003, she could read passages on the 3rd grade level with 95% accuracy. (McMahon, 7/25, p. 63; D-107). In September, 2002, when given a reading passage at the 2.5 grade level, T.L. could only read and orally answer comprehension questions with 59% accuracy. In contrast, by June, 2003, T.L. could read and orally answer comprehension

· ·

Mrs. McMahon testified that T.L. was reading at a 1st grade level at the beginning of 3rd grade in the fall of 2002. (McMahon, 7/25, pp 60-61). She based this opinion on T.L.'s performance on the Brigance tests given to assess T.L.' present level of performance. (McMahon, 7/25, p. 60). Mrs. McMahon testified that the Brigance test is a standardized measure that tests a variety of competencies. (McMahon, 7/25, pp. 57-60).
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questions on reading passaged at the 3rd grade level with 95% accuracy. (McMahon, 7/25, p. 63; D-107). In September, 2002, when given a reading passage at the 2.5 grade level, T.L. could only read and write answers to comprehension questions with 41% accuracy. By June, 2003, she was answering multiple choice questions at the 3rd grade level with 100% accuracy. (McMahon, 7/25, p. 64; D-107). In addition, T.L. made consistent improvement on the Brigance tests which were administered several times over the course of 3rd grade. (McMahon, 7/25, pp. 61-65). T.L. made similar advances in the area of language arts: · In September, 2002, when given a class writing prompt, T.L. could capitalize proper nouns imbedded within a sentence with only 23% accuracy. By June, 2003, she could perform the same task with 90% accuracy. (McMahon, 7/25, pp. 69-70; D-107). In September, 2002, when given a class writing prompt, T.L. could use proper subject/verb and noun/pronoun agreements 33% of the time. By June, 2003, she could perform the same task with 80% accuracy. (McMahon, 7/25, p. 70; D-107). In September, 2002, when given a class writing prompt, T.L. could use conventional spelling with 50% accuracy. By June, 2003, she had improved to 94% accuracy. (McMahon, 7/25, p. 71; D-107). In September, 2002, when given a writing piece, T.L. needed to be prompted to use consistent organizational structure. By June, 2003, she was doing this independently 75% of the time. (McMahon, 7/25, p. 72; D-107). In September, 2002, T.L. required prompting to provide appropriate elaborative details in her writing. By June, 2003, she was providing such elaboration independently 75% of the time. (McMahon, 7/25, p. 72-73; D-107). ·

· · · ·

Equally important, T.L.'s behavior had improved "tremendously," (McMahon, 7/25, p. 105), a fact acknowledged by the Plaintiff. (D-98). In fact, T.L.'s behaviors improved so much over the course of 3rd grade that the IEP team changed her placement from the ILC to a less structured and more inclusive LRE classroom. (McMahon, 7/25, p. 105). T.L.'s behavioral and social skill development is reflected in her progress on the IEP. T.L. progressed in her social skill behavior among her peers and adults and in her positive classroom behaviors:

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· · · ·

In October, 2002, she respected the personal space of others only about one out of four times. By June, 2003, she was doing this three out of four times. (McMahon, 7/25, pp. 80-81; D-107). In October, 2002, she cooperated with an adult only one out of four times. By June, 2003, she had improved to three out of four times. (McMahon, 7/25, pp. 80-81; D-107). In September, 2002, T.L. remained on-task during instruction for ten minute intervals with less than one prompt about 79% of the time. By June, 2003, she had improved to 86%. (McMahon, 7/25, pp. 81-82; D-107). In September, 2002, T.L. left her assigned area during instruction an average of 6 times per day. By June, 2003, she was down to three times per day. (McMahon, 7/25, pp. 82-83; D-107).

Consistent with her overall improvement, T.L. also advanced in her 3rd grade IEP math goals and objectives involving word problems, regrouping, multiplications, the concept of time, money, and temperature. (McMahon, 7/25, pp. 74-79; D-107).

B.

The Fourth Grade IEP (2003/2004 school year).

T.L.'s 4th grade IEP was developed in June, 2003. This time, the IEP team had the benefit of her 3rd grade teachers' experience working with T.L. In developing the 4th grade IEP, the team relied on T.L.'s classroom performance, evaluation materials, parental input, her performance on the Brigance measures, and the 2003 Evaluation Report from KKI. The team discussed the 2003 KKI evaluation at length, and incorporated nearly all of its recommendations into T.L.'s IEP. (McMahon, 7/25, pp. 106-116).3 T.L.'s 4th grade IEP continued to focus on her same areas of need, but the team raised the standards and expectations from the 3rd grade IEP. (McMahon, 7/25. p. 103).

3

Interestingly, one of the recommendations from the KKI 2003 Evaluation Report that was not incorporated into T.L.'s 4th grade IEP was the recommendation that she receive extended school year ("ESY") services. This was done at Plaintiff's insistence. (McMahon, 7/25, p. 108-109). Moreover, Mrs. McMahon also testified that T.L.'s teachers were already utilizing many of the recommendations provided in the KKI 2003 Evaluation Report but included them as additional accommodations because they appeared in a formal evaluative report. (McMahon, 7/25, pp. 115117).
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T.L.'s 4th grade IEP was tailored to her needs, as they existed at that time, and contained goals and objectives in the areas of reading, written expression, organization, behavior, and math computation. (D-76). In addition, the IEP contained thirty-five accommodations, modifications, supports, and services to address T.L.'s classroom needs. These included the use of a multisensory approach, positive behavioral supports, a structured learning environment, and the use of visuals. (D-76). While the 4th grade IEP contained behavioral supports, the team also carried over the separate behavior plan from her 3rd grade IEP with some modifications. (D-52; Pepper, 7/26, pp. 33, 37). 1. Placement

Due to the progress T.L. made during 3rd grade, the IEP team changed her 4th grade placement to a less structured, more inclusive, environment. In 4th grade, T.L. received special education instruction in the resource room from Mr. Pepper in the areas of English and language arts. The resource room contained approximately eight to nine students, all of whom had special needs. As in 3rd grade, Mr. Pepper also utilized a multisensory approach4 to learning in his classroom. (Pepper, 7/25, pp. 27-28). T.L. received instruction in a regular education classroom for social studies and science. This class contained roughly twenty to twenty-six of her peers. (Pepper, 7/25, pp. 17-18). T.L.'s 4th grade placement provided her more integration with her non-disabled peers, and more movement throughout the school building. Plaintiff signed in agreement with the program and placement outlined in T.L.'s 4th grade IEP. (D-76). To ease T.L.'s transition to this less restrictive placement, she was provided with a dedicated one-on-one paraprofessional, Candice Ruckle. (Pepper, 7/25, pp. 18). Ms. Ruckle
4

Mr. Pepper also provided a definition of what a multisensory approach to teaching entails, (Pepper, 7/25, pp. 28-29), and a lengthy description of how he utilized it in the classroom. (Pepper, 7/26, pp. 93-96). He also testified that his multisensory approach with T.L. was based on the Orton-Gillingham method. (Pepper, 7/26, p. 51).
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provided tremendous support to T.L. in her classes and throughout the school day. Among other things, Ms. Ruckle prompted T.L. to keep her on-task, redirected her when she was distracted or fatigued, helped with note taking and organization, and scribed for her when needed. Ms. Ruckle was "very effective" in working with T.L. in the 4th grade. (Pepper, 7/25, pp. 21-22). 2. Occupational Therapy.

T.L. also received occupational therapy for her handwriting during 4th grade. On August 19, 2003, she received a second occupational therapy evaluation by the District. The results indicated that her ability to perform writing tasks smoothly and efficiently was impaired due to impaired kinesthetic feedback, impaired orthographic coding, and poor letter formation. (D-75; Reynolds, 7/26, pp. 109-113). In response, the IEP team incorporated occupational therapy goals and additional accommodations into T.L.'s 4th grade IEP and she began receiving occupational therapy using the Handwriting Without Tears Program. (D-75; D-76; Reynolds, 7/26, pp. 112114). In the course of the 2003/2004 school year, T.L. made excellent progress mastering two out of three occupational therapy IEP objectives. (D-75; D-59; Reynolds, 7/26, pp. 114-188). In May, 2004, T.L.'s occupational therapist, Jennifer Reynolds, evaluated her again and compared the results against previous testing completed in 2003. At the time of the May 2004 testing, T.L.'s progress since 2003 was quite evident in the test results. (D-59; Reynolds, 7/26, pp. 124125). Given T.L.'s above age performance in the areas of visual perception and visual motor control, she was discharged from occupational therapy. (D-59; D-58; Reynolds, 7/26, p. 125). However, the IEP team continued to address these areas through the IEP by, for example, giving her additional time to complete tasks. (D-76). Plaintiff reported that she was pleased with T.L.'s

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progress and the success of the occupational therapy intervention, and she even noticed her writing more in cursive at home. (Reynolds, 7/26, p. 126). 3. T.L. makes meaningful educational progress

The appropriateness of T.L.'s 4th grade IEP is easily illustrated by the meaningful educational progress she made over the course of the 2003/2004 school year. On the Brigance measures (which Mr. Pepper administered on a quarterly basis throughout 4th grade), T.L.'s word recognition skills improved almost two full grade levels; her passage reading advanced one grade level; and her reading comprehension skills were 100% on a 4th grade level at the end of the school year. (Pepper, 7/26, pp. 9-12, 73-74; P-10). T.L. also made progress on her IEP reading goals and objectives. For example: · · In June, 2003, when presented with a list of words at the 3rd grade level, T.L. was able to read the list with 60% accuracy. By March, 2004, she could read word lists at the 5th grade level with 80% accuracy. (Pepper, 7/26, pp. 18-20; D-76). In June, 2003, when given a story or passage written at the lower 3rd grade level, she could read the selection orally with 95% accuracy. By June, 2004, she could read material at the 5th grade level with 91% accuracy. (Pepper, 7/26, pp. 18-20; D-76). In June, 2003, when given a story or passage written at the lower 3rd grade level, she could read the selection silently and answer written multiple choice questions with 100% accuracy. By June, 2004, she could do it with 100% accuracy at the 4th grade level. (Pepper, 7/26, pp. 18-20; D-76). The Fifth Grade IEP (2004/2005 school year).

·

C.

In June, 2004, the IEP team developed T.L.'s 5th grade IEP over the course of two meetings. (D-50). As with previous IEP's, Plaintiff signed in agreement with the program and placement outlined in the IEP. (D-50). T.L.'s 5th grade IEP was reasonably calculated to meet her needs, as they existed at that time, containing goals and objectives in the areas of reading comprehension, written expression, decoding, reading fluency, spelling, and math computation. (D-50). Among other components, her 5th grade IEP contained two and a half pages of

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accommodations, modifications, supports and services set out by her specific areas of need including reading, math, task completion, classroom organization, and behavior. (D-50). 1. Placement

Under her 5th grade IEP, T.L. was placed in a small-group resource room instructional setting. (Dewitt, 7/26, p. 163; Lingelbach, 8/27, p. 144). Initially, she was placed in a resource room taught by Mrs. Dewitt, a special education teacher with National Board Certification in Exceptional Needs Early Childhood, for math, spelling, writing, and reading. (Dewitt, 7/26, p. 159; D-4). As with her previous special education teachers, Mrs. Dewitt also utilized a multisensory approach with T.L. in her classroom. (Dewitt, 7/26, pp. 183-184). Plaintiff, however, expressed disagreement with Mrs. Dewitt's instructional style and demeanor. While the District did not share Plaintiff's view, it nonetheless changed T.L.'s schedule to accommodate Plaintiff's demands. (Dewitt, 7/26 pp. 169, 186-187).5 In October, 2004, T.L.'s classroom placement was changed to Mrs. Lingelbach's resource room for reading and math- she remained in Mrs. Dewitt's resource room for spelling and written expression. (Dewitt, 7/26, pp. 169-170; Lingelbach, 8/27, pp. 143-144; Joynes, 7/22, pp. 150-152). T.L. received instruction in a regular education classroom for social studies, science, and her related arts. (D-50). T.L.'s one-on-one paraprofessional continued to support her throughout the 5th grade. Once again, Ms. Ruckle was "instrumental" in redirecting T.L., keeping her focused and organized. (Dewitt, 7/26, p. 171; Lingelbach, 8/27, pp. 146-147).

5

Subsequent to this classroom change, Plaintiff accused Mrs. Dewitt of abusing T.L. When Plaintiff lodged allegations, school administrators thoroughly investigated the charges and found no evidence whatsoever to substantiate Plaintiffs claims. (Dewitt, 7/26, pp. 189; Joynes, 7/22, pp. 152-153; D-19).
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2.

The IEP Team considered the 2004 KKI Report and adopted most of its recommendations.

Plaintiff requested a second evaluation by KKI. (Pepper, 7/26, pp. 41-43; D-63). The District approved the request, and KKI completed a second evaluation of T.L. On October 21st and 28th, 2004, the IEP team spent two full school days reviewing the 2004 KKI Evaluation. The team discussed the recommendations one-by-one, and incorporated most of them into T.L.'s IEP. (Dewitt, 7/26, pp. 218-223, 232-233; Joynes, 7/22, p. 138; D-46; D-47). When Plaintiff demanded that the District use the Wilson Reading program as recommended by the KKI 2004 Evaluation Report, the District contacted the KKI evaluator, Dr. Fessler, to determine whether the District's methodology was appropriate for T.L. (Joynes, 7/22, p. 138; Lingelbach, 8/27, pp. 161-165). Dr. Fessler confirmed that the District's methodology, Open Court Interventions, Reading Assist, and Read Naturally, was appropriate. (Joynes, 7/22, p. 138; Lingelbach, 8/27, pp. 161-165; D-41). In an e-mail dated December 6, 2004, Dr. Fessler specifically agreed "that use of Reading Naturally and Reading Assist, with fidelity, would likely be of comparable value to the Wilson program in effecting reading progress for [T.L.]." (D-41). 3. T.L.'s educational progress during 5th grade.

T.L.'s progress under her 5th grade IEP is readily apparent. For example, she received a "3" in reading on the Delaware State Testing Program ("DSTP"), which indicates that she met the state standards for reading. (Dewitt, 7/26, pp. 274-275). A comparison of T.L.'s work samples between September, 2004 and May, 2005 show significant growth. On September 19, 2004, T.L. was given 20 minutes to write a paragraph describing what she wanted to learn during the year. She struggled, could not get her thoughts down, and she only wrote five words and a heading, (Dewitt, 7/26, pp. 213-214; D-135). At the end of the year, however, T.L. produced a longer essay in her own handwriting reflecting appropriate word choice, proper use of editing

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procedures, detail, explanation, and descriptives. (Dewitt, 7/26, pp. 214-218; D-135). A comparison of the two writing pieces shows good progress. (Dewitt, 7/26, p. 214-215). In fact, T.L. received a "3" on her second sample and met the delaware writing rubric standards. (Dewitt, 7/26, p. 217). T.L.'s reading skills and behaviors also improved during the 5th grade. (Dewitt, 7/26, 209-210; Lingelbach, 8/27, pp. 150-153). At first, T.L. started out working in 3rd grade level books, but by the end of the year, she was utilizing the same 5th grade books as her peers. (Lingelbach, 8/27, pp. 152-153). In the area of decoding, T.L. made meaningful progress: · In October, 2004, when given a list of 25 multi-syllabic words at a 3rd grade level, T.L. could read the list with 92% accuracy. By April, 2005, T.L. was at 96% accuracy with 5th grade level lists. (D-50).

T.L. also made noticeable improvements in the area of reading comprehension: · · In November, 2004, when given a reading passage at a 3rd grade level, she could read the passage and answer short questions with 93% accuracy. By April, 2005, she was at 95% accuracy on a modified 5th grade level. (D-50). In November, 2004, when given a reading passage at a 3rd grade level, T.L. could read the passage and answer multiple-choice questions with 90% accuracy. By April, 2005, she was at 98% accuracy on a modified 5th grade level. (D-50). The Proposed Sixth Grade IEP (2005/2006 school year)

D.

T.L.'s 6th grade IEP was developed over the course of two ½ day IEP meetings in May, 2005. (D-17; D-20). The IEP team included her 5th grade teachers to assist with her transition to Beacon Middle School. In developing the 6th grade IEP, the team relied on T.L.'s classroom performance, evaluation material, parental input, her progress in 5th grade, and the 2004 KKI evaluation report. (Lingelbach, 8/27, pp. 174-175; D-17; D-20). The 6th grade IEP continued to focus on T.L.'s areas of need, and the team raised the goals and expectations from the 5th grade IEP. (Lingelbach, 8/27, p. 174; D-16).

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The 6th grade IEP was tailored to T.L.'s needs and contained goals and objectives in the areas of written expression, reading, fluency, comprehension, decoding, spelling, and math. (D16; Lingelbach, 8/27, p. 177-178). In addition, the IEP contains two and a half pages of accommodations, modifications, supports, and services to address T.L.'s needs including, the use of a multi-sensory approach, positive behavioral supports, extended time, and small group instruction in her weaker areas of reading and language arts. (D-16). Under the 6th grade IEP, T.L. was to receive 50 minutes a day, 5 hours a week, of direct one-on-one tutoring through the "Reading Assist" method in addition to her special education reading instruction. (Lingelbach, 8/27, pp. 181-182; D-16). Plaintiff expressed a preference for using "Reading Assist" and the District, while believing that the programs it was already utilizing were appropriate for T.L., was willing to try to work with Plaintiff and accommodate her preferences. (Lingelbach, 8/27, pp. 180-182). Given T.L.'s success in 5th grade, the IEP team proposed the continuation of her placement in a resource room setting for reading, math, and language arts during 6th grade. (Lingelbach, 8/27, p. 182). For science and social studies, T.L. would again receive instruction in a regular education classroom with team teaching by a regular and a special education teacher. (Lingelbach, 8/27, p. 182). In addition, Beacon Middle School had staff trained in Reading Assist (a program based on the Orton Gillingham method) and its teachers already implemented a multisensory approach to learning. (Joynes, 7/22, p. 224) T.L.'s proposed 6th grade IEP was based on the then-current information provided by her teachers, it addressed her specific areas of need for reading, and it provided her one period per day of tutoring in Reading Assist. (Joynes, 7/22, pp. 184-185). It would have enabled her to remain in her home school with the peers she had known for the past three school years. Id. Of

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course, Plaintiff removed T.L. from the District and she did not attend the 6th grade at Beacon Middle School.

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STANDARD OF REVIEW In considering an appeal from a special education due process hearing panel's decision, the Court is to apply a modified de novo standard of review. S.H. v. State-Operated Sch. Dist., 336 F.3d 260, 270 (3d Cir. 2003); see also, Fisher v. Bd. of Educ. of the Christina Sch. Dist., 856 A.2d 552, 557-58 (Del. 2004). Under this standard, "the panel's findings of fact are considered prima facie correct. The Panel's decision must be given due weight; and its witness credibility determinations 'deserve deference unless ... the record read in its entirety would compel a contrary conclusion.'" Fisher, 856 A.2d at 557-58; S.H., 336 F.3d at 270. The Court must explain any failure to adhere to the administrative findings, and must give deference to the credibility determinations made by the hearing panel unless the evidence in the record justifies a contrary conclusion. Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir. 2004). In making it's determination, the Court must not "substitute '[its] own notions of sound educational policy for those of the school authorities.'" Fisher, 856 A.2d at 558 (citing Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982)). Indeed, deference to the special educational expertise possessed by administrative hearing panels is wellestablished in the case law interpreting the IDEA. See Rowley, 458 U.S. at 206-07; Springer v. Fairfax County Bd. of Educ., 134 F.3d 659, 667 (4th Cir. 1998); Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 758 (3d Cir. 1995); Town of Burlington v. Dept. of Educ., 736 F.2d 773, 792 (1st Cir. 1984); W.E.B v. Appoquinimink Sch. Dist., 2003 U.S. Dist. LEXIS 12695 at *4-5 (D. Del. July 8, 2003). Although the IDEA provides that district courts will receive the records of the administrative proceedings and "hear additional evidence at the request of a party," 20 U.S.C. § 1415(i)(2)(C)(ii), courts routinely grant summary judgment where, as here, no genuine dispute of

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material fact exists. See e.g., Union Sch. Dist. v. Smith, 15 F.3d 1519, 1523-24 (9th Cir.), cert. denied, 513 U.S. 965 (1994); Jones v. Washington County Bd. of Educ., 15 F. Supp. 2d 783 (D. Md. 1998) (awarding summary judgment for defendant); Brown v. Wilson County Sch. Bd., 747 F. Supp. 436 (M.D. Tenn. 1990). As one court has noted, "a court is authorized to decide the case `as a matter of law' on motion for summary judgment if enough of the administrative findings and evaluative determinations are so well-founded that any other finding of fact that might be questioned is no longer material to [the] outcome." Ross v. Framingham Sch. Comm., 44 F. Supp. 2d 104, 113 (D. Mass. 1999), aff'd, 229 F.3d 1133 (1st Cir. 2000), cert. denied, 531 U.S. 1089 (2001).

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ARGUMENT Plaintiff's Petition raises a confusing jumble of allegations directed at both the conduct of the due process hearing, the panel members, and the Panel's decisions that T.L. received a FAPE, and that her proposed 6th grade IEP was reasonably calculated to confer meaningful educational benefits. The disposition of the instant matter, however, involves a very straightforward and simple analysis. The Plaintiff has a right to reimbursement for the costs incident to her unilateral placement of T.L. at The Key School at Carolina Day School only if this Court "concludes both that the public placement violated IDEA and that the private school placement was proper under the Act." T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 582 (3d Cir. 2000) (quoting Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993)). As the Supreme Court has taught, "[u]nilateral private placement is effected at the parents' financial risk . . . if the IEP is later determined by a court to have been appropriate." Burlington Sch. Comm. v. Department of Educ., 471 U.S. 359, 372 (1985). Similarly, Plaintiff has a right to compensatory education only if this Court determines that T.L. was denied a FAPE at some point during the 2002/2003, 2003/2004, or 2004/2005 school years. See e.g., Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 249-50 (3d Cir. 1999) ("[a]n award of compensatory education" is made in order to remedy "earlier deprivation[s] of [a FAPE]... [A] disabled student's right to compensatory education accrues when the school knows or should know that the student is receiving an inappropriate education."). The Panel, rejecting each of Plaintiff's claims, concluded that the District provide T.L. with a FAPE for 3rd through 5th grade, and that the proposed 6th grade IEP was reasonably calculated to provide FAPE in the least restrictive environment ("LRE"). In the instant matter,

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the Panel's findings of fact must be "considered prima facie correct" and it's decision is entitled to "due weight." Fisher, 856 A.2d at 557-58; S.H., 336 F.3d at 270. Summary judgment is

appropriate in the instant matter, because the administrative findings and evaluative determinations are so well-founded that no genuine issues of material fact exist. Ross v. Framingham Sch. Comm., 44 F. Supp. 2d 104, 113 (D. Mass. 1999), aff'd, 229 F.3d 1133 (1st Cir. 2000), cert. denied, 531 U.S. 1089 (2001). I. T.L. RECEIVED A FAPE DURING HER ENROLLMENT IN THE DISTRICT. Under the IDEA, "[a] free, appropriate public education consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to 'benefit' from the instruction." S.H. v. StateOperated Sch. Dist., 336 F.3d 260, 264 (3d Cir. 2003).6 Significantly, "[a] free appropriate public education 'need not be the best one possible, or the one calculated to maximize the child's educational potential," Lewisville Indep. Sch. Dist. v. Charles W., 81 Fed. Appx. 843, 846 (5th Cir. 2003); Fort Zumwalt Sch. Dist. v. Clynes, 119 F.3d 607, 612 (8th Cir. 1997) (a student's IEP
6

The Petition also appears to allege a violation of Section 504. (Petition, ¶1). To establish a violation of Section 504, Plaintiff must demonstrate that (1) T.L. is disabled as defined under Section 504; (2) that T.L. is "otherwise qualified" to participate in school activities; (3) the District receives federal financial assistance; and (4) T.L. was excluded from participation in, denied the benefits of, or subject to discrimination at, the District. Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1380 (3d Cir. 1991); 34 C.F.R. § 104.4. Here, the Court should dismiss Plaintiff's Section 504 claims because Plaintiff has failed to properly plead any of the elements of the Nathanson test. Specifically, the Petition does not indicate that T.L. is disabled, does not indicate that T.L. is otherwise qualified to participate in school activities, does not allege that any of the Defendants receive federal financial assistance, and does not allege that T.L. was excluded from participation in, denied the benefits of, or subjected to discrimination at, the District. As such, the Petition does not properly state a claim under Section 504. Alternatively, should the Court chose not to dismiss the Section 504 claim, Defendants are entitled to judgment as a matter of law for the same reasons outlined infa that apply to Plaintiff's IDEA claims. See e.g., W.B. v. Matula, 67 F.3d 484, 492-93 (3d Cir. 1995) (comparing FAPE requirement in IDEA and Section 504's "appropriate education" requirement and finding that "there appears to be few differences, if any, between IDEA's affirmative duty and Section 504's negative prohibition.").
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need not maximize their potential nor provide for the best possible education); Doe v. Tullahoma City Sch., 9 F.3d 455, 459-460 (6th Cir. 1993) (IDEA "requires that the [school district] provide the educational equivalent of a serviceable Chevrolet to every handicapped student . . . . [T]he [school district] is not required to provide a Cadillac . . . ."); D.M. ex rel. E.L. v. Red Clay Consol. Sch. Dist., 2007 Del. Fam. Ct. LEXIS 21, *24-25 (Del. Fam. Ct. Feb. 13, 2007) (recognizing that "the requirement that a State provide specialized educational services to handicapped children [does] not create an additional requirement that the service provided be sufficient to maximize each child's potential equal with the opportunity provided other children" and that "[a]n appropriate education does not mean the absolute best or `potential-maximizing' education available"), and "proof that loving parents can craft a better program than a state offers does not, alone, entitle them to prevail under the Act.'' Kerkam v. McKenzie, 862 F.2d 884, 886 (D.C. Cir. 1991), subsequent opinion, 931 F.2d 84 (D.C. Cir. 1991). In Hendricks Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982), the Supreme Court established a two-part test for determining the validity and/or appropriateness on an IEP. The first prong of that test requires compliance with the procedural requirements of the IDEA. Second, an IEP must also be reasonably calculated to provide the child with a "meaningful educational benefit." Ridgewood v. Bd. of Ed. v. N.E., 172 F.3d 238, 247-48 (3d Cir. 1999); Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171 (3d Cir. 1988). The requisite degree of progress required varies depending on the student's abilities. Alex R. v. Forestville Cmty. Unit Sch. Dist. #221, 375 F.3d 603, 615 (7th Cir. 2004). In the instant matter, after noting that the District carried the burden of proof under Delaware law, the Panel determined that T.L. received a FAPE during the 2002/2003, 2003/2004, and 2004/2005 school years. (Order, p. 17). The Panel found that "[t]he IEPs set

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forth clear goals and the progress reports monitored the Student's progress on a quarterly basis. Progress was shown throughout the years in question." (Order, p. 17). In so holding, the Panel specifically noted that "the School District presented extensive testimony from teachers and staff at the Elementary School. The testimony presented was very thorough and presented a consistent picture of Student and Student's needs and weaknesses. The testimony included a detailed and exhaustive review of each of Student's IEPs as well as the meetings that were held between Parent and the School District to discuss, review, and, in some cases, modify the IEPs." (Order, p. 3). The Panel also noted that it had "thoroughly reviewed the transcript, which consisted of over one thousand pages." Id. In making its determination, the Panel noted that it appeared that: the Parent's main issue as to the denial of FAPE is the [KKI 2004 Evaluation Report] where... the Parent has taken a score on one subtest and used it to say that Student has not progressed in reading during the three years at the Elementary School. Using the results of that subtest, Parent would like this Panel to say that there was a denial of FAPE. However that sentence cannot be viewed in isolation. First, a test such as the evaluation provided by the [KKI 2004 Evaluation Report] is a "snapshot in time." It represents the findings of an examiner on a particular day at a particular time given the situation of the child on that day and time. The Hearing Panel spent a great deal of time listening to the findings of the [KKI 2004 Evaluation Report] and learning about the School District's response to the recommendations presented in the [KKI 2004 Evaluation Report]. The IEP team met on several occasions to review the [KKI 2004 Evaluation Report] in the fall of 2004 and implemented most of the recommendations...Changes in the reading program were made and the IEP progress notes for Student during the 2004-2005 school year show consistent progress on all of the reading goals. Additionally, the [KKI 2003 Evaluation Report] was conducted while Student was taking medication for her ADHD, and the [KKI 2004 Evaluation Report] states that Student was not taking that medication at the time of the 2004 testing. As pointed out by the [KKI] Psychologist the reliability of the [KKI 2004 Evaluation Report] testing is not certain given the difference in Student's behavior without the medication.

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(Order p. 18; see also, Joynes, 7/22, p. 187-189 (noting that there is more than one way to measure academic progress and indicating that the KKI 2004 Evaluation Report is merely a snapshot)). The Panel's finding is well-supported by the testimony and evidence contained in the administrative record. At the due process hearing, Plaintiff testified that T.L made no reading progress while in the District and was reading at the 2nd grade level in 5th grade. (C.L. 12/12, p. 94-98). This claim is premised on T.L.'s score on a single subtest of the Woodcock-Johnson test given during the 2004 KKI evaluation. The District presented extensive testimony, however, demonstrating both that such a tunnel-vision approach to interpreting educational assessments is misplaced and casting significant doubt on the accuracy/validity of the scores reported in the KKI 2004 Evaluation Report. As Mr. Jefferson testified, it's an error to focus on one subtest of the Woodcock-Johnson psychoeducational test battery in making opinions about T.L.'s reading ability. Instead, when viewed in conjunction with her other scores, the result of that subtest indicates that it's an "isolette, an anomaly in the overall assessment of this youngster." (Jefferson, 8/27, p. 54-55). Indeed, Mr. Jefferson testified at great length regarding how the results obtained on the Wechsler Individual Achievement Test II in the 2003 and 2004 KKI evaluations actually reflect T.L.'s progress. (Jefferson, 8/27, pp. 29-47, 52). In addition, Mr. Jefferson explained in detail the significance of the distractibility and medication concerns noted in the 2004 KKI Evaluation Report and their impact on the validity of the testing results. (Jefferson, 8/27, pp. 47, 125-126; D-53). As Mr. Jefferson explained, part of a psychologist's job "beyond the mechanics of administering the test is to set the stage for optimum measurement, optimum assessment, and to take into account or to speak to any of the things that may impinge on, or may compromise that,

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may have a negative impact on that." (Jefferson, 8/27, p. 47). With that in mind, Mr. Jefferson pointed out a number of the concerns about test behavior and distractibility noted in the 2004 KKI Evaluation Report, which included observations indicating that T.L. was "fidgety," bounced in her chair, was "distractible and inattentive to detail," and that these behaviors became more pronounced as the day-long testing session progressed. (Jefferson, 8/27, pp. 49-52; D-53). In considering these behaviors the 2004 KKI Evaluation Report itself specifically states that "It is not known how much difference would be accrued,, particularly in a structured one-to-one setting, by provision of medication." (D-53 (emphasis added)). As such "the clinical implications of distractibility and inattentiveness" must be recognized when evaluating T.L.'s performance on the various measures in the KKI 2004 Evaluation Report, particularly since the length of the all-day testing session was less then optimal and likely to induce fatigue. (Jefferson, 8/27, pp. 51, 131-132; ). Setting aside Plaintiff's argument that the score on a lone subtest obtained by an admittedly distractible and un-medicated T.L., as reported in the KKI 2004 Evaluation Report, establishes that T.L. did not receive a FAPE from 3rd grade through 5th grade, it is wellestablished that the District is obligated to provide a free, appropriate public education­not specific academic results. As one District Court has noted, a "FAPE does not guarantee a particular outcome." Clear Creek Indep. Sch. Dist. v. J.K., 400 F. Supp. 2d 991, 995 (S. D. Tex. 2005); see also J.P. v. W. Clark Cmty Schs., 230 F. Supp. 2d 910, 919 (S.D. Ind. 2002) ("the measure of appropriateness for an IEP does not lie in the outcomes achieved"). Ample evidence in addition to the KKI evaluations shows that T.L. did, in fact, receive a FAPE. As noted supra, T.L.'s academic progress between her 3rd and 5th grade years is reflected in a range of measures

DB02:6116645.1

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065031.1006

Case 1:06-cv-00274-GMS

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including, but not limited to, her scores on the Brigance tests, on the DSTP, and in her demonstrable progress towards mastery of her various IEP goals and objectives. Simply put, the IDEA only provides an entitlement to receive the services enumerated in the IEP; it provides no guarantees as to educational success or outcome. See Walczak, 142 F.3d at 133; Coale v. Del. Dep't of Educ., 162 F. Supp. 2d 316, 326 (D. Del. 2001) (child's IEP is not a contract offering guarantees that a student will achieve certain amounts of academic proficiency). Finally, whether an IEP is reasonably calculated to afford a child meaningful educational benefits "can only be determined as of the time it is offered to the student and not at some later date. Neither the statute [IDEA] nor reason countenance 'Monday Morning Quarterbacking' in evaluating the appropriateness of a child's placement." Fuhrmann v. East Hanover Bd. of Educ., 993 F.2d 1031, 1040 (3d Cir. 1993); Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 762 (3d Cir. 1995); H.W. v. Highland Park Bd. of Educ., 108 Fed. Appx. 732, 733-34 (3d Cir. 2004) ("the propriety of an IEP must be judged prospectively"); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990) (holding that the "actions of school systems cannot, as appellants would have it, be judged exclusively in hindsight. An IEP is a snapshot, not a retrospective. In striving for `appropriateness,' an IEP must take into account what was, and was not, objectively reasonable when the snapshot was take