Free Motion to Alter Judgment - District Court of Colorado - Colorado

Case 1:03-cv-02582-RPM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior District Judge Richard P. Matsch Civil Action No. 03-M-2582

(OES)

NICHOLAS SYTSEMA, a minor, by and through his parents, JACK AND REBECCA SYTSEMA, Plaintiff, v. ACADEMY SCHOOL DISTRICT NO. 20, Defendant. ______________________________________________________________________________ PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGEMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 59(e) AND SUPPORTING MEMORANDUM OF LAW ______________________________________________________________________________

Plaintiff respectfully submits this motion pursuant to Fed. R. Civ. P. 59(e) and requests that the Court alter or amend its Judgement dated June 7, 2006, to (i) hold that the Individual Education Program ("IEP") offered to Plaintiff by Defendant for the 2002-03 school year violated Plaintiff's right to receive a free and appropriate public education ("FAPE") in that the special education services, supports, and accommodations set forth therein were not reasonably calculated to provide Plaintiff with meaningful educational benefit, and (ii) order that Defendant reimburse Plaintiff for the appropriate educational costs and expenses incurred by Plaintiff for the 2002-03 school year.

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I.

STANDARD OF REVIEW. A motion for reconsideration under Fed. R. Civ. P. 59(e) is appropriate to correct a

manifest error of law or fact and to present newly discovered evidence. Foutty v. Equifax Services, Inc., 764 F. Supp. 621, 622 (D. Kan. 1991). The purpose of a motion for

reconsideration is to allow the Court to re-evaluate the basis for its decision. Keyes v. National R.R. Passenger Corp., 766 F. Supp. 277, 280 (E.D. PA 1991). II. ARGUMENT. One of the primary reasons that the 2002-03 IEP failed to provide Nicholas with educational benefit was the accommodation set forth in the IEP that required all goals and objectives to be taught utilizing "errorless learning strategies."1 The record in this case is replete with relevant, competent, and unchallenged testimony that errorless learning was not appropriate for Nicholas due to his unique learning style. Specifically, the facts in this case provide that errorless learning was unsuccessfully tried with Nicholas for a three month period and was actually making Nicholas become prompt dependent. See IHO Transcript, P. 572, L. 2-10. Dr. Susan Hepburn explained prompt dependency and the detrimental affect it can have on a child's educational progress in her expert testimony as follows: A: Prompt dependency is a big concern, not just in autism, but in other disabilities like Down's syndrome. What happens is that the ­ the child becomes ­ sort of learns to be helpless in situations by having the adult do the bulk of the work, the child sits back and lets the adult do all the initiation and basically does the

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It is important to note the difference between a teaching strategy and a teaching methodology. Lovass, the Denver Model, and the other programs cited in the NRC Study are teaching methodologies. Each has its own core foundations, beliefs and principals. Teaching strategies like "errorless learning" and "no-no prompt" can be utilized within each teaching methodology. A chosen teaching strategy is central to every IEP in that it is utilized in teaching all goals and objectives. As such, selecting a teaching strategy that is not individually tailored to the unique needs of the child is detrimental to the child's entire IEP.

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minimum to kind of get by. . . . the older you get and the more that the demands increase in your social world, in your communicative world, it's a real problem, because kids who don't have practice taking initiative continue that passive style, they tend not to develop communication as effectively. In one study about language development, it wasn't IQ that determined whether kids became verbal. It was whether they had an active or passive behavioral style. So passivity and prompt dependence can sort of stall a child in his educational programming.

See ALJ Transcript, P. 26, L. 20-25, and P. 27, L. 2-16. Both the Impartial Hearing Officer ("IHO") and the Administrative Law Judge ("ALJ") found that the evidence offered by Plaintiff relating to errorless learning was competent and both the IHO and the ALJ accepted that errorless teaching had been previously proven to be ineffective for Nicholas. In addressing the issue of whether the 2002-03 IEP violated Nicholas' right to receive a FAPE, the Court, like the IHO and the ALJ, appears to have relied on the testimony of Jane Leitheiser, one of the teachers who would have been charged with implementation of the 2002-03 IEP. Specifically, the Court cited Ms. Leitheiser's statement that she would have utilized errorless teaching after the IEP was implemented if it was shown to be effective but not if it wasn't. Plaintiff respectfully contends that the Court's ruling on the appropriateness of the 200203 IEP was in error as a matter of law for two reasons. First, it ignors the competent and unchallenged evidence that errorless learning was not effective for Nicholas. In other words, there was no need for Ms. Leitheiser to determine whether errorless learning would be effective for Nicholas. All of the evidence supplied to Defendant at the time the IEP was drafted

established that errorless learning was tried with Nicholas and was not effective due to his individual learning style. Additionally, Defendant offered no evidence to either contradict the 3

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fact that errorless was not effective for Nicholas or support their justification for including errorless learning as the teaching strategy for the 2002-03 IEP. In fact, Ms. Leitheiser was asked under oath about the appropriateness of including errorless learning in Nicholas' IEP when the parents had stated that errorless had been tired and was not effective for Nicholas. Q: So if at the initial IEP a concern was raised by the parents that, in this example, Nicholas didn't respond well to errorless learning strategies, would you have felt it appropriate to still have that teaching methodology set forth in his IEP? A: If the parent said it was not effective? I wouldn't put it in there personally if the parents told me that. See IHO Transcript,. P. 525, L. 11-17). Second, the Court relied on statements of what may or may not have occurred with respect to errorless teaching after the IEP was implemented. In doing so, the Court went beyond the four corners of the written IEP in contradiction to the well established law governing a substantive challenge to an IEP. The legal standard in determining the appropriateness of an IEP does not lie in the outcomes achieved or in the actions that may or may not be taken after the IEP has been implemented. Rather, the appropriate inquiry is whether the special education services, supports and accommodations set forth in the written 2002-03 IEP were reasonably calculated to provide Nicholas with meaningful educational benefit based on his individual and unique needs. See Adams v. State of Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999). The Court of Appeals for the First Circuit explained it best when it held that "an individualized education program is a snapshot, not a retrospective. In striving for "appropriateness," an IEP must take into account 4

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what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was drafted." See Rowland M v. Concord School Committee, 910 F. 2d 983, 992 (1st Cir. 1990). Therefore, the proper inquiry before the Court is whether it was objectively reasonable to include errorless teaching strategies in the written 2002-03 IEP in light of the credible and unchallenged testimony that this strategy was not appropriate for Nicholas based upon his individual learning style and that errorless learning had actually caused Nicholas to have difficulty with prompt dependency. What Defendant may or may not have done after the IEP was implemented is of absolutely no relevance. Applying this correct legal standard, the 200203 IEP cannot be found, on its face, to be reasonably calculated to provide Nicholas with meaningful educational benefit. III. CONCLUSION. For the foregoing reasons, Plaintiff respectfully asks this Court to (I) amend its June 7, 2006 Judgment and hold that the IEP offered to Plaintiff by Defendant for the 2002-03 school year was not reasonably calculated to provide Nicholas with meaningful educational benefit and therefore violated his right to a FAPE, and (ii) order that Defendant reimburse Plaintiff for the appropriate educational costs and expenses incurred by Plaintiff for the 2002-03 school year.

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Respectfully submitted this 19th day of June, 2006. MICHAEL C. COOK, P.C. Michael C. Cook, #24155 s/ Michael C. Cook Attorney for Plaintiff 509 North Tejon Street Colorado Springs, Colorado 80903 Telephone: (719) 632-1222 Facsimile (719) 632-0974 E-Mail: [email protected]

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CERTIFICATE OF SERVICE

I certify that on this 19th day of June, 2006, a true and correct copy of the foregoing PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGEMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 59(e) AND SUPPORTING MEMORANDUM OF LAW was served on the following at the indicated address by: 9 9 hand delivery first class U.S. mail, postage prepaid e-mail 9 9 certified U.S. mail, postage prepaid facsimile transmittal

#

Robert I. Cohen, Esq. [email protected]

s/ Michael C. Cook Michael C. Cook

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