C. v. Norwalk Board Of Education

Filing 69

ORDER: As per the attached ruling, the defendant's Motion for Summary Judgment (ECF No. 55 ) on the breach of contract claim is hereby GRANTED. It is so ordered. Signed by Judge Alvin W. Thompson on 7/21/2020. (Brambila, N.)

Case 3:18-cv-00371-AWT Document 69 Filed 07/21/20 Page 1 of 10

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
-------------------------------- x
M.C., by and through his PARENTS :
and next friends, A.C. AND T.C., :
:
Plaintiff,
:
:
v.
:
:
NORWALK BOARD OF EDUCATION,
:
:
Defendant.
:
-------------------------------- x

Civil No. 3:18-cv-371(AWT)

RULING ON MOTION FOR SUMMARY JUDGMENT
Plaintiff M.C., by and through his parents and next friends,
A.C. and T.C. (the “Parents”), brought this action against the
Norwalk Board of Education (the “Board”) under the Individuals
with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415 et seq.,
and Connecticut law. The defendant moves for summary judgment on
the plaintiff’s sole remaining claim, which is a claim for breach
of contract. For the reasons set forth below, the defendant’s
motion for summary judgment is being granted.
I. FACTS 1
Plaintiff M.C. is a 24-year-old male who resides in Norwalk,
Connecticut. The plaintiff’s primary disability is Other Health
Impairment, based in part on diagnoses of Fetal Alcohol Effects,
Attention Deficit Hyperactivity Disorder (“ADHD”), and Pervasive

1

The following facts are taken from the statements of undisputed facts
submitted in support of and in opposition to the defendant’s motion for
summary judgment.

Case 3:18-cv-00371-AWT Document 69 Filed 07/21/20 Page 2 of 10

Developmental

Disorder

(“PDD”).

Extensive

psychological

assessments obtained by the Board have confirmed the plaintiff’s
condition. M.C. previously received special education and other
related services from the Board.
After receiving a learning ability evaluation summary from
Lindamood-Bell

(“LMB”),

the

Parents

sought

to

modify

M.C.’s

individualized education program (“IEP”) at a March 16, 2016 2
placement

and

planning

team

(“PPT”)

meeting

to

include

LMB

instruction. The PPT ultimately rejected the Parent’s request,
stating that the Board could provide M.C. with the desired LMB
instruction.

The

PPT

then recommended

that M.C. continue

his

participation in community and school-based worksites five times
a

week and,

education

in

addition,

reading

classes,

attend
and

functional
receive

math

speech

and
and

special
language

services.
In response, the Parents filed a due process complaint on
March 16, 2016. Their complaint sought, inter alia, to have the
Board pay for M.C. to attend LMB five days a week for four hours
a day for a period of forty to fifty weeks. A hearing officer was
assigned on March 30, 2016. On April 6, 2016, the hearing officer
held a pre-hearing conference with the Parents and representatives

2

Based on the parties’ submissions, the court previously stated that
the Parents sought to modify M.C.’s IEP at a March 17, 2016 PPT meeting. See
Ruling on Motions for Summary Judgment (ECF No. 48). It is now apparent that
this meeting occurred on March 16, 2016.

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Case 3:18-cv-00371-AWT Document 69 Filed 07/21/20 Page 3 of 10

of the Board, and a hearing on the merits was scheduled for May
19, 2016.
M.C.’s mother avers that at the request of the Board she
agreed to participate in mediation. The mediation session was held
on April 22, 2016.

M.C.’s mother avers that some progress was

made during the mediation, in that the Board agreed to provide
M.C. with some LMB instruction, but the parties did not resolve
their dispute and did not enter into a written agreement at the
end of the mediation session. The parties subsequently agreed to
extend the resolution period and delay the hearing on the merits
to give themselves more time to resolve their dispute, and M.C.’s
mother continued to have communications with representatives of
the Board. On May 12, 2016, the hearing officer granted the
parties’ request to postpone the hearing so they could continue to
work out the terms of the settlement they began discussing at the
mediation session. The hearing on the merits was rescheduled for
June 16, 2016.
The

parties

resolved

their

dispute

and

entered

into

an

Agreement to Change An Individualized Education Program Without A
Planning And Placement Team Meeting (the “Agreement”), which was
signed by M.C.’s mother on May 25, 2016. The signature on behalf
of the Board is dated April 22, 2016. The Agreement provides, inter
alia:

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Case 3:18-cv-00371-AWT Document 69 Filed 07/21/20 Page 4 of 10

We agree to make the changes to the student’s IEP as
described in the documents specified below and which are
attached to this agreement. We understand that these
changes were not made at a PPT meeting. We agree only to
the changes described in the attached documents. We
understand that this agreement is optional and that the
parent can request a PPT meeting at any time to review
the IEP. We understand that this agreement can be made
only if the changes are not part of an Annual Review of
the student’s program.
Agreement at 1. 3 The Agreement states further:
The following documents are attached to this
agreement:
Revised Pages 1 and 2 of the IEP dated 3/16/16 [and]
Prior Written Notice
Amendments (please specify)
-ESY to include: 2 hours daily of reading
instruction by an in district educator trained in
the LMB methodology.
-Triennial evaluation to be completed by 6/30/16.
-PPT to reconvene to review triennial evaluation
by 7/31/16.
Id. (formatting altered).
Attached to the Agreement is a revised IEP.

A stamp on the

first page reads “REVISED 4/22/16”. On page three at the bottom of
the box for “LIST OF PPT RECOMMENDATIONS,” the revised IEP reads:
Amendment 4/22/16:
-ESY to include 2 hours daily of reading
instruction by an in district educator trained in
the LMB methodology.
-Triennial evaluation to be completed by 6/30/16.
-PPT to reconvene to review triennial evaluation by
7/31/16.

3

The Agreement was exhibit B-28 at an administrative hearing commenced
on October 5, 2017 and concluded on December 1, 2017.

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Case 3:18-cv-00371-AWT Document 69 Filed 07/21/20 Page 5 of 10

Id. at 3.
On June 14, 2016, the Parents withdrew their March 16, 2016
due process complaint. The hearing officer dismissed the Parents’
complaint on June 16, 2016.
II. LEGAL STANDARD
With respect to the claim for breach of contract, the court
is not reviewing a decision made by a hearing officer. Accordingly,
the plaintiff’s motion is a typical motion for summary judgment
and not a motion for summary judgment on the administrative record.
See J.K. v. Council Rock Sch. Dist., 833 F.Supp.2d 436, 452 (E. D.
Pa. 2011) (“The proper standard to apply [when plaintiff challenges
a hearing officer’s decision and independently seeks to enforce a
settlement agreement with the school district] is what we use for
summary judgment.”).

A motion for summary judgment may not be

granted unless the court determines that there is no genuine issue
of material fact to be tried and that the facts as to which there
is no such issue warrant judgment for the moving party as a matter
of law. Fed R. Civ. P. 56(a). See Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs.,
22 F.3d 1219, 1223 (2d Cir. 1994). When ruling on a motion for
summary judgment, the court may not try issues of fact, but must
leave those issues to the jury. See, e.g., Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); Donahue v. Windsor Locks
Bd. of Fire Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987).

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Case 3:18-cv-00371-AWT Document 69 Filed 07/21/20 Page 6 of 10

Summary judgment is inappropriate only if the issue to be
resolved is both genuine and related to a material fact. An issue
is “genuine . . . if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson, 477
U.S. at 248 (internal quotation marks omitted). A material fact is
one that would “affect the outcome of the suit under the governing
law.” Id.
When reviewing the evidence on a motion for summary judgment,
the court must “assess the record in the light most favorable to
the non-movant and . . . draw all reasonable inferences in its
favor.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000)
(quoting Del. & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d
174, 177 (2d Cir. 1990)).
III. DISCUSSION
The plaintiff’s cause of action for breach of contract is as
follows:
The BOARD breached the mediation agreement between the
BOARD and the PARENTS which was intended to resolve the
PARENTS' first request for a due process hearing and
caused the PARENTS to withdraw such request in reliance
upon the BOARD's obligations under that mediation
agreement. In particular, the BOARD failed to provide
timely the STUDENT with reading instruction by an
employee trained in the Lindamood-Bell methodology and
failed to provide timely the PARENTS with the results of
certain evaluations the BOARD was obligated to perform
pursuant to the mediation agreement. As a result, the
BOARD fraudulently induced the PARENTS to withdraw their
request for a due process hearing in reliance on the
BOARD's commitment to honor its obligations under the
mediation agreement. The BOARD's failure to honor its

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Case 3:18-cv-00371-AWT Document 69 Filed 07/21/20 Page 7 of 10

commitment deprived the student of education and related
services to which he was entitled under the mediation
agreement and the IDEA. The STUDENT and PARENTS were
harmed by the resulting adverse impact on the STUDENT's
education and progress.
Compl. ¶63.
The “enforcement of [a] settlement agreement, whether through
award of damages or decree of specific performance . . . requires
its own basis for jurisdiction” to be heard in federal court.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 378
(1994). While contract enforcement is generally a question of state
law, “Congress has expressly provided for enforcement of IDEA
settlement

agreements

in

federal

district

courts

when

the

agreement at issue was entered into ‘through the [IDEA] mediation
process,’ 20 U.S.C. § 1415(e)(2)(F), or at a ‘resolution session’
required by § 1415(f)(1)(B), see id. § 1415(f)(1)(B)(iii).” H.C.
ex rel. L.C. v. Colton-Pierrepont Cent. Sch. Dist., 341 F. App'x
687, 690 (2d Cir. 2009).
The Board maintains that it is entitled to summary judgment
because the plaintiff’s cause of action for breach of contract is
simply a claim

that the Board breached the amendments to the IEP,

not a claim that the Board breached either a settlement agreement
entered into through a mediation process or a settlement agreement
reached

at a resolution session. The court agrees.

Under the IDEA, “[a]n [IEP] is a written statement that sets
out

the

child's

present

educational

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performance,

establishes

Case 3:18-cv-00371-AWT Document 69 Filed 07/21/20 Page 8 of 10

annual

and

short-term

objectives

for

improvements

in

that

performance, and describes the specially designed instruction and
services that will enable the child to meet those objectives.”
M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 224 (2d Cir. 2012)
(quoting D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503,
507-08 (2d Cir. 2006) (internal quotations omitted)). See also 20
U.S.C. § 1414(d)(1)(A)(i).
While an IEP is a written statement, it is not a contract.
“[T]he IEP is entirely a federal statutory creation, and courts
have rejected efforts to frame challenges to IEPs as breach-ofcontract claims.” Van Duyn ex rel. Van Duyn v. Baker Sch. Dist.
5J, 502 F.3d 811, 820 (9th Cir. 2007) (citing Ms. K v. City of S.
Portland, 407 F. Supp. 2d 290, 301 (D. Me. 2006) (“[A]n IEP is not
a legally binding contract.”)).
In

John

A.

v.

Bd.

of Educ.

for

Howard

Cty., the

court

explained:
[t]he Supreme Court's decisions in Tatro and Cedar
Rapids suggest that an IEP does not take the form of a
strict contractual relationship between the parties and
is not the be-all-end-all of those services, and only
those services, which must be provided to a disabled
child . . . . While an IEP document may reflect the
discussions and educational plan contemplated for a
disabled child, a school district is nonetheless
required to provide the child with a FAPE, which includes
personalized instruction and such supportive services as
are necessary to fulfill the underlying purpose of the
IDEA.

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Case 3:18-cv-00371-AWT Document 69 Filed 07/21/20 Page 9 of 10

400 Md. 363, 385-86 (2007);see also Schafer v. Hicksville Union
Free Sch. Dist., No. 06-CV-2531 JS ARL, 2011 WL 1322903, at *20
(E.D.N.Y. Mar. 31, 2011) (It is a “dubious notion that a breach of
contract action can arise out of an IEP dispute.”); Wiles v. Dep't
of Educ., 555 F. Supp. 2d 1143, 1157 (D. Haw. 2008) (Defendant is
mistaken “that an IEP is a contract that can be enforced through
a

breach

of

contract

action.”);

but

see

Lopez

v.

City

of

Bridgeport, No. CV156051932S, 2016 WL 4071711, at *4 (Conn. Super.
Ct.

June

27,

2016)

(quoting

Nisinzweig

v.

Kurien,

No.

X05CV960150688S, 2001 WL 1075761, at *29 (Conn. Super. Ct. Aug.
21, 2001)) (Holding, in the context of sovereign immunity, that “
‘[t]he IEP is a form of contract made between the local board of
education and the parents.’ ”).
Here the Agreement provides that the Board “agree[s] to make
the changes to the student’s IEP as described in the documents
specified below . . . ”. Agreement at 1. The plaintiff does not
contend that the Board breached its agreement to make those changes
to the IEP. Rather the plaintiff contends that the Board failed to
provide M.C. with the reading instruction by an employee trained
in the LMB methodology and failed to timely provide the Parents
with the results of the evaluations provided for in the revised
IEP. Thus, the plaintiff’s claim is that there was a breach of the
terms of the revised IEP.

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Case 3:18-cv-00371-AWT Document 69 Filed 07/21/20 Page 10 of 10

The plaintiff suggests that if the Parents cannot pursue the
breach of contract claim, then M.C. is left without a remedy for
the claimed breach by the Board. The plaintiff characterizes the
Board’s position as being that “the agreement to amend the IEP
was, in fact, for legal purposes not an enforceable agreement[.]”
Pl.’s Resp. to Def.’s [Second] Mot. for Summ. J. (“Pl.’s Resp.”)
(ECF No. 56) at 7 (emphasis omitted). But the plaintiff could have
enforced the Agreement in a breach of contract action had the Board
failed to amend the IEP, and the plaintiff also had a remedy for
the claimed breach by the Board of the revised IEP, namely, a
second due process complaint.

In fact, the plaintiff filed a

second due process complaint on July 31, 2017, after the IEP had
been further modified several times.
III. CONCLUSION
For the reasons set forth above, the defendant’s Motion for
Summary Judgment (ECF No. 55) on the breach of contract claim is
hereby GRANTED. The court previously granted summary judgment in
favor

of

the

Accordingly,

defendant

the

Clerk

on

will

the

plaintiff’s

enter

judgment

in

other
favor

claims.
of

the

defendant as to all of the plaintiff’s claims and close this case.
It is so ordered.
Dated this 21st day of July 2020, at Hartford, Connecticut.
/s/ AWT
Alvin W. Thompson
United States District Judge

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