I S et al v. Munster School Town of et al
Filing
105
AMENDED OPINION AND ORDER re 104 Order on Motion for Summary Judgment. Signed by Judge Jon E DeGuilio on 9/10/14. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
I.S., by his Parents and Next Friends,
RICHARD and CHRISTINA SEPIOL
Plaintiff,
v.
SCHOOL TOWN OF MUNSTER, et al.,
Defendants.
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Case No. 2:11-CV-160 JD
AMENDED OPINION AND ORDER
This is an action under the Individuals with Disabilities in Education Act. Richard and
Christina Sepiol contend that the School Town of Munster and the West Lake Special Education
Cooperative (collectively “the School”) failed to provide their son, referred to in this matter as
I.S., with a free appropriate public education. The independent hearing officer agreed with them
in part, finding that the School failed as to one of the school years in question, but she awarded
little in the way of compensation. On appeal, the Parents argue that the School actually denied
I.S. an appropriate education for four years, and they seek relief in the form of reimbursement for
I.S.’s attendance at a private school.
Both parties have moved for summary judgment, which is the procedural vehicle through
which these administrative review actions are resolved, and the motions are ripe for ruling. For
the following reasons, the Court grants both motions in part and denies both motions in part. The
Court finds that the School denied I.S. a free appropriate public education for parts of two school
years, and remands this matter to the Indiana Department of Education to determine the
appropriate amount of compensation.
I. FACTUAL BACKGROUND
I.S. is a student with a severe form of dyslexia. Although he has average intelligence, he
has significant impairments in the areas of decoding (sounding out words phonetically) and
encoding (spelling and writing) language. (R. 162). He began attending Hammond Elementary
School in the School Town of Munster in kindergarten in the fall of 2005, and he received
supplemental assistance during that year and also received tutoring over the summer. When he
entered the 1st grade in August 2006, his parents became concerned about his continuing
difficulties with reading and phonics, so they requested that the School evaluate him for a
possible learning disability. (R. 695). The School completed an evaluation in October 2006,
which indicated that I.S. had a learning disability in the areas of reading, math, and written
expression. (R. 727, 188). The School therefore held a Case Conference Committee1 (“CCC”)
meeting on November 21, 2006 to develop an Individualized Educational Program (“IEP”)
setting forth the special education services that I.S. would receive. The IEP provided that I.S.
would primarily remain in his general education classroom, but that he would receive 45 minutes
of direct reading instruction each day in a resource room, and that he would receive 1 hour of
instructional support each day in his classroom. (R. 207). The School implemented this IEP for
the rest of I.S.’s 1st grade year and into his 2nd grade.
The CCC met again the following year on November 5, 2007, in the fall of I.S.’s 2nd
grade year. At that time, I.S. was receiving reading instruction primarily through the
“Fundations” program, which teaches phonics, phonemic awareness, and spelling through OrtonGillingham-based methodology. The IEP that the School developed for this year called for I.S. to
receive one hour of direct reading instruction each day in a resource room, in addition to one
1
The Case Conference Committee includes various school officials and a student’s parents, and
is tasked with preparing a student’s annual Individualized Educational Programs.
2
hour each day of instructional support. (R. 225). The IEP also contained goals for the areas of
reading, writing, and math. For example, I.S.’s reading goal was that “[I.S.] will continue to use
decoding skills to sound out words with a variety of letter patterns and sounds in 7/10 attempts
while reading orally. [I.S.] will also continue to improve his sight word vocabulary using the
Dolch word cards.” (R. 216). This goal was accompanied by a number of related sub-goals.
The next CCC meeting occurred the following year on December 18, 2008, during I.S.’s
3rd grade year. (R. 232). The Parents were unable to attend this meeting, so the School prepared
the new IEP and sent it to the Parents for their review, apparently without any response or
objection. The IEP again called for I.S. to receive 1 hour of direct reading instruction and 1 hour
of instructional support each day, though I.S.’s teacher testified that he actually received about
an hour and fifteen minutes of direct instruction each day. I.S.’s reading goal remained almost
identical,2 though the IEP set new goals for writing and math. During this school year, I.S.
received reading instruction primarily through the Wilson Reading Program, which is similar to
the Fundations program but for older students, and which is also based on Orton-Gillingham
principles.
Near the beginning of I.S.’s 4th grade year, the School began implementing its direct
reading instruction through a program called Read 180. Read 180 is an alternate core curriculum
that focuses heavily on fluency and comprehension but provides little instruction in phonics or
phonemic awareness, and the use of this methodology is one of the primary points of contention
in this matter. The Read 180 program takes 90 minutes daily, consisting of an initial wholegroup instructional session, followed by rotations of 15 to 20 minutes each through small-group
2
“[I.S.] will demonstrate the ability to use decoding skills to sound out words with a variety of
letter patterns and sounds in 7/10 attempts while reading orally.” (R. 233). Four of the seven subgoals from the 2nd grade IEP remained in the 3rd grade IEP as well, and no new sub-goals were
added.
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instruction, independent reading, and individual work on a computer program, and concluding
with a whole-group wrap-up session. (R. 1830–34, 2644–46). The School had not used this
program before, so I.S.’s teacher was still receiving training in this program throughout the year,
and did not learn some aspects of the program until the end of the year.
The School next reviewed the IEP on November 6, 2009, in the fall of I.S.’s 4th grade
year, after it had begun implementing Read 180. The Parents were again unable to attend the
CCC meeting, so the School prepared the IEP and sent it to the Parents for their review. Because
Read 180 required 90 minutes daily, I.S.’s 4th grade IEP was updated to include 90 minutes of
direct reading instruction each day, while he continued to receive 1 hour of instructional support.
(R. 253). However, all of the goals in this IEP were identical to the goals in the 3rd grade IEP,
and all of the sub-goals remained the same as well, with only a single exception. (R. 249–51).
Although the Parents apparently did not respond to the IEP initially, I.S.’s mother wrote
to the School on April 5, 2010, to request an immediate meeting, as she began to grow concerned
that I.S. was not making appropriate progress. (R. 578). The School convened a CCC meeting on
April 14, 2010. (R. 270). At the meeting, I.S.’s mother expressed her concern with the Read 180
program, particularly with the independent reading and the computer program portions of the
instruction, as I.S. struggled with working independently on his reading. Accordingly, the School
agreed to suspend these independent portions of the Read 180 program, and to have another
teacher provide I.S. with individual instruction during those times through Leveled Literacy, a
program that focuses particularly on phonics and phonetic awareness. (R. 270, 2653). This
arrangement continued for the rest of I.S.’s 4th grade year.
I.S.’s mother also requested an Independent Educational Evaluation to determine I.S.’s
abilities and recommend appropriate services, so the School retained Sue Grisko to prepare a
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report. (R. 484, 579). Ms. Grisko met with I.S. in May 2010 and administered a series of tests,
and she submitted her report on August 7, 2010. Ms. Grisko concluded that I.S. had deficits in
the areas of phonological processing (processing the sounds of a word) and rapid naming (the
efficient retrieval of phonological information from long-term or permanent memory). (R. 488–
89, 497). Termed a “double deficit,” this combination of difficulties made it “much more
difficult for [I.S.] to learn to read.” (R. 497). Ms. Grisko opined that “[t]eaching [I.S.] to read
must take priority over his expected 5th grade curriculum,” and that “[h]is full day should be
devoted to literacy instruction to close his ever-widening gap.” (R. 497). She recommended “a
minimum of two hours per day for decoding based reading instruction,” plus another hour to
address his rapid naming deficit, with the rest of his school day “includ[ing] instruction to
practice and use his newly learned skills to automaticity.” (R. 497). Ms. Grisko further believed
that “[f]luency at the passage level should not be stressed until [I.S.’s] passage decoding
accuracy is above 95%,” because practicing fluency when a student is not yet reading words
accurately only promotes “faster guessing” of words, which “is an extremely difficult habit to
break.” (R. 498). Ms. Grisko recommended that I.S. attend a private school designed to teach a
specialized literacy curriculum in order to receive this level of instruction. (R. 498).
On August 20, 2010, the first day of I.S.’s 5th grade, the CCC convened for a meeting to
discuss Ms. Grisko’s report. Ms. Grisko attended the meeting and presented her report, and she
specifically recommended that I.S. be placed at Hyde Park Day School, a private school where
he could receive special education services from reading specialists throughout the school day.
(R. 302). The School’s staff discussed the report with Ms. Grisko, and decided that they would
like another opinion before proposing the services I.S. would receive in his next IEP. (R. 302).
However, the Parents were not content for I.S. to continue receiving reading instruction from the
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School in a manner that they believed to be ineffectual and possibly even counterproductive. (R.
302–03). Thus, they decided that they would pull I.S. from school each day in the afternoon,
when he would otherwise receive this instruction, and teach him at home themselves.
Following this meeting, the School commissioned a report from Rachelle Wright to
assess I.S.’s needs and make a recommendation as to his placement and special education
services. Ms. Wright did not evaluate or observe I.S. herself, but reviewed several other recent
assessments, including Ms. Grisko’s, to complete her report. (R. 524, 2337). Ms. Wright’s report
generally identified the same deficiencies as Ms. Grisko’s, but her recommendations were not
nearly as broad. She believed that I.S. should receive instruction through “an alternate core
program for at least 90-120 minutes per day,” and that this instruction should address “all
components of literacy,” including “phonemic awareness, phonics, fluency, vocabulary,
comprehension, and written language,” as opposed to focusing exclusively on phonemic
awareness and phonics, as recommended by Ms. Grisko. (R. 533). Ms. Wright suggested several
alternate core programs through which to implement this instruction. Her third recommendation
was Read 180, but she noted that “Read 180 is not as strong as the other two programs in the
area of phonemic awareness,” so she recommended that, if used, it be supplemented by other
programs in that area. (R. 536).
The School first shared this report with the Parents at the next CCC meeting on October
7, 2010. Ms. Grisko attended the meeting at the expense of the Parents, but Ms. Wright was not
present to discuss her report. (R. 338). Nonetheless, the School presented Ms. Wright’s report
and the results of other assessments they conducted, and its staff members discussed I.S.’s
progress. The parties then discussed what services I.S. should receive as part of his IEP. The
School proposed 150 minutes of reading instruction, composed of 90 minutes through Read 180
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and 60 minutes of reinforcement and supplementation through other methodologies. (R. 341).
The Parents rejected any use of the Read 180 program, though, and indicated that they would
continue removing I.S. from school in the afternoon and teaching him with a phonics course that
they purchased at Ms. Grisko’s recommendation. The parties grew no closer to an agreement, so
the meeting concluded with the understanding that the Parents would continue to remove I.S.
from school, and the School would submit its final proposed IEP for the Parents’ consideration.
The IEP that the School ultimately proposed on October 18, 2010, which would cover the
remainder of I.S.’s 5th grade and the beginning of his 6th grade years, called for I.S. to remain in
the public school, and to receive 150 minutes of daily reading instruction in the resource room, in
addition to 1 hour of daily instructional support in his general education classroom. (R. 334–35).
The IEP did not specify which programs or methodologies the School would use for I.S.’s
reading instruction, although the meeting notes contained in the IEP reflect that the School
intended to continue using the Read 180 program for at least a portion of his instruction. (R.
341).
Unsatisfied with this proposal, the Parents continued removing I.S. from school in the
afternoon and teaching him in reading at home, and they formally requested a due process
hearing through the Indiana Department of Education pursuant to the IDEA. (R. 8). The Parents
contended that the IEPs for I.S.’s 2nd, 3rd, and 4th grade years were both substantively and
procedurally flawed, and that the IEP proposed for his 5th grade year was substantively
inadequate as well. They further contended that these flaws deprived I.S. of the free appropriate
public education to which he was entitled under the IDEA, and that he was entitled to
compensatory educational services as a result. The Indiana Department of Education appointed
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an independent hearing officer, who, in consultation with the parties, framed the issues as
follows:
1.
Whether Respondents [the School] have offered the student an
individualized education program (IEP) designed to confer meaningful
educational benefit and meet his unique needs.
2.
Whether the IEP proposed by Respondents at the October 7, 2010 case
conference committee (CCC) meeting offered the student an education program
appropriate to meet the student’s needs.
3.
Whether Respondents reviewed an[d] revised the student’s IEP in
accordance with 511 IAC 7-42-9 and 511 IAC 7-42-5 [Indiana’s administrative
regulations implementing the IDEA].
4.
Whether Respondent failed in any duty to invite and fund the attendance
of Susan Grisko, an independent evaluator, to the CCC meeting of October 7,
2010 so as to violate 511 IAC 7-42-3(b)(4). If so, are the parents entitled to
reimbursement for the cost to them of the evaluator’s attendance at that
conference.
....
9.
Whether, considering substantive and procedural violations found to exist,
the student has been denied a free appropriate public education (FAPE). If so, to
what compensatory education is the student entitled.
(R. 160–61).3
After efforts to resolve the matter amicably failed, the parties held a four-day hearing in
March 2011. The hearing officer heard testimony from fifteen different witnesses, including
several of I.S.’s teachers and other of the School’s staff members, both of his parents, Ms.
Grisko, Ms. Wright, and the principal of Hyde Park Day School (to which I.S. had applied, but
had not yet been admitted). The parties also submitted well over one thousand pages of exhibits,
3
There were four other issues in dispute at the hearing, two of which the hearing officer struck
on the School’s motion because they were duplicative of issues that had already been resolved
through separate complaints, and two of which the hearing officer resolved in the School’s favor.
Neither party objects as to those four issues, so the Court does not address them.
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plus hundreds of pages of case law for the hearing officer’s reference. The hearing officer
subsequently issued her decision on April 4, 2011. (R. 157).
The hearing officer first found that based on the two-year statute of limitations and the
fact that the Parents filed the due process hearing request in the fall of I.S.’s 5th grade year, the
inquiry was limited to the IEPs developed in the fall of I.S.’s 3rd, 4th, and 5th grade years. (R.
172 ¶ C 0.2). As to the 3rd grade IEP, she found that it was substantively adequate, as the
amount of instruction it included and the Wilson program used to implement it were reasonably
calculated to confer educational benefit. (R. 172 ¶ C 1.1). But, she found that the 3rd grade IEP
was procedurally flawed, as the School did not review and revise it as required since the School
kept little data on I.S.’s progress and used nearly identical goals from the previous IEP. (R. 174
¶ C 3.1). However, because his teachers had informally ascertained his actual level of
performance and provided appropriate instruction despite the deficient goals and lack of
meaningful progress monitoring data, the hearing officer found that the School did not deny I.S.
a free appropriate public education. (R. 175 ¶ C 9.1).
As to the 4th grade IEP, the hearing officer found that “[t]he Read 180 program used in
4th grade did not target the student’s severe deficit in decoding and was not reasonably
calculated to confer educational benefit.” (R. 173 ¶ C 1.3). Specifically, she found that the Read
180 program “focuses on fluency skills prior to the development of accurate decoding,” which
“promotes ‘faster guessing,’” a very difficult habit for students to break, and that Read 180 “is
not appropriate for this student due to his poor decoding skills.” (R. 164 ¶ F 1.14). Due to this
methodology, I.S.’s “reading progress in the 4th grade was, at best, trivial.” (R. 173 ¶ C 1.2).
Accordingly, the hearing officer found that this IEP “was not reasonably designed to confer
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educational benefit and was not appropriate to meet [I.S.’s] unique needs,” and that it therefore
denied I.S. a free appropriate public education. (R. 173 ¶ C 1.3, 176 ¶ C 9.2).
As to the 5th grade IEP, the hearing officer found that the 150 minutes of reading
instruction was appropriate and, “insofar as time is concerned, reasonably balances the
student[’]s need for direct instruction and his need to participate in the general education
curriculum.” (R. 165 ¶ F 2.1). She also noted, though, that the School intended to devote 90
minutes of that time to the Read 180 program, which “is weak in the area of phonemic awareness
and decoding skills, which are [I.S.’s] most critical need.” (R. 165 ¶ F 2.3). She disapproved of
this approach, finding that I.S. “needs to spend the majority of his direct instructional time in his
area of most critical need, decoding,” using Orton-Gillingham-based methodologies. (R. 165 ¶ F
2.4). She therefore found that the “proposed IEP was not appropriate with regards to the balance
of methodologies actually proposed” by the School. (R. 173 ¶ C 2.2). Nevertheless, she found
that the “proposed methodologies were not expressly a part of the student’s proposed IEP,” so
she concluded that “[t]he proposed IEP, as written, appropriately addressed the student’s needs,”
and substantively complied with the IDEA. (R. 173 ¶ C 2.1).
Having found that only the 4th grade IEP denied I.S. a free appropriate public education,
the hearing officer then turned to the appropriate compensation for that period. With little
discussion, though, she concluded that the 5th grade IEP provided enough instruction “both to
address [I.S.’s] current needs and to provide compensatory education,” apparently meaning that
it would both provide an adequate ongoing education and make up for the deficiencies of the
previous year. (R. 176 ¶ C 9.3). Accordingly, she declined to award any additional compensatory
education services. The hearing officer concluded her decision by ordering the School to
implement the proposed 5th grade IEP as written, but she also ordered the School to provide
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Orton-Gillingham-based instruction for at least 90 of his 150 instructional minutes per day,
which the School had not proposed. She further directed the School not to take any time away
from I.S.’s science, social studies, or math classes to receive these services, and ordered this
instruction to continue through his 6th grade year.
The Parents timely appealed the hearing officer’s decision by filing a complaint in this
Court on May 4, 2011. [DE 1]. The Parents contend that the School denied I.S. a free appropriate
public education from the 2nd through the 5th grades, and that he is entitled to compensatory
education services to make up for those periods. They also assert that the hearing officer erred in
finding that the 5th grade IEP provided enough instructional time to encompass compensatory
education for the denial of a free appropriate public education in the 4th grade. Thus, they seek
additional compensation for this entire period. Further, after filing the complaint in this matter,
the Parents were able to place I.S. at the Hyde Park Day School, where he attended the 6th, 7th,
and 8th grades. They therefore also seek reimbursement for his attendance at that school based
on the School’s alleged ongoing failure to provide I.S. with a free appropriate public education.
II. STANDARD OF REVIEW
The typical summary judgment standard of review does not apply in cases brought under
the IDEA. Alex R. ex rel. Beth R. v. Forrestville Valley Cmty. Unit Sch. Dist. No. 221, 375 F.3d
603, 611 (7th Cir. 2004). Rather, the IDEA provides that a court reviewing the outcome of a due
process hearing: “(i) shall receive the records of the administrative proceedings; (ii) shall hear
additional evidence at the request of a party; and (iii) basing its decision on the preponderance of
the evidence, shall grant such relief as the court determines is appropriate.” 20 U.S.C.
§ 1415(i)(2)(C). The party challenging the outcome of the administrative proceedings bears the
burden of proof. M.B. ex rel. Berns v. Hamilton Southeastern Schs., 668 F.3d 851, 860 (7th Cir.
2011). On issues of law, the Court reviews the hearing officer’s decision de novo. Id. On issues
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of fact, however, the Court accords “due weight” to the decision of the hearing officer.
Forrestville, 375 F.3d at 612. The amount of weight that is due varies depending on whether the
parties submit evidence to the Court that was not before the hearing officer:
At one end of the continuum, where the district court does not take new evidence
and relies solely on the administrative record, it owes considerable deference to
the hearing officer, and may set aside the administrative order only if it is
“strongly convinced that the order is erroneous.” School Dist. v. Z.S., 295 F.3d
671, 675 (7th Cir.2002) (quotation omitted). This level of review is akin to the
standards of clear error or substantial evidence. Id. The more that the district court
relies on new evidence, however, the less it should defer to the administrative
decision: “[j]udicial review is more searching the greater the amount (weighted by
significance) of the evidence that the court has but the agency did not have.” Id.
Id. Here, the parties submitted limited evidence outside of the administrative record, but that
evidence pertains only to I.S.’s progress after leaving the School, which has little relevance to
any issues that the hearing officer reached. Accordingly, except as otherwise noted, the Court
reviews the hearing officer’s decision under a substantial evidence standard.
III. DISCUSSION
The Parents assert that the School violated I.S.’s rights under the Individuals with
Disabilities in Education Act, 20 U.S.C. § 1410 et seq. Under the IDEA, “‘a state that accepts
federal funding to educate disabled children must provide such children with an education that is
free, public, and appropriate.’” Berns, 668 F.3d at 860 (quoting Forrestville, 375 F.3d at 606); 20
U.S.C. § 1412(a)(1). The school district, however, is not required to provide the “best possible
education,” or to maximize a student’s potential. Berns, 668 F.3d at 860; Todd v. Duneland Sch.
Corp., 299 F.3d 899, 905 (7th Cir. 2002). Rather, the IDEA only requires a school to provide a
“basic floor of opportunity,” meaning “access to specialized instruction and related services
which are individually designed to provide educational benefit to the handicapped child.” Bd. of
Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 201
(1982).
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The IDEA implements these aims largely through the extensive procedural requirements
involved in developing a student’s Individualized Educational Program, but the IEP must meet
certain substantive standards as well. Id. at 182, 206–07. Thus, there are two questions a court
must consider in evaluating a claim under the IDEA: “First, has the State complied with the
procedures set forth in the Act? And second, is the individualized educational program
developed through the Act’s procedures reasonably calculated to enable the child to receive
educational benefits?” Id. at 206–07. If so, then the school has satisfied its obligations. Id.
Here, the Parents object to the 2nd, 3rd, 4th, and 5th grade IEPs, so the Court first
considers whether the School met its obligations under the IDEA as to each IEP. Finding that it
did not as to two different time periods, the Court then considers the appropriate remedies.
A.
The School’s Compliance with the IDEA
The IEPs in question encompass portions of I.S.’s 2nd through 6th grade school years.
These issues generally fall into five separate time periods, and the Court considers each in turn.
First, however, the Court notes that the Parents argued below that the School violated the IDEA
by declining to pay Ms. Grisko’s fee for attending the October 2010 CCC meeting. The hearing
officer found against the Parents on this issue, concluding that the School had no duty to invite
and fund the attendance of Ms. Grisko at that meeting. (R. 175 ¶ C 4.1). Though the Parents
indicate that they are appealing this issue [DE 95 p. 2 n.1], they provided no argument on this
point and did not respond to the School’s argument in support of the hearing officer’s decision.
Accordingly, the Court finds that the Parents waived any objection to this conclusion, and
affirms the hearing officer’s decision on this issue.
1.
2nd Grade
The Parents argue that the School denied I.S. a free appropriate public education in the
2nd grade (the 2007–08 school year) by failing to adequately review and revise his IEP. The
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hearing officer did not address this school year, as she found that only the 3rd, 4th, and 5th grade
IEPs fell within the two-year statute of limitations, since the Parents filed the request for a due
process hearing in the fall of I.S.’s 5th grade year. (R. 172 ¶ C 0.2). On appeal, the Parents have
not addressed the hearing officer’s conclusion as to the statute of limitations. In addition, the
School expressly argued in its briefs that this school year was outside the statute of limitations,
but the Parents did not respond to that argument. Thus, they have failed to discharge their burden
as the party challenging the hearing officer’s decision on this issue, and they have forfeited any
argument against the statute of limitations, so the Court affirms the hearing officer’s decision as
to the 2nd grade IEP.
2.
3rd Grade
The Parents next argue that I.S.’s 3rd grade IEP was procedurally flawed and that it
denied him a free appropriate public education. The hearing officer concluded that the School
committed procedural violations in formulating I.S.’s 3rd grade IEP by failing to review and
revise his goals based on measurements of his progress. (R. 174 ¶ C 3.1). But, she found that
these violations did not deny I.S. an appropriate education because his teachers had informally
ascertained his levels of performance and provided instruction consistent with his needs. (Id.
¶ F 3.16, ¶ C 9.1). The parties vigorously contest both the existence of procedural violations and
whether those violations denied I.S. a free appropriate public education. The Court finds that
substantial evidence supported the hearing officer’s finding that any procedural violations did not
result in substantive harm to I.S. or the Parents, meaning they did not deny him a free appropriate
public education. Therefore, the Court affirms the decision on that ground and need not address
whether the procedural violations actually occurred.
Though the IDEA attaches substantial importance to its procedural requirements,
“‘[p]rocedural flaws do not require a finding of a denial of a free appropriate public education.’”
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Hjortness ex rel. Hjortness v. Neenah Joint Sch. Dist., 507 F.3d 1060, 1065 (7th Cir. 2007); Bd.
of Educ. of Twp. High Sch. Dist. No. 211 v. Ross, 486 F.3d 267, 276 (7th Cir. 2007). Rather,
procedural flaws will have denied a student a free appropriate public education only where they
“(I) impeded the child’s right to a free appropriate public education; (II) significantly impeded
the parents’ opportunity to participate in the decisionmaking process regarding the provision of a
free appropriate public education to the parents’ child; or (III) caused a deprivation of
educational benefits.” 20 U.S.C. § 1415(f)(3)(E)(ii); Hjortness, 507 F.3d at 1065 (“[P]rocedural
inadequacies that result in the loss of educational opportunity result in the denial of a free
appropriate education.”).
The Parents argue that I.S.’s lack of progress demonstrates that he suffered substantive
harm from the procedural flaws, but this argument fails for several reasons. First, this argument
is largely non-responsive to the hearing officer’s findings. The hearing officer did not premise
her conclusion on a finding that I.S. made progress, she based it on her finding that the deficient
goals did not negatively impact I.S.’s instruction. By not adequately confronting this finding, the
Parents fail to discharge their burden to overturn the hearing officer’s decision. Relatedly, the
Parents fail to draw the requisite connection between the procedural defects and I.S.’s education.
To warrant compensation under the IDEA, procedural flaws must cause a lack of progress, not
merely coincide with it, Hjortness, 507 F.3d at 1065, and while the Parents dwell on I.S.’s lack
of progress, they make little effort to tie that lack of progress to any procedural defects. They
argue only briefly that the failure to revise I.S.’s 3rd grade IEP resulted in a loss of educational
benefit because it rendered its goals meaningless. But the Parents also have to show that the
meaningless goals somehow translated into the instruction I.S. received, and they have not done
so. The hearing officer found that I.S.’s teachers appropriately assessed his levels of performance
15
and provided instruction consistent with his needs, so despite the recycled goals, I.S. was not
receiving recycled instruction.4 (R. 175 ¶ F 3.16, ¶ C 9.1). Additionally, I.S. received instruction
through the Parents’ preferred methodology during his 3rd grade year, and the Parents do not
suggest that I.S. should have received different or additional instruction, nor have they indicated
any way in which I.S.’s education would have been different had the IEP contained adequate
goals. Thus, this argument does not provide a basis to overturn the hearing officer’s decision.
Further, to the extent I.S.’s progress is relevant to this issue in the first place, the Parents
overreach in relying on a spoliation argument to demonstrate the lack of progress. The Parents
argue that the School spoliated evidence because it kept little progress monitoring data and
because certain documents “were either lost or never maintained,” so the hearing officer should
have drawn an adverse inference against the School.5 [DE 95 p. 19]. However, to the extent the
Parents argue that the School spoliated evidence by failing to create documents in the first place,
this fundamentally misconceives the nature of spoliation. Spoliation is “‘the intentional
destruction, mutilation, alteration, or concealment of evidence, usually a document.’” Cahoon v.
Cummings, 734 N.E.2d 535, 545 (Ind. 2000) (quoting Black’s Law Dictionary 1409 (7th ed.
1999)). A party does not commit spoliation by failing to create evidence, only by destroying,
altering, or concealing it. See id.
In addition, to the extent the Parents are referring to documents that once existed, the
record simply does not support a conclusion that any documents were lost under circumstances
4
To the extent the lack of adequate goals and progress monitoring data interfered with the
School’s ability to craft subsequent IEPs, the harm would have been realized during those
subsequent periods, not this one, and thus would not establish that I.S. was denied a free
appropriate public education during this period. Because the Court finds that the subsequent IEPs
were deficient on other grounds, it need not address this potential consequence.
5
The Parents initially argued that spoliation should have shifted the burden of proof to the
School, but they later withdrew that argument and asserted that an adverse inference should have
applied.
16
that would justify an adverse inference due to spoliation. “[C]ourts have found a spoliation
sanction to be proper only where a party has a duty to preserve evidence because it knew, or
should have known, that litigation was imminent.” Trask-Morton v. Motel 6 Operating L.P., 534
F.3d 672, 681 (7th Cir. 2008). In addition, even when documents are lost after a party has a duty
to preserve them, not all losses of evidence constitute spoliation and justify an adverse inference.
See Howard Regional Health Sys. v. Gordon, 952 N.E.2d 182, 189–90 (Ind. 2011). Rather, a
court must consider the degree of a party’s culpability and the extent of the resulting prejudice,
to determine which among a broad range of remedies is appropriate.
Here, the Parents primarily focus on a binder that I.S.’s teachers kept with their notes on
his progress, which was lost at some point prior to the due process hearing. It appears that it was
lost around the end of I.S.’s 4th grade year, when his teacher, Ms. Horn, left the School for a new
job. Ms. Horn apparently left the binder at the school, but because I.S. did not receive direct
reading instruction when he returned for 5th grade, no one retrieved the binder and it was lost.
(R. 1683–85). However, the Parents did not request the due process hearing until the fall of I.S.’s
5th grade year, and Ms. Grisko’s report and the CCC meetings that led to the due process hearing
request all took place after the binder was lost. Thus, the Court cannot conclude that this
evidence was lost or destroyed after the prospect of litigation became imminent. The
circumstances of the loss—a teacher’s departure from the school—also suggest a low degree of
culpability. Finally, there is limited prejudice to the Parents. Ms. Horn read from the binder
during a meeting with the Parents and during the April 2010 CCC meeting, so they likely had a
general idea of the information it contained. The information in the binder was also translated
into the progress notes that the teachers entered into the computer program, so while the
information in the binder may have been different in form and in detail from the information in
17
the computer program, it was likely similar in the degree of progress it indicated I.S. was
making. The Parents also had a chance to examine the teachers during the due process hearing.
Therefore, the Parents fall well short of establishing that the hearing officer erred by not drawing
an adverse inference based on spoliation. Accordingly, the Court affirms the hearing officer’s
conclusion that the School did not deny I.S. a free appropriate public education in the 3rd grade.
3.
4th Grade
The hearing officer found in the Parents’ favor relative to I.S.’s 4th grade education.
Thus, while the Parents take issue with the remedies the hearing officer awarded, they do not ask
the Court to alter the determination that the School failed to provide I.S. with a free appropriate
public education. Though it did not address the issue in its initial brief, the School argues that
I.S. actually received an appropriate education in 4th grade. However, it has not provided a
sufficient basis to overturn the hearing officer’s conclusion, so the Court finds that the School
failed to provide I.S. with a free appropriate public education in the 4th grade.
I.S.’s 4th grade IEP called for him to receive 90 minutes of direct reading instruction
each day.6 (R. 253). However, the School provided this instruction through the Read 180
program, of which the hearing officer was highly critical. (R. 247, 577). She found that while
I.S.’s most significant area of need was in decoding words (sounding them out), the Read 180
program “did not provide significant remediation” in that area, and left him “without intensive,
systematic phonics instruction for one school year.” (R. 164–65, 171). Worse yet, the hearing
officer found that the Read 180 program was actually damaging to I.S.’s reading skills. Because
of his difficulty sounding out words, I.S. developed a tendency to guess words based on their
6
The 4th grade IEP did not formally take effect until November 5, 2009. However, the School
began implementing the Read 180 system sometime before that (though it is unclear exactly
when), so the Court considers this period as beginning with the introduction of the Read 180
system in the 4th grade.
18
beginning sounds, which is a very difficult habit to break. However, Read 180 focuses on
fluency skills prior to developing accurate decoding skills, which promotes “faster guessing” and
reinforces this detrimental habit. (R. 164). Accordingly, the hearing officer found that this
methodology was “not appropriate” for I.S., and that because the IEP was implemented through
this methodology, it was “not reasonably designed to confer educational benefit and was not
appropriate [to] meet [I.S.’s] unique needs.” (R. 164, 173).
These conclusions are well-supported by the record, and the School does not directly
challenge them on appeal. Any challenge on this front would likely be frivolous, as the Court
owes the highest degree of deference to the hearing officer on questions of methodology.
Rowley, 458 U.S. at 207 (“[C]ourts must be careful to avoid imposing their view of preferable
educational methods upon the States. The primary responsibility for . . . choosing the educational
method most suitable to the child’s needs, was left by the Act to state and local educational
agencies in cooperation with the parents or guardian of the child.”). Instead, rather than directly
defending the appropriateness of the Read 180 program, the School argues that I.S. received a
free appropriate public education because he still made some progress during his 4th grade year.
This argument fails for several reasons. First, the evidence that the School cites to
demonstrate I.S.’s progress is far too limited to upset the hearing officer’s decision. The School
cites several progress reports intermittently recorded by I.S.’s teacher during the 4th grade, but
these demonstrate little, if any, progress. The charts indicate that I.S. progressed in certain
categories from “Emerging” (“In early stages of development”) at the beginning of the year, to
“Developing” (“Progress is evident”), one increment up, at the end of the year. (R. 380, 382).
This offers limited insight into his actual progress, but this progress appears rather modest
anyway. The written notes add little information, and focus more on I.S.’s attitude and effort
19
than his educational progress. (R. 377–90). Given the amount of testimony specifically
addressing the Read 180 program and why it was not appropriate given I.S.’s particular needs,
and the hearing officer’s finding that I.S. made “minimal” progress, this limited evidence does
not justify overturning the hearing officer’s conclusion.
In addition, evidence of I.S.’s progress is largely irrelevant given the hearing officer’s
finding that I.S.’s limited success was “a result of his relative strength as an auditory learner and
the efforts of his parents in assisting him with his homework, and not [the School’s] educational
interventions.” (R. 176; see also R. 162 (noting the ways in which the Parents “supplement the
student’s general education instruction” at home)). This finding, which the School does not
address on appeal, undercuts any argument that I.S.’s progress was attributable to the IEP or the
School. To the contrary, I.S.’s progress, if any, would simply show that he overcame a deficient
IEP, not that the School provided him an adequate one. Therefore, the Court affirms the hearing
officer’s conclusion that the School denied I.S. a free appropriate public education in 4th grade.
4.
5th Grade until the Hearing Officer’s Decision
The Parents next argue that the hearing officer erred by finding that I.S.’s 5th grade IEP
was substantively adequate. The 5th grade IEP called for I.S. to receive 150 minutes of direct
instruction on reading each day, and the hearing officer found that this amount of time was
appropriate. (R. 173). However, the hearing officer found that the School intended to devote 90
minutes of that time to the Read 180 program, which “did not target the student’s most critical
need, decoding skills.” (R. 165, 173). Accordingly, she found that “[t]he major methodology
proposed (Read 180) is not appropriate to address the student’s most significant need,” and that
“[t]he proposed IEP was not appropriate with regards to the balance of methodologies actually
proposed by [the School].” (R. 173–74). The hearing officer’s findings as to the
inappropriateness of the Read 180 methodology and of the balance of methodologies proposed
20
are well-supported by the record and have not been challenged on appeal, so the Court accepts
those findings.
However, the hearing officer attributed these findings no weight in assessing the overall
adequacy of the 5th grade IEP. Instead, she found that “[t]he proposed methodologies were not
expressly a part of the student’s proposed IEP,” so “[t]he proposed IEP, as written, appropriately
addressed the student’s needs.” (R. 173)). She therefore concluded that “[t]he IEP proposed for
the 2010 school year, insofar as it entitles the student to 150 minutes per day direct instruction,
and 60 minutes per day collaboration with the general education classroom, is appropriate” and
provided I.S. with a free appropriate public education. (R. 176).
These conclusions cannot be reconciled, and the Parents’ arguments on this point are
well-taken. The hearing officer essentially found that even though the School intended to
implement the IEP through an inappropriate methodology, the IEP was adequate because it failed
to specify that methodology. (R. 173 (concluding that the IEP was appropriate “as written” and
“insofar as” it includes certain amounts of instructional time)). It is undisputed, though, that the
School intended to use the Read 180 program for the majority of I.S.’s direct reading instruction,
and the hearing officer found that this balance of methodologies was inappropriate for I.S. Thus,
had I.S. received the instruction called for by the IEP, that instruction would have been
inappropriate, and I.S. would not have received a free appropriate public education. That the IEP
itself did not require this deficient methodology does not change that fact. See D.S. v. Bayonne
Bd. of Educ., 602 F.3d 553, 566 (3d Cir. 2010) (holding that an IEP was inappropriate where the
hearing officer found that the student needed to receive particular services in order to receive
meaningful educational benefit, but the IEP failed to incorporate those services). Of course, I.S.
did not actually receive that instruction, as his Parents decided to remove him from school and
21
teach him at home instead of leaving him to receive ineffectual instruction through the Read 180
program. However, the IEP still called for this instructional time, and the hearing officer
accepted the IEP based on its inclusion of this instructional time. Thus, the fact that I.S. did not
attend school for this instruction does alter the adequacy of the IEP or the fact that I.S. would
have received an inappropriate education if he had remained in school.
Furthermore, as a matter of law, the fact that the IEP left open the possibility that I.S.
would receive inappropriate instruction means that it was substantively deficient. A child’s IEP
must be “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458
U.S. at 207. Thus, it “must be tailored to the unique needs of that particular child,” Heather S. v.
Wisconsin, 125 F.3d 1045, 1055 (7th Cir. 1997), and must be “likely to produce progress, not
regression or trivial educational advancement.” Alex R., ex rel. Beth R. v. Forrestville Valley
Cmty. Unit Sch. Dist. No. 221, 375 F.3d 603, 615 (7th Cir. 2004). Because it failed to specify an
appropriate methodology or exclude the Read 180 program, which would have produced no
benefit, I.S.’s 5th grade IEP was not tailored to his unique needs or likely to produce progress
instead of regression.
That is not to say that an IEP must always specify a methodology or foreclose the use of
any inadequate methodologies. In most cases, the use of one methodology over another will not
be the difference between whether a student does or does not receive an appropriate education.
E.g., Rowley, 458 U.S. at 209–10. And even where some potential methodology may be
inappropriate, it may not even be among the possibilities for the instruction at issue. Here,
however, the hearing officer expressly found that the Read 180 program was inappropriate for
I.S. and that its use deprived him of a free appropriate public education in the 4th grade. Further,
there was a distinct possibility I.S. would receive that instruction for this year, as he had received
22
it in the 4th grade, the School proposed its use in the 5th grade, and the Parents had no reason to
believe that would not be the case. In fact, the hearing officer recognized this by ordering the
School to use a different methodology instead. Accordingly, if, as the hearing officer found, the
IEP was indifferent as to which methodology was used, it cannot have been reasonably
calculated to provide educational benefit when one of the potential methodologies would have
been likely to produce regression or no progress.
The Parents provide an apt analogy on this point. If a person contracts a bacterial
infection, an appropriate treatment plan might call for the person to take medication. However, if
it is just as likely that the medication would be aspirin instead of an antibiotic, the treatment plan
would not be reasonably calculated to cure the infection—one medication would cure it, while
the other would have no effect at all and would permit it to spread. The same is true here. The
150 minutes of direct reading instruction may be appropriate as a framework, but if that time
could be used for either of two methodologies, one of which would provide an educational
benefit and one of which would not, the IEP cannot be said to be reasonably calculated to
provide a benefit. Thus, the IEP’s failure to specify a methodology or exclude the Read 180
program means that it was substantively inadequate. The Court therefore overturns the hearing
officer’s conclusion on this issue, and finds that the School denied I.S. a free appropriate public
education for this time period.
5.
After the Hearing Officer’s Decision
The Parents finally argue that I.S.’s 5th grade IEP was inadequate even after the hearing
officer’s decision, which cured the only objection they had to that IEP by ordering the School to
implement Orton-Gillingham methodology. Because this was the time period in which the
Parents placed I.S. in a private school, they contend that this entitles them to reimbursement for
I.S.’s private school tuition. See Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ. of
23
Mass., 471 U.S. 359, 370 (1985). In arguing this point, the Parents do not object to the substance
of the IEP as it existed after the hearing officer’s decision; the only argument they raise on
appeal relative to the 5th grade IEP was that it relied on the Read 180 methodology, but the
hearing officer substituted that methodology with Orton-Gillingham instruction. Rather, the
Parents only argue that the hearing officer was not permitted to modify the IEP in this regard.
Because I.S. would not have received a free appropriate public education for the rest of the
school year and into his 6th grade year absent this modification, the Parents argue that they were
entitled to place him in a private school for 6th grade and seek reimbursement from the School.
This argument is misplaced, however, because the hearing officer issued her decision
curing the IEP well before the Parents placed I.S. in a private school, so her modification of the
IEP did not improperly interfere with the Parents’ placement decision. The Parents’ argument
relies on a line of cases arising out of Burlington, in which the Supreme Court held that when a
school fails to provide an acceptable education, parents can unilaterally place a student in an
appropriate private school and then seek reimbursement for the tuition through the IDEA hearing
process. Burlington, 471 U.S. at 370. This conclusion flows from the fact that due process
hearings and the judicial review process can take substantial periods of time, during which a
student who ultimately prevails will have received an inadequate education. Id. Burlington thus
allows parents to act proactively in ensuring that their child receives an appropriate education,
without waiving their child’s right to a free appropriate public education. Id. However, parents
who choose this alternative bear the risk that a hearing officer or court will find that the school
complied with the IDEA, in which case the parents will receive no reimbursement for the cost of
the private school. Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 15 (1993).
24
Because parents must typically make these decisions prospectively, before the IEP at
issue is implemented, courts generally evaluate the adequacy of the IEP based only on the
information in the IEP itself:
In order for this system to function properly, parents must have sufficient
information about the IEP to make an informed decision as to its adequacy prior
to making a placement decision. At the time the parents must choose whether to
accept the school district recommendation or to place the child elsewhere, they
have only the IEP to rely on, and therefore the adequacy of the IEP itself creates
considerable reliance interests for the parents. . . . By requiring school districts to
put their efforts into creating adequate IEPs at the outset, IDEA prevents a school
district from effecting this type of “bait and switch,” even if the baiting is done
unintentionally. A school district cannot rehabilitate a deficient IEP after the fact.
R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 185–86 (2d Cir. 2012) (also collecting
cases). Thus, a hearing officer or court cannot later reform an IEP in order to hold that, because a
modified version of the IEP would have been appropriate, the parents were not justified in
removing their child from the public school.
However, this reliance interest is entirely absent where, as here, the hearing officer issues
an order modifying the IEP months prior to the parents’ decision to send their child to a private
school. In that event, the parents know prior to making their decision that their child’s education
at the public school will include the modifications ordered by the hearing officer, so there is no
bait and switch. The parents have the benefit of considering the modified IEP just the same as
they could consider the IEP itself if they had to make the choice prior to the hearing officer’s
decision. If the parents consider the modified IEP inadequate, they can still appeal the decision
and place their child in a private school in the meantime. But in doing so, they assume the risk
that the court will find that the education their child would have received had he attended public
school—meaning under the IEP as modified by the hearing officer’s order—was adequate.
Here, the effective dates of the IEP at issue were November 4, 2010 to November 4,
2011, which ran from the fall of I.S.’s 5th grade year to the fall of his 6th grade year. The Parents
25
requested a due process hearing on October 22, 2010, but they were unable to enroll I.S. in a
private school for the 5th grade, so they continued taking him out of school in the afternoon and
home-schooling him in reading. As of the due process hearing in March 2011, I.S. had applied to
the Hyde Park Day School, but he had not yet been admitted. The hearing officer issued her
decision on April 4, 2011, and she ordered the School to provide Orton-Gillingham-based
instruction for at least 90 minutes per day. She also directed the School to continue this
instruction through I.S.’s 6th grade year. However, the Parents continued home-schooling I.S. in
reading for the rest of his 5th grade year, and I.S. did not begin attending Hyde Park Day School
until the beginning of the 6th grade.
Under these circumstances, the Parents had no legitimate reliance interest on the unmodified IEP at the time they enrolled I.S. in the private school. Based on the hearing officer’s
decision, the Parents knew for certain that if I.S. attended the public school, he would receive
their preferred method of reading instruction. The hearing officer’s decision was not merely
extrinsic evidence showing what education I.S. might have received had he returned to school, as
was at issue in R.E. 694 F.3d at 186–87 (“For example, if an IEP states that a specific teaching
method will be used to instruct a student, the school district may introduce testimony at the
subsequent hearing to describe that teaching method and explain why it was appropriate for the
student. The district, however, may not introduce testimony that a different teaching method, not
mentioned in the IEP, would have been used.”). Rather, it guaranteed the Parents in writing that
their son would receive an education that the hearing officer found to be appropriate, through a
methodology the Parents supported. Because the Parents do not challenge the adequacy of that
education on appeal, they cannot claim that they were entitled to reimbursement for enrolling I.S.
in a private school because the IEP that existed prior to the hearing officer’s decision was
26
inadequate. Therefore, the Court finds that the School’s violation of the IDEA ceased as of the
deadline for it to implement the hearing officer’s order, May 4, 2011, and that I.S. is not entitled
to compensation past that point.
B.
The Appropriate Remedy
Having determined that the School failed to provide I.S. with a free appropriate public
education for two of these time periods, the Court must decide what relief to award. Upon
finding that a school violated the IDEA, the Court may “grant such relief as the court determines
is appropriate.” 20 U.S.C. § 1415(i)(2)(C). “Under this provision, ‘equitable considerations are
relevant in fashioning relief,’ and the court enjoys ‘broad discretion’ in so doing.” Florence, 510
U.S. at 16 (quoting Burlington, 471 U.S. at 369, 374). The Seventh Circuit has not directly
addressed how to craft compensatory awards for violations of the IDEA, but the generally
accepted standard is that the compensation should “provide the educational benefits that likely
would have accrued from special education services the school district should have supplied in
the first place.” Reid, 401 F.3d at 523–24. In other words, “[c]ompensatory awards should place
children in the position they would have been in but for the violation of the Act.” Draper, 518
F.3d at 1289.
Here, the hearing officer found that the School denied I.S. a free appropriate public
education in the 4th grade and she made a determination as to the appropriate compensation for
that period, so the first question is whether that compensation was indeed appropriate. The
hearing officer concluded that the 5th grade IEP already contained enough instruction to both
provide I.S. with a free appropriate public education and compensate him for his inadequate 4th
grade education, so she awarded no compensation beyond what was already included in the IEP.
The Parents contest this conclusion, arguing that this instruction cannot be considered
27
compensatory if I.S. would have received it regardless of whether he prevailed on any of his
claims. The Court agrees.
Compensatory awards must go beyond the education a student would otherwise receive
so as to make up for the deficient education the student had to previously endure, so it is difficult
to consider an award compensatory where it gives a student nothing they would not have
received in the first place. Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 525 (D.C. Cir.
2005) (“[W]hereas ordinary IEPs need only provide ‘some benefit,’ compensatory awards must
do more—they must compensate”). I.S. would have received 150 minutes of direct reading
instruction even if the hearing officer completely rejected his claims and found that the School
never denied him a free appropriate public education. The only change the hearing officer made
to the IEP was to substitute Read 180 with Orton-Gillingham, but she did not characterize that as
compensatory.7 To the contrary, based on her findings as to those methodologies, that
substitution was necessary for the IEP to provide I.S. with the requisite educational benefit.
Compensation is meant to place a student in the position they would have been in but for the
violation of the Act, and but for the violation of the Act as to the 4th grade, I.S. would have
received this exact same education in the 5th grade and would have received an adequate
education during the 4th grade. Thus, unless the hearing officer found that I.S. suffered no harm
from the violation during the 4th grade (which she did not, and which would be inconsistent with
7
She also ordered, without discussion, that this instruction continue through I.S.’s 6th grade. (R.
176). However, the fact that she did not reference the duration of this instruction in any of her
findings or conclusions as to the appropriateness of this compensation further underscores the
lack of a reviewable basis for this conclusion, as discussed below. Further, there is no reason to
believe the School would not have proposed at least 150 minutes per day of direct instruction in
the next IEP anyway, (the IEP it proposed for I.S.’s 8th grade offered 175 minutes of direct
instruction daily [DE 97-1 p.42]), in which case the hearing officer’s order that the IEP extend
through the 6th grade would confer no additional benefit.
28
her other findings), this cannot have put I.S. in the place he would have been absent the
violation.
There could be situations in which an IEP may adequately incorporate compensation,
such as where a school concedes that it failed to provide a free appropriate public education, so it
adds compensatory education into an IEP as a conciliatory measure in the hope of avoiding a due
process hearing. Here, however, the School did not—and does not—concede that it ever denied
I.S. a free appropriate public education. Whatever the reason the School chose to offer 150
minutes of direct reading instruction when its expert recommended at least 90 to 120 minutes,
that reason certainly was not that it had denied I.S. a free appropriate public education in the 4th
grade. There are some hints in the record that the School provided this “additional” time because
the Parents began taking I.S. out of school in the afternoon at the beginning of 5th grade,
meaning he was not receiving reading instruction from the School. However, the 5th grade IEP
was proposed only about six weeks into the school year, and it is highly unlikely that the amount
of time the School added to the IEP to compensate I.S. for six weeks of no reading instruction (at
least not from the School) could be enough to compensate I.S. for an entire year of instruction
that was not only inappropriate, but likely counterproductive as well. It is much more likely that
the School did not add any additional time to compensate for past violations, but intended the
added time to be part of I.S.’s baseline education, in order to avoid a finding that the IEP itself
failed to provide a free appropriate public education.
In addition, the hearing officer’s cursory treatment of this issue makes it difficult to
assess the validity of her conclusions. Though she found that the direct instructional time was
sufficient “for both ongoing instruction and compensatory education,” it is unclear how much of
that time she considered to be for ongoing versus compensatory education. The hearing officer
29
found that the 150 minutes of direct reading instruction was “in excess of the 90-120 minutes
proposed by reading specialist Rachelle Wright,” but she never expressly adopted Ms. Wright’s
opinion or found that only 90 or 120 minutes of direct reading instruction would be sufficient.
(R. 165 ¶ F 2.1; 173 ¶ C 2.1). Further, Ms. Wright recommended “at least” 90-120 minutes,
which is consistent with the 150 minutes proposed by the School, and also testified that I.S.
“needed [an] additional 30 minutes” beyond the Read 180 program (which takes 90 minutes
daily) because Read 180 does not adequately address phonics and phonemic awareness. (R. 901,
2343–44 (emphases added)). Thus, the IEP encompassed at most 30 minutes of compensatory
instruction each day, but may have provided even less. By not expressly indicating what
constituted I.S.’s baseline education versus his compensatory education, the hearing officer did
not provide enough information for the Court to meaningfully review this conclusion.8
Therefore, the Court finds that the compensation awarded by the hearing officer was not
appropriate, and vacates this aspect of the hearing officer’s decision.
That leaves the Court to fashion appropriate relief for these periods de novo. The first
issue to address in that regard is what form that relief should take. Notably, the parties only
suggest one form of compensation—reimbursement for I.S.’s attendance at Hyde Park Day
School. While the School contests the appropriateness of this placement, it does not suggest any
alternatives, so as long as the Court determines that this placement is appropriate, it need not
determine if any other form of relief would be more appropriate. See Bd. of Educ. of
8
It is also difficult to square the hearing officer’s conclusion with the finding she made in
assessing the adequacy of the baseline education provided by the 5th grade IEP, that: “insofar as
time is concerned,” the 150 minutes of direct reading instruction “reasonably balances the
student[’]s need for direct instruction and his need to participate in the general education
curriculum.” (R. 165 ¶ F 2.1). If the 150 minutes of direct reading instruction strikes a reasonable
balance before considering compensation, how can that same balance be appropriate when
adding in the need to compensate for a whole year without meaningful direct reading instruction?
30
Murphysboro Cmty. Unit Sch. Dist. No. 186 v. Illinois State Bd. of Educ., 41 F.3d 1162, 1168
(7th Cir. 1994) (“Since the court was presented with only one option, it was not required to
locate another school that would satisfy the least restrictive alternative requirement based on the
entire pool of schools available, but rather was required simply to determine whether that one
available choice would provide an appropriate education for [the student].”).
The Court notes at the outset that reimbursement for I.S.’s attendance at a private school
is a permissible form of compensation even though I.S. is not entitled to reimbursement under
the Burlington framework. Burlington, 471 U.S. at 370 (holding that parents can be entitled to
reimbursement of private school tuition where “a private placement desired by the parents was
proper under the Act and . . . an IEP calling for placement in a public school was inappropriate”).
Though the IEP in effect at the time I.S. left the public school was adequate, so Burlington does
not apply, the School failed to provide I.S. with a free appropriate public education for the
greater part of two years, so he is still entitled to compensation for those periods. This
compensation can include “[r]elief in the form of reimbursement for out-of-pocket educational
expenses” even when the Burlington factors do not apply. Brown v. Bartholomew Consol. Sch.
Corp., 442 F.3d 588, 597 (7th Cir. 2006); Bd. of Educ. of LaGrange Sch. Dist. No. 105 v. Illinois
State Bd. of Educ., 184 F.3d 912, 917–18 (7th Cir. 1999) (holding that, as an alternative to
reimbursement under the Burlington framework, “reimbursement to parents for the cost of
private school is an equitable remedy which may be imposed in the discretion of the district
court”). Such an award is also permissible even where the public school is capable of providing
an appropriate education going forward. Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275,
1284–86 (11th Cir. 2008) (holding that “the Act does not foreclose a compensatory award of
31
placement in a private school” even if the public school “could prospectively provide an
appropriate education program”).
Since reimbursement is a permissible form of compensation in these circumstances, the
question is whether Hyde Park Day School in particular is an appropriate placement for I.S. In
arguing that it is not, the School primarily asserts that it is inappropriate because it is not the least
restrictive environment. As the School correctly notes, the IDEA “give[s] strong preference to
mainstreaming students with disabilities,” meaning educating them with their non-disabled peers
to the maximum extent possible. Monticello Sch. Dist. No. 25 v. George L. ex rel. Brock L., 102
F.3d 895, 906 (7th Cir. 1996). However, the School overstates the importance of this
consideration in the context of compensatory education or reimbursement. The least restrictive
environment requirement “was developed in response to school districts which were reluctant to
integrate mentally impaired children and their non-disabled peers.” Murphysboro, 41 F.3d at
1168. This requirement primarily acts as a limit on the schools, meaning that a school cannot
propose an IEP that places a student in an environment that is more restrictive than necessary.
Id.; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836–37 (2d Cir. 2014) (noting that
the least restrictive environment requirement “was aimed at preventing schools from segregating
disabled students from the general student body,” and was not meant “to restrict parental options
when the public schools fail to comply with the requirements of the IDEA”).
As with a number of other requirements with which schools must comply in proposing
IEPs, the least restrictive environment requirement does not apply with equal force to parents’
decisions to place their children in private schools when the public schools have violated the
IDEA. Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755, 770 (6th Cir. 2001)
(“[P]arents who have not been treated properly under the IDEA and who unilaterally withdraw
32
their child from public school will commonly place their child in a private school that specializes
in teaching children with disabilities. We would vitiate the right of parental placement
recognized in Burlington and Florence County were we to find that such private school
placements automatically violated the IDEA’s mainstreaming requirement.”); R.E., 694 F.3d at
187 n.3 (“[R]eview of the private placement” where a school has violated the IDEA “is more
informal than review of the original IEP: a private placement need not meet the IDEA
requirement for a [free appropriate public education] and is not subject to the same
mainstreaming requirement as a public placement.”); see Florence, 510 U.S. at 13–15 (holding
that a private school need not comply with certain standards that would apply to a public school
in order to qualify for reimbursement); Murphysboro, 41 F.3d at 1168 (holding that the least
restrictive environment requirement “is applicable only if the IEP meets IDEA minimums”).
The private school need only provide an “appropriate” or “proper” education, and while
the restrictiveness of the private school’s environment may factor into that inquiry, it is not a
standalone requirement in the compensation or reimbursement context. See Forest Grove Sch.
Dist. v. T.A., 557 U.S. 230, 247, (2009) (stating that a private school need only be “appropriate”
to qualify for reimbursement); Scarsdale, 744 F.3d at 836–37 (holding that a student’s least
restrictive environment “remains a consideration that bears upon a parent’s choice of an
alternative placement and may be considered by the hearing officer in determining whether the
placement was appropriate,” but that “parents . . . may not be subject to the same
mainstreaming . . . requirements as a school board”).
Therefore, the Court must determine as a more general matter whether the Hyde Park
Day School was an appropriate placement for I.S., and the Parents have amply discharged their
burden of establishing that it was. The Hyde Park Day School specializes in teaching students
33
such as I.S. with average to above-average intelligence but with moderate to severe learning
disabilities, and the majority of its curriculum is designed to remediate language-based learning
disabilities. It provides reading instruction through the Orton-Gillingham methodology, and the
same teachers who teach reading also teach the other subjects, meaning they can implement and
reinforce the reading instruction throughout all of the content areas. Further, with no more than
five students to a teacher at any point, the students receive direct and personalized instruction for
the whole day. These services are consistent with the recommendations of Ms. Grisko and Ms.
Wright, who recommended that I.S. receive intensive phonics instruction and that he be
immersed in a program designed to remediate his difficulties in reading and writing, and with the
hearing officer’s findings. (R. 497–99, 533–34). In addition, the school provides a social work
curriculum that focuses on the “intangibles of having a learning disability,” such as learning to
be a self-advocate, to use environmental resources, to set goals, and to persevere when tasks are
difficult. (R. 1971–72). The school also has one tablet computer for every student, and utilizes a
range of technological resources. Finally, the school has a proven track record of educating
students with disabilities and helping them transition back to their home schools.
These factors demonstrate that Hyde Park Day School constitutes an “appropriate”
private placement for I.S. The school’s entire mission is to educate students like I.S., and it is
well-equipped to do so. In addition, the low student-to-teacher ratios, the integration of reading
instruction and reinforcement throughout the school day, and the social work curriculum tailored
to students with language disabilities, are among the services that Hyde Park Day School
provides that the School either cannot or does not, at least not to the same extent, which further
justifies a private placement. The Court acknowledges that Hyde Park Day School is a rather
restrictive environment, as I.S. does not receive any instruction with his non-disabled peers.
34
However, it is not excessively so, as I.S. still receives appropriate instruction across the content
areas in addition to instruction to remediate his learning disability, and the instruction and
resources he receives are aimed at eventually reintegrating him into his home school
environment. I.S. is also able to participate in after-school sports at his home school.
The School finally argues that Hyde Park Day School is inappropriate because I.S. has
not made meaningful progress there. The parties have submitted competing expert reports on this
issue, reaching opposite conclusions as to whether I.S. is making progress and as to whether
Hyde Park Day School is appropriate for him. The Court need not enter this fray, however,
because even the School’s expert declined to attribute her findings as to I.S.’s progress to the
appropriateness of his placement—while she criticized Hyde Park Day School in some respects,
she also noted that I.S.’s limited progress over this time “[wa]s due to the significance of his
learning disability and not to lack of appropriate interventions,” and she acknowledged that Hyde
Park Day School provides I.S. with the sorts of accommodations she recommended, as well. (DE
97-1 p. 14, DE 100-1 p. 3). Thus, even if the Court were to accept this expert’s opinion that I.S.
had not made meaningful progress, that would not lead to the conclusion that Hyde Park Day
School is not an appropriate placement for I.S. Accordingly, based on the nature and extent of
services offered by Hyde Park Day School, the court finds that it is an appropriate placement for
I.S.
The last question, then, is how much of I.S.’s stay at Hyde Park Day School should be
reimbursed as compensation for the School’s IEDA violations. The Parents argue that the Court
should award day-for-day compensation and order the School to reimburse them for I.S.’s tuition
at Hyde Park Day School for as many years as he was denied an appropriate education by the
School. Though the Third Circuit has arguably embraced this type of mechanical approach, it is
35
in the minority in doing so. Compare Mary T. v. Sch. Dist. of Phila., 575 F.3d 235, 249 (3d
Cir.2009) (stating that a “disabled child is entitled to compensatory education for a period equal
to the period of deprivation”), with Reid, 401 F.3d at 523–24 (disapproving of a “cookie-cutter
approach”), and Petrina W. v. City of Chicago Public Sch. Dist. 299, No. 08-cv-3183, 2009 WL
5066651, at *4 (N.D. Ill. Dec. 10, 2009) (collecting cases to the same effect). The majority of
courts have adopted a more nuanced approach, holding that compensatory awards must “rely on
individualized assessments” to provide the educational benefits that likely would have accrued to
that particular student from the special education services the school district should have
supplied in the first place. Reid, 401 F.3d at 523–24. While the Seventh Circuit has not directly
addressed this issue, two district courts in this circuit have adopted the qualitative, individualized
approach espoused by Reid. T.G. ex rel. T.G. v. Midland Sch. Dist. 7, 848 F. Supp. 2d 902, 924
(C.D. Ill. 2012); Petrina W., 2009 WL 5066651, at *4. The Court agrees that this qualitative
approach is more consistent with the IDEA’s directive to individually tailor a student’s education
to meet their unique needs, and with the equitable standards that govern compensatory awards,
so the Court adopts that standard.
Therefore, I.S. is entitled to an amount of compensation that is reasonably calculated to
provide the educational benefits that likely would have accrued from the special education
services the School should have provided in the first place. However, the current record does not
permit the Court to adequately conduct this inquiry. As to I.S.’s 4th grade, the hearing officer
found that I.S. was “without intensive, systematic phonics instruction for one school year,” and
that his progress that year was, “at best, trivial.” (R. 171 ¶ F 9.1, 173 ¶ C 1.2). However, it is not
clear from the record what degree of progress would have been achieved during that time
through adequate instruction. It is also even less clear how much additional instruction I.S.
36
would have needed to make up that difference, see Reid, 401 F.3d at 524 (noting that while
“[s]ome students may require only short, intensive compensatory programs targeted at specific
problems or deficiencies[,] [o]thers may need extended programs, perhaps even exceeding hourfor-hour replacement of time spent without [a free appropriate public education]”), or how the
value of that additional instruction translates to reimbursement of his cost to attend Hyde Park
Day School (which is also absent from the record). As to I.S.’s 5th grade, the hearing officer
made no findings in this regard, as she found that the proposed IEP was appropriate. However,
this Court found to the contrary, and despite the instruction he received at home during this time,
I.S. likely suffered some deficit during this year compared to the instruction he should have
received through the School.9 The extent of that deficit is unclear, though, as is the amount of
additional services I.S. would require to make up that difference.
Accordingly, the Court believes that the most appropriate remedy is to remand this matter
to the Indiana Department of Education to determine, in light of this discussion, the amount of
compensation that I.S. should receive. See Reid, 401 F.3d at 526 (noting that “in light of the
absence of pertinent findings in the administrative record . . . the district court may determine
that the ‘appropriate’ relief is a remand to the hearing officer for further proceedings”); Petrina
W., 2009 WL 5066651, at *5 (remanding to the hearing officer to determine the appropriate
amount of compensation). Although the Court could direct the parties to supplement the record
and decide the matter itself, an independent hearing officer will have greater relative expertise in
this area, and it is appropriate to leave these issues to the administrative agency to decide in the
first instance. On remand, the hearing officer should determine the amount of compensation
9
Neither party has suggested that the compensation for this period should consist of
reimbursement for the Parents’ home-schooling costs, so the Court does not consider that
possibility.
37
required to put I.S. in the position he would have been in had he received a free appropriate
public education during the time periods at issue, meaning from the time the School began using
the Read 180 program in I.S.’s 4th grade, to the deadline for the School to comply with the
hearing officer’s order. That compensation should presumptively be in the form of
reimbursement for an equivalent amount of services from Hyde Park Day School.
IV. CONCLUSION
The Court GRANTS both parties’ motions for summary judgment in part, and DENIES
both motions in part. The Court REMANDS this matter to the Indiana Department of Education
to determine the amount of reimbursement I.S. should receive for his attendance at Hyde Park
Day School, as compensation for the School’s failure to provide a free appropriate public
education from the time it began using the Read 180 program in I.S.’s 4th grade year to the
deadline for the School to comply with the hearing officer’s order in the spring of his 5th grade
year. The Clerk of the Court is DIRECTED to enter judgment in favor of the Plaintiff.
SO ORDERED.
ENTERED: September 10, 2014
/s/ JON E. DEGUILIO
Judge
United States District Court
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