M.W. et al v. Board of Education of Fayette County, Kentucky et al

Filing 23

MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1. Dft Board of Education's 17 MOTION for Judgment on the administrative record is GRANTED; 2. The Hearing Officer's decision is AFFIRMED. Signed by Judge Danny C. Reeves on January 14, 2015. (MWZ) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
Q.W., by his Next Friends and Parents,
M.W. and K.T.W.,

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Plaintiff,
V.
BOARD OF EDUCATION OF FAYETTE
COUNTY, KENTUCKY, et al.,
Defendants.

Civil Action No. 5: 14-126-DCR

MEMORANDUM OPINION
AND ORDER

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This matter is pending for consideration of Defendant Board of Education of Fayette
County, Kentucky’s (“Board”) motion for judgment. [Record No. 17] Plaintiffs M.W. and
K.T.W. bring this action on behalf of their minor child, Q.W., pursuant to the Individuals
with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. They seek reversal of
the Exceptional Children Appeals Board’s (“ECAB”) decision that Q.W. is no longer eligible
for specialized educational programming. [Record No. 1] The Board contends that the
ECAB’s Decision and Order should be upheld. For the reasons discussed below, the Board’s
motion for judgment will be granted.
I.
Q.W. has been diagnosed with autism. He was enrolled as a student in the Burbank
United School District in California until 2009. [Record No. 20-2, p. 1] Because Q.W. was
identified as having a disability under the IDEA, he qualified to receive special education

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services from the public school district. An individualized education program team,1 made
up of the child’s teachers and parents, met periodically to draft an individualized education
plan (“IEP”) with Q.W. in mind. 20 U.S.C. § 1414(d)(1)(A) and (B). In California, Q.W.’s
2009 IEP included speech and language therapy, occupational therapy, adaptive physical
education, and behavioral therapy. [Record No. 20-2, p. 1]
In August, 2009, Q.W.’s family relocated to Lexington, Kentucky. [Record No. 20-2,
p. 2] Q.W.’s California IEP was adopted by the Kentucky ARC during the child’s first
semester in the Fayette County School District. Under the plan, Q.W. received the following
services weekly: two hours of speech therapy, one and a half hours of occupational therapy,
and five hours of behavioral therapy. In addition, Q.W.’s parents supplemented the IEP with
four hours of various private therapies per week.

[ECAB Decision and Order at 1-2]

However, due to reports of steady progress and academic achievement, by November 2011,
the ARC determined that Q.W. was no longer eligible to receive special education services
under the IDEA.2 [Record No. 17-1, p. 4] The child’s parents raised their objections with an
administrative Hearing Officer. [Record No. 20-2, p. 4] A hearing on Q.W.’s eligibility was
convened over a series of six dates during the spring of 2013 before Hearing Officer Mike
Wilson. [Id.] During the hearings, Hearing Officer Wilson assessed the credibility of
numerous witnesses who were cross-examined by counsel for both parties. On August 12,

1
In Kentucky, this team is referred to as an “Admissions and Release Committee” (“ARC”). 707
KAR 1:002, Section 1(1).
2

The ARC team reviewing Q.W.’s eligibility drew upon a variety of sources, including inter alia a
statement of parent concerns, Q.W.’s occupational therapy evaluation, a cognitive assessment, diagnostic
achievement tests, communication evaluations, a social competence evaluation, and reports from Q.W.’s
teachers. [ARC Conference Summary at 7] Over Q.W.’s parents’ objections, the ARC team found that
those reports failed to demonstrate a negative effect on the child’s performance at school. [Record No.
20-2, p. 3] 

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2013, Hearing Officer Wilson issued an Opinion affirming the Board’s determination of
ineligibility. [Hr’g Officer’s Decision and Order] Although it is undisputed that Q.W. has
been diagnosed with autism, the Hearing Officer nonetheless found that the child was not
eligible for special education services, explaining that the condition did not appear to
adversely affect Q.W.’s educational performance. [Id. at p. 52]
The plaintiffs appealed the Hearing Officer’s decision to the Kentucky Department of
Education’s ECAB. On February 28, 2014, the ECAB affirmed, finding that, under the
IDEA, “educational performance” does not include the student’s performance outside the
school setting. [ECAB Decision and Order at 17] Notwithstanding the plaintiffs’ concerns
about their son’s socialization skills, the ECAB found Q.W. ineligible because of his
successful academic performance. The parents now bring the administrative decision for
review before this Court. See 20 U.S.C. §§ 1415(b)(2), 1415(c).
II.
The IDEA requires local school districts receiving federal funding to assure “all
children with disabilities the right to a free and appropriate public education.” 20 U.S.C. §
1412(a). Further, the IDEA requires that each child be educated in the “least restrictive
environment” possible. § 1412(a)(5)(A). A school board must “conduct a full and individual
initial evaluation” before providing special education services to a child.

20 U.S.C. §

1414(a)(1)(A). The evaluation should be designed to determine whether the child has a
“disability” as defined by the IDEA and the child’s educational needs, 20 U.S.C. §
1414(a)(1)(C)(i), and a re-evaluation must be conducted “if the local educational agency
determines that the educational or related services needs, including improved academic

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achievement and functional performance, of the child warrant a reevaluation.” 20 U.S.C. §
1414(a)(2)(A).
Each evaluation and reevaluation must use “a variety of assessment tools and
strategies” in gathering relevant “functional, developmental, and academic information,
including information provided by the parent,” that may assist in determining whether the
child has a disability. 20 U.S.C. § 1414(b)(2)(A). The IDEA emphasizes the importance of
reviewing “evaluations and information provided by the parents of the child,” “current
classroom-based, local, or State assessments,” “classroom-based observations,” and
“observations by teachers and related services providers.” 20 U.S.C. § 1414(c)(1).
In an action under the IDEA, the district court “(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)(B). See Deal v. Hamilton County
Bd. Of Educ., 392 F.3d 840, 849 (6th Cir. 2004). In reaching its decision, the Court must
give due weight to state administrative proceedings, depending on whether the finding is
based on educational expertise. Doe v. Bd. Of Education of Tullahoma City Schools, 9 F.3d
455, 458 (6th Cir. 1993). This process amounts to a “modified de novo review.” N.L. v.
Knox County Sch., 315 F.3d 688, 692 (6th Cir. 2003).
District courts afford less weight “to an agency’s determinations on matters for which
educational expertise is not relevant because a federal court is just as well suited to evaluate
the situation.” McLaughlin v. Holt Pub. Schs. Bd., 320 F.3d 663, 669 (6th Cir. 2003).
However, “more weight [. . .] is due to an agency’s determinations on matters for which
educational expertise is relevant.” Id.

Under this standard, “a district court is required to
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make findings of fact based on a preponderance of the evidence contained in the complete
record.” Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755, 764 (6th Cir. 2001).
The party seeking relief has the burden of proof when challenging an administrative
decision. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 51 (2005). As the Supreme Court
has cautioned,
[i]n assuring that the requirements of the [IDEA] have been met, courts must
be careful to avoid imposing their view of preferable educational methods
upon the States. The primary responsibility for formulating the education to
be accorded a handicapped child, and 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.
Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982).
III.
The plaintiffs’ Complaint alleges that the Hearing Officer and the ECAB failed to
address the appropriate nature and extent of a school district’s requirements to provide a
child with a free and appropriate education and the criteria applied to the determination of
eligibility under the IDEA. [Record No. 1] Additionally, the plaintiff alleges that the ECAB
arbitrarily concluded that Q.W. is no longer eligible for special education and related
services. [Id.]
The IDEA was enacted “to ensure that all children with disabilities have available to
them a free appropriate public education that emphasizes special education and related
services designed to meet their unique needs and prepare them for further education,
employment, and independent living.”

20 U.S.C. § 1400(d)(1)(A).

The Act defines

“children with disabilities” as children having one of the specifically delineated conditions,
including autism, “who, by reason thereof, need[] special education and related services.” 20
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U.S.C. § 1401(3)(A). The federal regulations promulgated under the statute further define
autism as “a developmental disability significantly affecting verbal and nonverbal
communication and social interaction, generally evident before age three, that adversely
affects a child’s educational performance.” 34 C.F.R. § 300.8(c)(1)(i) (emphasis added).
Thus, in determining IDEA eligibility, the Court must examine whether Q.W.’s autism has
an adverse effect on educational performance and whether, as a result, Q.W. needs “special
education and related services.”3
Neither the IDEA nor the federal regulations defines the term “adverse effect on
educational performance.”

Thus, the Court turns to State regulations pertaining to the

education of children with disabilities.

Kentucky’s Administrative Regulations define

“adverse effect” to mean that “the progress of the child is impeded by the disability to the
extent that the educational performance is significantly and consistently below the level of
similar age peers.” 707 KAR 1:002(1)(2).
Further, neither the Sixth Circuit nor Kentucky has defined “educational
performance.” The parties each advocate for a different interpretation of the term. Q.W.’s
parents assert that the Hearing Officer and ECAB erroneously limited the term “educational
performance” to purely academic performance. Instead, the plaintiffs suggest that the term
extends beyond academics to include the child’s physical, emotional, and social needs. This
expansive definition has been adopted in Maine. See Mr. I. ex rel. L.I. v. Maine School
Admin. Dist. No. 55, 480 F.3d 1, 12-13 (1st Cir. 2007) (“In light of Maine’s broad notion of
‘educational performance’ . . . we see no basis for restricting that standard to . . .

3
Neither party questions that the child has been diagnosed with autism. Only the effects of the
diagnosis on his educational performance are at issue.

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performance that is graded”). On the other hand, the Board advances an interpretation that
“educational performance” means academic performance only, as New York courts have
held. See A.J. v. Board of Education, 679 F. Supp. 2d 299, 308 (E.D. N.Y., 2010).
This Court notes that, absent a statutory directive to the contrary, the term
“educational performance” should be given its ordinary meaning. See Engine Mfrs. Ass’n v.
S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252 (2004) (“Statutory construction must
begin with the language employed by Congress and the assumption that the ordinary
meaning of that language accurately expresses the legislative purpose.”). And taken at facevalue, the term “educational performance” suggests school-based evaluation.

This

interpretation finds support in the IDEA’s emphasis on classroom curricula and observation.
See 20 U.S.C. § 1414(c)(1).

Thus, as the Hearing Officer concluded, “[e]ducational

performance does not include the student’s performance outside the school setting.” [Hr’g
Officer’s Decision and Order at 49]
IV.
It appears that Hearing Officer Wilson and the ECAB took great care to understand
the nature and circumstances of Q.W.’s diagnosis. They reviewed a plethora of testimony in
making their determinations, hearing from, inter alia: four psychologists, the Director of
Special Education, the Related Services Advisor, Q.W.’s teachers, the school system
diagnostician, a professor of educational school and counseling psychology, a biostatistics
professor, two speech therapists, a speech pathologist, two of Q.W.’s nannies, four
occupational therapists, the school guidance specialist, and Q.W.’s mother. The parties also
produced a myriad of evaluations, examinations, and reports. Those documents and the
witness testimony are part of the record that this Court has considered.
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An integrated report, prepared in November 2011 in anticipation of Q.W.’s ARC
team meeting, collected data indicating that Q.W. functions “at levels well above that of his
peers in cognitive and academic areas.” [Fayette Cnty. Pub. Sch. Report at 22] The report
also suggests that Q.W.’s behavior in school was at “levels similar to his peers in the general
education environment.” [Id.] While the evaluators – Q.W.’s teachers and school therapists
– concluded that Q.W. continues to show socio-emotional development consistent with highfunctioning autism, they found no adverse effect at school. Kathy Dykes, the director of
special education for Fayette County, testified that Q.W.’s eligibility evaluations (conducted
both on behalf of Fayette County and independently) determined that a categorical disability
of autism was not met.

[Admin. Hr’g Tr. at 1254]

Dykes found no indication of a

significant impact on Q.W.’s performance when compared to similar-aged peers. [Id.]
At home, according to his mother, Q.W. needs a substantial amount of prompting to
complete homework and daily tasks and struggles to maintain focus.

Q.W. does well

academically, but his parents worry that he has difficulty socializing with his peers. As a
result of social anxiety, Q.W. often chews on his fingers and toes to the point of bleeding.
[Admin. Hr’g Tr. at 322]
The private therapists, who see Q.W. in a clinical setting, testified that the child does
not perform well socially. [Reed Dep. 45:3-8] Although Q.W. has memorized “scripts” to
deal with common social situations, he may lack the ability to solve social problems on his
own. [Id. 24:24-25-15] Q.W.’s speech therapist indicated that the child may have difficulty
understanding the emotions and feelings of other people.

[Admin. Hr’g Tr. at 453]

However, the plaintiffs’ private therapists interacted with the child only outside of the school
setting. For example, the child’s occupational therapist, Dr. Stamper, never saw him in the
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classroom. [Admin. Hr’g Tr. at 389] Q.W.’s private speech therapist, Trisha Bernard, had
never met Q.W.’s teacher or observed him in the classroom. [Admin. Hr’g Tr. at 498] In
fact, the plaintiffs elicited testimony from a therapist, Dr. O’Brien, who had never met Q.W.
[Admin. Hr’g Tr. at 244]
At school, Q.W. has not shown significant trouble. Kara Yates, Q.W.’s second-grade
teacher, testified that Q.W. was academically gifted, “off the charts,” and “very high
performing student.” [Admin. Hr’g Tr. at 806] Additionally, Q.W. behaved “just like any
other normal student” in the classroom. Yates indicated that the student’s behavior at recess
was typical and that he did not exhibit stress at school. [Admin. Hr’g Tr. at 811] The record
suggests that any nail-biting at school is uncommon and does not impact Q.W.’s education.
[Admin. Hr’g Tr. at 817-819]
Although Q.W.’s parents reported social weaknesses, his teachers found that Q.W.
was socially in the high-average range, observing no such deficiencies. Reportedly, Q.W.
“has friends at school and gets along well with peers and adults at school,” “participates in
both structured and unstructured activities,” “participates verbally in class,” “talks about
shared interests with peers,” “show the same level of emotion as peers,” “can share and take
turns without being reminded,” “can play games and show good sportsmanship,” “cooperates
and is respectful,” and “transitions well from one activity to another.” [Admin. Hr’g Tr. at
698]

The school occupational therapist confirmed that Q.W. “has friends. He gets along

well. He stays in his seat. He completes his work. He’s on task. He interacts well.”
[Admin. Hr’g Tr. at 779] In peer groups and in the lunchroom, school personnel have not
witnessed any negative social responses. [Admin. Hr’g Tr. at 734] In fact, the child is not
only receiving good grades, but his teachers have testified that he “was a joy to have” and “a
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really great student,” adding that they have not encountered ongoing behavioral problems
during the school day. [Admin. Hr’g Tr. at 806, 1077]
While there is evidence of a small number of bullying incidents, Yates testified that
the difficulty was the result of another student and that Q.W. was not targeted more than his
classmates in these episodes. Even after learning of Q.W.’s parents’ concerns, Yates never
observed any persistent deficits in behavior or sensory regulation impacting the student’s
ability to interact appropriately with his peers. [Admin. Hr’g Tr. at 829] Q.W.’s third-grade
teacher added that Q.W. “is very well liked in the classroom. He has lots of friends. He
enjoys his friends. He just seems like another kid in my class.” [Admin. Hr’g Tr. at 1065]
Dr. Myra Beth Bundy, a professor of psychology with a focus on autism and one of the only
private evaluators to observe the student in school, testified that Q.W. “seemed kind to and
interested in peers and also showed some very nice basic social skills such as socializing
with other children in an informal and age-appropriate way.” [Admin. Hr’g Tr. at 876]
Academically, according to the Fayette County Schools diagnostician, Sandra
Coleman, Q.W. is “functioning above his peers across the board.” [Admin. Hr’g Tr. at 714]
Coleman looked at Q.W.’s grades, teacher reports, parent reports, and evaluations of his
social, communicative, and adaptive skills.

She considered his intellectual potential,

standardized age scores, standardized grade scores, and work samples from class. [Admin.
Hr’g Tr. at 715]
This evidence reveals a stark divide between the expert testimony of the private
evaluators and the classroom observations of Q.W.’s teachers. Q.W. seems to be able to hold
his performance to a level appropriate with his peers in academics, adaptive functioning, and
social skills, as reported by teachers and therapists who have observed him in the school
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environment. In contrast, his parents and private therapists report deeper concerns about his
adaptive and social behaviors in extra-curricular environments. Attempting to explain this
disparity, Dr. Bundy indicated that Q.W.’s social behaviors may be context-dependent,
suggesting that parents tend to report a high number of clinically elevated problem behavior
scores in comparison to teachers.

[Psychological Consultation, Bundy (citing Nicpon,

Doobay, & Assouline, 2010)]. Similarly, Bernard agreed that the structured environment of
the classroom may account for Q.W.’s drastically different behavior across varying social
settings, [Admin. Hr’g Tr. at 498] and Coleman acknowledged that children commonly “act
differently at home than they do at school,” particularly because “there are different
requirements at school than at home.” [Admin Hr’g Tr. at 695]
The Board has adduced that Q.W. experienced no educational problems in the school
setting, and the plaintiffs have not presented sufficient evidence to the contrary.

The

preponderance of the evidence – the standard articulated in § 1415(i)(2)(B) of the IDEA –
favors the Board. While “educational performance” may be understood to extend beyond the
four corners of a report card to include a student’s classroom experience, it does not include
the child’s behavior at home. Social and behavioral deficits will be considered only insofar
as they interfere with a student’s education. Here, they do not.
Q.W. is not eligible for special education because his educational performance is not
significantly below that of his same age peers. In fact, the child has excelled academically,
and the record reflects Q.W.’s mastery of the curriculum being taught. He is able to attend
school regularly and keep up (behaviorally and cognitively) with classroom activities.
Although the record indicates that Q.W. continues to exhibit characteristics on the autism

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spectrum, his intellectual and achievement scores, teacher reports, and scholastic
performance suggest that he is successfully acquiring academic and adaptive skills.
V.
While it may be that Q.W.’s emotional problems are hindering his learning, his
parents have not presented any concrete evidence that supports that conclusion.

The

plaintiffs have failed to demonstrate, by a preponderance of the evidence, that Q.W.’s
educational performance was adversely affected by his autism.

The ECAB correctly

determined that Q.W. was no longer eligible to receive special education and related services
pursuant to the IDEA. Accordingly, it is hereby
ORDERED as follows:
1.

Defendant Board of Education’s motion for judgment on the administrative

record [Record No. 17] is GRANTED.
2.

The Hearing Officer’s decision is AFFIRMED.

This 14th day of January, 2015.

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