Somberg et al v. Utica Community Schools

Filing 90

OPINION AND ORDER AWARDING COMPENSATORY EDUCATION, DENYING AS MOOT 43 MOTION to Compel and 49 MOTION in Limine filed by Jeannine L. Somberg, Dylan S. Somberg; DENYING 83 MOTION to Supplement Record and Closing Argument filed by Utica Community Schools; GRANTING 87 MOTION Enter Exhibits filed by Jeannine L. Somberg, Dylan S. Somberg; DENYING AS MOOT 37 MOTION to Compel ADR filed by Utica Community Schools; GRANTING 22 MOTION for Judgment filed by Jeannine L. Somberg, Dylan S. Somberg; DENYING AS MOOT 38 MOTION Continuance of Trial Date , 67 MOTION concerning Joint Proposed Findings of Fact and Conclusions of Law and Dates for Evide ntiary Hearing and 59 MOTION in Limine filed by Utica Community Schools, and SETTING A STAUS CONFERENCE ( for 3/9/2017 03:30 PM before District Judge Robert H. Cleland) Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
_________________________________________________________________
JEANNINE L. SOMBERG, et al.,
Plaintiffs,
v.

Case No. 13-11810

UTICA COMMUNITY SCHOOLS,
Defendant.
/
OPINION AND ORDER AWARDING COMPENSATORY EDUCATION,
DENYING PRETRIAL MOTIONS AS MOOT, DENYING DEFENDANT’S MOTION TO
SUPPLEMENT THE RECORD AND CLOSING ARGUMENT, GRANTING
PLAINTIFFS’ UNOPPOSED MOTION TO ENTER EXHIBITS, AND SCHEDULING
STATUS CONFERENCE
This court previously granted Plaintiffs’ motions for judgment seeking
compensatory education but reserved its determination of the “quality and quantity” of
such education pending the conclusion of a bench trial on that question. (Dkt. #30.)
Both parties presented their proofs, and closing arguments were held on November 11,
2016. Several motions relating to the evidentiary hearing remain outstanding. Plaintiffs
filed a Motion to Compel, (Dkt. #43), and a Motion in Limine, (Dkt. #49). Defendant filed
a Motion to Compel Alternative Dispute Resolution, (Dkt. #37), a Motion for
Continuance of Trial Date, (Dkt. #38), a Motion in Limine, (Dkt. #59), and a Motion
Concerning Joint Proposed Findings of Fact and Conclusions of Law and Dates for
Evidentiary Hearing, (Dkt. #67). Following closing arguments, Defendant also filed a
Motion to Supplement Record and Closing Argument, (Dkt. #83), then Plaintiffs filed a
Motion to Enter Exhibits, (Dkt. #87), which Defendant indicated it does not oppose, (Dkt.

#88). The court concludes that, to the extent that they were not already addressed at
the evidentiary hearing, no additional hearing on the motions is necessary. See E.D.
Mich. LR 7.1(f)(2). For the reasons stated below, the court will award compensatory
education, grant the Motion to Enter Exhibits, and deny the other motions described
above as moot.
I. BACKGROUND
This court’s previous order decisively resolved the question of liability in favor of
Plaintiffs. It held that Utica Community Schools had failed to provide Dylan Somberg,
then a mentally disabled teenager, with the requisite “free appropriate public education”
(“FAPE”) that he was owed under Section 1412(a)(1)(A) of the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. The court concluded that it
would not defer to the “forward looking” remedies afforded by the Administrative Law
Judge, because they were “designed to curtail further damage, but [failed] to address
the need to compensate Dylan for education he was not provided in the past.” (Dkt. #30,
Pg. ID 2231-32.) Specifically, it stated that Utica Community Schools “shall pay for
compensatory education . . . in a manner and amount to be determined by further
proceedings before this court.” (Dkt. #30, Pg. ID 2235.)
A bench trial to resolve this question began on September 28, 2016 and the
presentation of evidence concluded on October 3, 2016. The court then advised the
parties of its general inclination as to a likely outcome but allowed the parties to reserve
closing arguments and defer further hearings in the hopes that they may reach a
settlement. (Dkt. #82, Pg. ID 3482-85.) No settlement was reached and the parties
presented closing arguments on November 16, 2016.
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Since then, Defendant filed a motion arguing for dismissal in light of a recent
Michigan Department of Education complaint decision arguably supporting a theory,
which Defendant advanced at trial, that Plaintiffs’ removal of Dylan Somberg from Utica
Community Schools rendered his claims moot. (Dkt. #83.) Plaintiffs also filed a motion
requesting the entry of exhibits which the court had agreed to “provisionally receive”
while Defense counsel reviewed them and determined whether it would be appropriate
to lodge an objection. (Dkt. #87.) Defendant filed a letter indicating that it does not
object, (Dkt. #88), and Plaintiffs filed a reply asking for clarification that the court grant
admission of all three proposed exhibits in light of vague language in Defendant’s letter,
(Dkt. #89).
II. STANDARD
In an IDEA action, 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)(c).
An award of compensatory education is an equitable remedy granted by the
court as it finds appropriate. Bd. of Educ. of Fayette Cty., Ky. v. L.M., 478 F.3d 307, 316
(6th Cir. 2007). An appropriate award of compensatory education is “relief designed to
ensure that the student is appropriately educated within the meaning of the IDEA.” Id.
(quoting Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1497 (9th
Cir. 1994)). In general, compensatory awards “should aim to place disabled children in
the same position they would have occupied but for the school district’s violations of

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IDEA.” Id. at 317 (quoting Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 518
(D.C. Cir. 2005)).
III. DISCUSSION
A. Mootness
Defendant argues that Plaintiffs rendered their case moot when they removed
Dylan Somberg from Utica Community Schools and then ultimately completed his high
school education, as it prevented the school from supplying any prospective remedy
(i.e., to modify the program designed for Dylan to provide a FAPE). During closing
argument counsel cited a Sixth Circuit decision for the proposition that a case may
become moot even after judgment on the merits, divesting the court of subject matter
jurisdiction. (Dkt. #86, Pg. ID 3616.) The cited case, Fialka-Feldman v. Oakland Univ.
Bd. of Trustees, involved a “continuing-education student with mild cognitive disabilities”
who had been denied university housing on the basis that he was not a student in a
degree-granting program. 639 F.3d 711, 713 (6th Cir. 2011). The student sued, winning
an injunction requiring the school to provide housing. Id. Once the student had
completed his university program and signaled no intention to return, the case became
moot despite plaintiff’s remaining request for money damages and attorneys’ fees. Id. at
714.
It is true that a case may become moot even after an adjudication on the merits,
but such is not the case here. The Supreme Court has held that “[a] case becomes
moot only when it is impossible for a court to grant any effectual relief whatever to the
prevailing party.” Knox v. Serv. Employees Int'l Union, Local 1000, 132 S. Ct. 2277,

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2287 (2012). (quotations omitted) “As long as the parties have a concrete interest,
however small, in the outcome of the litigation, the case is not moot.” Id. (citing Ellis v.
Railway Clerks, 466 U.S. 435, 442 (1984)).
Dylan is not seeking temporary housing during the pendency of an education
already behind him; he seeks compensatory education to put him in “the same position
[he] would have occupied but for the school district’s violations[.]” Fayette Cty., 478 F.3d
at 317. More analogous to the instant case was the plaintiff’s position in Barnett v.
Memphis City Sch., where the Sixth Circuit held:
The district court did not err in holding that plaintiffs' claim for
compensatory education is not moot. Plaintiffs claim that the Memphis City
Schools must pay for educational services because the school system
illegally denied [him] a FAPE when he was under age twenty-one.
Compensatory education is a judicially-constructed form of relief designed
to remedy past educational failings for students who are no longer
enrolled in public school due to their age or graduation. Plaintiffs in this
case have asked the court to investigate past violations and to
compensate for the denial of a FAPE with present educational services.
113 F. App'x 124, 126 (6th Cir. 2004).
Defendant invites the court to stretch the holding of Fialka-Feldman so as to
render the very concept of compensatory education a nullity, applicable only in cases
that have become moot, per Defendant’s argument, by the mere passage of time. This
argument, if accepted, carries with it a clear and perverse incentive to school districts
such as Defendant that could be characterized as “wait them out.” Instead, the court
holds, consistent with the precedent of Barnett, that the case is not moot. The fact that
Defendant, after closing argument, saw fit to submit additional materials related to a
separate proceeding before the Michigan Department of Education does not alter this
analysis.
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B. Compensatory Education
The question of the amount and nature of compensatory education that
Defendant must supply to Dylan admits of no easy resolution. However, it is very clear
to the court that the contentious relationship that has developed between the parties
over the course of this case’s long history make Defendant’s direct participation in
supplying any such education inappropriate. At the close of the presentation of
evidence, for example, the court observed that Dylan’s mother became “visibly upset”
during her testimony that recounted Dylan’s treatment by Defendant, her efforts to
rectify what she viewed as shortcomings in this treatment, and Dylan’s own statements
reflecting his feelings about the prospect of additional education from Utica Community
Schools. (Dkt. #82, Pg. ID 3480-81.) The fact that the District has sued Mrs. Somberg
personally (though unsuccessfully) adds weight to the court’s conclusion in this regard.
1. Expert Testimony
This court’s conclusions are informed partly by the expert testimony of Dr.
Derrick Fries, who described “transition planning” allowing students to move more
smoothly from education towards normal employment. (Dkt. #80, Pg. ID 3072.) He
suggested that Dylan attend a school where he appeared to be thriving, Farber Soul
Center (“Farber”), and which would likely provide Dylan with resources that would be a
valuable component of his transition plan. (Id., Pg. ID 3070-72.) As alternatives, he
suggested community colleges which allow students who do not have high school
diplomas to take remedial courses leading to an Associate’s degree as well as simply
expanding efforts to obtain gainful employment for Dylan. (Id., Pg. ID 3071, 3079-80.)
By contrast, he opined that using Defendant’s U-Connect program or indeed “anything
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[Defendant] has to offer” would be “grossly inappropriate.” (Id., Pg. ID 3072.) Aside from
transition services, he concluded that 4,550 hours of tutoring divided among math
(10%), science (10%), reading (40%), and writing (40%), along with assistive
technology should be implemented. (Id., Pg. ID 3078.)
Dr. Fries also discussed cogently the degree of the deprivation Dylan suffered.
He indicated that Dylan’s consistently low scores on Woodcock-Johnson tests meant
that he may have actually regressed over the course of his four years at Utica
Community Schools. (Id., Pg. ID 3049.) On cross-examination he further explained that,
despite Dylan’s low IQ, he would have expected greater improvement over that course
of time if Dylan had been receiving proper instruction. (Id., Pg. ID 3124.)
Dr. Fries was not the only expert who testified. Dr. Laurie Lundblad conducted an
independent educational evaluation of Dylan when he was 19 years old and concluded,
using the Wechsler Adult Intelligence Scale, that he had an IQ of 75, which places him
in the fifth percentile–“just about two standard deviations below average.” (Dkt. #82, Pg.
ID 3304.) She also administered tests as to Dylan’s academic achievement, executive
function, and attention skills, reaching similar conclusions. (Id., Pg. ID 3306-3311.) She
disagreed with Dr. Fries’s estimation that Dylan should have progressed at a rate of 0.5
grade levels each year, because such an estimation would have to take account of a
number of complex factors. (Id., Pg. ID 3308-09). But it is not at all clear that Dr. Fries
was limiting his estimation by merely considering Dylan’s IQ and the time he spent at
Utica Community Schools; Dr. Fries testified that he had considerable experience with
developmentally disabled children, (Dkt. #80, Pg. ID 3085), and was personally
acquainted with Dylan, (Id., Pg. ID 3054-55).
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Dr. Lundblad also testified that Dylan would benefit from the use of assistive
technology, but her reasoning was not specific to Dylan. (Id., Pg. ID 3313-14.) However,
it is not clear that this recommendation is at all tailored to the facts of the case. She
went on to explain that “assistive technology is a great resource in general for people.
We all use assistive technology.” (Id. Pg. ID 3314.) Accordingly, her recommendation of
assistive technology is helpful, but not dispositive. That is to say, the court is not
convinced that assistive technology alone would be sufficient.
The court directed questions to Dr. Lundblad about the appropriate means of
compensatory education, and she responded that it was possible that private tutoring
could fill the gap in Dylan’s education. (Id., Pg. ID 3386.) When asked about the impact
of the fact that deprivations occurred more than half a decade ago, she indicated that
“[o]ne deviation, one degree off many, many miles down the road gets you way off
track.” (Id., Pg. ID 3387.) However, she also indicated that she was never asked to
actually determine or comment upon the existence of any institutional opportunities to
supply an adequate compensatory education for Dylan. (Id., Pg. ID 3388.)
2. Fact Witnesses
Testimony by Robert Monroe, the Assistant Superintendent for Teaching and
Learning at Utica Community Schools, and Deborah Koepke, Executive Director of
Special Services, though instructive as to the history of Defendant’s interaction with the
Sombergs was far less informative to the court as to the quantity and manner of
compensatory education. Questioning focused on background facts of the underlying
case already evident from the administrative record. As their testimony did not
meaningfully address the degree of privation nor the best means of rectifying it, the
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court will not discuss it at length here. There appears no need to render credibility
findings with respect to these fact background witnesses. Mrs. Somberg’s passionate
testimony echoed that of Dr. Fries with respect to the likely avenues for compensatory
education, and was generally factually credible, though certainly presented from a
partisan’s—i.e, a mother’s— point of view.
3. Special Master
The court concludes that, although the amount of deprivation suffered by Dylan
was serious, it does not amount to a complete four years of full-time tutoring as
requested by Plaintiffs. Dylan did make some advancement over the course of his time
in high school, even though he was not presented with what he was due under IDEA.
Instead, the court views one year of tutoring as appropriate. Under the formula offered
in Plaintiffs’ trial brief this is approximately 1,200 hours of private tutoring. (See Dkt.
#56-1.) The court also concludes that one year of transition planning would be
appropriate, possibly, but not necessarily, at Farber Soul Center.
This is all to be paid for by Defendant, though the details of the implementation,
such as the actual cost or the proper entities to provide these services are beyond the
ken of this court. As such, the court will appoint a special master to address these
questions and administer the ongoing payment of these expenses. Federal Rule of Civil
Procedure 53 states that a court may appoint a special master to “address pretrial and
posttrial matters that cannot be effectively and timely addressed by an available district
judge or magistrate judge of the district.” Fed. R. Civ. P. 53(a)(1)(c). That standard is
clearly met in this instance. However, “[b]efore appointing a master, the court must give
the parties notice and an opportunity to be heard.” Fed. R. Civ. P. 53(b)(1). Thus, the
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court orders the parties to meet and confer to try and reach an agreement on the
appointment of a special master and then file a joint report by January 13, 2017. If no
agreement is reached, then the parties are directed, to the extent that they have
recommendations, to file them along with any supporting memoranda by the same date.
The court shall then move quickly to appoint a special master and begin Dylan’s
compensatory education. Bearing in mind that some degree of cooperation between the
parties will be necessary to obtain the best results, this court may order an assessment
of Dylan’s progress following this year of tutoring and transition services. All fees,
costs, and expenses associated with the special master will be borne by Defendant.
C. Other Outstanding Motions
The other motions discussed above which remain outstanding are rendered moot
by this decision and on that basis are denied to the extent that they request relief in
conflict with that already provided by the court. The sole exception is Plaintiffs’
seemingly unopposed motion requesting admission of exhibits, which the court grants.
As an outstanding motion for attorney’s fees remains on the docket, the court will hold a
status conference to determine how best to resolve any outstanding questions. Such
conference will be held on March 9, 2017 at the Federal Building and Courthouse, Port
Huron, Michigan.
V. CONCLUSION
IT IS ORDERED that Plaintiffs’ Motion for Judgment (Dkt. # 22) is GRANTED as
follows:
(1) Defendant shall pay for 1,200 hours of compensatory education
(2) Defendant shall pay for one year of transition planning.
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(3) The parties shall meet and confer then file joint or separate recommendations
with supporting briefs not to exceed three pages as their (joint or separate)
recommendations for the appointment of a special master to oversee the administration
of this relief.
IT IS FURTHER ORDERED that Plaintiffs’ filed Motion to Compel, (Dkt. #43) and
Motion in Limine, (Dkt. #49) are DENIED as moot.
IT IS FURTHER ORDERED that Defendant’s Motion to Compel Alternative
Dispute Resolution, (Dkt. #37), Motion for Continuance of Trial Date, (Dkt. #38), Motion
in Limine, (Dkt. # 59), and Motion Concerning Joint Proposed Findings of Fact and
Conclusions of Law and Dates for Evidentiary Hearing, (Dkt. #67), are DENIED as
moot.
IT IS FURTHER ORDERED that Defendant’s Motion to Supplement Record and
Closing Argument, (Dkt. #83), is DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Enter Exhibits, (Dkt. #87) is
GRANTED.
IT IS FURTHER ORDERED that a status conference shall be held on March 9,
2017 at 3:30 p.m. in Port Huron, Michigan.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: January 20, 2017

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I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, January 20, 2017, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C2 ORDERS\13-11810.SOMBERG.compensation.bss.RHC.wpd

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