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Plaintiff v. THE BOARD OF EDUCATION OF THE RHINEBECK CENTRAL SCHOOL DISTRICT, Defendant. Facts Frank is a fifteen year old boy of above average intelligence. He suffers from dyslexia, a severe learning disability that hinders his ability to decipher written symbols. Dyslexia has a neurological basis, and although there is no cure, a dyslexic child can learn methods to decipher words. Although Frank was not diagnosed with dyslexia until the summer of 1994, Evans testified that, from the time he entered school, Frank has had problems with spelling, reading and writing. She also testified that he has always experienced anxiety, sometimes accompanied by physical symptoms, in connection with tests. In 1993, Evans enrolled Frank in the District's Buckeley Middle School, where he was placed in a regular education seventh grade class for the 1993-94 school year. Concerned with his difficulty in reading and spelling, Evans referred Frank to the District's Committee on Special Education ("CSE") in November of 1993. He was psychologically and educationally evaluated in December of that year. The school psychologist, Donna Smith, reported that testing showed that Frank had a high IQ. She found that his verbal ability was superior, and that his ability to acquire information through auditory and oral modes was significantly greater than that of his peers. She noted, however, that Frank slowed down while performing visual motor tasks to assure his accuracy. She also found that writing and copying symbols were his weaknesses, but that his writing ability nevertheless appeared to be at age level. In addition, Smith's projective testing revealed that Frank had a negative perception of his abilities in school, physical appearance, and popularity with peers, that he had "needs for security," that "he feels that despite the times he works hard he 'does bad' and he 'can't get it all right,'" and that he "experiences himself as perceived as 'different' by his peers." She recommended that the CSE consider alternate ways of helping Frank obtain information in the classroom, such as having him obtain copies of class notes and teaching him alternative ways of recording information, that he receive remedial help in spelling and a spell-checker, and that his progress be monitored. Interviewed by Smith in November 1993, Evans reported that Frank's self-image was "poor right now due to negative experience in school," that he experienced "mood swings and frustration in regard to school," that he was frustrated with his writing, spelling and reading problem, that "he feels that he is stupid." Using the Woodcock Johnson Achievement Test, the school special education teacher, Roberta Bloomer, performed an educational evaluation. Frank received the following grade equivalent scores: 5.8 in letter-word recognition, andBecause of Frank's weaknesses in reading and spelling, Bloomer also gave him the Boder Test of Reading and Spelling, in which Frank reportedly identified words at the 6th and 7th grade level and read on the fifth to sixth grade level, but spelled correctly only 20% of the words given to him. Bloomer noted that Frank spelled phonetically, but did not use non-phonetic spelling patterns. The CSE met on December 10, and considered Frank's psychological and educational evaluations, but, despite what Patricia Zeisler, the chair of the CSE and principal of Buckeley, identified as "a discrepancy between . . . the verbal and performance subtest scores, which often [is] associated with a learning disability," it did not classify him as a child with a disability. The CSE notified Evans that it declined to classify Frank because testing results did not indicate the presence of a learning disorder at that time. Instead, Frank received remedial instruction in reading and spelling by Bloomer, and counseling by Smith. Bloomer worked with Frank in the classroom as an inclusion teacher, helped him organize his notebook, and monitored his homework and performance in class. Bloomer also provided individual instruction to him during study periods four times a week plus one or two other 40-minute periods each week, and used glass analysis, an alternative method of word decoding with him. She also worked with him to improve his writing and spelling by using a computer. At Evans' request, counseling was discontinued shortly after it had begun because Frank evidently did not feel comfortable with Smith. On March 22, 1994, the CSE reconvened. Bloomer reported that Frank required more assistance to be successful in the classroom. She told the CSE that he needed help with note-taking, and developing his study and organizational skills, in addition to assistance in improving his reading, spelling and writing skills. Although no additional tests were conducted, the CSE relied upon Bloomer's oral report to recommend that Frank be classified as learning disabled. There was no written report of the basis of that determination. Zeisler testified that the CSE decided to use Frank's spelling deficit as the basis for the classification. His spelling score on the Woodcock Johnson was not reflected in his IEP, however. The CSE further recommended that Frank receive consultant teacher services twice a day with Bloomer, and be permitted to use testing modifications, such as extended time limits, taking tests in alternate locations and giving oral responses to test questions. Frank's IEP included annual goals to improve keyboarding, writing and study skills. According to Bloomer, Frank's testing was modified in all subject areas. He was given multiple choice questions, with short answers. Often Bloomer would read the tests to him so that he could dictate answers. Where longer writing was required, he was permitted to write in phrases, and she would later work with him to produce full sentences. Frank's homework assignments were also modified so that they were shorter. In addition, although it was not reflected in the IEP, Bloomer provided individual instruction for 40-minute periods approximately eight times per week. She worked with Frank in all subject areas, but primarily in writing. Despite these additional services and testing modifications, Frank's performance declined between March and the end of the school year. Frank failed every major academic subject that year. He received a grade of "Unsatisfactory" in language arts, social studies, science and mathematics. Teacher comments on his report card indicate that he had difficulty following classroom procedures, had not completed assignments and was absent a lot. Bloomer testified that Frank did not achieve any of the goals included in the March IEP. In May, increasingly concerned about Frank's academic difficulties and emotional problems, Evans requested that Frank be independently evaluated by a private psychologist. Dr. Howard Susser assessed Frank's cognitive skills using the Wide Range Achievement Test ("WRAT"). Frank received the following grade equivalent scores: 9.8 broad cognitive abilities,Frank also received grade equivalent scores of: 4 (beginning) in reading,Dr. Susser reported that Frank's reading, decoding and spelling skills were impaired by weaknesses in processing speed, auditory processing and long-term memory retrieval skills, and specifically in sound blending and memory for names, but that Frank's significant strength in reasoning, comprehension, language skills and short-term memory compensated for his weaknesses. He summarized Frank's learning disability as an auditory processing deficit, a long-term retrieval or associative learning deficit and a weakness in processing speeds, which led to difficulties in spelling and decoding. The CSE met again on June 14, before Frank's report card came out, and prepared part of Frank's IEP for the 1994-95 school year (the IEP was dated June 1, 1994). Despite Frank's complete failure in seventh grade, the District proposed to promote Frank to the eighth grade and to continue for the 1994-95 school year substantially the same modifications and services that had to date not helped him. The CSE recommended that Frank continue to receive daily individual instruction, but from special education teacher Elizabeth Villanti rather than Bloomer, and concentrating on social studies, rather than writing. The CSE also recommended that he receive the standard services given to all learning disabled students: enrollment in a 12:1 special education class for English and consultant teacher services (in math and science) two periods per day. The CSE also relied upon Dr. Susser's report to prepare a "learning plan," which suggested techniques for Frank's teachers. These techniques included many of the modifications to testing, classwork and homework that Bloomer had already begun, such as providing Frank with class notes, permitting oral responses, shortening homework reading assignments, etc. The goals and objectives of the IEP were formulated at that meeting but were not finalized because the CSE wanted input from Evans, who was not present at the meeting. Unable to contact Evans, however, Villanti wrote the goals herself in August. That summer, Evans enrolled Frank, at her expense, in the summer program of the Kildonan School, a private school for children with dyslexia, which is not on the state-approved list. Students at Kildonan are taught using the principles of the Orton-Gillingham method. According to Margaret Mabie and Diana King, experts in dyslexia and the Orton-Gillingham method, because dyslexics do not learn by having someone simply tell them something, and because they cannot remember, for example, the spelling of a word by simply looking at it, they must learn through a multi-sensory procedure, using multiple sensory systems -- visual, auditory and kinesthetic. When Frank arrived at Kildonan, according to King, he had "pathetically weak skills in decoding." Katherine Schantz, the current academic dean and director of admission at the Kildonan School, conducted Frank's initial interview. She discovered that Frank's family had a history of dyslexia, and her pre-testing of Frank led her to the conclusion that Frank was profoundly dyslexic. In June, Schantz conducted the following tests on which Frank received the following grade equivalent scores: 3.8 WRAT-R2 (word identification),Schantz concluded that Frank's disability was in a very specific subskill of language, namely phonological coding, which manifested itself most profoundly in testing for sound-syllable relationships. Frank's phonological coding disability effected his spelling, his speed in reading, writing and mathematics, as well as his interpretation of reading matter. Schantz also observed that, as is typical of students where there is a wide discrepancy between intellectual potential and skill, Frank was quite frustrated and [*90] emotionally fragile. Schantz's primary concern at that time was that Frank did not have access to reading as a way of learning, that is, he was still reading in order to learn to read, but could not use reading as a way to learn. Because of what she characterized as his "cognitive wealth," however, she believed Frank's prognoses was excellent. Frank was assigned a male tutor for the summer and concentrated on three areas: (1) word identification so that he could read more difficult material that would sustain his interest; (2) making his handwriting more automatic because, as Schantz testified, for dyslexics the kinesthetic exercise of writing is essential in establishing sound-syllable relationships; and (3) oral reading in the context of a tutorial to assist him in establishing the speed and automation necessary to become an independent reader. At the end of the summer in August, Frank was tested again. The testing revealed that he had made considerable progress during the summer in the areas of word identification, reading speed and accuracy, and comprehension. He received the following scores: 8.8 WRAT-R2 (word identification),Schantz testified that Frank had developed certain systematic ways to attack unfamiliar words, that he had learned a whole system of what types of syllables were in the english language and how to address phonetic issues, that he was reading with greater speed and somewhat greater accuracy near grade level, although not up to his intellectual capacity, and that he could read to learn, instead of merely reading to learn to read. Over the summer, Evans requested and reiterated her request for an impartial hearing in letters dated July 5 and September 1. A hearing was not scheduled at that time, but Evans met with the District for mediation on three occasions, early in September. The parties have differing perceptions about the outcome of the mediation. Zeisler testified that she believed that the parties had agreed that the District would employ Mabie, an Orton-Gillingham trained instructor, to conduct Frank's individual instruction. Evans testified that she agreed, at Zeisler's suggestion, to have a psychiatric evaluation done by a physician for a diagnosis of dyslexia so that the CSE could make a recommendation to the Board of Education to keep Frank at Kildonan, to have Mabie "screen" Frank to determine his needs, and then to meet with the CSE again to discuss placement. She also testified that the parties agreed that Frank would remain where he was, at Kildonan, until another arrangement could be worked out. Mabie testified that when Zeisler called her, she agreed to meet with Frank and do a quick screening. She never made a commitment to the District, but indicated that she would try to fit him into her schedule. She testified, however, that she agreed to the screening before she knew anything about Frank's background. Ultimately, Mabie never did the screening because she did not have time, but also because she began to "question[] whether an hour a day with me was all this child needed." Mabie felt that Frank was in "very bad shape." "When I saw his background I felt that my one hour a day was just, you know, this much (indicating) and he needed a whole lot more." By this time, however, Evans had enrolled Frank in the Kildonan School for the 1994-95 school year. At Kildonan, Frank continued the tutorial, at a frequency of five times per week for 45 minutes, that was started in the summer. His schedule included prealgebra, preliminary chemistry/physics, American history, literature and studio arts/ceramics, in addition to a proctored study hall and an individual tutorial. Each class was taught by an Orton-Gillingham trained teacher who presented the material using the Orton-Gillingham method. But, in September of 1994, as Frank began the fall term at Kildonan and the parties grew frustrated with mediation, an impartial hearing was scheduled for the 21st. It was later adjourned with the consent of both parties until October 26. Meanwhile, Evans received a letter notifying her of a CSE meeting on October 4. The letter stated that the purpose of the meeting was to "review placement at Kildonan," and "program Review (increase or decrease level of services)." On October 4, Evans met with the CSE and requested that the CSE recommend placement at Kildonan. She testified that she was asked to bring along a representative from Kildonan so that placement there could be considered. King, the founder and former director of the Kildonan School, attended the CSE meeting, discussed Frank's participation in the School's summer program, and recommended that Frank attend the Kildonan School as a residential student during the 1994-95 school year. The CSE also considered a letter from Dr. Harold Levinson, who evaluated Frank over the summer, and who opined that Frank had "dyslexia secondary to a cerebellar-vestibular dysfunction." Dr. Levinson recommended that Frank remain at the Kildonan School. The CSE, however, recommended placement in the District's school and amended Frank's IEP for the 1994-95 school year by replacing the individual instruction in social studies with individual, multi-sensory instruction in reading and writing for 60 minutes four days per week with Mabie -- as the parties had discussed at their mediation -- and inserting counseling for 30 minutes per week by a private psychologist who would consult with the school psychologist twice per week. Annual goals relating to American history and keyboarding were deleted, and new goals relating to mathematics and counseling were added. In describing Frank's current level of functioning, the IEP incorporated two scores, in reading comprehension and vocabulary, from Kildonan's August 1994 testing. Disagreeing with the CSE's placement recommendation, Evans insisted that the hearing scheduled for October 26 proceed. On Nov. 7, the District hired a substitute multi-sensory reading and writing instructor, Constance Moore, who was to tutor Frank 40 minutes each day and spend the extra 20 minutes of the hour consulting with Frank's core curriculum teachers. Moore is currently a private tutor. She has a teaching degree in elementary education, and a permanent teaching certificate for kindergarten through sixth grade. She has taught kindergarten, second grade and elementary reading, and at least one highschool boy. She is not certified in either special education or Orton-Gillingham instruction. She taught at the Kildonan school part-time for three years, and full-time for five years, where for less than a year, she was trained in Orton-Gillingham instruction by King. King testified that Moore is not qualified "for work with an adolescent. Under supervision, in a structured supervision she works well with young children. . . . With an adolescent you have to be prepared to go into the more advanced language skills. You have to be well organized and appropriate in your relationships with an adolescent." King testified that Moore is not qualified in those areas of work required by adolescents. She further testified that Moore is not qualified or competent to instruct, train or otherwise consult with other teachers as to how to work with a specific student under the Orton-Gillingham approach. Sometime after November 14, Evans informed Zeisler that she had spoken with Moore and concluded that she was not qualified to provide Frank with the instruction he required. In a letter, dated December 5, Zeisler informed Evans that the District would no longer be responsible for paying Frank's tuition at the Kildonan School. In response, Evans requested another meeting of the CSE, and in a letter dated January 4, 1995, she requested an impartial hearing. The CSE did not meet until January 19. Thus, it was not until January 19 that Frank's IEP was amended to reflect the changes made after Mabie declined to accept Frank as a student and the parties came to their October agreement that obviated the need for a hearing. On January 19, Evans reiterated that she would pursue the impartial hearing. The District agreed at that time to pay Frank's tuition at the Kildonan School until the hearing officer rendered his decision. The impartial hearing began on February 8 and, after 11 sessions, concluded on June 6. In his decision, dated July 10, the hearing officer found that the current designation of Frank's handicapping condition was "unknown," that the District was reasonable in proceeding cautiously in classifying Frank when he first arrived in the District, that a detailed plan of action for addressing Frank's needs was agreed to after the CSE meeting in June of 1994, that "there is nothing in the record to refute the fact that the school district established an appropriate IEP for [Frank] for 1994-95," that the record indicated that the District had complied with the procedural requirements for preparing Frank's IEP for the 1994-95 school year and that the IEP was reasonably calculated to provide education benefit in the least restrictive environment. He directed the District to put in place immediately a program similar to that outlined in the October 1994 IEP, but also to update it. Evans appealed this decision to the State Review Officer. In a decision dated September 29, 1995, the State Review Officer dismissed the appeal on the grounds that the IEP proposed by the CSE was appropriate and that it was available as of January 19, 1995. Except for a brief period following the District's decision to terminate its tuition payments on December 5, 1994, Frank attended the Kildonan School at the District's expense from October 1994 until December 1995. Evans made two unsuccessful attempts to send Frank to Rhinebeck's high school in January and February of this year, but Frank ran away. Thus, Frank has not attended any school from January through April of this year, when this Court granted Evans' motion for a preliminary injunction. 1. Legal Standards In assessing the appropriateness of the educational program offered by the state, Rowley held that the proper inquiry is twofold: "First, has the State complied with the procedural requirements 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?" Rowley, 458 U.S. at 206-07. As the party challenging the findings of the administrative determination, Evans has the burden of proof. See Hiller v. Board of Educ., 743 F. Supp. 958, 967-68 (N.D.N.Y. 1990). Detailed procedural provisions lie at the heart of the IDEA. These processes are designed to guarantee that each handicapped student's education is tailored to his unique needs and abilities. The Act, and the regulations promulgated pursuant to it, contain procedures for determining whether the appropriate placement is regular or special education, for preparing an IEP, for changing the placement or the IEP, and for removing the child from regular education. A violation of the Act's procedural guarantees may be a sufficient ground for holding that a school system has failed to provide a free appropriate public education and,thus, has violated the Act. See Daniel, 874 F.2d at 1041. Procedural flaws do not automatically require a finding of a denial of a free appropriate education, but procedural inadequacies that result in the loss of educational opportunity clearly result in the denial of a free appropriate education. Evans raises four claims of procedural error: (1) failure to convene an impartial hearing within 45 days of her request on July 7, 1994, in violation of 34 C.F.R. 300.512(a); (2) failure to have a proper IEP ready to implement at the start of the school year, in violation of 34 C.F.R. §§ 300.342; (3) failure to include in the IEP a statement of Frank's present level of educational functioning and strategies to evaluate progress, in violation of 20 U.S.C. § 1401(a)(19) and 34 C.F.R. §§ 300.346(a); and (4) failure, when developing the IEP, to include Frank's classroom teacher in the evaluation team, to conduct a classroom observation of Frank, and to prepare a written report that included a statement of the basis for the determination that Frank was learning disabled. When viewed in light of the standards discussed above, the hearing officer's decision that the District met the necessary procedural requirements is unsupported by the facts of record and incorrect as a matter of law. Uncontroverted testimony, for the most part, establishes that the District did not convene an impartial hearing within 45 days of Evans' request and did not have an IEP ready to implement at the start of the school year, did not include in the IEP a statement of Frank's present level of educational functioning, specifically in his areas of deficit, did not include in the IEP a statement of objective strategies to evaluate progress, and did not prepare a written report of the basis for the determination that Frank was learning disabled. The nature and number of these procedural violations support only one conclusion -- that Frank was not given the educational opportunity that the procedural requirements of the IDEA were intended to protect. 3. Substantive Requirement A school district is not required to implement a program that will maximize the handicapped child's potential. Rowley, 458 U.S. at 198-99. Rather, a handicapped child has a right to "personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." Rowley, 458 U.S. at 203. The view held by the District and adopted by the hearing officer and the State Review Officer is that Frank's 1994-95 IEP was reasonably calculated to confer educational benefit. Although this Court is required, in recognition of the expertise of the administrative agency, to give some deference to the conclusions of the hearing officer and the State Review Officer, I note first that there is a discrepancy between the findings of the hearing officer and the State Review Officer. While the hearing officer found the IEP of October 4, 1994 appropriate, the State Review Officer found that the District did not have an appropriate IEP available until the October 1994 IEP was amended by the CSE in January 1995. More importantly, however, a comprehensive review of the record reveals that the District's view, and the conclusion of the hearing officer and State Review Officer, are directly contradicted by the testimony of each of the experts on dyslexia. The testimony of the experts on dyslexia clearly establishes that to benefit educationally Frank requires an intensive program of individualized, integrated, multi-sensory, sequential training. Katherine Schantz, a doctoral student at Harvard University in consulting psychology, with professional and clinical experience in therapy and testing of children, and fifteen years experience with learning disabled adolescents, dyslexics in particular, testified that dyslexics are very difficult to teach, particularly those like Frank in whom the discrepancy between intellectual ability and skill is wide. She testified that in order to learn dyslexics need more drilling in all systems -- auditory, visual and kinesthetic -- and more personal contact than other students. She testified that a severely dyslexic student such as Frank needed specific training in a multi-sensory, sequential approach on a daily basis. She further testified that because Frank is dyslexic, he could learn only through the use of such a method. Diana King, who has 45 years of experience in the education of dyslexic students, has founded a school for dyslexics, and has lectured and trained teachers both in the United States and abroad for 40 years, testified that Frank's disability was such that it should have been identified before he entered first grade, and that his years of failure had exacerbated his condition. King testified that it would not be appropriate to return Frank to a regular education classroom, even with a daily 40-minute tutorial by a multi-sensory trained teacher. She stated that to change the program that is currently working for Frank would put him at risk for even more profound educational failure. Margaret Mabie has a bachelor's degree in psychology and master's degrees in special education and administrative supervision, as well as significant graduate hours in teaching techniques, primarily Orton-Gillingham, for dyslexic students. She was an assistant professor for 15 years at the State University College at New Paltz, where she started a special education program. She has also taught reading in middle school and high school, and has had her own learning center for ten years, where she does educational evaluations of mainly dyslexic students, teaches math and trains teachers. She has also taught graduate education classes in language procedures at Columbia University. Mabie has never been employed by the Kildonan School. Mabie testified that Frank does not have the ability to benefit from regular education classes and that a daily 40-minute instruction using a multi-sensory, sequential approach could not meet his needs. She explained that with such a session he could not even begin to address the primary difficulties he experiences in reading, writing or spelling. She testified that even with one hour of service a day, it would be very hard for Frank to participate in the other regular education programs for the rest of the day. In fact, she testified that Frank would be "in deep trouble in high school subjects," going from one teacher to another, even with compensatory help. She stated that it would take a couple years before he would be able to survive in a regular classroom. These experts all had the opportunity to review Frank's educational records and/or assess him. According to each one, the program currently proposed by the District to educate Frank is not reasonably calculate to provide him with educational benefit, and in fact may harm him. The concordance of these experts on dyslexia, in conjunction with the record evidence, unmistakably demonstrates the accuracy of their conclusions. Their expert opinion is borne out by the fact that Frank's academic performance showed no improvement and even deteriorated since he began receiving special education at Buckeley. Rowley held that in the regular education system, "the grading and advancement system . . . constitute[] an important factor in determining educational benefit." Here, Bloomer testified that despite her intensive individual instruction eight times per week, and homework and classwork modifications, Frank's performance declined. In fact, he failed every major academic subject of his seventh grade year. The only significant service changes incorporated in his 1994-95 IEP -- beyond the services that were being provided between March and June of Frank's seventh grade year -- were placement in a special education English class and a multi-sensory tutorial. Rowley has explicitly cautioned that the IDEA contemplates meaningful access to a public education: "it would do little good for Congress to spend millions of dollars in providing access to a public education only to have the handicapped child receive no benefit from that education." Rowley, 458 U.S. at 200-01. Even a showing of minimal improvement on some test results would not compel a finding that an IEP is reasonably calculated to confer some educational benefit. Courts have agreed that "the Act does not permit states to make mere token gestures to accommodate handicapped students; its requirement for modifying and supplementing regular education is broad." Daniel R.R., 874 F.2d at 1048; Hall v. Vance County Board of Educ., 774 F.2d 629, 636 (4th Cir. 1985) ("Clearly, Congress did not intend that a school system could discharge its duty under the IDEA by providing a program that produces some minimal academic advancement, no matter how trivial."); Chris D. v. Montgomery County, 753 F. Supp. 922, 931 (M.D.Ala. 1990) ("The Act requires a plan of instruction under which educational progress is likely.") The uncontroverted testimony of the experts on dyslexia demonstrates that an integrated, multi-sensory, sequential method is a necessity rather than an optimum situation for Frank, because of the nature and severity of his dyslexia and his associative emotional problems. Thus, in holding that the District's IEP is not reasonably calculated to confer educational benefit on Frank, this Court has not been unfaithful to Rowley's directive that "courts must be careful to avoid imposing their view of preferable education methods upon the States." Rowley, 458 U.S. at 207. Evans' claim has not presented a contest of experts in which a court must choose between competent expert testimony presented by opposing parties. While the District presented evidence from experts in special education, none has any specific expertise in the area of Frank's disability. The testimony and documentary evidence tell a compelling story of a very intelligent, but emotionally vulnerable, child who is at great risk of dropping out of school, despite a demonstrated capacity to succeed academically, socially and emotionally in an appropriate program. The expert testimony establishes that, the nature of Frank's dyslexia in conjunction with his emotional problems, is such that he needs an intensive program of individualized, integrated, multi-sensory, sequential training with students of similar needs. The IEP proposed for Frank is not such a program, and therefore cannot meet his needs. It does not appear to this Court that either the hearing officer or the State Review Officer considered the testimony of the experts on dyslexia. Because the officers' conclusions are unsupported by the record as a whole and incorrect as a matter of law, they simply do not merit deference. While the 1994-95 IEP certainly touches upon some of the necessities for Frank to benefit from an educational program, as the court has already found, it reduces or omits several of the types of services that those who know Frank, and have expertise and experience in his type of learning disability, believe are essential to his benefiting from an educational program. For instance, one such omission involves the presentation of subject matter in a multi-sensory, sequential manner. The failure to use an approach that will provide Frank with the tools to become, for example, an independent reader is alone an important reason why the District's IEP does not provide an appropriate education. Therefore, neither prong of the Rowley test has been met under the facts, and Evans is entitled to relief under 20 U.S.C. § 1415(e)(2). In fashioning remedies for violations of the IDEA, the court is authorized to "grant such relief as the court determines is appropriate. 20 U.S.C. § 1415(e)(2). The court's discretion in fashioning relief is broad. Burlington School Committee v. Dept. of Educ., 471 U.S. 359, 369, 85 L. Ed. 2d 385, 105 S. Ct. 1996 (1985). In light of the foregoing, Evans is entitled to a declaratory judgment, and this matter is remanded to the District's CSE with instructions to develop an IEP for Frank which will address his particular needs, consistent with this decision. The District shall make a concerted effort to ensure that Frank attend classes with students who have similar learning disabilities and intellectual abilities, and in which the subject matter is presented from a multi-sensory, sequential approach. Pending the development of such an IEP, Frank shall remain in his current educational placement. The parties shall settle a judgment, including appropriate injunctive relief, on or before June 30 on 10 days notice. |
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