Reading 6

Reading 6

IEPs

NEIN v. GREATER CLARK COUNTY SCHOOL CORP.
Background
Plaintiffs Wesley and Denise Nein are the parents of Lucas Nein, who is now twelve years old. From kindergarten through fourth grade, Lucas attended Parkwood Elementary School, a facility owned and operated by defendant Greater Clark County School Corporation. During his first grade year, an educational evaluation revealed that Lucas had a severe learning disability. Lucas was therefore eligible to receive special education services under the IDEA as a student with a learning disability.

The IDEA is designed to "assess, and ensure the effectiveness of, efforts to educate children with disabilities. " 20 U.S.C. § 1400(d)(4). Under the IDEA, the federal government awards grants of federal funds to state governments to help provide special education services. 20 U.S.C. § 1411(a). As a condition of receiving federal grant money, states must ensure that their public schools provide children with disabilities "'a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living."' Morton Community Unit School Dist. No. 709 v. J.M., 152 F.3d 583, 584 (7th Cir. 1998), quoting 20 U.S.C. § 1400(d)(1)(A). However, the IDEA does not specifically define an "appropriate public education" or explain how one is to measure whether a student has received one.

The IDEA also requires public school districts to design an individualized education program (IEP) for each child receiving special education services. 20 U.S.C. § 1414(d)(1)(A). An IEP must contain statements regarding the student's present educational level, the student's measurable annual goals, the special education services to be provided, the extent to which the student will participate in the classroom with non-disabled students, and a timetable for providing the identified education services. School districts are required to review and revise a student's IEP periodically to meet changing educational needs.

Pursuant to the IDEA, Greater Clark developed an IEP for Lucas each year for his second through fifth grade years and provided him with special education services each year. Lucas's parents, however, became increasingly unhappy with his lack of progress and believed that Greater Clark had failed to provide him with a free appropriate public education. In April 1998, when Lucas was in fourth grade, and according to certain procedural safeguards under the IDEA, the Neins requested a due process hearing to address Lucas's educational needs. After hearing three days of testimony, the initial hearing officer found that Greater Clark had failed to provide Lucas with a free appropriate public education. The initial hearing officer ordered Greater Clark to pay the Neins for two years of compensatory education, which would be provided at The de Paul School (a private school in Louisville, Kentucky, where the Neins had enrolled Lucas) unless Greater Clark was able to show it could provide teachers with appropriate training to successfully teach dyslexic students. Greater Clark appealed this decision to the Indiana Board of Special Education Appeals ("the Board of Appeals"). By a 2-1 vote, the Board of Appeals reversed the initial hearing officer's decision. The Neins then petitioned this court for judicial review of the Board of Appeals' decision. Both sides have moved for summary judgment.

The Initial Hearing Officer's Decision

The due process hearing in this matter was held on November 23-25, 1998, and the initial hearing officer issued his decision on January 11, 1999. Prior to the hearing, the parties had identified four specific issues for trial. The following are the initial hearing officer's conclusions of law regarding each issue:

1. Has the LEA [local education agency] failed to provide the student with a free appropriate public education in the least restrictive environment wherein he failed to receive educational benefit?

Yes. Although the Student did receive educational gains in some areas, and made reported progress of six months per year in the Milestones reading program, the progress was not transferable to other academic or non-academic areas wherein student could read, and the student for all intents and purposes was a non reader during the his [sic] first four grades within the LEA educational environment.

The ability to read is a fundamental ingredient in a free appropriate education that can be diminished only by a finding that the disabled child is clearly incapable of achieving reading skills transferable to life settings. The failure to use an approach that will provide Student with the tools to become an independent reader is alone an important reason why the LEA did not provide an appropriate education.

2. If yes, does the denial of a free appropriate public education to the Student require extended school year services or compensatory educational services?

YES, compensatory education is appropriate for the student. The parent's [sic] concept of extended school year is misplaced, however, compensatory education is appropriate where student has been denied a FAPE.

3. Are the parents entitled to reimbursement for the expenses incurred for the 1998 summer program and/or the current placement at the de Paul school?
YES.

4. What is the proper placement and related services and accommodations required to provide the student with a free appropriate public education in the least restrictive environment for the 1998-1999 school year?

THE de Paul SCHOOL. As the LEA has failed to provide a FAPE, the IHO finds and concludes that the unilateral placement and services provided by the de Paul School to teach a learning disabled child with the specific learning disability of dyslexia is appropriate.

In light of these findings, the initial hearing officer ordered Greater Clark to reimburse the Neins for the cost of expenses incurred for Lucas's placement at The de Paul School summer program and for the 1998-99 school year, and to pay for two years of compensatory education at The de Paul School. R. 228. The initial hearing officer also ordered Greater Clark to reimburse the Neins for the reasonable cost of transporting Lucas to The de Paul School.

VI. The Board of Appeals' Decision

Greater Clark appealed the initial hearing officer's decision to the state's Board of Appeals. In its Petition for Review, Greater Clark made numerous objections to the initial hearing officer's findings of fact and conclusions of law. In summary, Greater Clark objected to the initial hearing officer's conclusion that it did not provide Lucas with a free appropriate public education and asserted that it was not required to provide Lucas with a free appropriate public education designed to maximize his potential. R. 11. Greater Clark also maintained that the initial hearing officer incorrectly evaluated Lucas's educational progress. R. 12. Finally, Greater Clark argued that, because it had provided Lucas with an appropriate public education, it should not be required to reimburse the Neins for any educational expenses. R. 13.

The three member Board of Appeals held a hearing without oral argument on April 27, 1999, and issued an opinion the following day. R. 1-18, 150-207. The Board of Appeals upheld some of the initial hearing officer's findings and conclusions and struck others based on Greater Clark's arguments. In summary, the Board of Appeals concluded, by a 2-1 vote, that Greater Clark had provided a free appropriate public education to Lucas, that Lucas was not entitled to compensatory education, and that the Neins were not entitled to any financial reimbursement from Greater Clark. R. 18. The Neins then petitioned this court for judicial review of the Board of Appeals' decision.

Discussion

I. Free Appropriate Public Education
The IDEA provides "elaborate and highly specific procedural safeguards," but only "general and somewhat imprecise substantive admonitions." Board of Education v. Rowley, 458 U.S. 176, 205, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1982). Unlike plaintiffs in many IDEA cases, the Neins do not challenge the procedures Greater Clark used to decide upon educational programs for Lucas. They contend instead that Greater Clark failed to meet the substantive standards of the Act, which require a "basic floor of opportunity" for disabled children in the form of "access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child." Id. at 201.

The central substantive issue here is whether Greater Clark provided Lucas with a free appropriate public education under the IDEA. The Neins contend that during Lucas's four years at Parkwood Elementary, Greater Clark failed to provide him with the minimum required educational benefit under the IDEA and that, despite this failure, Greater Clark again proposed to use the same teaching methods if Lucas had stayed there for fifth grade.

The Neins rely primarily on Lucas's scores on academic achievement and intelligence tests. When Greater Clark first evaluated Lucas in March and May 1995, when he was in first grade, his full scale score of 95 on the WISC-III test was in the average range and indicated that Lucas had the ability or potential to learn. R. 454. Lucas's reading cluster score of 68 and his written language cluster score of 84 on the Woodcock-Johnson Achievement Test, however, indicated that Lucas fell significantly short of his potential in reading and short of his potential in writing.

The Neins compare those results to the evaluation three years later when Lucas was tested by Karen Dakin at the Cleveland Clinic in August 1998. On the Woodcock-Johnson Achievement Test, Lucas had a written language cluster score of 51 and a basic reading skills cluster score of 66. R. 1448. Lucas had a reading subtest score of 61, a spelling subtest score of 69, and an arithmetic subtest of 85. R. 1449. At the due process hearing, Ms. Dakin explained that these scores are "standard scores" that basically compare a child's scores to those of his age-group peers. R. 579. These standard scores also permit comparison of Lucas's achievement in certain educational areas to his IQ, or his academic potential. R. 578. Ms. Dakin also testified that Lucas's August 1998 writing, reading, and math scores had all dropped when compared with his 1995 scores. R. 579. The Neins contend this evidence demonstrates that Lucas did not make adequate or minimal educational progress from 1995 to 1998 under Greater Clark's programs.

In response, Greater Clark contends that Lucas received at least some educational benefit at Parkwood Elementary and that under the IDEA, he is entitled only to an appropriate education, not the very best possible education. Greater Clark focuses on the fact that Lucas progressed in the Milestones reading program at the rate of about half a year per year of school. It argues that such progress is not trivial or insignificant but is "undisputed evidence of significant educational benefit." Def. Br. at 30. Greater Clark also points to Lucas's grade level promotion each year and his good academic grades. Greater Clark also contends that Lucas's standardized test scores are not an appropriate or accurate measurement of his academic progress because the standardized tests do not reliably measure the progress of children with learning disabilities. Greater Clark relies on the testimony of its school psychologist, Dr. Claypool, who explained how standardized tests are "not particularly sensitive to individual growth," R. 541, and the testimony of the headmaster at The de Paul School, who explained that "students with learning disabilities tend to do less well on achievement testing, especially formal achievement testing than others would." R. 848.

The substantive disagreement between the parties, and between the initial hearing officer and the Board of Appeals, revolves around two related questions: (1) what level of educational benefit is necessary to satisfy the requirements of the IDEA; and (2) what is the proper measure of educational benefit?

A recent amendment to the IDEA also offers some insight regarding what level of educational benefit is necessary to satisfy the requirements of the IDEA. Congress amended the Purposes section of the IDEA in 1997 to state that the IDEA seeks "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 employment and independent living." 20 U.S.C. § 1400(d)(1)(A) (1998). The stated purpose of preparing a child for employment and independent living supports the Third Circuit's view in Ridgewood that an IEP must be reasonably calculated to provide a child with a meaningful educational benefit. Additionally, Congress' statement that an IEP should be designed to meet a child's "unique" needs reinforces the Supreme Court's holding in Rowley that special education services must be "personalized." See 458 U.S. at 203.

If an IEP must be designed to take into account a child's individual educational needs, it logically follows that the child's capacity to learn should also be considered in evaluating the IEP. Thus, when gauging substantive compliance with the IDEA, the educational benefit provided to the child "must be gauged in relation to the child's potential," so that when a student displays "considerable intellectual potential," the IDEA requires "a great deal more than a negligible [benefit]." Ridgewood Board of Education, 172 F.3d at 247, quoting Polk, 853 F.2d at 185, 182. Similarly, evidence that a child has made some "minimal improvement" does not necessarily show the school has satisfied the Rowley standard. Hall v. Vance County Board of Education, 774 F.2d 629, 636 (4th Cir. 1985).

Following the approach of the Fourth Circuit in Hall and the Third Circuit in Ridgewood, the issue here is whether, in light of Lucas' abilities and disabilities, Greater Clark offered him an IEP reasonably calculated to provide meaningful educational benefit. The court is painfully aware that "meaningful educational benefit" is not an exact standard. See Rowley, 458 U.S. at 201-02 (declining to adopt a single standard for all children, all disabilities, and all cases). In applying that broad standard of meaningful educational benefit, the court must give due deference to the Board of Appeals' conclusions, and the court must be careful to avoid merely taking sides in a reasonable debate over educational policy, theory, or method. The court must also take care to remember that IEPs are not guaranteed to succeed. A child's failure to succeed or progress does not necessarily prove the school has failed to provide an appropriate public education, for there may be other explanations for the lack of meaningful success or progress. Also, of course, some children will always be below the mean, and if some children's test scores are improving relative to others' in the same age group, then some children's scores will reflect drops in percentiles. Nevertheless, merely trivial or minimal progress is not sufficient, at least when there is reason to expect that a child should be able to make meaningful educational progress with appropriate and necessary services.

In its brief, Greater Clark has struck all of these cautionary chords. Courts must defer to the expertise of school officials and should not try to resolve disputed issues of educational policy or practice. The public schools have limited resources. And a child's disabilities may be so severe as to make it impossible for the child to meet his parents' (and perhaps a court's) hopes and expectations. See Def. Br. at 26-31. Taking all of those cautions into account, however, on facts as extreme as these, where a child with a severe learning disability but significant potential made no transferable progress in three years, and where there was no indication the public school was ready and able to change direction, the limits of "due weight" and judicial deference to school authorities have been exceeded.

After reviewing the evidence and the administrative findings, it is clear that by the time Lucas was in fourth grade, and perhaps well before then, Greater Clark's IEP for him was no longer reasonably calculated to confer educational benefit upon him.

Thus, the initial hearing officer and the Board of Appeals agreed on the following facts: that despite Dr. Eglen's "conjecture" to the contrary, Lucas had average intelligence and the ability to process and learn; that the special education services Lucas received at Parkwood Elementary had been effective in some areas but had not been very effective in reading; that Lucas could not read anything outside of the Milestones reading program; that at the end of fourth grade, Lucas's reading skills were at the middle of first grade level; that an expert in dyslexia believed Lucas had "extremely limited growth" while at Parkwood Elementary and was "entitled to more growth than that;" and finally, that Greater Clark personnel did not demonstrate any expertise or extended training in teaching students defined as dyslexic.

Upon review of these facts, it is clear that Greater Clark failed to provide Lucas with a free appropriate public education. Whether Lucas's educational progress (or lack thereof) at Parkwood Elementary is measured by his scores on academic achievement tests, or by his progress in the Milestones reading program and his promotion each year to the next grade level, the result is the same: after three years of special education services, Lucas could not read anything outside the Milestones reading program.

Greater Clark argues, however, that revisions made to Lucas's fifth grade IEP at the October 1998 case conference showed the proposed IEP was reasonably designed to provide him with an educational benefit. Greater Clark maintains that the revised IEP implemented all of Ms. Dakin's recommendations. See Def. Br. at 38. Ms. Dakin had determined that the "whole language or literature based" teaching method used by Ms. Hoeppner had "not been effective with Lucas" and was unlikely to be effective in the future. R. 1450. She therefore recommended the use of a reading program involving direct teaching and multisensory, structured, sequential techniques. Id. She also recommended that Lucas receive special accommodations in the school setting, such as preferential seating, close monitoring of his behavior, and the breaking down of larger projects into smaller components. R. 1451. Finally, she also testified that her recommendations could be implemented in a public school setting. R. 633.

The court assumes it is possible to implement those recommendations in a public school setting. The problem here is that there is no evidence that Greater Clark was planning to do so or was even capable of doing so. Greater Clark contends that Ms. Hoeppner's testimony before the initial hearing officer "confirms that not only was it possible to implement Ms. Dakin's recommendations in the public school context, but that she had actually done so." Def. Br. at 38. The court disagrees.

The initial hearing officer questioned Ms. Hoeppner regarding a public school's ability to implement a teaching program similar to that used by The de Paul School. Ms. Hoeppner testified that it would be possible for a public school to implement such a program. See R. 814-16. The initial hearing officer then asked Ms. Hoeppner to compare the IEP developed for Lucas's fifth grade year to the type of teaching program used by The de Paul School. In comparing Greater Clark's plan to develop Lucas's reading skills with the program used at The de Paul School, Ms. Hoeppner testified: "As far as the reading, you know, we had goals developed for reading and written expression. As far as the four periods a day [of reading instruction at The de Paul School], the only thing that would need to be changed on what we had written up would be the time frame." R. 816.

The cited testimony also contains a series of questions by the initial hearing officer regarding Greater Clark's willingness to implement different teaching methodologies. Ms. Hoeppner testified that Greater Clark would be willing to "try something new" anytime "something's not working." R. 820. The initial hearing officer then asked: "Well, for instance, if they [a private teaching program] would at least demonstrate that they had a teaching methodology for dyslexia students that accomplished more results, you would not be adverse to adopting that into your system?" Id. Mrs. Hoeppner responded: "Oh, absolutely not." Id.

Although this testimony demonstrates Ms. Hoeppner's belief that Greater Clark could implement recommended teaching methodologies and would be willing to do so, it does not show that Ms. Hoeppner either had actually implemented Ms. Dakin's recommendations or was planning to do so. Ms. Dakin made numerous recommendations, but the recommendation most at issue here was that Greater Clark implement a direct teaching reading program using multisensory, structured, sequential techniques. Ms. Hoeppner did not testify that Lucas's fifth grade IEP included the use of such a teaching program, or that she was planning to use such a teaching program. In fact, Lucas's IEP does not provide for the use of a direct teaching method or any other particular teaching technique to be used to improve his reading skills. See R. 1464-1500. As Ms. Hoeppner explained, because there are never any specific instructions in a student's IEP regarding teaching methodology or technique, Ms. Hoeppner would determine what teaching techniques to use with a particular student by looking at the broad goals contained in the student's IEP. See R. 350. There is simply no evidence in the record indicating that, if Ms. Hoeppner had had the opportunity to implement the fifth grade IEP, she was planning to use a teaching method or technique different from those she had used unsuccessfully with Lucas for the prior three years.

Even if Lucas's revised fifth grade IEP had provided for direct teaching using multisensory, structured, sequential techniques to improve his reading skills, there also is no evidence that any Greater Clark personnel were sufficiently qualified to work with dyslexic children. Both the initial hearing officer and the Board of Appeals found as a fact that Greater Clark personnel did not demonstrate any expertise or extended training in teaching students defined as dyslexic. The record supports this finding. See R. 722-25; 737-39.

In light of this evidence, the Board of Appeals could not reasonably: (a) credit Ms. Dakin's testimony that Lucas had "extremely limited growth" while at Parkwood Elementary, (b) find that Lucas was unable to transfer his Milestones reading skills to any other written material, (c) find that Greater Clark personnel did not demonstrate any expertise or extended training in teaching students defined as dyslexic, yet then conclude (d) that Greater Clark was the appropriate educational placement for Lucas because "the IEP formulated by the School was reasonably designed for educational gain and is consistent with the requirements of IDEA, and therefore constitutes a FAPE." See R. 17-18.

The evidence demonstrates that Lucas Nein has the ability to learn how to read and that, for three years, Greater Clark was unable to help Lucas transform his potential to learn how to read into an actual ability to read. When confronted with evidence of this failure, Greater Clark then failed to offer anything but more of the same for Lucas in his fifth grade year. These facts alone establish that Greater Clark did not provide Lucas or offer him an appropriate public education.

The court recognizes that educational policy decisions are generally best left to school authorities. However, the court also has a duty under the IDEA to review the evidence in the record carefully and to determine whether, in light of the evidence, school authorities have made a reasonable decision. Even giving due deference to the findings of the Board of Appeals majority, the Neins have shown by a clear preponderance of the evidence that Greater Clark's IEPs for Lucas were not reasonably calculated to provide educational benefit sufficient under the IDEA. The conclusion by the Board of Appeals majority that Greater Clark had provided Lucas with a free appropriate public education was not reasonable. The IDEA allows schools considerable leeway in choosing educational programs and methods, but it requires more than Lucas received in this case.