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A.V. v. Burlington Township Board of Education

June 27, 2007


The opinion of the court was delivered by: Simandle, District Judge


Plaintiffs A.V. and M.V. bring this action on behalf of their minor child B.V. (the "Plaintiffs") against the defendant Burlington Board of Education (the "Board") pursuant to the Individuals with Disabilities Educational Improvement Act ("IDEIA"), 20 U.S.C. § 1400 et seq.,*fn1 as an appeal of the final administrative decision of January 6, 2006 by the Honorable Jeff S. Masin, New Jersey Administrative Law Judge (the "ALJ's Order"). In the state administrative proceeding, the parents of B.V. challenged the Individualized Education Plan ("IEP") created for their child for the 2004-2005 and 2005-2006 school years and sought placement of B.V. out-of-district (specifically, at the Newgrange School in Princeton, New Jersey).

Presently before the Court are cross-motions for summary judgment filed by both Plaintiffs and the Board. The cross-motions pertain to the four-count complaint ("the Complaint") in which Plaintiffs seek: (1) attorneys fees and costs as the prevailing party at the administrative level; (2) a ruling that the administrative law judge ("ALJ") erred in failing to place B.V. out-of-district; (3) a ruling that the ALJ erred in failing to place B.V. in Newgrange School since the nature and severity of B.V.'s disabilities require an out-of-district placement; and (4) an order stating B.V. should be placed at Newgrange School immediately at the Board's expense because the Board failed to comply with the ALJ's Order.

For the reasons stated below, the Court will grant in part and deny in part Plaintiffs' motion for summary judgment and grant in part and deny in part the Board's motion for summary judgment. First, the Court holds that Plaintiffs are a "prevailing party" entitled to attorneys' fees for the administrative phase. However, given the moderate success at the administrative level, the Court will reduce Plaintiffs' requested amount of attorneys' fees by one-half.*fn2 Second, the Court will deny Plaintiffs' motion in part and hold that the ALJ did not err when he declined to order that B.V. be placed out-of-district at Newgrange School. Plaintiffs simply have not met their burden of proof that the challenged IEPs were not reasonably calculated to confer a meaningful educational benefit on B.V. and that B.V. could not receive a free and appropriate public education in the least restrictive environment within the district.

Finally, the Board has failed to oppose Plaintiffs' motion seeking to have B.V. placed immediately at Newgrange School and Plaintiffs have demonstrated that the Board has failed to comply with the ALJ's Order in many respects. Although unopposed, the Court does not deem it appropriate to order Plaintiffs' requested relief of a specific out-of-district placement despite the fact that the Board does not appear to be complying with the ALJ's Order. However, the Court will order that the Board immediately comply with the ALJ's Order to make certain determinations about the district's ability to provide B.V. with support ordered by the ALJ, and to provide the services therein ordered, and to provide Plaintiffs with compensatory services for the services the Board neglected to provide to B.V. during the Spring semester of 2006 following the ALJ's Order, as explained below.


A. The 2002-2003 and 2003-2004 School Years

B.V. was born on July 1, 1997 as one of three triplets. Concerns about his development arose early. During his pre-school years, B.V. was classified as pre-school disabled and received speech therapy twice a week in his home. When B.V. was five years old, he entered kindergarten in Burlington Township, New Jersey. At the conclusion of the 2002-2003 school year (his kindergarten year), B.V. was classified as Multiply Disabled.

B.V. entered the first grade in the 2003-2004 school year. B.V.'s mother noticed that at home, B.V. could see a word and break the word down into its phonemes, but could not then "sound out" or blend those phonemes together to read the word. B.V.'s mother began to observe B.V.'s class on a regular basis and noticed that B.V. had serious attention problems and would often "space out" during class. Because of B.V.'s attention issues, M.V. took B.V. to a pediatric neurologist, Dr. Chester Minarcik, M.D. in April of 2004. Dr. Minarcik diagnosed B.V. with attention deficit disorder.

Also in April of 2004, B.V's IEP team met. In the "Present Levels of Educational Performance" section of the IEP, the team noted that B.V.'s grade equivalent in language arts in October 2003 was pre-school ninth month but by February 2004, his grade equivalent had dropped to pre-school seventh month. Thus, B.V. had regressed over the school year. According to Ms. Sherrie Wexler, B.V.'s case manager, B.V.'s parents did not object to the April 2004 IEP and the IEP was implemented.

Following the April 2004 IEP evaluation results, B.V. was evaluated by no less than six experts in the next seven months.

* Evaluation by Dr. James Priest, Ph.D. In June, 2004, B.V, was evaluated by an independent psychologist hired by B.V.'s parents. In his report, Dr. Priest found that B.V.'s "ability to scan and discriminate figural information under timed conditions was borderline" and this weakness "may impact on reading fluency." Dr. Priest concluded that B.V. "has average ability and should be making better progress" and that he "functions better in individualized contexts [requiring] more oneon-one support in school." (Pl.'s Br. at Ex. 6.)

* Evaluation by Allyn McLaughlin, M.Ed. In July, 2004, B.V. received an educational assessment from Allyn McLaughlin. With respect to his ability to read, McLaughlin found that B.V.: has some awareness of letter sounds but is not able to utilize them to efficiently decode words . . . . When listening to sounds of consonants, [B.V.] is able to identify most. He has more difficulty with matching the visual letter with the sound it makes. Given this weakness, [B.V.] is not successful at decoding. His current reading skills suggest a need for further remediation in all aspects of reading.

(Pl.'s Br. at Ex. 7, Allyn C. McLaughlin, M.Ed. Educational Assessment at 4.)

* Second evaluation by Dr. Minarcik. In September, 2004, B.V. received another evaluation from Dr. Minarcik who diagnosed B.V. with Dyslexia. (Pl.'s Br. at Ex. 8).

* Evaluation by Linda Gross, Ed.M. In October of 2004, B.V. was evaluated by certified reading specialist Linda Gross, Ed.M. Ms. Gross found that B.V. was "a non-reader." Although B.V. recognized two sight words from a pre-primer list, he did not know the vowel sounds and was unable to decode two-letter words even after the sounds of the letters had been taught to him and reviewed. Ms. Gross stated that B.V. required "a VAKT (visual, auditory, kinesthetic and tactile) approach to reading . . . ." Ms. Gross also warned that it was "imperative that [phonemic awareness skills] be taught or [B.V.] will remain a non-reader." (Pl.'s Br. at Ex. 9, Linda Gross, Ed.M. Report at 1.)

* Evaluation by Sherrie Wexler. In November of 2004, B.V.'s case manager Sherrie Wexler conducted a psychoeducational assessment in which Ms. Wexler confirmed that B.V. was "unable to read." Ms. Wexler also noted that B.V. "demonstrated a weakness in blending sounds." (Pl.'s Br. at Ex. 11, Psychoeducational Assessment of Sherrie L. Wexler at 5-6.)

* Evaluation by Ted Silber. In December of 2004, school psychologist Ted Silber conducted a psychological evaluation of B.V. Mr. Silber reported that B.V.'s scores on tests for rapid automatic naming and phonological skills (both "critical components of reading ability) are "moderately below average and below average, respectively." Despite average intelligence, B.V. ranked in the fifth percentile for both Word Reading and Pseudoword Decoding. (Pl.'s Br. at Ex. 12, Burlington Township Schools Child Study Services Psychological Evaluation.)

B. The 2004-2005 School Year

During B.V.'s second grade year, the Board "mainstreamed" him for social studies and science instruction by combining B.V.'s self-contained class with a general education class. According to M.V., B.V. struggled in this environment. In mid-December of 2004, the Child Study Team conducted a required reevaluation of B.V. and created a new IEP to remain in effect for the remainder of B.V.'s second grade. B.V.'s parents requested three hours per day of individualized reading instruction. The Child Study Team, however, only called for forty minutes per day of one-on-one reading instruction. The Child Study Team revised their position somewhat in January of 2005 after the Child Study Team accepted the evaluations of B.V. as well as the diagnosis of Dyslexia. With this, the Child Study Team agreed to provide B.V. with additional, individual twenty-minute sessions with the Earobics Literacy Program.

According to Ms. Donna Baldwin, a reading specialist who worked with B.V., these services were provided from January through June of 2005. In her deposition, Ms Baldwin admitted that she didn't "normally work with students with special needs" and that she never reviewed the Board's psychological assessment outlining B.V.'s needs or any other independent assessments (including Linda Gross' assessment). Moreover, Ms. Baldwin stated that she was unaware of B.V.'s processing speed difficulties.

Near the end of B.V.'s second-grade-year (in April, 2005), the IEP team met again to discuss B.V.'s third-grade IEP. Although B.V. completed second grade, the "Present Levels of Educational Performance" identified B.V.'s math grade equivalent as first grade, two months and his reading grade equivalent as kindergarten, eighth month. On the Wechsler Individual Achievement Tests, B.V.'s word reading, reading comprehension, and pseudoword decoding were all disturbingly low, registering at the eighth, tenth, and thirteenth percentiles, respectively. After reviewing this information, the Child Study Team decided to cancel the forty minutes of individualized reading instruction for the 2005-2006 school year.

B.V.'s parents rejected the IEP and requested out-of-district placement. In support their claim for an out of district placement, B.V.'s parents secured another independent evaluation, that of neuropsychologist Dr. Gail Silverstein, Ph.D. Dr. Silverstein administered numerous tests to B.V., concluding that B.V. "demonstrates a severe mixed learning disability with both language-based and non-verbal components, significant attentional problems, articulation problems, and fine motor problems." Dr. Silverstein also mentioned that B.V. had completed second grade but "is still unable to decode any words at all or to express himself in writing" and that he is in "dire need of appropriate reading instruction." Dr. Silverstein noted B.V.'s severe attentional problems, processing speed problems, and fatigue. Overall, she recommended that:

* B.V. have at least two hours/day of intensive reading instruction with a research-based, multi-sensory phonics-based method and should be taught by a trained instructor optimally in a one-to-one setting;

* Reading instruction should be integrated into the overall curriculum so as to maximize B.V.'s exposure to it;

* B.V. should have intensive and individualized instruction in writing in a one-on-one or small group setting;

* All reading instruction and other important academic skills should be taught in the morning before B.V. begins to fatigue; and

* B.V. should continue to get speech and occupational therapy services.

Dr. Silverstein testified that she knew of no public school that could implement all of these recommendations, including B.V.'s current placement. In light of her test results and B.V.'s needs, she recommended that he be placed at the Newgrange School, a school in Princeton New Jersey that could implement all of her recommendations. Dr. Silverstein testified to the curriculum of the Newgrange School despite having never visited Newgrange, stating only that she learned of Newgrange's ability to implement the curriculum she outlined for B.V. in a telephone call she had with the Principal at Newgrange. No one from Newgrange ever testified or provided any documents.

C. Procedural History

On September 19, 2005, Plaintiffs filed a Petition of Due Process with the New Jersey Department of Education, Office of Special Education Programs. (Pl.'s Br. at Ex. 21.) In their Petition of Due Process, Plaintiffs sought placement of B.V. at the Newgrange School, certain compensatory education and "[s]uch relief as the Court deems appropriate." (Id. at 7.) Plaintiffs also requested a hearing. A resolution session was conducted on October 6, 2005 and the matter was transmitted to the ALJ for a hearing on ...

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