C.M. v. Rutherford Cnty. Sch.

595 F.Supp.3d 630

C.M., the Student, and B.M. and Ca.M., the Student's Parents, Plaintiffs,

v.RUTHERFORD COUNTY SCHOOLS, Defendant.

No. 3:20-cv-1088

United States District Court, M.D. Tennessee, Nashville Division.

Filed March 30, 2022

Cheryl L. Cheffins, Special Needs Law Center, Michael F. Braun, Nashville, TN, for Plaintiffs.

Daniel W. Ames, Nicholas Clinton Christiansen, Hudson, Reed & Christiansen, PLLC, Murfreesboro, TN, for Defendant.

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

This is an appeal from a state Administrative Law Judge's ("ALJ") finding that Rutherford County Schools ("RCS") provided C.M. with a free appropriate public education ("FAPE") during the 2018-2019 school year, as required by the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1414 et seq. The Magistrate Judge has issued a Report and Recommendation ("R&R") (Doc. No. 47) pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, in which she recommends that (1) C.M's Motion for Judgment on the Administrative Record (Doc. No. 29) be granted, and (2) RCS's cross-Motion for Judgment on the Administrative Record (Doc. No. 32) be denied. The Magistrate Judge also recommends that, if the R&R is accepted by the Court, "the parties be required to confer and provide supplemental briefing with an agreed or competing proposals for financial reimbursement of implementation of compensatory education." (Doc. No. 47 at 34). RCS has filed Objections (Doc. No. 54) to the R&R, to which Plaintiffs have responded (Doc. No. 55).

I. Standards of Review

Two standards of review govern these proceedings. First, because the R&R would be case dispositive if accepted, the Court's review is de novo under Rule 72. "This does not mean, however, that the Court must ‘reinvent the wheel’ when taking a fresh look at the matter." Snider v. Saul, No. 3:18-CV-00857, 2020 WL 30217, at *1 (M.D. Tenn. Jan. 2, 2020) (citing Chen v. I.N.S., 87 F.3d 5, 7 (1st Cir. 1996) ; Franklin v. Anderson, 267 F. Supp. 2d 768, 793 (S.D. Ohio 2003) ). Instead, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 73(b)(3). What this means is that case-dispositive matters may be handled by magistrate judges, so long as the district judge retains full and ultimate authority "to make an informed, final determination" of the case. United States v. Raddatz, 447 U.S. 667, 682–83, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). This is in keeping with one of the purposes of the Federal Magistrate Act: "to vest ‘ultimate adjudicatory power over dispositive motions’ in the district court while granting the ‘widest discretion’ on how to treat the recommendations of the magistrate." Raddatz, 447 U.S. at 675, 100 S.Ct. 2406.

Second, "[i]n reviewing an ALJ's decision in an IDEA case, district courts apply a ‘modified de novo’ standard that requires the court ‘to make findings of fact based on a preponderance of the evidence contained in the complete record, while giving some deference to the fact findings of the administrative proceedings.’ " Somberg on behalf of Somberg v. Utica Cmty. Sch., 908 F.3d 162, 172 (6th Cir. 2018) (quoting Deal v. Hamilton Cty. Bd. of Educ., 392 F.3d 840, 849–50 (6th Cir. 2004) ). "When educational expertise is relevant to an ALJ's finding, the reviewing court affords the finding more weight," but the same is not true when such expertise is not relevant because "the court is as well suited to evaluate the issue as the ALJ." Id. (citing McLaughlin v. Holt Pub. Schs. Bd. of Educ., 320 F.3d 663, 669 (6th Cir. 2003) ). This standard of review of administrative findings in IDEA cases "afford[s] less deference than that given to agencies under the substantial evidence test." Burilovich v. Bd. of Educ. of Lincoln Consol. Sch., 208 F.3d 560, 567 (6th Cir. 2000).

II. Factual Background

The underlying facts as well as a description of the Administrative Hearing are laid out at great length in the R&R (Doc. No. 47 at 3–19) and need not be repeated in the same detail here. Instead, and to give context to RCS's objections, the Court sets forth the salient facts and proceedings that appear not to be in material dispute.

While a fourth grader in the Murfreesboro City Schools ("MCS"), C.M. was diagnosed with dyslexia. As a consequence, MCS provided C.M. with specialized instruction under an individualized educational program ("IEP") that identified goals and accommodations to obtain those goals. At the end of C.M.’s sixth grade school year, MCS developed another IEP that provided some 30 accommodations. The IEP also included the Wilson Assessment of Decoding and Encoding ("Wilson") program to help C.M. with his reading skills.

In August 2018, C.M. became a seventh grader at Whitworth Buchanan Middle School ("Whitworth") in Rutherford County. Later that month, on August 23, 2018, B.M. (C.M.’s mother) forwarded an email to Willard Caster, C.M.’s new case manager, from Dr. Melinda Hirschmann, the Assistant Director for Education Services and School Outreach at the Tennessee Center for the Study and Treatment of Dyslexia at Middle Tennessee State. Dr. Hirschmann recommended that C.M. continue to use the Wilson program in his new school. Nevertheless, the next day, C.M. was administered a placement test under a different reading program called Language! in order for RCS to "determine ‘where to start’ C.M.’s supportive services, including, ‘what level books that [C.M.’s] going to be on and which class [he's] going to be in’ within the Language! program." (R&R at 5, citations to record omitted).

Using Language! as the testing method may have been a harbinger of what was to come because that program, rather than Wilson, ended up being C.M.’s reading program under his IEP. At the first meeting to determine C.M.’s new middle school IEP, Caster brought a document he had prepared containing C.M.’s "Present Levels of Performance" ("PLEPs") in the areas of reading fluency, reading comprehension, and pre-vocational skills, showing that C.M. had scored in the 69^th percentile for reading comprehension – substantially above the 25^th percentile cutoff for students generally entitled to special education services. The testing, however, did not capture C.M.’s PLEP regarding basic reading skills, which was the deficit that formed the basis for C.M. receiving such services. Nevertheless, the PLEPs convinced RCS team members to endorse removing three of the four readings goals used at MCS, including comprehension, spelling, and vowel-consonant word patterns.

The IEP contained only one reading goal, which was to improve C.M.’s score on reading fluency from the 8^th percentile of his peer group to the 15^th percentile. Like MCS's IEP, it contained additional time for TNReady testing in English/Language Arts, Mathematics, Science, and Social Studies, but it did not retain the Human Reader accommodations that had been permitted for state testing at MCS.

Although B.M. had several concerns with the IEP, including the use of Language! because she believed that Wilson was the only program that met C.M.’s reading needs, she relented. Still, B.M. remained dissatisfied, refused to sign the Informed Parental Consent Form at that meeting, and requested another IEP meeting, which took place 10 days later. After two hours of additional discussion, no changes of any real substance were made as a result of the second meeting. B.M. signed the consent, but two days later sent Caster a letter continuing to take issue with the IEP.

In January 2019, after a dispute about whether C.M. should be evaluated not only for dyslexia but also for Attention Deficit Disorder (with which he had also been diagnosed), a statutorily-required triennial meeting was held to assess C.M.’s continued eligibility for special education services. Dr. Lauren Goss, the psychologist for RCS, conducted the reevaluation utilizing classroom observations, input from C.M. and his parents and teachers, and a battery of testing that took place in January and February 2019. Her testing found that C.M. placed in the 86th percentile for phonological awareness, 81st percentile for rapid automatized naming, and the 12th percentile for phonological memory, meaning that C.M. was above average in the first two categories, but below average in the third. Dr. Goss determined that C.M. probably did not meet the eligibility requirements for continued basic reading services, and her opinion was shared with the IEP team members at RCS. Those members concurred, but nevertheless referred C.M. to the 504 Team to determine whether he was eligible for services under Section 504 of the Rehabilitation Act, 29 U.S.C. § 701. That Act generally defines disability more broadly than the IDEA, but provides fewer services.

On April 12, 2019, the 504 Team held a meeting, which C.M.’s mother and father both attended. The team determined that C.M. was eligible for services that provided 13 accommodations. C.M.’s parents signed the 504 plan.

Believing that C.M. remained entitled to an IEP under the IDEA, his parents filed a due process complaint with the Tennessee Department of Education on May 1, 2019, contending that RCS failed to provide a FAPE to C.M., and requesting that the ALJ require RCS to provide their son with reading instruction pursuant to Wilson until all 12 steps of the program were completed. They also requested an Independent Educational Evaluation ("IEE"). That request was agreed to, and paid for, by RCS.

The IEE, consisting of a series of tests, was conducted by Dr. Emily Kirk at the Currey Ingram Academy Diagnostic Center in June 2019. The results of that test are summarized in the R&R as follows:

Dr. Kirk completed her report on August 28, 2019, which documented scores placing C.M. in the 14^th percentile for basic reading (low average), 13th percentile for reading comprehension and fluency (low average), and the 5th percentile for spelling (very

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