Doe v. E. Lyme Bd. of Educ.

262 F.Supp.3d 11

John DOE, BY AND THROUGH his parent, Jane DOE, Plaintiffs,

v.EAST LYME BOARD OF EDUCATION, Defendant.

Civil No. 3:11cv291(JBA)

United States District Court, D. Connecticut.

Signed June 29, 2017

Alicia M. Parmentier, Pro Hac Vice, Eileen M. Hagerty, Pro Hac Vice, Kotkin, Crabtree & Strong, LLP, Boston, MA, Lawrence J. Joseph, Pro Hac Vice, Law Office of Lawrence J. Joseph, Washington, DC, Clifford J. Grandjean, Kennedy, Johnson, Schwab & Roberge, LLC, New Haven, CT, for Plaintiffs.

Frederick L. Dorsey, Sheldon D. Myers, Kainen, Escalera & McHale, PC, Hartford, CT, for Defendant.

MEMORANDUM OF DECISION ON REIMBURSEMENT OF PLAINTIFFS' OUT–OF–POCKET EXPENSES AND COMPENSATORY EDUCATION

Janet Bond Arterton, U.S.D.J.

This case, brought by Plaintiff John Doe, by and through his parent Jane Doe, (together "Plaintiffs") against the East Lyme Board of Education ("the Board" or "Defendant") for violations of the Individuals with Disabilities Education Act (the "IDEA" or the "Act"), is before the Court on remand from the Second Circuit to conduct further proceedings and craft a remedy consistent with the Circuit's opinion. This Court held a nonconsecutive three-day bench trial September 22, 2016, December 12, 2016, and January 6, 2017, during which the parties called witnesses and introduced evidence.

In summary, and for the reasons discussed in the Memorandum of Decision (the "Judgment" or the "Decision") that follows, the Board must reimburse Plaintiffs in full for Ms. Doe's out-of-pocket expenses plus interest and place $203,478.10¹ for compensatory education into an escrow account for John Doe, to remain open for six years or until John graduates college, whichever occurs first.

This compensatory education award is equivalent to the value of the covered services which were never provided him by either the Board or Ms. Doe, at the fair market rates available to Ms. Doe, not the rates the Board would pay. Since the Court finds that John's educational needs will continue through college and that he will continue to benefit from services analogous to those in the Stay–Put IEP ("individualized education plan"), an escrow account shall be opened for the benefit of John Doe as soon as practicable after all calculations have been finalized and shall remain open until John completes college or six years have passed, whichever occurs first. All expenses consistent with this decision shall be reimbursed upon submission of documentation to an independent escrow agent and any funds remaining in the escrow account at its close shall be refunded to the Board.

I. Background

A. Procedural History

As detailed in Magistrate Judge Margolis's Recommended Ruling [Doc. # 71] on the parties' cross-motions for summary judgment and the Second Circuit's ruling, Doe v. East Lyme Bd. of Educ. , 790 F.3d 440, 445 (2d Cir. 2015), John Doe is a child (originally) diagnosed with autism² who requires special education services. Until the 2009–2010 school year, the parent and the Board were able to agree on IEPs for John, which the Board would provide and fund. However, the parent and the Board were unable to reach such an agreement for the 2009–2010 school year, and as a result, the parent placed John in a private school outside the District and continued to privately obtain some of the related services previously funded by the Board.

Plaintiff brought suit under the IDEA, claiming that Defendant had failed to provide John with a free and adequate public education ("FAPE"), as required by the IDEA, by offering John an inadequate IEP for the 2009–2010 school year and by failing to offer him any IEP for the 2010–2011 and subsequent school years.

This Court, largely adopting Magistrate Judge Margolis's Recommended Ruling, found [Doc. # 79] that the Board had provided John with a FAPE for the 2009–2010 school year, and that although the Board had violated the IDEA by failing to offer the student an IEP for the 2010–2011 and subsequent school years, Plaintiffs were not entitled to relief because the private school at which the parent had placed the child was an inappropriate placement. (See Ruling on Objs. to Rec. R. Summ. J. at 8–15). The Court further found, however, that the Board had violated the "stay-put" provision of the IDEA, 20 U.S.C. § 1415(j), which requires that "during the pendency of any proceedings conducted pursuant to this section ... the child shall remain in the then-current educational placement of the child," by failing to fund the services described in the 2008–2009 IEP after the parties reached an impasse on June 17, 2009. (Id. at 3–6.) The Court therefore ordered Defendant to reimburse Plaintiffs for expenses the parent incurred from June 17, 2009 through the date final judgment in this case is entered.³ (Id. at 6.) The Court later determined that amount to be $97,445. (Ruling on Objs. to Rec. R. Stay–Put at 10.) Defendant paid that sum to Plaintiff in June 2015.⁴

Both parties appealed the Court's decision. On appeal, the Second Circuit affirmed the Court's judgment in most respects but vacated the award of reimbursement, holding that: (1) the parent should have been reimbursed for the full value of the services the Board was required to fund under the 2008–2009 IEP, not for the (lesser) amount that the parent actually expended in obtaining some of the services provided for by the IEP, East Lyme BOE , 790 F.3d at 445 ; and (2) the stay-put obligation was triggered on April 27, 2010, when the parent initiated the administrative due process proceedings, not on June 17, 2009, when the parties reached an impasse, id. at 455.

The Second Circuit noted, however, that "an award of damages to make up the difference is impermissible under the IDEA." Id. at 456. Compensatory education ("prospective equitable relief, requiring a school district to fund education beyond the expiration of a child's eligibility as a remedy for any earlier deprivations in the child's education"), on the other hand, is permissible. Id. (internal quotation marks omitted). Therefore, the court remanded the case to this Court to

calculate the total value of the related services specified in the amended 2008–2009 IEP for the period from April 27, 2010, to the (as yet undetermined) date of the new final judgment; order the Board to reimburse the Parent for out-of-pocket expenses incurred on covered services during that period; and direct the Board to provide (with the parent's requisite participation) the remainder of the total value as compensatory education to commence at the conclusion of litigation.

Id. at 457 (internal citations omitted).

The East Lyme panel found that "[a]lthough [it had] typically endorsed compensatory education as a remedy for substantive FAPE claims ... there is no reason why the remedy should not be equally available for stay-put violations."

E. Lyme Bd. of Educ. , 790 F.3d at 456. Consequently, this appears to be the first time a district court in the Second Circuit has been asked to craft a compensatory education award for violation of the stay-put provision.

B. The 2016–17 Bench Trial

At trial, Plaintiffs offered testimony from John Doe's mother, Ms. Jane Doe, as well as Dr. Robert Kemper, a speech and language pathologist and psycholinguist who is familiar with John Doe's disability and his progression.

Dr. Kemper's particular areas of expertise include how children understand and process oral and written language; reading disabilities, including dyslexia ; disorders of written expression ; social communicative disabilities; and syntax disorders. (Bench Trial Transcript ("Tr.") I at 213:2–214:9; Pl.'s Ex. 1 (Dr. Kemper Curriculum Vitae).) Dr. Kemper first encountered John in 2008 at age eight, when he was initially asked to perform a psycholinguistic evaluation of John. (See Pl.'s Ex. 18 (10/2/08 Report of Psycholinguistic Evaluation).) He subsequently evaluated John in 2009, 2010, and 2011, (see Pl.'s Ex.'s 19 (5/15/09 Report of Modified Psycholinguistic Evaluation); Ex. 20 (4/8/10 Report of Psycholinguistic Reevaluation); Ex. 21 (4/28/11 Report of Psycholinguistic Reevaluation)), conducted a school observation of John at the Schechter Academy in 2010 (tr. II at 256:3–10), and most recently met with John in 2016 (see Pl.'s Ex. 22 (7/7/16 Report of Progress for [John Doe] ); Tr. I at 140:11–13).

Defendant called the former Assistant Superintendent for Special Education and Pupil Services, Ms. Donna Gittleman, who began at East Lyme in 2014. (Tr. II at 410:7–8.) As its second witness, the Board presented Interim Special Services Director, Ms. Kimberly Davis, whose tenure began July 1, 2016.

John Doe is now entering his senior year of high school at Lyme–Old Lyme High School and is on track to graduate at the conclusion of the 2017–2018 school year. (Tr. I at 15–16; Tr. I at 191:21–23.) John intends to pursue a bachelor's degree beginning in the 2018–2019 school year. (Tr. II at 317:19–318:4.)

The Court's findings of fact are integrated into the "Discussion" section below because a significant portion of what this Court must now decide involves factual determinations.

II. Discussion

In any action brought under the IDEA, the court "shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C)(iii). In turn, "the only restriction is that ‘the relief is to be appropriate in light of the purpose of the Act.’ " E. Lyme Bd. of Educ. , 790 F.3d 440, 454 (quoting Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass. , 471 U.S. 359, 374, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) ).⁵ The Supreme Court has emphasized that IDEA relief depends upon "equitable considerations" and that "the court enjoys ‘broad discretion’ " in crafting the remedy. Florence Cty. Sch. Dist. Four v. Carter By & Through Carter , 510 U.S. 7, 16, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993) (quoting Burlington , 471 U.S. at 374, 105 S.Ct. 1996 ).

Here, the Second Circuit held "that the appropriate equitable relief for a stay-put violation is...