Dougall v. Copley-Fairlawn City Sch. Dist. Bd. of Educ.

Paul and Jennifer Dougall, in their own capacitiesand as natural guardians of a minor, A.D. Plaintiffs,

v.

Copley-Fairlawn City SchoolDistrict Board of Education, et al., Defendants

Case No. 5:17cv1664

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

January 28, 2020

JUDGE PAMELA A. BARKER

MEMORANDUM OPINION AND ORDER

Currently pending is the Amended Motion of Plaintiffs Paul and Jennifer Dougall, in their own capacities and as natural guardians of a minor, A.D., for Judgment on the Administrative Record regarding their claims under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. (Doc. No. 49.) Defendants Copley-Fairlawn City School District Board of Education; Board Members Kenneth Calderone, Jessica Vargo, Paul Cevasco, Sue Emich and Richard Levin; and Copley-Fairlawn Schools Superintendent Brian Poe¹ filed a Brief in Opposition (Doc. No. 50), to which Plaintiffs responded (Doc. No. 51.)

For the following reasons, Plaintiffs' Amended Motion (Doc. No. 49) is DENIED.

I. Factual Background

A.D. was a student in the Copley-Fairlawn City School District ("CFCSD") from Kindergarten until her withdrawal in November 2015, when she was in ninth grade. (Administrative Record ("A.R.") (Doc. No. 34) at 973.)² The primary issues in this case are (1) whether the CFCSD Defendants violated the child find provisions of the IDEA by failing to evaluate A.D.'s eligibility for an IEP prior to her expulsion from CFCSD in October 2015; and (2) whether the CFCSD Defendants violated the IDEA by failing to complete an IDEA evaluation of A.D. after Plaintiffs allegedly revoked consent for such evaluation in January 2016. The Court will set forth the relevant facts with these issues in mind.

A. Elementary School through Eighth Grade

The parties do not direct this Court's attention to much testimony and evidence relating to A.D.'s elementary school years (i.e., Kindergarten through fifth grade). A.D.'s parents testified generally that A.D. has had irritable bowel issues since the second grade, which caused her to have to frequently go to the bathroom and sometimes caused her to soil herself. (A.R. 1820 (Tr. 1081-1082); A.R. 1822 (Tr. 1089)). Mrs. Dougall also testified that, although A.D. was not diagnosed with autism until much later, A.D. must have had autism since birth, as autism "is not an acquired disorder."³ (A.R. 1818-1819 (Tr. 1074-1076.) She testified that, looking back, she believes A.D. suffered from anxiety and social problems throughout elementary school. See, e.g., A.R. 1820 (Tr. 1081-1082.)

When A.D. was in fifth grade (i.e., the 2011-2012 school year), she was placed in a special, all-girls, lunch group "so that she wouldn't feel alone." (A.R. 2007-2008 (Tr. 1517-1518); A.R. 2279 (Tr. 2249-2250)). In addition, Mrs. Dougall testified that, at her request, the school moved A.D. to a different math class because the noise level in her current class was distracting to her and affecting her grades. (A.R. 2007-2008 (Tr. 1517-1518)). Mrs. Dougall also testified that A.D.'s gastrointestinal problems caused A.D. to have to go to the bathroom frequently during the fifth grade, causing Mrs. Dougall to reach out to A.D.'s fifth grade teacher for understanding regarding the issue. (A.R. 2008 (Tr. 1520-1521)).

Despite these issues, however, the record reflects that, academically, A.D. was a strong student during both the fifth and sixth grades. Specifically, the record reflects that A.D.'s grades consisted primarily of A's and B's during this time period,⁴ and that A.D. was moved into an advanced reading group during the fifth grade. (A.R. 3136; A.R. 2294 (Tr. 2307)). A.D.'s guidance counselor, Thea Sako, testified that A.D. was a "high achiever" during fifth and sixth grade, and that she did not recall being aware that A.D. was having any difficulties in school during this time period. (A.R. 2283 (Tr. 2265-2267)). Notably, Ms. Sako testified that A.D. developed a "very good friendship" with one girl in her lunch group (A.R. 2287 (Tr. 2282)) and stated that "[f]rom what I recall in the lunch group, she was very much a part of the group and [a] typical 5^th grade girl with the rest of the girls." (A.R. 2287 (Tr. 2282, 2284)). Ms. Sako further testified that, at that time, she didnot have any reason to suspect that A.D. might be a child with a disability in need of special education. (A.R. 2283 (Tr. 2267)).

The Dougalls testified that A.D. experienced increased problems with her teachers and peers during the seventh and eighth grades (i.e., the 2013-2014 and 2014-2015 school years, respectively). Of particular note, in September 2014 (when A.D. was in the eighth grade), an incident occurred on a school bus during which a student threatened to "shove pills down [A.D.'s] throat" and "dig a hole and watch [her] burn." (A.R. 3711, 3716.) Shortly thereafter, a student called A.D. a "snitch." (A.R. 3710, 3708.) The following month, Mrs. Dougall contacted the school to complain after learning that A.D.'s band teacher allegedly called A.D. "stupid" after she left the band room. (A.R. 3861-3862.) Mrs. Dougall also noticed inattention and focus issues during this time period⁵, as well as problems with increased anxiety. (A.R. 1821-1822 (Tr. 1086-1091)). Mr. and Mrs. Dougall both testified regarding numerous instances of alleged bullying, particularly during A.D.'s eighth grade year.⁶ See e.g., A.R. 1715-1721 (Tr. 790-817); A.R. 2041-2044 (Tr. 1653-1665).

Mrs. Dougall testified that she and Mr. Dougall "started noticing behavior changes and withdrawal and isolation in the fall of 2014," when A.D. was in the eighth grade. (A.R. 1819 (Tr. 1077)). In December 2014, A.D. expressed suicidal ideation, after which she began regular psychiatric counseling. (A.R. 1819 (Tr. 1077-1087)). Mrs. Dougall testified that she promptly notified A.D.'s guidance counselor, Robert Cowie, regarding A.D.'s suicidal ideation and treatment. (Id.) Mr. Cowie did not recall being advised that A.D. had experienced suicidal ideation. (A.R. 2526, 2527 (Tr. 2810, 2817)).

In early 2015, the Dougalls arranged for A.D. to undergo a private psychological assessment. As part of this assessment, several of A.D.'s teachers completed questionnaires regarding A.D.'s classroom behavior. A.D.'s eighth grade accelerated math teacher, Timothy Green, noted several concerns regarding A.D.'s behavior in his questionnaire responses. (A.R. 3661-3664.) In particular, he indicated that A.D. "often" exhibited the following behaviors and/or traits: (1) has difficulty paying attention to tasks; (2) does not seem to listen when spoken to directly; (3) is easily distracted by other things going on; (4) is touchy or easily annoyed by others; (5) is angry and resentful; (6) acts restless or edgy; (7) is irritable; (8) is more anxious in social situations than most other youths; (9) is excessively shy; and (10) seems to have lost interest in doing things or talking to people. (Id.) Mr. Green also stated that A.D. "very often" exhibited the following behaviors: (1) is extremely tense or unable to relax; (2) is emotionally cold or indifferent towards people; and (3) shows little interest in (or enjoyment of) pleasurable activities. (Id.) In the narrative section of the questionnaire, Mr. Green observed as follows:

[A.D.] does not seem to take non-verbal cues. She also does not seem to have an accurate read of social environments within the class, social norms. Her actions are not wildly attention grabbing, they just seem odd to myself and occasionally her peers.

(A.R. 3664.)

During the due process hearing, Mr. Green testified that A.D. had poor eye contact, was socially awkward, and "didn't really seem like she was ultra-engaged in what was happening." (A.R. 2336, 2337 (Tr. 2327-2328, 2330)). However, he testified that this did not impact A.D.'s ability to understand the class material or otherwise affect her grades or her performance in his class. (A.R. 2336-2337 (Tr. 2328-2331)). Mr. Green further noted that, although he thought A.D. might be on the "very low end" of the autism spectrum, he did not think that she needed any specially designed instruction. (A.R. 2338 (Tr. 2336-2337)). He stated he had "no concerns" regarding A.D.'s academic performance. (A.R. 2339 (Tr. 2341)). The record reflects that A.D. received B's each quarter in Mr. Green's accelerated math class. (A.R. 3133.)

Several of A.D.'s other eighth grade teachers also testified at the due process hearing. A.D's eighth grade English/Language Arts teacher Adam Virgei, testified that A.D. was a strong English student, both in terms of her writing and her ability to speak in public. (A.R. 2355 (Tr. 2404-2405)). Although he remembered A.D. as being "a little shy" at the beginning of the school year, he testified that she became less so as the year progressed and had no difficulty relating to others or maintaining eye contact. (A.R. 2358, 2362 (Tr. 2414, 2430-2432)). Mr. Virgei also testified he did not see any evidence of depression, anxiety, or lack of attention or focus. (A.R. 2358, 2369 (Tr. 2414-2416, 2458-2461)). Mr. Virgei noted that A.D. received an A in his class during the third and fourth quarters and stated that he did not think there was any reason for A.D. to have had an Individualized Education Plan ("IEP").⁷ (A.R. 3135; A.R. 2357 (Tr. 2413)).

A.D.'s eighth grade science teacher, Hallie Simenc, also testified that she had no reason to suspect that A.D. needed special education services. (A.R. 2427 (Tr. 2558)). Ms. Simenc indicated that A.D. was a good student and did very well in her class. (A.R. 2426-2427 (Tr. 2554, 2558)). She noted in particular that A.D. worked well in groups, stating "she definitely had a group of students that she enjoyed working with in my classroom." (A.R. 2426 (Tr. 2553)). Ms. Simenc characterized A.D.'s class participation as "great" and testified that A.D. had no problems interacting with other students. (A.R. 2426-2427 (Tr. 2554-2555)). The record reflects...