Draper v. Atlanta Indep. School System

480 F.Supp.2d 1331

Jarron DRAPER, Plaintiff, v. ATLANTA INDEPENDENT SCHOOL SYSTEM, Defendant.

Civil Action No. 1:06-CV-487-MHS.

United States District Court, N.D. Georgia, Atlanta Division.

March 19, 2007.

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David Moss Monde, Stephen C. Belan, Jones Day, Atlanta, GA, Steven Wyner, Marcy J.K. Tiffany, Wyner & Tiffany, Torrance, CA, for Plaintiff.

Audrey E. Moog, Maree F. Sneed, Hogan & Hartson, Washington, DC, Marcia E. Fishman, Atlanta Public Schools, Law Department, Atlanta, GA, for Defendant.

ORDER

SHOOB, Senior District Judge.

There are several matters pending before the Court. The Court's rulings and conclusions are set forth below.

Background

This case arises under the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Plaintiff Jarron Draper ("J.D.") is a twenty year old student, who at the time of the due process hearing in this case was enrolled in the 11th grade at Benjamin E. Mays High School within the Atlanta Independent School System ("APS"). On November 24, 2004, J.D. filed his due process hearing request before the Georgia Office of State Administrative Hearings, alleging that APS had denied him a free appropriate public education ("FAPE") under the IDEA. The matter was heard on three separate days in November 2005 before Administrative Law Judge ("ALP) Steven D. Caley of the Office of State Administrative Hearings for the State of Georgia. The ALJ's Order, dated January 30, 2006, sets forth in detail the facts of this case. The Court will not restate all of those facts here, but provides the following facts which are relevant to the matters addressed by the Court below.

On February 24, 1998, when J.D. was in the 4th grade, his mother gave her consent for a complete comprehensive evaluation of him. APS administered the tests for its evaluation on June 1, 1998. Based on this evaluation, the school psychologist determined that J.D. had a full scale I.Q. of 63.

J.D. was promoted to 5th grade. On January 25, 1999, J.D.'s student support eligibility team met to assess the June evaluation results and services that J.D. might need. The team placed J.D. in the most restrictive educational environment available, a self-contained special education classroom for children with mild intellectual disabilities ("MID"). For the next two years, J.D. continued in the MID program at Usher Middle School.

By the 2002-03 school year, J.D. was in the 9th grade. From February 2003 until July 2003, J.D.'s mother enrolled him at the Sylvan Learning Center ("SLC") at her own expense where his reading level increased from a 3rd grade level to a 5th grade level. Meanwhile, in early 2003, J.D.'s family insisted that APS evaluate him for the first time since 1998. On April 3, 2003, a school psychologist completed an evaluation of J.D. The school psychologist reported that J.D. was performing at the 2nd or 3rd grade level despite being in 9th grade. The test results showed that even though J.D. had a full scale I.Q. score of 60, significant variations of his test scores showed that the I.Q. score may not be an accurate reflection of J.D.'s true ability. Based upon discrepancies in the subtest scores, the school psychologist recommended that APS perform additional evaluations.

J.D.'s family objected to APS making any determinations regarding an appropriate education for J.D. based upon the April 2003 test results. However, APS continued to classify J.D. as MID on April 17, 2003. The family objected to APS's continued classification of J.D. as MID and insisted on additional testing.

In response, a different school psychologist performed an additional psychological evaluation on J.D. on July 23, 2003. The July 2003 evaluation confirmed that J.D. was not MID but had a specific learning disability. The tests showed that J.D. had a full scale I.Q. of 82, which was in the low average range of intelligence. The test examiner believed that this full scale I.Q. of 82 was a truer representation of J.D.'s overall level of cognition. The tests also showed that J.D. was at a 3rd grade reading level, 2nd grade spelling level, and 3rd grade arithmetic level. At the time of the testing, J.D. was in the 10th grade MID class at Mays High School.

On August 3, 2003, J.D.'s individualized education program ("IEP") team met to discuss the July 2003 test results. J.D.'s family requested private school and one-on-one tutoring in order to help J.D. close the achievement gap in his studies. No action was taken on these requests.

On September 9, 2003, J.D.'s IEP team recommended to provide him with 1.5 hours of speech tutoring. On October 7, 2003, J.D.'s IEP team amended his IEP to provide him with 19.5 hours in general, education and 10.5 hours in special education in the 10th grade. J.D. was to attend regular classes for the first time since the 3rd grade and would receive after-school assistance for two hours per week.

In November 2003, a mediation was held which resulted in an agreement that APS would provide the Lexia reading program to J.D. to assist him with his deficits in reading by November 21, 2003. APS did not implement the Lexia program until December 9, 2003, and by January 12, 2004, J.D. had only received 2.5 hours of instruction with it.

In the meantime, J.D.'s family had filed a complaint with the Georgia State Department of Education. On January 27, 2004, a state hearing officer found that APS was not in compliance with state and federal requirements for providing J.D. with a FAPE. J.D.'s IEP team met on February 17, 2004, to review the findings by the hearing officer. Although J.D.'s family continued to express concern that he was below his grade level, school officials recommended that J.D. continue to use the Lexia reading program, tutoring, summer services, and keeping J.D. in 10th grade for the following year.

On May 24, 2004, J.D.'s family had him evaluated for the Lindamood-Bell reading program to determine whether his reading skills could be improved. Based on these test results, the Lindamood-Bell Center recommended J.D. receive intensive sensory-cognitive training at a rate of 6 hours daily for 360 hours.

On May 26, 2004, J.D.'s IEP team met to review the Lexia reading program. Although test results showed that J.D. was still reading at an elementary level, the IEP team decided that J.D. would continue with the Lexia program and would audit Algebra for the summer. J.D.'s family requested reading services through either the SLC or the Lindamood-Bell program. APS told the family once again that they would have to file a formal complaint if they wanted to pursue the matter.

After continued requests from J.D.'s family, APS referred J.D. to Dr. Judy Wolman for an independent psychological evaluation. Dr. Wolman performed the evaluation on August 24 and 25, 2005, and the battery of tests showed that J.D.'s skills in several areas were severely discrepant from his potential. Dr. Wolman conducted extensive interviews with J.D.'s family as part of the comprehensive evaluation. Dr. Wolman concluded that J.D. suffered from a specific learning disability consistent with dyslexia. She also made recommendations about the types of services he needed in order to bring his skills closer to his potential so that he could perform independently as an adult.

On September 10, 2004, the Georgia Department of Education acknowledged that J.D.'s grades had not improved despite using the Lexia reading program. The Department informed the family that they could request a due process hearing if they were not happy with J.D.'s IEP or reading program.

On November 18, 2004, J.D.'s IEP team met again. Despite Dr. Wolman's test results and the family's repeated requests to use a different reading program, APS continued with the Lexia reading program By May 12, 2005, when J.D.'s IEP team met again, J.D. had failed his language arts class and, was failing the second semester of algebra. By the time of the due process hearing conducted by the AU in November 2005, J.D. was 18 years old and in the 11th grade of high school.

The AU found that APS had failed to provide a FAPE to J.D. for the 2002-03, 2003-04, and 2004-05, school years.¹ The AU further found that since 1998 when J.D. was in the 3rd grade, APS had failed to provide J.D. with the key to his education by properly teaching him to read. The ALJ stated that APS had misdiagnosed J.D. by labeling him with the stigma of mental retardation as early as the 3rd grade and then APS made no effort whatsoever to further evaluate J.D. for five years, contrary to clearly established law. Although J.D. exhibited classic signs of dyslexia at a very early age, the ALJ found that APS was still incapable of making a proper diagnosis and it was only due to the continued insistence of J.D.'s family for more testing after March 2003 that led to a proper diagnosis of a learning disability in July 2003,

The ALJ further determined that J.D.'s family had no choice but to enroll him in an outside reading program at the SLC at their own expense at a total cost of $11,000. After five months at the SLC, J.D.'s reading level increased from grade 3 to grade 5. J.D.'s family could not continue to pay for this expense, and APS refused to pay for it. Instead, APS insisted on using a Lexia reading program, which the family agreed to but reserved their rights to proceed with a due process hearing request. Additional testing in 2004 after J.D. was placed in the Lexia reading program showed that he had regressed from a 5th grade reading level to a 3rd grade reading level and was having difficulty in many of his core subjects in high school.

The ALJ also found that J.D. had continually claimed a right to additional services from APS at every IEP team meeting that had been held since at least early 2003. J.D. was pursuing that claim actively at the time of the May 2005 IEP meeting. Therefore, the ALJ...