Killoran v. Westhampton Beach Sch. Dist.

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CHRISTIAN KILLORAN, on behalf of his son, A.K., CHRISTIAN KILLORAN, and TERRIE KILLORAN, Plaintiffs, v. WESTHAMPTON BEACH SCHOOL DISTRICT, MICHAEL RADDAY as Superintendent, SUZANNE M. MENSCH, JAMES HULME, JOYCE L. DONNESON, GEORGE R. KAST, JR., and HALSEY C. STEVENS, as Board of Education Members, Defendants.

No. 19-CV-3298 (JS)(SIL)

United States District Court, E.D. New York

October 11, 2021

For Plaintiffs: Christian Killoran, Esq., pro se Terrie Killoran pro se

For Defendants: Anne C. Leahey, Esq. Anne Leahey Law, LLC Scott J. Kreppein, Esq. Jaclyn L. DarConte, Esq. DEVITT SPELLMAN BARRETT, LLP

MEMORANDUM & ORDER

Joanna Seybert, U.S.D.J.

Pro se plaintiffs Christian Killoran (“Mr. K”) and Terrie Killoran (“Mrs. K”) (together, the “Plaintiffs”) commenced this action on behalf of their son, A.K., against defendants Westhampton Beach School District, (“Westhampton” or the “District”), Michael Radday, (“the Superintendent”), Suzanne M. Mensch, James Hulme Halsey C. Stevens, Joyce L. Donneson and George R. Kast, Jr. (together, the “School Board, ” and collectively with Westhampton and the Superintendent, “Defendants”). Currently pending before the Court is Plaintiffs' motion for summary judgment (hereafter, the “Motion”) (see ECF No. 39 (including Plaintiffs' Support Memo; see also Reply, ECF No. 42) seeking review of the April 17, 2019 administrative decision of state review officer (“SRO”) Sarah L. Harrington (“SRO Harrington”) upholding the February 20, 2019 determination of independent hearing officer (“IHO”) Leah L. Murphy (“IHO Murphy”) that the May 2018 individualized education program (“IEP”) the District developed for A.K. was sufficient to provide A.K. with a free and appropriate education (“FAPE”) in the least restrictive environment (“LRE”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. For the following reasons, Plaintiffs' Motion is DENIED.

BACKGROUND

I. Statutory Framework for IDEA Cases

The purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.” 20 U.S.C. § 1400(d)(1)(A). Under the IDEA, states receiving federal funds are required to comply with extensive procedural requirements to ensure that all children with disabilities receive a FAPE. See Bd. of Educ. v. Rowley, 458 U.S. 176, 180-81, (1982). “The particular educational needs of a disabled child and the services required to meet those needs must be set forth at least annually in a written IEP.” Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (citation omitted).

In New York, the state has assigned responsibility for developing IEPs to local Committees on Special Education (“CSEs”). See R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012) (citing N.Y. Educ. Law § 4402(1)(b)(1)). “CSEs are comprised of members appointed by the local school district's board of education, and must include the student's parent(s), a regular or special education teacher, a school board representative, a parent representative, and others.” Id. (citing N.Y. Educ. Law § 4402(1)(b)(1)(a)). “The CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program.” Id. (citing Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007)). The IDEA sets forth procedural and substantive requirements for IEPs, see 20 U.S.C. § 1414, but “does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak, 142 F.3d at 130.

If a parent believes that his school district has failed to provide his child with a FAPE due to an inadequate IEP, the parent may file a complaint with the state educational agency and request an impartial due process hearing before an IHO. See Id. at 123; see also N.Y. Educ. Law § 4404(1). Either party may appeal an adverse administrative decision to the appropriate state agency. See id.; see N.Y. Educ. Law § 4404(2). “Only after these administrative remedies have been exhausted may an aggrieved party appeal to a federal or state court, which may then grant appropriate relief.” M.R. v. S. Orangetown Cent. Sch. Dist., No. 10-CV-1800, 2011 WL 6307563, at *12 (S.D.N.Y. Dec. 16, 2011) (citing 20 U.S.C. § 1415(i)(2)(A)). “When such an action is brought in federal district court, the court reviews the records of all of the prior administrative hearings and must hear additional evidence if so requested by either of the parties.” M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 225 (2d Cir. 2012) (citing 20 U.S.C. § 1415(i)(2)(c)).

The Second Circuit has held that where, as here, plaintiffs seek judicial review of an SRO's determination that an IEP was proper, the plaintiffs bear the burden of proof. See Id. at 225 n.3 (“Because the State Review Officers in the cases at bar concluded that the IEPs were proper, and the courts are bound to exhibit deference to that decision, the burden of demonstrating that the respective Review Officers erred is properly understood to fall on the plaintiffs.”).

II. Factual Background^[1]

This action is one in a series of civil rights litigation brought by Plaintiffs against Westhampton concerning the education of Plaintiffs' son, A.K., who has Down Syndrome and a full-scale IQ of 47, classifies as a student with an intellectual disability, and was sixteen years old at the time of the subject administrative hearing. (See Compl., ECF No. 1; Nov. 7, 2018 Hr'g Tr. (“Nov. 7 Tr.”), ECF No. 32-6, at 170; May 2018 IEP, ECF No. 32-19, at 1.) The Court assumes familiarity with the background of this case, which is chronicled in its various prior Orders.^[2] See, e.g., Killoran v. Westhampton Beach UFSD, No. 19-CV-6663, 2020 WL 4740498, at *1-3 (E.D.N.Y. June 24, 2020), report and recommendation adopted by 2020 WL 4743189 (E.D. N.Y. July 27, 2020). The instant action arises out of Defendants' development of A.K.'s IEP and placement for the 2018-2019 school year. (See Compl.)

A. The May 2018 IEP

On March 5, April 9, and May 22, 2018, the District's CSE convened to review A.K.'s progress and to develop an IEP for the 2018-2019 academic year. (See IHO 2019 Decision, ECF No. 32-2, at 24.^[3]) CSE members included: Dr. Angela Austin (“Dr. Austin”), CSE Chairperson and Director of Pupil Personnel Services; Theresa Gannon (hereafter, the “special education teacher”); Joanne Williams (hereafter, the “District special education teacher”); Margaret Brogan (hereafter, the “occupational therapist”); Eileen Catala (hereafter, the “physical therapist”); Connor Davis (hereafter, the “adaptive physical education teacher”); Elizabeth Martrano (hereafter, the “high school psychologist”); Eileen Tyznar (hereafter, the “education consultant”); Mrs. K., A.K.'s mother; and, Mr. K., A.K.'s father. (See Mar. 5, 2018 CSE Minutes (“March 2018 CSE”), ECF No. 32-15, at 2.) In developing A.K.'s IEP, the CSE reviewed documents, including: A.K.'s prior IEP; progress reports and annual reviews from A.K.'s occupational therapist (“OT”) and physical therapist (“PT”); a 2016 psychological evaluation; a 2016 speech and language evaluation report; a 2016 psychoeducational evaluation; and a 2014 assistive technology evaluation. (See id. at 1.) Additionally, A.K.'s service providers, including his OT, PT, special education teacher, and adaptive physical education teacher reported on A.K.'s functioning. (See id.) A.K.'s present levels of performance and goals were discussed at the CSE meetings with significant input from his Parents and special education teacher. (Id.)

The March 2018 CSE^[4] discussed placement options, including pushing A.K. into general education classes and the extent to which the curriculum would need to be modified to meet his needs, and the Parents' preferred placement, i.e., creating a “hybrid program.” (See March 2018 CSE at 55-69.) Dr. Austin opined that the Parents' proposed “hybrid program” would be socially and emotionally isolating, while A.K.'s special education teacher disagreed, stating her belief that A.K. would thrive from seeing his brother in the hallway or seeing some of the children with whom had had grown up. (Id. at 27-30, 188.) As to placing A.K. in a general education class, the District's special education teacher pointed out that A.K. was reading at a first-grade level and that “[t]here is no way to really adapt a high school Common Core curriculum that is Regents track to the first-grade level.” (Id. at 190.) She stated that it would be “educationally unsound” to modify the regular education curriculum to A.K.'s level. (Id.) The high school psychologist agreed with the District's concerns of placing A.K. into a Regents track class at the high school. (See id. at 199.)

Jennifer Harrison (“Ms. Harrison”), Director of Pupil Personnel Services at the Middle Country School District discussed the alternate assessment program at the Middle Country School District, which the Parents had visited. (See id. at 85.) She described the program at one of that district's high schools as a secondary “life skills” program with a current enrollment of approximately 45 students. (Id.) The program consisted of a nine-period day, in a high school building with approximately 1, 600 students. (Id. at 86.) Ms. Harrison explained that the students in the “life skills” program see multiple teachers during the day and have access to mainstream electives where appropriate. (Id.) Program students participate in a work-study program for three periods a day within the community, and eat in the cafeteria with their typical peers. (See id.) S...