S.B. v. Goshen Cent. Sch. Dist.

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S.B. and K.B., individually and on behalf of K.B., Plaintiffs-Appellants, v. GOSHEN CENTRAL SCHOOL DISTRICT, Defendant-Appellee.

No. 20-CV-09167 (PMH)

United States District Court, S.D. New York

September 12, 2022

MEMORANDUM OPINION AND ORDER

PHILIP M. HALPERN, UNITED STATES DISTRICT JUDGE:

Plaintiffs S.B. and K.B. (collectively, “Plaintiffs”) bring this action, individually and on behalf of their minor daughter, K.B., against Goshen Central School District (“Defendant” or the “District”) under: (i) the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq.; (ii) New York Education Law § 4402; and (iii) Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794.^[1] (Doc. 1 “Compl.”). Plaintiffs seek judicial review of a decision by a State Review Officer (“SRO”) at the New York State Education Department which found that: (i) Defendant provided K.B. with a free appropriate public education (“FAPE”); and (ii) Plaintiffs were not entitled to private placement reimbursement. Plaintiffs seek reversal of that decision, reimbursement for the costs of placing K.B. in private school for the 2018-2019 school year expert costs, attorneys' fees, and declaratory relief. Before the Court is Plaintiffs' motion for summary judgment, and Defendant's cross-motion for summary judgment. (Doc. 10-1, “56.1”; Doc. 20; Doc. 20-1 “Pl. Br.”; Doc. 21; Doc. 22, “Def. Br.”; Doc. 23, “Pl. Opp.”; Doc. 27, “Def. Reply”).

For the reasons set forth below, Defendant's motion for summary judgment is GRANTED and Plaintiffs' motion is DENIED.

BACKGROUND

I. K.B.'s Condition and Educational History

K.B., who was a student in the District's schools from kindergarten through seventh grade, was diagnosed by various professionals in connection with mental and psychological conditions during the relevant time period. Despite these diagnoses-as discussed more fully infra-K.B.'s academic record remained largely within the average or above average range, her standardized test results remained largely within the average or above average range, and she received both public and private accommodations over the years that led to varying levels of success. These topics, as relevant to the Court's analysis, are discussed seriatim.

A. K.B.'s Clinical Diagnoses

K.B.'s first relevant diagnosis, Pervasive Developmental Disorder, Not Otherwise Specified (“PDDNOS”), was made while she was in pre-school and on August 1, 2007, the District's Committee on Preschool Special Education (“CPSE”) classified K.B. as a student with a disability because of that diagnosis. (56.1 ¶ 3; Ex. 58).^[2] That diagnosis indicated further that K.B. was born after induced labor because of preeclampsia and exhibited oppositional defiant difficulties. (Ex. 58). Less than two years later, on March 23, 2009, the CPSE declassified K.B. as disabled based on her classroom performance and the evaluative information available to them. (56.1 ¶ 4; Ex. 66 at 1). The District, on September 22, 2014, informed Plaintiffs that K.B.'s PDDNOS diagnosis “would need to be updated.” (56.1 ¶ 15; Ex. 120).

Dr. Lawrence Gordon (“Gordon”) provided K.B. with an ear, nose, and throat (“ENT”) evaluation on January 5, 2017. (Ex. 114). Gordon concluded that although her hearing was normal, her “audiologic and speech testing [we]re consistent with sensory processing disorder.” (Id. at 2).^[3]Approximately two weeks later, on January 22, 2017, Dr. Patricia Mangan (“Mangan”) diagnosed K.B. with generalized anxiety disorder (“GAD”) and observed that a diagnosis of attention-deficit/hyperactivity disorder (“ADHD”) was inconsistent with her evaluations and that any “attentional issues [we]re secondary to [K.B.'s] anxiety.” (Ex. 61).

Plaintiffs referred K.B. for a neuropsychological evaluation with Joshua Shifrin, PhD, ABSNP, NCSP (“Shifrin”) in connection with their request for a determination as to K.B's eligibility under IDEA.^[4] Shifrin, in a report dated July 13, 2018, diagnosed K.B. with GAD, Dysthymia, and Dyscalculia.^[5] (56.1 ¶ 81; Ex. 104 at 41). Shifrin's comprehensive report was based on interviews with K.B. and Plaintiffs, various evaluative tests administered to K.B., and Shifrin's behavioral observations of K.B. (Ex. 104 at 1).

K.B. also received a psychosocial evaluation in connection with the CSE proceedings. That evaluation was administered by K.B.'s school psychologist, Kristen Kurpick (“Kurpick”), who reviewed K.B.'s academic records, social history, and various evaluative tests, and interviewed K.B. (Ex. 105 at 1). Kurpick concluded that K.B.'s communication and socialization skills were in the moderately low range, but that she had an elevated level of internalizing behaviors and an average level of externalizing behaviors. (Id. at 6).

B. K.B.'s Academic Record and Teacher Reviews

i. Kindergarten and Elementary School

K.B. attended District schools from September 2009 to June 2018 during which time she completed kindergarten through seventh grade. (56.1 ¶ 2; Ex. 117 at 1-2). At the end of K.B.'s kindergarten year, in June 2010, the District and K.B.'s teacher concluded that it was in her best interests for her to repeat the grade. (Ex. 60).

Elementary school grades for K.B. were based on a 1-4 scale in which: a level 1 score represents that a student is well below proficiency standards; a level 2 score represents that a student is below proficiency standards; a level 3 score represents that a student meets proficiency standards; and a level 4 score represents that a student exceeds proficiency standards. (See e.g., Ex. 5 at 1). K.B.'s report cards for first and second grades are not complete in the record, but the record suggests that K.B. received only level 3 and level 4 scores during that time. (Ex. 3; Ex. 4). In third grade, K.B. finished the year with a level 3 score in 58/60 skills categories across various classes, a level 2 score in planning, revising, and editing writing for english language arts (“ELA”), and a level 4 score in music. (Ex. 5 at 1-2). K.B. received no level 1 scores that year. (Id). In fourth grade, K.B. finished the year with a level 3 score in 70/73 skills categories and level 2 scores in three categories: (i) general - uses time effectively; (ii) general - completes homework; and (iii) math - comparing fractions. (Ex. 6 at 1-2). In fifth grade, K.B. finished the year with a level 3 score in 60/65 skills categories, receiving three level 4 scores-in ELA, Art, and Orchestra-and two level 2 scores in math. (Ex. 7 at 1-2). K.B. received positive remarks from teachers throughout elementary school, including: (i) third grade, stating that “[s]he has made progress in all areas, including math” (Ex. 6 at 2); (ii) fourth grade, stating that she “[t]akes pride in work well done” (Ex. 7 at 2); and (iii) fifth grade, stating that she “is continuing to grow in independence [and] her work is improving” (Ex. 8 at 2).

ii. Sixth and Seventh Grade

Middle school grades in the District's schools were based on a 100-point percentage grading scale, whereby a quarterly average grade across all classes between 85 and 89 qualified a student for “merit roll” and an average grade between 90 and 100 qualified a student for “honor roll.” (See e.g., Ex. 15). In sixth grade, K.B. finished the first and second quarters of the year with a 79 and 83 average, respectively. (Id.). K.B. finished the third and fourth quarters on the merit roll, with 89 and 88 averages, respectively. (Id.). K.B.'s final average for the year across all classes was an 86.8. (Id.). K.B. received final grades of 78 in math, 71 in social studies, and 76 in science. (Id.). On her final progress report for the year, K.B. received relevant teacher comments of: (i) “effort is good[,] progressing satisfactorily” in ELA; (ii) “doing better, progressing satisfactorily” in math; (iii) “doing a fine job” in science; and (iv) “homework missing/incomplete” in social studies. (Ex. 11).

In seventh grade, K.B.'s final year in District schools, she finished all four quarters on the merit roll, with respective quarterly averages of 88, 87, 86, and 88. (Ex. 23). K.B. finished the year with an 87.5 overall average. (Id.). Her only scores in the 70's range were ELA at 78 and math at 77.^[6] (Id.). On her final progress report for the year, K.B. received relevant teacher comments of: (i) “effort is good[,] a pleasure to have in class” in ELA; (ii) “a pleasure to have in class . . . quiz/test grades need improvement” in math; (iii) “a pleasure to have in class . . . excellent participation” in science; and (iv) “a pleasure to have in class [but] inconsistency in effort” for social studies. (Ex. 19). K.B. also had two behavioral incidents occur during her seventh grade year: (i) on December 22, 2017, she “at the behest of the ‘cool kids' in French class” drew an inappropriate and racist symbol on a greeting card and handed it to another student, which the school psychologist deemed “extremely inappropriate” and for which she received a two-day suspension (56.1 ¶¶ 41-42); and (ii) “arrived late to school an excessive number of times (16 late arrivals out of 83 possible schools days).” (Ex. 62).

K.B was enrolled for her eighth-grade year at Storm King School (“SKS”), a grade 8-12 college preparatory school with an average class size of 10 students. (56.1 ¶¶ 226-227). SKS used a traditional letter-grade and GPA scale. (See e.g., Ex. 135). In eighth grade, K.B. received first semester grades of: (i) english - B; (ii) pre-algebra - B; (iii) spanish - B+, and second semester grades of: (i) art - B-; (ii) algebra - B; (iii) history - B+; science - B-. (Id.). She had a 3.00 GPA for both semesters. (Id.). She also participated in band, cross-country, lacrosse, and theater. (Id.). Shifrin conducted a...