Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

L.H. v. Hamilton County Department of Education

United States District Court, E.D. Tennessee, Chattanooga

November 4, 2016

L.H., a Minor Student, et al., Plaintiffs,
v.
HAMILTON COUNTY DEPARTMENT OF EDUCATION, et al., Defendants.

          Susan Lee Magistrate Judge

          MEMORANDUM

          CURTIS L. COLLIER UNITED STATES DISTRICT JUDGE

         Plaintiffs, L.H., a thirteen-year-old school boy with Down Syndrome, and his parents, G.H. and D.H., seek in this Court a review of a determination by a state administrative law judge (the “ALJ”) that the general-education setting in the public schools of Defendant Hamilton County Department of Education (“HCDE”) was not appropriate for L.H.

         After carefully reviewing that determination and giving it due weight, considering the additional evidence presented by the parties at the evidentiary hearing before this Court, and taking into account the applicable law, the Court reaches its independent decision that HCDE's proposed placement at the Red Bank comprehensive development classroom (the “CDC”) was more restrictive than necessary, but that the alternative private placement Plaintiffs chose-The Montessori School of Chattanooga (“TMS”)-is not an appropriate educational environment for L.H. Accordingly, Plaintiffs are not entitled to reimbursement for the costs of educating L.H. at TMS.

         I. LEGAL BACKGROUND

         As a condition for receiving federal funds, the Individuals with Disabilities Education Act (the “IDEA”), 20 U.S.C. §§ 1400 et seq., requires participating States to provide a “free appropriate public education” (a “FAPE” in education law parlance) for all children with disabilities. 20 U.S.C. § 1412(a)(1). It further requires States to educate disabled children alongside nondisabled children “to the maximum extent appropriate”-a mandate known as the “least restrictive environment” (or “LRE”) requirement. Id. § 1412(a)(5). Plaintiffs contend this latter requirement means L.H. should be educated in a regular-education classroom at his neighborhood school-Normal Park Museum Magnet School. Defendant HCDE maintains- and the ALJ previously determined-that the general-education setting was not appropriate for L.H. and he needed to spend half of his day receiving academic instruction in the CDC, a self-contained classroom at Red Bank Elementary School designed for children with intellectual disabilities. Plaintiffs now seek review of that determination in this Court.

         It is the Court's responsibility to “make an independent decision based on the preponderance of the evidence, ” while giving “due weight” to the ALJ's findings and conclusions. See Deal v. Hamilton Cty. Bd. of Educ., 392 F.3d 840, 849 (6th Cir. 2004) (Deal I) (quotation marks omitted). In fulfilling its responsibility, the Court has very closely examined the evidence presented before it, as well as the evidence received in the administrative hearing.

         In deciding issues such as this, the Court proceeds with caution, mindful it lacks the “specialized knowledge and experience necessary to resolve persistent and difficult questions of education policy.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 208 (1982) (quotation marks omitted). The Court also recognizes, however, that while the determination of sensitive issues such as a child's least-restrictive environment “imposes a difficult burden on the district court[, ] [s]ince Congress has chosen to impose that burden, [the Court] must do [its] best to fulfill [that] duty.” Roncker ex rel. Roncker v. Walter, 700 F.2d 1058, 1062 (6th Cir. 1983). Ultimately, while reasonable minds could differ with the Court's conclusion because the evidence considered as a whole is extremely close, the Court ultimately concludes Plaintiffs have met their burden to establish by a preponderance of the evidence that L.H.'s proposed placement at the Red Bank CDC was more restrictive than necessary, but they have not established that the alternative private placement they chose at TMS is an appropriate educational environment for L.H. Thus, Plaintiffs are not entitled to reimbursement for the costs of educating L.H. at TMS.

         II. FACTS

         In addition to thoroughly reviewing the record of the administrative proceeding, the Court received additional evidence during a hearing held on January 11-14, 21, 25, and 26, 2016. At the hearing, the Court heard from four witnesses called by Plaintiffs and six witnesses called by HCDE, and also received a number of documentary and video exhibits. From these sources, the Court makes the following factual findings.

         A. General Information about L.H.

         L.H. has Down Syndrome and is classified as intellectually disabled under the IDEA. This means his intellectual ability falls two standard deviations below the average, or in the bottom 2.2% of the population, and his adaptive behavior, or daily-living skills, are significantly impaired. As is also common with Down Syndrome, L.H.'s receptive and expressive language skills are impaired relative to those of typically developing children. As a result, L.H. qualifies for special-education services under the IDEA and has received these services since he was three years old.

         L.H. is, by all accounts, a personable, fun-loving child. He enjoys playing on his iPad, listening to music, and interacting with friends. He is generally respectful and kind, though sometimes he has difficulty expressing himself in socially appropriate ways. L.H. enjoys school and learning, although he occasionally acts out or refuses to work, and he often needs motivators or prompting to help him stay on task. L.H. is a visual and kinesthetic learner and has a good short-term memory.

         L.H. attended Normal Park in 2009-2010 (kindergarten), 2010-2011 (first grade), 2011- 2012 (repeating first grade), and 2012-2013 (second grade). While at Normal Park, L.H. was educated pursuant to an individualized education program (an “IEP”), a planning document with goals and objectives for the upcoming year formulated based on L.H.'s present levels of performance. This document was prepared and updated annually by L.H.'s parents, HCDE teachers and staff, and other service providers (the “IEP team”). Through second grade, L.H.'s IEPs directed he be taught the regular curriculum in a regular-education classroom alongside typically developing peers. The IEPs also specified certain special-education supports and services to enable L.H. to access the regular curriculum, such as daily “pull-out time” (one-on-one instruction with a special-education teacher outside the regular classroom), “push-in time” (instruction from a special-education teacher in the regular classroom), occupational therapy, speech-language therapy, and a full-time aide.

         L.H.'s parents are extremely invested in his educational success and have been highly involved in his education and the process of formulating his IEPs. They strongly made known to HCDE personnel their desires and wishes for L.H.'s education and did not hesitate to point out perceived deficiencies. They also regularly provided HCDE personnel with information regarding Down Syndrome that they thought would assist in L.H.'s educational progress and development. They have worked hard to supplement his education outside the classroom as well by reading with him and reviewing his homework on a daily basis and by scheduling extensive extracurricular activities for him. L.H.'s parents have high expectations for him and have diligently tried to ensure he is challenged to reach his full potential. It was their strong and clearly stated desire that L.H. be educated in the standard public-school setting and that he be taught the standard curriculum.

         L.H. made some progress academically during the first three years he was at Normal Park (kindergarten through first grade), though he did not keep pace with his age-level peers. By the end of first grade, L.H. had learned some basic math concepts, such as using manipulatives to add and subtract numbers to twenty, telling time to the hour and half-hour, and skip-counting by two, five, and ten for four or five steps, but overall, he was functioning at a kindergarten level. L.H.'s independent writing ability was also at or below a kindergarten level, although he was able to write up to two or three sentences at a time. In the area of reading, however, L.H. was relatively advanced. Both his year-end report card and his results on the Woodcock Johnson, an academic assessment given in March 2012, show he was reading at a mid-to-late first-grade level, or nearly on par with his normally developing grade-level peers, although his comprehension level was further behind.

         B. The 2012-2013 IEP

         In May 2012, L.H.'s IEP team met to develop his second-grade IEP. At the meeting, HCDE staff members queried whether, given the gap between L.H.'s abilities and second-grade expectations, the team should consider placing L.H. somewhere other than the general-education environment. L.H.'s parents strongly disagreed with this thinking and vocally and vigorously insisted that L.H. remain in the regular-education classroom. Acquiescing to L.H.'s parents' insistence, the final IEP recommended L.H. continue to be educated in a regular-education classroom, with the aid of various special-education supports and services.

         While L.H.'s placement remained unchanged, the goals and objectives set forth in the IEP did not. At L.H.'s parents' demands, the educational goals in L.H.'s 2012-2013 IEP were tied closely to regular second-grade curricular goals. Given L.H.'s previous performance and the professional opinions of his teachers and the staff, these goals were unrealistic. They represented a significant step up from the goals contained in L.H.'s 2011-2012 IEP, both in number and in difficulty. To appreciate the difference, compare the goals and objectives from the two IEPs in the areas of language and reading (formatting has been changed for clarity):

         (IMAGE OMITTED)

         (See Due Process (“DP”) Ex. 6, 2011-2012 IEP 00445-446; Pl.'s Ex. 1-2, 2012-2013 IEP at 5, 8-10.[1]) Notwithstanding these changes which incorporated L.H.'s parents' demands, all of the members of the IEP team-including L.H.'s parents and eight HCDE teachers and staff members-agreed the goals and objectives outlined in the 2012-2013 IEP were appropriate based on L.H.'s present levels of academic performance. (See Pl.'s Ex. 1-2 at 22 (signature page); DP Ex. 6, Notes of May 10, 2012 IEP Meeting 00371.)

         C. Second Grade at Normal Park

         As could be expected, L.H. struggled to meet these goals. From the very beginning of the school year, his classroom teacher, Ms. Stefanie Higgs, and his special-education teacher, Ms. Lisa Hope, were concerned he lacked the prerequisite skills to be able to perform at a second-grade level. Both teachers, though relatively inexperienced, [2] worked hard to try to bring L.H. up to speed. Ms. Higgs gave L.H. intensive, one-on-one reading instruction for thirty minutes every day. Ms. Hope followed this up with an hour of daily pull-out time, during which she would review his reading and math lessons for the day, along with daily push-in time, during which she would visit L.H. in the regular-education classroom to monitor his behavior and prompt him to complete his work. Both teachers used creative, individualized teaching strategies, such as songs, video modeling (recording a video of L.H. performing a task well, then showing it to him as motivation), a token-based reward system, visual schedules and cues, manipulatives, and a variety of instructional formats (oral, visual, kinesthetic, etc.). Ms. Hope also consulted with Ms. Jeanne Manley, an experienced special-education teacher designated by HCDE to provide training and support to other teachers within the district, on a number of occasions regarding different teaching strategies to try with L.H.

         Despite their efforts, L.H. did not progress as fast or as far as they had hoped. While L.H.'s first quarter IEP progress report indicated he was on track to meet all his goals by the end of the year, review of L.H.'s progress on the objectives underlying the goals reveals a number of objectives toward which his teachers indicated he was making very little progress, either for insufficient time or because he lacked prerequisite skills. (See DP Ex. 3, 2012-2013 First Quarter IEP Progress Report.) L.H. had difficulties with one-to-one number correspondence in math (the idea that the number “3” means three things), and could not remember basic addition and subtraction facts. He could read on a mid-first-grade level, but he could not answer basic comprehension questions about what he had just read. He was very dependent on adult prompts, or “scaffolding, ” to complete assignments. He had trouble coming up with and writing more than a sentence or two without prompting or being permitted to copy pre-written sentences. His first-quarter report card stated his progress in reading was at the “basic” level, and he was “below basic” in the areas of speaking and listening, language, math, science, social studies, and conduct. (See DP Ex. 6, First Quarter Progress Report 00131.)

         On that last point, L.H.'s teachers noticed his behavior was particularly disruptive during the first quarter of second grade. He would invade his classmates' personal space, disobey his teachers' directions, and frequently “shut down” or refuse to work. His first-quarter IEP progress report relayed “[h]is behaviors have frequently impeded his learning as well as the learning of the students around him, ” and he needed to “continue to work on respecting the personal space and possessions of others.” (DP Ex. 3 at 3.) His report card similarly noted several subjects in which his “[b]ehavior interferes with his work.” (DP Ex. 6 at 00131.) These behaviors continued to occur even after Ms. Hope implemented several of the strategies suggested in the behavioral intervention plan contained in L.H.'s IEP.

         Surmising these behavioral issues were due to frustration with the difficulty of the work, Ms. Hope modified L.H.'s lessons until she was teaching him at a kindergarten level, with the exception of reading, where he could work at a first-grade level.[3] Ms. Hope explained she was able to do this because Normal Park uses a “spiral approach” to curriculum, teaching students the same skills at increasing levels of difficulty at different grade levels. Thus, when L.H. “shut down, ” she was able to drop down and teach him the same general skill set but at a less intensive level. (DP Tr. at 209.) His teachers also attempted to minimize distraction in the classroom by seating him toward the back of the room, away from tables with containers of distracting work materials and the traffic of the other students.

         After these adjustments, particularly the work-level modification, L.H.'s behavior improved noticeably. Ms. Hope recounted the percentage of time he was able to work with five or fewer adult prompts went from thirty-three percent to ninety-five percent, the amount of time he successfully completed individually assisted work went from thirty-four percent to ninety-four percent, and the percentage of time he demonstrated respect for others' personal space went from thirty-six percent to eighty-six percent. (Id. at 210.) His second-quarter IEP progress report reflected these changes, noting his “behavior has been much improved over the past nine weeks!” (See DP Ex. 4, 2012-2013 First Quarter IEP Progress Report at 3.[4])

         While L.H. made strides in his behavior during the second quarter, his progress toward the second-grade goals in his IEP remained poor. His second-quarter IEP progress report listed three goals-in writing, reading, and math-for which his teachers no longer anticipated meeting the goal by the end of the year. (Id. at 5 (goal 5), 10 (goal 11); see DP Ex. 6, 2012-2013 Q3 IEP Progress Report 00318 (goal 4 for the second reporting period)). Additionally, L.H.'s progress on every single one of his academic objectives was characterized as “very little” due to insufficient time or a lack of prerequisite skills. (See DP Ex. 4 at 5-11.) L.H.'s teachers also noted in several places they had modified the curriculum to meet L.H.'s present levels of performance. (Id. at 7, 9.) To L.H.'s teachers, it was clear that until L.H. mastered certain basic skills, such as one-to-one number correspondence, phonemics, and analytical thinking-he was not going to be able to meet the second-grade standards outlined in his IEP goals. (See DP Ex. 16, Higgs Aff. ¶ 23; DP Tr. 433.)

         D. The 2013-2014 IEP

         Shortly after receiving the second-quarter IEP progress report, L.H.'s parents requested an IEP meeting. At the meeting, held February 6, 2013, HCDE staff members explained L.H. was working far below grade-level expectations. Ms. Jill Levine, principal of Normal Park, told the parents that although L.H. had benefitted from being in a regular-education setting in kindergarten and first grade, he had now “hit a wall”[5] and was no longer progressing. For these reasons, HCDE staff felt the time had come to consider other placement options. L.H.'s parents expressed strong opposition to the idea of placing L.H. in a dedicated special-education classroom. They specifically objected to the lack of interaction with typically developing peers, the absence of a normal academic curriculum or standards, and separating L.H. from his established friends-necessary if L.H. were to be placed in a CDC, since Normal Park did not have one. After a period of contentious discussion, the parents abruptly left the meeting.

         Over the course of the next four months, the two sides entrenched. Four lengthy and heated IEP planning meetings were held, at which the parents contested HCDE's assessment of L.H.'s present levels of performance, questioned the qualifications of L.H.'s teachers, and presented evidence regarding the benefits of mainstreaming and the downsides of placement in the CDC. HCDE, in turn, reemphasized L.H.'s poor academic performance and the necessity of a CDC placement. Unfortunately, it appears from a review of the IEP meeting notes and intervening email communications that the relationship between the parties became quite strained.

         On May 6, 2013, over the parents' objections, L.H.'s 2013-2014 IEP was finalized. The academic goals in this IEP were not tied to third-grade regular-education standards, but were derived strictly from L.H.'s present levels of performance. Furthermore, because HCDE had concluded L.H. needed more extensive supports than could be provided in a regular-education classroom at Normal Park, the IEP team determined L.H. would need to receive his academic instruction in a CDC at Red Bank Elementary.

         Specifically, the proposed IEP provided L.H. would receive ninety minutes of reading instruction, ninety minutes of math instruction, and thirty minutes of pre-vocational instruction, a total of three and a half hours per day, in a special-education classroom. (See Pl.'s Ex. 57, 2013- 2014 IEP at 25.) The proposed IEP further provided L.H. would participate with non-disabled peers for lunch and related arts-things like music, art, and physical education-during which time he would also receive an additional thirty minutes of social/emotional special education via inclusion, or push-in instruction.[6] (Id. at 24-25.)

         The proposed IEP also indicated L.H. would be educated pursuant to an alternative curriculum. (See Id. at 9-13.) This alternative curriculum would have consisted of a program called the Unique Learning System (the “ULS”), an online special-education software program designed to teach reading and math within the framework of monthly science and social studies units, supplemented as necessary by more focused reading and math lessons. The ULS curriculum is not tied specifically to Tennessee general-education standards, but it is aligned with Common CORE standards.

         The CDC itself is small and fairly self-contained: at the time, the CDC at Red Bank had two teachers and nine students. Although students in the CDC have some opportunities to participate with non-disabled peers in lunch and related arts, experts from both sides agreed that, practically speaking, there is little interaction between the two groups of students. While in music or at lunch, CDC students sit and interact almost exclusively with each other. Also, while nearly all of the students in the CDC were verbal to some degree or another, and most demonstrated an ability to work with fewer adult prompts than L.H. had been requiring, none appeared to be as advanced as L.H. in reading or in their desire or ability to socialize.

         E. The Montessori School of Chattanooga

         L.H.'s parents rejected the IEP proposed by HCDE. Instead, when the 2013-2014 school year began, they enrolled L.H. at TMS, where he has been for the past three years. TMS is a private school that operates pursuant to the Montessori Method, an open-ended, child-directed theory of education, in contrast to the more traditional, highly structured, teacher-directed approach used by most schools. The TMS curriculum, called Albanesi, is aligned with Common CORE standards and covers language and math, as well as a variety of so-called “cultural” subjects, such as botany, zoology, Spanish, cooking, and history. Classrooms at TMS are multi-grade, and students proceed through the curriculum at their own pace. Every two weeks, the teacher prepares an individualized lesson plan for each student, and each day, the student picks the order in which he or she works on those lessons. At the end of the two weeks, the teacher prepares a new lesson plan based on the student's progress.

         Some aspects of the Montessori curriculum appear to be a good fit for L.H. For instance, instruction at TMS is highly differentiated. Each student is taught at his own level in each subject. Also, the use of manipulatives to teach abstract concepts features highly in the curriculum, which plays to L.H.'s learning style. Other aspects of the curriculum, however, appear a less-than-ideal fit for L.H. Montessori's child-directed learning philosophy presupposes a certain amount of independence and self-motivation on the part of the child, and these are areas of particular weakness for L.H. The Court heard no evidence that TMS itself or the teachers at TMS had any experience in instructing intellectually disabled students or students with Down Syndrome. Also, TMS does not have a systematic approach to teaching students with special needs or language impairment, nor are any of the teachers at TMS trained in special education.

         L.H.'s class sizes at TMS have ranged from seventeen to eighteen students. In addition to the classroom teacher, L.H. has had a full-time aide to help him with his work and keep him on task.[7] L.H.'s parents are responsible for the aide's compensation, although she is technically employed by TMS. L.H. reportedly gets along well with his classmates, all of whom are typically developing peers. L.H. continues to have some issues respecting others' personal space and behaving in socially inappropriate ways when he gets excited, but he is generally friendly, respectful, and well-behaved.

         F. Progress at The Montessori School

         The parties offer differing assessments of L.H.'s academic progress while at TMS. According to TMS testing and progress reports, L.H. has made steady progress. At the time of the administrative hearing, in the first semester of third grade, TMS considered L.H. to be working on a first-grade level in math, a beginning second-grade level in language, and a third-grade level in his cultural subjects. (See DP Tr. 628-629.) By the end of fourth grade, L.H.'s report card indicated he had progressed to working on second-grade geometry (shape names) and third-grade language skills. L.H.'s fourth-grade report card omits any reference to L.H.'s grade level for general math. Instead, it provides only narrative information regarding L.H.'s progress in math, such as noting he was working on fractions, learning to read large numbers, learning the concept of “carrying, ” and working on skip-counting; “numbers about [sic] 3” were “challenging” for him; he needed frequent review of measurement concepts; and his progress was being hindered by deficiencies in his skip-counting skills. (See Pl.'s Ex. 11 at 5.)

         L.H.'s fourth-grade standardized testing scores provide the most dramatic-and enigmatic-evidence of L.H.'s academic improvement at TMS. According to the results of a standardized test administered in the spring of 2015, known as the ERB Comprehensive Testing Program, among all fourth-graders in the nation, L.H.'s performance ranged from the 39th percentile for verbal reasoning to the 66th percentile for reading comprehension. (Pl.'s Ex. 12, 4th Grade ERB Test Scores 1.) His scores in mathematics, vocabulary, quantitative reasoning, and writing fell within this range. (Id.) Curiously, these results received the barest of mentions during the evidentiary hearing. The Court also finds it significant that Plaintiffs provided no indication of the extent of supports, modifications, or accommodations L.H. received during the administration of the test.

         HCDE conducted several assessments of L.H. during the fall of 2015 and obtained very different results. HCDE's math coach, Ms. Jamelie Johns, assessed L.H.'s mastery of mathematics via a computerized math assessment called the i-Ready Diagnostic Assessment. Ms. Johns also assessed L.H.'s abilities by asking him questions following completion of the computerized test. Based on the results of the test and her interaction with L.H., Ms. Johns opined that overall, L.H. was performing on a kindergarten level. Ms. Johns noted L.H. could perform a few skills she would classify as second- and third-grade skills, but in her opinion, he had not internalized some fairly basic mathematical concepts and skills, such as one-to-one number correspondence and the ability to consistently process numbers larger than ten.

         HCDE's reading coach, Ms. Debbie Rosenow, administered a Fountas & Pinnell reading assessment, characterized as the “gold standard” in reading assessments. L.H. began by reading through a series of word lists of increasing difficulty, designed to approximate the grade level at which he is able to process text. L.H. read through the third-grade word list, but could not complete the fourth-grade list. Based on the results of the word-list test, Ms. Rosenow gave L.H. a beginning-third-grade-level book to read. Fountas & Pinnell directs that if a child is unable to read a book with at least 95% accuracy, it may indicate the text is too hard for the child. L.H. was able to read the book, but at a fluency rate about half that of a normal third-grader, and not at the recommended 95% accuracy level. When asked questions about the text, L.H. had great difficulty recounting any information from the text. Ms. Rosenow concluded from this that the book was too hard for L.H., and dropped down to a beginning-to-mid-second-grade text. L.H. read this book with 99% accuracy and was able to answer some literal questions about the text, though he could not answer questions requiring inference-drawing.

         Ms. Rosenow testified reading ability hinges on at least two types of processing: visual processing, or the ability to see and decode a word, and meaning processing, or the ability to understand the meaning of the words being decoded. The most accurate assessment of an individual's reading level is where the individual's visual processing and meaning processing are equally taxed. Based on her assessment, L.H. is functionally able to decode words at a third-grade level, but the level at which his ability to comprehend matches his ability to decode is a mid-second-grade level. Ms. Rosenow recommended instructing L.H. primarily at this level for now, while occasionally providing a more rigorous text to allow him to practice decoding strategies and build vocabulary.

         L.H.'s results on the Fountas & Pinnell assessment conducted by HCDE in the fall of 2015 were largely consistent with his results on a series of reading assessments administered at Plaintiffs' behest during the summer of 2015 at a literacy clinic for Down Syndrome children operated by the University of Saint Joseph in Connecticut. These assessments were overseen by Plaintiff's expert, Dr. Kathleen Whitbread. L.H.'s results on the CORE Vocabulary Screening indicated his vocabulary knowledge was strong through the second-grade level, but he may experience difficulties comprehending text at or beyond the third-grade level. Similarly, L.H.'s results on the San Diego Quick Assessment of Reading Ability reflected an ability to read independently at a second-grade level, but frustration at the third-grade level. The only result that was somewhat out of line with Ms. Rosenow's evaluation was L.H.'s score on the CORE Reading Maze Assessment, a test of reading comprehension. His results on this test showed him to be comprehending at a third-grade level, although Ms. Rosenow testified these results are perhaps more reflective of his sentence-by-sentence comprehension, rather than an accurate gauge of his understanding of the passage as a whole.

         The Connecticut assessment also provided data on L.H.'s component skills in the areas of phonological segmentation and phonics. No grade-level estimates were given, but L.H. appeared to have difficulty segmenting words into individual phonemes and difficulty decoding non-words, as well as deficiencies in several fundamental phonics skills. Ms. Rosenow testified these results were consistent with what she observed during the Fountas & Pinnell assessment. She opined L.H. may be relying on his visual memory to recall words, rather than actually decoding the phonetic structure of the word, and he likely needs additional instruction in phonics.

         Overall, the Court does not find the parties' assessments of L.H.'s progress and present levels of performance at TMS to be inconsistent. Apart from the TMS standardized testing results, which the Court discounts for the reasons mentioned above, the evidence supports a finding that L.H.'s overall math skills are at approximately a first-grade level, with a few skills above and a few skills below that level; L.H.'s ability to decode words is largely at a third-grade level, although certain basic phonics and phonological skills are significantly more impaired; and his reading comprehension is at an early-second-grade level.

         G. The Court's Overall Assessment of the Testimony

         This is not a case where parents were confronted with uncaring and heartless bureaucrats unconcerned about the progress and well-being of L.H. If that were the case, it would not be as difficult as this case has turned out to be. Contrary to the suggestion by Plaintiffs that there was an effort to remove L.H. from Normal Park because of concerns his test scores would depress Normal Park's overall test scores, the Court finds that at all times the staff and personnel at Normal Park were operating with a sincere and heartfelt desire to do what was in L.H.'s best interest. No one could observe the testimony given before the Court and not conclude that both the parents and the staff and personnel at Normal Park care a great deal about L.H. This fact was palpably demonstrated during the testimony of the child's mother, D.H., and the testimony of Jill Levine, the principal of Normal Park. Both of their testimonies were moving, sincere, and obviously motivated by what each believed to be the best interest of L.H. Both became emotional while on the witness stand, and the Court could see tears in their eyes. This genuine concern was also demonstrated by the other staff and personnel of Normal Park.

         The parties reach diametrically different conclusions as to what is in L.H.'s best interest, but the Court attributes that to their perspectives, the difference in their experience in early-childhood education, and the degree of objectivity and realism each brings to the issue. D.H.'s perspective leads her to conclude it is in L.H.'s best educational and life interests to attend a school where he is taught on the same level as his same-age peers and remain in a regular-education class. Moreover, D.H. strongly desires L.H. to remain in regular-education classes at Normal Park. Principal Levine's perspective leads her to conclude L.H. will not be able to keep pace with his same-age peers and would fall farther and farther behind while in the regular-education classroom at Normal Park. She concludes Normal Park has made its best efforts and has not been able to provide L.H. with the educational benefit and progress he deserves. Accordingly, she concludes L.H.'s best educational and life interests would not be furthered at Normal Park but rather would be better met in another educational setting.

         III. STAN ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.