Opinion
99 Civ. 9973 (SAS)
March 11, 2002
RosaLee Charpentier, Esq., Family Advocates, Inc. Kingston, New York, Attorney for Plaintiffs:
Jeffrey J. Schiro, Esq., Raymond G. Kuntz, P.C., Bedford Village, New York, Attorney for Defendants:
OPINION AND ORDER
Plaintiffs M.B. and G.B. (the "parents") bring this action on behalf of their son, M.B., pursuant to the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1400-1489, and section 504 of the Rehabilitation Act, 29 U.S.C. § 794, against Arlington Central School District (the "school district"), Donald Rothman, Superintendent of the school district, Lorraine Costello, Chairperson of the Committee on Special Education (the "CSE" or "committee") for the school district, and Vanessa Sugg, a sixth grade special education teacher at Arlington middle school. The parents seek tuition reimbursement for the 1997-98 school year, during which they unilaterally placed M.D. in the Kildonan School ("Kildonan"), a private school that is not approved by the New York State Education Department for the provision of special education services. Specifically, the parents ask this Court to enter a judgment: (1) reversing the State Review Officer's (the "SRO" or "state officer") finding that M.B.'s Individual Education Plan ("IEP") for 1997-98 was appropriate under the requirements of the IDEA; (2) reversing the Independent Hearing Officer's (the "IHO" or "hearing officer") finding that the parents' unilateral placement at Kildonan was not appropriate under the IDEA; (3) finding the weighing of equities favors tuition reimbursement; (4) finding that defendants violated section 504 of the Rehabilitation Act; and (5) awarding them reimbursement for tuition paid to Kildonan as well as related expenses for the 1997-98 school year. For the reasons stated below, all of the requested relief is denied.
I. STATUTORY SCHEME OF THE IDEA
The IDEA was enacted, in part, "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." 20 U.S.C. § 1400(d)(1)(A). Under the statute, a "free appropriate public education" must include "special education and related services" tailored to meet the unique needs of the particular child, id. § 1414(d), and be "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). The educational needs of each disabled child and the services required to meet those needs must be set forth annually in an IEP. See 20 U.S.C. § 1414(d)(1)(A). The IEP is a written statement, developed at a meeting of the school, the teacher, and the parents, that includes the child's current performance, the annual goals and short-term instructional objectives, the specific educational services offered, and the objective criteria and evaluation procedures used to determine whether the objectives are being achieved. See id. § 1401(a)(19). If the parents of a disabled child disagree with the proposed IEP, they may file a complaint with the state or local educational agency, see id. § 1415(b)(6), and have their dispute resolved through an "impartial due process hearing," id. § 1415(f), at which school authorities have the burden of proving the adequacy of the student's IEP. See M.C. ex rel. Mrs. C v. Voluntown Bd. of Ed., 226 F.3d 60, 63 (2d Cir. 2000). Under New York law, if the parents are dissatisfied with the hearing officer's decision, they have the right to appeal the decision to the state officer. See N.Y. Educ. Law § 4402(2). Once these administrative remedies have been exhausted, an aggrieved party may bring a federal action under 20 U.S.C. § 1415(i)(2). A district court may grant any relief it deems appropriate, see id. § 1415(i)(2)(B)(iii), and is required to take into account equitable considerations when fashioning such relief. See M.C., 226 F.3d at 68 (citing Town of Burlington v. Dep't of Educ. of Massachusetts, 471 U.S. 359, 374 (1985)).
II. SECTION 504
Section 504 prohibits federally funded state and local educational agencies from discriminating against students with disabilities. See J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 70 (2d Cir. 2000); 29 U.S.C. § 794(a). The scope of protection afforded by section 504 is somewhat different from the protection afforded under the IDEA, which provides "relief from inappropriate educational placement decisions, regardless of discrimination." Weixel v. Bd. of Educ. of the City of New York, No. 97 Civ. 9367, 2000 WL 1100395, at *4 (S.D.N.Y. Aug. 7, 2000) (internal citations omitted).
The federal regulations promulgated under section 504 require the provision of "a free appropriate public education to each qualified handicapped person . . . regardless of the nature or severity of the person's handicap." 34 C.F.R. § 104.33(a). An appropriate education under section 504 means
regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements [set forth in the statute]Id. § 104.33(b)(1); see also J.D., 224 F.3d at 70. If a student's IEP constitutes a "reasonable accommodation" of the student's disability, there is no violation of section 504. See J.D., 224 F.3d at 70, 71-72 (citing 34 C.F.R. § 104.33(b)(2)).
The regulations express a preference for educating qualified persons with disabilities "in the regular educational environment operated by the recipient unless it is demonstrated by the recipient that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily." 34 C.F.R. § 104.34(a); see also J.D., 224 F.3d at 70. However, the statute recognizes that where "it is necessary to provide a free appropriate public education," a student with a disability must be placed in a public or private residential program at no cost to the student or the parents. J.D., 224 F.3d at 70 (citing 34 C.F.R. § 104.33(c)(3)). If the district has not made available to the student a free appropriate public education, it must reimburse parents for unilaterally placing a student in a private school. See id. 34 C.F.R. § 104.33(c)(4)).
III. LEGAL STANDARD
The IDEA provides that the district court "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(B). Plaintiffs have requested that the testimony of Margaret Mabie be included in the record, although her testimony was not heard by the hearing officer. Section 1415 of the IDEA provides that the district court:
(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.Id. § 1415(i)(2)(B) (emphasis added); see also Muller on Behalf of Muller v. Comm. on Special Educ. of East Islip Union Free Sch. Dist., 145 F.3d 95, 101 (2d Cir. 1998).
In making its judgement, the court is required to defer to the school district on questions of educational policy. "[T]he provision that a reviewing court base its decision on the `preponderance of the evidence' is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Rowley, 458 U.S. at 206. The court is not guided by any educational standard that must be met for children with disabilities. "Noticeably absent from the language of the statute is any substantive standard prescribing the level of education to be accorded handicapped children." Id. at 189. Congress intended the Act "to open the door of public education to handicapped children on appropriate terms," not "to guarantee any particular level of education once inside." Id. at 192. Thus, "in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful." Id. at 191.
The Supreme Court, noting the absence of any statutory definition of a "free appropriate public education," looked to the legislative history, which according to the Court, indicated that the statute was passed in response to the fact that "millions of handicapped children `were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to `drop out.'" Id. at 191 (internal citations omitted).
That is not to say that handicapped students are left unprotected from substantively inadequate educational programs. As the Supreme Court has noted:
The Act expressly charges States with the responsibility of `acquiring and disseminating to teachers and administrators of programs for handicapped children significant information derived from educational research, demonstration, and similar projects, and [of] adopting, where appropriate, promising educational practices and materials.'Id. at 207 (quoting 20 U.S.C. § 1413(a)(3)). Thus, "[t]he primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child." Id. Because "courts lack the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy," the Supreme Court has instructed that "once a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States." Id. at 208 (citations omitted). Generally, "adequate compliance with the procedures prescribed [will] assure much if not all of what Congress wished in the way of substantive content in an IEP." Id. at 206.
IV. REVIEW OF THE ADMINISTRATIVE RECORD
The transcripts from hearings held before the hearing officer are designated as "IHO Tr." and the transcripts from hearings before the state officer are designated "SRO Tr." The respective decisions are designated "THO Decision" and "SRO Decision." Plaintiffs' exhibits introduced at those hearings are designated by the prefix "P" and defendants' exhibits introduced at those hearings are designated by the prefix "D."
A. Underlying Facts
M.B. has dyslexia, which is characterized by "unexpected and significant gaps existing between his learning aptitude, or intelligence, and his achievement in expressive or receptive, oral or written language." Plaintiffs' Proposed Finding of Facts ("Pl. Prop. Facts") at 4. After M.B. repeated first grade in the Arlington school district, the committee evaluated him, and recommended that he be classified as a student with a learning disability. See IHO Tr. 4/27/98 at 32. M.B.'s primary areas of difficulty were reading, writing, organization skills and work habits. See id. A psycho-educational assessment completed in May 1992 found him functioning at the first percentile in reading, and a Speech and Language evaluation found him to be at the ninth percentile in Oral Directions, yet at the ninety-first percentile in receptive vocabulary knowledge. See 4/22/92 Report of Speech and Language Evaluation, Ex. D-2. M.B.'s IEP for 1992-93 placed him in the district's resource room program and provided him with speech/language therapy. See 9/1/92 IEP, Ex. D-6. The parents objected to the recommended course of action. See 6/24/92 Letter to Linda Beyer from Barbara S. Nectow, attorney for M.B. and G.B., Ex. P-I. In 1993, the parents hired a private reading tutor and subsequently requested that the district provide this service as part of M.B.'s IEP, and that they be reimbursed for past tutorial sessions. See 5/4/94 Letter to Madelaine Steinberg from M.B., Ex. P-M; 7/18/94 Letter to M.B. from Steinberg, Ex. P-N. The committee denied both requests, but it agreed to the parents' request to alter M.B.'s IEP to incorporate a resource room teacher with in-service instruction in Orton-Gillingham, a specialized educational method often used to teach students with dyslexia and other learning disabilities. See id., Ex. P-N.
After a triennial evaluation in May 1995 indicated that M.B. had continuous difficulties in school, the committee recommended that the school increase Resource Room time from five to seven and a half hours per week, and add a self-contained special class of reading for one hour per day. See 5/3/95 Triennial Evaluation, Ex. D-9; 9/6/95 IEP, Ex. D-10. The parents expressed dissatisfaction, arguing that simply increasing the amount of existing services was not appropriate. See 6/7/95 Letter to Steinberg from M.B., Ex. P-X. In March, 1996, the committee altered M.B.'s IEP to include five hours a week of Resource Room (down from seven), and Remedial Reading three times per week in thirty minute group sessions (replacing forty-five minutes of the Special Reading Class), finding that "[s]pending more time with his classmates in the classroom and in Remedial Reading will enhance [M.B's] self-esteem, as well as continue to provide academic support." See 3/20/96 IEP Change Form, Ex. D-11. His IEP for the 1996-97 school year made several changes: Resource Room was replaced with Consultant Teacher support and Remedial Reading was replaced with Special Class in study skills. See Grade 5 IEP, Ex. D-13.
In August 1996, at the parents' request, Margaret S. Mabie, a reading expert and special education teacher, conducted a specialized reading assessment of M.B. See 11/5/96 Letter from Mabie to Steinberg, Ex. D-l5. Mabie recommended one hour per day with a
fully trained Orton-Gillingham academic language therapist, one who is certified, or well on the way to certification. A few workshops, or short courses in an Orton philosophy and approach to language arts, does not qualify a teacher to work with [M.B.] at this point in his schooling.Id. Upon reviewing Mabie's evaluation, the committee notified the parents that no changes would be made to the IEP. See 1/21/97 Letter from Steinberg to M.B., Ex. D-16. M.B.'s IEP for the 1997-98 school year was substantially the same as the IEP for the previous year. See 7/29/97 Letter to M.B. from Lorraine Costello, Ex. P-PP.
Dissatisfied with the IEP, and the education M.B. was receiving at the Arlington school district, the parents unilaterally placed M.B. in the Kildonan School, a private school that specializes in teaching dyslexic children. See Pl. Prop. Facts at 16-17. The parents then requested a due process hearing, at which they sought reimbursement for all costs and tuition for M.B.'s year at Kildonan. See 10/10/97 Letter to Costello from M.B., Ex. P-ZZ. M.B. returned to the Arlington school district for eighth grade because his parents could not afford the tuition at Kildonan. See Pl. Prop. Facts at 17.
B. The Due Process Hearing
A hearing was held over six days, from February 26, 1998 to July 31, 1998. The hearing officer heard testimony from Lorraine Costello (Chairperson of the committee for the Arlington school district), Linda Tyler (reading specialist at Arlington middle school), Vanessa Sugg (sixth grade special education teacher at Arlington middle school), Marie Whearty (school psychologist at Arlington middle school), Katherine Schantz (Academic Dean at the Kildonan School), and M.B.'s father.
The first hearing was held before Eric Zaidins on February 26, 1998. Because the parents objected to a defective appointment process, Dr. Arnold Jaeger was appointed in place of Zaidins. The remaining five days of hearings were held before Jaeger.
Costello traced the student's special education program beginning with the parents' referral to the committee at the end of first grade in June 1992. First, she explained that M.B.'s IEP goals for sixth and seventh grade reflected assessment results from each previous year, that additional goals were added each year and that the plan for seventh grade included a provision for a multi-sensory reading program one period per day with the certified reading specialist. See IHO Tr. at 135. She further explained that the district provided a fifth grade teacher with experience in Orton-Gillingham and that his current seventh grade teacher was enrolled in a program at Columbia University in Orton-Gillingham. See id. at 128, 132. According to Costello, the district made a commitment to provide a reading teacher with experience in Orton-Gillingham. See id. at 229, 246 ("It was the CSE's intent that [the teacher] provide a multisensory reading program that can incorporate a variety of strategies, one of which certainly can be Orton-Gillingham."). Finally, she testified as to the importance of M.B. being educated alongside his non-disabled peers, and stated her opinion that M.B.'s IEP for 1997-98 was appropriate to meet his special education needs. See id. at 92, 137.
Tyler testified that M.B.'s greatest weaknesses were in spelling, comprehending words in isolation, and decoding. See id. at 330-31. His reading rate was also slower than normal. See id. According to Tyler, M.B.'s strongest skill was using "context clues," which is using information in a story or a sentence to understand a familiar word or get the main idea of a passage or story. See id. This strength apparently aided M.B. with reading comprehension. See id. Tyler explained that, in working with M.B., she used a multi-sensory approach to decoding, involving as many senses as possible (i.e., seeing the word, saying it out loud, and/or writing it). See id. at 336-37. Orton-Gillingham is a multi-sensory approach, but Tyler could not say that she specifically used that method because, whereas Orton-Gillingham incorporates a very systematic approach, Tyler used elements of every method she knew that worked with her students. See id. at 344-45.
Sugg testified that, as the special education teacher on the team that taught M.B., she was present in the classrooms with him when he went to his English, Social Studies, Science and Math classes; she also taught him for a period called Skills, during which they reviewed and worked on his specific educational deficiencies. See id. at 402. Sugg had no training in the Orton-Gillingham methodology. See id. at 443. She testified that M.B.'s weaknesses were solving multi-step math problems, concentration, grammar, and slowness in reading. See id. at 405-07. His primary academic strength was his ability to "thin[k] out reasons why something would happen." Id. at 407. Whearty, Arlington middle school's psychologist, testified that M.B. is a student of average intelligence.See id. at 563.
M.B.'s father testified about the lack of progress M.B. had been making at Arlington prior to his placement at Kildonan. He explained that M.B.'s grades were inflated because his teachers were giving him answers to tests in advance. See id. at 677-83. Thus, M.B.'s good grades masked the fact that he was not actually learning the reading and math skills necessary to take the tests. The father explained the teachers were frustrating M.D. by telling him that he was making progress when the lack of progress was clear. See id. at 649. It was a struggle to get M.D. on the bus in the morning to go to school, and he often came home from school in a terrible mood. See id. at 652-55.
According to the father, the school district refused to implement Mabie's recommendation that M.B. be provided with a complete Orton-Gillingham course of instruction. See id. at 669. Although Silverman, one of M.B.'s special education teachers, was trained in Orton-Gillingham, she was unable to communicate with M.B. See id. at 652-55. When M.D. received instruction in the Orton-Gillingham method at Kildonan, however, he made tremendous educational and emotional progress. See id. at 709.
Katherine Schantz, Academic Dean at Kildonan, testified that M.B. came to Kildonan with a poor work ethic, unwilling to take risks in the classroom. He did not have a consistent attitude toward homework, and was easily distracted in the classroom. See id. at 790. Over the course of his year at Kildonan, Schantz explained, M.B. became more willing to show people what his potential was and to make the effort to keep up with his assignments. See id. at 791.
C. The Hearing Officer's Decision
The hearing officer concluded that the "Arlington Central School District provided a Free Appropriate Public Education (FAPE) for [M.B.] in the least restrictive Environment during the 1996-97 school year while a sixth grader at the Arlington Middle School." IHO Decision at 27. The hearing officer found that the IEP document contained written academic levels, annual goals that were designed to improve the student's weaknesses in reading and writing, and objectives that were appropriate and designed to provide the student with educational benefit. See id. The multi-sensory approach, which consisted of the Orton-Gillingham method, but did not employ the method exclusively, satisfied the requirement of an appropriate education. See id. He was convinced that M.B.'s IEP was appropriate based on detailed documentation of M.B.'s special education program, evaluations and assessments, CSE meetings, and written correspondence between the school district and the parents. See id. Finally, the hearing officer concluded that the appropriateness of a public school placement is not to be judged by comparison with a private school placement preferred by the parents, and that the parents desired to obtain an educational placement that was "not within the purview of the district to provide." Id. Moreover, the hearing officer found that the parents presented no written evidence that the private placement in the Kildonan School was appropriate. See id. Thus, tuition reimbursement was denied.
D. The State Officer's Decision
The parents argued to the state officer that: (1) the hearing officer did not render a timely decision because the school district did not comply with the requirements for appointing a hearing officer; (2) they were denied due process because the hearing officer closed the hearing before they completed presenting their case, which resulted in the exclusion of expert testimony and documentary evidence; and (3) the hearing officer incorrectly concluded that the school district had met its burden of showing that M.B.'s IEP for 1997-98 was appropriate to meet his special education needs.
The state officer held, first, that it was impossible for the hearing officer to comply with the 45 day rule, and that the parents agreed to waive the rule on the first day of the hearing before Dr. Jaeger. See SRO Decision at 1-2. Second, the state officer agreed to accept the documents proferred by the parents in order to have a more complete record (without agreeing that the parents were denied due process of law). See id. at 2. Third, the state officer concluded that the school district had met its burden of showing that M.B.'s IEP for 1997-98 was appropriate to meet his special education needs. Id. at 8. Because the school district had met its burden, the state officer did not review the hearing officer's finding that the parents failed to meet their burden of proving that Kildonan was an appropriate placement. See id.
Federal and State regulations require the board of education to ensure that hearing officers render a decision within 45 days after the board receives the request for a hearing. 34 C.F.R. § 300.512 [a]; 8 NYCRR § 200.5(c)(11). It was impossible for the hearing officer to comply with this rule because the hearing officer who was initially appointed recused himself. Furthermore, the parties had agreed to extend the timeframe to accommodate the schedules of all the parties. See SRO Decision at 1-2.
The school district argued that because the parents did not initiate the hearing officer process until the 1997-98 school year, they are barred by the equitable doctrine of laches from challenging the appropriateness of the education that M.B. received prior to that year. The state officer held that, while the record contained much evidence from prior years, the request was solely for tuition reimbursement for the 1997-98 school year, which is not barred by laches. Id. at 3 ("Respondent's liability, if any, for the cost of the child's tuition will be determined by what it did or did not do in preparing the child's individualized education program (IEP) for that school year.").
V. DISCUSSION
A. Tuition Reimbursement
Under the IDEA, a party may request that the court "order school authorities to reimburse parents for their expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act."Burlington, 471 U.S. at 369. A court will grant this request if it finds that: (1) "the proposed IEP was inadequate to afford the child an appropriate public education," and (2) "the private education services obtained by the parents were appropriate to the child's needs." Walczak v. Florida Union Free School District, 142 F.3d 119, 129 (2d Cir. 1998). To determine the appropriateness of an IEP, the court asks "(1) whether the state complied with the procedural requirements of the Act; and (2) whether the challenged IEP was `reasonably calculated to enable the child to receive educational benefits.'" M.C., 226 F.3d at 66 (quoting Rowley, 458 U.S. at 206-07); accord Walczak, 142 F.3d at 129. The Board of Education shoulders the burden of proof with respect to both of these issues. See Walczak, 142 F.3d at 122.
1. The Appropriateness of the IEP
The parents contend that M.B.'s IEP for seventh grade was inappropriate because it: (1) lacked sufficient information for educators to form a basis for addressing M.B.'s abilities and needs; (2) lacked a clear statement of his specific learning disability, his unique learning style and proper objective measurement tools for defining whether progress was made; (3) contained no short-term objectives which are measurable; (4) was not written in objective terms; (5) did not rely upon current evaluations; and (6) was not reasonably calculated to benefit M.B. in his areas of specific need and deficit. See Plaintiffs' Proposed Conclusions of Law ("Pl. Prop. Law") at 18-20. After an extensive and thorough hearing, the hearing officer concluded that the IEP did, in fact, contain written academic levels, annual goals designed to improve M.B.'s weaknesses in reading and writing, and objectives that were appropriate to provide him with educational benefit. See IHO Decision at 27.
After reviewing M.B.'s IEP and all of the testimony presented in this case, I find that the school district has met its burden of showing that the IEP was procedurally appropriate. The IEP was based on an educational evaluation completed only a few months earlier. See Grade 6 IEP, Ex. D-19, at 9. The plan was supported by M.B.'s response to the various educational methods previously used by the school. See id. Goals were set to help M.B. overcome his educational weaknesses. See id. at 2-9. As the hearing officer explained, the district produced documents detailing "[M.B.'s] special education program, evaluations/assesments, CSE meetings held at least annually, but more often in some cases" as well as "written correspondence that occurred between the school district and the parents regarding the student's special education program." IHO Decision at 27. Based on the evidence, the hearing officer found that the committee, M.B.'s other teachers and the school district as a whole spent a considerable amount of time addressing M.B.'s educational deficiencies, and that M.B.'s ISP for 1997-98 was procedurally appropriate. I agree with both findings.
I further find that the IEP was substantively appropriate. The parents' main contention is that M.B.'s disability required that he be taught by a teacher fully trained in the Orton-Gillingham method, and that the school district did not meet this need. Mabie testified that the best education for M.B. would include a lot of individual attention by a teacher fully certified in Orton-Gillingham. See 12/27/01 Tr. at 18. According to Mabie, this method is the only way to teach students with dyslexia, just as Braille is the only way to teach blind students. See id. at 45. Mabie herself admits, however, that her idea of an ideal education for M.B. is impractical and the school district has good reason to reject it. See id. at 21. Indeed, when Mabie was asked whether she believed that Arlington had taken whatever steps it could to utilize Orton-Gillingham, she responded: "It would have been very difficult . . . to find people with that kind of intensive training in our area." Id. Referring to the fact that the students in the public schools are taught by a different teacher for each different subject, she stated: "[I]t was not an environment where [provision of Orton-Gillingham] would have been possible." Id. Finally, Mabie admitted that she does not know of any public or private school programs in her area, other than Kildonan, that provide students with a teacher fully-trained in the Orton-Gillingham method. See id.
The parents also contend that the IEP was substantively inappropriate. They claim that the IEP: (1) did not adequately address M.B.'s need for instruction in the sub-skills of language arts through a curriculum formulated and specifically modified to be structured, sequential and multisensory; (2) called for class sizes too large to accommodate M.B.'s specific and intensive learning style; and (3) did not require teachers with adequate training in the program required by M.B.'s specific disability. See Pl. Prop. Law 21-22.
The school district attempted to implement Orton-Gillingham into M.B.'s education. While the teachers with whom he worked had not completed extensive training courses, they did have some training in the method. The hearing officer found that the district used a multi-sensory approach aimed at specifically remediating M.B.'s learning disability. See IHO Decision at 27. "The district did not use the Orton-Gillingham method exclusively, but has offered on more than one occasion to provide the student with that methodology as well." Id. As Mabie admitted in her evaluation, "the school has tried to help [M.B.] within the confines of available services; unfortunately, these services have not moved him ahead far enough or fast enough." 11/5/96 Letter to Steinberg from Mabie, Ex. D-15, at 15.
While I have no reason to doubt Mabie's testimony that a full-blown Orton-Gillingham approach would be ideal, I am convinced that the school district met the minimum requirements of the IDEA. M.B. did not receive a great education in his public school, nor was his disability addressed in the best way possible. But this is not the standard the state must meet.
That M.B. could have received a better education is probably true of many, if not all, public school students, whether disabled or not. Unfortunately, many students are not well-educated in the public schools of our country. Be that as it may, I agree with the hearing officer that the parents wished to "obtain an educational placement that is not within the purview of the district to provide." IHO Decision at 27. I further agree that "the appropriateness of a public school placement [shall not be] determined by comparison with a private school placement preferred by the parent." Id.
2. The Appropriateness of the Private Placement
The hearing officer determined that "[t]here was no written evidence presented by the parents to document that the private placement in the Kildonan School provided an appropriate program for the student." Id. The hearing officer made this determination without the benefit of Mabie's testimony, which casts serious doubt on that conclusion. However, because I conclude that the IEP was adequate, it is not necessary to decide this issue. See M.C., 226 F.3d at 66 ("Only if a court determines that a challenged IEP was inadequate should it proceed to the second question.")
3. Section 504 Claim
The federal regulations promulgated under section 504 with respect to education specifically provide that if the school district "has made available . . . a free appropriate public education to a handicapped person and the person's parents. choose to place the person in a private school, the recipient is not required to pay for the person's education in the private school." 34 C.F.R. § 104.33(c)(4); see also J.D., 224 F.3d at 71. This Court has held that M.B.'s IEP constitutes a "reasonable accommodation" of his disability. Accordingly, there is no violation of section 504. See J.D., 224 F.3d at 70, 71-72 (citing 34 C.F.R. § 104.33(b)(2)).
Moreover, "[t]o state a claim under Section 504, a plaintiff must plead `more than an incorrect evaluation or substantively faulty IEP . . . to establish liability; a plaintiff must show that defendants acted with bad faith or gross misjudgment." Weixel, 2000 WL 1100395, at *3 (quotingR.B. ex rel. L.B. v. Bd. of Educ. of City of New York, 99 F. Supp.2d 411, 419 (S.D.N.Y. 2000)); see also Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 152 (N.D.N.Y. 1997). Plaintiffs need not show, however, that defendants "acted with animosity or ill will." R.B. ex rel. L.B., 99 F. Supp.2d at 419 (citing Bartlett v. New York State Bd. of Law Exam'rs, 156 F.3d 321, 331 (2d Cir. 1998), vacated on other grounds, 527 U.S. 1031 (1999)). Here, the parents have submitted no evidence supporting an allegation of bad faith on the part of any of the defendants, and none of the alleged failures on the part of the school district constitutes gross misjudgment.
VI. CONCLUSION
For the reasons stated above, the parents' request for tuition reimbursement is denied and the judgments of the hearing officer and state officer are affirmed. The Clerk is directed to close this case.