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Cobb County Sch. Dist. v. A.V.

United States District Court, N.D. Georgia

August 20, 2013

A.V., by and through his parents and next friends, W.V. and P.V.; W.V. and P.V., individually, Defendants

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For Cobb County School District, Plaintiff: Aric M. Kline, LEAD ATTORNEY, Gregory, Doyle, Calhoun & Rogers, LLC, Marietta, GA.

For A.V., by and through his parents and next friends, W.V. and P.V., P.V., W.V., Defendants: Chris E. Vance, Office of Chris E. Vance, P.C., Atlanta, GA.

For W.V., P.V., Counter Defendants: Chris E. Vance, Office of Chris E. Vance, P.C., Atlanta, GA.

For A.V., by and through his parents and next friends, W.V. and P.V., P.V., W.V., Counter Claimants: Chris E. Vance, Office of Chris E. Vance, P.C., Atlanta, GA.

For Cobb County School District, Counter Defendant:Aric M. Kline, LEAD ATTORNEY, Gregory, Doyle, Calhoun & Rogers, LLC, Marietta, GA.


Timothy C. Batten, Sr., United States District Judge.

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This case involves cross-appeals of an opinion issued by an administrative law judge (" ALJ" ) in an Individuals with Disabilities Education Act (" IDEA" ) case. Presently before the Court are the parties' cross-motions for judgment on the administrative record.

The Court notes that the parties have labeled their motions as motions for summary judgment pursuant to Federal Rule of Civil Procedure 56; however, the usual " summary judgment principles do not apply in an IDEA case." Loren F. ex rel. Fisher v. Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1313 (11th Cir. 2003). Consequently, the Court has construed the motions as motions for judgment on the administrative record, which may be granted even when material facts are in dispute. Id.

I. Background

In the fall of 1996, Defendant A.V. started kindergarten in the Cobb County School District. He was determined eligible for special-education services under the IDEA. Specifically, A.V. has apraxia (a speech motor planning disorder) and " significant deficits across all domains." Of note to the ALJ and A.V.'s various evaluators were his severely impaired language skills and his deficits in reading and executive functioning, including working memory.

For A.V. and his parents (Defendants W.V. and P.V.), the goal was for A.V. to graduate from high school with a college-preparatory diploma, attend a technical college, and then work as a graphic artist or computer game designer. With respect to the type of high-school diploma A.V.'s parents anticipated, there were three high-school diplomas that A.V. could have received during the time period relevant to this suit: (1) college preparatory, (2) career technology, and (3) employment preparatory. The first two required A.V. to pass the Georgia High School Graduation Test[1] and are considered general-education diplomas. The employment-preparatory diploma did not require A.V. to pass the graduation test and is considered a special-education diploma.

Tension arose between the Cobb County members of A.V.'s Individualized Education Program (" IEP" ) team and his parents in the months before A.V. began his fourth year of high school. In May 2010, at the first of two meetings, the IEP team--over A.V.'s mother's strenuous objection--changed A.V.'s diploma track from college preparatory to employment preparatory for the 2010-11 school year.[2] Then in June 2010, at its second meeting,[3] the IEP team placed A.V. in four special-education classes instead of his usual regular-education classes. To understand how the situation escalated, the Court goes back to the summer before A.V.'s third

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year of high school, the 2009-10 school year.

A. Developing A.V.'s 2010-11 IEP

For the 2009-10 school year, A.V. was a third-year student at Sprayberry High School. On August 5, 2009, A.V.'s IEP team met and discussed the results of A.V.'s recent neuropsychological evaluation by Alcuin Johnson, Ph.D., and whether A.V.'s IEP should be amended in light of Dr. Johnson's findings and recommendations.[4] Dr. Johnson's report stated that A.V.'s test results[5] showed, among other things, that his academic skills were in between a fourth- and fifth-grade level and that he would have difficulty passing the high-school graduation test.

Based on the latter finding, the Cobb County members of the IEP team thought that A.V.'s diploma track should be changed. However, A.V.'s mother rejected this suggestion. She disagreed with Dr. Johnson's report and requested an independent educational evaluation of A.V. At this point, the Cobb County team members agreed to table the diploma-track issue and discuss it at the annual IEP team meeting in December 2009.

In September 2009, Cobb County granted Defendants' request for an independent evaluation. A.V.'s mother selected Lori Muskat, Ph.D., to perform the evaluation.

On December 7 and 19, 2009, the IEP team met for their annual meeting. The team again selected a combination of general-education classes and small-group instruction for A.V. The team had also planned to discuss A.V.'s diploma track but were unable to because Dr. Muskat had not completed her evaluation of A.V.; thus, the team tabled the issue until Dr. Muskat's evaluation was complete.

On March 16, 2010, Dr. Muskat completed her evaluation, and in April A.V.'s IEP was revised, with his mother's approval, to include additional weekly tutoring in U.S. History and personal fitness.

1. May 2010: IEP Meeting One

On May 13, 2010, A.V.'s IEP team reconvened to discuss Drs. Johnson's and Muskat's evaluations,[6] which were generally consistent with each other. Both determined that A.V. had a global neurological impairment and that his IQ was no higher than 76. Dr. Johnson recommended certain therapy, classroom accommodations, and revisions to A.V.'s IEP math and reading goals. However, he did not explicitly recommend that A.V. be placed in special-education classes; rather, he recommended that A.V.'s IEP team " review the results of the current evaluation and . . .

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determine the most appropriate classroom accommodations, modifications and placement for" A.V.

Dr. Muskat recommended that A.V. be placed in highly-structured classes with a low student-teacher ratio, take classes that emphasized hands-on learning, receive frequent and explicit feedback, learn academic skills that transfer to life skills, and receive instruction for socialization with peers. Similar to Dr. Johnson, Dr. Muskat did not explicitly recommend that A.V. be placed in special-education classes. However, Dr. Muskat's report was written based on her erroneous assumption that a general-education, co-taught class[7] was a self-contained special-education class. It was not until August 2010, when Cobb County and A.V.'s parents finally met with Dr. Muskat, that she learned that A.V. had not previously been in special-education classes. Thus, during the due-process hearing Dr. Muskat testified that the " best predictor of performance is somebody's current performance," and consequently test scores that are inconsistent with a student's current performance should not drive an IEP team's decisions.

At the May 2010 meeting, the IEP team also discussed the fact that A.V. had failed (1) every end-of-course test he took at Sprayberry at the end of the 2009-10 school year, and (2) several sections of practice high-school graduation tests.[8] Of particular concern to the IEP team was the fact that A.V. was currently failing U.S. History for the second time.

If A.V. wanted to receive a college-preparatory or career-technology diploma, A.V. had to pass U.S. History without a modified curriculum.[9] By contrast, in order to graduate with an employment-preparatory diploma, A.V. did not have to pass the course; he only had to master the IEP goals and the objectives connected to his classes.

A.V.'s history teacher, Jennifer Dorrough, believed that if A.V. took the course for a third time, he would not be able to pass it without a modified curriculum. Defendants respond that while A.V. did fail U.S. History twice, the second time was because Cobb County did not provide him his IEP accommodations, assistive technology, and tutoring support until the course was almost over.

During the May 2010 meeting, the Cobb County IEP team members determined that A.V.'s diploma track should be changed to employment preparatory.[10] A.V.'s mother was frustrated with this decision because A.V. needed only four more courses (world history, U.S. history, government/economics, and Spanish II) to obtain a college-preparatory diploma, and he had four more years to complete these

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courses.[11] She did not think that Cobb County had support for its determinations that A.V. could not complete the college-preparatory diploma requirements and could not pass three of the four classes he had remaining. Consequently, A.V.'s mother objected to the diploma-track change and requested that A.V. be placed at The Cottage School (" TCS" ) for the 2010-11 school year.

A.V.'s mother explained to Cobb County that TCS was an appropriate placement for several reasons. First, she had confirmed that TCS could provide all of Dr. Muskat's recommendations in the general-education setting, which Dr. Muskat verified at the due-process hearing. Second, by going to TCS, A.V. could graduate with a college-preparatory diploma. Third, because TCS is a private school, it is not allowed to administer, and A.V. would not have to take, the high-school graduation test.

Cobb County informed A.V.'s mother that they were currently discussing A.V.'s diploma track, not his placement for 2010-11. It told her that his placement would be discussed at a later time and that her request for a placement at TCS would be considered then. Nevertheless, Cobb County disputed A.V.'s mother's statement that TCS would teach A.V. in the general-education setting; it contended that it was impossible for the TCS setting to be considered a general-education setting because the students were " all special education kids." The May 2010 meeting concluded with Cobb County affirming its commitment to change A.V.'s diploma track to employment preparatory.

2. June 2010: IEP Meeting Two

Cobb County alleges that it sent several letters to A.V.'s mother after the May 2010 meeting to request another meeting to discuss A.V.'s placement. A.V.'s mother refused to participate in a second meeting because the " IEP had been rejected and TCS could not even be discussed in another IEP meeting because TCS does not offer a special education diploma." On May 15 and June 14, 21 and 22, A.V.'s mother informed Cobb County in writing that she would put A.V. in a private placement at public expense.

On June 23, 2010, the IEP team reconvened without A.V.'s mother or counsel in attendance. During this meeting, the team determined A.V.'s placement for the 2010-11 school year, which included A.V.'s goals and objective for the year, his classes,[12] and supportive aids and services he would need. As for the latter, Defendants contend that Cobb County erroneously concluded that A.V. could not " achieve satisfactorily, even with supplementary aids and services in the regular education setting" due to the severity of his disability because A.V. had previously demonstrated his ability to succeed in the regular-education setting with such aid.

Defendants also took issue with the classes selected for A.V. Some of A.V.'s core classes, which he had previously taken in a general-education, co-taught setting, were now access classes.[13] Cobb County contends that these classes would have been taught using methods recommended by Dr. Muskat in her evaluation

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and that Dr. Johnson also agreed that access classes were appropriate for A.V.

By contrast, A.V.'s mother contends that three of the four classes were mild intellectual-disabled classes, which was troublesome because A.V. had never been identified by Cobb County as a student with a mental impairment under the IDEA. Defendants contend that A.V. could have taken at least one class, personal finance instruction, in a general-education setting, which would have been the least restrictive environment (" LRE" ).

During the June 2010 meeting, the IEP team also discussed A.V.'s mother's request to place A.V. at TCS. The team determined that TCS was an inappropriate placement for A.V. because (1) it did not offer services like occupational therapy; (2) it did not use a research-based one-on-one reading program; and (3) all TCS students had IEPs and identified disabilities.

3. Rejecting A.V.'s 2010-11 IEP

In August 2010, Cobb County, Defendants and counsel for both met with Dr. Muskat to discuss her evaluation. She explained that the best predictor of A.V.'s future was his current performance, not his test results. In light of A.V.'s success with the general-education curriculum in 2009-10, she recommended that he continue in the general-education setting. Further, she stated that all of her proposed recommendations could be implemented in such a setting. Cobb County declined to reconsider A.V.'s placement.

As s result, prior to the start of the 2010-11 school year, A.V.'s parents withdrew him from Cobb County's school system and enrolled him in TCS for what would be A.V.'s final year of high school. TCS is accredited by the Georgia Accrediting Commission, the Southern Association of Colleges and Schools, and the Southern Association of Independent Schools, and Cobb County has previously placed students there. TCS also carefully screens students prior to admission to ensure that it is an appropriate placement for their needs. In August 2011, A.V. received a college-preparatory diploma from TCS.[14] It cost A.V.'s parents $36.428.10 to send A.V. to TCS for the 2010-11 school year.

B. Vision Therapy

In March 2009, A.V.'s mother asked Cobb County to evaluate A.V.'s vision and provide him with vision therapy. Cobb County refused. Consequently, she arranged at her own expense for Dr. David Cook, an optometrist, to evaluate A.V. and subsequently provide vision therapy for A.V. She also executed a release of Dr. Cook's records, but Cobb County claims that it was unable to interpret the records it received. Cobb County requested additional information from Dr. Cook in August 2009, but he did not respond. The release expired in September 2009.

Dr. Cook's evaluation of A.V. showed that he had blurred and double vision. As a result of the therapy, A.V.'s visual tracking improved significantly (from the first percentile to the average range for his age), and he no longer had double vision. He also began reading for pleasure for the first time in his life. The therapy Dr. Cook provided is recognized in the ophthalmology field as ...

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