P.C. ex rel. K.C. v. Oceanside Union Free School District

818 F. Supp. 2d 516, 2011 U.S. Dist. LEXIS 57112, 2011 WL 2134049
CourtDistrict Court, E.D. New York
DecidedMay 24, 2011
DocketNo. 09-CV-1204 (JS)(ETB)
StatusPublished
Cited by1 cases

This text of 818 F. Supp. 2d 516 (P.C. ex rel. K.C. v. Oceanside Union Free School District) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
P.C. ex rel. K.C. v. Oceanside Union Free School District, 818 F. Supp. 2d 516, 2011 U.S. Dist. LEXIS 57112, 2011 WL 2134049 (E.D.N.Y. 2011).

Opinion

MEMORANDUM AND ORDER

SEYBERT, District Judge:

Pending before the Court are a motion for summary judgment filed by Oceanside Union Free School District (“Oceanside” or “Defendant”) seeking dismissal of every claim contained within the Complaint filed by P.C. and M.C. on behalf of K.C. (“Plaintiffs”) (Docket Entry 25) and a cross motion for summary judgment filed by Plaintiffs (Docket Entry 26). Plaintiffs brought this action against Oceanside requesting a de novo review of the refusal of a New York State Review Officer (“SRO”) to classify K.C. with an emotional disturbance pursuant to the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. § 1400(d)(1)(A). The Complaint also includes a claim pursuant to Section 504 of the Rehabilitation Act of 1973, 20 U.S.C. §§ 701-796(1) (“Section 504”). For the reasons discussed below, Defendant’s motion is GRANTED, Plaintiffs’ motion DENIED.

BACKGROUND

Defendant Oceanside receives federal financial assistance and is therefore required by law to provide Free Appropriate Public Education (“FAPE”) to disabled students residing in its district. Plaintiffs’ Local Rule 56.1 Statement (“Pis. Stmt.”) ¶ 88.

Beginning in the 7th grade (2004-2005), and continuing through the 8th grade, K.C., a pupil in the Oceanside School District, started receiving failing grades in his classes. Defendant’s Local Rule 56.1 Statement (“Def. Stmt.”) ¶ 6; Pis. Stmt. ¶ 6. Coinciding with his declining academic performance, in the 7th grade K.C. also began smoking marijuana in the amount of three grams per day (sometimes laced with cocaine), as well as abusing alcohol and prescription medications. Def. Stmt. ¶ 3; Pis. Stmt. ¶ 3. By the time he had reached the 8th grade, he was reportedly smoking one half to three-quarters of an ounce of marijuana daily. Def. Stmt. ¶ 4; Pis. Stmt. ¶ 4.

Concerned about K.C.’s alarming deterioration, his parents requested on December 9, 2004 that Oceanside conduct a psychological evaluation of their child. Def. Stmt. ¶ 7; Pis. Stmt. ¶ 7. Oceanside obliged, evaluating KC.’s social and psychological history, observing him in class, and soliciting information regarding his academic performance from his teachers. Id. Among other things, this effort revealed that K.C.’s overall cognitive functioning was average; his processing skills were in the borderline range; his decoding, math, spelling, and listening comprehension skills were average; and his oral expression skills were in the superior range. Def. Stmt. ¶¶ 8-10; Pis. Stmt. ¶¶ 8-10. Armed with these results, and with the knowledge that K.C. was absent from and failing a number of classes, on March 1, 2005, the Committee on Special Education (“CSE”) for the district determined that although K.C. was not eligible for special education, he would be afforded more liberal testing accommodations, pursuant to Section 504. Def. Stmt. ¶ 11; Pis. Stmt. ¶ 11. The Plaintiffs never challenged the March 1 meeting in any respect. Def. Stmt. ¶ 12; Pis. Stmt. ¶ 12.

[521]*521On August 22, 2005, K.C.’s parents placed him in a drug treatment program at Glen Cove Community House (“GCCH”), where his admission diagnoses included abuse of alcohol, cannabis, opiates, and amphetamines; attention deficit hyperactivity disorder; and “parent-child relational problem.” Def. Stmt. ¶ 13; Pis. Stmt. ¶ 13. During his stay at GCCH, K.C. underwent weekly individual therapy, biweekly family therapy, and daily group and therapeutic and psychiatric services; Oceanside covered K.C.’s education in this period, which comprised ten hours of instruction per week. Def. Stmt. ¶ 15; Pis. Stmt. ¶ 15. For all of his therapy, however, K.C. continually tested positive for marijuana use, refused to be tested on other occasions, and through his own research he learned how to foil the drug tests. Def. Stmt. ¶ 16; Pis. Stmt. ¶ 16. For this reason and others, GCCH’s coordinator wrote to Defendant’s Assistant Superintendent for Special Education and Pupil Services to explain why K.C. was being expelled from GCCH. Def. Stmt. ¶ 20; Pis. Stmt. ¶ 20. “K.C.”, he wrote, “is presently smoking marijuana, disobeying house and program rules and taking off for hours at a time.” Def. Stmt. ¶ 19.

On March 17, 2006, and in response to his ongoing drug use and increasingly violent behavior, K.C.’s parents unilaterally placed him in a private residential preparatory school sited in Hancock, New York, called Family Foundation, which has never been approved by the New York State Commissioner of Education as a school with which school districts may contract to instruct students with disabilities. Def. Stmt. ¶¶ 21, 23; Pis. Stmt. ¶¶ 21, 23. The guiding philosophy of Family Foundation is centered on a so-called Twelve-Step program which requires students to follow a twelve-step “process of self-examination in dealing with whatever issues he or she presents.” Pis. Stmt. ¶ 117. This procedure strongly resembles that of Alcoholics Anonymous and incorporates religious elements. Def. Stmt. ¶ 117.

About one month later, on April 28, 2006, Defendant convoked another CSE meeting among whose participants were the CSE chairperson, a school psychologist, a special education teacher, a standard education teacher, KC.’s father, Plaintiffs’ attorney, and the Defendant’s attorney. Def. Stmt. ¶ 27; Pis. Stmt. ¶ 27. In spite of the extensive psychological testing already conducted by the Defendant, the CSE determined that more data were needed to consider K.C.’s special education eligibility and that it would be wise to evaluate K.C. at the Family Foundation, where he was relatively drug free. Def. Stmt. ¶ 28; Pis. Stmt. ¶ 28. Because both K.C. and Defendant employed different experts to conduct psychoeducational evaluations and because the report of KC.’s expert (Dr. Petrosky) was not shared with Defendant until June 6, 2006, Defendant’s expert, Dr. Hans, was prevented from conducting a complete psychological evaluation in order to avoid the “practice effect” associated with duplicative testing. Pis. Stmt. ¶ 32. Dr. Petrosky concluded that K.C. suffered from an emotional disturbance; Dr. Hans concluded that he did not suffer from one. Def. Stmt. ¶¶ 33, 35; Pis. Stmt. ¶¶ 33, 35. Dr. Petrosky further found that the supports and services offered to K.C. at Family Foundation appropriately addressed his learning, emotional, and behavioral needs. Pis. Stmt. ¶ 135.

More specifically, Dr. Hans, the presenting school psychologist, performed classroom observation at the Family Foundation and analyzed questionnaires presented to KC.’s teachers. See IHO Findings of Fact and Decision (“IHO”), p. 18. During his single-day observation (June 13, 2006), Dr. Hans did not mark any signs of emotional disturbance; rather, KC.’s science teacher informed him that K.C. received [522]*522good grades, was amicable, and always appeared in a fine mood. Id., p. 19. Although many Family Foundation students experience a “rough” adjustment period, this was not true for K.C., according to this teacher. Id. Then, Dr. Hans presented the “Differential Test of Conduct and Emotional Problems” (“DT/CEP”) to Family Foundation’s secretary who in turn provided it to the school’s “family leader,” Mr. McCarthy. Id., pp. 19-20. A scientific, research-based test, the DT/CEP comprises sixty true/false questions to objectively measure a student’s behavior and produce an emotional disturbance scale. Id., p. 20.

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818 F. Supp. 2d 516, 2011 U.S. Dist. LEXIS 57112, 2011 WL 2134049, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pc-ex-rel-kc-v-oceanside-union-free-school-district-nyed-2011.