Plaintiff: Michael J. Polak, Esq.
Defendant: Paul V. Sullivan, Esq.; Amy R. Tabor, Esq.
Lincoln School District (District) brings this appeal from a
decision of the Rhode Island Council on Elementary and
Secondary Education (Council), ordering the District to
provide D. Doe (Doe) with special education services in the
form of a teacher of the deaf (TOD) for all hours of academic
instruction at Doe's private school. In response, Doe,
through his parents, filed two counterclaims seeking a
preliminary injunction to enforce the Council's decision
and attorneys' fees. This Court derives its jurisdiction
from G.L. 1956 §§ 42-35-15, 16-39-4 and 42-92-3(b).
For the reasons set forth below, this Court affirms the
Council's decision and denies Doe's request for a
preliminary injunction and attorneys' fees.
eleven years old and suffers from severe to profound hearing
loss. Tr. 15:2-18, July 19, 2016 (Vol. 1). Both Doe and his
parents are residents of Lincoln, Rhode Island. Id.
Although Doe's hearing loss was present at birth, none of
Doe's physicians provided him with an official diagnosis
until shortly before he turned two. Report of Langone Medical
Center, Apr. 26, 2010, Pet'r's Ex. 3. For a full year
following his diagnosis, Doe wore hearing aids in hopes that
the devices would enable him to hear. Vol. 1 Tr. 18:6-8.
However, the hearing aids proved unhelpful, and Doe received
his first cochlear implant at age three. Vol. 1 Tr.
18:19-20:11. At this point, Doe gained the ability to hear
some sound. Id. However, due to Doe's severe to
profound hearing loss and the three years it took to find a
proper solution, Doe experienced significant delays in his
language development. Report of Langone Medical Center, Apr.
26, 2010, Pet'r's Ex. 3; Clarke Evaluation,
Pet'r's Ex. 8 at 1.1.
to an agreement between Doe's parents and the District,
Doe began attending preschool at the Northern Rhode Island
Collaborative's Auditory-Oral Program (AOP) in May 2010,
shortly after he turned three. Vol. 1 Tr. 20:18-21:4. The AOP
serves students suffering from profound hearing loss who use
hearing aids or cochlear implants to communicate through
speech as opposed to sign language. Tr. 422:11-424:16, Aug.
2, 2016 (Vol. 3). Doe's preschool class at AOP included
only five students, all of whom were deaf or hearing
impaired. Vol. 1 Tr. 22:3-12. In addition to AOP, Doe
attended a regular preschool two days a week. Id. at
of 2012, Doe began his kindergarten year at AOP. Vol. 1 Tr.
26:17-20. Doe spent mornings in a small classroom taught by a
TOD that consisted solely of children with hearing loss and
afternoons in a regular classroom of 18 students. Vol. 1 Tr.
26:17-28:9. Doe's mother volunteered in Doe's
classroom once a week and grew concerned with Doe's
ability to comprehend his teachers' instructions.
Id. at 28:21-29:7.
end of Doe's kindergarten year, AOP informed Doe's
parents that for Doe's first grade year, it intended to
place Doe full-time in a larger, regular education classroom
and provide pull-out services. Vol. 1 Tr. 29:16-30:3. Doe's
parents were concerned that Doe was not ready to be placed in
a larger classroom full-time and, after visiting alternative
schools, decided to remove Doe from AOP and enroll him in The
Gordon School (Gordon), a private elementary school located
in East Providence, Rhode Island, for the 2013-2014 school
year. Vol. 1 Tr. 31:7-32:21; 86:20-87:2. Gordon offered
smaller class sizes and had experience working with deaf
students such as Doe. Id. Additionally, Gordon
allowed Doe to repeat his kindergarten year. Vol. 1 Tr.
34:6-14. Doe's parents paid for Doe's tuition out of
their personal funds. Id. at 34:15-17.
5, 2014, the District assembled an Individualized Education
Program (IEP)team, including Doe's parents, to
evaluate Doe's need for special education services and
determine what services the District would provide to Doe
during his second year attending Gordon. IEP Team Minutes,
June 5, 2014, Pet'r's Ex. 4; T. Vol. 1 Tr. 36:7-14;
107:10-22. Before the IEP meeting, Doe's parents gave the
District the results of an assessment conducted in March 2014
that placed Doe in the .07th percentile compared to his same
aged hearing peers. Pet'r's Ex. 5; Vol. 1 Tr.
37:15-23; 95:21-24. The assessment also recommended
"one-on-one support during class time," preferably
"offered by a teacher of the deaf." Pet'r's
Ex. 5. Based on the 2014 assessment, Doe's parents
requested a TOD at Gordon for three hours a week. Vol. 1 Tr.
38:12-20. The District denied the request, which led
Doe's parents to personally hire a TOD to provide
services for Doe for five hours a week during his first grade
year at Gordon. Id. at 39:12-15; 41:21-42:17.
the District denied the request for a TOD, the District
continued to provide Doe with physical and occupational
therapy once a week and auditory and speech training three
hours per week at an in-district school. Vol. 1 Tr.
34:22-35:5. The District also agreed to conduct periodic
observations and consultations at Gordon. Id. at
April 2015, Doe's parents requested and the District
agreed to have Doe's three-year evaluation conducted at
the Clarke School for Hearing and Speech. Vol. 1 Tr. 43:4-16.
The Clarke evaluation indicated that due to his hearing loss,
Doe often missed and/or misperceived important information
during academic instruction and group discussions. Clarke
Evaluation, Pet'r's Ex. 8 at 5.9. The report also
"[Doe] should receive direct support from a teacher of
the deaf to support him with pre and post-teaching,
instruction in understanding/use of text structures, support
for the development of his written language, check-in to
ensure that [Doe] understands all assignments, and any other
needs that may arise." Id. at 5.10.
result of the Clarke evaluation, Doe's parents hired
another TOD so that Doe would have services for the full
school day. Vol. 1 Tr. 45:19-46-6.
October 21, 2015, the District conducted another IEP meeting.
Pet'r's Ex. 9; Vol. 1 Tr. 46:15-17. At the meeting,
Doe's parents renewed their request for the District to
provide a TOD for all academic portions of the school day at
Gordon. Vol. 1 Tr. 46:18-21. Following the meeting, the
District sent Doe's parents a formal letter rejecting
their request and stating that the AOP was the appropriate
placement for Doe, and that Gordon would not provide an
adequate free and appropriate education. Pet'r's Ex.
9; Vol. 1 Tr. 46:22-47:23. The District also informed
Doe's parents that if they rejected the IEP, "the
services that [Doe] is presently receiving will
terminate." Pet'r's Ex. 9.
parents then filed a due process complaint pursuant to the
federal Individuals with Disabilities Education Act (IDEA)
and the equivalent Rhode Island regulations. Amended Request
for Hearing in the Nature of an Impartial Due Process
Hearing, Pet'r's Ex. 1; Comm'r's Decision at
1, n.1. Doe's parents also requested and the District
agreed to a "stay-put" placement ensuring that the
District would continue to provide Doe with the speech and
occupational services that he was receiving while the appeal
was pending. Vol. 1 Tr. 56:20-57:4. Subsequently, a due
process hearing officer transferred the matter to the
Commissioner of Education (Commissioner) because Doe's
parents' claim arises from rights provided under §
16-24-1 and not the IDEA. Comm'r's Decision at 1,
n.1. The Commissioner agreed to hear the matter, and neither
party objected. Id.
the Commissioner, Doe's parents contended that §
16-24-1(b)-(d) requires the District to provide special
education services to Doe in the form of a TOD for all hours
of academic instruction at Gordon, the private school in
which they have placed him. Doe's parents also requested
reimbursement for the costs they have incurred to provide a
TOD at Gordon since the beginning of the 2015-2016 school
year. Additionally, they asked the Commissioner to order the
District to revise Doe's IEP and to refrain from
threatening to cease to provide services if Doe's parents
do not agree with the recommended placement. For its part,
the District contended that it is not required to provide a
TOD at Gordon because that is not a service that it would
provide to an in-district student. Pursuant to §
16-39-1, regarding the appeal of matters of dispute relating
to schools or education, the Commissioner conducted hearings
over four days between July 19 and August 3, 2016.
Commissioner heard testimony from various witnesses involved
in Doe's education. Testimony focused primarily on the
witnesses' observations of Doe's academic and social
challenges due to his hearing loss, as well as the progress
he has shown with the assistance of services. Doe's
parents presented eight witnesses, including Doe's mother
and father; Doe's kindergarten and first grade teachers
at Gordon who were both qualified as teachers of the deaf;
Doe's second grade teacher at Gordon; two teachers of the
deaf hired by Doe's parents to assist Doe at Gordon; and
a former research assistant who conducted a formal language
assessment of Doe during his kindergarten year at Gordon.
Vol. 1 Tr. 14:23-15:15; 67:15-79:8; 86:7-13; 130:9-140:5; Tr.
189:21-191:2; 219:10-227:5; 250:1-259:4, July 21, 2016 (Vol.
2); Vol. 3 Tr. 306:1-5. Three teachers of the deaf who have
worked with Doe at Gordon testified that based on their
experience, observations, and the recommendations of formal
assessments, Doe requires TOD services to be provided during
academic instruction in order to further his linguistic and
educational development. Vol. 1 Tr. 124:13-125:10;
148:22-152:21; Vol. 2 Tr. 246:16-247:8.
the District presented six witnesses, including two
diagnostic-prescriptive teachers employed by the District; a
school psychologist for the District, Doe's preschool
teacher at AOP; the Program Coordinator at AOP; and the then
Director of Student Services for the District. Vol. 3 Tr.
312:23-313:20; 346:15-20; 374:18-23; 419:9-428:22; Tr.
454:11-17; 502:4-11, Aug. 3, 2016 (Vol. 4). The two
diagnostic-prescriptive teachers and the school psychologist
testified that based on their observations of Doe during a
normal school day at Gordon in October 2015, Gordon was not
an appropriate placement for Doe because of the high noise
level and lack of other hearing impaired peers. Vol. 3 Tr.
322:19-324:17; 357:11-359:6; 382:17-388:24. Additionally,
Maryann Struble, the Director of Student Services for the
District at the time of the hearing, testified that the
District never would provide a student enrolled in public
school with a TOD but would instead place the child at the
AOP. Vol. 4 Tr. 502:7-11; 508:1-12.
April 28, 2017, the Commissioner issued a decision in favor
of Doe's parents. Comm'r's Decision, Compl. Ex.
A. The Commissioner gave great weight to the expert testimony
of the three teachers of the deaf who have worked with Doe
personally and concluded that "Doe needs specialized
language instruction delivered pursuant to a particular
methodology calculated to advance his linguistic development
and provide him with access to the general education
curriculum." Id. at 4. The Commissioner further
found that "these services need to be provided during
academic instructional time by a teacher of the deaf."
Id. The Commissioner also noted the "meaningful
progress" Doe has made while at Gordon. Id.
making the aforementioned findings, the Commissioner
addressed § 16-24-1(b)-(d), which imposes a duty on the
District to provide Doe, as a child parentally placed in
private school, with "the same free and appropriate
education as it provides to children in public schools."
Id. at 8-9. The Commissioner interpreted this
provision to mean that "[t]he school district must
accept the parents' enrollment decision [and] cannot
override that decision by providing a free and appropriate
education that would require the removal of the child from
the private school's program." Id. at 9.
The Commissioner found that "the teacher-of-the-deaf
services needed by Doe must be provided simultaneously with
the academic instruction[, ]" and, thus, "AOP
cannot perform this service for Doe while he is attending his
private school." Id. at 9. The Commissioner
also emphasized that "[i]f his language development is
to advance, . . . Doe needs the services of a teacher of the
deaf during all of his academic instruction."
Id. at 10.
the Commissioner held that under § 16-24-1(b)-(d), Doe
is entitled to receive TOD services at Gordon at the expense
of the District. Id. at 10. The Commissioner then
ordered the District to provide Doe with TOD services
"at Gordon for all hours of the school day during which
academic instruction is taking place." Id. at
10. Additionally, the Commissioner ordered the District to
reimburse Doe's parents for the cost of TOD services
incurred since the 2015-2016 year. Id. at 11.
District timely appealed the Commissioner's decision to
the Council pursuant to § 16-39-3, and, on December 19,
2017, the Council affirmed the Commissioner's decision.
Council's Decision, Compl. Ex. B. The Council reasoned
that Doe's parents' right to place Doe in private
school combined with "the unique circumstances of this
case and Doe in particular" require that the District
provide the necessary services at Doe's parentally placed
private school. Id. at 4-5. The Council also held
that the Commissioner's factual findings were supported
by evidence in the record and that the decision was not
"patently arbitrary, discriminatory, or unfair."
Id. at 6.
January 19, 2018, the District timely appealed the
Council's decision to this Court. See Compl. The
District contends that the Council erroneously interpreted
§ 16-24-1 to require the District to provide services in
excess of what it would provide to children enrolled
in-district. District's Mem. Supp. of Appeal 15-16. In
addition to filing an Answer denying the material allegations
set forth in the District's appeal, Doe's parents
filed two counterclaims seeking a preliminary injunction to
enforce the Council's decision and attorneys' fees.
Doe and his Parents' Answer and Countercl. On November 5,
2018, Doe's parents filed a formal motion for a
preliminary injunction and a supporting memorandum. Doe's
Parents' Mot. Prelim. Inj. Other than filing an Answer
denying Doe's parents' right to recover
attorneys' fees or to a preliminary injunction, the
District has not otherwise briefed either of Doe's
regarding matters of dispute arising under school or
education law are subject to a two-tier administrative review
process. See §§ 16-39-1 and 16-39-3. At
the first tier, the Commissioner conducts a hearing, analyzes
the live testimony and documentary evidence presented, and
reaches a decision. Sec. 16-39-1. At the second tier, the
Council reviews the Commissioner's findings to determine
if the Commissioner's decision "was patently
'arbitrary, discriminatory, or unfair.'"
D'Ambra v. N. Providence Sch. Comm., 601 A.2d
1370, 1374 (R.I. 1992) (quoting Altman v. Sch. Comm. of
Town of Scituate, 115 R.I. 399, 404-05, 347 A.2d 37, 40
(1975)). The Supreme Court compared this two-tier review
process to a funnel and concluded that "the further away
from the mouth of the funnel that ...