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Lincoln School District v. Rhode Island Council On Elementary and Secondary Education

Superior Court of Rhode Island, Providence

December 21, 2018


          For Plaintiff: Michael J. Polak, Esq.

          For Defendant: Paul V. Sullivan, Esq.; Amy R. Tabor, Esq.


          VOGEL, J.

         The Lincoln School District (District) brings this appeal from a decision of the Rhode Island Council on Elementary and Secondary Education[1] (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.


         Facts and Travel

         Doe is 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.

         Pursuant 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 21:12-22.

         In fall 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.

         At the 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.[2] 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.

         On June 5, 2014, the District assembled an Individualized Education Program (IEP)[3]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.

         Although 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 35:6-12.

         In 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 recommended that

"[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.

         As a 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.

         On 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.

         Doe's 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.

         Before 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.

         The 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.

         Next, 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.

         On 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.

         After 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.

         Accordingly, 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.[4] Id. at 11.

         The 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.

         On 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 parents' counterclaims.


         Standard of Review

         Decisions 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 ...

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