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Todd v. Duneland School Corp.

August 19, 2002


Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Nos. 00-C-170, 00-C-293--Rudy Lozano, Judge.

Before Bauer, Posner, and Kanne, Circuit Judges.

The opinion of the court was delivered by: Kanne, Circuit Judge

ARGUED MAY 17, 2002

Margaret Todd unilaterally removed her son, R.T., from the defendants' school district and sought reimbursement from the defendants for R.T.'s subsequent placement in private school under the Individual with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Both the Indiana Board of Special Education Appeals ("BSEA") and the district court found for the defendants, and we affirm.

I. History

The IDEA represents "an ambitious federal effort to promote the education of handicapped children." Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 179, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). Its purpose is "to ensure that all children with disabilities have available to them appropriate public education that emphasizes special education and related services designed to meet their unique needs." 20 U.S.C. § 1400(d). Among other things, the IDEA supplies the states with federal funding for specialized education services to assist eligible disabled children. In conformity with applicable federal guidelines, the state of Indiana administers those funds through the Indiana Department of Education and its local school systems. See IND. CODE § 20-1-6-4.

For each child in need of special education assistance, the state of Indiana convenes an IDEA case conference between the child's parents and local officials to tailor an individualized education plan ("IEP") for the disabled student, which, inter alia, identifies how to help the child to advance towards the annual goals outlined in the IEP. See 20 U.S.C. §§ 1401(11), 1414(d). Under the IDEA, the IEP must provide each disabled student with a free appropriate public education tailored to his or her individual needs. See 20 U.S.C. § 1400(d)(1)(A). A free appropriate public education is one "specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction." Rowley, 458 U.S. at 18889. Where a state fails to satisfy this statutory mandate, parents have a right to reimbursement for private school tuition. See Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 370, 105 S. Ct. 1996, 85 L. Ed. 2d 385 (1985).

R.T. is approximately nineteen years old and was first diagnosed as learning disabled in 1993, when he was in the third grade. At that time, Mrs. Todd and the defendants referred R.T. to the Porter County Education Interlocal for testing due to "concerns about his academic progress, especially in the areas of reading and written language."

The initial evaluation revealed discrepancies between R.T.'s ability and his actual achievement in the areas of basic reading skills, reading comprehension, and written expression. Consequently, the defendants found that R.T. was eligible for special education services as a learning disabled student in those subjects. Pursuant to the IDEA, the defendants provided special education services to R.T., according to IEPs designed by case conference committees annually through the eighth grade.

Between grades three and six, the IEPs dictated that R.T. receive general educational instruction for most of the day, with direct special education instruction in reading and written language. In other words, R.T. spent most of his day--approximately 86%--in regular education classes but also received forty minutes of daily phonics instruction and other assistance with his written language problems. Further, the IEPs called for special assistance in R.T.'s regular education classes--for example, having his tests read to him and having additional time to complete written assignments.

During the fourth and fifth grades, R.T. took standardized achievement tests and scored within the average national percentile score range in all areas of reading and written language. A reevaluation conducted during the sixth grade revealed considerable gains in the areas of reading and written language, and R.T. no longer demonstrated significant discrepancies between his ability and his achievement in reading and written language. Finally, R.T. obtained all A's and B's in reading and language arts, as well as in other areas of the general education curriculum up to and including the first quarter of the eighth grade. *fn1

During the sixth, seventh, and eighth grades, R.T. continued to receive special education services such as individualized special education instruction, pursuant to annual IEPs. Additionally, R.T. attended a number of "teamtaught" classes, which involved more than one instructor. In the eighth grade, although R.T. again earned all A's and B's during the first quarter of the school year, his grades dropped off as the year progressed. Many teachers noted that R.T.'s effort seemed to decrease and surmised that he was having personal problems at home. They were unanimous, however, in their conviction that R.T. was able to complete eighth-grade-level work.

In February 1998, Mrs. Todd became concerned about R.T.'s progress with reading and hired Dr. John Hosterman to evaluate R.T. Dr. Hosterman concluded that R.T. was not performing to his ability in reading, written language, and math. Dr. Hosterman attributed the underachievement to a substantial processing deficit and noted that R.T. had a moderate to severe auditory processing problem. Dr. Hosterman recommended teaching programs different from the ones that defendants had previously used with R.T., specifically, the Orton-Gillingham Program. *fn2 Dr. Hosterman further recommended an extended school year--i.e., summer school--to assist R.T.

In 1998, the defendants asked Dr. Michael Flahive to perform an audiological evaluation of R.T., and Dr. Flahive found that although R.T. had problems with certain langauge processing areas, he was quite competent with others. Additionally, the defendants separately evaluated R.T.'s progress. After the testing, Mrs. Todd and the defendants convened R.T.'s annual case review on June 11, 1998 to plan his ninth-grade education program (the "1998 IEP"). In developing the 1998 IEP, the case conference committee considered Dr. Hosterman's ...

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