COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
BSEA# 01-3847
IN RE: BOSTON PUBLIC SCHOOLS
DECISION
This decision is issued pursuant to M.G.L. c.71B and 30A, 20 U.S.C. §1401 et seq ., 29 U.S.C. §794, and the regulations promulgated under those statutes. A hearing occurred on July 16, 2001 and July 17, 2001 and July 23, 2001 at the Bureau of Special Education Appeals in Malden, MA. Those present for all or part of the proceeding were:
Mother
Student
Hyacinth Loatman Ass’t Program Director, Boston Public Schools
Elaine Mason . Parent’s Educational Evaluator
Joseph Brown Principal, McKinley Vocational High School
Daniel Kelley Teacher, McKinley Vocational High School
Nancy Pope Guidance Counselor; McKinley Vocational High School
Charles Burke McKinley Technical High School
Reece Erlichman, Esq. Litigation Coordinator; Boston Public Schools
Amy McDonald Rogers Assistant Corporation Counsel, Boston Public Schools
Elizabeth Kurlan, Esq. Observer, Boston Public Schools
Julie Chamberlin Attorney, The EdLaw Project; Roxbury Defenders
Brooke Aloola Observer; EdLaw Project
Jenny Chou, Esq. Observer; EdLaw Project
Joan Beron Hearing Officer; BSEA
The official record of the hearing consists of joint documents marked J1- 46 and approximately twelve hours of recorded oral testimony. The record closed on August 8, 2001 when written closing the Hearing Officer received full closing arguments from both Parties.
ISSUES
I. Does Boston’s Individualized Educational Plan (IEP) of June 2001-June 2002 designating a program at the McKinley Technical High School appropriately address the Student’s special education needs to assure his maximum possible educational development within the least restrictive educational environment? In the alternative, should Student continue in his program at the McKinley Vocational High School or the McKinley Program at the Madison Park High School with modifications?
II. If not, will modifications and/or accommodations to these programs enable Student to achieve his maximum possible development in the least restrictive environment?
III. If not, does Student require a private day placement to appropriately address the Student’s language based learning disabilities and emotional disabilities to assure his maximum possible educational development within the least restrictive educational environment, thus requiring Boston to locate or create such a program?1
PARENT’S POSITION
Parent and Student assert that the IEP is inappropriate because it does not address Student’s language-based learning disability. Parent/Student do not feel any of the programs associated with the McKinley School can provide the language-based programming Student needs. They also assert that McKinley can not implement the individual counseling that Student requires. Parent/Student also assert that Student has become alienated by McKinley and would not progress there even if modifications could be made to the program. Parent/Student requests that Boston locate a program to meet Student’s needs.
SCHOOL’S POSITION
Boston agrees that Student needs a self-contained program that can address his emotional disabilities and his language-based learning disability but that Student has made slow but steady progress at the McKinley Vocational High School (McKinley Voc). Boston does not feel that Student has been alienated at McKinley Voc however, McKinley Technical High School (McKinley Tech) can provide the same services and would be an appropriate location to implement Student’s IEP.
PROFILE OF THE STUDENT/EDUCATIONAL HISTORY
1. Student is currently an eighteen-year-old student (d.o.b. June 23, 1983) at the McKinley Vocational High School in Boston, MA. Student’s strengths include his good sense of humor. His interests include computers, cars and music (Mother, Pope, Kelley, J8). He has developed and produced a music CD with his brothers and friends (J8). He has been diagnosed with borderline cognitive ability, ADHD, a conduct disorder and severe language-based learning disabilities (J1, J4).
2. Boston first became aware of Student in 1988 when he was referred for an evaluation after being removed from the St. Christopher’s Montessori School for emotional reasons. He was placed in a 502.4 educational program at the Dever School in Boston (Dever) and remained there until second grade (SY 91-92) (J7, J3, Mother). Student displayed impulsive and inattentive behavior at Dever and inconsistent academic performance (J6).
3. Boston reevaluated Student on January 3, 1991 when Student was 7 ½ years old. Student tested in the low-average range of intellectual functioning with deficits in reading and spelling, poor visual motor coordination and possible feelings of insecurity (J7). The psychologist recommended multisensory remedial instruction in a small group. An updated psychological evaluation on June 5, 1992 showed that Student’s difficulty in academics appeared to be the result of early learning problems associated with attention deficits and behavioral concerns and recommended small structured group instruction, short-term counseling and a linguistic approach to reading; (J6).
4. Student attended the Ellis Elementary School in Boston in a substantially separate learning disabilities classroom in 3 rd grade. At the end of 3 rd grade (June 1993), Student received an educational evaluation at New England Medical Center and academically tested at the 1 st to 2 nd grade level (J4).
5. Student attended the Mattahunt Elementary School for 4 th and 5 th grade and the Cleveland Middle School for the 6 th , 7 th and 8 th grades (J3, J4). During the 8 th grade (97-98 SY), Student had been involved in a number of behavioral incidents including bringing a knife to school, breaking his hand in a fight and sexually harassing another student in the bathroom. During the summer of 1998, Student began staying out all night and disregarded his mother’s rules. Student’s pediatrician at New England Medical Center wrote to Boston in July 1998 because she was concerned that Student’s proposed placement at the South Boston High School was not appropriate for Student. She recommended a therapeutic day placement for Student but in September changed her recommendation to a residential placement due to his behavior (J5).
6. Student, then age fifteen, began high school at the South Boston High School in a 502.4 language-based program with three periods per day in a resource room setting (J3). He continued to have problems with respect to adults and following rules and was suspended for two days for stealing from another student. Student received an updated nueropsychological evaluation on September 14, 1998 from Lois Carra, a nueropsychologist at the New England Medical Center’s Center for Children with Special Needs (hereafter CCSN). Parent informed Ms. Carra that Student would refuse to cooperate at home and at school, refused to take his medication for his ADHD and go to counseling and would walk out of school and not get his work done (J4, J5). Student cognitively tested in the slow learner range of functioning with reading and math skills in the late second to early third grade range. Testing showed weaknesses in abstract thinking, qualitative reasoning and short term memory as well as below average comprehension and vocabulary scores and word retrieval, verbal memory and language formulaton difficulties. Students’ direct responses on an emotional screening task revealed problems with needing instant gratification of his own needs, poor judgment and few regrets about his behavior or school work. He was unable to articulate why he got into trouble. Dr. Carra recommended a total full year structured residential therapeutic environment with consistent language development and behavioral expectations throughout his day that integrates a well thought out cognitive/behavioral program that emphasized the teaching of appropriate behavioral choices, recognition of consequences, accountability and safety. She also recommended that the program have opportunities for on site crisis intervention, group counseling, direct teaching of social skills and individual and small group instruction using language based approaches (J5).
7. On November 2, 1998, Student received an educational evaluation from Catherine Mason, an educational specialist at CCSN (J4). Testing showed that Student’s word recognition skills were at a late third grade level, a gain of 1 ½-2 years since last tested at NEMC five years ago. Student was able to read through the third grade level words; however, as words increased in complexity, Student gave up. He did not show mastery of any regularly occurring phonetic pattern/rule, had difficulty with most vowel rules/patterns and was inattentive to the internal details of words. Student’s reading comprehension was at a late 4 th grade level. He had specific difficulty answering inferential questions and vocabulary comprehension of key words. His writing speed was slow and his letters were poorly formed but evenly spaced. Student’s proofreading skills were below average. He could add, subtract and multiply multi-digit and like fractions but could not do long division, decimals, negative integers or algebra and could not tell time accurately. His problem solving was disorganized and impulsive. Ms. Mason recommended that Student attend a highly structured educational setting that combined intensive rule-based language-based instruction such as Orton-Gillingham or Project Read along with vocational training and behavioral therapeutic interventions. The language-based programming should include prompting, outlining, graphic organizers, charts, schedules, repetition and review, summarization, restating, highlighting and paraphrasing and modeling to ensure comprehension in language and math, verbal mnemonics for recall, a highly structured writing program such as Project Read or Landmark with emphasis on functional writing and math. Ms. Mason also recommended establishment of a standard procedure for organization using strategies such as color-coding, assignment notebooks and a break down of assignments. Handwriting instruction to improve cursive writing and training in word processing was also recommended; Id.
8. Boston reevaluated student in March 1999 (J3). At that time he was able to ask for help and was able to work in a small group setting and generally contributed to class activities and discussions; however, Student had difficulty with adult relationships, difficulty accepting criticism and difficulty maintaining attention and concentration2 . At the time of testing Boston believed that Student was taking 20 mg of Ritalin a day; see J40, but see J5). Formal testing showed that Student functioned within the higher limits of the Borderline Classification of intelligence with average possession of general knowledge, memory and abstract reasoning and limitations in computation skills, word knowledge and use of practical information. Student showed deficits in his ability to separate essential from nonessential characteristics, and deficits in visual-motor coordination and social intelligence. He had trouble decoding unfamiliar words and was hard to engage in discussion. Student’s spelling, grammar and writing composition were poor and he often refused to write. Student tested at a 2.9 to a 3 rd grade reading level (Woodcock-Johnson, WRAT), with spelling scores at a second grade level, reading comprehension scores ranging from a 3.4 (Woodcock-Johnson) to a 4.9 grade level (WRAT) and math at the 5 th grade level (WRAT). Projective testing suggested impaired conceptual maturity. Based on this testing, Boston recommended a small structured educational setting with onsite counseling, screening for the presence of ADHD, an updated visual assessment, preferential seating, repetition of directions and use of an assignment book (J3). Boston also recommended that Student participate in guided reading groups with a teacher’s aide and a small number of peers, focusing on vocabulary building and strategies for reading unfamiliar words and that Student read independently for thirty minutes a day with a check-in with the teacher for feedback and support. The evaluators predicted that Student’s reading level should improve by one full grade level by the end of the school year with literacy skills accessed through the WIAT and Star testing (J40).
9. The TEAM reconvened on March 25, 1999 and again on May 18, 1999 and developed a 502.4i program at the McKinley Vocational School along with a daily session of speech/language therapy (J41).3 McKinley’s mission is to provide a highly structured, therapeutic educational setting to support the behavioral, emotional, academic, and vocational growth necessary for each student to achieve his or her maximum potential and to return to a less restrictive Boston Public School setting as soon as possible; Id. Services are managed and monitored by interdisciplinary teams, called Service Teams. These services may be individual and group counseling, liaison with the courts and related human service agencies, outreach to students, monitoring of attendance and punctuality, crisis intervention and problem-solving in school; family support/ therapy and home/neighborhood crisis intervention, consultation with teaching staff; record keeping and reporting, psychiatric evaluation and case management, medical services, transition-to-employment services and bilingual support services (J43, Brown).
10. The goal of the McKinley High Schools is to prepare students academically for college placement or occupationally for the world of work in part through practice and adoption of more acceptable, efficient and healthy ways of interacting; Id. . McKinley “Voc” services 96 students age 13-22, McKinley “Tech” services up to 160 Middle and High School students age 11-22. Both are 180- day school year programs running from 7:20 a.m. – 1:40 p.m. daily (Brown, J43). McKinley’s behavior program operates on a behavior management system that incorporates privileges for acceptable behavior on a five-tiered Level system. When a student is at Level Four (s)he will begin to set up individual mainstream contracts and when at Level Five will pick a specific date for mainstreaming to a less restrictive setting (Brown, Burke).4
11. When a Student enters McKinley Voc or Tech High School (s)he is given a forty-four page behavior support manual that sets out the Level system and includes rules, expectations and targeted, therapeutic and controlled disciplinary and physical interventions and consequences for the following behaviors: appropriate appearance and clothing, attendance, damage to and/or stealing of property, dangerous acting out behavior, carrying of dangerous objects, detention, disruption, the use of drugs and alcohol, extortion, false alarms, vulgar language, insults and gossip, leaving supervision, appropriate locker use, physical assault and fighting, planning center behavior, radio, beeper and cell phone usage, refusal to do assigned work or follow directions, shop safety, racial, sexual or other slurs and harassment, smoking, snowballs, tardiness and early arrivals, telephone use, verbal and physical threats and trespassing. A student who violates a rule is usually redirected and then given a warning if redirection is not successful. If a warning does not stop the behavior, the student may be given a time-out in the room. A student may in the alternative be sent to a five to ten minute time out period in a planning center space where a guidance counselor is available to help the student regroup and problem solve as to why the discipline has occurred. The student is then sent back to class, or if not ready, can remain in the Planning Center. Serious behavior infractions, (i.e., disruption, physical assault, drug use) may result in time in the Alternative Planning Center or suspension or expulsion with a hearing with a school Hearing Officer, or possible arrest, Court action and/or Parent/Staff conference ( see J44, Burke, Brown).
12. Academic courses at McKinley correspond with the Massachusetts Curriculum Frameworks and include English, Math, Science, Social Studies, Spanish, Art and electives (J33, Brown). Originally the “Voc” offered training in Automotive Services, Building Trades, Graphic Arts, and “Food Service”; (J43, Brown); however, due to the new requirements mandated through Massachusetts Education Reform, the “Voc” now only offers the “Food Service” and “Building Trades” programs. Tech Students have a choice of a Business program (Office skills), Electronics or a College Preparatory/Academic program (J43). Auto Maintenance/Mechanics is no longer offered at McKinley (Brown, Burke).
13. The majority of students at the McKinley Voc and the Tech are below grade level due to behavioral issues. Most also have literacy issues and many have learning disabilities, some with language-based learning disabilities (Brown, Burke). McKinley’s program description does indicate that it services students with learning disabilities (J43). No further written information is provided; see Id. McKinley teachers receive inservice training in Writers and Reader’s Workshops and the Links program; Id. . A literacy plan is developed for each student with more emphasis on guided reading and literacy across all subject areas (Brown, see J40). This guided reading program emphasizes prereading, review of the previous lesson, a break down of vocabulary, recognition of new vocabulary, and a writing activity associated with the reading. This guided reading is instituted in all subject areas (Burke). Beginning in the 01-02 SY, McKinley students will be receiving ninety minutes of language arts instruction, up from the current sixty minutes and recent forty-four minute requirement (Burke, see J39 IEP of 3/2000-3/2001). The McKinley programs also have access to Rhonda Goodale. Ms. Goodale instituted the SRA reading program at McKinley, provides 1:1 instruction to students and provides feedback and instruction to the teachers (Burke). In addition, both the Tech and the Voc have an LD specialist (Burke). The Tech has two LD specialists who service the McKinley Elementary, Middle and Tech High School programs who are trained in Wilson and Project Read and who can do pull-out instruction for reading and math if indicated to be necessary on a student’s IEP (Burke). A teacher can also access the LD specialist to do an observation of a student if (s)he suspected a learning disability. Speech Pathologists at McKinley also do pull-out instruction and work on decoding issues as well as speech deficits (i.e., articulation, voice, fluency) (Burke). At Tech, there are 1 ½ speech-language pathologists who provide direct service and evaluations for the McKinley Elementary, Middle and Tech programs (Burke). If a teacher makes a referral for an observation of a student, feedback and suggestions are provided to the classroom teacher (Burke).
14. When Mother was presented McKinley as a placement option she did not want to accept the IEP because she felt that McKinley had a bad reputation but ultimately accepted the IEP upon the advise of Lois Carra (Mother).
15. Student began attending McKinley on May 25, 1999 (J41, J27). He showed good skill with the computer and received a B- in that class; however, he frequently refused to do Algebra homework and assistance from staff and received an Incomplete. He flunked Social Studies because “he consistently missed this class while being taken home by the van driver every day”. He received no credit in Spanish due to lack of attendance (J27). He also refused to meet for therapy (J42). Student received a D in English. His teacher noted that Student was reading on a 2.9 grade level (J27). He showed mastery of basic sight words. When challenged with words that Student did not know Student did attempt to use strategies to decipher the word such as sounding out the word phonetically, putting in a word that makes sense and taking a guess (J27). He also received a “C” in Science because he did not consistently go to class the first semester or complete all of the work. The teacher however, believed Student was capable of “A” work in this class (J27).
16. Student remained at McKinley in 10 th grade (SY 99-00). During the 1 st marking term at McKinley (September-November 1999), Student received an F’s in Spanish and Science (J42). The Art teacher noted that when Student is in a cooperative mood he did well in class (J42). Teacher interventions occurred on September 7, 2000 for not following directions and wandering and for throwing an item (J34). During the 2 nd marking period (November 1999-January 2000) he received F’s in English and World History.
17. During this time Student was involved in a number of incidents. On November 22, 1999, Student started the school day in an alternative room because he had made continuing sexually inappropriate remarks to two staff members on November 19, 1999. Student refused to leave the classroom, was sent to the Guidance office and verbally assaulted the counselor. The state police arrived and attempted to punch the counselor and teacher and was restrained. Student was taken to a cruiser and searched upon entry where a bag of marijuana was removed from his person (J29).
18. On December 5, 2000 Student disrupted a school assembly and incited students to create an unsafe environment. He was given a hearing and suspended for a day (J34). On January 3, 2001 Student was suspended after a Hearing for two days for bringing a 4-inch folding knife to school (J35). On January 14, 2000, Student was sited for making sexually harassing gestures and touching a female student’s leg (J30).
19. On January 14, 2000 Boston filed an incident report against Student, after a female student reported that Student had touched her leg and had made sexually suggestive comments and gestures towards her (J30). Student was in the alternative classroom at the time (J30).
20. On that day Student had also taken a writing assessment. He was tested on the second grade level and had an overall score of 1 st grade 2 nd month in writing with the most difficulty in grammar, punctuation, generating an introduction and conclusion and demonstrating critical thinking skills (J22).
21. On March 8, 2000 Student was suspended for one day for coming into school with a three inch folding knife (J31).
22. Boston reevaluated Student in March 2000. Student’s speech/language therapist noted that Student has shown only slight progress in his auditory recall and processing skills and phonemic awareness due to his absence from school and a time spent circumventing or failing to complete tasks (J19). Student’s guidance advisor Ms. Pope, noted that Student was doing better behaviorally and academically but at times would try to get out from completing assignments and could display a low frustration level when adults pointed out Student’s negative behavior. Ms. Pope also noted that when Student was unable to problem solve he would become belligerent, verbally abusive and threatening towards staff. She noted however, that Student did respond well to built-in reward systems and verbal praise. Ms. Pope recommended continuation in a small classroom with clear limits, built-in reward systems, frequent check-ins with guidance, coaching and continuation of individual therapy with Wediko Children’s Services (Wediko) (J26). Student however, refused to regularly attend therapy and showed no progress in achieving his social-emotional goals and objectives (J26, J28, Mother, Pope. When Student did attend, he did not discuss any information regarding problems at home or at school in part because he was not ready to open up (Pope) and in part because he did not feel that the Wediko counselors would keep what he told them confidential (Mother).
23. The TEAM reconvened on March 23, 2000 for an annual review of Student’s IEP (J39). The IEP specifies speech/language services and counseling for one period per week, study skills for three periods of week and daily academics and vocational skills at McKinley Voc. No consultation is listed ( see J39). There are no goals and objectives for improving auditory processing and recall skills or phonemic awareness; Id. The IEP was accepted (Pope). The Student instructional profile noted that Student was expected to independently read the book “Night” in English class and to respond to questions about what he had read. Student would bring the book to class and would copy information written on the board but did not do much reading and would not write an open-ended question about the book. In math Student had difficulty remaining focused for long periods of time and difficulty completing his work. There were no modifications or accommodations included in the IEP other than frequent breaks during standardized testing; see (J39).
24. During the third quarter (January 31, 2000-April 14, 2000) Student received F’s in Enrichment, Language Arts, World History and General Shop, D-‘s in Algebra I, and D’s in Spanish, P.E. and Science (J42).
25. Student received another incident report on April 28, 2000 for verbally assaulting and pushing a paraprofessional in the hallway (J32). He was again suspended for one day for smoking marijuana on school grounds (J37). His finished the 99-00 SY with six F’s, 1 D- and three D’s5 (J42).
26. During the summer of 2000, Student’s father died (Mother).
27. Student continued at McKinley as a 10 th grader in September 2000. After homeroom Student began the day with Advanced Algebra I with Mr. Giannos. Algebra I is a 65-minute class that uses a variety of resource materials and manipulatives and a secondary mathematics text (J14 p. 138, see also J45). A 65-minute block of English/Language Arts or Spanish followed Math. Mr. Kelley provides the Language Arts and Social Studies instruction. Mr. Kelley is certified in elementary education and is certified in special education for grades 5-12. Mr. Kelley began working at McKinley Voc in 1988 as a teacher’s assistant. He received his Master’s Degree in 1997 and has been a teacher at McKinley Voc since that time. Mr. Kelly received training in all three strands of Project Read at the Carroll School and in his Masters’ program and is partially certified in this methodology. He also has been trained in using the LINKS program and Story Form. Mr. Kelley’s syllabus indicates that he uses the Wilson reading program; however he has not been trained in Wilson and does not use this on a consistent basis (Kelley). Student’s Language Arts and Social Studies class usually has three to four students and is staffed by Mr. Kelley and an assistant. Two of the students are at the 6 th -7 th grade reading level. One or two students are at or below Student’s reading level (Kelley). During class Mr. Kelley goes over difficult vocabulary using Project Read activities to decode words, break down plot and talk about character development in the stories. The writing assignments are taken from the stories using Project Read assignments or Links and related to current events. Student however, often refuses to engage in Project Read activities calling it “baby work” (J1). Mr. Kelley also breaks down lessons into small manageable portions, uses graphic organizers and writing templates to aid in processing. He uses writing and verbal prompts and peer mentoring and the McKinley level system of incentives and privileges to encourage participation but does not force a Student to read or write. The books are taken from Boston’s required reading list. Some of the books are put on tape at a 3 rd -5 th grade reading level, some (i.e., MacBeth) use an easier text (Pacemaker version); however, others (e.g. Arabian Knights) are at a higher reading level than Student (Kelley).
After Language Arts or Spanish Student receives Instrumental Enrichment (IE) for a half-hour period. IE is comprised of six instruments that develop organizational and interpersonal skills consisting of lecture and activities. This class can range from twelve to twenty-four students with four staff who move between groups (Kelley, J45). IE is usually followed by a half period of Art or Shop and lunch followed by two 65-minute academic periods of English Science or Social Studies in the afternoon6 (J45).
28. Student often leaves school after lunchtime without permission (Kelley, Pope). He would rarely attend Spanish (Kelley, J1Nor did he usually attend speech-language therapy and the 44-minute weekly speech and language services accepted in the IEP were not part of Student’s schedule; compare J41, J45, see also J1, J11).
29. On October 18, 2000, Student was reevaluated by CCSN evaluators Lori Goldberg, CCC-SLP, Ann Levine, Psy.D. and Cathy Mason, M.Ed. (J2). Boston did not receive the report until March 9, 2001 (J2). The evaluators received updated information from Mother who reported that Student has had several arrests stemming from incidents at school and that he often wandered around town without letting his mother know where he was (J2, Mason). Mother told the evaluators that she did not think that Student was making progress academically or that the school handled his behavioral difficulties well at school; therefore, his behavior was not improving; see (J2).
The evaluators did not review Student’s school records or talk to McKinley staff (Mason). If the evaluators had checked with McKinley they would have found out that Student had one arrest resulting from behavior at school and one arrest resulting occurring outside of school (Pope). Work samples generated prior to this evaluation would have showed Student’s refusal to complete some math work (J24 p. 272, 275). Student’s math work samples would have also showed his inability to complete math assignments due to his removal from the classroom due to verbal threats and physical confrontation with another student in the classroom (J24 p. 278). Other work samples would have shown Student’s attempt to begin work and ability to complete problems with concrete instructions and graphic organizers (e.g., (J24 p. 264, 266, 267, 283)(math), (J24 p. 459, 460, 463, 464-468) (social studies), (J24 p. 469, 473, 475, 477, 479, 481) (language arts)7 . Student’s work samples would have also showed Student’s inability to complete word problems that used complex language or required higher level inferential abilities or required memory skills (i.e., explain the order of operations rules) (J24 p. 260, see also J24 p. 265, 275).
School reports generated prior to the evaluation revealed that in September, Student was given two nonvoluntary planning times for disrupting class and defying authority in Mr. Kelley’s class (J15). Mr. Kelly noted that “[Student] needs to understand his level of disruption”; Id . During that month Student was also given a non-voluntary planning time for horseplay; Id. During October, 2000, Student received one nonvoluntary five-minute planning times in Language Arts and three nonvoluntary five-minute planning times in Spanish for disrupting the class and/or refusing to do work; Id.
30. During the October 18, 2000 testing the evaluators used the same assessments as the previous evaluation done in 1998, however different forms of the same test were used to eliminate possible “practice effect”; compare (J2, J4, J5, Mason). Although Student was cooperative during testing, his academic skills showed little or no change or fell since the last evaluation two years ago. Single word recognition and decoding skills remained at the third grade level; (J2, compare J2, J4). His writing contained little organization (J2, compare J2, J4, J5). Student’s math scores moved from the mid 3 rd to the lower 4 th grade level; however, his quantitative reasoning skills fell from the slow learner level to the mentally deficient level; compare J2, J5. His vocabulary scores fell from low-average score to below-average and he continued to display word retrieval problems and his expressive language was not age-appropriate in complexity or length. He also displayed deficits in language processing and recall and more abstract language skills. He showed deficits in pragmatic language and organizational difficulties scoring in the 2 nd percentile on a nonliteral language subtest and a .1 percentile in pragmatic judgment (J2). When language demands were reduced or modified Student was able to demonstrate some age appropriate skills (J2). Speech-language recommendations included slowing down the rate of speech, getting Student’s attention prior to giving instructions, decreasing the length and complexity of directions, repetition, rephrasing and monitoring of verbal comprehension of material, pairing of visual and verbal information and preteaching strategies where appropriate (J2). Ms. Goldberg also recommended several strategies for comprehension, language formulation and critical thinking skills and pragmatics (J2).
31. After testing the CCSN evaluators continued to recommend that Student be placed in a highly structured environment combining intensive, language-based instruction, vocational training and behavioral/therapeutic interventions with students with similar cognitive and emotional needs; compare (J2, J4, J5). The language-based instruction should include presentation of class instruction in a highly structured, organized manner that incorporates oral and visual methods (i.e., written outlines, graphic organizers, charts and schedules), provides direct remediation of skills through use of a systematic rule-based reading and language arts program such as Orton-Gillingham, Project Read and Landmark Writing, and incorporates prompting, verbal mnemonics, repetition and review strategies and speech/language therapy and consultation (J2). The evaluators also continued to recommend training in keyboarding and organizational skills; Id. . handwriting instruction remediation of skilly also recommended speech/language consultation.
32. On October 25, 2000, Mr. Kelley tested Student’s Reading and Math skills with the WIAT (J17). He scored at or less than the 1 st percentile in basic reading, math reasoning and numerical operations with grade equivalents of 3.2 in basic reading, 4.3 in math reasoning, 4.8 in numerical operations and 5.6 (13 th percentile) in reading comprehension (J17, Kelley). However, the other Language Arts teacher recorded the October WIAT scores as having Grade equivalents of 5.2 (Basic reading), 4.9 (Reading Comprehension, 3.6 (Numerical Operations) and 4.0 (Math reasoning) for the same time period; compare (J17, J18). Mr. Kelley does not know which scores are the correct ones (Kelley).
33. McKinley staff began generating weekly progress reports the week beginning the week of Student’s updated evaluation at NEMC (October 16-20, 2000). These weekly progress reports were done to track Student’s progress and to keep Mother informed (Pope). After consultation with the TEAM the staff concluded that Student had made some significant progress in terms of staying on task and utilizing behavior supports. The same report however notes that Student continued to present oppositional behavior toward most of his academic studies, still had issues dealing with the Spanish and Science teacher and still needed to complete his homework. During that week Student attended school five out of five days but was tardy for one day, received three planning times for not participating and stomping on the floor in Spanish class and leaving supervision. He was also AWOL (absent without leave) during three of the five days that week (J13, J15). His attitude and motivation were fair and he completed less than 50% of his homework (J13). A weekly progress report was not generated during the following week (October 23-27, 2000); see (J13). During the following week (October 30-November 3, 2000) McKinley staff noted that Student’s attitude and behavior were improved and indicated that Student had made continued progress in improving his ability to stay on task, utilize behavior supports and complete some classroom assignments. The report however, also indicates that Student was suspended for one day, was AWOL three of the four remaining days, received two planning times and still needed to complete homework (J13). The first quarter marking period ended the following week Student received F’s in all subjects including P.E. and Art (J42 p. 631). He was absent for eleven days during that marking period and tardy ten times (J42 p. 631). During that week Student was given two planning periods; compare (J13, J15).
34. Student began the second term being tardy with two of the four days he was at school. He also had four planning times, twice for disrupting class and leaving supervision and for not participating in shop and refusing to return to class; compare (J13, J15). He was also AWOL for three of the four days at school and homework was still not completed (J13). McKinley’s progress report during the week of November 13, 2000, McKinley staff noted that Student had a good attitude and fair motivation (J13). During the following week Student missed one day of school, was late once, was AWOL two of the four days he attended, and received two planning periods for being disrespectful to staff, not participating in class and refusing to do work and leaving supervision in Science; compare (J13, J15). In the progress report covering the week of December 4 th , McKinley staff noted that Student was rated as having a “good” attitude and fair motivation. The McKinley team noted that Student “continues to show a better attitude toward classroom tasks and had improved a bit in his ability to follow teacher instruction and focus on his work”. However, on December 5, 2000, Student received a day of suspension for disrupting a school assembly and inciting other students and creating an unsafe environment (J34). He also received three planning times for not following directions in Science, refusing to do work in Spanish and math and sleeping in Spanish class. His behavior in science warranted a hearing. He was absent from school one day, was AWOL, two out of the four days there and received five planning times during the following week for disruption, nonparticipation and refusal to do work in three different classes; compare J13, J15. During the following week (December 18-22, 2000) Student was able to complete half of his homework assignments and received one unexcused absence that week. He was AWOL three of the four days there. He received three planning times and one additional time in the alternative classroom (J15).
35. On January 3, 2001 Student was suspended for two days for bringing a 4-inch folding knife to school and an incident report was filed (J35). Of the three days Student was in school he spent one time in the alternative classroom. He completed 50% of his assigned work The progress report during that week rates Students attitude as good. (J13).
34. In January 2001, McKinley staff assessed Student’s progress in reading, writing, math and vocational skills. On the STAR reading assessment (a test used to assess vocabulary development) student scored at a 4.4 Grade Equivalent, an increase from the 3.8 grade equivalent received in September 2000 (Kelley, J16, J18 p. 210). Mr. Kelley noted that Student’s learning disabilities and excessive truancy Student prevented Student from progressing as expected (J18 p. 210). Mr. Kelley also noted that Student had difficulty focusing on tasks, particularly challenging tasks and that Student usually needed extra support in completing his assignments. He also noted that Student seemed to work best one on one and when tasks were broken down for him into small manageable tasks especially when the assignment was challenging for him; Id. Although Student is usually oppostional in class he does work when given 1:1 assistance by a teacher or an aide. Due to the small class size Mr. Kelly or the aide did have the opportunity to work with Student individually. The aide however is not there on a consistent basis (Kelley, J1).
Mr. Kelley used the McKinley Writing Assessment to test writing (J22, Kelley). Student was tested using second grade prompts. Student achieved an overall Grade equivalent of 1.2 with partial mastery on developing a main idea and citing references and less than partial mastery in his use of proper grammar, ability to develop a clear beginning and ending to his story and critical thinking skills (J22).
In Math, Student was at the instructional level in most skills, with independent skills in basic addition, subtraction, multiplication and division, rounding and estimation, positive and negative numbers and shape recognition (J18 p. 211-212). He was unable to perform more than half of the woodworking tasks needed assistance with half of the tasks required (J18 p. 213).
The second marking period ended on January 26, 2001 (J42 p. 631). He received all F’s; Id.
35. During February 2001, Student had three disciplinary incidents. On February 12, 2001 Student was in the planning center for failing to participate and refusing to do work; while there he engaged in an open discussion about buying and selling weed. An investigatory hearing was held (J15 p. 158). On February 13, 2001, Student was suspended for one day for bringing a 2 ½-3-inch folding knife to school for the third time (J36). On February 15, 2001 Student received another planning time for swearing in class, disruption, disrespect of staff , refusal to do work and not participating in class (J15 p. 159). The McKinley team noted that Student’s interest in his work had declined the following week (J13 p. 115).
36. On March 9, 2001 Boston received the reports from the October 2000 evaluation from CCSN (J2). Boston received a hearing request from Student’s Counsel on March 14 or 15, 2001; see Hearing Request.
37. The third marking period ended in April 2001. Student passed P.E. and Enrichment, earned a B in General Shop, a B+ in Art and C’s in English/Language Arts and World History II and Algebra I. He received an incomplete in Spanish and failed Physics (J42 p. 631). During that term Student received the suspension for the February 13 th , 2001 knife incident, was absent from at least three times and was AWOL at least seven times. He also received at least four planning times for infractions such as disrespecting staff, refusal to do work, attempting fights and destruction of property. Progress reports noted some improvement in efforts to complete assigned work ( see J13, J15)8 .
38. During second semester, Student won first or second place in a writing contest for a story entitled “Angel on a Bike” (Kelley, J25). Mother did not know that he had entered a writing contest (Mother). The story is reproduced verbatim below:
“ Angel On A Bike”
“Once or twice in your lifetime if you are lucky you may meet someone who carries so much beauty in their soul that they change your life forever. It may be someone that you only know for a brief moment. Yet in that moment they will leave a miracle behind, that is the sense of gratitude for everything in your life.
At the time you may not even realize the gifts they are giving so freely. Only when they’re gone do you finally see your heart truly opened. Only then do you know deepely you were touched by grace. My dad was one of those miracles. He touched us with his
grace in every word.
My dad had so much beauty in his soul that in the course of his short life he changed forever, the lives of everyone whose path crossed his. I believe that if angels rode motorcycles, then my dad would be leading the pack revving up his Harley. If angels could fish, my dad would be the one casting out his fishing line as far as it will go. As I write this, tears come to my
eyes.
By [Student]
© [Student] 2001”
39. Student wrote this essay by hand and was given 1:1 assistance for grammar and punctuation from a Ph.D. volunteer (Kelley). Student and Mr. Kelley then typed the essay on the computer.
41. Between May 3-June 8, 2001 McKinley conducted a Functional Behavioral Assessment (FBA) (J12).9 The target behaviors were identified as:
· defiance/contempt of school rules (i.e., bringing in a beeper, wandering in hallways, smoking pot on school grounds, threatening to harm a teacher’s car),
· disrespect of staff (school security aide, police officers, teachers, guidance advisors and assistant program directors),
· disrupting class with inappropriate conversations (sexualized comments, swearing, street life and gang activity, provoking peers),
· avoiding attempts to do classroom assignments (J12, see also J20, J37, J15).
The staff noted that these behaviors often occurred during difficult academic, social or transition times and that despite redirection and consequences occurred and continued most frequently when Student was asked to follow directions and make an effort to learn. Student’s negative behaviors were triggered by lack of attention and/or motivation, difficult tasks, environmental conditions (i.e., number of students in class), group instruction, seat work, or less structured social situations (J12). In the classroom Student would often tell staff that he could not do the work and would either not attempt it or refuse to continue an assignment. When teachers offered to help, Student often ignored the offer or refused it becoming loud, belligerent, disrespectful or disruptive. He would also often admit to breaking a school rule and telling staff that he did not care if given consequences. Student would then be given a time-out as well as a hearing with the Assistant Principal or would go AWOL to avoid the situation (J12, Kelley, Pope).
43. Previous strategies and interventions were then identified and separated into an academic component, and a counseling component (J12).
Academic strategies listed were:
· gaining student’s attention prior to giving instructions,
· decreasing the complexity of instructions, length of delivery, and offering concept, ideas and operations in a concrete way;
· repeating and rephrasing information and providing concrete presentations through a multisensory approach prior to asking Student to complete an independent task;
· explaining presentations verbally and in writing; presentation of ideas and concepts in a clear, concrete manner;
· monitoring of and support of comprehension of abstract material by offering generalizations and links to examples that are interesting to Student;
· consistently returning to basic concepts and models that offer opportunity for Student to synthesize an understanding of information provided
· regular consultation from the speech/language therapist to the classroom teachers (J12).
Counseling strategies listed were:
· continued use of the McKinley behavioral support system
· consistent support from guidance counselors
· daily check-ins with guidance and as-needed contact with Mother through phone calls
· daily use of personal contracts with appropriate incentives
McKinley staff noted that Student frequently refused to participate, cooperate and accept academic help offered in conjunction with the academic strategies. Student also refused Wediko counseling and as a result had not made significant progress towards his academic and/or social/emotional goals (J12).
44. Upon completion of the FBA, McKinley developed a Behavioral Intervention Plan (BIP) (J12, Pope). McKinley felt that since February 2001, Student was making slow but steady progress. This progress included coming into Ms. Pope’s office and voicing his issues, staying in school for an extra class before going AWOL, reducing his swearing at the teachers and verbally and physically attacking both teachers and peers and building of peer relationships in class and at lunch (Pope, Kelley, J9, J10, but see J15). Although he is not ready to talk about his father’s death he is starting to do so in his writing and does share feelings in less structured situations, an improvement for Student (Pope). As such, the BIP called for continued intervention using the McKinley Behavioral Management Program and the academic and support strategies developed by the TEAM; Id . The targeted goals for Student were to improve his academic performance by one-half grade across the curriculum, for Student to receive no more than three planning times per day. McKinley would continue to offer home visits and weekly individual and family therapy through Wediko, as well as ongoing monitoring via a brief daily check-in and weekly in-depth evaluation (J12). The BIP was to be reviewed on July 16-17, 2001 the two hearing days scheduled in this matter; Id .
45. On June 4, 2001, Cathy Mason observed Student’s classroom at McKinley Voc. She did not observe the McKinley Tech program nor did she look at the IEP’s of the other students in his classes or his school records from that year (Mason, Kelley, Pope, J1).10 Ms. Mason observed Instrumental Enrichment, Math and Language Arts. She concluded that the Instrumental Enrichment class was at Student’s skill level (Mason).
46. In Math however, Ms. Mason observed that although Student had timely bus transportation, he did not arrive until 8:15 a.m. to a class that began at 7:25 a.m. and ran until 8:30 a.m (J1, Mason). Student’s math class had a total of four students who were assisted by Mr. Giannos and an aide. Upom Student’s arrival, Mr.Giannos briefly reviewed the morning’s lesson. An overview of the lesson was on a whiteboard and printed on the first page of a six-page handout. The handout contained the following information:
· Math words and meanings: Data, Category, Measurement
· How to Organize date:
1. Stem and Leaf Plot
2. Histogram
3. Dot Plot
4. Mean, Median, Mode
· Algebra: Variables, Constants
1. Practice Questions
2. Questions/Answers
The remaining six pages of the handout included written information on the types of data organization systems. The language was complex and contained complicated concepts such as the following:
“ A stem-and-leaf plot is a table of numbers separated by a vertical line. Each number on the left side (a stem) represents a tens group; the numbers to the right of it (leaves) are the last digits of the data values in that tens group. There is a leaf for each data item, even its value repeats an earlier one. For instance, look at the third line of the table: 7/65939 stands for 76, 75, 79, 73, 79. In this way, the frequency of the tens group can be seen just by counting the leafs (sic) on each stem”.
“ The Central Connecticut Electric Company charges a basic fee of $8.50 a month, and in addition, $.09 for each kilowatt hour that is used during the month. If u represents the number of kilowatts used in a month, then the total charge, T can be determined by using the formula: T=$8.50 + 0.09 x u.
Identify the variables and constants in the algebraic sentence T = $8.50 + 0.09 x u and explain why each of them is a variable or a constant.”
Mr. Giannos conducted a class discussion about what the meaning of the word “category” giving examples of how one might categorize (i.e., gold (by weight), diamonds (by cut). This was followed by a discussion of data collection formats (dot plots, stem and leaf plots) Mr. Giannos prompted the class to write information down and asked them if they understood. Student indicated that he did understand but did not participate in the discussion. (J1).
47. Ms. Mason then observed Student’s English class, consisting of three students, Mr. Kelley, Mr. Giannos and a teacher’s aide. The room was organized and liberally decorated with specific information about Project Read on its walls. In the room was also a bookshelf with trade books and novels at the middle and high school level (J1). Mr. Kelley began the class by handing out five short answer questions and one open-ended comprehension questions on the “Arabian Nights”. The open- ended question was:
“ There are several themes or morals presented in Arabian Knights that continue to have relevance in today’s society. Select one of these issues and describe the situation, then compare it to a similar situation involving an important figure in our era”.
Mr. Kelley attempted to engage Student in a discussion relating “Arabian Knights” to modern current events but Student refused to try. At that point, Student was given a syllabication paper instead, which Student did work on successfully when working 1:1 with Mr. Kelley (J1, Kelley).
The group then each took turns reading the text which was at a middle school readability level and complicated by “Old English” (J1, Mason). Mr. Kelley attempted to engage Student with prompting and questions and explanations of the meaning of words such as “avaricious, envious”. Student did not follow along in the text while others read and refused to read aloud (J1). The math and language comprehension lessons did not incorporate any of the Project Read comprehension or phonology strategies (J1, Mason). The book and language in the handout contained abstract vocabulary and comprehension tasks that were too at a middle school level and as such was inappropriate for Student due to his borderline cognitive level, severe dsylexia and 3 rd to 4 th grade reading level (Mason, J1). When Student refused to do the task, he was rewarded with a different task. Similarly, even if Student could do the place value and division problems presented in the math problems, the language was too abstract for him to be able to know that he could do the problem. Student has limited problem-solving skills and years of practice developing a rigid and noncompliant approach to difficult situations and had been at the McKinley School for 1 ½ years. As such, Ms. Mason felt that Student was inappropriate for Student and that he would be too alienated to be convinced to participate appropriately even if major changes were made in the curricular content and the behavioral programming to more closely match his needs (Mason, J1).
48. The TEAM reconvened on June 27, 2001 to review the FBA, current teacher assessments, grades, and progress reports from the 00-01 SY (J38, Pope, Kelley). It did not review the CCSN October evaluation received on March 9, 2001 but did discuss Ms. Mason’s observation or compare previous testing at that TEAM meeting (Pope, see J39).
The information reviewed showed ending grades of D+’s in all subjects but cooking (J14). End of year testing showed that Student had improved from an emerging level to an instructional level in his vocational skills ( compare J124, J18). In language arts Student achieved a 4.6 Grade Equivalent in vocabulary testing on the Star Reading compared with a 4.4 grade equivalent in January 2001 and a 3.8 grade equivalent in September 2000 (J14, Kelley). Mr. Kelley’s year-end evaluation noted that when Student was attentive and performing assignments he could read and comprehend at the 4 th to 5 th grade level in language arts. He noted however, that it was difficult to accurately gauge Student’s functional level of performance due to his oppositional behavior towards completing assignments but that Student would attempt some challenging material when given individualized support and was proud of his accomplishments (J9, Kelley).
A comparison of Boston’s math testing showed that Student had declined in math skills. WIAT scores done in October 2000, showed Student’s math skills to be on a mid to upper 4 th grade level (J14). He remained at the fourth grade level at the end of the year (J9, Kelley). Math assessment on the McKinley math inventory done in January 2001 showed that Student had skills at an instructional level; however, in June 2001 four geometry skills, one probability skill, word problems skills and graphing dropped to an emerging level; ( compare J14, J18).
Similarly, Student’s adaptive behavior scores showed that in one year Student’s organizational and problem-solving skills had dropped from an instructional level to an emerging level; ( compare J14, J18). As compared to the previous year, however, Student was more apt to stand up for himself, was less likely to withdraw from others and showed improvement in his friendly peer interactions. He was less apt to act impulsively and used temper tantrums instead of hitting, pushing and fighting to resolve conflict. He also took more credit for his successes and got frustrated less easily; ( compare J14, J18, see also Pope, Kelley). Score comparisons of this same inventory however, showed that Student was apt to cry, whine and throw temper tantrums, more apt to get angry easily, had less of an attention span and was more likely to say that he does not trust people and can’t do things; Id.
49. The TEAM concluded that Student required a highly structured, multisensory program with a low student-teacher ratio that combines a behavioral management system with clear expectations and limits. Student would also need a literacy program that focuses on basic decoding and comprehension skills and breaks down reading and writing instruction into manageable chunks with teacher directed instruction that required explanations and summaries to ensure understanding of concepts and speech/language therapy and consultation to ensure carryover. The TEAM also recommended that the program incorporates instructional modifications such as Project Read, LINKS, oral instructions, tape recorder and books on tape, computer assisted writing and math manipulatives (J8, J9, J11, Kelley).
50. The IEP developed for June 2001-March 2002 designated that Student required behavioral support, opportunities for one-to-one instruction, language-based instruction throughout the day, guided reading to enhance learning and comprehension, journaling to prompt student writing, speech/language therapy to address the language disorder, and opportunities to access vocational services (J38). The TEAM also offered a twenty day extended year program and continued to offer individual psychotherapy with Wediko even though Student would not access these services (J38, Pope). The IEP also listed the following accommodations: cueing Student back on task, simplifying directions, frequent feedback, behavior support system, tape recorder, read written text, extra time to complete responses, provide examples, verbal prompts, practice and repetition, breakdown tasks, low staff-student ratios. There is no consultation services listed in the service delivery grid and the modifications suggested by the speech/language pathologist were not included in the IEP; ( see J39).
52. The McKinley members of the TEAM recommended that these services be provided at the McKinley Technical School (McKinley Tech). This recommendation was made to address the Parent’s concern that Student had become alienated at McKinley Voc but keep the same services Student had been receiving at McKinely Voc where staff members felt that Student was making slow but steady gains. The “Tech”, like the “Voc” has the Behavioral Management System, Instrumental Enrichment, the Wediko Counseling component and the academic requirement for daily thirty-minutes per day of vocabulary building, thirty minutes of guided reading and thirty minutes of writers workshop (Burke). “Tech” has like” Voc” a literacy specialist who assists administrators and teachers in achieving greater literacy for all students. It also has like “Voc” a Learning Disabilities (LD) specialist who pulls students out of the classroom to work on their goals and objectives (Burke). Student does not have the services of the LD specialist on his IEP; ( see J39). The Assistant Program Director Charles Burke feels that Tech can service this Student. He has a child who has learning disabilites who is attending the Learning Prep School. The Learning Prep School as well as other schools geared towards students with learning disabilities would not take or keep a student with behavioral issues as severe as Students and he can not think of a program that would effectively deal with Student’s language-based learning disabilities and behavioral disabilites (Burke).
53. A hearing occurred on July 16, 17, and 23, 2001. Parents concluded their case in chief on July 16, 2001. They presented no testimony from either Ms. Mason or Mother regarding the McKinley Technical Vocational School. Boston moved to for a directed verdict in its favor. The motion was denied (Record July 16, 17, 2001) ( see Ruling);
FINDINGS AND CONCLUSIONS
There is no dispute that the Student is a student with special learning needs as defined by M.G.L. 71B and 20 U.S.C. 1401 et seq. , and is thus entitled to receive a free, appropriate public education that assures his maximum possible development within the least restrictive environment. There is also no dispute regarding the nature of his special needs. This Student has ADHD that results in difficulty attending, increased distractibility and impulsivity. He also has borderline cognitive functioning, a conduct disorder and a severe language-based learning disability. Both Boston’s and CCSN’s testing show that Student has third grade level decoding skills (J17, Kelley, J2, Mason). According to Boston’s testing Student’s reading comprehension scores ranging from a 4 th grade ninth month level to a 5 th grade 6 th month level. Both Parties agree that Student’s expressive and receptive language skills are on a 4 th grade level and his math skills are at a beginning 5 th grade level (Kelley, Mason). Student has deficits in language processing and recall and in abstract language as well as poor pragmatic language skills and organizational difficulties; Id.
Because of these significant language, cognitive and behavioral issues, Student requires a highly structured therapeutic environment that integrates consistent language-based instruction and behavioral expectations throughout the day. The behavioral portion of the program should teach Student how to make appropriate behavioral choices and recognize the consequences of his actions and should offer on-site crisis counseling and group counseling. Student also requires direct teaching of social skills (pragmatics). Organizational skills should be improved with standard procedures such as color-coding, assignment books, notebooks and breakdown of assignments into manageable portions. Keyboarding instruction may also be helpfu (Mason, J4). To be appropriately language-based, the program must have highly structured, organized and consistent class instruction incorporating oral and visual cues ( e.g ., written outlines, graphic organizers, charts and schedules) and processing/recall strategies (such as prompting, verbal mnemonics, repetition and review). In addition, the program should provide direct skill remediation with systematic rule-based reading and language arts program(s) such as Orton-Gillingham or Project Read and Landmark Writing. Student requires direct speech/language therapy to teach and practice processing strategies as well as consultation for in-class skill reinforcement and assistance with Student’s processing of academics and behavioral expectations presented in class; ( see J2).
Boston does not dispute CCSN’s findings or recommendations but maintains that McKinley can meet Student’s needs. Parent and Student maintain that McKinley has a bad reputation and can not meet any students needs including Student’s; however, Parent has offered no testimony or documents to support this assertion. On the contrary, the record evidence is persuasive that McKinley is a thoughtfully constructed behavior program that serves students with a broad range of behavioral and academic difficulties, family problems, court involvement and/or other socio-economic and environmental challenges. The administrators and teachers who testified at hearing presented as intelligent, hard-working professionals who clearly cared about the students they served and did so with dedication, persistence and good humor. The record reveals that McKinley daily deals with behavior (e.g., destruction of property, drugs, physical assault, extortion) that would neither be addressed or tolerated in many public or private school settings. The staff who testified acknowledged that many if not all of their students are behind in their literacy skills. McKinley has taken steps to actively address this problem through it’s literacy plan, inservice training, emphasis on guided reading, increased language-arts instruction, writers and readers workshops, SRA instruction and LINKS. These techniques will be helpful to all students.
This Student however, has severe dyslexia. The record demonstrates that Student processes the language he sees and hears differently than do students who do not have language-based learning difficulties, even if they do have weak literacy skills. There is uncontroverted record evidence that Student requires a language-based program that is consistently carried out throughout his day to enable him to organize, retrieve, recall, make sense and remember the information he hears or sees. The language presented to Student must be at or near his academic and cognitive level. Group work needs to be with peers at Student’s reading and academic level to enable Student to keep up with the instruction.
The record shows that at least two teachers (Kelly, Giannos) use some language enhancing techniques that are appropriate for Student, such as preview, review, spiraling, outlines and graphic organizers; however (Kelly, Giannos, J24). The evidence also reveals however that written instructional materials are above Student’s academic level. Specifically, Student’s math and science textbooks are written at the secondary level, as are some of the language arts and social studies materials (“Night”, “Arabian Knights”). Student reads and comprehends at, respectively the 4 th to mid fifth grade levels. Oral and written instruction contain abstract vocabulary, complex language and/or content requiring higher level inferential or memory skills; therefore they are inaccessible to Student (Mason, J24). Further, although one teacher (Mr. Kelley) has some Project read training and certification, this teacher testified that he does not use Project Read on a consistent basis (Kelley). Further, Parent’s expert did not observe Project Read comprehension and phonology strategies in the classroom or in written work. There is no evidence of Project Read carryover into other academic areas ( see e.g. J24, Mason). Finally, the students with whom Student is grouped with are more academically advanced than he, reading on a 6 th to 7 th grade level (Kelley).
The IEP (and the FBA) lists many academic and behavioral strategies; however, the IEP, contains no goals or objectives for improving improving auditory processing, recall skills or phonemic awareness, provides no speech/language consultation time and lists no modifications or accomodations in the classroom other than the use of frequent breaks during testing. Both McKinley Voc and Tech offer the services of a speech/language pathologist and an LD specialist; however, these services are pull-out services and consultation is dependent upon the teachers making a referral for help without having enough training to know if they need consultation services; ( see Kelley, Brown, Burke).
Boston contends that Ms. Mason’s observation was flawed because she did not review Student’s school records or progress reports, did she request lesson plans or a syllabus, used different math instruments in 1998 and 2000 so that the data results could not be compared. Boston also maintains (and Ms. Mason admits) that she did not record the results of subtests given on the WIAT and the Reading Comprehension subtest of the Woodcock Reading Mastery Test (J2, Mason). While it would have been helpful if Ms. Mason had obtained comparable comprehension scores, reviewed Student’s record and secured more information from the teachers, in this matter, this information if reviewed, corraborates Ms. Mason’s conclusions ( see J24).
The 1998 and 2000 testing shows that-with the exception of Student’s learning some long division-Student’s academic scores showed little or no change or fell during that period ( compare J2, J4). Boston’s own assessments11 also show that Student’s performance has declined, and his grades-even when issued subjectively-are barely passing ( compare J14, J18, J42). The only improvement reflected in Boston’s academic testing is in vocabulary. This improvement was documented by the STAR Reading test, an assessment unfamiliar to Ms. Mason, a seasoned examiner (Mason). On the other hand, CCSN’s testing in 1998 and in 2000 showed a decline in Student’s vocabulary ( compare J 5, J2, Stanford Binet- Vocabulary scores).
Boston also maintains that Ms. Mason’s observation should be given little weight because she observed the McKinley Voc program not Boston’s proposed program at McKinley Tech. It would have been helpful if Ms. Mason had observed the correct program to determine if prospective services were appropriate. If Ms. Mason had seen the “Tech” program, however, her conclusion would probably be unchanged, because the record reveals that except for minor differences, the two McKinley High Schools are essentially similar programs (Burke, Brown). Indeed, Boston offered McKinley Tech precisely because it would afford Student the same behavioral, literacy and counseling services as the current placement-that Boston deemed appropriate-while also giving Student a fresh start with new personnel, in the event that he feels alienated at McKinley Voc (Pope, Burke). Boston presented no evidence regarding language-based programming that was different at McKinley Tech nor did they relay any testimony regarding the qualifications of these teachers or the configuration of the peers in Student’s proposed classroom.
I find that Student’s placement at McKinley Voc did not provide Student with a FAPE. This conclusion is supported by Student’s lack of participation, refusal to do work and disruption in class, erratic attendance after mid-day, poor grades, minimal progress as measured by standardized testing and ms. Mason’s observation, as well as careful reading of McKinley’s own progress reports and the FBA. Because McKinley Tech is programatically similar, I also find that Student would not receive a FAPE there.
Boston maintains that even if the Hearing Officer finds that McKinley does not offer Student the language-based program he requires Student’s behavior would prevent him from being accepted into an out-of-district language-based program or staying in that program even if accepted. Student does have serious behavioral issues including bringing weapons and drugs to school, class disruption, disrespect of staff and peers, leaving school at mid-day and refusal to do work. The record shows that Student has made some slow progress in improving his behavior evidenced by voicing his concerns to Ms. Pope instead of using physical or verbal attacks. He is starting to build some peer relationships (Pope, Kelley). However, Student’s FBA shows that unless Student’s academic, language and organizational skills are addressed whatever behavioral progress Student can make will be limited. Student’s negative behavior occurs not only during transitions and difficult social situations but also during academic times especially when the task is difficult or during group instruction or when there are two many students in the class (J12). When Student is given the opportunity to work in a one-to one setting and appropriate modifications are given to him he was able to complete long sessions of testing at CCSN without behavioral issues (Mason, J4, J5). Student was also able to not only complete a writing assignment but won first or second place when given one-to-one assistance in a writing competition. Although testing does not indicate that Student was capable of producing the “Angel on A Bike” essay and Student’s Counsel asserts that Student did not do this work, Student’s and Mr. Kelley’s demeanor during Mr. Kelley’s cross-examination is persuasive that this work is Student’s.
Student would not testify because he did not want to be subject to cross-examination. The Hearing Officer would have preferred to hear from Student about what he wanted. Yet his demeanor in the hearing spoke volumes. During Mother’s and Ms. Mason’s testimony, Student often left the hearing room. He was observed however during frequent breaks napping on the couch in the hallway but did not leave the building despite ample opportunity to do so. When he did attend Student was not often playing with his beeper. He was however, able to respond to visual cues from McKinley staff and put it away for a brief period. Student did not attend during Ms. Mason’s testimony especially when the testimony concerned technical information such as test results. He did however attend to portions of Mother’s testimony, refuting that she did not know he won a writing contest. He stayed in the room during all of the McKinley testimony and was actively engaged in Mr. Kelley’s testimony. When an extra day needed to be scheduled Student actively participated in picking the next date refusing at least one date due to his unavailability. Mr. Burke maintains that private placements that have language-based programming would not accept Student with his behavioral issues. Mr. Kelley has testified that Student needs to take some responsibility for his behavior and accept the help offered. Student, through this hearing did show that he is interested in his education. He will have to build upon that interest by taking advantage of the services offered at a therapeutic language-based behavior program.
Boston may indeed have difficulty locating a therapeutic behavioral program that is language-based and offers a peer group at Student’s academic and reading level. Student however, is entitled to an individualized program that meets all of his special needs even if that program is difficult to locate. If the program can not be located, a program it must be created to meet Student’s individual needs. Both day and residential programs will be explored12 . In locating such a program Boston will explore any programs recommended by the Parent/Student through Counsel, Roxbury Defenders and DYS. Mr. Burke also has a relationship with the Learning Prep School. Boston will contact that school for any referrals it may have. In addition, Boston will send referrals to the following programs: Dearborn Academy (Arlington, MA), Farr Academy (Cambridge, MA), Gifford School (Weston, MA), Victor School (Acton, MA) and the Institute for Family and Life Learning (Danvers, MA). Boston may also explore any other program that in its professional judgment, appears likely to be able to address Student’s needs.
Unless this matter is otherwise resolved, the Hearing Officer will initiate a conference call with Counsel on September will occur on this matter on September 6, 2001 at 4:00 p.m. At that time the Parties will be prepared to discuss the status of the referrals and interim programming pending a decision from out-of-district placements.
ORDER
The Student’s request for Boston to locate or create a program consistent with CCSN’s recommendations is GRANTED. Boston will send referrals to out-of-district day and residential programs consistent with those recommendations. The Parties will be prepared to discuss the status of this matter on September 6, 2001 at 4:00 p.m. Further hearing dates will be set at that time.
By the Hearing Officer,
Joan D. Beron
Date: August 29, 2001
1
Parent/Student has not identified a specific program but request that the Hearing Officer make a determination regarding the appropriateness of Student’s IEPs. Parents moved to bifurcate the hearing. Boston assented to this request.
2
One School person suspected that Student had ADHD. Student had been diagnosed with ADHD but this was not documented by appropriate personnell (J3).
3
The McKinley Voc program is one of five of the McKinley school substantially separate programs operated by the Boston Public Schools (Brown, J43). The McKinley Schools began in September 1978 as a joint project of the Department of Occupational Education and Special Services to demonstrate approaches to meeting the needs of unserved and underserved adolescents with severe special needs. The target population now includes students between the ages of five and twenty-two who have failed in school and in the community as a result of combination of emotional problems, behavioral problems, and/or learning disabilities (J43). The McKinley Schools currently consist of the McKinley Elementary School. Two McKinley Middle Schools, the McKinley Vocational High School (McKinley Voc) and the McKinley Technical High School (McKinley Tech) (J43, Brown). There are also satellite transitional programs for students who are achieving their behavioral goals and objectives but are not ready to fully transition back to the public school. These programs are located at the Dever Elementary School, the King Middle School, the Hubert Humphrey Occupational Regional Center High School and the Madison Park Vocational School (Brown, J43).
4
Level One students need constant staff support and supervision and have no privileges. Level Two students also have not demonstrated adequate attendance, effort and self-control. Level Two students are expected to come to school and complete their work with supervision and work on improved peer interaction. Level Two students are eligible for field trips, Student Council and extracurricular sports. Level Three students must generally show good attendance, effort and peer interactions for a ten-day period. Level Three students have more individual responsibility and weekly and monthly incentives and may travel within the school with a pass without adult supervision. Level Four students exhibit a great deal of self-control and commitment to studies, a willingness to work on presenting problems and a desire to participate in pro-social behavior by developing a pro-social contract that concentrates on practice in independent decision-making, self-monitoring and correction with staff support. Level Four students will also set up individualized mainstream contracts with McKinley staff and parents. They can leave school grounds with a pass, may supervise Level One students and may use the bathroom key. Level Five students work on generalization and discrimination of skills in new settings. When at Level Five a specific date for mainstreaming to a less restrictive setting will be picked and reviewed with McKinley staff and parents (J43, Burke, Brown).
5
One course was taken Pass fail. That D is reflected as a Pass.
6
On Wednesday, Student had class meeting and PE in the afternoon and Science during the Shop/Art block. No testimony regarding Science or work samples were entered into evidence; however, the documents indicate that Science uses secondary level texts and requires a research project (J14 p. 139).
7
The evaluator may have seen more than these work samples. Not all of the school work was submitted into evidence, many were undated, math was copied twice and there were no Science and Spanish work samples (see J24).
8
Weekly progress reports have not been completed and end the week of April 2, 20001. Some progress reports are missing and planning slips show a gap between in March 2000. Student’s final grades were not submitted.
9
Student, through Counsel, filed a request for a hearing on March 14, 2001. By mutual agreement of the Parties, a prehearing conference was held on April 27, 2001. At that prehearing the Parties agreed that Boston would conduct or arrange for Student to have a vocational assessment and a Functional Behavioral Assessment (FBA) and develop a Behavioral Intervention Plan (BIP). Boston also agreed that Student could receive private counseling if Wediko was unacceptable to Student and that the Student would on its own explore outside private day facilities and have an independent evaluator observe programs no later than June 4, 2001; ( see HO status notice May 15, 2001, see also Pope). Student refused to attend any therapy (Mother, Pope). The vocational evaluation was delayed due in part through miscommunication with the contracted provider regarding records, Mother’s/Student’s initial refusal to sign a release for records and Student’s refusal to go to the evaluation (Mother, Pope).
10
Those IEPs would have reflected that the other students were on a 6 th or 7 th grade reading level (Kelley).
11
Boston’s October WIAT scores were recorded two different ways and can not be used.
12
Ms. Mason was not able to elaborate as to why the recommendation for a residential program was changed to a day placement and it is unclear whether Student would attend such a placement as he would not testify. This option should be explored.