SCHOOL DISCRIMINATION - FAILURE TO SUPPLY SPEECH THERAPY TO DISABLED

The wheels of justice grind slowly as this dispute centers on services denied in 2017/2018 school session. The Individuals with Disabilities Education Act ("IDEA") offers states federal funds to assist in educating children with special needs. Endrew F. v. Douglas County School District RE-1, 137 S. Ct. 988, 993 (2017) (citing 20 U.S.C. § 1400 et seq). In exchange, a state agrees to provide a free appropriate public education ("FAPE") to all eligible children. Id. (citing § 1412(a)(1)). Services are provided to an IDEA eligible child in conformity with that child's IEP. Id. at 994. The IEP is a comprehensive plan prepared by a child's "IEP Team," which includes teachers, school officials, and the child's parents. Id. It is typically a multi-page report describing how specific special education services and other related services will be provided to the student. Id.

ROBERT F. v. NORTH SYRACUSE CENTRAL SCHOOL DISTRICT, Dist. Court, ND New York August 12, 2021:

".....For the reasons that follow, summary judgment is denied as to both parties for all claims except for Plaintiffs' claim pertaining to the reduction of speech therapy. While the IDEA does not bar Plaintiffs from recovering in this action, the factual record presents a genuine dispute of material fact as to whether Defendants' various failures establish a prima facie case of discrimination under § 504. Section 504 prohibits an entity that receives federal financial assistance—for example, a school district—from discriminating against students solely on the basis of disability. See Gabel ex rel. L.G. v. Bd. of Educ., 368 F. Supp. 2d 313, 333 (S.D.N.Y. 2005). Unlike IDEA, which offers relief from inappropriate educational placement, § 504 offers relief from discrimination. See id.

Section 504 provides that "[n]o otherwise qualified individual with a disability in the United States. . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). A claim under § 504 requires evidence that "(1) the student is disabled; (2) the student is otherwise qualified to participate in school activities; (3) the school or the board receives federal financial assistance; and (4) the student was excluded from participation in programs at, denied the benefits of, or subject to discrimination at, the school on the basis of her disability." D.C. ex rel. E.B. v. New York City Department of Education, 950 F. Supp. 2d 494, 518 (S.D.N.Y. 2013). Only the fourth element, intentional discrimination, is at issue here.

To demonstrate discrimination under § 504, a plaintiff is not required to show personal animosity or ill will. Id. Rather, intentional discrimination "may be inferred when a school district acts with gross negligence or reckless indifference in depriving a child of access to a FAPE." Gabel, 368 F. Supp. 2d at 334. In other words, "a plaintiff must demonstrate that a school district acted with bad faith or gross misjudgment." Id. (citing Butler v. South Glens Falls Cent. Sch. Dist., 106 F. Supp. 2d 414, 420 (N.D.N.Y. 2000)); see C.L. v. Scarsdale Union Free School District, 744 F.3d 826, 841 (2d Cir. 2014) (holding that a § 504 claim "requires proof of bad faith or gross misjudgment"); see also S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007) ("[P]laintiffs can rely on Section 504 to claim that they are denied access to a free appropriate education, as compared to the free appropriate education non-disabled students receive, if they can show that defendants acted with bad faith or gross misjudgment in the administration of disability services."). The requirement that a school district act with bad faith or gross misjudgment in the special education context requires that, "a plaintiff must demonstrate more than an incorrect evaluation or substantively faulty IEP to establish liability." R.B. ex rel. L.B. v. Bd. of Educ. of City of New York, 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000).

Although "case law from this Circuit suggests that the [school d]istrict's many failures may rise to the level of gross negligence or reckless indifference sufficient to support a claim of discrimination under Section 504," Gabel ex rel. L.G., 368 F. Supp. 2d at 335, the Second Circuit distinguishes gross negligence and reckless indifference necessary to sustain a § 504 claim from instances of school districts' "inappropriate decisions" that were "at most, errors in professional judgment." Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 153 (N.D.N.Y. 1997).

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Plaintiffs move for summary judgement on their claim that Defendants failed to provide G.F. with appropriate speech therapy services by reducing the weekly service hours on his IEP. Pls.' Mem. of Law at 24. New York regulations require that instructional speech and language services "be provided to meet the individual language needs of a student with autism for a minimum of 30 minutes daily in groups not to exceed two, or 60 minutes daily in groups not to exceed six." 8 N.Y.C.R.R. § 200.13(a)(4). In the Second Circuit, failure to provide the required level of speech-language therapy has been found to be a serious procedural defect that deprived the student of important educational benefits. See L.O., 822 F.3d at 116.

Defendants knew that G.F. required speech services in order to have meaningful access to education and provided fewer services than required when they reduced the weekly service hours. Here, no reasonable juror could conclude that reducing services to G.F. after he failed to make progress does not constitute deliberate indifference. It is undisputed that G.F.'s IEP did not provide for a minimum of 30 minutes of speech and language services daily as required. Instead, during the 2015-2016 school year, Defendants only provided for 30 minutes of speech and language therapy four times per week, and then reduced the amount of speech therapy to 30 minutes three times per week the following school year. Defs.' SMF ¶ 41. Considering that G.F.'s hours were reduced after not meeting his goals in speech, the School District demonstrated deliberate indifference by providing fewer services than deemed necessary for G.F's speech and language needs. For this reason, the Court grants summary judgment on Plaintiffs' claim that Defendants failed to provide G.F. with appropriate speech therapy.

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