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B.E.L. v. State, Department of Education

United States District Court, D. Hawaii

October 24, 2014

B.E.L., individually and on behalf of his minor child, B.E.L., Plaintiff,

For B. E. L., individually and on behalf of his minor child, B.E.L. guardian ad litem, B. E. L, Plaintiff: Keith H.S. Peck, LEAD ATTORNEY, Law Office of Keith H.S. Peck, Honolulu, HI.

For State of Hawaii, Department of Education, Kathryn Matayoshi in her official capacity as Superintendent of the Hawaii Public Schools, Defendants: Carter K. Siu, Jocelyn Chong, LEAD ATTORNEYS, Department of the Attorney General Education Division, Honolulu, HI.

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Susan Oki Mollway, Chief United States District Judge.


Plaintiff B.E.L., the father of B.E.L. (" Student" ), a minor eligible to receive

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special education and related services, seeks reversal of the Findings of Fact, Conclusions of Law, and Decision (the " Decision" ) issued by an Administrative Hearing Officer (" AHO" ). The AHO concluded that the Department of Education (" DOE" ) had not violated the Individuals with Disabilities Education Improvement Act of 2004 (" IDEA" ). The court affirms the Decision.


Student is an elementary school student whose home school in Hawaii's statewide public school system, run by the DOE, is Aliiolani Elementary. ECF No. 10-1, PageID # 141, 143. Student attended Aliiolani from kindergarten to second grade. Id., PageID # 143.

According to Student's first-grade teacher, Student struggled with two- to three-step directions, with writing the letters of the alphabet, and with remaining focused during class. ECF No. 10-1, PageID # 145-46; ECF No. 13-2, PageID # 776-77. To address Student's needs, Student's teacher moved his desk. This appeared to slightly improve Student's ability to focus. ECF No. 13-2, PageID # 779.

At an open house at the beginning of the 2011-12 school year, Student's first-grade teacher spoke with Student's parents, who indicated that there had been concerns about Student's attention in the past. ECF No. 10-1, PageID # 146.

After the open house, Student's first-grade teacher talked with a special education teacher about ways to help Student focus. Id. After those discussions, Student's teacher began using nonverbal reminders and cues, and modifying assessments for Student. ECF No. 13-2, PageID # 782-83.

Throughout the school year, Student's first-grade teacher also tried to help Student through preferential seating, a behavior chart, breaking assignments into smaller chunks, and providing extra time. ECF No. 10-1, PageID # 146. Student was tutored by three different individuals at various points during the school year. Id.

Student's first-grade teacher said that she could not do more for Student without teaching below the grade-level standard, which she was not permitted to do. Id. Student made some progress in his first-grade class, but was still behind his peers and struggled to function effectively. Id.

In the third quarter of his first-grade year, Student was tested and found to be eligible for special education and related services under the IDEA. Id., PageID # 143.

On March 8, 2012, a meeting was held with Student's parents, a social worker, Student's general education teacher, Student's special education teacher, a student services coordinator, and the school principal to develop an Individualized Education Program (" IEP" ) for Student. ECF No. 12-1, PageID # 281.

The resulting IEP provided for 675 minutes of special education services per week in language arts and math. Id., PageID # 290-91. Student was to receive language arts and math instruction in a special education classroom at the same time that his peers were receiving general education instruction in the same subjects. ECF No. 13-2, PageID # 822. The 2012 IEP also provided for " preferential seating close to the source" and " repeated instruction" in all classes, including Student's general education classes. ECF No. 12-1, PageID # 290.

At the 2012 IEP meeting, Plaintiff did not express any dissatisfaction with Student's placement in special education for language arts and math. ECF No. 13-1,

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PageID # 713. Plaintiff stated at the administrative hearing that he was happy with the improvements in Student's reading that followed Student's placement in special education. Id. Plaintiff contends, however, that at the time of the 2012 IEP, he did not know that special education services could be provided in a general education classroom, learning of this later from his attorney. Id., PageID # 682; ECF No. 28, PageID # 989.

A Prior Written Notice of Department Action dated March 12, 2012, states that remaining in a general education class with interventions was an option considered for Student, but that this option was rejected because " [d]espite classroom interventions, [Student] continue[d] to struggle in reading and math" and was " not meeting grade level benchmarks." ECF No. 12-1, PageID # 306.

Student's special education class had approximately ten other students ranging from kindergarten to second grade. ECF No. 10-1, PageID # 147. Two students had adult aides. Id. Student was grouped with three other students with abilities similar to his. Id. According to his special education teacher, Student did well in his special education class, but was too far behind academically to succeed with first-grade material, even with modifications. ECF No. 13-3, PageID # 836, 848.

At the end of the first grade, Student was at a kindergarten level in language arts and reading. Id.; ECF No. 13-3, PageID # 172-73. Student also had difficulty spelling and writing, and still struggled with the first fifty sight words even though children his age were expected to know two hundred sight words. ECF No. 10-1, PageID # 146-47.

On August 17, 2012, Student was diagnosed by a private psychologist with a reading disorder/dyslexia. ECF No. 12-1, PageID # 360. According to the psychologist, Student would benefit from remedial tutoring in reading and spelling, and from help memorizing basic math facts. Id., PageID # 361.

In his second-grade year, Student continued with special education for language arts and math, and general education for all other subjects and activities. ECF No. 10-1, PageID # 147. In his special education class, Student was exposed to some second-grade material, but, according to Student's special education teacher, could not have kept up with second-grade material in a general education class, even with modifications. Id.; ECF No. 13-3, PageID # 845, 868. Student's special education teacher testified that Student's parents never expressed discontent with Student's special education placement. ECF No. 10-1, PageID # 148.

Student's second-grade general education teacher testified that Student was behind in reading, writing, spelling, and other areas. Id. For example, Student needed assistance reading books that were at a first-grade level. Id. Student's general education teacher assisted Student in his general education classes, giving him extra time and preferential seating. Id. His general education teacher testified, however, that Student was not ready to be in her general education language arts class even with those accommodations and that the modifications necessary for him to succeed would not comport with second-grade standards. Id.

On February 8, 2013, an IEP meeting was held with Student's parents, his general education teacher, his special education teacher, and the school principal. Id., PageID # 149; ECF No. 12-1, PageID # 304. This IEP maintains 675 minutes of special education per week, and provides for preferential seating, repeated instruction, and extra time to process statements

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in all classes. ECF No. 10-1, PageID # 149. The IEP describes Student's placement as follows: " [Student] will not participate with nondisabled students in the general education class for mathematics and language arts. He will participate with his general education peers for all other subjects and activities, including but not limited to computer, library, P.E., health, art, field trips, resource days and assemblies." ECF No. 12-1, PageID # 303.

Plaintiff testified that there was no discussion of placement alternatives at the meeting held on February 8, 2013. ECF No. 13-1, PageID # 684. According to Plaintiff, DOE officials merely stated that Student would continue to get help in the special education classroom. Id., PageID # 684-85. However, Student's second-grade general education teacher testified about a placement discussion that occurred at the IEP meeting and noted that Student's parents did not object to the placement at any time. ECF No. 10-1, PageID # 149.

On August 7, 2013, Student's parents withdrew Student from his home school and indicated that Student would be enrolling at a private school. Id., PageID # 150. ...

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