Albany, New York (August 12, 2021) – United States District Court Judge Hon. Lawrence E. Kahn issued a decision and order granting summary judgment to the parents of a disabled child suing the North Syracuse Central School District (the “School District”) for discrimination after the School District refused to provide recommended services to their autistic child.
The lawsuit was filed in May 2018 alleging that the School District had violated the child’s rights under Section 504 of the Rehabilitation Act of 1973 (42 U.S.C. §794[a]), which prohibits recipients of federal financial assistance, such as a School District, from excluding from participation in, denying benefits of, or discriminating against a student on the basis of his or her disability. In their lawsuit, the parents allege that the North Syracuse Central School District discriminated against their child by denying the child autism-related services necessary for the child’s education in spite of experts’ recommendation and the family’s offer to pay for the services. The lawsuit also alleges that the District failed to, among other things, (1) provide a certified special education teacher to the child, (2) provide a full-time 1:1 teaching assistant for the child and subsequently removed the teaching assistant from the child’s IEP without the parents’ consent, (3) complete a Functional Behavior Analysis (“FBA”) to address the behaviors impeding on the child’s learning at the time an FBA was recommended, and (4) provide the child with an augmented assistive communication device necessary for the child’s communication in class.
Judge Kahn granted summary judgment to the parents finding that the District discriminated against the disabled child by deliberately reducing speech services recommended to the child with the knowledge that the child was not making progress with speech in school. In his decision, Judge Kahn writes:
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. 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 Plaintiff’s claim that Defendants failed to provide G.F. with appropriate speech therapy. (Decision pp. 15–16).
The Court found that a jury must decide whether the School District’s conduct in failing to provide other services recommended for the child, in particular, autism related services constituted deliberate indifference or mere negligence or professional misjudgment. The Court noted, however, that “a rational juror could conclude that Defendants chose to ignore the scientific and medical evidence supporting the provision of intensive ABA therapy to G.F. in school, even though various experts agreed that without intensive ABA therapy services in school, G.F. would not be able to make social and academic progress, and that this decision rises to the level of gross negligence or reckless indifference.” (Decision pp. 18–19).
Plaintiffs are represented by attorney Carlo A. C. de Oliveira of Cooper Erving & Savage LLP, an Albany based law firm that specializes in civil rights litigation.