J.L. v. LOWER MERION SCHOOL DISTRICT

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

J.L., et al., CIVIL ACTION

Plaintiffs,

NO. 20-1416-KSM

v.

LOWER MERION SCHOOL DISTRICT,

Defendant.

MEMORANDUM

MARSTON, J. September 15, 2022

This case involves a difference in opinion concerning what is an effective communication

method for A.L., a bright, hardworking, non-speaking student who attended Lower Merion High

School. A.L. and his parents, J.L. and F.L., advocated that A.L. should be entitled to use his

preferred method of communication, Spelling to Communicate (“S2C”), in the classroom. To

use this method, A.L. needed a trained communication partner who could accompany him

throughout the school day to hold the laminated letterboard he used to spell. Throughout A.L.’s

schooling experience, the Lower Merion School District (the “District”) worked with A.L. and

his parents to provide the best possible educational environment for A.L. to reach his fullest

potential. Unfortunately, after the District researched S2C, it declined to agree to A.L.’s

preferred method because the District’s research and investigation showed that S2C was not

evidence based and may not have reflected A.L.’s true voice.

Following the District’s refusal to implement S2C, A.L.’s parents, individually and on

behalf of A.L., (“Plaintiffs”) initiated a due process action against the District under the

Individuals with Disabilities Education Act (the “IDEA”). (ODR3745–50.1) Plaintiffs argued

the District denied A.L. a free appropriate public education (“FAPE”) by refusing to allow A.L.

to use S2C in the academic setting and by refusing to provide A.L. with a trained communication

partner. (Id.) They also claim the District procedurally violated the IDEA by refusing to

conduct an independent educational evaluation despite Plaintiffs’ repeated requests. (Id.)

Plaintiffs sought compensatory education, reimbursement for the private program they developed

for A.L. following his withdrawal from the District, and reimbursement for the psychological

evaluation of A.L. that they coordinated. (Id.) Plaintiffs also claimed that the District violated

Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and the Americans with

Disabilities Act (the “ADA”) by refusing to allow A.L. to use S2C until November 2018, after he

had already stopped attending school. (ODR3750.)

After a three-day hearing and review of a voluminous record, the Hearing Officer

determined that the District provided A.L. with a FAPE even though it refused to implement

S2C. (ODR0008–40.) The Hearing Officer found that he did not have jurisdiction over the

Section 504 and ADA claims; however, he held if he had jurisdiction, he would find that the

District did not violate Section 504 or the ADA. (ODR0038.) Subsequently, Plaintiffs filed a

complaint in this Court challenging the Hearing Officer’s determination and alleging violations

of Section 504 and the ADA. (Doc. No. 1.) Presently before the Court are the parties’ cross-

motions for judgment on the supplemented administrative record. (Docs. No. 63 & 65.) For the

reasons below, the District’s motion is granted, and Plaintiffs’ motion is denied.

1 Citations beginning “ODR-” refer to the Administrative Record received from the Pennsylvania

Department of Education Office of Dispute Resolution.

I. BACKGROUND

A. Evidentiary Dispute

The Court permitted Plaintiffs to “supplement the administrative record with A.L.’s

testimony, using a letterboard.” J.L. v. Lower Merion Sch. Dist., Civil Action No. 20-1416, 2021

WL 4262321, at *6 (E.D. Pa. Sept. 17, 2021). A.L. did not provide live testimony but rather

provided a declaration in support of Plaintiffs’ motion. (Doc. No. 65-2.) The District argues that

because the Court allowed Plaintiffs to supplement the record with A.L.’s testimony, not a

declaration, the Court should not now consider the declaration. (Doc. No. 77 at 2.) Plaintiffs

argue that the Court should consider A.L.’s declaration because Plaintiffs provided the District

with A.L.’s declaration before moving for judgment on the administrative record, “expecting

defendant to notice A.L.’s deposition,” but the District chose not to do so. (Doc. No. 79 at 6.)

The Court will consider A.L.’s declaration. A.L. declared under penalty of perjury that

his declaration was true and correct (Doc. No. 65-2 at 8), and the District could have deposed

A.L. but chose not to (Doc. No. 79 at 6). The District also suggests that A.L. did not author his

declaration, but it has not offered any evidence to support its suggestion (Doc. No. 80 at 3–4),

and without such evidence, the Court declines to question the authenticity of the declaration.

Accordingly, the Court will consider A.L.’s declaration in deciding the cross-motions for

judgment on the administrative record.2

2 The District also challenges Plaintiffs’ citation to declarations from A.L.’s parents explaining

the videos showing A.L. letterboarding. (Doc. No. 77 at 4.) Plaintiffs did not move to supplement the

administrative record with these declarations, so the Court has not considered them while viewing the

videos or deciding the cross-motions.

B. Factual Background

1. A.L.’s Language Impairment and His Introduction to the Spelling to

Communicate Methodology

Since he was a child, A.L. has had a diagnosis of autism3 and a speech or language

impairment. (Id.) Although A.L. has limited verbal capabilities, he describes himself as a non-

speaker. (Doc. No. 65-2 ¶ 5.) A.L., who is now an adult, attended school in the District from

kindergarten through the beginning of his senior year. (ODR0392.) Throughout his educational

career, A.L. has had an individualized education program (“IEP”), which set curricular and

extracurricular goals and enumerated specially designed instruction he would receive to advance

those goals. (ODR0407.) Every IEP A.L. has had since his fourth-grade year has noted the need

“to consider . . . assistive technology related to writing needs.” (ODR0429.)

By the end of his tenth-grade year, A.L.’s parents became increasingly concerned that his

communication skills had stagnated, so they enrolled him in S2C lessons with an extracurricular

group not affiliated with the District. (Doc. No. 65-1 ¶¶ 6–7.) S2C is a method by which a

communication partner holds a letterboard4 in the eyeline of a nonverbal speaker and the speaker

points to letters on the board. (ODR0301.) The communication partner writes out the letters the

speaker points to, letter by letter, and re-directs the speaker if he is pointing to letters in a

nonsensical order. (ODR0320; see also ODR0181 (one of A.L.’s communication partners

testifying that he “won’t accept” if A.L. points to the wrong letters).) For instance, A.L.’s

3 Autism is a “developmental disability significantly affecting verbal and nonverbal

communication and social interaction.” 34 C.F.R. § 300.8(c)(1)(i). Characteristics associated with

autism include “engagement in repetitive activities and stereotyped movements, resistance to

environmental change or change in daily routines, and unusual responses to sensory experiences.” Id.

4 A letterboard is a laminated, 8 ½ x 11 board. (ODR0301.) The left side of the letterboard lists

the alphabet (in alphabetical order) over five rows, and the far-right side of the letterboard includes

punctuation (a comma, an exclamation mark, a question mark, and a period), a “backspace” button, and a

“DONE” button, which the speaker points at to indicate that he is finished with his thought. (Id.)

mother testified that A.L.’s communication partners helped him “[i]f he appears to get stuck or if

he appears to get random”; that is, “they’ll say [A.L.], reset, I’m going to go back and I’m going

to read the last thing that made sense because you lost me there.” (ODR0320.) Similarly, if the

communication partner does not understand what the speaker is spelling, they may pull the board

away and have the speaker start over. (ODR0177; see also ODR0186 (“If he gets inaccurate or

if he gives me a string of letters, I’ll pull the board back . . . .”).) The communication partner

will never touch the speaker’s hand, but they may make “gestural prompts,” such as a wave, “to

get [the speaker] to go to a certain side of the board, or to show them, okay, your letter is in this

vicinity.” (ODR0180–81; see also Homework Video at 5:00–5:30 (demonstrating how A.L.’s

communication partner guided him to the correct letter).)

At the time of the administrative hearing, there was no peer-reviewed research supporting

the legitimacy of S2C as an evidence-based methodology. (ODR1930.) The American Speech-

Language-Hearing Association (“ASHA”) issued a position statement on Facilitated

Communication and the Rapid Prompting Method.5 (ODR2813.) ASHA said,

It is the position of the American Speech-Language-Hearing

Association (ASHA) that use of the Rapid Prompting Method

(RPM) is not recommended because of prompt dependency and the

lack of scientific validity. Furthermore, information obtained

through the use of RPM should not be assumed to be the

communication of the person with a disability.

(Id.) S2C’s efficacy is also called into question because the State of Virginia’s Speech and

Audiology Licensing Board assessed an $8,000 fine against Elizabeth Vosseller, the creator of

S2C, for practicing without a license from 2004 through 2017. (ODR1930.)

Despite the lack of research-based evidence supporting S2C, certain experts who

5 S2C is a form of Facilitated Communication based on the Rapid Prompting Method.

(ODR1922.)

observed A.L. believed the method worked for him. (ODR1322.) For instance, Dr. Anne

Robbins, a neuropsychologist, evaluated A.L. using S2C and found that his responses were

“more deliberate and reliable” when he was using the method.6 (ODR1327.) She concluded,

“As [A.L.] has progressed in this alternative communication method, it has become apparent that

he has significantly greater vocabulary, background knowledge, and learning capacity than was

previously recognized.” (ODR1331.) Likewise, Susan Chaplick, A.L.’s private speech-language

pathologist, observed A.L. using S2C and concluded that “[t]here is a significant discrepancy in

his ability to express himself verbally versus using the letter boarding technique.” (ODR2016.)

She also acknowledged that the method is not evidence based but said that it nevertheless “looks

very promising” for A.L. (Id.)

2. Plaintiffs Propose Implementing S2C Into A.L.’s IEP and Enrolling

A.L. in Regular Education Courses

By the fall of his junior year, A.L. had been using S2C for approximately four months in

connection with the private program not affiliated with the District. (Doc. No. 65-1 ¶¶ 6–7.) His

parents were pleased with A.L.’s progress and felt that this newfound ability to communicate

demonstrated that A.L. was far more intelligent than previously realized. (ODR2026.) In

October 2017, A.L.’s mother asked the District to implement S2C into A.L.’s school curriculum,

explaining that A.L. “requires these strategies [i.e., S2C] to fully access LMHS [Lower Merion

High School] curriculum.” (Id.) In their request, A.L.’s parents proposed that his IEP be

updated so that (1) A.L. was spending the majority of his day in regular education classes, and

6 Dr. Robbins concedes that her evaluations were not conducted in accordance with standardized

administration protocol because (1) A.L. communicated on a letterboard with the assistance of a

communication partner (his mother); and (2) his parents were present for the evaluations. (ODR1325–

26.) Additionally, A.L.’s father served as the communication partner for the initial evaluation, but Dr.

Robbins ended that evaluation prematurely because A.L. “was reluctant to participate (did not provide

reliable responses to questions).” (ODR1326.)

(2) at least one representative from the District was trained in S2C. (Id.) A.L.’s parents also

invited representatives from the District, including Michael Borsch (A.L.’s special education

teacher) and Debra Bosin (a speech-language pathologist), to observe A.L. using his letterboard

with a trained communication partner. (Id.) Initially, the District declined the invitation because

it “[did] not view this method as evidence based.” (Id.)

During A.L.’s IEP Team meeting7 on October 26, 2017, the IEP Team agreed to revise

A.L.’s IEP to include A.L. auditing two regular education (a U.S. history and a health class) and

enrolling in a special education reading support class with one-on-one instruction to complement

these two classes. (ODR0850.) Additionally, A.L.’s parents renewed their request that the

District implement S2C. (ODR0845.) The District again explained that it was unwilling to do so

because S2C was not research based. (ODR0307 (A.L.’s mother testifying that “[t]he pushback

in the meeting was about the lack of academic peer-reviewed research”).) A.L.’s parents felt that

A.L.’s progress using S2C was “the best evidence” of the method’s efficacy and requested the

District conduct “an independent evaluation of the effectiveness of these strategies by a mutually

agreed[-]upon third party.” (ODR2034.) When the District did not respond to the request for an

independent evaluation, A.L.’s parents went ahead and obtained their own evaluation from

Dr. Robbins. (Doc. No. 65-1 ¶ 16; ODR1322.)

Meanwhile, on November 6, A.L.’s IEP team held a telephonic meeting to discuss his

7 In October 2017, A.L.’s IEP was prepared and reviewed by his parents and the District’s

speech-language pathologist, A.L.’s special education teacher, the District’s transition coordinator, one of

A.L.’s regular education teachers, A.L.’s private Board Certified Behavior Analyst, the school counselor,

and a representative from the School Board (together, the “IEP Team.”). (ODR0847.) By November

2018, A.L.’s IEP Team expanded to include the District’s psychologist, A.L.’s reading teacher, the

District’s behavior analyst, a special education supervisor, an occupational therapist, the speech-language

pathologist supervisor, the District’s lead supervisor of clinical services, a “consultant,” the District’s

special education coordinator, counsel for A.L.’s family, and counsel for the District. (ODR1633.) A.L.

attended some, but not all, of the IEP meetings. (Compare id. with ODR0847.)

transition to the regular education classes, and A.L.’s parents requested that Mr. Borsch forward

“writings from [A.L.’s] voice via letter boarding” to the two new regular education teachers.

(ODR0957.) On November 14, A.L. began auditing the regular education history and health

classes for approximately twenty minutes per class and did so well that “about a week later,” he

started spending the full fifty-five minutes in each class. (ODR0212.) A few weeks later, on

November 29, A.L.’s IEP team held a brief telephonic meeting to discuss his progress in the

regular education classes and planned to “us[e] a class summary sheet . . . to communicate

[A.L.’s] progress and needs” in the regular education classes. (ODR0982.) At this point, A.L.’s

primary method of communication at school was still typing on a Bluetooth keyboard, which his

teachers had observed worked well for him. (See ODR0984; see also, e.g., ODR0109 (the

District’s speech-language pathologist testifying that A.L. “actually does really well with

keyboarding, he can keyboard his ideas, things he wants using the laptop”); ODR0222 (A.L.’s

special education teacher testifying that “he could type extremely well” and that “[m]ost of his

activities were typed in some regard or another, because [the district] knew that was his

strength”).

3. A.L.’s Parents Continue to Urge the District to Train an Aide in S2C

On December 10, 2017, A.L.’s parents renewed their request that the District train an

aide in S2C, as they believed this would enable A.L. to spend more time in regular education

classes. (ODR2043 (“We thus repeat our request that the District train [A.L.’s] team on the

method, provide a 1:1 [aide] trained in the method, and develop a plan to move [A.L.] into a less

restrictive program with greater access to regular education curriculum and classes.”).) A.L.’s

IEP Team held another meeting on December 15. (ODR1081.) At the meeting, A.L.’s mother

explained that “there is a dramatic difference in what [A.L.] can say versus what he knows/can

do via letterboarding.” (ODR1083.) A.L.’s mother also reported that A.L. had been “so happy

[at] home” since his enrollment in the two regular education courses. (ODR1083–84.)

Around this time, the District agreed to observe A.L. using S2C, and on December 18,

Melissa Sinapi-Gibson (a special education supervisor) and Denise Grimley (a speech-language

pathologist) observed A.L. at Inside Voices, the private facility where A.L. had learned and

continued to practice the method. (ODR0209; ODR1081.) Ms. Grimley described the

observation:

[A.L.’s communication partner] was reading to him a passage about

presidents, and then having him answer questions. She would write

his answers on her clipboard, she would use intonation patterns

while she was reading, she would spell random words from her

passage while she was reading the passage aloud to him. And she

went from very close-ended questions to open-ended questions at

the end . . . . I also observed [the communication partner] using

prompts, she would do things like, closer, go get it, left, up, down,

while he was poking the letters.

(ODR0105.) Ms. Sinapi-Gibson noted that A.L. was “spell[ing] words at a rate that [she] truly

[had] not seen most high school students spell at” but did not think, at that point, that [A.L.’s

communication partner] was guiding A.L.’s communication. (ODR0076.)

Following this session, the District explained to A.L.’s parents that it wanted to conduct

additional observations of A.L. using S2C. (ODR2061.) In response, A.L.’s mother emailed

Ms. Sinapi-Gibson to alert her that A.L. was “stressed about having to constantly prove to [the

District] that he is smart” and that A.L. had spelled, “Stop giving me stupid tests,” upon learning

the District wanted to observe him further using S2C. (ODR2060.) A.L.’s mother explained to

Ms. Sinapi-Gibson, “We understand your desire for data and evidence, but we would ask that

you in turn please be mindful of the emotional toll that this long, drawn out process is taking on

[A.L.].” (Id.)

4. The District Continues to Observe A.L. and Agrees to Allow

Letterboarding in His Reading Class

Following the District’s personnel’s initial observations of A.L. using S2C, A.L.’s IEP

Team reconvened on January 8, 2018. (ODR1163.) A.L.’s parents asked the District to contract

with the creator of the S2C method to train eight people to serve as communication partners for

A.L. (ODR1273.) A week after the IEP meeting, Ms. Sinapi-Gibson privately expressed doubts

about the efficacy of S2C to Kimberley Fraser, the District’s Director of Student Services and

Special Education. (ODR1847.) Her concerns about the method included the following:

• There is NO direct research on Spelling to Communicate.

• ASHA does not recognize it as an evidence[-]based practice.

• [The creator] was first trained in Rapid Prompt Method (RPM)

which does have research and that research says it does not

work.

• We have asked on multiple occasions, when does the individual

become independent, currently they do not have completely

independent individuals.

• The student does not currently use the S2C at home to

communicate his daily happenings, strictly to complete

homework.

• Speaking with experts in the Autism area, they frown upon the

use due to lack of evidence to support it.

(Id.)

Notwithstanding Ms. Sinapi-Gibson’s hesitations, the District followed up with its

request to conduct additional observations of A.L. using S2C and sent Ms. Sinapi-Gibson,

Ms. Grimley, and Ms. Van Horn back to Inside Voices on January 22. (ODR0089.)

Ms. Van Horn explained that she prepared questions for the session based on a mid-term being

administered in A.L.’s U.S. history class. (Id.) A.L. and his communication partner began

working through the short-answer and multiple-choice questions on the letterboard, but “he

wasn’t getting the correct answers” and seemed “flubbled”—i.e., he seemed anxious responding

to the questions. (ODR0090.) A.L.’s communication partner asked for an answer key, and

“[t]hen the answers were coming out correctly.” (Id.) Ms. Van Horn was troubled by what she

observed, particularly by the fact that A.L.’s behavior and the communication partner’s

demeanor changed once the communication partner knew the correct answers. (Id.)

Although the District’s educators had serious concerns about S2C following the January

22 observation, the District agreed to allow A.L. to use a letterboard at school during his one-on-

one reading course, with the limitation that he was not allowed to use a communication partner.

(ODR1205.) This meant that A.L. was allowed to use the letterboard to point to the letters

without the assistance of an aide holding the letterboard, but someone would be there to

transcribe the letters A.L. pointed to. (Id.) The District believed this accommodation would

allow it to determine if letterboarding was an effective means of communication. (ODR0076

(“[W]e used the reading class as a way to extrapolate comprehension of items that were

presented in history to see if [A.L.] could spell those responses on the letter board.”).) But the

letterboarding did not prove effective without a communication partner. (ODR0221.)

Mr. Borsch explained that A.L. “did spell some things but did not communicate anything that

was comprehensive to what we were discussing.” (Id.)

Given its investigation of S2C, in February, the District again refused to train a one-on-

one aide to serve as A.L.’s communication partner. (ODR2068.) The District explained that this

decision was not financially motivated; rather, “[t]he lack of research behind S2C including

research to drive appropriate training with fidelity remains a significant concern.” (Id.)

Although the District refused to train a one-on-one aide in the method, it permitted A.L.’s mother

to serve as A.L.’s communication partner in his reading class on three or four different occasions

in February and March 2018. (Id.; ODR0312.)

5. The District Allows A.L. to Enroll in More Regular Education

Courses and Tentatively Agrees to Train Staff in S2C

A.L.’s IEP Team was scheduled to have another meeting on March 6, 2018. (ODR2072.)

In advance of that meeting, A.L.’s parents emailed the District, expressing concern that A.L.’s

IEP “should begin to reflect the strengths and competence that we have seen when [he] uses the

boards and in his regular education classes.” (ODR1844.) They also requested that A.L. be

allowed to use the letterboards “in all situations in which he needs to communicate.” (Id.) The

District cancelled the March 6 IEP meeting without explanation “less than two hours before the

meeting.”8 (ODR2072.)

The meeting was rescheduled to April 10. (ODR1356.) Susan Chaplick, A.L.’s private

speech-language pathologist, attended the meeting to discuss S2C. (ODR1453.) She explained

that there is a “noticeable difference” in A.L.’s communication abilities when A.L. works with

an experienced communication partner. (Id.) After Chaplick’s presentation, the IEP team

discussed A.L.’s progress in the regular education history and health classes, and A.L.’s parents

lobbied for him to be enrolled in regular education anatomy, as well. (ODR1455.) The District

agreed, and A.L.’s IEP was revised for him to audit regular education anatomy for the fourth

quarter of the 2017–2018 school year. (ODR1461.) Finally, and significantly, the District

agreed to put together a team to be trained in S2C, including Ms. Van Horn, Ms. Sinapi-Gibson,

Ms. Grimley, Dr. Elizabeth Serpentine (a transition coordinator for the District), and one other

person to be identified at a later date. (ODR1456.) Although the District agreed to train this

team, they continued to deny the request to train a one-on-one aide to serve as A.L.’s

8 It is not clear why the District cancelled the meeting with such short notice; however, A.L.’s

mother and Ms. Van Horn “did discuss possibly postponing the meeting for several weeks so the District

can gather more information” on A.L.’s use of the letterboard in reading class. (ODR2070.)

communication partner. (ODR0070.)

The District entered into a contract for training with the creator of S2C, and the training

was scheduled to take place on May 24. (ODR2083.) Unfortunately, the School Board refused

to approve the training “[g]iven that there is not research to support the use of letterboarding,” so

the training was cancelled. (Id.) A.L.’s parents were “deeply disappointed” that the training was

cancelled, and A.L. reported that he “felt hopeless.” (ODR2084.) In an email to the District,

A.L.’s mother underscored A.L.’s frustration: “The series of delays in getting S2C training so

that [A.L.] can communicate in the school setting and fully participate in academic and social

life have come at a great cost to [A.L.] both academically and emotionally.” (Id.) Despite the

setback of the School Board declining to provide funding for the May training, the District

informed A.L.’s parents that it hoped to be able to reschedule the training at some point over the

summer or at the beginning of the 2018–2019 school year. (ODR2106.)

6. A.L.’s Senior Year Begins, and a Team from the District Is Trained in

S2C

On August 1, A.L.’s parents requested two categories of changes to A.L.’s IEP.9

(ODR2106.) First, they requested that A.L. be enrolled in three grade-level regular education

courses to be “more aligned with his intellectual capabilities.” (Id.) And second, they requested

that A.L. be “allow[ed] to communicate at school.” (Id.) A.L.’s parents acknowledged that the

District may not be prepared to discuss the second point until after the District’s staff completed

the S2C training but urged the District to amend A.L.’s IEP to allow him to audit three regular

education courses as soon as possible. (Id.) On August 7, in response to A.L.’s parents’

requests, the District asked to reevaluate A.L. (ODR1477.) A.L.’s parents agreed to the

reevaluation with the expectation that “the evaluation will consider [their] request for change in

9 A.L.’s parents made this request prior to the start of his senior year. (ODR2106.)

placement as well as . . . [A.L.’s] use of spelling boards to communicate.” (ODR1480.) The

reevaluation was set for October 2018. (ODR1840.)

Meanwhile, the District attempted to arrange for the developer of S2C to come and train a

District team (consisting of Ms. Van Horn, Mr. Borsch, and Ms. Grimley). (ODR1641.) The

developer of S2C was unavailable, so another representative came in her stead and led a three-

day training in September 2018. (ODR0077.) The training was disorganized, and the trainer

failed to provide a manual because there were “no specific guidelines for using the boards in

academic and functional settings.” (Id.) The trainer was also unable to answer questions about

the use of the method in the academic setting and admitted that “there [was] no current scientific

research or data to support the use of letter boarding with a facilitated communication partner.”

(ODR1641) Ms. Van Horn felt that she left the training without any “new information that was

going to help us get [A.L.] to be that person guiding us” and stated that she did not think “any

amount of training . . . would help [A.L.] to be independent working on these boards.”

(ODR0092.) Ms. Grimley explained that she found A.L.’s performance at the training “really

inconsistent”—“at times he wasn’t accurate . . . he might have tapped two or three times and then

finally got to an H.” (ODR0107.)

A week after the training concluded, A.L.’s parents followed up with the District to see

when it was planning to hold an IEP meeting and implement S2C. (ODR2181.) A.L.’s IEP

Team met on October 9 to review his progress and discuss the S2C training. (ODR1490.) At the

meeting, the District refused to move forward with S2C because “[t]he training for trial did not

yield evidence to support the usage of letter boarding based on the lack of research and studies to

demonstrate effective use within a school setting.” (ODR1499.) The District agreed that A.L.

could use the letterboards without the support of a communication partner if he chose to do so.10

(Id.) The District also reiterated that A.L. could also communicate via a Bluetooth keyboard.

(Id.)

7. A.L.’s Scheduled Evaluation and Eventual Withdrawal

On October 22, on the eve of the District’s reevaluation of A.L., his father emailed

Dr. Andrea Fina, the District’s psychologist who was scheduled to conduct the evaluation, and

explained that A.L. was “on edge like we’ve never seen him” with anxiety about the evaluation.

(ODR1839–40.) Dr. Fina forwarded the message to Ms. Sinapi-Gibson and said, “I see that I’m

being set up for ‘testing results are not valid and caused undue stress.’” (ODR1839.) Dr. Fina

went forward with the testing on October 24 and noted that A.L. “did not appear to be frustrated

or demonstrate negative behaviors” during the evaluation. (ODR1642.) A.L. scored in the third

percentile in cognitive skills, indicating that his “nonverbal cognitive skills are poorly developed

and an area of weakness.” (Id.) Dr. Debra Bosin, a speech-language pathologist for the District,

also evaluated A.L. and found that he is a “skilled typist using his index fingers.” (ODR1926.)

On October 25, A.L. stopped attending school due to anxiety. (Id.) And on November 5,

Dr. Manely Ghaffari, A.L.’s psychiatrist, wrote to the District explaining that A.L. was

experiencing increased anxiety, self-injurious behaviors, and aggression “due to [the District’s]

inability to meet his individualized needs by implementing his spell to communicate strategy.”

(ODR2022.) She suggested that A.L. required homebound instruction out of medical necessity

until the District developed a program that would meet his mental health and educational needs.

(Id.) A.L.’s pediatrician, Dr. Wendy Ross, authored a similar letter, “recommending that he not

return to LMHS” “until we can ensure that the school is ready to utilize [A.L.’s] form of

10 The District also reversed its decision that A.L.’s mother could come in and serve as his

communication partner in Ms. Van Horn’s reading class. (ODR0214; ODR2126.)

communication effectively, consistently, and respectfully.” (ODR1971.)

A.L. remained out of school, and on November 28, his IEP Team met for the final time.

(ODR1597.) A.L.’s parents disagreed with the results of the reevaluation because A.L. had

performed so much better in his private evaluation with Dr. Robbins. The District, however,

noted that it believed that Dr. Robbins’s evaluation was flawed because she broke from

standardization by evaluating A.L. using S2C with his mother as his communication partner.

(ODR1638.) The District shared with A.L.’s parents “that the use of letter boarding, specifically,

holding the letter board/keyboard could not prove authorship [i.e., A.L.’s true voice] and

therefore was not a reliable way to assess A.L.’s learning.” (Id.) The District reiterated that A.L.

could use his letterboard or a keyboard to communicate if he was able to do so without the use of

a partner. (Id.) The District also agreed to revise A.L.’s IEP for him to attend another regular

education health course (and a complementary one-on-one reading course) and agreed that

District would review videos of him using S2C to complete homework with his parents.

(ODR1639.) Although the District expressed doubts about the efficacy of the S2C method, the

IEP prepared following this meeting provided, “If [A.L.] brings a letter board and a

communication partner to school, the [Lower Merion] team will allow their use as a reasonable

accommodation under ADA.” (ODR1708.) A.L.’s parents rejected the proposed IEP revisions

on December 21. (ODR2202.)

Following his withdrawal from high school, A.L. has continued his education from home,

working with six private tutors who he typically meets with for one hour twice a week.11

(ODR0313.) A.L. uses S2C with all of his tutors. (Id.) A.L. reads novels and has expressed a

desire to earn a high school diploma and pursue post-secondary education. (Id.)

11 A.L. also took an online history course taught by a professor from the University of

Pennsylvania. (ODR0313.)

C. Procedural History

On February 27, 2019, Plaintiffs filed a due process complaint with the Pennsylvania

Department of Education, claiming that the District failed to provide A.L. with a FAPE

beginning in February 2017 by refusing to allow A.L. to use S2C at school and by refusing to

train a one-on-one aide to serve as his communication partner. (See ODR3745–50.) Plaintiffs

also claimed that the District procedurally violated the IDEA by refusing to conduct an

independent educational evaluation despite Plaintiffs’ repeated requests. (Id.) Plaintiffs sought

compensatory education for the period from February 27, 2017 through the end of the 2017–

2018 school year, reimbursement for the private program they developed for A.L. for the 2018-

2019 school year, and reimbursement for the evaluation of A.L. by their neuropsychologist.

(ODR3750.) Plaintiffs also alleged the District discriminated against A.L. in violation of Section

504 and the ADA and sought damages and attorneys’ fees. (Id.)

The Hearing Officer heard three days of testimony and reviewed thousands of pages of

record evidence. (See ODR0042–339; see generally ODR0372–3738.) On December 15, 2019,

he issued an opinion concluding that the District had provided A.L. with a FAPE. (See

ODR0008–40.) He based this conclusion, in large part, on the District’s witnesses who he found

credibly testified that S2C was not a reliable means of communication for A.L. (ODR0039.)

The Hearing Officer also found that the District committed a procedural violation when it did not

file for a due process hearing after Plaintiffs requested an independent evaluation but the Officer

concluded that this violation was harmless because A.L. received a FAPE. (ODR0036.)

Accordingly, he denied Plaintiffs’ request for compensatory education, tuition reimbursement,

and reevaluation reimbursement. (See ODR0008–40.) And, although the Hearing Officer

determined that he did not have jurisdiction over the ADA claim, he concluded that, even if he

had jurisdiction, Plaintiffs had “not established that the failure of the school district to provide

Spelling to Communicate methodology with an adult communication partner constitutes a

violation of the ADA.” (ODR0039.) He found that Plaintiffs did not show that the District’s

failure to provide a communication partner was discrimination on the basis of a disability in

violation of Section 504 and thus denied Plaintiffs’ request for damages and attorneys’ fees

under the Section 504 and the ADA. (Id.)

On March 12, 2020, Plaintiffs filed a complaint in this Court appealing the Hearing

Officer’s decision. (Doc. No. 1.) Plaintiffs sought review of the Hearing Officer’s decision and

brought separate claims against the District for intentional discrimination in violation of Section

504 and the ADA. (Id. at 16–20.) The Court held that Plaintiffs’ Section 504 and ADA claims

were duplicative of the administrative appeal but gave Plaintiffs the opportunity to amend their

complaint. J.L. v. Lower Merion Sch. Dist., Civil Action No. 20-1416, 2021 WL 949456 (E.D.

Pa. Mar. 12, 2021). Plaintiffs amended their complaint in an attempt to differentiate the Section

504 and ADA claims from the claim that A.L. was denied a FAPE. (Doc. No. 33.)

After Plaintiffs amended their complaint and the District filed an amended answer, the

Court issued a Scheduling Order setting this case on two tracks: one schedule governed the

Section 504 and ADA claims and the other governed the administrative appeal.12 (Doc. No. 34.)

As to the Section 504 and ADA intentional discrimination claims, both parties moved for

summary judgment. (Docs. No. 61 & 64.) The Court granted summary judgment in favor of the

District because Plaintiffs’ intentional discrimination claims sought a remedy for denial of a

FAPE, so they were properly addressed at the administrative level (and through the appeal of the

12 The Court set the case on two tracks because, if Plaintiffs stated claims for intentional

discrimination unrelated to the denial of FAPE claim, they may have been entitled to a jury trial on those

claims, whereas the administrative appeal was to be decided by the Court on the administrative record.

(Doc. No. 34.)

Hearing Officer’s decision). J.L. v. Lower Merion Sch. Dist., Civil Action No. 20-1416, 2021

WL 6072815 (E.D. Pa. Dec. 28, 2021).

As to the administrative appeal, Plaintiffs moved to supplement the administrative record

to include A.L.’s testimony, videos of A.L. using S2C, and a peer-reviewed study on the efficacy

of S2C as a means for communication for persons with autism. (Doc. No. 38.) The Court

permitted Plaintiffs to supplement the administrative record with A.L.’s testimony (to be offered

using S2C) and four videos of A.L. using S2C in academic settings, but the Court denied

Plaintiffs’ request to supplement the administrative record with the peer-reviewed study. J.L.,

2021 WL 4262321. Both parties moved for judgment on the administrative record as to the

FAPE-based claims.13 (Docs. No. 63 & 65.) The Court held oral argument on the cross-motions

on April 29, 2022. (Doc. No. 86.)

II. STANDARD OF REVIEW

In IDEA cases, district courts are to conduct a “modified de novo review” of a hearing

officer’s decision. S.H. v. State-Operated Sch. Dist. of Newark, 336 F.3d 260, 269–70 (3d Cir.

2003). The court exercises plenary review over a hearing officer’s legal conclusions, Colonial

Sch. Dist. v. G.K. ex rel. A.K., No. 17-3377, 2018 WL 2010915, at *2 (E.D. Pa. Apr. 30, 2018),

aff’d, 764 F. App’x 192 (3d Cir. 2019), but must give “due weight” to a hearing officer’s factual

findings, S.H., 336 F.3d at 269. Although a hearing officer’s factual findings are considered

prima facie correct, the court may depart from those findings if it explains why and supports its

explanation with citations to the administrative record. Id. at 270. The court may not, however,

“substitute its own notions of sound educational policy for those of local school authorities.” Id.

13 Plaintiffs supplemented the administrative record with a declaration from A.L. and videos of

A.L. using S2C. (Docs. No. 38-1, 5-2.) The Court has considered both pieces of evidence.

(quoting MM v. Sch. Dist. of Greenville Cty., 303 F. 3d 523, 5301 (4th Cir. 2002)).

III. ANALYSIS

Plaintiffs seek review of the Hearing Officer’s decision, which found that the District did

not violate the IDEA, Section 504, or the ADA by refusing to allow A.L. to use S2C at school.

A. IDEA Claim

Plaintiffs have appealed the Hearing Officer’s determination that the District provided

A.L. with a FAPE from February 2017 through December 2018. (Doc. No. 1 ¶¶ 114–28.)

1. Statutory Framework

The IDEA offers federal funds to states to assist in educating children with special needs.

Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017). In

exchange, the states agree to provide a FAPE to all eligible children. Id. A FAPE includes

“special education” and “related services.” Id.; see also 20 U.S.C. § 1401(9). “Special

education” is “specially designed instruction . . . to meet the unique needs of a child with a

disability,” and “related services” are the services “required to assist a child . . . to benefit from”

their special education. 20 U.S.C. § 1412(a)(1).

The IEP is “the centerpiece of the [IDEA’s] education delivery system for disabled

children.” Honig v. Doe, 484 U.S. 305, 311 (1988). An IEP is a comprehensive plan prepared

by the child’s parents, teachers, and school officials detailing how the school will provide the

child with the special education and related services that he or she needs. Endrew F., 137 S. Ct.

at 994 (citing 20 U.S.C. § 1414(d)). An IEP must propose an “educational program reasonably

calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

Id. The IDEA sets forth detailed procedures for the preparation of IEPs:

The IDEA requires that every IEP include “a statement of the child’s

present levels of academic achievement and functional

performance,” describe “how the child’s disability affects the

child’s involvement and progress in the general education

curriculum,” and set out “measurable annual goals, including

academic and functional goals,” along with a “description of how

the child’s progress toward meeting” those goals will be gauged.

§§ 1414(d)(1)(A)(i)(I)-(III). The IEP must also describe the

“special education and related services . . . that will be provided” so

that the child may “advance appropriately toward attaining the

annual goals” and when possible, “be involved in and make progress

in the general educational curriculum.” § 1414(d)(1)(A)(i)(IV).

Id.

If a child’s parents believe the education their child is receiving from his or her public

school violates the IDEA, they may request an impartial due process hearing. 20 U.S.C.

§ 1415(f)(1)(A). The IDEA’s administrative process is conducted in compliance with state

regulations. Id. In Pennsylvania, hearings are conducted by “hearing officers,” outside

contractors hired by the Pennsylvania Secretary of Education. See 22 Pa. Code § 14.162(p)(1).

After exhausting their administrative remedies, parents dissatisfied with the hearing officer’s

decision may seek judicial review in federal or state court. 20 U.S.C. § 1415(i)(2)(A); see also

Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 272 (3d Cir. 2014). On appeal, the

burden of proof falls on the party challenging the hearing officer’s decision. See Schaffer v.

Weast, 546 U.S. 49, 56–58 (2005).

2. Analysis

Plaintiffs argue that the District ran afoul of the IDEA’s substantive and procedural

safeguards by failing to provide A.L. with a FAPE, by failing to educate A.L. in the least

restrictive environment, and by failing to file for a due process hearing when it denied A.L.’s

parents’ request for an independent educational evaluation. (Doc. No. 65-3 at 11–23.) The

Court considers each of these arguments in turn.

a. The Hearing Officer Correctly Found that the District

Provided A.L. with a FAPE

Plaintiffs claim that the District denied A.L. a FAPE for three reasons: (1) it failed to

collaborate with A.L. and his parents; (2) it did not program for A.L.’s communication needs;

and (3) it did not set any academic goals for A.L. even though he was enrolled in regular

education classes. (Id. at 11–18.)

i. The District Collaborated with A.L. and His Parents

First, Plaintiffs argue that the District deprived A.L. of educational benefit because it

“utterly failed to collaborate” with A.L. and his parents and “dragged its feet” by refusing to

determine whether A.L. could use the letterboard for over seventeen months. (Id. at 11.) The

District argues that it made repeated efforts to work with A.L. and his parents to evaluate the

S2C method. (Doc. No. 77 at 5–6.) The Hearing Officer agreed with the District. He found that

the District “made numerous efforts to investigate the parents’ preferred [communication]

method” and conducted a “thorough investigation of Spelling to Communicate.” (ODR0029.)

The Hearing Officer’s findings are borne out by the administrative record. Although the

District may have hesitated to implement S2C given the dearth of research legitimizing the

method, it did not “drag[] its feet” in evaluating S2C. The District worked consistently and

collaboratively with A.L. and his parents from the fall of 2017 onward to determine whether S2C

was an appropriate method for A.L. to use in the academic setting. Beginning in October 2017,

the District considered whether to implement the S2C method but declined to observe A.L. using

the method because it was not evidence based. (ODR0307.) But just two months later, after

hearing about the progress A.L. appeared to be making with S2C from his parents, the District

agreed to send two representatives to observe A.L. using the method. (ODR0209.) In December

2017, the District’s personnel observed A.L. working with his communication partner.

(ODR0105.) Although they had some concerns regarding the efficacy of the method because

they observed A.L.’s communication partner prompting him during the sessions, the District

agreed to continue to consider S2C and whether to implement the method. (Id.) And in January

2018, the District agreed to send additional District representatives to again observe A.L. using

S2C to work through a U.S. history study guide. (ODR0089.) The District’s representatives

observed that A.L.’s communication was “flubbled” until his communication partner got the

answer key, suggesting that the communication partner was guiding A.L.’s answers.

(ODR0090.)

Then in April 2018, A.L.’s IEP team heard about A.L.’s success with S2C from his

private speech-language pathologist. (ODR1453.) In May 2018, the District scheduled a

training session, but the School Board refused to authorize the training because S2C was not

research based. (ODR2106.) Despite this roadblock, the District found a way to move forward

with the training in September 2018. (ODR1641.) At that training, however, the “facilitator

shared that there [was] no current scientific research or data to support the use of letter boarding

with a facilitated communication partner” (id.), and the District’s speech-language pathologist

found A.L.’s performance “really inconsistent” (ODR00107). Additionally, A.L.’s long-

standing special education teacher, Mr. Borsch, felt that he “was being trained to prompt [A.L.]

to answer on the board.” (ODR0223.)

Although the District ultimately did not agree to use S2C in the academic setting, the

record reflects the District’s teachers and staff seriously researched and evaluated whether it

could be used. The record also shows that the District’s teachers and staff had A.L.’s best

interests at heart. Unfortunately, the District could not overlook the lack of evidence supporting

the method and the District’s own observations calling the method’s reliability into doubt, which

ultimately led to the District’s determination that the use of S2C in the classroom was not

appropriate.14 (ODR1499.) It is not the Court’s role to second guess the District’s decision not

to implement S2C. See K.D. ex rel. Dunn v. Downingtown Area Sch. Dist., 904 F.3d 248, 256

(3d Cir. 2018) (holding that the school district provided the student with a FAPE where, among

other things, it revised the student’s IEP to replace one reading program with three other

“research-based programs that provide phonics and reading comprehension instruction”);

Brandywine Heights Area Sch. Dist. v. B.N. ex rel. B.M., 248 F. Supp. 3d 618, 635–37 (E.D. Pa.

2017) (holding that a school district provided a student with a FAPE where it crafted his

specially designed instruction on research and evaluations the district conducted).

Plaintiffs also argue that the District refused to collaborate by failing to timely consider

Dr. Robbins’s assessment concluding that S2C was an effective means of communication for

A.L.15 (Doc. No. 65-3 at 12.) Pursuant to 34 C.F.R. § 300.502(c)(1), if a parent obtains an

independent educational evaluation and shares the results of that evaluation with the school

district, the school district must consider the report “in any decision made with respect to the

provision of FAPE to the child.” However, as discussed below, see infra Section III.A.2.c,

Dr. Robbins’s evaluation is not an independent educational evaluation as contemplated by 34

C.F.R. § 300.502,16 so the District did not violate the IDEA by failing to consider it until the fall

14 Plaintiffs also argue that the District denied A.L. a FAPE because there is no evidence that it

“continu[ed] the SETT (Students, Environments, Tasks, Tools) process.” (Doc. No. 65-3 at 13.) But the

record demonstrates that the District continued with the SETT process, and Plaintiffs have not identified

any evidence to the contrary. (See, e.g., ODR1035; ODR1149.)

15 A.L.’s mother sent the District Dr. Robbins’s report on April 4, 2018, three business days

before A.L.’s next IEP meeting was scheduled. (ODR2076.) The District felt that it was unable to review

and consider the report before the meeting, so it offered to postpone the meeting or proceed with the

meeting, with the understanding that the District would not be able to discuss the evaluation. (Id.) A.L.’s

parents chose to proceed with the meeting. (ODR2077.) On September 12, the District confirmed that it

was considering Dr. Robbins’s evaluation through the District’s own reevaluation. (ODR2126.)

16 As discussed below, Dr. Robbins’s evaluation does not fall within the bounds of 34 C.F.R.

of 2018.

In sum, the evidence in the administrative record supports the Hearing Officer’s

conclusion that the District thoroughly investigated the S2C method, and Plaintiffs’ argument

that the District failed to provide A.L. a FAPE because it did not collaborate is not persuasive.

ii. The District Did Not Err in Declining to Implement S2C

Next, Plaintiffs argue that the District denied A.L. a FAPE by refusing to implement the

S2C method because A.L. was entirely unable to communicate without S2C. (Doc. No. 65-3 at

13–18.) The Hearing Officer concluded that District was not required to implement S2C because

the method was not research based and had not proven reliable and because it is not the parents’

or the Hearing Officer’s role to second guess the District’s decision about what methodology to

employ. (ODR0028–33.) The Court considers the soundness of the Hearing Officer’s lines of

reasoning in turn.

S2C’s Reliability. The Hearing Officer concluded that the District was not required to

implement S2C because the method was not research based and had proven unreliable during the

District’s own observations. (ODR0028–33.) The Hearing Officer based this conclusion in part

on the fact that he found the District’s witnesses (who testified that S2C did not seem to be an

effective means of communication for A.L.) more credible than Plaintiffs’ witnesses (who

testified that S2C was an effective means of communication for A.L.). (ODR0030–33.)

Specifically, the Hearing Officer found Dr. Robbins’s testimony “not credible or persuasive

because [she] was extremely evasive on cross-examination.” (ODR0032.) He found

Ms. Chaplick’s testimony less persuasive because “her testimony was elicited especially on

redirect examination through the use of very leading questions.” (ODR0033.) He felt that

§ 300.502 because she evaluated the S2C method, not A.L. (See ODR2034 (A.L.’s mother requesting “an

independent evaluation of these [S2C] strategies by a mutually agreed upon third party”).)

A.L.’s mother’s testimony was “impaired by her admission that she encourages the student

during letter board sessions.” (Id.) And he determined that Dr. Ross’s credibility was “impaired

by her testimony that she consults with the parents concerning medicine changes for the student

despite the fact that the student is an adult and can allegedly communicate with the S2C letter

board.” (Id.)

Where a hearing officer makes credibility determinations about witnesses after hearing

live testimony, the court “must accept the hearing officer’s credibility determinations unless the

non-testimonial, extrinsic evidence in the record would justify a contrary conclusion.” D.S. v.

Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d Cir. 2010) (cleaned up). Plaintiffs argue that the

Court should disregard the Hearing Officer’s credibility determinations because extrinsic

evidence, including A.L.’s own testimony and the videos of A.L. using S2C, demonstrates the

effectiveness of the method and corroborates Plaintiffs’ witnesses’ testimony. (Doc. No. 65-3 at

22–23.)

The Court agrees with Plaintiffs that these credibility determinations are sweeping and

not necessarily supported by the testimonial evidence. But critically, there is no extrinsic

evidence in the record to rebut these conclusions. As discussed in greater detail below, the non-

testimonial evidence in the record demonstrates that S2C is not an effective means of

communication for A.L. S2C is not research based (ODR1930); ASHA has issued a position

statement that communication methods such as S2C are “not recommended because of prompt

dependency” (ODR2813); and A.L. is unable to communicate effectively with a letterboard

unless there is a communication partner guiding his answers (ODR0221). The Court is thus

bound to adopt the Hearing Officer’s credibility determinations and gives slightly less weight to

the testimony of Dr. Robbins, Ms. Chaplick, A.L.’s mother, and Dr. Ross. See Jalen Z. v. Sch.

Dist. of Phila., 104 F. Supp. 3d 660, 674 (E.D. Pa. 2015).

After considering the testimonial and non-testimonial evidence (and giving less weight to

the testimony of certain of Plaintiffs’ witnesses), the Hearing Officer determined that S2C was

not an effective means of communication for A.L. and therefore the District did not deny A.L. a

FAPE by refusing to implement S2C, A.L.’s preferred communication method. (ODR0029–33.)

The Court agrees that the Hearing Officer’s conclusion is supported by the record and

supplemental evidence. The fact that S2C is not research based and ASHA’s position statement

certainly support the District’s decision not to implement S2C, but the most compelling pieces of

evidence are the District’s personnel’s first-hand observations of A.L. using S2C. Significantly,

the District’s personnel consisted of educators and staff, many of whom had worked closely and

developed close relationships with A.L. over the years, and all of whom were dedicated to

helping him achieve his fullest potential. Ms. Grimley, the District’s speech-language

pathologist, observed A.L. using S2C in December 2017. (ODR0105.) She testified that A.L.’s

communication partner “us[ed] prompts” and would say things like “closer, go get it, left, up,

down, while he was poking the letters.” (Id.) Ms. Van Horn, A.L.’s reading teacher, had a

similar experience when she observed A.L. using S2C. (ODR0090.) She noted that he was

“flubbled” and unable to provide the correct answers. (Id.) Yet, when his communication

partner received the answer key, A.L. started answering the questions correctly, which troubled

Ms. Van Horn and suggested to her that A.L.’s communication partner was guiding him to the

correct answer. (Id.)

And the efficacy of S2C is also called into doubt by the fact that A.L. is unable to

communicate on the letterboard without a communication partner holding the board. A.L.’s own

experts could not explain why A.L. needed a communication partner to hold the letterboard

rather than have it placed on an easel in his line of sight, which calls into question whether S2C

truly represents A.L.’s authentic voice. (ODR0059 (A.L.’s pediatrician testifying that A.L. is

unable to spell on the letterboard without the assistance of a communication partner).) Similarly,

Plaintiffs suggest that the point of the S2C training is to ensure that the communication partner

has a good rapport with the speaker. (Id.) But it is unclear then why Mr. Borsch, A.L.’s special

education teacher, or Ms. Van Horn, A.L.’s reading teacher, both of whom already had a strong

rapport with A.L., needed to be trained in the method if the purpose of the training is simply to

establish that rapport. And it is troubling that these experienced educators were unable to

successfully use the method with A.L. after having received three days of training. (Id.;

ODR0077.)

The Court has also reviewed the videos of A.L. using the S2C methodology and finds

these videos further support the District’s conclusion that S2C was not A.L.’s authentic voice.

The videos show A.L. doing homework or working through lessons with various communication

partners, including his mother and his father. In the “Letter to the District” video, A.L. drafts a

letter to the District with his communication partner Emily. (Doc. No. 38-2 at 9, Ex. P-45.)

Sometimes Emily repeats the letters out after A.L. spells them; sometimes she does not.

(Compare id. at 7:30–8:28 with id. at 16:01–17:03.) About five minutes into the video, A.L.

begins spelling gibberish, and Emily pulls the board away and tells him to “take his time.” (Id.

at 5:10–5:15.) In the “Homework” video, A.L. is working through a history worksheet with his

mother. (Doc. No. 38-2 at 9, Ex. P-48.) A.L.’s mother reads multiple choice questions and

answers A through D aloud and then holds up a letterboard for A.L. to spell his response. (Id. at

2:22–35.) A.L. answers several questions correctly. (Id. at 2:42.) A few minutes in, however,

A.L. incorrectly points to the letter “D.” (Id.) His mother does not respond and instead pulls the

letterboard over so that he is then pointing at the letter “C,” the correct answer; she proceeds to

praise him for answering correctly. (Id. at 3:00–04.) They then move on to fill-in-the-blank

questions. (Id. at 4:00.) The answer to one of the questions is “Japan.” (Id. at 4:08.) A.L.

begins responding by pointing to “G” and then “F.” (Id. at 4:08–11.) His mother pulls the

letterboard away to “reset” it. (Id. at 4:11.) When she puts the board back, he starts pointing to

“A.” (Id.) She pulls the board again and re-asks the question. (Id. at 4:12.) He points to “G,”

“L,” “P,” and “E,” but his mother leaves the board in place. (Id. at 4:25–28.) When he gets

close to “J,” his mother repeats the letter “J,” drawing out the word for a while (“Jayyyyyyyy”),

and waves A.L. back toward the “J” on the board. (Id. at 4:28.) Once A.L. points at “J,” his

mother moves her hand to the left (in the direction of “A”), and he points to “A.” (Id. at 4:29.)

She then moves her hand down toward “P”; he points to “P”; she moves her hand back up to

“A”; he points to “A”; she moves her hand over toward “N”; and he points to “N.” (Id. at 4:29–

37.) Based on these videos, it appears to the Court that A.L.’s communication partners are, to

some degree, guiding him to the correct answer, which suggests that S2C is not A.L.’s own voice

and supports the District’s decision not to implement the method.

The Court acknowledges A.L.’s testimony that S2C is an effective means of

communication for him (Doc. No. 65-2 ¶ 27) and the testimony of Plaintiffs’ witnesses to the

same effect (giving less weight to the testimony of the four witnesses whose credibility the

Hearing Officer questioned) (see ODR 0047–229). But that does not outweigh the bulk of the

evidence, which goes to the contrary. Accordingly, the Court finds that the Hearing Officer’s

conclusions that S2C is not an effective means of communication is supported by the evidence

and agrees that the District did not deny A.L. a FAPE by refusing to implement the method. See

Greenwood v. Wissahickon Sch. Dist., 571 F. Supp. 2d 654, 663 (E.D. Pa. 2008) (holding that a

school district was not required to implement facilitated communication to offer the student a

FAPE under the IDEA because “the evidence does not show that Angela can effectively

communicate utilizing facilitated communication”).

Methodology. The Hearing Officer also concluded that the District was not required to

implement the S2C method because hearing officers and parents are not permitted to second

guess a school district’s decision about which methodology to implement to address a disabled

student’s needs. (ODR0028–29.) The Hearing Officer relied heavily on the Third Circuit’s

decision in Ridley School District v. M.R., 680 F.3d 260 (3d Cir. 2012), in deferring to the

District’s choice of methodology. (ODR0027–29.)

In Ridley, the student struggled with reading, and the school district issued an IEP

proposing to adopt the Project Read program to help the student get back on track. Ridley, 680

F.3d at 266. The parents rejected the IEP and initiated a due process hearing because they

wanted the school to implement The Wilson Reading System instead. Id. at 278. The Third

Circuit affirmed the district court’s ruling that the student’s IEP was sufficient even though the

parents disagreed with the program adopted. Id. at 275. The Third Circuit explained that “courts

must accord significant deference to the choices made by school officials as to what constitutes

an appropriate program for each student” and underscored that school districts are “not required

to . . . implement the specific program requested by Parents.” Id. at 275, 277.

Here, as in Ridley, the District chose not to implement the S2C method but allowed A.L.

to use different methods of communication, such as typing and unassisted letterboarding.

(ODR1499.) The District “was not required . . . to implement the specific program requested by

[A.L.’s parents].” Ridley, 680 F.3d at 275. And it is not the parents’, the Hearing Officer’s, or

this Court’s role to second guess the communication methodologies the District chose to

implement. Id. at 277. “[S]chool districts have ‘the primary responsibility for formulating the

education to be accorded a handicapped child, and for choosing the educational method most

suitable to the child’s needs.’” Id. at 279 (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch.

Dist., Westchester Cty., v. Rowley, 458 U.S. 176, 208 (1982)) (emphasis added). The District

researched and observed the method and (justifiably) did not think S2C a suitable—let alone the

most suitable—method of communication for A.L, so it was not required to implement the S2C

method. See T.L. v. Lower Merion Sch. Dist., CIVIL ACTION NO. 15-0885, 2016 WL

3405453, at *17 (E.D. Pa. June 20, 2016) (holding that a school district did not violate the IDEA

in declining to implement the parents’ preferred reading program because the program the school

implemented provided the student with “meaningful educational benefits in light of [his]

intellectual potential and individual abilities”); cf. T.M. ex rel. T.M. v. Quakertown Cmty. Sch.

Dist., 251 F. Supp. 3d 792, 802 (E.D. Pa. 2017) (“The VB–MAPP is only one type of evaluation

method. The IDEA does not obligate a school district to use a particular methodology to

evaluate a student's intellectual potential.”).

Plaintiffs attempt to distinguish Ridley by claiming that S2C is A.L.’s only effective

method of communication, so the alternative methods the District implemented were necessarily

unsuitable for A.L. (Doc. No. 65-3 at 15–16.) But this argument is unpersuasive because the

District allowed A.L. to communicate via typing, and the record demonstrates that A.L. is a

skilled typist. (See ODR0102 (the District’s psychologist testifying that she “knew from

discussion and from history that [A.L.] was a very good typist”); ODR0109 (the District’s

speech-language pathologist testifying that A.L. “actually does really well with keyboarding, he

can keyboard his ideas, things he wants using the laptop”); ODR0183 (A.L.’s communication

partner testifying that A.L. “also spell[s] on a keyboard”); ODR0222 (A.L.’s special education

teacher testifying that “he could type extremely well” and that “[m]ost of his activities were

typed in some regard or another, because [the district] knew that was his strength”); ODR0233

(A.L.’s private reading tutor describing his typing as “phenomenal”); ODR0984 (November

2017 IEP stating that “[A.L.] has made significant progress with his writing and is a fluid

typer”).) A.L. also progressed to the point of being able to audit regular education classes

without the use of S2C in the classroom setting. (ODR0212.)17

* * *

The record and supplemental evidence support the Hearing Officer’s conclusion that the

District was not required to implement S2C because it was not an effective means of

communication for A.L.

iii. The District Did Not Err in Failing to Set Academic

Goals Despite A.L.’s Enrollment in Regular Education

Classes

Third, Plaintiffs argue that the District denied A.L. a FAPE because it allowed A.L. to

participate in regular education courses but did not set any goals to measure his academic and

social development in those courses. (Doc. No. 65-3 at 18.) The IDEA mandates that a

student’s IEP “set out ‘measurable annual goals, including academic and functional goals,’ along

with a ‘description of how the child’s progress toward meeting’ those goals will be gauged.”

Endrew F., 137 S. Ct. at 994 (citing 20 U.S.C. § 1414(d)(1)(A))). A district’s failure to set

measurable annual goals constitutes a procedural violation of the IDEA, but plaintiffs are entitled

17 In Ridley, the Third Circuit also underscored the importance of peer-reviewed research in

determining the appropriateness of programs designed for students. Id. at 279; see also id. at 277

(acknowledging that schools “should strive to base a student’s specially designed instruction on peer-

reviewed research to the maximum extent possible”). Although the Third Circuit declined to set forth a

bright-line rule that schools can implement programs only if they are research based, the discussion in

Ridley illustrates the Third Circuit’s preference for research-based programs, further supporting the

District’s decision not to implement S2C because it is not research based.

to recover for such violations only if they “impede[] the child’s right to a free appropriate public

education.” Rodrigues v. Fort Lee Bd. of Educ., 458 F. App’x 124, 127 (3d Cir. 2011); see also

G.N. v. Bd. of Educ. of Twp. Of Livingston, Civil Action No. 05–3325 (JAG), 2007 WL 2265035,

at *7–8 (D.N.J. Aug. 6, 2007) (“The failure to include goals and objectives violates IDEA.

However, to elevate this failing to a denial of a FAPE would be elevating form over substance.

The true question is whether the failure to include goals and objectives 1) resulted in the loss of

educational opportunity, or 2) seriously infringed the parents’ opportunity to participate in the

process.”).

Beginning in the fall of 2017, A.L.’s IEP provided for him to audit regular education U.S.

history and health courses. (ODR0850.) Although A.L. was auditing these courses, his IEP did

not include any academic goals to gauge his progress in the courses specifically. (See generally

ODR0844–915.) Even without set goals, the District monitored A.L.’s progress in these courses:

His IEPs detailed the percentage of time he remained “on-task”—or “in class, in seat, quiet, and

follow[ing] aide directions”—in the audited courses. (See, e.g., ODR0985.) And his regular

education teachers provided regular written updates on A.L.’s progress that were included in his

IEP. (See, e.g. id. (update from A.L.’s health teacher indicating that A.L. was enrolled in the

course “to help promote a healthy lifestyle,” noting that A.L. had “some peer interactions” but

had “difficulty reciprocating a response,” and memorializing A.L.’s behaviors (both positive and

disruptive) in class); ODR0986 (update from A.L.’s history teacher noting that he “is able to

remain in the class for the entire period with support from his instructional aide,” indicating that

he “will make utterances or noises on average once every couple of minutes,” and stating that he

“has been able to keep pace with the current academic assignment[s]”).)

The Hearing Officer acknowledged that the District may have committed a procedural

violation by failing to include goals related to the regular education courses A.L. was auditing

but concluded that A.L.’s IEPs “were reasonably calculated, in view of the student’s individual

circumstances, to permit the student to make meaningful educational progress,” so the Hearing

Officer found that the District did not violate the IDEA. (ODR0031–32.) The Hearing Officer

largely based this conclusion on hindsight evidence that A.L. “made substantial progress under

the IEPs in effect from February 27, 2017 through the end of the 2017–2018 school year.”

(ODR0031.)

As a threshold matter, the Court finds that the Hearing Officer erred in basing this

conclusion on evidence of A.L.’s progress after the IEPs were issued. The Third Circuit has

made clear that hearing officers and district courts are to assess whether an IEP provides a FAPE

“as of the time it is offered to the student, and not at some later date.” Fuhrmann v. E. Hanover

Bd. of Educ., 993 F. 2d 1031, 1040 (3d Cir. 1993). “[S]o long as the IEP responds to the

[student’s] needs, its ultimate success or failure cannot retroactively render it [appropriate or]

inappropriate.” Carlisle Area Sch. v. Scott P. ex rel. Bess P., 62 F.3d 520, 534 (3d Cir. 1995);

see also K.D., 904 F.3d at 255 (holding that a court “may not rely on hindsight to second-guess

an educational program that was reasonable at the time”).

Although the Hearing Officer should not have based his conclusion on hindsight

evidence, the Court agrees that A.L.’s IEPs were reasonably calculated to provide him with a

FAPE even though they did not set specific goals to measure his progress in the regular

education courses. A.L. was not taking these courses for credit—he was auditing them “to

determine how well [he] can handle the rigor in the regular education environment as well as

work on socialization and develop greater executive functioning skills.” (ODR0982.) The

District closely monitored A.L.’s progress in the courses he was auditing, including by tracking

his time on task in each class and soliciting regular updates from the teachers. (ODR0986.)

Moreover, A.L.’s IEPs set forth his present levels and included functional goals related to the

other courses he was taking and aimed at the ultimate goal of helping A.L. transition into the

community upon the conclusion of his education. (ODR0853–54.) For instance, his November

2017 IEP included goals related to his basic math class, where he learned to budget and calculate

prices at grocery stores. (ODR0854.) It also included reading and writing goals, such as a goal

that A.L. would “write/type his daily activities with support using a fill in the blank worksheet

with 100% accuracy.” (ODR0855.)

Despite the District’s procedural violation in failing to set academic and social goals to

measure A.L.’s progress in the regular education courses, A.L.’s IEP contained a sufficient

number of other goals and specially designed instructions aimed at providing him with the

fullest, most effective education possible. Accordingly, the District’s decision not to set goals

specific to A.L.’s time auditing the regular education classes did not impede on A.L.’s right to a

FAPE. See H.G. ex rel. Davis v. Upper Dublin Sch. Dist., No. Civ. A. 13–1976, 2015 WL

1808538, at *18 (E.D. Pa. Apr. 17, 2015) (holding that an IEP provided a FAPE even though it

did not articulate goals because it nevertheless “provide[d] access to meaningful educational

benefits”); Rodrigues v. Fort Lee Bd. of Educ., Civil Action No. 2:08–cv–05736 (SDW)(MCA),

2011 WL 486151, at *7 (D.N.J. Feb. 7, 2011), aff’d 581 F. App’x 141 (3d Cir. 2011)

(acknowledging that the school committed procedural violations when it failed to set goals but

concluding that the failures “did not rise to the level of a substantive deprivation”); G.N., 2007

WL 2265035, at *7–8 (“[T]he lack of goals and objectives did not result in the loss of

educational opportunity.”).

* * *

The District refused to allow A.L. to use S2C in an academic setting after thoroughly

investigating the method and determining that it was not effective. The District also provided

A.L. with IEPs that set reasonable goals and provided specially designed instructions crafted to

allow A.L. to succeed to the fullest extent possible given his intellectual capabilities. Based on

this, the Hearing Officer correctly determined that the District provided A.L. with a FAPE, and

because the District provided A.L. with a FAPE, he is not entitled to compensatory education or

tuition reimbursement.

b. Plaintiffs Waived the Argument that the District Did Not

Educate A.L. in the Least Restrictive Environment

Plaintiffs also argue that the District violated the IDEA by failing to educate A.L. in the

least restrictive argument. (Doc. No. 65-3 at 18–19.) The IDEA includes a “mainstreaming

component,” which “requires that a disabled child be placed in the least restrictive environment

that will provide him with a meaningful educational benefit.” L.E. v. Ramsey Bd. of Educ., 435

F.3d 384, 390 (3d Cir. 2006). “The least restrictive environment is the one that, to the greatest

extent possible, satisfactorily educates disabled children together with children who are not

disabled, in the same school the disabled child would attend if the child were not disabled.”

Carlisle Area Sch., 62 F.3d at 535.

Plaintiffs raise this argument for the first time in their motion for judgment on the

administrative record: they did not raise it before the Hearing Officer, nor did they raise it in

their complaint appealing the Hearing Officer’s decision. (See ODR0008–40; Doc. No. 1

¶¶ 114–28.) Because Plaintiffs did not raise this argument before the Hearing Officer, the Court

declines to consider it for the first time on appeal. See L.B. ex rel. R.B. v. Radnor Twp. Sch.

Dist., CIVIL ACTION No. 20-1768, 2021 WL 1224077, at *13 (E.D. Pa. Apr. 1, 2021)

(“[B]ecause Plaintiff did not administratively exhaust its claims concerning the goals contained

in L.B.’s IEPs, the Court does not have jurisdiction to rule on those issues.”); D.C. v. Mount

Olive Twp. Bd. of Educ., Civil No. 12–5592 (KSH), 2014 WL 1293534, at *21 (D.N.J. Mar. 31,

2014) (“[S]everal of the plaintiffs’ present arguments were not presented to the agency either in

form or in spirit, and thus cannot fairly be deemed exhausted . . . .”); Centennial Sch. Dist. v.

Phil L. ex rel. Matthew L., 799 F. Supp. 2d 473, 480 n.3 (E.D. Pa. 2011) (declining to consider

argument that the parents “did not explicitly raise . . . at the due process hearing”).

c. The Hearing Officer Did Not Err in Declining to Reimburse

Plaintiffs for the Private Evaluation

Plaintiffs also argue that the Hearing Officer erred in failing to reimburse A.L.’s parents

for Dr. Robbins’s evaluation. (Doc. No. 65-3 at 21.) In October 2017, A.L.’s mother emailed

Ms. Serpentine and Mr. Borsch to “discuss moving forward” with S2C and said that she and

A.L.’s father “would like to further explore . . . hav[ing] an independent evaluation of the

effectiveness of [S2C] by a mutually agreed upon third party.” (ODR2034.) The Hearing

Officer denied Plaintiffs’ request to be reimbursed for this evaluation on the ground that this

request “was not really a request for an independent educational evaluation as that term is used in

special education law” but, rather, a request that the District “evaluate or study the Spelling to

Communicate methodology.” (ODR0035–36.)

We agree with the Hearing Officer.18 “The parents of a child with a disability have the

18 Although the Hearing Officer concluded that A.L.’s parents did not request an independent

evaluation as contemplated by the IDEA regulations, he continued his analysis. (ODR0036.) He noted,

in dicta, that had the parents’ request been proper, the district “erred when it did not file for a due process

hearing after receipt of the parents’ request” (in violation of 34 C.F.R. § 300.502(b)(1)) but concluded

that A.L.’s parents were nevertheless not entitled to reimbursement because the District’s failure to do so

was “clearly harmless.” (Id.)

This conclusion is incorrect as a matter of law—there is no “clearly harmless” exception to the

reimbursement available under 34 C.F.R. § 300.502. If A.L.’s parents had requested to be reimbursed for

a private evaluation of A.L. and the District had failed to reimburse them or file for a due process hearing,

the District would have been in violation of the regulations and would be obligated to reimburse A.L.’s

parents. M.P. ex rel. V.C. v. Parkland Sch. Dist., No. 5:20-cv-04447, 2021 WL 3771814, at *17 (E.D. Pa.

right . . . to obtain an independent educational evaluation of the child . . . .” 34 C.F.R.

§ 300.502(a)(1) (emphasis added). But A.L.’s parents were not seeking an evaluation of A.L.;

they were seeking an evaluation of S2C. (See ODR2034 (A.L.’s mother requesting “an

independent evaluation of these [S2C] strategies by a mutually agreed upon third party”).)

Moreover, parents are entitled to reimbursement for private evaluations of their children

only “if the parent disagrees with an evaluation obtained by the public agency.” 34 C.F.R.

§ 300.502(b)(1). It does not matter whether this disagreement arises before or after the parents

seek the private evaluation, see Warren G. v. Cumberland Cty. Sch. Dist., 190 F.3d 80, 87 (3d

Cir. 1999), but some disagreement must arise at some point for the parents to be entitled to

reimbursement at the public’s expense, see M.S. v. Hillsborough Twp. Pub. Sch. Dist., 793 F.

App’x 91, 93 (3d Cir. 2019). A.L.’s parents did not express disagreement with the District’s

evaluation of A.L., only with the District’s reluctance to implement S2C. (See ODR2034.)

Because A.L.’s parents did not request an independent evaluation of A.L. and did not

disagree with the District’s evaluation of A.L., they are not entitled to reimbursement for Dr.

Robbins’s evaluation.

B. Section 504 and ADA Claims

Plaintiffs also bring claims under Section 504 and the ADA, alleging that the District

discriminated against A.L. on the basis of his disability by refusing to implement S2C. The

Hearing Officer found that he did not have jurisdiction over the ADA claim but nevertheless

concluded that the District’s decision not to implement S2C did not violate Section 504 or the

ADA, particularly in light of the District’s concerns that the method was not peer reviewed and

did not represent A.L.’s authentic voice. (ODR0038–40.)

Aug. 25, 2021).

Section 504 and ADA claims are governed by the same standard, see McDonald v. Pa.

Dep’t of Pub. Welfare, 62 F.3d 92, 95 (3d Cir. 1995), so the Court will consider them together.

To prevail on a claim brought under either statute, plaintiffs must demonstrate that the student

“(1) has a disability; (2) was otherwise qualified to participate in a school program; and (3) was

denied the benefits of the program or was otherwise subject to discrimination because of her

disability.” Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 189 (3d Cir. 2009).

The parties agree that the first two prongs are satisfied; the only dispute is whether, by refusing

to allow A.L. to use S2C in school, the District denied A.L. benefits of the program or otherwise

subjected to discrimination because of his disability. (Doc. No. 64-88 at 9.19)

Plaintiffs argue the District discriminated against A.L. by refusing to allow him to use

S2C and claim the District admitted as much by permitting A.L. to “bring a letter board and

communication partner to school” as a reasonable accommodation under the ADA in November

2018. (Id. at 11–12.) The District argues it was not required to implement a method of

communication that was not supported by research and that it did not think was effective for A.L.

(Doc. No. 63-2 at 16–17.)

As an initial matter, this Court has already determined in the opinion on the cross-

motions for summary judgment that Plaintiffs’ Section 504 and ADA claims “arise[] out of the

District’s alleged denial of a FAPE.” J.L., 2021 WL 6072815, at *7. And we have already

19 Plaintiffs did not make any arguments regarding the Section 504 and ADA claims in their

briefing on the cross-motions for judgment on the administrative record; they did, however, raise

arguments regarding these claims in connection with the cross-motions for summary judgment. (See Doc.

No. 64-88.) Because the Section 504 and ADA claims arise out of a purported denial of a FAPE, the

Court declined to consider the merits of the Section 504 and ADA claims on summary judgment and held

that we would consider the Section 504 and ADA claims “on appeal from the hearing officer’s decision.”

J.L., 2021 WL 6072815, at *9. Accordingly, the Court now considers the arguments Plaintiffs raised in

their summary judgment briefing to the extent those arguments are based on evidence available in the

administrative record.

determined that the District did not deny A.L. a FAPE, see supra Section III.A.2.a, so Plaintiffs

are not entitled to relief under Section 504 or the ADA. See Richard S. v. Wissahickon Sch.

Dist., 334 F. App’x 508, 509 n.1 (3d Cir. 2009) (“Appellants’ § 504 and IDEA claims are

factually indistinguishable, and the resolution of the IDEA claim is therefore also dispositive of

the § 504 claim.”); Zachary J. v. Colonial Sch. Dist., CIVIL ACTION NO. 19-652, 2021 WL

6072815, at *14 (E.D. Pa. Feb. 24, 2022) (“Plaintiffs failed to establish that Zachary was denied

a FAPE. The administrative record fails to establish that any benefits were denied or that

discrimination occurred. For these reasons, Plaintiffs’ Section 504 and ADA claims fail.”);

Gwendolynne S. ex rel. Judy S. v. W. Chester Area Sch. Dist., No. 19-cv-3844-JMY, 2021 WL

949483, at *14 (E.D. Pa. Mar. 12, 2021) (“Plaintiffs failed to establish that Gwendolynne was

denied a free, appropriate education, [so] the Section 504 and ADA claims fail.”).

Even if the Section 504 and ADA claims were not FAPE based, Plaintiffs have

nevertheless failed to establish that A.L. was discriminated against on the basis of his disability.

The ADA’s “effective communications” regulation requires public entities “to ensure that

communications with [students] with disabilities are as effective as communications with

others.” 28 C.F.R. § 35.160(a). To this end, schools must “furnish appropriate auxiliary aids

and services where necessary to afford individuals with disabilities . . . an equal opportunity to

participate in, and enjoy the benefits of, a service, program, or activity of [the school].” Id.

§ 35.160(b)(1). “In determining what type of auxiliary aid and service is necessary, a public

entity shall give primary consideration to the requests of individuals with disabilities.” Id.

§ 35.160(b)(2). “‘Primary consideration’ means that the public entity shall honor the choice of

the individual with a disability unless it can demonstrate that another equally effective means of

communication is available, or that the request would result in a fundamental alteration . . . .”

Fairfield (CT) Bd. of Educ., 72 IDELR 165, 859 (OCR 2018). Put differently, although schools

are to give primary consideration to the individual’s preferred method of communication, they

may implement an alternative method so long as “the alternative aid/or service provided [is]

effective.” Chisolm v. McManimon, 275 F.3d 315, 327 (3d Cir. 2001).

The U.S. Department of Education’s Office for Civil Rights’s decision in Fairfield (CT)

Bd. of Educ., 72 IDELR 165 (OCR 2018), is instructive. In Fairfield (CT) Board of Education,

the student–complainant used a facilitated communication method similar to S2C: her parents

would “hold the board mid-air”; she “would point to letters spelling out words”; and occasionally

her parents “would ‘reset’ the board by taking it away briefly, or would reshape the Student’s

hand.” Id. at 857. The student requested to use the letterboard and a communication partner at

school to communicate with her teachers and peers. Id. The district allowed the student to use

the letterboard but “decided that the board should remain stationary” and should not be held in

the air by a communication partner. Id. at 858. The district explained that it wanted the board to

remain stationary “to insure that the communication and spelling was actually [the Student’s]

and not inadvertently the communication partner’s.” Id. The district reported that its concern

was based on “training, experience, and the lack of research supporting the use of an adult

communication partner holding a letterboard.” Id. The Office of Civil Rights concluded that the

district’s decision barring the student from using a letterboard with a communication partner did

not violate the ADA because “the District’s denial was grounded in credible concerns that

granting the request could constitute a fundamental alteration to the Student’s education

program.” Id. at 859.

The facts here are nearly identical. The District declined A.L.’s request to use his

preferred communication method, S2C, because the method was not research based and the

District had serious concerns that it was not A.L.’s authentic voice. The District also provided

A.L. with alternative communication methods, such as typing, which had proven effective and

had enabled A.L. to be in a position by his junior year to audit two regular education classes.

And the District allowed A.L. to use his letterboard, just without the assistance of a

communication partner holding the letterboard. The District is not required to implement a

communication that has not been shown effective.20 See Hahn ex rel. Barta v. Linn County,

Iowa, 191 F. Supp. 2d 1051, 1064 (N.D. Iowa 2002) (“In light of the court’s finding that Mr.

Hahn is not communicating through the use of [facilitated communication], [facilitated

communication] is not an effective means of communication for Mr. Hahn in particular;

therefore, neither federal nor state law requires the defendants to provide it.”). The fact that, in

November 2018, the District permitted A.L. to use S2C “as a reasonable accommodation under

the ADA” does not change this analysis. The District made this change about a month after A.L.

had already stopped attending school. (Doc. No. 89 at 33–34.) They “did not want him to be

home” because they felt “that him being home was detrimental to him,” so they offered this

accommodation “as a concession” in an attempt to get him to come back to school—not because

they thought it an effective method of communication. (Id. at 34 (“[The District felt that] using

the spelling to communicate was detrimental but it was more detrimental for him not to be in

school.”).)

In sum, Plaintiffs’ Section 504 and ADA claims arise out of allegations that he was

denied access to his education, not to the school; accordingly, his claims arise out of denial of a

FAPE. But the District offered A.L. a FAPE, so the claims fail. And even if the claims were not

20 As discussed in detail above, Plaintiffs have not adduced evidence to demonstrate the efficacy

of the S2C method, particularly in light of the credible testimony of District staff who observed A.L.

using the method and believed that A.L. was being guided or prompted while using the methodology.

FAPE based, they would nevertheless fail because neither Section 504 nor the ADA requires

schools to implement an unproven, ineffective means of communication, even if it is the

student’s preferred method. Plaintiffs have thus failed to establish their Section 504 and ADA

claims, and the Court grants the District’s motion for judgment on the administrative record.

IV. CONCLUSION

For the reasons above, Plaintiffs’ motion for judgment on the administrative record is

denied, and the District’s motion for judgment on the administrative record is granted.

An appropriate Order follows.