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On February 2, 1994, in Gerstmyer v. Howard County Public Schools, 850 F. Supp. 361, 20 IDELR 1327, (D. MD 1994), the Honorable J. Frederick Motz, Judge, United States District Court ordered Howard County to reimburse the Gerstmyers their costs for their son’s private school education in a non special ed program. Judge Motz held that the U. S. Supreme Court decision in Florence County School District Four v. Shannon Carter required reimbursement since the public school defaulted in their obligation to provide Alex with an appropriate special education. Of special interest is that the parents lost at the Due Process Hearing level, lost at the Review Hearing and, at the District Court trial level, no new evidence or testimony was submitted. Parent’s counsel, Wayne Steedman (410-821-6567) filed a Motion for Summary Judgment based upon the Carter "default" theory. The Judge agreed and granted the Motion based upon his review of the transcript and exhibits.

In the Spring of 1991, Alex was in a public school Kindergarten class half day and Montessori program the rest of the day. His mother talked with the public school teacher and said "that something was missing in Alex." (Decision, page 2.) The teacher said that "reading ‘just hadn’t clicked with him yet’ and that she should give him more time and not to worry. Approximately three weeks later, Alex’s teacher at Montessori called his mother about his reading, told her that he was having difficulties in processing and suggested that he be tested." (Page 2.)

Immediately thereafter, on May 17, 1991 Mrs. Gerstmyer requested special education testing for her son who had just turned six. She called on three different occasions and then was told that "it was the summertime, we don’t test during the summertime, we have a lot of budget cuts, we are unable to do it." The mother was also told that they probably would not be able to eval-uate her child until October. The parents obtained a private evaluation in July, 1991 and it was found that Alex has a very high IQ (145) but also had a "learning disability known as "Specific Developmental Dyslexia. The psychol-ogist, Roger Saunders in Baltimore, Maryland recommended that Alex be taught using the Orton-Gillingham method, a highly-structured phonetic approach to reading and writing." (Page 3)

Mrs. Gerstmyer provided the report to the school and met with the public school principal on August 5, 1991 who said "that many times children are said to be dyslexic but that their teachers are able to work with them successfully." (Page 3-4)

Alex began school on September 3, 1991. Immediately, that first week, he told his mother "’I’m stupid, I cannot do the work, I do not understand what’s going on.’ According to Mrs. Gerstmyer’s testimony, within days Alex ‘was literally a time bomb when he walked in the door (home from school).’" (Page 4)

Judge Motz noted that "Alex’ pattern of behavior continued at home throughout September and October... at school Alex remained well behaved... Alex never expressed to (his first grade classroom teacher) that he did not want to come to school or that he did not like school." (Page 5)

Even though the school system had Roger Saunders psychological evaluation since August 5, they said they needed to do additional testing. The meeting was continued from September 25 to October 23. By the 23rd, testing still had not been done and the meeting was reset for October 30. The trial Judge gave specific attention to the dates and noted that the testing was done on October 28. He stated that "This testing confirmed what Mr. Saunders’ testing had established and resulted in no additional significant information." (Page 6)

An IEP meeting was held on November 4. Judge Motz described it as follows:

"The evidence establishes, however, that, in fact, Ms. Ebron had merely assembled portions of IEPs that had been developed for other students and written Alex’s name on the top. Although the record further establishes that the general goals of the IEP were appropriate (at least over time), the contents of the plan were not at all specific to Alex." (Page 7)

On November 5, 1991 "the Gerstmyers took Alex out of Clemons Crossing and enrolled him at the Montessori school. Alex’s attitude toward school and behavior almost immediately changed... He was taught reading both by his regular Montessori teacher and by a resource teacher (not specifically trained in Montessori methods) at the school. Although neither of the teachers specifically used the Orton-Gillingham method recommended by Mr. Saunders, they emphasized phonetics and minimized reliance upon sight words that caused frustration to Alex." (Page 7)

In applying the facts to the law, Judge Motz stated that: "A child is deprived of a free appropriate public education under either of two sets of circum-stances: first, if the school system has violated the IDEA’s procedural requirements to such an extent that the violations are serious and detri-mentally impact upon the child’s right to free public education or, second, if the IEP that is developed by the school is not reasonably calculated to enable the child to receive educational benefits... Here, plaintiffs (Gerstmyers) have demonstrated the existence of both sets of circumstances." (Page 9)

Judge Motz stated that "assessments shall be completed within forty-five calendar days of referral. Howard County Public Schools conceded this viola-tion and reimbursed the Gerstmyers for the fee charged by Mr. Saunders for testing Alex." (Page 10) The Court noted that an IEP was not completed within thirty days of the August 5th determination that Alex needed special education. He noted that the additional testing "proved to be superfluous and unnecessary." (Page 10) Judge Motz found that the IEP "was nothing more than a collection of forms prepared for other students stating only general goals and not at all tailored to Alex’s special needs." (Page 11)

The Court noted that Alex suffered a loss of "educational opportunity" during the first months in the public school. (Page 12) In describing the parent’s conduct, Judge Motz said "The following day the Gerstmyers did what any reasonably prudent parent who could afford to do so would do: they withdrew Alex from Clemons Crossing and placed him in a private school where they had reason to believe that he would receive more individualized attention. In taking this action, they were simply vindicating their rights under the IDEA... (the school officials) had been notified almost four months before Alex’s first grade year was to commence that he needed an evaluation for a possible learning disability but almost six months thereafter had failed to formulate an IEP that was ‘individualized’ in anything but name only." (Page 11)

The Court, in citing the recent November 9, 1993 unanimous 34 day ruling by the U. S. Supreme Court in Florence County School District Four v. Shannon Carter stated that "the Supreme Court has now expressly ruled that it is not necessary that the private school be approved by the state in order to entitle the plaintiff to reimbursement."

In other words, Judge Motz, in what appears to be the first reported decision since Carter that focuses not on tuition for a private special ed school, but tuition reimbursement for a private school, has concluded that if the public school defaults in their obligation to provide an appropriate special education for a special ed child under IDEA, then, if the parent secures an appropriate education from the private sector, even if the private school is not a special ed school like Trident as in Carter, the parent still is entitled to reimbursement for the private school tuition!

Case summarized by Pete Wright
Counsel for Shannon Carter, Deltaville, VA 23043

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