Bermudian Springs School District | Case 2162-11-12 | 2011-09-23

PENNSYLVANIA SPECIAL EDUCATION HEARING OFFICER Shawn D. Lochinger, Esq., PO Box 1146, Harrisburg, Pennsylvania 17108-1146 (Phone) 717-231-6696; (Fax) 717-238-8622; (E-Mail) slochinger@rhoads-sinon.com This is a redacted version of the original decision. Select details have been removed from the decision to preserve anonymity of the student. The redactions do not affect the substance of the document. DECISION Child’s Name: G. M. Date of Birth: [redacted] Date of Hearing: August 24, 2011 OPEN HEARING ODR No. 2162 / 11-12 KE Parties to the Hearing: Parent[s] Bermudian Springs School District Date Record Closed: Date of Decision: Hearing Officer: Representative: Pro Se Stephen S. Russell, Esq. Susquehanna Commerce Center East Suite 600 221 West Philadelphia Street York, PA 17404 September 9, 2011 September 23, 2011 Shawn D. Lochinger, Esq. INTRODUCTION AND PROCEDURAL HISTORY Student is a teen-aged st udent (“Student”) residing in the Bermudian Springs School District (“District”), who has been id entified as gifted under the provisions of 22 Pa. Code §§ 16.1 – 16.65. Parent claims that the District is denying the Student an appropriate gifted education for the 2011/2012 sc hool year in that the District will not waive the Student’s participation in the Dist rict’s PLATO program and is also denying the Student the opportunity to take an on-line class at District expense as part of the Student’s GIEP.

ISSUE Has the District proposed an appropriate gifted education plan to the Student for the 2011/2012 school year despite the fact that the District will not exempt the Student from its PLATO program and will not provide an on-line course for the Student at the District’s expense? FINDINGS OF FACT 1) There is no dispute that the Student attends the District and has been identified as a gifted student (School District Exhibit [“S”]-2). 2) Student has a 2011/2012 GIEP dated May 25, 2011 that ha s an implementation date of August 30, 2011 (S-2). 3) Student’s GIEP has two annual goals – to a ttend monthly gifted symposiums and to investigate potential career paths in the military at the Army War College (S-2). 4) Student’s GIEP also states that the District will “offer advanced placement or honors courses [to Student] with differentiation when appropriate…” (S-2). 5) In accordance with the GIEP, the Student is scheduled to receive accelerated learning during the 2011/2012 school year through taking five honors level classes, including English, world cultures, chemistry, and pr e-calculus/trigonometry, and geometry (Notes of Testimony [“NT”] 62 and S-10). 6) Student’s schedule for the 2011/2012 school year also calls for the Student to take “Driver’s Theory” during period 11, two times out of every six day cycle (NT 99-100 and S-10). Each Driver’s Theory class lasts 43 minutes (NT 71). 7) Driver’s Theory is required for graduation in the District (NT 40).

8) Driver’s Theory, as offered by the District, is a self-paced class that requires 30 hours of classroom time to complete (NT 70 and 72). Students at the District are scheduled to be in the classroom 60 days (for 43 minutes each day) during the school year (NT 71). Theoretically, students would complete the Driver’s Theory class with 13 hours of classroom time still sche duled in the school year. 1 However, students are permitted to work on Driver’s Theory outside of the “regular” classroom time (NT 71). This means that students may complete the Driver’s Theory class with more than 13 hours of classroom time left in th e year (NT 71). In fact, the District’s experience is that the average student comp letes Driver’s Theory in about one-half (1/2) of a school year (NT 71). 9) If a student fails the Driver’s Theory fina l exam, that student must perform remedial work and re-take the exam at a later time (NT 72). 10) In theory, a student who does not pass Driv er’s Theory on his/her first or second attempt may not finish the class (NT 71). However, this has ne ver occurred at the District (in other words, every student ha s completed Driver’s Theory in a timely fashion) (NT 71-72). 11) When each student completes Driver’s Theory, each student is required by the District to use the Driver’s Theory classroom time that may remain in the school year to take a class known as PLATO (NT 72). 12) PLATO, while taken after Driver’s Theory is complete, is not related to Driver’s Theory in any way (NT 64). 13) PLATO is not required for graduation (NT 38) . However, the District requires all tenth grade students to take PLATO follo wing completion of Driver’s Theory (NT 103 and 118). 1 60 classes at 43 minutes each totals 2,580 minutes, or 43 hours. Since Driver’s Theory requires 30 hours of classroom time (NT 70), this would leave about 13 hours of classroom time following the completion of Driver’s Theory.

14) PLATO is a self-paced, computer based cu rriculum that allows students to be assessed and remediated in areas that correspond to the PSSA exams (NT 50-52). 15) When each student begins using PLATO, he/she takes a self-assessment test offered by the computer program (NT 47, 72, and 100). The program then uses the self- assessment test to prescribe specific exer cises and tasks designed to increase (or at least maintain) each student’s proficiency levels in the PSSA tests (NT 99-100). 16) The District requires all students to use PL ATO because the District believes PLATO allows students to achieve higher proficiency levels on the PSSA exams (NT 50-52). 17) The District states that PLATO is important even for those students achieving at an advanced level of proficiency on the PSSA exams because it allows those students to stay at an advanced level of proficiency when taking PSSA tests in the future (NT 51- 52). 18) In the present matter, the Student’s most recent PSSA proficiency levels (from eighth grade) show that the Student was advanced in math, advanced in science, advanced in reading, and advanced in writing (S-2). 19) Student’s ACBA 2 assessments (from ninth grade) s howed Student to be advanced in math and proficient in reading at the be ginning of the 2010/2011 sc hool year (S-2). Approximately two months later, Student’s ACBA assessments show that Student to be advanced in math and in reading (S-2 ). However, the breakdown of Student’s score by subject area shows the Student to be proficient (as opposed to advanced) in a number of specific subtests from the second ACBA assessment given during the 2010/2011 school year (S-9). 20) In ninth grade, Student t ook an on-line Latin class (N T 79 and Parent’s Exhibit [“P”] – 7). 2 [Redacted] County Benchmark Assessment (NT 56).

21) The on-line Latin class was a pilot program designed to last only one year (NT 84-85, and 114) (P-7). 22) The District offers its own on-line cyber charter school to students (NT 85 and 118- 119). Essentially, students may take all of their classes on- line and not physically attend at the District’s buildings (NT 120). 23) The District’s written policy also allows students to take indi vidual on-line courses without enrolling in the on-line charter school if the courses are electives that are not offered by the high school, if the class is not taken as a substitute for a required course, and only if the student covers th e expense of the course (NT 91-95, S-5, and S-6). 24) Student has requested to take either a Latin or military history course on-line as a substitute for the PLATO course (NT 16 a nd S-1). The District has denied said request (NT 110). 25) The Student’s mother approved the Student’s GIEP and NORA, despite the fact that the GIEP and NORA require Student to take the PLATO class and do not allow the Student to take an on-line military history course at District expense (NT 97 and S-9). 26) The Student’s father did not approve the GIEP or NORA and requested the current due process hearing (S-1 and S-4). DISCUSSION AND CONCLUSIONS OF LAW Gifted education in Pennsylvania is governed by Pennsylvania law as set forth at 22 Pa. Code §§ 16.1 – 16.65 (“Chapter 16”). The purpose of Chapter 16 is to provi de an education to each identified student that is based on the unique needs of that student. This education can

include acceleration and/or enrich ment programs and services th at are rendered according to the student’s intellectual/academic needs and abilities.3 Chapter 16 also provides for certain procedural safeguards as well as an obligation on the part of school districts to iden tify an appropriate program for students who are gifted and need specially designed instruction beyond that which is provided in the regular education program. Substantively, school districts mu st provide gifted students “w ith a plan of individualized instruction (an ‘appropr iate program’) designed to meet ‘t he unique needs of the child.’” Centennial School District v Department of Education, 517 Pa. 540, 539 A.2d 785 (1988). However, and importantly, a school district ’s “obligation is not without limits….[T]he instruction to be offered need not ‘maximize’ the student’s ability to benefit from an individualized program.” Id. Although Chapter 16 does not speak to the burden of proof in gifted due process proceedings, it has been clearly determined that said burden lies with th e party which initiated the request for due process. E. N. v M. School District , 928 A.2d 453 (Pa. Commw. 2007). In this case, then, the burden of proof lies with the Parent. It is also the responsibility of the Hearing O fficer to make credibility determinations and to assess the weight to be accorded the evidence. E. N. at 461. This Hearing Officer found the witnesses who testified in this hearing to be generally credible and will discuss specific instances of credibility findings as is necessary to the discussion below. The Parent, in this matter, ha s brought two specific items to the attention of the Hearing Officer. The Complaint stated, and the parties agreed at the outset of the hearing, that the issues in this case concern the appr opriateness of the Student’s GI EP for the 2011/2012 school year. More specifically, the parties agreed that th e question of appropriate ness was focused on two issues. First, Parent has reques ted the Student be exempted from the District’s PLATO class. Second, Parent has requested that in lieu of the PLATO class, Student be permitted to take an on- line course in either Latin or military history. B ecause the District denied both of these requests, 3 22 Pa. Code § 16.2.

the Parent now argues that the Student’s GIEP for the 2011/2012 school y ear is inappropriate due to the absence of the on-line course requeste d and also due to the inclusion of the PLATO class which Parent believes St udent should be exempt from taking during the current school year. The District’s position is that it has offe red an appropriate, individualized gifted education to the Student for the 2011/2012 school year . Initially, the District points to the fact that the Student is taking five honors classes and thus has been accelerated in the vast majority of the Student’s course work. Moreover, Studen t has a GIEP which allows the Student to participate in monthly symposiums to enrich Stude nt’s school experience. Finally, the District argues that the PLATO course is required of all students and even though the Student scored relatively well on the Student’s standardized assessments in the past, PLATO is designed to keep the Student at a high level of performance and to potentially move the Student to an even higher level in those areas where the Student has achieved at less than an advanced level of proficiency. Finally, the District argues that there is no evidence to indicate that the on-line course requested by the Student is nece ssary for the Student’s gifted e ducation. The Dist rict contends that although it has a written policy that would a llow the Student to take an on-line class if certain criteria are met, the Student has not met those criteria in this case. Specifically, the written policy makes it clear, the District argues, that an on-line course cannot be taken in lieu of a required course (in other words, the on-line m ilitary history or Latin course requested by the Student cannot be taken instead of the required PLATO course). Regardless of this failing, however, the District further argues that the polic y is clear that the on-l ine course can only be taken at the Student’s expense (and not at the expense of the District). The Parent has requested a ruling that the Stude nt’s GIEP is inappropriate in its current form. The Parent desires an or der that would exempt Student from the PLATO class and for the District to instead provide, at Di strict expense, an on-line course in military history or in Latin. Each of these issues will be discussed separately below.

Initially, the PLATO program at the District is designed to increase students’ proficiency levels (or to at least maintain a student’s alre ady high level of proficiency) on the PSSA exams. The PLATO classes offered at the District begin with a “self-assessment” taken on the computer. The PLATO program then uses the results from th e assessment to constr uct a course of study that is individualized for each student. The course of study is designed to remediate (or at least maintain) each and every student’s performance on the PSSA assessments. The District testified credibly that even students who ha ve previously achieved at an a dvanced level of proficiency on their PSSA exams benefit from PLATO due to the fact that the program gives the student an individualized program designed to keep that student performing at a high level on the next set of assessments. The PLATO class is scheduled to begin for each tenth grade student when that particular student completes a Driver’s Theory class. It must be noted that the PLATO program, which starts as soon as Driver’s Theo ry ends, is not actually related to or connected with Driver’s Theory. Instead, the District schedules the classe s together to take advantage of the opening in each student’s schedule that is created when th at student completes Driver’s Theory. The District schedules each student for Driver’s Theory for an entire year for two sessions during each six day cycle. The District does this even though it knows that students complete the Driver’s Theory curriculum before the end of the school year. Ho wever, the class is scheduled for an entire year because the District uses the classroom time for students to work on the PLATO program after each student has completed the Driver’s Theory portion of the class. The classes are scheduled together so that when a student complete s Driver’s Theory, he/she can immediately move on to PLATO using the same sc heduled class time as the student used for Driver’s Theory. Driver’s Theory is, of course, a class th at many of us used to know as Driver’s Education. However, because of new technology and software, students are able to take Driver’s Theory at a pace that suits the needs of each indi vidual student at the District. A teacher in the classroom assists students as necessary to complete the required class work on the computer for Driver’s Theory. When all of the material for the course has been completed, students are

assessed and (assuming they achieve passing grades) are allowed to officially “complete” Driver’s Theory. The students then immediately begin the PLATO program. The District provided credible testimony a nd evidence showing th at the successful completion of Driver’s Theory is required for gr aduation. Similarly, the District presented evidence to show that although PLATO is not requi red for graduation, the course is still required for all of its students. The Pare nt countered this claim by arguing that there is no clear evidence to indicate that the District’s School Board ever officially appr oved the class as a “requirement” for all students. The Parent uses this to furthe r his point that the Studen t should be exempt from the PLATO class on the grounds that the course is not “officially” required (due to the failure of the School Board to specifically vote as such). The weight of the evidence, however, leans heavily toward the District’s position. Although it is true that there is no evidence befo re me that points to a specific School Board policy or vote that requires student s to take PLATO, it is just as apparent from the evidence that was presented that the District does, in fact, re quire each student to take the PLATO class. Various District personnel, incl uding the Principal of the building where the Student attends, testified credibly that the cour se is required for all tenth gr ade students upon completion of the Driver’s Theory class. In res ponse, Parent then attempted to argue that because the Driver’s Theory class is a self-paced program, not all students may reach the PLATO program (thus rendering it “non-mandatory” for those students who do not complete the Driver’s Theory class). Again, District personnel testified credibly th at no student has ever failed to complete the Driver’s Theory portion of the class before the e nd of the school year and thus all students have taken at least a portion of the PLATO class. The Parent then essentially argues that th e Student should be exempt from the PLATO class due to the Student’s advan ced levels on the assessment ex ams and due to the general idea that such remediation would not be useful or helpful to the St udent. However, there is no substantive evidence which would lead one to conc lude that the Student should be exempt from the PLATO class. More importantly, there is no substantive evidence to indicate that the Student must be exempt from PLATO for the Student to receive an appropriate gifted education during

the 2011/2012 school year. This is made even more clear when the Distri ct’s evidence indicates that the Student is not performing at an advanced proficie ncy level on all assessments, thus making PLATO even more necessary for the Student.4 Accordingly, there is no substantive eviden ce to indicate that the Student should be exempt from the PLATO class. Nor does the ev idence indicate that exempting the Student from the PLATO class is necessary, in any way, for th e Student to receive an appropriate gifted education during the 2011/2012 school year. Inst ead, the GIEP presented by the District is appropriate, as it sets forth an individualiz ed program designed to provide meaningful educational benefit to the St udent through acceleration (five honors classes), enrichment (a monthly symposium which is set forth as a sp ecific annual goal in the Student’s GIEP), and differentiation (as needed and as set forth in the Student’s cu rrent GIEP). Therefore, the evidence does not support th e Parent’s position the PLATO class would somehow cause the Student’s gifted education to be incomplete or inappropriate. The only other issue set forth by the Parent in this case c oncerns an on-line military history course (or, alternatively, an on-line Lati n class). Parent argues that the Student was permitted to take an on-line Latin course during the 2010/2011 school year at District expense. Parent asks that Student be a llowed to take a similar course for the 2011/2012 school year – preferably in lieu of the PLATO class discussed above. Parent argues that Student will not be receiving an appropriate gifted education without such an on-line class. The District counters this argument by indicating that the 2010/2011 on-line course was a pilot program that was designated and communicated to Parent as a one time only (and one year only) opportunity. District personnel credibly te stified that Student was permitted to take the class at District expense during the 2010/2011 sc hool year because the Student expressed an interest and because there was one “open seat” through the District’s on-line charter school that was available for only the 2010/2011 school year. 4 The District has also clearly and credibly testified that even if Student was performing at an advanced level on all assessments, PLATO would still be useful and helpful to the Student to maintain such high levels of proficiency.

The District argues further that there is a wr itten District policy in place, which Parent was well aware of, that the Student failed to abide by in this case. That policy indicates that the District will allow a Student to take an on-line course only if the on-line course is not offered by the District. Here, that require ment is met. The policy also states that the on-line course cannot be taken in place of a required cour se at the District. Here, the St udent fails this particular test, as the request is for the on-line course to be taken in lieu of the required PLATO class. However, even if one were to ignore the second requirement, the third requirement is that the on- line class can be taken only at if the student’s fa mily pays for the class. The District thus correctly states that even if the on-line class requested was not in lieu of the required PLATO class, the District would have no obligation to pay for the on-line course, especially given that the course is not required for the Student to receive an appropriate gifted education at the District. The Parent attempts to counter the District’s position by arguing that because the Student took an on-line Latin course last year at District expense, the District should be obligated to allow the Student to take a similar class (at District expense) this year in order to fulfill. However, there is no evidence to show that the individual needs of the Student are such that the on-line course is in any way necessary for the Stude nt to receive an appropriate gifted education at the District. Moreover, as set forth above, the Student is receiving an appropriate gifted education at the District at this time. The Student is perfectly free to take the on-line course, but only if the requirements of the District’s policy ar e met. Thus, I will not order the District to provide the class for the Student at District expense, as there ha s been no showing by the Parent that such a class is necessary in order for the Student to receive an appropriate gifted education. Therefore, the Parent has failed to present en ough evidence to indicate that the overall program offered by the District through its proposed GIEP does not meet the standard of appropriateness. 5 The District is provi ding acceleration (five honor s classes), enrichment (through the monthly symposiums set forth in the Student’s GIEP), and differentiation as necessary (through the GIEP) to the Student based upon the Student’s individual needs. 5 This is strengthened by the fact that the Student’s mother filed paperwork prior to the hearing indicating that she was in agreement with the District’s position in this matter.

Similarly, the weight of the evidence clearly indi cates that the GIEP is reasonably calculated to yield meaningful educational benefit to the St udent as required by Chapter 16. Accordingly, I find that the GIEP proposed by the District for the 2011/2012 school year is appropriate and I will not order the District to exempt the Student fr om the PLATO class or to provide the on-line military history or Latin course at District expense. ORDER In accordance with the findings of fact a nd conclusions of law set forth above, the District’s proposed GIEP is found to be appropri ate and it is hereby ORDERED that this matter be dismissed without remedy to the Student. _________________ Shawn D. Lochinger HEARING OFFICER Date of Decision: September 23, 2011