Massachusetts special education regulations similarly provide that specially designed instruction and related services described within the IEP must be sufficient “to enable the student to progress effectively in the content areas of the general curriculum.”16
Massachusetts also requires that the special education services be designed to develop a student’s educational potential.17 A child’s progress must be measured in terms of the child’s educational potential.18
Ryan is eligible for special education services due to his language based learning disability and Tourette’s Syndrome. There is no dispute as to Ryan’s eligibility. The only dispute in this matter is whether the most recent IEP proposed by Medford offers Ryan FAPE. The parents, as the party seeking relief in the instant case, have the burden of persuasion.19 It is their burden to show that the IEP proposed by Medford will not allow Ryan to make effective progress; that is, that the IEP was not reasonably calculated to provide Ryan with a FAPE in the least restrictive environment. After a careful review of the testimony and the documentary evidence, I find that the parents have not met their burden.
The testimony presented by the parents characterizes Ryan as a student who is significantly struggling at school both academically and emotionally. Ryan’s mother testified that Ryan began having more difficulty in 6th grade with reading, spelling and writing. It was her testimony that Ryan desperately wants to read the books that his friends are reading but he is unable to do so even though he tries very hard. Ryan’s father testified that although Ryan loves sports, he won’t even sit and read the Sports Illustrated magazine. Ryan’s father further testified that he believes that Ryan won’t read, even sports magazines, because he is unable to do so. Both of Ryan’s parents further testified that over this past year they have noticed that Ryan is losing his desire to learn. They expressed their concern that Ryan seems to be “giving up.”
Medford staff, on the other hand, characterized Ryan as a hard worker who is progressing nicely with the special education supports in place. Ms. Robillard, Ryan’s reading teacher, testified that Ryan has made progress since she began teaching him in February 2009. She testified that Ryan is engaged in class and always knows what is going on. Whereas Ryan’s mother testified that he does not like to be “pulled out” of class to receive services, Ms. Robillard credibly testified that her class is not a pull-out but is built into Ryan’s schedule just like any other class.
16 602 CMR 28.05(4)(b) (“the TEAM shall carefully consider the general curriculum, the learning standards of the Massachusetts Curriculum Frameworks, the curriculum of the district, and shall include specially designed instruction or related services in the IEP designed to enable the student to progress effectively in the content areas of the general curriculum.”)
17 MGL c. 71B, s. 1; 603 CMR 28.01(3)
18 Lessard v. Wilton-Lyndeborough Cooperative School Dist.., 518 F.3d 18, 29 (1st Cir. 2008)
19 Schaffer v. Weast, 546 U.S. 49, 62 (2005)