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K.D. v. Starr

United States District Court, D. Maryland

September 25, 2014

K.D., by her parents and next friends, J.D. and T.D., et al., Plaintiffs,
JOSHUA STARR, in his official capacity as Superintendent of Montgomery County Public Schools, et al., Defendants

For K.D., a minor, by her parents and next friends, Joe and Tracey Diss, Joe Diss, Tracey Diss, Plaintiffs: Michael J Eig, LEAD ATTORNEY, Michael J Eig and Associates PC, Chevy Chase, MD.

For Joshua Starr, (officially as), Superintendent, Montgomery County Public Schools, Defendant: Jeffrey A Krew, Jeffrey A Krew LLC, Ellicott City, MD.

For Montgomery County Board of Education, Defendant: Zvi Greismann, LEAD ATTORNEY, Montgomery County Public Schools, Rockville, MD; Jeffrey A Krew, Jeffrey A Krew LLC, Ellicott City, MD.

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THEODORE D. CHUANG, United States District Judge.

Plaintiff K.D., a minor, is a student with a learning disability who was previously enrolled in public schools in Montgomery County, Maryland. She has been diagnosed with Attention Deficit Hyperactive Disorder (" ADHD" ) and a mixed receptive-expressive language disorder that impairs her language functioning. On November 4, 2013, K.D. and her parents, Plaintiffs J.D. and T.D. (the " Parents" ) (collectively, " Plaintiffs" ), filed this action alleging that Defendant Montgomery County Public Schools (" MCPS" ) failed to provide K.D. with a free appropriate public education under Section 504 of the Rehabilitation Act of 1973 (" Section 504" ), 29 U.S.C. § § 794 et seq. (2012), by denying her accommodations to which she was entitled. They also allege that the Administrative Law Judge (" ALJ" ) who presided over the administrative proceedings erred in dismissing their due process complaint before the hearing. Presently pending are the parties' cross-motions for summary judgment. ECF Nos. 17, 21. The Court heard oral argument on the motions on September 16, 2014, and the motions are now ripe for disposition.

Because Plaintiffs have sufficiently alleged that MCPS discriminated against K.D. on the basis of her disability, the Court concludes that the ALJ erred in dismissing their due process complaint without reaching the merits. Accordingly, the Court grants Plaintiffs' Motion for Summary Judgment and denies Defendants' Cross-Motion for Summary Judgment. This case is remanded to the ALJ for further proceedings on the merits.


Congress has enacted two statutes that focus, in some measure, on ensuring that students with disabilities have access

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to a free public education equal to that of non-disabled students.[2] The first is the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § § 1400 et seq. (2012). The IDEA requires, among other things, that states accepting federal funds provide a free appropriate public education to students with disabilities. § 1412(a)(1). A " free appropriate public education" entails special education and related services that are provided to the student without charge, but also meet state educational standards and conform to an individualized education plan (" IEP" ) developed specifically for that student. § 1401(9). As a baseline, the education provided to the student under the IDEA must confer some educational benefit. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 200, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).

The second such statute is Section 504. Unlike the IDEA, Section 504 is an anti-discrimination statute. Section 504 prohibits federally funded programs from discriminating against an otherwise qualified individual solely on the basis of her disability. 29 U.S.C. § 794(a). As part of this requirement, federal regulations implementing Section 504 mandate that schools provide a free appropriate public education to students with disabilities. 34 C.F.R. § 104.33. To meet the free appropriate public education requirement under Section 504, schools must provide, at no cost, regular or special education and related aids and services designed to meet the needs of the student. § § 104.33(b), (c). Like the IDEA, this is achieved through an accommodations plan, § 104.35, but the free appropriate public education requirement differs from the IDEA in that the measure of whether the education conferred under Section 504 is sufficient is that it must meet the student's needs " as adequately" as the needs of a non-disabled student, § § 104.33(b), (c). See Mark H. v. Lemahieu, 513 F.3d 922, 933 (9th Cir. 2008).

This case concerns whether a student was subject to discrimination on the basis of disability under Section 504 because she was not afforded sufficient accommodations to receive a free appropriate education comparable to non-disabled students. K.D. is a 15-year-old ninth grade student currently attending a private school in Montgomery County, Maryland. She previously attended various Montgomery County public schools. Since kindergarten, K.D. has been reading below grade level. In March 2009, while K.D. was in fifth grade, a doctor diagnosed K.D. with ADHD, which impairs her ability to pay attention and concentrate, and a nonverbal learning disability. Shortly thereafter, MCPS found her eligible for an individualized accommodation plan under Section 504 (the " 504 Plan" ). Although the 504 Plan provided K.D. preferential classroom seating to minimize distractions and an extra set of books to keep at home, K.D. continued to experience difficulty with paying attention, comprehending reading material, retaining content, following directions, and understanding written and oral communication. Concerns also remained about her expressive language ability. With those issues in mind, the Parents increasingly relied on re-teaching

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K.D. the school curriculum at home in the evenings.

In March 2010, while K.D. was in sixth grade, a team conducted an annual review and updated K.D.'s 504 Plan to include more accommodations, such as allotting her extra time on graded assignments, providing her completed study guides at least three days before tests and quizzes, and breaking her assignments into smaller, more manageable segments, known as " chunking." Still, the Parents remained troubled by K.D.'s progress. In March and April 2010, another doctor evaluated K.D. and diagnosed her with a significant mixed-receptive expressive language disorder. Given K.D.'s receptive, expressive, and language processing limitations, the doctor recommended an IEP for K.D. instead of the 504 Plan.[3] The Parents also sought an evaluation from a speech pathologist in April 2011, who confirmed K.D.'s receptive and expressive language disorder and other language weaknesses. They provided both the reports to MCPS.

On September 27, 2010 and January 14, 2011, while K.D. was in seventh grade, the Parents met with the school's Educational Management Team to convey their ongoing concerns about K.D.'s academic struggles, particularly on tests and quizzes. They again relied on afterschool instruction by hiring a professional tutor to assist K.D. with her executive functioning.[4]

After K.D.'s annual review meeting in April 2011, MCPS revised her 504 Plan to include an accommodation for instructions to be repeated to her. Based on the recommendation of a doctor who had evaluated K.D., the 504 Plan also included a " read to" accommodation, which generally provides that tests are read in their entirety to a student. The 504 Plan also required an accommodation that K.D. receive a copy of the teacher's notes daily at the beginning of class to help her follow along. By June 2011, the Parents asked MCPS to consider whether K.D. was eligible for special education. Though an MCPS team recognized K.D.'s need for continued support, it did not find her eligible for special education. Rather, it updated her 504

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Plan again to include repetition of instructions during class and assessments, as well as an accommodation that teachers provide copies of test directions and format at least three days in advance. Once more, and despite the additional accommodations, the Parent's remained concerned about K.D.'s performance on tests and quizzes.

In August 2011, a fourth doctor evaluated K.D. and found major areas of weakness in her mental organization, semantic encoding, working memory, expressive language, and executive functioning. The doctor concluded that anxiety, lack of confidence, and a dependence on adult-directed learning intensified K.D.'s language processing and executive functioning issues. The Parents forwarded that doctor's report to MCPS and again, on October 27, 2011, met with school officials to discuss their concerns. The following month, an MCPS team found that K.D. remained ineligible for special education and declined to conduct additional evaluations or seek additional ...

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