United States District Court, D. Maryland, Southern Division
M.L. ex rel. AKIVA LEIMAN, et al., PLAINTIFFS,
JOSHUA P. STARR, et al., DEFENDANTS
[Copyrighted Material Omitted]
L., a minor, by his parents and next friends, Akiva and Shani
Leiman, Akiva Leiman, Shani Leiman, Plaintiffs: Michael J
Eig, LEAD ATTORNEY, Michael J Eig and Associates PC, Chevy
Joshua P. Starr, (officially as), Superintendent, Montgomery
County Board of Education/Montgomery County Public School,
Defendants: Jeffrey A Krew, Jeffrey A Krew LLC, Ellicott
OPINION AND ORDER
Grimm, United States District Judge.
Akiva Leiman and Shani Leiman (" Parents" ) and
their minor son, M.L. (" Student" ), by and through
his Parents, filed suit against Joshua Starr in his official
capacity as Superintendent of Montgomery County Public
Schools (" MCPS" ) and Montgomery County Board of
Education (" the Board" ), claiming that Defendants
failed to provide the Student, who has an intellectual
disability, " with the Free Appropriate Public Education
('FAPE') to which he is entitled under the
Individuals with Disabilities Education Improvement Act
('IDEA'), 20 U.S.C. § § 1400 et
seq. " Compl. ¶ ¶ 1, 9, ECF No. 1.
Specifically, they allege that Defendants " fail[ed] to
propose an appropriate educational program or placement for
M.L. that takes into account his religious and cultural
needs." Id. ¶ 70. They also claim that the
administrative law judge (" ALJ" ) who reviewed the
Student's individualized education program ("
IEP" ) erred in " failing to render a proper
decision based on an accurate and impartial understanding of
the facts and law" and consequently " unreasonably
concluded that the school system had proposed an educational
program and placement for M.L. that was reasonably calculated
to provide him with a FAPE for the 2012-13 school year,"
and " incorrectly denied the parents their requested
relief of funding and an appropriate placement at the Sulam
School ('Sulam')."  Id. ¶
¶ 1, 74. Sulam, the school the Student currently attends
at his Parents' expense, " is a full-time special
education program serving the Orthodox Jewish
population" ; there, the Student participates in a
" program . . . to prepare students to live
independently in their Orthodox Jewish community."
Id. ¶ ¶ 6, 22-24. Because, giving due
weight to the ALJ's factual findings and from my own
de novo review of the entire record, I conclude that
Plaintiffs are not entitled to judgment as a matter of law
and Defendants are, I will deny Plaintiffs' Motion for
Summary Judgment, grant Defendants'
Cross-Motion for Summary Judgment, and close this
FREE APPROPRIATE PUBLIC EDUCATION
with disabilities are entitled to a free appropriate public
education, or " FAPE," pursuant to the IDEA. 20
U.S.C. § 1412(a)(1)(A). Maryland regulations also "
govern the provision of FAPEs to children with disabilities
in accordance with the IDEA." M.C. v. Starr,
No. DKC-13-3617, 2014 WL 7404576, at *1 (D. Md. Dec. 29,
2014) (citing Md. Code Regs. Tit. 13A, § 05.01). A FAPE
is an education that provides " meaningful access to the
educational process" in " the least restrictive
environment" and is " reasonably calculated to
confer 'some educational benefit'" on the child
with a disability. Id. (citing Bd. of Educ. of
the Henrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S.
176, 192, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). "
The benefit conferred . . . must amount to more than trivial
progress," but " [t]he IDEA does not require that a
school district provide a disabled child with the best
possible education . . . ." Id. (citing
Rowley, 458 U.S. at 192; Reusch v.
Fountain, 872 F.Supp. 1421, 1425 (D. Md. 1994)).
end, each child with a disability must have " an
appropriate Individualized Education Program
('IEP')" that " state[s] the student's
current educational status, annual goals for the
student's education, which special educational services
and other aids will be provided to the child to meet those
goals, and the extent to which the child will be
'mainstreamed,' i.e., spend time in regular school
classroom with non-disabled students." Id.
(citing 20 U.S.C. § 1414(d)(1)(A)). In Maryland, parents
may voice disagreement with their children's proposed
IEPs and request due process hearings before the Maryland
Office of Administrative Hearings to address their concerns.
See Id. at *2 (citing 20 U.S.C. §
1415(b)(6), (f); Md. Code Ann., Educ. § 8-413; Md. Code
Regs. Tit. 13A, § 05.01.15(C)(1)). " Any party can
then appeal the administrative ruling in federal or state
court." Id. (citing Educ. § 8-413(h)).
Additionally, parents may place their children in private
school that is " appropriate to meet the child's
needs" and " seek tuition reimbursement from the
state," but only if " if the court or hearing
officer finds that the agency had not made a free appropriate
public education available to the child in a timely manner
prior to that enrollment.'" Id. (quoting
Title 20 § 1412(a)(10)(C)(iii); citing Sch. Comm. of
Burlington v. Dep't of Educ., 471 U.S. 359, 369-70,
105 S.Ct. 1996, 85 L.Ed.2d 385 (1985)).
material facts are undisputed. The Student has an
intellectual disability, and
his " full scale IQ" was determined in 2009 and
again in 2012 to be in the first percentile. Compl. ¶
¶ 9, 18, 30; Defs.' Mem. 3. Therefore, he is
entitled to a FAPE under the IDEA. Compl. ¶ 1;
Defs.' Mem. 3. His instruction must be consistent and
repetitive for him to learn. Pls.' Mem. 4, 8; Defs.'
Student is a part of the Orthodox Jewish community in which
he lives, and it is very important to his Parents that he
learn the rules and customs of Orthodox Jewish life. Compl.
¶ 8; Defs.' Mem. 3-4. In their view, " he has
many important religious and cultural needs that must be
taken into account when designing an appropriate learning
environment for him," and his " functional life
skills are different than those of a non-Orthodox
student." Compl. ¶ ¶ 8, 41. Therefore, they
sought an IEP for the 2012-2013 school year that provided for
the Student to be placed at Sulam, where the basics of
Orthodox Jewish life are a part of the curriculum. Compl.
¶ 49; Defs.' Mem. 4, 14 n.7. Instead, MCPS proposed
an IEP that placed the Student at Woodlin Elementary School,
a MCPS public school, and did not include instruction for the
Student on rules and customs of the Orthodox Jewish
community. Compl. ¶ ¶ 46-47, 50, 58, 60; Defs.'
response, the Parents " filed a due process hearing
request on July 26, 2013, seeking reimbursement and placement
for M.L. at Sulam." Compl. ¶ 52; Defs.' Mem. 4.
During the five-day hearing, the ALJ heard testimony from the
Parents' six witnesses (the Student's father, an
expert in Judaism, experts in special education, the
Assistant Director/Director of Advocacy at the Weinfeld
Education Group, and an expert in the teaching and
supervision of special education in a Jewish day school) and
MCPS's three witnesses (an expert in psychology and two
experts in special education, one with " an emphasis on
culturally and linguistically diverse students with
disabilities" ). Compl. ¶ ¶ 53-55; ALJ Dec.
5-6. He also received 56 exhibits from the Parents, 22 from
the Board, and 4 from the Office of Administrative Hearings;
the exhibits included assessments, reports, evaluations, the
IEP, school report cards and updates, correspondence, witness
resumes, and the Common Core Curriculum that MCPS follow. ALJ
that the Student " is not capable of generalizing what
he learns at school to home and vice-versa" and
therefore " needs the same information taught in [both]
settings," the Parents argued that " 'It is
clear that the school system's proposed IEP cannot
prepare [the Student] for life in his Orthodox Jewish
community, rendering it inappropriate,'" and that
" 'MCPS has just refused to consider adding
instruction that will prepare [the Student] for an Orthodox
Jewish way of life, and that violates his right to a
FAPE.'" ALJ Dec. 15, 25, Admin. Rec., ECF No. 3
(quoting Parents' Rebuttal Closing 11). They noted that
" 'the school system's witnesses . . .
repeatedly testified that they would not personalize [the
Student's] IEP to meet his unique needs or include any of
the bilingual or bicultural education he needs to be part of
his community.'" Id. (quoting Parents'
Written Closing (" PWC" ) 16). As the Parents see
it, Hebrew literacy, identification of Kosher symbols, and
" time recognition" tailored to abiding by Kosher
rules in separating the consumption of meat and dairy are
" functional and/or academic skills that [the Student]
needs in his community and in his culture" and that must
be included in his IEP. Id. at 25-26 (quoting PWC
made the following findings of fact:
1. The Student was born on March 31, 2003. He lives with the