United States District Court, D. Maryland, Southern Division
August 3, 2015
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
nine siblings in Montgomery County, Maryland. The family is
part of the Orthodox Jewish community. All the school-age
children attend private Jewish schools.
2. The way of life of an Orthodox Jew is much different from
that of the general population. The Jewish Bible and Jewish
law and custom govern how an Orthodox Jew dresses, eats,
prays, works, what holidays are celebrated, and almost every
aspect of life, including social interaction and
understanding and speaking Hebrew.
3. The Student was diagnosed with Down Syndrome at birth. He
is eligible for special education services under federal and
State law as a child with an intellectual disability. For
some period of time, but only before kindergarten, the
Student received special education services from MCPS. Since
September 2009, he has attended Sulam, a special education
program that serves the Orthodox Jewish community and is
located inside the Melvin J. Berman Hebrew Academy.
4. Beginning on June 6, 2012, the parties met to discuss an
IEP for the Student for his education during the 2012-2013
school year in the MCPS. The purpose of the initial meeting
in June 2012 was to reevaluate the Student's current
levels of academic achievement and educational performance.
The parties agreed at this meeting to obtain updated
assessments of the Student in education, speech and language
pathology, and psychology.
5. The parties next met on September 5, 2012, and reviewed
the results from some of the assessments. They agreed that
intellectual disability was the Student's correct
diagnosis and that an IEP should include goals in academics
and social-adaptive skills. At this meeting, the parties
agreed to obtain an occupational therapy (OT) assessment.
6. On June 20, 2012, Dr. Foster conducted a psychological
assessment of the Student. It showed significantly below
average scores in all areas of cognitive functioning. Most of
the Student's test scores were at or below the first
percentile. This assessment was essentially the same as an
assessment done by Dr. Foster on March 30, 2009.
7. The Student's most recent educational assessments in
February-March 2009 and July-August 2012 showed significantly
below average performance in all academic areas in 2009 and
weaknesses in all areas in 2012 on an instrument designed to
test children functioning below the developmental age of 7.
In all the academic and visual-motor areas, his scores in
2012 were aligned with children of kindergarten age, with
some below and some at the first-grade level.
8. The Student is able to learn despite his severe
intellectual disability, but he needs constant repetition and
9. On December 5, 2012, the parties met for a third time at
an IEP team meeting. They reviewed the results of the
assessments done by the speech and language pathologist and
the occupational therapist (OT). The speech and language
pathologist reported weaknesses in expressive grammar,
vocabulary, syntax, and reported speech and language
difficulties in practical environments. The OT reported
decreased muscle tone and strength that impacted the
Student's ability to manage classroom materials and
personal belongings. At this meeting, the parties began to
develop an IEP, but did not complete it.
10. The final IEP meeting was on January 9, 2013. A proposed
IEP was completed,
but it was rejected by the Parents. The Parents rejected the
IEP because it does not provide functional instruction to
prepare the Student for life in the Orthodox Jewish
community. The Parents requested at the IEP meetings
incorporation of goals and objectives designed to teach the
Student about the laws and customs of Orthodox Judaism. This
was rejected by the MCPS as not part of the curriculum, too
specific, religious, or not compatible with the Student's
11. The proposed IEP includes a description of the
Student's present levels of academic achievement and
functional performance across the standard range of academic
areas; goals and objectives in sixteen separate practical and
functional areas; and the provision of special education
services for twenty-eight hours and forty-five minutes per
week, occupational therapy for one hour per week, and speech
and language therapy for one hour per week, with four hours
and fifteen minutes per week of exposure to non-disabled
peers. The Student's placement was in the fundamental
life skills curriculum in a self-contained classroom at
Woodlin Elementary School.
12. On July 26, 2013, the Parents filed a request for a due
process hearing with the MCPS.
acknowledged that the " proposed IED for the 2012-2013
school year does not provide an education program that
teaches the Student the ways of the Orthodox Jewish
community," but he found that " the IDEA, and
corresponding State law, imposes no . . . obligation on the
MCPS" to prepare the Student " 'for life in his
Orthodox Jewish community." ALJ Dec. 26. The ALJ
Congress enacted the IDEA to require states to make public
education available to disabled children. Nothing in the
IDEA, corresponding State law, or enabling regulations
require a state educational agency to individualize an
educational program to a disabled child's religion,
culture, or community enclave. This was essentially Ms.
Browne's testimony when she was asked to
explain why MCPS did not include religious or cultural goals
and instruction in the IEP. She testified that "
specially designed instruction" is "
strategy," " instruction," " related
services," and " specific" reading or math
" interventions ... that meet the needs of a
student's educational disability in order that they can
access and make progress in the general curriculum as defined
by the school system area, the local education agency."
Dec. 29. Noting that " Subsection 1414(d) of the IDEA
addresses IEPs and makes clear that the goals and objectives
in an IEP are 'designed to ... meet the child's needs
that result from the child's disability to enable the
child to be involved in and make progress in the general
educational curriculum,'" the ALJ concluded
that " Congress enacted the IDEA to require local
educational agencies to provide disabled children access
to the public school curriculum, not, as the Parents
here argue, . . .access [to] his Orthodox Jewish
community." Id. (emphases added). He found that
the " 'I' in 'IEP,'" which the
Parents insisted meant that MCPS must " provide the
Student 'necessary help in accessing whatever his
curriculum might be,'" actually meant that
" the local agency must use special education and
related services that are intended to provide disabled
children meaningful access to the general
curriculum, despite the child's disabling
conditions." Id. at 28-30 (quoting PWC 23 (bold
emphasis in PWC, italicized emphasis added)).
observed that " two of the Parents' witnesses who
testified as experts in special education agreed that the IEP
would be appropriate for the Student if he were not being
reared as an Orthodox Jew," and " Rabbi Leiman
agreed that MCPA's proposed IEP's goals and objective
would meet the Student's secular needs," although he
later testified to the contrary that " the IEP would not
meet the Student's secular needs 'because his secular
needs include making him as a person and fitting into his
cultural milieu,'" and Rabbi Leiman agreed that,
" but for the Student's cultural needs, his
placement at Woodlin would meet his special and general
educational needs." ALJ Dec. 32-33.
concluded that " [t]he absence of goals and objectives
expressly related to Orthodox Judaism does not render the
Student's educational program inappropriate." ALJ
Dec. 33. The ALJ found that " [t]he Student's IEP
[was] reasonably calculated to provide him with some
educational benefit because it adequately addresses the
Student's disability-based impediments to learning and
appropriately provides for special education and related
services that reasonably should enable him to benefit from
the MCPS' curriculum," such that " the IEP and
placement proposed by MCPS for the 2012-2013 school year
[were] reasonably calculated to offer the Student a
FAPE." Id. He denied " the Parents'
request for a declaration that Sulam is the proper
educational placement for the Student and for reimbursement
for the costs of the Student's attendance at Sulam for
the 2012-2013 school year." ALJ Dec. 34. Dissatisfied,
Plaintiffs filed suit in this Court, and the parties filed
the pending summary judgment motions.
STANDARD OF REVIEW
reviewing cross-motions for summary judgment in an IDEA
action, the " 'reviewing court is obliged to conduct
a modified de novo review'" of the
administrative record, " 'giving " due
weight" to the underlying administrative
proceedings.'" M.C. v. Starr, No.
DKC-13-3617, 2014 WL 7404576, at *6 (D. Md. Dec. 29, 2014)
(quoting MM ex rel. DM v. Sch. Dist. of Greenville
Cnty., 303 F.3d 523, 530-31 (4th Cir. 2002) (citing
Bd. of Educ. v. Rowley, 458 U.S. 176, 102 S.Ct.
3034, 73 L.Ed.2d 690 (1982)). This means that when an ALJ
makes findings of fact " in a regular manner and with
evidentiary support," those findings " are entitled
to be considered prima facie correct," and
" the district court, if it is not going to follow them,
is required to explain why it does not." Doyle v.
Arlington Cnty. Sch. Bd., 953 F.2d 100, 105 (4th Cir.
1991); see M.C., 2014 WL 7404576, at *6-7.
The Court then reaches its decision based on the
preponderance of the evidence. 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). Yet, the
Court cannot " '" substitute [its] own notions
of sound educational policy for those of local school
authorities." '" M.C., 2014 WL
7404576, at *6-7 (quoting MM, 303 F.3d at 530-31
(quoting Hartmann v. Loudoun Cnty. Bd. of Educ., 118
F.3d 996, 999 (4th Cir. 1997)). The burden of proof is on
Plaintiffs as the party seeking relief. See
Barnett v. Fairfax Co. Sch. Bd., 927 F.2d 146, 152
(4th Cir. 1991), cert. denied, 502 U.S. 859, 112
S.Ct. 175, 116 L.Ed.2d 138 (1991).
This standard works in tandem with the general standard of
review for summary judgment, which also applies in IDEA cases
. . . ." M.C., 2014 WL 7404576, at *7. Thus,
summary judgment is proper when the moving party
demonstrates, through " particular parts of materials in
the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
. . . admissions, interrogatory answers, or other
materials," that " there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law." Fed.R.Civ.P. 56(a), (c)(1)(A);
see Baldwin v. City of Greensboro, 714 F.3d
828, 833 (4th Cir. 2013). If the party seeking summary
judgment demonstrates that there is no evidence to support
the nonmoving party's case, the burden shifts to the
nonmoving party to identify evidence that shows that a
genuine dispute exists as to material facts. See
Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). When considering cross-motions for
summary judgment, " the court must view each motion in a
light most favorable to the non-movant." Linzer v.
Sebelius, No. AW-07-597, 2009 WL 2778269, at *4 (D. Md.
Aug. 28, 2009); see Mellen v. Bunting, 327
F.3d 355, 363 (4th Cir. 2003).
obtain court-ordered reimbursement for the secular portion of
the Student's education, Plaintiffs first must
demonstrate that " the public school system failed to
provide a free appropriate public education." Carter
ex rel. Carter v. Florence Cnty. Sch. Dist. Four, 950
F.2d 156, 161 (4th Cir. 1991) (stating that the second
element to prove is that " the private school chosen by
the parents did provide an appropriate education to the
I must determine the weight to give the ALJ's findings of
facts. See Doyle v. Arlington Cnty. Sch.
Bd., 953 F.2d 100, 105 (4th Cir. 1991). According to
Plaintiffs, the ALJ's findings of fact were not "
regularly made" and were not entitled to a presumption
of correctness, because he " consistently disregarded
substantial, relevant, and reliable written evidence as well
as expert opinions." Pls.' Mem. 12, 13, 14.
Specifically, they insist that, " [e]ven though
M.L.'s inability to generalize is essential to his
educational programming, the ALJ made no finding whatsoever
on this critical point." Id. at 18.
it is true that the ALJ did not mention the Student's
generalization skills in his findings of fact, the ALJ did
not disregard the evidence about his ability to generalize.
Rather, he observed:
The parties disagree about whether the Student can generalize
what he learns from one setting to a different setting. The
Parents' witnesses do not think he can. Mr. Weinfeld
testified that the Student " needs consistency between
home and school" and " needs to be part of a group
where it's consistent, where other kids are doing the
same things where it's the same thing that's done at
home and in school, so, it's all -- all part of one
structured, consistent package." Tr. 224. Ms. Resti
testified that " once [the Student] has a skill,
it's critical that it be developed in a variety of areas
across a variety of settings." Tr. 365. Dr. Foster, on
the other hand, testified that the Student " can
generalize," although " it might take him
longer." Tr. 544
ALJ Dec. 17. Thus, the absence of any reference to the
Student's generalization skills from the ALJ's
factual findings is not a basis for concluding that the ALJ
disregarded evidence, when the ALJ's evaluation
of the evidence produced during the extensive hearing clearly
demonstrates that he did not disregard evidence regarding the
Student's ability to generalize what he learns at school
to non-school settings. Rather, it appears that the ALJ
considered the evidence and concluded, as I independently
conclude below, that it was not relevant to his findings of
the perceived shortcomings of the IEP and Defendants'
alleged failure to provide a FAPE, Plaintiffs insist that the
problem is not " the school system's failure to
teach M.L. how to be a member of his Orthodox Jewish
Community during the school day." Pls.' Mem. 23. In
their view, the underlying IDEA violation is that Defendants
did not " support [the Student's] access to the
general education curriculum," which " required
accommodation of his religious and cultural practices"
because of the Student's " unique disability profile
and his membership in the Orthodox community."
Id. They argue:
[T]he MCPS IEP is inappropriate because it does not afford
M.L. access to the general education curriculum while
maintaining his ability to become a member of his religious
and cultural community. The failure of the MCPS IEP has thus
not been that it neglected to teach M.L. to be Jewish, but
that it failed to permit him to access the general education
curriculum areas, such as telling time, reading symbols, and
learning how to provide food for himself, whilst still
remaining a part of his community.
Id. at 27-28. They also contend specifically that
the Student would not receive a FAPE under the IEP because
the IEP did not provide for the Student to learn Hebrew.
Id. at 21. Notably, beyond the alleged problematic
interplay between the IEP and the Student's role in his
Orthodox community, including the ALJ's failure to
account for the Student's inability to generalize and the
consequent (in Plaintiffs' view) failure to place the
Student at Sulam, Plaintiffs do not identify any faults in
the IEP or the ALJ's review of it.
the Plaintiffs do to distinguish their misgivings with the
IEP from its failure to provide for instruction geared to the
Student's religious and cultural identity as an Orthodox
Jew, that is the crux of this dispute: Is the education
proposed in the IEP a FAPE when it does not account for the
Student's individual religious and cultural needs? The
short answer is yes. Simply put, a FAPE, to which a child
with a disability is entitled, is the education that any
student without disabilities would receive. See
D.L. ex rel. K.L. v. Balt. Bd. of Sch. Comm'rs,
706 F.3d 256, 260-61 (4th Cir. 2013) (" Public schools
are only required to make a FAPE available on equal terms to
all eligible children within their district." ). The IEP
is " individualized" or " personalized"
to ensure that a child can access that education, considering
his or her individual or personal cognitive and developmental
capabilities and needs. In this regard, Plaintiffs have
pointed to no authority, nor have I found any, that expands
the requirement of the IDEA that an IEP be "
individualized" to the extent that it affords a
qualified student with an educational program specifically
tailored to the religious and cultural enclave in which the
student lives. See Rowley, 458 U.S. at 193
n.15 (noting that instruction is individualized when it is
" 'appropriate to [the student's] learning
capacities'" (citation omitted)); Hanson ex rel.
Hanson v. Smith, 212 F.Supp.2d 474, 482 (D. Md. 2002).
Rather, " the intent of the [IDEA] was more to open the
door of public education to handicapped children on
appropriate terms than to guarantee any particular level of
education once inside." Rowley, 458 U.S. at
212 F.Supp.2d at 482 (same). " '[T]he " basic
floor of opportunity" provided by the Act consists of
access to specialized instruction and related services which
are individually designed to provide educational benefit to
the handicapped child.'" Hanson, 212
F.Supp.2d at 482 (quoting Rowley, 458 U.S. at 201).
Thus, the IDEA does not require an IEP to be individualized
to ensure that the child can access a personalized curriculum
based on that child's cultural and religious
circumstances or parents' beliefs. See
Rowley, 458 U.S. at 193 n. 15; Hanson, 212
F.Supp.2d at 482. Therefore, the IEP's admitted failure
to include instruction addressing the Student's religious
and cultural needs and MCPS's failure to place him in a
private school that would account for those needs did not
deprive him of a FAPE when, based on the record before the
ALJ and independently reviewed by me, the IEP that MCPS
proposed did confer educational benefit to the Student as
required by the IDEA.
because " [a]ll that is required [by the IDEA] is that
the disabled child benefit educationally from the
program." Hanson, 212 F.Supp.2d at 488.
Plaintiffs have not shown that, due to the IEP's failure
to include the religious and cultural instruction they
sought, the Student would not have benefitted educationally
from following the IEP or that it affected his access to a
FAPE. " [T]he insistence of parents that a non-public
school setting is more appropriate does not establish the
inappropriateness of the public school, even if the child
would have benefitted more in the private setting."
Id. And, because the IEP did not need to account for
the Student's religious or cultural needs, whether the
Student could generalize the skills he learned in public
school to life within his Orthodox Jewish community, that is,
whether his public school education complemented the
instruction he needed to live as an Orthodox Jew, is not
determinative of whether the IEP provided the Student with a
FAPE. As the ALJ explained in his well-reasoned decision, the
IEP and the Student's proposed placement in public school
were reasonably calculated to provide him with a FAPE for the
2012-13 school year. Indeed, aside from its lack of
provisions for the Student's religious and cultural needs
(which Plaintiffs see as indivisible from the whole), this
fact is uncontested.
also argue that funding the secular portion of the
Student's education at Sulam would not violate the
Establishment Clause. Pls.' Mem. 31. I need not reach
this issue, as Defendants can provide the Student with a FAPE
without placing him at Sulam, as outlined in the IEP.
See Carter, 950 F.2d at 161; In re
Under Seal, 749 F.3d 276, 293 (4th Cir. 2014) ("
'The principle of constitutional avoidance ... requires
the federal courts to avoid rendering constitutional rulings
unless absolutely necessary.'" (quoting Norfolk
S. Ry. v. City of Alexandria, 608 F.3d 150, 157 (4th
Cir. 2010))). Thus, neither Zobrest v. Catalina Foothills
School District, 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d
1 (1993), nor Agostini v. Felton, 521 U.S. 203,
234-35, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997), two
Establishment Clause cases on which Plaintiffs rely, is
apposite. In Zobrest, the Supreme Court concluded
that the provision of a sign language interpreter for a
student attending a Catholic school did not violate the
Establishment Clause of the First Amendment of the United
States Constitution. 509 U.S. at 3, 13-14. Not only the issue
but also the circumstances were different because, there, the
school district was obligated to provide a sign language
interpreter, an expense beyond the standard curriculum, and
it was only a question
of whether the interpreter provided services at the Catholic
school or at a public school. Id. at 10-11. The
partial funding of the student's education at a religious
school was not at issue. See id. Moreover, the
Supreme Court did not consider whether the student was
receiving a FAPE. See id. Likewise, in Agostini
v. Felton, 521 U.S. 203, 234-35, 117 S.Ct. 1997, 138
L.Ed.2d 391 (1997), the Supreme Court considered whether New
York's Title I instruction program could be offered in
parochial schools. As in Zobrest but unlike here,
Title I instruction was " aid [that was] provided to
students at whatever school they chose to attend" and
that was " supplemental to the regular curriculum."
Id. at 228. The Supreme Court held that " a
federally funded program providing supplemental, remedial
instruction to disadvantaged children on a neutral basis is
not invalid under the Establishment Clause when such
instruction is given on the premises of sectarian schools by
government employees pursuant to a program containing
safeguards such as [the payment of funds through a public
agency, rather than directly to the religious school, and the
use of selection criteria for Title I programs that did not
consider the secular or sectarian nature of the
school]." Id. at 234-35. Again, the Court did
not consider whether the students received FAPEs. See
have not shown that " the public school system failed to
provide a free appropriate public education."
See Carter, 950 F.2d at 161. Therefore,
Plaintiffs' are not entitled to judgment as a matter of
law, whereas Defendants are.
it is, this 3rd day of August, 2015, hereby ORDERED that
1. Plaintiffs' Motion for Summary Judgment, ECF No. 12,
2. Defendants' Motion for Summary Judgment, ECF No. 13,
IS GRANTED; and
3. The Clerk IS DIRECTED to CLOSE THIS CASE.
Plaintiffs requested that MCPS " fund
the secular portion of [the Student's] school day"
at Sulam. Compl. ¶ 49.
The parties have fully briefed
cross-motions for summary judgment. ECF Nos. 12, 12-1, 13,
13-1, 14, 15. A hearing is not necessary. See Loc.
In reviewing a motion for summary judgment,
the Court considers the facts in the light most favorable to
the nonmovant, drawing all justifiable inferences in
that party's favor. Ricci v. DeStefano, 557 U.S.
557, 585-86, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009);
George & Co., LLC v. Imagination Entm't Ltd.,
575 F.3d 383, 391-92 (4th Cir. 2009). Where, as here, the
Court is presented with cross-motions for summary judgment,
the facts relevant to each motion must be considered in the
light most favorable to the nonmovant. Mellen v.
Bunting, 327 F.3d 355, 363 (4th Cir. 2003). Unless
otherwise stated, this background is composed of undisputed
facts. See Ricci, 557 U.S. at 585-86;
George & Co., 575 F.3d at 391-92.
Although Plaintiffs dispute which facts are
material, as discussed below, the facts presented here are
" Brenda Browne, Instructional
Specialist in Special Education for the MCPS, accepted as an
expert in special education with an emphasis on culturally
and linguistically diverse students with disabilities,"
testified for MCPS. ALJ Dec. 6.