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J.R. v. Smith

United States District Court, D. Maryland

August 21, 2017

J.R., et al.
v.
DR. JACK R. SMITH, et al.

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE

         Presently pending and ready for resolution are: (1) a motion for summary judgment filed by Plaintiffs J.R., N.R., and B.R. (“Plaintiffs”) (ECF No. 15); (2) a cross motion for summary judgment filed by Defendants Montgomery County Board of Education and Dr. Jack R. Smith (“Defendants”) (ECF No. 25); and (3) a motion for additional evidence filed by Plaintiffs (ECF No. 16). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Plaintiffs' motions for summary judgment and for additional evidence will be denied, and Defendants' cross motion for summary judgment will be granted.

         I. Background

         A. The Individuals with Disabilities Education Improvement Act

         The Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. § 1400 et seq., requires all states that receive federal funds for education to provide each child who has a disability with a free and appropriate public education (“FAPE”). 20 U.S.C. § 1412(a)(1)(A). To assure delivery of a FAPE, the IDEA requires a school district to provide an Individualized Education Program (“IEP”) for each child determined to be disabled. 20 U.S.C. § 1414(d).[1] The IEP must state the student's current educational status, the annual goals for the student's education, the special educational services and other aids that 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 school environments with non-disabled students. 20 U.S.C. § 1414(d)(1)(A). The student's IEP is formulated by a team (“IEP team”) consisting of the parents or guardian of the child, a representative of the school district, the child's regular and special education teachers, an individual who can interpret results and evaluations of the child, and, when appropriate, the child himself. 20 U.S.C. § 1414(d)(1)(B). Based on the student's IEP, his IEP team will select a school that can provide him a FAPE. The student must be placed in the least restrictive environment (“LRE”) appropriate to the child's needs, with the disabled child participating to the “maximum extent appropriate” in the same activities as his or her non-disabled peers. 20 U.S.C. § 1412(a)(5)(A); see also 34 C.F.R. § 300.550. “The Act contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as nonhandicapped children, but the Act also provides for placement in private schools at public expense where this is not possible.” See Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985) (citing 20 U.S.C. § 1412(5); 34 C.F.R. §§ 300.132, 300.227, 300.307(b), 300.347).

         The IDEA also provides a series of procedural safeguards “designed to ensure that the parents or guardian of a child with a disability are both notified of decisions affecting their child and given an opportunity to object to these decisions.” M.M. ex rel. D.M. v. Sch. Dist. of Greenville Cty., 303 F.3d 523, 527 (4th Cir. 2002) (citation omitted); see also 20 U.S.C. § 1415. If the parents believe that the school district is not providing a FAPE, they may present a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 1415(b)(6). After such a complaint has been received, the parents are entitled to request a due process hearing conducted by the state or local educational agency. 20 U.S.C. § 1415(f).[2]

         Parents challenging an IEP team's school choice “may place the child in a private school and seek reimbursement for the cost of the private school.” See Burlington, 471 U.S. at 369- 70. Parents who unilaterally change their child's placement “do so at their own financial risk.” Id. at 373-74. In order to be entitled to reimbursement for unilateral private placement, the court or hearing officer must find “both that the public placement violated IDEA and that the private school placement was proper under the Act.” Florence Cty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 15 (1993).

         B. Factual Background[3]

         J.R. is a seventeen-year-old student with a long history of behavioral, emotional, and academic difficulties. (ALJ Decision, at 12-13). He has multiple disabilities, including an intellectual disability, a hearing impairment, and a health impairment due to a rare disorder called KBG Syndrome. (Id. at 12). These disabilities qualify J.R. for special education services under the IDEA. (Id.).

         J.R. has been educated under an IEP for his entire formal education. (Id.). In 2007, tests evaluating J.R.'s intellectual ability placed him in the “low average” range with specific learning disabilities. In the fourth grade, Defendant Montgomery County Public Schools began funding private school education for J.R. at the Frost School, which specializes in students with significant behavioral problems, but teaches academics at grade level. (Id. at 13). He went to the Frost School for the fourth, fifth, and part of the sixth grade, and attended High Road Academy (“High Road”) for the remainder of the sixth grade through the end of the eighth grade in 2015. (Id. at 12). High Road is a school for students with learning disabilities who are still pursuing a high school diploma, but the school is not designed for children with extreme behavioral issues. (Id. at 13). J.R. made minimal educational progress during his time there. (Id.). His behavior did improve over time at High Road, but he continued to exhibit behavioral issues that were described as low frequency, but high intensity throughout his time there. (Id. at 14).

         High Road was willing to keep J.R. for its high school program, but, at the suggestion of one of Plaintiffs' consultants, Dr. Joseph Beiderman, his parents proposed transitioning J.R. out of the diploma track program and into a less difficult certificate track program. (Id. at 16). Before removing J.R. from a diploma track, his IEP team decided to do a reevaluation of his intellectual ability. (Id.). Defendants' School Psychologist Dr. Dietra Reiser conducted several tests as part of the re-evaluation, the results of which showed that J.R. was in the “lower extreme” of intellectual ability, scoring below the 0.1 percentile on one test and scoring the equivalent to an IQ of 47. (Id. at 16-17). Given these results, Dr. Reiser found that J.R. should be in a program for students with an intellectual disability rather than specific learning disabilities. (Id. at 17-18). Because High Road did not offer a certificate program, J.R. was referred to the school district's Central IEP (“CIEP”) team, which oversees school placements. (Id. at 17). At a meeting on June 9, 2015, J.R.'s CIEP team agreed that he should be moved to a certificate track program. (Id. at 18).

         Prior to the June 9 meeting, the school district had discussed only two certificate track schools with J.R.'s parents: Ivymount and the Katherine Thomas School. (Id. at 17). At the meeting, however, George Moore, the chair of J.R.'s CIEP team, proposed Rock Terrace School (“RTS”), a public school designed for students with significant cognitive disabilities and complex emotional, behavioral, or sensory needs. (Id. at 18, 20). The CIEP team continued their meeting to allow Plaintiffs to visit RTS, and reconvened on August 7 to make a final decision. (Id. at 18). In the meantime, J.R. applied to and was accepted by Ivymount. (Id.).

         At the August 7 meeting, RTS principal Dr. Katherine Lertora explained in some detail that she had reviewed J.R.'s file and believed that RTS would be an appropriate placement for him. (Id. at 19). Plaintiffs had concerns about the behavior management capabilities, teaching methods, and class sizes at RTS, and preferred Ivymount. (Id. at 18-19). Over the objection of J.R.'s parents, the CIEP team decided to place him at RTS for the 2015-16 school year. (Id. at 19).

         C. Procedural Background

         Rather than send J.R to RTS, Plaintiffs enrolled him at Ivymount and filed a due process complaint against Defendants for reimbursement. (ALJ Decision, at 19). An administrative law judge (“ALJ”) held a due process hearing for Plaintiffs beginning in November 2015, and issued a decision on February 12, 2016, finding that Defendants' placement of J.R. at RTS was reasonably calculated to provide a FAPE. (Id. at 43).[4] As discussed more fully below, the ALJ also found that the CIEP team had not pre-determined where it would send J.R. prior to the August 7 CIEP team meeting, and that certain discovery issues that occurred during the hearing did not diminish the efficacy of Plaintiffs' case. (Id. at 45).

         Plaintiffs appealed that administrative ruling by filing suit against Defendants in this court on May 25, 2016. (ECF No. 1).[5] The administrative record was filed with the court on June 6, 2016, and the parties, expecting that the case could be resolved on cross-motions for summary judgment, set a briefing schedule that was set to conclude on January 9, 2017. (ECF Nos. 7; 11). After an extension of time, the parties completed filing their cross-motion papers on January 19. (ECF Nos. 15; 25; 26; 29). Shortly thereafter, on January 31, the parties filed a consent motion to hold the case in abeyance pending the outcome of a case in the Supreme Court of the United States, Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988 (2017), which was set to review the FAPE standard. (ECF No. 30). That motion was granted (ECF No. 31), and the case was stayed until Endrew F. was decided. After the Supreme Court issued its opinion on March 11, the parties submitted additional briefing as to the effect of Endrew F. (ECF Nos. 32-35). Plaintiffs have also filed a motion for additional evidence, which has been briefed in full. (ECF Nos. 16; 21; 22).

         D. Supplemental Briefing Addressing Endrew F.

         Before addressing the merits of this case, it is necessary to consider whether the Supreme Court's decision in Endrew F. compels the remand of the case to the ALJ for a decision under the Endrew F. standard. Plaintiffs argue that a remand is required because the ALJ applied the “more than de minimus” standard that the Supreme Court rejected in Endrew F. (ECF No. 34, at 6-8). The primary holding of the Supreme Court's decision in Endrew F. was its rejection of this standard, which the United States Courts of Appeals for the Fourth Circuit and the Tenth Circuit had applied previously. See O.S. v. Fairfax Cty. Sch. Bd., 804 F.3d 354, 358-60 (4th Cir. 2015); Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 798 F.3d 1329, 1338-41 (10th Cir. 2015). The Supreme Court held that the statutory language of the IDEA demanded more than the Tenth Circuit had required, and it articulated a new standard: “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Endrew F., 137 S.Ct. at 999. According to the Court, a student's placement must include “challenging objectives” that are “appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom.” Id. at 1000.

         Plaintiffs contend that the ALJ applied the now-invalid Fourth Circuit standard from O.S., and that the decision should be vacated so that the new standard can be applied. (ECF No. 34, at 8). Plaintiffs' argument, however, is more focused on the Supreme Court's rejection of the Fourth Circuit standard than the standard that the ALJ actually applied in this case. As Defendants point out, the ALJ never cited O.S. in her decision. Rather, she focused on whether the placement of J.R. at RTS was “reasonably calculated to enable the child to receive educational benefits.” (ALJ Decision, at 21 (citing Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982))). She noted that courts had defined the word “appropriate” in a FAPE to require “personalized instruction with sufficient support services to permit the student to benefit, ” and cited to older Fourth Circuit precedent that required that a placement be calculated “to enable [a student] to receive appropriate educational benefit.” (Id. at 22). The ALJ also emphasized that an IEP “must be tailored to the student's particular needs, ” taking into account the strengths of the child, the concerns of the parent, the results of evaluations, and the academic, developmental, and functional needs of the child. (Id.). In short, even though the ALJ made her decision prior to the Supreme Court's articulation of the Endrew F. standard, she went beyond the “more than de minimus” standard from O.S. and laid out an approach that evaluated what progress was appropriate in light of the child's circumstances, just as Endrew F. requires.[6]

         II. Motions for Summary Judgment

         A. Standard of Review

         In M.M. ex rel. D.M., 303 F.3d at 530-31 (internal quotation marks and citations omitted), the Fourth Circuit explained the standard of review for motions for summary judgment in IDEA cases:

In a judicial proceeding under the IDEA, a reviewing court is obliged to conduct a modified de novo review, giving due weight to the underlying administrative proceedings. In such a situation, findings of fact made in administrative proceedings are considered to be prima facie correct, and if a reviewing court fails to adhere to them, it is obliged to explain why. The court is not, however, to ...

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