United States District Court, D. Maryland
J.R., et al.
DR. JACK R. SMITH, et al.
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE
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.
The Individuals with Disabilities Education Improvement
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). 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).
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).
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).
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.).
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).
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).
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.).
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).
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). 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).
appealed that administrative ruling by filing suit against
Defendants in this court on May 25, 2016. (ECF No.
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).
Supplemental Briefing Addressing Endrew F.
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.
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.
Motions for Summary Judgment
Standard of Review
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