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R.F. v. CECIL County Public Schools

United States District Court, D. Maryland

June 21, 2018

R.F., et al., Plaintiffs,
v.
CECIL COUNTY PUBLIC SCHOOLS, Defendant.

          MEMORANDUM OPINION

          A. David Copperthite United States Magistrate Judge

         Defendant. Cecil County Public Schools ("Defendant"), moves this Court for summary judgment in its favor and against Plaintiffs, R.F.. a minor child, and her parents (collectively, "Plaintiffs"), [1] ("Defendant's Motion") (ECF No. 30). Defendant seeks a ruling from the Court that Plaintiffs cannot prevail on their claims for deprivation of a free appropriate public education ("FAPE") under the Individuals with Disabilities Education Act ("IDEA") and disability discrimination under § 504 of the Rehabilitation Act of 1973 ("§ 504"). Plaintiffs filed an opposition to Defendant's Motion and cross-motion for summary judgment ("Plaintiffs" Cross-Motion) (ECF No. 31).

         After considering the motions and responses thereto (ECF Nos. 32 & 35), the Court finds that no hearing is necessary. See Loc.R. 105.6 (D.Md. 2016). In addition, having reviewed the pleadings of record and all competent and admissible evidence submitted by the parties, the Court finds that there is no genuine issue of material fact as to the claims asserted and that there is insufficient evidence from which a jury could find in Plaintiffs' favor on the deprivation of a FAPE and disability discrimination claims. Accordingly, the Court will GRANT Defendant's Motion (ECF No. 30) and DENY Plaintiffs Cross-Motion (ECF No. 31).

         Factual Background

         This lawsuit arises out of Plaintiffs' allegations that Defendant failed to offer R. a FAPE under IDEA for the 2016-2017 school year and discriminated against R. based on her disability in violation of § 504. Plaintiffs further asserted that the Administrative Law Judge ("ALT') who presided over R.'s due process hearing erroneously applied the law, erred in her factual findings, and erred in determining that Defendant had offered R. a FAPF for the 2016-2017 school year. The facts are viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Here, both parties rely upon the factual findings laid out in the administrative decision issued on May 3, 2017, except to the extent that such factual findings state or incorporate legal findings. See ECF Nos. 30-1 at 5 & 31-1 at 12.

         R. was born on June 15, 2009 and. thus, at the time of the administrative decision. R. was a seven-year-old girl. ECF No. 30-2 at 4; see ECF No. 31 at 1. In 2013, R. was diagnosed with a genetic disorder related to mutation in the HIVEP2 gene, an extremely rare condition with unknown long-term consequences, including those related to learning to perform activities of daily living, processing information, and understanding and expressing language. ECF No. 30-2 at 4. In March 2016, R. was diagnosed with severe autism spectrum disorder at one of the most intensive levels. Id. R. has also been diagnosed with several other disorders, including, inter alia, global developmental delay and an intellectual disability. Id. She exhibits complex, challenging, disruptive behaviors, including hyperactivity and impulsivity which are difficult to control even with medication as well as grabbing people, pulling hair, biting, and placing her mouth on others without biting down. Id. at 5. R. is nonverbal in that she does not regularly use words to communicate and expresses no recognizable speech other than Mommy, " which she sometimes uses toward her mother. Id. at 4-6. R. also has significant neuromuscular deficits, including hypotonia. Id. at 5. R. requires adult supervision and assistance at all times, including when toileting, washing her hands, and managing her clothes. Id.

         R. was identified as a student qualifying for special education and related services and began receiving services through the Maryland State Department of Education's ("MSDE") Infants and Toddlers program when she was two years old under the primary disability of "developmental delay." Id. at 6-7. From 2012 to 2013, R. attended a part-day preschool. ECF No. 31-1 at 8.

         Defendant developed R.'s first individualized education program ("IEP") on June 4, 2014. ECF No. 30-2 at 6. During the 2014-2015 school year, R. attended half-day kindergarten and Defendant provided her with speech and language, occupational, and physical therapy. Id. The majority of R.'s educational program was in general education classes. Defendant further provided R. with extended school year ("ESY") services during the summer of 2015. Id.

         In May 2015, R."s IEP was approved after an IEP team meeting. Id. The May 2015 IEP identified R. as a student with the primary disability of developmental delay and identified the areas affected by her disability as "Early Math Literacy, Reading Comprehension, Speech and Language Expressive and Receptive Language, Behavioral (sensory), and Physical (endurance and gross motor)." Id. at 7. The May 2015 IEP contained goals and objectives in academic, speech and language, physical, and endurance areas. Id.

         R.'s IEP was reviewed and revised on July 30, 2015 in order to discuss R's ESY services and the status of her progress since her May 2015 IEP. Id. The IEP team agreed that during the 2015-2016 school year. R. should be placed in the regular early childhood education program of full-day kindergarten with the majority of her special education services provided outside of the general education classroom because they could not be provided in the regular classroom. Id. at 7-8. Accordingly, the IEP provided that R. would receive educational services outside of the general education classroom for two and a half hours per week and the rest of the week—twenty-nine hours—she would receive services in the general education setting.[2] Id. at 8.

         During the 2015-2016 school year. R. had class with twenty-one students and a paraprofessional accompanied her at all times. Id. She received special education and related services pursuant to her IEP. Id. On February 9, 2016, R.'s IEP was revised at an IEP team meeting, which included Mrs. F.. R."s mother, to reduce R.'s IEP Speech and Receptive Language goal. Id. at 8. Also during this meeting, Mrs. F., as well as R.'s physical therapist, occupational therapist, speech language pathologist, and special education teacher, said that R. was making progress toward her annual goals. Id.

         In the spring of 2016, Defendant ordered multiple assessments, which revealed, inter alia, that R. performed at an extremely low level and demonstrated clinically significant behaviors in the school setting, including hyperactivity and aggression. Id. at 9, 11. Based on these assessments, the IEP team concluded that R. met the criteria for autism spectrum disorder. Id. at 11. Defendant also retained a psychologist with expertise in students with significant disability and autism to create a model functional behavior assessment ("FBA") and train Defendant's staff to conduct FBAs. Id. at 9. Because R. displayed significant behavior difficulties. Defendant's staff conducted a FBA of R.. which indicated that the primary interfering behavior was biting, and, on April 13, 2016, Defendant's staff created a behavior intervention plan CBIP") which listed specific steps that school personnel should take to prevent unwanted behaviors as well as steps for behavior intervention. Id. at 9-10.

         Defendant shared and discussed the FBA with Mrs. F. at the IEP team meeting on May 25. 2016. Id. at 9, 12. In addition to a medical report dated March 16, 2016. the IEP team considered input from Mrs. F, observations, and the results of several tests and assessments in revising R.'s IEP. Id. at 12. Revisions to R.'s IEP included changing her primary disability from developmental delay to multiple disabilities, including autism, and modifying the academic, behavioral, early learning skills, and physical sections of the IEP. Id. at 12-13. The IEP team also reevaluated R. in the areas of academics, expressive and receptive language, fine motor, gross motor, behavior, and functional behavior. Id. at 13. After reviewing and documenting R.'s present level of academic achievement and behavioral and functional performance, the IEP team included supplementary aids and accommodations in the IEP to enable R. to communicate and access her education, including using a NovaChat device, an assistive technology device for communication, and receiving simple verbal communication, highly engaging visuals, and hands-on tasks and activities from Defendant's staff. Id. at 13-14. In the area of behavior intervention, specifically relating to R.'s biting, hair pulling, lying on the floor, and kicking, the IEP team decided that R.'s BIP would be implemented. Id. at 14. Furthermore, the IEP team concluded that R. did not achieve the goals on her kindergarten IEP. Id. at 15.

         Based on the IEP team's discussion and review of the assessments, the team created a fifty-one page IEP containing thirteen goals, each with supporting objectives designed to meet R.'s complex needs as well as specified evaluation methods and a targeted accuracy rate, to address all of R.'s identified special needs. Id. at 16. No. social skills, however, were included. Id. The IEP team agreed that, in order to work on her IEP goals, R. would spend three hours and forty-five minutes per week outside the general education setting, five hours per week in the general education setting, thirty minutes twice per week doing occupational therapy, thirty minutes twice a week doing physical therapy, and twenty minutes five times per week doing speech or language therapy. Id. Overall, the IEP team decided that R. would spend a total of fourteen hours and thirty-five minutes per week in the general education setting and sixteen hours and fifty-five minutes per week outside of general education. Id. Mrs. F. disagreed with the goals and objectives and the decision to place R. in one of Defendant's schools and she advocated against including R. in classes with her nondisabled peers. Id. at 17. Instead. Mrs. F. requested that Defendant place R. at The Benedictine School, a private day school, at Defendant's expense. Id. The IEP team disagreed and wanted R. to participate in a new program Defendant was developing for an intensive communication classroom at a yet-determined location with a yet-determined class size. Id.

         Defendant provided ESY services for R. over the summer of 2016. Id. at 16. On July 7, 2016, the IEP team met to review R.'s progress since the May IEP meeting, including Defendant's latest assessment of R.'s abilities. Id. at 17-21. At that time. Defendant identified R.'s service placement at one of Defendant's elementary schools in an Intensive Communication Support Classroom ("ICSC") with a special program emphasizing communication goals for the 2016-2017 school year. Id. at 17, 22.

         For the 2016-2017 school year. Defendant hired Mr. K to provide special education services in the ICSC, which had low lights and calming music to focus R. and promoted a "teach model" of consistent routine instruction in established locations around the classroom, and generalized support services throughout the school day. ECF Nos. 30-1 at 14 & 30-2 at 22. R. was also provided with her own paraprofessional who stayed with her throughout the day to assist as needed. ECF No. 30-2 at 22. From August 2016 until October 2016, R. was the only student in the ICSC. and after October 2016, another student came into the ICSC for a portion of the afternoon. Id. Defendant did not plan for R. to be the only child in the ICSC, but the other children who were expected to participate did not attend during the fall of 2016 for reasons beyond Defendant's control. Id. Starting in February 2017, one other student attended the ICSC with R. Id. Throughout the 2016-2017 school year, however R. did have access to her nondisabled peers when she walked to specials (e.g., gym, art, and music class), attended recess, went on field trips, attended some reading and math classes, walked around the building every day, and was occasionally joined by a first grade classmate during lunch.[3] Id. at 22-23.

         Moreover, at the beginning of the 2016-2017 school year, R. had difficulty staying seated and quiet in the general education classroom for academic subjects and walking to the classroom. Id. at 23. About three weeks after school started, Mr. K began providing R. with more instruction in the ICSC classroom so that she did not have to walk to the general education classroom and because she could focus and remain attentive for longer periods of time in the ICSC classroom. Id. Thus, from this time until a December 2016 IEP meeting, R. received more than eight hours and forty-five minutes of specially designed instruction to work on her IEP goals every day and she spent more hours in the special education classroom and fewer hours in the general education setting than specified in the Placement section of her IEP. Id. No IEP meeting occurred to discuss these changes with R."s parents.

         Also during the fall of 2016, Defendant implemented R.'s B1P regularly, but sometimes R."s NovaChat was not within her reach. Id. at 25. Moreover, at times, Mr. K did not follow the specific steps in the B1P for behavior intervention. Id.

         On December 16, 2016, the IEP team held an IEP team meeting also attended by Mrs. F, an expert in special education, and Mrs. F.'s attorney. Id. The IEP team considered R.'s significant delays and deficits in academic and communication skills and determined that she required specially-designed instruction outside of the general education setting because of her distractibility and the need to focus her attention, but that she still needed some of her academic services inside general education to provide modeling oflanguage and to facilitate generalization of skills. Id. The IEP team also determined that R. required occupational and physical therapy outside of general education. Id. Mrs. F. again disagreed with the IEP goals and objectives and R."s placement, requesting instead that R. not be included in the general education setting at all during the school day. Id. at 26. Mrs. F. expressed concern that R. was not with disabled peers most of the day when she was outside of the general education setting. Id. Mrs. F. also presented a consultant's report which recommended that R. attend a full-day program for children with autism at The Benedictine School at public expense with full-day ESY services. Id.

         Defendant proposed reducing R.'s time in general education so that she would only attend specials with nondisabled peers and not attend general education sessions in the general education classroom in the afternoon. Id. R.'s parents disapproved of Defendant's proposal. Id. After further discussion, R.'s IEP was revised such that (1) the Services section was changed to reduce the hours spent working on R.'s goals within the general education setting from five hours to two hours and thirty minutes and to increase the time spent outside of the general education setting from three hours and forty-five minutes to six hours and fifteen minutes per week: and (2) the Placement section was changed to increase the hours R. spent in the ICSC special education setting from sixteen hours and fifty-five minutes to twenty-nine hours per week. Id. at 26-27.

         During the 2016-2017 school year, Mr. K collected bimonthly data in class regarding R."s progress toward her goals. Id. at 27. Contrary to Defendant's policies requiring teachers to collect data twice per quarter and maintain data for two years, Mr. K did not keep his notes. Id. Instead, he destroyed them once he wrote R.'s quarterly progress reports, which were prepared in lieu of letter or numeric grades. Id. R. made progress toward achieving some of her IEP goals during the 2016-2017 school year, including several physical and speech and language areas, but not toward achieving her behavior and academic goals. Id. at 27-30.

         Procedural Background

         On January 17, 2017, Plaintiffs filed a Due Process Complaint with the Maryland Office of Administrative Hearings, requesting a hearing to review the identification, evaluation, and placement of R. by Defendant under IDEA during the 2015-2016 and 2016-2017 school years. ECF No. 30-2 at 1. After a fruitless resolution session, the parties attended an administrative hearing held before an ALJ on March 10, 22, 28. 29 and April 4. 2017. Id. at 1-2. On May 3, 2017. the ALJ issued a decision (ECF No. 30-2), summarizing the evidence and finding that Defendant procedurally violated IDEA by altering the location in which some of R.'s services were provided without first notifying her parents, but that despite that violation. Defendant had Unlike other school systems which record service hours as the entire time a student is with a special education teacher in a special education program. Defendant's recorded hours are the amount of instruction that focuses on meeting the student's IEP goals. ECF No. 30-1 at 12-13. To calculate the number of service hours. Defendant uses the amount of specially designed instruction that the IEP team feels is required for that student to make progress on his or her IEP goals. Id. at 12. not deprived R. a FAPE because the IEP and placement created and implemented for R. by Defendant was reasonably calculated to offer R. a FAPE. Id. at 69. Thus, the ALI denied Plaintiffs' request to have R. placed at The Benedictine School or another private day school at public expense. Id.

         On August 4, 2017. Plaintiffs filed suit in this Court against Defendant and two individuals in their official capacity (collectively, ''Defendants"), alleging violations of IDEA, § 504, and 42 U.S.C. § 1983. ECF No. 1 ("the Complaint"). Specifically, Plaintiffs alleged that the adverse decision by the ALJ "was not regularly made" and contained erroneous legal findings, that Defendants intentionally discriminated against students with disabilities, specifically students like R., and that Defendants violated R.'s rights under 42 U.S.C. § 1983. Id. at 10-12. The Complaint sought declaratory and injunctive relief plus damages. Id. at 13-14.

         On August 30, 2017. Defendants moved for partial dismissal, asking that (1) the IDEA and § 504 claims be dismissed as to the individual defendants sued in their official capacity because these statutes do not provide a cause of action against individuals and (2) the § 1983 claim be dismissed as to all Defendants because county school boards are state agencies and state agencies, as well as state officials acting in their official capacity, cannot be sued under § 1983. ECF No. 10-1 at 4-7. Plaintiffs replied to Defendants' motion to dismiss, stating that they did not oppose the dismissal of the individual parties or the § 1983 claim. ECF No. 13 at 2. Accordingly, on October 13, 2017. this Court granted Defendants' partial motion to dismiss, dismissing the two individual parties and Plaintiffs' § 1983 claim. ECF No. 15 at 2. Subsequently, Defendants filed an answer (ECF No. 14) and discovery commenced.

         On March 9, 2018, Defendant filed Defendant's Motion (ECF No. 30), seeking summary judgment against Plaintiffs for depriving R. a FAPE under IDEA and discriminating against her based on her disability in violation of § 504.[5] On April 6, 2018, Plaintiffs filed their opposition and Plaintiffs" Cross-Motion (ECF No. 31) seeking summary judgment in their favor. Plaintiffs filed a reply and opposition (ECF No. 32) on April 26, 2018, and Defendant filed a reply (ECF No. 35) on May 21, 2018. This matter is now fully briefed and the Court has reviewed each party's cross-motion for summary judgment. For the foregoing reasons and pursuant to Federal Rule of Civil Procedure 56(a), Defendant's Motion (ECF No. 30) is granted and Plaintiffs' Cross-Motion (ECF No. 31) is denied.

         Standard of Review

         A. IDEA Claim

         In considering cross-motions for summary judgment in an IDEA case, the "reviewing court is obliged to conduct a modified de novo review of the administrative record, giving due weight to the underlying administrative proceedings." ML. ex rel. Leiman v. Starr. 121 F.Supp.3d 466, 474 (D.Md. 2015) (internal quotation marks omitted) (quoting M.C. v. Starr, No. DKC-13-3617, 2014 WL 7404576. at *6 (D.Md. Dec. 29, 2014)), ajfd, 867 F.3d 487 (4th Cir. 2017). This standard means that a reviewing court must consider an ALJ's findings of fact "prima facie correct" when they are made "in a regular manner and with evidentiary support." Doyle v. Arlington Cty. Sch. Bd, 953 F.2d 100, 105 (4th Cir. 1991). "In determining whether such factual findings were 'regularly made, ' a reviewing court 'should examine the way in which the state administrative authorities have arrived at their administrative decisions and the methods employed.'" E.P. ex rel, J.P. v. Howard Cty. Pub. Sch. Sys., ELH-15-3725, 2017 WL 3608180, at *6-7 (D.Md. Aug. 21, 2017) (citation omitted), appeal docketed. No. 17-2094 (2017). "Factual findings are not regularly made if they are reached through a process that is far from the accepted norm of a fact-linding process." J.P. ex rel. Peterson v. Cty. Sch. Bd. of Hanover. Cty., Va.. 516 F.3d 254, 259 (4th Cir. 2008) (quoting Cty. Sch. Bd. of Henrico Cty., Va. v. Z.P. ex rel. R.P., 399 F.3d 298, 305 (4th Cir. 2005)). If a district court "is not going to follow the[ ALJ's findings], [it] is required to explain why it does not." Doyle, 953 F.2d at 105.

         Once the reviewing court has given the administrative fact-findings due weight, "[t]he Court then reaches its decision based on the preponderance of the evidence." M.L, 121 F.Supp.3d at 474 (citing Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 192, 207 (1982)). "A district court may. for example, "believe that the evidence considered as a whole points to a different legal conclusion, '" despite accepting the factual findings of the ALJ. E.P., 2017 WL 3608180, at *7 (citation omitted). "In making its determination, however, districts courts should not "substitute their own notions of sound educational policy for those of the school authorities which they review.'" Id. Thus, the reviewing court must make an "independent determination" regarding whether the school complied with IDEA. M.L., 121 F.Supp.3d at 493 (citation omitted): see Doyle, 953 F.2d at 103 ("Generally, in reviewing state administrative decisions in IDEA cases, courts arc required to make an independent decision based on a preponderance of the evidence, while giving due weight to state administrative proceedings." (citation omitted)). Moreover, in IDEA cases such as this one, in which the plaintiffs are appealing the administrative decision below, the plaintiffs "face an uphill battle for several reasons, " not only because they must bear the burden of proof with respect to the evidence both in the administrative hearing and on appeal, but also because of the degree of deference owed to the administrative proceedings. Wagner v. Bd. of Educ. of Montgomery Cty., Md, 340 F.Supp.2d 603, 611 (D.Md. 2004).

         Importantly, this standard of review "works in tandem with the general standard of review tor summary judgment, which also applies in IDEA cases." M.L., 121 F.Supp.3d at 475 (quoting MC. 2014 WL 7404576, at *7). Summary judgment is therefore warranted when the moving party demonstrates, through reference to materials in the record, 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); see also M.L., 121 F.Supp.3d at 475 (discussing Rule 56(a) in the context of summary judgment in IDEA cases). "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." M.L., 121 F.Supp.3d at 475. In the case of cross-motions for summary judgment, the court views each motion "in a light most favorable to the non-movant." Id. (quoting Linzer v. Sebelius, No. AW-07-597, 2009 WL 2778269, at *4 (D.Md. Aug. 28, 2009)).

         B. Disability Discrimination Claim

         Pursuant to Rule 56, a movant is entitled to summary judgment where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The party seeking summary judgment bears the initial burden of either establishing that no genuine issue of material fact exists or that a material fact essential to the non-movant's claim is absent. Celotex Corp., 411 U.S. at 322-24. Once the movant has met its burden, the onus is on the non-movant to establish that there is a genuine issue of material fact. Matsushita Elec. Indus. Co., 475 U.S. at 586. In order to meet this burden, the non-movant "may not rest upon the mere allegations or denials of fits] pleadings, " but must instead "set forth specific facts showing that there is a genuine issue for trial." Bouchat v. Bait. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting Fed.R.Civ.P. 56(e)).

         Here, both parties moved for summary judgment. "When faced with cross-motions for summary judgment, the court must review each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law, " and in considering each motion "the court must take care to resolve all factual disputes and any competing, rational inferences in the light most favorable to the party opposing that motion." Rossignol v. Voorhaar.316 F.3d 516, 523 (4th Cir. 2003) (citations and internal quotation marks omitted); see also United States v. Diebold, Inc..369 U.S. 654, 655 (1962) ("On summary judgment the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion."). At the same time, the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (quoting Drewitt v. Pratt,999 F.2d 774, 778-79 (4th Cir. 1993)). The fact that both sides moved for summary judgment "neither establishes] the propriety of deciding a case on summary judgment, nor establish[es] that there is no issue of fact requiring that summary judgment be granted to one side or another." Cont 7 Airlines, Inc. v. United Airlines. Inc.,277 F.3d 499, 511 n.7 (4th Cir. 2002) (internal citations and quotation marks omitted). "The court must deny both motions if ...


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