United States District Court, D. Maryland
David Copperthite United States Magistrate Judge
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"), 
("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).
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).
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.
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.
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
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.
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.
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. Id. at 8.
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.
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.
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.
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.
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.
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. Id. at 22-23.
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.
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
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.
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.
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.
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.
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.
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
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 §
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.
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.
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).
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)).
Disability Discrimination Claim
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)).
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 ...