E.L. v. Chapel Hill-Carrboro Board of Education, 975 F. Supp. 2d 528

Background

E.L., an eight-year-old child with autism, attended FPG and later split enrollment with the private Mariposa School; her parents sought more intensive services and eventually enrolled her full-time at Mariposa.
Parents filed an IDEA due-process petition (filed March 30, 2010); an OAH-appointed ALJ issued a decision largely adverse to E.L. but found the Board failed to provide required speech-language services for two discrete periods in 2009.
The Board appealed that single adverse ruling to the State Review Officer (SRO); the SRO reversed the ALJ on the speech-services issue. E.L. did not appeal the ALJ’s other adverse findings and unsuccessfully sought to quash the Board’s appeal to the SRO on the ground that the ALJ was the state-level reviewer.
E.L. then filed this civil action under 20 U.S.C. § 1415(i)(2) challenging multiple IEPs and seeking reimbursement and fees; the Board moved to dismiss for lack of jurisdiction or for summary judgment; E.L. moved for summary judgment.
The district court held North Carolina’s two-tier administrative review (OAH as local hearing level, NCBOE SRO as state review) is authorized by the IDEA and found E.L. failed to exhaust administrative remedies for all claims except the speech-language-services claim(s) actually appealed by the Board.
On the sole exhausted issue (speech services for April–May 2009 and Sept.–Dec. 2009), the court concluded the IEPs did not require one-on-one therapy, services were provided consistent with the IEPs, and the Board did not deny a FAPE; those claims were dismissed with prejudice; all other claims dismissed without prejudice for failure to exhaust.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether NC’s two-tier administrative system violates the IDEA	ALJ hearing was effectively the “state educational agency” hearing, so no SRO appeal was authorized; ALJ decision was final	North Carolina’s statute designates the State Board of Education (via SRO) as the state educational agency; OAH is a local-tier forum that OAH-appointed ALJs may administer	Two-tier system is authorized; OAH is not the state educational agency and SRO review is proper
Whether E.L. exhausted administrative remedies before filing suit	Exhaustion satisfied because ALJ had decided merits and SRO’s later review addressed the record	E.L. failed to appeal adverse ALJ findings she wished to challenge and therefore did not obtain a final decision from the state educational agency	Most claims not exhausted; only issues actually appealed to SRO are properly before the court
Scope of SRO review when only one party appeals	SRO’s review was effectively of entire record; thus E.L.’s issues were decided by SRO even though she did not appeal	SRO limited to reviewing only the specific findings appealed by the Board	SRO review is limited to issues appealed; unappealed ALJ findings unfavorable to E.L. remain intact
Whether speech-language services (Apr–May 2009; Sept–Dec 2009) violated the IEPs and denied a FAPE	Board failed to provide required one-on-one speech therapy as ALJ found; services were inadequate	IEPs required embedded/classroom-provided services (not one-on-one); SLPs provided direct, embedded therapy and supervision; services met IEP requirements	The IEPs did not require one-on-one therapy; services comported with IEPs; no FAPE denial on these periods

Key Cases Cited

Evans v. B.F. Perkins Co., 166 F.3d 642 (4th Cir. 1999) (standard for Rule 12(b)(1) dismissal)
MM ex rel. DM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523 (4th Cir. 2002) (IDEA exhaustion discussed)
J.P. ex rel. Peterson v. Cnty. Sch. Bd. of Hanover Cnty., Va., 516 F.3d 254 (4th Cir. 2008) (courts must give due weight to administrative proceedings under IDEA)
Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment standard)