2014 WL 4823853
D. Md.2014Background
- K.D. is a 15-year-old ninth-grade student with ADHD and a mixed receptive-expressive language disorder who previously attended Montgomery County Public Schools (MCPS) and now attends a private school in Montgomery County, Maryland.
- K.D. has long struggled with reading and language processing, and MCPS had provided a Section 504 Plan with accommodations since 2010–2011, including extra time, read-aloud accommodations, and notes/test directions in advance.
- In 2011–2012 MCPS revised the 504 Plan, but by January 2012 it removed K.D.'s read-to accommodation without notice or explanation, and teachers sometimes failed to provide other accommodations timely.
- During eighth grade, K.D. faced inconsistent provision of accommodations (notes, study guides, extra time) and relied on after-school tutoring; concerns persisted about her academic progress.
- In 2013 the Parents enrolled K.D. in a private school providing more structured accommodations; MCPS subsequently found her ineligible for special education, continuing to rely on the 504 Plan.
- The Parents filed a due process complaint in June 2013 with the Maryland Office of Administrative Hearings seeking reimbursement and alleging Section 504 discrimination; the ALJ dismissed the complaint in August 2013, and this federal action followed to review that decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MCPS discriminated under §504 by denying adequate accommodations | K.D. was denied FAPE under §504 due to inadequate accommodations and omissions | Sellers standard requires showing bad faith or gross misjudgment, not mere discrimination in effect | Yes; summary judgment for Plaintiffs; discrimination shown and remand for merits |
| Whether the Sellers standard (bad faith or gross misjudgment) applies to §504 discrimination claims here | §504 discrimination can be established without showing bad faith or gross misjudgment | Sellers applies; must show bad faith/gross misjudgment | Court adopts Sellers standard and finds allegations adequate to overcome dismissal pending merits |
| Whether §504 provides a free appropriate public education (FAPE) and whether to grant summary judgment on this point | §504 requires FAPE; ALJ mischaracterized the issue | ALJ entertained §504 claim; no basis to grant summary judgment on this ground | No summary judgment on this ground; ALJ’s posture respected; remand for merits on FAPE under §504 |
| Remand to ALJ for merits under §504 | Case should be remanded to develop merits | Judicial review should affirm/deny based on record | Remand for further administrative proceedings on the merits |
Key Cases Cited
- Sellers ex rel. Sellers v. School Bd. of Manassas, Va., 141 F.3d 524 (4th Cir.1998) (discrimination under §504 requires bad faith or gross misjudgment in education context)
- Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261 (4th Cir.1995) (discrimination standard under §504; burden on showing discrimination on basis of disability)
- Monahan v. Nebraska, 687 F.2d 1164 (8th Cir.1982) (bad faith or gross misjudgment requirement in education §504 context)
- Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176 (U.S. Supreme Court, 1982) (IDEA FAPE standard; progress and educational benefit consideration)
- M.M. ex rel. DM & EM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523 (4th Cir.2002) (educational progress as factor in evaluating FAPE under IDEA/§504 interplay)
- B.M. ex rel. Miller v. S. Callaway R-II Sch. Dist., 732 F.3d 882 (8th Cir.2013) (bad faith/gross misjudgment standard; evidence required beyond negligence)
- M.P. ex rel. K. and D.P. v. Indep. Sch. Dist. No. 721, 326 F.3d 975 (8th Cir.2003) (bad faith/gross misjudgment in addressing harassment and accommodations)