*3 Before WILKINS, Chief Judge, and WILLIAMS and GREGORY, Circuit Judges.
Reversed and remanded published opinion. Chief Judge WILKINS wrote the majority opinion, in which Judge joined. WILLIAMS Judge GREGORY wrote a dissenting opinion.
OPINION WILKINS, Chief Judge: The of a minor child with disabilities, brought this action on his be- half against the Alexandria City School Board, alleging that City Alexandria Pub- lic (“ACPS”) Schools violated the Individu- als with Disabilities Education Act (IDEA), see 20 U.S.C.A. §§ 1400-1487 (West Supp.2006). The parents appeal an order granting summary judgment against them. We reverse and remand for further proceedings.
I.
A. provides IDEA every disabled child with the right to a “free appropriate public (FAPE) education” designed to meet his 675 Rowley, v. Bd. benefits.” 1400(d)(1)(A). cational of Educ. Id. needs. specialized 3034, 73 102 S.Ct. U.S. 458 a FAPE defined has Congress (1982). L.Ed.2d services related and education pub- “procedural provides also (A) provided been IDEA have ... participation full supervision insure public safeguards under expense, lic (B) of meet resolution charge; proper direction, without of Comm. disagreements.” the State standards substantive Mass., ... Educ. appropriate Dep’t (C) Burlington include agency; (D) 1996, 85 involved; and S.Ct. in the State 471 U.S. (internal indi- quotation (1985) conformity with L.Ed.2d provided are *4 here, those omitted). required As is relevant program education marks vidualized present to 1414(d) right this title. the of include safeguards section under re any matter to respect “with complaint 1401(9). §Id. evaluation, or identification, the lating to by cre FAPE provides A school child, or the the of educational pro education “individualized an ating edu public appropriate free of a provision id. See child. each (“IEP”) for gram” 20 U.S.C.A. child.” to such cation Z.P. Bd. County 1414(d)(1)(A); § 1415(f). The § id. 1415(b)(6)(A); see § (4th Cir. 298, 300 R.P., rel. ex aggrieved party authorizes also IDEA IEP, the school the creating 2005). Before intend proceeding administrative state the evaluation initial an conduct must district challenge to complaint the to resolve ed and to eligibility the student’s to determine action. See court a federal decision the See 20 needs. educational identify his an is action 1415(i)(2)(A). an Such § id. child If the 1414(a)(l)(A)-(C). § U.S.C.A. the dis in which action civil independent by an created is IEP an eligible, is deemed administra the state court considers trict par child’s the of comprised Team” “IEP any new as record, well as hearing tive teachers, regular his of ents, one at least offer, makes and parties evidence teach education special his of one at least of evi preponderance aby findings indi representative, ers, board a school Although 1415(i)(2)(C). § id. See dence. results interpret evaluation can who vidual independent is an action court federal or the teachers (who either may be to weight” “due give must action, the court and, appro if representative), board school Row proceeding. administrative the state id. See himself. child priate, 206, 102 S.Ct. U.S. ley, 458 must outline 1414(d)(1)(B). § sta then-current the student’s B. detail and goals, annual tus, establish receive eligible found first A.K. was aids other and services special educational IDEA under services id. See provided. bewill child time, At one-half. and two age provide, must It 1414(d)(1)(A)®. also § Prag- Semantic with diagnosed was A.K. date projected “the things, among other characteris- with Disorder Language matic modi and the services beginning disability. A.K. learning nonverbal tics frequen anticipated ..., and fications nu- as well diagnosed been since has services of those location, duration and cy, Asper- disorders, including other merous Id. modifications.” and compulsive obsessive Syndrome gers substan- IEP is An 1414(d)(l)(A)(i)(VII). in the educated was disorder. “reasonably calcu- if it is satisfactory tively grade the seventh through system school edu- to receive child enable lated until he began to be teased and assaulted Sullivan, Susan ACPS’s private placement by other students an extent that he no specialist and the IEP team chairperson, longer (“the felt safe. A.K.’s parents par- suggested the Kellar School and the Phil- ents”) subsequently searched unsuccessful- lips School possibilities. A.K.’s mother ly for a private day school the Washing- responded that she did not believe either ton, D.C. metropolitan area that could of those schools would be appropriate. meet their son’s specialized needs. The meeting closed without any significant discussion about the appropriateness For the 2003-04 year, when A.K. Kellar or or other possible eighth grade, en- private day schools. rolled A.K. in the School, Riverview a resi- dential school in Massachusetts, pursuant The resulting IEP contained detailed to a settlement between the parents discussion A.K.’s then-current level of ACPS. ACPS proposed had local performance. It also set goals forth day school but agreed to fund the portion objectives, along with a plan to aid A.K. in of Riverview tuition that was equivalent to the transition from Riverview to a private private day placement. The par- However, school. it did not identify *5 ents very happy with progress A.K’s any particular school but simply listed at Riverview. placement A.K.’s as “Level II —Private Day placement.” School preparation
In J.A. 379. for Based the 2004-05 school on their objection year, to that placement, A.K.’s team, IEP which included parents refused sign to personnel, ACPS IEP.2 personnel, Riverview and the parents, met on May 21 28, 2004, and 2004, July ACPS sent out applications 9, and June 2004 for a total of eight to ten on A.K.’s behalf to five area private day hours. Until the last half hour of the final schools: The School, Lab The Ivymount meeting, the spent team its time defining School, School, Oakmont Phillips, and Kel- A.K.’s performance level of and setting lar. Based on applications provided, goals objectives for the upcoming The Lab School (and and Oakmont per- year. only With a few minutes of discus- haps Ivymount) determined that they sion regarding placement, ACPS an- could provide not A.K. a FAPE due to the nounced that A.K. placed should be at an complexity his disabilities.3 However, unspecified private day school.1 Unaware Phillips and Kellar both indicated that any private day school in the area they believed, based on the information equipped to meet specialized A.K.’s needs, they had received, that they an had appro- parents asked representatives priate program A.K., for and invited him private which day school he could attend. and his parents to visit the school. 1.The district court found ''[p]rivate day 2. On July signed only the IEP school is a term of art describing as it related to the year (ESY) extended school an program which provided includes services to be sever for A.K. in the sum- al characteristics mer such as a small 2004 but overall to stu continued refuse accept size, body plan dent classes, regard with small facility, small 2004-05 school year. extensive clinical support, ability to work individually student, with a extensive behav Ivymount An representative informed Sulli- management, ioral parental involve van that the school did space not have avail- ment.” A.K. ex rel. J.K. v. City Alexandria able for testified, A.K. A.K.’s however, mother Bd., 409 F.Supp.2d (E.D.Va. that the representative same also told her that 2005). Ivymount's program would not ap- have been propriate for any A.K. in event. majority Phillips in The of students at are toured both schools A.K.’s mother and, old, ex- consulting they after with some a July,4 years 14-18 have wide A.K., deter- familiar with who were perts range of disabilities. Students with simi- neither would be able mined that school generally grouped together lar needs are specialized Having needs. meet A.K.’s in particular Phillips classrooms. utilizes a any private to find local been unable progressive system, level in which students they provide believed could given responsibility are more freedom and July parents, on A.K. with and academic motivation as their behavior requested an administrative Heyer, super- Laura improve. program to deter- process hearing due previously taught visor at who had A.K. a mine whether ACPS had offered years, at the school for 10 testified that FAPE. ACPS sent a letter to why not know of reason Phil- she did that Phil- early August informing them lips provide appropriate pro- could not inter- and Kellar wanted to schedule lips gram expressed for A.K. Susan Sullivan parents, having but the views opinion. the same those schools could not determined Testimony showed that the Kellar needs, to sched- serve A.K.’s did seek middle and School is smaller interviews. ule such Kellar, At high school students. the stu- process hearing, At the due dents work teams with a counselor in the notion that a challenge did not help each classroom to the students. Like theoretically day school could meet Phillips, employs system, Kellar a level needs, they argued that the failed but gain independence which under students identify particular school in the area *6 habits, work, and as their work academic they that had not that could do so and improve. Sullivan testified that behavior Thus, parents been able to find one.5 she Kellar would have been able believed sought reimbursement for their Riverview provide A.K. with a beneficial education. ground that had failed tuition on the ACPS pro a FAPE and Riverview to offer A.K. hand, parents, present on the other appropriate vided an education. testimony experts from two that neither ed Phillips spe nor Kellar could meet A.K.’s presented testimony regard- Both sides They presented cialized needs. first Kellar, or Riverview ing Phillips, whether Weitz, testimony Cheryl a licensed so individual appropriate for A.K.’s practice psycho in the of child cial worker testimony established that needs. ACPS’s in IEP de therapy frequently who works individualized Phillips provides School many that velopment. She testified programs implemented dis Phillips aggressive, at were students group It also offers small classroom staff. tes occasionally violent. She instruction, intervention, ruptive, one-on-one A.K., that if expect that she would development, and tified speech language into that daily-living placed Phillips, “regress skills. would training in social and supplemental were previously her at- and that certain services 4. She had toured both in appropriate tempts properly parents to find an local further not described. day school for A.K. argued in the that ESY services included IEP August were never July 2004 to for challenged adequacy parents 5. The also provided. claims were also raised be- These IEP, contending the services described in the court; however, they are not the district fore pri- that A.K. needed more than one hour germane appeal. to this week, counseling per transi- vate that needed adequately specified, were not tion services fearful, ing specifically anxious state where he would be officer did not resolve the self-protection.” in J.A. that parents’ more shutdown contentions and Kel- opined Phillips’ FAPE, 921. also that focus She lar could not offer A.K. a he did in eliminating problems on behavior and identify partic- discuss failure to ACPS’s try motivating students to to learn would special- ular school that could meet A.K.’s significant not have cause who did ized needs: problems, behavior or motivation to re specify The fact that ACPS did not cognitively. expressed gress She similar particular private day program suggests concerns about Kellar based on her view to me that to give ACPS wanted many that Kellar educated with children parents flexibility possible as much on psychiatric problems who often are violent private day possibili- this issue. Several only attend short suggested, ties were and the period. although that She stated she be given option choosing [were] educationally lieved A.K. could benefit one which was most attractive to them. private day from a school “if the structure they The fact that found none of the appropriate,” she did not believe that possibilities attractive does not mean either Kellar or Phillips appro “would be approach that the ACPS was not ac- priate” considering A.K.’s needs. Id. at cordance with the FAPE mandates. 923-24.6 Thus I conclude that private place- Stixrud, Dr. a neuropsychologist William provide ment does FAPE. in private practice, expressed similar res- Id. prospects ervations about A.K.’s having significant number of students result, Dissatisfied with this psychiatric problems. and behavior brought present civil action federal opined Dr. Stixrud a setting such court, again seeking district reimburse- “counter-productive would be in terms of They ment for their Riverview tuition. availability for learning [A.K.’s] and his alleged only failed to ability to benefit from education that fo- also, here, offer a but as is relevant cuses on academics or adaptive behavior.” notify had failed *7 Weitz, Id. at 1006. Like Dr. Stixrud did meetings private day before the IEP that testify private day not that no school could placements their area would be consid- Rather, meet A.K.’s needs. he testified granted summary ered. The district court that multiple overlapped, disabilities judgment against parents. the A.K. See providing complex challenges a set of re- Bd., City ex rel. J.K. v. Alexandria Sch. quiring very specific type a of learning (E.D.Va.2005). F.Supp.2d 409 689 theOn environment in order for A.K. to make question, notification the district court academic progress. He testified that he parents ruled that the were on notice that was any private day not aware of private their area would be geographically accessible to A.K. considered because ACPS had recom- could specialized meet A.K.’s needs. private day placement mended
The the hearing parents’ year. officer denied the 2003-04 school See id. at 693. regard claim. He compliance, concluded that ACPS did offer With to substantive the A.K. a by offering FAPE him education at district court concluded that ACPS’s men- “private day Although tioning school.” the hear- of Kellar Phillips during lips group 6. On the issue of with violent stu- would be able to students to ac- dents, varying Sullivan testified that she believed Phil- commodate their needs.
679
(4th
Lawson,
315,
D.B. v.
354 F.3d
“place-
a
meeting
constituted
final
Cir.2004).
(1)
may recover if
parent
at
“The
two schools.
Id.
of those
ment offer”
proposed
inadequate
IEP was
to offer
testimony of the ACPS
Citing the
694.
(2)
private
a FAPE
the child
edu-
appropriate,
offer was
that the
officials
parents
cation services obtained
offered
found that ACPS
district court
appropriate to the child’s needs.” Id.
a FAPE. See id.
694-95.
parents
The
bore the burden
II.
IEP was
proving
here of
substan
parents argue that the district
The
tively
Spielberg
deficient.
rel.
See
ex
that the school
determining
court erred
Sch.,
County
v. Henrico
Pub.
Spielberg
com
complied with the substantive
district
(4th Cir.1988) (as
258 n. 2
particular,
they
IDEA. In
of the
ponents
signing
party challenging
burden to
failed to offer a
maintain that ACPS
decision);
hearing officer’s
ex
cf. Schaffer
identify
IEP did not
FAPE because its
Weast,
rel.
v.
546 U.S.
Schaffer
anticipated
it
particular school
which
(2005)
528, 537,
deference to the legal of an incorrect stan- upon application in a change location “results dilution of the dard. id. at 309. See or a quality depar- student’s education ture from the student’s restrictive [least IDEA that an IEP must provides environment]-compliant setting.” Id. at projected beginning state “the date for the 682. ..., modifications of the services and location, frequency, anticipated light In of the fact that the school at and modifica- duration of those services special which ex education services are 1414(d)(l)(A)(i)(VTI) § tions.” 20 U.S.C.A. pected provided to can determine the be added). Report (emphasis Senate appropriateness plan, of an it concerning the 1997 amendments to the stands to reason that it can be a critical IDEA, requirement that which added the element for the to address. See Paolo identified, noted that the the location be Annino, The 1997 Amendments new the fact that requirement reflects Quality IDEA: Improving Special
location “influences decisions about the na-
Disabilities,
Education
Children with
ture and amount of these services and
Physical Disability
Rep.
23 Mental &
L.
they
provided.” S.Rep.
when
should be
(Jan./Feb.1999)
125,
105-17,
(1997),
(noting
at 21
126
that re
Cong.
No.
U.S.Code
1997, 78,
Indeed,
& AdmimNews
we
quirement
identify
that IEP
location at
previously
im
potential
have
discussed the
special
expected
which
education is
to be
portance of
particular
location at which provided reflects the fact that
“[a]ll
special
provided.
educational services are
uniform”).
and classes are not
But see
County
See
ex rel.
v.
AW
Wilson
Fairfax
White ex rel. White v. Ascension Parish
(4th Cir.2004).
Bd.,
Sch.
681 Dist., proceeded That to City 238 ACPS submit Bexley rel. Knable Cir.2001) (similar). on A.K.’s behalf to applications five differ 755, 768 schools, day at two of private ent least Here, matter of law that hold as a we indicated, meeting which without even identify particular to a because it failed they satisfy spe that could not his school, reasonably calcu- the IEP was needs, only highlights cialized the need for A.K. to receive educational lated to enable identify the IEP team and the IEP to a 102 Rowley, 458 U.S. benefits. See particular school. With the not iden Indeed, an presents this case S.Ct. 3034. (because tifying any particular school un- example of the circumstances excellent issue), IEP team had not discussed the particular of a school der which inclusion parents were left to fend for to themselves of whether in an IEP can be determinative determine day private whether school The parents a FAPE has been offered. in including ap their the five ACPS area — private day an agree appropriate that plied satisfactory to—would be a fit. This FAPE; they a favor provide school could designed is not how the IDEA to only because keeping A.K. at Riverview Glendale, 122 F.Supp.2d work. See day in they private have not found a school identify that a failure to a (noting special- that could meet A.K’s their area “an particular places school undue burden Yet, development the IEP ized needs. parent potentially inap on a to eliminate any significant without process concluded propriate placements, and makes it more such a school exist- discussion of whether parent difficult for a to decide whether to ed, did, if it how it would be a satisfacto- or accept challenge or the school district’s Although men- ry match for A.K. Sullivan offer”).9 Rather, discussing the “[a]fter that Kellar during meeting tioned an IEP advantages disadvantages of various placements, Phillips possible would be might that serve the needs of a programs the IEP team had never considered wheth- child,” it is incumbent on the particular particular er these schools would be able expertise district to utilize its to In- satisfy specialized to needs. placement “clearly identify appropriate an Cohen, deed, IEP team member Jill Id. at range possibilities.”10 from the acknowl- specialist, autism resource process hearing due that edged at finding that ACPS offered recommending the IEP signed when she erroneously a the district court day knowledge school she had no made a being premise relied on the “ACPS any specific private at the School placement offer both considered. Rather, MM, change in school constitutes in the school district had 9. We note that only change "re- agreed provide special change education services if the we quality two different schools and [the] at either of a dilution of the sult[ed] had held that the district offered departure nonetheless education or a from student's MM, AW, F.3d at 535. The a FAPE. See setting.” LRE-compliant student’s there, however, provides indica- opinion no F.3d at 682. objected particular tion that the IEP-development emphasize We argued that the school schools at issue or Thus, cooperative one. if the process is a single school. district should have identified schools dur- district identifies several See id. serve ing process that it believes would child, parents will have the the needs say change that a in the 10. That is not preference opportunity voice their before provided services were to be school where change placement. IEP is finalized. would constitute *10 682 A.K., of satisfactorily provide 409 that can the level
and the Kellar School.” describes, a that the IEP the IEP F.Supp.2d evaluating at 694. In whether services identify a court to offer a school district offered must such school limit to generally must its consideration FAPE. Z.P., of the IEP itself. 399 the terms See determination that the school dis- Our Knable, 5;n. F.3d at 768. F.3d at 306 a FAPE not re- trict failed to offer does Dist., MM rel. DM v.
But
ex
cf.
claim,
parents’
solve the
reimbursement
Cir.2002)
(evaluating
however. The claim remains unresolved
parents’
coop
lack of
proposed
when
because the district court has not made
IEP team from finaliz
prevented
eration
findings regarding
appropriateness
the
IEP).
of a
ing
Expanding
scope
the
Z.P.,
placement
at Riverview. See
a comment made
district’s offer to include
Thus,
683 1414(d)(l)(A)(i)(VII) concerns itself deny A.K. a FAPE. Section not and did procedural logistical considerations with some of the er- the school district’s I believe Because might making have when a deci- harmless, respectfully I dissent. ror was (cid:127) child’s education. regarding sion their I. date, starting frequency, lo- projected The cation, and duration of the child’s edu- he a student claims in which cases practical cational sessions are relevant to inquire first into we was denied scheduling concerns like child’s complied with school district whether the transporta- for the arranging child’s of the IDEA. requirements procedural tion. See White v. Ascension Parish Sch. 176, Rowley, 458 U.S. Educ. v. Bd. See (5th Cir.2003) (“The Bd., 373, 379 343 F.3d 3084, 690 206-07, 73 L.Ed.2d 102 S.Ct. requires specify that the IEP to provision (1982). violated one or if ACPS Even primarily location is administra- require- procedural the IDEA’S more of ”). tive .... ments, accept- received an may have a FAPE. DiBuo See opportunity able understanding of location is consis- This (4th Educ., F.3d 190 309 v. Bd. precedent. defining our When tent with Cir.2002) procedural that a viola- (ruling as it is used placement educational deny cannot a disabled tion of the IDEA “stay put” provision, repeated- IDEA’S we not the violation does child a FAPE when distinguished placement ly a FAPE to provision interfere with from location. See A.W. v. Coun- Fairfax child); Educ. v. County Burke Bd. (4th that Bd., ty 372 F.3d 681-83 Cir.1990). Denton, 982 Cir.2004). Concluding that educational oppor- an educational If A.K. did not lose referred to “instructional error, procedural tunity a result of the setting,” emphasized this Court DiBuo, FAPE. not denied a See he was “precise to the placement did not refer at 190. setting” “precise location of or the disabled stu- physical location where IEP majority is correct that A.K.’s Id. at 681. As it is dent is educated.” requirements. meet the IDEA’S did not (and par- in the IDEA in common used specify the IEP did Specifically, lance), then, something location refers to at which the school location anticipated or locale. place in nature: geographic provide special education district would understanding This is consistent with requires IDEA services to A.K. The 1414(d)(l)(A)(i)(VII) deals notion that .§ date for the projected an IEP include “the practical, logistical considerations. and modifications beginning of the services (IV), and the antici- in subclause chart described IEP contains a A.K.’s 2004-2005 location, and duration of pated frequency, OF with a column labeled “LOCATION ” modifications.... those services and That column bears soli- SERVICES.” 1414(d)(l)(A)(i)(VII) (Supp.2004). entry “SpeEd [illegible],” § reference tary U.S.C. location as it is A.K. would re- type does not define of education statute 1414(d)(l)(A)(i)(VII), ceive, he would but not the location which used in Thus, flawed.1 than it. was something refer to other receive term must however, error, only proce- more placement, something ACPS’s an educational dural. geographic locale. particular akin to a "regular.” descriptions, whatever These developed for A.K. in I note that in IEPs value, satisfy require- the IDEA’S their do not previous years, the “LOCATION OF SER- anticipat- that the school district list such entries as ment VICES” column contained did, Edu,” "Consult,” Edu,” They in the IEP. ed location of services "Special "General *12 bright distinguishing procedural line all “[w]hether
There is no violation of the requirements “procedural” support finding IDEA can that a school require- IDEA from its “substantive” district provide failed to a disabled child drawn, If a line could be it ments.2 such a FAPE procedural with when the viola- by looking to the conse- might be done actually tion did not with the interfere of the IDEA re- quences of the violation provision a FAPE to that child.” 309 question. in The violation of a quirement F.3d at 190. question, The answer to the results, requirement of neces- substantive said, we is no. Id. DiBuo and the it cases sity, in the denial of a whereas the something cites make clear that more than requirement procedural violation of a does simple procedural violation in must exist not, DiBuo, see 309 F.3d 190. More aggrieved order for an prevail student to majority acknowledges than once the appeal: in this sort of the violation must identify the location of the failure to result some loss of educational benefit provision education services on a opportunity simply or and cannot abe always IEP need not student’s result harmless error. See id. Here A.K. lost the denial of a FAPE. See ante 682. opportunity no educational and therefore supports This concession the conclusion was not denied a FAPE. requirement that the that a school district give anticipated location on the IEP is out, pointed As district court ACPS only procedural. majority But then the recommended both the and Kellar explanation states without it “views options schools as for A.K. during the June alleged deficiency claim as an [A.K.’s] meeting. 9 IEP A.K. ex rel. J.K. v. Alex- offering what was than ACPS rather in the Bd., City andria 409 F.Supp.2d procedure by which the offer was devel- (E.D.Va.2005). Whether or not there oped conveyed” or and therefore considers was extensive discussion of the schools violation to be ACPS’s substantive. during meeting, Susan Sullivan named erred, n. It Ante 679 7. is not. ACPS but possible the schools as locations at which procedural. error was might case, be educated. In A.K.’s this oral equivalent notice was to the writ-
II. ten requires: notice the IDEA after Sulli- suggestions made, van’s par- error were A.K.’s deny ACPS’s did not A.K. a DiBuo, FAPE. this Court asked ents knew with a degree reasonable however, satisfy parents: presented A.K.'s A.K.’s ample during mother evidence the 2004 signed specify IEPs that did not location for process hearing justify due its choice of both the 2002-2003 and 2003-2004 school private day placement for A.K. To obtain years objection point. without on this funding preferred for their school a second signed A.K.'s mother the 2003-2004 IEP as time, are left with a claim that a part agreement of a settlement between the oversight procedural denied A.K. some edu- parents and Under ACPS. the terms- of the opportunity. cational agreement, "pri- consented to the placement” designated vate in the Although § 20 U.S.C. 1415 addresses itself exchange partial funding IEP in for ACPS's specifically procedural safeguards, we have year. A.K.'s education at Riverview that requirements found several of the listed in Then, now, parents' complaint as true See, procedural e.g., 1414 to be as well. that A.K. should be at Riverview and not in DiBuo, 187, 190-92; 309 F.3d at MM ex rel. private day placement Unfortunately, at all. Dist., DM v. Sch. ACPS refused to subsidize A.K.'s Riverview Cir.2002). year education for the 2004-2005 school schools. She visited schools residential to edu- or proposed certainty where Kellar) and year. (including Phillips and worked following school their child cate to ensure Kellar suc- Phillips and teachers by ACPS possibilities named only placements. ones She knew case cessful A.K.’s infor- sent district until students in both placed and had other well day schools other to several mation schools before. Her Phillips and Kellar meeting, during the July on precise- A.K. were of recommendations *13 as such. them understood parents A.K.’s job to make. The ly the sort it was her by process the govern does not IDEA of the mention majority discounts The at her recommenda- because, IEP she must arrive says, it the which two schools these tions, problem whether those I either find no had never considered team satisfy to expertise would able or her upon schools be her particular reliance her This ob- 1414(d)(3)(B) ante 681-82. § See A.K.’s needs. suggestions. ultimate Cf. bearing question on the no jection has team must consider (listing factors IEP loca- specify a failure to ACPS’s whether IEP). developing while majori- IEP harmed A.K. on the tion that an IEP require IDEA does not par- A.K.’s is that concern ty’s principal pro- for the identify the definitive location was where them child no idea ents had education special a child’s ser- of vision services, likely special to receive education vices; the only supply IEP need antici- the of burden” upon them the “undue placing 1414(d)(l)(A)(i)(VII). In location. pated potential any number investigating not, case, but ACPS the IEP did A.K.’s But A.K.’s ante at 681. placements. See during locations suggested potential two likely he would know where did parents parents If A.K.’s meeting.3 the June 9 services: the special receive suitability of either challenge to the or the Kellar School. School wished (and did), school, done so they could have was decision-making process if the Even complaint ought not for their the basis but notice, there question to the relevant they were unaware have been that to in which in the manner defect no services. Be- anticipated location Kellar Phillips and selected ACPS notice that given were parents cause A.K.’s Sullivan, sug- who possibilities. schools were schools loca- Phillips and Kellar meeting, at the June 9 the schools gested consideration; failure ACPS’s tions under specialist private was ACPS’s on his IEP did write this information to experience nearly thirty years of and had opportuni- A.K. of an educational deny It was her education field. day ty- needy job place students to may place well an "undue gested locations acknowledges, see ante 681 majority
3. As the
(as might suggesting
parents
burden" on
validity
upheld
of an
has
this Court
n.
all),
hardly con-
two schools
no school at
but
promised to
which a school district
IEP in
that the
multiplicity.
I am troubled
stitute
at one of
special education services
provide
willing
punish a school district
majority is
to
locations, MM,
at
303 F.3d
see
two different
acknowledging
than one school
more
Although
of schools
number
a child’s needs. Giv-
may appropriately serve
in that
IEP was not
issue
suggested on the
suggested schools
two
neither of the
en that
case,
proposition
support
to the
MM lends
(as each
personally
needed
with A.K.
had met
may suggest more than
that a school district
determining
it
finally
whether
to do before
obligation
satisfy
him),
its
and still
one school
would
it
serve
adequately serve
could
arbitrarily
sug-
provision
anticipated
purpose
location
to force
no
write
in the IEP.
gest
the other
sug-
one over
multiplicity of
A
on an IEP.
of services
Perhaps
important
more
than the notice
his parents
when
both
understood
provided in the June 9 IEP meeting is the
under
consideration and had
apparent determination of A.K.’s parents
already expressed that neither was appro-
him
keep
at Riverview no matter the
priate for their son.
proceedings.
outcome of the IEP
See MM
Finally,
Hearing
Officer’s decision
Dist.,
ex rel. DM v. Sch.
indicates
parents
objec-
had no
(4th Cir.2002)
procedural
(finding
error
tions to the notice the IEP provided at the
part
harmless
because there was no
process
time of A.K.’s due
hearing. Any
evidence
would
accepted
have
procedural
pertaining
violations
district).
by
FAPE offered
Before
function, then,
IEP’s notice
were consid-
the 2004-2005 IEP development process
(or
ered
least,
harmless
began,
even
signed a con-
harmless enough that
the parents chose
paid
deposit
tract and
for A.K. to return
not to
raise
issue before the Hearing
*14
to Riverview for the summer of 2004 and
Officer).
short,
A.K. was denied no
year.4
2004-2005 school
A.K.’s mother
educational opportunity as a result of
unwilling
testified
she was
bring
ACPS’s failure to list an anticipated loca-
Riverview,
A.K. back from
where he was
tion for his education on his 2004-2005
attending a
program,
summer
without a
IEP. Without a denial of an educational
“specific placement” in
being
Alexandria
opportunity, A.K. could not have been de-
Apparently
identified first.
this unwilling-
nied a
by
DiBuo,
FAPE
the error. See
ness extended even to trips home that
interviews with A.K. during the summer in III. order to determine conclusively whether component second of the reviewing they give could him the assistance he re- inquiry court’s regards compli- substantive quired, but A.K.’s brought never ance with the IDEA. It is intended to him home to attend those interviews. ensure that developed the IEP is “reason- A.K.’s mother testified that Phil- when the ably calculated to enable the child to re- lips and Kellar schools were named as ceive educational benefits.” potential Rowley, 458 locations in the June 9 IEP meet- 206-07, U.S. at ing, already she S.Ct. 3034. had In this determined that both case, Hearing Officer inappropriate pri- schools found that for her son. vate She understood those would “assist sug- schools were A.K. in gested locations; his simply she transition into disagreed the local community, with their selection. It and is difficult to un- constitute the least restrictive environ- derstand how A.K. could have lost edu- ment for A him.” residential program like cational opportunity on Riverview, account of the Hearing concluded, Officer omission the schools’ from names his required by was not the IDEA because it 4. pointed A.K.'s father deposit out that the for the year. 2004-2005 school Such a de- spot towas reserve A.K.'s posit might Riverview and only have safety served as a net yet given that the had "sub- intended negotiations to catch A.K. should funding” stantive to Riverview at the time of with through fall ACPS or lead to the conclu- $5,700 meetings. deposit accom- sion that appropriate Riverview was the panied a document hand, entitled placement. "Reservation and deposit On the other 8, 2004, Agreement,” signed April Enrollment agreement and enrollment are also consistent by that set out the terms and keep with an intent to A.K. at Riverview no conditions of A.K.'s education at Riverview matter outcome proceedings. of the IEP that the schools the evidence indicates sufficient but an otherwise “merely enhance[d] to A.K.’s would have attended adequately day program.” As Court has said needs. this educational conclusion, reaching this Before before, great “IDEA defer- requires testimony of heard the Hearing Officer system to the views of the ence par- both experts presented well- than of even the most those rather including appropriate- topics on ties A.B., meaning parents.” for Kellar schools Phillips and ness opportunity A.K. provided with ACPS at 694-95. F.Supp.2d A.K. See no and has obli- a FAPE therefore Sullivan, had visited who presented ACPS cost of his to bear the gation tes- offered many times. She both the 2004-2005 school during and how both schools timony about 1412(a)(10)(C)(i). 20 U.S.C. year. See on her knowl- in at each fit based would A.K.’s needs. of the schools edge IV. Cohen, its Cara Jill presented also ACPS expert specialist resource autism committing procedural error Despite had observed Cohen special education. IEP, pro- preparation his includ- settings, variety of school A.K. in opportunity for A.K. with the vided Riverview, had worked ing at is not entitled to Consequently, he FAPE. team. She was A.K.’s IEP on Sullivan tuition or of his Riverview reimbursement *15 recommend a in the decision involved majority. I am granted by the remand A.K. and believed day school for private today my colleagues disappointed The bymet one. needs could that his be for a harmless a school district punish testimony also heard Hearing Officer simply written the oversight. Had ACPS program supervisor Heyer, Laura A.K.’s schools on of the candidate names program high combination complaint. be no there would basis and its the school Phillips, who described case, com- legitimate has a this In on the testified in detail. programs She he lost no but because plaint, records, and A.K.’s experience her basis of over- of ACPS’s opportunity as result July which were sent her remedy. him no sight, the IDEA affords sug- case to nothing A.K.’s she saw about af- decision should be district court’s The adequately gest could firmed. par- A.K.’s In opposition, his needs. serve opined who experts two presented ents be served at properly could not
that A.K. Kellar, Phillips or day school like than the shal- more expert neither had
but either school. acquaintances with
lowest of including findings, Hearing Officer’s Kellar Phillips or finding that Plaintiff-Appellant, LEE, William to meet A.K.’s sufficient needs, presumption are entitled to DIVISION; Lawson, SCHOOL COUNTY YORK rel. D.B. v. A.B. ex correctness. ca- Cir.2004). Staples, his official R. Steven of the York Superintendent pacity as not rebut in the does evidence record County Division; County York School mother this case. presumption Minter; Board; Page Bar- R. Kellar, Phillips or School may not have cared for