348 F.3d 513 | 6th Cir. | 2003
Before: GUY and DAUGHTREY, Circuit Judges;
LAWSON, District Judge. [*] UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ COUNSEL ARGUED: Stephen O. Walker, Beachwood, Ohio, for T AMMY and S TEVE B ERGER , (cid:88) Appellants. Julie Carleton Martin, SCOTT, SCRIVEN & (cid:45) as parents and legal guardians WAHOFF LLP, Columbus, Ohio, for Appellee. ON BRIEF: (cid:45) for their minor child, Travis Stephen O. Walker, Beachwood, Ohio, for Appellants. Julie (cid:45) Nos. 01-3874/3912 Berger, Carleton Martin, SCOTT, SCRIVEN & WAHOFF LLP, (cid:45) > Plaintiffs-Appellants/ Columbus, Ohio, for Appellee. (cid:44) Cross-Appellees, (cid:45) _________________ (cid:45) v. (cid:45) OPINION (cid:45) _________________ (cid:45) M EDINA C ITY S CHOOL (cid:45) RALPH B. GUY, JR., Circuit Judge. Plaintiffs, Tammy D ISTRICT , (cid:45) and Steve Berger, appeal the judgment entered in this action Defendant-Appellee/ (cid:45) brought under the Individuals with Disabilities in Education Cross-Appellant. (cid:45) Act (IDEA), 20 U.S.C. § 1415, which sought reimbursement (cid:45) for the tuition plaintiffs paid to have their hearing-impaired (cid:78) son, Travis, attend private school for the 1999-2000 school year. The district court found that although the Medina City
Appeal from the United States District Court School District failed to offer Travis a free appropriate public for the Northern District of Ohio at Cleveland. education (FAPE), plaintiffs were not entitled to tuition No. 00-02508—John M. Manos, District Judge. reimbursement both because the private placement was not proper and because plaintiffs failed to give notice of their
Argued: September 9, 2003 intention to withdraw their son from the public school. Decided and Filed: October 29, 2003 Plaintiffs’ appeal challenges the district court’s denial of their requests for reimbursement and for attorney fees as a we affirm. FM system; speech and language therapy twice a week with Marjorie Kulbis, who had 25 years’ experience and a master’s I. degree in speech and language pathology; and special education support in the classroom from Eileen Lehrer, a In September 1994, plaintiffs and their five-year-old son, certified special education teacher, and her aides. Travis, moved into the Medina City School District and enrolled him in Medina’s Kindergarten Center. Travis, born At plaintiffs’ request, the IEP developed in his second- July 31, 1989, has a profound hearing loss which entitles him grade year added articulation goals for speech and language to special education services under the IDEA. [1] At plaintiffs’
therapy. In third grade, Ms. Ireland, who was then employed insistence, Medina provided Travis with a frequency by defendant as a special education coordinator, provided in- modulation (FM) system for Travis to use at school. The FM service training for the staff at Heritage Elementary who were system allows a teacher or other student to speak into a working with Travis. Travis also began receiving separate microphone that sends a radio signal to a receiver connected articulation therapy with Gina Ellibee, who had bachelor’s to Travis’s hearing aides. Its purpose is to overcome distance and master’s degrees in communication disorders with an and noise by functioning as if the speaker is only six inches emphasis in speech and language pathology. Mrs. Berger from the ear. The staff also was provided in-service training attended most of those therapy sessions. An evaluation by Jo Ann Ireland, a consultant from a resource center for completed at the end of third grade noted that Travis had special education. demonstrated progress, but that he continued to have
difficulty with comprehension and abstract concepts. His During the next four years, Travis attended first through scores on IQ and achievement tests at that time were in the fourth grades at Medina’s Heritage Elementary School, which average or low normal range. had an “open” classroom structure with dividers that did not reach all the way to the ceiling. In each year, Travis was For fourth grade, Travis was placed in Joan Smith’s regular educated in a regular education classroom with special classroom with the FM system and support from Mrs. Lehrer education support; provided additional speech and language and her aides. As in the past, the IEP, signed in December therapy; and offered some “pre-tutoring” of new vocabulary 1998, continued to include speech and language therapy with and concepts. Travis also received speech and language Ms. Kulbis, articulation therapy with Ms. Ellibee, and pre- therapy through the summer breaks. Plaintiffs participated, tutoring of new vocabulary both in therapy and at home. Mrs.
Smith provided plaintiffs some information on most Mondays for pre-tutoring purposes and had Travis keep a daily [1] assignment book. Describing his hearing loss as profound, the Impartial Hearing Officer (IHO) indicated that without his hearing aides Travis wa s unab le Although plaintiffs saw a slide in Travis’s grades and to hear someone shouting two inches from his ear. W ith only his hearing aides, he could detect various vowel sounds in a quiet room at a distance competency test scores from second grade on, it was during of three feet but could not distinguish them. T ravis sup plemented his
the fourth grade that he lost his enthusiasm for school and hearing with some lip reading, but did not know sign language. Nos. 01-3874/3912 Berger, et al. v. Medina 5 6 Berger, et al. v. Medina Nos. 01-3874/3912
City School Dist. City School Dist. complained that he did not understand what he was being Mrs. Lehrer, Mrs. Smith, Ms. Paul, and Ms. Ellibee all asked to do. Travis began having at least two and sometimes agreed that resource room placement would be appropriate. as much as four hours of homework a night. In the first half Each member of the IEP team, including plaintiffs, initialed of the year, Travis was having difficulty with the math and dated the IEP with the understanding that Travis would curriculum and was receiving a “D” in math. As a result, the be promoted to fifth grade and placed in the resource room for IEP team met in February 1999 and agreed that Travis should part of the day. Plaintiffs concede that they consented to this receive specialized instruction from a math teacher, Alice placement, did not advise the school that they rejected this Paul, four times a week for thirty minutes a day. Because this plan, and did not mention the possibility of removing Travis math intervention program was a regular education program from Heritage Elementary. The question of which fifth grade for “at risk” students, the IEP was not amended to reflect it. classroom Travis would be placed in was left open, but the However, the IEP’s objectives for math were modified to principal, Barbara Gunkelman, advised plaintiffs by telephone allow Travis to use a calculator, number line, or during the summer that Travis would be in Mrs. Ellenberg’s multiplication table in doing three-digit addition, subtraction, regular fifth grade class without Mrs. Lehrer and her aides. and multiplication. The IEP, with those changes, was signed In a letter dated July 23, 1999, plaintiffs requested a due by everyone, including plaintiffs. In the last quarter of fourth process hearing. The letter, sent to the superintendent, grade, Travis received a “D” in written language, and an “F” Charles Irish, stated as follows: in both math and reading. Plaintiffs made it known that they thought Travis should be retained in fourth grade.
My Wife and I are not happy and have not been happy with the program the Medina Schools have offered our On May 18, 1999, the IEP team, including plaintiffs, met to child. We believe that the service offered was not review the year’s progress and discuss placement for the sufficient to meet our child[’s] needs. I guess the last following year. Ms. Ireland prepared an outline of reasons straw was the school[’s] decision to pass him on to the why Travis should not be retained and reviewed them at the next grade. With the years of failure in the previous meeting. Emphasizing the importance of support from his program and our child[’s] growing unhappiness we have peer group, she also suggested that repeating the fourth grade decided to look elsewhere to meet his needs. We are would not change the fact that Travis was a “concrete thinker” requesting a due process hearing and as part of that who would struggle with an abstract curriculum. Ireland felt process we will be looking to the school to reimburse us it was better to modify and adapt the fifth-grade curriculum for the cost of properly educating him elsewhere. We than to retain him in fourth grade. It was recommended that
have “Whose Idea Is It Anyway” please send any other Travis be promoted to fifth grade and placed in the resource documents pertaining to our rights. room for part of the day to receive small group instruction in math and language arts and to allow the instruction to be
This letter was referred to Dr. Brad Garner, Medina’s Director presented in a more concrete form. There was also discussion of Student Services, who notified the state of plaintiffs’ about whether Travis would be placed in a fifth-grade request for a due process hearing. He then called plaintiffs classroom with or without support from Mrs. Lehrer. There and offered to meet with them about their concerns, or, in the was testimony that, either way, the resource room aides would alternative, to submit the matter to the state’s mediation be involved in Travis’s regular education classroom. process. Mr. Berger declined, advising Dr. Garner that Travis Nos. 01-3874/3912 Berger, et al. v. Medina 7 8 Berger, et al. v. Medina Nos. 01-3874/3912 City School Dist. City School Dist. was going to attend another school and that Medina was findings and conclusions were affirmed in a written decision going to pay for it. Plaintiffs also sent a note to the principal dated August 23, 2000. dated August 24, 1999, which stated only that Travis would
Plaintiffs commenced this action and defendant not be attending Heritage Elementary that year. counterclaimed, each seeking review of adverse findings by Before writing to defendant, plaintiffs had visited Medina the SLRO. On cross-motions for review of the administrative Christian Academy (MCA), a private sectarian school, and decision, the district court granted both motions in part and arranged for Travis to repeat fourth grade in the fall. MCA found, based on a modified de novo review, (1) that although provided no special education services, but offered smaller the procedural defects in the IEP were de minimus , the IEP class sizes and a “closed” classroom building with carpeted was substantively flawed so as to deprive Travis of a FAPE; hallways. Plaintiffs took it upon themselves to arrange for (2) that plaintiffs were not entitled to reimbursement both Travis to continue receiving speech and language therapy because MCA was not a “proper placement” and because outside school. [2]
plaintiffs unilaterally withdrew Travis without first giving defendant an opportunity to remedy the IEP; and (3) that
Plaintiffs testified that Mrs. Chase, Travis’s fourth-grade plaintiffs were not entitled to attorney fees as a “prevailing teacher at MCA, received training on how to use the FM party” under the IDEA. Judgment was entered accordingly system and took care to speak directly into the microphone on July 17, 2001. Plaintiffs appealed and defendant cross-
appealed. [3] and to repeat questions or comments from classmates. Mrs. Chase provided all of her students with detailed weekly lesson plans, which plaintiffs used to pre-tutor Travis at II. home. Travis’s class at MCA had 18 students, while his Board of Education v. Rowley , 458 U.S. 176, 206 (1982), fourth-grade class at Heritage had 23 or 24 students.
requires the district court to undertake a “modified de novo Plaintiffs testified that Travis did well at MCA, his grades review” of the administrative decision in an action brought improved, he learned his math facts, and he was reading at or under the IDEA. In doing so, the district court must make an above a fourth-grade level. independent examination of the evidence and base its decision The due process hearing was conducted before an Impartial on a preponderance of the evidence contained in the complete Hearing Officer (IHO) over fourteen days between September record, while giving “due weight” to the factual findings and December 1999. In a written decision dated May 23, made in the state administrative proceedings; particularly 2000, the IHO found that while defendant failed to provide when educational expertise is essential to those findings. N.L. Travis with a FAPE, plaintiffs were not entitled to reimbursement. Both sides pursued an administrative appeal to a State Level Review Officer (SLRO), but the IHO’s [3] Defendant also argued in the administrative pro ceed ings that it
would violate the Establishment Clause to order reimbursement for tuition paid to a secular private school. Bo th the IH O and the SLR O rejected this defense in reliance on Peck v. Lansing School District , 148 F.3d 619 (6th Cir. 1998) (provision of remedial services to disabled student in parochial [2] Defendant prepared an application for “flow through” funds for school would not violate the Establishment Clause). This argument has
MCA to use for special education services, but MCA declined. been aba ndoned on ap peal. Nos. 01-3874/3912 Berger, et al. v. Medina 9 10 Berger, et al. v. Medina Nos. 01-3874/3912
City School Dist. City School Dist. v. Knox County Sch. , 315 F.3d 688 (6th Cir. 2003); Knable v. determination that the private school placement was not Bexley City Sch. Dist ., 238 F.3d 755, 764 (6th Cir.), cert . proper, we turn first to the questions raised by defendant’s denied , 533 U.S. 950 (2001); Burilovich v. Board of Educ. of cross-appeal from the finding that the public school Lincoln Consol. Sch. , 208 F.3d 560, 565 (6th Cir.), cert. placement violated the IDEA by denying Travis a FAPE. denied , 531 U.S. 957 (2000). We recently explained that in 1. FAPE applying this standard, the “administrative findings in an IDEA case may be set aside only if the evidence before the
In determining whether the public placement violated the court is more likely than not to preclude the administrative IDEA, the reviewing court must undertake a twofold inquiry: decision from being justified based on the agency’s presumed “First, has the State complied with the procedures set forth in educational expertise, a fair estimate of the worth of the the Act? And second, is the individualized educational testimony, or both.” Burilovich , 208 F.3d at 567. program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits?”
On appeal, however, this court must apply a clearly Bd. of Educ. v. Rowley , 458 U.S. 176, 206-07 (1982) erroneous standard of review to the district court’s findings of (footnotes omitted). There is no violation of the IDEA if the fact and a de novo standard of review to its conclusions of school district has satisfied both requirements. Id. at 207; law. Knable , 238 F.3d at 764; see also Tucker v. Calloway Knable , 238 F.3d at 763. County Bd. of Educ. , 136 F.3d 495, 503 (6th Cir. 1998); 20 U.S.C. § 1415(i)(2) (formerly 20 U.S.C. § 1415(e)(2)).
With respect to the procedural prong, the district court, agreeing with the SLRO, found that the IEP developed during A. Tuition Reimbursement under the IDEA Travis’s fourth-grade year was procedurally deficient because The Supreme Court has explicitly held “that IDEA’s grant it failed to properly state present levels of educational of equitable authority empowers a court ‘to order school performance that specifically related to meaningful annual authorities to reimburse parents for their expenditures on goals or specific short-term objectives as was required by the private special education for a child if the court ultimately IDEA, 20 U.S.C. § 1414(d)(1)(A) (formerly § 1401(a)(20)). determines that such placement, rather than a proposed IEP, See Rowley , 458 U.S. at 182 & 206 n.27. Defendant has not is proper under the Act.” Florence County Sch. Dist. Four v. objected to this finding, perhaps because several of Carter , 510 U.S. 7, 12 (1993) (quoting Sch. Comm. of defendant’s witnesses conceded that the IEP was flawed, but Burlington v. Dept. of Educ. , 471 U.S. 359, 369 (1985)). emphasizes the district court’s further finding that the Parents who “unilaterally change their child’s placement deficiencies were de minimus and did not violate the IDEA during the pendency of review proceedings, without the because the record was clear that “information absent from consent of state or local school officials, do so at their own the IEP was nonetheless known to all the parties.” Doe v. financial risk.” Burlington , 471 U.S. at 373-74. In that Defendant I , 898 F.2d 1186, 1191 (6th Cir. 1990). situation, the parents are “entitled to reimbursement only if a
Plaintiffs take issue with this further finding, arguing that federal court concludes both that the public placement they are entitled under “equitable principles” to violated the IDEA and that the private school placement was reimbursement because of the “egregious nature” of proper under the Act.” Carter , 510 U.S. at 15. See also defendant’s procedural violations. A procedural violation of Knable , 238 F.3d at 763. Although plaintiffs appeal from the Nos. 01-3874/3912 Berger, et al. v. Medina 11 12 Berger, et al. v. Medina Nos. 01-3874/3912
City School Dist. City School Dist. the IDEA is not a per se denial of a FAPE. Knable , 238 F.3d The [SLRO] found, however, that the pre-tutoring at 765. Rather, a procedural violation will constitute a denial services were offered only twice a week for twenty of a FAPE only if it causes substantive harm to the child or minutes, and that what was offered by the school was his parents; such as seriously infringing on the parents’ haphazard and did not include assistance with all opportunity to participate in the IEP process, depriving an subjects. The school district’s own witnesses, most eligible student of an IEP, or causing the loss of educational notably Mrs. Ireland, Ms. Smith and Mrs. Kulbis, opportunity. Id . at 765-66. admitted that pre-tutoring was often disorganized and
depended heavily on the parents’ involvement. This The evidence in this case showed that plaintiffs participated being so, the Court can find no reason to reject the in the IEP meetings, had regular communication with the finding of the [SLRO] and holds that the school board’s teachers and special education staff, and were engaged in
program for Travis was not “reasonably calculated” to Travis’s schooling on a daily basis. Travis’s educational provide Travis with “educational benefits.” performance was being evaluated both in the classroom and by standardized testing, and specific action was taken to (Citations and footnotes omitted.) The district court also address the difficulties he was having in math. It was not observed that Mrs. Smith “went so far as to admit that she clear error for the district court to find the procedural was not even sure what subjects were covered by the speech deficiencies in the IEP did not deny Travis a FAPE. [4]
therapist, the only school staff member doing any pre-tutoring with Travis, and never spoke with the parents concerning
With respect to the substantive prong of the Rowley test, the their pre-tutoring efforts.” district court agreed with the SLRO’s determination that the IEP’s special education program and related services were The significance of pre-tutoring has to do with aiding the “improperly and haphazardly executed” and therefore were normal process of auditory-cognitive closure, which is the not reasonably calculated to enable Travis to receive unconscious filling in of gaps in our hearing based on prior educational benefits. Defendant’s cross-appeal maintains that knowledge, language, and experience. Pre-tutoring involves this determination was not supported by the evidence as a the introduction of new vocabulary or information before the whole. The district court explained that lesson or discussion in the classroom. According to Dr. Carol
Flexer, an audiologist who testified on behalf of plaintiffs, a number of witnesses testified that daily “pre-tutoring” pre-tutoring is a “critical accommodation” that allows a child services were essential to Travis’s educational success. to participate and extract meaningful information from the
teaching and discussions that occur in the classroom. Defendant does not dispute that pre-tutoring is a critical [4] Com pare Cleveland Heigh ts-Univ. H eights City Sc h. Dist. v. Boss ,
service for Travis and most hearing-impaired students. 144 F.3d 391, 39 9 (6th Cir. 1998) (failure of IEP to provide any Instead, defendant argues, in essence, that the district court app ropriate criteria for measuring the studen t’s progress was not was not only wrong about what pre-tutoring Travis was technical, but “went to the heart of the substance of the plan”), with Kings receiving but also improperly focused on pre-tutoring to the Local Sch. Dist. v. Zalazny , 325 F.3d 724 ,732 (6th C ir. 200 3) (failure to have parents present at a meeting caused no substantive harm where exclusion of the other services and educational benefits that parents were integrally involved in each step of the development and
Travis was provided under the IEP. The adequacy of the implementation of the IEP). Nos. 01-3874/3912 Berger, et al. v. Medina 13 14 Berger, et al. v. Medina Nos. 01-3874/3912
City School Dist. City School Dist. abbreviated lesson plans sent home by Mrs. Smith was 2. Private Placement contested in the due process proceeding, and the SLRO noted
Challenging the district court’s finding on this issue, the dispute as to how much pre-tutoring was or should have plaintiffs contend that their placement of Travis at MCA was been provided by the parents based on the information sent appropriate because it was “reasonably calculated to enable home by Mrs. Smith. Defendant emphasizes that, in addition [Travis] to receive educational benefits.” Knable , 238 F.3d to the twice-weekly pre-tutoring by Ms. Kulbis, Mrs. Lehrer at 771 n.6. Plaintiffs are correct that the statutory and her aides assisted Travis on a daily basis by explaining requirements of a FAPE do not apply to private school things when he did not understand, repeating or clarifying placements. Carter , 510 U.S. at 13-14. Even so, parents will information, and looking over his class work. This assistance, not be entitled to reimbursement for a private school defendant argues, included “all the essential elements of pre-
placement unless it offers their disabled child “an education tutoring.” otherwise proper under [the] IDEA.” Id . at 12-13. [5] There was certainly evidence of shortcomings in the pre- Plaintiffs maintain that the placement at MCA met Travis’s tutoring Travis received, whether from his parents, Ms. needs because it was a “quiet” school, with smaller classes Kulbis, or Mrs. Lehrer and her aides, yet we cannot lightly and a better, more attentive teacher. As proof of “educational dismiss defendant’s contention that Travis was nonetheless benefit,” plaintiffs reported that Travis was getting better provided an IEP that was reasonably calculated to provide grades, had finally learned his “math facts,” and was reading educational benefit. The IEP provided Travis with speech at a fourth-grade level. Academic results have been and language therapy, articulation therapy, accommodation in recognized as an important factor in determining whether an the classroom through the FM system and placement near the IEP is reasonably calculated to provide educational benefits. teacher, assistance during academic subjects from special
See Defendant I , 898 F.2d at 1191 (quoting Rowley , 458 U.S. education staff in the classroom, and individualized at 207 n.28); Roland M. v. Concord Sch. Comm. , 910 F.2d instruction in math and language arts by placement in the 983, 991 (1st Cir. 1990). Nonetheless, evidence of academic resource room for part of the day. Defendant also contends progress at a private school does not itself establish that the that, notwithstanding the slide in his grades during the year he private placement offers adequate and appropriate education was in Mrs. Smith’s class, there was evidence that Travis was under the IDEA. Rome Sch. Comm. v. Mrs. B. , 247 F.3d 29, still making educational progress as demonstrated by his
33 (1st Cir. 2001). [6] Nor are parents entitled to reimbursement standardized test scores; his increased participation in classroom discussions; and his progress in speech, language, and articulation therapy. Because we conclude that the On the contrary, Dr. Flexer testified that pre-tutoring was an We agree with the district court that the placement MCA essential service for most hearing-impaired students and is offered to Travis, although apparently a good education, was required to remedy problems they have with auditory- not “proper under the IDEA.” As such, plaintiffs were not cognitive closure. Moreover, after visiting Heritage, the IHO entitled to reimbursement under Carter . specifically found both that the classroom setting was “relatively quiet” and that the FM system was intended to B. Notice to Defendant overcome ambient noise.
The district court also denied plaintiffs’ request for reimbursement for the separate and independent reason that plaintiffs failed to inform defendant that they objected to the IEP before removing Travis from the public school. Even not be consistent with the purposes of the IDEA. before the IDEA was amended to explicitly require such [7] notice, this court held that dissatisfied parents were required Converse ly, we have held that the fact that private school placement
is more restrictive will not bar parents from receiving reimbursement to complain to the public school to afford the school a chance under Burlington and Carter . See K nab le , 238 F.3d at 770; Cleveland
to remedy the IEP before removing their disabled child from Heights-Un iv. Heigh ts Sch. Dist. v. Boss , 144 F.3d 39 1 (6th Cir. 1998). Nos. 01-3874/3912 Berger, et al. v. Medina 17 18 Berger, et al. v. Medina Nos. 01-3874/3912
City School Dist. City School Dist. the school. See Wise v. Ohio Dept. of Educ. , 80 F.3d 177, 185 assertion that Travis was not removed from the public school (6th Cir. 1996); Hines v. Tullahoma City Sch. Sys. , No. 97- until plaintiffs sent a letter to the principal in late August 5103/04, 1998 WL 393814 (6th Cir. June 15, 1998) 1999, stating that Travis would not be attending Heritage (unpublished disposition). As amended, however, the IDEA Elementary. We are satisfied that the district court did not err provides that reimbursement for a private school placement in finding that plaintiffs failed to provide the notice required may be reduced or denied if parents did not provide notice, by the IDEA. either at the most recent IEP meeting prior to removal, or in In apparent reliance on the exceptions to the notice writing 10 business days prior to removal of the child from requirement, plaintiffs claim an absence of proof in the record the public school, “that they were rejecting the placement that they ever received information regarding the 1997 proposed by the public agency to provide a [FAPE] to their
amendments. [8] The district court found that the proper child, including stating their concerns and their intent to procedure for withdrawing a student, as well as the limitations enroll their child in a private school at public expense.” 20 on reimbursement, were described in a pamphlet entitled U.S.C. § 1412(a)(10)(C)(iii)(I)(aa) (effective June 4, 1997).
“Whose IDEA is This?” Plaintiffs admitted to having The administrative decisions in this case denied received the pamphlet and did not deny receiving a version reimbursement in reliance on Wise and Hines , while the that included information about the 1997 amendments. In district court found plaintiffs had not complied with fact, Mrs. Berger testified that they received a new copy of § 1412(a)(10)(C)(iii). The record is clear that at the the pamphlet at the beginning of every school year. The conclusion of the May 1999 IEP team meeting, plaintiffs pamphlet that was distributed at the beginning of the 1998- signed the IEP indicating their agreement with the decision to 1999 school year would have included the addendum with the promote Travis to fifth grade and place him in the resource relevant information. We find no error in the district court’s room for part of the day. Plaintiffs admitted during the due decision to deny reimbursement for failure to provide notice
as required by the IDEA. [9] process hearing that they did not inform the IEP team at the May 1999 meeting either that they rejected the placement, or that they intended to enroll Travis in a private school.
by the parents.”). Nos. 01-3874/3912 Berger, et al. v. Medina 19 20 Berger, et al. v. Medina Nos. 01-3874/3912 City School Dist. City School Dist. In a final argument, plaintiffs strenuously argue that their ordered without regard to either the appropriateness of the failure to give notice required by the statute should be private placement or the parents’ own violations of the excused by defendant’s failure to comply with other technical IDEA’s notice requirement. requirements of the IDEA. Those alleged violations, making Particularly telling is the decision in Hall v. Vance County placement decisions outside the IEP process and failing to Board of Education , 774 F.2d 629 (4th Cir. 1985), in which give plaintiffs prior notice of the intention to change Travis’s the court found the parents’ failure to initiate proceedings was educational placement, will not relieve plaintiffs of the a direct result of the public school’s noncompliance with requirement that they provide notice under the statute of their procedural safeguard requirements of the IDEA. intention to unilaterally withdraw Travis.
Consequently, the procedural violations themselves were As for the claim that defendant made placement decisions found sufficient to establish a failure to provide a FAPE under outside the IEP process, plaintiffs have not shown it was clear Rowley . Id. at 635. In a footnote, the court took care to note error to find that there was an IEP and that the May 1999 there was no question that the private placement was meeting was an IEP meeting. More importantly, the fact that appropriate. Id . at 636 n.7. See also Ash v. Lake Oswego Sch. school personnel conferred informally before the May 1999 Dist. , 980 F.2d 585, 589 (9th Cir. 1992) (addressing meeting, formulated opinions, and came to the meeting with procedural violations and approving district court’s opinion, recommendations concerning Travis’s placement for the which specifically found the private placement was “proper following year does not demonstrate either a violation of the under the Act”); Babb v. Knox County Sch. Sys. , 965 F.2d IDEA, or “serious infringement” of plaintiffs’ right to 104, 109 (6th Cir. 1992) (as a direct consequence of failure to participate in the IEP meeting. N.L. v. Knox County Schs. , adhere to procedural requirements, child deprived of an IEP). 315 F.3d 688, 692 (6th Cir. 2003) (applying Burilovich , 208
Plaintiffs rely on the statement that “reimbursement after a F.3d at 568-69). unilateral placement can be appropriate, upon a finding of Next, plaintiffs correctly observe that the IDEA requires sufficiently serious procedural failures by the school district.” that parents be provided prior written notice whenever the Doe v. Metro. Nashville Pub. Sch. , 133 F.3d 384, 388 (6th school district proposes or refuses to initiate or change the Cir. 1998) (violation of “child find” obligations). That educational placement of the child. See 20 U.S.C. statement, however, was supported by citation to both Hall § 1415(b)(3); 34 C.F.R. § 300.503. Without determining and Ash . Also, the court reversed summary judgment on the whether or not this provision was in fact violated, the district question of the impact of the defendant’s procedural court found that no substantive harm to plaintiffs’ ability to violations without indicating that any challenge had been participate meaningfully in the IEP meetings resulted. As made to the private placement. See also Tenn. Dep’t of such, any technical violations were also found insufficient to Mental Health v. Paul B. , 88 F.3d 1466, 1475 & 1478 (6th excuse the parents’ obligation to complain before unilaterally Cir. 1996) (question of fact existed whether failure to give withdrawing from the public school. While we agree with notice of proposed change in placement caused ambiguous this assessment, close examination of the case law relied on statements at the IEP meeting to mislead the parents about by plaintiffs reveals that those cases actually address the first what decision was being made at that time). These cases do Rowley prong, whether the procedural violations denied the not stand for the proposition that the parents’ failure to child a FAPE, and do not hold that reimbursement may be comply with the notice requirement in the statute may be Nos. 01-3874/3912 Berger, et al. v. Medina 21 22 Berger, et al. v. Medina Nos. 01-3874/3912
City School Dist. City School Dist. excused by demonstrating a school’s violation of procedural increased speech and occupational therapy. Id . at 850. We requirements under the IDEA. find no error in the district court’s determination that
plaintiffs were not prevailing parties eligible for attorney fees C. Attorney Fees under the IDEA. Plaintiffs may be considered “prevailing parties” for AFFIRMED . purposes of attorney fees “if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Hensley v. Eckerhart , 461 U.S. 424, 433 (1983). The “touchstone” of this inquiry is “the material alteration of the legal relationship of the parties.” Texas State Teachers Ass’n v. Garland Indep. Sch. Dist. , 489 U.S. 782, 792-93 (1989). The IDEA provides that a court, “in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability who is the prevailing party.” 20 U.S.C. § 1415(i)(3)(B) (formerly 20 U.S.C. § 1415(e)(4)).
It is clear that both the administrative proceedings and this lawsuit were brought to recover the cost of educating Travis at the private school for the 1999-2000 school year. Having determined that plaintiffs were not entitled to reimbursement, the district court found plaintiffs were not “prevailing parties” eligible for attorney fees under the IDEA. Plaintiffs maintain they were prevailing parties by virtue of their success in demonstrating that defendant failed to provide Travis with a FAPE. That finding, while favorable to plaintiffs, does not constitute success on a significant issue in this litigation.
Plaintiffs’ heavy reliance on Krichinsky v. Knox County Schools , 963 F.2d 847 (6th Cir. 1992), is misplaced as it is easily distinguished from the case at bar. There, the parents contested the IEP and sought to force the school to place their child in a residential facility, but did not remove him from the school. As a result, even though the parents did not succeed in forcing a change to residential placement, they were found to have succeeded on two significant issues because they convinced the court to order defendant to provide their child
NOTES
[*] The Honorable David M. Lawson, United States District Judge for the Eastern District of Michigan, sitting by designation. 1 Nos. 01-3874/3912 Berger, et al. v. Medina 3 4 Berger, et al. v. Medina Nos. 01-3874/3912 City School Dist. City School Dist. “prevailing party.” Defendant Medina cross-appeals from the with the advice of counsel, in the development of an determination that it failed to offer Travis a FAPE. After Individualized Education Program (IEP) during each of those review of the record and the arguments presented on appeal, years. In his first-grade year, Medina provided a “back up”
[5] outcome of this appeal does not depend on this issue, Plaintiffs’ initial claim of error, that the private placement was however, we assume without deciding that pre-tutoring rejected for failure to satisfy statutory requirements, completely misreads services were so critical to the IEP that the inadequacies in the district court’s rationale on this issue. defendant’s delivery of pre-tutoring services denied Travis a
[6] FAPE. The district court observed that if educational progress was determinative, reimbursement would depend on the “mere happenstance” of whethe r the child “did well” in a private placem ent, which could mean the denial of reimbursement for even specialized educational programs for disab led stud ents if the child did no t show a cademic results. T his wou ld Nos. 01-3874/3912 Berger, et al. v. Medina 15 16 Berger, et al. v. Medina Nos. 01-3874/3912 City School Dist. City School Dist. for private school just because the private placement is less We agree with the IHO’s assessment that although nothing restrictive than the public school placement. See Milford Sch. in Carter or Burlington indicates that a private school must be Dist. v. William F. , No. 97-1506, 1997 WL 696108, at **6 readily identifiable as a “special education placement,” a (1st Cir. Nov. 10, 1997) (unpublished disposition) (“Even if unilateral private placement cannot be regarded as “proper the private school was less restrictive, it would still have to be under the Act” when it does not, at a minimum, provide some a placement deemed appropriate by an authorized decision element of special education services in which the public maker in terms of educational benefit.”).
[7] school placement was deficient. See In re Owen J. Roberts Sch. Dist. , 29 IDELR 742 (SEA Pa. 1998) (administrative The crux of the district court’s decision on this issue, like appeal denying reimbursement for private school offering those of the administrative hearing officers in this case, was small class sizes, but no special education services). It must the fact that MCA did not provide Travis with any of the be kept in mind that retroactive reimbursement is an equitable special education services he needed; in particular, neither the remedy for the failure of the public school to provide a FAPE speech and language therapy that he undeniably needed, nor to a disabled student. Burlington , 471 U.S. at 371-74. As the pre-tutoring services that were found to be lacking at such, a private school placement must be consistent with the Heritage Elementary. MCA declined to apply for “flow purposes of the IDEA. See Gillette v. Fairland Bd. of Educ. , through” funds that could be used to provide special 932 F.2d 551, 554 (6th Cir. 1991) (“Removing a child from education services for Travis, and plaintiffs arranged for his a partially mainstreamed program at a public school, which speech and language therapy outside school and provided pre- otherwise provides an appropriate academic instruction and tutoring at home. the only objection to that program was a failure to fully mainstream, and placing that child in a non-mainstreamed On appeal, plaintiffs suggest that pre-tutoring was only program in a private school does not satisfy the goals of the recommended to overcome problems caused by the Act.”) “structurally flawed environment” at Heritage Elementary.
[8] Plaintiffs argue that the July 23, 1999 letter requesting a The IDEA does not require parents to meet the notice requirement due process hearing constituted written notice that satisfied if one of the following exce ptions app lies: “(I) the p arent is illiterate and the statute because Travis was not officially removed until cannot write in English; (II) c omp liance . . . would likely result in physical or serious emotional harm to the child; (III) the school prevented more than 10 days later. The evidence showed, however, that the parent from providing such notice; or (IV) the parents had not plaintiffs arranged to enroll Travis at MCA before requesting received notice . . . of the notice requirement in clause (iii)(I).” 20 U.S.C. the due process hearing or advising defendant of its specific § 1412 (a)(10)(C)(iv). objections and intent to remove their child from public
[9] school. Not only did the letter demonstrate that plaintiffs W e need no t address the district court’s further finding that were removing Travis from the public school, but their plaintiffs’ refusal to engage in mediation provided an independent basis subsequent rejection of the offer to either have another for denying their request for reimbursement under 20 U.S.C. § 1412(a)(10 )(C)(iii)(III) (Reimbursement may also be reduced or denied meeting or engage in mediation through the Department of “upon a judicial finding of unreaso nableness with respect to actions taken Education confirmed it. We are not persuaded by the