Cone Ex Rel. Cone v. Randolph County SchoolsCone Ex Rel. Cone v. Randolph County Schools
Plaintiff Elliott Cone III (“Elliott”), by and through his parents Elliott and Nancy Cone, brought this action under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. and N.C. Gen.Stat. § 115C-106 et seq. (the North Carolina counterpart to the IDEA), challenging Defendant Randolph County Schools’ decision to change Elliott’s placement from a school in Maryland to one in North Carolina. Plaintiffs also raise claims of discrimination under the IDEA, section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq., 42 U.S.C. § 1983, and the North Carolina Persons With Disabilities Protection Act, N.C. Gen.Stat. § 168A-1 et seq. Both parties have moved for summary judgment on all of Plaintiffs’ claims. For the reasons stated herein, Plaintiffs’ motion for summary judgment will be denied and Defendant’s motion for summary judgment will be granted.
I. BACKGROUND
Elliott is a thirteen-year old boy who has been diagnosed with Fragile X Syndrome and other disabilities. He began receiving special education services in the Randolph County Schools (“RCS”) in 1993 when he was identified as a student with autism. From 1993 until 1999, Elliott continued to receive services from RCS, except for some brief interruptions. For one month each in 1996 and 1997, Elliott was admitted to Amos Cottage Rehabilitation Hospital in Winston-Salem, North Carolina, to receive treatment for self-injurious and aggressive behavior. Elliott also spent several months in 1997 and early 1998 at the Devereaux Clinic in Florida. From March 1998 until May 1998 Elliott was treated at the Murdoch Center in Butner, North Carolina. Elliott was readmitted to Amos Cottage in August 1999 and remained there until February 2000.
As Elliott was approaching the end of his last stay at Amos Cottage, meetings were held to determine an appropriate placement for him. Ultimately, the parties involved in these meetings (including Elliott’s parents, representatives of RCS, and state mental health officials) concluded that no appropriate residential placement was available in North Carolina. An individualized educational program (“IEP”) was developed whereby Elliott was placed at the Benedictine School for Exceptional Children (“Benedictine”) in Ridgley, Maryland. Benedictine is a school for children with developmental disabilities ages five to 21. The education portion of Elliott’s fees at Benedictine was paid by RCS, while state mental health agencies paid his residential expenses. Elliott enrolled at Benedictine in March 2000. A second annual IEP developed in February 2001 (covering the period from March 2001 until February 2002) maintained Elliott’s placement at Benedictine.
In the spring of 2001, state mental health officials identified an in-state residential program that they believed was potentially appropriate for Elliott and encouraged RCS officials to investigate. This program, known as “PATH” (Partners in Autism Treatment and Habilitation), is located at the Murdoch Center in Butner, North Carolina, where Elliott had previously been treated. In June 2001, RCS initiated the first of three IEP meetings regarding a potential placement at PATH. At' the first meeting, the Cones raised concerns about the appropriateness of the PATH program. RCS officials gathered additional information and a second meeting was held to discuss 'the new information as well as concerns expressed by some of Elliott’s medical providers re
The Cones challenged the change in Elliott’s placement through the administrative procedures set up by the state of North Carolina. An administrative law judge (“ALJ”) heard their appeal of the changed placement decision at various times throughout the spring of 2002. After consideration of witness testimony and documentary evidence, the ALJ issued an opinion on August 16, 2002, concluding that Elliott’s placement at PATH was procedurally and substantively flawed, and was inappropriately tainted by influence from persons outside the IEP process. See Final ALJ Decision, Conclusions of Law ¶¶ 13-14, 19-20. RCS appealed the decision to a state hearing review officer, who reversed the ALJ and found for RCS. On November 22, 2002, Plaintiffs filed this action seeking review of the decisions below and stating additional claims. 1
II. DISCUSSION
A. Standard of Review
Generally, summary judgment is appropriate where an examination of the pleadings, affidavits, and other proper discovery materials before the court demonstrates that there is no genuine issue of material fact, thus entitling the moving party to judgment as a matter of law.
See
Fed.R.Civ.P. 56(c);
Celotex Corp. v. Catrett,
B. Plaintiffs’ Individuals with Disabilities Education Act Claim
The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.” 20 U.S.C. § 1400(d)(1)(A);
see also id.
§ 1412(a)(1)(A) (making states that provide a free appropriate education to disabled children eligible for federal funds). The requisite free appropriate public education is to be provided by the means of an IEP.
Rowley,
The IDEA also requires states that receive IDEA funds to “establish and maintain procedures ... to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of free appropriate public education.” 20 U.S.C. § 1415(a). If a parent objects to the identification,
In reviewing a state administrative proceeding in an IDEA case, federal courts apply a two-step inquiry. First, the court must decide whether the state complied with the IDEA’S procedural requirements.
Rowley,
1. Procedural Requirements
Plaintiffs point to two primary procedural errors that allegedly denied Elliott a free appropriate public education. Echoing the ALJ, Plaintiffs first argue that the summer 2001 IEP meetings failed to involve all of the necessary parties, thus preventing RCS from obtaining all the information relevant to Elliott’s IEP. See Final ALJ Decision, Conclusions of Law ¶¶ 21-25.
The IDEA requires that an IEP team be composed of the parents, at least one regular education teacher (if the child is or may be participating in regular education), at least one special education teacher, a qualified representative of the local educational agency, an individual who can interpret evaluation results, the child (when appropriate), and, at the discretion of the parents or agency, other individuals with knowledge regarding the child. 20 U.S.C. § 1414(d)(1)(B). In this case, the summer 2001 IEP meetings involved the parents, a special education teacher, a representative of RCS, and Benedictine staff. (Tr. ALJ Hr’g vol. 12 at 248-49.) There is no suggestion that it was appropriate for Elliott to attend the meetings, nor was a regular education teacher necessary since Elliott was not being considered for placement in a regular educational environment. Eval
There is no evidence, however, that any statutorily required parties were absent. To the extent that PATH or mental health representatives would have offered assistance and information at the IEP meeting, they could have been invited by either the Cones or RCS under the discretionary category of § 1414(d)(l)(B)(vi). See 34 C.F.R. § 300.344(c) (placing the determination of who is qualified to be invited as a discretionary member of the IEP team in the hands of the inviting party).
Even to the extent that PATH representatives could have provided information relevant to Elliott’s placement, much of that information was available to the IEP team. The evidence shows that Carol VonCannon and Pam Wolfe, two representatives of RCS, visited the PATH site, gathered information, and concluded that PATH was comparable to Benedictine and would meet Elliott’s IEP goals. (Tr. ALJ Hr’g vol. 2 at 233, 243.) The court concludes that no procedural violation has occurred since all statutorily-required persons were part of the IEP team, especially where the IEP team had access to the information any non-required parties might have provided.
See Briley v. Board of Educ. of Baltimore County,
Plaintiffs also note that the attendance and ultimate result of the summer 2001 IEP meetings were markedly different from those of the February 2001 IEP meeting. The ALJ made similar findings. See Final ALJ Decision, Finding of Fact ¶ 29, Conclusion of Law ¶ 23. The earlier meeting was attended by the parents, an RCS representative, a special education teacher, various representatives of Benedictine, and a mental health professional. The fact that the earlier meeting was better attended and reached a more amicable conclusion does not, however, mean that the summer 2001 meetings violated the IDEA. As noted above, all of the necessary parties were present.
Plaintiffs further suggest that the brief interval between the February 2001 IEP meeting and the summer 2001 IEP meeting somehow indicates that the second IEP process was flawed. IEPs must be reviewed at least once a year. See 34 C.F.R. § 300.343(c). Moreover, “if either a parent or a public agency believes that a required component of the student’s IEP should be changed, the public agency must conduct an IEP meeting if it believes that a change in the IEP may be necessary to ensure the provision of [a free appropriate public education].” 34 C.F.R. pt. 300, appx. A. Here, once RCS received information about the potential placement for Elliott in the PATH program, it had an obligation to conduct an IEP meeting to review the potential placement. See id.; see also N.C. Gen.Stat. § 115C-110(a) (requiring local education agencies to “explore available local resources and determine whether the services are currently being offered by an existing public or private agency”). By conducting the summer 2001 IEP meetings, no matter how close in time they were to the February 2001 meeting, RCS was fulfilling its duty to consider potential changed placements.
In their second primary argument, Plaintiffs, again echoing the ALJ, argue that the PATH placement was unilaterally imposed on Elliott by individuals outside the IEP process. For example, in March 2001, Carol VonCannon, director of the Exceptional Children Program of RCS, received a letter from Linda Griffin of the North Carolina Division of Mental Health, Developmental Disabilities, and Substance Abuse Services (the “Division”) indicating that the PATH program had been identified as an option for Elliott and stating that “we believe having Elliott served in North Carolina would be better for both him and his family.” (Admin. Record Pls.’ Ex. 47.) The letter went on to invite VonCannon to visit PATH in an effort to determine whether Elliott’s needs could be met there. Plaintiffs also received a letter from Patricia Porter, the head of the Developmental Disabilities Section of the Division. This letter reiterated the Division’s intention to continue to provide services for Elliott, but noted that it was operating under financial constraints that made it necessary to consider alternative forms of support for Elliott. (See id. Pis.’ Ex. 50.) The Cones also received a letter from Carmen Hooker Buell, the Secretary of Health and Human Services, which stated, “[w]e look forward to providing services to your son at the PATH Program.” (Id. Pis.’ Ex. 51.) Finally, on June 7, 2001, Plaintiffs received a letter from Arthur Robarge and Patricia Porter indicating that the Division would no longer be providing funding for support services offered at Benedictine. (Id. Pis.’ Ex. 56.) Instead, the Division offered to provide its services at the PATH program. (Id.)
Based on these letters, the ALJ concluded that persons outside the IEP process had unilaterally changed Elliott’s educational placement without following the procedures set forth by the IDEA. See Final ALJ Decision, Conclusions of Law ¶¶ 18-20. In particular, the ALJ noted that the writers of the above letters were not present at the February IEP meeting and did not consider information regarding the appropriateness of a continued placement at Benedictine. See id.
The ALJ’s conclusions, however, were in error. Neither the Division nor the Department of Health and Human Services (“DHHS”) was the agency responsible for Elliott’s educational placement or the provision of free appropriate public education. That responsibility lies with RCS, the local educational authority of the county wherein the Cones reside.
See
N.C. Gen.Stat. § 115C-110(i) (“Each local educational agency shall provide free appropriate special education and related services in accordance with the provisions of this Article for all children with special needs who are residents of, or whose parents or guardians are residents of, the agency’s dis
In line with the above discussion, the court concludes that RCS did comply with the procedural requirements of the IDEA.
2. Substantive Requirements
As noted above, once a reviewing court concludes that the procedural requirements of the IDEA have been met, it must next determine whether the IEP is “reasonably calculated to enable the child to receive educational benefits.”
Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley,
The relatively modest “reasonably calculated” standard of
Rowley
does not require a school district to maximize a handicapped child’s potential, but merely mandates that the IEP provide some educational benefit.
A.B. ex rel. D.B. v. Lawson,
In determining the educational placement of a child covered by the IDEA, its implementing regulations require a local educational authority (“LEA”) to ensure that the placement is based on the child’s IEP, is as close as possible to the child’s home, 4 and that consideration is given to potential harmful effects from the placement. 5 34 C.F.R. § 300.552(b), (d). The child’s IEP is the most important consideration, as it “forms the basis for the placement decision.” 34 C.F.R. pt. 300, appx. A.
The evidence in this case shows that the goals of Elliott’s IEP can be accomplished at the PATH program. Kim Jones, the project director for PATH, testified that she had reviewed Elliott’s IEP and found that, in terms of his goals and needs, he was comparable to students presently being served at PATH. (Tr. ALJ Hr’g vol. 10 at 1542-43.) Moreover, Jones testified that many of Elliott’s IEP objectives were already being carried out at PATH for other students on a daily basis.
(Id.)
Indeed, during her testimony Jones went through the IEP page-by-page and stated that the goals and objectives listed therein could be implemented at PATH.
(Id.
at 1545-51.) Jones also noted that any objec
Two other PATH staff members also testified that PATH could address the objectives of Elliott’s IEP. Teresa Kersey, PATH’S classroom teacher, went through Elliott’s IEP while testifying and indicated that she could provide the services necessary to address the goals of the IEP. (Id. vol. 11 at 28-35.) In addition, PATH’S psychologist, Doug Irvin, testified that he had reviewed Elliott’s IEP and concluded that the goals therein could be appropriately addressed at PATH. (Id. at 189-90.)
Defendant also offered the testimony of Dr. Gary Mesibov, an expert in the areas of autism and developmental disabilities. (Id. vol. 16 at 18.) Dr. Mesibov reviewed Elliott’s IEP and visited the PATH program. (Id. at 42-43.) Based on Elliott’s IEP, Dr. Mesibov concluded that the PATH program had the structure to meet the IEP’s goals. (Id. at 43.) Moreover he testified that PATH was appropriate for Elliott and that “it was developed with students with [Elliott’s] kinds of educational needs in mind.” (Id. at 38.)
Plaintiffs presented the testimony of Nancy McCloy, Benedictine’s educational director, and Judith Cornette, who coordinated clinical services provided for Elliott at Benedictine. Both women provided lengthy testimony on Elliott’s progress at Benedictine. There is no doubt that the progress Elliott made at Benedictine was substantial. McCloy testified that she strongly disagreed with Elliott’s proposed placement at PATH, particularly in light of the significant progress he had made at Benedictine. (Id. vol. 8 at 1058-59.) McCloy also expressed concerns about the fact that stays in PATH are generally limited to two years, as well as the newness of the program. (Id. at 1060-61.) She did, however, acknowledge that she had never visited the PATH program but had read literature about it. (Id. at 1177.)
Plaintiffs’ expert witness, Dr. Ave La-chiewicz, visited the PATH program and talked with its director. (Id. vol. 15 at 86-87.) Dr.-Lachiewicz testified that she was concerned that PATH would focus on the autism aspects of Elliott’s needs but not his Fragile X concerns, because PATH had no specific experience with Fragile X. (Id. at 90-91.) Dr. Lachiewicz also noted concerns due to PATH’S relative newness and the short-term nature of the PATH program. (Id. at 92-95.) In giving her testimony, however, Dr. Lachiewicz did not review Elliott’s IEP. (Id. at 144.) Thus, despite her misgivings about PATH, Dr. Lachiewicz was unable to testify as to its appropriateness in terms of Elliott’s IEP, one of the primary determinants of Elliott’s placement.
Plaintiffs also presented letters from several doctors who had treated Elliott. These letters lauded the progress Elliott had made at Benedictine and expressed concern over his ability to handle a transition from Benedictine to PATH. For example, Dr. William Hickling wrote that Elliott “may suffer irreversible harm” if transferred to PATH, and that any loss in function may never be recovered. (Admin. Record Pis.’ Ex. 61.) Dr. Marybeth C. Myers wrote that Benedictine was the “ideal” setting for Elliott and that he would suffer “irrevocable damage” if moved to PATH. (Id. Pis.’ Ex. 62.) Dr. Gail Spiridigliozzi noted Elliott’s “tremendous accomplishment[s]” at Benedictine and concluded that “[i]t is possible that Elliott would never regain the positive behaviors and skills acquired at Benedictine” should he be moved to PATH. (Id. Pis.’ Ex. 63.) Dr. Kurt L. Klinepeter also noted the progress Elliott had made at Benedictine. (Id. Pis.’ Ex. 64.)
In all of the evidence presented by Plaintiffs, however, little attention appears to have been paid to Elliott’s IEP. Dr. Spiridigliozzi, for example, testified that she had seen Elliott’s IEP, id. vol. 15 at 227-28, but noted that her letter was based primarily on information provided by the Cones. {Id. at 218.) None of the other three letters reference Elliott’s IEP or discuss whether it could be implemented successfully at PATH. Certainly, the harmful effects of a new placement must be considered, see 34 C.F.R. § 300.522(d), but the IEP should be the starting place from which a placement is measured. See 34 C.F.R. pt. 300, appx. A (noting that the IEP “forms the basis for the placement decision”). A decision maker could determine from the evidence presented and by its greater weight that Elliott’s IEP can be implemented at PATH.
Moreover, the testimony of Pam Wolfe, Elliott’s special education teacher from RCS, indicates that the IEP team did consider the letters from Elliott’s doctors as well as information- regarding Elliott’s progress at Benedictine. (Tr. ALJ Hr’g vol. 2 at 234.) Wolfe also testified that, based on her experiences with Elliott, he would have only “short-lived” difficulty in transitioning from one placement to another. {Id. Vol. 1 at 59.) A similar concern had been expressed when Elliott was transferred from Amos Cottage to Benedictine. {Id. at 57; Admin. Record Def.’s Ex. 8.) Despite this concern, Elliott’s first status report from Benedictine notes that he was “adjusting well to his new school.” (Tr. ALJ Hr’g vol. 1 at 83; Admin. Record Def.’s Ex. 26.) Similarly, Elliott experienced a difficult transition into ■ the Extended School Year program at Benedictine his first summer there, but within a few weeks he was calmer and more accepting of staff instructions. (Tr. ALJ Hr’g vol. 1 at 90; Admin. Record Def.’s Ex. 27.)
Taken as a whole, there is little doubt that Elliott made substantial progress at Benedictine. It is also apparent that Elliott will have some problems with a transition to PATH, although it appears that these problems will be overcome as Elliott acclimates to the new placement. Despite some concerns about the PATH program, the evidence demonstrates that Elliott’s IEP can be successfully implemented there. This conclusion is a central factor in determining that PATH is an appropriate placement for Elliott because the IEP “forms the basis for the placement decision.” 34 C.F.R. pt. 300, appx. A. The court concludes that Elliott’s placement at PATH is “reasonably calculated” to enable him to receive educational benefits.
Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley,
Having concluded that Defendant’s decision to place Elliott at PATH complied with both the procedural and substantive requirements of the IDEA, “the State has complied with the obligations imposed by Congress and the courts can require no
C. Plaintiffs’ Other Claims
In addition to their claims under the IDEA and its state law analog, Plaintiffs also assert numerous other claims against RCS. Despite the fact that both parties have moved for summary judgment on all claims, Plaintiffs have offered no arguments or evidence in support of their motion for summary judgment or in opposition to Defendant’s motion on any of these additional claims. Even when, as here, a defendant’s motion for summary judgment is unopposed, the court must still review the motion to determine whether the moving party is entitled to judgment as a matter of law.
Custer v. Pan Am. Life Ins. Co.,
Plaintiffs first assert a claim of discrimination under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181
et seq.
The standards for determining violations of both of these acts are the same. 29 U.S.C. § 794(d);
Myers v. Hose,
Plaintiffs also assert a claim of discrimination under the IDEA. Unlike the ADA and the Rehabilitation Act, the IDEA was intended to redress inappropriate educational placement decisions, not discrimination.
See Sellers,
Plaintiffs also attempt to make a claim under 42 U.S.C. § 1983. In
Smith v. Robinson,
the Supreme Court held that suits could not be maintained under § 1983 for violations of the IDEA’S predecessor when that statute provided its own relief.
Lastly, Plaintiffs assert a claim of discrimination in violation of the North Carolina Persons With Disabilities Protection Act (“NCPDPA”), N.C. Gen.Stat. § 168A-1 et seq. The NCPDPA creates a cause of action for a person with a disability who is aggrieved by a discriminatory practice as defined in the act. Id. § 168A-11(a). Among other things, it is a discriminatory practice for a state agency to “refuse to provide reasonable aids and adaptations necessary for a known qualified person with a disability to use or benefit from existing public services.” Id. § 168A-7. Claims under the NCPDPA, however, are limited in that
[n]o court shall have jurisdiction over an action filed under this Chapter where the plaintiff has commenced federal judicial or administrative proceedings under Section 503 or Section 504 of the Vocational Rehabilitation Act of 1973 ... or the Americans with Disabilities Act of 1990 ... involving or arising out of the facts and circumstances involved in the alleged discriminatory practice under this Chapter.
Id.
§ 168A-11(c);
McCullough v. BB & T Co.,
III. CONCLUSION
For the reasons stated herein, Plaintiffs’ motion for summary judgment is denied and Defendant’s motion for summary judgment is granted.
A judgment in accordance with this opinion will be filed contemporaneously herewith.
JUDGMENT
For the reasons set forth in the memorandum opinion entered contemporaneously herewith,
IT IS ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment [11] is granted and Plaintiffs’ Motion for Summary Judgment [14] is denied.
Notes
. Elliott remains at Benedictine to the present and will remain there until the final resolution of this matter. See 20 U.S.C. § 1415®.
. This court possesses no expertise or clairvoyance concerning appropriate decisions of an educational authority, and such is not required. It is the duty of this court to determine whether proper legal safeguards are employed by the educational authority in arriving at a decision which has such a vital impact upon the person for whom the decision is made. If such safeguards are followed, then the court may not substitute its own belief or inclinations for the decision of those who ultimately make the important educational decisions based upon their specialized training and the authority granted by Congress.
. One court has noted that it is somewhat surprising that the North Carolina provisions are read to impose a higher burden than the IDEA since one of the stated purposes of the state act is to "bring State law, regulations and practice into conformity with relevant federal law.”
C.M. ex rel. J.M. v. Board of Educ. of Henderson County,
. It is undisputed in this case that the PATH program is closer to Elliott's home than Benedictine. Mrs. Cone stated that she viewed Elliott’s placement closer to home as "irrelevant” since it was not a problem for the Cones to drive six hours to visit Elliott. (Tr. ALJ Hr'g vol. 13 at 6-7.) The regulations make clear, however, that proximity to the student’s home is not irrelevant.
See
34 C.F.R. § 300.522(b)(3). Nonetheless, because the appropriateness of educational services provided is more important than mere proximity, the court will treat PATH’S relative closeness to Elliott's home as only one factor in favor of placement at PATH.
See Barnett ex rel. Barnett v. Fairfax County Sch. Bd.,
.The IDEA additionally imposes a "least restrictive environment” requirement mandating that:
To the maximum extent appropriate, children with disabilities ... are educated with children who are not disabled, and special classes, separate schooling, or-other-removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
20 U.S.C. § 1412(a)(5)(A). This requirement expresses Congress’s strong policy preference for mainstreaming when it would be appropriate for a child.
DeVries v. Fairfax County Sch. Bd.,