M.L., a minor, BY his parents and next friends, Akiva and Shani LEIMAN; Akiva Leiman; Shani Leiman, Plaintiffs-Appellants, v. Dr. Jack R. SMITH, in his official capacity as Superintendent; Montgomery County Board of Education, Defendants-Appellees.
No. 15-1977
United States Court of Appeals, Fourth Circuit
August 14, 2017
Argued: December 8, 2016
Had I known in August or September of 2013 that the lump sum amount would be $363,325.52, I would not have chosen to retire; I would have accepted the transfer position in South Carolina.... Despite attempting to recover funds from me, DAK never offered me the job that I declined in reliance on the original representations about the lump sum amount.... Because of the representation of DAK and Transamerica, I have foregone substantial earnings and benefits that I would have received had I accepted the transfer position in South Carolina.
J.A. 812. For its part, the Plaintiffs dispute any breach of fiduciary duty or that Beck had the authority to hire Smith. But these are issues of material disputed fact that cannot be resolved on this record for purposes of summary judgment.
While we express no view on the merits of Smith‘s claim, he has tendered evidence from which a reasonable trier of fact could find in his favor under a surcharge theory if the trier of fact found his evidence credible. Smith has demonstrated a triable issue as to whether the Plaintiffs’ actions amounted to a breach of fiduciary duty and whether he suffered actual harm by foregoing a specific employment opportunity at another DAK facility based on the Plaintiffs’ incorrect representations as to the amount of his lump sum retirement benefit.
Accordingly, we affirm the district court‘s grant of summary judgment as to all the Plaintiffs except for Smith. As to Smith, we conclude the district court erred when it determined that Smith failed to demonstrate a triable issue of fact as to surcharge. We vacate the judgment against Smith on this claim only and remand the case to the district court for further proceedings only as to Smith‘s claim seeking surcharge.9
VI.
For the reasons set forth above, the district court‘s decision is
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
National School Boards Association; Maryland Association of Boards of Education; Americans United for Separation of Church and State; American Civil Liberties Union; ACLU of Maryland; Baptist Joint Committee for Religious Liberty; Central Conference of American Rabbis; Jewish Social Policy Action Network; People for the American Way Foundation; Union for Reform Judaism; Women of Reform Judaism, Amici Supporting Appellees.
Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Niemeyer and Judge King joined.
AGEE, Circuit Judge:
M.L., a minor, by and through his parents, Akiva and Shani Leiman, and Akiva and Shani Leiman, individually and in their capacity as M.L.‘s parents (collectively, the “Plaintiffs“), appeal the district court‘s denial of their motion for summary judgment under the Individuals with Disabilities Education Act (“IDEA“),
I.
The facts are largely undisputed. M.L. was born in 2003 with Down Syndrome and is considered a “child with a disability” under the IDEA. See
In 2009, M.L. was enrolled, at his parents’ expense, in Sulam, “a special education program that serves the Orthodox Jewish community.” J.A. 1117. In 2012, the Plaintiffs and MCPS met to form an individualized education program (“IEP“) for M.L. so that he could attend classes in the public school district. After expert assessments of M.L.‘s capabilities, MCPS determined that M.L. “is able to learn despite his severe intellectual disability, but he needs constant repetition and consistency.” J.A. 1118. After multiple meetings with the Plaintiffs, MCPS created an IEP for M.L. in 2013. The Plaintiffs, however, “rejected the IEP because it does not provide functional instruction to prepare [M.L.] for life in the Orthodox Jewish community.” J.A. 1119. Rather, the Plaintiffs wanted the “incorporation of goals and objectives designed to teach [M.L.] about the laws and customs of Orthodox Judaism.” J.A. 1119. MCPS rejected this proposal in turn because it was “not part of the curriculum, too specific, religious, or not compatible with [M.L.‘s] present levels.” J.A. 1119. Shortly thereafter, the Plaintiffs filed a due process complaint against MCPS with the Maryland Office of Administrative Hearings, alleging violations of the IDEA and Maryland state law. See
In their request for mediation and a due process hearing, the Plaintiffs maintained that M.L. “has many important cultural needs that must be taken into account when designing an appropriate learning environment for him,” and the IEP proposed by MCPS was “not appropriate for his religious and cultural needs.” J.A. 836.3 Although the Plaintiffs conceded that the goal of the MCPS IEP “is to prepare students to live independently in their community,” they preferred Sulam because there “this goal is accomplished by preparing students to live independently in their community within their cultural guidelines.” J.A. 838 (emphasis added). The Plaintiffs stressed that “Orthodox students[, and therefore M.L.,] do not and will not participate in the non-Orthodox community, and the community that MCPS ... curriculums prepare students for is not the same community [M.L.] will live in.” J.A. 838. For example, Sulam instructors lead M.L. in “davening, the reciting of Jewish prayers.” J.A. 840. Sulam “prepares [M.L.] to participate in the Sabbath or religious holidays, [and] familiarizes him with [the parsha,] a particular portion [of the Torah] read [weekly] in Synagogue.” J.A. 839-40. The Plaintiffs argued that the IEP proposed by MCPS did “not address the cultural and religious realities of [M.L.‘s] life [and] would not prepare him to be functional in his Orthodox community.” J.A. 840.
The parties engaged in an extensive hearing process before a Maryland administrative law judge (“ALJ“). Both sides presented testimonial evidence from several witnesses, including Rabbi Akiva Leiman, M.L.‘s father and fellow plaintiff. He testified that all of his children are in “private, religious schools that teach the Orthodox Jewish way of life” because he and his wife “believe that children should be educated for an Orthodox lifestyle and the only place to get that type of education would be in a private, religious school.” J.A. 52. The Plaintiffs want M.L. taught about the Torah, kosher rules, and Orthodox Jewish garments (such as the yarmulke—“kind of a skullcap, to remind us of God“—and tzitzit—“a garment that has fringes at the end, strings that hang out“). J.A. 68-69. They want him instructed, as part of his IEP, in halacha (Jewish law) and mitzvot (“commandments from God,” or things “that the Rabbis have asked [Orthodox Jews] to do over the centuries“). J.A. 82. The Plaintiffs would also require instruction in the berachot, which “is a blessing that [Orthodox Jews] make before [they] partake in food and a blessing that [they] make when [they] finish partaking in food.” J.A. 87. They believe it is “[e]ssential” for M.L.‘s education “that he be able to read Hebrew.” J.A. 97. The Plaintiffs demand that MCPS provide this instruction to M.L. as part of his IEP. E.g., J.A. 118 (Rabbi Leiman admitting that he “expect[s] the public school to teach [M.L.] Jewish precepts such as mitzvot and dietary laws“).
The Plaintiffs submitted Sulam‘s 2012-13 Formal Education Plan for M.L. as an exhibit at the administrative hearing. That plan shows the type of curriculum that the Plaintiffs want included in M.L.‘s IEP. For example, like the Sulam plan, the Plaintiffs desire the IEP to include lessons in “Judaic Studies,” where the goal is to “increase [M.L.‘s] understanding of Jewish customs and halacha.” J.A. 907. One of the targets
The ALJ concluded that neither the IDEA nor Maryland law requires a public school to provide religious instruction to disabled students as part of an IEP. According to the ALJ, a FAPE primarily requires that a school provide the disabled student with “access [to] the general curriculum.” J.A. 1141; see also J.A. 1140 (“Nothing in the IDEA, corresponding State law, or enabling regulations require a state educational agency to individualize an educational program to a disabled child‘s religion, culture, or community enclave.“). Ultimately, the ALJ found the IEP proposed by MCPS provided M.L. with a FAPE under the IDEA. In view of that holding, it was not necessary for the ALJ to address any of the Establishment Clause defenses made by MCPS.
The Plaintiffs then filed a complaint in the United States District Court for the District of Maryland seeking declaratory and injunctive relief under the IDEA and Maryland state law. See
In its memorandum opinion and order, the district court recognized that “beyond the alleged problematic interplay between the IEP and [M.L.‘s] role in his Orthodox community, including the ALJ‘s failure to account for [M.L.‘s] inability to generalize and the consequent (in Plaintiffs’ view) failure to place [M.L.] at Sulam, Plaintiffs do not identify any faults in the IEP or the ALJ‘s review of it.” J.A. 43. The court identified “the crux of this dispute: Is the education proposed in the IEP a FAPE when it does not account for [M.L.‘s] individual religious and cultural needs?” J.A. 43. Answering that query in the affirmative, the district court held that “a FAPE, to which a child with a disability is entitled, is the education that any student without disabilities would receive.” J.A. 43. Outside of their religious and cultural argument, the district court concluded that the Plaintiffs had not shown that the IEP was in any way deficient or treated M.L. in a different way than any other disabled student. Because MCPS provided a FAPE to M.L. under the IDEA, it was unnecessary to reach the Establishment Clause issues that would arise had the Plaintiffs prevailed and placement of M.L. at Sulam resulted.
The Plaintiffs filed a timely notice of appeal, and we have jurisdiction pursuant to
II.
The Plaintiffs argue that the district court erred in concluding that the IDEA does not require a school to provide religious or cultural instruction to disabled students as part of their IEPs. In other words, the Plaintiffs contend that MCPS failed to provide M.L. with a FAPE in violation of federal and state law, despite their concession that the IEP was adequate in all other respects.5 We disagree with the Plaintiffs.
A.
In IDEA cases, we apply “the standard of review utilized by the district court” in reviewing the ALJ‘s decision: a “modified de novo review, giving due weight to the underlying administrative proceedings.” O.S. v. Fairfax Cty. Sch. Bd., 804 F.3d 354, 360 (4th Cir. 2015).6 “While the court must make an independent determination on whether the school complied with the IDEA, the hearing officer‘s factual findings are considered prima facie correct.” Id. The determination of whether an IEP is adequate “is itself a question of fact.” Id.
B.
1.
Among other purposes, the IDEA seeks “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 further education, employment, and independent living.”
special education and related services that (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under [
20 U.S.C. § 1414(d) ].
An IEP is “a written statement for each child with a disability that is developed, reviewed, and revised in accordance with [
2.
The leading IDEA case is Board of Education v. Rowley, 458 U.S. 176, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982).8 In that case, the plaintiff was a deaf student who sued the defendant school district after it refused to provide her with a sign-language interpreter in class as part of her IEP. Id. at 184-85. The district court held that the child “was not receiving a free appropriate public education, which the court defined as an opportunity to achieve her full potential commensurate with the opportunity provided to other children.” Id. at 185-86. The Second Circuit affirmed that decision. Id. at 186. The Supreme Court granted certiorari to address “[w]hat is meant by the Act‘s requirement of a free appropriate public education.” Id.
The Rowley Court began by recognizing that the purpose of the IDEA is “to promote the education of handicapped children, and [that it] was passed in response to Congress’ perception that a majority of handicapped children in the United States were either totally excluded from schools or were sitting idly in regular classrooms awaiting the time when they were old enough to drop out.” Id. at 179. Further, the Court determined that the IDEA defined a FAPE essentially as “consist[ing] of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Id. at 188-89. Although the Court acknowledged that the definition of FAPE found in the IDEA “tends toward the cryptic rather than the comprehensive,” it nevertheless concluded that the definition “is the principal tool which Congress has given us for parsing the critical phrase of the Act.” Id. at 188.
The Court also looked to the motive of Congress in enacting the IDEA, understanding it to be the “intent to bring previ-
The Court also held that the term “free appropriate public education” did not mandate “equality” or any requirement that schools provide the same education to students with disabilities as that provided to students without disabilities. Id. at 198 (“The requirement that States provide ‘equal’ educational opportunities would thus seem to present an entirely unworkable standard requiring impossible measurements and comparisons.“). Instead, a school is required only to provide “equal access.” Id. at 200 (emphasis added). Thus, the lower courts in Rowley “erred when they held that the Act requires [the State] to maximize the potential of each handicapped child commensurate with the opportunity provided nonhandicapped children.” Id. Rather, providing a FAPE means “that the education to which access is provided [must] be sufficient to confer some educational benefit upon the handicapped child.” Id. The Court “conclude[d] that the basic floor of opportunity provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.” Id. at 201. In sum, a school “satisfies [the FAPE] requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Id. at 203.
Since Rowley, we have consistently held that “a school provides a FAPE so long as a child receives some educational benefit, meaning a benefit that is more than minimal or trivial, from special instruction and services.” O.S., 804 F.3d at 360 (stating that, “[i]n this circuit, the standard remains the same as it has been for decades“). After oral argument in this case, however, the Supreme Court heard argument in and decided Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 137 S. Ct. 988, 197 L. Ed. 2d 335 (2017), in which the Court rejected the Tenth Circuit‘s “merely more than de minimis” FAPE standard, id. at 1000-01. The Supreme Court held that Rowley‘s “statement that the Act did not guarantee any particular level of education simply reflects the unobjectionable proposition that the IDEA cannot and does not promise any particular educational outcome.” Id. at 998. Although the Court in Rowley had found it “difficult ... to say when educational benefits are sufficient,” that did not mean “that any educational benefit was enough.” Id.
The Court went on to hold that, “[t]o meet its substantive obligation under the
Our prior FAPE standard is similar to that of the Tenth Circuit, which was overturned by Endrew F. We have cited to the Tenth Circuit‘s standard in the past, including that court‘s decision in Endrew F. itself. See O.S., 804 F.3d at 360 (citing Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 798 F.3d 1329, 1338-41 (10th Cir. 2015)). For purposes of the case at bar, though, we need not delve into how Endrew F. affects our precedent because the IDEA does not provide the remedy the Plaintiffs want, regardless of the standard applied. Moreover, the Plaintiffs never raised any issue about the standard before the ALJ or district court, and it was never at issue on appeal. The Plaintiffs have not identified in post-argument briefing any way in which Endrew F. affects the resolution of this case.
3.
Like Rowley, “[t]his case presents a question of statutory interpretation.” 458 U.S. at 179. In that regard, absent from the IDEA is any requirement that schools provide religious or cultural instruction. The Plaintiffs do not point to any section of the IDEA or its implementing regulations that requires a school to develop a religious or cultural curriculum, such as the Plaintiffs’ requested teaching of “blessings [and] Hebrew words.” Opening Br. 38; see also J.A. 86-87 (Rabbi Leiman‘s testimony that the school should instruct M.L. in “keeping kosher,” “wearing a yarmulke,” “observing mitzvot,” and “observing Jewish holidays“). The Plaintiffs’ requested interpretation of the IDEA necessitates adding requirements not present in the statute: a function for Congress, not the judiciary. See United States v. Luskin, 926 F.2d 372, 376 (4th Cir. 1991) (refusing to “legislate from the bench by adding [a] provision” to a statute because “[t]he statute does not contain words to this effect, and this Court does not have the power to make such an amendment“); see also Henson v. Santander Consumer USA Inc., 582 U.S. 79, 137 S. Ct. 1718, 1726, 198 L. Ed. 2d 177 (2017) (“[T]he proper role of the judiciary [is] to apply, not amend, the work of the People‘s representatives.“); Rowley, 458 U.S. at 190 n.11 (“After all, Congress expresses its purpose by words. It is for us to ascertain—neither to add nor to subtract, neither to delete nor to distort.“). In fact, federal regulations support the conclusion that states may not use IDEA funds to provide religious and cultural instruction. See, e.g.,
The district court was correct in holding that religious and cultural instruction does not fall within the school‘s duty to provide a disabled student with access to the general curriculum. Under the IDEA, the school must only address the student‘s individual needs to the extent it takes to provide that access. See
The Plaintiffs’ witnesses, including Rabbi Leiman, agreed that the IEP would be sufficient but for the Plaintiffs’ desire for instruction in Orthodox Judaism. For example, Rabbi Leiman acknowledged that “the goals and objectives [of the MCPS IEP] meet [M.L.‘s] secular needs.” J.A. 111. He also admitted that, “but for his religion [and culture], [MCPS] could meet [M.L.‘s] special education and general education needs.” J.A. 112. Further, the Plaintiffs concede that they “send [M.L.] to Sulam school in furtherance of [their] religious beliefs.” J.A. 102. Their “main objection” to the MCPS IEP is that it “does not address Judaism,” and they are concerned that M.L. will be taught “various things that would contravene Jewish law” if he were to attend public school. J.A. 156-57. Thus, the Plaintiffs concede that their only objection to the IEP proposed for M.L. is the absence of religious instruction on M.L.‘s cultural preferences.
MCPS offered uncontested evidence that it would make reasonable accommodations for M.L.‘s religious preferences. See Reply Br. 1 (the Plaintiffs conceding that “[t]his appeal has nothing to do with any allegation that MCPS has failed in its efforts to accommodate M.L.‘s religious beliefs and those of his parents“). For example, the Plaintiffs have continually cited their objection to M.L.‘s participation in MCPS-sponsored trips to McDonald‘s “to practice buying and ordering items,” Opening Br. 49; see also J.A. 75 (testimony of Rabbi Leiman: “McDonald‘s serves food that is specifically non-kosher and we wouldn‘t want [M.L.] to be there, certainly not to purchase there, and obviously not to eat there.“), but MCPS does not “require children to participate in things that go against their cultural beliefs.” J.A. 612. Another example is that, for children, like M.L., whose parents find the celebration of Halloween “very offensive ... and strongly against their religious beliefs, ... those children rather than participating in the party and the parade, participate[] in a story time in the library.” J.A. 560. MCPS accommodates “students who maintain a kosher diet.” J.A. 604. Even more, the school “provide[s] opportunities to practice certain prayers” as well as “places for students to come and have their prayers if they need be.” J.A. 613.
The Plaintiffs also contend that the district court and ALJ erroneously disregarded their argument that an IEP must allow M.L. “to generalize what he learns from one setting to another.” Opening Br. 44.9
However, the Plaintiffs do not truly argue that the IEP fails to generalize M.L.‘s education across the school and home settings. Instead, they contend that the religious instruction he receives at home should be generalized to the school setting. Again, however, the IDEA does not mandate that a school instruct a student in his preferred religious practices. Rabbi Leiman essentially conceded this point when he testified that he and his family “believe that children should be educated for an Orthodox lifestyle and the only place to get that type of education would be in a private, religious school“—not just for M.L., but all of the Leiman children. J.A. 51-52. Because the IDEA does not require a school to provide religious and cultural instruction inside the schoolhouse gates, it likewise does not contemplate how a student may absorb such instruction at home.
Finally, the Plaintiffs cite to the requirement that an IEP include “a statement of measurable annual goals, including academic and functional goals, designed to ... meet each of the child‘s other educational needs that result from the child‘s disability.”
The Plaintiffs erroneously read “other educational needs” as “all other
MCPS provided M.L. with equal access to an education, on the same basis as it provides to all other students with disabilities. It does not provide religious and cultural instruction to its students with or without disabilities and has no duty under the IDEA to administer such instruction to M.L. Thus, because the proposed IEP provided M.L. with a FAPE, it meets the requirements of the IDEA. The district court did not err in so finding and awarding summary judgment to MCPS.11
III.
For all of these reasons, the judgment of the district court is
AFFIRMED.
Peggy HILL; Amy Walker, Plaintiffs-Appellants, v. Barry COGGINS, d/b/a Cherokee Bear Zoo; Collette Coggins, d/b/a Cherokee Bear Zoo, Defendants-Appellees. The Humane Society of the United States; The Fund for Animals, Amici Supporting Appellant.
Notes
Finally, we do not reach the Free Exercise Clause arguments raised by amici and addressed by MCPS and the Plaintiffs in their response and reply briefs, respectively. The Plaintiffs did not raise a Free Exercise argument in their opening brief. Because the Court generally does not consider arguments raised in amicus or reply briefs in the first instance, we do not reach those arguments here. See Suarez-Valenzuela v. Holder, 714 F.3d 241, 248-49 (4th Cir. 2013) (reply briefs); Snyder v. Phelps, 580 F.3d 206, 216-17 (4th Cir. 2009) (amicus briefs).