MM Ex Rel. DM v. School District of Greenville CountyMM Ex Rel. DM v. School District of Greenville County
KING, Circuit Judge.
The School District of Greenville County, South Carolina (“the District“), has ap
I.
This proceeding involves the application and construction of the IDEA, which amended the Education of All Handicapped Children Act of 1975, codified at
A.
The IDEA was enacted in 1990 to ensure that all children with disabilities receive a “free appropriate public education” (a “FAPE“), and the IDEA emphasized the special education and related services required to meet the unique needs of such children.3 In return for the receipt of federal education funding, states are required by the IDEA to provide each of their disabled children with a FAPE. Under the IDEA, a FAPE must provide such children with meaningful access to the educational process. Board of Educ. v. Rowley, 458 U.S. 176, 192, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (“[I]n seeking to provide ... access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful.“). That is, a FAPE must be reasonably calculated to confer some educational benefit on a disabled child. Id. at 207, 102 S.Ct. 3034. Such an educational benefit must be provided to a disabled child in the least restrictive and appropriate environment, with the child participating, to the extent possible, in the same activities as non-disabled children.
The IDEA does not, however, require a school district to provide a disabled child with the best possible education. Rowley, 458 U.S. at 192, 102 S.Ct. 3034. And once a FAPE is offered, the school district need
A school district is required by the IDEA to provide an IEP for each disabled child. An appropriate IEP must contain statements concerning a disabled child‘s level of functioning, set forth measurable annual achievement goals, describe the services to be provided, and establish objective criteria for evaluating the child‘s progress.
The IDEA requires that the parents or guardian of a disabled child be notified by the school district of any proposed change to their child‘s IEP. It also requires that the parents or guardian be permitted to participate in discussions relating to their disabled child‘s evaluation and education.
B.
MM recently turned eleven years old. She suffers from two disorders: first, from a disease called myotonic dystrophy,5 and second, from moderate autism.6 She thus
In the Summer of 1995, just before her fourth birthday, MM moved with her parents to South Carolina, and they sought IDEA services for her from the District. At the District‘s suggestion, her parents visited two public schools in the Greenville area: the Meyers Center, a five-day-per-week preschool, and the Golden Strip Preschool, a one-day-per-week preschool. The parents then advised the District that they preferred the Golden Strip Preschool, in part because the limited hours afforded them the opportunity to utilize an in-home program for treating MM‘s autism (denominated as the “Lovaas” system).8
On September 21, 1995, MM‘s IEP Team, including her parents, met in Greenville. During this meeting, MM‘s 1995-96 IEP was completed, and her parents accepted and signed the written IEP. This IEP placed MM in the Golden Strip Preschool one day per week, from 9:00 to 11:00 a.m., in a classroom with a four-to-one student-to-teacher ratio. The 1995-96 IEP also provided MM with one-half hour per week of speech therapy, one-half hour per week of physical therapy, and one-half hour per month of occupational therapy. MM‘s physical therapy took place before preschool hours, but her speech therapy occurred during school hours. The IEP did not, however, provide for Extended School Year Services (“ESY Services“) for the Summer of 1996.9 The 1995-96 IEP was then implemented as planned, and MM‘s parents did not object to it during the school year.
MM made educational progress during 1995-96, and she was then re-evaluated for
On May 24, 1996, MM‘s parents requested reimbursement from the District for the in-home Lovaas program in which MM had been participating. A follow-up IEP Team meeting was then conducted on August 8, 1996, during which her parents presented their goals and objectives for MM, primarily based on her participation in the Lovaas program. This meeting was unsuccessful, and the Proposed 1996-97 IEP was not accepted by MM‘s parents.
Another IEP Team meeting was scheduled for August 22, 1996, but it was cancelled by the parents. An IEP was never finalized for 1996-97, and MM has not attended school in the District since May 1996. She has, however, continued to engage in the in-home Lovaas program, and she has attended kindergarten at a local Presbyterian Church. In preparing to offer an IEP for 1997-98, the District asked the parents for an opportunity to reassess MM, but they refused. The District did not make an IEP placement offer to MM for the 1997-98 school year.
On March 2, 1998, pursuant to the IDEA and § 43-243 of the South Carolina Code of Regulations, the Parents10 requested a due process hearing regarding the 1995-96, 1996-97, and 1997-98 school years.11 This hearing, conducted before a Hearing Officer in Greenville, lasted five days and included the testimony of twelve witnesses. The Hearing Officer thereafter concluded that the 1995-96 IEP and the Proposed 1996-97 IEP each were legally sufficient (i.e., they offered a FAPE), and that the District was not required to formulate an IEP for MM for the 1997-98 school year. He found, however, that the
The Parents thereafter appealed the Hearing Officer Decision to a Reviewing Officer of the South Carolina Department of Education, the second tier of the State‘s review process.
On October 13, 1998, the Parents instituted this suit, seeking judicial review of the administrative decisions and asserting that the District had inappropriately failed to offer MM an IEP for the three school years after 1996-97. The parties thereafter filed cross-motions for summary judgment, and the court awarded summary judgment to the District for the school years 1997-98, 1998-99, and 1999-2000, concluding that the Parents had failed to exhaust their administrative remedies for each of those years. MM v. Sch. Dist., No. 3:98-2971-17, Sealed Hearing Tr. at 37 (D.S.C. Feb. 22, 2000). The court then heard evidence on the issue of whether the District should have offered ESY Services to MM for the Summer of 1997. On August 17, 2000, it filed its Opinion, upholding the administrative rulings that the Proposed 1996-97 IEP was sufficient, and sustaining the Reviewing Officer‘s conclusion that the District was not obligated to offer ESY Services for the Summer of 1997. The district court reversed the Reviewing Officer on the 1995-96 IEP, however, concluding that it failed to provide MM with a FAPE. Opinion at 8. As a result of its rulings, the court awarded MM approximately $5,500 in damages. On August 18, 2000, the court entered judgment for those damages, and it also awarded MM nearly $2,000 in prejudgment interest. MM v. Sch. Dist., Sealed Judgment in a Civil Case, C/A No. 3:98-2971-17 (D.S.C. Aug. 18, 2000). On February 6, 2001, the court, by separate order, awarded MM attorneys’ fees and litigation expenses in the sum of over $42,000, but it held that her expert witness fees were not recoverable. MM v. Sch. Dist., Order, C/A No.: 3:98-2971-17 (D.S.C. Feb. 6, 2001).
The District has timely appealed the district court‘s ruling that the 1995-96 IEP failed to provide MM with a FAPE. The Parents have cross-appealed, raising four issues. They contend that the court erred in deciding that: (1) the Proposed 1996-97 IEP offered MM a FAPE; (2) the Parents improperly failed to exhaust their administrative remedies for the school years 1997-98, 1998-99, and 1999-2000; (3) the District properly denied ESY Services to MM for the Summer of 1997; and (4) their expert witness fees were not recoverable costs under the IDEA.
II.
While we generally review a summary judgment award de novo, our review process in the IDEA context warrants some explanation. In a judicial proceeding under the IDEA, a reviewing court is obliged to conduct a modified de novo review, giving “due weight” to the underly
Whether a district court has accorded the proper “due weight” to the administrative proceedings is a question of law—or at least a mixed question of law and fact—to be reviewed de novo by an appellate court. In our review, we need not defer to factual recitations made by a district court from the administrative record, because that court stands in no better position than do we in reviewing the record. Cf. In re Shangra-La, Inc., 167 F.3d 843, 847 (4th Cir.1999) (“We review the judgment of a district court sitting in review of a bankruptcy court de novo, applying the same standards of review that were applied in the district court.“). In conducting our review in an IDEA proceeding, we therefore must examine the entire record, and we must afford “due weight” to the’ administrative determinations, applying the standard of review utilized by the district court. However, where a district court has heard and considered additional evidence, as occurred here in connection with the ESY Services issue, we review its findings of fact for clear error.12 See Tucker v. Calloway County Bd. of Educ., 136 F.3d 495, 503 (6th Cir.1998) (observing that, in IDEA case where district court received deposition testimony not in administrative record, “[w]e apply a clearly erroneous standard of review to the district court‘s findings of fact.“).
III.
In its appeal, the District has raised only one issue: it challenges the court‘s conclusion that MM‘s 1995-96 IEP failed to provide her with a FAPE. Because the dispute over the 1995-96 IEP is a substantive one, the district court properly framed the question as “whether the IEP was reasonably calculated to enable the child to receive educational benefits, or stated another way, was the IEP sufficient to confer ‘some educational benefit’ upon the handicapped child.” Opinion at 6. The court noted that conflicting testimony had been presented to the Hearing Officer on whether the 1995-96 IEP was
We have always been, and we should continue to be, reluctant to second-guess professional educators. As we observed in Tice v. Botetourt County School Board, 908 F.2d 1200, 1207 (4th Cir.1990), “once a procedurally proper IEP has been formulated, a reviewing court should be reluctant indeed to second-guess the judgment of education professionals.” Indeed, we should not “disturb an IEP simply because we disagree with its content,” and we are obliged to “defer to educators’ decisions as long as an IEP provided the child the basic floor of opportunity that access to special education and related services provides.” Id. (internal citation and quotations omitted).
In their consideration of the District‘s actions with respect to MM, both the Hearing Officer and the Reviewing Officer found that the 1995-96 IEP provided her with a FAPE. The district court rejected these conclusions, and it instead determined that “[t]he brevity of this program’ —just a few hours one day a week, with no instruction the remaining four and one-half days per week—was ... in this court‘s judgment, completely inadequate.” Opinion at 8. In reaching its decision, the court failed to consider the actual educational progress made by MM during 1995-96, even though an important measure of an IEP‘s success is whether the disabled child has made progress on the basis of objective criteria. See Rowley, 458 U.S. at 207 n. 28, 102 S.Ct. 3034 (observing that “achievement of passing marks and advancement from grade to grade” are an “important factor in determining educational benefit“).
The district court, in assessing whether MM‘s 1995-96 IEP constituted a FAPE, failed to consider and accord weight to her actual educational progress.13 And in these cases, the courts should endeavor to rely upon objective factors, such as actual educational progress, in order to avoid “substitut[ing] [our] own notions of sound educational policy for those of the school authorities which [we] review.” Hartmann v. Loudoun County Bd. of Educ., 118 F.3d 996, 1000 (4th Cir.1997) (internal citation and quotation omitted). In refusing to credit such evidence, and in conducting its own assessment of MM‘s IEP, the court elevated its judgment over that of the educators designated by the IDEA to implement its mandate. The courts should, to the extent possible, defer to the considered rulings of the administrative officers, who also must give appropriate deference to the decisions of professional educators. As we have repeatedly recognized, “the task of education belongs to the educators who have been charged by society with that critical task ... [and] federal courts must accord due weight to state administrative proceedings.” Springer by Springer v. Fairfax County Sch. Bd., 134 F.3d 659, 663 (4th Cir.1998) (internal quotation omitted). Because the district court, in vacating the administrative rulings on MM‘s 1995-96 IEP, failed to appropriately defer to the professional educators, we reverse its award of summary judgment on that issue.14
IV.
Turning to the cross-appeal, the Parents raise four separate contentions of error. They maintain that (1) the Proposed 1996-97 IEP was both procedurally and substantively defective; (2) the court improperly awarded summary judgment to the District for the years 1997-98, 1998-99, and 1999-2000 on the ground that the Parents failed to exhaust administrative remedies; (3) the court erroneously denied ESY Services to MM for the Summer of 1997; and (4) the court erred in declining to order reimbursement for expert witness fees. We address each of these issues in turn.
A.
1.
First of all, the Parents maintain that the Proposed 1996-97 IEP was incomplete, and thereby procedurally defective, because it was not finalized by the beginning of the school year, as mandated by the IDEA. See
It is clear that, under the IDEA, the failure of a school district to have a final IEP in place at the beginning of a school year is a procedural defect. When such a procedural defect exists, we are obliged to assess whether it resulted in the loss of an educational opportunity for the disabled child, or whether, on the other hand, it was a mere technical contravention of the IDEA. Gadsby v. Grasmick, 109 F.3d 940, 956 (4th Cir.1997) (“[T]o the extent that the procedural violations did not actually interfere with the provision of a free ap
It is undisputed that the Proposed 1996-97 IEP for MM was never signed or completed. It is also undisputed that MM‘s parents attended two IEP Team meetings regarding the Proposed 1996-97 IEP, and that they cancelled a scheduled third meeting. The District then requested notification from the parents when they were ready to reconvene the IEP Team. The parents provided no such notification, however, nor did they ever respond to the written notice from the District that a space was being held open for MM for the 1996-97 school year.
In their appeal, the Parents rely on a Sixth Circuit decision, Knable v. Bexley City School District, 238 F.3d 755 (6th Cir. 2001), in maintaining that a “draft” or proposed IEP cannot satisfy the IDEA, and that the District‘s failure to complete MM‘s 1996-97 IEP entitles them to reimbursement. They also rely on the First Circuit‘s decision in Town of Burlington v. Department of Education, and they defend their failure to reschedule the IEP Team meeting by asserting that the District is obligated to complete an IEP, whether a child‘s parents cooperate or not. 736 F.2d 773, 795 (1st Cir.1984). These authorities, however, fail to support the propositions advanced by the Parents.
In Knable, the Sixth Circuit declined to address whether a “draft” IEP could be sufficient to comply with the IDEA because, in that case, the school district had never convened an IEP Team meeting, a prerequisite to a valid IEP. 238 F.3d at 766-67. In Burlington, the First Circuit concluded that the school district had failed to properly notify the child‘s parents of an IEP Team meeting. The court rejected the district‘s excuse for failure to notify—that the parents had refused to make the disabled child available for evaluation—because a child need not be present at an IEP Team meeting. 736 F.2d at 795. Because the district failed to provide notice to the child‘s parents of the IEP Team meeting, it failed to comply with the procedures established by the IDEA regulations. Id.;
Unlike the factual underpinnings of Knable and Burlington, the administrative decisionmakers in this case, and the district court as well, found that the District was willing to offer MM a FAPE, and that it had attempted to do so. They also found that her parents had a full opportunity to participate in the development of the Proposed 1996-97 IEP. The court‘s analysis emphasized that the parents had been afforded a full and fair involvement in the process. Spielberg v. Henrico County Pub. Schs., 853 F.2d 256, 259 (4th Cir.1988). Indeed, the court properly concluded that “it would be improper to hold [the] School District liable for the procedural violation of failing to have the IEP completed and signed, when that failure was the result of [the parents‘] lack of cooperation.” Opinion at 15.
It is significant that there is no evidence that MM‘s parents would have accepted any FAPE offered by the District that did not include reimbursement for the Lovaas program. As we have noted, the District is not obligated by the IDEA to provide a disabled child with an optimal education; it is only obliged to provide a FAPE. Rowley, 458 U.S. at 192, 102 S.Ct. 3034. In these circumstances, MM suffered no prejudice from the District‘s failure to agree to her parents’ demands. Because this procedural defect did not result in any lost educational opportunity for MM, the Proposed 1996-97 IEP did not contravene the IDEA.
2.
In their appeal, the Parents also contend that the Proposed 1996-97 IEP was substantively deficient, and that their lack of cooperation with the District is thus excused. In this regard, the Hearing Officer found otherwise, concluding that “[t]here is no reason to doubt that [MM] would have made progress and received meaningful educational benefit from the Sara Collins placement.” Hearing Officer Decision at 13. Although the Hearing Officer thought it “less certain” that the Golden Strip placement would have provided educational benefit, he concluded that “the District should not be penalized because they were attempting to honor the requirements of I.D.E.A. which encourage parental participation in the education of their children.” Id. The Reviewing Officer later found that the Proposed 1996-97 IEP “was an enhancement over the successful IEP delivered by the District in [the] 1995-96 school year. There is no evidence that MM would not have benefitted from participation in that program.” Reviewing Officer Decision at 13. Likewise, the district court concluded that the Proposed 1996-97 IEP “could have conferred educational benefit,” and that it thus complied with the mandate of the IDEA. Opinion at 17.
We have no basis, on this record, for overturning the consistent decisions of the administrative and judicial process. The Hearing Officer, the Reviewing Officer, and the district court each reached the same conclusion—that the Proposed 1996-97 IEP for MM was substantively appropriate.
B.
The Parents next challenge the District‘s failure to develop an IEP for MM for the school years 1997-98, 1998-99, and 1999-2000. The district court awarded summary judgment to the District with respect to each of these years, concluding that the Parents had failed to exhaust their available administrative remedies. MM v. Sch. Dist., No. 3:98-2971-17, Sealed Hearing Tr. at 37 (D.S.C. Feb. 22, 2000).
1.
First of all, it is undisputed that, for the school years 1998-99 and 1999-2000, the Parents failed to request a due process hearing. The Parents claim, however, that they were not, in this situation, obliged to make any such request and thereby exhaust their administrative remedies. Their basis for this assertion is that the District was engaged in a continuing violation of the IDEA, and that they were therefore not required to “re-exhaust” for each year.
It is clear that, under the IDEA, parents asserting a violation of the IDEA must first request a due process hearing.
In this appeal, the Parents challenge the lack of IEPs for three separate academic years. When parents of a disabled child challenge multiple IEPs in court, they must have exhausted their administrative remedies for each academic year in which an IEP is challenged.16 See, e.g., Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1292 n. 2 (11th Cir. 2001). And these Parents were not uninformed: because they appealed the IEPs for other years in the proper manner, i.e., 1995-96 and 1996-97, “it is clear that they were aware of the availability of such review.” Dreher v. Amphitheater Unified Sch. Dist., 22 F.3d 228, 235 (9th Cir.1994). The failure of the Parents to exhaust their administrative remedies for the 1998-99 and 1999-2000 school years deprives us of subject matter jurisdiction over those claims, and we agree with the district court that the claims for those years must fail.
2.
On the other hand, the circumstances of the 1997-98 school year are different. The Parents challenged the District‘s failure to develop an IEP for the 1997-98 school year at the due process hearing, and they maintained that position before the Reviewing Officer. The district court was therefore incorrect in concluding that the Parents had failed to exhaust their administrative remedies for the 1997-98 school year.
Nonetheless, we are entitled to affirm the court‘s judgment on alternate grounds, if such grounds are apparent from the record. See, e.g., Cochran v. Morris, 73 F.3d 1310, 1315 (4th Cir.1996) (noting “well-recognized authority of courts of appeals to uphold judgments of district courts on alternate grounds“). In that regard, the Reviewing Officer concluded that the District had engaged in a good-faith effort to offer MM a FAPE for the 1997-98 school year. Reviewing Officer Decision at 15 (“The School District should not be held liable for the Petitioners lack of effort to comply with the Districts’ [sic] request to evaluate MM before designing and offering a FAPE program for the 1997-98 school year.“). Indeed, the District had specifically offered to re-evaluate MM for 1997-98, and it had indicated a willingness to develop an IEP for 1997-98. It is undisputed, however, that after the Summer of 1996, the Parents refused to cooperate with the District.
A school district is only required to continue developing IEPs for a disabled child no longer attending its schools when a prior year‘s IEP for the child is under administrative or judicial review. See Amann v. Stow Sch. Sys., 982 F.2d 644, 651 n. 4 (1st Cir.1992); Burlington, 736 F.2d at 794. Even if a prior year‘s IEP is contested and the school district fails to develop
In this case, the parents withdrew MM from the District‘s schools in 1996, but they did not request a due process hearing as to any IEP until March of 1998. The District was therefore under no continuing obligation in 1997 to develop an IEP for MM. Even if the District had been so obliged, the Parents have made no showing of changed circumstances. Because the District was not obliged to develop an IEP for MM for the 1997-98 school year, we will affirm, on this alternate ground, the award of summary judgment to the District on the 1997-98 IEP.
C.
The third contention of the Parents in their cross-appeal is that the district court erroneously determined that MM was not entitled to ESY Services for the Summer of 1997. While the Hearing Officer had initially concluded that MM was entitled to ESY Services (Hearing Officer Decision at 14), the Reviewing Officer reversed that decision. Reviewing Officer Decision at 13-14. The district court, after reviewing the findings of the Hearing Officer and the Reviewing Officer, and after hearing additional testimony not before those administrative officials, concluded that MM was not entitled to ESY Services. Opinion at 20.
We have not developed a standard for determining when ESY Services are appropriate under the IDEA. However, the Fifth and Tenth Circuits have concluded that ESY Services are appropriate when the benefits accrued to a disabled child during a regular school year will be significantly jeopardized if he is not provided with an educational program during the summer months. Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1158 (5th Cir.1986); see also Johnson v. Indep. Sch. Dist. No. 4, 921 F.2d 1022, 1028 (10th Cir.1990). The Sixth Circuit, in a slightly different characterization, has held that ESY Services are warranted when they prevent significant regression of skills or knowledge that would seriously affect a disabled child‘s progress toward self-sufficiency. Cordrey v. Euckert, 917 F.2d 1460, 1474 (6th Cir.1990). In this case, the district court properly characterized the standards utilized by those courts as being similar to one another, and it amalgamated them into a single test. Opinion at 19 (requiring that “plaintiff would have to establish that ESY would prevent significant regression of skills or knowledge retained by the child so as to seriously affect his progress toward self-sufficiency, or that benefits accrued to the child during the regular school year would be significantly jeopardized if he were not provided an educational program during the summer.“). Applying this test, the court held that the Parents had failed to establish any entitlement to ESY Services for the Summer of 1997.17
ESY Services are only necessary to a FAPE when the benefits a disabled child
On this question, the district court considered the conflicting administrative findings of the Hearing Officer and the Reviewing Officer. Perhaps because of the conflict, the court, as it was entitled to do under
Because the district court heard and considered additional evidence, we review its findings on the ESY Services issue for clear error. See supra note 12. In light of the conflicting evidence and the administrative decisions, the district court‘s finding, that the Parents had failed to demonstrate that MM‘s progress would be significantly jeopardized in the absence of ESY Services, cannot be clearly erroneous. See, e.g., Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Corp., 65 F.3d 1113, 1122 (4th Cir.1995) (“Given the conflicting nature of the evidence in the record, we cannot reverse the district court‘s finding as clearly erroneous.“). As such, we must affirm its denial of reimbursement to the Parents for ESY Services.18
V.
Pursuant to the foregoing, we reverse the district court on the 1995-96 IEP. We affirm its rulings that the Proposed 1996-97 IEP provided a FAPE, that summary judgment was appropriate for the school years 1997-98, 1998-99, and 1999-2000, and that the District was not required to offer ESY Services to MM for the Summer of 1997. We remand for such further proceedings, if any, that might be appropriate.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Notes
(i) with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (hereinafter referred to as “emotional disturbance“), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and
(ii) who, by reason thereof, need[ ] special education and related services.
(i) a statement of the child‘s present levels of educational performance,....
(ii) a statement of measurable annual goals, including benchmarks or short-term objectives,....
(iii) a statement of the special education and related services and supplementary aids and services to be provided to the child....
(iv) an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the activities described in clause (iii);....
(viii) a statement of—
(I) how the child‘s progress toward the annual goals described in clause (ii) will be measured....
The term “extended school year services” (“ESY Services“) means special education and related services that are provided to a student with, a disability beyond the normal school year of the school districl/agency in accordance with the student‘s IEP, that are provided at no cost to the parent of the student, and that meet the standards of the State Department of Education.... ESY Services must be provided only if a student‘s IEP team determines on an individual basis that the services are necessary for the provision of a free appropriate public education (FAPE)to the student....
A. For the Petitioners:
1. FAPE—The appropriateness of the District‘s IEPs.
2. The District‘s ability to implement the proposed IEPs.
3. The Petitioners’ desire for reimbursement for MM‘s private placement.
4. Compensatory education for MM.
5. The award of attorney‘s fees, costs and witness fees.
6. The award of actual and punitive damages.
B. For the School District:
1. The assertion of the legal defense of Laches regarding any contest of the 1995-96 IEP because the Petitioners executed a document accepting it and did not raise any objection until the end of the school year.
2. The District had provided and offered FAPE for MM but it was rejected by the Petitioners.