Case Information
*2 Before MARTIN, FAY, and SENTELLE, [*] Circuit Judges.
MARTIN, Circuit Judge:
This appeal arises out of a lengthy and contentious dispute between the Miami-Dade County School Board (the Board) and R.L. and S.L., whose son O.L. has been diagnosed with developmental and digestive disorders that have greatly impacted his educational needs. After years of difficulties resulting at least in part from the growing size of his school environments, O.L.’s parents asked the Board to place him in a smaller high school than his 3600-student home high school. When the Board refused, and after the high school placement proved unworkable for O.L., his parents withdrew him from the public school system and arranged for him to receive one-on-one instruction outside the school setting. In this appeal, the Board challenges the District Court’s decision to award O.L.’s parents reimbursement for that instruction as well as some of their attorney’s fees. R.L. and S.L. cross appeal from the District Court’s decision not to award O.L. compensatory education. After careful review, and with the benefit of oral argument, we affirm.
I. Background
Before we reach the merits of this case, we review three important background matters. First, we review the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., in order to put the case in context. Next, we review the facts of O.L.’s disabilities, the history of his education in the Miami- Dade County School System, and the dispute between the Board and O.L.’s parents that gave rise to this litigation. Finally, we review the decisions of the District Court as well as the Administrative Law Judge (ALJ).
A. Legal Background
The IDEA extends federal financial assistance to states that agree to provide
an education to children with disabilities consistent with the standards and
requirements set out in the statute. See 20 U.S.C. § 1412(a). Procedurally, the
IDEA requires (among other things) that the state
[1]
develop and conduct a yearly
review of an Individualized Education Program (IEP) that addresses the student’s
unique needs. Id. §§ 1412(a)(4), 1414(d)(4)(A). The IEP is supposed to be the
culmination of a collaborative process between parents, teachers, and school
administrators outlining the student’s disability and his educational needs, with the
goal of providing the student with a free appropriate public education (FAPE). Id.
§§ 1401(9), 1412(a)(1)(A), 1414(d)(1)(A)–(B), (d)(3). Among the decisions that
must be made by the IEP team is the educational placement—that is, the setting
where the student will be educated—which must be “based on the child’s IEP.” 34
C.F.R. § 300.116(a)–(b). Once arrived at, the final IEP should comply with the
procedural and substantive requirements set forth in the IDEA and should be
“reasonably calculated to enable the child to receive educational benefits.” JSK v.
Hendry Cnty. Sch. Bd.,
The IDEA recognizes, however, that this collaborative process might not
always yield results acceptable to all members of the IEP team. If the parents
believe that the IEP does not comply with the IDEA’s requirements, they may
unilaterally withdraw their child from the school system and pursue alternative
placement options. See Sch. Comm. of Town of Burlington, Mass. v. Dep’t of
Educ. of Mass.,
On appeal, the District Court reviews the evidence presented to the ALJ and may hear additional evidence if needed. Id. § 1415(i)(2)(C)(i)–(ii). After
reviewing all the evidence, the District Court may grant relief without a trial by
issuing what we have called a “judgment on the record.” Loren F. v. Atlanta
Indep. Sch. Sys.,
District Courts have broad discretion to fashion whatever relief is
“appropriate” in light of the IDEA’s purpose. Burlington,
B. Educational Background
O.L. has been diagnosed with different disorders at different times in his life. These include Asperger Syndrome, Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder, and gastroesophageal reflux disease (GERD). This combination of disorders causes O.L. to have serious trouble with anxiety, obsessive compulsive behavior, and sensory processing. Because of his sensory processing challenges, he suffers from sensory overload when there is too much going on in his surrounding environment—for example, when he is in a crowded place with a lot of background noise. When O.L. becomes anxious or overwhelmed by his surroundings, he experiences extreme fatigue, headaches, stomach aches, vomiting, muscle tics, and behavioral problems.
O.L. began his education in the Miami-Dade County public schools. His most debilitating symptoms did not emerge until his last year of elementary school, where about 700 students attended. In fifth grade, anxiety and sensory overload caused him to vomit frequently. O.L.’s symptoms got worse the next year, when he moved to Palmetto Middle School, which had 1700 students. He continued to deteriorate as he entered the seventh grade, and his muscle tics, obsessive compulsive behavior, headaches, and vomiting became progressively worse. Eventually, he became exceptionally violent and destructive at home, sometimes requiring his parents to administer emergency medication to calm him down. O.L.’s symptoms became so bad during the seventh grade that his parents removed him from school in December 2004 and considered admitting him to a psychiatric hospital. There was a consensus among his private treatment team, which included a psychiatrist, an audiologist, and a school psychologist, that this regression resulted from the sensory overload he experienced in the large school environment.
During O.L.’s medical leave, the Board provided him with a couple hours of one-on-one home instruction each day, which O.L.’s parents supplemented at their own expense. Within three months, his symptoms were under control and O.L. was able to return to school on a modified schedule. Under this modified schedule, O.L. received a few hours of instruction at Palmetto Middle School and then returned home each day for a few more hours of one-on-one home instruction.
O.L. continued at Palmetto Middle School for eighth grade, at the recommendation of his psychiatrist. In the beginning, he split his day between school and home instruction, like he had done at the end of seventh grade. After several weeks, the IEP team increased school instruction, but O.L. still spent part of the day in one-on-one home instruction. Unfortunately, O.L. did not respond well to the increased school instruction, and the symptoms that necessitated his withdrawal the year before re-emerged. Even so, the IEP team increased his school and home instruction even more in response to O.L.’s poor academic performance. Despite the IEP team’s persistence, O.L. did not progress much during his eighth grade year.
Against this backdrop, R.L., S.L., and the rest of O.L.’s IEP team met to craft O.L.’s IEP for his transition from middle school to high school. If O.L. continued in his local public school, he would attend Palmetto Senior High School. Palmetto Senior High School had 3600 students, more than double the size of Palmetto Middle School.
The IEP team met on April 24, May 16, and May 22, 2006. Before the meetings, R.L. and S.L. made it clear to the Board that they strongly favored placing O.L. in a smaller school environment closer in size to his elementary school. Again at the meetings, R.L. and S.L. reiterated their strong preference for a smaller school, arising from their belief that O.L.’s problems throughout middle school were due at least in part to the school size. R.L. and S.L. very much favored placement at MAST Academy, a small magnet school in Miami-Dade County. The Board rejected the idea of MAST Academy for O.L., and told R.L. and S.L. that O.L. would attend Palmetto Senior High School and no other site would be considered.
The team finished the IEP, identifying Palmetto Senior High School as O.L.’s educational placement, over his parents’ objection. Even though R.L. and S.L. disagreed with the decision, they started O.L. at Palmetto Senior High School, to see if he could be accommodated in that setting. Unfortunately, the severe symptoms O.L. suffered during middle school returned within the first few days. By the third day, he had a moderate muscle tic and was vomiting. O.L.’s parents wanted to withdraw him, but his psychiatrist encouraged them to see if O.L. would improve after some modifications to his medications.
But O.L.’s symptoms only got worse, not better. He became more anxious, had difficulty sleeping, became more obsessive compulsive, and he continued to vomit. And, similar to the breakdown he had in the seventh grade, O.L.’s behavior at home was almost uncontrollable. He began throwing himself on the floor, screaming, and breaking doors. After seeing their child regress so much in such a short period of time, R.L. and S.L. decided to withdraw O.L. from Palmetto Senior High School
And indeed, O.L.’s symptoms improved after he stopped attending Palmetto Senior High School. At the same time, however, he became more reclusive and obsessed with certain activities. O.L.’s parents decided to design a one-on-one instructional program, like the one he had when he was withdrawn from school in the seventh grade. The program featured several hours of one-on-one instruction along with Medicaid-covered speech and occupational therapy, services which O.L.’s IEP called for him to receive had he remained enrolled at Palmetto Senior High School. O.L. remained in this program for the rest of the 2006–2007 year and the 2007–2008 year. [2] For most of that time, the one-on-one instruction was provided by a former public school special education instructor, who believed the program provided O.L. with some educational benefits.
C. Procedural Background
The Board requested an administrative due process hearing, for a determination about whether the IEP was appropriate. R.L. and S.L. filed a cross- complaint against the school, seeking appropriate relief for what they saw as a violation of O.L.’s rights under the IDEA.
The parents alleged a number of procedural problems, but the ALJ found that none violated the IDEA. Only one of the alleged procedural violations matters for this appeal. That is predetermination. R.L. and S.L. argued before the ALJ that the school district predetermined O.L.’s educational placement at Palmetto Senior High School without regard for O.L.’s unique needs. In the language of the IDEA and its implementing regulations, R.L. and S.L. argued that their son’s educational placement was not chosen by the entire IEP team “based on” the completed IEP. See 34 C.F.R. § 300.116(a)–(b). The ALJ disagreed, concluding that the Board’s position that no other site besides Palmetto Senior High School would be considered “does not mean that no other site had been considered.”
The ALJ found that the Board did, however, violate the IDEA’s substantive requirements because the IEP was not reasonably calculated to provide O.L. with any educational benefit. The ALJ specified two discrete areas in which the IEP failed to meet O.L.’s educational needs: (1) anxiety, stress, and sensory management and (2) reading comprehension. Due to the significance of these shortcomings, the ALJ concluded that the entire educational program deprived O.L. of his right to a FAPE.
Apparently at the parties’ request, the ALJ also considered what educational placement would be appropriate for O.L. The ALJ decided that the setting of Palmetto Senior High School would not itself deprive O.L. a FAPE. In other words, the ALJ decided that the Board could hypothetically provide O.L. a FAPE at Palmetto Senior High School if it developed an IEP that met O.L.’s unique needs. In reaching this conclusion, the ALJ gave little weight to “the shared opinion of [O.L.’s] professionals that he requires a small high school so as to control environmental stimulation and allow him to access his education.”
R.L. and S.L. filed for review of the ALJ decision in District Court. [3] The District Court reviewed the case in two phases. In the first phase, the District Court considered whether and to what extent the Board had deprived O.L. of a FAPE. The District Court noted that there was no dispute about whether the IEP complied with the IDEA’s substantive requirements, because “[n]either party challenge[d] the ALJ’s finding that the IEP deprives O.L. of a FAPE by failing to adequately address O.L.’s educational needs.” While recognizing this point of agreement, the District Court went on to disagree with the ALJ’s conclusion that Palmetto Senior High School could be an appropriate setting. The District Court found, in contrast to the ALJ, that a large setting like Palmetto Senior High School “cannot provide O.L. with an appropriate education.” The District Court also disagreed with the ALJ’s finding about procedural compliance when it found that O.L.’s placement at Palmetto Senior High School had been predetermined in contravention of the IDEA.
In the second phase of review, the District Court considered what relief should be granted. The District Court heard additional evidence about whether O.L.’s one-on-one program was appropriate and also whether he needed compensatory education. Based on this evidence, the District Court decided to grant O.L.’s parents full reimbursement for the one-on-one program from September 2006 through May 2008, and ordered the Board to reimburse Medicaid for the cost of the speech and occupational therapy. The District Court, however, denied R.L. and S.L.’s request for compensatory education. Finally, the District Court awarded R.L. and S.L. $35,435.64 in attorney’s fees and costs, a reduction from the $167,417.76 the parents requested.
Upon the District Court’s resolution of all of these issues, both parties appealed. The Board challenges (1) the District Court’s finding that the educational placement was both predetermined and inappropriate; (2) the District Court’s decision to award R.L. and S.L. reimbursement for one-on-one instruction and reimbursement to Medicaid; and (3) the award of attorney’s fees to R.L. and S.L. The parents challenge the District Court’s denial of compensatory education.
II. Standard of Review
A few different standards govern our review of this case. We review de
novo questions of law, like the interpretation of the governing statutes and
regulations. See Draper,
With these background principles in mind, the extent to which we scrutinize
the District Court’s decision varies depending on the issue under review. There are
two stages to a District Court’s determination of whether to grant relief and what
relief to grant, and our review of the decisions made at each stage is different. In
the first stage, the District Court considers whether parents are eligible for
reimbursement. When parents reject the offered IEP and unilaterally pursue an
alternative placement, they are eligible for reimbursement only if (1) the state did
not offer an educational program that would provide a FAPE; and (2) the
alternative placement the parents pursued was appropriate for the child. M.M. v.
Sch. Bd. of Miami-Dade Cnty., Fla.,
If the evidence shows that the parent is eligible for reimbursement, then the District Court moves on to the second stage, in which it determines the relief due to the parent. At this stage, we review the District Court’s decision only for abuse of discretion. Id.
III. Eligibility for Reimbursement
First, we must ask whether the District Court was right to conclude that R.L.
and S.L. are eligible for reimbursement. As we’ve said, R.L. and S.L. are only
eligible for reimbursement if we find that (1) the Board failed to make an offer of
FAPE and (2) the alternative one-on-one instructional program the parents chose
was appropriate for O.L. See M.M.,
The Board’s position about whether its educational program offered O.L. a FAPE is confusing to say the least. In the answer to R.L. and S.L.’s complaint in the District Court, the Board denied that the ALJ found that the IEP failed to offer O.L. a FAPE. The Board made this denial in the face of the ALJ’s express finding that the IEP’s shortcomings in stress management and reading comprehension “are such that the IEP is not reasonably calculated to provide [O.L.] with educational benefit.” Now in this appeal, the Board seems to argue that they did make an offer of FAPE, despite the shortcomings the ALJ identified. At the same time, though, the Board has clearly conceded that it failed to fully meet O.L.’s needs, and the District Court was led to believe based on the Board’s arguments that it conceded that it failed to offer O.L. a FAPE.
Based on the Board’s concessions in the District Court, it found that
“[n]either party challenged the ALJ’s findings that the IEP deprives O.L. of a
FAPE.” On our read of the Board’s brief, it has not clearly articulated a challenge
to the District Court’s decision that it failed to challenge the FAPE issue before it.
Thus, to the extent the Board now argues that it did offer O.L. a FAPE, its
challenge to the District Court’s contrary finding on procedural grounds is waived.
See Access Now, Inc. v. Sw. Airlines Co.,
Even if the Board did preserve a challenge to the question of whether it
offered O.L. a FAPE, the argument should be rejected. The ALJ spent many pages
describing the IEP’s shortcomings in the areas of stress management and reading
comprehension, and why those shortcomings rendered the whole educational
program deficient. We do not need to discuss the evidence here, because it is clear
from the record and the ALJ’s discussion that the May 2006 IEP did not and could
not meet O.L.’s needs and enable him to access his education. Cf. Rowley, 458
U.S. at 206–07,
The Board seems to suggest that if the District Court was wrong about whether the placement was predetermined and whether it was appropriate, then R.L. and S.L. are not eligible for reimbursement. This argument misses the mark. It is certainly true that not every failure to meet the IDEA’s procedural requirements entitles parents to reject the IEP and pursue reimbursement for an alternative placement. See Weiss v. Sch. Bd. of Hillsborough Cnty., Fla., 141 F.3d 990, 996–97 (11th Cir. 1998) (per curiam). But where, as here, the substance of the IEP is so deficient that it cannot allow the student to access his education, the question of whether the IEP was completed in keeping with all the procedural requirements makes no difference to the parents’ eligibility for reimbursement. Neither does it matter whether the chosen placement itself violates the IDEA. As the ALJ concluded, the May 2006 IEP was not good enough to allow O.L. to access his education no matter where it was being implemented. This means that R.L. and S.L. would be entitled to reject the offered IEP and pursue reimbursement for supplementary educational services even if the Board had acquiesced in placing O.L. at MAST Academy.
For this reason, R.L. and S.L. are right that the predetermination and placement issues have no impact on their eligibility for reimbursement. But the District Court did take both facts into account when balancing the equities at the relief stage of the analysis, and so we review those findings in that context only. But to be clear, we do not consider the placement issue at all relevant to the District Court’s determination that R.L. and S.L. are eligible to be reimbursed for the expense of educating O.L. where the evidence clearly establishes that the IEP otherwise deprived O.L. a FAPE.
Moving to the second stage of the eligibility inquiry, we consider whether
the District Court correctly determined that the one-on-one instructional program
was appropriate. See M.M.,
The District Court based its finding that the alternative program was proper on the following facts: O.L. used the same textbooks he would have used at Palmetto Senior High School; the program was administered by a special education teacher who opined that the services were reasonable and appropriate; and witnesses for the school district conceded at times that O.L. did in fact receive some educational benefits from the program. The Court acknowledged that the parents’ program “had its shortcomings”—particularly in socialization, an area important to children who are on the autism spectrum. Nevertheless, it concluded that the preponderance of the evidence showed that the one-on-one program was reasonably calculated to confer at least some educational benefits on O.L.
We agree. Beyond those reasons cited by the District Court, we are also persuaded by the fact that O.L.’s IEP had historically provided for one-on-one instruction when the alternative educational environment overwhelmed O.L., and this alternative to public school benefitted O.L. In addition, there was evidence that O.L.’s school psychologist recommended one-on-one instruction in a number of academic areas, which the program R.L. and S.L. chose obviously provided. These facts, coupled with the testimony from O.L.’s primary home instructor— who had been a special education instructor with Miami Dade County for 12 years—that the services were “reasonable” and “appropriate” for O.L.’s educational needs convince us that the District Court was right to find that the alternative program was proper under the standard set forth in Rowley.
At the same time, we recognize there was evidence that O.L. regressed in
some areas while receiving one-on-one instruction outside the school setting. And
there can be no doubt that O.L.’s social skills would have been better served in a
different environment. But a parent does not have to provide a perfect program in
order to be eligible for reimbursement. See Loren F.,
IV. Appropriate Relief
Having determined that R.L. and S.L. are eligible for reimbursement, we next consider whether the District Court’s reimbursement award is appropriate. In an effort to avoid financial responsibility for O.L.’s one-on-one instruction and related therapy services, the Board makes the following arguments: (1) the services provided through Medicaid were not educationally relevant; (2) District Courts do not have the power under the IDEA to grant reimbursement for home-based instructional programs; and (3) reimbursement should have been reduced or denied on equitable bases. None of these provide any reason to upset the District Court’s reimbursement award.
A. Reimbursement to Medicaid
The District Court ordered the Board to reimburse Medicaid for O.L.’s speech and occupational therapy, so that O.L.’s lifetime Medicaid eligibility would be restored. There is no dispute that O.L.’s educational program has for years called for speech and occupational therapy, educational needs which are even reflected in the Board’s challenged May 2006 IEP. The Board’s hyper-technical focus on the fact that these services were characterized as medical services on a Medicaid form rather than educational services is entirely unconvincing. It is clear that, for O.L., these services are related to his educational needs and are therefore reimbursable under the IDEA. See D.P. v. Sch. Bd. of Broward Cnty., 483 F.3d 725, 736 (11th Cir. 2007) (noting that a parent is entitled to reimbursement for the provision of related services in the event the public system does not offer a FAPE); 20 U.S.C. § 1401(26)(A) (defining related services to include “speech-language pathology” services and “physical and occupational therapy”). The District Court was right to look to the actual character of the services provided rather than narrowly focusing on the label for billing purposes. [5]
B. Reimbursement for One-on-One Instructional Programs
The Board’s argument that the IDEA does not permit a District Court to
award reimbursement for one-on-one home instructional programs also misses the
mark. Section 1415(i)(2)(C)(iii) instructs a District Court that it “shall grant such
relief as the court determines is appropriate.” The Supreme Court has said that this
provision “confers broad discretion on the court” to grant whatever relief is
“‘appropriate’ in light of the purpose of the Act.” Burlington,
It is clear to us that in some cases, reimbursement for one-on-one home
instructional programs will be “appropriate” in light of the IDEA’s purpose. The
IDEA clearly contemplates that a state might be required to place a student in one-
on-one homebound instruction to meet the student’s needs, evidenced by its
definition of “special education” to include “instruction conducted . . . in the
home.” 20 U.S.C. § 1401(29); see also 34 C.F.R. § 300.115 (listing home
instruction as part of the continuum of alternative placements states must make
available to students to comply with the IDEA). We reject the suggestion that the
IDEA might sometimes require the state to place a student in one-on-one
homebound instruction, but prohibit a District Court from ever authorizing
reimbursement for such a program. If we accept the Board’s position, parents with
a child who absolutely requires homebound instruction would be left without any
remedy if they rejected an IEP offered by the state that placed the child in a normal
public school. The IDEA does not countenance such a perverse result. See M.M.,
The Board focuses on 20 U.S.C. § 1412(a)(10)(C)(ii), which says that a parent is entitled to tuition reimbursement when they unilaterally “enroll the child in a private elementary school or secondary school” if the state fails to offer a FAPE. Because this provision authorizes reimbursement for private schools, the Board says we should understand the IDEA to preclude reimbursement for private non-school placements. The Board’s reliance on § 1412(a)(10)(C)(ii) is not persuasive.
This section upon which the Board relies is not the only section of the IDEA
that describes a District Court’s remedial powers. See Forest Grove Sch. Dist. v.
T.A.,
The insignificance of § 1412(a)(10)(C)(ii)’s reference to school placement
becomes even more clear when we consider that the Supreme Court has already
told us that the section does not exhaustively describe, or even strictly limit, a
District Court’s remedial authority. See id. at 242,
Similarly, the Board maintains here that because § 1412(a)(10)(C) only
discusses reimbursement where parents unilaterally place their children in private
schools, the IDEA only authorizes reimbursement in that circumstance. We, of
course, accept the Supreme Court’s analysis that such an argument is
“unpersuasive” and would produce results “bordering on the irrational.” Id. at 241,
245,
Neither are we persuaded by the Board’s reliance on Arlington Central
School District Board of Education v. Murphy,
It is important to remember that all we are considering here is whether the
IDEA ever authorizes District Courts to grant relief for one-on-one instruction
outside the school setting. The interpretation of the IDEA we adopt today, which
is consistent with both its text and its underlying purpose, will not result in
widespread reimbursement for inappropriate placements. The Supreme Court has
said that the mechanism for preventing reimbursement for inappropriate
placements is the requirement that the alternative placement be proper in light of
the purpose of the IDEA. Forest Grove,
C. Equitable Factors
Even where a public placement violates the IDEA and the parents provide a
proper alternative at their own expense, “courts retain discretion to reduce the
amount of a reimbursement award if the equities so warrant.” Forest Grove, 557
U.S. at 246–47,
We first address the factual dispute about the predetermination and
placement questions, which present mixed questions of law and fact we review de
novo. See Draper,
Before a party can seek federal review of an ALJ’s determination in an IDEA case, they must exhaust the claim. 20 U.S.C. § 1415( l ). This requirement, however, should not be applied inflexibly. N.B. v. Alachua Cnty. Sch. Bd., 84 F.3d 1376, 1379 (11th Cir. 1996) (per curiam). So long as the purposes of exhaustion have been served, the District Court may review the issue. We have said that exhaustion is designed to (1) permit the exercise of agency discretion and expertise where necessary; (2) allow full development of the issue and the factual record; (3) prevent deliberate disregard for and circumvention of administrative procedures; and (4) avoid unnecessary judicial decisions by giving the agency the first opportunity to correct any error. Id. at 1378–79.
Here, the purposes of exhaustion have been met. While it is true that the parents did not use the phrase “predetermination” in their administrative complaint, the parents pleaded several facts and raised several claims which clearly put the predetermination question in play. For example, the complaint says that “[t]he parents asked the Board to identify options for schools with a population of less than 680 and [the Board] did not consider this request.” Beyond that, the parents claimed that the Board unilaterally proposed to change O.L.’s placement to a large school-based setting, contrary to O.L.’s unique needs and without regard for the parents’ objections to the placement. These pleadings were enough to alert both the agency and the Board to the predetermination claim. Indeed, the Board responded to that argument, and the ALJ issued a finding based on those arguments. Thus, the predetermination issue was raised and developed before the agency, and the agency had an opportunity to apply its expertise to the issue. See id. at 1378–79.
As to the merits of the predetermination question, we agree with the District Court’s finding that the placement at Palmetto Senior High School was predetermined. In reaching this decision, we draw on opinions from other Circuit Courts which have considered predetermination. We do so because this Court has not yet had occasion to define the contours of predetermination.
Predetermination occurs when the state makes educational decisions too
early in the planning process, in a way that deprives the parents of a meaningful
opportunity to fully participate as equal members of the IEP team. See Deal, 392
F.3d at 857–59. The prohibition on predetermination arises out of an IDEA
implementing regulation, which maintains that a child’s placement must be “based
on the child’s IEP.” 34 C.F.R. § 300.116(b); see also Spielberg v. Henrico Cnty.
Public Schs.,
This is not to say that a state may not have any pre-formed opinions about
what is appropriate for a child’s education. See N.L.,
To avoid a finding of predetermination, there must be evidence the state has
an open mind and might possibly be swayed by the parents’ opinions and support
for the IEP provisions they believe are necessary for their child. See id. (“Despite
the protestations of the Deals, the School System never even treated a one-on-one
ABA program as a viable option. Where there was no way that anything the Deals
said, or any data the Deals produced, could have changed the School System’s
determination of appropriate services, their participation was no more than after
the fact involvement.”). A state can make this showing by, for example, evidence
that it “was receptive and responsive at all stages” to the parents’ position, even if
it was ultimately rejected. Doyle v. Arlington Cnty. Sch. Bd.,
Here, it is clear from the transcript of the IEP meetings that the Board
entered the meetings with a closed mind about where O.L. would attend school,
and was unwilling to consider any other options.
[7]
Cf. W.G. v. Bd. of Trs. of
Target Range Sch. Dist. No. 23, Missoula, Mont.,
During the IEP meeting, R.L. and S.L. brought up their concerns about O.L.
attending Palmetto Senior High School, and suggested MAST Academy as a viable
placement option for O.L. The Board responded that, for administrative reasons,
O.L. could not be placed at MAST Academy and that the school was “not an
option that’s on the table as far as [the Board is] concerned. What our option is, is
that he go to his home school.” This explicit statement that the Board was
considering placement only at Palmetto Senior High School, and that bureaucratic
policies precluded an alternative placement, weighs strongly in favor of finding
predetermination. See Deal,
It is also clear that “there was no way that anything [R.L. and S.L.] said, or
any data [they] produced, could have changed the [Board’s] determination of” the
appropriate placement. See Deal,
In the face of this contradictory presentation, the Board simply reiterated that the MAST Academy placement was not available for O.L., because the special education program there had been designed for one particular student and because the parents had not gone through the formal application process to secure O.L.’s admission to that school. After a number of interruptions in the parents’ placement presentation, S.L. complained that they had “not presented to the team yet,” and asked for the opportunity to do so.
Other Board representatives on the IEP team, to their credit, seemed ready to discuss whether the Board could accommodate O.L.’s needs by offering a smaller setting for O.L. within Palmetto Senior High School. If this discussion had been allowed to continue, it might evidence some responsiveness to, and thoughtful consideration of, R.L. and S.L.’s desire to enroll O.L. in a smaller school environment. But the Board representative running the meeting cut this conversation short, saying finally that the placement would be Palmetto Senior High School and that the parents would have to pursue mediation if they disagreed.
This absolute dismissal of the parents’ views falls far short of what the IDEA demands from states charged with educating children with special needs. The Board could and should have listened to the concerns R.L. and S.L. raised. Perhaps then the IEP team would have gotten to the root of the problem driving R.L. and S.L.’s desire to have O.L. placed in a smaller school—his sensitivity to his surrounding environment and his inability to handle the stress and anxiety he suffered when over-stimulated. Maybe then the team would have worked together to make sure that the IEP fully met O.L.’s sensory and stress management needs.
Instead, the Board came into the meeting set on Palmetto Senior High School and unwilling to consider anything else. As a result, the placement decision was not “based on” the IEP, 34 C.F.R. § 300.116(a)–(b), which became painfully obvious at the May 22 IEP meeting. At that meeting, after S.L. said O.L. would benefit from small inclusion classes, the Board rejected the request, saying that Palmetto Senior High School did not have any such classes and that “we’re trying to create as much as we can within the limits of the school.” This statement encapsulates the problem with predetermination—the Board relied on the limitations of the predetermined placement to dictate O.L.’s services. Of course, the IDEA envisions that the decision will be the other way around. See 34 C.F.R. § 300.116(a)–(b); see also 20 U.S.C. § 1401(29) (defining special education as “specially designed instruction, at no cost to parents, to meet the unique needs of a child”). On this record, the District Court properly concluded that the placement was predetermined, and so did not err by taking that fact into account in balancing the equities.
Next, we consider the Board’s argument that the District Court incorrectly determined that Palmetto Senior High School would be an inappropriate placement for O.L. under any circumstances, which factored into the District Court’s balancing of the equities. Ultimately, the District Court decided that O.L.’s sensory management problems are so severe that he cannot reasonably be expected to benefit from any education in a setting as large and over-stimulatory as Palmetto Senior High School, no matter what support structures are in place. The record supports this finding.
For many children with disabilities, the educational placement is an
important aspect of their IEP that will determine whether or not there is a
reasonable chance they will “benefit educationally” from any instruction they
receive in that placement. Rowley,
The uniform opinion among the educational experts that a large school
setting would be inappropriate for O.L. was supported by both O.L.’s deterioration
in the seventh grade at Palmetto Middle School and O.L.’s deterioration in the first
eleven days at Palmetto Senior High School. Cf. Sch. Bd. of Collier Cnty., Fla. v.
K.C.,
Having concluded that the District Court correctly decided all the facts it
weighed when it awarded full reimbursement, all that is left to decide is whether
the District Court abused its discretion by coming out the way that it did. See
Draper,
V. Compensatory Education
The parents’ cross appeal challenges the denial of their request for
compensatory education. We review this relief-stage question only for abuse of
discretion. Draper,
For two reasons, we think the quality of the alternative placement parents
choose when they reject the state’s offer of FAPE is a “relevant factor[],” Carter,
Second, if the Board’s failure to pursue adequate alternatives as a member of the student’s IEP team is a relevant equitable factor, then surely the parents’ failure to do the same is, too. The parents, as members of the IEP team, see 20 U.S.C. § 1414(d)(1)(B)(i), also have a responsibility to make sure their child is provided for in terms of his education. When the parents reject the state’s attempt to fulfill that responsibility, they take the burden of providing an education to their child upon themselves. This being the case, the District Court can properly consider how well the parents meet that responsibility, in light of their financial circumstances, the actual availability of other alternatives, etc.
For these reasons, we find that the District Court did not abuse its discretion when it took the quality of the chosen alternative into consideration. It is clear on this record that the District Court properly weighed the evidence and did not abuse its considerable discretion when it denied the request for compensatory education.
VI. Attorney’s Fees
Finally, we consider the Board’s argument that the District Court should not have awarded R.L. and S.L. attorney’s fees. The Board makes a number of arguments in support of its position in its reply brief, but only one argument in its opening brief: that if we reversed the District Court’s decision to award reimbursement, we must also reverse the decision to award attorney’s fees. Because we have affirmed the District Court’s decisions in all respects, there is no need to reverse the attorney’s fee award. We do not consider the other arguments the Board raises for the first time in its reply brief. See United States v. Levy, 416 F.3d 1273, 1275–76 (11th Cir. 2005) (per curiam) (describing this Court’s prudential rule that issues not raised in the opening brief are waived).
VII. Conclusion
None of the arguments presented by either party persuades us that we should upset the well-reasoned orders from the District Court. We therefore affirm the District Court’s orders in all respects.
AFFIRMED.
Notes
[*] Honorable David Bryan Sentelle, United States Circuit Judge for the District of Columbia, sitting by designation.
[1] The responsibility for the on-the-ground work for individual students generally falls on local educational agencies like the Miami-Dade County School Board here. See 20 U.S.C. §§ 1401(19)(A), 1413. In this opinion, we use the term “state” to refer to the agency charged with providing a child’s education. We do this while recognizing that disputes about the particulars of a student’s day-to-day education more often arise between parents and the local district, as opposed to the state.
[2] The Board’s brief on appeal represents that it developed a new IEP in February 2007 addressing the deficiencies noted by the ALJ, which are described below. However, we do not consider the February 2007 IEP in this appeal because the District Court denied the Board’s motion to enter the IEP into evidence.
[3] Many IDEA cases come to District Courts with an extraordinarily large and complicated record, requiring much time and attention to reach the right result. District Judge Joan A. Lenard, Magistrate Judge Edwin G. Torres, and Magistrate Judge Barry L. Garber should be commended for their excellent work on this case.
[4] We could find no opinion from this Court, nor did the parties cite to one, applying the
Rowley standard to a parental placement. But other Circuit Courts have applied the Rowley
standard when analyzing parental placements. See, e.g., Mr. I v. Maine Sch. Admin. Dist. No.
55,
[5] The Board makes no more than a passing reference to its argument that reimbursement
for occupational therapy should be denied because the parents did not allow the Board to provide
those services. As a result, the argument is waived. See Hamilton v. Southland Christian Sch.,
Inc.,
[6] The position we take today is consistent with a number of other Circuit Court opinions
authorizing reimbursement for one-on-one instructional programs. See Sumter Cnty. Sch. Dist.
17 v. TH,
[7] The Board urges us to disregard these transcripts. But they are part of the administrative record, and we consider them a reliable representation of what was actually said at the IEP meetings. After all, the Board did not take the ALJ up on the invitation to submit its own transcript into the record if it took issue with the accuracy of the transcripts proffered by the parents.
[8] By “placement” and “environment,” we mean the type of educational setting, which for
O.L. was a large high school. It is important to distinguish this more general definition of the
placement from the particular site selection, which is likely within the state’s discretion to
choose. See White v. Ascension Parish Sch. Bd.,
[9] The Board does not think we should take O.L.’s experience in the first few days at
Palmetto Senior High School into account, “because of the extremely short period of time [O.L.]
was in school.” K.C.,
[10] The Board’s attempt to hide behind the Least Restrictive Environment (LRE) “mandate”—which refers to the IDEA’s provisions indicating a preference for educating the child “in the school that he or she would attend if nondisabled,” 34 C.F.R. § 300.116(c)—is not persuasive. The IDEA clearly contemplates that for some students who “require[] some other arrangement,” placement in the local public school would be inappropriate. Id.