Woods Ex Rel. T.W. v. Northport Public SchoolWoods Ex Rel. T.W. v. Northport Public School
GRIFFIN, Circuit Judge.
Plaintiffs Gerald and Patricia Woods, parents of minor child T.W., initiated this action pursuant to the Individuals with Disabilities Education Act (“IDEA“),
I.
In exchange for federal funding, the IDEA requires states to identify, locate, and evaluate “[a]ll children with disabilities residing in the State ... who are in need of special education and related services.”
The IDEA provides a hearing process for parents who disagree with their child‘s IEP. Parents may challenge an IEP by filing a complaint against the local educational agency and requesting a “due process hearing.”
II.
The relevant background facts of this case were summarized by the district court as follows:
At the heart of this litigation is T.W., the son born to [p]laintiffs on September 30, 1998. T.W. was diagnosed with autism and cerebral palsy, disabilities that qualify him for special education and related services under the IDEA. Plaintiffs live within the Northport School District, a geographically remote school district in Northern Michigan. The Northport School District is also one of the smallest school districts in the State of Michigan, with a total kindergarten-through-12th grade population of approximately 150 students and a total staff of only 16 teachers.
T.W. began half-day kindergarten at Northport Public School in 2004. In May 2005, plaintiff Gerald Woods won a seat on the school board. An IEP was developed June 6, 2005[,] and implemented September 6, 2005, when T.W. attended first grade. Plaintiffs subsequently filed a due process hearing request in the State Office of Administrative Hearings and Rules (SOAHR) challenging the June 6, 2005[,] IEP. However, on October 14, 2005, before the due process hearing, the parties reached a Settlement Agreement. On October 26, 2005, the parties stipulated to a dismissal of the then pending administrative proceeding. A second IEP was developed May 3, 2006[,] and implemented October 24, 2006, when T.W. attended second grade. A third IEP was developed May 14, 2007[,] and implemented in the fall of 2007, during T.W.‘s third grade year. On August 31, 2007, [p]laintiffs initiated another administrative proceeding, requesting the appointment of an Independent Hearing Officer (IHO) to hear their dispute with [d]efendants, which concerned whether T.W. had been afforded a FAPE during the 2005-06 and 2006-07 school years and whether the IEP proposed for the 2007-08 school year was also deficient.
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The parties do not dispute that on November 2, 2007[,] and again on November 16, 2007, more than ten days before the due process hearing began, [d]efendants proffered a “Ten-Day Offer” under
20 U.S.C. § 1415(i)(3)(D)(i) (I & II) in an effort to avoid the due process hearing. Plaintiffs did not accept either settlement offer.The due process hearing took place over thirty-two days between November 2007 and August 2008. The IHO heard testimony from thirty-seven witnesses, testimony that is contained in thirty-two volumes and exceeds 7000 pages. Further, hundreds of exhibits were submitted and entered into the Administrative Record. The parties submitted post-hearing briefs to summarize the evidence, the applicable law, proposed findings of fact, and relief requested. Plaintiffs’ brief was 426 pages in length. Defendants’ brief was 118 pages. The replies were 152 and 48 pages, respectively.
Meanwhile, on June 9, 2008, a fourth IEP was developed, but it was never implemented. Plaintiffs removed T.W. from the school and began to privately educate him. In August 2008, [p]laintiff Gerald Wood was recalled from his Board seat.
Woods ex rel. T.W. v. Northport Pub. Sch., No. 1:09-cv-243, 2011 WL 1230813, at *3-4 (W.D. Mich. Mar. 31, 2011) (internal citations omitted).
On February 2, 2009, the IHO issued a 141-page decision. The IHO addressed twelve main topics, granting in part and denying in part plaintiffs’ due process complaint. The IHO determined, in relevant part, that Northport‘s “performance on the IEP terms for the 2006-2007 school year was seriously deficient” because “[a]greed
To compensate plaintiffs for Northport‘s violations of the IDEA, the IHO ordered several forms of relief. That relief included, in relevant part, evaluations of T.W.‘s present abilities, an updated IEP, 768 hours of one-to-one compensatory education with a teacher certified with an endorsement to teach students with autism, and a prospective placement at Northport providing T.W. with “one-to-one direct instruction by a special education certified teacher with an endorsement to teach students with autism.” The one-to-one direct instruction was set to take place “daily at the same time and for the same duration that [T.W.]‘s general education classmates [were] receiving instruction in reading, writing and mathematics.”
Following the issuance of the IHO‘s decision, plaintiffs filed the present action, seeking attorneys’ fees and costs. The complaint was thereafter amended to challenge several portions of the IHO‘s decision. In response, Northport filed an answer and several counterclaims that also challenged portions of the IHO‘s decision.
Pursuant to
III.
Before we begin our analysis, we address two pending motions for judicial notice. First, Northport objects to the plaintiffs’ sealed appendix, contending that they violated
An appendix is not required when the record is readily available on the district court‘s electronic docket. See Sixth Cir. R. 30(a)(1). In the plaintiffs’ First Brief, all record citations were accessible to the court, and, thus, no appendix was required. In contrast, in support of its cross-appeal, Northport relied upon numerous sealed
Plaintiffs have also filed a motion for judicial notice, requesting the court to take notice of the district court‘s recent decision ordering Northport to reimburse plaintiffs for pre-settlement offer attorneys’ fees and costs in the amount of $25,313.81 and $1,857.82, respectively. We will grant this unopposed motion. See Mallory v. Eyrich, 922 F.2d 1273, 1281 (6th Cir. 1991) (taking judicial notice of “developments in [the] case since [the] appeal was commenced“).
IV.
We begin our analysis with a discussion of the applicable standard of review. When an IDEA action is filed, the district court: “(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.”
In applying this “modified de novo” standard of review, district courts may not “simply adopt the state administrative findings without an independent re-examination of the evidence,” nor may they “substitute their own notions of sound educational policy for those of the school authorities which they review.” Id. (quoting Doe ex rel. Doe v. Metro. Nashville Pub. Schs., 133 F.3d 384, 387 (6th Cir. 1998) and Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 624 (6th Cir. 1990)). The amount of “due weight” afforded to the administrative findings varies depending on whether such findings are based on educational expertise. McLaughlin v. Holt Pub. Schs. Bd. of Educ., 320 F.3d 663, 669 (6th Cir. 2003). “Less weight is due to an agency‘s determinations on matters for which educational expertise is not relevant.... More weight is due to an agency‘s determinations on matters for which educational expertise is relevant.” Id. Stated succinctly, a district court “may set aside administrative findings in an IDEA case only if the evidence before the court is more likely than not to preclude the administrative decision from being justified based on the agency‘s presumed educational expertise, a fair estimate of the worth of the testimony, or both.” Bd. of Educ. of Fayette Cnty., Ky. v. L.M., 478 F.3d 307, 312-13 (6th Cir. 2007) (internal quotation marks and citation omitted).
On appeal, we apply a clearly erroneous standard of review to the district court‘s findings of fact and a de novo standard to its conclusions of law. Deal, 392 F.3d at 850. Mixed questions of law and fact are reviewed de novo. Id. Like the district court, we must give “due deference to the state administrative hearing officer‘s decision.” Id.
In the case at bar, Northport asserts that the district court erred in its application of the modified de novo standard of review by giving too much deference to the IHO, an individual Northport
Northport also asserts that the district court erred in not giving deference to the Northport professionals that created the IEPs at issue. This argument makes little sense. Our prior opinions make clear, as described above, that deference is due to the IHO. The district court was not in a position to give deference to the Northport professionals and the IHO, whose findings are in conflict. And, the cases cited by Northport only reinforce the notion that deference is due to the IHO. See, e.g., Burilovich v. Bd. of Educ. of Lincoln Consol. Schs., 208 F.3d 560, 565 (6th Cir. 2000) (“[C]ourts must give ‘due weight’ to the state administrative proceedings.“); Renner v. Bd. of Educ. of Pub. Schs. of City of Ann Arbor, 185 F.3d 635, 641 (6th Cir. 1999) (“[D]ue weight shall be given to [administrative] proceedings in actions brought under the IDEA.“) (internal quotation marks and citation omitted). Accordingly, we find no error in the district court‘s application of the modified de novo standard of review.
V.
We now move to our substantive assessment of the parties’ claims on appeal, beginning with those claims challenging the underlying IDEA violations found by the IHO and affirmed by the district court. Our analysis under the IDEA has two distinct parts. “First, [we] must determine whether the school system has complied with the procedures set forth in the IDEA. Second, [we] must assess whether the IEP developed through those procedures was reasonably calculated to enable the child to receive educational benefits.” Deal, 392 F.3d at 853-54 (citations omitted). The party challenging an IEP carries the burden of proving by a preponderance of the evidence that the IEP was inadequate. Id. at 854.
In the present appeal, the parties challenge portions of the district court opinion relating to the IEPs developed for T.W.‘s second and third-grade years. We begin by addressing T.W.‘s second-grade IEP, for which no procedural violations are alleged. We then address T.W.‘s third-grade IEP, for which both procedural and substantive violations are alleged.
A.
The IHO determined that T.W. did not receive a FAPE during his second-grade year, and the district court agreed. On appeal, Northport contests this finding, asserting that, despite some implementation failures, T.W. nevertheless obtained meaningful educational benefits during the second grade. We disagree.
In order to provide a FAPE, an IEP must be “reasonably calculated to enable the child to receive educational benefits.” Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755, 763 (6th Cir. 2001). While “providing special education and related services to handicapped children is not guaranteed to produce any particular outcome,” Rowley, 458 U.S. at 192, 102 S.Ct. 3034 (internal quotation marks and citation omitted), in order to constitute a FAPE, an IEP must confer a “meaningful
In the case at bar, the IHO held that Northport denied T.W. a FAPE during his second-grade year because it failed to implement certain important aspects of the 2006-2007 IEP. Primarily, the IHO found that T.W. was not provided with promised time in the “resource room,” where he was to obtain special education services from Laura Jones, a teacher certified in the education of autistic children.1 Northport also failed to provide T.W. with promised consultation services with an autism intervention specialist. Northport does not meaningfully challenge these factual findings, nor does it dispute that the resource room services were a significant aspect of T.W.‘s second-grade IEP. Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000) (“[A] party challenging the implementation of an IEP must show more than a de minimis failure to implement all elements of that IEP, and, instead, must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP.“). Indeed, such services were to be provided to T.W. for 20-30 minutes each school day during his second-grade year.
The IHO held, and the district court agreed, that because of Northport‘s failure to provide certain promised services, T.W. made little academic progress. Northport disputes this finding, asserting that, despite its implementation failures, T.W. obtained meaningful educational benefits and therefore was not denied a FAPE. See Nack ex rel. Nack v. Orange City Sch. Dist., 454 F.3d 604, 614 (6th Cir. 2006) (“[T]he IDEA does not guarantee success—it only requires a school to provide sufficient specialized services so that the student benefits from his education.“) (internal quotation marks and citation omitted). This assertion, which presents a question of fact, is reviewed for clear error. Bobby R., 200 F.3d at 347.
The district court did not clearly err in finding that T.W. did not obtain meaningful academic benefits during his second-grade year in relation to his potential and, thus, was denied a FAPE. Deal, 392 F.3d at 862. It is undisputed that T.W. was significantly behind in reading, writing, and mathematics. Indeed, the testimony supports the finding that T.W. did not progress academically and, in fact, regressed in some areas. Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 (6th Cir. 2003) (“Academic results have been recognized as an important factor in determining whether an IEP is reasonably calculated to provide educational benefits.“). The evidence indicates that T.W. was not improving because he was not given enough “stimulation” through his school programming. And, such stimulation was lacking, at least in part, because Northport failed to provide promised services.
As noted by Northport, the testimony of several witnesses indicates that T.W. did make some progress during his second-grade year. Nevertheless, the testimony also supports the finding that such progress was not meaningful in light of T.W.‘s potential. Deal, 392 F.3d at 862. Indeed,
B.
We next turn to T.W.‘s third-grade IEP, for which the IHO found both procedural and substantive violations of the IDEA. As noted above, we must first address the procedural violations. Thereafter, we assess whether T.W. was substantively denied a FAPE. Deal, 392 F.3d at 853-54.
1.
Through the passage of the IDEA, Congress intended to “maximize” parental involvement in the education of their disabled children by imposing numerous procedural requirements. Rowley, 458 U.S. at 182, n. 6, 102 S.Ct. 3034. Accordingly, we “strictly review an IEP for procedural compliance.” Deal, 392 F.3d at 854 (internal quotation marks and citation omitted). However, mere “technical deviations will not render an IEP invalid.”
Northport challenges the finding of two procedural violations in the preparation of T.W.‘s third-grade IEP. First, the IHO found that plaintiffs were denied meaningful parental participation in the IEP process when they were not given access to certain testing protocols. Plaintiffs requested these protocols so that they could be reviewed by their expert in preparation for the third-grade IEP meeting, but the protocols were not provided. Later, plaintiffs again requested that the protocols be provided to their expert, Dr. Milanovich. And the protocols were thereafter sent by certified mail. The package was not retrieved, however, and it was eventually returned to Northport. No effort was made to inform plaintiffs that the materials had been returned, despite their inquiries.
Northport does not dispute these facts. Nevertheless, it asserts that plaintiffs had access to the protocols because Northport invited plaintiffs to review the documents in person at the Northport campus. This argument is unavailing.
The IDEA provides that parents must be allowed “to examine all records relating to [their] child.”
Moreover, when the protocols were returned to Northport undelivered, Northport did not resend the protocols, nor did it inform plaintiffs of the failed delivery. Accordingly, we agree with the district court that a procedural violation of the IDEA occurred. Moreover, we agree that this violation infringed upon the plaintiffs’ ability to participate in the IEP process, resulting in substantive harm. See Nack, 454 F.3d at 611 (noting that substantive harm occurs when a procedural violation
As a second procedural error, the IHO found that Northport denied plaintiffs meaningful participation in the development of academic goals and objectives. See
The audio recording of the spring 2007 IEP meeting reveals that Northport professionals were unwilling to meaningfully address academic goals for T.W. during the spring 2007 IEP meeting, despite discussion of the need to do so. Deal, 392 F.3d at 857 (“[T]o fulfill the goal of parental participation in the IEP process, the school district was required to conduct, not just an IEP meeting, but a meaningful IEP meeting.“). Nevertheless, Northport asserts that plaintiffs were not denied meaningful participation, citing Hjortness ex rel. Hjortness v. Neenah Joint School District, Nos. 05-C-0648, 05-C-0656, 2006 WL 1788983 (E.D. Wis. June 27, 2006). However, the facts of Hjortness are easily distinguished from those presented here. In Hjortness, the court noted that
[o]n several occasions in the course of the two-and-a-half hour [IEP] meeting, members of the team attempted to focus on the task of setting specific goals and objectives. [The student]‘s mother, along with her attorney, was part of that process and was specifically asked for her input. Rather than suggest goals and short-term objectives she wanted included in the IEP, [the] mother made clear to the team that she did not believe the District could provide her son an appropriate education.
2.
Having resolved the procedural issues, we now address the question of whether T.W.‘s third-grade IEP was sufficient to provide him with a FAPE. In comparison to his second-grade year, T.W. was provided with less individualized services in his third-grade IEP. For example, T.W. was provided with fewer autism teacher consultations and no resource room services. In light of the fact that T.W. was not meaningfully progressing in his academic skills, the IHO found this reduction in services to constitute a denial of a FAPE.
Like the district court, we find that the IHO‘s holding is entitled to deference as it involves the application of educational expertise. McLaughlin, 320 F.3d at 669. Given this deference, we agree with the district court that T.W.‘s third-grade IEP was insufficient to provide T.W. with a FAPE. As noted above, the services pro-
VI.
Because we agree with the district court that Northport committed several violations of the IDEA, we must next address the issue of appropriate relief. Once a violation of the IDEA is established, the district court “shall grant such relief as the court determines is appropriate.”
In this case, the parties challenge several aspects of the relief ordered by the IHO and affirmed by the district court. First, Northport challenges the amount and nature of the 768-hour compensatory-education award.2 However, as noted above, T.W. was denied a FAPE for two academic school years and was significantly behind in reading, writing, and mathematics. Based upon this deficit, it was reasonable for the IHO to conclude that substantial compensatory-education hours were needed for T.W. to “reasonably recover” from the lengthy denial of a FAPE. Moreover, the IHO was rightfully concerned that T.W.‘s “window of opportunity to become usefully literate ha[d] begun to close.” Indeed, Dr. Milanovich testified that the window during which T.W. can more easily learn language skills is “potentially closing.” Accordingly, the record supports the finding that significant compensatory education was appropriate “to compensate for a past deficient program.” Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1280 (11th Cir. 2008) (internal quotation marks and citation omitted).
Northport also asserts that it was inappropriate for the IHO to require that the compensatory-education hours be provided by a professional certified to teach children with autism. However, this requirement was reasonable because T.W. was denied promised services with a professional possessing such certification during his second-grade year. Moreover, the record clearly demonstrates that that expertise would be helpful in addressing T.W.‘s special educational needs. While Northport is experiencing difficulty in obtaining a teacher with the appropriate certification, this difficulty does not render the IHO award inappropriate.3
Northport next challenges the IHO‘s order regarding the prospective placement for T.W. at Northport. This placement required significant one-to-one instruction for T.W. on reading, writing, and mathematics. Northport contends that such individualized instruction is incongruent with the “least restrictive environment” provision of the IDEA, which states:
To the maximum extent appropriate, children with disabilities, including children in public or private institutions or
other care facilities, [should be] educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment [should occur] only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
We consider three factors in determining whether a disabled child may be removed from the general education environment: “(1) whether the disabled student would benefit from inclusion [in] general education, (2) whether such benefits would be outweighed by benefits that are not provided in an inclusive setting, and (3) whether the disabled child disrupts the general education setting.”
Despite the IDEA‘s least restrictive environment provision, “Congress [has] recognized that regular classrooms simply [will] not be a suitable setting for the education of many handicapped children.” Rowley, 458 U.S. at 181, n. 4, 102 S.Ct. 3034. As noted above, the testimony supports the finding that T.W.‘s window of opportunity to learn basic skills was closing. In addition, the record indicates that T.W. responded best to one-to-one instruction. Finally, the prospective placement ordered by the IHO still required T.W. to be in the general-education setting for half of every school day. Even the opinion of autism specialist Maureen Ziegler, relied upon by Northport, acknowledged that half-day resource room, half-day general education, would be appropriate. Accordingly, giving due deference to the IHO‘s presumed educational expertise and the district court‘s factual findings, we affirm the prospective IEP ordered by the IHO.
Finally, plaintiffs assert that the IHO erred in conditioning a portion of its ordered relief on T.W.‘s re-enrollment at Northport. We agree.4 The IHO held that upon his re-enrollment, T.W. would be entitled to several evaluations. Such evaluations were to be completed within 31 days of T.W.‘s re-enrollment, with an IEP meeting to follow so that the then-current IEP could be amended.
It was inappropriate to require T.W. to re-enroll in order to receive an amended IEP. The IDEA requires state-educational agencies to make a FAPE “available to all children with disabilities residing in the State between the ages of 3 and 21.”
It was appropriate, however, for the IHO to condition T.W.‘s prospective receipt of a FAPE on re-enrollment. To require Northport to fund T.W.‘s continuing private education would create a substantial, unnecessary burden. This is especially true in light of the fact that there is no evidence in the administrative record indicating that Northport is unable to provide T.W. with a FAPE going forward.6 Doe ex rel. Doe v. Defendant I, 898 F.2d 1186, 1192 (6th Cir. 1990) (“The parents’ desire to use a private service, rather than a public one, does not establish a duty on the part of the school to pay for it ... [when] [t]here is no showing that the tutoring offered by [the public school is] inadequate.“).
Northport asserts that the issue of re-enrollment is moot because T.W. is currently enrolled at Northport. We disagree. “Under Article III of the Constitution [a court] may only adjudicate actual, ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). Nevertheless, “if there is a reasonable likelihood that [plaintiffs] will again suffer the deprivation of ... rights that gave rise to this suit,” the court may exercise jurisdiction and resolve the issue.
During T.W.‘s time as a school-age child, his parents have filed three due-process complaints challenging four of T.W.‘s IEPs. The most recent action, not before this court, resulted in an IHO decision that once again addresses the issue of re-enrollment. Moreover, T.W. is entitled to a FAPE until he is 21 years of age. Accordingly, it appears that mandated re-enrollment is an issue capable of repetition, yet evading review. See id. at 320-23, 108 S.Ct. 592; Jenkins v. Squillacote, 935 F.2d 303, 307 (D.C. Cir. 1991) (internal quotation marks and citations omitted) (“A placement and an IEP cover an academic year, a nine[-]month period. The Supreme Court has observed that administrative and judicial review of an IEP is ‘ponderous’ and usually will not be complete until a year after the IEP has expired.“). Because this issue is capable of repetition, yet evading review, we directly resolve the matter, holding that the IHO erred in requiring T.W.‘s re-enrollment to receive an amended IEP.
VII.
The final issue presented on appeal is that of attorneys’ fees. Section 1415(i) of the IDEA provides, in pertinent part, that “the court, in its discretion, may award reasonable attorneys’ fees as part of the costs ... to a prevailing party who is the parent of a child with a disability.”