A.K., et al v. Gwinnett Co. School District

Filing

Opinion issued by court as to Appellant A.K.. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 12-15373

Date Filed: 02/14/2014

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15373
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D.C. Docket No. 1:11-cv-00426-LTW

A.K.
by and through her parent, E.K.,
E.K.,
Plaintiffs - Appellants,
versus
GWINNETT COUNTY SCHOOL DISTRICT,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 14, 2014)

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Before TJOFLAT and WILSON, Circuit Judges, and BUCKLEW, * District Judge.
PER CURIAM:
A.K., by and through her father, E.K., appeals the district court’s affirmance
of the administrative law judge’s (ALJ) dismissal of E.K.’s due process complaint
and its finding that the Gwinnett County School District (GCSD) provided A.K.
with a free and appropriate public education (FAPE) under the Individuals with
Disabilities Education Act (IDEA). E.K. also appeals the district court’s dismissal
of his other claims. After a careful review of the parties’ briefs and the record, we
affirm the district court’s judgment.
I.
E.K. filed a due process complaint under IDEA on October 2, 2009, alleging
improper identification of A.K.’s disability, negligent evaluation of A.K., and
improper placement of A.K. in a severe intellectual disability class. The parties
reached a settlement agreement resolving the matter on October 7, 2009, which,
inter alia, provided that A.K. would remain in a moderate autism spectrum
disorder classroom. E.K. subsequently withdrew the complaint. On February 18,
2010, A.K.’s parents and GCSD met to discuss A.K.’s individualized education
program (IEP). E.K. informed GCSD that A.K. was taking nutritional supplements
every forty-five minutes and requested that A.K. be provided home-based services
*

Honorable Susan C. Bucklew, United States District Judge for the Middle District of
Florida, sitting by designation.
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for three months (the duration of the regimen) so that she could be provided the
diet in a low-stress environment. Although GCSD offered to provide the diet to
A.K. in school, it acceded to E.K.’s request to provide in-home services until the
end of the school year.
When the parties met again on May 14, 2010, GCSD suggested extended
school year services in the home and a switch to in-school placement for the 2010–
11 school year. A.K.’s parents requested that in-home schooling be continued and
rejected a modified plan that would place A.K. in school for two hours per day and
in her home for three. After another meeting on August 13, 2010, A.K.’s parents
once again rejected the modified placement. E.K. then filed a second due process
complaint on August 17, 2010. E.K. asserted that A.K. needed in-home schooling
so that she could maintain her strict diet. An ALJ with the Georgia Office of State
Administrative Hearings conducted a hearing and granted GCSD’s motion to
dismiss for E.K.’s failure to meet the burden of proof. E.K. filed an action in state
court, which GCSD removed to the District Court for the Northern District of
Georgia. E.K. subsequently filed motions to admit evidence not previously
considered by the ALJ. The district court granted GCSD’s motion for judgment on
the administrative record and denied E.K.’s motion for relief from judgment on
order on September 26, 2012, concluding that GCSD offered A.K. FAPE. E.K.
filed a notice of appeal on October 11, 2012, but missed the deadline to file his
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appellate brief and record excerpts. We granted E.K.’s motion to vacate the
dismissal and reinstate the appeal on February 11, 2013.
II.
Whether an IEP provides a child with FAPE “is a mixed question of law and
fact subject to de novo review.” Draper v. Atlanta Ind. Sch. Dist., 518 F.3d 1275,
1284 (11th Cir. 2008).
To determine whether the IDEA requirement for a FAPE is met, we inquire
(1) whether the school district complied with the procedures set forth in the act;
and (2) whether the IEP was reasonably calculated to enable the child to receive
educational benefit in the least restrictive environment (LRE). Bd. of Educ. of the
Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206–07, 102 S. Ct.
3034, 3051 (1982). “If these requirements are met, the State has complied with the
obligations imposed by Congress and the courts can require no more.” Id. at 207,
102 S. Ct. at 3051. E.K.’s complaint is not procedural; he argues that placement in
school is improper. Thus, we must decide whether the IEP was reasonably
calculated to enable A.K. to receive educational benefit in the LRE. In
determining whether the IEP is substantively adequate, we “pay great deference to
the educators who develop the IEP.” Todd D. by Robert D. v. Andrews, 933 F.2d
1576, 1581 (11th Cir. 1991). The IEP is not meant to provide the absolute
maximum benefit to the child, Rowley, 458 U.S. at 198, 102 S. Ct. at 3046, but is
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instead required only to provide “the basic floor of opportunity” to the child,
Andrews, 933 F.2d at 1581 (internal quotation marks omitted).
The IEP here met IDEA’s substantive requirements. The dispute arose
when, during planning of the IEP for the 2010–11 school year, GCSD
recommended placing A.K. in a severe autism classroom. A.K.’s parents
disagreed with the in-school placement and demanded in-home schooling. The
LRE requirement of IDEA, though, aims to educate disabled children in the
classroom with their non-disabled peers:
To the maximum extent appropriate, children with disabilities,
including children in public or private institutions or other care
facilities, are educated with children who are not disabled, and special
classes, separate schooling, or other removal of children with
disabilities from the regular educational environment occurs only
when the nature or severity of the disability of a child is such that
education in regular classes with the use of supplementary aids and
services cannot be achieved satisfactorily.
20 U.S.C. § 1412(a)(5)(A). It seems clear, then, that the statute favors
reintegrating children into the school setting, where they can socially interact with
other children. See Dep’t of Educ., Haw. v. Katherine D. ex rel. Kevin and
Roberta D., 727 F.2d 809, 817 (9th Cir. 1983) (“The congressional preference for
educating handicapped children in classrooms with their peers is made
unmistakably clear in section [1412(a)(5)(A)].”). The district court correctly
concluded that E.K. did not present evidence justifying in-home schooling. A.K.’s
strict diet was not prescribed by a medical doctor, she does not have a life5

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threatening condition, and she is not under the regular care of a medical doctor.
Most importantly, though, E.K. provides no evidence that GCSD will be unable to
adequately supply A.K. with her special diet. In fact, the evidence actually shows
that A.K. would be best served by reintegrating her into the school setting where
she can practice social interaction with her peers.
E.K. sought to admit additional evidence in support of his due process
complaint and request for in-home schooling. The district court, however, relied
on the administrative record without admitting additional evidence. While the
IDEA instructs that a district court “shall hear additional evidence at the request of
a party,” 20 U.S.C. § 1415(i)(2)(C)(ii), “[t]he determination of what is ‘additional’
evidence must be left to the discretion of the trial court which must be careful not
to allow such evidence to change the character of the hearing from one of review to
a trial de novo,” Walker Cnty. Sch. Dist. v. Bennett ex rel. Bennett, 203 F.3d 1293,
1298 (quoting Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 791 (1st Cir.
1984)). The district court concluded that additional evidence would be irrelevant
or cumulative. E.K. gives us no reason to question that conclusion, so we cannot
say that the district court abused its discretion.
E.K. brought additional claims against GCSD for various torts. IDEA
requires claims brought pursuant to it, the ADA, § 504, or the Constitution to be
exhausted in state administrative proceedings. M.T.V. v. DeKalb Cnty. Sch. Dist.,
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446 F.3d 1153, 1157–58 (11th Cir. 2006). At the administrative hearing, the ALJ
properly examined only the issues raised. E.K. raised only identification,
evaluation, and educational placement in the due process complaint. The fraud and
42 U.S.C. § 1983 claims were raised in the district court for the first time, and the
court properly declined to consider those claims because they had not been
administratively exhausted. On appeal, E.K. failed to raise identification and
evaluation in his brief, and those claims are therefore abandoned. Access Now, Inc.
v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). Because these claims
have not been administratively exhausted, we cannot consider them in addition to
E.K.’s allegation that A.K. was not offered FAPE.
For the foregoing reasons, we affirm the judgment of the district court
granting GCSD’s motion for judgment on the administrative record and dismissing
E.K.’s motion for relief from judgment on order.
AFFIRMED.

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