Jefferson County Board of Educ v. Lolita S.

Filing

Opinion issued by court as to Appellant Jefferson County Board of Education. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

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Date Filed: 09/11/2014

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
No. 13-15170
_____________________________
D.C. Docket No. 2:12-cv-02324-KOB

JEFFERSON COUNTY BOARD OF EDUCATION,
Plaintiff - Appellant,
versus
LOLITA S., individually and as parent, guardian, next friend and legal
representative of M.S., a minor, and M.S. in his individual capacity,
Defendant - Appellee.
_____________________________
Appeal from the United States District Court
for the Northern District of Alabama
_____________________________
(September 11, 2014)
Before JORDAN and BENAVIDES, * Circuit Judges, and RYSKAMP, ** District
Judge.
*

Honorable Fortunato P. Benavides, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
**

Honorable Kenneth L. Ryskamp, United States District Judge for the Southern District
of Florida, sitting by designation.

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PER CURIAM:
The Jefferson County Board of Education, an Alabama state agency, appeals
the district court’s order denying its motion for summary judgment, and granting in
part and denying in part Lolita S.’ motion for summary judgment. After review of
the record, and with the benefit of oral argument, we affirm.
I
Because we write only for the parties, we assume their familiarity with the
extensive record in this case, and restate only those facts necessary for our
decision.
Ms. S. requested a due process hearing to determine, among other things,
whether the Board had failed to provide her son M.S., a student with disabilities
who is eligible to receive special education services, with a free and appropriate
education (FAPE), as required by the Individuals with Disabilities Education Act
(the IDEA), 20 U.S.C. §§ 1400-1482. Ms. S. also sought reimbursement for an
independent education evaluation (IEE) under 34 C.F.R. § 300.502(b)(1) and Ala.
Admin. Code R. 290-8-9-.02(4). The Alabama hearing officer ruled in favor of the
Board on the FAPE issue, and ruled in favor of Ms. S on her IEE reimbursement
claim, finding that the Board waived its opposition to the reimbursement claim by
choosing not to file its own due process request to defend its evaluation of the

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child. See 34 C.F.R. § 502(b)(2)(i)-(ii). Both parties sought review in federal
district court.
The district court’s disposition of the parties’ motions, in effect, reversed
and remanded in part and affirmed in part the hearing officer’s decision. The
district court agreed with the hearing officer that the Board should reimburse Ms.
S. for the IEE. The district court, however, did not agree that the Board provided
M.S. with a FAPE. Among other reasons, the district court concluded that the
Individualized Education Program was not “reasonably calculated to enable M.S.
to receive educational benefits” because the Board used stock goals in M.S.’
Individualized Education Programs for the 2010-11 and 2011-12 school years
which were not designed to meet his needs in the areas of reading and transition
services. See Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). The district court
remanded for the hearing officer to determine the appropriate amount and type of
compensatory education necessary for M.S. and to determine whether the same
stock goals were used in the IEPs for the area of math. This appeal followed.
II
Whether the 2010-11 and 2011-12 IEPs provided M.S. with a FAPE is a
mixed question of law and fact subject to de novo review. See G.J. v. Muscogee
Cnty. Sch. Dist., 668 F.3d 1258, 1263 (11th Cir. 2012). We review the district
court’s specific findings of fact for clear error. See Jefferson Cnty. Bd. of Educ. v.
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Breen, 853 F.2d 853, 857 (11th Cir. 1988). However, “[t]he extent of deference to
be given the administrative findings of fact is an issue left to the discretion of the
district court.” Id. Because the district court reviewed the administrative record
without receiving any other evidence, “we stand in the same shoes as the district
court in reviewing the administrative record and may, therefore, accept the
conclusions of the [hearing officer] and the district court that are supported by the
record and reject those that are not.” G.J., 668 F.3d at 1268; see also R.L. v.
Miami-Dade Cnty. Sch. Bd., 757 F.3d 1173, 1181 (11th Cir. 2014) (same).
III
The IDEA provides federal assistance to states that provide a FAPE to
children with disabilities. See 20 U.S.C. § 1412(a)(1)(A). In exchange for that
assistance, IDEA requires states to develop, review, and revise IEPs that are
“reasonably calculated to enable the child to receive educational benefits.” Draper
v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1278 (11th Cir. 2008). See also 20
U.S.C. § 1412(a)(4). In doing so, “the state must provide the child with only a
basic floor of opportunity.” Drew P. v. Clarke Cnty. Sch. Dist., 877 F.2d 927, 930
(11th Cir. 1989) (quoting Rowley, 458 U.S. at 201). “This opportunity provides
significant value to the handicapped child who, before [IDEA], might otherwise
have been excluded from any educational opportunity.” JSK By and Through JK v.
Hendry Cnty. Sch. Bd., 941 F.2d 1563, 1573 (11th Cir. 1991) (emphasis added). A
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state satisfies this obligation if the educational benefits are “adequate,” which
“must be determined on a case-by-case basis in light of the child’s individual
needs.” Id. (emphasis added).
A
With regard to the IEP’s reading goals, we agree with the district court that
the goals were inadequate because they were not adapted to address M.S.’
individual needs. For example, his reading skills were assessed to be at the firstgrade level at the time his 2011-2012 IEP was created. The reading goal in his
IEP, however, was derived from the state standard for ninth-grade students. As the
district court noted, this goal was set without any evidence showing that M.S.’
reading comprehension had increased from a first-grade level to a ninth-grade level
during the prior school year. In addition, the Board provided no program to
address the gap between the ninth-grade goal and M.S.’ first-grade reading level.
As the district court explained, the one program the Board “intended” for him to
participate in, the STAR program, is actually an assessment, and not a substantive
program intended to help students like M.S. improve their reading competency.
These facts persuade us that M.S.’ IEP reading goals were not individualized.
One additional fact strongly supports this conclusion. The narratives for
reading, math, and personal management in M.S.’ 2010-2011 IEP appeared with
another child’s name printed on the form, which was crossed out and replaced with
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M.S.’ name on three different pages. See Admin. R. at 1741-43. Subsequent IEPs
had M.S.’ name correctly printed, but the goals were largely the same. The
school’s apparent use of boilerplate IEPs, with goals far above M.S.’ reading level,
indicate that the reading goals of M.S.’ IEPs did not provide him with any
educational benefits beyond those he would have received if he never had the IEPs.
It appears M.S. was treated as any other disabled student during the creation of his
IEPs, and was held to same standards that any student, with or without a disability,
would have been.
On appeal, the Board characterizes the district court’s focus on the reading
goals of M.S.’ IEPs as an improper “piecemeal” review. Appellant’s Br. at 31
(citing Klein Ind. Sch. Dist. v. Hovem, 690 F.3d 390, 397 (5th Cir. 2012); Lenn v.
Portland Sch. Comm., 998 F.2d 1083, 1090 (1st Cir. 1993)). We disagree.
In Klein, the parents of a disabled student argued that a school board, in
claiming that it had provided a FAPE, could not rely on that student’s academic
success in areas unrelated to the student’s disability. Rejecting that argument, the
Fifth Circuit explained that limiting the analysis to areas related to the student’s
disability would improperly restrict the definition of “educational benefit . . . in
terms of correcting the student’s disability,” and prevent proper examination of the
student’s “whole educational experience.” 998 F.3d at 397.

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Here, we cannot say that the district court’s focus on M.S.’ reading skills
prevented a proper examination of his educational experience. The district court
considered the IEPs’ goals in relation to, among other things, M.S.’ oral language
skills, written expression, motivation, reading, math, and transition services. The
district court did agree with the hearing officer that, with the information the Board
had at the time, M.S.’ IEPs were appropriate in many of these areas. The district
court did disagree with the hearing officer in the area of reading. But finding that
M.S. was denied a FAPE based on the assignment of ninth-grade reading goals in a
boilerplate IEP, where M.S.’ actual reading level was elementary, can hardly be
characterized as “a one-dimensional view of an IEP.” Lenn, 998 F.2d at 1090. Cf.
Draper, 518 F.3d at 1289-90 (finding no reversible error in the district court’s
holding that a FAPE was denied to a student with dyslexia who read at a thirdgrade level in high school and the school’s program failed to provide any
improvement over three years).
The district court also did not err in finding that the postsecondary goals and
transition services in M.S.’ IEPs fell below the FAPE standard.

The IDEA

requires that “beginning not later than the first IEP in effect when the child is 16,”
IEPs must provide for “appropriate measurable postsecondary goals based upon
age appropriate transition assessments” and “the transition services (including
courses of study) needed to assist the child in reaching those goals.” 20 U.S.C. §
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1414(d)(1)(A)(i)(VIII). Here, as the district court explained, the hearing officer
“suggested,” but did not require, the Board to conduct transition assessments. See
Admin. R. at 1917.
Though the 2010-2011 IEP and the 2011-2012 IEP indicate that assessments
were used to determine M.S.’ transition goals, see, e.g., id. at 1761 (checked box
next to “Transition Planning Assessments”), the district court found that one had
not yet been done because of the hearing officer’s suggestion that a vocational
assessment be performed. See id. at 1917. The Board waited until its reply brief to
ask for review of this finding on appeal, and therefore we decline to address the
issue. See United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir. 1999). The
postsecondary goals and transition services in M.S.’ IEP, therefore, were not
created in compliance with IDEA.
We recognize that a procedural defect is not dispositive, and that we “must
consider the impact of the procedural defect, and not merely the defect per se.”
G.J., 668 F.3d at 1270 (citations omitted). The impact of failing to implement a
vocational assessment here is similar to that which resulted from M.S.’ reading
goals—M.S. received the same vocational and career-based training that the rest of
his peers received, without any insight or determination as to whether that would
be appropriate for M.S.

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We further agree with the district court that this lack of individualized
planning and programming for M.S’ education deprived him of a FAPE. For
example, the vague language used to describe M.S.’ postsecondary goal—“student
will be prepared to participate in post-secondary education”—did not match M.S.’
diploma track. M.S. was not on a track for receiving a post-secondary education,
as he was “unlikely to go to college.” D.E. 35 at 48. M.S. was instead placed on
an alternate diploma track—the Alabama Occupational Diploma—which is
designed to prepare students with disabilities for employment upon exiting high
school. This is another illustration of the Board’s use of stock language in the
planning and implementation of M.S.’ IEP.
On this record, we hold that the district court did not commit reversible error
in finding that M.S. was denied a FAPE with regard to postsecondary goals and
transition services.
B
Turning to the IEE reimbursement issue, we recently recognized that
“Congress has clearly evinced its intent that parents have the right to obtain an IEE
at public expense.” Phillip C. ex rel A.C. v. Jefferson Cnty. Bd. of Educ., 701 F.3d
691, 697 (11th Cir. 2012) (upholding the validity of 34 C.F.R. § 300.502, which
requires state and local agencies to reimburse parents for IEEs). A parent can
obtain an IEE at public expense if he or she disagrees with a school board’s
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evaluation, unless the school board files a due process complaint to request a
hearing to show that its evaluation was appropriate or the school board shows that
the IEE did not meet agency criteria. See 34 C.F.R. § 300.502.
The hearing officer found that Ms. S. was entitled to reimbursement because
the school system did not file a due process request to defend its evaluation or
challenge the IEE. The district court rejected the Board’s argument that Ms. S.’
letter of October 13, 2011, requesting an IEE at public expense was not proper
because it failed to identify a specific disagreement with the Board’s evaluation.
See D.E. 35 at 58 (“the public agency may not require the parent to provide an
explanation”) (quoting 34 C.F.R. § 300.502(b)(4)) (italics omitted).
Based on the plain language of the regulation, we have no basis to conclude
that there was reversible error. The Board did not file a due process request, and it
cannot now defend its evaluation or challenge the IEE.

See 34 C.F.R. §

300.507(a)(2) (“The due process complaint must allege a violation that occurred
not more than two years before the date the parent or public agency knew or should
have known about the alleged action that forms the basis of the due process
complaint”).
IV
For these reasons, we affirm.
AFFIRMED.
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