O. S. v. Fairfax County School Board

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cv-01580-TSE-IDD. [999680212]. [14-1994]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1994

O.S., by and through his Parents; MICHAEL S. and AMY S., of
Fairfax County, VA,
Plaintiffs - Appellants,
v.
FAIRFAX COUNTY SCHOOL BOARD, of Fairfax County, VA,
Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
T. S. Ellis, III, Senior
District Judge. (1:13-cv-01580-TSE-IDD)

Argued:

September 16, 2015

Decided:

October 19, 2015

Before MOTZ and WYNN, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Wynn and Senior Judge Davis joined.

ARGUED: Dennis Craig McAndrews, MCANDREWS LAW OFFICES, Berwyn,
Pennsylvania,
for
Appellants.
John
Francis
Cafferky,
BLANKINGSHIP & KEITH, P.C., Fairfax, Virginia, for Appellee. ON
BRIEF: Michael Edward Gehring, Caitlin Elizabeth McAndrews,
MCANDREWS LAW OFFICES, Berwyn, Pennsylvania, for Appellants.
Patricia A. Minson, BLANKINGSHIP & KEITH, P.C., Fairfax,
Virginia, for Appellee.

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DIANA GRIBBON MOTZ, Circuit Judge:
This case poses the question of whether the standard for a
free

appropriate

public

education

under

the

Individuals

with

Disabilities Education Act has changed since Board of Education
v. Rowley, 458 U.S. 176 (1982).
affirm

the

judgment

of

the

We hold that it has not and

district

court

that

the

Fairfax

County School Board did not violate that standard in this case.

I.
A.
The

Individuals

with

Disabilities

Education

Act

(IDEA)

creates a federal grant program to assist states in educating
children with disabilities.

See 20 U.S.C. § 1411 (2012).

To

receive federal funding, states must provide each student with a
disability a “free appropriate public education” (FAPE).
§ 1412(a)(1).

States,

through

local

educational

Id.

agencies,

achieve this by developing an “individualized education program”
(IEP) for each child who has a disability.

Id. § 1412(a)(4).

The IEP documents the student’s current level of achievement,
sets annual goals, states how to measure progress, and specifies
special education services.

See id. § 1414(d)(1)(A).

Educators

work with the student’s parents as part of an “IEP team” to
develop the IEP.

Id. § 1414(d)(1)(B), (d)(3)(A).

2

At least

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annually,

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that

appropriate.

team

must

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review

the

IDEA

establishes

for students and their parents.
to

IEP

and

revise

it

as

Id. § 1414(d)(4).

Additionally,

right

the

an

impartial

due

procedural

Id. § 1415.
process

safeguards

These include the

hearing

if

the

local

educational agency and parents disagree on the appropriate IEP.
Id.

§ 1415(b)(6), (f).

decision,

any

federal court.

unsatisfied
Id.

After the hearing officer makes a
party

may

§ 1415(i)(2).

bring

a

civil

action

in

The court then reviews the

record, hears additional evidence if requested by either party,
and makes a decision as to the appropriateness of the IEP based
on the preponderance of the evidence.

Id.

§ 1415(i)(2)(C).

B.
Appellant O.S. attended public school in Fairfax County for
kindergarten and first grade.

He has several medical disorders:

Doose Syndrome (a seizure disorder), Atrial Septal Defect (a
small hole in his heart), and ankyloglossia (a disorder commonly
referred to as tongue-tie).

Those disorders qualify him for

special education under the other health impairment category.
For kindergarten and first grade, O.S.’s school developed and
revised IEPs for him with his parents’ approval.
Under his initial kindergarten IEP, O.S. received special
education services during fifteen of the thirty hours in his
school

week.

He

received

those
3

services

in

his

general

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education

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classroom

instructional

with

assistant

a

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special

working

with

education
him

on

teacher

his

IEP

or

goals.

Additionally, O.S. received two hours each month of occupational
therapy in a special education classroom.
IEP

team

added

education.

two

hours

each

Later that year, the

month

of

adapted

physical

After a speech evaluation, it also added four hours

of speech and language therapy each month, which later increased
to six hours each month.
For first grade, the team revised O.S.’s IEP to meet his
goals

in

communication,

comprehension,
readiness,
O.S.

attending

continued

language

writing,

writing

skills,

receiving

therapy

and

reading

and

six

two

readiness,

adapted

hours

hours

readiness,

each

each

mathematics

physical
month

month

reading

of
of

education.
speech

and

occupational

therapy, but his adapted physical education increased to four
hours each month.

The team gradually shifted O.S.’s hours away

from the general education classroom until ten of his fifteen
hours were in the special education classroom.
Over the course of first grade, O.S. missed over thirty
full school days, and part of almost twenty additional days.
Toward the end of that year, a committee designated by Fairfax
County

reviewed

evaluations

of

psychological,
O.S.

special education.

to

sociocultural,

determine

if

he

and

still

educational

qualified

for

It also reviewed testing results that O.S.’s
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parents submitted from the Kennedy Krieger Institute, a private
institution.

The committee included representatives from the

Fairfax County School Board (School Board), as well as O.S.’s
mother and a family friend.

It again found O.S. eligible for

special education under the other health impairment category.
For
writing

second
and

grade,

the

written

communications,

and

IEP

team

language,

behavior

proposed

new

reading,

improvements.

goals

in

mathematics,

In

the

proposed

plan, O.S. would continue to receive two hours each month of
occupational

therapy

and

six

hours

each

month

of

speech

language therapy, both in a special education setting.
also

continue

to

receive

fifteen

hours

of

and

He would

other

special

education services, but with more of those hours in his general
education
rejected

classroom.
the

school’s

This

time,

proposed

IEP.

however,
The

O.S.’s

team

parents

attempted

to

address some of their concerns by adding and modifying goals in
writing, reading, math, organization, and behavior.

But O.S.’s

parents also requested a one-on-one aide, extended school year
services, and that FCPS assign a full-time nurse to the school.
The team did not adopt those requests, and the parents did not
agree to the new IEP.
C.
Instead, O.S.’s parents, on his behalf, requested a due
process hearing to determine whether the School Board provided
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him a FAPE.

They challenged the adequacy of his education on

six grounds:

(1) inadequate instruction in reading, math, and

writing;

inadequate

(2)

occupational

therapy

and

speech

and

language services; (3) lack of extended school year services;
(4) lack of a one-on-one aide; (5) failure to program for his
safety (lack of a full-time nurse); and (6) failure to develop
an appropriate IEP for second grade.

As evidence that O.S. had

not progressed, he pointed to results from the Woodcock-JohnsonThird

Edition;

the

Kaufman

Test

of

Educational

Achievement,

Second Edition; and the School Board’s sociocultural evaluation.
Based on those evaluations, O.S. argued that he had actually
regressed academically.
After conducting a three-day hearing, in which the hearing
officer

heard

from

fourteen

witnesses

and

received

over

200

exhibits, the officer issued a detailed written opinion.

In

that opinion, the officer first recognized that the IEP team had
complied with the IDEA’s procedural requirements in developing
O.S.’s IEPs, and then evaluated the implementation of the IEPs.
The

officer

particularly

considered
important

O.S.’s
exhibits

IEPs
and

and
noted

progress
that

all

reports
of

the

testifying witnesses were “open and honest.”
The officer then credited ten witnesses in particular, who
were

O.S.’s

testified

to

teachers
O.S.’s

and

other

progress

educational

during
6

experts.

kindergarten

and

All
first

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grade, and explained why each additional accommodation that his
parents

requested

was

unnecessary

for

second

grade.

While

acknowledging that the IDEA does not require parents to present
expert testimony, the officer noted that, in contrast to the
School Board’s showing, O.S.’s parents “offer[ed] virtually no
witnesses, other than the parent,” to support their position.
The hearing officer concluded that the School Board had provided
O.S. a FAPE.
O.S. filed a complaint in federal court challenging the
decision.

Both parties moved for judgment on the administrative

record.

The

findings

were

deference.”
concluding
affirming

district

court

regularly

held

made,

that

and

the

thus

hearing
“entitled

officer’s
to

some

The court then rejected each of O.S.’s challenges,
that

the

the

hearing

School

Board

officer’s

did

provide

decision.

O.S.

a

FAPE
noted

and
this

timely appeal.

II.
Initially and principally, O.S. argues that the district
court

applied

the

received a FAPE.

wrong

standard

in

evaluating

whether

he

Specifically, he maintains that in the current

version of the IDEA, a FAPE requires “meaningful” rather than
“some” educational benefit.

Our analysis of the statute is a

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question of law that we review de novo.

See WLR Foods, Inc. v.

Tyson Foods, Inc., 65 F.3d 1172, 1178 (4th Cir. 1995).
Congress first required a FAPE as part of the Education for
All Handicapped Children Act of 1975 (EHA).

See Education for

All Handicapped Children Act of 1975, Pub. L. No. 94-142, sec.
3-4, §§ 601-602, 89 Stat. 773, 775.
amended the Act multiple times.
EHA as the IDEA.

The 1990 amendment renamed the

See Individuals with Disabilities Act of 1990,

Pub. L. No. 101-476, 104 Stat. 1103.
2004,

remains

Since then, Congress has

in

effect

today.

The IDEA, as amended in
See

Individuals

with

Disabilities Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647
(codified as amended at 20 U.S.C. § 1400 (2012)).

Both the

original EHA and the current IDEA require the states to provide
a FAPE to students with disabilities.

They define it in almost

identical terms. 1
In Board of Education v. Rowley, 458 U.S. 176 (1982), the
Supreme Court provided more content to the FAPE requirement.

1

In

See 20 U.S.C. § 1401(9) (“The term ‘free appropriate
public education’ means special education and related services
that -- (A) have been provided at public expense, under public
supervision and direction, and without charge; (B) meet the
standards of the State educational agency; (C) include an
appropriate preschool, elementary school, or secondary school
education in the State involved; and (D) are provided in
conformity with the individualized education program required
under section 1414(d) of this title.”).
The EHA used
essentially the same definition.
See Pub. L. No. 94-142,
§ 602(18), 89 Stat. 773, 775.
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that case, a deaf first-grade student challenged her IEP because
her school refused to provide her an interpreter.
85.

Id. at 184-

Although she performed better than many of her peers, she

understood “considerably less” than she would have without her
disability.

Id. at 185.

She argued that the school did not

provide a FAPE because of the disparity between her potential
and her achievement.
The

Supreme

Id. at 185-86, 198.

Court

rejected

this

argument,

holding

that

schools need not “maximize each child’s potential.”

Id. at 198.

The

instruction

Court

held

that

a

FAPE

requires

“access”

to

“individually designed to provide educational benefit.”
201.

Id. at

Because that access to education must be “meaningful,” id.

at 192, schools have to provide “some educational benefit” to
fulfill Congress’s intent, id. at 200.
Despite various amendments to the IDEA since 1982, we have
continued to follow the Rowley definition of a FAPE.

See, e.g.,

E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of Educ., 773
F.3d

509,

517

(4th

Cir.

2014)

(“some

educational

benefit”);

Sumter Cty. Sch. Dist. 17 v. Heffernan ex rel. T.H., 642 F.3d
478, 484 (4th Cir. 2011) (same); J.H. ex rel. J.D. v. Henrico
Cty. Sch. Bd., 395 F.3d 185, 187 (4th Cir. 2005) (same); A.B. ex
rel. D.B. v. Lawson, 354 F.3d 315, 319 (4th Cir. 2004) (same).
O.S. asks us to find that, in the 1997 and 2004 amendments
to

the

statute,

Congress

replaced
9

the

Rowley

standard.

He

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points to the 2004 congressional findings in the IDEA preamble
as evidence that the law now focuses on results rather than mere
access.

The congressional findings lament “low expectations” of

children with disabilities, and state that educating children
with

disabilities

is

“more

effective”

when

there

are

expectations” of them “to the maximum extent possible.”
U.S.C. § 1400(c) (2012).

“high
See 20

While the EHA succeeded in providing

access to education and improving educational results, id., O.S.
argues that the IDEA aimed to go further.
The legislature’s shift from requiring access to requiring
results does not necessarily establish a shift in the meaning of
FAPE

from

benefit.

providing

“some”

benefit

to

providing

“meaningful”

When Congress changes the law on an issue already

decided by the Supreme Court, it typically does so explicitly.
See, e.g., Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No.
111-2,

123

Stat.

5,

5

(expressly

responding

to

the

Supreme

Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550
U.S. 618 (2007)); Religious Freedom Restoration Act of 1993,
Pub. L. No. 103-141, 107 Stat. 1488, 1488 (expressly responding
to the Supreme Court’s decision in Employment Division v. Smith,
494 U.S. 872 (1990)); cf. Examining Recommendations to Reform
FISA Authorities: Hearing Before the H. Comm. on the Judiciary,
113th Cong. 107, 113, 128-29, 153, 171, 191 (2014) (expressly
discussing

whether

Congress

should
10

limit

the

application

of

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Smith v. Maryland, 442 U.S. 735 (1979), given advancements in
technology).

Congress

did

not

do

that

with

respect

to

the

definition of FAPE.
Rather than articulate a new definition of FAPE, Congress
amended the IDEA in other ways.

For example, the IDEA now

requires

“academic

that

functional

an

IEP

document

performance,”

rather

than

achievement

educational

and

performance.

Pub. L. No. 108-446, § 614(d)(1)(A)(i)(I), 118 Stat. 2647, 2707
(2004).

Schools

must

include

students

with

disabilities

in

statewide assessments, and now must justify a decision to give a
student

an

alternative

614(d)(1)(A)(i)(VI).

assessment.

Id.

§§

612(a)(16),

Schools must produce progress reports for

children with disabilities with the same frequency as they issue
regular report cards.

Id. § 614(d)(1)(A)(i)(III).

Schools must

now base special education on peer-reviewed research, to the
extent practicable.

Id. § 614(d)(1)(A)(i)(IV).

These examples suffice to show that Congress implemented
the IDEA’s higher expectations in specific ways, and altering
the standard for providing a FAPE was not one of them.

In fact,

the IDEA calls for schools to evaluate a child’s “progress,” but
does

so

without

any

quantifier.

See,

e.g.,

20

U.S.C.

§ 1414(d)(1)(A)(i)(II)(aa) (requiring IEP goals that “enable the
child to . . . make progress”).

Congress could easily have

modified “progress” with “meaningful” if that were its intent.
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We note that we have never held “some” educational benefit
means only “some minimal academic advancement, no matter how
trivial.”

Hall ex rel. Hall v. Vance Cty. Bd. of Educ., 774

F.2d 629, 636 (4th Cir. 1985).

Rather, we have used the word

“meaningful” to describe what a FAPE requires, even before the
2004 amendments.

G. ex rel. R.G. v. Fort Bragg Dependent Schs.,

343 F.3d 295, 306 (4th Cir. 2003).

But in doing so, we have

cited Rowley’s “educational benefit” requirement.

Id. at 303.

Using “meaningful,” as the Court also did in Rowley, was simply
another way to characterize the requirement that an IEP must
provide a child with more than minimal, trivial progress.
O.S.
support

cites
of

the

cases

from

some

view

that

the

of

our

IDEA

sister

requires

circuits

in

“meaningful”

educational benefit as distinct from “some” educational benefit.
Some courts do explicitly hold that the IDEA as amended requires
school districts to meet a heightened standard.

See, e.g., N.B.

v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1212-13 (9th
Cir. 2008).

Others, although using the word “meaningful,” seem

to describe the same standard developed in Rowley.

See, e.g.,

D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir.
2012) (holding that Rowley’s “some educational benefit” requires
“meaningful” as opposed to “trivial” educational benefit).
our

part,

we

are

loath

to

hold,

without

any

For

express

acknowledgment of its intent to do so, that Congress abrogated
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Supreme

Court

Filed: 10/19/2015

precedent.

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We

note

that

recently

the

Tenth

Circuit also rejected a similar contention that a heightened
“meaningful benefit” standard had replaced the “some benefit”
standard.

Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch.

Dist. RE-1, No. 14-1417, 2015 WL 5011927, at *6-8 (10th Cir.
Aug. 25, 2015).
In this circuit, the standard remains the same as it has
been for decades:

a school provides a FAPE so long as a child

receives some educational benefit, meaning a benefit that is
more

than

minimal

or

trivial,

from

special

instruction

and

services.

III.
O.S.
district

maintains,
court

in

applied

the
the

alternative,
correct

that

standard

even
in

if

the

evaluating

whether he received a FAPE, as we have held it did, the court
erred

in

finding

that

he

had

received

a

FAPE

under

that

standard.
In IDEA cases, a district court conducts “modified de novo
review,

giving

proceedings.”

‘due

weight’

to

the

underlying

administrative

M.S. ex rel. Simchick v. Fairfax Cty. Sch. Bd.,

553 F.3d 315, 323 (4th Cir. 2009) (quoting Rowley, 458 U.S. at
206).

While the court must make an independent determination on

whether the school complied with the IDEA, the hearing officer’s
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factual findings are “considered prima facie correct.”
773 F.3d at 517.

“[W]hether or not a program is appropriate” is

itself a question of fact.
953

F.2d

100,

parties,

a

evidence.

E.L.,

105

court

(4th

Doyle v. Arlington Cty. Sch. Bd.,

Cir.

shall

1991).

also

hear

At
and

the

request

consider

of

the

additional

E.L., 773 F.3d at 516-17.

A district court determines whether a school provided a
FAPE based on the preponderance of the evidence.
“afford

great

deference

to

the

judgment

Id.
of

It must
education

professionals in implementing the IDEA,” id. at 517, because the
IDEA

does

not

allow

federal

courts

“to

substitute

their

own

notions of sound educational policy” for those of local school
authorities, A.B., 354 F.3d at 325 (quoting Rowley, 458 U.S. at
207).

Finally, the party seeking relief bears the burden of

proof.

Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 51

(2005).

On appeal, we “apply[] the standard of review utilized

by the district court.”

E.L., 773 F.3d at 517 (quoting M.M. ex

rel. D.M. v. Sch. Dist., 303 F.3d 523, 531 (4th Cir. 2002)). 2
For

kindergarten

and

first

grade,

O.S.

challenges

the

implementation of his IEP rather than specific aspects of it.
2

This court has sometimes stated that we review the
district court for clear error.
See, e.g., Cty. Sch. Bd. v.
Z.P. ex rel. R.P., 399 F.3d 298, 309 & n.7 (4th Cir. 2005)
(noting tension in the way we describe the standard of review).
We need not resolve that possible tension in this case because
the outcome here is the same under both standards.
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He argues that he did not make sufficient educational progress,
and as evidence, he relies on a few evaluations to contend he
actually

regressed.

Those

evaluations

do

measure

academic

achievement, but, as the district court noted, they are not the
only evidence in the record as to the sufficiency of O.S.’s
progress.

The hearing officer credited numerous IEP progress

reports and the testimony of O.S.’s teachers and other education
experts that O.S. did progress on many of his individualized
objectives.
For

example,

experts

in

elementary

education,

physical

education, and speech and language all testified that the IEP
was appropriate and that O.S. had made progress.

An expert in

special education testified that it was “not surprising” O.S.
progressed at a slower rate than students without disabilities,
but that he was “still making progress.”
expert

said

tremendous

that

at

the

progress.”

end

O.S.’s

of

the

In fact, that same

year,

kindergarten

O.S.

“had

teacher

made

explained

that O.S. “definitely” made progress towards his IEP goals, and
an expert in occupational therapy noted that O.S. “made very
nice progress” over the course of two years.
educators

who

testified,

many

of

whom

In sum, all of the

qualified

as

experts,

opined that O.S. made progress under the School Board’s IEP.
Further,

addressing

regressed,

an

his

expert

parents’
in

concern

special
15

that

education

O.S.

at

attributed

times
the

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regression in part to O.S.’s extensive absences.
expert

did

not

consider

this

occasional

Even so, the
regression

so

significant that O.S. could not catch up.
In

addition

to

evaluating

O.S.’s

progress,

the

hearing

officer considered whether additional accommodations should have
been included in O.S.’s second grade IEP.

The hearing officer

credited unrebutted testimony that a one-on-one aide was only
necessary

when

a

student

needs of the day.”

required

help

with

“even

the

basic

The hearing officer found no evidence that

O.S. needed that sort of support, and that O.S. already had
“teachers and assistan[ts] nearby on a routine basis.”
hearing

officer

credited

an

expert

in

school

And the

health

who

testified that “a nurse is not necessary for the child to be
safe in school” because the school already had “protocols in
place”

to

address

O.S.’s

needs

should

he

have

a

seizure.

Further, because O.S. did not show “significant” regression, the
hearing officer found that he did not require extended school
year

services.

The

officer

noted

evidence

that

O.S.

nevertheless could have attended summer school, but that his
parents decided not to enroll him in it.
Given

that

the

record

supports

the

hearing

officer’s

findings, we cannot conclude as a matter of law that the School
Board did not provide O.S. with a FAPE.
our

obligation

to

give

due

weight
16

to

To do so would ignore
the

hearing

officer’s

Appeal: 14-1994

Doc: 51

findings,

and

Filed: 10/19/2015

to

defer

to

Pg: 17 of 17

the

judgment

of

professional

educators. 3

IV.
We hold that, in evaluating whether a school provides a
FAPE, we still look to whether the IEP provides some educational
benefit to the student.
finding

that

the

Here, the district court did not err in

School

Board

met

that

requirement.

Accordingly, the judgment of the district court is
AFFIRMED.

3

Because the School Board did not fail in its obligation
“to provide educational benefit to a disabled student,” we
reject O.S.’s request for an award of compensatory education.
See M.S., 553 F.3d at 325 (discussing compensatory education as
a possible remedy for failure to provide a FAPE).
17