Q.W. v. Board of Education of Fayette, et al

Filing

OPINION filed: AFFIRMED; decision not for publication. Danny J. Boggs, Circuit Judge; Jeffrey S. Sutton, Circuit Judge and Deborah L. Cook, Circuit Judge (AUTHORING).

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0752n.06
Case No. 15-5160
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Q.W., by his Next Friends and Parents, M.W.
and K.T.W.,
Plaintiff-Appellant,
v.
BOARD OF EDUCATION OF FAYETTE
COUNTY,
KENTUCKY;
KENTUCKY
DEPARTMENT
OF
EDUCATION;
DIVISION OF EXCEPTIONAL CHILDREN
SERVICES; JOHNNY COLLETT, in his
Official Capacity as Director of Exceptional
Children Services,
Defendants-Appellees.

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FILED
Nov 17, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
KENTUCKY

BEFORE: BOGGS, SUTTON, and COOK, Circuit Judges.
COOK, Circuit Judge. Q.W., a high-functioning autistic student in elementary school,
through his Parents, appeals the district court’s judgment affirming an administrative decision
finding him ineligible for special education and related services under the Individuals with
Disabilities Education Act (“Act”), 20 U.S.C. § 1400 et seq. The administrative board concluded
that Q.W. was not statutorily disabled because his autism did not “adversely affect[] [his]
educational performance.” 34 C.F.R. § 300.8(c)(1)(i). The district court agreed, noting that
although the Act left “educational performance” undefined, its ordinary meaning suggests

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Case No. 15-5160
Q.W. v. Board of Education of Fayette County, Kentucky, et al.
“school-based evaluation.”

On appeal, the Parents argue that “educational performance”

includes not only academics but also social and psychological performance across all settings.
For the following reasons, we affirm the district court’s judgment.
I.
Q.W. was a student in California when he was identified as disabled under the Act and
provided an individualized education plan (“IEP”). In August 2009, Q.W.’s family relocated to
Lexington, Kentucky and enrolled him in the Fayette County School District. The District
convened an Admission and Release Committee (“Committee”), which adopted Q.W.’s
California IEP. The California IEP included speech, language, occupational, and behavioral
therapy plus adaptive physical education. The Parents supplemented this plan with four hours of
various private therapies per week.
Two years later, during a periodic re-evaluation of Q.W.’s continued eligibility, the
Committee determined that because Q.W.’s condition did not adversely affect his “educational
performance,” he was no longer eligible for special education and related services under the Act.
The Parents disagreed and requested an independent educational evaluation, as authorized by
34 C.F.R. § 300.502(b). The Committee continued to deem Q.W. ineligible despite the results of
that evaluation.
A hearing challenging that determination convened about a year later and included
testimony from: four psychologists, the Director of Special Education, the Related Services
Advisor, Q.W.’s teachers, the school system diagnostician, a professor of school and counseling
psychology, a biostatistics professor, two speech therapists, a speech pathologist, two nannies,
four occupational therapists, the school guidance specialist, and Q.W.’s mother. The parties also
presented a number of evaluations, examinations, and reports. The evidence pointed both ways
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on Q.W.’s social development and whether he had completed his IEP. There was also a conflict
of evidence regarding Q.W.’s behavior at home, which included self-injurious acts, and his
generally good at-school behavior.

The hearing officer concluded that Q.W.’s academic

achievement made him ineligible for Act services. The Parents appealed to the Kentucky
Exceptional Children Appeals Board (ECAB), which affirmed on the same grounds.
The Parents then appealed to the United States District Court for the Eastern District of
Kentucky. That court affirmed the administrative decision, finding that in the absence of a
statutory directive, the ordinary meaning of “educational performance suggests school-based
evaluation.” It held: “While ‘educational performance’ may be understood to extend beyond the
four corners of a report card to include a student’s classroom experience, it does not include the
child’s behavior at home. Social and behavioral deficits will be considered only insofar as they
interfere with a student’s education. Here they do not.” The Parents appeal.
II.
Neither party disputes that Q.W. has autism—they instead debate whether his condition
qualifies him as a child with a disability under the Act. A “child with a disability” is “a child
with . . . autism . . . or . . .[a] specific learning disabilit[y] . . . who, by reason thereof, needs
special education and related services.” 20 U.S.C. § 1401(3)(A). Autism is a learning disability
“significantly affecting verbal and nonverbal communication and social interaction . . . that
adversely affects a child’s educational performance.” 34 C.F.R. § 300.8(c)(1)(i); 707 Ky.
Admin. Regs. 1:002, § 1(5) (emphasis added). “Educational performance” is left undefined.
And though states are free to give substance to the term, J.D. ex rel. J.D. v. Pawlet Sch. Dist.,
224 F.3d 60, 66 (2d Cir. 2000), Kentucky has not.

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The Parents say that “educational performance” includes a student’s academic, social,
and psychological needs. The Board agrees. Where they disagree is in the meaning of that term:
the Parents focus on Q.W.’s problematic behavior at home, while the Board focuses on the
psychological and social aspects of Q.W.’s makeup that affect his school performance.
III.
Giving fresh review to the term, United States v. Coss, 677 F.3d 278, 283 (6th Cir. 2012),
we agree with the district court, the Board, and the Parents that “educational performance” may
encompass more than academic achievement.

By demanding that, absent a state-provided

definition of the term, administrators “use a variety of assessment tools and strategies to gather
relevant functional, developmental, and academic information” to determine eligibility, the Act
contemplates a holistic evaluation. 20 U.S.C. § 1414(b)(2)(A). The Act stresses this point by
eschewing “any single measure or assessment as the sole criterion for determining whether a
child is a child with a disability . . . .” Id. § 1414(b)(2)(B).
Yet the Act and the corresponding Kentucky statute speak not at all about a child’s
behavior at home and in the community. Absent a contrary directive, a statutory term must be
given its ordinary meaning. See Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist.,
541 U.S. 246, 252 (2004).

As the district court correctly observed, the plain meaning of

“educational performance” suggests school-based evaluation. This interpretation finds support
in the Act’s legislative purpose: to provide “a free appropriate public education.” 20 U.S.C.
§ 1400(d)(1)(A).
The Parents’ preferred reading has no limiting principle. Their position would require
schools to address all behavior flowing from a child’s disability, no matter how removed from
the school day. We accordingly agree with the district court’s judgment curtailing its review of
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Q.W.’s educational performance to the classroom and school experience—to the exclusion of
social or behavioral deficits that were not shown to interfere with his school-based performance.
IV.
The Parents also argue that the district court’s decision was clearly erroneous in view of
the evidence showing that Q.W. failed to reach the educational goals set by his IEP. They cite
selectively to the record to support their assertion. For instance, although those who observed
Q.W. at school—including the Director of Special Education, speech therapists, and multiple
teachers—testified that Q.W. met his educational goals, the Parents point to isolated academic
and social difficulties. Likewise, the Parents aim to discredit the Board’s position by pressing
his teachers’ limited training with autistic students, and the unreliability of the evaluation data.
But the hearing officer, the ECAB, and the district court reviewed all of this mixed evidence and
nevertheless concluded that Q.W. enjoyed academic and other success at school.
Inconsistencies alone do not demonstrate clearly erroneous findings. “If the district
court’s account of the evidence is plausible in light of the record viewed in its entirety,” we may
not reverse. Anderson v. City of Bessemer City, 470 U.S. 564, 573–74 (1985). Here, the district
court considered the entire administrative record, which included Q.W.’s academic, social, and
psychological experiences both at school and at home.

This comprehensive evaluation

demonstrated Q.W.’s academic success, an absence of significant social difficulties at school,
and a disconnect between his school-based success and at-home problems.
The record supports the district court’s conclusion, and we therefore AFFIRM.

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