J.Y. et al v. Dothan City Board of Education et al (CONSENT)

Filing 94

MEMORANDUM OPINION AND ORDER directing that the Board's 43 MOTION for Judgment in its favor on the record or, in the alternative, for summary judgment is GRANTED to the extent that the court rejects the hearing officer's finding that the Board's procedural violation of the IDEA as to the resolution session denied JY a FAPE, and DENIED in all other respects; further ORDERING that: (1) the court construes plaintiffs' 41 MOTION for Summary Judgment, in part, to seek judgment in their favor as to the IDEA claim on the administrative record; and (2) the motion is GRANTED, except to the extent that the hearing officer found that the Board's violation of the IDEA's resolution session denied JY a FAPE; the court will enter judgment on the record as to the IDEA claim accordingly, and this claim will not proceed to trial, as further set out in order. Signed by Honorable Judge Susan Russ Walker on 3/31/2014. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
J.Y., a Minor, by his Parents
E.Y. and G.Y., as his next friend;
and E.Y. and G.Y.,
Plaintiffs,
v.
DOTHAN CITY BOARD OF
EDUCATION; and TIM WILDER,
SUPERINTENDENT OF DCBOE,
His Individual Capacity,
Defendants.

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CIVIL ACTION NO. 1:12cv347-SRW

MEMORANDUM OPINION and ORDER
In this action, the Dothan City Board of Education (“Board”) challenges the decision
rendered in state administrative proceedings on plaintiffs’ due process complaints alleging
violations of the Individuals with Disabilities Act (“IDEA”). “The IDEA ... represents ‘an
ambitious federal effort to promote the education of handicapped children.’” M.M. ex rel.
C.M. v. School Board of Miami-Dade County, Fla., 437 F.3d 1085, 1094 (11th Cir.
2006)(quoting Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176,
179 (1982)). “The IDEA achieves its goals by guaranteeing students with disabilities a Free
and Appropriate Public Education (‘FAPE’)[,]” as defined in 20 U.S.C. § 1401(9), and which
is “‘based on the child’s unique needs[.]’” M.M., 437 F.3d at 1095 (citations omitted). The
IDEA does so by establishing, as a condition of federal funding, certain obligations on the
part of state and local education agencies to children with disabilities and their parents. 20

U.S.C. § 1411, et seq. The Act also provides procedural safeguards for such children and
parents, including the right to present a complaint “with respect to any matter relating to the
identification, evaluation, or educational placement of the child, or the provision of a free
appropriate public education of such child” – and, if the complaint is not resolved by
agreement, to have the complaint considered at an impartial due process hearing. 20 U.S.C.
§ 1415. “Any party aggrieved by the findings and decision” of the state education agency
after such a hearing on the complaint may bring a civil action in either a state court of
competent jurisdiction or a federal district court. Id., § 1415(i).
The Ys pursued two complaints against the Board to a consolidated due process
hearing before an Alabama State Department of Education hearing officer; the hearing
officer rendered a decision finding in the Ys’ favor on three of the four specific issues
presented in their complaints. (Doc. # 36-1). The Board brings a claim before this court
challenging the due process hearing officer’s decision and seeking judgment in its favor
overturning that decision as contrary to law and the evidence. (Counterclaim, Doc. # 4 at
pp. 17-35). The Board now moves for a “Judgment on the Record, or a Judgment with
Findings and Conclusions based on the Record, pursuant to Rule 52, Fed. R. Civ. P.” or, in
the alternative, for summary judgment on its IDEA claim. (Doc. # 43, p. 1). In a crossmotion for summary judgment (Doc. # 41), plaintiffs seek entry of judgment in their favor
enforcing the due process hearing officer’s decision.1,2 Upon consideration of the motions,

1

The hearing officer found against plaintiffs on an IDEA retaliation issue presented in their
due process complaint but otherwise found in their favor. While plaintiffs assert an IDEA claim in
2

the parties’ arguments, and the administrative record, the court concludes that the crossmotions are each due to be granted in part and denied in part.
Standard of Review for IDEA Claim
The IDEA authorizes an “aggrieved” party to bring an action in federal court
challenging the ALJ’s final decision. 20 U.S.C. § 1415(i)(2)(A). Although the
federal action is an independent civil action and not merely a review of a state
administrative decision, the Supreme Court has determined that federal courts
this matter (Amended Complaint, Doc. # 38, Count I), they do not challenge the hearing officer’s
decision but, instead, seek to enforce it. (See id., ¶¶ 1-57). While their amended complaint alleges
no error whatsoever on the part of the hearing officer, plaintiffs argue in their brief in support of
their motion for summary judgment – within the section devoted to the ADA claim – that the hearing
officer erred by “refusing to go beyond the two (2) year statute of limitations when deciding the
IDEA issue” because plaintiffs did not understand until they received Dr. Passler’s evaluation in
2011 that the school was wrong in denying JY services in his fourth grade year. (Doc. # 42, p. 55).
Thus, plaintiffs now contend that they are entitled to more compensatory education than ordered by
the hearing officer under the IDEA, as well as under section 504 and the ADA. (Id.). However,
plaintiffs may not amend their complaint by way of argument in their summary judgment brief; this
belated challenge to the decision is not properly before the court. Because plaintiffs’ amended
complaint includes no claim of error in the hearing decision, plaintiffs sole IDEA claim is their
independent claim for attorney’s fees and expenses pursuant to 20 U.S.C. § 1415(i)(3)(B). See
Robert K. and Karen K. o/b/o T.K. v. Cobb County School District, 279 F. App’x. 798, 800 (11th
Cir. 2008)(“20 U.S.C. § 1415(i)(3)(A) confers jurisdiction over IDEA actions to district courts, and
§ 1415(i)(3)(B)(i)(I) creates a cause of action for parents to recover attorneys’ fees.”); Georgia State
Department of Education v. Derrick C., 314 F.3d 545, 550 (11th Cir. 2002)(an IDEA claim for
attorneys’ fees is “an independent claim which the district court, not the administrative agency is
to decide” and is distinct from an IDEA substantive appeal)(citing Zipperer v. School Board of
Seminole County, 111 F.3d 847, 851-52 (11th Cir. 1997)). To the extent that plaintiffs seek
compensatory and punitive damages for the Board’s violation of the IDEA (Doc. # 38, ¶ 55), such
relief is not available under the statute. Ortega v. Bibb County School District, 397 F.3d 1321 (11th
Cir. 2005).
2

The parties initially filed the transcript of the testimony at the due process hearing, but only
some of the exhibits considered by the hearing officer. Additionally, those exhibits they did file in
this court were not designated as they were in the administrative proceeding and the hearing
officer’s decision. Thus, the court ordered the Board to file all of the exhibits accepted into evidence
by the hearing officer and to identify them by the exhibit numbers used in the due process hearing
(Doc. # 83). The Board has done so (see Doc. # 87), and the Ys concur that the record before the
court, as now supplemented by the Board, includes all of the documents admitted at the due process
hearing (Doc. # 88).
3

must still give “due weight” to the ALJ’s determinations. See Rowley, 458
U.S. at 206, 102 S.Ct. at 3051; Loren F. [v. Atlanta Independent School
System, 349 F.3d 1309, 1314 (11th Cir. 2003)]. “To that end, administrative
factfindings are considered to be prima facie correct, and if a reviewing court
fails to adhere to them, it is obliged to explain why.” Loren F., 349 F.3d at
1314 n. 5 (internal quotation marks and citations omitted).
M.M., 437 F.3d at 1097. The court may reject administrative findings of fact that are not
supported by the evidence. Doe v. Ala. State Dept. of Education, 915 F.2d 651, 657 n. 3
(11th Cir. 1990). A district court may accept additional evidence, but is not required to do
so; in exercising its discretion, the court “‘must be careful not to allow such evidence to
change the character of the hearing from one of review to a trial de novo.’” G.J. v. Muscogee
County School District, 668 F.3d 1258, 1268 (11th Cir. 2012)(citation omitted).3 The party
challenging the agency decision – the Board, in this case – bears the burden of establishing
that it is erroneous. Ms. H. v. Montgomery County Board of Education, 2011 WL 666033,
*1 (M.D. Ala. Feb. 14, 2011); see also Ridley School Dist. v. M.R., 680 F.3d 260, 270 (3rd
Cir. 2012)(“We now join our sister circuits in holding that the party challenging the
administrative decision bears the burden of persuasion before the district court as to each
claim challenged.”); Marshall Joint School Dist. No. 2 v. C.D. ex rel. Brian D., 616 F.3d 632,
636 (7th Cir. 2010)(“Under the [IDEA], the party challenging the outcome of the

3

In its counterclaim, the Board asks that the court “[a]llow and consider additional evidence
as allowed and called for in the statute[.]” (Doc. # 4, p. 32, ¶ c). However, except for its required
notice of intent to file a civil action, the documents that the Board submits in support of its motion
for judgment on the record include only those before the hearing officer. (See Doc. # 43, p. 4, ¶ 4).
In their response to the Board’s motion, plaintiffs cite no evidence that was not before the hearing
officer. (See Doc. # 57). Thus, in resolving the IDEA claim, this court has considered no evidence
beyond that presented during the administrative proceedings.
4

administrative hearing bears the burden of persuasion in the district court.”); District of
Columbia v. Doe, 611 F.3d 888, 897 (C.A.D.C. 2010)(“[T]he IDEA hearing officer’s
decision warrants ‘less deference than is conventional’ in administrative proceedings but the
[challenging party] ‘must at least take on the burden of persuading the court that the hearing
officer was wrong.’”)(citation omitted); Roland M. v. Concord School Committee, 910 F.2d
983, 991 (1st Cir. 1990)(“We keep in mind that, in cases arising under the [Education of the
Handicapped Act], the burden rests with the complaining party to prove that the agency’s
decision was wrong.”). “Additionally, ‘[w]hen a party moves for summary judgment in [an
IDEA case], he does not implicitly reserve a right to a trial if the motion is denied.’” Ms. H.,
2011 WL 666033, **1-2 (citing Maricus W. ex rel. Marvin M. v. Lanett City Bd. of Educ.,
141 F.Supp.2d 1064, 1069-70 (M.D.Ala. 2001)).
The Board’s Contentions
The Board presents three grounds on which it seeks a judgment “that overturns,
reverses and sets aside the Hearing Officer’s Due Process Decision dated March 2, 2012”
(Doc. # 43):
(1) “[t]he Hearing Officer erred in finding that the Board violated the child find
provision” because, as a matter of law, “the child find provision does not impose duties and
obligations on the Board for which a parent can sue or seek relief, or for which the parent has
a private cause of action” (id., pp. 2-3, ¶ 1);
(2) assuming that “the [child find] provision imposes a duty and a private cause of
action, the Hearing Officer erred in finding and concluding that the Board failed in the duty
5

or denied JY FAPE[,]” as “[t]he evidence below was overwhelming that JY did not have the
‘red flags’ or markers of a child with a disability, who, by reason thereof, required special
education and related services” (id., p. 3, ¶ 2); and
(3) “[t]he Hearing Officer erred in interpreting or construing the resolution session
provision of the statute” and “erred in finding, based on this misconstruction, that the Board
violated the resolution session provision and in finding that the actual resolution session that
took place denied JY FAPE” (id., ¶ 3).4 The court addresses each of these challenges to the
due process decision in turn.
I
First, the Board alleges error in the hearing officer’s “finding that the Board violated
the child find provision.” (Doc. # 43, p. 2, ¶ 1). The Board contends that “[a]s a matter or
law and statutory interpretation the child find provision does not impose duties and
obligations on the Board for which a parent can sue or seek relief, or for which the parent has
a private cause of action.” (Id.). It argues that the hearing officer erred in violation of the
Spending Clause of the United States Constitution by allowing the Ys to proceed on a “child
find” allegation, as the IDEA’s “child find” provision – 20 U.S.C. § 1412(a)(3) – imposes
no negligence-based or absolute duty and does not grant parents a private cause of action for
its alleged breach, because there is no language within the “child find” provision itself so

4

See also Board’s brief, Doc. # 45-1 at pp. 6-8 (“Summary of the Board’s Position,”
restating “child find” and resolution session allegations of error).
6

stating.5 (Doc. # 45-1, pp. 30-46; id., pp. 35-36 (quoting the text of subsection (A) of the
“child find” provision and arguing that this subsection says “NOTHING imposing some
absolute duty or strict liability, or even a negligence based duty, on a School System that, for
whatever reason, fails to identify and locate a child who happens to need special education”
and “says NOTHING about parents of a child having a private right of action against a
School System that, for whatever reason, does not happen to identify or locate their child as
a child with a disability who need special education”); id., pp. 37-38 (reiterating that §

5

The “child find” subsection of the IDEA provides, in pertinent part, that:

A state is eligible for assistance under this subchapter for a fiscal year if the State
submits a plan that provides assurances to the Secretary that the State has in effect
policies and procedures to ensure that the State meets each of the following
conditions:
* * *
(3) Child find
(A) In general
All children with disabilities residing in the State ... regardless of the severity
of their disabilities, and who are in need of special education and related services, are
identified, located, and evaluated and a practical method is developed and
implemented to determine which children with disabilities are currently receiving
needed special education and related services.
(B) Construction
Nothing in this chapter requires that children be classified by their
disability so long as each child who has a disability listed in section 1401 of
this title and who, by reason of that disability needs special education and
related services is regarded as a child with a disability under this subchapter.
20 U.S.C. § 1412(a)(3).
7

1412(a)(3) “says NOTHING about a parent who claims that the School System failed to refer
their child for a special education evaluation being able to sue or seek compensation[,]” “says
NOTHING about a parent having a private cause of action[,]” and “says NOTHING about
a duty being imposed or based on strict liability or on a negligence based model”).6
Congress enacted the IDEA pursuant to the Spending Clause of the constitution,
which grants Congress the power to lay and collect taxes “... To pay the Debts and provide
for the common Defence and general Welfare of the United States.” U.S. CONST., Art. I, §
8, cl. 1 (“Spending Clause”); Arlington Central School District Board of Education v.
Murphy, 548 U.S. 291, 297 (2006).
[L]egislation enacted pursuant to the spending power is much in the nature of
a contract: in return for federal funds, the States agree to comply with federally
imposed conditions. The legitimacy of Congress’ power to legislate under the
spending power thus rests on whether the State voluntarily and knowingly
accepts the terms of the “contract.” There can, of course, be no knowing
acceptance if a State is unaware of the conditions or is unable to ascertain what
is expected of it. Accordingly, if Congress intends to impose a condition on
the grant of federal moneys, it must do so unambiguously.
Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981).
To address the Board’s Spending Clause contention, the court must consider whether
“a state official who is engaged in the process of deciding whether the State should accept
IDEA funds” (Arlington, 548 U.S. at 296) would understand that his or her obligations
include defending against and potential liability for a claim such as that lodged in the Ys’

6

The Board points out that the “child find” provision of the Alabama Administrative Code
(§ 290-8-9-.01(1)) also “does NOT give our hypothetical state officer clear notice of some strict
liability or negligence based duty, nor of some private cause of action.” (Doc. # 45-1, p. 39).
8

initial due process complaint. In that complaint, the Ys assert that, “[d]espite [JY’s]
diagnoses and his Parents’ complaints to the School System ... about [JY’s] behavior and
academic struggles, the School System and its agents have failed to appropriately and timely
evaluate [JY’s] needs[.]” (May 2011 due process complaint, ¶ 6; see also id. at ¶ 10 (“Despite
receiving federal financial assistance, the School System and its agents have failed to
properly evaluate [JY] ... . The School System has refused to identify [JY] as a child with
disabilities that is entitled to special education and related services.”). In the decision before
the court for review, the due process hearing officer finds “[t]hat, under the law, the [Board]
failed to properly and timely respond to the parents’ request for services for their child[,]”
and “[t]hat the [Board] has denied the child a FAPE by failing to timely and properly
evaluate him as required by law.” (Id., p. 51). The Board’s argument before this court rests
on its contention that the due process complaint alleges, and the hearing officer found, that
the Board violated 20 U.S.C. § 1412(a)(3)(A). However, the court – like the hearing officer
– does not read the due process complaint to allege such a claim. Thus, the Board’s first
assignment of error is without merit.
While the hearing officer’s analysis is unclear in some respects, his statement of the
issues and his “Specific Findings” are not. Relating to the Board’s Spending Clause
argument, the hearing officer identifies the “specific issues under review and which are
considered below” as “[w]hether or not the Respondent properly responded to the parents’
various requests for services for their child even though the context of the parent referral
made on or about November 1, 2010 was in the context of a request for Section 504

9

Services” and “[w]hether or not the Respondent’s action regarding the Parent’s referral
resulted in a denial of a FAPE to the child ... .” (Doc. # 36-1 at pp. 11-12, 33, 42)(emphasis
added)7; see also id., at p. 42)(“As there is no question that the Respondent inappropriately
responded to the ‘referral’ by the parents, the question arises whether or not this constituted
a denial of a FAPE for the child.”)(emphasis added). The hearing officer resolves these two
issues with “Specific Findings” that the Board “failed to properly and timely respond to the
parents’ request for services for their child[,]” and “denied the child a FAPE by failing to
timely and properly evaluate him as required by law.” (Id., p. 51)(emphasis added).8 It is
true that, in summarizing his conclusions before making his “Specific Findings,” the hearing
officer states that the Board violated its “child find” obligation; earlier in the decision –
within his discussion of the issue of whether the Board “properly responded to the parents’
7

In their brief in support of their own motion for partial summary judgment, the plaintiffs
assert that their due process complaint includes FAPE and “child find” claims. (Doc. # 42, p. 1).
In their brief in response to the Board’s motion, plaintiffs argue that a “child find” violation is
independently actionable. (Doc. # 57). However, plaintiffs assert that this court need not reach this
issue because JY was denied a FAPE under other provisions of the IDEA and “[t]he Hearing Officer
found that the Plaintiff Parents did make a referral, and the Board has not argued that they followed
the proper steps following that referral.” (Id., p. 4 n. 1). They further contend that “in the present
case the student did not need to be sought out or found” because JY and his disability were known
to the defendant agency and his parents had told the LEA that he was “struggling and in need of
help.” (Id., p. 8). The due process complaint does not cite the “child find” statutory provision or use
this phrase, and it appears to express the Ys’ dissatisfaction with the Board’s response to their
complaints and requests for services. (See May 2011 due process complaint). Regardless of how
plaintiffs and the Board now characterize the due process complaint, the hearing officer’s statement
of the issues before him is a reasonable interpretation of the due process complaint. Neither party
has argued that the hearing officer erred by failing to include and enter a specific finding on an
additional issue of whether the Board failed in its independent “child find” obligation imposed by
§ 1412(a)(3).
8

The hearing officer’s specific findings correspond directly, and seriatim, to the four
“specific issues under review” he identifies at the conclusion of Part III (“Issues Presented”) of the
decision. (See Doc. # 36-1, pp. 11-12 (issues) and pp. 51-52 (findings A through D)).
10

various requests for services ... ”– he discusses the standard for finding a “child find”
violation as to JY. (Id., pp. 34-36). However, the hearing officer’s statement of the “specific
issues under review” and his “Specific Findings” demonstrate that he finds plaintiffs to be
entitled to relief against the Board due to its violation of obligations set forth in § 1414 of the
statute, not those in § 1412(a)(3)(A). The former section provides, inter alia, that “a parent
of a child ... may initiate a request for an initial evaluation to determine if the child is a child
with a disability” and specifies the requirements for an initial evaluation and for the
determination “of whether the child is a child with a disability[.]” 20 U.S.C. § 1414(a)(1),
(b), (c). The court understands the hearing officer to reason that – in the context of the facts
known to school officials and the agency’s independent “child find” obligation – the Board’s
agents should have treated the Ys discussions with the superintendent in late October 2010,
and GY’s e-mail stating that he and EY had decided to pursue a “504 plan” that would ensure
JY’s “rights to a free and appropriate public education[,]” as “initiat[ing] a request for an
initial evaluation to determine if the child is a child with a disability” within the meaning of
§ 1414(a)(1)(B), and that their failure to do so violated the Board’s obligations under § 1414.
(See Doc. # 36-1, pp. 19-24, 33-43; Petitioner’s Exhibit 10).9 Thus, the Board’s Spending
9

The Board notes that “the Alabama regulation in point” is subsection (1)(“Child Find”) of
§ 290-8-9-.01 of the Alabama Administrative Code and points out that it, “similar to the federal
statutory provision, requires an LEA to develop and implement procedures” but does not
“unambiguously state some absolute duty or some negligence based duty” nor does it “state that a
parent can sue or seek redress for an alleged failure on the LEA[’]s part.” (Doc. # 45-1, p. 39).
However, the hearing officer’s written decision does not refer to subsection (1); instead, the hearing
officer expressly cites and discusses subsection (6). (Doc. # 36-1, p. 37). The latter subsection is
styled “Referral for Initial Evaluation” and provides, inter alia, that “[a] parent of a child ... may
initiate a request for an initial evaluation[.]” Ala. Admin. Code, § 290-8-9-.01(6)(a)(Supp. No. 11-2).
It further requires that an IEP Team review the referral and other information and determine “if the
11

Clause argument presents no basis for overturning the hearing officer’s “Specific Findings”
or the relief he orders as a result of those findings.10 Thus, the due process decision survives

child will be evaluated for special education services” and, if the team decides against such an
evaluation, that the agency give written notice to the parents. (Id., subsection (6)(e)). The hearing
officer’s citation to and discussion of the requirements of § 290-8-9-.01(6) indicates – like his
statement of the issues and his “Specific Findings – that the relief he orders does not depend on a
violation of the Board’s “child find” obligation under 20 U.S.C. § 1412(a)(3) and § 290-8-9-.01(1)
of the Alabama Administrative Code but, instead, on the Board’s failure to treat the Ys’ requests for
assistance in their meetings with Superintendent Nichols and the November 2010 e-mail as a request
for initial evaluation (i.e., a “referral”), and to proceed as required upon such a referral.
10

The Board’s Spending Clause argument fails even if the hearing officer’s decision –
despite his statement of the issues – is read to include a specific finding against the Board on a due
process complaint allegation that the Board violated its “child find” obligation under § 1412(a)(3).
The court may look beyond that discrete subsection to the statute as a whole to determine whether
the IDEA unambiguously creates an actionable “child find” right. See Robinson v. Shell Oil Co.,
519 U.S. 337, 340 (1997)(“The plainness or ambiguity of statutory language is determined by
reference to the language itself, the specific context in which that language is used, and the broader
context of the statute as a whole.”). The “[p]rocedural safeguards” section of the IDEA requires that
the state’s procedures include “[a]n opportunity for any party to present a complaint ... with respect
to any matter relating to the identification, evaluation, or education placement of the child, or the
provision of a free appropriate public education to such child” (20 U.S.C. § 1415(b)(6)(A)(emphasis
added)), and grants a party aggrieved by a due process hearing decision with respect to “a complaint
presented pursuant to this section” the right to pursue a civil action in state or federal court (§
1415(i)(2)(A)). See Compton Unified School District v. Addison, 598 F.3d 1181 (9th Cir.
2010)(rejecting school district’s Spending Clause argument that “it did not have ‘clear notice of the
availability of an administrative hearing in ‘child find’ cases” because § 1415(b)(6)(A) clearly
allows due process complaints relating to the identification of a child). And subsection
(B)(“Construction”) of the “Child Find” provision itself suggests that the obligation imposed therein
is not merely to implement policies and procedure (as the Board argues) but to identify each child
with a disability needing special education. See § 1412(a)(3)(B)(“Nothing in this chapter requires
that children be classified by their disability so long as each child who has a disability listed in
section 1401 of this title and who, by reason of that disability, needs special education and related
services is regarded as a child with a disability under this subchapter.”)(emphases added). This
construction of the IDEA is further reinforced by the structure of § 1412, the “[s]tate eligibility”
provision; as to another of the “conditions” listed in § 1412(a) that might otherwise create an
actionable private right – i.e., required qualifications for educational agency personnel and special
education teachers to serve children with disabilities – Congress included language expressly
excluding “a right of action on behalf of an individual student.” 20 U.S.C. § 1412(a)(14)(E). Thus,
the language and structure of the statute as a whole indicates that it contemplates a right of action
on behalf of a child allegedly denied a FAPE due to an education agency’s failure to comply with
its “child find” obligation. See D.K. v. Abington School District, 696 F.3d 233 (3rd Cir.
12

the Board’s first stated ground for reversal, and the court now turns to the second.
II
The Board’s second assignment of error, like its first, relates to its “child find”
obligation. The Board contends that “[a]ssuming the [child find] provision imposes a duty
and a private cause of action, the Hearing Officer erred in finding and concluding that the
Board failed in the duty or denied JY FAPE[,]” as “[t]he evidence below was overwhelming
that JY did not have the ‘red flags’ or markers of a child with a disability, who, by reason
thereof, required special education and related services.” (Doc. # 43, p. 3, ¶ 2). Within the
section of its brief devoted to this argument, the Board objects to the admissibility of certain
evidence; it contends that the hearing officer erred by relying on evidence of events that
occurred outside the IDEA’s two-year statute of limitations in concluding that the Board
violated “child find” – specifically, EY’s conversation during JY’s 4th-grade year with Carol

2012)(school districts have a “child find” obligation to identify and evaluate “all students who are
reasonably suspected of having a disability” and a failure to do so may constitute a procedural
violation of the IDEA)(emphasis in original; citations omitted); Cf. Forest Grove School District v.
T.A., 557 U.S. 230, 245 (2009)(in rejecting the school district’s contention that § 1412(a)(10)(C),
added by amendment to the IDEA, limited the remedies previously available under § 1415(i)(2)(C),
noting that “[i]t would be particularly strange for the Act to provide a remedy, as all agree it does,
when a school district offers a child inadequate special-education services but to leave parents
without relief in the more egregious situation in which the school district unreasonably denies a
child access to such services altogether.”). While the court does not here rely on U.S. Department
of Education regulations to support its conclusion that the statute itself gives the states clear notice
of their exposure to a private cause of action for violating the “child find” obligation, the agency
expressly treats “child find” violations as actionable by way of due process complaints on behalf of
children enrolled in private schools by their parents. See 34 C.F.R. § 300.140 (the due process
complaint procedure does not apply to children enrolled by their parents in private schools, except
as to “child find” complaints). Although this particular provision does not apply to JY, its express
allowance of “child find” due process complaints on behalf of private school children clearly implies
that the agency views “child find” violations as actionable on behalf of public school children as
well.
13

Cunningham (then the Supervisor of Special Education Services and, by JYs’ 7th-grade year,
the Director of Exceptional Student Services) about whether JY qualified for services. (Doc.
# 45-1, pp. 57-62; see hearing transcript at pp. 247-51, 440, 574, 734).
The court first addresses the evidentiary objection. The Board’s contention that the
hearing officer erred by considering evidence of the discussion between EY and Cunningham
is without merit. Statutes of limitations operate only to bar claims that accrue outside the
applicable limitations period; evidence that is relevant to establish claims that accrued within
the limitations period is generally admissible.11 The IDEA limitations provision cited by the
Board does not state otherwise (see 20 U.S.C. § 1415(b)(6)(A)), and the Board points to no

11

See, e.g., Burton v. City of Belle Glade, 178 F.3d 1175, 1189 n. 11 (11th Cir. 1999)(§ 1983
vote dilution/equal protection case; district court’s suggestion that evidence outside the limitations
period would not be considered was erroneous but harmless, where the court did, in fact, consider
the evidence); Williams v. City of Dothan, Ala., 745 F.2d 1406 (11th Cir. 1984)(concluding that
district court erred in limiting discovery to events occurring several years before commencement
of the limitations period, where historical evidence of city’s contributions to past municipal
improvement projects was relevant to the issue of discriminatory intent in municipal improvement
tax assessments occurring during the limitations period); Downey v. Southern Natural Gas Co., 649
F.2d 302, 305 (5th Cir. 1981)(“Although Downey’s claims relating to the 1974 demotion and failure
to transfer are time barred, these actions should be allowed as evidence on the question of whether
Downey was constructively discharged. We observe that ‘(w)hile some or most of this evidence
may concern time-barred conduct, it is relevant, and may be used to illuminate current practices
which, viewed in isolation, may not indicate discriminatory motives.”)(quoting Crawford v. Western
Elec. Co., Inc., 614 F.2d 1300, 1314 (5th Cir. 1980)); Fisher v. Procter & Gamble Mfg. Co., 613
F.2d 527, 540 (5th Cir. 1980)(stating that the district court’s consideration of evidence of acts
outside the statutory limitations period “as constituting the actionable wrongs upon which relief was
based” would be improper, but finding no error where the “prior practices were considered relevant
to show independently actionable conduct occurring within the statutory period”); U.S. v. Ashdown,
509 F.2d 793, 798 (5th Cir. 1975)(observing, in an appeal of a criminal conviction, that “[t]he statute
of limitations is a defense to prosecution, not a rule of evidence”); Sir Speedy, Inc. v. L & P
Graphics, Inc., 957 F.2d 1033, 1037-38 (2nd Cir. 1992)(finding error in district court’s exclusion
of evidence in a breach of contract action, because a statute of limitations does not bar the use of
evidence “that predates the commencement of the limitations period but that is relevant to events
during the period”).
14

other statute or regulation – either in the motion in limine it presented to the hearing officer
or its argument before this court – indicating that the limitations provision of the IDEA
operates to exclude evidence as time-barred. While the pertinent federal agency regulation
limits the subject matter of the due process hearing to “issues” raised in a due process
complaint, and limits due process complaints to claims that accrued within the two-year
limitations period, the regulation does not proscribe the consideration of relevant evidence.
See 34 C.F.R. § 300.511(d), (e). The pertinent state administrative code section provides that
the “[t]he hearing officer may stop unnecessarily hostile or irrelevant pursuits in
questioning” but does not otherwise address the exclusion or admission of evidence. Ala.
Admin. Code § 290-8-9.08(9)(c) (12)(iii)(V)(emphasis added). In this case, the hearing
officer ruled that he would allow evidence from outside the two-year limitations period only
if it is “probative as to the question that we’re here for those two years.” (Hearing transcript,
p. 18; see id., pp. 5-19).12,13 The hearing officer did not err by considering evidence of the

12

Counsel for the Board argues that “the Hearing Officer violated his own ruling regarding
evidence of events occurring outside the 2-year statute of limitations period.” (Doc. # 45-1, p.
57)(emphasis added). He then represents that “[t]he Hearing Officer ruled that he would ‘allow
information that comes in before then only relative to sort of historical background, maybe. Not
necessarily evidence of a denial of FAPE. More as historical sort of background that sets the
precedent for the two years that we’re talking about, specifically during the hearing.’” (Id. quoting
due process hearing transcript, pp. 9-10)(emphasis in italics added; bold type in original). However,
the hearing officer made the statement quoted above in the beginning stages of oral argument on the
Board’s motion in limine, describing his routine position which – at that point – he saw no reason
to change. (See hearing transcript, pp. 9-10)(“Well, my position routinely has been – and I don’t
see any reason to change that right now – is that I will allow information that comes in before then
only relative to sort of historical background, maybe. Not necessarily evidence of a denial of FAPE.
More as historical sort of background that sets the precedent for the two years that we’re talking
about, specifically during the hearing.”). However, the hearing transcript reveals that the hearing
officer was persuaded thereafter to rule against the Board on its motion in limine, to the extent that
evidence of events preceding the statutory limitations period was probative on the issue of whether
15

EY-Cunningham discussion that occurred outside the two-year limitations period.
The Board summarizes its substantive contention on its second ground for challenge
as follows:
JY is a child of average intelligence who is making progress in a magnet
school that emphasizes math, science and technology, despite his ADHD and
his parents’ decision not to use medication. The evidence at trial was clear and
overwhelming that sufficient “red flags” suggesting the need for a special
education referral and evaluation did not exist.
(Doc. # 45-1, pp. 46-47; see also id., pp. 47-56 (summarizing testimony from school
personnel to the effect that JY did not exhibit “red flags” that would warrant referring him
for a special education evaluation).14 However, contrary to the Board’s suggestion, and as

the Board violated the IDEA during that two-year period; the hearing officer indicated that he would
review the evidence on a “piece-by-piece” basis and would admit only such probative evidence. Id.,
pp. 9-19. The pages on which the hearing officer’s actual ruling is found are missing from the
hearing transcript the Board filed in this court. (See Doc. # 43-12, pp. 4-5)(omitting pages 17-21 of
the transcript). However, the missing pages are included within Plaintiff’s Exhibit 42. (Doc. # 51-8,
pp. 17-21). Thus – contrary to the Board’s argument – the hearing officer did not “violate[] his own
ruling.” (Doc. # 45-1, p. 57).
13

The Board’s contention that evidence of EY’s discussion with Cunningham is not relevant
simply rehashes its statute of limitations argument – i.e., the Board contends that the evidence is not
relevant or material because it is time-barred by the IDEA’s limitations period. (See Doc. # 45-1
at pp. 57-62; id. at 60-61 (“Event [sic] occurring outside the 2 year period would be neither material
(offered to go towards or help establish an element of the claim or violation) nor relevant (tending
to prove or disprove the alleged the [sic] claim or violation) to proving the alleged violation.”).
14

The Board points to the Ys’ decision to discontinue JY’s ADHD medication as if it should
weigh in the Board’s favor on its IDEA claim. (Doc. # 46-1, p. 11, ¶ 4; p. 46). However, while
ADHD was diagnosed initially as the cause of JY’s difficulties with attention, neuropsychologist
Passler’s evaluation in June and July 2011 indicated that JY’s attention problems are not caused by
ADHD, and that medication for treating the “organic” processing disorder of ADHD would not be
effective for JY. (Passler report and due process testimony; see also EY testimony at pp. 738-39).
Additionally, the IDEA expressly precludes an educational agency from requiring that a child obtain
a prescription for a controlled substance as a condition of receiving an evaluation or services. 20
U.S.C. § 1412(a)(25).
16

discussed at length above, the hearing officer’s findings go to the agency’s response to the
Ys’ request for services. The hearing officer concludes that the Board failed to respond
properly to the “parents’ request for services for their child[,]” and his associated FAPE
finding resolves the specified issue of “[w]hether or not the [Board’s] action regarding the
Parent’s referral resulted in a denial of a FAPE to the child ...” (Doc. # 36-1, pp. 11-12, p.
51 (findings A and B))(emphasis added).15 In its argument before this court, the Board
focuses entirely on whether JY’s academic record and performance gave rise to a duty on the
part of the Board to initiate a special education referral; it does not present any challenge at
all to the hearing officer’s actual findings regarding the Board’s response to the parents’
referral.16 Thus, the Board’s second asserted ground for overturning the hearing officer’s
15

The education agency’s obligations upon a parent’s initiation of a request for evaluation
do not depend on whether agency employees would themselves have thought a referral for
evaluation to be warranted. See 20 U.S.C. § 1414(a)(1)(B) and (C); § 1414(b).
16

Based on the Board’s statement of facts, the court expected that the Board might challenge
the hearing officer’s findings on the ground that the statements the Ys made to Superintendent
Nichols during their meetings with him did not constitute a proper initiation of a request for
evaluation. (See Board’s brief, Doc. # 45-1 at pp. 13-14, 25-29 (¶¶ 11-14, 52-65). However, it did
not do so. (See Doc. # 43, pp. 2-3; Doc. # 45-1, pp. 30-70). The court declines to derive, and then
consider – from its own interpretation of the “statement of facts” – a legal theory on behalf of the
Board that it did not itself choose to raise, particularly since the Board’s statement of facts omits the
evidence of record that supports the hearing officer’s findings. To the extent that the Board’s
footnote 5 – buried within its Spending Clause argument – raises the issue (see Doc. # 45-1, p. 45
n. 5), the court is satisfied from its own examination of the record that the hearing officer’s findings
in this regard are well-supported by the evidence, including, notably, Superintendent Nichols’
account of his discussion with the Ys. (See hearing transcript at pp. 381-405). In response to a
question about whether either parent, during their meeting with him, asked “for special education
services,” Nichols replied, “I don’t recall. I just – I know it was clear to them that I was going to
give them to Mrs. Cunningham. As far as looking at what proper procedures would be taken,
whether or not he would even, you know, come close to qualifying with the criteria that we have in
place for determining that. She would contact the principal, possibly the teachers. So that was, you
know, where I kind of left that part of the process with referring.” (Id., p. 398)(emphasis added).
Counsel for the Board then inquired, “Yes, sir. I am just asking: Did they, out of their mouths, ask
17

decision also fails.
III
The final assertion of error raised by the Board goes to the hearing officer’s finding
regarding the Ys “resolution session” complaint – i.e., that the Board “did not comply with
the law when the Resolution meeting was convened and in that instance also denied the child
a FAPE.” (Doc. # 36-1, pp. 51-52 (Finding D)). The Board contends that “[t]he Hearing
Officer erred in interpreting or construing the resolution session provision of the statute” and
“in finding, based on this misconstruction, that the Board violated the resolution session
provision and in finding that the actual resolution session that took place denied JY FAPE”
(Doc. # 43, p. 3, ¶ 3).
The IDEA requires that, unless the parties agree otherwise, the local education agency
must convene a resolution meeting within fifteen days of receiving a due process complaint,
during which “the parents of the child discuss their complaint, and the facts that form the
basis of the complaint, and the local educational agency is provided the opportunity to
resolve the complaint[.]” 20 U.S.C. § 1415(f)(1)(B)(i). The statute requires relevant IEP

for special education services?” (Id., emphasis added). Nichols responded, again, that he did not
recall. (Id.). He further testified that he spoke with Cunningham thereafter, “[j]ust telling her what
the parent had shared with me. And, you know, that we needed to look at additional remedies on
how to resolve this issue. And whatever procedural steps that were appropriate, to put those in
place as to whether or not he would qualify either under 504 or IDEA.” (Id., pp. 403-05)(emphasis
added). Thus, whatever words the Ys actually uttered, Superintendent Nichols’ testimony
demonstrates that he understood those words as a parent “referral” for evaluation to determine
whether JY qualified for services under either section 504 or the IDEA. The hearing officer did not
err in concluding that the Board’s agents failed to respond to this referral properly, even though
GY’s e-mail to the Principal Meigs was framed in terms of ensuring a FAPE for JY by way of a 504
plan.
18

team members and “a representative of the agency who has decisionmaking authority on
behalf of such agency” to attend the session. Id.
On May 31, 2011, after plaintiffs filed their first due process complaint, Sam Nichols
(Superintendent of the Dothan City Schools at that time) and Carol Cunningham (Director
of Exceptional Student Services), along with other Board employees, attended a resolution
meeting with the Ys. (Hearing transcript at pp. 247, 380-81, 390, 415-18, 2306; Plaintiffs’
Exhibit 1, May 2011 due process complaint; Petitioner’s Exhibit 12). Cunningham testified
that, at the meeting, she advised the parents that “we would begin the referral process for
special education” and, if JY were found to be eligible, would proceed according to an
appropriate plan developed by the 504 team or IEP team. (Hearing transcript, pp. 431-32).
As to the Ys’ request for an “immediate outside independent education evaluation[,]”
Cunningham told them that “we would provide an evaluation by Dr. Michael Passler at the
expense of Dothan City Schools per Board approval[,]” i.e., if approved by the Board. (Id.,
pp. 431-36).17 Cunningham advised the Ys that “we would provide a speech and language
evaluation by Dothan City Schools personnel.” Id., p. 436. Mr. Y, however, mentioned that
he would prefer to use someone other than Ms. Groover, a Board employee who does speech

17

While the phrased used by Cunningham initially – “per Board approval” – could be
understood otherwise, Cunningham then testified as follows:
Q. So you told them that you would let Dr. Passler do the evaluation at the schools’
expense if the Board approves it?
A. Yes.
(Hearing transcript., p. 436).
19

and language pathology testing; Cunningham responded that she “would get him a list of
names that had the same credentials that he expected.” (Id., pp. 437-38). Cunningham
testified that she told the Ys “several things that we would do, but there were a couple of
things that were on there that were pending Board approval.” (Id., p. 541). She further
testified that she did not do even those things that she told the Ys she “would” do because
she “never heard back from the resolution meeting” after she “turned over what we did of to
the resolution meeting” to Mr. Walding, the Board’s attorney. (Id., pp. 541-43). Responding
to a question about whether he attended the meeting “as the person to make a decision as to
what could and couldn’t be done for [JY],” Nichols testified that he was there “to listen to
what Ms. Cunningham was saying and those – all that were participating. Certainly, I could
have had a part in trying to resolve the issue.” (Id. pp. 391-92). He said that “[f]inal
authority is with the Board as far as whether or not it could be resolved[,]” and that no Board
member attended the meeting. (Id., pp. 390-93).
After Cunningham and Nichols testified at the due process hearing, plaintiffs filed a
second due process complaint regarding the Board’s failure to include a representative with
decision-making authority in the resolution meeting. (Plaintiff’s Exhibit 2, October 2011 due
process complaint). The same hearing officer was appointed to conduct a hearing on the
second due process complaint; after allowing the parties an opportunity to object, he
consolidated it with the ongoing hearing. (Hearing transcript, pp. 1464-68, 1990-2009). In
his written decision, the hearing officer framed the issue as “[w]hether or not the resolution
meeting called for under the law actually occurred as required under law since the persons

20

present on behalf of the Respondent school (the local educational agency, LEA) did not have
‘decision making authority’?” (Doc. # 36-1, p. 12; see also id., at p. 45). He resolved this
issue against the Board, concluding – based on the testimony of Nichols and Cunningham
– that the Board failed to comply with the statute, as the Board representatives who attended
the meeting did not have decision making authority. (Id., pp. 45-49). He found “[t]hat the
Respondent did not comply with the law when the Resolution meeting was convened and in
that instance also denied the child a FAPE.” (Id., pp. 51-52).
In this court, the Board contends that there was no violation of the statute as to the
resolution session because: (1) the statute cannot be understood to mean that a quorum of the
Board or the full Board must attend the resolution meeting; and (2) even assuming that the
statute does include this requirement, no agreement was reached, committed to writing, and
signed and, therefore, there was no substantive violation. (Doc. # 45-1, pp. 62-63). The
Board argues that the statute requires that the LEA representative have only “decision
making authority” as opposed to “final” or “absolute” decision making authority. (Id., p.
66).18 It suggests that the “Superintendent or some other administrator could attend the
18

As to the resolution session, the statute provides as follows:

(B) Resolution session
(i) Preliminary meeting
Prior to the opportunity for an impartial due process hearing under
subparagraph (A), the local educational agency shall convene a meeting with
the parents and the relevant member or members of the IEP Team who have
specific knowledge of the facts identified in the complaint-(I) within 15 days of receiving notice of the parents' complaint;
(II) which shall include a representative of the agency who
has decisionmaking authority on behalf of such agency;
21

Resolution Session preliminary meeting [and] ... fits the term ‘representative of the agency
who has decisionmaking authority[,]’” and that, “if an agreement is actually reached, the
Board could ratify or approve the agreement” subsequently and “authorize the
Superintendent to execute the written agreement” within the remaining fifteen days of the
thirty-day period prescribed by the statute between the complaint and the hearing “and/or the

(III) which may not include an attorney of the local
educational agency unless the parent is accompanied by an
attorney; and
(IV) where the parents of the child discuss their complaint,
and the facts that form the basis of the complaint, and the
local educational agency is provided the opportunity to
resolve the complaint,
unless the parents and the local educational agency
agree in writing to waive such meeting, or agree to
use the mediation process described in subsection (e).
(ii) Hearing
If the local educational agency has not resolved the complaint to the
satisfaction of the parents within 30 days of the receipt of the complaint, the
due process hearing may occur, and all of the applicable timelines for a due
process hearing under this subchapter shall commence.
(iii) Written settlement agreement
In the case that a resolution is reached to resolve the complaint at a meeting
described in clause (i), the parties shall execute a legally binding agreement
that is-(I) signed by both the parent and a representative of the agency who
has the authority to bind such agency; and
(II) enforceable in any State court of competent jurisdiction or in a
district court of the United States.
(iv) Review period
If the parties execute an agreement pursuant to clause (iii), a party may void
such agreement within 3 business days of the agreement's execution.
20 U.S.C. § 1415(f)(1)(B).
22

3 business day review period.” (Id., p. 67).19 The Board further contends that the evidence
is clear that the parties reached no agreement at the meeting, and “[w]ithout a signed, written
agreement, that was not voided within the 3 business days, there was no settlement
agreement and thus no substantive violation of FAPE came about because supposedly the
Board didn’t obey the agreement.” It maintains that “[j]ust as contemplated by the statute the
Ys were able to go forward with a hearing on their due process complaint after no signed
written agreement was reached within 30 days.” (Id., pp. 68, 69).20
Plaintiffs reject the Board’s interpretation of the statute. They note that “[t]here is
nothing that says that the LEA cannot delegate the decision making authority” and, also, that
“[i]f the person with the decision making authority is not the one who can make a decision
as to settlement, there is no reason for a decision maker to be present at the session.”
(Doc. # 57, p. 18). Plaintiffs argue that the Board is asking this court “to rewrite ... § 1415,
to allow the LEA time, after the initial meeting, to seek out the decision maker and decide
whether the matter will settle.” (Id.).
The court’s analysis of the plain language of the statute leads to an interpretation that
lies between that suggested by the opposing parties. As the Board argues, the statute does
not specify or require that the LEA representative at the resolution meeting have “final” or
19

The “3 business day review period” to which defendant refers does not come into play
until after an agreement is executed by the parties. 20 U.S.C. § 1415(f)(1)(B)(iv).
20

In its initial “Statement of the Case,” the Board mentions its motion in limine as to the
resolution session, and its statement opposing consolidation of the hearing on the resolution session
due process complaint with the ongoing hearing, as well as the hearing officer’s rulings against the
Board on both issues. (Doc. # 45-1, pp. 4-5). However, it does not argue that either of these rulings
constitutes a basis for overturning the hearing decision. (See id., pp. 62-70).
23

“absolute” authority over settlement of a complaint. (See Doc. # 45-1 at p. 66). This is clear
from the statute’s provision allowing either party to void – within three business days of its
execution by “a representative of the agency who has the authority to bind such agency” –
a written settlement resulting from the resolution meeting. 20 U.S.C. § 1415(f)(1)(B)(iii) and
(iv)). However, the statute explicitly requires the attendance of an LEA representative with
“decisionmaking authority on behalf of such agency[.]” Id., § 1415(f)(1)(B)(i)(II). The Board
claims that the “Superintendent or some other administrator ... fits the term ‘representative
of the agency who has decision making authority[,]” but the Board does not explain how this
is so, if – as the Board suggests immediately thereafter – the Board’s “state law duty to
administer and manage the schools” requires that the Board ratify or approve any settlement
reached at the meeting and, thereafter, to “authorize the Superintendent to execute the written
agreement.” (Doc. # 45-1, p. 67)(citing Ala. Code, § 16-11-9).21 The Superintendent or some
other administrator satisfies the statutory requirement only if he or she, in fact, has the
authority – by express delegation or otherwise – to make the decision about what the LEA
will or will not do to resolve the issues presented in the IDEA complaint. The statute clearly
contemplates the resolution session as just that – a meeting at which the LEA and the
complainant(s) can reach a resolution because those with the authority to decide are
participants. See 20 U.S.C. § 1415(f)(1)(B)(iii)(“In the case that a resolution is reached to

21

As the Board notes in its Spending Clause argument, the Supreme Court has “‘stated time
and again that courts must presume that a legislature says in a statute what it means and means in
a statute what it says there.’” (Doc. # 45-1 at p. 32)(quoting Arlington Central School District Board
of Education v. Murphy 548 U.S. 291, 296 (2006)).
24

resolve the complaint at a meeting described in clause (i), the parties shall execute a legally
binding agreement ... .”)(emphasis added); cf. H.C. ex rel. L.C. v. Colton-Pierrepont Central
School District, 341 F. App’x. 687, 690-91 (2nd Cir. 2009)(remanding to the district court
to determine whether it had jurisdiction to enforce an IDEA settlement agreement where
neither party asserted that the agreement “emerged ‘through the mediation process’ or ‘at’
a ‘resolution meeting’”). The Board has not demonstrated that either Nichols or Cunningham
had the ‘decisionmaking authority’ required by the statute, and its argument before this court,
as well as the due process hearing testimony of Nichols and Cunningham, suggests that they
did not.22,23 Thus, the court finds no basis for departing from the hearing officer’s finding
“[t]hat the [Board] did not comply with the law when the Resolution meeting was
convened[.]” (Doc. # 36-1, pp. 51-52).
However, as the hearing officer noted (id., pp. 49-50), he could find that a child was
denied a FAPE due to a procedural violation only if that procedural inadequacy actually

22

The court does not here conclude that the entire Board or a quorum of the Board must
attend an IDEA complaint resolution session to comply with the law. Whether that is required by
the plain language of the statute depends on whether or not the Board chooses to grant
“decisionmaking authority” to resolve an IDEA due process complaint to an agency representative.
23

Cunningham’s hearing testimony, set forth above, makes clear that she did not have the
“decisionmaking authority” required by the statute. Nichols’ testimony on this point is vague.
While his testimony that “[f]inal authority is with the Board as far as whether or not it would be
resolved” is not dispositive, in view of the three-day withdrawal window allowed by the statute,
Nichols gave no direct response to the question about whether he attended the session “as the person
to make a decision as to what could and couldn’t be done for [JY.]” See Hearing transcript, pp. 39192 (he was there to listen to what the participants said and “could have had a part in trying to resolve
the issues”). The Board, which bears the burden of persuading the court that the hearing officer’s
finding was erroneous, points to no evidence demonstrating that Nichols had the “decisionmaking
authority” required by the statute.
25

caused a deprivation of educational benefits, impeded the child’s right to a FAPE, or
significantly impeded the parents’ opportunity to participate in the FAPE decision-making
process as to their child. 20 U.S.C. § 1415(f)(3)(E)(ii). “In evaluating whether a procedural
defect has deprived a student of a FAPE, the court must consider the impact of the procedural
defect, and not merely the defect per se.” Weiss by Weiss v. School Board of Hillsborough
County, 141 F.3d 990, 994 (11th Cir. 1998).
Here, the court is unable to discern how the hearing officer reached his conclusion that
the Board’s failure to include an LEA representative with decisionmaking authority in the
resolution session denied JY a FAPE. He does not analyze this component of his finding.
(See Doc. # 36-1, pp. 45-49). His finding in this regard seems to assume, without an
evidentiary basis for doing so, that the due process complaint would have been settled at the
resolution session if a representative with decisionmaking authority had participated. While
it appears that Cunningham might have been inclined to resolve the complaint, if she had the
authority to do so, the evidence of record does not support a finding that the Board
necessarily (or even probably) would have chosen Cunningham as its decisionmaking
representative. Neither is there evidence to support a conclusion that some other LEA
representative with decisionmaking authority would have agreed to a resolution at all. The
court does not here condone the Board’s failure to do what the law requires it to do, but it
finds evidence of causation lacking. In short, any conclusion about what would have
occurred had the Board sent a representative with decisionmaking authority to the resolution
session is speculative. In the absence of evidence of what would have resulted from a

26

properly-constituted resolution meeting, there is no basis for concluding that this procedural
violation caused a deprivation of educational benefits, impeded the JY’s right to a FAPE, or
significantly impeded his parents’ opportunity to participate in the FAPE decision-making
process. See 20 U.S.C. § 1415(f)(3)(E)(ii).24 Thus, the hearing officer’s finding that the
Board failed to comply with the IDEA’s requirements for the resolution meeting is supported
by the evidence and by the law, but his conclusion that this procedural violation denied JY
a FAPE is not.25 Accordingly, the court cannot agree with the hearing officer’s finding “D”
as to its FAPE conclusion. (Doc. # 36-1, pp. 51-52).
Conclusion
Except to the limited extent discussed immediately above, the Board has not met its
burden of persuading the court that the hearing officer’s findings, or the relief he ordered,26
are contrary to law or the preponderance of the evidence. Upon de novo review of the
record of the administrative proceedings, and giving due weight to the findings of the hearing

24

See also O.O. ex rel. Pabo v. District of Columbia, 573 F. Supp.2d 41, 48, 48 n. 5 (D.D.C.
2008)(finding no denial of FAPE in a case in which – even assuming no attendee had
decisionmaking authority – there was no indication that a complaint would have been successful if
the appropriate personnel had participated in the resolution meeting and the unproductive resolution
session did not impact the due process hearing timeline).
25

The IDEA does not leave complainants without a remedy for a procedural violation that
does not deny a child a FAPE. Even for such violations, a hearing officer may “order[] a local
educational agency to comply with procedural requirements under [§ 1415].” Id., §
1415(f)(3)(E)(iii). While the hearing officer’s final decision did not grant the Ys’ request for such
relief (see October 24, 2011 due process complaint, ¶ O), the Ys have not challenged that decision.
26

While the court here disagrees with the hearing officer’s FAPE conclusion as to the
resolution session, none of the relief he ordered appears to relate solely to the resolution session
finding.
27

officer, it is
ORDERED that the Board’s motion for judgment in its favor on the record or, in the
alternative, for summary judgment (Doc. # 43) is hereby GRANTED to the extent that the
court rejects the hearing officer’s finding that the Board’s procedural violation of the IDEA
as to the resolution session denied JY a FAPE, and DENIED in all other respects.
It is further
ORDERED that: (1) the court construes plaintiffs’ motion for summary judgment
(Doc. # 41), in part, to seek judgment in their favor as to the IDEA claim on the
administrative record; and (2) the motion is GRANTED, except to the extent that the hearing
officer found that the Board’s violation of the IDEA’s resolution session denied JY a FAPE.27
The court will enter judgment on the record as to the IDEA claim accordingly, and
this claim will not proceed to trial.
DONE, this 31st day of March, 2014.

/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE

27

The court will address the remainder of plaintiffs’ motion for partial summary judgment
(Doc. # 41) by separate order.
28

29