K.I. et al v. Montgomery Public Schools
MEMORANDUM OPINION AND ORDER directing that: (1) the plaintiffs' 81 MOTION reversal of administrative decision is GRANTED in part and DENIED in part, consistent with this memorandum opinion; (2) the plaintiffs' 83 MOTION for Partial Sum mary Judgment is DENIED; (3) the defendant's 79 MOTION for Summary Judgment is GRANTED; (4) the plaintiffs' request for permanent injunction is GRANTED in part and DENIED in part as set out in this memorandum opinion; (5) the plaintiffs' request for declaratory relief is DENIED as set out in this memorandum opinion. Signed by Honorable Judge Mark E. Fuller on 8/24/11. (Attachments: # 1 civil appeals checklist)(djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
K.I., by and through her mother and next
friend, JENNIE I., and JENNIE I.,
MONTGOMERY PUBLIC SCHOOLS,
CASE NO. 2:06-cv-905-MEF
MEMORANDUM OPINION AND ORDER
K.I., a child afflicted with arthrogryposis, and Jennie I., K.I.’s mother, (collectively
“the Plaintiffs”) seek review of an unfavorable administrative decision under the Individuals
with Disabilities Education Act (“IDEA”) and bring claims pursuant to Section 504 of the
Rehabilitation Act, 29 U.S.C. § 749 for education in the least restrictive environment. This
cause is before the Court on dispositive motions from the Plaintiffs (Docs. # 81, 83) and the
Defendant Montgomery Public Schools (“MPS”) (Doc. # 79). The Court has carefully
considered all submissions from the parties and the applicable law. For the reasons that
follow, the Court finds that the Defendant’s motion (Doc. # 79) is due to be GRANTED in
part and DENIED in part. The Plaintiffs’ motion for partial summary judgment on their §
504 claims (Doc. # 83) are due to be DENIED. The Plaintiffs’ motion for reversal of
administrative decision (Doc. # 81) is due to be GRANTED in part and DENIED in part.
A. K.I.’s disability
K.I. suffers from a rare congenital condition called arthrogryposis. Arthrogryposis
is characterized by multiple joint contractures, muscle weakness, and fibrosis. Typically,
arthrogryposis is a non-progressive disease but cannot be reversed.
therapy and in some cases surgical intervention have been shown to improve quality of life.
K.I. also suffers from a rare form of Muscular Dystrophy and Restricted Lung Disorder.
In K.I.’s case, arthrogryposis causes extensive joint stiffness and significantly limits
her range of motion. The condition prevents K.I. from speaking,1 raising her arms, or eating
by mouth.2 K.I. is able to move her head, can move her arms if they are low, and can use her
hands while wearing custom splints. K.I. is wheel-chair bound, and must wear a diaper or
Arthrogryposis is treated with extensive physical and
occupational therapy. Because K.I. is unable to cough, she is prone to developing respiratory
infections and pneumonia. K.I.’s airways must be periodically suctioned to prevent these
respiratory problems from occurring.
B. K.I.’s attendance at the Children’s Center
From the time she was in pre-school until November 15, 2004, K.I. was educated at
the Children’s Center, a self-contained school for children who require specialized medical
K.I. could speak until the age of two.
Since the age of four, K.I. has used a gastronomy tube.
care. Approximately one hundred students attend the Children’s Center. In addition to
specially trained teachers, the Children’s Center employs five nurses. The presence of these
nurses is important for K.I.’s care, because pursuant to regulations of the Alabama Board of
Nursing, invasive procedures cannot be delegated to unlicensed personnel in the school
setting. K.I. requires feeding through a gastronomy tube and suctioning, both of which are
classified as invasive procedures. Accordingly, K.I. requires almost constant nursing care.
There are approximately 175 days in each school year. Each year that she attended
school at the Children’s Center, K.I. missed a significant number of school days due to
illness or surgery. Each year between 2000 and 2004, K.I. missed one hundred or more
school days. Between August 2004 and her last day at the Children’s Center in midNovember 2004, K.I. only attended twenty days of school. At that time, Jennie I. became
concerned that poor hygiene practices at the Children’s Center were causing K.I. to become
sick, so she removed K.I. from school.
MPS offered to provide K.I. with homebound services in 2000 and in 2001, but her
parents refused to accept these services until 2005.3 At the time this lawsuit was filed, K.I.
The Plaintiffs dispute whether or not MPS offered homebound services at all
before 2005. Evidence demonstrates that if MPS offered homebound services prior to
2005, MPS did not make the offer in writing. The due process hearing officer found,
based on testimony from MPS’s witnesses, that MPS had in fact made an oral offer of
homebound services. There is evidence in the record to support this finding, and
accordingly this Court will give it due deference.
was homebound and receiving weekly in-home services from a special education teacher, a
speech therapist, and a physical therapist. K.I.’s parents request that she be “mainstreamed”
so that she can attend school with children who are not disabled. K.I. attended four days at
a three-week summer program at a mainstream, neighborhood school during the summer of
2005 without incident.
C. K.I. is evaluated by Dr. Laura Vogel
In the summer of 2005, K.I.’s parents asked Dr. Laura Vogel, an occupational therapy
expert, to evaluate K.I.4 This is the first true occupational therapy evaluation ever conducted
on K.I. According to the record, an occupational therapy assessment was done at the
Children’s Center in 2000, but the Plaintiffs assert that the assessor never worked with K.I.
one-on-one. Instead, they say the report was based on anecdotal evidence.
Dr. Vogel’s report emphasizes the need to utilize switches and other assistive
technology to increase K.I.’s communications skills.
Dr. Vogel also focused on the
importance of exposing K.I. to non-disabled children, either through the use of a peer helper
or in an integrated classroom.
D. K.I. requests an administrative hearing
In April of 2005, the Plaintiffs requested an administrative hearing with the Alabama
Department of Education. In this request, Jennie I. alleged that MPS had failed to provide
K.I. with a free appropriate public education (“FAPE”) in the least restrictive environment
During the due process hearing, the parties agreed that MPS would reimburse
K.I.’s parents for the cost of this evaluation.
as required by the IDEA. Specifically, Jennie I. claimed: (a) that MPS had failed or refused
to assure K.I. comprehensive and timely evaluations, including in the areas of her cognitive
ability, self-help skills, and assistive technology; (b) that K.I.’s program at the Children’s
Center is too segregated and restrictive; (c) that MPS failed to offer appropriate assistive
technology devices, including an augmentative communication device; (d) that MPS failed
to provide K.I. with any academic services, as well as any program to allow the development
of self-care skills; and (e) that MPS failed to provide K.I. with a homebound program when
she could not attend school.
Jennie I. was dissatisfied with K.I.’s individualized education plan (“IEP”) for several
reasons. She was concerned that the plans beginning in 2002 included goals that either K.I.
could never accomplish or tasks that K.I. could already accomplish.5 Jennie I. was also
concerned by the lack of what she called “academic goals” and the fact that the plans were
not based on expert evaluations. According to her mother, K.I.’s classroom was not
sufficiently outfitted to accommodate her wheelchair. For example, K.I. had to be placed
sideways at the table because her wheelchair would not fit underneath the table.
Dr. Joseph Morton, the State Superintendent of Education, appointed Michael P. Cole
(“Cole” or “the hearing officer”) to serve as hearing officer for the due process hearing. Cole
conducted the due process hearing over a period of eleven days ending in May 8, 2006. On
Several of K.I.’s goals were related to eye gazing, which Jennie I. contends K.I.
could already do. Conversely, other of K.I.’s goals delt with rolling, which Jennie I.
contends K.I. will never be able to accomplish, due to her disability.
August 31, 2006, Cole issued a decision in which he determined that MPS had provided K.I.
with a FAPE in the least restrictive environment, namely the Children’s Center. Cole also
determined MPS had not committed any procedural violations of the IDEA. Accordingly,
K.I. and Jennie I. did not succeed on any of their claims in the due process hearing.
E. Procedural history
On October 6, 2006, the Plaintiffs filed this action, pursuant to 20 U.S.C. § 1415,
seeking a reversal of the hearing officer’s administrative decision, and brining claims under
§ 504 of the Rehabilitation Act. Later, Plaintiffs sought and received leave to amend the
complaint. (Doc. # 63). The Amended Complaint seeks the following relief:
(1) Reversal of the hearing officer’s decision;
(2) A declaration that the defendant’s education and due process practices, polices,
procedures, and conditions are violative of plaintiffs’ rights as secured under § 504
of the Rehabilitation Act and IDEA;
(3) A permanent injunction enjoining the defendants, their agents, successors,
employees, attorneys, and those action in concert with the defendants, from
continuing to violate plaintiffs’ rights under § 504 of the Rehabilitation Act and the
IDEA 6 ;
(4) All relief requested in the due process hearing, including compensatory damages
Plaintiffs indicated that the Court need not consider their request for a
preliminary injunction unless and until they filed a motion and supporting brief regarding
such relief. (Doc. # 27).
under § 504 of the Rehabilitation Act;
(5) Compensatory education and/or the educational services K.I. would have received
absent the defendant’s unlawful conduct;
(6) A declaration that the Plaintiffs are the prevailing party; and
(7) An award of attorneys’ fees and costs.
The parties have jointly submitted the lengthy record from the administrative hearing.
The matter is now before the Court on cross motions. MPS contends that Cole’s decision is
due to be affirmed and that it is entitled to summary judgment on the § 504 of the
Rehabilitation Act. (Doc. # 79). Plaintiffs argue that Cole’s decision is erroneous (Doc. #
81) and that they are entitled to summary judgment on their § 504 claim. (Doc. # 83).
Specifically, the Plaintiffs argue (1) that Cole incorrectly determined that MPS had
offered K.I. a FAPE as required by the IDEA, (2) that Cole incorrectly determined that MPS
had provided K.I. with an education in the least restrictive environment, as required by the
IDEA, and (3) that MPS should have offered K.I. homebound services when K.I. was unable
to attend school. Plaintiffs also argue that they are entitled to damages under § 504 because
MPS failed to educate K.I. in the least restrictive environment.
A. Overview of the IDEA
The purpose of IDEA is “to ensure that all children with disabilities have available
to them a free appropriate public education.” 20 U.S.C. § 1400(d)(1)(A).7 Each state that
receives federal funding for education must abide by the requirements of the IDEA. 20
U.S.C. § 1412(a)(1)(A). A FAPE, as defined by the IDEA, includes “special education and
related services” which range from motor skill training to speech-language pathology
services. 34 C.F.R. § 300.39. To ensure that each disabled child is receiving a FAPE, school
districts must create an IEP for each student. 20 U.S.C.§ 1414(d).
The first step in creating an IEP is to evaluate the student to determine whether the
student has a disability and if so, the extent of the child’s educational needs. 34 C.F.R. §
300.301. “In conducting the evaluation, the public agency must use a variety of assessment
tools and strategies to gather relevant functional, developmental, and academic information
about the child, including information provided by the parent. . .” 34 C.F.R. § 300.304(b)(1).
The assessments should be conducted by “trained and knowledgeable personnel” and be
“sufficiently comprehensive to identify all of the child’s special education and related service
needs.” Id. at (c)(1)(iv) and (c)(6). The public school must reevaluate the child once every
year that a parent or teacher requests an evaluation, but at a minimum must evaluate the child
once every three years. 34 C.F.R. § 300.303.
A FAPE includes “special education and related services which (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 or secondary school education in the State involved, and (D) are
provided in conformity with the individualized education program required under §
1414(d) of this Title.” 20 U.S.C. § 1401(9).
1. Development of an IEP
Next the school must develop an IEP for the disabled student. The plan must comply
with all of the IDEA’s procedural requirements and must be “reasonably calculated to enable
the child to receive educational benefits.” Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275,
1280 (11th Cir. 2008). The plan need not provide the child with the best possible education.
Loren F. ex rel. Fisher v. Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1312 n.1 (11th Cir. 2003)
(internal quotation marks omitted). Rather, the school need only provide an education that
“is specifically designed to meet the child’s unique needs, supported by services that will
permit [her] to benefit from the instruction.” Id. (quoting Pace v. Bogalusa City Schl. Bd.,
325 F.3d 609, 618–19 (5th Cir. 2003)). In other words, the school must provide the child
with an educational benefit, representing the “basic floor of opportunity.” CP v. Leon Cnty.
Sch. Bd. Fla., 483 F.3d 1151, 1153 (11th Cir. 2007) (internal quotation marks omitted).
The IEP must take the form of a written statement that includes: (1) a statement of the
child’s present levels of academic and functional performance; (2) a statement of measurable
and annual goals; (3) a statement of how those goals will be measured; (4) a statement of the
special education and related services to be provided; and (5) an explanation of the extent to
which the child will not participate with non-disabled children in class. 34 C.F.R. § 300.320.
2. Education in the least restrictive environment
The IDEA requires that each school strive to educate disabled children “to the
maximum extent appropriate” “with children who are non-disabled.” 34 C.F.R. § 300.114.
A disabled child should only be placed in “special classes” or “separate schooling” “when
the nature or severity of the disability of a child is such that education in regular classes with
the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. §
3. Right to a due process hearing and appeal
If the disabled child’s parents develop a conflict with the entity providing educational
benefits to the disabled child, either the parents or the school can request a due process
hearing conducted in accordance with state law. The parties are entitled to an impartial
hearing officer, the advice of counsel, and the ability to present evidence and cross-examine
witnesses. 34 C.F.R. § 300.512. After hearing the evidence, the impartial hearing officer
must render a decision regarding whether or not the school district provided the child with
a FAPE as that term is used in the statute and corresponding regulations. 34 C.F.R. §
The IDEA gives any party aggrieved by the final decision rendered in a due process
hearing the right to bring a civil action in a federal district court. 20 U.S.C. § 1415(i)(2)(A).
When reviewing such a civil action, the court shall obtain the records of the administrative
due process hearing, shall render a decision “on the preponderance of the evidence [and]
shall grant such relief as the court determines is appropriate.” Id. § 1415(i)(2)(C).
A court reviewing an administrative decision under the IDEA asks only two questions:
(1) whether the school complied with the IDEA’s procedural requirements, and (2) whether
the IEP developed for the student is “reasonably calculated to enable the student to receive
educational benefits.” Loren F., 349 F.3d at 1312. “A ‘yes’ answer to both questions ends
A procedural defect in the development of an IEP does not
automatically entitled a party to relief. Sch. Bd. of Lee Cnty., Fla. v. M.M., 348 Fed. App’x
504, 510 (11th Cir. 2009). “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.” Id.
B. Standard of review of an administrative due process decision
The standard by which a district court should review an administrative decision under
the IDEA is a murky one. On the one hand, the district court is to conduct a de novo review
of the [administrative law judge’s] findings. Sch. Bd. of Collier Cnty., Fla. v. K.C., 285 F.3d
977, 981 (11th Cir. 2002). The Eleventh Circuit has explained that “the extent of the
deference to be given to the administrative decision is left to the sound discretion of the
district court which must consider the administrative findings but is free to accept or reject
them.” Walker Cnty. Sch. Dist. v. Bennett, 203 F.3d 1293, 1297–98 (11th Cir. 2000).
However, an administrative decision “is entitled to due weight and the court must be careful
not to substitute its judgment” for that of the hearing officer. Id. Some courts have
suggested that an administrative decision is entitled to more weight when matters of
educational expertise are involved. See Loren F., 349 F.3d at 1312 n.1. Whatever the
applicable standard of review, the district court must render its decision based on the
preponderance of the evidence. 20 U.S.C. § 1415(i).
C. Dispositive motion standard in an IDEA case
This case is before the Court on dispositive motions filed by both parties. In an IDEA
case, the traditional rules of summary judgment, as embodied in Federal Rule of Civil
Procedure 56, do not apply. Loren F., 349 F.3d at 1313. Because it is proper to grant a
dispositive motion in an IDEA case even when there are disputed facts, the Eleventh Circuit
has characterized the district court’s decision as a “judgment on the record.” Id.
D. Overview of § 504 of the Rehabilitation Act
Section 504 of the Rehabilitation Act provides that:
No otherwise qualified handicapped individual in the United States . . . shall,
solely by reason of his handicap, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance. . . .
29 U.S.C. § 794. In order to sustain a claim for compensatory damages under § 504, a
Plaintiff must demonstrate that the defendants actions were the result of intentional
discrimination. Wood v. President & Trs. of Spring Hill Coll., 978 F.2d 1214, 1219 (11th
Cir. 1992). The Eleventh Circuit has yet to conclusively define “intentional discrimination”
in the § 504 special education context. See T.W. ex rel. Wilson v. Sch. Bd. of Seminole Cnty.,
Fla., 610 F.3d 588, 604 (11th Cir. 2010) (leaving open the question of whether to apply a
“deliberate indifference” standard or the more stringent “discriminatory animus” standard
in § 504 claims). The Circuit has indicated that either a deliberate indifference or a
discriminatory animus standard would apply. Id.
To show deliberate indifference, “a plaintiff must prove that the defendant knew that
harm to a federally protected right was substantially likely and that the defendant failed to
act on that likelihood.” T.W., 610 F.3d at 604 (finding no deliberate indifference on the part
of a school that placed student with an abusive teacher because the school “investigated all
complaints of abuse,” and “were unable to substantiate the complaints”). “To make a claim
under section 504 in the education context, something more than an IDEA violation for
failure to provide a FAPE in the least restrictive environment must be shown. . . . A plaintiff
must also demonstrate some bad faith or gross misjudgment by the school or that he was
discriminated against solely because of his disability.” W.C. ex rel. Sue C. v. Cobb Cnty. Sch.
Dist., 407 F. Supp. 2d 1351, 1363–64 (N.D. Ga. 2005) (citing N.L. ex rel. Mrs. C. v. Knox
County Schs., 315 F.3d 688, 695 (6th Cir. 2003)).
E. Dispositive motion standard applicable to the § 504 claims
Summary judgment pursuant to Federal Rule of Civil Procedure 56(a) is appropriate
“if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” A party may demonstrate the existence of or
absence of a genuine dispute as to any material fact by pointing to materials in the record
“including depositions, documents, electronically stored information, affidavits, or
declarations, stipulations . . . admissions, interrogatory answers, or other materials.” Fed. R.
Civ. P. 56(c). The movant “always bears the initial responsibility of informing the district
court of the basis for its motion,” and identifying those evidentiary submissions “which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The movant can meet this burden by presenting evidence
showing there is no dispute of material fact, or by showing the non-moving party has failed
to present evidence in support of some element of its case on which it bears the ultimate
burden of proof. Id. at 322-23.
Once the moving party has met its burden, Rule 56 “requires the nonmoving party to
go beyond the pleadings” and by its own evidentiary submissions or those on file,
demonstrate that there is a genuine factual dispute for trial. Id. at 324. The Court must draw
all justifiable inferences from the evidence in the non-moving party's favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). After the nonmoving party has responded to
the motion for summary judgment, the court must grant summary judgment if there is no
genuine dispute of material fact and the moving party is entitled to judgment as a matter of
law. See Fed. R. Civ. P. 56(a).
The Plaintiffs state the following grounds for relief from the adverse administrative
(1) MPS failed to evaluate K.I., which in turn deprived her of a FAPE;
(2) MPS poorly designed an IEP for K.I., and accordingly deprived her of a FAPE
(a) K.I. did not have access to assistive technology, and
(b) K.I.’s progress was de minimus;
(3) MPS did not educate K.I. in the least restrictive environment;
(4) MPS deprived K.I. of a FAPE by failing to offer homebound services during K.I.’s
absence from school.
A. MPS’s failure to evaluate K.I.
The Plaintiffs argue that MPS violated the procedural requirement of the IDEA by
failing to properly evaluate K.I. before developing her IEP. As the Plaintiffs point out, there
is no evidence that a cognitive evaluation was ever done for K.I. Accordingly, MPS has no
idea whether K.I. is operating in the normal intelligence range. Additionally, there is no
evidence that MPS sufficiently evaluated K.I. regarding assistive technology. Because K.I.’s
teacher at the Children’s Center was not an expert in assistive technology, she was unable
to properly design a switch/switch mount combination suitable for K.I.
Until 2005, no one-on-one occupational therapy evaluation was performed on K.I.
At the time of the due process hearing, Dr. Vogel had evaluated K.I., and MPS had offered
to pay for this evaluation. Without a cognitive or assistive technology assessment, MPS is
unable to design suitable goals for K.I. And without the ability to design goals, they are
unable to develop an adequate IEP.
This Court finds that MPS did not conduct a comprehensive evaluation of K.I. as
required by the IDEA. Federal Regulations require that MPS ensure that “[i]n evaluating
each child with a disability. . . the evaluation is sufficiently comprehensive to identify all of
the child’s special education and related services needs, whether or not commonly linked to
the disability category in which the child had been classified.” 34 C.F.R. § 300.304(c)(6).
The regulations specifically suggest that a disabled child be assessed “in all areas related to
the suspected disability,” including “general intelligence,” “communicative status,” and
A school district need not evaluate a child in every conceivable area in order to
comply with the IDEA. See, e.g., M.M. ex rel. Matthews v. Gov’t of D.C., 607 F. Supp. 2d
168, 173 (D.D.C. 2009) (finding that a school district did not violate the IDEA by choosing
not perform a psychiatric evaluation when a psycho-educational evaluation indicated that a
psychiatric evaluation was not immediately necessary). However, the record before this
Court demonstrates that at the very least, MPS failed to perform either a cognitive evaluation
or an assistive technology evaluation of K.I. Without performing those evaluations, MPS
was unable to assess K.I.’s general intelligence, communicative status, or academic
performance as required by the statute. The record reflects that no one—neither MPS nor
K.I.’s parents—actually knows what level of cognitive function K.I. possesses. The record
also reflects that until K.I. is able to communicate using a switch or other assistive
technology, it will be extremely difficult to determine her level of cognition. Therefore, at
a minimum, both cognitive and assistive technology assessments are necessary for the
development of appropriate educational goals.
MPS’s failure to properly evaluate K.I. is a procedural violation of the IDEA. See
N.B. ex rel. C.B. v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1208 (9th Cir. 2008)
(“We conclude that [the school’s] failure to meet its obligation to evaluate C.B. in all areas
of suspected disability, including whether he is autistic, was a procedural error that denied
C.B. a FAPE.”). A procedural violation of the IDEA does not automatically result in the
denial of a FAPE.
Sch. Bd. of Lee Cnty., Fla., 348 Fed. App’x at 510. However, in this
case, MPS’s failure to evaluate K.I. corresponded to a failure to develop and adequate IEP.
Without being able to develop appropriate educational goals for K.I., MPS was also unable
to provide her with a FAPE.
Based on this finding, the Court must disagree with hearing officer Cole’s decision
to the contrary. The Court was careful to give due deference to Cole’s overall conclusions.
However, Cole does not make an explicit determination about whether MPS adequately
evaluated K.I. Therefore, the Court is unable to give his decision any deference at all with
regard to whether or not MPS properly evaluated K.I.
B. MPS did not appropriately design K.I.’s IEP
As discussed above, the Court finds that MPS failed to properly evaluate K.I. Without
any idea what K.I.’s intellectual functioning may be, it is impossible to determine reasonable
academic goals for her. Therefore, the Court cannot find that MPS appropriately designed
The Plaintiffs argue that K.I.’s IEP failed to provide a FAPE both because the IEP did
not include the use of assistive technology and because any educational benefit K.I. received
was de minimus. The Court notes that this opinion neither accepts nor rejects those
arguments. The finding that MPS failed to provide K.I. a FAPE is based only on the Court’s
conclusion that MPS failed to evaluate K.I.
Without any baseline regarding K.I.’s
achievement, MPS could not write a “statement of measurable annual goals, including
academic” goals that accurately reflect K.I.’s potential and current level of academic
achievement. If, after further evaluation, it is determined that K.I.’s academic potential is
minimal, perhaps the IEP in place at the time of the administrative hearing would provide a
FAPE from which K.I. could benefit.
At this juncture, it is worthwhile to catalog all of the different services that Jennie I.
requests, without which she claims K.I. cannot receive a FAPE. Jennie I. requests that K.I.
be educated at her neighborhood school, in mainstream education classes. The neighborhood
school would need to provide K.I. nursing services, and only one registered nurse works at
that location.8 Jennie I. wants to ensure that her child has contact with non-disabled children.
When K.I. is unable to attend mainstream classes, either during long stretches of absence due
to surgery or during unexpected absences due to illness, Jennie I. wants MPS to provide
homebound services for K.I.9
As will be discussed below, the Court must also consider the needs of the nondisabled children educated by MPS when analyzing whether a disabled student has been
properly mainstreamed. If the sole nurse employed at a mainstream facility must spend
time feeding and suctioning K.I., the non-disabled children located at that facility will
have significantly less access to the school nurse.
MPS claims that it had offered homebound services prior to 2005, but that K.I.’s
parents refused those services. Jennie I. now claims that MPS should have requested a
Jennie I. wants MPS to provide an occupational therapist who can fit K.I. with new
hand splints. It is unclear whether or not Jennie I. is also requesting that MPS construct
and/or provide those splints. Jennie I. would like MPS to provide more speech and language
therapy, including the “extensive use of technology, including switches and battery adaptive
toys.” (Doc. # 82 at 25). Jennie I. also requests that MPS perform an assistive technology
evaluation which requires “exhaustive data collection” including an analysis of K.I.’s
physical abilities, range of motion, and fatigue level. This data should include information
regarding the best time of day to use the switch, K.I.’s positioning, any distractions in the
room, and the activity in which K.I. is asked to participate.
Jennie I. proposes that MPS provide multiple switches, attached to multiple kinds of
mounts secured to a place close to K.I.’s body. Said switches and mounts would need to be
mobile so that they could travel with K.I. (Doc. # 82 at 51). Jennie I. would prefer that K.I.
have her own switches so that she does not have to wait to communicate until other students
are finished. (Doc. # 82 at 46–47). K.I.’s parents would also need training in order to learn
to communicate with K.I. using switches. More broadly, Jennie I. asks that the district
implement all of the suggestions made by Dr. Denise Gibbs, a speech and language
specialist, and Dr. Laura Vogel, an occupational therapist.
due process hearing to force K.I.’s parents into accepting those homebound services.
“Parental involvement in the handicapped child’s education is the purpose of many of the
IDEA’s procedural requirements.” Loren F., 349 F.3d at 1313 n.2. It is this Court’s
opinion that forcing K.I.’s parents to accept homebound services would not serve the
spirit of the IDEA, especially when K.I.’s parents are so genuinely interested in her care.
Jennie I. laments the fact that K.I.’s teacher had never worked with a child with
arthrogryposis and did not have a medical background.10
Jennie I. also expressed
dissatisfaction with the hygiene protocols used by the Children’s Center, as she believed that
poor hygiene there was causing K.I. to become sick too often. Jennie I. believed that when
K.I. was around non-disabled children, she did not get sick as often. Jennie I. was also upset
with the amount of down-time K.I. experienced while at the Children’s Center. Jennie I. also
points out that the Children’s Center was not appropriately equipped for K.I. Specifically,
the classroom does not have a table under which K.I.’s wheelchair can fit, which makes it
more difficult for her to participate in group activities.
Jennie I. is dissatisfied with MPS’s consultive model of therapy. In a consultive
model, therapists consult with the student’s special education teacher about what specific
methods to employ. Jennie I. would prefer if these therapists meet individually with K.I.
instead, particularly with regard to speech and language therapy and occupational therapy.
Jennie I.’s desire to have the best for her daughter is admirable. However, this Court
is unwilling to say MPS must grant each request in order to provide K.I. with a FAPE. “The
IEP and the IEP’s educational outcome need not maximize the child’s education.” JSK v.
Hendry Cnty. School Bd., 941 F.2d 1563, 1573 (11th Cir. 1991). The adequacy of a FAPE
must be “determined on a case-by-case basis in the light of the child’s individual needs.” Id.
The Court notes that arthrogryposis is an extraordinarily rare disorder, and it
may not be possible to find a teacher in the state of Alabama who has previous experience
working with a child suffering from arthrogryposis.
The Court will not, and cannot, determine what MPS must provide K.I. in order to comply
with the provisions of the IDEA. Such a task would be impossible without data from K.I.’s
cognitive and assistive technology evaluations. However, the Plaintiffs shall keep in mind
that under no circumstances must MPS provide K.I. with “maximum improvement,” which
seems to be what Jennie I. is—understandably—seeking. Id. See also, Hearing Officer’s
Decision at 264 (“Petitioner’s experts related to maximizing the Child’s potential, which is
not required by the IDEA.”)
C. MPS did educate K.I. in the least restrictive environment
In Greer v. Rome City Sch. Dist., 950 F.2d 688 (11th Cir. 1991), the Eleventh Circuit
set forth a test for determining whether or not a school district has complied with the least
restrictive environment mandate of the IDEA. The Circuit withdrew the opinion, but then
reinstated the portions of the case relating to the least restrictive environment mandate. 956
F.2d 1025 (11th Cir. 1992); 967 F.2d 470 (11th Cir. 1992). The test set forth in Greer has
two parts. 950 F.2d at 696. First, the Court asks “whether education in the regular
classroom, with the use of supplemental aids and services, can be achieved satisfactorily.”
Id. Second, if the school intends to provide special education services outside of the regular
classroom, the Court must ask “whether the school has mainstreamed the child to the
maximum extent appropriate.” Id.
When deciding the first part of the test, i.e. whether or not the school can satisfactorily
educate the student in the regular classroom, the Court can consider factors such as (1) the
relative educational benefits the child would receive in the regular classroom versus a special
education classroom, (2) the effect that a handicapped child in a regular classroom would
have on other children in that classroom, and (3) the cost of the supplemental aids and
services that will be necessary to educate the child in a regular classroom. Id. at 696–97.
This analysis is “an individualized, fact-specific inquiry that requires us to examine carefully
the nature and severity of the child’s handicapping condition, [her] needs and abilities, and
the schools’ response to the child’s needs.” Id. at 696.
The Court must note at the outset of this analysis that because no one yet knows K.I.’s
cognitive capacity, it is difficult to determine the relative educational benefits she would
receive in the regular classroom versus the special education classroom. The Plaintiffs’
experts have indicated that K.I. would benefit from having non-disabled role models, and
there is no reason to suspect that K.I. would be negatively impacted by non-disabled children.
However, K.I.’s current curriculum is so drastically different from her peers’ that K.I. is not
likely to get much academic benefit from instruction in the regular classroom at this point.
The Plaintiffs have presented no evidence that merely using “supplemental aids and
services” would sufficiently adapt the regular classroom curriculum to a curriculum
appropriate for K.I.
When determining whether a child has been educated in her least restrictive
environment, the Court must also analyze whether the presence of the handicapped child in
the regular classroom would cause a disturbance to other children. There is no evidence to
suggest that K.I. would cause any kind of behavioral disruption in the classroom, and she
certainly doesn’t pose a danger to any of the other children. In fact, her teachers all described
her as a sweet child who loves to smile and laugh. However, she requires two different
invasive procedures, feeding with a gastronomy tube and suctioning, that may disrupt the
classroom. The suctioning procedure has the most potential to disrupt the classroom, as it
is sometimes performed several times daily.
The Court also notes that it is unclear whether being in the regular classroom would
adversely affect K.I.’s health. Jennie I. had significant concerns about the hygiene at the
Children’s Center, and believed that those conditions caused K.I. to be sick more often. It
was the hearing officer’s opinion—after hearing all of the testimony and reviewing all of the
evidence—that any benefit K.I. would receive from interacting with non-disabled children
would be outweighed by the chance that exposure to so many children would cause her to
suffer more respiratory infections.11 More illnesses means that K.I. would spend more time
at home, and therefore even less time socializing and learning with other children.
All of these factors suggest that currently, K.I.’s least restrictive environment is the
Children’s Center, and that K.I. is mainstreamed to the maximum extent possible. However,
federal regulations provide that K.I.’s placement “must be determined annually.” 34 C.F.R.
300.116. Therefore, after K.I. is properly evaluated and a new IEP is created for her, MPS
The Court recognizes that the hearing officer was referring specifically to
Vaughn Road Elementary when he made his determination that K.I.’s least restrictive
environment was the Children’s Center. However, his rationale applies equally to other
can re-evaluate whether K.I. will receive any benefit from placement in a mainstream
D. MPS’s did not violate the IDEA by failing to offer homebound services
The Plaintiffs also argue that MPS violated the IDEA by failing to offer K.I.
homebound services before 2005. As discussed above, K.I. was absent more than half the
school year for several years in a row. The Plaintiffs suggest that MPS’s failure to provide
homebound services during those periods of absence is a violation of the IDEA. The hearing
officer determined that MPS had orally offered homebound services prior to 2005, beginning
in 2000. However, until April 2005, K.I.’s parents refused to consider homebound services.
There is no dispute that as of 2005, MPS was providing K.I. with homebound services. In
fact, K.I. was no longer attending the Children’s Center, and therefore was receiving only
The Court notes that while some of K.I.’s absences were due to planned surgeries,
other absences were unplanned, and due to illness. Therefore, it was impossible to predict
at the beginning of each school year just how many days K.I. would miss due to her
disability. The evidence also demonstrates that the relationship between Jennie I. and MPS
was quickly deteriorating. When the school made the decision not to force homebound
services on K.I., it likely did so in order to preserve the little remaining goodwill with Jennie
The Plaintiffs claim that because any offer for homebound services prior to 2005 was
made orally, such an offer was not sufficient to satisfy the IDEA’s requirement that anything
affecting the student’s placement be included in the written IEP. The Court finds that the
failure to make a written offer as opposed to an oral offer was a procedural violation of the
IDEA. However, that procedural violation does not rise to such a level that it denied K.I. of
a FAPE, and accordingly is not actionable.
E. Claim brought pursuant to § 504
The Plaintiffs also bring a claim for damages pursuant to § 504 of the Rehabilitation
Act. As discussed above, the Plaintiffs must demonstrate at a minimum that MPS acted with
bad faith or gross misjudgment. As MPS has moved for summary judgment on this claim,
the Plaintiffs bear the burden of presenting facts that create a genuine issue of material fact
which would necessitate a trial. In their response to MPS’s motion for summary judgment,
the Plaintiffs present the following facts to demonstrate that MPS acted with bad faith or
(1) MPS failed to have a continuum of alternative placements available for
(2) MPS made its decision regarding K.I.’s placement without consulting a
(3) MPS relied on “speculation about K.I.’s health and stereotypes about her
potential to justify placing her in a segregated facility”;
(4) An employee of MPS admitted that MPS’s placement of K.I. in the
Children’s Center was based on a “backward” application of the IDEA; and
(5) MPS failed to evaluate K.I. before placing her in the Children’s Center.
The Plaintiffs’ entire § 504 claim is based on the contention that MPS violated K.I.’s
rights by placing her in the Children’s Center. This Court has found that MPS did not violate
the IDEA by placing K.I. in the Children’s Center. Since a plaintiff must demonstrate more
than a violation of the IDEA in order to recover under § 504, it is virtually impossible to
establish a violation of § 504 if the school district has complied with the IDEA. See Doe v.
Arlington Cnty. School Bd., 41 F. Supp. 2d 599, 609 (E.D. Va. 1999) (“[I]t would be legally
untenable to conclude that, in providing for the plaintiff's education, in a manner that fully
complies with the IDEA, the district officials nevertheless, acted in bad faith, or with gross
misjudgment.”); H. v. Montgomery Cnty. Bd. of Educ., — F. Supp. 2d —, 2011 WL 1811689
at *13 (M.D. Ala. May 12, 2011) (Albritton, J.) (explaining the origins of the proposition that
“§ 504 claims necessarily require more than IDEA violations”). Accordingly, the Plaintiffs’
Motion for Summary Judgment is due to be denied on these claims, and MPS’s motion for
Summary Judgment is due to be granted.
F. The Plaintiffs’ requests for relief
The Plaintiffs include in their complaint a request for reasonable attorneys’ fees
pursuant to 20 U.S.C. § 1415(i)(3)(B). The statute provides that “[i]n any action of
proceeding brought under this section, the court, in its discretion, may award reasonable
attorneys’ fees as part of the costs to a prevailing party. A separate order will be entered
regarding this claim for attorneys fees. The separate order will also pertain to the Plaintffs’
request that they be declared the prevailing party in this action and request for compensatory
The Plaintiffs also request a declaration that MPS’s practices, policies, procedures,
and conditions violated K.I.’s rights. The Court will include a declaration in the final
judgment that MPS violated K.I.’s right to a FAPE by failing to comprehensively evaluate
her and develop an adequate IEP. The Plaintiffs’ request for declaratory relief is due to
DENIED in all other respects.
The Plaintiffs also request a permanent injunction enjoining MPS from continuing to
violate K.I.’s rights under the IDEA and § 504. This request is due to be DENIED, but the
Court will order MPS to re-evaluate K.I. and develop a new IEP for her in a manner
consistent with this memorandum opinion and order.
It is hereby ORDERED that:
1. The Plaintiffs’ Motion for Reversal of Administrative Decision (Doc. # 81) is
GRANTED in part and DENIED in part, consistent with this memorandum opinion;
2. The Plaintiffs’ Motion for Partial Summary Judgment (Doc. # 83) is DENIED.
3. The Defendant’s Motion for Summary Judgment (Doc. # 79) is GRANTED.
4. The Plaintiffs’ request for permanent injunction is GRANTED in part and
DENIED in part as set out in this memorandum opinion.
The Plaintiffs’ request for declaratory relief is DENIED as set out in this
Done this the 24th day of August, 2011.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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