DeKalb County Board of Education v. DM

Filing 53

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 6/16/2015. (JLC)

FILED
2015 Jun-16 PM 02:39
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
DEKALB COUNTY BOARD OF
EDUCATION,
Plaintiff,
v.
DENITA MANIFOLD, as
Parent/Guardian of A.M., a minor,
Defendant.

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) Case No.: 4:13-CV-901-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION
This case is an appeal by plaintiff DeKalb County Board of Education (“the

Board”) of an administrative due process hearing decision under the Individuals with
Disabilities Education Act1 (“IDEA”). (Doc. 1 at 1). In that decision, issued on March
19, 2012, Due Process Hearing Officer Steve Morton, Jr. (“hearing officer”) found in
favor of plaintiff Denita Manifold (“D.M.”) on several claims brought as guardian of
A.M., a minor, against the Board. (See Doc. 11-1 at 89).
The case is now before the court on cross-motions for summary judgment by
D.M. (doc. 47) and the Board (doc. 48). Each party has filed a response (doc. 49, 50)

1

. 20 U.S.C. § 1400, et. seq.

to the other’s motion for summary judgment and a brief (doc. 51, 52) replying to the
other’s response. Having considered the motions, briefs, and administrative record,
the court concludes that summary judgment is due to be granted in favor of defendant
D.M.2
II.

APPLICABLE LAW
A.

The IDEA

The statutorily defined purposes of IDEA are:
(1)
(A) to ensure that all children with disabilities have available to
them a free appropriate public education that emphasizes special
education and related services designed to meet their unique needs
and prepare them for further education, employment, and
independent living;
(B) to ensure that the rights of children with disabilities and
parents of such children are protected; and
(C) to assist States, localities, educational service agencies, and
Federal agencies to provide for the education of all children with
disabilities;
(2) to assist States in the implementation of a statewide, comprehensive,
coordinated, multidisciplinary, interagency system of early intervention
services for infants and toddlers with disabilities and their families;
(3) to ensure that educators and parents have the necessary tools to
improve educational results for children with disabilities by supporting

2

The case was reassigned to the undersigned on October 7, 2014, due to the prior judge’s
taking inactive senior status. (See, Order, Doc. 35).
2

system improvement activities; coordinated research and personnel
preparation; coordinated technical assistance, dissemination, and
support; and technology development and media services; and
(4) to assess, and ensure the effectiveness of, efforts to educate children
with disabilities.
20 U.S.C. § 1400(d) (emphasis supplied). See also Cory D. ex rel. Diane D. v. Burke
County School District, 285 F.3d 1294, 1298 (11th Cir. 2002) (“The fundamental
objective of the IDEA is to empower disabled children to reach their fullest potential
by providing a free education tailored to meet their individual needs.”).
A “child with a disability” is a child —
(I) with intellectual disabilities, hearing impairments (including
deafness), speech or language impairments, visual impairments
(including blindness), serious emotional disturbance (referred to in this
chapter as “emotional disturbance”), orthopedic impairments, autism,
traumatic brain injury, other health impairments, or specific learning
disabilities; and
(ii) who, by reason thereof, needs special education and related services.
20 U.S.C. § 1401(3)(A). Every child with a disability is guaranteed a “free appropriate
public education” (FAPE), which means
special education and related services that —
(A) have been provided at public expense, under public
supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or
3

secondary school education in the State involved; and
(D) are provided in conformity with the individualized education
program required under section 1414(d) of this title.
20 U.S.C. § 1401(9).
“Special education” is defined as “specially designed instruction, at no cost to
parents, to meet the unique needs of a child with a disability, including — (A)
instruction conducted in the classroom, in the home, in hospitals and institutions, and
in other settings; and (B) instruction in physical education.” 20 U.S.C. § 1401(29).
“Related services” include:
transportation, and such developmental, corrective, and other supportive
services (including speech-language pathology and audiology services,
interpreting services, psychological services, physical and occupational
therapy, recreation, including therapeutic recreation, social work
services, school nurse services designed to enable a child with a
disability to receive a free appropriate public education as described in
the individualized education program of the child, counseling services,
including rehabilitation counseling, orientation and mobility services,
and medical services, except that such medical services shall be for
diagnostic and evaluation purposes only) as may be required to assist a
child with a disability to benefit from special education, and includes the
early identification and assessment of disabling conditions in children.
20 U.S.C. § 1401(26). Each disabled student receiving special education and related
services receives an “Individualized Education Program” (IEP), which is “a written
statement for each child with a disability that is developed, reviewed, and revised in
accordance with section 1414(d)” of IDEA. 20 U.S.C. § 1401(14).
4

B.

Administrative And Judicial Review

Any party who has a complaint regarding a local education agency’s provision
of a FAPE to a disabled child may file a complaint with the local education agency
or state education agency, and that party will be entitled to an impartial
administrative due process hearing. See 20 U.S.C. §§ 1415(b)(6)(A) &
1415(f)(1)(A). “The burden of proof in an administrative hearing challenging an IEP
is properly placed upon the party seeking relief.” Schaffer ex rel. Schaffer v. Weast
546 U.S. 49, 62 (2005).
Any party aggrieved by the administrative decision of a due process hearing
officer may file a civil action in the nature of an appeal in a United States District
Court within 90 days. 20 U.S.C. § 1415(i)(2)(A) & (B). In such an action, the court—
(i) shall receive the records of the administrative proceedings;
(ii) shall hear additional evidence at the request of a party; and
(iii) basing its decision on the preponderance of the evidence, shall grant
such relief as the court determines is appropriate.
20 U.S.C. § 1415(i)(2)(C).
In considering the administrative record and any other evidence submitted, the
district court does not apply the usual Rule 56 summary judgment standards. Loren F.
ex rel. Fisher v. Atlanta Independent School System, 349 F.3d 1309, 1313 (11th Cir.
2003) (“[T]he usual F. R. Civ. P. 56 summary judgment principles do not apply in an
5

IDEA case.”). Instead,
“summary judgment [in IDEA cases] has been deemed appropriate even
when facts are in dispute, and is based on a preponderance of the
evidence.” Beth B. v. Van Clay, 282 F.3d 493, 496 n. 2 (7th Cir. 2002).That
is why the district court’s decision “is perhaps better described as judgment
on the record.” Id.; see also Slama v. Indep. Sch. Dist. No. 2580, 259 F.
Supp. 2d 880, 882 (D. Minn. 2003) (On motion for judgment on the record
in an IDEA suit, the district court “may make a decision on the merits, even
if there exist, upon the stipulated [r]ecord, disputed issues of material fact”)
(citation omitted).
Fisher, 349 F.3d at 1313 (alterations in original).
The Eleventh Circuit has summarized the appropriate standard for a district court’s
review of an administrative hearing officer’s IDEA decision as follows:
Whether an educational program provided an adequate education under the
Act “is a mixed question of law and fact subject to de novo review.” CP v.
Leon County Sch. Bd. Fla., 483 F.3d 1151, 1155 (11th Cir. 2007) (citing
Sch. Bd. v. K.C., 285 F.3d 977, 982-83 (11th Cir. 2002)). “Specific findings
of fact are reviewed for clear error.” Id. (citing K.C., 285 F.3d at 983). “To
the extent that this issue involves the interpretation of a federal statute, it
is a question of law which we review de novo.” Id. (citing Walker County
Sch. Dist. v. Bennett ex rel. Bennett, 203 F.3d 1293, 1295 (11th Cir. 2000)).
Draper v. Atlanta Independent School System, 518 F.3d 1275, 1284 (11th Cir. 2008).
Within that framework, the district court “has discretion to determine the level of
deference it will give to the ALJ’s findings.” CP, 483 F.3d at 1156 n.4 (citing K.C., 285
F.3d at 983).
If the district court finds a violation of IDEA, it also has “‘broad discretion’” to
fashion an appropriate remedy. Draper, 518 F.3d at 1284 (quoting School Committee of
6

Burlington v. Department of Education, 471 U.S. 359, 369 (1985)).
III.

DEFECTS IN THE PLAINTIFF’S MOTION
Before reaching the substance of the dispute, the court notes that the Board failed

to file any of the evidentiary materials cited in its motion for summary judgment along
with the motion. This violates the court’s order on January 7, 2015, which states the
following requirement for summary judgment motions,
The parties must file with the Clerk of Court, simultaneously with their
briefs, all evidentiary materials (e.g., affidavits, exhibits, depositions, or
other products of discovery) relied upon in support of or opposition to
summary judgment motions except those materials included in the moving
party’s initial evidentiary submission may be referenced by any party
opposing the motion.
(Doc. 43 at 7). The order also stated “Except for good cause shown, briefs and
evidentiary materials that do not conform to the following requirements may be
stricken.” (Id. at 2).3
Even more significantly, there are substantial deficiencies in the citations given
by the Board in its motion for summary judgment. The Board cites most often to the
administrative record (see, e.g., Doc. 48-1 at 1 ¶ 1 (citing to “AR 2679-2680")), which
it earlier filed with the court (Doc. 24). However, the motion also has repeated citations

3

The entire administrative record was filed into the record on April 15, 2014. (Doc. 24).
However, the administrative record is nearly 4,000 pages and subdivided into 57 documents.
(See Doc. 24-1 through 24-57). Therefore, the court does not consider this previous filing to be
an acceptable substitute that satisfies the requirement laid out in the January 7, 2015 order.
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to some other set of materials marked as “Tr.”4 It is not apparent to the court what “Tr.”
is or whether it has even been filed, making it impossible for the court to evaluate several
of the plaintiff’s claims. On account of its failure to comply with the court’s January 7,
2015, order, and repeated serious defects in its citation to evidence, the Board’s brief in
support of its motion for summary judgment5 is due to be STRUCK.6
IV.

STATEMENT OF MATERIAL FACTS7
A.

D.M.’s Due Process Complaints

D.M. filed a complaint for due process on August 18, 2011. She alleged that the
Board denied A.M. a free, appropriate public education (“FAPE”) under the IDEA.
Specifically, she contended that the Board had

4

(See, e.g., Doc. 48-1 at 10 ¶ 62 (citing to “Tr. 1467" as well as “AR 3760-3777), and at
17 (citing to “Tr. 2060")).
5

This applies only to the brief in support of the Board’s motion for summary judgment.
(Doc. 48-1). The court will still consider the Board’s response to D.M.’s motion for summary
judgment. (Doc. 50).
6

However, the court has reviewed the arguments in the Board’s motion and notes that
they address the same issues as D.M.’s motion for summary judgment, merely arguing for the
opposite conclusion. Therefore, striking the Board’s motion for summary judgment does not
result in any arguments in this case going unaddressed.
7

This statement of material facts is based upon the court’s review of the parties’ filings
and evidence. Contrary to its usual practice, the court will not address individual statements of
fact provided in the parties’ briefs, for several reasons. First, the plaintiff’s “statements of fact”
often are actually arguments or legal conclusions. (See, e.g., Doc. 48-1 at 4 ¶ 23, Doc. 50 at 15 ¶
74) . Second, the plaintiff’s “additional undisputed facts,” of which there are 78, repeat many
(but not all) of the statements verbatim from the plaintiff’s motion for summary judgment. (See,
e.g., Doc. 48-1 at 2 ¶ 9-13 and Doc. 50 at 6 ¶ 9-12).
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(1)

failed to develop and implement an IEP that complied with state and
federal law;

(2)

failed to consider A.M.'s guardian as an equal participant in the
development of A.M.'s educational program;

(3)

failed to provide A.M. with assistive devices to allow her to
communicate with teachers and peers;

(4)

failed to provide A.M. with an oral interpreter;

(5)

failed to implement the recommendations in the assistive technology
report dated June 29, 2011;

(6)

failed to equip A.M.'s school with a phone with close captioning for
A.M. to communicate with her parents and legal guardian if
necessary;

(7)

failed to provide A.M. with a safe environment free from bullying
and harassment;

(8)

failed to continue to provide A.M. with occupational therapy; and,

(9)

failed to understand the role of special education for children who
have disabilities and legal procedures required for its
implementation.

D.M. amended her due process complaint on July 26, 2012 to add as an additional
violation that the Board had not provided A.M. with computer-aided real time translation
(“CART”) or other similar speech-to-text technology in every class, between classes,
during assemblies, and/or during emergencies. She filed a second due process complaint
due to the Board’s failure to implement the April 10, 2012 assistive technology report.
That complaint was consolidated with the underlying due process complaint that serves
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as the basis of this appeal. A hearing was conducted over a period of twelve
non-consecutive days from November 15, 2011 through December 18, 2012. B

.

A.M.’s Difficulties In School
A.M. is enrolled in the DeKalb County School System. Dennis G. Pappas, Jr.,
M.D. diagnosed A.M. with progressive sensorineural hearing loss and a history of
chronic otitis media. She has been a patient of Dr. Pappas since she was three years old.
Dr. Pappas stated that A.M. “meets the legal definition of deafness” and that “she has
always demonstrated a profound sensorineural hearing loss, profound by definition.” At
an appointment on February 13, 2012, Dr. Pappa noted that A.M. had regressed in her
ability to discriminate speech. She had a forty percent understanding score with the use
of her hearing aids, meaning that she did not understand sixty percent of what was said.
A.M. relies on lip reading and facial expressions to communicate. If someone is
talking but not facing A.M., she cannot understand what is being said. It is difficult for
A.M. to determine what the teacher is saying and take notes at the same time.
Consequently, her handwriting is difficult to read. Due to frequent problems with her
hearing aids and the FM system in the classroom, she hears buzzing noises or beeping
sounds. When problems existed with her hearing aids, she tried to lip read. There was no
consistency in the operation of the FM system and the hearing aids: one day the FM
system and the hearing aids worked, the next day they did not. Carolyn Phillips
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(“Phillips”), an expert on assistive technology, testified that the FM system was not
working effectively in helping A.M.
A.M.'s audiologist, Kimberly Payne (“Payne”), believed that it is extremely tiring
for A.M. to lip read for long periods of time. In the classroom, it was next to impossible
for her to comprehend all the important information through aided hearing or lip reading.
A.M. testified that she spent three to five hours per night with her grandmother and legal
guardian, D.M., being retaught material that she was unable to learn at school due to her
hearing deficits. She had an extra set of books at home to use. If another student asked
a question in class, A.M. had no opportunity to understand the information unless that
student was sitting right next to her. Prior to filing the due process complaint, CART was
not being utilized in any of A.M.'s classes. A.M. believed that the CART system allowed
her to access classroom information and decreased the amount of time that her guardian
would have to spend re-teaching her.
A.M. also had trouble making friends at school because she could not
communicate with them effectively. The other kids did not like to repeat what they said
to her. She had overhead the teachers saying unpleasant things about her because they
forgot to cover their mouths when they talked about her or they left the FM operating.
The hearing officer noted, that during her testimony, her demeanor revealed intense
focus when listening or talking, showing a need for visual cues to properly engage in
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communication or to participate in a classroom setting.
Payne recommended that A.M. receive as much visual instruction as possible,
including closed-captioning in real-time in order for her to fully participate in her
education. Laura Parks (“Parks”), an expert with Technology Assistance for Special
Consumers (TASC), completed an evaluation at the request of the Board on June 29,
2011. Parks was directed to determine which tools would assist A.M. in being more
successful in her classes. Parks noted the school had amplification in some of its
classrooms, but it was not always working properly. Additionally, A.M.'s hearing aids
were not always working properly.
Parks recommended CART for A.M. She recommended that a specialist in
CART, Alan Peacock, perform the real-time transcription. Parks believed that CART
would allow A.M. to obtain an education in her least restrictive environment by letting
her access the information and ask questions instantly. Parks did not believe that a
transcription of the class, provided after the class was completed, would provide A.M.
with access to the curriculum in the least restrictive environment. Parks stated that
providing a transcription after class would not allow A.M. to be educated with her peers.
Further, software programs like Dragon Naturally Speaking would not work in the
classroom environment due to the noise level. It did not have enough accuracy and ease
of use to be an acceptable accommodation for a student with hearing impairments.
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C.

Introduction And Removal Of CART

Prior to August 18, 2011, the Board had not provided any speech-to-text in the
classroom even though it was recommended in the TASC report. CART was not
implemented by the Board until mid-October 2011. Kimberly Maddox, A.M.'s biology
teacher, testified that after the introduction of CART, A.M.'s grades increased
substantially. The IEP team decided that CART would not be implemented any further
in August 2012, prior to A.M.'s tenth grade year. D.M. testified that A.M. had a better
comprehension of her class materials after the introduction of CART, and that after
CART was removed, her grades regressed.
Phillips, an expert in assistive technology, was requested by A.M. and the Board
to perform an independent evaluation of assistive technology for A.M. She served as an
unbiased, neutral third party to evaluate A.M.'s need for assistive technology. Phillips
performed comprehensive interviews, reviewed medical and therapeutic documentation,
and made on-site observations. She interviewed and evaluated A.M. for an entire day.
Phillips's opinion was that A.M. missed sixty percent of what is being said in the
classroom even when utilizing her hearing aids. Phillips observed that A.M. does not
hear announcements on the loudspeaker in the classroom and had no way of receiving
alerts in the classroom if there had been an emergency. Phillips's expert opinion was that
A.M. needed a pager for emergency announcements. She also believed that A.M. needed
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speech-to-text in every class and would also possibly benefit from C-Print.
Her report concluded that speech-to-text was necessary for A.M. to achieve her
educational goals as established in her IEP by her IEP team. Speech-to-text was also
recommended for all announcements. A two-week trial period was needed to determine
which speech-to-text method would be best for A.M. Phillips observed that the Board
had not implemented any of her recommendations, except that it, at most, had provided
about thirty minutes of CART per school day. Phillips reviewed the TASC report and
agreed that A.M. needed a speech-to-text solution in her classes.
On March 19, 2012, the hearing officer issued a decision finding that the Board
had failed to provide a free, appropriate public education to A.M. He also found that the
Board failed to continue to provide Defendant with occupational therapy and speech
therapy. On April 12, 2013, Plaintiff filed a notice of intent to file a civil action
contesting the decision. The Board failed to implement any of the hearing officer’s
findings after appealing this case to federal court. A.M. filed three motions with the court
to compel the Board to comply with the hearing officer's rulings. Finally, on or about
August 29, 2014, the Board agreed to provide speech-to-text to A.M. by utilizing CART
and InterAct AS.
V.

ANALYSIS
The Supreme Court dictated a two-part inquiry for courts evaluating whether a
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school district has provided a student with a FAPE:
First, has the State complied with the procedures set forth in the Act? And
second, is the individualized educational program developed through the
Act’s procedures reasonably calculated to enable the child to receive
educational benefits? If these requirements are met, the State has complied
with the obligations imposed by Congress and the courts can require no
more.
Rowley, 458 U.S. at 206-07 (footnotes omitted). Unfortunately for the court, the parties
do not classify the alleged violations of the IDEA as procedural or substantive (i.e.
inadequacies in the IEP). Therefore, the court has done its best to classify the violations
in order to adhere to the analysis mandated by the Supreme Court in Rowley.
A.

Procedural Requirements

“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. Sch. Bd. of Hillsborough Cnty., 141 F.3d 990, 994 (11th Cir.
1998). The hearing officer held that the Board had committed five procedural violations.
First, the IEP team failed to review and revise the contents of A.M.’s IEP after she failed
to make progress toward her goals. (Doc. 11-1 at 81-82). Second, the IEP team included
goals that were non-measurable, which failed to meet the state law requirement of
“measurable annual goals” that would address “the child’s needs that result from the
disability.” (Id. at 83-85) (emphasis added). Third, the IEP team failed to consider
A.M.’s communication needs by providing her a means to hear or read the school’s daily
15

announcements. (Id. at 85-86). Fourth, the team failed to modify her math objective even
after she stopped taking a math class. (Id. at 86). Fifth, the IEP team did not provide
adequate documentation for why A.M. was missing several mandated classes at various
times. (Id. at 86-88).
In this case, the claimant, A.M., no longer seeks injunctive or other prospective
relief from the court. At the status conference held on January 7, 2015, counsel for both
parties represented to the court that they sought summary judgment solely to determine
whether A.M. would be eligible to seek an award of attorney’s fees. (See also Doc. 34
(stating that the parties had resolved A.M.’s third, and most recent, Motion to Compel,
and laying out the terms of the resolution)). Therefore, it is not necessary for the court
to determine individually whether each procedural violation had the substantive effect
of denying a FAPE to A.M. Rather, the court need only determine whether the
procedural violations had a cumulative effect of denying a FAPE. See Weiss, 141 F.3d
990 at 996 (stating that claimant “must show harm to [claimant] as a result of the alleged
procedural violations” (emphasis added)).
The Board’s response to A.M.’s motion does not object to the hearing officer’s
factual findings concerning the alleged procedural violations (see Doc. 50 at 17-27), and,
following de novo review of the record and the parties’ briefs, the court finds no clear
error in these factual findings. Rather than argue that the hearing officer erred in these
16

factual findings, the Board argues that the hearing officer made a legal error: he “failed
to undertake the required analysis under the IDEA of determining whether this purported
procedural error actually resulted in the denial of FAPE to A.M.” (Doc. 50 at 19).
However, to whatever extent the hearing officer failed to analyze the procedural errors’
detrimental impact on A.M.’s education, his factual findings provide a sufficient basis
for concluding that the Board’s errors denied a FAPE to A.M..
Only one of the five procedural violations — the failure to modify A.M.’s math
objective after she stopped taking a math class — appears to be inconsequential. Of the
other violations, the court finds two to have been especially detrimental to A.M.’s
education. First, the IEP’s use of goals without any measurable component meant that
there was no reliable way to assess A.M.’s progress in these areas. These non-measurable
goals included completing homework and class work, studying for tests, and
demonstrating appropriate body language and voice tone. (Doc. 11-1 at 84). All of these
concern basic skills that are critical for a child’s educational success, and since they were
not written to be measurable, it was impossible to determine A.M.’s progress (or lack
thereof) in those areas. Second, the IEP team failed to react adequately after A.M.’s
2009-2010 progress report indicated that she had not mastered the goal of “personal
management” and was “not completing homework and classwork which [was] causing
her to make low grades.” (Id. at 83). The team simply responded by “carr[ying] over”
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(id.) the goal into her IEP for the next school year verbatim, rather than revising the goal
or formulating additional steps to promote A.M.’s progress in that area. This goal “was
implemented to help [A.M.] use her time more effectively to completing incomplete
homework, classwork, and studying for tests” — basic academic skills in which A.M.,
by the IEP team’s own admission, lacked proficiency. (Id.).
The two other procedural violations — requiring A.M. to go to the office each
morning to view a copy of all the school’s announcements, and a failure to adequately
document why and to what extent A.M. was being removed from some classes (Doc. 111 at 85-88) — found by the hearing officer also necessarily detrimentally affected
A.M.’s academic progress, although the extent of such detrimental impact cannot be
evaluated on this record. It is not clear from the record how much class time A.M. missed
as a result of these violations, but it is clear that missing instruction impedes learning.
Therefore, the court affirms the hearing officer’s ruling that these procedural violations
had the effect of denying A.M. a FAPE.
B.

Adequacy Of The IEP
1.

Speech and Occupational Therapy

The hearing officer also found that the Board committed two substantive
violations of the IDEA. First, he found that the Board failed to continue to provide A.M.
with occupational therapy and speech therapy. (Doc. 11-1 at 79-80). The Board raises
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both factual and legal objections to this finding. (Doc. 50 at 21-22). Factually, the Board
argues that A.M. “was appropriately evaluated out of speech therapy” in a process that
complied with the IDEA, and that, contrary to the hearing officer’s finding, A.M. did
receive occupational therapy when she was due to receive it. (Id. at 21-22).
As for speech therapy, the record shows that it was removed from A.M.’s IEP
prior to the 2010-2011 school year. (Doc. 24-52 at 30, 24-42 at 3). Ellen Bowman, a
deaf-blind specialist, recommended on December 20, 2010, that the school reinstate
speech therapy. (Doc. 24-52 at 31). Speech services were then added back to her IEP
beginning on March 11, 2011. (Doc. 24-42 at 40). The hearing officer concluded that this
seven month period (August 2010 to March 2011) without speech therapy violated the
IDEA (doc. 11-1 at 80), but the court cannot find support for that conclusion in the
record. Rather, according to A.M.’s IEP for the 2010-2011 school year, test results and
teacher observation found that her “speech sound production [was] comparable to her
peers.” (Doc. 24-42 at 3). Therefore, the Board does not appear to have violated the
IDEA when it removed A.M. from speech therapy for those seven months.
As for occupational therapy, the hearing officer wrote that “there is no provision
within the profile page of the 8th grade IEP as to the status of OT services.” (Doc. 11-1
at 80). This finding appears correct, as A.M.’s eighth grade IEP states only “[A.M.] also
received OT for the 09-10 school year,” which was her seventh grade. (Doc. 24-42 at

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29). The Board does not point to any evidence showing that A.M. was found to no longer
require occupational therapy, nor to any evidence that occupational therapy was provided
during her eighth grade. (See Doc. 50 at 21-22). Therefore, the court concurs with the
hearing officer’s finding as to occupational therapy.
2.

Failure to Provide Appropriate Assistive Devices

The second, and most important, substantive violation found by the hearing officer
is a failure to provide appropriate assistive devices to A.M. (Doc. 11-1 at 80-82). He
stated that the Board had not performed adequate testing to determine if CART was
appropriate and necessary for A.M, and that there was insufficient data to support the
Board’s assertion that other assistive technology had been sufficient for A.M.’s
educational needs. (Id. at 81). The hearing officer also wrote that the Board had not
adequately considered the testimony and reports of the two outside experts (Parks and
Phillips) who had stated that A.M. required speech-to-text technology. (Id. at 82).
The Board objects to this finding on the basis of a supposed failure by the hearing
officer to follow the correct legal analysis. The argument is somewhat difficult to follow,
but as best as the court can tell, the Board alleges that the hearing officer failed to follow
a two-step analysis. First, the officer was supposed to determine whether A.M. had
shown that the IEPs provided to her were not reasonably calculated to provide her a
FAPE. (Doc. 50 at 23). If A.M. satisfied that step, the officer would then reach the issue

20

of whether A.M. required assistive technology and services. (Id. at 24). The only citation
provided by the Board for the supposed requirement of a two-step analysis is not on
point.8 Regardless, the Board is incorrect when it alleges that the officer failed to make
specific findings that the Board’s IEP failed to provide a FAPE. He found that the
Board’s technology of choice, an FM system, “was not reliable enough” and that there
“was not sufficient evidence presented that it was used across the entire spectrum of
[A.M.’s] classes.” (Doc. 11-1 at 81).
The Board also contends that the hearing officer erred in his finding by utilizing
a standard from the ADA for determining the need for assistive technology, rather than
the IDEA standard. (Doc. 50 at 24-25). The court does not see any proof for this claim.
The Board does not point to, and the court cannot find, any use by the hearing officer of
language from the ADA standard, which requires public entities to provide “appropriate
auxiliary aids and services where necessary to afford an individual with a disability an
equal opportunity to participate in, and enjoy the benefits of” services or programs
provided by the entity. 28 C.F.R. § 35.160(b)(1). Rather, all of the hearing officer’s
discussion of law in this section comes from the Supreme Court’s ruling in Rowley that
the IDEA requires schools to provide sufficient services for a “basic floor of
opportunity.” (See Doc. 11-1 at 80).
8

See 34 C.F.R. § 300.324(a)(2)(v) (listing factors that an IEP team must consider when
formulating a child’s IEP).
21

As to the facts, just as it did in administrative proceedings before the hearing
officer, the Board compares this case to K.M. v. Tustin Unified School District, 2011 WL
2633673 (C.D. Cal. 2011), rev'd in part on other claims, 725 F.3d 1088 (9th Cir. 2013).
(See Doc. 50 at 25). In K.M., the court affirmed an ALJ decision rejecting a hearingimpaired student’s claim that the school district violated IDEA by refusing to provide
CART. Id at *9-13. Although there are certain factual similarities, the court agrees with
the analysis of the hearing officer as to how K.M. differs from the present case. (See Doc.
11-1 at 81-82). In K.M., although there were expert opinions stating that the student
needed CART, those experts had not personally observed the student in the classroom
or considered all the data available to the IEP team. 2011 WL 2633673 at *4, *12. In the
present case, two outside experts, Phillips9 and Parks,10 observed A.M. at school, and, in
Phillips’s case, in the classroom, before concluding that the school’s assistive technology
was inadequate and recommending CART or a similar technology. Another difference
is that, in K.M., testimony from the student’s teachers and other third parties who had
observed her in the classroom had revealed no trouble in comprehension, note-taking,
or participation in discussions, which suggested that she was receiving an adequate
education without CART. Id. at *12. Here, on the other hand, Phillips and Parks found

9

(See Doc. 24-10 at 17-18).

10

(See Doc. 24-23 at 16-18).
22

that A.M. was performing poorly in all of those tasks under her IEP. (Doc. 24-10 at 1719, 22-23; 24-23 at 16-19).
Therefore, because a preponderance of the evidence indicates that the Board failed
to provide appropriate assistive technology to A.M. by offering only FM service and
denying CART, the court affirms the hearing officer’s finding. The court finds it
especially persuasive that both outside experts brought to observe A.M. at school were
in agreement with A.M. and D.M.’s belief that an IEP without CART or another speechto-text method was not providing her sufficient access to lectures, discussions, and
classroom materials. The Board has not pointed to any other facts to contradict those
experts and show that the IEPs it provided were sufficient for A.M.’s needs.
IV.

CONCLUSION
For all of the forgoing reasons, summary judgment is due to be GRANTED to

defendant D.M., affirming the hearing officer’s findings11 of IDEA violations by the
Board. For the same reasons, the court DENIES the Board’s motion for summary
judgment. The court will enter a separate final judgment order consistent with this
memorandum opinion.

11

With the exception of the officer’s finding of a violation by a failure to provide speech
therapy, as discussed supra, V.B.1.
23

DONE and ORDERED this the 16th day of June, 2015.

VIRGINIA EMERSON HOPKINS
United States District Judge

24