W. v. Huntsville City Board of Education

Filing 42

MEMORANDUM OPINION AND ORDER DISMISSING CASE that plaintiff's motion for summary judgment is DENIED, and the decision of the administrative Hearing Officer is AFFIRMED; costs are taxed to plaintiff as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 12/10/2014. (AHI)

FILED
2014 Dec-10 PM 12:04
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
PHYLLENE W., individually and )
as mother and next friend of
)
M.W., a minor,
)
)
Plaintiff,
)
)
v.
)
)
HUNTSVILLE CITY BOARD
)
OF EDUCATION,
)
)
Defendant.
)

Civil Action No. 5:13-CV-1596-CLS

MEMORANDUM OPINION AND ORDER
Plaintiff, Phyllene W., filed this case on August 28, 2013, asserting claims as
the mother and next friend of M.W., a minor, against the Huntsville, Alabama, Board
of Education (“the Board”), pursuant to the Individuals With Disabilities Education
Act, 20 U.S.C. §1400 et seq. (“IDEA”), and the Alabama Exceptional Child
Education Act, Ala. Code § 16-39-1 et seq. Specifically, plaintiff appeals under
IDEA from an administrative due process hearing decision.1
The case presently is before the court on plaintiff’s motion for summary
judgment.2 The court held oral argument on that motion on November 21, 2014.
Upon consideration of the motion, briefs, administrative record, and arguments of
1

See doc. no. 1 (Complaint).

2

Doc. no. 22.

counsel, the court concludes that plaintiff’s motion should be denied, and the decision
of the administrative hearing officer sustained.
I. APPLICABLE LAW AND STANDARDS FOR REVIEWING
ADMINISTRATIVE DECISION
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 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
2

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
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).
3

“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).3
Any party who has a complaint with regard to a local education agency’s
provision of a FAPE to a disabled child may file a complaint with the local education
3

Section 1414(d) sets forth detailed requirements of what topics should be addressed in a
student’s IEP.

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agency or state education agency, and that party will be entitled to an impartial
See 20 U.S.C. §§ 1415(b)(6)(A) &

administrative due process hearing.

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 IDEA case.”) (alteration supplied). Instead,

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“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 (in turn citing Board of Education of Hendrick Hudson Central
School District, Westchester County v. Rowley, 458 U.S. 176, 205 (1982); Doe v.
Alabama State Department of Education, 915 F.2d 651, 657 n.3 (11th Cir. 1990))).
6

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 Burlington v. Department of Education, 471 U.S. 359, 369 (1985)).
II. DISCUSSION
The Supreme Court dictated a two-part inquiry for courts evaluating whether
a 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).
A.

Procedural Requirements (Evaluations)
Plaintiff first asserts that the Board failed to comply with the procedural

requirements of IDEA because it did not conduct comprehensive evaluations and reevaluations of M.W.
A school board must “conduct a full and individual initial evaluation” before
providing special education services to a child. 20 U.S.C. § 1414(a)(1)(A). The
evaluation should be designed to determine whether the child has a “disability” as
defined by the IDEA, and, the child’s educational needs.

7

20 U.S.C. §

1414(a)(1)(C)(i). A re-evaluation should be conducted “if the local educational
agency determines that the educational or related services needs, including improved
academic achievement and functional performance, of the child warrant a
reevaluation; or . . . if the child’s parents or teacher requests a reevaluation.” 20
U.S.C. § 1414(a)(2)(A). The re-evaluation should occur “not more frequently than
once a year, unless the parent and the local educational agency agree otherwise; and
. . . at least once every 3 years, unless the parent and the local educational agency
agree that a reevaluation is unnecessary.” 20 U.S.C. § 1414(a)(2)(B).
Each evaluation and re-evaluation must
use a variety of assessment tools and strategies to gather relevant
functional, developmental, and academic information, including
information provided by the parent, that may assist in determining —
(i) whether the child is a child with a disability; and
(ii) the content of the child’s individualized education program,
including information related to enabling the child to be involved
in and progress in the general education curriculum, or, for
preschool children, to participate in appropriate activities.
20 U.S.C. § 1414(b)(2)(A).
As part of an initial evaluation (if appropriate) and as part of any
reevaluation under this section, the IEP Team and other qualified
professionals, as appropriate, shall —
(A) review existing evaluation data on the child, including—

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(i) evaluations and information provided by the parents of the
child;
(ii) current classroom-based, local, or State assessments, and
classroom-based observations; and
(iii) observations by teachers and related services providers; and
(B) on the basis of that review, and input from the child’s parents,
identify what additional data, if any, are needed to determine —
(i) whether the child is a child with a disability as defined in
section 1401(3) of this title, and the educational needs of the
child, or, in case of a reevaluation of a child, whether the child
continues to have such a disability and such educational needs;
(ii) the present levels of academic achievement and related
developmental needs of the child;
(iii) whether the child needs special education and related
services, or in the case of a reevaluation of a child, whether the
child continues to need special education and related services;
and
(iv) whether any additions or modifications to the special
education and related services are needed to enable the child to
meet the measurable annual goals set out in the individualized
education program of the child and to participate, as appropriate,
in the general education curriculum.
20 U.S.C. § 1414(c)(1). Finally,
[i]f the IEP Team and other qualified professionals, as
appropriate, determine that no additional data are needed to determine
whether the child continues to be a child with a disability and to
determine the child’s educational needs, the local educational agency —

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(A) shall notify the child’s parents of —
(i) that determination and the reasons for the determination; and
(ii) the right of such parents to request an assessment to determine
whether the child continues to be a child with a disability and to
determine the child’s educational needs; and
(B) shall not be required to conduct such an assessment unless requested
to by the child’s parents.
20 U.S.C. § 1414(c)(4) (alteration supplied).
Plaintiff asserts that the Board “had ample reason to suspect that M.W. needed
further evaluations and/or additional or different special education and related
services.”4 Specifically, she alleges that the Board was aware of M.W.’s results on
hearing tests, her increased hearing loss and need for hearing aids, and her deficient
academic performance despite average intelligence and receipt of learning disability
services.
Plaintiff also asserts that the hearing officer improperly considered that she had
not requested any additional evaluations. However, if the Board determines that no
additional data is needed to determine the child’s eligibility for special education
services, it is not required to conduct an additional assessment unless the parent
requests it. See 20 U.S.C. § 1414(c)(4) .

4

Doc. no. 23 (plaintiff’s brief), at 28.

10

B.

Provision of a FAPE
Plaintiff also argues that the IEP’s developed for M.W. in her 8th through 10th

grade years failed to provide her with a FAPE.
1.

Eighth Grade (2010-2011)

The Hearing Officer found that plaintiff did not satisfy
her burden to prove that this Child was denied [a] FAPE during the
2010-11 school year. Petitioner provided very little evidence about the
2010-2011 school year, other than the fact that she attended an IEP
meeting in April 2010, at which it was determined that this Child was
still qualified for services under the IDEA category of Specific Learning
Disability, and that no one (including herself) expressed any opinion
that any of the prior evaluations were no longer accurate or that
reevaluation was needed in any area. And, it appears that Petitioner was
afforded a full opportunity to participate in the IEP process, and that she
agreed with all aspects of the IEP for that year. Petitioner makes a
number of arguments about deficits in the IEP but the Hearing Officer
does not find any of those arguments to be supported by the record or
the law. As a result, the Hearing Officer does not find any denial of
FAPE to this Child during the 2010-2011 school year.5
Plaintiff asserts that the Hearing Officer’s decision is incorrect, and that the
2010-2011 IEP was insufficient because: (1) the Board failed to comprehensively
evaluate M.W., despite knowing about her worsening hearing loss; (2) the IEP failed
to adequately address her math and reading needs; (3) the IEP failed to offer language
intervention services, audiology services, and remedial services; (4) M.W. made no

5

Administrative Decision, at 44 (alteration supplied).

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measurable progress in her reading and math goals.
2.

Ninth Grade (2011-2012)

The Hearing Officer also found that plaintiff did not satisfy her burden of
demonstrating that M.W. was denied a FAPE during the 2011-2012 year.6
Specifically, he relied upon the testimony of M.W.’s teachers and STAR test results
to conclude that M.W. “was proficient at grade level standards by the end of the
2011-2012 school year and that she mastered her 2011-2012 IEP goals.”7 That
proficiency was significant because, “[p]ursuant to the 2011-2012 IEP, grades were
one of the designated sources of data for determining mastery of IEP goals.”8
Plaintiff asserts that: (1) the services provided to M.W. during the 2011-2012
year were too minimal and general to meet her educational needs, including her
hearing loss, receptive and expressive language impairment, written expression
deficits, reading deficits, and lack of basic math skills; (2) the teachers’ opinions that
M.W. was progressing and was proficient at current grade-level standards were not
supported by the test scores and other evidence in the record; (3) it was improper for
the Hearing Officer to rely upon M.W.’s good grades, because M.W. only earned
those grades after receiving extensive accommodations; (4) the 2011-2012 IEP was
6

Id. at 43-44.

7

Id. at 43.

8

Id. (alteration supplied).

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not based on a comprehensive, current evaluation; (5) M.W. did not receive
appropriate “transition services.”9
3.

Tenth Grade (2012-2013)

The Hearing Officer found that “the Board procedurally satisfied the
requirements of 20 U.S.C. § 1414 in the development of the 2012-2013 IEP” because
it received input from both plaintiff and M.W.’s classroom teachers, and it reviewed
M.W.’s “most recent eligibility determination/reevaluation, curriculum based
assessments, and information documented in [M.W.’s] prior IEP.”10 He also found
that, because the IEP team’s review of existing data for the 2012-2013 year did not
indicate regression or the development of additional needs, no new or additional
evaluations were necessary. The Hearing Officer also noted that plaintiff had not
requested any new evaluations, and she did not express any other needs or concerns

9

The IDEA regulations define the term “transition services” as
a coordinated set of activities for a child with a disability that —
(1) Is designed to be within a results-oriented process, that is focused on
improving the academic and functional achievement of the child with a
disability to facilitate the child's movement from school to post-school
activities, including postsecondary education, vocational education,
integrated employment (including supported employment), continuing and
adult education, adult services, independent living, or community
participation.

34 CFR § 300.43(a).
10

Administrative Decision, at 37-38 (alteration supplied).

13

during the IEP meeting. The Hearing Officer acknowledged “that it is not up to the
Parent to ask for evaluations,” but he nonetheless emphasized that an IEP will satisfy
IDEA “if the IEP team does not see any issue that would reasonably suggest that new
evaluations were needed and the parent does not request any evaluations . . . .”11
The Hearing Officer next concluded that the goals set in the 2012-2013 IEP
were sufficiently “measurable” because the IEP specified that M.W. should be
expected to demonstrate proficiency at 70% of course of study content standards. He
further found that the IEP contained appropriate transition goals, including written
expression assistance. He noted M.W.’s lower STAR reading and math scores, but
determined that those scores should not be relied upon too heavily, because the STAR
assessments did not match up to the school’s curriculum, and many higherperforming students had received low STAR scores. Instead, the Hearing Officer
focused more heavily on claimant’s classroom performance to determine whether she
was meeting grade-level and IEP standards. Finally, the Hearing Officer considered
that M.W. could have received the areas of supplemental instruction that her expert
witness suggested if she had enrolled in a learning strategies class, but M.W. chose
to take an elective class instead.12

11

Id. at 38-39.

12

Id. at 37-42.

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Plaintiff challenges that decision on several grounds. She asserts that: (1) the
Hearing Officer improperly placed the burden on plaintiff to request additional
assessments; (2) the Board had ample reason to suspect that additional evaluations
were needed because it knew about M.W.’s hearing loss and her under-performance
in reading and math; (3) The IEP’s academic goals were not sufficiently measurable
because they were based on grades, teacher tests, and curriculum based assessments;
(4) the “survey” used to measure M.W.’s transition goals did not actually provide
enough information to measure those goals; (5) M.W.’s STAR results are relevant,
because the Board was the party responsible for including the STAR results on
M.W.’s IEP; and (6) M.W.’s decision not to enroll in the learning strategies class is
not relevant because the class did not provide a research-based reading or math
program, and because M.W. had not benefitted from being in the class in the past.
Plaintiff also points out that the 2012-2013 IEP did not include any plan to increase
M.W.’s reading and math skills, despite including an increase in reading
comprehension as a goal, and it did not offer any language intervention services,
audiology services, or remedial services. Finally, plaintiff asserts that, despite the
deficiencies in M.W.’s academic performance, she was placed in the regular
classroom 80-100% of the time.

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III. CONCLUSION AND ORDERS
After a careful review of the record, briefs, and arguments of counsel, the court
concludes that plaintiff has failed to meet her burden of demonstrating that the Board
denied M.W. a FAPE. Accordingly, plaintiff’s motion for summary judgment is
DENIED, and the decision of the administrative Hearing Officer is AFFIRMED.
Costs are taxed to plaintiff, and the Clerk is directed to close this file.
DONE this 10th day of December, 2014.

______________________________
United States District Judge

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