E.E. et al v. Tuscaloosa City Board of Education

Filing 22

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 7/6/2016. (PSM)

FILED
2016 Jul-06 AM 08:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
E.E., et al.,

)
)
)
)
)
)
)
)
)

Plaintiffs,
vs.
TUSCALOOSA CITY BOARD
OF EDUCATION,
Defendant.

7:15-cv-01370-LSC

Memorandum of Opinion
Plaintiffs E.E. and T.E. filed this action, as parents and next friend of N.E.,
against Tuscaloosa City Board of Education (“TCBOE”) appealing a due process
decision arising from a hearing conducted under the Individuals with Disabilities
Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”). Before the Court are Plaintiffs’
motion for summary judgment (Doc. 15) and TCBOE’s motion for summary
judgment. (Doc. 16.) For the reasons stated below, Plaintiffs’ motion for summary
judgment (Doc. 15) is due to be denied and TCBOE’s motion for summary
judgment (Doc. 16) is due to be granted.

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I.

Background
a.

Factual Background

N.E. is a rising sixth-grader enrolled in the Tuscaloosa City School System,
however she was in the fourth and fifth grade throughout the period relevant to this
action. E.E. and T.E. adopted N.E. when she was four years old and, at the age of
five, N.E. was diagnosed with reactive attachment disorder (“RAD”). This
disorder, traced back to pre-adoption events that N.E. experienced, results in
trauma, disillusion, and mistrust of others, as well as other behavioral problems. At
home, N.E.’s parents find her disruptive, manipulative, unremorseful, and unable
to understand the consequences of behaviors such as lying and stealing small items.
Her parents contend that N.E. also has academic difficulties as a result of the
disorder.
During her fourth-grade year, E.E. and T.E. began suspecting that N.E. was
lying about how much she was reading as part of her homework and they believed
that N.E. was struggling with math, science, spelling, and understanding certain
literary concepts. They also believed that N.E. was cheating and copying
classmates’ work. Thus, they requested that TCBOE retain her in the fourth grade
the following school year. The school system disagreed that retention would be
beneficial and instead proposed response to intervention (“RTI”) through
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assembling a problem solving team (“PST”), which was designed to implement
intervention strategies within N.E.’s normal curriculum and monitor N.E.’s
academic performance, specifically in the areas of reading and math. After the
parents received written notification that the PST would focus on reading and
math, they heard nothing else regarding the PST, which apparently met in
February or March of 2014.
During that meeting, the PST looked at information provided by N.E.’s
fourth-grade teacher, indicating that N.E.’s attendance record was “great,” stating
that N.E. could be argumentative and sneaky, but had no office referrals during the
fourth grade, and stating that, according to the teacher, N.E.’s grades were
average. The teacher stated that she did not believe N.E. needed any change in
curriculum or additional services. Additionally, the PST looked at N.E.’s thirdgrade Alabama Reading and Math Test scores, which showed that N.E. was above
average in math and met the State Department of Education standards in reading.
Further, the team looked at N.E.’s fourth-grade Classworks assessment, which
showed that N.E. was proficient in language arts and math, and it looked at N.E.’s
ACT Aspire Ready Range of Proficiency assessment, which showed that N.E. was
proficient in reading and math.

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On May 23, 2014, E.E. inquired about the status of the RTI and requested
the information and scores reviewed by the PST and, after she did not receive that
information, she made a second request in June of 2014. E.E. did not receive that
information until October 6, 2014. In the meantime, the parents and the school
continued to disagree as to whether N.E. should be retained in the fourth grade.
The parents eventually agreed to allow N.E. to start school in the fifth grade and, in
early August, E.E. requested a special education evaluation of N.E looking at the
disability category of specific learning disability.
TCBOE held a special education referral meeting on August 18, 2014, and
during that meeting the referral team decided to initiate an evaluation for special
education to examine whether N.E.’s behavioral difficulties were impacting her
academic performance. That special education evaluation was conducted
throughout the fall to prepare for the special education eligibility meeting
scheduled for October 1, 2014. That evaluation included looking at N.E.’s
attendance, academic, and in-school behavioral history, an August 14 observation
of N.E. completed by the guidance counselor that showed N.E. working and
answering questions appropriately, and interviews of N.E.’s teachers, all of whom
stated that any behavioral issues N.E. had in school were not impacting her
academic performance. School personnel also conducted an Oral Written Language
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Scales (“OWLS”) assessment, testing overall language, listening comprehension,
and oral expression, with N.E. scoring above average in all three categories.
Further, a behavioral evaluation was conducted, which included the completion of
two behavioral scales, one by N.E.’s homeroom teacher (who had only taught N.E.
for five weeks) and one by T.E., completion of a BECK Youth Inventory, and the
BENDER Gestalt II. N.E.’s scores from this behavioral evaluation were within an
average range.1 Further, the eligibility team reviewed samples of N.E.’s school
work and read a packet of information regarding RAD. While not considered or
acknowledged by the eligibility team, a second observation form had been
completed by a special education teacher on August 12, 2014. That observation
form indicated that N.E. was unable to utilize the day’s lesson to complete math
problems, and N.E. had to be reminded how to solve math problems despite having
prior instruction on those problems. The parents were not told that this evaluation
existed, and the evaluation did not surface until after litigation began.
The special education eligibility meeting was held on October 1 and, after
discussion, the attendees (other than E.E.) agreed that N.E. was not eligible for
special education services. While E.E. initially testified that she left the meeting
1

E.E. disagreed with these findings, contending that if each of the sub-scales in these evaluations
was first standardized and then added as a total, the scores were clinically significant. When the
eligibility team first added the sub-scores together and then the sum number was standardized,
the scores were within average range.
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angry, she later admitted that she and her husband told the school district
superintendent that they ultimately did not disagree with the determination that
N.E. did not qualify for special education as a learning disabled student.
In mid-November of 2014, the parents met with certain TCBOE personnel
and during the meeting the parents agreed to the superintendent’s suggestion that
N.E. be evaluated for the special education disability category of emotional
disability. Soon after, school personnel told E.E. that the data utilized during the
October 1 eligibility meeting would be sufficient to determine whether to refer N.E.
for evaluation for emotional disability, but in early December the parents were told
that the school would obtain additional behavioral scales. However, the referral
team ultimately decided that additional scales were not needed. The referral
meeting to consider a referral for a special education evaluation under the category
of emotional disability was held on December 12, 2014. At the end of the threehour-long meeting, the referral team decided not to refer N.E. for a special
education evaluation, despite E.E.’s objections. When the decision not to refer
N.E. for evaluation was made, E.E. asked if a new PST plan would be provided, but
the referral team declined to refer N.E. back to a PST. Soon thereafter, the parents
filed a complaint for due process.
b.

Procedural History—Due Process Hearing
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In filing the complaint for due process, the parents sought the following
relief: (1) that the Hearing Officer find N.E. eligible for services under the disability
category of emotional disability, (2) that the Hearing Officer rule that TCBOE’s
testing of N.E. was incomplete and not sufficiently comprehensive, and (3) that the
Hearing Officer rule that TCBOE must pay for an independent educational
evaluation (“IEE”). In preparation for the due process hearing, the parents hired
Dr. John Goff to perform the IEE and appear as an expert witness. Dr. Goff’s
testing of N.E. led him to conclude, among other things, that N.E.’s unusual style
of language and communication (a condition often associated with RAD) may be a
source of N.E.’s difficulties, and he stated that N.E. should probably be evaluated
by a skilled speech and language pathologist to explore this potential issue.
During the due process hearing, the parents pointed to procedural violations
that they believed TCBOE committed. Those violations included (1) the failure of
the eligibility team to consider the observation form that showed that N.E. had
difficulty understanding math concepts and strategies; (2) TCBOE’s failure to
assemble a PST after deciding not to refer N.E. for evaluation for emotional
disability; (3) the reversal of the decision to consider additional behavioral scales
when determining whether to refer N.E. for evaluation for emotional disability; (4)
the eligibility team’s refusal to consider sub-scales in its behavioral assessment that
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would have supported eligibility for special education services; (5) the completion
of a behavioral scale by a teacher who had known N.E. for less than six weeks; and
(6) TCBOE’s delay in providing the parents with the information used by the first
PST in early 2014. The hearing lasted six days, with E.E. and relevant school
teachers and employees giving testimony.
In the opinion’s numbered specific findings, the Hearing Officer held that all
of the alleged procedural violations, with the exception of the second (the failure to
assemble a PST), were de minimus. As for TCBOE’s failure to assemble a PST
after deciding not to refer N.E. for evaluation for emotional disability, the Hearing
Officer directed TCBOE to convene a PST. Further, the Hearing Officer pointed
to Dr. Goff’s conclusion regarding the need for a speech-language evaluation, and
ordered TCBOE to utilize a speech language pathologist to evaluate N.E. in the
areas of articulation and language. Finally, the Hearing Officer found that the
parents were not entitled to reimbursement for Dr. Goff’s IEE, stating that
TCBOE’s evaluation of N.E. was adequate under Alabama’s Administrative Code.
II.

Standard of Review
The “principal purpose of the [IDEA] is ‘to assure that all children with

disabilities have available to them . . . a free and appropriate public education
[“FAPE”] which emphasizes special education and related services designed to
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meet the handicapped child’s unique needs, . . . [and to ensure] that the rights of
handicapped children and their parents or guardians are protected.” N.B. v.
Alachua County Sch. Bd., 84 F.3d 1376, 1378 (11th Cir. 1996) (quoting 20 U.S.C. §
1400(c)). In order to “carry out these objectives, the IDEA provides procedural
safeguards.” Id. (citing Honig v. Doe, 484 U.S. 305, 311–12 (1988)). One of these
procedural safeguards is the “opportunity for an ‘impartial due process hearing.’”
Id. “Any party aggrieved by the resulting state administrative findings and decision
has the right to file suit in the United States District Court regardless of the
amount in controversy.” Jefferson County Bd. of Educ. v. Breen, 853 F.2d 853, 856
(11th Cir. 1988). “In that lawsuit, ‘the court shall receive the records of the
administrative proceedings, shall hear additional evidence at the request of a party,
and, basing its decision on the preponderance of the evidence, shall grant such
relief as the court determines is appropriate.’” Id. (quoting 20 U.S.C. §
1415(e)(2)).
“[T]he IDEA provision for judicial review has been described as ‘puzzling’
and ‘somewhat confusing.’” Walker Cnty. Sch. Dist. v. Bennett ex rel. Bennett, 203
F.3d 1293, 1297 (11th Cir. 2000) (citing Capistrano Unified Sch. Dist. v. Wartenberg,
59 F.3d 884, 891 (9th Cir. 1995); Jefferson Cnty. Bd. of Ed. v. Ala. Dep’t of Ed., 853
F.2d 853, 856 (11th Cir. 1988)). Once an IDEA case is before the district court, the
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“usual F.R. Civ. P. 56 summary judgment principles do not apply.” Loren v.
Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1313 (11th Cir. 2003). Instead, summary
judgment serves as “a procedural vehicle requiring [the district judge] to decide . . .
[the IDEA] action on the basis of the administrative record.” Id. at 1313 n.4
(quoting Suzawith v. Green Bay Area Sch. Dist., 132 F. Supp. 2d 718, 724 (E.D. Wis.
2000)).

The district court may not “substitute its own judgment on sound

educational policy for those made at the state administrative level.” Jefferson
County Bd. of Educ., 853 F.2d at 856 (citing Bd. of Educ. of Hendrick Hudson Cent.
Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982)). Rather, “the role of the district
court is simply to ‘review the administrative determinations.’” Id. at 857. (quoting
Manecke v. School Bd., 762 F.2d 912, 919 (11th Cir. 1985) (emphasis in original),
cert. denied, 474 U.S. 1062 (1986)).
The Eleventh Circuit has emphasized that courts “owe some judicial
deference to local administrative agency judgments.” Loren, 349 F.3d at 1314 n.5
(citing Deal v. Hamilton County Dept. of Educ., 259 F. Supp. 2d 687, 691– 92 (E.D.
Tenn. 2003)). This is particularly true when matters call for educational expertise.
Id. Therefore, administrative findings of fact “are considered to be prima facie
correct.” Id. If a reviewing court fails to adhere to administrative findings of fact,
“it is obliged to explain why.” Id. However, the “extent of deference to be given
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the administrative findings of fact,” nonetheless remains “an issue left to the
discretion of the district court.” Jefferson County Bd. of Educ., 853 F.2d at 857.
Similarly, “the extent of 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 County Sch.
Dist v. Bennett, 203 F.3d 1293, 1297–98 (11th Cir. 2000).
III. Discussion
A.

Alleged Procedural Violations

Plaintiffs first contend that the Hearing Officer erred in finding that certain
procedural violations were de minimus and did not deprive N.E. of a FAPE. “In
evaluating whether a procedural defect has deprived a student of a FAPE, the
Court must consider the impact of the procedural defect, and not merely the defect
per se.” Weiss by Weiss v. School Bd. of Hillsborough County, 141 F.3d 990, 994 (11th
Cir. 1998); 20 U.S.C. § 1415(f)(3)(E)(ii) (“In matters alleging a procedural
violation, a hearing officer may find that a child did not receive a free appropriate
public education only if the procedural inadequacies [1] impeded the child’s right
to a free public education; [2] significantly impeded the parents’ opportunity to
participate in the decisionmaking process regarding the provision of a free
appropriate public education to the parents’ child; or [3] caused a deprivation of
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educational benefits.”). Plaintiffs contend that these procedural violations were
such that they were denied a fair and meaningful opportunity to participate in
determining N.E.’s educational needs. See, e.g., Weiss by Weiss, 141 F.3d at 997
(“Although the IDEA envisions full parental participation in the development of
the [individualized education program], the Act does not mandate such
participation in every aspect of the educational process.”); Ala. Admin. Code 2908-9-.08(5) (“Parents must be provided written notice and an opportunity to
participate in meetings regarding identification, evaluation, educational placement,
and the provision of FAPE to their child.”).
The first procedural violation to which Plaintiffs point is the Hearing
Officer’s second specific finding, which in relevant part stated the following:
While there may have been significant fragmentation of information
supplied at the eligibility meeting . . . such omissions are not such as to
compel the conclusion that had that information been shared with the
team a different result would have been reached.
(Record at Page 516.) Plaintiffs also point to the Hearing Officer’s fourth specific
finding, which stated as follows:
All other alleged procedural violations (reversal of the suggestion of
additional behavior scales, refusal to consider existing behavior subscales that supported eligibility, insufficient weeks of knowing a child
before completing behavior scale, failure to include a parentally
preferred observation in the special education evaluation, delay in
providing parents PST results, etc.) were de minimus.
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(Record at Page 519.) (emphasis in original). Plaintiffs juxtapose these two findings
with TCBOE representatives’ testimony given during the due process hearing that
information not included in the eligibility report may have been helpful in making
the eligibility determination. (Record at Page 151, 295.) Plaintiffs’ contentions here
are twofold: First, Plaintiffs make arguments specific to the fact that the August 12,
2014 structured observation by a special education teacher (which supported E.E.’s
concerns that N.E. had trouble comprehending math lessons) was not considered
at the October 1, 2014 eligibility meeting. Second, Plaintiffs contend generally that
the information considered at the October 1, 2014 eligibility meeting was so lacking
that the eligibility team could not have reached an accurate assessment, thus
denying their right to participate in the decision-making process and denying N.E. a
FAPE.
As to Plaintiffs’ first argument regarding the failure to consider the August
12, 2014 structured observation at the eligibility meeting, the Hearing Officer found
that this failure was a de minimus procedural violation because it did not prevent
parental participation, deny N.E.’s a FAPE, or deprive N.E. of educational benefit.
Plaintiffs challenge the finding that the violation was de minimus.2

2

As part of their argument, Plaintiffs contend that the Hearing Officer made contradictory
statements regarding E.E.’s failure to inquire about why the special education teacher was not a
member of the eligibility team. The Hearing Officer noted that the special education teacher,
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The Hearing Officer correctly found that this procedural violation did not
prevent parental participation in evaluating N.E.’s eligibility for special education
services, deny N.E. a FAPE, or deprive N.E. of educational benefit. The evaluative
criteria that the eligibility team must consider when determining whether a child
has a specific learning disability (the disability that the eligibility team was
evaluating at that October meeting)3 permits the use of only one classroom
observation. Ala. Admin. Code 290-8-9-.03(10)(d)(5)(i) (“The group responsible
for determining whether a child has a specific learning disability must decide to: (I)
Use information from an observation in routine classroom instruction and monitoring of
the child’s performance that was done before the child was referred for an evaluation; or
who conducted the unused observation, was a member of the referral for evaluation team, which
E.E. attended, and stated that
“[b]ased on her testimony and complete knowledge of the records and events,
[E.E.] certainly could have inquired as to that individual’s absence at the eligibility
meeting. That [E.E.] did not do so reveals that the special education teacher’s
participation at the eligibility meeting was not considered by [E.E.] to be such a
substantial component of the eligibility determination that the conditions for relief
contained in [IDEA’s procedural safeguards] exist.”
(Record at Page 505.) Plaintiffs contend that this finding directly contradicts the Hearing
Officer’s statement that “[E.E.] testified that she was not told about the observation by the
special education teacher,” because E.E. would not have known to ask about the special
education teacher’s failure to attend the eligibility meeting if E.E. did not know that the
observation existed. (Record at Page 504.) While perhaps the Hearing Officer made
contradictory statements, his finding that the procedural violation here was de minimus was
proper, as discussed below, regardless of whether the Hearing Officer found that E.E. should
have inquired about the teacher’s absence at the meeting.
3
Plaintiffs do not appeal any portion of the Hearing Officer’s decision regarding his findings that
this October eligibility meeting was to address whether N.E. had a specific learning disability, as
opposed to some other disability such as an emotional disability.
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(II) Have at least one member of the group conduct an observation of the child’s
academic performance in the regular classroom after the child has been referred for
an evaluation and parental consent is obtained.”). Certainly, as testimony showed,
the more information the eligibility team has in front of it to consider the more
informed their decision will be. However, other than a broad statement that if the
eligibility team had used the August 12 observation then it “would have probably
reached a different eligibility result,” Plaintiffs do not point to any evidence in the
administrative record to support that assumption.4 Thus, the Hearing Officer
correctly found that this procedural violation had a de minimus effect.
Plaintiffs also contend generally that the information considered at the
October 1, 2014 eligibility meeting was so lacking that the eligibility team could not
have reached an accurate eligibility assessment, despite the Hearing Officer’s
finding that all other alleged procedural violations were de minimus. The Court will
address those alleged violations individually and then assess whether they, along
4

To the extent that Plaintiffs contend that the special education teacher that conducted the
unused observation should have attended the eligibility meeting, they are incorrect. The Alabama
Administrative Code requires that the eligibility team “[b]e composed of a team of qualified
professionals including the parents.” Ala. Admin. Code 290-8-9-.04(1)(a). When determining
eligibility for children evaluated for a specific learning disability, the eligibility team must also
include the child’s teacher and “[a]t least one person qualified to conduct individual diagnostic
examinations of children, such as a school psychologist.” Ala. Admin. Code 290-8-9.03(10)(b)(2). Here the eligibility team included E.E., N.E.’s teacher, a different special
education teacher, the principal of N.E.’s school, and the school psychologist. The special
education teacher who conducted the unused observation was under no obligation to attend the
eligibility meeting.
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with the failure to use the special education teacher’s classroom observation,
denied the parents an opportunity to participate in the decision-making process,
denied N.E. a FAPE, or deprived N.E. of an educational benefit.
The first procedural violation listed was the December 12, 2014 referral
team’s decision not to obtain additional behavioral scales before evaluating N.E. for
referral for disability evaluation. The referral team made this decision after the
supervisor of the special education curriculum suggested to E.E. that the school
system would obtain additional scales before making the referral determination.
(Record at Page 507–08.) The Hearing Officer noted that the December referral
team was conducting what the Alabama Administrative Code deems a reevaluation
of N.E.’s needs. Alabama Admin. Code 209-8-9-.02(6)(a); (Record at Page 508).
As it was conducting a reevaluation, the team had the option to find that there was
no need for additional data to determine N.E.’s educational needs. Ala. Admin.
Code 209-8-9-.02(6)(d).5 Further, the team had the power to determine, on a caseby-case basis, whether supplemental evaluations beyond those minimally required
by the administrative code were needed. Ala. Admin. Code 290-8-9-.03.

5

While the administrative code allows the team to determine that no additional data is needed,
the code also requires the team to provide written notice to the child’s parents of that
determination. Ala. Admin. Code 290-8-9-.02(6)(d). However, neither party raises this issue of
notice and the Court thus declines to address it.
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The second alleged procedural violation was the evaluation team’s refusal to
consider behavioral sub-scales that supported eligibility if each sub-score was first
standardized and then added as a total, as opposed to being totaled and then
standardized. Plaintiffs fail to address why the team’s refusal constituted a
procedural violation or otherwise was improper.
The third alleged procedural violation the Hearing Officer listed was the use
of a behavioral scale completed by a teacher who had not known N.E. for the
amount of time required by the Alabama Regulatory Code. Specifically, Plaintiffs
contend that the teacher who completed the behavior scale had known N.E. for five
weeks when the regulations require that the individual who competes the scale
know the subject child for at least six weeks. The Hearing Officer concluded that
this one week deficit was a de minimus procedural violation, because that teacher
had daily contact with the child. The Hearing Officer pointed to the guidance
manual for that behavior scale, which stated that the person competing that scale
can know the child for less than six weeks in some instances, such as when the
individual has had one month of daily contact with the child. While that guidance
manual is not part of the Alabama Regulatory Code, it indicates that this violation
did not prevent the parents from meaningful participation, deny N.E. a FAPE, or
deprive N.E. of an educational benefit.
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The fourth alleged procedural violation was TCBOE’s delay in providing
Plaintiffs the information the PST had reviewed during an early-2014 PST meeting.
E.E. requested the information on May 23, 2014, and renewed her request in June
of 2014. Plaintiffs did not receive that information until October 6, 2014. That
information indicated that N.E. was proficient in reading and math, close to
proficient in writing, was achieving above standards set by the State Department of
Education, and was proficient in general academics from the second grade through
the fourth grade. TCBOE’s delay in providing that information was a procedural
violation. Ala. Admin. Code 290-8-9-.08(2)(c) (stating that parents may review all
educational records relating to identification of their child as to the provision of a
FAPE and must be given the opportunity to review those records “without
unnecessary delay (not more than 45 days after the request has been made)”).
However, that procedural violation did not deny the parents meaningful
participation, deny N.E. a FAPE, or deprive N.E. of an educational benefit, as all of
those records indicated that N.E. was performing adequately in her current
curriculum and was not in need of a different educational placement.
These four alleged procedural violations, along with the failure to use the
August 12 observation, taken individually or looked at holistically, were not so
inadequate as to have impeded N.E.’s parents’ opportunity to participate, deprived
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N.E. of a FAPE, or deprived her of educational benefits. The only procedural
violation that, had it not occurred, could reasonably be said to have supported
Plaintiffs’ position that N.E. was not fully understanding lessons was the eligibility
team’s failure to consider the special education teacher’s observation form.
However, Plaintiffs fail to point to any evidence in the record showing that this
additional observation would have changed the eligibility team’s decision that N.E.
did not have a special education disability, especially in light of the fact that E.E.
indicated to TCBOE that she agreed with the eligibility team’s determination that
N.E. did not have a specific learning disability. (Record at Page 122–23.) Thus, the
Hearing Officer’s findings and determinations regarding these procedural
violations is due to be affirmed.
B.

Reimbursement for Costs of Independent Educational Evaluation

Plaintiffs further appeal the Hearing Officer’s determination that they were
not entitled to reimbursement for the IEE they obtained for N.E. Under the
Alabama Administrative Code, parents have a right to obtain an IEE of their child.
Further, “[a] parent has the right to an [IEE] at public expense if the parent
disagrees with an individual evaluation obtained by the public agency.” However, if
the public agency believes that its evaluation was appropriate and thus no IEE is
needed, it must request a due process hearing to determine whether its evaluation
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was in fact adequate. Ala. Admin. Code 290-8-9-.02(4)(d) (“If the final decision in
a due process hearing is that the agency’s evaluation is appropriate, the parent still
has the right to an [IEE], but not at public expense.”).
Plaintiffs contend that the Hearing Officer arrived at inconsistent
conclusions by finding that TCBOE met the standards for evaluating N.E. but then
directing TCBOE to conduct a speech-language evaluation of N.E. in the areas of
articulation and language through the use of a speech language pathologist. (Record
at Page 519–20.) The Hearing Officer then directed TCBOE to ensure that the
PST team convening after the due process hearing considered that speech language
pathologist’s report in making its determinations. (Record at Page 519.)
In other words, Plaintiffs contend that TCBOE’s evaluation of N.E. could
not meet the Alabama Regulatory Code requirement that all special education
evaluations be “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 has been identified.” Ala. Admin. Code 2908-9-.02(1)(t); see also Ala. Admin. Code 290-8-9-.02(1)(g) (“The child must be
assessed in all areas related to the suspected disability including, if appropriate,
health, vision, hearing, social and emotional status, general intelligence, academic
performance, communicative status, and motor abilities.”). While Dr. Goff’s IEE
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appears to have examined N.E.’s manner of speech and manner of communication
in a more in-depth manner, TCBOE did conduct an Oral Written Language Scales
(“OWLS”) assessment, which tested overall language, listening comprehension,
and oral expression. (Record at Page 803.) The results from the OWLS assessment
showed that N.E. scored above average in all three categories. (Record at Page
803.) While Plaintiffs’ IEE may have conducted a more extensive evaluation that
unearthed a possible speech disorder, the Hearing Officer did not err in finding that
TCBOE’s evaluation of N.E. was appropriate in its comprehensiveness. Thus, the
Hearing Officer’s determination that Plaintiffs are not entitled to reimbursement
for the IEE is due to be affirmed.
C.

The Prevailing Party

The IDEA permits the award of reasonable attorneys’ fees to the parent of a
child with a disability if they were the prevailing party in the litigation. 20 U.S.C. §
1415(i)(3)(B)(i)(I). While the Act fails to provide a definition of “prevailing party,”
federal courts have applied the same definition as is applied to other federal civil
rights statutes using that term. See, e.g., Mitten By & Through Mitten v. Muscogee
County School Dist., 877 F.2d 932, 936 (11th Cir. 1989) (stating that “the term
‘prevailing party’ [must] be given the same meaning it was given by the United
States Supreme Court, in Hensley v. Eckerhart, which employed the significant
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relief standard” to the term in the context of a § 1988 claim); Drennan v. Pulaski
County Special School Dist., 458 F.3d 755, 757 (8th Cir. 2006) (applying the
Supreme Court’s definition of “prevailing party” under § 1988 to an IDEA claim).
The “prevailing party” test applicable under § 1988, and thus applicable
under IDEA, has been stated as follows: “[A] plaintiff ‘prevails’ when actual relief
on the merits of his claim materially alters the legal relationship between the parties
by modifying the defendant’s behavior in a way that directly benefits the plaintiff.”
Farrar v. Hobby, 506 U.S. 103, 111–12 (1992). Further, “[w]hatever relief the
plaintiff secures must directly benefit him at the time of the judgment or
settlement.” Farrar, 506 U.S. at 111; see also Drennan v. Pulaski County Special
School Dist., 458 F.3d 755, 757 (8th Cir. 2006) (applying Farrar’s language when
determining whether the plaintiffs were the “prevailing party” under IDEA).
Here, Plaintiffs contend that they are a prevailing party even if this Court
affirms the Hearing Officer’s findings because the Hearing Officer concluded that
TCBOE deprived N.E. of educational benefits by failing to refer her back to a PST.
As a result, the Hearing Officer directed TCBOE to conduct a speech-language
evaluation of N.E. and to assemble a PST to consider the results of that evaluation
and determine what intervention strategies, if any, needed to be implemented for
N.E.’s benefit.
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However, the record in this case indicates that Plaintiffs sought the following
relief: (1) that the Hearing Officer find N.E. eligible for services under the disability
category of emotional disability, (2) that the Hearing Officer rule that TCBOE’s
testing of N.E. was incomplete and not sufficiently comprehensive, and (3) that the
Hearing Officer order TCBOE to reimburse Plaintiffs for the cost of the IEE.
(Record at Page 450.) Plaintiffs did not request any ruling directing TCBOE to
refer N.E. to a PST or a ruling that N.E. be evaluated for eligibility for services
under the category of speech or language impairment. Thus, the Court cannot say
that Plaintiffs prevailed on the merits of their claim, which instead requested
services under the category of emotional disability and for reimbursement for the
IEE.6
Further, while the Hearing Officer’s order modified the TCBOE’s behavior
by requiring it to convene a PST team and conduct a speech-language evaluation,
this modification did not directly benefit N.E. The record is bereft of, and parties

6

Plaintiffs offer a second variation of a test at least one court has used to determine whether a
party is a “prevailing party” under IDEA, offering a two-part test of “(1) ‘whether plaintiffs
achieved relief;’ and (2) ‘whether there is a causal connection between the litigation and the
relief from the defendant.’” D.B. v. Ocean Tp. Bd. of Educ., 985 F. Supp. 457, 540 *(D.N.J. 1997)
(quoting Wheeler v. Towanda Area Sch. Dist., 950, F.2d 128, 131 (3d Cir. 1991)). The first prong of
this test “requires only that the plaintiff ‘achieve[] some of the benefit sought in a lawsuit, even
though the plaintiff does not ultimately succeed in securing a favorable judgment.’” Id.
(alteration in original) (quoting Wheeler, 950 F.2d at 131). Even under this language, Plaintiffs
here did not achieve any of the benefit sought in their due process action, instead achieving relief
arising from a procedural violation that Plaintiffs failed to raise.
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cannot point to, any indication that the PST, considering the results of that speechlanguage evaluation, arrived at findings that changed N.E.’s educational plan.
Instead, Plaintiffs contend that TCBOE’s failure to refer N.E. to a PST was
significant because “[t]he Hearing Officer’s order itself probably will be viewed by
other school systems and will serve to change policy with this school district in the
future after a student is rejected for special education services.” (Doc. 15-1 at Page
31.) However, assuming that this contention is true, Plaintiffs have failed to show
that the relief they secured directly benefitted N.E. Thus, because Plaintiffs did not
prevail on the merits of their claim and because the Hearing Officer’s decision did
not materially alter TCBOE’s behavior in a manner that directly benefited N.E.,
Plaintiffs are not the prevailing party and are thus not entitled to attorneys’ fees.
IV. Conclusion
For the reasons stated above, TCBOE’s motion for summary judgment
(Doc. 16) is due to be GRANTED and Plaintiffs’ motion for summary judgment
(Doc. 15) is due to be DENIED. The Hearing Officer’s findings and determinations
challenged by Plaintiffs are due to be AFFIRMED. A separate order consistent
with this opinion will be entered.

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DONE and ORDERED on July 6, 2016.

_____________________________
L. Scott Coogler
United States District Judge
182184

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