NB v. Demopolis City Board of Education

Filing 29

ORDER entered re; 19 Motion for Summary Judgment. It is ORDERED that Defendant Demopolis City Board of Educations Motion for Summary Judgment is GRANTED and that this action is DISMISSED with prejudice. Judgment shall issue separately in accordance with this Order. Signed by Judge Kristi K. DuBose on 12/7/2012. (mca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
N.B., by and through his legal guardian,
advocate, and next friend, L.K.,
Plaintiff,
vs.
DEMOPOLIS CITY BOARD OF
EDUCATION,
Defendant.

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Civil Action No. 12-00012-KD-C

ORDER
This action is before the Court on the Defendant’s Motion for Summary
Judgment (Doc. 19) pursuant to Rule 56 of the Federal Rules of Civil Procedure and
Brief in support (Doc. 19-1), along with the Plaintiff’s Response in opposition (Doc. 26)
and the Defendant’s Reply to said response (Doc. 27).

Upon consideration, the Court

finds that the Defendant’s motion is due to be GRANTED.
I.

Background
While at school on December 13, 2010, Plaintiff N.B. (“N.B.”), a student enrolled

in the Demopolis City School District (“DCSD”), physically assaulted one of his teachers
and his school’s principal.

(Doc. 20-2 at 32, 35-36).

N.B. was subsequently charged

with a violation of the DCSD’s Student Code of Conduct and suspended.

The case

was turned over to juvenile authorities.
On December 15, 2010, N.B.’s legal guardian, L.K., filed a complaint requesting a
due process hearing pursuant to 20 U.S.C. § 1415, alleging that Defendant Demopolis
City Board of Education (“the Board”) had violated N.B.’s rights under the Individuals

with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”).

(Doc. 20-7 at 102).

A hearing was conducted over a period of five non-consecutive days from June 20, 2011,
through September 28, 2011.

(Doc. 20-8 at 9).

On December 14, 2011, the presiding

hearing officer issued his decision, finding that the Board provided N.B. with a free
appropriate public education (FAPE) and that the Board complied with the
requirements of IDEA in the development of N.B.’s individualized education program
(IEP).
On January 10, 2012, N.B., by and through L.K.,1 filed the present Complaint
pursuant to § 1415(g), appealing the hearing officer’s decision.

(Doc. 1).

N.B.

requests that the Court reverse the hearing officer’s decision and find in N.B.’s favor on
all issues.

N.B. seeks declaratory and injunctive relief, as well as all relief sought at the

hearing, “compensatory education/and or []education services,” attorneys’ fees, and
costs.

(Id. at 7-8).
In arguing that he is entitled to the relief sought, N.B. alleges that the Board:

1) “has failed to appropriately evaluate NB and find NB eligible for services in an
appropriate disability category with appropriate individual education plans and
services in those areas of disability” (Id. at 3, ¶ 10); 2) “has failed to provide, or
otherwise assure that NB has been provided with an appropriate educational program
that would allow him the opportunity to gain [social] skills” (Id., ¶ 11); 3) “has failed to
develop an IEP for NB that addresses his disabilities, and unique needs and
characteristics” (Id. at 5, ¶ 18); 4) “has failed to comprehensively evaluate NB as
required [and] has further denied NB a free, appropriate public education, as NB’s IEPs
1

Hereinafter, the Court will use “N.B.” to refer to both “N.B.” singularly and “N.B., by
and through L.K.”
2

failed to meet IDEA’s basic requirements” (Id., ¶ 21); and 5) “failed to provide related
services, to-wit, a board certified behavior analyst and/or related mental health services
to assist in the development and implementation of a behavior intervention plan” (Id., ¶
22).

Such failures “deprived [N.B.] of comprehensive evaluations, a free appropriate

public education in the least restrictive environment, related serves [sic] and assistive
technology, in violation of [IDEA].”

(Id. at 6, ¶ 29).

The Board filed the present motion for summary judgment on September 10,
2012 (Doc. 19), and it is now ripe for consideration.

The Court has jurisdiction over

this matter pursuant to 20 U.S.C. § 1415(i)(3)(A).
II.

Standard of Review
“The IDEA . . . represents an ambitious federal effort to promote the education of

handicapped children . . . The IDEA achieves its goals by guaranteeing students with
disabilities a Free and Appropriate Public Education (“FAPE”) . . . The services and
placement needed by each child with a disability to receive a FAPE must be based on
the child's unique needs and not on the child's disability . . . To provide a child with a
FAPE, the School Board formulates an IEP [(“individualized education program”)]
during a meeting between the student's parents and school officials.”

M.M. ex rel.

C.M. v. Sch. Bd. of Miami-Dade County, Fla., 437 F.3d 1085, 1094-95 (11th Cir. 2006)
(internal quotations omitted).

“Should parents elect to challenge an IEP, they are

entitled to a due process hearing before an ALJ [(“administrative law judge”)].”
1096 (citing 20 U.S.C. §§ 1412(a)(6)(A) & 1415(a)-(o); 34 C.F.R. § 300.403(b)).

Id. at

For a party

who does not prevail with the ALJ,
[t]he IDEA authorizes an “aggrieved” party to bring an action in federal court
challenging the ALJ 's final decision. 20 U.S.C. § 1415(i)(2)(A). Although the
federal action is an independent civil action and not merely a review of a state
administrative decision, the Supreme Court has determined that federal
3

courts must still give “due weight” to the ALJ's determinations. See [Bd. of
Educ. of Hendrick Hudson Cent. Sch. Dist. v. ]Rowley, 458 U.S. [176, ]206, 102
S. Ct. [3034, ]3051[ (1982)]; Loren F.[ v. Atlanta Independent Sch. Sys.], 349
F.3d [1309, ]1314[ (11th Cir. 2003)]. “To that end, administrative factfindings
are considered to be prima facie correct, and if a reviewing court fails to
adhere to them, it is obliged to explain why.” Loren F., 349 F.3d at 1314 n.5
(internal quotation marks and citations omitted).
The district court answers the same two-part inquiry as [the ALJ]: namely,
whether the School Board followed the IDEA's procedural requirement and
whether the proposed IEP was sufficient to provide the child with a FAPE.
Rowley, 458 U.S. at 206-07, 102 S.Ct. at 3051, 73 L.Ed.2d 690; Loren F., 349
F.3d at 1312. “A ‘yes' answer to both questions ends judicial review.” Loren F.
349 F.3d at 1312; see Rowley, 458 U.S. at 207, 102 S. Ct. at 3051 (“If these
requirements are met, the State has complied with the obligations imposed by
Congress and the courts can require no more.”).
However, should the district court determine either that the School Board
failed to follow the IDEA's procedural requirements or that the IEP was not
reasonably calculated to enable the student to receive education benefits, it
“shall grant such relief as the court determines is appropriate.” 20 U.S.C. §
1439(a)(1); see also 20 U.S.C. § 1412(a)(10)(C)(ii) (“[A] court or a hearing
officer may require [the School Board] to reimburse the parents for the cost of
that enrollment.”); 34 C.F.R. § 300.403(c) (“[A] court or a hearing officer may
require the agency to reimburse the parents for the cost of that [private
school] enrollment if ... the agency had not made FAPE available to the child
in a timely manner prior to that enrollment and ... the private placement is
appropriate.”). The reviewing court has broad discretion in determining what
is appropriate based on the circumstances of each case. See Burlington, 471
U.S. at 369, 105 S. Ct. at 2002.
Id. at 1097-98 (footnotes omitted).
As the Middle District of Alabama has noted,
[t]he standard by which a district court should review an administrative
decision under the IDEA is a murky one. On the one hand, the district court is
to conduct a de novo review of the [administrative law judge's] findings. Sch.
Bd. of Collier Cnty., Fla. v. K. C., 285 F.3d 977, 981 (11th Cir. 2002). The
Eleventh Circuit has explained that “the extent of the deference to be given to
the administrative decision is left to the sound discretion of the district court
which must consider the administrative findings but is free to accept or reject
them.” Walker Cnty. Sch. Dist. v. Bennett, 203 F.3d 1293, 1297–98 (11th
Cir.2000). However, an administrative decision “is entitled to due weight and
the court must be careful not to substitute its judgment” for that of the
hearing officer. Id.
4

K.I. ex rel. Jennie I. v. Montgomery Pub. Sch., 805 F. Supp. 2d 1283, 1291 (M.D. Ala.
2011).
The Eleventh Circuit has further explained that while “[c]ourts owe some judicial
deference to local administrative agency judgments, see Deal v. Hamilton County Dept.
of Educ., 259 F. Supp. 2d 687, 691–92 (E.D. Tenn. 2003) (When reviewing IEPs, court
keeps in mind that state and local administrative agencies are deemed to have expertise
in education policy and practice), []that's typically limited to matters calling upon
educational expertise. [Kings Local School Dist., Bd. of Educ. v. ]Zelazny, 325 F.3d [724,
]728 [(6th Cir. 2003) ](The amount of weight due to administrative findings under the
IDEA depends on whether the finding is based on educational expertise) (citing
McLaughlin v. Holt Pub. Sch. Bd. of Educ., 320 F.3d 663, 669 (6th Cir. 2003)). “

Loren

F. ex rel. Fisher v. Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1314 n.5 (11th Cir. 2003).
With regard to the disposition of a motion for summary judgment on IDEA
claims,
Eleventh Circuit precedent holds that “the usual [Rule] 56 summary
judgment principles do not apply in an IDEA case.” Loren F. v. Atlanta
Indep. Sch. Sys., 349 F.3d 1309, 1313 (11th Cir. 2003). Instead, a district court's
review of an IDEA appeal is “ ‘better described as a judgment on the record.’
“ Id. at 1313 (citing Beth B. v. Van Clay, 282 F.3d 493, 496 n.2 (7th Cir. 2002)).
Accordingly, “ ‘summary judgment [in IDEA cases] has been deemed
appropriate even when facts are in dispute.’ “ Id. (citing Beth B., 282 F.3d at
496 n.2).
When a district court reviews findings and decisions made during IDEA
administrative hearings, the court receives the administrative record, and
renders a decision based on a preponderance of the evidence. See Walker
Cnty. Sch. Dist. v. Bennett, 203 F.3d 1293, 1297-98 (11th Cir. 2000).
Ms. H. v. Montgomery Cnty. Bd. of Educ., No. 2:10CV247-WHA-SRW, 2011 WL 666033,
at *1 (M.D. Ala. Feb. 14, 2011) (Albritton, J.).
“The burden of proof in an administrative hearing challenging an IEP is properly
5

placed upon the party seeking relief.”
(2005).

Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62

See also Ala. Admin. Code r. 290-8-9-.08(9)(c) (“The party filing the hearing

request has the burden of proof with respect to any claimed violation or request for
relief.”).

The Court will apply the same standard to the present action.

Therefore,

N.B. bears the burden of proving that he is entitled to relief from the hearing officer’s
decision by a preponderance of the evidence.
III.

Facts
The administrative record establishes the following facts:
N.B. enrolled in the Demopolis County School District in August 2010.

was in seventh grade at the time of his enrollment in Demopolis.

N.B.

In the school year of

2009-2010, N.B. had attended Rudd Middle School in the school district of Jefferson
County, Alabama. N.B. had qualified for special education services while attending
Rudd.

His area of disability was “Other Health Impairment.”

The record indicates

that N.B. had been diagnosed with Oppositional Defiance Disorder (ODD), Mood
Disorder, Attention Deficit Hyperactivity Disorder (ADHD) and Post-traumatic Stress
Disorder (PTSD).
The Jefferson County School District had conducted a full IDEA evaluation of
N.B. prior to N.B.’s enrollment at Demopolis.

The evaluation report was made

available to Demopolis at the time of N.B.’s enrollment and contained results from a
number of different intelligence and behavioral tests.

Demopolis was also provided

N.B.’s most recent individualized education program (IEP) from the Jefferson County
School District at the time of N.B.’s August 2010 enrollment.

This annual IEP had been

developed by the Jefferson County School District on November 12, 2009, and was to be
implemented until November 12, 2010 (hereinafter, “the Jefferson County IEP”).
6

The Jefferson County IEP did not provide for specialized or differentiated
academic instruction, as N.B. was already successful academically.
address N.B.’s weaknesses in the area of behavior.

However, it did

Specifically, N.B. was prone to

outburst when he was asked to comply with directions and would become upset with
consequences given for not following or listening to directions.
Jennifer Lay is a special education teacher with Demopolis County.

She has a

bachelor's degree in education, a master's degree in emotional behavior disorders, and
an additional master's degree in Learning Disabilities.

On August 5, 2010, the day

that N.B. enrolled as a student at Demopolis Middle School, Lay first consulted with
N.B.’s guardians regarding his special education needs and was provided a copy of
the Jefferson County IEP.
few days later.

A follow-up consultation with the guardians was held a

Lay and the guardians reviewed N.B.'s 2008 eligibility report and the

Jefferson County IEP.
Based upon the information contained in the records from Jefferson County,
Lay concluded that the Jefferson County IEP had been successful during its
implementation at Rudd Middle School.

The guardians did not inform Lay of any

behavioral issues that were not already documented by the 2008 evaluation and the
Jefferson County IEP.

Lay states that the guardians were in agreement for

Demopolis to accept and implement the Jefferson County IEP without change.

The

decision to accept the Jefferson County IEP was consistent with Lay’s professional
expertise, the data documented on N.B.'s 2008 evaluation and IEP.
Initially, only Lay implemented the IEP.

However, after N.B. misbehaved in

mid-September, Lay distributed the Jefferson County IEP to all of N.B.'s teachers at
Demopolis Middle School.

Lay believed the behavioral assessment (FBA) conducted
7

by Rudd Middle School was appropriate and that it contained sufficient baseline data
for the IEP team to know how often N.B.'s behavior rose to the level of an office
referral.

As such, there was not a need for Demopolis Middle School to conduct

another FBA in either August or November 2010.
Lay also believed that the annual goal in the Jefferson County IEP was
measurable.

Specifically, the measurable aspect of the annual goal is for N.B. to have

no office referrals, due to the behaviors designated by the IEP, by the end of the IEP
period.

She believed that the Jefferson County IEP was appropriate and reasonably

calculated to provide an educational benefit to N.B.

She noted that the IEP provided

various behavior techniques and interventions such as de-escalation, redirection,
counseling, etc.

Pursuant to her educational background and ongoing training, Lay

believed that these services were appropriate to address N.B.'s educational needs
secondary to his disability.

Lay had also successfully used such techniques with

other students in the past that exhibited behavior similar to N.B.’s.
Lay identified some of the components of the Jefferson County plan that
supported her opinion that N.B. received a free appropriate public education while
attending Demopolis Middle School:
•

The provision of the IEP that allowed N.B. to come to her during the school day
to talk about issues one-on-one was an appropriate behavioral service for N.B.'s
IEP.

Lay would

individually counsel and provide instruction to N.B. as to

how to successfully address the behavioral issues confronting him.

This IEP

service de-escalated N.B's behavioral issues, helped N.B. maintain his
composure and demeanor in the classroom, and allowed N.B. to maintain his
placement in the general education classroom.
8

Lay found this technique

to

be an effective behavior management tool and it was consistent with her
training and education.
•

The portion of N.B.'s IEP that allowed N.B. to self-remove himself from class
for a few minutes if he felt that his behavior was escalating was reasonably
calculated to address N.B.'s behaviors. This behavioral technique was also
consistent with Lay’s education and training.

Lay observed that N.B. was able

to monitor his behavior and to utilize this technique without being prompted.
•

The Jefferson County IEP further provided N.B. a class period each day with
Lay, who utilized the period to address any behavioral issues N.B. may be
having and provide him with counseling and social skills training.

•

The Jefferson County IEP provided the technique of "planned ignorance,”
whereby N.B.'s teachers were instructed to ignore minor incidences of
misbehavior when correcting N.B. would likely lead to an escalation of his
behaviors.

•

N.B.’s classroom teachers were provided with an envelope.

If the teachers

observed that N.B.'s behavior was escalating, they were instructed to ask N.B.
to take the envelope to the office as a means of providing N.B. with a
cool-down period.
In Lay’s opinion, N.B.'s diagnosis of ODD in and of itself does not require a
more elaborate IEP than that provided by Demopolis, as N.B.'s behaviors were mild
and far less frequent in comparison to other students with a diagnosis of ODD.

Lay

also believes that the Demopolis had sufficient data in both August and November
2010 to determine the appropriateness of N.B.’s IEP.
When the IEP was set to expire in November 2010, Lay sent two meeting notices
9

for a November 11, 2010 IEP meeting to N.B.’s guardians.
home with N.B.

(Doc. 20-3 at 3, pp. 313-15).

guardians about the proposed meeting. (Id.).

These notices were sent

Lay did not follow up with N.B.’s

The guardians did not attend, but a copy

of the IEP developed at the meeting was sent to them following the meeting.
On November 11, 2010, N.B.’s IEP team met.

The November 2010 IEP team

included a local education agency representative, a general education teacher, a special
education teacher, and an individual capable of interpreting the implications of
evaluation results.
The November 2010 IEP team reviewed information as to N.B.'s office referrals
and behavior at Demopolis Middle School occurring from August 2010 to November
11, 2010.

N.B. had received three office referrals during this time. The office referrals

had been for tardiness, using profanity, and being disrespectful.

The fact that N.B.

had received office referrals during the IEP period meant that N.B. had not mastered
the annual goal of his IEP.

However, the IEP team determined that N.B.'s three office

referrals did not necessitate the need for increased IEP services for N.B. in the
upcoming IEP.

Lay believed that N.B.'s transition to a new school and home could

have been a reason for the office referrals from August to November 2010.

The IEP

team also found the three office referrals to be sporadic incidents that did not indicate
a pattern of misbehavior.
The IEP team decided to extend the Jefferson County IEP until May 26, 2011, as
N.B. had not mastered the annual goal of the IEP. The IEP team decided not to
increase the amount of services provided in the IEP.

Based upon her expertise, the

input from other IEP team members, and her knowledge of N.B. from working with
him on a daily basis since August 2010, Lay had a reasonable expectation that N.B.
10

would be able to master the annual goal of the November 2010 IEP with the supports
currently provided by the IEP.

Lay also believed that there was not a need in

November 2010 to conduct a new FBA or to revise the BIP contained in the
Jefferson County IEP.
The decision of the IEP team to continue the Jefferson County IEP is also
supported by the testimony of Martha McKnight.

McKnight is the special

education coordinator for the Demopolis County School District.

She was proffered at

the due process hearing as an expert in the area of special education.

At the time of the

due process hearing, she had worked in the field of education for 37 years, was certified
in elementary education, special education, and psychometry, had administered
numerous achievement and IQ tests, and was engaged in a university doctoral
program. McKnight had never met N.B.
McKnight’s opinion was that the decision to accept the Jefferson County IEP was
appropriate.

N.B. had had no office referrals in the 2008-2009 school year, he was not

enrolled in a behavior intervention classroom, and the behaviors N.B. began exhibiting
at Demopolis Middle School were consistent with those described in the Jefferson
County IEP.

McKnight also believed it would not have been appropriate for

Demopolis to do new evaluations or change N.B.’s current IEP at the time of his August
2010 enrollment, as Demopolis did not know N.B. well enough at that time to undertake
such tasks.
In McKnight’s opinion, the evaluation did not indicate the need for extensive
special education and related services.
•

Specifically, McKnight noted the following:

N.B.’s achievement test scores in all academic areas indicated that he was
academically achieving above an average student and was proficient at grade
11

level standards.
•

N.B. scored non-significant on four of the six behavioral rating scales conducted
by classroom teachers.

•

School data reviewed in determining the impact of N.B.’s behavior upon
education performance documented that N.B. would make noises, mumble, or
have an outburst when he was asked to comply with directions.

N.B. would

become upset with consequences given for not following or listening to
directions.

However, classroom observation did not document any instances of

N.B. attacking or assaulting his teacher when he became upset.
•

N.B.’s most recent IQ tests were statistically consistent, were within the standard
range of deviation, and established that N.B. was academically achieving
commensurate with his IQ level.

McKnight did not feel that N.B. had academic

weaknesses, only behavioral ones.
•

N.B. was obtaining passing marks in all of his academic classes and was
advancing grade level to grade level, indicating that N.B. was meeting grade
level course content standards.

•

A structured interview with N.B.’s parent established that N.B. had moderate
behavior issues that did not adversely affect his performance in school. The
parent reported that N.B. needed to accept constructive criticism and learn
appropriate social skills, but she did not report any prior physical aggression or
violence by N.B.
McKnight also testified that the November 2010 decision to the current IEP was

appropriate.

She noted that the extension of N.B.’s annual goal as delineated in the

Jefferson County IEP was appropriate because environmental stressors such as the
12

adjustment to his new school and home were likely temporarily delaying his ability to
reach his goals.

She also explained that it was not necessary to amend or revise the

Jefferson County IEP in November 2010 because the flexibility built into the IEP and BIP
allowed Demopolis to provide increasing supports if N.B.’s behavior escalated.
Although N.B. had received three office referrals for tardiness, disrespectfulness, and
profanity while enrolled in Demopolis, McKnight was of the opinion that such
behaviors were expected based on the Jefferson County IEP.

Moreover she opined that

the BIP and that the Jefferson County IEP contained appropriate services and tools to
address such behaviors, as they were reasonably designed to help N.B. reason and
model appropriate behavior.
Three of N.B.’s teachers also testified.
teacher at Demopolis Middle School.

Coty Goehagan is a seventh grade English

She has a Bachelor of Arts in English Language

Arts and is working on obtaining a Master's degree.

At the time of the hearing, she

has been a teacher for approximately four years.

Goehagan taught seventh grade

English to N.B. during the 2010-2011 school year.

Lay was a collaborative teacher in

the class.

N.B. earned a 79 as a semester average in her, which was average.

Goehagan testified that N.B. seldom exhibited inappropriate behavior in her classroom.
She was able to utilize verbal queues, de-escalation, cool-down time, and
communication to address any inappropriate behavior by N.B.

These techniques were

provided by N.B.'s IEP and BIP. Goehagan took N.B. out of the classroom in order to
cool down approximately three times during the first semester.

In Goehagan’s

opinion, the IEP services provided to N.B. were appropriate and no other services were
needed.
Blythe Smith is a seventh grade science teacher at Demopolis Middle School.
13

She has a bachelor's degree and is working on obtaining a master's degree.
of the hearing she had been a teacher for approximately seven years.
grade Science to N.B. during the 2010-2011 school year.
class was a 70, which is a C.
classroom.

At the time

Smith taught 7th

N.B.'s semester average in her

N.B. did not exhibit inappropriate behavior in her

She does not recall him being disrespectful, having verbal outbursts, or

presenting a negative attitude.
an obscene gesture.

Smith never heard N.B. use profanity or saw him make

In Smith’s opinion, the IEP services provided for N.B. were

appropriate, and she did not believe that N.B. needed more or different services.
Smith worked with Lay and routinely implements IEPs of special education students.
Donmonique Gracie is a seventh grade English teacher at Demopolis Middle
School.
Arts.

She has a Bachelor of Arts degree and a master's degree in English Language

At the time of the hearing, she had been a teacher for approximately four years.

Gracie taught Journalism to N.B. during the 2010-2011 school year.
collaborative teacher in the class.
is a C.

Lay was a

N.B.'s semester average in Journalism was 76, which

N.B. exhibited one episode of inappropriate behavior in Gracie’s class;

exhibiting a verbal outburst and using profanity when Gracie suggested that N.B.
should allow another student to portray a character that N.B. wanted to continue to
portray.
ear.

Lay was successful in calming N.B. down by whispering something in his

N.B. had also been verbally disrespectful to Gracie and had used profanity

toward Gracie and another faculty member. In Gracie’s opinion, the IEP services
provided to N.B. were appropriate and she did not believe that N.B. needed more or
different services.
L.K. is the guardian of N.B.

L.K. has a Delegation of Parental Rights for N.B.

pursuant to Alabama state law and has shared custody of him.
14

L.K. has been trained

and previously certified as a foster parent.

L.K. has taken additional training in

regards to being a therapeutic foster parent.
L.K. received the Jefferson County IEP and the Jefferson County school district
eligibility report from N.B.'s biological mother.
secretary at Demopolis Middle School.

L.K. gave the documents to the

L.K. states that she never told anyone that

she wanted to adopt or continue using the Jefferson County IEP.

She also never

received notice that there was an IEP meeting scheduled for N.B. on November 11,
2010.

Had she received notice, she would have attended.

L.K. also states that she

did not receive a copy of N.B.’s IEP from Demopolis.
L.K. states that during N.B.’s attendance at Demopolis Middle School, August –
December 2010, she was called at least eight times to either pick N.B. up or to come to
the school to attempt to calm him down.
him home four times.
weekly basis.

She was asked by school personnel to take

Lay and L.K. communicated about N.B.'s behavior on a

L.K. discussed with school personnel what was effective in handling

N.B.'s behavior at home and what was likely to escalate his behaviors.

L.K. believed

that N.B. responded positively to “talk therapy”.
After N.B. was suspended, L.K. did not allow N.B. to return to school.
Moreover, L.K. refused to attend the IEP meetings that were scheduled in January
2011 to address N.B.’s behavior and his further attendance at Demopolis Middle
School.
IV.

Analysis
In support of its motion for summary judgment, the Board argues that the

hearing officer’s decision is supported by the record evidence because: 1) the Board’s
acceptance of the Jefferson County reevaluation in August 2010 was appropriate, as the
15

Jefferson County evaluation was legally sufficient and Board was not required to
reevaluate N.B. at the time of his enrollment in its school district; 2) the Board’s
implementation of the Jefferson County IEP in August 2010 was appropriate, as it both
procedurally and substantively met the requirements of IDEA; 3) the Board’s November
11, 2010 decision to continue the annual goal in N.B.’s IEP complied with IDEA; 4) the
assault committed on December 13, 2010, by N.B. is not applicable to the
appropriateness of the IEP prior to that date; and 5) N.B. was not subjected to any
disciplinary change of placement prior to the filing of the due process complaint on
December 15, 2011.
In his Response, N.B. argues the following:
1. The Jefferson County IEP provided only one measurable annual goal: “N.B. will
accept personal responsibility for his actions without talking disrespectfully to
his teacher, and keeping negative comments to himself.”

N.B. argues that this

goal is not in fact measurable and does not address N.B.’s unique needs and
characteristics.

(Doc. 26-1 at 16-17, 20).

2. The Board’s decision to maintain the Jefferson County IEP was based on
information contained in an eligibility report that was at least two-and-a-half
years old at the time N.B. enrolled in the District.

(Id. at 17).

3. The Board was not entitled to adopt the Jefferson County IEP in August 2010
rather than develop its own, pursuant to 20 U.S.C. § 1414(d)(2)(C)(i)(I), because:
a. N.B. did not transfer to the DCSD from the Jefferson County School
District within the same academic year, (Id. at 17-18),
b. the Board did not consult with N.B.’s parent or guardians before doing so
(Id. at 18-20), and
16

c. the Board did not take steps to obtain N.B.’s records from the Jefferson
County School District, pursuant to § 1414(d)(2)(C)(ii)(I).

(Doc. 26-1 at

18-20).
4. N.B.’s guardians were provided inadequate notice of the Board’s November 2010
IEP meeting, at which the decision was made to continue implementing the
Jefferson County IEP.

(Id. at 19-20).

In its Reply, in addition to addressing the merits of N.B.’s arguments, the Board
claims that N.B. is barred from raising those arguments because they were not raised in
the original due process complaint giving rise to the underlying administrative hearing.
(Doc. 27 at 2-3).
a.

The Court will address this argument first.
Failure to raise issues in due process complaint

The Board does not cite any case law to support its proposition that N.B.’s failure
to set forth the above-listed arguments in his original due process complaint bars their
assertion in these proceedings.

The Board does cite 20 U.S.C. § 1415(f)(3)(B) (along

with its related regulation provision, 34 C.F.R. § 300.511(d)), which states: “The party
requesting the due process hearing shall not be allowed to raise issues at the due
process hearing that were not raised in the notice filed under subsection (b)(7), unless
the other party agrees otherwise.”
“The philosophy of the IDEA is that plaintiffs are required to utilize the elaborate
administrative scheme established by the IDEA before resorting to the courts to
challenge the actions of the local school authorities.

N.B. v. Alachua County Sch. Bd.,

84 F.3d 1376, 1378 (11th Cir. 1996) (quotation omitted) (emphasis added).

Thus,

exhaustion is a prerequisite to the civil action contemplated by § 1415, and a parent's
failure to exhaust administrative remedies by requesting and participating in a
17

due-process hearing will result in dismissal of the civil action.

Id.; see also Ass'n for

Retarded Citizens of Ala. v. Teague, 830 F.2d 158, 160 (11th Cir. 1987).”

Sch. Bd. of Lee

County, Fla. v. M.M. ex rel. M.M., 348 F. App'x 504, 511-12 (11th Cir. 2009).2
[T]he IDEA requires parents invoking the due process hearing mechanism to
provide notice to the educational agency including, without limitation, “a
description of the nature of the problem of the child relating to such proposed
initiation or change, including facts relating to such problem.” 20 U.S.C. §
1415(b)(7)(A)(ii) (emphasis added). But the statute does not specify that all
facts relating to the parents' dissatisfaction must be spelled out in the notice,
much less that every legal theory must be set forth in painstaking detail at
that time to avoid waiver.
Escambia Cnty. Bd. of Educ. v. Benton, 406 F. Supp. 2d 1248, 1259-60 (S.D. Ala. 2005)
(Steele, J.).
In Doe v. Alabama State Department of Education, 915 F.2d 651 (11th Cir. 1990),
the Eleventh Circuit analyzed the issue of exhaustion of administrative remedies under
the Education of the Handicapped Act (EHA), the predecessor of IDEA, and rejected an
argument similar to that presented by the Board where “[e]vidence regarding []alleged
procedural violations of the EHA was presented at the due process hearing.”

915 F.2d

at 660.
In this case, N.B.’s pro se due process complaint alleged as follows:
Violations of special education requirements including failure to implement
or follow the IEP [(“individual education plan”)] or BIP [(“behavior
intervention plan”)], a disciplinary change in placement as the result of a
series of removals totaling 16 days this school year, no manifestation
determination and failure to provide a copy of IDEA’s procedural safeguards
notice, failure to complete an FBA or revision of the BIP to address the
behaviors. [N.B.] was physically restrained by a teacher on December 13,
2010 and he was suspended for assault. N.[B.]’s behavior escalated to this
point as a result of the school personnel failing to follow N[.B.]’s BIP. N[.B.]
did not receive special education services while suspended. In addition, the
2

A thorough review of Eleventh Circuit case law regarding exhaustion of administrative
remedies for IDEA claims can be found in Atlanta Independent School System v. S.F ex rel.
M.F., No. 1:09-CV-2166-RWS, 2011 WL 721488, at *4-8 (N.D. Ga. Feb. 22, 2011).
18

SAP proctor implemented N[.B.]’s IEP and BIP by giving N[.B.] a copy of his
IEP and BIP and telling him he needed to read them.
N[.B.] has received two in-school suspensions (SAP) for five days each, has
been sent home due to behavior on three occasions, and was sent to the
juvenile detention center on 12/13/10. After meeting with the principal on
12/14/10, N[.B.] was supposed to attend school the remainder of the week,
complete his exams, and be suspended again after Christmas break. N[.B.]
came home with his disciplinary report after school on 12/14/10, after we
had met with the principal, and the report indicated that N[.B.] was placed on
at home suspension, was to report to school Friday to take all his exams, and
that we were to attend an IEP meeting regarding change of placement “after
school” on 12/15/10 [sic] We did not receive prior written notice of the IEP
meeting that is to occur this afternoon.
(Doc. 20-7 at 102).
However, the arguments presented by N.B. in his Response are largely taken
word-for word from the section of the hearing officer’s report entitled “Petitioner’s
Arguments”

(Doc. 20-8 at 41-43), with some analysis and disagreement with the

hearing officer’s determinations added.

Applying the reasoning of Doe, the Court

finds that N.B. may properly present his arguments in this action because they were
first raised at the underlying due process hearing, regardless of whether each and every
one of them was expressly stated in his due process complaint.
N.B.’s arguments 1 and 2, as set out above, appear to address the substantive
sufficiency of the Jefferson County IEP, while arguments 3 and 4 appear to address the
procedural requirements of IDEA. The Court will address the procedural issues first.
b.
1.

Compliance with IDEA’s procedural requirements

Continuation of the Jefferson County IEP in August 2010

“At the beginning of each school year, each local educational agency, State
educational agency, or other State agency, as the case may be, shall have in effect, for
each child with a disability in the agency's jurisdiction, an individualized education
program [(“IEP”)] . . . “

20 U.S.C. § 1414(d)(2)(A).
19

See also J.E. v. Boyertown Area

Sch. Dist., 834 F. Supp. 2d 240, 254 (E.D. Pa. 2011), aff'd sub nom. J.E. ex rel. J.E. v.
Boyertown Area Sch. Dist., 452 F. App'x 172 (3d Cir. 2011) (“The IDEIA requires that an
IEP be in place as of the first day of school.”) (citing § 1414(d)(2)(A) and 34 C.F.R. §
300.323(a)).

N.B. argues that the Board did not have a valid IEP in effect for N.B. from

August 2010 until November 2010, when N.B.’s IEP team decided to continue using the
Jefferson County IEP.

N.B. claims that the Board erroneously relied on §

1414(d)(2)(C)(i)(I), which states:
In the case of a child with a disability who transfers school districts within the
same academic year, who enrolls in a new school, and who had an IEP that
was in effect in the same State, the local educational agency shall provide
such child with a free appropriate public education, including services
comparable to those described in the previously held IEP, in consultation
with the parents until such time as the local educational agency adopts the
previously held IEP or develops, adopts, and implements a new IEP that is
consistent with Federal and State law.
As to this issue, the hearing officer determined: “Because N.B. transferred to
Demopolis Middle School from another Alabama public school and because he
transferred after the school year had started, the Demopolis City School District was not
required to have an IEP meeting in August of 2010 in order to implement the Jefferson
County IEP.”

(Doc. 20-8 at 46).3

N.B. claims that he began the 2010-2011 academic year in the DCSD.

Because he

did not “transfer[] school districts within the same academic year,” he argues, the
DCSD was required to have an IEP formally implemented at the beginning of the school
year.

N.B. argues that the hearing officer’s findings on this issue are erroneous

because no evidence was presented showing that N.B. was enrolled in the Jefferson
County School District during the 2010-2011 academic year and because L.K., N.B.’s
3

The Court notes that L.K. testified that N.B. enrolled on the third day of school, thus the
finding that N.B. transferred after the school year started is supported by the evidence.

20

guardian, testified that N.B. came to live with her in July 2010, (Doc. 20-3 at 47, p. 489),
the month prior to the opening of school in the School District.
In its Reply, the Board appears to agree that § 1414(d)(2)(C)(i)(I) does not apply
in this case (apparently contradicting both the hearing officer’s findings, supra, and its
own argument at the due process hearing, (see Doc. 20-3 at 16)), but argues that the
requirement of § 1414(d)(2)(A) that an IEP be in place at the beginning of the school
year was still satisfied because the Jefferson County IEP was immediately implemented
by the District at the beginning of the 2010-2011 academic year in consultation with L.K.
and was still current, as it had been developed within the year (in November 2009).
The Board also points out correctly that there is no specific requirement that N.B. be
reevaluated when he changes school districts while an IEP is still current.
Accordingly, the Court finds no procedural violation in the DCSD’s decision to
continue with the Jefferson County IEP.
N.B. also argues that the acceptance of the Jefferson County IEP in August 2010
was not carried out “in consultation with [his] parents” as § 1414(d)(2)(C)(i)(I) requires.
The hearing officer found that such consultation “occurred in this case.”
46).

(Doc. 20-8 at

N.B. claims that no evidence of such consultation was presented and that “[t]he

hearing officer has elevated conversations between L.K. and N.B.’s teacher to the level
of an IEP consultation.”

(Doc. 26-1 at 18).

However, a review of the testimony of Ms.

Lay indicates that N.B.’s parents were sufficiently consulted.4 Accordingly, the Court
finds sufficient evidence in the record to support and concur with the hearing officer’s
determination that N.B.’s guardians were consulted as to the continuation of the
4

L.K. testified that, when she provided the Jefferson County IEP to the School District, she did
not tell them that she wanted to adopt or continue using that IEP. (Doc. 20-3 at 50, p. 501).
The Court finds this assertion is not determinative of whether appropriate “consultation” took
place.

21

Jefferson County IEP in August 2010.
Finally, N.B. argues that the Board, in continuing its use of the Jefferson County
IEP in August 2010, did not comply with § 1414(d)(2)(C)(ii)(I), which states: “To
facilitate the transition for a child described in [§ 1414(d)(2)(C)(i),] the new school in
which the child enrolls shall take reasonable steps to promptly obtain the child's
records, including the IEP and supporting documents and any other records relating to
the provision of special education or related services to the child, from the previous
school in which the child was enrolled[.]”

N.B. claims that no evidence was presented

that the Board made any attempt to obtain N.B.’s records from the Jefferson County
School District.

As to this issue, the hearing officer stated:

The Petitioner at hearing raised the issue of when the District received all of
the records of the child from Jefferson County. Such an issue was not raised
in the Petitioner’s due process complaint and the issue sounds more akin to a
FERPA issue than an IDEA. But in any event, M.M. testified that there was
nothing in the full set of records that would have changed her opinions
provided in this matter as to the appropriateness of N.B.’s IEP and
evaluation.
(Doc. 20-8 at 46 n.3).
“Not every procedural defect results in a violation of the IDEA.

Rather, ‘[i]n

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.’ ”
G.J. v. Muscogee County Sch. Dist., 668 F.3d 1258, 1270 (11th Cir. 2012) (quoting Weiss
by Weiss v. School Bd. of Hillsborough Cnty., 141 F.3d 990, 994 (11th Cir. 1998)
(adopting order of district court)). In considering the impact of the defect, the Court
looks to whether it thwarted the purpose of the procedural requirement and whether it
resulted in harm to the child.

See Weiss, 141 F.3d at 996.

“[T]o successfully seek

compensation flowing from a procedural violation of the IDEA, one of the following
22

two types of harm must be proved: (1) failure to provide educational benefit or (2)
restriction of the parents' ability to participate fully in their child's education.”
Gwinnett Cnty. Sch. Dist. v. J.B. ex rel. D.B., 398 F. Supp. 2d 1245, 1249 (N.D. Ga. 2005)
(citing Collier Cnty. Sch. Bd. v. K.C., 285 F.3d 977, 982 (11th Cir. 2002); Weiss, 141 F.3d
at 997).

See also DeKalb Cnty. Sch. Dist. v. J.M., No. 1:06-CV-125-TCB, 2008 WL

8429694, at *5 (N.D. Ga. Sept. 3, 2008) aff'd, 329 F. App'x 906 (11th Cir. 2009) (“[T]o
succeed on a procedural challenge, W.M. must show that harm flowed from the
procedural violations . . . To do this, W.M. must show that the procedural violations
resulted in a failure to provide an educational benefit or restricted the ability of the
parents to participate fully in their child's education.

Gwinnett County Sch. Dist. v.

J.B. ex rel. D.B., 398 F. Supp. 2d 1245, 1249 (N.D. Ga. 2005).”); K.A. ex rel. F.A. v. Fulton
Cnty. Sch. Dist., No. 1:11-CV-727-TWT, 2012 WL 4403778, at *2 (N.D. Ga. Sept. 21, 2012)
(slip copy) (“In order to obtain relief, the Plaintiffs would have to demonstrate that
procedural violations resulted in substantive educational harm to K.A. or denied K.A.'s
parents the right to meaningfully participate.”).
As the hearing officer specifically noted, the testimony of the Board’s special
education expert indicates that the Board would have found the Jefferson County IEP to
be appropriate for N.B. regardless of whether it possessed all of N.B.’s records from the
Jefferson County School District.

N.B. has not presented any argument or identified

any evidence indicating how this procedural defect negatively impacted him.
Therefore, the Court finds this procedural defect to be harmless and that it did not
deprive N.B. of a FAPE.
2.

IEP Meeting in November 2010

N.B. argues that his guardians did not receive notice of the November 11, 2010
23

IEP meeting, at which the decision was made to extend the use of the Jefferson County
IEP for N.B. to May 26, 2011 (Doc. 20-8 at 33).

Thus, they claim they were not given the

opportunity to participate in determining an appropriate IEP for N.B.

L.K. testified to

this effect at the due process hearing, stating that had she received notice of the IEP
meeting she would have attended.

(Doc. 20-3 at 50, p. 501; Doc. 20-4 at 3, p. 526).

N.B. cites to 290-8-9-.05(5) of the Alabama Administrative Code, which states
in relevant part:
(a) Each public agency must take steps to ensure that one or both of the
parents of a child with a disability are present at each IEP meeting or are
afforded the opportunity to participate, including the provision of a written
notification of the IEP meeting early enough to ensure that they will have an
opportunity to attend and scheduling the meeting at a mutually agreed upon
time and place.
...
(d) A meeting may be conducted without a parent in attendance if the public
agency is unable to convince the parents that they should attend. In this case,
the public agency must keep a record of reasonable efforts (at least two
attempts) to arrange a mutually agreed on time and place such as detailed
records of telephone calls made or attempted and the results of those calls,
copies of correspondence sent to parents and any responses received, and
detailed records of visits made to the parent's home or place of employment
and the results of those visits.
Similarly, the Code of Federal Regulations states:
(a) Public agency responsibility--general. Each public agency must take steps
to ensure that one or both of the parents of a child with a disability are
present at each IEP Team meeting or are afforded the opportunity to
participate, including—
(1) Notifying parents of the meeting early enough to ensure that
they will have an opportunity to attend; and
(2) Scheduling the meeting at a mutually agreed on time and place.
...

24

(d) Conducting an IEP Team meeting without a parent in attendance. A
meeting may be conducted without a parent in attendance if the public
agency is unable to convince the parents that they should attend. In this case,
the public agency must keep a record of its attempts to arrange a mutually
agreed on time and place, such as—
(1) Detailed records of telephone calls made or attempted and the
results of those calls;
(2) Copies of correspondence sent to the parents and any responses
received; and
(3) Detailed records of visits made to the parent's home or place of
employment and the results of those visits.
34 C.F.R. § 300.322 (effective Oct. 13, 2006).
The Board claims that the Board sent two notices of the November 2010 IEP
meeting to N.B.’s guardians, citing testimony by Lay that she sent two notices home
through N.B.

(Doc. 20-3 at 3, pp. 313-15).

No follow-up by phone was made prior to

the IEP meeting being held without N.B.’s guardians.
The hearing officer did not address this argument in his decision.

The Court is

dubious that sending notices home with a special needs child, then failing to make even
one follow-up telephone call to the guardians when no response to the notices was
received, constitutes reasonable efforts to afford N.B.’s guardians the opportunity to
participate in the November 2010 IEP meeting.

However, even if the Court were to

determine that this was a procedural violation, N.B. has not shown by a preponderance
of the evidence that this defect restricted his guardians’ “ability to participate fully in
their child's education[,]”

Gwinnett Cnty. Sch. Dist., 398 F. Supp. 2d at 1249, or

otherwise denied him a FAPE.

While parental involvement in the education of

special-needs children is “a goal of the IDEA,” it is “not []an absolute requirement[.]”
Loren F. ex rel. Fisher v. Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1313 n.2 (11th Cir.
25

2003).
L.K. testified at the hearing that she would consult with school staff concerning
N.B.’s behavioral issues and strategies for dealing with them, and that the staff
members were receptive to her suggestions.

(Doc. 20-4 at 2-3, p. 521-23).

L.K.

maintained regular contact with Lay and would speak with her “at least once a week.”
(Doc. 20-3 at 51, p. 506).
education by L.K.

This evidence indicates an active involvement in N.B.’s

N.B. does not claim that the Board did not in fact send notice of the

November 2010 IEP meeting, only that his guardians did not receive it.

He has also

not shown how his guardians were prejudiced by not attending the meeting – failing to
present, for instance, evidence of any concerns or suggestions they would have
presented at the meeting, or even whether they would have objected to the IEP
implemented at the meeting at all.

Even if N.B.’s guardians had objections to the

Jefferson County IEP, however, “IEP team consensus does not require parental
agreement in order to satisfy the IDEA.”

Rosinsky ex rel. Rosinsky v. Green Bay Area

Sch. Dist., 667 F. Supp. 2d 964, 984 (E.D. Wis. 2009) (citing Hjortness ex rel. Hjortness v.
Neenah Joint Sch. Dist., 507 F.3d 1060, 1065-66 (7th Cir. 2007)).

Moreover, L.K.

admitted that, during her visits to the school, she did not question school personnel
about any failure to have an IEP in place for N.B.

(Doc. 20-4 at 3, p. 524).

Such a lack

of inquiry further weakens N.B.’s argument that his guardians were deprived of a
meaningful opportunity to develop his IEP.
The ultimate issue is whether this procedural violation resulted in harm to N.B.’s
right to a FAPE.

No evidence has been presented that would support such a finding.

Rather, the evidence is that the DCSD addressed N.B.’s behavioral problems on a daily
basis with extensive counseling and special treatment of N.B.’s defiance to authority in
26

an effort to keep N.B. on track. For these reasons, the Court finds that N.B. has failed
to sufficiently show harm arising from his guardians’ absence from the November 2010
IEP meeting.
c.

Sufficiency of the Jefferson County IEP

IDEA requires that an IEP contain “a statement of measurable annual goals,
including academic and functional goals, designed to -- (aa) meet the child's needs that
result from the child's disability to enable the child to be involved in and make progress
in the general education curriculum; and (bb) meet each of the child's other educational
needs that result from the child's disability[.]”

§ 1414(d)(1)(A)(i)(II).

N.B. argues that

the Jefferson County IEP is substantively deficient because the one annual goal that it
sets forth is neither measurable nor sufficiently individualized to meet N.B.’s needs.
N.B. offers little in the way of evidence to support his conclusory statements, pointing
only to N.B.’s disorders and medications (apparently asking the Court to draw its own
uninformed conclusions from these medical facts) and the fact that N.B.’s case manager
did not think that the IEP was well-written.
However, the hearing officer’s “Summary of the Evidence” extensively notes the
testimony of the Board’s special education expert and several of N.B.’s teachers
indicating both that the Jefferson County IEP was appropriate for N.B.’s needs, which
are behavioral rather than academic in nature, and that the annual goal was measurable
(by office discipline referrals (Doc. 20-8 at 22, 31)).

“[T]he provision that a reviewing

court base its decision on the ‘preponderance of the evidence’ is by no means an
invitation to the courts to substitute their own notions of sound educational policy for
those of the school authorities which they review.”

Bd. of Educ. of Hendrick Hudson

Cent. Sch. Dist., Westchester County v. Rowley, 458 U.S. 176, 206 (1982).
27

The Eleventh

Circuit has cautioned that “[c]ourts owe some judicial deference to local administrative
agency judgments” in “matters calling upon educational expertise.”
at 1314 n.5.

Loren F., 349 F.3d

N.B. has given the Court no significant reason to disregard either the

testimony of these education professionals or the findings of the hearing officer as to the
appropriateness of the Jefferson County IEP, and the Court will not substitute its own
judgment for theirs.
N.B. also questions the sufficiency of the Jefferson County IEP by arguing that
“[t]he Defendant’s logic in maintaining” it was “based upon what was contained in the
eligibility report[,]” with the most current assessments in the report being “almost 2½
years old at the time N.B. transferred to Defendant’s school system” and with some
information being older.

(Doc. 26-1 at 17).

The hearing officer did not specifically

address this argument.

However, § 1414(a)(2)(B)(ii) states that reevaluations for

identifying a child’s disabilities and determining his educational needs “shall occur[]at
least once every 3 years[.]”

N.B. has provided no specific reasons, nor identified any

specific record evidence, indicating why the age of the information in the eligibility
report rendered it unusable or inappropriate in the Board’s decision to maintain the
Jefferson County IEP.
The Court finds that the hearing officer’s determinations on the substantive
sufficiency of the Jefferson County IEP are supported by the administrative record, and
the Court concurs with those determinations.
V.

Conclusion
For the reasons stated, the Court affirms the decision of the hearing officer and

finds that the Board did not deny N.B. a free appropriate public education at any time
relevant to this action.

Therefore, it is ORDERED that Defendant Demopolis City
28

Board of Education’s Motion for Summary Judgment (Doc. 19) is GRANTED and that
this action is DISMISSED with prejudice.

Judgment shall issue separately in

accordance with this Order.
DONE and ORDERED this the 7th day of December 2012.
/s/Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

29