C.C and P.C. v. School Board Broward, et al
Filing
487
OPINION AND ORDER denying without prejudice 456 Motion to Certify Class; granting in part and denying in part 459 Motion for Summary Judgment; denying as moot 477 Motion to Strike ; denying as moot 477 Motion for Leave to File surreply. Signed by Judge Kenneth A. Marra on 9/23/2014. (ir)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-60032-CIV-MARRA
C.C. and P.C. on behalf of A.C., a minor,
and on behalf of all other similarly situated
disabled children,
Plaintiffs,
vs.
THE SCHOOL BOARD OF BROWARD
COUNTY, FLORIDA,
Defendant.
_________________________________________/
OPINION AND ORDER
This cause comes before the Court upon Plaintiff’s Motion for Class Certification (DE 456)
and Defendant, School Board of Broward County’s, Motion for Summary Judgment (DE 459). The
Motions are ripe for review. On May 8, 2014, this Court held a hearing. The Court has considered
the parties’ arguments and is otherwise advised in the premises. For the reasons stated below,
Plaintiff’s Motion for Class Certification (DE 456) is DENIED WITHOUT PREJUDICE, and
Defendant’s Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART.
I. Background1
Plaintiffs C.C. and P.C. are the mother and father of A.C., a minor. A.C. has been diagnosed
with an autism spectrum disorder (“ASD”). Prior to his third birthday, A.C. received speech therapy,
1
Unless otherwise noted, the background facts in this section are drawn from Defendant, School Board of
Broward County’s, Statement of Undisputed Material Facts and supporting evidence (DE 462). Plaintiff did not file a
statement admitting or denying Defendant’s facts as required by the Local Rules in effect at the time the Motion for
Summary Judgment was being briefed. See S.D. Fla. L. R. 56.1(b) (Dec. 2, 2012). The Court finds Defendant’s
Statement supported by the record. Thus, Defendant’s facts are considered to be admitted. See id.
Plaintiffs did file an opposition to the Motion for Summary Judgement as well as their own Statement of
Uncontested Material Facts and supporting evidence (DE 468), which the Court has also considered in the analysis. In
any event, the background facts are not in dispute.
occupational therapy, and applied behavioral analysis (“ABA”) under Part C of the Individuals with
Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”).2 These services were not provided
by the Defendant School Board of Broward County (“School Board”).
On July 17, 2007, when A.C.’s education was about to come within the purview of the
School Board, the School Board conducted a meeting for the purpose of developing an
individualized education program (“IEP”) for A.C. C.C. and Dr. David Lubin, A.C.’s private
behavioral specialist, attended the meeting. Thereafter, the School Board prepared an IEP for A.C.
The School Board wanted A.C. to attend the Baudhuin Oral Preschool, a school for autistic children.
However, this school was far from C.C.’s home, and C.C. elected not to enroll A.C. in any of the
School Board’s schools in 2007.
C.C. requested ABA therapy for A.C. at the July 2007 IEP meeting, but the School Board
officials “didn’t really want to hear what [she] had to say during the IEP meeting.” C.C. Dep., p. 43
(DE 462-2). A.C. continued to receive ten hours of ABA therapy per week, for which Plaintiffs paid.
C.C. had two complaints regarding the 2007 IEP process: (1) that she was not allowed to
meaningfully participate in the development of the plan, and (2) that the request for ABA therapy
was denied. (DE 468). However, Plaintiffs did not initiate any due process administrative
proceedings regarding the 2007 IEP.3
2
“Under Part C of the IDEA, states must provide disabled children under three years of age with an
individualized family service plan, or IFSP, setting forth specific early intervention services necessary for the toddler
or infant and their family. 20 U.S.C. § 1435(a)(4). Under Part B of the IDEA, states must provide disabled children
between the ages of three and twenty-one with the opportunity to receive a ‘free appropriate public education’ (‘FAPE’)
by offering each student special education and related services under an individualized education program, or IEP. 20
U.S.C. § 1412(a)(1)(A), (a)(4).” L.M.P. ex rel. E.P. v. Sch. Bd. of Broward Cnty., Fla., 516 F. Supp. 2d 1305, 1311
(S.D. Fla. 2007).
3
At approximately the same time, Plaintiffs requested an independent educational evaluation (“IEE”) of A.C.
The School Board denied that request, and an administrative proceeding took place. The issue before the Administrative
Law Judge (“ALJ”) was “[w]hether the Broward County School Board conducted an adequate and appropriate evaluation
2
Subsequently, the School Board held a meeting to create an IEP for A.C. for the 2008-2009
academic year. C.C. and her attorney attended the meeting on behalf of A.C. As a result of that
meeting, an IEP was developed in August of 2008. The School Board again recommended that A.C.
attend the Baudhuin Oral Preschool. However, after C.C. complained that it was far, A.C. was
enrolled in Park Springs Elementary. Park Springs Elementary was a school serving both special
and general education students with an appropriate type of classroom for A.C., which was closest
to C.C.’s home. C.C. had the same two complaints with respect to the 2008 IEP process, but again
initiated no administrative proceedings. During the 2008-2009 school year, A.C. continued to
receive ten hours per week of ABA therapy paid for by Plaintiffs.
On April 28, 2008, A.C. filed a Complaint in Intervention in a related case brought by L.M.P.
on behalf of E.P., D.P., and K.P. (the “Triplets”)against the School Board, 05-60845-KAM. L.M.P.
had exhausted administrative remedies with respect to the denial of ABA therapy and
predetermination of placement before initiating her case in 2005. See Final Order (DE 239-1 in 0560845).4 L.M.P. originally proceeded individually (DE 1 in 05-60485), but on October 17, 2006
filed a Second Amended Class Action Complaint (DE 126 in 05-60845). On August 6, 2009, L.M.P.
and Plaintiffs C.C. and P.C. filed Motions to Amend the pleadings. (DE 245, 246 in 05-60845). On
January 4, 2010, this Court held a hearing on these Motions. The parties indicated that they had
decided that L.M.P. was no longer going to pursue class claims, and that C.C, and P.C. would step
in as putative class representatives and pursue class claim. This created an unusual procedural
of A.C. and properly refused his parents’ request for an independent educational evaluation.” (DE 196-1). The ALJ held
that A.C. was entitled to an IEE at public expense. Id.
4
A district court may take judicial notice of its own record in another case. See Aloe Creme Labs., Inc. v.
Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970). Also, Plaintiffs heavily rely on the record of L.M.P.’s action.
3
posture. The Court suggested that the cases should be bifurcated, and the parties acquiesced.
On January 8, 2010, L.M.P.’s and C.C. and P.C.’s cases were bifurcated. (DE 283 in 0560845). L.M.P. was permitted to file a Third Amended Complaint as to individual claims only. (DE
320 in 05-60845).5 Plaintiffs C.C. and P.C., however, filed an Amended Complaint asserting both
individual and class claims. C.C. and P.C.’s Amended Complaint stated that they sought to represent
the class “composed of all Broward County Public School students with ASD who requested one
to one ABA be considered as an educational intervention under the IDEA, and, ASD children who
were automatically denied the right to attend a public school, and who were assigned to insular
private, segregated, school solely for ASD children, despite the fact that such children could have,
and should have, received a free appropriate public education in a less restrictive public school.”
Am. Compl., ¶ 68 (DE 286-1).
On January 18, 2013, Plaintiffs C.C. and P.C. filed their Motion for Class Certification. This
time Plaintiffs are seeking certification of a class defined as “all children who have been diagnosed
with ASD and were enrolled at any level in the Broward County School District at any time between
January 22, 2004 and the date the Court grants the certification Order.” (DE 456). The Motion for
Class Certification states that L.M.P.’s children are excluded from the class. Also on January 18,
2013, the School Board moved for summary judgment on C.C. and P.C.’s claims. These Motions
for Class Certification and for Summary Judgment are before the Court now.
C.C. and P.C.’s operative Amended Complaint alleges: violation of A.C.’s right to a free and
5
By a contemporaneous order, this Court is granting in part and denying in part the School Board’s Motion for
Summary Judgement in the L.M.P. action, dismissing L.M.P.’s section 1983 claim, and finding that a bench trial is
necessary to resolve L.M.P.’s claims brought under the IDEA and section 1003.57 of the Florida Statutes, and that a jury
trial is necessary to resolve the Rehabilitation Act claim.
4
appropriate public education (“FAPE”) under the IDEA (count I); violation of A.C’s rights under
the Rehabilitation Act, 29 U.S.C. § 794 (count II); attorney’s fees under the IDEA, 20 U.S.C. §1415
(count III); violation of A.C.’s rights under Fla. Stat. § 1003.57 (count IV); and violation of 42
U.S.C. § 1983 based on the School Board’s failure to provide A.C. with a FAPE under the IDEA
(count V)6. (DE 286-1). Additionally, the Amended Complaint asserts two class claims: denial of
benefits in violation of the Rehabilitation Act (class claim I); and denial of benefits in violation of
the IDEA (class claim II). Id. In each of the claims Plaintiffs ask for declaratory and injunctive
relief, as well as for an award of costs of continued services wrongfully denied, compensatory
education, compensatory damages, attorney’s fees, costs, pre- and post-judgment interest. Id.
Plaintiffs’ position is that children with ASD are never allowed to receive ABA therapy, and that
parents are not allowed meaningful participation in the IEP process.
In the opposition to the Motion to Certify Class the School Board argues that the proposed
class definition is too broad, the Plaintiffs lack standing because they have not exhausted the
administrative remedies, that the School Board has no policy of predetermination of placement or
unavailability of options for children with ASD, and that Plaintiffs do not satisfy the numerosity,
commonality, and typicality requirements. In the Motion for Summary Judgment, the School Board
argues that Plaintiffs’ claims fail as a matter of law because Plaintiffs have not exhausted their
administrative remedies. Likewise, the School Board asserts that Plaintiffs were allowed to
participate in the IEP process, and that the School Board has no policy of disallowing ABA therapy.
6
This count is also numbered as “Count IV,” but it is actually the fifth claim.
5
II. Motion for Summary Judgment
A. Legal standard
There is a dispute as to whether this Court should apply Rule 56 or Rule 52 standard in ruling
on Defendant’s Motion for Summary Judgment. The Court finds that Counts II and V are subject
to Rule 56, and Counts I, III, and IV are subject to Rule 52.
1. Rule 56 standard
The Court may grant summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The stringent burden of establishing the absence of a genuine issue of material
fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court
should not grant summary judgment unless it is clear that a trial is unnecessary, see
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and any doubts in this regard should be
resolved against the moving party, see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
The movant “bears the initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of [the record], which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. To discharge this burden, the
movant must point out to the Court that there is an absence of evidence to support the nonmoving
party’s case. Id. at 325.
After the movant has met its burden under Rule 56(a), the burden of production shifts and
the nonmoving party “must do more than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Electronic Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). “A party asserting that a fact cannot be or is genuinely disputed must
6
support the assertion by citing to particular parts of materials in the record . . . or showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A) and (B).
Essentially, so long as the non-moving party has had an ample opportunity to conduct
discovery, it must come forward with affirmative evidence to support its claim.
Anderson, 477 U.S. at 257. “A mere ‘scintilla’ of evidence supporting the opposing party’s position
will not suffice; there must be enough of a showing that the jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). If the evidence advanced by the
non-moving party “is merely colorable, or is not significantly probative, then summary judgment
may be granted.” Anderson, 477 U.S. 242, 249–50 (internal citations omitted).
Generally, “at the summary judgment stage the judge's function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Because there is no right to a jury
trial under the IDEA, Rule 56 standards do not apply in IDEA cases, and district judges may engage
in factfinding with respect to IDEA claims. Loren F. ex rel. Fisher v. Atlanta Indep. Sch. Sys., 349
F.3d 1309, 1313 (11th Cir. 2003).
However, there may be a right to a jury trial under section 504 of the Rehabilitation Act, 29
U.S.C. §794(a), when plaintiff seeks legal remedies. See Waldrop v. Southern Co. Serv., Inc., 24
F.3d 152, 155-57 (11th Cir. 1994) (alleged discrimination by an employer); Whitehead by & through
Whitehead v. Sch. Bd. for Hillsborough Cnty., Fla., 918 F. Supp. 1515, 1523 (M.D. Fla. 1996)
(alleged discrimination by a school board). Here, Plaintiffs seek legal remedies.
Plaintiffs argue that they are excused from the requirement to exhaust administrative
7
remedies, and that in the absence of the administrative record, Rule 56 should apply to all claims in
this case. Plaintiffs came into L.M.P.’s case as intervenors. Therefore, they are only able to proceed
without having exhausted their administrative remedies due to the fact that L.M.P. has done so. See
section (II)(B)(2)(a) infra. Therefore, this Court will attribute L.M.P.’s administrative record on the
issues of predetermination. In fact, Plaintiffs’ counsel in this case cites to the transcript of the
administrative hearing held in the L.M.P. case. Therefore, an administrative record will be available,
and the Court will apply the Rule 52 standard to the claims brought pursuant to the IDEA and section
1003.57 of the Florida Statutes, and will apply the Rule 56 standard to the claims brought pursuant
to the Rehabilitation Act and section 1983 of Title 42.
2. Rule 52 standard
The IDEA authorizes an “aggrieved” party to bring an action in federal court challenging the
findings and decision of the ALJ, with the burden of proof falling on the party challenging the
agency decision. 20 U.S.C. § 1415(i)(2)(A); Barnett v. Fairfax Cnty. Sch. Bd., 927 F.2d 146, 152
(4th Cir.1991). Once such a suit is filed, the district court “(i) shall receive the records of the
administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii)
basing its decision on the preponderance of the evidence, shall grant such relief as the court
determines is appropriate.” 20 U.S.C.A. § 1415 (West). Accordingly, the district court's decision
must be based on a preponderance of the evidence, giving “due weight” to the results of the
administrative findings. Loren F. ex rel. Fisher v. Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1314
(11th Cir. 2003); M.M. v. Sch. Bd. of Miami–Dade Cnty., 437 F.3d 1085, 1097 (11th Cir. 2006)
(citing Bd. of Educ v. Rowley, 458 U.S. 176, 206-08 (1982)). It may be necessary for the district
court to conduct a bench trial to receive evidence and make the factual findings. Loren, 349 F.3d
8
at 1319.
B. Substantive arguments
1. Section 1983 claim
Plaintiffs allege a violation of section 1983 because A.C. was denied his rights under the
IDEA. After this case was filed, the Eleventh Circuit Court of Appeals has held that “section 1983
actions for denial of rights conferred by the IDEA are barred because the IDEA's comprehensive
enforcement scheme provides the sole remedy for statutory violations.” K.A. ex rel. F.A. v. Fulton
Cnty. Sch. Dist., 741 F.3d 1195, 1210 (11th Cir. 2013).
Plaintiffs agree that this Court is bound by the Eleventh Circuit’s holding in K.A., and that
Count IV of the Third Amended Complaint must be dismissed.
2. IDEA and section 1003.57 claims
a. Exhaustion
As this Court has previously explained:
Under Part B of the IDEA, states must provide disabled children between the ages
of three and twenty-one with the opportunity to receive a “free appropriate public
education “ (“FAPE”) by offering each student special education and related services
under an individualized education program, or IEP. 20 U.S.C. § 1412(a)(1)(A),
(a)(4). . . . To ensure that disabled children with disabilities are guaranteed procedural
safeguards with respect to the provision of FAPE under Part B, the IDEA requires
states to provide, among other things, “an opportunity to present complaints with
respect to any matter relating to the identification, evaluation, or educational
placement of the child, or the provision of a free appropriate public education to such
child.” 20 U.S.C. § 1415(b)(6). When a complaint under section 1415(b)(6) is
received by the state, the parents of the disabled child have an opportunity for an
important due process hearing conducted by the state agency. 20 U.S.C. §1415(f).
Following a decision by the state agency, the parents have the right to bring a civil
action with respect to the complaint in either state or federal court. 20 U.S.C. §
1415(i)(2); Florida Statute § 1003.57.
L.M.P. ex rel. E.P. v. Sch. Bd. of Broward Cnty., Fla., 516 F. Supp.2d 1294, 1300-01 (S.D. Fla.
9
2007).
Moreover, “Florida has incorporated the federal [IDEA] guidelines into section 1003.57,
Florida Statutes.”7 M.H. v. Nassau Cnty. Sch. Bd., 918 So. 2d 316, 318 (Fla. 1st DCA 2005). Thus,
“[i]n Florida, the appropriate administrative procedure is to request a due process hearing before a
state ALJ in the Florida [Division of Administrative Hearings].” Sch. Bd. of Manatee Cnty., Fla. v.
L.H. ex rel. D.H., 666 F. Supp. 2d 1285, 1291 (M.D. Fla. 2009).
Likewise, “whether claims asserting the rights of disabled children are brought pursuant to
the IDEA, the ADA, Section 504, or the Constitution, they must first be exhausted in state
administrative proceedings.” M.T.V. v. DeKalb Cnty. Sch. Dist., 446 F.3d 1153, 1158 (11th Cir.
2006). Thus, exhaustion is a prerequisite to the civil action for denial of appropriate public
education to a disabled child, and a failure to exhaust administrative remedies by requesting and
participating in a due-process hearing should result in dismissal of the civil action. See Sch. Bd. of
Lee Cnty., Fla. v. M.M. ex rel. M.M., 348 F. App’x 504, 511 (11th Cir. 2009) (citing N.B. v. Alachua
Cnty. Sch. Bd., 84 F.3d 1376, 1378 (11th Cir.1996)). However, if exhaustion would be futile or
7
Section 1003.57 states in pertinent part:
A student may not be given special instruction or services as an exceptional student until after he or
she has been properly evaluated and found eligible as an exceptional student in the manner prescribed
by rules of the State Board of Education. The parent of an exceptional student evaluated and found
eligible or ineligible shall be notified of each such evaluation and determination. Such notice shall
contain a statement informing the parent that he or she is entitled to a due process hearing on the
identification, evaluation, and eligibility determination, or lack thereof. Such hearings are exempt from
ss. 120.569, 120.57, and 286. 011, except to the extent that the State Board of Education adopts rules
establishing other procedures. Any records created as a result of such hearings are confidential and
exempt from s. 119.07(1). The hearing must be conducted by an administrative law judge from the
Division of Administrative Hearings pursuant to a contract between the Department of Education and
the Division of Administrative Hearings. The decision of the administrative law judge is final, except
that any party aggrieved by the finding and decision rendered by the administrative law judge has the
right to bring a civil action in the state circuit court. In such an action, the court shall receive the
records of the administrative hearing and shall hear additional evidence at the request of either party.
Fla. Stat. Ann. § 1003.57(1)(c).
10
inadequate, a plaintiff may be excused from this requirement. M.T.V., 446 F.3d at 1159.
Here, this Court has ruled in its Order denying the School Board’s motion to dismiss
L.M.P.’s action that because L.M.P. alleged that the School Board had a policy of never making
ABA therapy available to children with ASD, it would be futile to require all class members to
exhaust administrative remedies. 516 F.Supp. 2d at 1305. Then, when C.C. and P.C. requested
leave to intervene in L.M.P.’s action, the Court again said that they were excused from the
exhaustion requirement on the basis of the previous ruling. (DE 190 in 05-60845). Now, the School
Board argues that the standard of review at the summary judgement stage is different, and that under
this more exacting standard Plaintiffs cannot establish that the School Board has a policy of denying
ASD students ABA therapy because it is available as a methodology. Further, according to the
School Board, Plaintiffs’ failure to exhaust is fatal to their claims. In response, Plaintiffs primarily
rely on this Court’s previous rulings in L.M.P.’s case. According to Plaintiffs, the law of the case
doctrine now requires the Court to rule in Plaintiffs’ favor.
The Court disagrees that law of the case doctrine applies because it requires a decision of an
appellate court. See Thomas v. United States, 572 F.3d 1300, 1303 (11th Cir. 2009) (“Under the law
of the case doctrine, both district courts and appellate courts are generally bound by a prior appellate
decision in the same case”). However, the Court finds that Plaintiffs should be excused from the
requirement to exhaust their administrative remedies.
First, there is no dispute that C.C. and P.C. have not engaged in the administrative process.
Therefore, the fact that the Court now applies the summary judgment and judgment on the record
standard, as opposed to the motion to dismiss standard, is not relevant. Also, logic dictates that the
Court must first address exhaustion, and only then can proceed to the merits of the claims.
11
Therefore, the Court cannot accept School Board’s position that Plaintiffs cannot succeed on the
merits, and, thus, cannot be excused from the exhaustion requirement. Lastly, C.C. and P.C. were
already twice excused from the exhaustion requirement due to futility of asking the agency to review
an alleged policy of predetermination numerous times.
b. Substantive arguments
Plaintiffs’ position is that children with ASD are never allowed to receive ABA therapy, and
that parents are not allowed meaningful participation in the IEP process because the parents’ requests
for ABA therapy are never considered.8 The School Board asserts that ABA is a methodology, and,
therefore, it need not be included on the IEPs.
As a condition of receiving federal funds, the IDEA requires states to provide all children
with disabilities between the ages of 3 and 21 residing in the state a “free appropriate public
education” (“FAPE”). 20 U.S.C.A. § 1412(a)(1) (West). A FAPE includes “special education” and
“related services” that “(A) have been provided at public expense, under public supervision and
direction, and without charge; (B) meet the standards of the State educational agency; (C) include
an appropriate preschool, elementary school, or secondary school education in the State involved;
and (D) are provided in conformity with the individualized education program required under section
1414(d).” 20 U.S.C.A. § 1401(9) (West); see also 34 C.F.R. § 300.17. “Special education” means
“specially designed instruction, at no cost to parents, to meet the unique needs of a child with a
disability, including– (A) instruction conducted in the classroom, in the home, in hospitals and
institutions, and in other settings; and (B) instruction in physical education.” 20 U.S.C.A. §
8
In the Motion for Summary Judgement, the School Board also argues that Plaintiffs cannot show that the
School Board has a policy of segregating autistic students in a separate preschool. However, Plaintiffs do not appear
to be raising this argument. See Pl.’s Resp. (DE 467).
12
1401(29) (West). The term “related services” includes:
transportation, and such developmental, corrective, and other supportive services
(including speech-language pathology and audiology services, interpreting services,
psychological services, physical and occupational therapy, recreation, including
therapeutic recreation, social work services, school nurse services designed to enable
a child with a disability to receive a free appropriate public education as described
in the individualized education program of the child, counseling services, including
rehabilitation counseling, orientation and mobility services, and medical services,
except that such medical services shall be for diagnostic and evaluation purposes
only) as may be required to assist a child with a disability to benefit from special
education, and includes the early identification and assessment of disabling
conditions in children.
20 U.S.C.A. § 1401(26) (West).
States are also required to develop, review, and revise an individualized education
program (“IEP”) for each child. 20 U.S.C.A. § 1412(a)(4) (West). An IEP is
a written statement for each child with a disability that is developed, reviewed, and
revised in accordance with this section and that includes –
...
a statement of the special education and related services and supplementary aids and
services, based on peer-reviewed research to the extent practicable, to be provided
to the child, or on behalf of the child, and a statement of the program modifications
or supports for school personnel that will be provided for the child-(aa) to advance appropriately toward attaining the annual goals;
(bb) to be involved in and make progress in the general education curriculum in
accordance with subclause (I) and to participate in extracurricular and other
nonacademic activities; and
(cc) to be educated and participate with other children with disabilities and
nondisabled children in the activities described in this subparagraph;
20 U.S.C.A. § 1414(d)(1)(A)(i) (West) (emphasis added).
Parents are active participants of the IEP process, and have a right to complain and seek
redress. K.A. ex rel. F.A. v. Fulton Cnty. Sch. Dist., 741 F.3d 1195, 1202 (11th Cir. 2013). Further,
impermissible “[p]redetermination occurs when the state makes educational decisions too early in
the planning process, in a way that deprives the parents of a meaningful opportunity to fully
13
participate as equal members of the IEP team.” R.L. v. Miami-Dade Cnty. Sch. Bd., 757 F.3d 1173,
1188 (11th Cir. 2014).
Here, the ALJ did not reach the issue whether the Triplets’ IEPs had been adequate and
whether the School Board had offered them a FAPE. The ALJ also concluded that ABA therapy
may qualify as a “related service,” but that insufficient evidence had been introduced to make
detailed factual findings about the exact nature of the ABA therapy. Final Order, ¶¶ 8, 26-28 (DE
239-1 in 05-60845). Therefore, a bench trial is necessary to resolve whether ABA therapy is a
“related service” required to be included in a FAPE and listed on the IEP, or whether it is a
methodology that should be left to the discretion of the classroom teacher. Moreover, during the
administrative hearing, Carol Bianco, one of the School Board employees present at the Triplets’
meeting to discuss their transition from Part C to Part B, advised the parents that ABA therapy was
not provided by the School Board as a Part B intervention service. Tr. Admin. Hrg. (Bianco), p. 71.9
Carol Bianco, who has worked for the School Board for approximately 30 years, later testified that
to her knowledge the policy of the School Board was to never approve ABA therapy. Id., p. 63-64.
Thus, there is evidence of possible predetermination in this case. However, the issue ultimately
hinges on the nature of the ABA therapy.
3. Rehabilitation Act claim
The parties make the same arguments regarding this claim as in the companion L.M.P. case.
Therefore, for the reasons stated in the contemporaneously issued Order and Opinion in the L.M.P.
action denying both sides’ motions for summary judgment on this issue, this Court denies the School
9
Citations to the transcript of the hearing held before the Administrative Law Judge (“ALJ”) on January 24, 25,
27 and 28, 2005 will be made as “Tr. Admin. Hrg.” followed by the name of the testifying witness and the page number.
14
Board’s motion for summary judgment on C.C. and P.C.’s Rehabilitation Act claim.
III. Motion for Class Certification
C.C. and P.C.’s Amended Complaint stated that they sought to represent the class “composed
of all Broward County Public School students with ASD who requested one to one ABA be
considered as an educational intervention under the IDEA, and, ASD children who were
automatically denied the right to attend a public school, and who were assigned to insular private,
segregated, school solely for ASD children, despite the fact that such children could have, and should
have, received a free appropriate public education in a less restrictive public school.” Am. Compl.,
¶ 68 (DE 286-1). However, in the Motion for Class Certification under consideration now, Plaintiffs
are seeking certification of a class defined as “all children who have been diagnosed with ASD and
were enrolled at any level in the Broward County School District at any time between January 22,
2004 and the date the Court grants the certification Order.” (DE 456). The School Board contends
that Plaintiffs should not be allowed to change the class definition on the basis of a newly advanced
theory that discovery has revealed that all ASD children had been affected.
“Before a district court may grant a motion for class certification, a plaintiff seeking to
represent a proposed class must establish that the proposed class is ‘adequately defined and clearly
ascertainable.’” Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012) (quoting
DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir.1970)). When the proposed class includes many
members without claims, the court may deny certification. See Walewski v. Zenimax Media, Inc.,
502 F. App'x 857, 861 (11th Cir. 2012).
Here, the class definition that Plaintiffs propose in the Motion for Class Certification is
overly broad. However, Plaintiffs will be allowed to propose another one.
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For example, because the proposed class includes all Broward County students diagnosed
with ASD, it will include many class members who had absolutely no interest in the ABA therapy.
The only determination this Court is making at this time is that the class definition proposed in the
Motion for Class Certification is overly broad. The Court leaves it to Plaintiffs to find a way of
narrowing it. Thus, the Court will not address any other arguments at this time. The School Board’s
Motion to strike non-rebuttal argument or, in the alternative, for leave to file sur-reply (DE 477) is
moot.
IV. Conclusion
Accordingly, Plaintiff’s Motion for Class Certification (DE 456) is DENIED WITHOUT
PREJUDICE. Defendant, School Board of Broward County’s, Motion for Summary Judgment (DE
459) is GRANTED IN PART and DENIED IN PART. Plaintiffs’ 42 U.S.C. § 1982 claim is
DISMISSED. The Motion for Summary Judgment is DENIED in all other respects. Defendant,
School Board of Broward County’s Motion to Strike Non-Rebuttal Argument or, in the Alternative,
for Leave to File Sur-Reply to Plaintiff’s Motion for Class Certification (DE 477) is DENIED AS
MOOT.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida,
this 23rd day of September, 2014.
_______________________________________
KENNETH A. MARRA
United States District Judge
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