S.S. v. Cobb County School District et al

Filing 83

ORDER denying 55 Defendant's Motion for Summary Judgment and remanding this matter to the Administrative Law Judge. Because remand is the proper remedy here, 70 Plaintiff's Motion for Supplemental Evidence is denied as moot. This evidence can be presented at the due process hearing. Signed by Judge J. P. Boulee on 3/1/2021. (ddm)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
S.S., by and through A.S.,
v.

Plaintiff,

COBB COUNTY SCHOOL
DISTRICT, et al.,

CIVIL ACTION NO.
1:18-CV-00313-JPB

Defendants.
ORDER
This matter is before the Court on Cobb County School District’s
(“Defendant”) Motion for Summary Judgment [Doc. 55]. This Court finds as
follows:
BACKGROUND & PROCEDURAL HISTORY
S.S. is a minor child who has been diagnosed with cerebral palsy,
developmental delay and a speech and language disorder. [Doc. 69-1, p. 9]. As a
result, she struggles with her gross motor skills and functional communication. Id.
Since the year 2000, S.S. has received Special Education services from Defendant.
Id.
On June 26, 2017, A.S., who is S.S.’s mother, and S.S. (collectively,
“Plaintiffs”) began administrative proceedings by filing a due process hearing

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request form (“Due Process Complaint”) against Defendant with the Georgia
Office of State Administrative Hearings (“OSAH”). Id. at 5. Plaintiffs’ Due
Process Complaint sought to remedy Defendant’s supposed denial of a free
appropriate public education (“FAPE”) required by the Individuals with
Disabilities Education Act (“IDEA”).
On August 16, 2017, after mediation between the parties failed, Defendant
asked the OSAH Administrative Law Judge (“ALJ”) to enter summary judgment
against Plaintiffs. Id. at 45. To support its motion, Defendant presented several of
S.S.’s Individualized Education Plans (“IEP”), S.S.’s IEP Progress Reports,
affidavits and a 2015 Psychoeducational Report. Plaintiffs opposed any entry of
judgment without a hearing and presented evidence from an expert, Dr. Michael
M. Mueller, regarding several shortcomings of S.S.’s IEP. For instance, Dr.
Mueller opined that S.S. required one-on-one instruction to make academic
progress, and because the IEP did not provide for one-on-one instruction, it was
deficient. Id. at 228. He also asserted that the IEP had too few goals and
objectives, and because of the lack of goals, the majority of S.S.’s school day is
spent without critical instruction. Id. at 230. By way of example, he explained that
most students like S.S. have thirty to forty language, communication and function
skills objectives in their IEPs, and S.S. only has nine. Id. Dr. Mueller emphasized

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that S.S. is capable of making academic progress so long as the instruction is on
the level of her cognitive abilities and current skill base. Id. at 228-29.
No due process hearing was ever held. Instead, on November 7, 2017,
finding that no genuine issue of material fact existed, the ALJ entered an Order
Granting Motion for Summary Determination. [Doc. 3-1]. The ALJ seemed to
conclude that the IEP’s goals and objectives were reasonably calculated to enable
S.S. to make progress because S.S.’s IEP contained measurable goals. Id. at 17.
The ALJ never referenced Dr. Mueller’s concerns that S.S. had too few goals or
required one-on-one instruction.
After the ALJ entered judgment in favor of Defendant, Plaintiffs brought
this suit seeking review of the ALJ’s decision. [Doc. 3]. On July 29, 2020,
Defendant filed the instant Motion for Summary Judgment. [Doc. 55]. The
parties’ briefing on this motion is nearly identical to the briefs they filed with the
ALJ.
ANALYSIS
The IDEA was enacted to promote the education of children with
disabilities. Durbrow v. Cobb Cnty. Sch. Dist., 887 F.3d 1182, 1189 (11th Cir.
2018). The IDEA offers “the [s]tates federal funds in exchange for a commitment
to provide all ‘children with disabilities’ individually tailored special education.”

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Id. Under the IDEA, when a state identifies a qualified student, the IEP is the
primary tool by which a state educational agency accomplishes its mandate to
provide disabled students with an appropriately tailored education. Endrew F. ex
rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017). An
IEP is a written document that a public school produces in collaboration with an
IEP team, which consists of a student’s parents or guardians, the student’s general
and special education teachers and the representatives of the state educational
agency. 20 U.S.C. § 1414(d)(1)(B). Importantly, the Supreme Court of the United
States has held that the IEP must be “reasonably calculated to enable the student to
receive educational benefits.” Endrew F., 137 S. Ct. at 995-96. Moreover, the IEP
must be “reasonably calculated to enable a child to make progress appropriate in
light of the child’s circumstances.” Id. at 1002. This means that a substantively
adequate IEP should be “appropriately ambitious in light of a student’s
circumstance” such that the student has “the chance to meet challenging
objectives.” Id. at 1000.
Based on the rule above, this Court must attempt to decide, without the
benefit of a due process hearing or a fully developed record, whether S.S.’s IEP
was designed to challenge her and “to enable her to make progress appropriate in
light of [her] circumstances.” Id. at 999. Because crafting an appropriate IEP

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requires a prospective judgment by school officials, a court cannot evaluate
whether an IEP is reasonably calculated to provide a FAPE solely in terms of what
a student actually achieves. Instead, as stated above, the court must determine
whether the goals and benchmarks designated in the plan were “appropriately
ambitious in light of [the student’s] circumstances.” Id. at 1000.
Here, in the proceedings below, the parties submitted competing evidence as
to whether S.S.’s IEP was reasonable and appropriately ambitious. Whether S.S.’s
IEP should have included a provision that S.S. be assigned a paraprofessional to
work exclusively with her is one such disputed fact. Specifically, Defendant
provided an affidavit from Jessica Coleman, who is the Assistant Director of
Special Education for Defendant. [Doc. 69-1, p. 95]. In the affidavit, Coleman
explains that S.S. does not need an assigned paraprofessional because her assigned
class is small. Id. Plaintiffs, on the other hand, presented expert testimony from
Dr. Mueller wherein he explained that S.S. would not progress unless she was
assigned a paraprofessional. Id. at 228. Whether the goals contained in S.S.’s IEP
were appropriately ambitious was another area in dispute. In Coleman’s affidavit,
she admitted that S.S.’s parents were not satisfied with the goals and objectives for
S.S. Id. at 96. She opined, however, that they were appropriate. Id. Conversely,
Plaintiffs presented Dr. Mueller’s affidavit, which detailed why the IEP goals were

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inadequate. Id.at 230. It seems readily apparent to this Court that a genuine issue
of material fact exists as to whether S.S.’s IEP provided a FAPE. In light of this
competing evidence, this Court finds that summary adjudication at the
administrative level without a due process hearing was improper. Without fully
developed evidence, this Court cannot say whether S.S.’s IEP was or was not
reasonably calculated to provide her with a FAPE.
“A factually intensive inquiry into the circumstances of each individual
child’s case is best resolved with the benefit of agency expertise and a fully
developed administrative record.” Albertville City Bd. of Educ. v. Moore ex rel.
S.B., No. 4:19-cv-00025-SGC, 2020 WL 2767284, at *6 (N.D. Ala. May 28,
2020). When a due process complaint is dismissed without an evidentiary hearing
and the reviewing court lacks findings and conclusions on the merits of the
plaintiff’s claims, as is the case here, remand is the most appropriate remedy.
Jenkins ex rel. T.J. v. Butts Cnty. Sch. Dist., 984 F. Supp. 3d 1368, 1380-81 (M.D.
Ga. 2013). As such, Defendant’s Motion for Summary Judgment [Doc. 55] is
DENIED, and this matter is REMANDED to the ALJ for the required due process

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hearing.1 Any party aggrieved by the decision of the ALJ on remand shall have the
opportunity to appeal that decision in a civil action.
CONCLUSION
For the reasons stated above, Defendant’s Motion for Summary Judgment
[Doc. 55] is DENIED, and this matter is REMANDED to the ALJ. The Clerk is
DIRECTED to close this case.
SO ORDERED this 1st day of March, 2021.

Because remand is the proper remedy here, Plaintiff’s Motion for Supplemental
Evidence [Doc. 70] is DENIED as moot. This evidence can be presented at the due
process hearing.

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