RICCI et al v. BEECH GROVE CITY SCHOOLS et al

Filing 51

ENTRY on Cross-Motions for Summary Judgment - The Court DENIES the Plaintiffs' Motion for Summary Judgment (Filing No. 35 ) and GRANTS the School's Cross-Motion for Summary Judgment (Filing No. 42 ). The parties are ORDERED to convene a case conference committee within fourteen (14) days from the date of this Order to provide an updated IEP for L.C., so as to determine the current appropriate placement. the School is ORDERED to pay the tuition for L.C.'s education at Fortune Academy until the date of this Order. Final judgment will issue under separate order. Signed by Judge Tanya Walton Pratt on 8/1/2016. (TRG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RICCI and KAREN C.,
Parents and next of friends of L.C.,
Plaintiffs,
v.
BEECH GROVE CITY SCHOOLS and
SOUTHSIDE SPECIAL SERVICES OF
MARION COUNTY,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 1:14-cv-00576-TWP-DML

ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on cross-motions for summary judgment filed pursuant to
Federal Rule of Civil Procedure 56 by Plaintiffs Ricci and Karen C., parents and next of friends of
L.C., (collectively, “Plaintiffs”) (Filing No. 35), and by Defendants Beech Grove City Schools and
Southside Special Services of Marion County (collectively, “Defendants” or “School”) (Filing No.
42). The dispute in this matter surrounds Plaintiffs’ assertion that the hearing officer’s decision
was arbitrary and capricious and against the protections afforded by the Individuals with
Disabilities Education Act, 20 U.S.C. § 1400 et seq. Defendants developed an individualized
education program for L.C. who has disabilities. The Plaintiffs requested a due process hearing,
asserting that the individualized education program was inappropriate. Following a due process
hearing, the hearing officer determined that the individualized education program was appropriate,
and this lawsuit for judicial review followed. Plaintiffs filed a Complaint requesting reversal of
the hearing officer’s decision regarding L.C.’s individualized education program to provide a free
appropriate public education. Both parties moved for summary judgment on the Complaint. For

the following reasons, the Plaintiffs’ Motion for Summary Judgment is DENIED and the School’s
Cross-Motion is GRANTED.
I.
A.

BACKGROUND

Individuals with Disabilities Education Act
The United States Congress enacted the Individuals with Disabilities Education Act

(“IDEA”) to “ensure that all children with disabilities have available to them a free appropriate
public education,” “prepare [children with disabilities] for further education, employment, and
independent living,” “ensure that the rights of children with disabilities and parents of such
children are protected,” and to “assist States, localities, educational service agencies, and Federal
agencies to provide for the education of all children with disabilities.” 20 U.S.C. § 1400(d)(1).
States are eligible to receive federal funding for the education of children with disabilities
if the states meet certain criteria, including making a free appropriate public education available
to all children with disabilities. See 20 U.S.C. § 1412. As part of the IDEA, school districts that
receive federal education funds must provide children with disabilities a free appropriate public
education in the least restrictive environment. Bd. of Educ. v. Ross, 486 F.3d 267, 273 (7th Cir.
2007). The IDEA provides as follows regarding education in the least restrictive environment:
To the maximum extent appropriate, children with disabilities, including children
in public or private institutions or other care facilities, are educated with children
who are not disabled, and special classes, separate schooling, or other removal of
children with disabilities from the regular educational environment occurs only
when the nature or severity of the disability of a child is such that education in
regular classes with the use of supplementary aids and services cannot be achieved
satisfactorily.
20 U.S.C. § 1412(a)(5)(A). “[T]he IDEA requires that the school district educate [the disabled
child] with his nondisabled peers to the ‘greatest extent appropriate.’” Hjortness v. Neenah Joint
Sch. Dist., 507 F.3d 1060, 1066 (7th Cir. 2007) (citing 20 U.S.C. § 1412(a)(5)(A)).

2

“The IDEA requires that the state determine what is uniquely ‘appropriate’ for each child’s
education by preparing an [individualized education program] developed through the joint
participation of the local education agency, the teacher, and the parents.” Hjortness, 507 F.3d at
1064. An individualized education program (“IEP”) is defined as “a written statement for each
child with a disability that is developed, reviewed, and revised in accordance with section 1414(d)
of this title.” 20 U.S.C. § 1401(14).
In developing each child’s IEP, the IEP Team . . . shall consider—
(i) the strengths of the child;
(ii) the concerns of the parents for enhancing the education of their child;
(iii) the results of the initial evaluation or most recent evaluation of the child;
and
(iv) the academic, developmental, and functional needs of the child.
20 U.S.C. § 1414(d)(3)(A). Thus, “[t]he statute assures the parents an active and meaningful role
in the development or modification of their child’s IEP.” Hjortness, 507 F.3d at 1064 (citing Ross,
486 F.3d at 274).
However, “parents, no matter how well-motivated, do not have a right under the [IDEA]
to compel a school district to provide a specific program or employ a specific methodology in
providing for the education of their handicapped child.”

Lachman v. Illinois State Bd. of

Education, 852 F.2d 290, 297 (7th Cir. 1988). “[J]ust because [a] placement was contrary to the
parents’ wishes, it does not follow that the parents did not have an active and meaningful role in
the modification of their [child’s] IEP.” Hjortness, 507 F.3d at 1065–66. “School districts are not
required to do more than to provide a program reasonably calculated to be of educational benefit
to the child; they are not required to educate the child to his or her highest potential.” Evanston
Cmty. Consol. Sch. Dist. No. 65 v. Michael M., 356 F.3d 798, 802 (7th Cir. 2004). “A child’s
placement must be based on the IEP.”

Hjortness, 507 F.3d at 1064 (citing 34 C.F.R. §

300.116(b)(2)).
3

B.

Factual and Procedural Background
L.C. is a young man who qualifies for special education and related services. He was born

June 7, 2004, and currently is a student at Fortune Academy, a private school that focusses on
educating students with language-based learning disabilities through multi-sensory instruction.
Plaintiffs Ricci and Karen C. are the parents of L.C. Defendant Beech Grove City Schools is the
local school agency in which L.C. resides. Defendant Southside Special Services of Marion
County is a special education cooperative with which Beech Grove City Schools contracts to
provide its students with special education and related services.
L.C.’s complex and diverse medical challenges began when he was in utero when he had
a stroke that led to an excessive accumulation of cerebrospinal fluid on the brain, a condition
known as hydrocephalus (Filing No. 1-2 at 7). Because of this condition, within a few days of
L.C.’s birth, doctors were required to operate on L.C. to install a shunt to drain the fluid. Id. Since
this initial installation of the shunt, L.C. has had seven additional surgeries to either replace or
repair the shunt. Whenever the shunt malfunctions, it leads to headaches, vomiting, and an unusual
gait. L.C. also was diagnosed with cerebral palsy and mitochondrial disease when he was an
infant. Id.
He also has right-sided spasticity and hemiparesis, which is weakness of the entire right
side of the body. Id. As a result of this condition, L.C. has little flexibility or strength in his right
hand and right leg. In 2011, he had reconstructive surgery to his right foot to lengthen and relocate
tendons (Filing No. 1-2 at 8). L.C. also had surgery to correct his strabismus, or lazy eye. Id. at
7.
When L.C. was approximately two years old, he began experiencing seizures. Health care
providers erroneously overdosed L.C. with seizure medication, which led to the development of

4

severe gastrointestinal issues manifest by reflux and choking when eating. Id. at 8. In 2009, when
L.C. was approximately five years old, he underwent a radical procedure to eliminate his seizures.
He underwent a left functional hemispherectomy, which is the removal of the entire left cerebral
hemisphere of the brain. Id. While the hemispherectomy successfully eliminated L.C.’s seizures,
the procedure left him blind in the right half of each eye. As a result, he has no peripheral vision
to the right. L.C. has sensory sensitivities to light and to loud noises. His mitochondrial disease
causes a loss of motor control, muscle weakness, and pain, and it significantly impedes his energy
level.
In 2007, when L.C. was approximately three years old, the School evaluated L.C. to
determine if he qualified for early childhood special education services. His development and
skills were below average, so he qualified to receive early childhood special education services.
L.C. participated in an early childhood services program at the School for one year (Filing No. 12 at 8). After this first year in the program, L.C.’s parents decided that they would homeschool
him.
In May 2012, L.C.’s mother contacted the School to discuss the possibility of L.C.
attending school there during the coming school year (A.R. 270) 1. She informed School officials
of L.C.’s extensive medical challenges and noted some of her concerns with L.C.’s participation
in public school. She informed the School that L.C. would need a one-on-one assistant to help
him throughout the school day.

She also provided the School with physical therapy and

occupational therapy evaluations. Id. The School conducted a multidisciplinary evaluation of
L.C. during the summer of 2012 to assist in determining L.C.’s educational needs (A.R. 271–72).

1

The parties manually filed under seal the administrative record of the proceedings that are under review in this case
(Filing No. 23). The Court will use the abbreviation “A.R.” for all citations to the manually-filed administrative
record.

5

The evaluation was deficient considering L.C.’s extensive medical history and challenges. The
School held a case conference committee meeting in August 2012 to review L.C.’s evaluations
and determine an appropriate IEP for L.C. for the coming school year. L.C.’s mother expressed
specific concerns with the School’s IEP (A.R. 273–74).
L.C. attended the School for two half-days on August 27 and 28, 2012, but it quickly
became clear that the School was not prepared for L.C.’s special needs. The principal refused to
allow L.C.’s mother to observe L.C.’s classroom and provide direction to the teachers and staff
(A.R. 276–77). The Plaintiffs met with the School on September 11, 2012, and suggested placing
L.C. at Fortune Academy. The School opposed the placement and ended the meeting (A.R. 279).
Because the Plaintiffs did not believe the School offered a free appropriate public education to
L.C. as required by the IDEA, they unilaterally withdrew L.C. from the School and enrolled him
at Fortune Academy. He started at Fortune Academy in October 2012 (A.R. 280).
On October 30, 2012, the Plaintiffs filed a request for a due process hearing to challenge
the School’s 2012 IEP for L.C. (A.R. 263). A due process hearing was held over four days in
January 2013, and in February 2013, the hearing officer issued a decision in favor of the Plaintiffs
(A.R. 262). The hearing officer determined that the School’s IEP was not reasonably calculated
to confer an educational benefit on L.C., and therefore, did not provide a free appropriate public
education to L.C. The hearing officer ordered that the School pay for L.C.’s education at Fortune
Academy for the 2012–2013 school year. The School also was ordered to collect additional data
and devise an appropriate IEP for L.C. (A.R. 291–92). The hearing officer ordered that “[i]f, after
reviewing data from Fortune Academy and other sources, the Case Conference Committee
determines the School could devise an appropriate IEP that would enable the School to provide a

6

free appropriate public education, the School shall involve Fortune Academy staff and the
Student’s mother to facilitate transition to a new educational environment.” (A.R. 292.)
In May 2013, Fortune Academy provided to the School an assessment report of two
curriculum-based tests, two reports of an achievement test, and seventeen pages of written work
from L.C. (Filing No. 1-2 at 10–11). These tests indicated that L.C. had made improvements in
various areas while he attended Fortune Academy. During June and July 2013, the School
conducted a multidisciplinary educational evaluation of L.C. Id. at 11. The School attempted to
conduct classroom observations of L.C. at Fortune Academy as part of the evaluation, but because
of an impasse over Fortune Academy’s policies for observations, the observations never occurred.
Id. at 13. The School’s evaluation confirmed that L.C. had verbal, visual, motor, intellectual, and
academic deficiencies; however, he had strong social skills. The evaluation also revealed that L.C.
had a significant need for assistive technology. Id. at 11–13.
On July 26, 2013, the School met with L.C.’s parents to discuss the 2012 IEP and the
upcoming 2013 IEP. L.C.’s mother noted that the School did not have certain plans in place and
mentioned L.C.’s progress reports from Fortune Academy, to which the School responded that the
progress reports had never been provided (A.R. 2114). Later on July 26, 2013, the School asked
Fortune Academy to provide to the School L.C.’s health care action plan, his evacuation plan, and
his progress reports from his classroom teacher in preparation for the case conference committee
meeting in August to assist the School in developing the 2013 IEP for L.C. (A.R. 1186). Fortune
Academy staff were on summer break at the time of the request and did not provide the requested
documents when they returned (Filing No. 1-2 at 14). Fortune Academy created quarterly progress
reports for L.C. during the 2012–2013 school year, and L.C.’s parents received these reports on
January 18, 2013, March 28, 2013, and at the end of the fourth quarter of school via mail, yet they

7

did not provide the progress reports to the School at the July 26, 2013 meeting or after the meeting.
The Plaintiffs and Fortune Academy did not provide the progress reports to the School despite
knowing of the School’s need for the reports to help create an appropriate IEP (A.R. 872, 1242–
50; Filing No. 1-2 at 14).
Based on the information available to it, the School developed a 2013 IEP for L.C. and
held a case conference committee meeting on August 9, 2013. The draft 2013 IEP placed L.C. in
his local public school, South Grove Intermediate School (A.R. 1112). The case conference
committee meeting was held to discuss the draft IEP with the intent to finalize an IEP for 2013–
2014. At the beginning of the meeting, L.C.’s parents requested an independent educational
evaluation of L.C. The School denied the parents’ request and filed a request for a due process
hearing to determine the adequacy of the School’s 2013 evaluation (Filing No. 1-2 at 15).
The same hearing officer who had presided over L.C.’s due process hearing in January
2013 and had issued a decision favorable to L.C. in February 2013 presided over the School’s
requested due process hearing. After receiving testimony and evidence, the hearing officer
determined that the School had conducted an appropriate educational evaluation, thereby
abrogating any obligation to pay for L.C.’s requested independent educational evaluation (Filing
No. 34-2 at 17–18).
During the August 2013 case conference committee meeting, L.C.’s parents and teacher
and staff from Fortune Academy provided input to the School regarding reports, evaluations, and
the draft IEP (Filing No. 1-2 at 16–17). They provided input about L.C.’s progress at Fortune
Academy and addressed some of the proposed goals in the IEP. However, they did not provide
new documents, evaluations, or reports. Another meeting was held on September 30, 2013, which
involved L.C.’s parents and the School, during which the parents provided additional feedback

8

about the IEP (Filing No. 1-2 at 17; A.R. 1145). Based on the input received from L.C.’s parents
and Fortune Academy’s teacher and staff, the School made some revisions to the draft 2013 IEP
and finalized the proposed IEP on October 7, 2013 (A.R. 1112).
At the time that the 2013 IEP was finalized, L.C. was nine years old and starting the fourth
grade (A.R. 1112). The IEP noted that L.C. was eligible for special education services based on a
primary disability of traumatic brain injury with secondary disabilities of orthopedic impairment,
other health impairment, and blind or low vision (A.R. 1123). The IEP established goals in various
areas for L.C. for the 2013–2014 academic year as well as methods for measuring L.C.’s progress
toward achieving those goals. The IEP also noted the diverse and numerous limitations and
challenges that L.C. experiences, and it established numerous accommodations, modifications,
strategies, and services to address L.C.’s limitations and challenges. The IEP proposed placement
of L.C. at South Grove Intermediate School and established a support plan to help L.C. transition
from Fortune Academy to South Grove Intermediate School (A.R. 1136).
The IEP provided for L.C. to receive some general education with his non-disabled peers,
some special education, a one-on-one aide to assist throughout the day, rest periods, and assistive
technology. The IEP also provided for training for teachers and staff at the School as well as peer
awareness training (A.R. 1112–45). It also included statements from L.C.’s parents regarding his
strengths, interests, and activities, as well as their concerns; a summary of L.C.’s medical history;
progress monitoring data; and L.C.’s then-present levels of achievement and skills. Id.
The School provided the final proposed 2013 IEP to L.C.’s parents, and after their review,
the parents filed a request for a due process hearing to challenge the appropriateness of the IEP
(Filing No. 1-2 at 2). The same hearing officer assigned to the two previous due process hearings

9

involving the School and L.C.’s parents was assigned to conduct this due process hearing. The
due process hearing was held on February 4, 5, 17, and 24, 2014. Id. at 1.
Before the due process hearing was held, L.C.’s parents hired Dr. Shauna Erenberg (“Dr.
Erenberg”) to conduct an independent educational evaluation and to provide testimony at the due
process hearing. Dr. Erenberg reviewed the earlier evaluation reports, L.C.’s academic progress
reports, his school work samples, the assessment reports, and the School’s proposed IEP. Dr.
Erenberg interviewed the School’s teachers and staff. She also conducted classroom observations
of the proposed placement, classroom observations of L.C. at Fortune Academy, and an additional
academic achievement assessment (Filing No. 1-2 at 27). Dr. Erenberg had many criticisms of the
School’s 2013 multidisciplinary evaluation report and the 2013 IEP. Dr. Erenberg’s evaluation
was conducted in January 2014, so it was not available to the School for consideration and
incorporation into the IEP when the October 2013 IEP was finalized. Id. at 28.
After holding the due process hearing on February 4, 5, 17, and 24, 2014, the hearing
officer issued her decision on March 11, 2014 (Filing No. 1-2). In the decision, the hearing officer
addressed each of the complaints that the Plaintiffs had regarding the School’s 2013 IEP. The
hearing officer reviewed and discussed the 2013 IEP. She addressed L.C.’s medical challenges,
the evaluations, the procedural history of the parties’ interactions and legal matters, and the hearing
officer’s previous decisions. The hearing officer ruled in the School’s favor and determined that
the School’s 2013 IEP met the legal requirements of 511 I.A.C. 7, was reasonably calculated to
confer an educational benefit on L.C., and provided an appropriate placement in the least restrictive
environment for L.C. The hearing officer also directed the School to update the IEP to reflect new
levels of performance, goals, and implementation dates because of the passage of time between

10

the IEP date and the decision date. Id. at 29. The Plaintiffs filed their request for judicial review
of the hearing officer’s decision on April 14, 2014.
II.

STANDARD OF REVIEW IN IDEA CASES

In the context of judicial review of IDEA cases, “the standard of review differs from that
governing the typical review of summary judgment.” Evanston, 356 F.3d at 802 (citation and
quotation marks omitted). When reviewing the decision below, “the court—(i) shall receive the
records of the administrative proceedings; (ii) shall hear additional evidence at the request of a
party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as
the court determines is appropriate.” 20 U.S.C. § 1415 (i)(2)(C). “So the court can take new
evidence in addition to receiving and reviewing the administrative record. But when no new
evidence is offered--as here--the cases are decided on summary judgment, which is the procedural
vehicle for asking the judge to decide the case on the basis of the administrative record.” Evanston,
356 F.3d at 802.
The Seventh Circuit has explained that “[e]ven though it is grounded on an administrative
record, the decision must be based on a preponderance of the evidence, and the person challenging
the decision of the agency bears the burden of proof.” Id. Further, “[t]he district court must give
‘due weight’ to the results of the administrative proceedings and must not substitute its ‘notions of
sound educational policy’ for those of the school district.” Id. (citations omitted). This is because
“courts lack the specialized knowledge to resolve issues of educational policy. . . . School districts
are not required to do more than to provide a program reasonably calculated to be of educational
benefit to the child; they are not required to educate the child to his or her highest potential.” Id.
(citations omitted).

11

III.
A.

DISCUSSION

Scope of Judicial Review
The Court first addresses the scope of its judicial review of the hearing officer’s decision

challenged by the Plaintiffs in their Complaint. The Plaintiffs assert that they are seeking relief
from this Court based on the hearing officer’s March 11, 2014 decision as well as “for the
Defendants’ failure to implement the IHO’s prior decision, HR-017-2013, which aggrieves
Plaintiff’s rights.” (Filing No. 1 at 1.)
When a party challenges a hearing officer’s decision in an IDEA case, “[t]he party bringing
the action shall have 90 days from the date of the decision of the hearing officer to bring such an
action, or, if the State has an explicit time limitation for bringing such action under this subchapter,
in such time as the State law allows.” 20 U.S.C. § 1415 (i)(2)(B). Indiana’s administrative code
that governs special education claims establishes that “[u]nder IC 4-21.5-5-5, a petition for review
by a state or federal civil court must be filed within thirty (30) calendar days after the date the
independent hearing officer’s written decision is received by the party.” 511 I.A.C. 7-45-9. Based
on the time limitation set for bringing a civil action to challenge a hearing officer’s decision and
the Plaintiffs’ case being filed on April 14, 2014, the only decision that can be challenged by the
Plaintiffs is the March 11, 2014 decision, wherein the hearing officer determined that the School’s
2013 IEP for L.C. was reasonably calculated to confer an educational benefit and therefore
provided a free appropriate public education. The substance and content of the hearing officer’s
earlier decisions—dated February 28, 2013 and November 12, 2013—will not be reviewed
because those decisions fall outside the limitations period.
The Plaintiffs further allege that they have been “aggrieved” by the School’s “failure to
implement” the hearing officer’s February 28, 2013 decision. They assert that the hearing officer

12

“refused to consider whether L.C. had been denied a free appropriate public education by the
School’s failure to follow the first decision.” (Filing No. 1 at 4, ¶25.) The Plaintiffs further allege
that the hearing officer “wrongly dismissed the issue of whether L.C. was denied a free appropriate
public education by the School’s failure to implement her original hearing decision.” (Filing No.
1 at 5, ¶29.)
The School asserted in its summary judgment Response Brief that the Plaintiffs failed to
raise the issue of implementation of the 2012 IEP in their opening brief, and therefore, the
argument is waived for judicial review on the summary judgment motions. In their ResponseReply Brief, the Plaintiffs only briefly mention in a footnote the issue alleged in their Complaint.
They note that they “tried to ask the hearing officer to look at whether L.C. was denied a free
appropriate public education because the School had not fully implemented her orders from 2013,
but the hearing officer refused to consider whether this denied L.C. a free appropriate public
education. This too was error.” (Filing No. 46 at 34.)
The Seventh Circuit has been clear that issues must be raised in opening briefs and must
be developed through argument supported by legal authority. See Wachovia Sec., LLC v. Banco
Panamericano, Inc., 674 F.3d 743, 758 (7th Cir. 2012) (“because appellants did not raise this issue
in their opening briefs, they waived any argument on this ruling”); Clarett v. Roberts, 657 F.3d
664, 674 (7th Cir. 2011) (argument addressed in two sentences in opening brief deemed waived);
Boomer v. AT&T Corp., 309 F.3d 404, 422 n.10 (7th Cir. 2002) (where party fails to support
position with any legal analysis or citation, the argument is waived); United States v. Lanzotti, 205
F.3d 951, 957 (7th Cir. 2000) (“perfunctory and undeveloped arguments, and arguments that are
unsupported by pertinent authority, are waived”).

13

Without any legal analysis or supporting authority, the Plaintiffs briefly mention in a
footnote in their Response-Reply Brief their claim that the hearing officer erred by not considering
the School’s alleged failure to implement the 2012 IEP. Because the Plaintiffs did not address this
claim in their opening brief and did not develop it with supporting legal authority, the Court
determines that the claim relating to the failure to implement the 2012 IEP is waived. Thus, the
scope of judicial review in this matter is limited to a review of the hearing officer’s March 11,
2014 decision regarding the 2013 IEP for L.C.
B.

Review of the Hearing Officer’s March 11, 2014 Decision
When reviewing a hearing officer’s IDEA decision, the district court’s inquiry is twofold.
First, has the State complied with the procedures set forth in the Act? And second,
is the individualized educational program developed through the Act’s procedures
reasonably calculated to enable the child to receive educational benefits? If these
requirements are met, the State has complied with the obligations imposed by
Congress and the courts can require no more.

Bd. of Educ. v. Rowley, 458 U.S. 176, 206–07 (1982). Thus, a reviewing court looks at whether
the school agency complied with the procedures of the IDEA and whether the IEP is reasonably
calculated to enable the student to receive educational benefits. As noted above, the district court
gives “due weight” to the hearing officer’s decision and will not substitute its own notions of sound
educational policy for those of the school district because courts lack the specialized knowledge
to resolve issues of educational policy. Evanston, 356 F.3d at 802.
The Plaintiffs did not challenge the hearing officer’s decision based on any procedural
deficiencies that fell short of the protections granted by the IDEA. Rather, the Plaintiffs focus
their Complaint and summary judgment argument on the substance of the 2013 IEP and the hearing
officer’s determination that the IEP is reasonably calculated to provide educational benefits to L.C.
Therefore, the Court will not address at length the first Rowley inquiry—procedural compliance

14

with the IDEA—but rather focus on the second inquiry regarding the substance of the IEP and the
hearing officer’s decision.
Regarding procedural compliance with the IDEA, the Court briefly notes that the Plaintiffs
met with the School on multiple occasions to discuss L.C.’s education and special needs and
participated in developing IEPs for L.C. When they were dissatisfied with the case conference
committee’s final IEPs, the Plaintiffs requested and received due process hearings. The hearing
officer allowed the parties to conduct discovery, received evidence, held hearings over multiple
days, and listened to testimony and argument during the hearings. The hearing officer timely
issued written decisions following the hearings. After her review, the hearing officer concluded
that the “October 7, 2013 proposed IEP met the requirements of 511 IAC 7,” (Filing No. 1-2 at
29), which is the administrative code enacted by the State of Indiana to implement the requirements
of the IDEA. Upon review of the record, the Court agrees with the hearing officer’s conclusion
and determines that the School complied with the procedures set forth in the IDEA thereby
satisfying the first inquiry set forth in Rowley.
Turning to the substance of the 2013 IEP and the hearing officer’s determination that it was
appropriate, on judicial review, the Plaintiffs reassert the same fifteen arguments that they made
to the hearing officer when they initially challenged the School’s proposed IEP. The Plaintiffs
argue that the proposed IEP is not reasonably calculated to provide an educational benefit to L.C.
because: (1) it was hypothetical; (2) L.C. was making progress at Fortune Academy and transfer
from there would be detrimental; (3) the one-on-one aide had not yet been hired; (4) public school
placement would be detrimental to L.C.’s safety, independence, and ability to learn; (5) the writing
goal was actually an assistive technology goal; (6) use of projection screens and amplification
devices conflicted with L.C.’s sensory sensitivities and needs; (7) the reading goal focused on

15

fluency rather than accuracy; (8) L.C. already had achieved the skills identified in the math goal;
(9) L.C. already performed the skills identified in the self-advocacy goal; (10) the numerous
accommodations and modifications make South Grove Intermediate School more restrictive and
L.C. less independent; (11) the IEP did not include a health care action plan; (12) the IEP did not
include any social goals; (13) the IEP did not include any science or social studies goals; (14) the
IEP did not include any physical therapy or occupational therapy goals; and (15) the IEP did not
include goals that the hearing officer stated in her first due process decision should have been
included in the 2012 IEP.
Pervading throughout their fifteen arguments is the Plaintiffs’ incorrect assertion that the
Title VII burden shifting analysis applies to this IDEA case. The Plaintiffs point to a Tenth Circuit
opinion in a Title VII case and then explain the well-known burden shifting analysis that applies
in Title VII employment discrimination cases. Then, throughout their arguments, the Plaintiffs
assert that they met their “burden of production,” and the School failed to respond by meeting its
burden. However, this is not the standard in IDEA cases. “[T]he decision must be based on a
preponderance of the evidence, and the person challenging the decision of the agency bears the
burden of proof.” Evanston, 356 F.3d at 802.
Also pervading throughout much of their fifteen arguments is the Plaintiffs’ praise of
Fortune Academy’s educational program and a comparison between Fortune Academy and the
proposed IEP. The Plaintiffs’ arguments focus on their desire for L.C.’s placement at Fortune
Academy and compare the benefits of an education at Fortune Academy to those offered at the
School’s public placement. But the Court’s review does not entail a comparison test, and the
School does not have to provide the “best” education available, Id., (“[s]chool districts are not

16

required to do more than to provide a program reasonably calculated to be of educational benefit
to the child; they are not required to educate the child to his or her highest potential”).
As the School noted in its Response Brief:
Plaintiffs, then, must do more than merely show that the placement they
prefer would be better for the Student. J.P. v. West Clark Community Schools, is
instructive on this point:
In making their arguments, the [parents] understandably have
glossed over the distinction between what is “appropriate” for J.P.
and what is “best.” The IDEA empowers parents to be strong
advocates for their children. It is the [parents’] right and duty to
attempt to push and cajole West Clark into providing the best
possible education for J.P. To that end, the [parents] have argued
strongly that J.P. began progressing much more rapidly once he
started his ABA/DTT training. But, while such an argument is
highly relevant at a case conference meeting, it does not carry much
weight in this legal action. The law does not require West Clark to
provide J.P. with the better or best possible education. West Clark’s
duty is only to provide an education that is reasonably calculated to
benefit J.P. Therefore . . . the [parents] will have to do more than
merely show that the IEP they have proposed would be better for
J.P.; they must show that the IEP proposed by West Clark was
“inadequate,” in the strict legal sense prescribed by the IDEA.
230 F. Supp. 2d 910, 934 (S.D. Ind. 2002).
(Filing No. 43 at 25.) The hearing officer noted in the conclusion of her decision that,
The fundamental inquiry in this current case, though, is not whether the private
placement continued to be appropriate for the Student. Rather, the guiding question
lies in whether the School devised an individualized educational plan that addressed
the Student’s unique array of needs and was reasonably calculated to confer an
educational benefit in the least restrictive environment.
(Filing No. 1-2 at 42.) The hearing officer concluded, “The School created such a plan for this
Student.” Id.
Upon review of the substance of the School’s proposed 2013 IEP, the record evidence, the
hearing officer’s decision, and the Plaintiffs’ fifteen arguments made again to this Court, the Court
concludes that the Plaintiffs are in essence asking this Court to substitute its own notions of sound
17

educational policy for those of the school district’s, which, this the Court cannot do. See Evanston,
356 F.3d at 802. The hearing officer’s findings of fact and conclusions of law were supported by
the documentary evidence and the testimony presented to her during the due process hearing.
Nothing in the record indicates that the Court should deviate from giving due weight to the hearing
officer’s decision regarding the 2013 IEP being reasonably calculated to provide an educational
benefit to L.C. in the least restrictive environment.
Relying on non-binding case law from the Third Circuit, the Plaintiffs further argue that
the hearing officer erred because she did not compare the differences between Fortune Academy
and the public school placement to determine any detriment to L.C. if he was required to be placed
in public school. However, binding Seventh Circuit case law does not require a comparison
between potential school placements in order to speculate whether detriment will result from
removing a student from private school and placing him in public school. Rather, Seventh Circuit
cases such as Evanston, Ross, and Hjortness, direct that the hearing officer and reviewing courts
consider whether the proposed IEP will confer an educational benefit, not the best education
available, when determining the appropriateness of an IEP. There was no error committed by the
hearing officer based on this argument from the Plaintiffs.
The Plaintiffs also argue that the hearing officer erred because she determined that South
Grove Intermediate School was the least restrictive environment for L.C. based on a misapplication
of the law that required “under any set of circumstances” and “without qualification” that L.C. be
placed in a public school setting (Filing No. 37-1 at 47). However, this is not how the hearing
officer came to the conclusion that South Grove Intermediate School was the least restrictive
environment for L.C. The hearing officer did not analyze this issue under a “public placement
under any set of circumstances” rubric. Rather, she acknowledged the presumption of general

18

education with non-disabled peers as required by Section 1412(a)(5)(A) of the IDEA and discussed
in Hjortness, 507 F.3d at 1066. Then the hearing officer discussed the record evidence and the
School’s decision based on that evidence that it could provide a free appropriate public education
to L.C. while meeting his unique needs. The hearing officer then discussed the Plaintiffs’ failure
to provide evidence to challenge the adequacy of the School’s IEP. The hearing officer determined
that the School’s placement was appropriate, and thus, there was no need based on the evidence in
this case to consider outside placement contrary to the IDEA’s presumption of general education
with non-disabled peers (Filing No. 1-2 at 40–41). The hearing officer did not err in this regard.
Finally, the Plaintiffs summarize portions of L.C.’s proposed schedule at the public school
to argue that L.C. will gain no meaningful educational benefit from being placed at South Grove
Intermediate School. The Plaintiffs’ argument does not comprehensively discuss L.C.’s proposed
schedule, and the argument ignores many of the accommodations and modifications that were
proposed to address L.C.’s needs. The Plaintiffs reassert many of the complaints that they initially
raised about the School’s plans, while ignoring benefits that the hearing officer recognized would
be provided by the IEP. That the Plaintiffs ignore the benefits provided by the IEP as recognized
by the hearing officer does not mean that there are no benefits afforded to L.C. through the
proposed IEP. This argument from the Plaintiffs is unavailing.
Giving due weight to the decision of the hearing officer and finding no error therein, the
Court holds that the hearing officer’s March 11, 2014 decision was supported by the evidence and
correctly decided.
IV.

CONCLUSION

For the foregoing reasons, the Court DENIES the Plaintiffs’ Motion for Summary
Judgment (Filing No. 35) and GRANTS the School’s Cross-Motion for Summary Judgment

19

(Filing No. 42).

The School’s proposed 2013 IEP was reasonably calculated to provide

educational benefits to L.C. thereby providing a free appropriate public education to him. The
procedural protections afforded by the IDEA were provided to the Plaintiffs.
In her written decision, the hearing officer concluded, “given that approximately five
months have passed since the October 7, 2013 IEP, the Student’s Case Conference Committee
needs to update implementation dates and review goals to ensure they are consistent with
additional information the School has received since October 2013 and the Student’s current
performance levels.” (Filing No. 1-2 at 29.) Because of the additional passage of time, this
specific mandate from the hearing officer’s 2014 decision is even more important today. The
parties are ORDERED to convene a case conference committee within fourteen (14) days from
the date of this Order to provide an updated IEP for L.C., so as to determine the current appropriate
placement.
Regarding responsibility for payment of L.C.’s tuition at Fortune Academy during the
pendency of the administrative proceedings below, the hearing officer ordered:
The School shall be responsible for paying Student’s tuition at the private
placement until the date the Student is transitioned to South Grove Intermediate
School pursuant to the Student’s updated IEP. If the Student’s parents opt to have
the Student remain at the private placement at their expense, the School shall be
responsible for paying the Student’s tuition through the date of receipt of this
Decision.
(Filing No. 1-2 at 44). The “stay-put” provision of the IDEA states that “during the pendency of
any proceedings conducted pursuant to this section, unless the State or local educational agency
and the parents otherwise agree, the child shall remain in the then-current educational placement
of the child.” 20 U.S.C. § 1415(j).
Consistent with the hearing officer’s order, the “stay-put” provision of the IDEA, and the
Court’s Entry on Emergency Motion for Preliminary Injunction (Filing No. 18) ordering that L.C.
20

was to remain at Fortune Academy during the pendency of this matter, unless the State or local
educational agency and the parents otherwise agree, the School is ORDERED to pay the tuition
for L.C.’s education at Fortune Academy until the date of this Order. Final judgment will issue
under separate order.

SO ORDERED.

Date: 8/1/2016

DISTRIBUTION:
Alexandra Marie Curlin
CURLIN & CLAY LAW
[e-mail]
Robin C. Clay
CURLIN & CLAY LAW
[e-mail]
Alexander Phillip Pinegar
CHURCH CHURCH HITTLE & ANTRIM
[e-mail]
Amy Ann Matthews
CHURCH CHURCH HITTLE & ANTRIM
[e-mail]

21