Y.B. et al v. Board of Education of Prince George's County et al

Filing 15

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 9/7/12. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
Y.B. et al.
:
v.

:

Civil Action No. DKC 12-0278

:
BOARD OF EDUCATION OF PRINCE
GEORGE’S COUNTY et al.

:

MEMORANDUM OPINION
Presently pending and ready for resolution in this action
arising under the Individuals with Disabilities Act (“IDEA”), 29
U.S.C. §§ 1400 et seq., is the motion for summary judgment filed
by Defendants Board of Education of Prince George’s County (“the
Board”) and Dr. William Hite (collectively, “Defendants”) (ECF
No. 9).

The relevant issues have been briefed, and the court

now rules pursuant to Local Rule 105.6, no hearing being deemed
necessary.

For the reasons that follow, the motion will be

granted.
I.

The Individuals with Disabilities Education Act
The IDEA and its accompanying regulations, 34 C.F.R. §§ 300

et

seq.,

require

all

states

that

receive

federal

funds

for

education to provide each child between the ages of three and
twenty-one,
public

who

education

has

a

disability,

(“FAPE”).

20

with

a

U.S.C.

free,
§

appropriate

1412(a)(1)(A).

Maryland’s

regulations

governing

the

provision

of

a

FAPE

to

children with disabilities in accordance with the IDEA are found
in the Code of Maryland Regulations beginning at 13A § 05.01.
The FAPE guaranteed by the IDEA must provide a disabled
child with meaningful access to the educational process.

Bd. of

Educ. of the Henrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S.
176, 192 (1982).

The FAPE must be reasonably calculated to

confer “some educational benefit” on the disabled child.

Sumter

Cnty. Sch. Dist. 17 v. Heffernan ex rel. T.H., 642 F.3d 478, 484
(4th Cir. 2011).
restrictive

The benefit must also be provided in the least

environment

(“LRE”)

appropriate

to

the

child’s

needs, with the disabled child participating to the “maximum
extent appropriate” in the same activities as his or her nondisabled peers.
300.114.
provide

The
a

20 U.S.C. § 1412(a)(5)(A); see also 34 C.F.R. §
IDEA

disabled

does
child

not

require

with

the

that
best

a

school

possible

district

education,

Rowley, 458 U.S. at 192, or that the education maximize each
child’s potential, Hartmann by Hartmann v. Loudoun Cnty. Bd. of
Educ.,

118

F.3d

996,

1001

(4th

Cir.

1997).

The

benefit

conferred, however, must amount to more than trivial progress.
See Reusch v. Fountain, 872 F.Supp. 1421, 1425 (D.Md. 1994)
(explaining that Rowley’s “some educational benefit prong will
not be met by the provision of de minimis, trivial learning
2

opportunities.” (citing Hall v. Vance Cnty. Bd. of Educ., 774
F.2d 629, 635 (4th Cir. 1985))).
To assure delivery of a FAPE, the IDEA requires a school
district
Program

to

provide

(“IEP”)

disabled.

an

for

appropriate

each

child

20 U.S.C. § 1414(d).

Individualized

determined

to

be

Education
learning

That IEP is formulated by a

team (“IEP team”) consisting of the parents or guardian of the
child, a representative of the school district, the student’s
regular and special education teachers, an individual who can
interpret

results

of

evaluations

of

appropriate, the student himself.
Md.

Code

Regs.

13A

student’s

current

student’s

education,

§

the

which

and,

when

20 U.S.C. § 1414(d)(1)(B);

05.01.07(A).

educational

student,

The

status,

special

IEP

must

annual

state

the

for

the

services

and

goals

educational

other aids will be provided to the child to meet those goals,
and the extent to which the child will be “mainstreamed,” i.e.,
spend

time

students.
The

in

regular

school

environments

with

non-disabled

20 U.S.C. § 1414(d)(1)(A).
IDEA

provides

a

series

of

procedural

safeguards

“designed to ensure that the parents or guardian of a child with
a

disability

are

both

notified

of

decisions

affecting

their

child and given an opportunity to object to those decisions.”
MM ex rel. DM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523,
3

527

(4th

Cir.

omitted);

2002)

see

(internal

generally

20

quotation

U.S.C.

§

marks

and

1415.

citation

Among

those

safeguards, a parent must be provided prior written notice of a
decision to propose or change the educational placement of a
student.

Md. Code Regs. 13A § 05.01.13(B).

A parent may also

request a meeting at any time to review and, as appropriate,
revise the student’s IEP.

Id. § 05.01.08(B)(3).

If the parents are not satisfied with the IEP, they may
“present complaints with respect to any matter related to the
identification,

evaluation,

or

educational

placement

child, or the provision of a [FAPE] to such child.”
1415(b)(6).

After

parents

are

entitled

to

the

state

local

also

conducted
1415(f).

by
In

such

Maryland,

a

or
the

complaint

has

request

received,

process

educational

agency.

Office

of

the

20 U.S.C. §

due

Maryland

a

been

of

the

hearing
Id.

§

Administrative

Hearings (“OAH”) conducts the due process hearing.

Md. Code

Ann., Educ. § 8-413(d); Md. Code Regs. 13A § 05.01.15(C)(1).
Any party can then appeal the administrative ruling to federal
or state court.

Md. Code Ann., Educ. § 8-413(j).

When a FAPE is not provided to a disabled student, the
student’s parents may seek an award of “compensatory education.”
G. ex. rel. R.G. v. Fort Bragg Dependent Schs., 324 F.3d 240,
253-54 (4th Cir. 2003).

These educational services are “ordered
4

by the court to be provided prospectively to compensate for a
past deficient program,” i.e., the school system’s failure to
provide the student with a FAPE.
II.

Id. at 253.

Background
A.

Factual Background

Y.B.

was

authorities
relinquished

born

in

Russia

in

his

parents

as

parental

rights,

Y.B.

identified
their

Tver,

1992.

After

neglectful
lived

Russian

and

they

briefly

with

relatives before being sent to live in various orphanages.
July

2003,

when

Y.B.

was

eleven

years

old,

R.B.

and

In
G.B.

(“Y.B.’s parents”) adopted him in what was considered a highrisk international adoption.1
R.B. and G.B. initially enrolled Y.B. in a Catholic school,
but they transferred him to the Prince George’s County school
system following his second semester of sixth grade.

By his

eighth grade year, Y.B. had begun receiving special education
services

based

on

his

hyperactivity disorder.
that

Y.B.

suffered

diagnosis

of

attention

deficit

Subsequent evaluations also determined

from

depressive

disorder,

oppositional

defiant disorder, and reactive attachment disorder.

1

They
simultaneously
biological brother.

adopted

5

M.B.,

Y.B.’s

younger

As a result of these evaluations, an IEP was developed for
Y.B. in August 2007.

Y.B. began his ninth grade year that fall

at Gwynn Park High School (“Gwynn Park”).
the

spring

semester,

Y.B.’s

grades

At the beginning of

slipped,

and

his

parents

decided to enroll him in the partial hospital program at Fort
Belvoir’s
2008.

Dewitt

Army

Community

Hospital

beginning

in

March

In this outpatient program, Y.B. attended school each

weekday and received special education services pursuant to his
IEP.

He

also

received

individual

and

group

counseling

and

substance abuse counseling for alcohol and marijuana abuse as
part of the program.2
A dispute subsequently arose between Y.B.’s parents and the
Board

regarding

Y.B.’s

placement

for

his

tenth

grade

school

year.

At a due process hearing in August 2008, the parties

agreed

to

school.

place

Y.B.

at

the

Frost

School,

a

non-public

day

Y.B.’s IEP for that year provided for twenty-nine hours

and ten minutes of special education services from a special
education teacher and three hours and twenty minutes of group
therapy from a mental health counselor per week in a private day
school.

The IEP also identified Y.B.’s primary disability as

emotional disturbance resulting from the disorders previously

2

Dr. Donald Berghman, a child psychiatrist at the hospital,
provided at least a portion of this counseling.
6

identified.

During his first two quarters of the 2008-2009

school year, Y.B. attended school regularly and received A’s and
B’s

in

all

of

his

courses.

He

also

continued

to

receive

counseling from Dr. Berghman and was involved in family therapy.
Early in the third quarter of the school year, Y.B. began
violating the Frost School’s rules, running away from home, and
he resumed his use of alcohol and marijuana.3
days

of

school

significantly.

during

that

quarter

and

He missed eleven

his

grades

declined

Indeed, during the last quarter of the year,

Y.B. did not even receive grades because he missed thirty days
of school.4

In May 2009, the Frost School requested a manifest

determination

review

(“MDR”)

to

determine

whether

behavior was the result of his disability.

Y.B.’s

bad

At the meeting,

which occurred on June 4, 2009, it was determined that Y.B. had
received only nine suspensions during the year, instead of the
ten

suspensions

cancelled.
assessment

that

That
was

prompt

same

an

day,

conducted,

and

MDR.

The

however,

a

Y.B.’s

IEP

meeting

functional
team

was

then

behavior

implemented

a

3

In April 2009, Y.B. was charged with possession of
marijuana.
After he failed to meet with an intake worker from
the Department of Juvenile Services (“DJS”) and missed two court
dates, the juvenile court issued a warrant for his arrest.
4

Y.B.’s absences stemmed from both unexcused absences and
numerous out-of-school suspensions for failure to comply with
school rules.
7

behavior intervention plan shortly thereafter.5

Due to Y.B.’s

repeated violation of school rules and lack of attendance, the
Frost School discharged Y.B. at the end of the school year in
June 2009.

He received half credits for the coursework he had

completed during the first two quarters of the school year.
A central IEP (“CIEP”) meeting was held on July 14, 2009.
At that meeting, it was recommended that YB continue to receive
approximately

twenty-nine

hours

of

special

education

weekly,

along with one hour of individual counseling services.6

Y.B.’s

parents requested that Y.B. be placed in a full-time residential
school,

but

the

school

system

determined

that

the

least

restrictive environment for implementing his IEP was a private
day school.

It then suggested several schools that it believed

would be appropriate, including the Leary School in Virginia.7
During the meeting, Y.B.’s parents also asked the team to have

5

The functional behavior assessment examines the content,
pattern, and function of the student’s behavior.
The IEP then
uses
this
assessment
to
develop
an
effective
behavior
implementation plan, which sets forth appropriate behavior goals
and strategies for achieving those goals.
6

Y.B. had indicated that he disliked group therapy.
Indeed, he had often acted out during his group therapy sessions
at the Frost School.
7

The Leary School’s program included a vocational component
in which students worked on a construction job site at the
school. Y.B. had previously expressed an interest in working in
construction following the completion of high school.
8

YB evaluated by a psychologist to determine whether a non-public
day school was adequate to meet his educational needs.

On July

27, 2009, Y.B. met with Dr. William Young, a psychologist for
Prince

George’s

County.

Dr.

Young

concluded

that

Y.B.

was

properly characterized as suffering from emotional disturbance
and

that

he

needed

special

educational environment.
Y.B.

required

a

education

services

in

a

small

He did not, however, conclude that

residential

placement

in

order

to

obtain

educational benefit.8
Y.B.’s parents thereafter applied to the Leary School, and
his application was accepted.

The 2009-2010 school year was

scheduled to begin on September 8, 2009.

Y.B. ran away from

home on September 1, 2009, and did not return until Thanksgiving
Day.

Immediately following his return, Y.B. was detained by DJS

at Cheltenham Youth Facility (“Cheltenham”) for one night before
being committed by the juvenile court to the Alfred D. Noyes
Children Center (“Noyes”) for residential care.9
While

at

Noyes,

at

the

request

another psychological evaluation.

of

DJS,

Y.B.

underwent

The results indicated that

8

The CIEP team subsequently met to evaluate Dr. Young’s
findings and determined that Y.B.’s IEP for the 2009-2010 year
did not need to be updated.
9

The record indicates that this placement was unrelated to
Y.B.’s educational needs.
9

Y.B.’s cognitive skills and intellectual functioning were in the
average

range,

but

delinquent behavior.

that

he

was

at

high

risk

for

future

Dr. Carter, the psychologist performing

the evaluation, recommended that Y.B. return home on electronic
monitoring
intensive

with

family

substance

academically

during

therapy,

abuse
the

individual

treatment.
quarter

counseling,

and

performed

well

Y.B.

that

he

attended

Noyes,

receiving B’s in all of his courses except physical education,
in which he received an A.
Y.B. was released from Noyes in February 2010 and began
attending the Leary School in mid-March of that year.
B’s in all of his courses.

He earned

He received at least one hour per

week of individual counseling as required by his IEP.

Y.B.’s

counselor indicated that he made progress on each of the goals
listed on his IEP during the third and fourth quarters of the
school year, including with his ability to manage emotions and
demonstrate constructive problem-solving skills.

His IEP team

met on April 29, 2010, to discuss this progress and to develop
an

IEP

for

performance

the
at

2010-2011

Noyes

and

school
the

year.

Leary

Based

School,

the

on
IEP

Y.B.’s
again

recommended approximately twenty-nine hours of special education
services and one hour of individual therapy per week in a nonpublic day school.
10

Although
(“ESY”)

Y.B.’s

provided

meaning

services,

IEP

that

for
Y.B.

extended
would

school

attend

year
school

throughout the year, Y.B. attended only seven days of the summer
session

at

the

Leary

School.

As

a

result,

he

received

“incomplete” grade for each of his three summer courses.
August

2010,

DJS

detained

monitoring violations.

Y.B.

at

Cheltenham

for

an
In

electronic

He was released, however, for the start

of the 2010-2011 school year at the Leary School and attended
approximately

three

weeks

before

additional monitoring violations.

again

being

detained

for

Y.B. remained at Cheltenham

from October through December 2010.10

DJS then transferred him

to the Jefferson School, a twelve-month residential treatment
center with a separate day school.11

Y.B.’s report card for his

first two months at the Jefferson School showed four A’s, one C,
and one F.12
Y.B.’s IEP team met in March 2011.

The team recommended

that Y.B. receive thirty hours of special education services per

10

At approximately the time that DJS detained Y.B., the
Leary School discharged him as a student.
11

The record demonstrates that DJS placed Y.B. at Jefferson
for purposes of “medical necessity,” not due to his educational
needs.
12

Y.B.’s failing grade was in Spanish.
He apparently
informed his Spanish teacher that he did not want to learn an
additional language.
11

week, along with one hour of counseling.

In addition to the

requirements of the IEP, the Jefferson School offered Y.B. group
counseling and family therapy services.

On July 1, 2011, the

Jefferson School discharged Y.B. from its residential program
because he was psychiatrically stable and no longer demonstrated
a

medical

provided.
abuse

necessity

for

the

level

of

care

that

the

school

The school did recommend that Y.B. receive substance

treatment,

and

DJS

subsequently

transferred

him

to

Mountain Manor, an in-patient treatment facility in Baltimore.13
From early July through mid-August 2011, Y.B. was treated at
Mountain Manor.

During this time, he received ESY services in

accordance with his IEP from the Baltimore Academy.
On August 19, 2011, Y.B.’s IEP team met to discuss his
placement for the 2011-2012 school year.

The Board proposed

referring Y.B. to the Pathways School, a non-public day school
in

Hyattsville,

Maryland,

that

specializes

in

providing

transitional services for students with special education needs.
At that time, Y.B. had passed all of his high school assessments
except for biology and needed only four additional credits to

13

During his stay at the Jefferson School, Y.B. was
arrested and charged as an adult for possession of a controlled
dangerous substance after he purchased prescription medication
from another student.
At the time of the administrative
hearing, those charges were still pending.
Neither party has
provided information here regarding whether those charges have
since been resolved.
12

receive a high school diploma.

Y.B.’s parents, however, refused

to sign a consent form granting the school system permission to
send a referral packet to the Pathways School.14
B.

Procedural Background

On June 28, 2011, just prior to Y.B.’s discharge from the
Jefferson School, Y.B.’s parents filed a due process complaint
with

the

OAH.

That

complaint

primarily

requested

Y.B.’s

placement in a full-time residential program and compensatory
educational services for the school system’s purported failure
to provide Y.B. with a FAPE during the 2008-2009, 2009-2010,
2010-2011, and 2011-2012 school years.

The parties attended a

resolution meeting on July 11, 2011, but they were unable to
resolve their dispute.

Approximately one month later, R.B. and

G.B. filed a motion with Administrative Law Judge Sondra Spencer
(“the ALJ”) to request that Y.B. be placed at the Jefferson
School pending resolution of their due process complaint.

The

ALJ denied this motion, and the due process hearing was held on
September 8-9, 12-13, and 16, 2011.

14

They said that a representative from a Pathways program
had previously told them that the program could not meet Y.B.’s
needs. It appears that the basis for this statement was a 2009
statement from the representative that this particular Pathways
program did not have psychologists on staff to provide
counseling to Y.B. as required by his IEP. The record reveals,
however, that the Pathways School recommended at the August 2011
meeting
involved
a
different
school
providing
different
services.
13

The ALJ framed the issues presented to her as follows:
(1)

Did
the
Student’s
Individualized
Education Programs . . . for the 20092010, 2010-2011, and 2011-2012 school
years and proposed placement in a
separate nonpublic day school afford
the Student a free appropriate public
education in the least restrictive
environment
or
is
placement
in
a
residential treatment center required
to
afford
the
Student
educational
benefit?

(2)

Is the Student entitled to compensatory
education services?

(ECF No. 9-2, ALJ Opinion, at 2).

On September 29, 2011, the

ALJ issued her opinion in the case.

She concluded that Y.B.’s

parents had failed to prove that the Board did not offer Y.B. a
FAPE for the 2009-2010, 2010-2011, and 2011-2012 school years,
and subsequently denied their request for compensatory education
services and reimbursement.15

At that time, Y.B. had not yet

attended school during the 2011-2012 school year.

On December

5, 2011, he again enrolled at the Frost School.
Y.B.,

through

his

parents

(collectively,

“Plaintiffs”),

filed an appeal to this court on January 27, 2012, naming the

15

Although not explicit within the issues set forth in the
ALJ’s opinion, the ALJ did conclude that Y.B.’s placement at the
Frost School during the 2008-2009 school year was appropriate
and that his lack of progress in that program during the spring
semester of 2009 was due to his own failure to attend school.
14

Board

and

Dr.

Defendants.

Hite,

the

Superintendent

(ECF No. 2).

of

the

Board,

Defendants filed the pending “motion

for summary judgment” approximately six weeks later.
9).

as

(ECF No.

Plaintiffs generally opposed the motion as premature, but

they did not respond to the merits of the arguments presented by
Defendants.16
III. Defendants’ Motion for Summary Judgment
Although
motion

titled

submitted

by

standards of review.
that

the

court

as

a

the

motion

Board

for

and

Dr.

(ECF No. 9).

dismiss

all

summary
Hite

judgment,

the

implicates

two

Defendants first request

claims

against

Dr.

Hite

as

“redundant” because Plaintiffs have sued the Board as well as
Dr.

Hite

in

his

official

capacity.

(internal quotation marks omitted).

(ECF

No.

9-3,

at

14)

They then request that the

court enter summary judgment in the Board’s favor because the
ALJ correctly concluded that its selection of a non-public day
school placement for the 2008-2009, 2009-2010, 2010-2011, and
2011-2012

school

years

provided

Y.B.

with

a

FAPE.

These

requests will be analyzed separately.

16

The
court
subsequently
received
a
copy
of
the
administrative record of all proceedings that occurred in the
OAH.
15

A.

All Claims Against Dr. Hite Will Be Dismissed Because
They Are Duplicative of the Claims Against the Board

Defendants’ request for dismissal of the claims against Dr.
Hite is properly analyzed under Federal Rule of Civil Procedure
(“Federal Rule”) 12(b)(6).

McCachren v. Blacklick Valley Sch.

Dist., 217 F.Supp.2d 594, 597-98 (W.D.Pa. 2002).
a

motion

to

dismiss

sufficiency

of

Charlottesville,

the
464

pursuant

to

this

complaint.
F.3d

480,

rule

The purpose of

is

Presley
483

(4th

to

Cir.

the

City

v.

test

of

2006).

A

plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”

Fed.R.Civ.P.

8(a)(2).

requires

Nevertheless,

“Rule

8(a)(2)

still

a

‘showing,’ rather than a blanket assertion, of entitlement to
relief.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3

(2007).

That showing must consist of more than “a formulaic

recitation

of

the

elements

of

a

cause

of

action”

assertion[s] devoid of further factual enhancement.”

or

“naked

Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted).
At

this

stage,

the

court

must

consider

all

well-pleaded

allegations in a complaint as true, Albright v. Oliver, 510 U.S.
266, 268 (1994), and must construe all factual allegations in
the

light

most

favorable

to

the

plaintiff,

see

Harrison

v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
16

1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).
Defendants assert that all claims against Dr. Hite, who
Plaintiffs have sued solely in his official capacity as the
Superintendent of the Board (ECF No. 2 ¶ 8), should be dismissed
as redundant of their claims against the Board.17
have not responded to this argument.

Plaintiffs

“[W]hen [claims] against

individual defendants would be duplicative of those against a
government entity, which is also sued, the claims against the
individuals should be dismissed as the government entity is the
real party in interest.”

Blunt v. Lower Merion Sch. Dist., 559

F.Supp.2d 548, 568 (E.D.Pa. 2008).

Claims against school board

employees in their official capacities are treated as claims
against the school board itself.

Id.; Hicks ex rel. Hicks v.

Halifax Cnty. Bd. of Educ., 93 F.Supp.2d 649, 667-68 (E.D.N.C.
1999); cf. Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S.
658, 690 n.55 (1978) (“[O]fficial-capacity suits . . . generally
represent only another way of pleading an action against an
entity of which an officer is an agent.”).

As a result, it is

“unnecessary” for Plaintiffs to proceed against both the Board

17

They also emphasize that, “[s]hould the Plaintiffs be
successful in obtaining their requested relief, it is . . . the
Defendant Board . . . that will be responsible for providing
required remedies to the Plaintiffs.” (ECF No. 9-3, at 14).
17

and Dr. Hite in his official capacity.

Hicks, 93 F.Supp.2d at

667; cf. Holmes-Ramsey v. Dist. of Columbia, 747 F.Supp.2d 32,
42 (D.D.C. 2010) (describing as “redundant” a plaintiff’s claims
against local government officials in their official capacities
when the plaintiff had also sued the local government).
claims

against

Dr.

Hite

will,

therefore,

be

All

dismissed.

McCachren, 217 F.Supp.2d at 599.
B.

Plaintiffs’
Arguments
Regarding
the
Procedural
Propriety of the Board’s Request for Summary Judgment
Are Unpersuasive, and Summary Judgment in the Board’s
Favor is Warranted

The

Board

has

requested

that

the

court

grant

summary

judgment in its favor by concluding that the ALJ properly found
that its selection of a non-public day school placement for Y.B.
during the 2008-2011 school years provided him with a FAPE.
Plaintiffs

did

not

address

this

issue

in

their

opposition

papers, instead challenging only the procedural propriety of the
Board’s summary judgment request.

As explained below, those

arguments are without merit.

Additionally, because Plaintiffs

wholly

failed

why

regard

to

to

Y.B.’s

demonstrate
placement

was

summary judgment will be granted.

18

the

ALJ’s

irregular,

conclusion
the

request

with
for

1.

Summary Judgment Standard

The United States Court of Appeals for the Fourth Circuit
has articulated the following standard of review for motions for
summary judgment in IDEA cases:
In a judicial proceeding under the IDEA, a
reviewing court is obliged to conduct a
modified de novo review, giving “due weight”
to
the
underlying
administrative
proceedings.
In such a situation, findings
of fact made in administrative proceedings
are considered to be prima facie correct,
and if a reviewing court fails to adhere to
them, it is obliged to explain why.
The
court is not, however, to substitute [its]
own notions of sound educational policy for
those of local school authorities. . . .
MM, 303 F.3d at 530-31 (citations omitted).

This standard works

in tandem with general standards of review for summary judgment,
which also apply in IDEA cases, as illustrated in Bd. of Educ.
of Frederick County v. I.S. ex rel. Summers, 325 F.Supp.2d 565,
578 (D.Md. 2004):
[T]he Court’s analysis is shaped by the
mandate of Rule 56(c) of the Federal Rules
of Civil Procedure that summary judgment
“shall
be
rendered
forthwith
if
the
pleadings,
depositions,
answers
to
interrogatories, and admissions on file,
together with the affidavits, if any, show
that there is no genuine issue as to any
material fact and that the moving party is
entitled to a judgment as a matter of law.”
“When
the
moving
party
has
met
its
responsibility of identifying the basis for
its motion, the non-moving party must come
forward with specific facts showing that
there is a genuine issue for trial.”
White
19

v. Rockingham Radiologists, Ltd., 820 F.2d
98, 101 (4th Cir. 1987) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 324, 106
S.Ct.
2548,
91
L.Ed.2d
265
(1986);
Fed.R.Civ.P. 56(e)).
The Court’s function
is limited to determining whether sufficient
evidence
supporting
a
claimed
factual
dispute exists to warrant resolution of the
matter at trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986).
In that context, a
court is obligated to consider the facts and
all reasonable inferences in the light most
favorable
to
the
nonmoving
party.
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986).
Plaintiffs face an uphill battle in this case because just
as

they

were

required

to

carry

the

burden

of

proof

in

the

administrative hearing, so too must they carry the burden of
proof here.

See Schaffer ex rel. Schaffer v. Weast, 546 U.S.

49, 56-62 (2005); Cavanagh v. Grasmick, 75 F.Supp.2d 446, 457
(D.Md. 1999).
“If

the

administrative

findings

were

made

in

a

regular

manner and have evidentiary support, they are to be considered
prima facie correct.”

Cavanagh, 75 F.Supp.2d at 457 (citing

Doyle v. Arlington Cnty. Sch. Bd., 953 F.2d 100, 103 (4th Cir.
1991)).

Additionally, in giving due weight to the findings of

the ALJ, this court “owes deference to the ALJ’s determinations
of the credibility of witnesses.”

Wagner v. Bd. of Educ. of

Montgomery Cnty., 340 F.Supp.2d 603, 611 (D.Md. 2004). “‘[T]he
20

fact-finder, who has the advantage of hearing the witnesses, is
in the best position to assess credibility.’” Justin G. ex rel.
Gene R. v. Bd. of Educ. of Montgomery Cnty., 148 F.Supp.2d 576,
588 (D.Md. 2001) (quoting Bd. of Educ. of Montgomery Cnty. v.
Hunter ex rel. Hunter, 84 F.Supp.2d 702, 706 (D.Md. 2000)); see
also Doyle, 953 F.2d at 104.
2.

Analysis

Plaintiffs set forth three reasons why the Board’s request
for summary judgment is improper:

(1) the Board did “not cite

to a single piece of evidence or testimony” in its motion (ECF
No 12, at 1); (2) the Board failed to comply with Local Rule
105.2(c) with regard to the filing of cross-motions for summary
judgment; and, (3) summary judgment is premature because the
parties have not yet engaged in discovery, which they have a
“right” to do in this case (id. at 7).

The Board has generally

opposed these arguments, asserting that the court may properly
resolve its motion at this time by looking to the administrative
record.
a.

The Board’s Purported Failure to Cite Evidence

Plaintiffs’

first

argument

–

regarding

the

Board’s

purported failure to cite specific evidence in support of its
request for summary judgment – fails on two fronts.

Initially,

this argument misunderstands the nature of the parties’ burdens
21

on

summary

judgment.

Where

the

plaintiff

has

the

ultimate

burden of proof at trial, as in the present case, a moving
defendant is required only to show the absence of a genuine
dispute

of

evidence

material

to

fact;

maintain

a

it

need

motion

not

for

affirmatively

summary

present

judgment.

The

commentary to the recent amendments makes clear that the rule of
Celotex,

477

U.S.

at

323

(“[W]e

find

no

express

or

implied

requirement in [former] Rule 56 that the moving party support
its motion with affidavits or other similar materials negating
the

opponent’s

claim.”),

has

not

changed.

See

Fed.R.Civ.P.

56(c)(1)(B) advisory committee notes (2010 amendment) (“And a
party who does not have the trial burden of production may rely
on a showing that a party who does have the trial burden cannot
produce

admissible

evidence

to

carry

its

burden

as

to

the

fact.”).
Additionally, this argument overlooks that the Board has
cited

to

evidence

–

albeit

request for summary judgment.

indirectly

–

in

support

of

its

Indeed, nearly every paragraph in

the statement of facts provided by the Board cites specific
paragraphs of the ALJ’s factual findings as support.
paragraphs

of

the

ALJ’s

opinion,

in

turn,

reference

Those
the

testimony and exhibits in the administrative record that support
the findings of fact. Accordingly, while the Board did not cite
22

directly

to

this

evidence

in

its

statement

of

facts,

it

nonetheless set forth information in its motion indicating where
in the underlying record there was support for those facts.
b.

The Board’s Purported
Rule 105.2(c)

Failure

to

Comply

with

Local

Plaintiffs’ contention that the Board failed to comply with
Local

Rule

105.2(c)

unavailing.18

when

submitting

its

motion

is

similarly

According to Plaintiffs, the court must deny the

Board’s request for summary judgment because Defendants did not
contact them to set “a briefing schedule to permit each party to
file cross-motions for summary judgment in an orderly fashion.”
(ECF No. 12, at 12).
Local

Rule

105.2(c)

typically

works

in

tandem

with

the

court’s standard scheduling order to address the process for

18

Local Rule 105.2(c) states as follows:
In a two-party case, if both parties intend
to file summary judgment motions, counsel
are to agree among themselves which party is
to file the initial motion.
After that
motion has been filed, the other party shall
file a cross-motion accompanied by a single
memorandum (both opposing the first party's
motion and in support of its own crossmotion), the first party shall then file an
opposition/reply, and the second party may
then file a reply.
If more than two (2)
parties intend to file motions in a multiparty case, counsel shall submit a proposed
briefing schedule when submitting their
status report.
23

filing

cross-motions

for

summary

judgment.

In

non-

administrative appeal cases, a scheduling order, entered when a
case is at issue, directs the parties to submit a status report
at the close of discovery, including whether any party intends
to file a dispositive motion. Armed with that information, the
parties can then propose a schedule for the filing of cross
motions.

Where, as here, both parties are not prepared to file

motions simultaneously, the rule has no application.

Plaintiffs

essentially concede in their opposition that they will not be
prepared to file their own motion for summary judgment unless
and until the court permits them to undertake discovery and
present supplemental evidence.
seek

refuge

scenario.

is,

therefore,

The rule under which Plaintiffs
not

applicable

to

the

present

Indeed, if Local Rule 105.2(c) was applicable in this

circumstance, it would have the perverse effect of requiring
parties

to

undergo

potentially

because

the

non-moving

party

unnecessary

hoped

to

file

discovery
its

own

simply
summary

judgment motion at some unspecified time following discovery.
At bottom, Plaintiffs’ real dispute stems from the fact that the
Board

moved

for

summary

judgment

prior

to

discovery.

As

explained below, that argument – both in the abstract and as
applied to this case - is unpersuasive.

24

c.

The Board’s Request for Summary Judgment
Discovery and Plaintiffs’ Rule 56(d) Request

Plaintiffs

maintain

that

“the

filing

of

a

Prior

Motion

to

for

Summary Judgment” prior to the opportunity for discovery . . .
is contrary to the IDEA and the standards for summary judgment.”
(ECF

No.

12,

at

2).

This

assertion

is

easily

dismissed.

Federal Rule 56(b) expressly permits a party to “file a motion
for summary judgment at any time until 30 days after the close
of all discovery.”19

Additionally, the language of Rule 56(d)

affirmatively demonstrates that Plaintiffs’ argument that “it is
per se improper to grant summary judgment without providing the
opponent an opportunity to conduct discovery is without merit.”
Reflectone, Inc. v. Farrand Optical Co., Inc., 862 F.2d 841, 845
(11th Cir. 1989).20
Perhaps

recognizing

the

weakness

of

their

argument

regarding the general impropriety of summary judgment prior to

19

The cases cited by Plaintiffs in support of their
argument are not to the contrary.
Indeed, those cases merely
acknowledge that granting summary judgment to a party prior to
discovery may not be appropriate in all circumstances.
E.g.,
Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th
Cir. 1996) (describing the principle that summary judgment
should occur after discovery “[a]s a general rule”).
20

Rule 56(d) permits the court to deny summary judgment or
delay ruling on a summary judgment motion until discovery has
occurred if the “nonmovant shows by affidavit or declaration
that, for specified reasons, it cannot present facts essential
to justify its opposition.” Fed.R.Civ.P. 56(d).
25

discovery, Plaintiffs also invoke Rule 56(d) to request that the
court deny the Board’s motion for summary judgment as premature.
Plaintiffs contend that they “have the right to . . . conduct
discovery on [two] issues in this matter which are relevant to
the determination of whether Y.B. was offered a [FAPE]”:
Dr.

Donald

Belvoir

Berghman’s

DeWitt

Army

experience

treating

Community

Hospital;

Y.B.
and

at

the

(2)

(1)
Fort

Y.B.’s

subsequent performance at the Frost School, the non-public day
school that he began attending after the ALJ issued her opinion
in this case.
The

(ECF No. 12, at 10).

Fourth

Circuit

has

strictly

interpreted

the

requirements of Rule 56(d), previously holding that “a reference
to Rule 56([d]) and to the need for additional discovery in a
memorandum of law in opposition to a motion for summary judgment
is not an adequate substitute for a Rule 56([d]) affidavit.”
Evans, 80 F.3d at 961.

Thus, “the failure to file an affidavit

under Rule 56([d]) is itself sufficient grounds to reject a
claim

that

the

opportunity

for

discovery

was

inadequate.”

Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244
(4th Cir. 2002) (internal quotation marks and citations omitted);
Amirmokri

v.

Abraham,

437

F.Supp.2d

aff’d, 266 F.App’x 274 (2008).
the

affidavit

requirement

if

414,

420

(D.Md.

2006),

And although courts have relaxed
the
26

nonmoving

party’s

objection

“served as the functional equivalent of an affidavit,” they have
done so only where the non-moving party has “adequately informed
the district court [why] more discovery is necessary.”

Harrods

Ltd., 302 F.3d at 244-45; Strag v. Bd. of Trs., 55 F.3d 943, 954
(4th Cir. 1995).

Here, Plaintiffs’ Rule 56(d) request fails at

the first step because it contains no affidavit in support of
their demand for discovery.
Even setting aside this significant procedural error, the
request

for

demonstrated
resolve

this

additional

discovery
that

the

action.

evidence

1415(i)(2)(C)(ii),
provision narrowly.

at

but

fails

because

information
The
the
the

they

IDEA

seek

permits

request
Fourth

Plaintiffs

of

a

Circuit

is

not

necessary

courts
party,”
has

have

to
20

to

“hear
U.S.C.

construed

this

As explained in Springer v. Fairfax County

School Board, 134 F.3d 659, 666-67 (4th Cir. 1998) (citations
omitted):
We
construe
“additional”
in
the
ordinary sense of the word . . . to mean
supplemental.
Thus construed, this clause
does not authorize witnesses at trial to
repeat
or
embellish
their
prior
administrative hearing testimony; this would
be entirely inconsistent with the usual
meaning of “additional.”
We are fortified
in
this
interpretation
because
it
structurally assists in giving due weight to
the administrative proceeding, as Rowley
requires.
A
lax
interpretation
of
“additional evidence” would “reduce the
proceedings before the state agency to a
27

mere dress rehearsal by allowing appellants
to transform the Act’s judicial review
mechanism into an unrestricted trial de
novo.” . . . A lenient standard for
additional
evidence
would
have
the
consequence of making the whole IDEA process
more time consuming, as parties scrambled to
use the federal court proceeding to patch up
holes in their administrative case.
Pursuant to this reasoning, courts are advised to limit the
introduction
involving,

of

“additional

inter

alia,

evidence”

“unavailability

to
of

circumstances
a

witness”

or

“evidence concerning relevant events occurring subsequent to the
administrative hearing.”

Town of Burlington v. Dep’t of Educ.

for Commonwealth of Mass., 736 F.2d 773, 790 (1st Cir. 1984),
aff’d, 471 U.S. 359 (1985).

The requesting party bears the

threshold burden of demonstrating that the supplemental evidence
should be admitted on these bases.
H.

v.

Kennewick

Sch.

Dist.

No.

Brandon H. ex rel. Richard

17,

82

F.Supp.2d

1174,

1179

(E.D.Wash. 2000).
Plaintiffs contend that the court should permit them to
seek discovery from Dr. Berghman about inconsistencies that the
ALJ

identified

regarding

in

Y.B.’s

the

written

placement

recommendations

because

testify at the due process hearing.
enticing

at

unavailing.

first
Indeed,

blush,
in

this

he

submitted

“unavailable”

(ECF No. 12, at 10).
assertion

determining
28

was

he

whether

is
a

to

While

ultimately
witness

was

“unavailable” for an administrative hearing, the court must look
to the reason why the witness did not testify, not merely the
fact that he did not testify.

Burlington, 736 F.2d at 791.

If

the evidence indicates that a lack of diligence on the part of
the party proffering the witness contributed to the witness’s
failure to testify, the court may, in its discretion, decline to
permit the party to supplement the record with testimony from
that witness.

See Springer, 134 F.3d at 667 (concluding that

the district court had properly found that a witness did not
“fall within the category of being unavailable” simply because
the plaintiffs had cited “scheduling difficulties” as the reason
that the witness did not testify at the administrative hearing);
Marc V. v. N.E. Independent Sch. Dist., 455 F.Supp.2d 577, 589
(W.D.Tex. 2006) (declining to permit the plaintiffs to introduce
“additional
evidence

evidence”

“could

when

the

been

presented

have

record

indicated
in

the

that

such

administrative

hearing through the exercise of diligence” (citing Jones v. Bd.
of

Educ.

of

Washington

Cnty.,

15

F.Supp.2d

783,

786

(D.Md.

1998))), aff’d, 242 F.App’x 271 (5th Cir. 2007); cf. I.M. ex rel.
C.C.

v.

Northhampton

Pub.

Schs.,

---

F.Supp.

----,

2012

WL

1523194, at *4 (D.Mass. Apr. 26, 2012) (“[G]iven Plaintiffs’
failure to engage in thorough discovery at the administrative
level, the court is disinclined to permit submission of the
29

newly proffered evidence.

To do otherwise would undercut the

importance of the administrative hearing and the emphasis the
IDEA

places

on

exhausting

administrative

remedies

before

pursuing judicial review.”).
Here,

Plaintiffs

have

failed

to

meet

their

burden

of

showing that Dr. Berghman was actually unavailable to testify at
the due process hearing.

Their own evidence reveals that they

did not subpoena Dr. Berghman until September 6, 2011, just two
days before the start of the due process hearing.21

An Army

official responded in writing the following day, explaining that
the Army had to authorize “the appearance of its personnel . . .
in private litigation.”

(ECF No. 12-3, at 1).22

The response

also set forth the procedure Plaintiffs had to follow to obtain
such authorization and stated that Plaintiffs needed to submit a
subpoena signed by a judge, not “a clerk of court” along with

21

The Code of Maryland Regulations requires that a party
file its subpoena requests, “[t]o the extent practicable, . . .
at least 10 days before the [due process] hearing.”
Md. Code
Regs. 28 § 02.01.14.
22

The letter also explained that Department of Defense
guidelines preclude Army personnel from testifying as “opinion
or expert witness[es]” in private litigation. (ECF No. 12-3, at
1).
Army personnel are thus permitted to testify only as fact
witnesses.
30

the request.
the

same

(Id.).23

day,

they

Although Plaintiffs answered the letter
failed

to

comply

with

the

procedure

articulated by the Army,24 and there is no indication that they
ever

provided

Plaintiffs
their

the

have

attempt

Army

provided
to

with
no

subpoena

a

subpoena

additional
Dr.

signed

by

information

Berghman.

The

a

judge.

regarding

record

thus

indicates that Plaintiffs failed to act diligently in presenting
testimony

from

Dr.

Berghman

at

the

due

process

hearing,

warranting denial of their request to take discovery on this
issue.25

23

Specifically, the response stated that “[t]he request
must include the nature of the proceeding, and the nature and
relevance of the official information sought.” (Id.) (citations
omitted).
24

Plaintiffs’ response described in detail the nature of
the administrative hearing, but it provided little information
about “the nature . . . of the official information” Plaintiffs
sought to present through Dr. Berghman’s testimony.
(Id.) In
fact, their letter stated only that Dr. Berghman was Y.B’s
“treating physician,” that he had a “long standing relationship
with [Y.B.],” and “his testimony [was] a critical part of the
[administrative] proceeding.” (ECF No. 12-4, at 2).
25

Plaintiffs’ request must also be denied because any
testimony they could now obtain from Dr. Berghman would be
introduced – admittedly – for the sole purpose of rendering
credible his opinion recommending a residential placement for
Y.B. (ECF No. 12, at 10-11). (The ALJ chose not to credit Dr.
Berghman’s
recommendation
due
to
numerous
unexplained
inconsistencies about the time period during which he treated
Y.B. and the nature of that treatment).
As explained by the
First Circuit, courts must “look with a critical eye on a claim,
such as made here, that the credibility of a witness is a
31

Plaintiffs’ request to undertake discovery regarding Y.B.’s
placement at the Frost School following the issuance of the
ALJ’s opinion will also be denied.
Y.B.

“is

failing

in

that

day

According to Plaintiffs,

placement,”

and

this

evidence

demonstrates that his repeated placement in a private day school
– rather than a residential setting – was improper.
12, at 11).

(ECF No.

This request is properly analyzed by considering

two separate issues:

(1) whether Y.B.’s performance during the

2011-2012 school year has bearing on the propriety of prior year
IEPs; and (2) whether Y.B.’s performance at the Frost School
beginning in December 2011 is probative of the propriety of his
August 2011 IEP recommending placement at the Pathways School.
The

Fourth

Circuit

has

expressed

skepticism

about

the

relevancy of evidence that arises after the conclusion of an
administrative hearing.
554

F.3d

470,

476-78

See Schaffer ex rel. Schaffer v. Weast,
(4th

Cir.

2009)

(explaining

that

“the

dangers of post-hearing evidence are significant”). “Judicial
review of IEPs under the IDEA is meant to be largely prospective
and to focus on a child’s needs looking forward.”

Id. at 477.

This prospective review of IEPs would be particularly undermined

central
issue
[in
the
district
court’s
review
of
an
administrative hearing]. The claim of credibility should not be
an ‘open sesame’ for additional evidence.” Burlington, 736 F.2d
at 791.
32

by the admission of evidence about a student’s performance for
“an

entirely

different

[subsequent]

school

year.”

A.S.

v.

Trumbull Bd. of Educ., 414 F.Supp.2d 152, 171 (D.Conn. 2006);
see

also

Schaffer,

554

F.3d

at

477

(citing

with

approval

Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 161 (3d Cir.
1994), for the proposition that “evidence of a later IEP was
‘irrelevant
IEPs”).26

to

the

issue

of

the

appropriateness

of’

prior

Accordingly, evidence of Y.B.’s performance during the

2011-2012 school year is not probative of whether his prior-year
IEPs afforded him a FAPE, and Plaintiffs will not be permitted
to submit additional evidence regarding this issue.
The

discovery

Plaintiffs

seek

regarding

Y.B.’s

lack

of

progress at the Frost School would also not be probative of
whether the August 2011 IEP recommending placement in a nonpublic

day

Plaintiffs
discovery

school

provided

assert

that

on

this

issue

him

they

with

have

(ECF

No.

a

a
12,

FAPE.
“right”
at

Once
to

10),

again,

undertake
failing

to

recognize that the court has discretion to determine whether to
admit such evidence, Springer, 134 F.3d at 666-67.

Y.B.’s IEPs

have each provided for ESY services because, as the parties

26

For this reason, Plaintiffs’ citation to Schoenbach v.
District of Columbia, 309 F.Supp.2d 71, 82 (2004), in support of
a contrary conclusion is unpersuasive.
33

agree, his failure to attend classes consistently is likely to
result in substantial regression of life skills and an inability
to recover those skills in a reasonable amount of time.
it

is

undisputed

that

Y.B.’s

parents

declined

to

Here,

submit

a

referral packet to the Pathways School and that Y.B. was not
enrolled in school from mid-August through early December 2011.
Given

this

significant

break

in

time,

it

would

be

speculative at best to conclude that Y.B.’s subsequent failure
at the Frost School somehow demonstrates that the August 2011
decision to place him in a private day school – rather than a
residential program – was not reasonably calculated to afford
him a FAPE.

Cf. Schaffer, 554 F.3d at 477 (reasoning that

“[j]udicial review would simply not be fair to school districts,
whose decisions would be judged in hindsight based on later
assessments of a student’s needs at [a] later point in time” if
the court gave significant weight to post-hearing evidence that
arose months or years after an administrative hearing); J.R. v.
Bd. of Educ. of City of Rye Sch. Dist., 345 F.Supp.2d 386, 395
(S.D.N.Y. 2004) (“[W]e . . . must not engage in Monday-morning
quarterbacking

guided

by

our

knowledge

of

[the

student]’s

subsequent progress at [a particular school], but rather [must]
consider the propriety of the IEP with respect to the likelihood
that

it

would

benefit

[the

student]
34

at

the

time

it

was

devised.”).27

Accordingly, Plaintiffs’ Rule 56(d) request will

be denied in its entirety, and the Board’s request for summary
judgment will be resolved on the administrative record alone.
d.

Plaintiffs’ Failure to Identify Any Deficiencies in
the ALJ’s Opinion in Response to the Board’s Request
for Summary Judgment

In its motion, the board contends that the court should
grant summary judgment in its favor because the ALJ correctly
concluded that Y.B.’s placement in a non-public day school for
the relevant school years afforded him a FAPE.

“Whether an IEP

is . . . sufficient to discharge a school board’s obligations
under the IDEA is a question of fact.”

Cnty. Sch. Bd. of

Henrico Cnty., Va. v. Z.P. ex rel. R.P., 399 F.3d 298, 309 (4th
Cir. 2005); Heffernan, 642 F.3d at 485 (same).

Under the IDEA,

when an ALJ’s factual findings are “regularly made,” they are
“entitled to a presumption that they are prima facie correct,”
C.C. v. Fairfax Cnty. Bd. of Educ., --- F.Supp.2d ----, 2012 WL
2951631, at *3 (E.D.Va. July 19, 2012) (citing Z.P., 399 F.3d at

27

Because of these circumstances, Justin G., 148 F.Supp.2d
576, a case on which Plaintiffs rely heavily, is distinguishable
from the present action.
The Justin G. court determined that
the school district had committed a procedural violation of the
IDEA with respect to one of the school years at issue and thus
reached the question of whether the private school placement
selected by his parents was adequate.
With respect to this
limited question, the court considered additional evidence,
pursuant to 20 U.S.C. § 1415(i)(2)(C), consisting of the
student’s subsequent progress in the private school placement
that the student’s parents contended was appropriate.
35

304).
why

In their opposition papers, Plaintiffs present no reason

the

court

should

irregularly

made.

procedural

propriety

conclude

which

were

Board’s

Beyond
of

rejected

statement

educational progress.
is

their

burden

–

the

their

summary

above,
of

that

findings

judgment

prior

merely

mentioned

were

regarding

arguments

Plaintiffs

facts

ALJ’s

the

to

discovery,

state

little

that

about

the

Y.B.’s

They fail to recognize, however, that it

not

the

Board’s

–

to

set

forth

evidence

demonstrating that the ALJ’s findings were not regularly made
and,

therefore,

correctness.

are

not

entitled

to

a

presumption

of

Barnett v. Fairfax Cnty. Sch. Bd., 927 F.2d 146,

152 (4th Cir. 1991).
From

the

evidence

concluded

that

the

specified

non-public

introduced

Board’s
day

at

proposed

schools

the

hearing,

placement

during

the

for

the

ALJ

Y.B.

at

2008-2009,

2009-

2010, 2010-2011, and 2011-2012 school years would afford him a
FAPE.

The Fourth Circuit applies a stringent standard when

determining

whether

a

student’s

placement

in

facility is necessary for educational purposes.

a

residential

Only “[i]f the

educational benefits which can be provided through residential
care

are

essential

for

the

child

to

make

any

educational

progress at all [is] residential care . . . required under the
[IDEA].”

Burke Cnty. Bd. of Educ. v. Denton, 895 F.2d 973, 980
36

(4th Cir. 1990).

The IDEA does not “authorize residential care

merely to enhance an otherwise sufficient day program.”

Id.

(quoting Abrahamson v. Hershman, 701 F.2d 223, 227 (1st Cir.
1983)).

Thus, if a student’s medical, social, or emotional

problems

necessitate

the

residential

placement,

and

those

problems are segregable from the learning process, the local
education

agency

placement.

–

here,

the

Board

-

need

not

fund

that

Shaw v. Weast, 364 F.App’x 47, 53 (4th Cir. 2010).

The court’s independent review of the record confirms that
there was an evidentiary basis for the ALJ’s conclusion that
Y.B.’s “emotional problems are segregable from his ability to
learn,”

and

that

the

proposed

day

placements

for

Y.B.

were

reasonably calculated to afford him a FAPE, which is all that
the IDEA mandates.

(ECF No. 9-2, at 32); Rowley, 458 U.S. at

201; see also Shaw, 364 F.App’x at 53-54 (affirming the district
court’s conclusion that a student’s emotional disturbance and
other mental health issues did not require the school district
to provide her with a residential placement).

Indeed, when Y.B.

attended school, he received passing grades and advanced from
grade to grade.

See Shaw, 364 F.App’x at 54 (emphasizing the

student’s ability to earn credits and pass classes as evidence
that

“during

stabilized,

periods
her

when

education

[her]

mental

progressed”);
37

health
Bd.

issues
of

Educ.

were
of

Montgomery Cnty. v. Brett Y., 155 F.3d 557, 1998 WL 390553, at
*3 (4th Cir. 1998) (table opinion) (concluding that a child’s
ability to “perform[] well academically when he was at school,”
coupled with evidence that the request for residential placement
was driven by incidents unrelated to his education indicated
that placement in a non-residential placement afforded the child
a FAPE).

“That [Y.B]’s emotional and mental needs [may have]

required a certain level of care beyond that provided at [his
day schools] does not necessitate a finding that the [Board]
should fund that extra care when it [could] adequately address
[his] educational needs separately.”

Shaw, 364 F.App’x at 54.

The Board’s request for summary judgment will, therefore, be
granted, and all claims that depend on Y.B.’s placement in a day
school – as opposed to a residential school – necessarily fail
as a result.
IV.

Conclusion
For the foregoing reasons, the motion for summary judgment

filed by Dr. Hite and the Board will be granted.

Although the

Board’s motion seeks judgment on the entirety of Plaintiffs’
complaint,

it

is

not

entirely

residential/non-residential
Plaintiffs

will

be

provided

clear

placement
an

that

the

resolves

opportunity

to

all

issue

of

issues.

identify

any

claims raised in their Complaint that remain by submitting a
38

position notice within fourteen days of the issuance of the
attached order.

If necessary, a telephone conference will be

convened thereafter.

Otherwise, the case will be closed.

A separate Order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

39