J.R. et al v. Bowers et al
Filing
37
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 8/21/2017. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
J.R., et al.
:
v.
:
Civil Action No. DKC 16-1633
:
DR. JACK R. SMITH, et al.
:
MEMORANDUM OPINION
Presently
pending
and
ready
for
resolution
are:
(1)
a
motion for summary judgment filed by Plaintiffs J.R., N.R., and
B.R. (“Plaintiffs”) (ECF No. 15); (2) a cross motion for summary
judgment
filed
by
Defendants
Montgomery
County
Board
of
Education and Dr. Jack R. Smith (“Defendants”) (ECF No. 25); and
(3) a motion for additional evidence filed by Plaintiffs (ECF
No. 16).
The issues have been briefed, and the court now rules,
no hearing being deemed necessary.
Local Rule 105.6.
For the
following reasons, Plaintiffs’ motions for summary judgment and
for additional evidence will be denied, and Defendants’ cross
motion for summary judgment will be granted.
I.
Background
A.
The Individuals with Disabilities Education
Improvement Act
The Individuals with Disabilities Education Improvement Act
(“IDEA”), 20 U.S.C. § 1400 et seq., requires all states that
receive federal funds for education to provide each child who
has a disability with a free and appropriate public education
(“FAPE”).
FAPE,
20 U.S.C. § 1412(a)(1)(A).
the
IDEA
Individualized
requires
Education
determined to be disabled.
a
school
Program
To assure delivery of a
district
(“IEP”)
to
for
20 U.S.C. § 1414(d).1
provide
each
an
child
The IEP must
state the student’s current educational status, the annual goals
for the student’s education, the special educational services
and other aids that will be provided to the child to meet those
goals, and the extent to which the child will be “mainstreamed,”
i.e.,
spend
students.
time
in
school
environments
20 U.S.C. § 1414(d)(1)(A).
with
non-disabled
The student’s IEP is
formulated by a team (“IEP team”) consisting of the parents or
guardian of the child, a representative of the school district,
the
child’s
individual
regular
who
can
and
interpret
special
results
education
and
teachers,
evaluations
child, and, when appropriate, the child himself.
1414(d)(1)(B).
placed
in
appropriate
to
1
the
20 U.S.C. §
Based on the student’s IEP, his IEP team will
select a school that can provide him a FAPE.
be
of
an
the
the
least
child’s
restrictive
needs,
with
The student must
environment
the
(“LRE”)
disabled
child
Maryland’s regulations governing the provision of a FAPE
to children with disabilities in accordance with the IDEA are
found at Md. Code Regs. 13A.05.01.
2
participating to the “maximum extent appropriate” in the same
activities
as
his
1412(a)(5)(A);
or
see
her
also
non-disabled
34
C.F.R.
peers.
§
20
300.550.
U.S.C.
“The
§
Act
contemplates that such education will be provided where possible
in regular public schools, with the child participating as much
as possible in the same activities as nonhandicapped children,
but the Act also provides for placement in private schools at
public expense where this is not possible.”
Burlington
v.
Dep’t
of
Educ.,
471
U.S.
See Sch. Comm. of
359,
369–70
(1985)
(citing 20 U.S.C. § 1412(5); 34 C.F.R. §§ 300.132, 300.227,
300.307(b), 300.347).
The IDEA also 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 these decisions.”
M.M. ex rel. D.M. v. Sch. Dist. of Greenville Cty., 303 F.3d
523, 527 (4th Cir. 2002) (citation omitted); see also 20 U.S.C. §
1415.
If the parents believe that the school district is not
providing a FAPE, they may present a complaint “with respect to
any
matter
relating
to
the
identification,
evaluation,
or
educational placement of the child, or the provision of a [FAPE]
to such child.”
20 U.S.C. § 1415(b)(6).
After such a complaint
has been received, the parents are entitled to request a due
3
process
hearing
conducted
by
agency.
the
state
or
local
educational
20 U.S.C. § 1415(f).2
Parents challenging an IEP team’s school choice “may place
the child in a private school and seek reimbursement for the
cost of the private school.”
70.
See Burlington, 471 U.S. at 369–
Parents who unilaterally change their child’s placement “do
so at their own financial risk.”
Id. at 373-74.
In order to be
entitled to reimbursement for unilateral private placement, the
court
or
hearing
officer
must
find
“both
that
the
public
placement violated IDEA and that the private school placement
was proper under the Act.”
Florence Cty. Sch. Dist. Four v.
Carter ex rel. Carter, 510 U.S. 7, 15 (1993).
B.
Factual Background3
J.R. is a seventeen-year-old student with a long history of
behavioral,
emotional,
Decision, at 12-13).
intellectual
and
academic
difficulties.
(ALJ
He has multiple disabilities, including an
disability,
a
hearing
impairment,
and
impairment due to a rare disorder called KBG Syndrome.
a
health
(Id. at
2
In Maryland, the Maryland Office of Administrative
Hearings conducts due process hearings. Md. Code Ann., Educ. §
8–413; Md. Code Regs. 13A.05.01.15(C)(1).
3
Unless otherwise noted, all facts are from the Findings of
Fact in the ALJ Decision below. There is no evidence that these
particular findings by the ALJ were not regularly made, thus
these findings are prima facie correct. Doyle v. Arlington Cty.
Sch. Bd., 953 F.2d 100, 103 (4th Cir. 1991).
4
12).
These
disabilities
services under the IDEA.
qualify
J.R.
for
special
education
(Id.).
J.R. has been educated under an IEP for his entire formal
education.
(Id.).
In
2007,
tests
evaluating
J.R.’s
intellectual ability placed him in the “low average” range with
specific learning disabilities.
In the fourth grade, Defendant
Montgomery County Public Schools began funding private school
education for J.R. at the Frost School, which specializes in
students
with
significant
behavioral
problems,
academics at grade level. (Id. at 13).
but
teaches
He went to the Frost
School for the fourth, fifth, and part of the sixth grade, and
attended High Road Academy (“High Road”) for the remainder of
the sixth grade through the end of the eighth grade in 2015.
(Id. at 12).
High Road is a school for students with learning
disabilities who are still pursuing a high school diploma, but
the school is not designed for children with extreme behavioral
issues.
(Id. at 13).
J.R. made minimal educational progress
during his time there.
(Id.).
His behavior did improve over
time at High Road, but he continued to exhibit behavioral issues
that
were
described
as
throughout his time there.
low
frequency,
but
high
intensity
(Id. at 14).
High Road was willing to keep J.R. for its high school
program,
but,
at
the
suggestion
5
of
one
of
Plaintiffs’
consultants,
Dr.
Joseph
Beiderman,
his
parents
proposed
transitioning J.R. out of the diploma track program and into a
less difficult certificate track program.
(Id. at 16).
Before
removing J.R. from a diploma track, his IEP team decided to do a
reevaluation of his intellectual ability.
(Id.).
Defendants’
School Psychologist Dr. Dietra Reiser conducted several tests as
part of the re-evaluation, the results of which showed that J.R.
was
in
the
“lower
extreme”
of
intellectual
ability,
scoring
below the 0.1 percentile on one test and scoring the equivalent
to an IQ of 47.
(Id. at 16-17).
Given these results, Dr.
Reiser found that J.R. should be in a program for students with
an
intellectual
disabilities.
a
program,
Central
placements.
rather
(Id. at 17-18).
certificate
district’s
disability
IEP
specific
learning
Because High Road did not offer
J.R.
was
(“CIEP”)
(Id. at 17).
than
referred
team,
which
to
the
oversees
school
school
At a meeting on June 9, 2015, J.R.’s
CIEP team agreed that he should be moved to a certificate track
program.
Prior
discussed
(Id. at 18).
to
only
the
two
June
9
meeting,
certificate
the
track
school
schools
parents: Ivymount and the Katherine Thomas School.
district
with
had
J.R.’s
(Id. at 17).
At the meeting, however, George Moore, the chair of J.R.’s CIEP
team,
proposed
Rock
Terrace
School
6
(“RTS”),
a
public
school
designed for students with significant cognitive disabilities
and complex emotional, behavioral, or sensory needs.
18,
20).
The
CIEP
team
continued
their
meeting
(Id. at
to
allow
Plaintiffs to visit RTS, and reconvened on August 7 to make a
final decision.
(Id. at 18).
and was accepted by Ivymount.
At
the
August
7
In the meantime, J.R. applied to
(Id.).
meeting,
RTS
principal
Dr.
Katherine
Lertora explained in some detail that she had reviewed J.R.’s
file and believed that RTS would be an appropriate placement for
him.
(Id. at 19).
Plaintiffs had concerns about the behavior
management capabilities, teaching methods, and class sizes at
RTS,
and
preferred
Ivymount.
(Id.
at
18-19).
Over
the
objection of J.R.’s parents, the CIEP team decided to place him
at RTS for the 2015-16 school year.
C.
(Id. at 19).
Procedural Background
Rather than send J.R to RTS, Plaintiffs enrolled him at
Ivymount and filed a due process complaint against Defendants
for reimbursement.
(ALJ Decision, at 19).
An administrative
law judge (“ALJ”) held a due process hearing for Plaintiffs
beginning in November 2015, and issued a decision on February
12, 2016, finding that Defendants’ placement of J.R. at RTS was
reasonably calculated to provide a FAPE.
4
(Id. at 43).4
As
Details of the ALJ’s decision are discussed further below.
7
discussed more fully below, the ALJ also found that the CIEP
team had not pre-determined where it would send J.R. prior to
the
August
7
CIEP
team
meeting,
and
that
certain
discovery
issues that occurred during the hearing did not diminish the
efficacy of Plaintiffs’ case.
(Id. at 45).
Plaintiffs appealed that administrative ruling by filing
suit against Defendants in this court on May 25, 2016.
1).5
6,
(ECF No.
The administrative record was filed with the court on June
2016,
and
the
parties,
expecting
that
the
case
could
be
resolved on cross-motions for summary judgment, set a briefing
schedule that was set to conclude on January 9, 2017.
(ECF Nos.
7;
completed
11).
After
an
extension
of
time,
the
parties
filing their cross-motion papers on January 19.
25; 26; 29).
(ECF Nos. 15;
Shortly thereafter, on January 31, the parties
filed a consent motion to hold the case in abeyance pending the
outcome of a case in the Supreme Court of the United States,
Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137
S.Ct. 988 (2017), which was set to review the FAPE standard.
(ECF No. 30).
That motion was granted (ECF No. 31), and the
case was stayed until Endrew F. was decided.
After the Supreme
Court issued its opinion on March 11, the parties submitted
5
Decisions by the Maryland Office of Administrative
Hearings can be appealed to the United States District Court for
the District of Maryland under Md.Code Ann., Educ. § 8–413(j).
8
additional briefing as to the effect of Endrew F.
35).
Plaintiffs
have
also
filed
a
motion
evidence, which has been briefed in full.
(ECF Nos. 32for
additional
(ECF Nos. 16; 21;
22).
D.
Supplemental Briefing Addressing Endrew F.
Before addressing the merits of this case, it is necessary
to consider whether the Supreme Court’s decision in Endrew F.
compels the remand of the case to the ALJ for a decision under
the
Endrew
F.
standard.
Plaintiffs
argue
that
required because the ALJ applied the “more than
a
remand
de minimus”
standard that the Supreme Court rejected in Endrew F.
34,
at
6-8).
The
primary
holding
of
the
is
Supreme
(ECF No.
Court’s
decision in Endrew F. was its rejection of this standard, which
the United States Courts of Appeals for the Fourth Circuit and
the Tenth Circuit had applied previously.
See O.S. v. Fairfax
Cty. Sch. Bd., 804 F.3d 354, 358-60 (4th Cir. 2015); Endrew F. ex
rel. Joseph F. v. Douglas Cty. Sch. Dist. RE–1, 798 F.3d 1329,
1338–41
(10th
Cir.
2015).
The
Supreme
Court
held
that
the
statutory language of the IDEA demanded more than the Tenth
Circuit had required, and it articulated a new standard: “To
meet its substantive obligation under the IDEA, a school must
offer an IEP reasonably calculated to enable a child to make
progress
appropriate
in
light
of
9
the
child’s
circumstances.”
Endrew
F.,
137
S.Ct.
at
999.
According
to
the
Court,
a
student’s placement must include “challenging objectives” that
are “appropriately ambitious in light of his circumstances, just
as advancement from grade to grade is appropriately ambitious
for most children in the regular classroom.”
Plaintiffs
contend
that
the
ALJ
Id. at 1000.
applied
the
now-invalid
Fourth Circuit standard from O.S., and that the decision should
be vacated so that the new standard can be applied.
34, at 8).
(ECF No.
Plaintiffs’ argument, however, is more focused on
the Supreme Court’s rejection of the Fourth Circuit standard
than the standard that the ALJ actually applied in this case.
As
Defendants
decision.
point
out,
the
ALJ
never
cited
O.S.
in
her
Rather, she focused on whether the placement of J.R.
at RTS was “reasonably calculated to enable the child to receive
educational benefits.”
(ALJ Decision, at 21 (citing
Bd. of
Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S.
176, 206-07 (1982))).
word
“appropriate”
instruction
with
She noted that courts had defined the
in
a
sufficient
FAPE
to
support
require
services
“personalized
to
permit
the
student to benefit,” and cited to older Fourth Circuit precedent
that
required
that
a
placement
be
calculated
“to
student] to receive appropriate educational benefit.”
22).
enable
[a
(Id. at
The ALJ also emphasized that an IEP “must be tailored to
10
the
student’s
particular
needs,”
taking
into
account
the
strengths of the child, the concerns of the parent, the results
of evaluations, and the academic, developmental, and functional
needs of the child.
(Id.).
In short, even though the ALJ made
her decision prior to the Supreme Court’s articulation of the
Endrew F. standard, she went beyond the “more than de minimus”
standard from O.S. and laid out an approach that evaluated what
progress was appropriate in light of the child’s circumstances,
just as Endrew F. requires.6
II.
Motions for Summary Judgment
A.
In
Standard of Review
M.M.
ex
quotation
marks
explained
the
rel.
and
D.M.,
303
citations
standard
of
F.3d
omitted),
review
for
at
530-31
the
Fourth
motions
for
(internal
Circuit
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,
6
In their supplemental response, Plaintiffs refined and
reiterated several of the arguments they made in their motion
for summary judgment in light of the Endrew F. decision.
(ECF
No. 34, at 8-15).
The Supreme Court’s analysis in Endrew F.
provides helpful guidance material on the issues, but the Court
made no other significant changes to the applicable law.
Accordingly, these arguments are reviewed in the context of the
merits of the parties’ motions for summary judgment.
11
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.
General standards of review for summary judgment motions also
apply in IDEA cases, as illustrated in Board of Education of
Frederick County v. I.S. ex rel. Summers, 325 F.Supp.2d 565, 578
(D.Md. 2004):
In addition, the 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 judgment as a matter of
law.”
“When the moving party has met its
responsibility of identifying the basis for
its motion, the nonmoving party must come
forward with ‘specific facts showing that
there is a genuine issue for trial.’” White
v. Rockingham Radiologists, Ltd., 820 F.2d
98, 101 (4th Cir. 1987) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (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 (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
(1986).
Where, as here, cross-motions for
summary judgment are filed, a court must
“evaluate each party’s motion on its own
12
merits, taking care [in each instance] to
draw all reasonable inferences against the
party whose motion is under consideration.”
Mingus Constructors, Inc. v. United States,
812 F.2d 1387, 1391 (Fed.Cir. 1987).
This
standard
of
review
creates
a
challenging
Plaintiffs in IDEA cases for several reasons.
path
for
First, just as
Plaintiffs were required to carry the burden of proof in the
administrative hearing, Schaffer ex rel. Schaffer v. Weast, 546
U.S. 49 (2005), they also must carry that burden in this court,
I.S.
ex
rel.
Summers,
325
F.Supp.2d
at
578
(“[T]he
party
challenging the administrative findings . . . bears the burden
of proof of establishing a violation of the IDEA.”); see also
Cavanagh
v.
Grasmick,
75
F.Supp.2d
446,
457
(D.Md.
1999).
Second, “[i]f the administrative findings were made in a regular
manner and have evidentiary support, they are to be considered
prima facie correct.”
Doyle, 953 F.2d at 103).
Cavanagh, 75 F.Supp.2d at 457 (citing
Moreover, in according “due weight” to
the findings of the ALJ, this court owes deference to the ALJ’s
determinations of witness credibility.
The parties argue at some length as to how the “due weight”
standard of review applies.
Citing Doyle, Plaintiffs argue that
the case law focuses primarily “on preserving the findings of
the trier of fact that are most subjective and most difficult to
determine after the fact.”
(ECF No. 26, at 3).
13
They seem to
draw a distinction between determinations of “believability” and
determinations
of
persuasiveness
or
factual
validity.
For
example, they maintain that the ALJ’s determination that Dr.
Solomon was incorrect that the Ivymount approach is the only way
for J.R. to learn is merely a “factual determination . . . where
she weighs evidence and comes to a conclusion.”
(ECF No. 26, at
5 (citing A.B. ex rel. D.B. v. Lawson, 354 F.3d 315, 328 (4th
Cir. 2004))).
these
types
The Fourth Circuit in Lawson made clear that
of
determinations
are
entitled
to
“due
weight”
deference, reversing the district court’s decision specifically
because the district judge had substituted his own findings in
the place of the ALJ’s determinations on such issues.
328-30.
Id. at
The Doyle decision also went beyond merely the “most
subjective”
findings,
emphasizing
that
even
the
over-arching
decision of “whether or not a program is appropriate is a matter
of fact,” and adopting a standard “in line with” the holding in
Kerkam v. McKenzie, 862 F.2d 884 (D.C.Cir. 1988),
findings
of
fact,
if
made
“in
a
regular
manner
that such
and
with
evidentiary support[,] are entitled to
presumptive validity.”
Doyle, 953 F.2d at 105 (emphasis added).
Thus even if there is
a
owed
distinction
between
the
deference
to
the
ALJ’s
determinations of “believability” and her factual determinations
based on which providers of conflicting factual testimony she
14
found
more
presumption
persuasive,
of
the
validity
latter
unless
is
the
still
entitled
evidence
shows
to
that
a
she
“departed from the fact-finding norm” in “the way in which [she]
arrived at [her] administrative decision” or the “methods [she]
employed.”
Id.
Confusingly,
after
expounding
on
this
distinction,
Plaintiffs seem to agree that persuasiveness determinations are
entitled to some deference.
focus
to
whether
the
Plaintiffs thus properly turn their
ALJ’s
determinations
“have
evidentiary
support,” arguing that many of the ALJ’s findings “are contrary
to the evidence in the record.”
Cavanagh, 75 F.Supp.2d at 457).
in
the
record
that
conflicts
(ECF No. 26, at 7 (citing
Even if there is some evidence
with
the
ALJ’s
determinations,
however, “the ALJ’s resolution of conflicting expert testimony,”
in which she “implicitly find[s] [some testimony] unconvincing
while
crediting
the
contrary
views
entitled to presumptive validity.
Thus,
so
long
as
her
of
[other
testimony]”
is
Lawson, 354 F.3d at 327-28.
determinations
have
some
evidentiary
support, Plaintiffs must show an imbalance in the evidence that
demonstrates that the ALJ’s conclusion as to the persuasiveness
of one side was “reached through a process that is far from the
accepted norm of a fact-finding process.”
J.P. ex rel Peterson
v. Cty. Sch. Bd. of Hanover Cty., 516 F.3d 254, 259 (4th Cir.
15
2008) (quoting Cty. Sch. Bd. of Henrico Cty. v. Z.P. ex rel.
R.P., 399 F.3d 298, 305 (4th Cir. 2005)).
B.
Was J.R.’s Placement at RTS reasonably calculated to
provide a FAPE?
As this court emphasized in Wagner v. Board of Education of
Montgomery County, 340 F.Supp.2d 603 (D.Md. 2004), the standard
of review in IDEA reimbursement cases means that Plaintiffs face
an uphill battle.
Given the circumstances here, Plaintiffs’
task is even more challenging because Plaintiffs and Defendants
agreed prior to the placement to make significant changes to
J.R.’s IEP, namely, transitioning from a diploma track to a
certificate track.
This case is thus unlike the cases in which
a
proposes
school
district
a
plan
and
a
“pretty much the same as his past ones.”
at 996.
placement
that
are
Endrew F., 137 S.Ct.
Here, Defendants proposed both a new program and a new
placement for the 2015-16 school year.
Therefore, it is not
enough for Plaintiffs simply to show that Defendants failed in
previous
years,
because
the
proposed
placement
at
RTS
significantly different than Defendants’ past placements.
was
It is
also insufficient to show that J.R. has had success at Ivymount.
Because
being
Ivymount
certificate
and
RTS
track
share
programs,
some
similarities,
J.R.’s
success
at
including
Ivymount
does not necessarily indicate that he would not have had the
same success at RTS.
Rather, Plaintiffs must show that J.R.
16
would not have made appropriate educational progress at RTS,
that it was an unreasonable calculation by Defendants to believe
that he might, and that the ALJ determination that Defendants’
calculation
was
reasonable
available to her.
was
unsound
given
the
information
Plaintiffs have not met this high bar.
Plaintiffs first argue that “the ALJ improperly weighed the
evidence
put
substituting
before
her
own
her,
blindly
notion
for
crediting
why
J.R.
[Defendant]
has
not
and
advanced
academically over the last nine years over the expertise of
those who actually work with him on a daily basis.”
15-1, at 31).
Defendants
(ECF No.
They contend that evidence clearly showed that
had
repeatedly
evaluated
J.R.
incorrectly
–
specifically, improperly labelling him as emotionally disabled
and learning disabled – leading to J.R. being “miseducated for
most of his life.”
(Id. at 32 (emphasis removed)).
They argue
that, despite Defendants’ repeated failures to understand J.R.’s
needs, the ALJ credited testimony from Defendants’ witnesses who
had
never
met
J.R.
and
“dismissed
entire
days
testimony” from Plaintiffs’ witnesses who knew him.
36).
worth
of
(Id. at
They contend that the testimony of one of their witnesses,
Dr. Lauren Lestremau, who worked with J.R. at Ivymount, “does
not appear anywhere in the ALJ’s conclusions.”
at 36; 26, at 10).
(ECF Nos. 15-1,
They maintain that the ALJ’s failure to
17
discuss
or
distinguish
Plaintiffs’
witnesses
the
greater
warrants
familiarity
overturning
the
with
J.R.
of
administrative
decision.
Although
the
ALJ
could
possibly
have
provided
more
explanation as to why she credited certain witnesses more than
others, nothing in the record suggests that her determinations
were not regularly made.
She may not have expounded on how well
each witness knew J.R., but she explicitly noted how familiar at
least
some
of
the
key
witnesses
were.
For
example,
she
acknowledged that Ms. Lertora had not met or observed J.R., but
the ALJ found that Ms. Lertora’s time spent reviewing J.R.’s
file offset that lack of knowledge to at least some degree.
(ALJ Decision, at 35-36).
She similarly noted that Plaintiffs’
witness Dr. Ira Dosovitz appeared to know J.R. “almost as well
as the Student’s Parents.”
(Id. at 42).
Thus, although the ALJ
did not specifically describe each witness’s familiarity with
J.R., it is clear that she considered familiarity with him as a
factor as she evaluated the testimony of the witnesses.
Plaintiffs
testimony
does
Decision,
at
are
not
11,
also
appear
38-39).
incorrect
in
the
that
ALJ’s
Although
Dr.
decision.
the
ALJ
Lestremau’s
(See
ALJ
discussed
Dr.
Lestremau’s testimony less than that of other witnesses, the
ALJ’s limited references do not show that she failed to reach
18
her conclusions soundly.
Plaintiffs have pointed to no cases
suggesting that an ALJ must describe the testimony of every
witness who testifies at a hearing.
Indeed, other courts have
upheld ALJ decisions making only minimal reference to certain
witnesses.
See, e.g., Lawson, 354 F.3d at 329 (noting that an
ALJ decision that mentioned one witness only “in passing” does
not indicate a failure to consider the testimony, but rather
that
the
ALJ
“obviously
found
the
testimony
.
.
.
unpersuasive”).
Here, Dr. Lestremau testified primarily as to
the
Ivymount’s
details
of
educational
approach
and
how
the
system was working for J.R. in the period prior to the hearing.
(ECF
No.
15-1,
at
14).
As
noted
above,
however,
the
determinative question to the ALJ’s decision was whether the RTS
placement was calculated to provide a FAPE, not whether Ivymount
was capable of providing one.
(ALJ Decision, at 43).
She found
the testimony as to J.R.’s success at Ivymount immaterial to
this question.
(Id.).
Unsurprisingly, then, the ALJ focused
primarily on the testimony of Dr. Solomon, who was familiar with
both Ivymount and RTS.
Therefore, the ALJ’s decision not to
reference Dr. Lestremau furtherdoes not show that she failed to
consider the testimony or that she reached her conclusions in an
irregular manner.
19
In
their
Plaintiffs
directive
supplement
argue
to
functional
that
focus
to
the
the
ALJ
how
an
on
advancement
when
motion
failed
IEP
she
based
to
will
follow
Endrew
Endrew
provide
disregarded
success at Ivymount as immaterial.
on
F.,
F.’s
academic
the
evidence
(ECF No. 34, at 9).
and
of
The ALJ
did not outright ignore the evidence of success at Ivymount.
Indeed,
Plaintiffs
acknowledge
both
that
“the
ALJ
actually
credited [] evidence [of] ‘the apparent success the Student is
enjoying at Ivymount’” (ECF No. 34, at 8 (quoting (ALJ Decision,
at 43))), and that “[t]he ALJ actually acknowledged . . . ‘that
the
[J.R.’s
previous
schools]
have
not
resulted
in
academic
progress,’” (ECF No. 34, at 9 (quoting (ALJ Decision, at 4142))),
while
simultaneously
consider such evidence.
arguing
that
the
ALJ
refused
to
The ALJ noted the improvement, but
reasoned that J.R. was likely “happier” and performing better
because of his switch from a diploma track to a certificate
program.
(ALJ Decision, at 40.)
The ALJ noted that this change
put J.R. in “an academic environment more appropriate to his
cognitive abilities,” but because both RTS and Ivymount were
certificate programs, she found the Ivymount evidence unhelpful
to the parents’ attempts to distinguish the two schools.
As
the
Court
noted
in
Endrew
F.,
“crafting
an
(Id.).
appropriate
program of education requires a prospective judgment by school
20
officials.”
Endrew F., 137 S.Ct. at 999 (emphasis added).
Such
was the point that the ALJ was making when she referred to
J.R.’s subsequent success at Ivymount as “immaterial.”
She did
not refuse to consider his Ivymount performance outright, but,
rather, explained that J.R.’s success at Ivymount was unhelpful
in determining whether RTS would have failed to provide J.R.
with a FAPE.
Parents seeking reimbursement for a unilateral
private placement must first show that the proposed placement
would not have provided a FAPE, and then show that the parental
placement was successfully providing a FAPE.
Because the ALJ
had found that RTS would have provided a FAPE, she considered
his success at Ivymount at step two immaterial.
Plaintiffs next argue that the ALJ was not weighing the
evidence
in
a
regular
manner
when
she
concluded
that
the
Ivymount data-keeping approach was not necessary in order to
provide J.R. a FAPE.
They contend that the ALJ reached two
faulty conclusions that were not supported by the evidence: “1)
that his behavior improved significantly at High Road and yet he
still failed to make academic gains; and 2) his lack of academic
progress can be explained by his cognitive deficits.”
(ECF No.
15-1, at 37).
As
an
initial
matter,
Plaintiffs
misconstrue
the
ALJ’s
reasons for rejecting Dr. Solomon’s contention that only the
21
Ivymount approach would work for J.R.
The ALJ did clearly state
that “the objective evidence is that the Student’s poor academic
progress is the result of cognitive deficits, not behavioral
interference.”
rejecting
Dr.
(ALJ Decision, at 38).
Solomon’s
conclusion,
Her second reason for
however,
was
that
J.R.’s
behavior at Ivymount appeared no better to her than it had been
at High Road.
(Id. at 38-39).
She reached this conclusion
after making an extensive comparison between J.R.’s behavioral
issues
during
the
2014-15
school
year
at
High
Road
and
his
behavioral issues during the first part of the 2015-16 school
year at Ivymount.
The
ALJ
did
make
several
references
to
J.R.’s
behavior
improving at High Road, but the point of these references was
that his failure to make academic progress during periods of
improved behavior were additional evidence that supported the
results of the cognitive ability test, which showed J.R. to be
in the low extreme range.
In the sentence just after the above
reference to J.R.’s cognitive deficits, for example, the ALJ
stated
that
“the
Student’s
behavior
has
improved
since
the
fourth grade, when he was transferred to Frost, but his academic
performance has remained essentially flat.”
38).
(ALJ Decision, at
Because evidence of J.R.’s behavioral improvements at High
Road was supplementary to the test data, even if, as Plaintiffs
22
contend, J.R.’s behavior had not improved at High Road, it would
not necessarily show that the ALJ’s conclusion was incorrect.
The
ALJ,
conclusion.
however,
She
noted
fully
for
explained
example
how
that
she
reached
language
in
this
J.R.’s
December 2013 Behavior Improvement Plan relating to removing him
from
class
for
aggressive
and
disruptive
behavior
had
removed on the same plans from February and March 2015.
39).
been
(Id. at
For that same period, she noted that Dr. Dosovitz had
commented that J.R. had had a “very good” few months.
(Id.).
She also noted that High Road’s records indicated that J.R. had
no reported incidents of aggressive behavior after the first six
months of eighth grade.
ignores
these
final
(Id.).
months
Plaintiffs’ motion virtually
of
eighth
grade,
primarily
referencing documents from December 2014.
(ECF No. 15-1, at 38-
39).
that
They
also
fail
to
acknowledge
improvement
is
relative, emphasizing that J.R.’s April 2015 IEP still included
a note that J.R. struggled “to de-escalate his emotions after he
becomes upset” and “to demonstrate proper manners[] and positive
decision making skills” in such incidents.
(Id.).
While some
behavioral issues clearly persisted throughout his time at High
Road, these comments do not undermine the significant difference
between the types of behavioral incidents that were reported in
from September 2014 through January 2015, and those incidents
23
reported from February 2015 through the end of the year.
ALJ Decision, at 14-16).
J.R.’s
mother
N.R.
(See
Moreover, the ALJ also noted that
had
confirmed
that
J.R.’s
behavior
had
improved over the years, but that she attributed the improvement
to better medical management.
Plaintiffs’
contrary
efforts
to
her
determination
was
to
(Id. at 39).
amplify
conclusion,
“made
in
the
it
a
Thus, in spite of
importance
is
clear
regular
of
that
manner
evidence
the
and
ALJ’s
[with]
evidentiary support.”
Plaintiffs
also
challenge
the
validity
of
the
ALJ’s
determination that J.R.’s lack of academic progress was due to
his cognitive deficits.
primarily
support
(ECF No. 15-1, at 40).
this
contention
with
evidence
Plaintiffs
of
J.R.’s
academic improvements at Ivymount that has occurred since the
administrative hearing.
(Id. at 44-45).
As discussed further
below, some of that evidence was not considered by the ALJ and
will
not
be
considered
here
in
reviewing
her
decision.
Plaintiffs also challenge the ALJ’s determination as to J.R.’s
cognitive abilities based on the testimony at the hearing of Dr.
Reiser
and
Dr.
Solomon.
They
contend
that
Dr.
Reiser
administered only a single cognitive assessment, and that she
admitted that the assessment “do[es] not measure intelligence in
all its complexity.”
(Id. at 41).
24
They emphasize that Dr.
Reiser
also
qualified
her
results
to
a
finding
that
“[h]is
cognitive abilities, at least in part, explain his slow academic
progress,”
rather
than
fully
attributing
J.R.’s
academic
failures to his cognitive deficits, as they argue the ALJ did.
(Id.).
Plaintiffs
also
argue
that
Dr.
Reiser
failed
appropriately to account for J.R.’s behavioral issues, several
of which she seemed unaware of during her testimony.
42).
(Id. at
They maintain that the ALJ “relied exclusively upon Dr.
Reiser’s report and testimony, and [] both the report and Dr.
Reiser’s testimony indicated that her opinion left out crucial
detail.”
(Id.).
They contrast this with testimony from Dr.
Solomon that despite J.R.’s lack of progress, “it isn’t that he
can’t learn.”
(Id.).
Plaintiffs once again attempt to read the nuance out of the
ALJ’s decision.
The ALJ did not find that J.R. could not learn,
but rather that his complete lack of progress was a result of
being
in
issues.
the
wrong
academic
program,
(ALJ Decision, at 38-40).
not
merely
behavioral
Plaintiffs agreed that Frost
and High Road, both diploma track programs, were too advanced
for J.R., and all three of the school options discussed at the
August 7 CIEP meeting were certificate track programs.
All
parties involved agreed that these programs would place J.R. in
“an
academic
environment
more
25
appropriate
to
his
cognitive
abilities.”
(Id. at 40).
Indeed, that position is consistent
with Dr. Solomon’s testimony that one of the reasons for J.R.’s
lack
of
progress
was
that
“there
hasn’t
been
a
change
in
[J.R.]’s programming in terms of how we approach him, how we
attempt to instruct him to see what he can learn.”
1, at 42).
(ECF No. 15-
The complicated ways in which J.R.’s behavioral
issues and academic issues interlocked amplify the difficulty of
weighing
either
in
isolation.
As
the
ALJ
noted,
J.R.’s
“inability to perform the [academic] tasks demanded of him was a
frequent antecedent to his negative behaviors.”
(ALJ Decision,
at 40).
Ultimately, the arguments above about J.R.’s behavior at
High Road, his cognitive deficits, and his lack of academic
progress
all
fold
into
a
single
inquiry
as
to
whether
the
Ivymount behavioral approach is the only way to provide J.R.
with a FAPE.
Plaintiffs argue that the ALJ improperly weighed
the testimony and evidence in front of her, but their arguments
ultimately reduce to disagreements as to her result more than
her
procedure.
contentions
made
The
by
ALJ
the
acknowledged
parties
as
to
the
various
each
of
opposing
the
issues
Plaintiffs’ now raise and considered all of the evidence.
In
according due weight to her administrative findings made in a
26
regular
manner
and
having
evidentiary
support,
there
are
no
grounds to vacate or reverse that decision.
Plaintiffs advance one final argument in their supplemental
briefing.
They argue that Endrew F. mandates that a school
district may not simply carry over “the same basic goals and
objectives from one year to the next [as the student] fail[s] to
make meaningful progress toward his aims.”
(ECF No. 34, at 13
(quoting
Because Defendants
Endrew F., 137 S.Ct. at 996)).
“copied exactly the behavioral goals from his January 2013 IEP
into his April 2014 IEP and again into his August 2015 IEP,”
Plaintiffs contend that the 2015 IEP is necessarily ineffective
under Endrew F.
(ECF No. 34, at 13).
As Defendants point out,
Plaintiffs have never disputed the substance of the 2015 IEP
goals, and the ALJ had no opportunity to make a ruling on them.
(ECF No. 35, at 4).
school
placement,
This dispute has focused solely on J.R.’s
and
Defendants’
2015
placement
took
a
significantly different approach in 2015 than it had in previous
years.
Moreover,
unlike
the
school
district
in
Endrew
F.,
however, Defendants here had proposed a significant adjustment
for J.R.’s 2015 year; his behavioral goals were the same, but
all parties agreed that he should be sent to a new school in an
entirely different academic program.
This case is therefore
entirely unlike Endrew F., in which the student was being sent
27
to the same school with an entire IEP that was “pretty much the
same
as
his
past
ones.”
Endrew
F.,
137
S.Ct.
at
996.
Accordingly, this argument has no weight.
In sum, “there is nothing in the record suggesting that the
hearing officer’s process in resolving the case was anything
other than ordinary.”
J.P., 516 F.3d at 259.
As the ALJ noted,
Defendant’s inability to diagnose J.R.’s disabilities correctly
and the resulting lack of academic progress is quite concerning.
But
those
past
failures
at
different
schools
with
different
academic programs are insufficient to demonstrate that school
district’s
planned
placement
at
RTS
was
not
reasonably
calculated to provide an appropriate opportunity for educational
progress in 2015-16.
C.
Predetermination
Plaintiffs
also
argue
that
the
ALJ’s
holding
that
Defendants had not predetermined J.R.’s placement prior to the
August 7, CIEP meeting should be overturned.
district
provides
a
FAPE
for
a
student,
an
Even if a school
ALJ
may
find
a
violation of the IDEA if procedural violations “significantly
impeded
the
decisionmaking
parents’
process
opportunity
regarding
to
the
participate
provision
of
in
the
a
free
appropriate public education to the parents’ child.”
20 U.S.C.
§
therefore
1415(f)(3)(E)(ii)(II).
School
28
districts
are
prohibited from predetermining a student’s placement prior to an
IEP meeting.
Nack v. Orange City Sch. Dist., 454 F.3d 604, 610
(6th Cir. 2006); Spielberg ex rel. Spielberg v. Henrico Cty. Pub.
Sch.,
853
F.2d
256,
258-59
(4th
Cir.
1988).
However,
“predetermination is not synonymous with preparation,” M.C.E. ex
rel. T.Q.A. v. Bd. of Educ. of Frederick Cty., No. RDB-09-3365,
2011 WL 2709196, at *9 (D.Md. July 11, 2011), and the members of
the IEP team may, naturally, go into a meeting with some ideas
or opinions.
[I]f the school system has already fully
made up its mind before the parents ever get
involved, it has denied them the opportunity
for any meaningful input. . . . [T]he
holding of Spielberg required the school
board to come to the table with an “open
mind,” but did not require them to come to
the IEP table with a “blank mind.”
Thus,
while a school system must not finalize its
placement decision before an IEP meeting, it
can and should have given some thought to
that placement.
Hanson ex rel. Hanson v. Smith, 212 F.Supp.2d 474, 486 (D.Md.
2002)
(citations
omitted).
This
is
all
the
more
true
in
instances like this one, in which the IEP and CIEP teams had
previously
discussed
the
substance
of
J.R.’s
IEP,
but
had
postponed making further decisions until the parties involved
could review the various school placement options.
At the hearing, the ALJ credited testimony from N.R. that
Brenda
Aswall,
Defendants’
Placement
29
Specialist
who
had
been
monitoring J.R.’s prior placement at High Road, called N.R. on
the morning of August 7, 2015, and told her to be “ready for a
fight” because Mr. Moore intended to send J.R. to RTS.
Decision, at 30).
(ALJ
As the ALJ noted, it was “abundantly clear”
that, prior to the August 7 CIEP meeting, Mr. Moore believed
that RTS, as a public school, was preferable if it could serve
J.R.’s needs.
(Id. at 31).
Plaintiffs contend that prior to August 7, Ms. Aswall had
consistently indicated to N.R. that the school district would
agree to send J.R. to Ivymount, and that “a change clearly took
place”
between
the
conversation
Ms.
Aswall
and
August 6 and the call on the morning of August 7.
1, at 25).
N.R.
had
on
(ECF No. 15-
N.R. testified that it was clear that the decision
had already been fully made because Ms. Aswall told her on the
call prior to the meeting that she would “walk [N.R.] down the
hall after the meeting to the due process office.”
(Id. at 26).
They
of
also
emphasize
that
Mr.
Moore
had
meeting as the chair of the CIEP team.
to
testimony
personality
suggesting
and
that
that
he
Mr.
(Id. at 28).
Moore
influences
control
the
has
an
decisions
the
CIEP
They point
overbearing
of
other
school-based CIEP team members.
Plaintiffs
statements.
read
too
much
into
Ms.
Aswall’s
phone
In light of the conversations between N.R. and Ms.
30
Aswall indicating that “there would not be any problem approving
[J.R.] for Ivymount,” Ms. Aswall’s warning call indicates only
that she felt she “owe[d] it to [N.R.] to call” (ECF No. 15-1,
at 25) because she had misled N.R. into thinking that Ivymount
would
be
Telling
an
N.R.
easy,
to
consensus
come
in
selection
“ready
for
a
up
until
fight”
August
suggests
6.
that
Plaintiffs would have to persuade the other members of the team
because
Mr.
Moore
placement.
the
appeared
to
think
that
RTS
was
a
better
The ALJ thus rightly considered the statements in
phone
call
to
be
only
a
statement
of
“Ms.
Aswall’s
understanding of Mr. Moore’s intentions” going into the meeting,
which she found not to be dispositive in light of the other
evidence, including his testimony that he had not previously
shared
his
Decision,
opinions
at
30).
with
As
other
members
Defendants
point
of
the
out,
team.
the
phone
(ALJ
call
should be viewed in light of Ms. Aswall’s testimony that “no
decision was made outside of the IEP team.”
(ECF No. 25-1, at
25-26).
Plaintiffs’ arguments as to Mr. Moore’s power and influence
are undermined by other evidence in the record on which the ALJ
relied.
The ALJ found that “Mr. Moore was convinced, as early
as June, that RTS was the appropriate program.”
at 32).
(ALJ Decision,
As she pointed out, however, Mr. Moore’s opinion did
31
not prevent the CIEP team from considering both RTS and Ivymount
at the CIEP meeting and having “a robust discussion” about the
placement options.
(Id. at 33).
More importantly, the ALJ’s
ultimate decision as to predetermination was premised on the
fact
that
“it
was
the
majority
[alone], who made the decision.”
evidence
that
he
coerced
or
of
the
team,
not
(Id. at 34).
intimidated
or,
Mr.
Moore
She found “no
other
than
the
conversation with Ms. Aswall, even discussed his opinion with
the
rest
of
the
team
before
the
meeting.”
(Id.
at
34).
Instead, the ALJ concluded that “the team . . . was persuaded by
the presentation at the August 7, 2015 meeting that RTS could
implement [J.R.’s] IEP,” and “was not persuaded by the Parents’
objections.”
(Id. at 35).
Specifically, the ALJ noted that
even Ms. Aswall supported the recommendation, and had done so
based
on
meeting.
what
Ms.
Lertora,
not
Mr.
Moore,
had
said
at
the
(Id. at 33).
The evidence presented in this case is a far cry from the
cases
Plaintiffs
predetermination.
cite
in
which
courts
have
previously
found
In Spielberg, for example, the school board
issued a “series of written letters” determining the student’s
placement before the IEP meeting was held.
another
case
Plaintiffs
cite,
Deal
v.
853 F.2d at 258.
Hamilton
Cty.
Bd.
In
of
Educ., 392 F.3d 840, 858 (6th Cir. 2004), the school district had
32
an “unofficial policy” not to consider certain types of programs
and had “refused to even discuss the possibility” of placing the
student at such a school.
Here, the evidence clearly shows that
the CIEP team discussed both Ivymount and RTS.
That the CIEP
team members from the school were not ultimately persuaded by
Plaintiffs’ arguments does not mean that they were not openminded.
Accordingly, there is no indication that the ALJ’s
finding that the school district had not predetermined J.R.’s
placement lacks evidentiary support or was not made in a regular
manner.
D.
Discovery Disputes
Finally, Plaintiffs argue that the ALJ erred by failing to
hold Defendants accountable for their discovery violations.
In
particular, Plaintiffs reference the following documents that
were not provided until the middle of the hearing: (1) a January
2015 letter from Ms. Lertora to the staff of RTS in which she
states
that
the
school
administration
had
both
worked
“to
address ongoing safety issues” and implemented a “[t]emporary
hold on placing additional students at Rock Terrace . . . until
additional supports are in place” (P-139-1)7; (2) an Academic
Action Plan subsequent to standardized testing showing that a
majority of students scored worse on reading tests at the end of
7
The designation “P-###-##” refers to the exhibit number
and page number of Plaintiffs’ exhibits in the ALJ hearing.
33
the 2014-15 school year than they had at the beginning of the
year and that a substantial number of students scored worse on
math tests (P-142-15); (3) results from a survey indicating that
communication
could
be
improved
between
psychologists
and
classroom aides as to “ways to support student behaviors” (P143-22);
(4)
data
breaking
down
the
number
of
behavioral
incidents at RTS based on time, month, location, grade, incident
type, and other factors (P-146); (5) staff responses from an
exercise
during
the
Summer
2013
Leadership
Week
in
which
behavioral data collection is noted by several responders on
their lists of potential “growth areas” (P-147); and (6) Mr.
Moore’s notes from the August 7, 2015, CIEP team meeting (ECF
No. 15-1, at 19).
The ALJ found that Plaintiffs were able to
address sufficiently all issues related to the RTS background
documents
Moore’s
after
notes
the
did
documents
nothing
were
more
produced,
than
“confirm
and
Mr.
that
Mr.
Moore’s
testimony.”
Plaintiffs focus primarily on the documents related to RTS.
(ECF No. 15-1, at 20-21).8
8
They emphasize that their expert
Defendants blithely suggest that Plaintiffs “focused on
the School Board’s alleged failure to produce Mr. Moore’s
personal notes” in their motion for summary judgment and that
they “switched their focus” after “consider[ing] the School
Board’s defense to that argument.” (ECF No. 29, at 13). While
Plaintiffs provided an excerpt showing the ALJ’s determination
that the school board had violated the discovery requests as to
34
witnesses, Dr. Solomon and Dr. Lestremau, were unable to use
these documents in developing their evaluations and comparing
RTS to Ivymount.
(ECF No. 26, at 18-19).
Plaintiffs contend
that Dr. Lestremau was “forced to ignore the obvious value of
comparing the Ivymount approach to that of Rock Terrace” and
that Dr. Solomon testified that “the academic deficits of Rock
Terrace
identified
in
the
discovery
documents
would
affected her opinion on the suitability of the school.”
have
(Id.).
Not having these documents, Plaintiffs contend, impaired their
ability “to tailor [their] case appropriately.”
(ECF No. 15-1,
at 21).
The late-disclosed documents are far from revelatory.
speak
in
internal
broad
strokes
feedback
forms
and
several
come
specifically
in
asking
the
Most
context
of
respondents
to
brainstorm areas of potential improvement, which do not provide
much insight as to current performance.
The ALJ allowed Dr.
Solomon to testify a second time to respond to these documents
and
found
that
Dr.
Solomon’s
testimony
after
reviewing
the
documents was, “in essence, that the documents confirmed the
opinions she had previously expressed.”
Although
Dr.
Lestremau
was
not
called
(ALJ Decision, at 45).
later,
there
is
no
Mr. Moore’s notes (ECF No. 15-1, at 19), all of Plaintiffs’
arguments as to the ALJ’s errors focused on the documents
related to RTS (Id. at 20-21).
35
indication that these documents would have led her to present
testimony any different than what she had previously provided;
the general RTS information in these documents would not easily
be contrasted with her testimony, primarily a detailed technical
description of the Ivymount teaching and behavioral approach.
The ALJ found that the issues raised in the documents were not
prejudicial to her decision, and nothing in the record provides
a reason to disrupt the ALJ’s determination.
III. Request for Additional Evidence
Plaintiffs have also moved to supplement the record with
evidence of J.R.’s success at Ivymount over the 2015-16 school
year.
(ECF No. 16).
Federal law mandates that a court deciding
an action brought under the IDEA “shall receive the records of
the administrative proceedings; shall hear additional evidence
at
the
request
of
a
party;
and
basing
its
decision
on
the
preponderance of the evidence, shall grant such relief as the
court determines is appropriate.”
(emphasis added).
20 U.S.C. § 1415(i)(2)(C)
The Fourth Circuit has adopted a restrictive
interpretation of what evidence will qualify for admission as
“additional evidence” under this provision:
A
lax
interpretation
of
“additional
evidence” would “reduce the proceedings
before the state agency to a mere dress
rehearsal
by
allowing
appellants
to
transform
the
Act’s
judicial
review
mechanism into an unrestricted trial de
36
novo.” Roland M. v. Concord Sch. Comm., 910
F.2d 983, 997 (1st Cir. 1990), cert. denied,
499
U.S.
912
(1991).
Therefore
the
exclusion of “testimony from all who did, or
could
have,
testified
before
the
administrative
hearing”
would
be
“an
appropriate
limit
in
many
cases.”
Burlington [v. Dep’t of Educ.], 736 F.2d
[773,] 790 [(1st Cir. 1984), aff’d, 471 U.S.
359 (1985)].
Springer v. Fairfax Cty. Sch. Bd., 134 F.3d 659, 667 (4th Cir.
1998) (adopting generally the approach to “additional evidence”
set out in Burlington).
Evidence
administrative
with
which
record
must
a
party
also
seeks
be
to
relevant.
supplement
the
Because
the
critical question in determining whether a school placement was
reasonably calculated to provide a FAPE is whether the student
would have derived educational benefits from the placement if it
had been implemented, K.C. v. Bd. of Educ. for Montgomery Cty.
Pub. Sch., No. DKC 06-2928, 2007 WL 1521054, at *4 (D.Md. May
22, 2007), the Fourth Circuit has expressed skepticism about the
relevance of evidence that arises after the conclusion of an
administrative hearing, see Schaffer ex rel. Schaffer v. Weast,
554 F.3d 470, 476–78 (4th Cir. 2009).
As the Springer court
noted, accepting additional evidence that arose after the ALJ
hearing
“risks
diminishing
the
role
of
administrative
proceedings” by asking district courts to overturn ALJ decisions
based on evidence that did not exist at the time the ALJ made
37
its decision, let alone when the school district’s decision was
made.
Id. at 476.
District courts are thus right to “treat[]
such evidence cautiously.”
Id.; see also A.S. v. Trumbull Bd.
of Educ., 414 F.Supp.2d 152, 170–71 (D.Conn. 2006) (concluding
that
“any
evidence
regarding
the
[student]’s
recent
progress
will have at best only a tangential bearing on the relevant
question[,] . . . whether the Board offered Plaintiffs a free
appropriate
public
education
during
the
[relevant]
school
year.”); J.R. v. Bd. of Educ. of Rye Sch. Dist., 345 F.Supp.2d
386, 395 (S.D.N.Y. 2004) (“[W]e . . . must not engage in Mondaymorning
quarterbacking
student]’s
subsequent
guided
progress
by
at
our
[a
knowledge
particular
of
school],
[the
but
rather [must] consider the propriety of the IEP with respect to
the likelihood that it would benefit [the student] at the time
it was devised.”).
Another judge in this district denied a similar motion in
M.C.E. ex rel. T.Q.A. v. Board of Education of Frederick County,
No. RDB 09-3365, 2010 WL 2483440, at *3 (D.Md. June 15, 2010),
where the parents argued that the evidence of the student’s
subsequent success at one school demonstrated that the school
district’s assessment of the student and their placing her at a
different school were unreasonable.
above,
the
court
rejected
a
38
Relying on the principles
motion
to
supplement
the
administrative record on the ground that it would “undercut the
ALJ’s credibility determination and impermissibly transform the
administrative review into a hearing de novo.”
Plaintiffs
requests
for
have
distinguished
additional
evidence
their
by
Id.
motion
arguing
from
that
other
the
new
evidence shows not only that Ivymount is presently providing a
FAPE, but also that the ALJ was wrong when she concluded “that
[J.R.’s] cognitive limitations are the reason he had failed to
make academic progress.”
(ECF No. 22, at 2).
Plaintiffs assert
that this determination as to J.R.’s cognitive abilities was
“the linchpin of the ALJ’s Decision denying reimbursement for
[his]
attendance
(Id.).
They
at
Ivymount
reference
this
for
the
sentence
2015-16
from
the
school
ALJ
year.”
decision
repeatedly in their motion for additional evidence; in fact, it
is the only page they cite and language they quote at all.
Unsurprisingly, that single sentence does not capture the
full breadth of the ALJ’s decision.
As described above, the ALJ
did give consideration to test results that showed that J.R. was
in the lower extreme levels of intelligence.
38).
(ALJ Decision, at
She also noted that none of the parties had questioned the
validity of this test.
(Id.).
In fact, these test results
appear to have been a significant factor in the 2014-15 IEP
team’s decision to transition J.R. from a diploma track to a
39
certificate track.
to
improve
at
The ALJ thus attributed J.R.’s past failure
High
Road
to
its
unreasonably
high
academic
expectations, which in turn also led to behavioral issues.
at 38, 40).
(Id.
She did not, however, indicate that future academic
progress was impossible.
To the contrary, she seemed optimistic
that moving J.R. from a diploma track program to a certificate
track program would yield positive progress.
42).
(See id. at 40-
Thus, it is far from clear that additional evidence of
success at Ivymount would directly contradict any portion of the
ALJ’s opinion.
Even if it did, the ALJ’s decision was “based principally
on the failure of the Parents to demonstrate that RTS was not
reasonably likely to provide a FAPE.”
(Id. at 43).
Put another
way, she was “not persuaded that only the Ivymount approach will
serve [J.R.’s] needs.”
(Id. at 40 (emphasis added)).
In making
that determination, she considered testimony “that his behavior
has improved, that he is happy at [Ivymount] and making academic
progress.”
that
(Id. at 39).
J.R.’s
question
of
“[s]uccess
whether
a
As noted above, she ultimately found
at
Ivymount”
hypothetical
was
placement
reasonably calculated to provide a FAPE.
that
the
ALJ
considered
some
evidence
immaterial
at
to
the
RTS
was
(Id. at 43).
of
J.R.’s
Given
success
at
Ivymount and found it immaterial to her decision, it is hard to
40
imagine how more of that same information could be material
here.
Even
assuming
arguendo
that
the
new
evidence
proved
conclusively that the intelligence testing evidence she accepted
was
incorrect,
the
new
information
would
not
undermine
the
decision as a whole, which was premised on whether RTS, not
Ivymount, was an appropriate placement.
IV.
Conclusion
For the foregoing reasons, Plaintiffs’ motions for summary
judgment
and
for
additional
evidence
will
be
denied,
and
Defendants’ cross motion for summary judgment will be granted.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
41
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