Troy School District et al v. M et al

Filing 83

ORDER Denying 39 Plaintiffs' Motion for Judgment on the Administrative Record or Alternatively Summary Judgment in Plaintiffs' Favor, Order Denying 53 Motion to Supplement Record, and Order Denying 67 Motion for Preliminary Injunction. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TROY SCHOOL DISTRICT and
THE BOARD OF EDUCATION OF
THE TROY SCHOOL DISTRICT,
CASE NO. 12-CV-15413
Plaintiffs,
HON. DENISE PAGE HOOD
v.
K.M., JANICE M. and WARREN M.,
Defendants.
/
ORDER DENYING PLAINTIFFS’ MOTION FOR JUDGMENT
ON THE ADMINISTRATIVE RECORD OR
ALTERNATIVELY SUMMARY JUDGMENT IN PLAINTIFFS’ FAVOR,
ORDER DENYING MOTION TO SUPPLEMENT RECORD, AND
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION
I.

BACKGROUND
This matter is before the Court on a First Amended Declaratory, Monetary and

Equitable Relief Complaint filed by Plaintiffs/Counter-Defendants Troy School
District (“District”) and the Board of Education of the Troy School District (“Board”)
(collectively, the “District”). A due process hearing was held in this matter pursuant
to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.
at the request of the parents of Minor Student K.M. (“K.M.”) challenging the March
21, 2012 Individualized Education Program (“IEP”) developed for K.M. The Parents
of K.M. (“Parents”) did not agree with the IEP and filed a due process complaint on
April 12, 2012.

(Am. Comp., ¶¶ 97, 98)

A hearing was held before the

Administrative Law Judge (“ALJ”) over a three week period in June and July 2012.
(Am. Comp., ¶ 102) The ALJ issued a 100-page Decision and Order on October 12,

2012 finding against the District. (Am. Comp., ¶ 103)
The District filed the instant action seeking review of the ALJ’s decision
alleging three counts: Appeal of the ALJ Decision and Order under § 1415 of IDEA
(Am. Comp. Count I); Appeal of the ALJ Decision and Order under M.C.L.A. §
380.1751(1) and (3) (Am. Comp. Count II); and Appeal of the ALJ Decision as
Violative of the Spending Clause of the United States Constitution (Am. Comp. Count
III). Defendants filed a Counterclaim seeking reimbursement of attorney fees and
costs as the prevailing party during the due process hearing (Am. Counterclaim Count
I)
K.M. is eligible for special education and related services under IDEA and
under the Michigan Mandatory Special Education Act (“MMSEA”), M.C.L. §§
380.1701 to 1766. (Am. Comp., ¶ 4) K.M., at 12 years old in the seventh grade, was
diagnosed with Asberger’s syndrome, an autism spectrum disorder, with Attention
Deficit Hyper-activity Disorder (“ADHD”) and Oppositional Defiant Disorder
(“ODD”). (Am. Comp., ¶¶ 5, 20) Plaintiffs serve the vast majority of students with
disabilities, including students with autism and those with behavioral challenges,
within the general education public schools operated by the District, as determined by
the student’s IEP team and the student’s unique circumstances. (Am. Comp., ¶ 18)
On rarer occasions, a student with a combination of severe challenges who exhibits
dangerous and extremely disruptive behaviors requires services and support of a
county center program in a general public school or in a county center program that
operates as a separate facility serving only students with disabilities. (Am. Comp., ¶

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20)
K.M. received special education services as a student with emotional
impairment (“EI”) from second grade through sixth grade in the District. (Am.
Comp., ¶ 21) The District asserts that K.M.’s inappropriate behaviors escalated and
intensified upon his transition from elementary school to middle school, including
verbal threats directed at staff and other students, screaming, throwing objects, selfinjurious head-banging against windows and walls. (Am. Comp., ¶ 22) Professionals
and providers who have evaluated K.M., including those retained by the parents, have
found K.M.’s behavior escalates within seconds from a calm state to a peak level of
intensity; such episodes typically last from 45 minutes to over an hour in duration.
(Am. Comp., ¶ 23)
During the 2010-11 school year, K.M.’s sixth grade year, the District convened
seven IEP team meetings to address K.M.’s increasingly dangerous and disruptive
behaviors. (Am. Comp., ¶ 25) The IEP team meetings included Review of Existing
Evaluation Data (“REED”) and re-determination of K.M.’s eligibility category as a
student with autism spectrum disorder. (Am. Comp., ¶ 26) The District also
convened twelve additional behavior planning sessions regarding K.M., which were
attended by the Parents, various District staff and District-retained outside behavior
consultants and therapists. (Am. Comp., ¶ 27) Other meetings were also held with
the Parents, the District staff and K.M.’s treating psychologist. (Am. Comp., ¶ 28)
Despite all of these meetings and plans, K.M. continued to regress throughout K.M.’s
sixth grade school year. (Am. Comp., ¶ 29) As a result of K.M.’s episodes, eight

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evacuations of general or special education classrooms were made and emergency
responders were contacted on five occasions. (Am. Comp., ¶¶ 24, 31-32)
On April 19, 2011, the Parents and the District agreed that K.M. would begin
homebound services, which commenced April 25, 2011. The IEP team met in May
2011 and redetermined K.M.’s eligibility as a student with autism spectrum disorder
and revised the IEP to provide for homebound services for the remainder of the school
year. (Am. Comp., ¶ 37)
On June 2 and 6, 2011, the IEP was finalized for the start of K.M.’s seventh
grade year, providing for 10 to 100 minutes per day in a classroom for students with
autism spectrum disorder, with the remainder of his schedule in general education
classrooms. (Am. Comp., ¶ 38) A behavior intervention plan was finalized on June
8, 2011, where the classroom environment accommodations would no longer provide
a personal healthcare aide (“HCA”) in all classes nor would it include a directive to
the HCA to intervene early to reduce escalation of physical or aggressive behaviors.
(Am. Comp., ¶ 39) Instead, an autism-trained healthcare aide would be assigned to
K.M. to assist, along with the autism-certified teacher, the autism-trained school social
worker and other autism-trained support staff, in teaching K.M. replacement
behaviors, but they would not provide personal, one-on-one assistance in all
classroom environments. (Am. Comp., ¶ 40) An additional adult support, Mr.
DeVault, was also available in all classes provided by K.M.’s teacher. (Am. Comp.,
¶ 41) The changes to K.M.’s IEP and behavior intervention plan were made because
a one-on-one aide triggered K.M.’s aggressive behaviors, according to the District.

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(Am. Comp., ¶ 42)
On the fourth day of the seventh grade, September 9, 2011, K.M. escalated
instantaneously in his math classroom, throwing chairs at his teacher, the adult
support, and students. K.M. cursed and yelled, “Leave me alone you mother fucker,”
“I’m going to kill you,” and “I’m going to kill the students.” (Am. Comp., ¶ 45)
When Mr. DeVault removed K.M. from the room, K.M. bit Mr. DeVault in the leg
through his jeans, drawing blood and leaving a bite mark. (Am. Comp., ¶ 46) K.M.
continued screaming through the hallway, frightening other students. (Am. Comp.,
¶ 47) When K.M. was released to his father, K.M. bolted out the school door, entering
and exiting the woods on the edge of the school property. (Am. Comp., ¶¶ 48-49)
K.M. found a log, measuring 55 inches in length and 9 inches in circumference, and
charged back toward the school attempting to crash the log through a classroom
window. (Am. Comp., ¶¶ 50-51) K.M.’s father stepped in front of him and K.M.
struck him with the log in the head and neck area. (Am. Comp., ¶ 51)
The District claims K.M.’s behavior violated numerous provisions of the
Student Code of Conduct and put other students at risk of serious bodily injury. (Am.
Comp., ¶ 52) The District determined that K.M. should be recommended for a longterm suspension or expulsion. (Am. Comp., ¶ 53) The District determined that K.M.
searched and seized a weapon, possessed it on school property, and used it on school
property to strike a person, and that K.M. caused serious bodily injury when he bit the
teacher. (Am. Comp., ¶ 56)
The District convened an IEP meeting on September 21, 2011 to determine

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whether the September 9 misconduct was a manifestation of K.M.’s disability and to
determine K.M.’s 45-school day Interim AE Setting. (Am. Comp., ¶ 57) The IEP
team thereafter placed K.M. at Edison MAX (“Edison”), a center-based EI program
operating pursuant to Mich. Admin. R. 340.1741. (Am. Comp., ¶ 58) K.M.’s Interim
AE Setting also included a Statewide Autism Research and Training-trained
consultant for 2 to 4 times per month, consultation and/or direct service from a
behavioral consultant/psychologist for 1 to 3 times per week at 30 to 60 minutes per
session, and consultation and/or direct service from a child psychologist who
specializes in autism and self-regulation for 2 to 5 times, at 50-60 minutes per session.
(Am. Comp., ¶ 59) The Parents did not agree with the Interim AE Setting placement
of K.M. at Edison and kept K.M. home from school, which did not allow the District
to implement the Interim AE Setting or behavior intervention plan. (Am. Comp., ¶
61)
On October 18, 2011, the District filed a due process complaint asserting that
the Parents wrongfully prevented K.M. from participating in the Interim AE Setting
placement, which was settled between the District and Parents on October 28, 2011.
(Am. Comp., ¶¶ 62-63) The ALJ dismissed the due process complaint on October 28,
2011 based on the Settlement Agreement signed by the parties. (Am. Comp., ¶ 64)
The Settlement Agreement provided that K.M. would attend an autism center program
in Oakland County for a period of 30 school days. K.M. attended the program at
Orchard Lake Middle School from November 14, 2011 to January 6, 2012, at which
time K.M. experienced continued behavioral episodes. (Am. Comp., ¶¶ 65-66) On

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January 6, 2012, Maureen Ziegler (“Ziegler”), a Statewide Autism Research and
Training consultant and autism expert retained by the District, observed K.M. (Am.
Comp., ¶ 71) K.M. had an episode where he threw items at staff and began climbing
into the ceiling. 911 emergency was contacted and K.M.’s parents arrived. (Am.
Comp., ¶¶ 73-76) K.M. came down from the ceiling and left with his mother. (Am.
Comp., ¶ 76)
The educational professionals who observed K.M. on January 6, 2012 discussed
having K.M. evaluated through the Oakland Schools Intermediate School District at
Havenwyck Hospital in Oakland County, a psychiatric and substance abuse hospital
for children. (Am. Comp., ¶ 77) K.M.’s parents indicated K.M. would not be at
Havenwyck for the evaluation. (Am. Comp., ¶ 79) Because the District had difficulty
in scheduling an IEP tem meeting with K.M.’s parents, the District provided
homebound services to K.M., commencing January 26, 2012. (Am. Comp., ¶ 79) At
the IEP meeting held on February 2, 2012, K.M.’s parents expressed that they would
not consent to any further evaluations. (Am. Comp., ¶ 80) Several IEP meetings
between the District and the Parents were held in February and March, 2012. (Am.
Comp., ¶¶ 82-85) On March 21, 2012, the IEP team determined that K.M. would be
placed at Edison, Oakland County’s center-based EI program after considering several
options. (Am. Comp., ¶¶ 89-96) K.M.’s parents disagreed with the IEP team’s
decision to place K.M. at Edison. (Am. Comp., ¶ 97) The due process complaint
thereafter was filed by K.M.’s parents on April 12, 2012, contesting K.M.’s IEP of
March 21, 2012, in its entirety. (Am. Comp., ¶¶ 98-100)

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In their Counterclaim, the Parents assert K.M. is an extremely bright,
compassionate and engaging 13-year old student, who is eligible for special education
based on an autism spectrum disorder (“ASD”). (Am. Counterclaim, ¶ 10) K.M. is
involved in the community, participating in Boy Scouts, First Lego League and many
sports. (Am. Counterclaim, ¶ 11) K.M. is highly motivated to learn, wants to do well
in school, wants to be accepted by his peers, to be understood by school staff and to
feel welcomed at school. (Am. Counterclaim, ¶ 12) Because of his ASD, his social
interaction and communication skills are impaired and he has difficulty maintaining
peer relationships and interpreting and responding to social cues. (Am. Counterclaim
¶ 12)
On September 21, 2011, the Parents vigorously opposed the proposed IAES that
would send K.M. to Edison for 45 days. (Am. Counterclaim, ¶ 62) Edison is
considered a dumping ground for students with the worst behavioral challenges and
the Parents felt that this was not appropriate for K.M. (Am. Counterclaim, ¶ 62)
When the IEP decision on March 21, 2012 was to place K.M. full-time at Edison
through February 27, 2013, the Parents rejected the IEP and thereafter filed a due
process complaint on April 12, 2012. (Am. Counterclaim, ¶ 82) The Parents and
K.M. prevailed in the due process hearing and seek attorney fees and costs. (Am.
Counterclaim, ¶ 97)
This matter is before the Court on the District’s Motion for Judgment on the
Administrative Record, or alternatively, Summary Judgment. A response and reply
have been filed. The Parents filed a Motion for Leave to File a Sur-Reply brief which

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is opposed by the District. The parties agreed that the attorney fees and costs issue
raised in the Counterclaim will not be addressed at this time. A hearing was held on
the District’s motion.
II.

ANALYSIS
A.

IDEA Claim
1.

Standard of Review

Count I of the Complaint seeks review of the ALJ’s decision under the IDEA
statute. In an IDEA action, the district court “(i) shall receive the records of the
administrative proceedings; (ii) shall hear additional evidence at the request of a party;
and (iii) basing its decision on the preponderance of the evidence, shall grant such
relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(B). An initial
reviewing court should make an independent decision based on the preponderance of
the evidence, but also should give “due weight” to the determinations made during the
state administrative process. Deal v. Hamilton County Bd. of Educ., 392 F.3d 840,
849 (6th Cir. 2004)(citing, Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v.
Rowley, 458 U.S. 176, 206 (1982)). Under a “modified de novo” standard of review,
“a district court is required to make findings of fact based on a preponderance of the
evidence contained in the complete record, while giving some deference to the fact
findings of the administrative proceedings. Knable ex rel. Knable v. Bexley City Sch.
Dist., 238 F.3d 755, 764 (6th Cir. 2001). The district court must not simply adopt the
state administrative findings without an independent review of the evidence, but
neither may the district court substitute its own notions of sound educational policy

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for those of the school authorities which it reviews. Deal, 392 F.3d at 849. Less
weight is due to an agency’s determinations on matters for which educational
expertise is not relevant because a federal court is just as well suited to evaluate the
situation; more weight, however, is due to an agency’s determinations on matters for
which educational expertise is relevant. Id. (quoting McLaughlin v. Holt Pub. Sch.
Bd. of Educ., 320 F.3d 663, 669 (6th Cir. 2003)).
The purpose of the IDEA is to give children with disabilities a free appropriate
public education (“FAPE”) designed to meet their unique needs. Deal, 392 F.3d at
853. School districts receiving funds under the IDEA are required to establish an IEP
for each child with a disability. Id. The IEP must contain a specific statement of the
child’s current performance levels, the child’s short-term and long-term goals, the
educational and other services to be provided, and criteria for evaluating the child’s
progress. Id.; 20 U.S.C. § 1401(a)(20).
The district court must engage in a two-part inquiry in suits under the IDEA.
First, the court must determine whether the school system has complied with the
procedures set forth in the IDEA. Second, the court must assess whether the IEP
developed through those procedures was reasonably calculated to enable the child to
receive educational benefits. Deal, 392 F.3d at 853-54. If these requirements are met,
the school system has complied with the obligations imposed by Congress and the
courts can require no more. Id. at 854. Parties challenging the IEP have the burden
of proving by a preponderance of the evidence that the IEP devised by the school
district is inappropriate. Id.

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As to whether procedural requirements were met, the court should strictly
review an IEP for procedural compliance, although technical deviations will not
render an IEP invalid. Id. Only if a procedural violation has resulted in substantive
harm may relief be granted. Id. Greater deference is to be afforded to the district’s
placement decision if the procedural requirements of the IDEA are met. Id. As for
substantive compliance, the court must be careful to avoid imposing its view of
preferable educational methods upon the school districts since the primary
responsibility for formulating the educational needs of the child was left by the Act
to state and local educational agencies in cooperation with the parents or guardian of
the child. Id. Federal courts are generalists with no expertise in the educational needs
of handicapped children and will benefit from the fact-finding of a state agency, which
is presumed to have expertise in the field. Id.
2.

First Inquiry: Compliance of IDEA Procedures as to IEP

The ALJ found various procedural violations by the District, specifically under
34 C.F.R. § 300.503(a) which requires that the District must provide prior written
notice before proposing or initiating a student’s placement change. (ALJ Opinion, p.
96) The notice must provide details regarding the proposed action, the reasons for the
proposal, evaluation reports supporting the action, whether procedural safeguards
were made available to the parents and/or student, other options considered and an
explanation as to why options were rejected. 34 C.F.R. § 300.503(b)(1)-(7). The ALJ
also found that the District violated 34 C.F.R. § 300.116(b)(2) which requires that a
student’s educational placement is based on the student’s IEP. The school is required

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to convene a Manifestation Determination Review (“MDR”) under the IDEA at 20
U.S.C. § 1415(k)(1)(E), which provides that the IEP Team and parents shall review
all relevant information in the student’s file if there is a violation of the code of
student conduct. Such a review includes any teacher observations and any relevant
information to determine whether the conduct in question is a manifestation of the
student’s disability and whether the conduct in question was a direct result of the
school’s failure to implement the student’s IEP. 20 U.S.C. § 1415(k)(1)(E). The ALJ
indicated that there were several significant changes in placement where such notice
was not provided to the Parents. The ALJ also found that the District failed to conduct
an MDR, which the ALJ found was a significant and substantial procedural violation.
(ALJ Opinion, pp. 96-97) The ALJ cited several instances based on the testimony and
evidence submitted in the Findings of Fact.
The ALJ found that K.M.’s removal from general education on March 15, 2011
was a procedural violation since no IEP Team meeting was held and there was no
corresponding IEP changing K.M.’s placement to the main office. (ALJ Opinion, ¶¶
110-111) The ALJ further found that K.M.’s continued placement in the main office
through at least May 12, 2011 constituted a change in placement from general
education with resource room support, without an IEP. (ALJ Opinion, ¶ 129) The
ALJ also found that many times the parents received no formal notice of K.M.’s
suspension and it would be unclear what his status was. (ALJ Opinion, ¶ 141) The
ALJ found that there was no IEP Team meeting to change K.M.’s placement from
general education and resource room to homebound and there was no MDR for any

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change in placement on April 21, 2011. (ALJ Opinion, ¶ 142)
Although the June 2 and 7, 2011 IEP, Goals and Objectives were
collaboratively drafted and everyone on the IEP Team agreed that the goals and
objectives were appropriate, the ALJ found that the services and supports set forth in
the June 2011 IEP were not implemented “with fidelity.” (ALJ Opinion, ¶ 202)
K.M.’s mother testified that other supports were not in place on September 9, 2011
including that no additional set of books were provided for home. Nor were any
copies of peer/teacher notes sent home with K.M. (ALJ Opinion, Par. 200) There was
no review of the course schedule by the special education staff before the schedule
was sent to the parents. (ALJ Opinion, Par. 200) During the September 9, 2011
incident, there was no other adult present besides the math teacher when K.M. began
to escalate. (ALJ Opinion, Par. 201) The June 2011 IEP provided for an Additional
Adult Support for K.M. After the September 2011 incident, there was no debriefing
as required by the June 2011 IEP. (ALJ Opinion, Par. 203) On October 28, 2011, the
parties entered into a settlement agreement which placed K.M. at the West Bloomfield
Orchard Lake Middle School. (ALJ Opinion, Par. 222)
The ALJ found that many of the provisions of the October 2011 settlement
agreement were not fulfilled. (ALJ Opinion, Par. 223) K.M. did not receive any of the
required elective courses, such as health, physical education, computers or
keyboarding, French, Italian or band. (ALJ Opinion, Par. 225) K.M. was placed, by
himself, in a sensory room connected to the ASD room for 1/2 days while at West
Bloomfield. (ALJ Opinion, Par. 232) K.M. did not see a psychologist within the 30

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days required by the October 2011 settlement agreement. (ALJ Opinion, Par. 235)
West Bloomfield Schools did not allow K.M. to return, even though K.M.’s doctor
recommended that K.M. should be returned to school. (ALJ Opinion, Par. 260) The
ALJ found that the District’s argument that it need not pay the psychiatrist evaluating
K.M. because K.M.’s parents were attempting to “control the process” as
“disingenuous.” (ALJ Opinion, Par. 402) The ALJ found that the District could not
legitimately complain that the expert the District had selected was so easily subject to
K.M.’s “control.” (ALJ Opinion, Par. 402)
The IEP was amended on February 2, 2012, to be effective March 1, 2012.
(ALJ Opinion, Par. 269) IEP Team meetings were held on February 28, 2012, March
9, 2012 and March 21, 2012. (ALJ Opinion, Par. 321-22) The March 21, 2012 IEP
Supplementary Aids and Services was intended to be implemented in a general
education building with special education support. (ALJ Opinion, Par. 329) It was
agreed that the primary consideration at the March 9, 2012 meeting was safety. (ALJ
Opinion, Par. 334) K.M. was not permitted to go to general education classes for the
first 11 days. (ALJ Opinion, Par. 337) At the March 21, 2012 IEP Team meeting,
K.M.’s parents believed that key participants did not attend the meeting. (ALJ
Opinion, Par. 340) When placement was discussed at the meeting, the IEP Team
usually begins with the Least Restrictive Environment (“LRE”), but Katherine Jagels,
the District’s Director of Special Education, was supporting a placement to Edison,
which the parents believed was a pre-determined decision. (ALJ Opinion, Par. 340)
The school staff agreed to the Edison placement, which was opposed by K.M.’s

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parents. (ALJ Opinion, Par. 342-43) The supervisor of Edison never observed K.M.,
even though this was part of the referral process. (ALJ Opinion, Par. 351) Experts
testified that K.M. would not respond to a consequence or reinforcement system in
place at Edison, since such a system presumes K.M. is misbehaving intentionally.
(ALJ Opinion, Par. 354) The ALJ found that the level system in place at Edison would
not be modified for K.M. (ALJ Opinion, Par. 356) Edison has no staff certified in
ASD. (ALJ Opinion, Par. 357)
The ALJ found that K.M.’s education progress had not been measured since the
3rd marking period of 2011. (ALJ Opinion, ¶ 395) K.M.’s father testified that K.M.
received honors in math, but that K.M. now needs support in math and science, and
writing. (ALJ Opinion, ¶ 396)
After reviewing the parties’ arguments and submissions before the ALJ and this
Court, the Court finds that there were several substantial procedural violations by the
District. The record shows that the District repeatedly isolated K.M. during the 201011 school year and unilaterally imposed homebound schooling for K.M. The record
further shows that there were changes in placement of K.M. without notice to the
Parents, without convening an IEP or without conducting an MDR. This occurred in
January 2011 and in April 2011. No MDR was convened in January 2011 when K.M.
was suspended in excess of 20 school days without an MDR to review K.M.’s pattern
of behavior. K.M. was placed on homebound schooling in January 2011 which
violated the IEP. K.M.’s placement was changed in April 2011 to May 12, 2011,
without an MDR.

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As to the June 2011 IEP, which contained significant changes from previous
IEPs, this IEP was never fully implemented by the beginning of the September 2011
school year. Changes were made to the IEP, even though the IEP Team did not agree
on the changes. There was no staffing/adult support for K.M. on September 9, 2011
as required by the IEP. (Tr. 1314, 1364, 2086) There was no debriefing by the IEP
Team after the September 9, 2011 incident which was provided for in the IEP. K.M.
was excluded from school after the September 9, 2011 incident, but homebound
services were not initiated until October 31, 2011 and after January 6, 2012. K.M.
was prevented from interacting with his peers. K.M. was unable to attend physical
education, music, computer, keyboarding, foreign language or music classes. (Tr.
1183-84, 1218, 1225-26)
In addition to the Court’s de novo review of the matter, the Court notes that the
ALJ conducted a thorough hearing, including reviewing the testimony of multiple
witnesses and thousands of documents. The administrative record before the ALJ was
filed with the Court which included in excess of 5,200 pages. (See Doc. Nos. 23-39)
The Court considered the administrative record in its review, in addition to the briefs
and exhibits submitted by the parties. The Court’s finding of a substantial violation
is based on its de novo review of the matter and also gives “due deference” to the
ALJ’s decision and review of the matter.
3.

Second Inquiry: whether the IEP developed through those
procedures was reasonably calculated to enable the child to
receive educational benefits

The March 21, 2012 IEP removed K.M. from the general education

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environment. The Sixth Circuit applies three criteria to determine whether the child
may be removed from the general education environment in compliance with the
IDEA’s preference for mainstreaming: 1) whether the disabled student would benefit
from inclusion in general education; 2) whether such benefits would be outweighed
by benefits that are not provided in an inclusive setting; and 3) whether the disabled
child disrupts the general education setting. Roncker v. Walter, 700 F.2d 1058, 1063
(6th Cir. 1983).
Because the Court found above that the District committed substantial
procedural violations, the Court need not defer to the District’s placement of K.M. and
the removal of K.M. from the general education environment. The evidence submitted
shows that K.M. would benefit from the inclusion in general education. Ms. Ziegler,
the state autism expert, testified that placement at a school such as Edison, a
segregated facility, would not be a first choice for a student with ASD, such as K.M.
(Tr. II, p. 364; Tr. IV, p. 846) Robin Billings, Ph.D., a psychologist, testified that
K.M. is extremely bright, learns rapidly and has an industrious work ethic and wants
to be successful. (Tr. VII, pp. 1504-07) Dr. Billings testified that K.M. can educated
in a general education class room, with the right support and a proper ASD program.
(Tr. VII, pp. 1543-46) Ira Glovinski, Ph.D., a psychologist, testified that if K.M. were
in a safe and welcoming environment, he could be satisfactorily educated in a general
education setting with supports. (Tr. II, p. 462) Dr. Glovinski found K.M. presented
not as a child with conduct disorder, but a child who has been scared. (Tr. II, p. 463)
Dr. Glovinski further found that K.M. is not a danger to himself or others such that he

17

should be excluded from a general education building. (Tr. II, P. 463) Dr. Glovinski
testified that K.M. expressed a desire to be in a general education classroom, as
opposed to being isolated. (Tr. II, pp. 455-56) David Meador, co-founder of Autism
Alliance of Michigan, testified that it is possible to successfully transition a student
with ASD to the general education and that peer-to-peer support and mainstreaming
is critical as students with ASD learn from being acclimated with neuro-typical peers.
(Tr. I, pp. 234, 236) A center-based program, such as Edison, is not a helpful
placement and does not assist with learning how to interact with non-disabled peers.
(Tr. I, pp. 238-39)
This Court finds that inclusion in general education would greatly benefit K.M.
The evidence shows that K.M. could be successfully included in general education if
the proper support was in place. The testimony shows that interacting with nondisabled peers is critical to K.M.’s success in school. The testimony establishes that
K.M. is a bright student and is able to learn quickly. The first criteria that inclusion
in general education would benefit K.M. is met.
As to the second criteria, the Court finds that the benefit of inclusion in general
education far outweighs the benefit of being in a more restrictive setting, such as
Edison. The main reason why the District advocated for a more restrictive setting was
K.M.’s behavior, which also goes hand in hand with the third criteria, whether K.M.
disrupts the general education setting.
Dr. Glovinski testified that K.M. has a high degree of reactivity and is on high
alert because he is afraid of what is going to happen to him. (Tr. II, pp. 423-24)

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Police involvement, restraints and seclusion can be frightening for any student, but
more so for a student with disabilities. Mr. Meador from Autism Alliance, testified
that a good ASD program with highly trained teachers using evidence based methods
and a least restrictive environment, with peer to peer support would benefit K.M.
Kelly Dunlap testified that when a student is experiencing a melt-down, it is easy for
the school staff to say that the plan is not working. She further testified that visual
supports and visual schedules are important modifications for students with ASD. (Tr.
II, pp. 285-86) Peer-to-peer support is also critical in that it affects how a student
develops socially and academically, and allows the student to be more independent.
(Tr. II, pp. 288-89; Tr. IV, pp. 770, 776-77) If a student perceives staff to be agitated,
then the student escalates. Ms. Dunlap further testified that a behavioral plan could
be implemented for six to eight weeks, with fidelity, before staff decides that a student
cannot be educated in the general education environment. (Tr., II, pp. 330-31)
Punishment-based strategies often do not work on students with ASD because of the
neurological impact of the autism. (Tr. II, pp. 344-46)
The Court finds that because the June 2011 IEP and PBSP were never properly
implemented, that placement at a more restrictive school, such as Edison, is
inappropriate since the least restrictive placement set forth in the June 2011 IEP was
never implemented. Evidence established that the West Bloomfield placement did not
follow the IEP in that K.M. had a negative association with an authoritarian principal
and an unwelcome environment. The more restrictive environment of Edison or
similar placement would not benefit K.M. Although K.M. has disrupted the general

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education setting, those incidents could be more controlled if the staff was properly
trained and the IEP was properly followed. After weighing the three criteria required,
the Court finds that the Parents have shown under the preponderence of the evidence
standard that the March 21, 2012 IEP is not an appropriate IEP for K.M. Count I of
the Complaint is dismissed.
B.

MMSEA Claim

Count II of the District’s Complaint seeks review of the ALJ’s decision under
the MMSEA, M.C.L. § 380.1701 et seq. The Parents argue that the state law claim
is barred by waiver and failure to exhaust administrative remedies because the claim
was not raised before the ALJ.
Participating states under the IDEA, such as Michigan, must certify to the
Secretary of Education that they have policies and procedures that will effectively
meet the IDEA’s conditions. See, M.C.L. § 380.1701 et seq. The MMSEA Michigan
has chosen to enhance IDEA’s requirements by requiring that an IEP be “designed to
develop the maximum potential” of the handicapped child. M.C.L. § 380.1701(a).
The MMSEA was enacted under the IDEA, which required the implementation of
IEPs. Griffin v. Sanders, 2013 WL 3788826, at *10 n. 6 (E.D. Mich. Jul. 19, 2013).
Administrative remedies must be exhausted before resorting to the courts. See,
Jenkins v. Carney-Nadeau Public School, 201 Mich. App. 142, 144 (1993).
A review of the matter below shows that the complaint filed before the ALJ was
filed under the IDEA. (ALJ Opinion, p. 1) The ALJ’s decision shows it was based on
the IDEA statute. Nothing in the decision refers to the MMSEA. The Court is unable

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to review any allegations under the MMSEA since such was not addressed by the
ALJ. It is noted that the United States Supreme Court held that where the IDEA
provides a remedy, it is the exclusive avenue for redress. See, Smith v. Robinson, 468
U.S. 992 (1984). The Court declines to review the ALJ’s decision under the MMSEA.
Count II of the Complaint is dismissed.
C.

Violation of the Spending Clause of the United States Constitution

In Count III, the District asserts that the ALJ’s decision violated the Spending
Clause of the United States Constitution because it required a one-on-one psychologist
for K.M. which is not required under the IDEA. (Am. Comp. Count III). The Parents
respond that the only condition under the IDEA is that the relief be “appropriate.” 20
U.S.C. § 1415(i)(2)(C)(iii).
The IDEA statute was passed by Congress pursuant to the Spending Clause of
the United States Constitution. U.S. Const., Art. I, § 8, cl. 1; Arlington Cent. School
Bd. of Educ. v. Murphy, 548 U.S. 291, 295 (2006). The IDEA provides federal funds
to assist state and local agencies in educating children with disabilities “and conditions
such funding upon a State’s compliance with extensive goals and procedures.”
Arlington, 548 U.S. at 296. Congress has broad power to set the terms by which it
disburses federal money to the States, but when Congress attaches conditions to a
State’s acceptance of federal funds, the conditions must be set out “unambiguously.”
Id. Courts must view the IDEA from the perspective of a state official who is engaged
in the process of deciding whether the State should accept IDEA funds and the
obligations that go with those funds. Id. In considering whether the IDEA provides

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clear notice, courts should review the text of the statute. Id. If the language is plain,
the sole function of the courts–at least when the disposition required by the text is not
absurd–is to enforce it according to the terms. Id. Although the school district may
have legitimate financial concerns, the court’s role is to interpret existing law. Cedar
Rapids Community School Dist. v. Garret F., 526 U.S. 66, 77 (1999). Accepting a
school district’s cost-based standard as the sole test for determining the scope of the
provision would require the court to engage in judicial lawmaking without any
guidance from Congress, which creates a tension with the purposes of the IDEA. Id.
Congress intended “to open the door of public education” to all qualified children and
“require[d] participating States to educate handicapped children with nonhandicapped
children whenever possible.” Id. at 78 (quoting Board of Ed. of Hendrick Hudson
Central School Dist. v. Rowley, 458 U.S. 176, 192 (1982). Under the IDEA, the term
“related services” means “other supportive services” including “psychological
services” designed to enable a child with a disability to receive a FAPE as described
in the IEP of the child. 20 U.S.C. § 1401(26)(A).
The ALJ ordered that as “compensatory education” for K.M.’s educational loss
in social and behavior management skills, the placement will include “a full-time, oneon-one ASD trained psychologist or psychiatrist assigned to the Student, known as the
Student’s safe person.” (ALJ Opinion, p. 99) The ALJ directed the parties to work
collaboratively to retain this person and that the order was through the 2013 school
year. The Court finds that the ALJ’s order did not violate the IDEA and the Spending
Clause of the Constitution since the IDEA expressly provides psychological services

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to the child. IDEA’s main purpose is to promote the education of children with
disabilities with children without disabilities whenever possible. IDEA expressly
provided for related services which includes psychological services. In this instance,
and based on the testimony and facts before the ALJ which established that K.M.
requires an ASD trained psychologist or psychiatrist, the one-on-one psychologist
assigned to K.M. as a safe person does not violate the IDEA. It is also noted that the
ALJ directed the parents and the District to collaborate regarding the retention of this
person. The IDEA requires a collaboration between the District and the Parents to
establish an IEP for K.M. The parties should so heed such requirement on future IEPs
for K.M., in light of K.M.’s situation. Count III of the Complaint is dismissed.
III.

PLAINTIFFS’ SECOND MOTION FOR PRELIMINARY INJUNCTION
On December 19, 2014, the District filed a second Motion for Preliminary

Injunction prohibiting K.M. from returning to Athens High School to receive
educational services. The Parents respond that the District should abide with the stay
put provision after the matter is reviewed by the ALJ. On January 16, 2015, the Court
denied Plaintiffs’ Motion for Temporary Restraining Order. The ALJ has since issued
a decision on January 29, 2015 ordering that K.M. be returned to Athens High School.
(Doc. No. 75)
Because the Court has now issued its decision dismissing all of the District’s
claims, the Court no longer has any matter to review as it relates to the previous ALJ
decision. Since a new decision has been issued based on a recent Due Process
Hearing, as noted by the ALJ, a party aggrieved by the decision may seek judicial

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review by filing an action within 90 days of the date of the order. The Court declines
to review the January 29, 2015 ALJ Decision since it is not properly before the Court.
Even if the matter was properly before the Court, for the reasons set forth below, the
Court denies the Motion for Preliminary Injunction.
“The court may issue a preliminary injunction only on notice to the adverse
party.” Fed. R. Civ. P. 65(a)(1). Four factors must be balanced and considered before
the Court may issue a preliminary injunction pursuant to Fed. R. Civ. P. 65(a): 1) the
likelihood of the plaintiff's success on the merits; 2) whether plaintiff will suffer
irreparable injury without the injunction; 3) the harm to others which will occur if the
injunction is granted; and 4) whether the injunction would serve the public interest.
In re Delorean Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1985); In re Eagle-Pitcher
Industries, Inc., 963 F.2d 855, 858 (6th Cir. 1992); and N.A.A.C.P. v. City of
Mansfield, Ohio, 866 F.2d 162, 166 (6th Cir. 1989). The first factor is the most
critical inquiry of the four criteria. Mason County Med. Ass’n v. Knebel, 563 F.22d
256, 261 (6th Cir. 1977). In making its determination the “district court is required
to make specific findings concerning each of the four factors, unless fewer factors are
dispositive of the issue.” Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d
393, 399 (6th Cir. 1997).
As to the first factor, likelihood of success on the merits, the Court has now
dismissed the District’s claims in its February 27, 2013 Amended Complaint. Without
ruling on the merits of the ALJ’s decision of January 29, 2015, it appears that based
on those findings, the Court finds the District cannot prevail on the merits as to the

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issues which were before the ALJ. The ALJ found that K.M. is not substantially
likely to cause injury to himself or others with the proper support. (Doc. No. 75, Pg
ID 7324) The ALJ also found that the District had some responsibility in the
escalation of the two level 5 incidents. (Id.)
Regarding the second factor, whether the District will suffer irreparable injury,
the Court finds that based on the ALJ’s findings, again without ruling on the merits
of the issues before the ALJ, the Court finds that the District has failed to carry this
burden for the same reasons set forth in the first factor.
The third factor, the harm to others, as this Court has now ruled in K.M.’s favor,
the Court finds K.M. would suffer great harm from not participating in general
education since the statute requires the least restrictive educational setting for K.M.
Addressing the fourth factor, there is public interest in keeping all students and
others safe while in school, but there is also a public interest in having a student with
a disability participate in the least restrictive educational setting. Again, the ALJ
found that the District failed to establish by a preponderance of the evidence that
maintaining K.M. at Athens High School is substantially likely to result in injury to
K.M. or others. (Doc. No. 75, Pg ID 7325)
Weighing the factors set forth above, the Court finds that the District has failed
to show that a preliminary injunction should be issued in this case. The Court denies
the District’s Motion for Preliminary Injunction.
IV.

CONCLUSION
For the reasons set forth above,

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IT IS ORDERED that Plaintiffs’ Motion for Judgment on the Administrative
Record or Alternatively for Summary Judgment in Favor of Plaintiffs (Doc. No. 39)
is DENIED. The Court finds in favor of Defendants as more fully set forth above.
Plaintiffs’ Complaint is DISMISSED with prejudice.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Supplement the Record
(Doc. No. 53) is DENIED as it relates to the Court’s review of the ALJ’s decision.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Preliminary Injunction
(Doc. No. 67) is DENIED.
IT IS FURTHER ORDERED that as to the Amended Counterclaim, after the
parties have conferred on the remaining claims, the following briefing schedule is set:
Any dispositive motion must be filed by:

May 22, 2015

Any response must be filed by:

June 19, 2015

Any reply must be filed by:

July 3, 2015

A hearing on the motion is set for:

July 15, 2015, 2:00 p.m.

S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: March 31, 2015
I hereby certify that a copy of the foregoing document was served upon counsel of
record on March 31, 2015, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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