Maple Heights City School District Board of Education v. A.C. etal
Opinion and Order. The Court affirms the decisions of the State Level Review Officer in all respects. Judge Christopher A. Boyko on 6/27/2016. (H,CM)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
MAPLE HEIGHTS CITY SCHOOL
BOARD OF EDUCATION,
A.C. Individually and on behalf of A.W. )
CASE NO. 1:14CV1033
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER
CHRISTOPHER A. BOYKO, J:
This matter is before the Court on both Petitioner’s and Respondent’s appeals of
certain rulings of the State Level Review Officer (“SLRO”). These appeals involve A.C.’s
Individualized Education Program (“IEP”) as required under the Individuals with Disabilities
Education Act (“IDEA”). For the following reasons, the Court affirms the decisions of the
SLRO in all respects.
“The purpose of the IDEA is to give children with disabilities a free appropriate public
education designed to meet their unique needs.” Deal v. Hamilton Cty. Bd. of Educ., 392
F.3d 840, 853 (6th Cir. 2004), aff'd sub nom. Deal v. Hamilton Cty. Dep't of Educ., 258 F.
App'x 863 (6th Cir. 2008) (citing 20 U.S.C. §§ 1401(25), 1412). Pursuant to a school
district’s obligations to provide a free appropriate public education (“FAPE”), school districts
receiving funds under the IDEA are required to establish an IEP for each child with a
disability. Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755, 762 (6th Cir.2001)
(citing 20 U.S.C. § 1414(a)(5)). 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. at 763
(citing 20 U.S.C. § 1401(a)(20)).
“The IDEA provides a process through which parents who disagree with the
appropriateness of an IEP can seek relief. The process begins with a complaint to the school
district, followed by a due process hearing at which parents are able to voice their concerns to
an IHO of the state educational agency, as determined by state law.” Knable, 238 F.3d at 763
citing 20 U.S.C. § 1415(b). “Any party may appeal the result of this hearing to an SLRO.”
Knable, 238 F.3d at 763 citing 20 U.S.C. § 1415(c). “Finally, any party aggrieved by the
result of the hearing held before the SLRO may bring suit in the appropriate state court or
federal district court.” Knable, 238 F.3d at 763 citing 20 U.S.C. § 1415(e)(2).
Statement of the Facts
A.W. was a fourteen year old female student of Maple Heights High School
(“District”). (Tr. Pg. 31). A.W. exhibited behavioral issues from a very young age and she
has exhibited poor behavior while in educational settings. (Tr. 34-36). Throughout her
educational career, A.W. has been diagnosed with several educational and behavioral
disabilities. (Tr. Pg. 33, 40; 41-43). However, as of the time of the State Level Review
Officer’s (“SLRO”) Hearing, it was agreed that A.W. suffered from emotional disturbance
(“ED”) and was therefore eligible for special education services. (SLRO pg. 9).
A.W. first moved into the District at the end of the 2009-2010 school year.1 (Tr. 69).
At this time A.W. was enrolled in private placement at Educational Alternatives (EA). (Tr.
811). EA is a day treatment facility for students with emotional and behavioral concerns.
(Tr. 811). EA is a private facility that contracts with school districts, including the District, to
provide educational services to students. (Tr. 872).
2010-2011 School Year
A.W. began her 2010-2011 school year at EA but expressed an interest in transferring
to the regular public school. Throughout this school year, A.W.’s Individualized Education
Plan (“IEP”) was amended several times, most notably during the Spring of 2011. In March
2011, A.W.’s IEP was amended to provide for the transition to the District middle school.
(Tr. 867-868). The District, A.W. and A.W.’s parent agreed to this amendment and eventual
transition. The transition started on March 21, 2011 and involved attending the District
school in the morning and being transported to EA in the afternoon. (Tr. 95).
At the end of the 2010-2011 school year, A.W.’s parent expressed her desire to wait
until the following school year to determine whether A.W. would attend the District full time.
(Tr. 100-02). After an IEP meeting without A.W.’s parent, A.W.’s mother filed a complaint
with the Ohio Department of Education (“ODE”) and the ODE told the District to reconvene
the IEP meeting. (Tr. 101-03). At this IEP meeting it was determined that A.W. would
remain at EA part-time and would attend the District part of the time.
2011-2012 School Year
The Court notes that A.W. transferred out of Maple Heights School District in the 2014‐2015 school year.
A.W. began her 2011-2012 school year in partial transition status and made a full
transition to the District in October 2011. (Tr. 116). At the District, A.W. was placed in a
resource room with therapeutic support pursuant to her February 2011 IEP. During the Fall
of 2011, A.W. began exhibiting behavioral problems. (Tr. 1736-65). She acquired seven
behavioral write-ups from October 21, 2011 to December 14, 2011. Additionally, A.W. was
suspended for brief periods on three occasions during this time frame for behavior related
outbursts. (P.Ex. 23). A behavior intervention plan (“BIP”) was prepared for A.W. to help
alleviate these behaviors. (Tr. 1760).
A.W.’s IEP team reconvened in February 2012 and prepared A.W.’s new IEP. (Tr.
125). A.W.’s IEP allowed her to move out of the resource room for science class and her
specials (art, music and gym). (See Feb. 2012 IEP and Settlement Agreement para. 5). It
In the summer of 2012, the District met to discuss A.W.’s evaluation team report
(“ETR”) that was conducted throughout the summer. During a three hour meeting, the team
reviewed A.W.’s ETR findings and had an extensive discussion regarding her eligibility
determination. The team concluded that A.W.’s behaviors did not constitute ED under the
Individuals with Disabilities Education Act. Rather, they concluded that her behaviors fell
under social maladjustment. Due to this finding, the ETR team determined that A.W. was no
longer qualified as a child with a disability and was thus no longer eligible for special
education services. A.W.’s mother disagreed with this finding and filed a Due Process
Complaint on August 24, 2012. (Tr. 129). While this complaint was going through the
administrative process, the District continued to provide A.W. with special education
2012-2013 School Year
A.W. continued to exhibit poor behavior while in the resource room including:
impulsivity, excessive talking, problems interacting with peers, verbal aggression, bouts of
agitation, defiance, arguing with peers and leaving the class without permission. (Tr. 65758). After this continued for several weeks, A.W.’s resource room teacher no longer agreed
that A.W. did not qualify for special education services. (Tr. 670-72). A.W.’s resource room
teacher began charting A.W.’s behavior to document her concerns.
On October 2, 2012, the District discovered that A.W. possessed marijuana on school
grounds in violation of the school’s Code of Conduct. (P.Ex. 31; 35). A.W. was immediately
suspended for ten days. On October 16, 2012, a manifestation determination review
(“MDR”) meeting was convened in order to determine whether A.W.’s disabilities had a
direct and substantial relationship to the drug possession. (Tr. 682-83). While the District
concluded that the drug possession was not a manifestation of A.W.’s disability, the IHO
concluded that A.W.’s parents proved, by a preponderance of the evidence, that the drug
possession was a manifestation of A.W.’s disability. The SLRO affirmed the IHO’s
determination that A.W.’s drug possession was a manifestation of A.W.’s disability.
During A.W.’s expulsion she received one-on-one small group instruction at the
Maple Heights Library. (Tr. 684-85). During this time, A.W. generally exhibited good
behavior and stayed on task. (Tr. 1873; 1889-1890).
On December 14, 2012, A.W.’s mother and the District entered into a Settlement
Agreement resolving the issues of the Due Process Complaint filed in August 2012. (Tr. 165,
169). The Settlement Agreement stated that A.W.’s qualifying disability was Emotional
Disturbance. (Tr. 171). Further, it stated that A.W. would be placed in an age-appropriate
small group resource room with participation in science, art, music and physical education
classes with mainstreamed students. Additionally, the agreement stated that A.W. would
receive twenty-four hours of one-on-one services, two hours in length per-day. Finally, the
Settlement Agreement expressly resolved all outstanding claims asserted in the August 2012
Complaint, but did not encompass any claims that may have arisen since the filing of the
Complaint on that date.
In January 2013, A.W. returned to the District and was in Mr. Green’s resource room.
She continued to receive services pursuant to her IEP. Between January 22, 2013 and
February 21, 2013, the District asked Dr. Swartz, a behavioral specialist, to prepare a
functional behavior assessment (“FBA”) and a behavior intervention plan (“BIP”) for the
impending IEP meeting at the school.
On February 21, 2013, A.W. was caught stealing another student’s iPod and was
subsequently suspended. On March 4, 2013, the school held an MDR meeting in order to
determine whether A.W. disability’s had a direct and substantial relationship to the iPod theft.
While the District determined that the iPod theft was not a manifestation of A.W.’s disability,
the IHO held that A.W.’s parents proved by a preponderance of the evidence that the iPod
theft was a manifestation of A.W.’s disability. Additionally, the SLRO affirmed the IHO
The December 2012 Settlement Agreement provided that the current IEP would be
extended past its expiration time of January 2013 and that the parties could agree to any
necessary extensions. However, this did not happen. (Tr. 1706). Additionally, the
Settlement Agreement provided that an IEP meeting would occur by February 12, 2013,
however, this did not occur either. It was not until March 11, 2013, that the District convened
an IEP meeting.
Dr. Sargent, a behavioral specialist and educational consultant, was hired by the
District to help assess the quality of the programming at the District as it pertained to A.W.
Because Dr. Sargent was not qualified to diagnosis a mental health or medical disorder, she
was unable to state an opinion about A.W.’s diagnosis.
Dr. Sargent performed an evaluation for the District which included: reviewing
A.W.’s records, reviewing external evaluations and reports pertaining to A.W.; observing
A.W. at the library for an hour and a half and observing the resource room. However, Dr.
Sargent did not interview A.W.’s mother, A.W. or contact Dr. Swartz for a report.
When reviewing A.W.’s IEPs, Dr. Sargent concluded that A.W. was making progress
on her IEP goals. Dr. Sargent also reviewed data sheets provided by the teacher of the
resource room. These data sheets contained numerous mathematical errors, all of which went
unnoticed by Dr. Sargent when she concluded that the data showed A.W. was making
Based on this evaluation, Dr. Sargent determined that the decision of the MDR team
regarding the iPod incident was appropriate. Dr. Sargent stated that the behavior was not a
manifestation of A.W.’s disability.
The IHO had an opportunity to observe Dr. Sargent and found that Dr. Sargent’s
demeanor, her failures to identify the errors in calculating the data in A.W.’s behavior chart,
and to accurately describe the trends depicted by that data, led the IHO to discredit her
Dr. Jensen, a pediatric psychologist at the Cleveland Clinic, performed a
psychological evaluation of A.W. and issued a report. (Tr. 932). Her evaluation spanned
from March 2013 until May 2013. In conducting her report, Dr. Jensen interviewed A.W.’s
mother, interviewed A.W., tested A.W., interviewed educators, observed A.W.’s resource
room at the District, observed A.W. at her home instruction in the library, spoke with Dr.
Swartz and reviewed extensive school records as well as external evaluations and reports
pertaining to A.W.
Dr. Jensen concluded that A.W. had several significant mental illnesses and her
overall functioning was impaired. Based on these findings and her extensive experience
evaluating children and interpreting children’s psychological tests, Dr. Jensen opined that the
behaviors leading to A.W.’s two disciplinary incidents in October and February were linked
to her disability. The IHO gave due weight to Dr. Jensen’s testimony and stated that Dr.
Jensen had very impressive professional credentials and she testified confidently with a
demeanor that demonstrated sincerity, candor, analytical skills and honesty. Further, the IHO
observed Dr. Jensen to be a very credible witness. The IHO found that Dr. Jensen’s
testimony established that, due to A.W.’s disabilities, there can be times when A.W. is unable
to stop her actions even though A.W. knows her conduct is wrong. Dr. Jensen further stated
that “it is very unlikely that A.W.’s disability did not play a significant role in her behavior.
(Tr. 1074). Finally, Dr. Jensen established that A.W.’s mental illnesses are so significant that
A.W.’s overall functioning is very impaired.
Standard of Review
A party that is aggrieved by the findings and decision made by a state educational
agency regarding an IDEA claim has the right to bring a civil action in a district court of the
United States. See 20 U.S.C. § 1415(i)(2)(a). The district court shall receive the records of
the administrative proceedings, hear additional evidence at the request of a party, and, based
on the preponderance of the evidence, grant appropriate relief. 20 U.S.C. § 1415(i)(2)(c).
This case is before the Court upon the administrative record with the addition of the August
2012 Due Process Complaint filed by A.C., which was not initially included in the
When a claim is brought under IDEA, the Court must afford due weight to the state
administrative proceedings. Bd. of Educ. of Hendrick Hudson Sch. Dist. v. Rowley, 458 U.S.
176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). The Sixth Circuit has explained that “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)). This standard of review is referred to as “modified” de novo. See, e.g.
Nack ex rel. Nack v. Orange City Sch. Dist., 454 F.3d 604, 609 (6th Cir.2006) (citing N.L. ex
rel. Mrs. C. v. Knox County Sch., 315 F.3d 688, 692 (6th Cir.2003). “In a case involving a
motion for summary judgment, the court should still apply modified de novo review, but must
ensure that there are no genuine issues regarding the facts essential to the hearing officer's
decision.” Burilovich v. Bd. of Educ. of Lincoln Consol. Sch, 208 F.3d 560, 560 (6th
In reviewing an IDEA claim, the Court conducts a two-fold inquiry: (1) whether the
procedural requirements outlined in the IDEA were met; and (2) if the IEP was developed
according to these procedural requirements, whether it is “reasonably calculated to enable the
child to receive educational benefits.” Rowley, 458 U.S. at 206–207. When reviewing
procedural matters, the Court must strictly review the IEP process for compliance, but need
not necessarily invalidate an IEP for a mere technical deviation from the prescribed
procedures. See Dong ex rel. Dong v. Bd. of Educ. of the Rochester Cmty. Sch., 197 F.3d 793,
800 (6th Cir.1999)). Notably, greater deference is given to the school district's IEP
determination when the Court finds that the procedures outlined in the IDEA have been
followed. See Id.
When considering substantive measures, the Sixth Circuit explained in Deal v.
Hamilton County Board of Education, that they are treated differently:
Although reviewing courts must not “simply adopt the state administrative findings
without an independent re-examination of the evidence,” Doe ex rel. Doe v.
Metropolitan Nashville Public Schools, 133 F.3d 384, 387 (6th Cir.1998), neither may
they “substitute their own notions of sound educational policy for those of the school
authorities which they review,” Thomas v. Cincinnati Board of Education, 918 F.2d
618, 624 (6th Cir.1990) (quoting Rowley, 458 U.S. at 206).
392 F.3d at 849. “The amount of deference the Court affords to substantive state
administrative findings is correlated to the degree to which the findings are based on
educational expertise. More weight is afforded to determinations in which educational
expertise is relevant, but less weight is afforded to determinations in which educational
expertise is not relevant, because the district court judge is just as well situated as the
administrator to make such determinations.” T.J. v. Winton Woods Sch. Dist., No. 1.10-cv847, 2013 WL 1090465 (S.D. Ohio Mar. 15, 2013); See McLaughlin v. Holt Public Sch. Bd.
of Educ., 320 F.3d 663, 669 (6th Cir.2003). When educational expertise is essential to the
findings of a state administrative agency, the court has an obligation to afford special
deference to such findings. Nack ex rel. Nack, 454 F.3d at 609 (citing N.L. v. Knox Cty. Sch.,
315 F.3d 688, 692 (6th Cir.2003)).
A reviewing court will necessarily defer to administrative rulings. When reviewing
the findings of both an IHO and a SLRO, the Court must defer to the SLRO's decision. See
Burilovich, 208 F.3d at 567 (citing Renner v. Bd. of Educ. of Pub. Sch. of City of Ann Arbor,
208 F.3d 560, 641 (6th Cir.1999)). However, while the court must give the SLRO deference
in matters requiring educational expertise, the Court will not “second guess” credibility
determinations made by the IHO, who was best situated to assess the credibility of testifying
witnesses. B.H. v. W. Clermont Bd. of Educ., 788 F.Supp.2d 682, 693, (S.D.Ohio 2011)
(citing Bd. of Educ. of the City Sch. Dist. of the City of Cincinnati v. Wilhelmy, 689 F.Supp.2d
970, 987 (S.D.Ohio 2010)).
Law and Argument
The District’s Assignments of Error
1. Assignment of Error 1: The SLRO erred in concluding and deciding that the
Parent met her burden to prove by a preponderance of the evidence that the
Student’s conduct that was the subject of the October 16, 2012 manifestation
determination was a manifestation of the Student’s disabilities. The SLRO
improperly disregarded and gave no weight to documentary record evidence,
witness testimony, and expert testimony in reaching this decision. The SLRO’s
decision is contrary to both the law and evidence adduced at the hearing.
2. Assignment of Error 2: The SLRO erred in concluding and deciding that the
Parent met her burden to prove by a preponderance of the evidence that the
Student’s conduct that was the subject of the March 4, 2012 manifestation
determination was a manifestation of the Student’s disabilities. The SLRO
improperly disregarded and gave no weight to documentary record evidence,
witness testimony and expert testimony in reaching this decision. The SLRO’s
decision is contrary to both the law and the evidence adduced at the hearing.
The SLRO did not err in concluding that A.W.’s marijuana possession and iPod theft
were a manifestation of her disability. The District argues that the SLRO erred in concluding
that A.W.’s disciplinary transgressions, occurring in October and February, were a
manifestation of her disability. Particularly, the District argues that the SLRO failed to give
any weight to documentary record evidence, witness testimony and expert testimony in
reaching this decision. The District supports their argument by citing a number of cases, none
of which are controlling authority in this jurisdiction, stating that “significant weight should
be afforded to the educators themselves who have consistent contact with the student.”
(District’s Brief at 25). However, the Sixth Circuit has made it clear “that deference is due to
the IHO.” Woods v. Northport Public Sch., 487 Fed. Appx. 968, 974 (6th Cir. 2012). The
Sixth Circuit has previously stated that “the IHO is a representative of the state presumed to
have both the educational expertise and the ability to resolve questions of educational
methodology that the federal courts do not have.” Deal, 392 F.3d at 865. In Woods, the Sixth
Circuit Court stated “the district court was not in a position to give deference to the Northport
professionals and the IHO, whose findings are in conflict.” Woods, 487 Fed. Appx. at 974.
See, e.g. Burilovich, 208 F.3d at 565 (stating that “courts must give ‘due weight’ to the state
administrative proceedings.”); Renner v. Bd. of Educ. of Pub. Schs. Of City of Ann Arbor, 185
F.3d 635, 641 (6th Cir. 1999) (stating “due weight shall be given to [administrative]
proceedings in actions brought under the IDEA.”). Similarly, in the case at bar the IHO was
presented with conflicting findings from the District and Dr. Jensen. The IHO determined the
credibility of these determinations and ultimately sided with Dr. Jensen, providing ample
support and justification for doing so.
Upon receiving the appeal to the SLRO, the SLRO applied a de novo standard of
review. The SLRO noted that in matters of assessing witness credibility and demeanor,
deference must be given to the trier of fact, in this case the IHO. Bd. of Educ. of the City Sch.
Dist. of the City of Cincinnati v. Wilhelmy, 689 F.Supp.2d 970 (S.D. Ohio 2010). Regarding
the subject of the two assignments of error, the SLRO stated in her decision:
In reaching his decision, the IHO gave greater weight to the opinions of Parent’s
expert than the District expert. Under IDEA and the implementing federal and state
regulations, the IHO is given wide latitude in governing the due process hearing. It is
within the IHO’s authority to make evidentiary rulings and decisions. Stancourt v.
Worthington City Sch. Dist. Bd. of Educ., 164 Ohio App.3d 184, 205 (2005)
(“Generally speaking, [a] hearing officer has broad discretion in accepting and
rejecting evidence and in conducting the hearing in general.”). Similarly, the IHO was
well within his discretion to give weight to certain experts’ opinions and not to give
weight to the opinion of other experts.
The IHO committed no error in assessing the merits of these experts and giving
greater weight to the input from Dr. Jensen and Dr. Swartz. In his decision not to give
weight to Dr. Sargent’s testimony, he discredited her testimony for many reasons.
Most importantly, the IHO determined that Dr. Sargent was not credible, including his
observation of her demeanor, in his determination not to give weight to Dr. Sargent’s
opinion. Credibility determinations must be accorded due deference because the factfinder is in the best position to make such determinations. Stancourt v. Worthington
City Sch. Dist. Bd. of Educ., 841 N.E.2d 812, 823 (Ohio App.Ct. 10th Dist. Franklin
Cty., Oct. 27, 2005).
The IHO further discredited Dr. Sargent’s testimony because she did not conduct any
evaluation assessing or testing of the Student, her conclusions and opinions were
based on interviews with District personnel only, not Parent or Student. He concluded
that she had made assumptions about Student’s behavior during the 2012-2013 school
year based on records that were incomplete and contained faulty data and when at
least one teacher had testified that all of her Student’s behavioral observations had not
been recorded. Further, Dr. Sargent was not qualified to make diagnoses. The IHO’s
ruling was supported by competent credible evidence.
The IHO’s ruling did not rise to an abuse of discretion. Even if the IHO had not
totally disregarded Dr. Sargent’s testimony on credibility grounds, her testimony was
so diametrically opposed to Dr. Jensen’s as to make it difficult to reconcile the two.
Dr. Sargent supported the District on every point and painted a very rosy picture of
Student and the District’s programming. She thought Student had no major issues,
and her IEP goal and benchmarks were appropriate and believed that Student was
making progress on her goals in both her resource room and home instruction (despite
the significant conduct evidence to the contrary).
Dr. Jensen, on the other hand, after a much more thorough review, thought Student
had major psychological issues now and predictably into the future, that it is
impossible for an individual of this age to adequately learn the required content
expected at a middle school level when not in school, that the alternative setting does
not provide the same intensity and breadth of instruction, that expelled students are at
a significantly higher risk for the number of negative experiences, and although she
would gain some skills in some areas in her one-on-one instruction, that doesn’t
predict success in a school setting where she is exposed to a much broader range of
and variety of interactions, types of conflict and “annoying” actions that have
traditionally been a part of her inappropriate behaviors. The IHO did not adopt all of
Dr. Jensen’s opinions. He did not follow her recommendation of placement at a more
structured and controlled educational program.
The scope of Student’s disabilities required a clinical psychologist or another mental
health professional capable of making diagnoses, to properly shed light on the scope
of Student’s disabilities, and, more importantly, how these symptoms impact her
conduct. Dr. Jensen had these qualifications and concluded that the drug possession
behavior was strongly linked to her emotional disabilities. She took issue with the
school’s position in the MDR meeting where the focus was erroneously on whether
Student’s actions were “planned” and “purposeful” as well as “willful” and thus not
related to her disability. Based on the research on mental health issues, impairments
that Student has cannot be “seen.” Her moment-to-moment decision-making is likely
to be frequently distorted, impulsive, and without consideration of consequences for
herself or others. Further, she is less likely to benefit from traditional consequence and
punishment parameters than “typical” students.
(SLRO’s Decision, pages 36-38).
Accordingly, it has been held that a court must afford the SLRO deference where
educational expertise is applied, and it will not “second guess” the credibility determinations
made by an IHO who “was in the best position at the due process hearing to assess the
credibility of the witnesses who testified.” Bd. of Educ. of the City School Dist. of the City of
Cincinnati v. Wilhelmy, 689 F.Supp.2d 970, 987 (S.D.Ohio 2010).
Therefore, the Court must give deference to the findings of both the SLRO and the
IHO. Giving deference to these administrative bodies, the Court finds that the SLRO did not
err in giving deference to the IHO and determining that A.W.’s mother proved by a
preponderance of the evidence that both the October and February disciplinary incidents were
manifestations of A.W.’s disability.
The District further argues that the SLRO erred in concluding that A.W. was not
subject to further discipline or change of placement following her drug possession. The
District argues that, pursuant to §1415(k)(1)(G), the school was justified in suspending A.W.
for the drug possession regardless of whether or not the possession was a manifestation of
A.W.’s disability. §1415(k)(1)(G) states in pertinent part:
(G) Special circumstances
School personnel may remove a student to an interim alternative educational setting
for not more than 45 school days without regard to whether the behavior is determined
to be a manifestation of the child's disability, in cases where a child—
(ii) knowingly possesses or uses illegal drugs, or sells or solicits the sale of a
controlled substance, while at school, on school premises, or at a school function
under the jurisdiction of a State or local educational agency:
However, as the SLRO correctly pointed out, the District waived the zero-tolerance policy
argument because they did not raise it at the October MDR. (SLRO Decision page 35). The
SLRO noted that during the MDR in October the District did not invoke this provision and
therefore they cannot remedy that lapse now. Therefore, because the District did not raise this
provision during the October MDR meeting, they have waived such argument and defense in
Additionally, the IHO sua sponte analyzed what the term “knowingly” meant within
the statute and held that due to A.W.’s disability she could not “knowingly” possess the
drugs. The IHO therefore concluded that A.W.’s conduct did not fall within the Special
Circumstances provision of §1415(k)(1)(G) and thus, the school was not justified in expelling
A.W. for fifty-two days for the drug possession.
In coming to this decision the IHO stated:
The term “knowingly” is defined in Black’s law Dictionary as “with
knowledge; consciously; intelligently, willfully, intentionally.” (Black’s Law
Dictionary, Rev’d 4th ed. at 1012). Dr. Jensen established that the Student’s
disabilities are so significant that her overall functioning is very impaired, and
can be manifested in behaviors that result from fantasy reasoning. (FOF 85,
88). Dr. Jensen stated that “it is very unlikely that A.W.’s disability did not
play a significant role in her” possession of drugs. (Tr. Pg. 1074). The actions
of a child who experience cognitive distortion, acts from fantasy reasoning and
whose overall intellectual functioning is very impaired are not intentional,
willful, intelligent actions. The IHO thus finds that the Student did not
knowingly possess drugs on the School’s premises. (FOF 76).
(IHO Decision page 115).
The SLRO disagreed with the IHO’s sua sponte analysis of the term “knowingly” and
determined that the IHO erred in performing this analysis and erred in determining that
“knowingly,” in the context of this statute, should be defined using the definition set forth in
Black’s Law Dictionary. (SLRO page 35). The SLRO determined that “knowingly” within
the meaning of IDEA actually pertains to a student’s awareness that he or she is in possession
of drugs. Taking into consideration the intent of the statute and the context of the word
“knowingly,” the Court is inclined to agree with the SLRO’s determination of what
“knowingly” means in this context.
However, even though the SLRO disagreed with the IHO’s reasoning regarding the
IHO’s determination that A.W.’s drug possession was a manifestation of her disability
because she could not “knowingly possess drugs,” the SLRO agreed with the overall
conclusion of the IHO, that A.W.’s drug possession was a manifestation of her disability.
Therefore, A.W. was not subject to further discipline or change of placement for fifty-two
As stated above, the SLRO reasoned that the IHO was within its discretion to find one
expert more credible than the other and give that expert’s testimony more evidentiary weight.
The SLRO deferred to Dr. Jensen’s testimony that A.W.’s drug possession was strongly
linked to her emotional disabilities. (SLRO page 37). The SLRO therefore determined that
the IHO did not err in adopting Dr. Jensen’s opinion that A.W.’s drug possession was a
manifestation of her disability, and therefore ruled that an additional fifty-two days2 of
The statute states that a student may be expelled for up to 45 days for violating this provision. In total A.W.
was suspended for 7 days and expelled for an additional 45. The suspension and expulsion ran consecutive to
punishment or a change of placement was improper.
Therefore, for the foregoing reasons, the Court affirms the decision of the IHO and
SLRO and finds that A.W.’s marijuana possession and iPod theft were manifestations of her
3. Assignment of Error 3: The SLRO erred in concluding and deciding that the
Parent met her burden to prove by a preponderance of the evidence that the
Student’s March 11, 2013 IEP did not provide the Student a FAPE. (SLRO
Decision, p. 54). The SLRO improperly disregarded and gave no weight to
documentary record evidence, witness testimony, and expert testimony, including
evidence and testimony demonstrating the Student’s progress during the relevant
time period, in reaching this decision. The SLRO’s decision is contrary to both
the law and the evidence adduced at the hearing, and impermissibly shifted the
burden of proof.
The SLRO did not err in concluding that the Parent met her burden to prove by a
preponderance of the evidence that A.W.’s March 11, 2013 IEP did not provide her a FAPE.
The District argues that SLRO erred when the SLRO found procedural errors in connection
with the March 11, 2013 IEP and that A.W. suffered a loss of educational opportunity as a
result of a failure to have a proper IEP meeting.
The parents carried the burden of proof in showing procedural errors with the March
11, 2013 IEP. Review and revision of the IEP is a collaborative project of the IEP team
members, which includes parent(s). Schaeffer v. Weast (2005), 126 S.Ct. 528, 532; 20 U.S.C.
1414(d)(1)(B); 34 C.F.R. 300.321(a). Beyond the fact that the District failed to amend the
expired IEP until March 11, 2013, the IEP meeting that did occur on March 11, 2013
exhibited additional problems.
each other, totaling a sum of 52 days.
A number of procedural errors occurred regarding the March 11, 2013 IEP. First,
A.W.’s IEP expired on January 31, 2013 and the IEP team did not meet until March 11, 2013
to develop a new IEP. The District argues that A.W.’s previous IEP did not expire on January
31, 2013 because the Settlement Agreement provided that both parties “may agree to amend
the IEP to permit a further reasonable extension of the IEP expiration date.” (Settlement
Agreement, Resp. Ex. 1, Section 1, ECF #14-87). However, the parties never “agree[d]”
orally or in writing to amend the IEP to permit an extension on the expiration date. The IHO
found that the “parties did not execute an agreement to extend the February 1, 2012 IEP’s
expiration beyond January 31, 2013.” (IHO Opinion page 101). The IHO elicited testimony
from Ms. Harvey who stated that the February 1, 2012 IEP expired on January 31, 2013 and
the IEP did not reconvene until March because A.W.’s mother wanted further reports and
evaluations performed. However, Ms. Harvey then stated that this “agreement” to extend the
expiration date of the IEP was not in writing and the only reason she believed there was an
agreed extension was because of the Special Education Director. Ms. Harvey explicitly
Q: Who led you to understand that there was an agreement that this IEP would extend
beyond January 31st of 2013?
A: Our special ed director.
Q: Okay. So it wasn’t a result of your being in a meeting where the agreement was
(Tr. Pp. 1418-1419).
Second, the SLRO found that A.C. was not afforded a meaningful opportunity to
participate in the IEP meeting. The SLRO reasoned that the meeting lasted three hours long,
there were numerous items discussed and the meeting needed to be continued so that A.C. and
the other members of the team could fully participate. Legally, A.C. had a right to
meaningfully participate in A.W.’s IEP meeting. In Deal v. Hamilton Cty. Bd. of Educ. the
Sixth Circuit held that merely because the parents were present and spoke at the IEP meeting
did not mean that the parent was “afforded adequate opportunity to participate.” Id. at 858. In
the case at bar, there is little evidence to guide the Court either way to determine the level and
meaningfulness of A.C.’s participation. The SLRO noted that several participants came and
went during the meeting and further noted that A.C.’s counsel was present via phone. The
SLRO determined that in order for A.C. to meaningfully participate the meeting needed to be
continued to allow full participation by all the key players. The record reflects that the
meeting lasted three hours long, A.C. was present at the meeting, A.C.’s counsel was present
via phone conference and the meeting covered the SLP, the FBA, the BIP, the ETR, and the
IEP. Despite this, the SLRO determined that A.C. was denied an opportunity to meaningfully
participate. Because the IHO had the opportunity to hear the testimony of the participants
regarding the hearing, including what issues were discussed and the time spent discussing
them and who was present when the matters were discussed, the Court will defer to that
Third, the SLRO found that the new IEP drafted on March 11, 2013, was not created
in the appropriate manner. The SLRO stated that “it was also not appropriate to use the prior
year’s IEP with added handwritten comments.” The Court agrees with the SLRO that the
failure to draft a new IEP and instead substitute illegible handwritten notes is a procedural
While there were procedural violations regarding the creation of the March 11, 2013
IEP, a procedural violation of IDEA is not a per se denial of a FAPE. Rather, procedural
violations will be considered a denial of a FAPE only if the violations cause substantive harm
to the child or the child’s parents. Knable v. Bexley City Sch. Dist., 238 F.3d 755, 765 (6th
Cir. 2001). Substantive harm occurs when the procedural violations seriously infringe upon
the parent’s opportunity to participate in the IEP process. Id. Here, the SLRO determined
that the procedural violations infringed on the parent’s opportunity to participate.
Additionally, substantive harm may also occur when a student is deprived of an IEP or suffers
a loss of educational opportunity. Babb v. Knox County Sch. Sys., 965 F.2d 104, 109 (6th Cir.
1992). The lack of an IEP from January 31, 2013 until March 11, 2013 and the inadequate
drafting of the March 11, 2013 IEP deprived A.W. of an IEP. Furthermore, the disciplinary
removals related to A.W.’s disabilities denied A.W. a FAPE. Because of this, A.W. was
substantially harmed due to these violations.
Therefore, the Court affirms the determination of the SLRO that the March 2013 IEP
denied A.W. a FAPE.
Assignment of Error 4: The SLRO erred in concluding and deciding that the
change of placement to home-based instruction during the 2012-2013 school
years, resulting from two expulsions of the student denied FAPE to the Student.
The IHO improperly disregarded and gave no weight to the IHO’s previous
determination, in his Order on the Stay-Put hearing, that the home-based
instruction at the library provided educational services to enable the Student to
participate in the general educational curriculum and provided better
intervention services and modifications designed to address the Student’s
behavior violation, and therefore denying the Parent’s Stay-Put motion. And,
the SLRO improperly disregarded and gave no weight to documentary record
evidence, witness testimony, and expert testimony, including evidence and
testimony demonstrating the Student’s progress during the home-based
instruction. The SLRO’s decision is contrary to both the law and the evidence
adduced at the hearing.
According to the applicable standard of review, the amount of “due weight” afforded to
the administrative findings varies depending on whether such findings are based on
educational expertise. McLaughlin v. Holt Pub. Schs. Bd. of Educ., 320 F.3d 663, 669 (6th
Cir. 2003). Therefore, “more weight” is due to any “an agency’s determinations on matters
for which educational expertise is relevant.” Id.
The Sixth Circuit has stated that an IHO “is a presumed representative of the state
presumed to have both the educational expertise and the ability to resolve questions of
educational methodology that the federal courts do not have.” Deal, 392 F.3d at 865.
Therefore, the Sixth Circuit has made it clear “that deference is due to the IHO.” Woods v.
Northport Public Sch., 487 Fed. Appx. 968, 974 (6th Cir. 2012). Thus, the Court will give
due deference and “more weight” to the IHO’s determination regarding the IHO’s findings
based on educational expertise concerning A.W.’s change of placement.
The IHO looked to applicable law discussing how to determine whether an IEP is
reasonably calculated to afford a student a FAPE. The United States Supreme Court has
established a two-prong test for determining whether an IEP provides a FAPE:
First, has the district complied with the procedures set forth in the Act? And
second, is the individualized education program developed through the Act’s
procedures reasonably calculated to enable the child to receive educational
benefits? If those requirements are met, the State has complied with the
obligations imposed by Congress and the courts can require no more.
Board of Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982).
The IHO correctly stated that A.C. did not contend that the District failed to comply with the
procedural requirements put forth in IDEA and therefore, the IHO did not need to perform an
analysis on the first prong laid out in Rowley.
Regarding Rowley’s second prong, the IHO correctly determined that A.W.’s IEP was
not reasonably calculated to provide A.W. a FAPE. IDEA requires a school to provide a
FAPE to all children with disabilities. 20 U.S.C. §1400, et seq.; O.A.C. §3301-51-02. The
United States Supreme Court has stated that in order to provide a FAPE, a school must
develop and implement an IEP. That IEP must be appropriate to meet the child’s needs and
reasonably calculated to enable the child to receive educational benefits. Rowley, 458 U.S. at
182. 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. 20 U.S.C. §1401(a)(2).
The SLRO did not err in concluding and deciding that the change of placement to
home-based instruction during the 2012-2013 school year denied A.W. a FAPE. The
placement of a child inside or outside the general education classroom is a question requiring
educational expertise. Woods v. Northport Public Sch., 487 F. App'x 968, 979 (6th Cir.
2012). Therefore, more weight must be given to the SLRO's determination.
The SLRO determined that the home-based instruction denied A.W. a FAPE because
it did not comply with A.W.’s IEP. The SLRO noted that the IEP that expired on January 31,
2013, provided that A.W. work on one behavior goal and four objectives related to that goal,
all of which were related to interactions with other peers an staff. A.W.’s LRE was the
resource room at school. Therefore, that is where A.W. belonged in order to provide her with
a FAPE. Additionally, A.W. was supposed to attend science in an inclusion classroom and
specials with other disabled children. Ms. White and Ms. Ford could only work on A.W.’s
IEP goals to a very limited extent during her home instruction. The change of placement
deprived her of these opportunities. Finally, although there was evidence of progress on
A.W.’s IEP goals, this was not sufficient progress by the time this IEP year concluded.
Finally, the District argues that the IHO contradicted himself when he first determined
that home-based instruction was proper during the Stay-Put Hearing but then determined that
home-based instruction ultimately denied A.W. a FAPE. However, the SLRO correctly
points out that the IHO conducted a bifurcated hearing, creating a separate evidentiary
hearing for both determinations. The issue before the IHO at the Stay-Put hearing was an
interim issue and the issue presented to the IHO at the due process hearing was a final
determination. Tthe first issue regarding the Stay-Put hearing is entirely separate from the
determination of a FAPE.
Therefore, the SLRO did not err in concluding that A.W.’s 2012-2013 IEP denied her
a FAPE and the Court affirms the SLRO determination.
5. Assignment of Error 5: The SLRO erred in ordering that 125 hours of
compensatory education be provided to the Student. The SLRO’s compensatory
education is based on erroneous findings that FAPE was not delivered during the
home-based instruction, and thus it was error to order compensatory education
where the Student was not entitled to an award of compensatory education. The
SLRO’s decision is contrary to law and to the evidence adduced at the hearing,
and contrary to the SLRO’s own findings and conclusions.
Because the Court has already ruled that the home-based instruction did deny A.W. a
FAPE, the District’s assignment of error is without merit. “An appropriate award of
compensatory education is ‘relief designed to ensure that the student is appropriately educated
within the means of the IDEA.’” Bd. of Educ. of Fayette Cnty., Ky., v. L.M., 478 F.3d 307,
316 (6th Cir. 2007) (quoting Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d
1489, 1497 (5th Cir. 1994)). Therefore, awarding compensatory education for the FAPE
denial is appropriate.
A.W. argues that the SLRO erred in reducing the amount of compensatory education
awarded to A.W. The IHO awarded A.W. 234 hours but failed to articulate the basis for his
award. Therefore, the IHO award seems to be based on a mechanical formula. A.W.
correctly argues that an award of compensatory education based on a mechanical formula is
not per se inappropriate, an hour-by-hour mechanical approach is disfavored and the
appropriate way to determine an award for compensatory education is through a more flexible
approach. See Reid ex rel Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005).
Here, however, the IHO expressly stated that “the School and Parent agreed in their
December 14 Settlement Agreement upon compensatory education at the rate of two hours
per day. Although there was no evidence to establish how the parties arrived at the amount of
daily compensatory education, the IHO found that “compensatory education is an appropriate
remedy to address these 117 days when the Student was excluded from School.” (IHO
Decision pg. 115). The IHO gave two hours of compensatory education time for each day
A.W. missed due to her exclusions from school, thus arriving at 234 hours. The District
argues that the IHO’s calculation of two hours per day missed was taken from the Settlement
Agreement wherein the parties agreed to two hours per missed day. The District argues that
such an application is exactly the kind of mechanical formula disfavored by the Courts. A.C.
contends nothing in the administrative record supports such a conclusion.
The SLRO determined the IHO failed to articulate the basis for his calculation and
therefore, it appeared to be derived from applying a mechanical formula. The SLRO further
determined the IHO’s formula failed to discount the first ten days of suspension, which are
not considered to be a change of placement.
The SLRO stated “based on the facts of this case, there was insufficient evidence as to
the amount of hours that would ensure that Student is appropriately educated within the
meaning of IDEA.” (SLRO page 48). Because the IHO failed to provide an evidentiary basis
for his determination of compensatory hours, the SLRO looked to the amount of time the
District used for its home instruction program, which was six hours a week of one on one
home instruction, arriving at 125 hours.
The Court finds that, in the absence of an evidentiary basis for the IHO’s
compensatory education calculation, and because the IHO’s calculation failed to discount the
first ten days of suspension, the SLRO’s substitution and reduction based on the District’s
own practice of affording six hours a week was not error and the Court affirms the SLRO’s
compensatory education award of 125 hours. The Court further relies on precedent requiring
it defer to the educational expertise of the SLRO in determinations such as compensatory
A.W. further argues that she should be awarded compensatory education for the period
covered by her February 1, 2012 IEP because the IEP denied her a FAPE. However, the
Court has determined that A.W.’s 2012 IEP issues were resolved by the 2012 Settlement
Agreement. Therefore, A.W. is not entitled to additional compensatory education arising from
any alleged issues with the February 2012 IEP and the parties agreed to certain remedies,
including compensatory education as outlined in the Settlement Agreement.
Therefore the Court affirms the SLRO’s determination of 125 compensatory education
6. Although the SLRO reversed the IHO’s order refusing to enforce the Settlement
Agreement, the SLRO erred in disregarding and giving no weight to the
Settlement Agreement reached by the parties and the testimony concerning
District personnel’s ability to assess whether the Student’s behaviors constitute
social maladjustment and about how to proceed with respect to the Student’s
behaviors. In addition, the SLRO gave undue weight to the Parent’s expert
witness’ testimony and disregarded and gave no weight to the testimony of the
District’s expert witness on the issues of social maladjustment. The SLRO’s
Decision is thus inconsistent with her own findings and contrary to the law and to
the documentary record evidence and testimony adduced at trial.
The District withdrew this Assignment of error, but reserved it depending on Defendant’s
7. The SLRO erred by disregarding and giving no weight to the report and
testimony of the District’s expert witness, Dr. Sargent, and by affording undue
and improper weight to the testimony of Parent’s expert witness, Dr. Jensen. In
this respect the SLRO gave excessive and improper deference to the IHO’s
failure to give any weight at all to the testimony of the District’s expert witness on
any issues at all. The SLRO’s decision is contrary to law and the documentary
record evidence and testimony adduced at trial.
The District argues that the SLRO erred by disregarding and giving no weight to the
District’s expert witness, Dr. Sargent. However, the SLRO did not err in deferring to the
IHO’s credibility determination and the Court will not second guess that determination.
As previously stated, when reviewing the findings of both an IHO and a SLRO, the Court
must defer to the SLRO's decision. See Burlovich, 208 F.3d at 567 (citing Renner v. Bd. of
Educ. of Pub. Sch. of City of Ann Arbor, 208 F.3d 560, 641 (6th Cir.1999)). Additionally,
while the Court must give the SLRO deference in matters requiring educational expertise, the
Court will not “second guess” credibility determinations made by the IHO, who was best
situated to assess the credibility of testifying witnesses. B.H. v. W. Clermont Bd. of Educ.,
788 F.Supp.2d 682, 693, (S.D.Ohio 2011) (citing Bd. of Educ. of the City Sch. Dist. of the
City of Cincinnati v. Wilhelmy, 689 F.Supp.2d 970, 987 (S.D.Ohio 2010)).
Here, the IHO made a credibility determination and discredited the District’s expert, Dr.
Sargent. Under IDEA, the IHO has wide latitude in governing a due process hearing.
Therefore, it is within the IHO’s authority to make evidentiary rulings and decisions. See
Stancourt v. Worthington City Sch. Dist. Bd. of Educ., 164 Ohio App.3d 184, 205 (2005).
The IHO is well within his discretion to give weight to certain experts’ opinions and not to
give weight to the opinion of a different expert. The Court is not in a position to second guess
the IHO’s credibility determinations and therefore, must give the determinations of the fact
finder due deference. See Stancourt v. Worthington City Sch. Dist. Bd. of Educ., 841 N.E.2d
812, 823 (Ohio App.Ct. 10th Dist., Oct. 27, 2005).
Therefore, the determination of the IHO and the SLRO to discredit Dr. Sargent and to
weigh heavily on the expertise of Dr. Jensen is within the IHO’s and the SLRO’s discretion
and this Court will give them deference.
8. The SLRO erred in considering evidence and making findings of fact beyond the
2-year time period permissible under IDEA and/or beyond the scope of the
agreed-to Statement of Issues, and by failing to rule that the IHO erred in
allowing the introduction of such evidence.
The SLRO correctly concluded that the two-year statute of limitations is not an evidence
rule; rather it is a claim bar, meaning a party cannot bring a claim outside the two-year
limitation. §1415(f)(3)(C) states in pertinent part:
parent or agency shall request an impartial due process hearing within 2 years of the
date the parent or agency knew or should have known about the alleged action that
forms the basis of the complaint, or, if the State has an explicit time limitation for
requesting such a hearing under this subchapter, in such time as the State law allows.
The statute is intended to limit when a claim can be brought, not what can be
considered once a claim is brought. Therefore, §1415(f)(3)(C) is not a rule of evidence that
determines what can or cannot be considered, rather, it serves as a limitation dictating when a
claim can be brought to court. Additionally, the IHO is given latitude in conducting the due
process hearing, and it is within the IHO’s authority to make evidentiary rulings and
decisions. See Crisp v. Scioto Residential Serv., Inc., Scioto App. No. 03CA2918, 2004Ohio-6349, 2004 WL 2698436, at ¶ 14 (Generally speaking, “[a] hearing officer has broad
discretion in accepting and rejecting evidence and in conducting the hearing in general.”)
(citing Owens v. Adm. Ohio Bur. of Emp. Serv. (1999), 135 Ohio App.3d 217, 220, 733
N.E.2d 628; Nordonia Hills City School Dist. Bd. of Edn. v. Unemp. Comp. Bd. of Rev.
(1983), 11 Ohio App.3d 189, 190, 11 OBR 283, 463 N.E.2d 1276; Stancourt v. Worthington
City Sch. Dist. of Educ., 164 Ohio App. 3d 184, 205 (2005). It was within the IHO’s
discretion to allow evidence to provide helpful background in his consideration of the claims
that did arise in the two-year limitation period. Therefore, the Court affirms the IHO’s
allowance of evidence outside the two-year period.
9. The SLRO erred in failing to find that the IHO committed prejudicial error by
bifurcating the hearing, resulting in undue delay in providing services to the
Student and in the unnecessary and undue burden and expense upon the District.
The SLRO did not err when she determined that the IHO did not commit prejudicial error
by bifurcating the hearing. The SLRO correctly reasoned that the determination to bifurcate
the hearing was within the IHO’s powers. Further, the bifurcation affected both parties
equally in terms of delay of services and undue expenses. The District argues that it was not
only unfairly prejudiced because of undue expenses but also because there was delay in
determining what services they needed to provide to A.W. Again, this was in the purview of
the IHO’s determination and the Court affirms the IHO’s decision to bifurcate.
Student’s Assignments of Error
1. Assignment of Error 1: Due to an erroneous interpretation of the parties’
Settlement Agreement and the relevant time period, the SLRO erred by finding
that A.C. did not prove by a preponderance of the evidence that A.W.’s February
1, 2012 IEP denied her a FAPE.
a. The SLRO’s finding is based on a mistaken belief that A.C. amended her
due process complaint to include claims for the time period between
February 1, 2012 to August 27, 2012.
A.C. filed a Due Process Complaint in August of 2012 alleging the District failed to
provide a FAPE for A.W. when it incorrectly determined A.W. was ineligible for special
education services upon its reevaluation. A.C.’s Due Process Complaint sought to enforce
her IEP and to develop and implement an IEP that met A.W.’s needs. In December of 2012,
A.C. and the District entered into a Settlement Agreement wherein the parties agreed A.W.
would continue to be eligible for special education services, that A.W. would remain in her
current educational placement and that the District would retain a speech-language
pathologist and behavioral specialist to assess A.W. The District further agreed to provide
twenty-four hours of compensatory education and paid A.C .’s attorney fees. As a result,
A.C. dismissed all claims asserted in the Complaint.
However, in the action before the IHO, A.C. challenged the District’s failure to
implement an individualized behavior program that met her needs under either the February
2012 or March 2013 IEPs. A.C. argued that the District failed to provide a FAPE because the
District lacked sufficient behavioral intervention strategies reasonably calculated to allow
A.W. to obtain an educational benefit. The IHO agreed with A.C. and determined the 2012
IEP failed to provide a FAPE. In so concluding, the IHO described A.W.’s numerous
behavioral issues, suspensions and expulsions dating back to 2010 and included incidents
occuring in the 2011-2012 school year. The SLRO overturned the IHO’s finding insofar as it
applied to any FAPE issues predating the filing of the August 2012 Due Process Complaint.
The SLRO determined that the December 2012 Settlement Agreement resolved all claims
arising before August 2012.
On October 14, 2015, the Court ordered the parties to produce the Due Process
Complaint filed by A.C. on August, 27, 2012 because it was not a part of the administrative
record. On October 19, 2015, the parties submitted the Due Process Complaint. After
reviewing the August 27, 2012 Due Process Complaint, the Court finds that whether the
February 1, 2012 IEP provided A.W. a FAPE was not an issue directly raised by A.C. Rather,
in the Due Process Complaint A.C. argued that the February 1, 2012 IEP should be enforced
so that A.W. could fulfill her goals and objectives set forth in that IEP. Notably, nowhere in
the August 2012 Due Process Complaint does it allege that the February 1, 2012 IEP denied
A.W. a FAPE. Rather, the main claim set forth in the Due Process Complaint is the Spring
2012 reevaluation and determination that A.W. no longer qualified for services under IDEA.
A.C. agrees that the Settlement Agreement covered the time period running from
February 1, 2012 to the filing of the August 2012 Due Process Complaint. A.C. contends that
the SLRO erroneously applied the Settlement Agreement to cover the time period from
August 2012 to January 2013. During this time period the February 2012 IEP was still in
place, yet the Settlement Agreement expressly limits its applicability to claims arising before
August 2012. The IHO determined that the February 2012 IEP failed to provide A.W. a
FAPE because her numerous misconduct violations, suspensions and expulsions clearly
indicated A.W. was not progressing toward achieving her behavior goals set forth in the
February 2012 IEP. The SLRO reversed the IHO, finding that “the Settlement Agreement has
impact concerning facts that preceded it and facts going forward. Because it resolved all facts
raised in Parent’s August 2012 Complaint, it is reasonable to conclude that Parent’s August
2012 Complaint included any issues parent had with prior IEPs and the provision of FAPE
before that date and for the two years prior to that date.” (SLRO decision pg 31). While the
SLRO determined that certain issues arising from A.W.’s removals were not subject to the
Settlement Agreement, she concluded that the Settlement Agreement resolved FAPE issues
concerning A.W.’s 2012 IEP.
The Court agrees with the reasoning of the SLRO that the Settlement Agreement
resolved FAPE issues arising from the February 2012 IEP. Although the August 2012
Complaint does not include the claim that A.W.’s February 1, 2012 IEP denied her a FAPE,
the language of the Settlement Agreement specifically refers to the settlement of “all
outstanding claims asserted by [A.W.] and Ms. Crosby in the Complaint,” and the settlement
agreement addressed A.C.’s desire to “develop an IEP that meets [A.W.’s] unique needs.”
The District agreed to implement recommended services by a behavioral specialist after an
assessment of A.C. and to have a formal speech and language assessment of A.C. and
implement any recommendations arising from the assessment. Both would then be included
in a modified IEP. The Settlement Agreement included compensatory education hours, the
development of a behavioral intervention plan and contained an agreement that A.C. stay in
her current educational placement.
The SLRO determined that “ because the Settlement Agreement resolved all issues
prior to the filing of the original due process complaint on August 27, 2012, it was error for
the IHO to find that the February 1, 2012 IEP did not provide FAPE.” (SLRO page 42). The
SLRO defined the timeline at issue in the 2013 Due Process Complaint from August 24,
2012, the date of the first Due Process Complaint, to March 11, 2013, the date of the second
Due Process Complaint. The Settlement Agreement contained the agreement of the parties
that A.W.’s 2012 IEP would remain in effect through February of 2013, evidencing the
parties intent that the Settlement Agreement resolved any issues A.C. had with the 2012 IEP.
A.C. asserts that the Settlement Agreement has no bearing on issues arising after the
August 2012 Due Process Complaint as per the plain language of the Settlement Agreement.
The SLRO acknowledged as much, holding that the terms of the Settlement Agreement
narrowed the scope of the FAPE issues to only those arising from the October suspension up
until the filing of the March 2013 Due Process Complaint. Thus, the SLRO overturned the
IHO’s 2012 IEP determination insofar as it relied on issues arising prior to August 2012. The
SLRO reviewed the post-August 2012 disciplinary actions determining the October and
March expulsions denied A.W. a FAPE but held that Settlement Agreement resolved any
generalized complaints on the adequacy of the 2012 IEP; particularly because the Settlement
Agreement addressed A.C.’s FAPE concerns and expressly called for revisions to the IEP
based on agreed upon behavioral and speech assessments.
Therefore, the Court affirms the decision of the SLRO that the Settlement Agreement
resolved all issues concerning the February 2012 IEP, with the exceptions as noted.
b. The February 1, 2012 IEP was not reasonably calculated to enable A.C. to
receive an educational benefit and it therefore denied her a FAPE.
Because the Court agrees with the SLRO that the December 2012 Settlement
Agreement resolved all FAPE issues prior to August 2012 as discussed above, this objection
2. Assignment of Error 4: The SLRO erred by reducing A.W.’s compensatory
See Court’s holding in discussing District’s Assignment of Error 5.
3. Assignment of Error 3: The SLRO erred by failing to order Maple Heights to
pay for an out-of-district placement for A.W.
Both the IHO and the SLRO determined that the District could provide A.W. a FAPE
going forward and thus denied A.W.’s request to have the District fund A.W.’s out-of-district
placement. Placement in a private school is not proper unless that placement provides, at a
minimum, “special education services in which the public school placement was deficient.”
Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 (6th Cir. 2003). Additionally, a school is
not required to take on such a substantial burden of funding private education if there is no
evidence in the administrative record indicating that the school is unable to provide FAPE to
a student “going forward.” Woods ex rel. Woods v. Northport Public Sch., 487 Fed. Appx.
968, 980 (6th Cir. 2012).
The SLRO correctly determined that the record does not support the assertion that the
School is incapable of providing A.W. a FAPE going forward. Here, the IHO and SLRO
declined to order private placement because the parents did not prove that the District was
unable of providing a FAPE going forward. Rather, the SLRO determined that “the evidence
shows that the District has the capability of offering Student an appropriate IEP and a
meaningful educational program that complies with the procedural requirements of IDEA.
There was evidence that she was capable of making progress in the District.” (SLRO
Decision page 52). The SLRO noted that A.C. was observed on many occasions to be
focused on her work and was able to maintain her emotional stability. Because the parent did
not prove by a preponderance of the evidence that the School was incapable of providing a
FAPE going forward, the Court affirms the IHO and SLRO’s denial of private placement.
4. The SLRO erred by finding that the IHO misapplied the law of the “knowingly”
requirement in IDEA’s special circumstances provision.
See District’s Assignment of Error 1 & 2.
Therefore, for the foregoing reasons, the Court affirms the decision of the SLRO in all
respects on all objections raised by the District and Parent.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: June 27, 2016
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