Barney v. Akron Board of Education
Memorandum of Opinion and Order For the reasons set forth herein and those that have been articulated in the memorandum of points and authorities on which Appellee relies, Appellee's Motion for Judgment on the Administrative Record (ECF N o. 32 ) is granted, and the Court affirms the determinations of the state level review officer and impartial hearing officer regarding the lack of substantive and procedural violations of the Individuals with Disabilities Education Act. Judge Benita Y. Pearson on 9/22/2017. (JLG)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
AKRON BOARD OF EDUCATION,
CASE NO. 5:16CV0112
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION
[Resolving ECF No. 32]
Appellant Dalaina Barney (“Parent”) filed a Due Process Complaint (ECF No. 1-3)
against Appellee Akron Board of Education (the “Board”), on behalf of her child J.B.
(“Student’), under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 14001482. At the time of the filing of the Due Process Complaint (ECF No. 1-3), Student was in
third grade and attended Akron Public Schools (the “District”). This case is before the Court on
appeal from a decision of the state level review officer (“SLRO”). The Court has been advised,
having reviewed the record (including ECF Nos. 26 -1, 26 -2, 26 -3, 26 -4, 26 -5, and 26 -6), the
parties’ briefs (ECF Nos. 31,1 32, and 33), and the applicable law. For the reasons set forth
below, the Court affirms the SLRO’s decision.
ECF Nos. 31 and 32-1 are the same document. Appellant filed her brief (ECF
No. 31) under seal. Therefore, the Board responds to the brief that was emailed by
Appellant to the Board on August 26, 2016. See Electronic Filing Policies and
Procedures Manual (Dec. 1, 2016) at 9 ¶ 19.
I. Procedural Background
On December 15, 2014, a Due Process Complaint (ECF No. 1-3) was filed by Student’s
parents, Delaina and Lester Barney. The complaint was received by the Ohio Department of
Education on December 17, 2014 and an impartial hearing officer (“IHO”) was assigned. The
factual allegations of the complaint are that Student was denied free and appropriate public
education (“FAPE”) because: the District did not provide an adequate individualized education
plan (“IEP”) or evaluation team report (“ETR”) for Student; Student had poor academic success
because the IEP was not properly implemented; Student was not educated in the least restrictive
environment (“LRE”) and was segregated from other students during lunch; the District did not
prevent bullying of Student; the District did not provide the services and protections necessary to
prevent severe allergic reactions; the District did not provide Student with medicine for his
peanut allergy when instructed; and Student was suspended for 10 days without a Manifestation
Determination hearing.2 Finally, the complaint alleges Parent moved Student to a new school to
assuage her fears for his safety.
Parents sought relief in the form of extended school year (“ESY”) services, a safe
learning environment, peanut allergy protocols for the District, compensatory education, and
education in the LRE for Student.
Appellant dropped this issue on appeal to the Court.
The IHO conducted a hearing over several days, and testimony was taken on February 18,
19, 25, and 26, 2015.3 At the conclusion of the presentation of evidence, the Board moved for a
directed verdict on all issues. The IHO granted a directed verdict on three (3) issues, finding that
Appellant did not prove by a preponderance of the evidence: that Student’s IEP was inadequate,
that Student’s placement was not the LRE, and that Student was entitled to a Manifestation
Determination Hearing. Petitioners filed a Motion for Reconsideration and a Motion for
On June 11, 2015, the IHO issued her decision concluding that she properly granted the
Board’s Motion for Directed Verdict, and on the remaining issues, finding that Petitioners did not
prove any of their claims by a preponderance of the evidence.
Petitioner-Appellant appealed the decision of the IHO to the SLRO. After reviewing the
record, the SLRO issued a Final Decision and Order on November 9, 2015, affirming the
decision of the IHO. The SLRO found that the IHO was not biased and the Parents received a
fair and impartial hearing.
In December 2015, Appellant filed a Notice of Appeal (ECF No. 1-1) seeking review of
the SLRO’s decision in the Summit County, Ohio Court of Common Pleas, being Case No. CV2015-12-5779. Appellee removed the case to this Court on January 19, 2016, on the basis of
federal question jurisdiction. See Defendants’ Notice of Removal (ECF No. 1) at PageID #: 2, ¶
3). Appellee then filed a Motion for Judgment on the Administrative Record (ECF No. 32),
The hearing concluded on March 25, 2015; no testimony was taken on that day.
which is now before the Court.4 On appeal, Appellant challenges the adequacy of the 2014 reevaluation, the adequacy of the 2013-2014 IEP, and the adequacy of the 2014-2015 IEP. ECF
No. 32-1 at PageID #: 1113, 1122. Appellant alleges the re-evaluation was late and did not
consider all the necessary data, the District did not properly address Student’s peanut allergy, and
Parent was denied an opportunity for meaningful input. ECF No. 32-1 at PageID #: 1113-18.
Appellant also alleges that the failure to reconvene the IEP team to address bullying, and the
failure to consider ESY services are violations of the IDEA. ECF No. 32-1 at PageID #: 112021. In regards to the IEPs, Appellant argues they were procedurally defective, Student’s goals
were not appropriate, the IEP teams failed to address Student’s transiency, and Student was not
educated in the LRE. ECF No. 32-1 at PageID #: 1122-26.
II. IDEA Overview
A. Statutory Framework
The purpose of the IDEA is to guarantee children with disabilities access to FAPE. 20
U.S.C. § 1400(d)(1); See Burilovich v. Bd. of Educ. of Lincoln Consol. Sch., 208 F.3d 560, 565
(6th Cir. 2000). The term FAPE is defined in 20 U.S.C. § 1401(9) as special education and
related services that “(A) have been provided at public expense . . . ; (B) meet the standards of
the State educational agency; (C) include an appropriate . . . education in the State involved; and
During the Telephonic Status Conference held on March 30, 2016, the Court
was informed by counsel that many of the demands set forth in Appellant’s Settlement
Demand had been resolved. Order (ECF No. 21) at PageID #: 212. At that time, only
two issues were unresolved.
(D) are provided in conformity with the individualized education program under [20 U.S.C. §
The Sixth Circuit summarized the framework of the IDEA in Knable ex rel. Knable v.
Bexley City Sch. Dist., 238 F.3d 755, 762-63 (6th Cir. 2001). In exchange for federal funding,
the state must identify, locate, and evaluate “[a]ll children with disabilities residing in the State
. . . and who are in need of special education and related services. . . . ” 20 U.S.C. §
1412(a)(3)(A). See Knable, 238 F.3d at 762.
B. Relief under the IDEA
Parents who disagree with the appropriateness of an IPE may seek relief under the IDEA.
Parents begin by filing a due process complaint with the school district, followed by a due
process hearing conducted by an IHO. 20 U.S.C. § 1415(f). Any party aggrieved of the findings
may appeal the result of the hearing to an SLRO. 20 U.S.C. § 1415(g). Finally, any party
aggrieved by the findings of the SLRO may bring an action in any State court of competent
jurisdiction. 20 U.S.C. § 1415(i)(2)(A).
The party requesting a hearing under the IDEA cannot raise any issues that were not
raised in the due process compliant, unless the opposing party agrees5. 20 U.S.C. § 1415 (f)(3).
At the hearing before the IHO and SLRO, the issue of the Board’s failure to
produce records was raised. This issue was not in the Due Process Complaint (ECF No.
1-3) and was, therefore, improperly before the administrative review officers. ECF No.12 at PageID #: 41. Both the IHO and SLRO addressed this issue in their final orders, but
as the issue was not properly raised in the due process complaint it is not addressed here.
Furthermore, the Court has previously lamented, Appellant’s counsel was given the
opportunity to review the Board’s files but did not take advantage of the opportunity.
ECF No. 21 at PageID #: 213.
The due process hearing must be requested within two years of when a “parent or agency knew
or should have known about the alleged action that is the basis of the complaint.” Id. The only
exceptions to the two-year statute of limitations are if there was a misrepresentation by the local
agency that the problem had been resolved, or if the agency was withholding information from
the parent that was required under 20 U.S.C. § 1415.
III. Findings of Fact
Findings of fact and conclusions of law are based on an examination of the record, and
any additional evidence submitted to the Court. Deference is given to the IHO on credibility
assessments as the IHO is in the best position to judge the credibility of testifying witnesses.
Maple Heights City Sch. Bd. of Educ. v. A.C., etc., No. 1:14CV1033, 2016 WL 3475020, at *5
(June 27, 2016) (Boyko, J.) (citing B.H. v. W. Clermont Bd. of Educ., 788 F. Supp.2d 682, 693
(S.D. Ohio 2011)).
At the time of the due process hearing, Student was eight years old and was enrolled as a
third-grader in the Akron Public Schools. Student suffers from ADHD and a severe peanut
allergy. Tr. 44.6 Student was initially enrolled in Akron Public Schools as a preschooler. Board
The Ohio Department of Education submitted for filing the complete record of
the administrative proceedings in this case. The record is voluminous (contained in a
box) and, for that reason, was not be electronically filed. Due to the private nature of
much of the information contained in the record, the Court ordered that the entire
administrative record be sealed. Order (ECF No. 10).
Ex. 6.7 At the time of the 2013-2014 IEP, Student was enrolled at Leggett. Board Ex. 11, p.3.
On February 24, 2014, Student transferred to Glover, and on September 8, 2014, Student
transferred to Crouse Elementary. Board Ex. 6. Multiple moves can negatively impact a
student’s progress under any IEP. Student, in this case, moved schools multiple time. Tr. 75,
135-36, 305, 405-406, 467, 939-40.
A. 2013-2014 IEP
At the time of the 2013-2014 IEP, Student was in second grade at Leggett. The IEP team
met on November 18, 2013. Board Ex. 11 at 1, 3. Parent was present and participated in the
team meeting. Megan Nye, who was the occupational therapist on the IEP team, drafted the
occupational therapy goal and explained the reasoning behind the goal to Parent. Board Ex. 11 at
2. No one on the team disagreed with the goal. Tr. 130-32. The team determined that ESY
services were not necessary. Board Ex. 11 at 11. It also determined that the LRE for Student
was for him to spend part of his day in the resource room (21 to 60% of his time per week).
Board Ex. 11 at 1.
The IEP set out five goals: Numbers & Operations, Sight Recognition, Written
Comprehension, Listening & Speaking, and School-based therapy. Board Ex. 11 at 4-8. Each
goal had measurable Benchmarks and objectives and required frequent progress reports be given
to the parents. Id. The IEP had the date of mastery designated as November 17, 2014. Id.
The Court appreciates that the Ohio Department of Education provided a copy
of the complete record of the administrative proceedings on disk. The electronic version
of both the Board of Education Exhibit List binder and Petitioner’s Exhibit List binder
does not, however, identify either where an exhibit begins or ends.
Parent signed the IEP and did not object to the goals. Board Ex. 11 at 14. The IEP indicated that
a copy of the IEP had been given to Parent, along with a copy of the Procedural Safeguards
Notice. A copy of the IEP was also sent to Parent on November 19, 2013. Id.
B. 2014 Reevaluation
The ETR determines Student’s eligibility for special education and related services, but
does not determine what services are to be provided. Tr. 103-104. The data reviewed for the
ETR included an updated IQ assessment, academic assessments, updated patient information,
data gathered from the intervention specialist, and an evaluation of adaptive behavior. Tr. 30.
The school psychologist, Heather Betham, also performed several evaluation tests. Betham has a
education specialist degree in school psychology, a bachelor’s in education, and a masters in
school psychology. Tr. 30.
Student was tested on the Vineland2, which measures adaptive behavior. Student scored
in the low range indicating he needed more assistance throughout the school day. Tr. 36.
Student was also tested on the Woodcock Johnson III Edition Tests of Achievement, which
measures academic skills; the Wechsler’s Independent Achievement test, which measures early
reading skills; and, the Woodcock Johnson III Edition Tests of Cognitive Abilities, which test
general intelligence. Tr. 36-38. Student was also scored in verbal and thinking ability. Id.
During the ETR period, Student reported injuring his head during a bicycle accident. All
testing, except for the speech evaluation, was completed prior to the reported head injury. Tr. 40,
893. On or about July 21, 2014, Student received a neuro-psychological evaluation at Akron
Children’s Hospital, as a result of the reported head injury. Petitioner Ex. 4 at 23. The report
states that the “[possible][worsening of attention and behavior] is expected to resolve but
[Student] will have ongoing disabilities due to the way his brain developed.” Id. The evaluator
went over the report with the mother for three hours. The mother was unable to explain some of
the data in the report, but could understand the language with the evaluator’s explanation. Tr.
839-40. As a result of the July 21st evaluation, Student was placed on Ritalin. Tr. 890-91.
Student was assessed by his intervention specialist on the Connors 3-T(S), which gives a
quick assessment of hyperactivity and impulsivity. Student’s scores were consistent with his
diagnosis of ADHD. Tr. 47-48. Student was given academic assessments by his teachers, which
were consistent with his level of independent functioning within the academic setting. Tr. 55-56.
Math was noted as one of his strengths. Tr. 65. The ETR indicated Student was eligible for an
IEP, language therapy, and occupational therapy. Board Ex. 9. The District offers after school
reading programs, which are available to all students regardless of disability. Tr. 80. Parent did
not register Student for a program because she does not have transportation to get him home at
4:00 p.m. Student has been provided with transportation to school because of his asthma. Tr.
854-55. The ETR states that Student has severe allergies and that an EpiPen is kept at school.
Tr. 91-92, Board Ex. 9.
An ETR meeting was held on May 23, 2014 to discuss the results of the evaluation.
Board Ex. 9. Parent was present during the planning process and the meeting on May 23rd.
Tr. 72. Parent had previously given consent for the reevaluation on March 12, 2014. Id. Parent
filled out a parent questionnaire that specifically asked about bullying and she did not indicate
any concerns. Parent never reported any bullying to the principal at Crouse Elementary. Tr. 88,
930-31. At the end of the evaluation, Parent signed the report and checked the box that indicated
she “agree[d]” with the conclusion of the report. Tr. 89; Board. Ex. 9 at 28.
C. 2014-2015 IEP
Patricia McCluskey is the primary intervention specialist at Crouse Elementary, and has
worked there for 19 years. Ms. McCluskey was a member of Student’s 2014-2015 IEP team. Tr.
243. Megan Nye, an occupational therapist, and has been employed by the District for 13 years.
Ms. Nye was a member of the 2013-2014 IEP team while Student was at Leggett and was also a
member of Student’s 2014-2015 IEP team at Crouse. Tr. 107, 117, 139-40, Board Ex. 11. Ms.
Nye has not been specifically trained in the use of an EpiPen, but she is aware of how to use it.
Tr. 114. Theresa Hudson was Student’s third grade teacher at Crouse. Mrs. Hudson has been a
teacher for 24 years, and has worked at Crouse for 22 years. Mrs. Hudson was also a member of
Student’s 2014-2015 IEP team. Tr. 340.
The IEP determines day to day instruction and includes accommodations for testing and
transportation. Tr. 78, 981. There was an IEP team meeting on November 7, 2014. Ms.
McCluskey picked up and dropped off Parent, so she could attend the meeting. Tr. 300. Ms.
Nye had collected data throughout the previous year to assist with setting objectives and goals.
Ms. Nye also drafted the occupational therapy goal and explained the reasoning to Parent. No
one on the team disagreed with the goal. Tr. 130-32. A draft of the proposed IEP was brought to
the meeting for the team to discuss, including Student’s mother. Tr. 247. A draft of the IEP is
often provided to the parents before the meeting to facilitate discussion. Tr. 293. The IEP team
reviewed all goals and supporting data with Parent. Tr. 295. Parent was an active participant
during the team meeting. Tr. 300.
The IEP team also determined what related services, if any, would be necessary. The IEP
team determined a van would be provided to take Student to school. Tr. 981. ESY services are
offered for students who regress over the summer. Tr. 253. ESY services are determined at the
end of the school year by the IEP team based upon current data. Tr. 125. The IEP team
discussed ESY services, but determined they should not be offered to Student at that time, as he
was progressing in his IEP goals. Tr. 323-24, 303-304. Extracurricular activities at the school
are offered to all students regardless of their disability, and were similarly available to Student.
The staff at Crouse did not report any behavior issues with Student. Tr. 301, 384-85;
Board Ex. 8. This was a change from the behavior reported on the ETR and after Student was
prescribed Ritalin. Tr. 385-86. Parent did not ask for any accommodations at the 2014-2015 IEP
meeting. Tr. 884-885. Parent received a copy of “Whose Idea is This, a Guide for Parents” at
the IEP meeting. Tr. 882. Parent signed the IEP in the box that indicated “I agree with the
implementation of this IEP,” and not the box “I am signing to show attendance, but do not agree
with the Special Ed and related services specified.” Tr. 880-81; Board Ex. 7 at 195.
Student made progress on his IEP goals during his time at Crouse. Tr. 349-50. When
Student first started at Crouse, Student knew about 10 basic vocabulary words. Tr. 298. By the
time Student left, he had mastered 16 to 20 words. Tr. 299. Student had also advanced from a
“B” reading level to a “C” level and was trying to progress to a “D” level. Tr. 377.
Prior to the filing of the Due Process Complaint (ECF No. 1-3), no complaints or
concerns were expressed by Parent regarding the implementation of the IEP or the need for
additional services. Tr. 941.
D. Peanut Allergy
As earlier stated, Student has a severe peanut allergy. Tr. 44. Prior to September 30,
2014, Student had one allergic reaction at school, that occurred while he was in pre-school. Tr.
877. Student is knowledgeable about his allergy and has an Allergy Action Plan (the “Plan”)
prepared by Akron Children’s Hospital. Tr. 98; Board Ex. 3 at 1. Student does not have a 504
Plan under the Rehabilitation Act of 1973. Tr. 258. A copy of the Plan was provided to
Student’s teacher and she put it on her bulletin board. Tr. 360-61. The principal also gave the
staff a list of names of children with allergies. Tr. 924.
The school’s policy is to send the child to the health aide if the child appears to be having
an allergic reaction. Tr. 947-48. The school health aide, Elizabeth Reed, is an employee of
Akron Children’s Hospital and is a state registered nurse’s aide. Tr. 1002,1021. The school also
employs a school nurse, who provides nursing services for special needs students. Tr. 1074-75.
Student was not the only student in the third-grade class with a peanut allergy. Tr. 206.
A sign indicating a peanut allergy was placed inside Student’s classroom, as well as in the
intervention specialist room. Tr. 261, 359, 1007-1008. The intervention specialist also has a
posting in her room providing information about what to do in emergency situations, including
anaphylactic shock. Tr. 290-91. Signs were also placed outside other classrooms that had
students with peanut allergies. Tr. 262, 1008. All of the third grade classrooms were adjacent to
each other in the same hallway on the second floor. Petitioner’s Ex. 9.
Parents are required to provide to the school any medication their child needs. The
school cannot provide medication without a parent completing the necessary forms and providing
the medication. Tr. 460-61, Board Ex. 12. Parent provided an EpiPen, Ritalin and an inhaler to
the school. Tr. 91-92, 1003. Ms. Reed tried to reach out to Parent several times to have her
bring Benadryl, as the EpiPen is only used if the child is experiencing a life-threatening injury.
Tr. 579, 1004. The EpiPen was stored in a locked cabinet. Tr. 1032, 1088. The principal, health
aide, and food service aide are all trained to use an EpiPen. Tr. 953-54, 957. Student’s Plan does
not require a medical opinion or specialized training. Tr. 580.
In 2012, Parent submitted a letter from Dr. Rajeev Kishore to one of the schools Student
attended. The letter contained a list of recommendations for the school on becoming nut free.
Board Ex. 3 at 5. The District made its best efforts to implement the precautions. Tr. 967. The
director of special education, however, called Dr. Kishore because she was concerned the
recommendation that allergy medications not be locked up was a violation of Ohio law.
Tr. 1092. The director understood this to be a letter with recommendations only that was sent to
all of Dr. Kishore’s patients. Id. Dr. William Smucker reviewed the recommendations and
indicated he would not be against them, but he didn’t know how plausible they would be. Tr.
559, 565, 567.
Crouse provides its students with a free breakfast and lunch program of which almost all
of the students partake. The third graders, such as Student, are served breakfast in their
classrooms, and a breakfast cart comes to their hallways. Tr. 262-63, 266-67. No other food is
allowed in the classroom and Student eats lunch in the cafeteria. Tr. 354. No one in Mrs.
Hudson’s class packs their own lunch. Tr. 375. Student eats lunch with several friends who do
not eat peanuts, and the table is wiped off and cleaned before Student gets his lunch. Tr. 682,
Crouse serves the same items every weekday. On Tuesdays, the school serves bagels for
breakfast. The menu is bagel, cream cheese, peanut butter, margarine, jelly, fruit, and milk. Tr.
271-356. The peanut butter is in individually sealed containers. Id. When Student was at
Crouse, the principal instructed the food servers that peanut butter containers should not be sent
to the second floor. Tr. 925. Each student picks what they want from the breakfast cart and then
takes it back to their classroom to eat. Breakfast is served between 8:00 a.m. and 8:30 a.m. Tr.
357. After breakfast, the teachers wipe down the classroom tables. Tr. 925.
E. September 30, 2014
On Tuesday, September 30th, the breakfast cart was sent to Student’s hallway with the
peanut butter containers. Tr. 397. Upon discovering the error, Ms. McCluskey, the intervention
specialist, called Parent to ask if it would be alright for Student to eat breakfast in Ms.
McCluskey’s office that morning. Tr. 275. After Ms. McCluskey was unable to get in touch
with Parent, she called Student’s grandfather, who agreed Student should eat with Ms.
McCluskey in her office. Tr. 273, 309. After breakfast, while Student went to his first class of
the day, the third grade teachers cleaned their rooms with Clorox wipes. Tr. 273-75, 365-66.
Later in the day, Student’s mother called Mrs. Hudson to check on Student. Tr. 373-74,
388. Mrs. Hudson told Student’s mother that she observed a small red dot under Student’s eye.
Tr. 374. Mrs. Hudson observed no signs of facial swelling, but sent Student to Ms. Reed’s office
as any rash had to be reported. Tr. 374, 419. Student’s mother said she would come by the
school after a doctor’s appointment to check on Student.
Student went to Ms. Reed’s office around 11:00 a.m. to get his daily dose of Ritalin.
While he was there, Ms. Reed observed the small red dot. Tr. 1010,1039. The dot was not
raised and Ms. Reed concluded it was not an allergic reaction. Tr. 1047. Student was not
exhibiting any symptoms of an allergic reaction and appeared totally normal. Tr. 1009-1010,
Student’s mother arrived at the school around 11:30 a.m. and asked for Student to be
brought to Ms. Reed’s office. Tr. 1011. When Student arrived, his mother gave him a dose of
some liquid that was in her purse. Tr. 1013. Student’s mother asked Ms. Reed to administer the
EpiPen to Student. Ms. Reed declined and explained the EpiPen should only be used in lifethreatening situations. Tr. 1055, 1064. Ms. Reed disagreed with Parent that anything was wrong
with Student. Student’s mother then asked the secretary in the next office to call 9-1-1. Tr.
1014. Student’s mother did not disclose what liquid she had given to Student, she did not ask
Ms. Reed to give her the EpiPen, she did not administer the EpiPen herself, and she did not call
9-1-1 herself. Tr. 970, 1046, 1056.
The Principal, Mrs. Harper-Brooks, who had a good relationship with Student’s mother,
came to Ms. Reed’s office. Tr .931. The Principal did not believe that 9-1-1 needed to be called,
but when Student’s mother said she wanted to go to the hospital, Mrs. Harper-Brooks offered to
drive her there. Tr. 934. Mrs. Harper-Brooks drove Student and his mother to the emergency
room at Akron Children’s Hospital, where Student’s father met them. Tr. 823, 936. The
Principal left without entering the building. Tr. 823. Student did not return to school until
Monday, October 6, 2014. Board Ex. 21. Parent brought a note from a nurse practitioner that
stated “[Student] was seen in my office on 10/1/2014 at 2:30 PM.” Under the typed statement
was a handwritten note that said “Pt to be out till Mon Oct.6.” Board Ex. 21. Dr. Smucker
reviewed the note and opined it was unclear why the nurse practitioner would recommend that
Student not return to school until October 6th. Tr. 575. When Student returned to school on
October 6, 2014, Student’s mother also brought some Benadryl and additional Ritalin pills to
keep in the clinic. Tr. 782, 1016.
On November 7, 2014, Student was removed from Crouse. Tr. 1018. Student moved to
Leggett on November 10, 2014. When McCluskey found out, she contacted the intervention
specialist at Leggett to discuss Student. Tr. 292.
IV. Standard of Review
Parent alleged in her Due Process Complaint (ECF No. 1-3) that Student was denied
FAPE by the District for a multitude of reasons discussed below. As the mother is the party
challenging the provision of FAPE, she has the burden of proving by a preponderance of the
evidence that the Board did not comply with the requirements of the IDEA. See Schaffer ex rel.
Schaeffer v. Weast, 546 U.S. 49, 51 (2005).
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)(C).
The Supreme Court has given a two part test for courts to use when reviewing an IDEA
claim. “First, has the State complied with the procedures set forth in the [IDEA]? And second,
is the [IEP] developed through the [IDEA’s] procedures reasonably calculated to enable the child
to receive educational benefits?” Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v.
Rowley, 458 U.S. 176, 206-207 (1982) (footnotes omitted). The Court must strictly review the
IEP process for procedural compliance, but a mere technical deviation will not necessarily
invalidate the IEP. Dong ex rel. Dong v. Bd. of Educ. of Rochester Cmty. Sch., 197 F.3d 793,
800 (6th Cir. 1999). A school district’s determinations are given greater deference when the
procedural requirements of the IDEA are met. Dong, 197 F.3d at 800 (citing Tucker ex rel.
Tucker v. Calloway Cnty. Bd. of Educ., 136 F.3d 495, 502 (6th Cir. 1998).
When reviewing substantive violations, the Supreme Court has held a reviewing court
should make an “independent decision[ ] based on a preponderance of the evidence.” Rowley,
458 U.S. at 205 (quoting S. REP. No. 94-455, at 50 (1975) (Conf. Rep.)). However, courts
should not “substitute their own notions of sound education policy for those of the school
authorities which they review,” instead the courts must give the administrative findings their due
weight. Rowley, 458 U.S. at 206. Administrative findings are given more weight “on matters for
which educational expertise is relevant.” McLaughlin v. Holt Pub. Sch. Bd. of Educ., 320 F.3d
663, 669 (6th Cir. 2003) (citing Burilovich, 208 F.3d at 567). The district court will review the
administrative findings under a “‘modified’ de novo” standard, where the 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, 238 F.3d at 764 (citing Tucker, 136 F.3d at 503).
A. Additional Evidence
The Sixth Circuit has taken the expansive view that additional evidence may be added to
the administrative record, as long as it “is necessary for consideration of whether the original IEP
was reasonably calculated to afford some educational benefit.” Deal v. Hamilton Cty. Bd. of
Educ., 392 F.3d 840, 850 (6th Cir. 2004) (citing Metro. Bd. of Public Educ., Metro. Gov’t v.
Guest ex rel. Guest, 193 F.3d 457, 463 (6th Cir. 1999)). “The determination of what
is‘additional’ evidence must be left to the discretion of the trial court.” Metro. Gov’t of Nashville
and Davidson Cty, Tenn. v. Cook, 915 F.2d 232, 234-35 (6th Cir. 1990) (quoting Town of
Burlington v. Dep’t of Educ. for Com. of Mass., 736 F.2d 773, 791 (1st Cir. 1984)). Appellant
submitted a Motion to Supplement or Add Evidence to the Administrative Record (ECF No. 26).
The Board did not oppose the motion. On March 9, 2017, the Court granted the motion in part,
allowing Appellant to add six exhibits to the record (ECF Nos. 26-1, 26-2, 26-3, 26-4, 26-5, and
26-6). Order (ECF No. 35) at PageID #: 1191.
B. Alleged Violations of the IDEA
1. The reevaluation was adequate and considered the necessary information
The District’s reevaluation of Student was not delayed, and considered all of the
information that was necessary to properly evaluate the needs of Student. The Board is required
to reevaluate a child at least every three years and not more than once a year, unless the parents
agree to the reevaluation. 20 U.S.C. § 1414(a)(2). Student was reevaluated in 2014 per the
statutory guidelines, and with Parent’s permission. Board Ex. 9; Tr. 72. The local agency must
obtain informed consent from the parent before conducting any reevaluation of Student. 20
U.S.C. § 1414(c)(3). Parent did not give her permission until March 12, 2014. Tr. 72.
When conducting a reevaluation, the IEP team will review existing data about the student
including: state or local classroom-based assessments, evaluations by teachers, and any outside
evaluations or information provided by the parent of the child. 20 U.S.C. § 1414(c)(1). From the
data the IEP team will determine: whether or not the child continues to qualify for disability
services, what the child’s current level of academic achievement is, and what related services, if
any, should be provided to the child. 20 U.S.C. § 1414(c)(1)(B). If the IEP team is unable to
determine the goals in paragraph (1)(B), then the local education agency will “administer such
assessments and other evaluation measures as may be needed to produce the data identified by
the IEP Team under paragraph (1)(B).” 20 U.S.C. § 1414(c)(2).
The District used a variety of technically sound instruments to make an accurate
assessment of Student. 20 U.S.C. § 1414(b); Tr. 36-38, 55-56. The IEP team was able to
determine that Student did continue to qualify for special education services, Student’s current
level of academic achievement, and what related services should be provided to Student. The
ETR determined Student was eligible for an IEP, language therapy, and occupational therapy.
Board Ex. 9. The IEP team was also able to determine Student’s current level of academic
achievement and set appropriate goals that Student made progress on. Tr. 55-56, 65, 298, 299,
349-50, 377. The IEP team discussed related services such as ESY, and determined it should not
be offered to Student at the time. Tr. 323-24, 303-04.
Parent was present during the planning of the evaluation. Tr. 72. Parent also filled out a
questionnaire as part of the evaluation. Tr. 88. The ETR was conducted and an ETR team
meeting was held on May 23, 2014 to discuss the results of the evaluation. Board Ex. 9. Parent
did not raise any objections until the filing of the Due Process Complaint (ECF No. 1-3). Board
Ex. 11 at 14; Board Ex. 7.
2. The IEP was appropriate and properly implemented
Appellant alleges that the IEP developed by the District is not appropriate. However, at
each stage of the present litigation, Appellant alleges different reasons for the inadequacy of the
IEP. In the Due Process Complaint, Appellant merely alleges the IEP is inadequate and was not
properly implemented. ECF No. 1-3 at PageID #: 51-53. In Appellant’s brief to the IHO, she
alleges the IEP was not properly implemented because Student did not receive individualized
instruction in all areas, and Student was not provided with the necessary accommodations, such
as a wiggle seat, multiplication chart, and modified homework. ECF No. 1-4 at PageID #: 81. In
Appellant’s appeal to the Court, she alleges that the IEP was inadequate because it was defective
on its face, the goals were not being met, it did not address Student’s transiency, and Student was
not in the LRE. ECF No. 32-1 at PageID #: 1122-27. As the Court has previously stated
Appellant’s counsel “appear to want to move the target by lodging new allegations and claims,
without appropriate factual, statutory, or case law support.” ECF No. 21 at PageID #: 215.
Accordingly, the Court has analyzed the IEP for procedural compliance, and for a determination
of “whether the student’s substantive rights to services under the IDEA were violated.” N.L. ex
rel. Ms. C. v. Knox Cty Sch., 315 F.3d 688, 693 (6th Cir. 2003) (referencing the two-part IDEA
review developed by the Supreme Court in Rowley, 458 U.S. at 206-207).
a. Procedural Compliance
The SLRO and IHO properly found that the District created an appropriate IEP for
Student, and the IEP was properly implemented. Appellant did not meet her burden to show that
the IEP was inadequate or did not properly address Student’s needs. The first part of the Rowley
test is: did the school district comply with the “procedures set forth in the [IDEA]?” Rowley,
458 U.S. at 206-207. The Sixth Circuit has held that the party challenging the adequacy of an
IEP should bear the burden of proving that the IEP established by the school district was
inappropriate. Cordrey v. Euckert, 917 F.2d 1460, 1469 (6th Cir. 1990). An IEP is prepared by a
child’s “IEP team,” which consists of teachers and school officials working in collaboration with
the child’s parents. 20 U.S.C. § 1414(d)(1)(B). The IEP must comply with the procedures in 20
U.S.C. § 1414(d)(1)(A).
Congress has stated an IEP must consist of “statement[s] of the child’s present levels of
academic achievement,” annual goals that “enable the child to be involved in and make progress
in the general education curriculum,” a description of how the goals will be measured and when
progress reports on the child will be given, a statement of any related services that will be
provided for the child, and an explanation, if needed, of why the child is not participating in
regular class and activities. 20 U.S.C. § 1414(d)(1)(A). The IDEA requires the school district
review the IEP annually to determine whether the child is meeting annual goals. 20 U.S.C. §
1414(d)(4)(A)(i). Finally, the IDEA requires that children with disabilities be educated with nondisabled children “[t]o the maximum extent appropriate.” 20 U.S.C. § 1412(a)(5).
The District is required to provide the parents of a child with disabilities a copy of the
procedural safeguards available to them under the IDEA, at least once a year. 20 U.S.C.
1415(d)(1)(A). The District provided Parent with a copy of the procedural safeguards at both
IEP meetings. Tr. 882; Board Ex. 11 at 14.
In addition, Parent had meaningful opportunity for input. The District must afford the
parents of a student with disabilities meaningful opportunity to participate in the development of
the IEP. See 20 U.S.C. § 1414(b)(4). The District may not unilaterally create an IEP for a child
with disabilities, without considering concerns of the parents. Predetermination is a violation of
the IDEA. Deal, 392 F.3d at 857. However, the IEP team may come prepared to the meetings
and have pre-formed opinions. Nack ex rel. Nack v. Orange City Sch. Dist., 454 F.3d 604, 61011(6th Cir. 2006). Preparation is not synonymous with predetermination. Deal, 392 F.3d at 857.
The District is not required to take parents’ suggestions, but the District must show that the
parents had an opportunity to participate and their suggestions were seriously considered. Nack,
454 F.3d. at 610 (citing Knox Cty. Sch., 315 F.3d at 694).
Parent was present at the IEP meetings. Tr. 300; Board Ex 11, p.2. The IEP team took
time to explain the goals and the reasoning for the goals to Parent. Tr. 295. The IEP team
discussed special education and related services during the IEP team meetings, and allowed the
Parent to voice suggestions. Tr. 323-24, 303-04. The IEP team did not predetermine the IEP for
Student without considering the mother’s input.
The District is required to provide an IEP for each child with a disability in the agency’s
jurisdiction. 20 U.S.C. § 1414(d)(2)(A). The District provided Student with an IEP at the
beginning of both the 2013-2014 school year and the 2014-2015 school year. Board Ex. 11 at 1,
3; Tr. 300. The IEP teams ensured that the assessments used to design Student’s IEP were valid
and reliable and were administered by trained personnel. Tr. 30, 107, 117, 139-40, 243, 340.
The IEP teams addressed the child’s needs in all areas of suspected disability and coordinated
efforts between Student’s schools to ensure Student was fully evaluated. Tr. 30, 130-32, 292.
The IEP team properly considered the necessary factors according to 20 U.S.C. § 1414(b)(3), and
Parent had meaningful participation in the IEP meetings. Board Ex. 11 at 2; Tr. 300.
Upon examination of the record, the IEP developed by the school district complied with
the requirements under 20 U.S.C. § 1414(d)(1)(A). The IEP properly addressed Student’s
current academic achievement, contained measurable goals specifically designed to meet
Student’s needs, described how the annual goals were to be met, and explained why and for how
long Student would not be participating in regular class with non-disabled children. Tr. 298-99,
303-304, 323-24, 377. Parent signed both of the IEP forms and did not raise any objections until
the filing of the Due Process Complaint (ECF No. 1-3). Board Ex. 11 at 14; Board Ex. 7.
b. Substantive Review
The second prong of the Rowley test is, whether the IEP “developed through the [IDEA’s]
procedures [is] reasonably calculated to enable the child to receive educational benefits.”
Rowley, 458 U.S. at 207. The IDEA requires that a student be able to “benefit” from the
instruction provided. The Supreme Court has held that access to an “equal” educational
opportunity does not mean that a school district must provide “every special service necessary to
maximize each handicapped child’s potential.” Id. at 189, 199. In a recent decision, the
Supreme Court revised the Rowley standard for what qualifies as an educational benefit. In
Endrew F. v. Douglas Cty Sch. Dist. RE-1, 137 S.Ct. 988 (2017), the Supreme Court held an IEP
would be judged as appropriate based on the individual child’s potential. Id. at 999. An
appropriate IEP does not mean that the child must achieve grade-level advancement, but the
program “must be appropriately ambitious in light of [the child’s] circumstances.” Id. at 1000.
Based upon the record provided, Student was benefitting from individualized instruction,
and had made measurable progress towards annual goals. Tr. 298-99, 377. The advancement
made does not have to be equal to that of non-disabled children. Student was advancing based
on his potential as determined by the ETR. Board Ex. 9. Student’s IEP was proper based on the
results of the numerous assessments. Tr. 36, 55-56, 130-32, 295, 349-50. Both the 2013-2014
and 2014-2015 IEPs were being properly implemented by the District. However, any child’s
progress would be disrupted by multiple moves and Student moved multiple times. Tr. 75, 13536, 305, 405-06, 467, 939-40.
The Supreme Court also held that when a court is reviewing an IEP, the Court should
give deference to the judgment of the school authorities. Id. at 1001-1002. Both the SLRO and
IHO determined that the IEP was appropriate, and was properly implemented. The record
supports the findings of the SLRO and IHO on the appropriateness of Student’s IEP. Deference
will be given to the SLRO’s and IHO’s findings because the determination of an appropriate IEP
relies on the application of the their education expertise. Ohio Rev. Code § 3323.05(G)(1)(c)
(“A hearing officer shall possess knowledge of, and the ability to understand, the provision of the
[IDEA] . . . and legal interpretations of that act by federal and state courts.”).
3. The IEP sufficiently addressed Student’s safety
Parent contests the IEP, alleging that it did not sufficiently address Student’s safety in
regards to his peanut allergy. The SLRO and IHO properly found that the school district took the
necessary precautions to avoid a possible allergic reaction. Appellant did not prove that Student
suffered an allergic reaction during the time period involved in this action. Furthermore, there is
no legal requirement under the IDEA that Student’s Action Plan or the other safety measures be
fully incorporated into the IEP. The only requirement is that the IEP team give a description of
the options considered, and that the IEP team state the reasons those options were rejected. 20
U.S.C. § 1415(c).
Some students with peanut allergies may be eligible to receive special education services
under the IDEA. 20 U.S.C. § 1401(3)(A) (students with allergies can qualify as a “child with a
disability” under “other health impairments”). However, Student is not eligible for special
education services because he has a peanut allergy. It was important for the IEP team to note that
Student had a peanut allergy, but it was unrelated to the reason Student was receiving special
education services. Moreover, as the District had other procedures in place to protect students
from allergic reactions, there was no procedural or substantive violation of the IDEA that
resulted in a denial of FAPE. Tr. 261, 262, 290-91, 359, 924-25, 1002, 1007-1008, 1021.
Parent complained that not all of the IEP team members were knowledgeable about all
areas of the IEP. This is not a necessary requirement under the IDEA. 20 U.S.C. §
1414(d)(1)(C) (“A member of the IEP Team shall not be required to attend an IEP
meeting . . . [if] the attendance of such member is not necessary because the member’s area of
the curriculum or related services is not being modified or discussed.”).
4. Student was educated in the LRE
The Act requires that disabled children be educated with their non-disabled peers to the
“maximum extent appropriate.” 20 U.S.C. § 1412(a)(5). Courts should not “substitute their own
notions of sound educational policy for those of the school authorities which they review.” Doe
ex rel. Doe v. Bd. of Educ. of Tullahoma City Sch., 9 F.3d 455, 458 (6th Cir. 1993) (quoting
Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 624 (6th Cir. 1990), superseded in part on
other grounds by regulation as recognized in, N.W. ex. rel. J.W. v. Boone Cnty. Bd. of Educ., 763
F.3d 611, 617 (6th Cir. 2014)). More weight should be given to administrative findings “on
matters for which educational expertise is relevant.” McLaughlin v. Holt Pub. Sch. Bd. of Educ.,
320 F.3d 663, 669 (6th Cir. 2003).
The Sixth Circuit has supplied an LRE analysis in Roncker ex rel. Roncker v. Walter, 700
F.2d 1058, 1063 (1983). However, the case at bar differs from Roncker, in two ways. First, the
analysis in Roncker involves a child who was placed in a school where he would have no contact
with his non-handicapped peers. Id. at 1061. Unlike in Roncker, the District did not remove
Student from one school to another segregated school. Rather, the District developed an IEP that
would allow Student to spend between 40-80% of his time with his non-handicapped peers.
Board Ex. 11. Second, the analysis in Roncker discusses when it is appropriate to “mainstream”
a child. Id. at 1063. While, both cases involve an analysis of the same provision of the IDEA,
the Roncker analysis of mainstreaming is not applicable to the current situation. Student was not
sent to a handicap-only school, and Student was not asked to leave any of his schools. Parent did
elect to remove Student from the District at various times, but it was not at the recommendation
of the IEP teams.
Following the Sixth Circuits holding in Roncker, “due weight” should be given to the
SLRO and IHO regarding decisions of what qualifies as an appropriate LRE for Student, based
on his ETR and disabilities. Id. at 1062; see Burilovich, 208 F.3d at 567. The decision of the
SLRO and IHO should be given greater weight for determining an LRE. Both the SLRO and
IHO possess education expertise to determine what qualifies as an appropriate LRE, and their
education expertise is relevant to the decision. Burilovich, 208 F.3d at 567 (“[S]tate and local
educational agencies are deemed to possess expertise in education policy and practice.”).
Hearing officers’ possess special knowledge about the provisions of the IDEA, as well as federal
and state interpretations of the Act. Ohio Rev. Code § 3323.05(G)(1)(c). Both the SLRO and
IHO found Student was educated in the LRE and that Appellant failed to meet her burden of
proof to show that the Board had improperly segregated Student. ECF No.1-2 at PageID #: 46;
ECF No. 1-4 at PageID #: 79-80.
The Court agrees that Student was not impermissibly segregated from his non-disabled
peers. Student spent most of the day with his non-disabled peers. Board Ex. 11. Student was
only asked to eat breakfast with the intervention specialist on one occasion when there was a fear
that Student would have an allergic reaction. Tr. 275, 397. Before removing Student from the
classroom, the intervention specialist obtained permission from Student’s grandfather. Tr. 273,
309. Student also eats lunch in the cafeteria with his peers, where proper precautions are taken to
make sure Student will not have an allergic reaction. Tr. 682, 925.
In the Due Process Complaint (ECF No. 1-3), Appellant alleged that the District failed to
protect Student from bullying. However, the record shows that Parent never raised the issue of
bullying with the school. Tr. 88, 930-31. Parent has failed to prove Student was the victim of
bullying. Rather, the record shows that Student was a bully while in first grade at Voris. Both
the SLRO and IHO did not find the mother’s testimony credible in regards to this issue. ECF No.
1-2 at PageID #: 36. The Court should defer to the IHO on credibility assessments, as they are
best situated to make those determinations. Maple Heights, 2016 WL 3475020, at *5. Appellant
has failed to meet the burden of proof to show that the District knew Student was a victim of
bullying and did not properly address the issue through the IEP or ETR.
6. ESY services
A school must only provide ESY services if the IEP team determines that such services
are necessary. Bd. of Educ. of Fayette Cty., Ky. v. L.M., 478 F.3d 307, 314-15 (6th Cir. 2007).
The burden is on the appellant to show that ESY services are “necessary to avoid regression so
severe that the child would not be able to catch up during the following school year.” Id. at 315
(citing Cordrey v. Euckert, 917 F.2d 1460, 1473 (6th Cir. 1990)). The proponent of ESY
services may show that ESY services are necessary through the use of data or expert testimony.
Kenton Cty. Sch. Dist. v. Hunt, 384 F.3d 269, 279 (6th Cir. 2004). Appellant has not shown that
ESY services would have been necessary for Student to avoid severe regression. Appellant has
failed to show that Student was experiencing regression or that ESY services were necessary for
Student to benefit under his IEP. Student was making progress on his annual goals, not
regressing. Tr. 377. The IEP team discussed ESY services and determined they were not
necessary at the time. Tr. 323-24, 303-304.
C. Denial of FAPE
The Board did not violate any of the procedural safeguards of the IDEA, and the IEP
developed by the school was reasonably calculated to confer an educational benefit. The District
provided an appropriate education that meets the standards set forth by the state agency, and the
District provided an IEP in accordance with the guidelines under 20 U.S.C. § 1414(d). 20 U.S.C.
§ 1401(9). Therefore, Student was not denied FAPE.
For the reasons set forth above and those that have been articulated in the memorandum
of points and authorities on which Appellee relies, Appellee’s Motion for Judgment on the
Administrative Record (ECF No. 32) is granted, and the Court affirms the determinations of the
SLRO and IHO regarding the lack of substantive and procedural violations of the IDEA.
IT IS SO ORDERED.
September 22, 2017
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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