C. et al v. Milford Exempted Village Schools
Filing
24
OPINION AND ORDER granting 18 Motion for Summary Judgment. The Court finds that Defendant committed a procedural violation of the IDEA that resulted in substantive harm to R.C. and thus, to that extent, GRANTS Plaintiffs Motion for Summary Judgment 18 . The Court thus reverses the SLRO's decision regarding the procedural violation of the IDEA and declares Plaintiffs the prevailing parties. Signed by Judge S Arthur Spiegel on 1/17/2013. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
P.C., et al.,
:
:
:
:
:
:
:
:
:
:
:
:
Plaintiffs,
v.
MILFORD EXEMPTED VILLAGE
SCHOOLS,
Defendant.
NO. 1:11-CV-398
OPINION & ORDER
This matter is before the Court on Plaintiffs P.C. and
W.C.’s Motion for Summary Judgment (doc. 18), Defendant Milford
Exempted Village School’s Memorandum in Opposition thereto (doc.
21), and Plaintiffs’ Reply in support thereof (doc. 22).
For
the following reasons, the Court GRANTS Plaintiffs’ motion (doc.
18).
I.
BACKGROUND
Plaintiffs
R.C.,
a
P.C.
student
Milford
(doc. 1).
at
and
W.C.
are
Exempted
the
parents
Village
School
of
minor
District
R.C. is a child with a disability as defined by the
Individuals with Disabilities Education Act 20 U.S.C. § 1400, et
seq. (the “IDEA”), section 504 of the Rehabilitation Act, and
Ohio
law
§
3323
O.R.C.,
et
seq.
1
(Id.).
In
fact,
R.C.
has
multiple
disabilities,
including
a
mixed
expressive
and
receptive language disorder, a mild cognitive impairment with an
IQ
of
60,
including
executive
having
perception,
18).
functioning
dysarthric
attention
deficits,
speech,
difficulties,
and
motor
deficits
memory
problems
in
visual
problems
(doc.
He has received special education and related services
through an Individualized Education Plan 1 (“IEP”) pursuant to the
IDEA
throughout
his
education,
and
has
been
educated
in
the
were
in
Milford School District since pre-school (doc. 1).
Plaintiffs
agreement
about
and
R.C.’s
Defendant
IEPs
until
school
district
February
of
2009,
when
Defendant first proposed moving R.C. from the privately-owned
Langsford Learning Acceleration Center (“Langsford”), where R.C.
had
received
reading
services
for
third,
fourth,
sixth grades, back to R.C.’s home school (doc. 18).
fifth,
and
Plaintiffs
quickly filed a due process challenge to invoke the stay-put
provision of the IDEA, and a settlement was reached a few months
later (Id.).
The settlement resulted in a 6th grade IEP that
1
The “individualized educational program” is a “written
statement for each child with a disability” and is developed
collaboratively with, minimally, the child’s parents, teachers
and a school administrator. 20 U.S.C. §1414. It minimally
includes the child’s present academic performance, establishes
annual and short-term objectives for improvements in that
performance, and describes the specially-designed instruction
and services that will enable the child to meet those
objectives. Id.
2
placed
R.C.
at
Langsford
for
reading
instruction
and
an
increased reading instruction period from two to three hours per
day (Id.).
In
May
2010,
the
write the 7th grade IEP.
IEP
team
convened
three
times
to
According to Plaintiffs, the team
reached an impasse on the third day when they discussed R.C.’s
reading placement pursuant to goals 1 and 2 of the IEP because
Defendant “predetermined” R.C.’s return to his home school for
reading services (Id.).
Plaintiffs did not consent to placement
at Milford for R.C.’s reading instruction, but the team agreed
on the rest of the IEP (Id.).
According to Defendant, however,
it is “incumbent upon members of an IEP team to analyze data and
reach individual conclusions about what the data means . . . .
This did not preclude or displace a discussion by the IEP team”
(doc.
21).
because
they
Defendant
were
claims
unwilling
that
to
the
impasse
include
occurred
Plaintiffs
in
not
the
discussion but, instead, after R.C.’s parent asserted: “As a
parent, I’m not going to consent to the change of placement or
the reading intervention” (Id.).
Defendant school district requested an impartial due
process
provided
hearing
reading
on
August
services
6,
at
2010,
his
3
requesting
home
school
that
as
R.C.
be
opposed
to
Langsford.
At the time, R.C. was thirteen years old and was
ready to begin 7th grade at Milford Junior High School (doc.
18).
Defendant claimed that R.C. would make similar progress at
Milford, and that placement at R.C.’s home school would be the
“least restrictive environment” 2 (doc. 9).
Plaintiffs did not
agree to the change in placement, as they believed that R.C. had
been making progress at Langsford for four years and wished to
keep him there (doc. 1).
A due process hearing was held on October 28, October
29, November 4, November 5, and November 11 of 2010 (doc. 9).
Among others, Plaintiffs called two experts and an instructor
from Langsford to testify at the hearing.
(the
“IHO”)
Defendant
proposed
public
issued
met
its
placement
education” 3
a
decision
burden
for
of
on
proof
reading
(“FAPE”)
2
December
in
20,
holding
demonstrating
provided
in
The hearing officer
the
a
“free
“least
that
that
its
appropriate
restrictive
The “least restrictive environment” is a term of art from
the statute at issue here. Specifically, the statute reads, “To
the maximum extent appropriate, children with disabilities…are
educated with children who are not disabled, and special
classes, separate schooling, or other removal of children with
disabilities from the regular school environment occurs only
when the nature or severity of the disability of a child is such
that education in regular classes…cannot be achieved
satisfactorily.” 20 U.S.C. §1412(5).
3
Again, the term “free appropriate public education”
springs from IDEA. As noted by the Supreme Court, “Congress
enacted IDEA in 1970 to ensure that all children with
disabilities are provided ‘a free appropriate public education
4
environment”
(Id.).
The
IHO
ordered
that
R.C.’s
reading
placement be changed to the reading room at Milford as requested
by Defendant, that his IEP be amended to provide for one-on-one
instruction, and that his student aide be trained in the SRA
Corrective Reading Program (Id.).
Plaintiffs
filed
a
Notice
of
Appeal
of
the
IHO’s
decision on January 31, 2011, alleging 6 errors regarding the
finding of fact, 7 errors regarding the conclusions of law, and
5 errors regarding the rationale (Id.).
that
the
Decision
State
of
the
Level
IHO
Review
and
Officer
order
the
Plaintiffs requested
(“SLRO”)
reverse
following:
(1)
the
that
Defendant’s due process complaint be dismissed because the 7th
grade IEP does not provide a FAPE in reading; (2) that Defendant
keep Langsford as the placement for R.C.’s 7th
grade reading
and reading comprehension goals for three hours a day; (3) that
the 7th grade IEP be amended accordingly; and (4) that Defendant
provide appropriate transportation (Id.).
The SLRO affirmed the decision of the IHO, stating
that the School District’s proposed reading program does offer
FAPE.
The decision noted that the “issue is not whether the
which emphasizes special education and related services designed
to meet their unique needs [and] to assure that the rights of
[such] children and their parents…are protected.’” Forest Grove
School Dist. v. T.A., 557 U.S. 230, 239 (2009)(internal
citations omitted). See also 20 U.S.C. §1400(d)(1)(A),(B).
5
[Langsford
Student
Center]
did
or
provided
would
student
continue
to
with
make
a
FAPE
or
meaningful
whether
education
progress at the [Langsford Center] . . . . The question is
whether school district’s proposed IEP offered FAPE . . . . Only
if the answer to that question is ‘no,’ does it become relevant
whether
[Langsford
Center’s]
proposed
program
offers
FAPE.”
(Id.).
Plaintiffs filed a Complaint to this Court on June 16,
2011, seeking both a reversal of the SLRO decision affirming the
IHO’s decision and a finding that the 7th grade IEP does not
provide R.C. with a FAPE (doc. 1).
Plaintiffs allege they were
aggrieved by the SLRO Decision within the meaning of 20 U.S.C. §
1415(i)(2)(A)and appealed the SLRO’s opinion, claiming that the
SLRO
erred
as
conclusions;
proof;
(C)
a
(B)
by
matter
by
of
law
(A)
inappropriately
erroneously
in
his
allocating
applying
an
findings
the
improper
and
burden
of
standard
of
review; and (D) by making findings of fact not supported by the
preponderance
of
the
evidence
facts in the record (Id.).
in
the
record
and
by
ignoring
Plaintiffs ask this Court to find
that: (1) Defendant made a predetermination about R.C.’s reading
placement; (2) the 7th grade IEP does not provide FAPE to R.C.;
and
(3)
Langsford
is
the
appropriate
reading services (Id.).
6
placement
for
R.C.’s
Plaintiffs
Memorandum
Court
for
should
then
Summary
overturn
filed
the
Judgment.
the
instant
Plaintiffs
SLRO’s
ruling
Motion
argue
and
that
the
affirming
this
IHO’s
decision by concluding that the 7th grade IEP does not provide
R.C. with a FAPE because: (1) the IEP is missing requirements
that both the IHO and SLRO found were necessary to provide R.C.
with a FAPE; (2) Defendant plans to implement the IEP using the
Corrective Reading program, which is not an appropriate reading
program for R.C.; and (3) the IEP does not provide R.C. with an
appropriate reading comprehension program (doc. 18).
further
argue
that
the
Lindamood-Bell
reading
Plaintiffs
and
reading
comprehension programs offered at Langsford are appropriate for
R.C.
and
refute
Defendant’s
argument
that
the
change
of
placement to Milford is appropriate because it allows R.C. to be
taught in the least restrictive environment (the “LRE”) (Id.).
Finally,
because
Plaintiffs
Milford
argue
Schools
that
the
predetermined
violation of the IDEA (Id.).
IEP
the
should
reading
be
rejected
program
in
Plaintiffs request that this Court
reverse the SLRO decision, declare that the 7th grade IEP does
not
provide
R.C.
with
a
FAPE,
and
declare
Plaintiffs
the
prevailing parties (Id.).
In its Memorandum in Opposition to Plaintiffs’ Motion
for Summary Judgment, Defendant argues that “this case is only
7
about
whether
Milford
is
able
to
provide
FAPE,
a
meaningful
educational benefit, for purposes of reading instruction. . . .
If it can, then the law clearly requires that the IEP identify
Milford as the LRE, regardless of any perceived benefits of the
reading program at Langsford” (doc. 21).
Defendant contends
that when more than one placement can provide FAPE, the LRE,
which
both
sides
agree
is
appropriate placement (Id.).
Milford
Schools,
is
the
only
Thus, Defendant concludes, Milford
may offer any reading program that provides FAPE, and it is not
required to use Plaintiffs’ preferred method of teaching (Id.).
Finally, Defendant argues that Langsford is not an appropriate
placement and denies that it predetermined R.C.’s placement in
violation of the IDEA (Id.).
In
their
Reply
(doc.
22),
Plaintiffs
contend
that
Defendant concedes many facts and arguments by not rebutting
Plaintiffs’ evidence or arguments on the following matters:
Milford Schools does not dispute Plaintiffs’ proposed
findings of fact that establish R.C.’s disabilities,
strengths and weaknesses.
Milford Schools does not
dispute what the necessary components of a reading
program for R.C. must contain, including the need to
respond to his executive function disabilities, the
need for R.C. to work at a slow pace, the need for a
multi-sensory program or the need for one on one
instruction.
Nor does Milford dispute that R.C. has
the potential to read at a third grade level.
More
significantly,
Milford
does
not
rebut,
or
even
discuss, Plaintiff’s argument that the 7th grade IEP
does not provide R.C. with a FAPE.
Milford argues
that it may offer any reading program that does
8
provide FAPE . . . . Finally, Milford does not respond
to the argument that the IEP, while requiring a
reading comprehension program, does not specify what
research based, multisensory reading comprehension
program Milford will use (Id.).
Plaintiffs
also
note
that
“if
the
Court
determines
that
Milford’s IEP does not provide a FAPE, then whether Milford is
the least restrict environment is irrelevant” (Id.).
Finally,
Plaintiffs maintain that Defendant predetermined R.C.’s change
of
placement
in
violation
of
the
IDEA
and
that
the
predetermination caused substantive harm amounting to the denial
of a FAPE (Id.).
Oral arguments were held on April 4, 2012, and
this matter is ripe for the Court’s consideration.
II. APPLICABLE LEGAL STANDARDS
The purpose behind the IDEA is to “ensure that all
children
with
disabilities
have
available
to
them
a
free
appropriate public education that emphasizes special education
and related services designed to meet their unique needs.”
20
U.S.C. § 1400(d)(1)(A); Bd. Of Educ. Of Hendrick Hudson Cent.
Sch. Dist. V. Rowley, 458 U.S. 176, 200 (1982).
Under the IDEA,
states receive federal funds to guarantee a FAPE designed to
“prepare [disabled children] for further education, employment,
and
independent
living.”
Id.
The
IDEA
allows
procedural
safeguards for the parents or school district to request a due
process
hearing
contesting
“any
9
matter
relating
to
the
identification,
evaluation,
or
educational
placement
of
the
child, or the provision of a free appropriate public education
to such child.”
20 U.S.C. § 1415(b)(6)(A).
Procedurally, school districts must conduct an initial
evaluation to determine the necessity for special education and
the presence of a disability and then establish an IEP that
provides a FAPE to the student.
Deal v. Hamilton Bd. Of Educ.,
392 F.3d 840, 853 (6th Cir. 2004).
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 853, quoting Knable v. Bexley City
Sch. Dist., 238 F.3d 755, 763 (6th Cir. 2001).
The meeting to
develop an IEP must be held within 30 days of a determination
that the student needs special education and related services,
and the IEP needs to be reviewed and revised annually.
U.S.C. § 1415(a)(5); 34 C.F.R. § 300, 343(c)(1995).
meeting
to
teachers,
develop
special
an
IEP,
educators,
input
a
from
the
child’s
representative
of
20
At the
parents,
the
school
district, and other individuals with special expertise must be
heard.
20 U.S.C. § 1414 (d)(1)(B).
In 1997, the IDEA was amended to reflect congressional
recognition that “more needed to be done to guarantee children
10
with
disabilities
adequate
access
to
appropriate
services.”
Forest Grove School Distct. v. T.A., 129 S. Ct. 2484, 2491,
quoting
S.
Rep.
No.
105-17,
p.
3
(1997).
Following
this
amendment, school districts must now create IEPs that confer a
“meaningful
potential
educational
of
the
child
benefit”
at
gauged
issue
in
substantive requirement under the IDEA.
in
relation
order
to
to
the
satisfy
the
See Deal, 394 F.3d at
862. “Only by considering an individual child’s capabilities and
potentialities
benefit
may
provided
a
court
to
that
determine
child
whether
allows
an
educational
for
meaningful
advancement. In conducting this inquiry, courts should heed the
congressional admonishment not to set unduly low expectations
for disabled children.”
students
with
Id.
disabilities
Finally, the IDEA requires that
be
“educated
children ‘to the extent appropriate.’”
with
non-disabled
Knable, 238 F. 3d at
764.
In Rowley, the Supreme Court established a two-part
inquiry for determining whether school districts complied with
the procedural and substantive components of the IDEA:
[A]
court's
inquiry
in
suits
brought
under
§
1415(e)(2) is twofold. First, has the State complied
with the procedures set forth in the Act? And second,
is the individualized educational program developed
through the Act's procedures reasonably calculated to
enable the child to receive educational benefits? If
these requirements are met, the State has complied
with the obligations imposed by Congress and the
11
courts can require no more.
Rowley, 458 U.S. at 206.
However, procedural violations alone
do not entitle parents to relief.
Knable, 238 F.3d at 764.
“Only if [the court] find[s] that a procedural violation has
resulted in . . .
substantive harm, and thus constituted a
denial of [student’s] right to a FAPE, may we ‘grant such relief
as the court determines is appropriate.’” Id.
When a party appeals an administrative decision to a
district
court,
the
court
is
to
review
the
administrative
record, may hear additional evidence upon request of a party,
and may grant relief it determines is appropriate based on the
preponderance
of
the
evidence.
20
U.S.C.
§
1415(i)(2)(A).
Summary judgment is appropriate when there is no dispute as to a
material
question
of
fact
and
one
party
is
entitled
judgment as a matter of law. Fed. R. Civ. P. 56.
to
a
This Court
must view all facts and inferences drawn therefrom in the light
most
favorable
to
the
nonmoving
party.
LaPointe
v.
United
Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir. 1993).
The
“mere
the
existence
of
some
alleged
factual
dispute
between
parties will not defeat an otherwise properly supported motion
for
summary
genuine
Inc.,
issue
477
judgment;
of
U.S.
the
material
242,
requirement
fact.”
247-48
Anderson
(1986).
12
is
Only
that
v.
there
Liberty
disputed
be
no
Lobby,
material
facts, those “that might affect the outcome of the suit under
the governing law,” will preclude summary judgment.
Id. at 248.
The function of the court in assessing a summary judgment motion
is not “to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.”
Id. at 249.
If after reviewing the record as a whole a
rational fact-finder could not find for the nonmoving party,
summary judgment is appropriate since there is no genuine issue
for trial.
See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
The standard in the instant case differs from that of
a typical summary judgment motion in that the Court is required
to
apply
a
“modified
de
novo”
review
administrative proceedings under the IDEA.
to
appeals
from
N.L. ex rel. Mrs. C.
v. Knox Cnty. Schools, 315 F.3d 688, 692 (6th Cir. 2003).
The
standard dictates that the Court “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,
particularly
expertise is essential to the findings.”
when
Id.
educational
With regard to
substantive issues, the “administrative findings in an IDEA case
may be set aside only if the evidence before the court is more
likely than not to preclude the administrative decision from
13
being
justified
based
on
the
agency’s
presumed
educational
expertise, a fair estimate of the worth of the testimony, or
both.”
Burilovich ex rel. Burilovich v. Bd. of Educ. Of the
Lincoln Consol. Schools, 208 F.3d 560, 566-67 (6th Cir. 2000).
However,
when
educational
expertise
is
not
relevant
to
the
findings, less weight is afforded to the administrative decision
because a “federal court is just as well suited to evaluate the
situation.”
Kings Local School Dist. Bd. Of Educ. v. Zelazny,
325 F.3d 724, 728 (6th Cir. 2003).
Finally, with regard to the
specific issue of predetermination, the standard of review is de
novo because “predetermination is . . . a mixed question of law
and fact.
Deal, 392 F.3d 840 at 857; Knable, 238 F.3d at 766.
III. ANALYSIS
Plaintiffs argue that this Court should overturn the
SLRO’s
ruling
affirming
the
IHO’s
decision
based
procedural and substantive violations of the IDEA.
procedural
rejected
prong,
because
Plaintiffs
Milford
argue
Schools
program in violation of the IDEA.
allegations
that
it
predetermined
that
the
both
Under the
IEP
predetermined
on
should
the
be
reading
Defendant directly denies
R.C.’s
reading
placement.
Under the substantive prong of the IDEA, Plaintiffs argue that
R.C.’s 7th grade IEP does not provide him with a FAPE and that
instead,
the
Lindamood-Bell
reading
14
and
reading
comprehension
programs
at
Langsford
are
appropriate
for
R.C.
Defendant
contends that the school district may offer any reading program
that provides FAPE, that it does not have to specify a teaching
methodology in the IEP, and that it did not predetermine R.C.’s
reading placement for 7th grade.
The Court shall proceed to
discuss each matter separately.
A.
Defendant committed a procedural violation under IDEA
by pre-determining R.C.’s 7th grade reading placement.
The
Court
finds
Plaintiffs’
contention
that
Milford
predetermined R.C.’s change of placement in violation of the
IDEA to be borne out by the record.
The standard of review here
is de novo because “predetermination is . . . a mixed question
of law and fact.
766.
Plaintiffs
Deal, 392 F.3d at 857; Knable, 238 F.3d at
contend,
and
this
Court
agrees,
that
the
preponderance of evidence shows that Milford school officials
did not walk into the first IEP meeting with open minds because
they had already made up their minds about withdrawing R.C. from
Langsford Center before the first May 2010 IEP meeting.
The
record
shows
that
as
early
as
November
2009,
school members on the IEP team formed early opinions that R.C.
should return to Milford.
Preplanning notes from a preplanning
meeting on April 12, 2010, show that Milford recommended R.C. to
be switched from Langsford back to his home school for his 7th
grade IEP.
More troubling to the Court, R.C.’s teacher Donna
15
Roberts testified that Milford was prepared to “go the whole
distance this year which means the [parents] will be forced into
due process.”
In addition, Ms. Roberts had conversations before
April 12, 2010 with IEP school team members recommending that
R.C. be pulled out of Langsford.
All of this occurred before
the very first IEP planning meeting in May of 2010, and before
Milford Schools had decided what reading program they were going
to use for R.C.’s 7th grade reading IEP.
Indeed, as Plaintiffs
note,
parents
rather
than
discussing
with
the
the
type
of
reading program R.C. would most benefit from, or how the options
at
Milford
would
be
successful
for
R.C.,
let
alone
which
specific program would be used and how it would be implemented,
the only consistent refrain from Milford Schools was that R.C.
would no longer attend Langsford.
The record reads as though
Milford Schools made a negative choice—that is, it decided only
what would not happen, not that it in good faith engaged in a
process to determine what should happen in R.C.’s best interest.
From the record, it appears clear to this Court that Milford
Schools
had
decided
before
the
IEP
meeting
that
R.C.
would
return to Milford for reading instruction, an impermissible predetermination.
Defendant argues that it was entirely appropriate for
some members of the IEP team to individually conclude that they
16
no longer supported a Langsford placement prior to the meeting,
and that this does not amount to predetermination.
Defendant
cites to Knox County Schools to support its proposition that
“the 6th Circuit has held that school officials are permitted to
form opinions and compile prior to IEP meetings, so long as
officials ‘come to meeting with suggestions and open minds, and
not a required course of action’” (doc. 21, quoting Knox County
Schools, 315 F. 3d at 692).
However, this Court finds that
Defendant did not go into the first IEP meeting with an open
mind.
used
While Defendant argues that the word “decision” was never
prior
to
May
2010,
Knox
states
nothing
about
the
terminology used, but rather that officials must come to the
meeting with open minds.
While it is true that school officials
may permissibly form opinions prior to IEP meetings, the record
here
shows
instead,
that
became
officials
went
impermissibly
beyond
and
forming
deeply
opinions
wedded
to
a
and,
single
course of action: that R.C. not continue at Langsford.
Contrary to Defendant’s assertion, Knox County Schools
is
not
on
all
fours
with
this
case.
In
Knox,
the
student
primarily had behavioral issues, and the IEP team convened to
discuss whether the student was eligible for special education
for the first time.
maintain
the
The IEP team had to decide whether to
student’s
status
17
quo
situation
or
change
the
student’s status to one requiring special education services.
Here, R.C.’s IEP team convened to discuss changing R.C.’s status
quo placement from Langsford, where he had his third, fourth,
fifth, and sixth grade reading assignments, back to his home
school.
Furthermore, Knox is distinguishable because there are
specific, measurable criteria to use to determine which students
qualify for “special education” and so it is more likely for an
IEP member to form an appropriate opinion based on quantitative
data and past medical and educational records before an official
evaluation meeting. Here, there was no evidence of any specific
criteria IEP team members used when forming their opinions to
withdraw R.C. from Langsford well in advance of the first IEP
meeting, let alone any evidence of specific criteria used to
determine the best new course of action for R.C.
In
evidence
sum,
that
suggestions
the
Court
Defendant
and
open
did
finds
not
minds,”
by
“come
and
procedural violation under the IDEA.
a
preponderance
to
[the]
therefore
of
meeting
the
with
committed
a
Knox, 315 F.3d at 692.
B. Defendant’s procedural violation caused substantive harm to
R.C., thus denying R.C. a FAPE.
While
a
Court
should
“strictly
review
an
IEP
for
procedural compliance,” technical deviations will not render an
IEP invalid.
Deal, 392 F.3d at 854, quoting Dong ex rel. Dong
v. Bd. of Educ. Of the Rochester Cmty. Sch., 197 F.3d 793, 799
18
(6th Cir.1998).
However, procedural violations that result in
substantive harm constitute a denial of a FAPE, and relief may
be granted.
when
Knable, 238 F.3d at 764.
parents
are
denied
student’s IEP development.
Substantive harm occurs
“meaningful
participation”
in
a
Deal, 392 F.3d at 857.
Plaintiffs point the Court to Deal, a case in which
the
Sixth
Circuit
recognized
the
importance
of
specifying
educational methodology in a student’s IEP: “Indeed, there is a
point at which the difference in outcomes between two methods
can
be
so
great
that
provision
amount to denial of a FAPE.”
Plaintiffs,
the
Court
does
of
the
lesser
program
Deal, 392 F.3d at 862.
not
read
Deal
to
hold
could
Unlike
that
an
explicit discussion of methodology must be present in every IEP
or
IEP
meeting.
However,
the
Court
supportive of Plaintiff’s position.
has
demonstrated
reading
success
nonetheless
finds
Deal
In this case, where R.C.
over
four
years
using
the
Lindamood-Bell method, the Court finds that neither the parents
nor
the
school
could
effectively
determine
whether
the
IEP
confers a “‘meaningful educational benefit’ gauged in relation
to
[R.C.’s]
methods
and
potential”,
how
they
id.,
might
without
affect
being
R.C.’s
able
to
potential.
compare
This
comparison was not possible here because Milford Schools would
not engage the parents in a discussion about the methods it
19
proposed using should R.C. not return to Langsford.
Simply put,
under the facts of this case, Plaintiffs were denied meaningful
participation in R.C.’s IEP development process when Defendant
never proposed the specific methodology it would use at Milford,
subsequently never allowing parents the opportunity to compare
any “two methods.”
Id.
Defendant argues that methodology does not need to be
specified
in
the
student’s
IEP.
As
noted
above,
the
Court
agrees that Deal does not explicitly require that in all cases.
However, while the IDEA does not use the term “methodology,” it
nevertheless states that the IEP has to include a “statement of
the
special
education
and
related
services
and
supplementary
aids and services . . . to be provided to the child, or on
behalf
of
the
modifications
or
child,
supports
provided for the child.”
and
for
a
statement
school
of
the
personnel
that
program
will
20 U.S.C. § 1414(d)(1)(A)(i).
be
When
coupled with the Sixth Circuit’s view that, “there is a point at
which the difference in outcomes between two methods can be so
great
that
denial
of
provision
a
FAPE,”
of
this
the
lesser
Court
4
program
believes
could
that
in
amount
this
case 4
This is especially true, as noted above, where the child
has been successful in a certain methodology and a certain
structure for years and where, as here, the parents were told
that R.C.’s reading placement would be reduced from the three
hours daily at Langsford to only 90 minutes, and R.C.’s past
20
to
methodology
should
have
been
specified
and
discussed
by
Defendant at the IEP meetings and that failure to do so amounts
to a denial of meaningful participation.
See Deal, 392 F.3d at
862.
Defendant further argues that the IEP does not have to
be developed in a specific order, and that the “sequence of
steps to reach [IEP] agreement is not significant” (doc. 21).
This
Court
importance
disagrees.
of
congressional
The
Supreme
the
IDEA’s
emphasis
upon
Court
procedural
full
has
recognized
safeguards:
participation
of
the
“[T]he
concerned
parties throughout the development of the IEP . . . demonstrates
the legislative conviction that procedures prescribed would in
most cases assure much if not all of what Congress wished in the
way of substantive content in an IEP.”
The
IDEA
not
only
guarantees
a
Rowley, 458 U.S. at 206.
FAPE
to
children
with
disabilities, but it is also meant to “assure that the rights of
[such] children and their parents or guardians are protected.”
School Comm. Of Burlington v. Department of Ed. Of Mass., 471
U.S. 359, 367.
Here,
the
preponderance
of
the
evidence
shows
that
Defendant first decided to withdraw R.C. from Langsford and then
began to decide on what goals to pursue and which methodologies
experience with reduced instruction time in math was not
21
to try.
As cited by the Sixth Circuit in Deal, Spielberg ex
rel. Spielberg v. Henrico County Public Schools, 853 F.2d 256
(4th
Cir.
1988)
provides
a
leading
discussion
on
predetermination: “There, the district court concluded, based on
a series of letters written before the IEP meeting that focused
on a change in placement, that the school district had decided
to change the disabled student’s placement before developing an
IEP to support the change.”
Spielberg, 853 F.2d 256.
Deal, 392 F.3d at 587, citing
The Fourth Circuit then affirmed the
district court’s conclusion, finding that this was a procedural
violation that deprived the student of a FAPE:
Under the EHA [the predecessor to the IDEA], the
general rule is that placement should be based on the
IEP. 34 C.F.R. § 300.522. The appendix interpreting
the EHA regulations states that ‘IEP objectives must
be written before placement.’
34 C.F.R. Part 300,
App. C., Question 42.
The decision to place [the
student] at [a particular placement] before developing
an IEP on which to base that placement violates this
regulation
as
interpreted
by
the
Secretary
of
Education. It also violates the spirit and intent of
the
EHA,
which
emphasizes
parental
involvement.
Spielberg, 853 F.2d at 259.
Parental involvement and discussion during the development of
the IEP has to be meaningful: “In order to fulfill the goal of
parental participation in the IEP process, the school district
was
required
to
conduct,
meaningful IEP meeting.”
not
just
an
IEP
meeting,
but
a
Deal, 392 F.3d at 857, citing W.G. v.
favorable.
22
Board of Trustees of Target Range School District no. 23, 960
F.2d 1479 (9th Cir. 1992).
Because Plaintiffs here were denied
a meaningful opportunity to participate in the development of
R.C.’s IEP, the predetermination resulted in substantive harm
that amounted to denial of a FAPE for R.C.
C. This Court need not decide whether
substantive violation of the IDEA.
Milford
committed
a
Under the second prong of Rowley, which deals with
substantive violations, the court must analyze whether an IEP is
reasonably calculated to enable the child to receive educational
benefits.
Rowley, 458 U.S. at 206-07.
The Sixth Circuit has
made it clear that the “preponderance of evidence language in
the
[IDEA]
is
by
no
means
an
invitation
to
the
courts
to
substitute their own notions of sound education policy for those
of
the
school
Cincinnati
quoting
Bd.
authorities
Of
Rowley,
“generalists
with
Educ.,
458
no
which
918
U.S.
F.2d
at
expertise
they
review.”
618,
624
206).
in
(6th
Federal
the
Thomas
Cir.
1990,
courts
educational
v.
needs
are
of
handicapped children and will benefit from the fact-finding of a
state agency, which is presumed to have expertise in the field.”
Burilovich, 208 F.3d at 566.
Moreover, while this Court is
required to give some deference to administrative findings in an
IDEA
case,
officer’s
even
greater
determinations
weight
on
is
due
matters
23
to
for
an
administrative
which
educational
expertise is relevant.
Deal, 392 F.3d at 865.
In order to find a substantive violation, the Court
must
find
that
Defendant’s
proposed
IEP
does
meaningful educational benefit to the student.
not
confer
a
Plaintiff has
asked this Court to declare that Defendant substantively failed
to
provide
R.C.
with
a
FAPE
and
that
the
Langsford
fulfills the substantive requirements under the IDEA.
has
heard
and
considered
both
Plaintiffs’
and
Center
The Court
Defendant’s
arguments on the matter and is cognizant of the deference the
Court must apply on matters for which educational expertise is
relevant.
However, because the Court has already determined
that Defendant committed a procedural violation that resulted in
substantive harm denying Plaintiffs meaningful participation in
the IEP development process, the Court need not decide whether
Defendant’s proposed IEP amounted to a substantive violation of
the IDEA. See Knable, 238 F.3d at 767 (noting that addressing
the
second
Rowley
prong
is
not
necessary
where
a
procedural
violation results in the denial of a FAPE).
D.
The Court declares Plaintiffs to be the prevailing parties
and reverses the SLRO’s decision with regard to the procedural
violation under the IDEA.
Once
a
procedural
and/or
substantive
violation
is
found under the IDEA, the court is authorized to “grant such
relief as the court determines is appropriate.”
24
20 U.S.C. §
1415(i)(2)(B)(iii).
Parents are to be declared the prevailing
parties if they “succeed on any significant issue in litigation
which
achieves
some
bringing suit.”
2009).
of
the
benefit
the
parties
sought
in
Keene v. Zelman, 337 F. Appx 553, 556 (6th Cir.
Because
the
Court
has
found
that
Milford
Schools
committed a procedural violation resulting in substantive harm,
the Court hereby declares Plaintiffs the prevailing parties, and
Plaintiffs may submit a fee petition for reasonable attorney
fees and expenses.
20 U.S.C. § 1415(i)(3)(B).
Finally, the
Court reverses the SLRO’s decision with regard to the procedural
violation under the IDEA.
The Court does not issue a ruling on
Defendant’s alleged substantive violation.
IV. CONCLUSION
For
Defendant
the
committed
foregoing
a
reasons,
procedural
the
violation
Court
of
the
finds
that
IDEA
that
resulted in substantive harm to R.C. and thus, to that extent,
GRANTS Plaintiffs’ Motion for Summary Judgment (doc. 19).
The
Court thus reverses the SLRO’s decision regarding the procedural
violation of the IDEA and declares Plaintiffs the prevailing
parties.
SO ORDERED.
Dated:
January 17, 2013 /s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
25
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