Weiss by Weiss v. School Bd. of Hillsborough County, 97-2915

• Decision Date: 13 May 1998
• Docket Number: No. 97-2915,97-2915
• Citation: 141 F.3d 990
• Parties: 11 Fla. L. Weekly Fed. C 1442 Samuel WEISS, a child, By and Through his parents and next friends, Debra S. WEISS and Major M. Benjamin Weiss, Debra S. Weiss, M. Benjamin Weiss, Major, Plaintiffs-Appellants, v. SCHOOL BOARD OF HILLSBOROUGH COUNTY, State of Florida, Defendant-Appellee. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 990

141 F.3d 990

11 Fla. L. Weekly Fed. C 1442

Samuel WEISS, a child, By and Through his parents and next friends, Debra S. WEISS and Major M. Benjamin Weiss, Debra S. Weiss, M. Benjamin Weiss, Major, Plaintiffs-Appellants, v. SCHOOL BOARD OF HILLSBOROUGH COUNTY, State of Florida Defendant-Appellee.

No. 97-2915

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

May 13, 1998.

Laura L. Whiteside, Tampa, FL, for Plaintiffs-Appellants.

W. Crosby Few, Few & Ayala, Gregory Hearing, Thompson, Sizemore & Gonzalez, Tampa, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida (No. 94-1548-Civ-T-25B); Henry L. Adams, Jr., Judge.

Before TJOFLAT, BIRCH and MARCUS, Circuit Judges.

PER CURIAM:

Samuel Weiss is an autistic child; he is thirteen years old. In September 1994, his parents brought this suit for money damages as an appeal of a final order of the State of Florida Division of Administrative Hearings rendered at the conclusion of an administrative hearing conducted pursuant to Section 1415(c) of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1415 (1994). In their amended complaint, Samuel's parents contend that the School Board of Hillsborough County, Florida, failed to provide Samuel with a "free appropriate public education," as required by the Individuals with Disabilities Education Act, and, in failing to provide such education, denied him rights established by the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1994). Samuel's parents also contend that the School Board infringed two rights guaranteed Samuel by the Fourteenth Amendment: the right to the equal protection of the laws and the right of travel.

On cross motions for summary judgment, the district court, in the order appearing in the Appendix, entered summary judgment for the School Board. Samuel's parents appeal, contending the district court should have granted their motion for summary judgment and denied the Board's motion. After considering their arguments for reversal, we conclude that, in all respects, the district court properly applied the law to the material facts (which the parties agree are not in dispute).

AFFIRMED.

ATTACHMENT

APPENDIX

ORDER

Before the Court are cross motions for summary judgment (Dkt's.20, 39). Plaintiffs seek relief under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA" or "the Act"), the Rehabilitation Act, 29 U.S.C. § 794, and 42 U.S.C. § 1983. This action is primarily an appeal of a decision rendered by a state hearing officer. Although the Hearing Officer heard only IDEA issues, Plaintiffs' other claims are based in large part on the resolution of those issues. This Court, having considered the facts and the arguments of counsel and being otherwise fully advised, hereby affirms the decision of the Hearing Officer, and grants the Defendant's motion for summary judgment.

I. BACKGROUND

Samuel Weiss is a child diagnosed with autism. He presently resides in Hillsborough County. Pursuant to the IDEA and the companion Florida statutes, the School Board for Hillsborough County ("School Board") must provide Samuel with a free appropriate public education ("FAPE"). Integral to the concept of an "appropriate" education is the notion that the services provided must be tailored to serve the individual needs of the child. To insure that each child's individual educational needs are met, the school and parents work together to develop an individualized education program ("IEP").

If the parents and school cannot agree on the contents of an IEP, either party may request a due process hearing. In Florida, due process hearings are conducted by an administrative hearing officer of the Division of Administrative Hearings ("DOAH"). Fla. Stat. § 230.23(4)(m)(4). The DOAH decision is a final order which entitles a party adversely affected to bring an action in either a federal district court or a state court of competent jurisdiction. Id.; 20 U.S.C. § 1415(c)(2).

This Court must conduct a de novo review of the hearing officer's findings. Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, 205, 102 S.Ct. 3034, 3050, 73 L.Ed.2d 690 (1982). Furthermore, the Court has discretion to determine the extent of the deference it will give to the administrative findings. Doe v. Alabama State Dept. of Educ., 915 F.2d 651, 657 n. 3 (11th Cir.1990) (citation omitted). Although the district court's review is in the nature of an appeal, the court is not limited to the administrative record, nor must the court remand if it determines that a remedy was inappropriately denied. The IDEA specifically provides that the court may take additional evidence and may fashion relief that the court deems appropriate. 20 U.S.C. § 1415(c)(2).

II. FACTS

During the 1992-1993 school year Samuel Weiss attended school in Fulton County Georgia. In May of 1993, Col. & Mrs. Weiss ¹ worked with Georgia school employees to create an IEP to be implemented in 1993-1994 school year. However, during the summer of 1993, the Weisses were transferred to Florida. Having become accustomed to dealing with Samuel's educational needs, the Weisses investigated schools in Hillsborough County and selected a home within the boundaries of Maniscalco Elementary School. The Weisses chose Maniscalco because it had a program specifically designed to serve autistic children, A Developmental Activities Project Team ("ADAPT"). In an effort to make Samuel's transition as smooth as possible the Weisses sent copies of his Fulton County IEP and other pertinent records to Maniscalco prior to their arrival in Tampa.

On October 6, 1993 the Weisses met with several School Board employees concerning Samuel's placement at Maniscalco. The School Board contends that the Weisses were informed that this was a temporary placement and interim IEP meeting. At the October 6th meeting the Weisses were pleased with the services provided in the ADAPT program and they agreed to Samuel's placement there. The recorder for the meeting filled out an IEP form that she marked "interim." Although the October IEP was not nearly as comprehensive as the Georgia IEP, it sketched out some current levels, some goals and objectives, a list of persons responsible for Samuel's education, evaluation procedures and a schedule.

The Weisses inquired as to whether the Georgia IEP would be followed, and someone at the meeting stated that the Georgia IEP would serve as a guide pending development of a permanent IEP. The Hearing Officer specifically found that the Weisses were not told that the School Board was adopting the Georgia IEP, per se, as its own. Rather, the School Board informed the Weisses that it needed to conduct additional evaluations before deciding on a permanent IEP within six months. At the conclusion of the meeting Col. Weiss signed a three page document entitled "Interim IEP." The Weisses also agreed to allow the School Board to perform the necessary tests to re-evaluate Samuel.

Despite the Weisses desire that the Georgia IEP be implemented for Samuel, the School Board did not consider itself governed by that document. Instead, the School Board operated under the interim IEP for six months. During that time, the Weisses were actively involved in Samuels education and frequently expressed concerns and requested changes in the services he was receiving. It appears that many if not all of their requests were granted; Samuel received a one-to-one aide, a longer period of time for occupational therapy, removal from participation in certain class activities, and the use of a Canon Communicator.

Between December 1993 and February 1994 the School Board conducted several evaluations of Samuel. ² The Hearing Officer found that those evaluations were sufficient for use in determining Samuel's eligibility for permanent placement and the revision and/or review of his Interim IEP. March 24, 1994 the School Board contacted Mrs. Weiss in order to schedule an eligibility staffing/IEP meeting for Samuel because the interim IEP was due to expire on April 6, 1994. Mrs. Weiss objected to the creation of an IEP at that time and requested the independent evaluation to which she was entitled pursuant to the IDEA. The School Board then asked Mrs. Weiss to attend a case review meeting. Mrs. Weiss requested a written notice concerning the type of meeting to be held in April. The School Board sent her a notice of "case review."

The case review meeting was held on April 6, 1994, exactly six months after the date of the interim IEP. School board personnel answered Mrs. Weiss' questions and determined that they had all evaluations necessary to determine Samuel's eligibility for School Board programs. The School Board then moved the case review meeting to an eligibility staffing, in which the School Board determined that Samuel met the criteria for the autistic program, and that he should receive speech and occupational therapy services. School Board personnel also recommended that Samuel's IEP be reviewed. However, Mrs. Weiss refused to allow the School Board to proceed with an IEP review until independent evaluations were completed. Immediately following the meeting the School Board ordered independent evaluations for Samuel. The Weisses removed Samuel from Maniscalco on April 7, 1994 and began schooling him in their home. In the summer of 1994, after the conclusion of the independent evaluations, the School Board developed a permanent IEP for Samuel. In the meanwhile, the Weiss' challenged the school's use of the temporary IEP before an administrative Hearing Officer.

The Hearing Officer found that Samuel progressed both academically and behaviorally while he was in the ADAPT program at Maniscalco. The final order of the Hearing Officer details Samuel's progress.

III. ISSUES

The issues presented to the Administrative Hearing Officer were: (1) whether the interim IEP was proper; (2) whether...