M.M. ex rel. L.R. v. Special School Dist. No. 1

• Decision Date: 04 January 2008
• Docket Number: No. 06-3572.,06-3572.
• Parties: M.M., by and through her parent and natural guardian, L.R., Plaintiff-Appellee, v. SPECIAL SCHOOL DISTRICT NO. 1, et al., Defendants-Appellants. Minnesota School Boards Association, Amicus on Behalf of Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

512 F.3d 455

M.M., by and through her parent and natural guardian, L.R., Plaintiff-Appellee, v. SPECIAL SCHOOL DISTRICT NO. 1, et al., Defendants-Appellants.

Minnesota School Boards Association, Amicus on Behalf of Appellants.

No. 06-3572.

United States Court of Appeals, Eighth Circuit.

Submitted: April 2, 2007.

Filed: January 4, 2008.

Laura T. Booth, argued, Plymouth, MN, for appellant.

Margaret O. Kane, argued, St. Paul, MN, for appellee.

Before LOKEN, Chief Judge, BEAM and RILEY, Circuit Judges.

LOKEN, Chief Judge.

M.M. is a child with educational disabilities who attends Minneapolis public schools in Minnesota's Special School District No. 1 (the District). The Individuals with Disabilities Education Act (IDEA) provides that M.M. is entitled to a free appropriate public education (FAPE) that includes special education and related services tailored to her unique needs. See 20 U.S.C. §§ 1400(d)(1)(A), 1401(14). In May 2005, dissatisfied with the results of a mediation agreement, M.M.'s parent, L.R., requested a due process hearing under IDEA and state law. See 20 U.S.C. § 1415(f); Minn.Stat. § 125A.091, subd. 12-14. L.R. alleged that the District had imposed suspensions, exclusions, and administrative transfers that denied M.M. her right to a FAPE during the 2003-2004 and 2004-2005 school years.

After a hearing, the state Administrative Law Judge (ALJ) determined that the District violated the IDEA in both school years and awarded 188 hours of compensatory educational services. M.M. then filed this action seeking an award of costs and attorney's fees. See 20 U.S.C. § 1415(i)(3)(B). The District filed a counterclaim, challenging the ALJ's decision. The district court reduced the compensatory services award by eight hours and awarded M.M. substantial costs and attorney's fees. M.M. v. Special Sch. Dist. No. 1, No. 05-2270, 2006 WL 2571229 (D.Minn. Sept.5, 2006). The District appeals. Reviewing the district court's ultimate determination that M.M. did not receive a FAPE de novo, we reverse. See CJN v. Minneapolis Pub. Sch., 323 F.3d 630, 637 (8th Cir.), cert. denied, 540 U.S. 984, 124 S.Ct. 478, 157 L.Ed.2d 375 (2003) (standard of review).

I. The Burden of Proof Issue

Consistent with Minnesota law, the ALJ ruled that the District must prove, "by a preponderance of the evidence, that it is complying with the law and offered or provided a [FAPE] to the child in the least restrictive environment." Minn.Stat. § 125A.091, subd. 16. Following the hearing, the Supreme Court held that, if state law is silent, the burden of persuasion in an IDEA proceeding lies with the party seeking relief, here, M.M. Schaffer v. Weast, 546 U.S. 49, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005). The Court declined to decide whether this rule would apply in States such as Minnesota that explicitly assign the burden elsewhere. Id. at 61-62, 126 S.Ct. 528. However, we subsequently held that it was error to assign the burden of persuasion to a Minnesota school district in an action to enforce the procedural and substantive requirements of the IDEA. School Bd. of I.S.D. No. 11 v. Renollett, 440 F.3d 1007, 1010 n. 3 (8th Cir. 2006).

Though Schaffer and Renollett were decided after the due process hearing, they apply to this pending case. See Harper v. Va. Dept. of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993). The district court noted but declined to follow our decision in Renollett, concluding "that a close reading of Schaffer ... does not support the IDEA's preemption of Minnesota law on this point." M.M., 2006 WL 2571229 at * 15. This was fundamental error. Our decision in Renollett is controlling until overruled by our court en banc, by the Supreme Court, or by Congress. Though the district court described our discussion of the issue as "cursory," our opinion in Renollett cited the page in Schaffer that left the question open, and we then decided the question for the courts of this circuit.

"Placing the burden of proof on the incorrect party is reversible error" unless the error relates to an "immaterial issue." West Platte R-II Sch. Dist. v. Wilson, 439 F.3d 782, 785 (8th Cir.2006) (citations omitted). We further conclude that the ALJ's award of compensatory educational services and the district court's award of attorneys' fees under the IDEA must be reversed on the merits.

II. The 2003-2004 School Year

Emotional and behavioral issues were noted as a secondary disability when M.M. began receiving special educational services in the third grade. Serious behavioral issues emerged in April 2003, during her sixth grade year, when she brought a four and one-half inch serrated steak knife to Franklin Middle School. M.M. explained that she brought it to school in response to threats by two female classmates. An assistant principal recommended that M.M. be expelled. Instead, the District provided her homebound instruction for the remainder of that school year and transferred her to the Lucy Laney Community School (Laney) that Fall.

When M.M. began the 2003-04 school year at Laney, the District at L.R.'s request re-evaluated M.M.'s educational needs and performance and concluded that she continued to be eligible for special educational services. The evaluation identified "Emotional, Social, and Behavior" as now being M.M.'s primary disability, SNAP her secondary disability,¹ and Speech Language an additional disability. The November 2003 individualized education program (IEP)² set emotional and behavioral goals addressing M.M.'s frequent talking in class; kicking and hitting other students at least eight times a day; sleeping and refusing to work three to five days a week; and completing just 30% of her assignments. The IEP set educational goals in math, reading, and speech articulation, and the IEP team developed a Behavior Intervention Plan designed to decrease M.M.'s inappropriate behavior and increase her work completion through closer supervision and "tangible reinforcers."

In February 2004, M.M. was suspended when she got into a fight with another student and kicked and punched a staff member who intervened. The IEP team determined "that the setting here at Lucy Laney is not appropriate," extended the suspension to ten days, and reported that M.M. "will be transferred to another school." The report stated that L.R. "left the meeting early (upset)," but she did not request a due process hearing. M.M. was administratively transferred to Olson Middle School (Olson) on March 15, 2004, where she completed the 2003-2004 school year. A June 1, 2004, assessment reported that M.M. made adequate progress on her reading and math goals but insufficient progress on her behavioral goals. A social worker at Olson testified that M.M. made behavioral progress in the spring of 2004.

The ALJ concluded that M.M. was denied a FAPE during the 2003-2004 school year because suspensions from school and the District's failure to review and revise her IEP before she was transferred from Laney to Olson "caused a loss of educational benefit." The ALJ awarded twenty hours of compensatory special education services. The district court reduced the award by eight hours but held that M.M. failed to make adequate progress toward her goals between November 2003 and her transfer to Olson in March 2004, "and the District violated her FAPE rights when it did not review and revise the IEP prior to the transfer."

A.

In the fall of 2004, L.R. enrolled M.M. at the Colonel Charles Young Military Academy, a charter school not part of the District. However, one month later, L.R. re-enrolled M.M. at Olson. Relying on three prior decisions,³ the District argues that the ALJ lacked jurisdiction to hear claims from the 2003-2004 school year because, by withdrawing M.M. from the District without first requesting a due process hearing, L.R. waived her right to challenge educational services provided by the District before the withdrawal.

As the ALJ and the district court noted, our prior cases involved students who were no longer attending school in the school district when the due process hearing was requested. Minnesota law then provided that the hearing "be initiated and conducted by and in the district responsible for assuring that an appropriate program is provided." Minn.Stat. § 125A.09, subd. 6 (2000).⁴ We therefore held that "challenges to the student's previous education become moot because the new school district is responsible for providing a due process hearing." Thompson, 144 F.3d at 579. This was a ruling on the merits (failure to state a claim), not a denial of subject matter jurisdiction. Here, M.M. re-enrolled in the District's schools long before L.R. requested the due process hearing. The District's argument that either the ALJ or the district court lacked jurisdiction is without merit.

On the other hand, the ALJ and the district court ignored an additional basis for our decision in Thompson:

The purpose of requesting a due process hearing is to challenge an aspect of a child's education and to put the school district on notice of a perceived problem. Once the school district receives notice, it has the opportunity to address the alleged problem.

144 F.3d at 579. After M.M. was suspended for assaulting another student and a member of the Laney staff, L.R. left the IEP team meeting convened to consider the problem, did not request revisions to M.M.'s IEP, did not protest the transfer to Olson or request a due process hearing, and then enrolled M.M. outside the District that fall. Though M.M. re-enrolled at Olson shortly thereafter, this sequence of events gave the IEP team and the District no timely notice of a claim that M.M.'s otherwise appropriate IEP should have been revised before her transfer to Olson. The IDEA required the District to revise M.M.'s IEP "as appropriate to address [] any lack of expected progress toward the annual goals and in the general education curriculum." 20 U.S.C. § 1414(d)(4)(A)(ii)(I). Input from L.R. was...