516 F.3d 254 (4th Cir. 2008), 06-2068, J.P. ex rel. Peterson v. County School Bd. of Hanover County, Virginia

Docket Nº:06-2068, 07-1320.
Citation:516 F.3d 254
Party Name:J.P., a minor, by and through his parents and next friends, Karl PETERSON and Linda Peterson; Karl Peterson; Linda Peterson, Plaintiffs-Appellees, v. COUNTY SCHOOL BOARD OF HANOVER COUNTY, VIRGINIA, Defendant-Appellant. Virginia School Boards Association, Amicus Supporting Appellant, Children's Law Center, of the University of Richmond School of La
Case Date:February 14, 2008
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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516 F.3d 254 (4th Cir. 2008)

J.P., a minor, by and through his parents and next friends, Karl PETERSON and Linda Peterson; Karl Peterson; Linda Peterson, Plaintiffs-Appellees,

v.

COUNTY SCHOOL BOARD OF HANOVER COUNTY, VIRGINIA, Defendant-Appellant.

Virginia School Boards Association, Amicus Supporting Appellant,

Children's Law Center, of the University of Richmond School of Law; Virginia Office for Protection and Advocacy, Amici Supporting Appellees.

J. P., a minor, by and through his parents and next friends, Karl Peterson and Linda Peterson; Karl Peterson; Linda Peterson, Plaintiffs-Appellees,

v.

County School Board of Hanover County, Virginia, Defendant-Appellant.

Nos. 06-2068, 07-1320.

United States Court of Appeals, Fourth Circuit.

February 14, 2008

Argued Dec. 6, 2007.

Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, District Judge. (3:06-cv-00028-REP).

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ARGUED:

(No. 06-2068) John Francis Cafferky, Blankingship & Keith, P.C., Fairfax, Virginia, for Appellant.

Philip Carter Strother, Richmond, Virginia, for Appellees.

(No. 07-1320) Bradford Allen King, Harrell & Chambliss, Richmond, Virginia, for Appellant.

Robert Jackson Allen, Strother Law Offices, P.L.C., Richmond, Virginia, for Appellees.

ON BRIEF:

(No. 06-2068) Yvonne S. Wellford, Office of the County Attorney, Hanover, Virginia; Bradford A. King, Harrell & Chambliss, Richmond, Virginia, for Appellant.

Robert Jackson Allen, Strother Law Offices, P.L.C., Richmond, Virginia, for Appellees.

Kathleen S. Mehfoud, Reed Smith, L.L.P., Richmond, Virginia, for Amicus Supporting Appellant.

Adrienne E. Volenik, Director, Jovonni Armstead, Kathleen Murphy, Rebecca Rockwood, Andrea Tompkins, Jerrell Williams, Third Year Law Students, Disability Law Clinic, Children's Law Center, Richmond School of Law, University of Richmond, Virginia; Jonathan Martinis, Virginia Office for Protection and Advocacy, Richmond, Virginia, for Amici Supporting Appellees. (No. 07-1320) Yvonne S. Wellford, Office of the County Attorney, Hanover, Virginia, for Appellant.

Philip Carter Strother, Richmond, Virginia, for Appellees.

Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Vacated and remanded by published opinion. Judge TRAXLER wrote the opinion, in which Judge NIEMEYER and Senior Judge HAMILTON joined.

OPINION

TRAXLER, Circuit Judge:

In this case arising under the Individuals with Disabilities Education Act ("IDEA"), the parents of J.P., a young boy with autism, challenged the sufficiency of an individualized education program ("IEP") developed for J.P by the County School Board of Hanover County, Virginia. After the state hearing officer concluded that the IEP was adequate, the parents sought to overturn that decision in federal district court. Examining the case de novo, the district court determined that the hearing officer's factual findings were not regularly made and were entitled to no deference. The district court concluded that the IEP for J.P. was not adequate, that the private school where the parents had enrolled J.P. was an appropriate placement, and that the School Board was therefore obligated to pay the costs of the private school. In a subsequent order, the district court awarded the parents, as prevailing

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parties, attorneys fees and costs of more than $180,000. The School Board appeals the district court's decision on the merits of the parents' IDEA claims (appeal no. 06-2068) and separately appeals the attorney's fee order (appeal no. 07-1320).

We conclude that the district court failed to give the required deference to the state hearing officer's decision, and we therefore vacate the district court's order (no. 06-2068) and remand with instructions that the district court reconsider the question of the appropriateness of the IEP proposed for J.P. We likewise vacate the district court's order awarding attorney's fees and costs (no. 07-1320), and we remand for reconsideration of the parents' entitlement, should they remain prevailing parties, to an award of attorney's fees.

I. Appeal No. 06-2068

Under the IDEA, all states receiving federal funds for education must provide disabled schoolchildren with a "free appropriate public education" ("FAPE"). 20 U.S.C.A. § 1412(a)(1)(A) (West Supp. 2007). A FAPE "consists of educational instruction specially designed to meet the unique needs of the handicapped child, . . . supported by such services as are necessary to permit the child to benefit from the instruction." Board of Educ. v. Rowley, 458 U.S. 176, 188-89, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (internal quotation marks omitted).1

A school provides a FAPE by developing an IEP for each disabled child. Appropriate IEPs "must contain statements concerning a disabled child's level of functioning, set forth measurable annual achievement goals, describe the services to be provided, and establish objective criteria for evaluating the child's progress." MM v. School Dist., 303 F.3d 523, 527 (4th Cir. 2002); see 20 U.S.C.A. § 1414(d)(1)(A). An IEP is sufficient if it is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207, 102 S.Ct. 3034.

A.

J.P. was born on January 4, 1994, and was diagnosed as autistic at eighteen months. In 2001, J.P. began school as a first grader in a special education program at Battlefield Park Elementary School in Hanover County. The parents were not satisfied with the progress J.P. was making at Battle Creek, and in May 2003, the parents enrolled him in the Spiritos School, a private school specializing in the education of autistic children.

Spiritos uses the "applied behavioral analysis" ("ABA") approach to teaching autistic children. The ABA approach is a form of the Lovaas methodology, which "relies heavily on extremely structured teaching and comprehensive data collection and analysis." Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 845-46 (6th Cir. 2004); see G v. Fort Bragg Dependent Sch., 343 F.3d 295, 300 n.6 (4th Cir. 2003). The central component of the Lovaas-ABA methodology is "discrete trial" training or therapy, which "involves breaking down activities into discrete tasks and rewarding a child's accomplishments." MM, 303 F.3d at 528 n.8. Research has indicated that early intervention with ABA methods can be very successful. See Deal, 392 F.3d at 845 n.2.

J.P. made significant gains at Spiritos during the following year. The parents,

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however, returned him to the public school system for the 2004-05 school year, because they wanted him to succeed in the public school setting.

The IEP developed by the School Board for the 2004-05 school year (the "2004 IEP") placed J.P. in a self-contained special education class at Rural Point Elementary School. An addendum to the 2004 IEP provided for an instructional aide to be assigned to J.P. exclusively, thus...

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