J.P. ex rel. Peterson v. County School Bd. Hanover

• Decision Date: 14 February 2008
• Docket Number: No. 07-1320.,No. 06-2068.,06-2068.,07-1320.
• Citation: 516 F.3d 254
• Parties: 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.
• Court: U.S. Court of Appeals — Fourth Circuit

516 F.3d 254

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.

No. 06-2068.

No. 07-1320.

United States Court of Appeals, Fourth Circuit.

Argued December 6, 2007.

Decided February 14, 2008.

Appeal from the United States District Court for the Eastern District of Virginia, Robert E. Payne, J. 447 F.Supp.2d 553.

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. Well-ford, 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. WeIlford, 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 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 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 giving J.P. one-on-one instruction. The IEP stated that the aide would "receive[] training in methods that are proven to work" with autistic children, and that the Board would "arrange for the aide to receive training from a Certified Behavior Analyst from a program such as the Faison School."² J.A. 192. The addendum also stated that J.P.'s academic setting "will include opportunities for [J.P.] to receive discrete trials when and where the instructional personnel deem appropriate." J.A. 192.

Although the parents agreed to the 2004, IEP, they quickly became concerned about J.P.'s progress at Rural Point. By June 2005, the parents had concluded that J.P. was regressing rather than progressing under the 2004 IEP. The School Board, however, believed that J.P. was making sufficient progress under the IEP, and the board proposed for the 2005-06 school year an IEP (the "2005 IEP") that was essentially the same as the 2004 IEP. Because the parents believed that J.P. had made no progress under the 2004 IEP, they also believed that he would not make progress under the largely identical 2005 IEP. The parents requested that J.P. be placed (at public expense) in a private specialty school like Spiritos. When the county denied that request, the parents enrolled J.P. in the Dominion School, a private school for autistic children. In accordance with their rights under the IDEA, see 20 U.S.C.A. § 1415(f)(1), the parents sought a due process hearing to determine whether the proposed 2005 IEP was adequate to provide J.P. with a FAPE.

After considering the evidence presented during the due process hearing, the state hearing officer rejected the parents' request that the School Board reimburse them for the cost of J.P.'s tuition at Dominion, concluding that J.P. had made more than minimal progress during the 2004-2005 school year and that both the 2004 IEP and the proposed 2005 IEP were appropriate under the IDEA and governing law. The parents then commenced this action in federal district court seeking review of the hearing officer's ruling.

The district court determined that the hearing officer's factual findings were not regularly made and were therefore entitled to no deference. Resolving the underlying factual questions de novo, the district court concluded that J.P. had made no progress at Rural Point under the 2004 IEP. And because the 2005 IEP was, in essence, a continuation of the 2004 IEP, the district court concluded that the 2005 IEP was not reasonably calculated to enable J.P. to receive educational benefits. The district court concluded that. Dominion was an appropriate placement for J.P. and that the School Board must therefore reimburse the parents for the costs of educating J.P. at Dominion. This appeal followed.

B.

The appropriateness of an IEP is the central issue in most IDEA cases. Whether an IEP is appropriate is a factual question, see DiBuo v. Board of Educ., 309 F.3d 184, 188 n. 8 (4th Cir.2002), one that the IDEA charges the district court with answering based on the preponderance of the evidence, see 20 U.S.C.A. § 1415(i)(2)(C)(iii); ...