M.S. ex rel. Simchick v. Fairfax County School Bd.
| Decision Date | 14 January 2009 |
| Docket Number | No. 07-1555.,07-1555. |
| Citation | 553 F.3d 315 |
| Parties | M.S., a minor, by and through his parents and next friends, Carl and Jacqueline SIMCHICK; Jacqueline Simchick, Plaintiffs-Appellants, v. FAIRFAX COUNTY SCHOOL BOARD, Defendant-Appellee, and Fairfax County Public Schools; Jack Dale, individually and in his official capacity as Superintendent of Fairfax County Public Schools; Joyce Suydam, individually and in her official capacity as Director of Secondary Special Education Services, Fairfax County Public Schools; Eleanor Barnes, individually and in her official capacity as the former Coordinator of Special Education Monitoring and Compliance, and currently as Director of Student Services, Fairfax County Public Schools; Martin Humbertson, individually and in his official capacity as Coordinator of Special Education Monitoring and Compliance, Fairfax County Public Schools; Virginia Department of Education; Virginia Board of Education; Jo Lynne Demary, individually and in her official capacity as State Superintendent of Public Instruction for the State of Virginia; Judith Douglas, individually and in her official capacity as Director of Dispute Resolution and Administrative Services, Virginia Department of Education, Defendants. Children's Law Center; Virginia Office for Protection and Advocacy, Amici Supporting Appellants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: William Henry Hurd, Troutman & Sanders, L.L.P., Richmond, Virginia, for Appellants. John Francis Cafferky, Blankingship & Keith, P.C., Fairfax, Virginia, for Appellee. ON BRIEF: Siran S. Faulders, Stephen C. Piepgrass, Troutman & Sanders, L.L.P., Richmond, Virginia, for Appellants. Thomas J. Cawley, Jill Marie Dennis, Hunton & Williams, McLean, Virginia, for Appellee. Adrienne E. Volenik, Director, Disability Law Clinic, Alisa Ferguson, Third Year Law Student, Children's Law Center, Richmond School of Law, University of Richmond, Virginia; Jonathan Martinis, Managing Attorney, Virginia Office for Protection and Advocacy, Richmond, Virginia, for Amici Supporting Appellants.
Before WILLIAMS, Chief Judge, WILKINSON, Circuit Judge, and RICHARD L. VOORHEES, United States District Judge for the Western District of North Carolina, sitting by designation.
Affirmed in part and vacated and remanded with instructions in part by published opinion. Chief Judge WILLIAMS wrote the opinion, in which Judge WILKINSON and Judge VOORHEES joined.
M.S., a student with multiple disabilities in the Fairfax County, Virginia schools, appeals from a district court order in this action involving the application of the Individuals with Disabilities in Education Act ("IDEA"), codified at 20 U.S.C.A. § 1400 et seq. (West 2000 & Supp.2008). In particular, M.S.'s parents appeal the district court's denial of reimbursement for his parental placement from 2002-2005, and its finding that the Fairfax County School Board's 2005-2006 Individualized Education Program ("IEP") for M.S. was adequate under the IDEA. Because the district court failed to evaluate the parental placement on a year-by-year basis and to consider whether partial reimbursement might be appropriate, we vacate the district court's denial of reimbursement for the parental placement and remand for further proceedings. We affirm the district court's finding that the 2005-2006 IEP developed by Fairfax County was adequate under the IDEA.
An overview of the IDEA and its relevant procedures will help place the following discussion in context. Congress passed the IDEA to provide disabled children with programs "that emphasize[ ] special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C.A. § 1400(d)(1)(A). The IDEA requires all states receiving federal education funds to provide disabled school-children with a "free appropriate public education" ("FAPE"). 20 U.S.C.A. § 1412(a)(1)(A). 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." Bd. of Educ. v. Rowley, 458 U.S. 176, 188-89, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (internal quotation marks omitted).
IEPs are the primary vehicle through which schools provide a particular student with a FAPE. To that end, 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 ex rel. DM v. Sch. Dist., 303 F.3d 523, 527 (4th Cir.2002); see 20 U.S.C.A. § 1414(d)(1)(A). Further, an IEP must ultimately be "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207, 102 S.Ct. 3034.
The IDEA prescribes procedures for developing and challenging IEPs. 20 U.S.C.A. § 1415. Parents may participate in the IEP development process and may challenge IEPs they believe are inadequate. § 1415(b)-(h). To challenge an IEP, parents must present complaints to the school and request a due process hearing. § 1415(b)(6), (f)(1)(A). These procedural safeguards are "designed to ensure that the parents or guardian of a child with a disability are each notified of decisions affecting their child and given an opportunity to object to these decisions." MM ex rel. DM, 303 F.3d at 527 (internal quotation marks omitted).
M.S. was born in 1988 and currently resides in Fairfax County, Virginia, where he was enrolled in public school from 1996-2002.1 M.S. has been diagnosed with mental retardation, mild to moderate autism, and a significant communication disorder.2 This communication disorder contains two components: severe verbal and oral motor dyspraxia, which affects the mechanical abilities of speech, and auditory processing delays.3 M.S. has a very limited ability to speak and must frequently use sign language to communicate. M.S. also suffers from severe deficits in his short-term memory.4 M.S.'s IQ is generally measured at between 37 and 41, the approximate mental functioning of a four-year old.
Although Fairfax County prepared annual IEPs for M.S. in each of the six years he was enrolled in Fairfax County schools, he made little progress while enrolled there. In fact, during these six years, M.S. only mastered the academic objectives specified in his IEPs once. Moreover, by 2002, the end of M.S.'s eighth grade year, he could only make approximately fifteen signs for sign language and produce roughly twelve to fifteen words intelligibly. His ability to identify words was significantly limited: on one test, administered three times during the eighth grade, he was able to identify only three words: "a," "I," and "no."5 (J.A. at 1027.) He was unable to count higher than six and became discouraged in his efforts to communicate.
On December 21, 2001, M.S.'s parents initiated a due process hearing, suggesting placement at the Lindamood-Bell Center, a facility focusing on the "building blocks" of communication—phonemic awareness, symbol imagery, and concept imagery. On March 5, 2002, Fairfax County proposed to pay for twelve weeks of attendance at Lindamood-Bell on the condition that M.S. return to Fairfax County schools at completion of the twelve weeks. The parents declined this offer.
On May 28, 2002, following a formal hearing finding that M.S. suffers from several disabilities, including autism, Fairfax County finally acknowledged that M.S. should be classified as having "[m]ultiple [d]isabilities."6 (J.A. at 1122.) Thereafter, Fairfax County and M.S.'s parents met to discuss an IEP for 2002-2003, M.S.'s freshman year in high school. Fairfax County rejected the parents' request to place M.S. at Lindamood-Bell, and recommended an IEP similar to those of the preceding six years. Specifically, Fairfax County's IEP contained no assurances that M.S. would receive the one-on-one instruction that his parents requested. The IEP provided two hours per week of speech and language therapy, one-and-a-half hours per week of physical education, and one-half hour per week of written language, in addition to other courses, including reading, independence and community skills, communication, articulation, and oral motor and math skills. In total, twenty-three-and-one-half hours per week of special education in both small-group special education classes and general education classes with special education support were to be provided.
On June 24, 2002, the parents rejected the proposed 2002-2003 IEP and informed Fairfax County that they intended to enroll M.S. privately at Lindamood-Bell. At the parents' request, Fairfax County prepared additional IEPs for the 2002-2005 school years, all of which provided a life skills program to address work behavior, social skills, and peer interaction, in addition to academics. None, however, guaranteed any one-on-one instruction.
After deciding to remove M.S. from Fairfax County public schools, but before deciding on Lindamood-Bell, his parents contacted at least three private schools in the area. M.S. was denied admission to two, and the third school had no openings at the time. Accordingly, M.S.'s parents crafted the following education program for M.S., which focused primarily on one-on-one academic education as opposed to group classroom settings:
Lindamood-Bell Center: one-on-one instruction for five days per week (six hours per day during the school year and four hours per day during the summer);
Sign Language: one-on-one instruction from a licensed Virginia teacher (one hour per week);
Speech and Language Therapy: one-on-one speech and language therapy from Building Blocks Therapy, LLC and Kids Communication Center (three hours per week);
Physical Therapy: participation in group activities such as the Broad...
To continue reading
Request your trial
-
D.B v. Bedford County Sch. Bd.
...3034. Progress (or the lack thereof) is not dispositive with respect to whether a child receives FAPE. M.S. ex rel. Simchick v. Fairfax Co. Sch. Bd., 553 F.3d 315, 327 (4th Cir.2009); In re Conklin v. Anne Arundel Co. Bd. of Educ., 946 F.2d 306, 313 (4th Cir.1991). The IDEA does not require......
-
S.S. v. Bd. of Educ. of Harford Cnty.
...200, 102 S.Ct. 3034. For this reason, "progress, or lack thereof, while important, is not dispositive." M.S. ex rel. Simchick v. Fairfax Cnty. Sch. Bd. , 553 F. 3d 315 (4th Cir. 2009). A student's educational program is not inappropriate when the student does not achieve all of the goals an......
-
L.J. ex rel. N.N.J. v. Sch. Bd. of Broward Cnty.
...anticipated needs.” § 1414(d)(4). 3.See e.g. Diaz–Fonseca v. Puerto Rico, 451 F.3d 13 (1st Cir.2006); M.S. ex rel. Simchick v. Fairfax County School Board, 553 F.3d 315 (4th Cir.2009) (court can order that private school tuition be reimbursed); Park ex rel. Park v. Anaheim Union High School......
-
G.L. v. Ligonier Valley Sch. Dist. Auth.
...of Phila., 612 F.3d 712, 715 (3d Cir.2010) (affirming award of three years of compensatory education); M.S. ex rel. Simchick v. Fairfax Cnty. Sch. Bd., 553 F.3d 315, 324 (4th Cir.2009) (holding that the broad discretion afforded under the IDEA allowed a district court to consider reimbursem......
-
Education Equity During COVID-19: Analyzing In-Person Priority Policies for Students with Disabilities.
...at 7 (citation omitted). (174.) See supra notes 54-57 and accompanying text. (175.) See Simchick ex rel. M.S. v. Fairfax Cnty. Sch. Bd., 553 F.3d 315, 327 (4th Cir. 2009) ("The [Act's] preference for mainstreaming was aimed at preventing schools from segregating handicapped students from th......
-
EDUCATION LAW- IDEA ELIGIBILITY: HINDSIGHT IS 20/20- LISA M. EX REL. J.M. V. LEANDER INDEP. SCH. DIST., 924 F.3D 205 (5TH CIR. 2019).
...37, at 1386-88 (identifying circuits utilizing contemporaneous decision review). (40) See Simchick ex rel. M.S. v. Fairfax Cnty. Sch. Bd., 553 F.3d 315, 327 (4th Cir. 2009) (noting "in some situations, evidence of actual progress may be relevant to a determination of whether a challenged IE......
-
Online Travel Companies Find Issues With Hotels Extremely Taxing: Georgia's Hotel-model Occupancy Excise Tax and Expedia, Inc. v. City of Columbus - T.j. Evans
...79. Orange County v. Expedia, Inc., 985 So. 2d 622, 630 (Fla. Dist. Ct. App. 2008). 80. Gilroy, supra note 5; see also Hotels.com, 553 F.3d at 315 (holding that OTCs are not retailers subject to occupancy tax); Priceline.com, 605 F. Supp. 2d at 997 (holding OTCs were operators within the me......