Durbrow v. Cobb Cnty. Sch. Dist.

• Decision Date: 17 April 2018
• Docket Number: No. 17-11400,17-11400
• Citation: 887 F.3d 1182
• Parties: Connor DURBROW, Robert Durbrow, Christy Durbrow, Plaintiffs-Appellants, v. COBB COUNTY SCHOOL DISTRICT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

887 F.3d 1182

Connor DURBROW, Robert Durbrow, Christy Durbrow, Plaintiffs-Appellants,

v.COBB COUNTY SCHOOL DISTRICT, Defendant-Appellee.

No. 17-11400

United States Court of Appeals, Eleventh Circuit.

April 17, 2018

Chris E. Vance, Chris E. Vance, PC, Atlanta, GA, for Plaintiffs–Appellants

Randall C. Farmer, Michael Dane Deariso, Gregory Doyle Calhoun & Rogers, LLC, Marietta, GA, for Defendant–Appellee.

Before MARCUS and NEWSOM, Circuit Judges, and MOORE,^* District Judge.

MARCUS, Circuit Judge:

At issue in this appeal are several matters relating to the right of an intellectually disabled child to access appropriate public education. The two essential questions presented boil down to this: whether appellants' claims of disability-based discrimination under § 504 of the Rehabilitation Act ("§ 504"), 29 U.S.C. § 794, and Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq ., must be administratively exhausted under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq . ; and whether the IDEA compels a public school district to provide special education to a student with Attention Deficit Hyperactivity Disorder who displays vast academic potential but struggles to complete his work.

Parents Robert and Christy Durbrow and their son Connor ("the Durbrows") appeal from the dismissal of their claims that the Cobb County School District ("the School District" or the "CCSD") discriminated against Connor based on his disability by failing to furnish him with special education services. The district court dismissed their § 504 and ADA claims for noncompliance with the IDEA’s exhaustion requirement. The Durbrows also appeal from the denial of their claim that the School District violated its IDEA obligation to evaluate Connor and provide him with uniquely tailored special education. The district court concluded that Connor was entitled to neither an IDEA evaluation nor special education because he did not qualify as a "child with a disability."

We affirm the judgment of the district court.

I.

A.

Despite his Attention Deficit Hyperactivity Disorder ("ADHD") diagnosis in third grade, Connor advanced from elementary school through his junior year of high school. Although some of his teachers expressed concern about his difficulties with organization and time management, Connor nonetheless excelled in advanced academic programs and on standardized tests. After graduating from middle school in fall 2009, Connor was admitted into the selective Magnet Program at Wheeler High School, an accelerated course of study for high-achieving math and science students. Beginning in Connor’s freshman year, the School District accommodated Connor’s ADHD with a § 504 Plan,¹ affording Connor extended test and quiz time, early morning math classes, and small class sizes. Connor’s freshman-year counselor, Ms. Suttles, also offered to help Connor stay organized, but the Durbrows declined for fear that Connor might feel singled out.

All went well under Connor’s freshman-year § 504 Plan, as he passed all of his classes and aced his End of Course Tests ("EOCTs"). Indeed, Connor exhibited such prowess in his Electronics course that his teacher, Mr. George, hired him to solder electric guitar pedals. Although Connor was failing his freshman-year math class at some point during the semester, other students' grades experienced similar ebbs, and Connor’s final grade and EOCT score demonstrated his command of the material.

Connor’s sophomore and junior years proceeded similarly under the same § 504 Plan. He again earned all As on EOCTs and passed all his classes, excelling especially in Electronics, about which he proudly remarked, "I was really into not only just learning, but also helping other students to learn because I was able to grasp the material very quickly." He enjoyed answering questions in front of the class, maintained voluminous notebooks, completed complex projects, joined the Robotics Team, and even developed an idea for engineering a carnival game using LED lighting. Connor likewise dominated standardized tests. He shined on the PSAT, scoring in the 87th percentile in Critical Reading, 98th percentile in Math, and 90th percentile in Writing Skills. He ranked "at or above level" in every subject on the ACT. As for the SAT, he scored in the 95th percentile for Reading, 98th percentile for Math, and 94th percentile for Writing.

Connor’s junior-year teachers unanimously dismissed the suggestion that he needed special education. Two teachers wrote him letters of recommendation to attend MIT. Mr. George regarded Connor as a "natural-born engineer" who stayed on task without special assistance. Mr. Shields, Connor’s AP U.S. History teacher, regarded Connor as an intelligent, competent, and sociable guy who could read, write, and analyze better than most. Because he was capable of keeping up with coursework, his parents and teachers attributed his occasionally lackluster performance to insufficient focus and effort. Thus, for example, Ms. Walls, Connor’s AP Calculus teacher, believed Connor could have gotten a higher grade if he had simply attended office hours and prepared flash cards. Mr. Shields similarly perceived that, although Connor passed his class, he had not fulfilled his academic potential. Likewise, Connor’s parents implored him to "stop blowing off [his] responsibilities" and expressed "disappoint[ment] in [his] choices" when his grades fell short of what they believed he was capable.

Connor’s academic performance plummeted in his senior year, with regrettable consequences. While Connor had failing grades at some point during the semester in freshman year through junior year, he ultimately passed every class. Senior year marked the first time he received an "F." Connor amassed late and incomplete work throughout the year, culminating in five failing grades: Advanced Research and Advanced Internship in the fall; and AP Calculus, Engineering Applications, and Honors World Literature in the spring. As a consequence, the School District removed Connor from the Magnet Program and prevented him from graduating in June 2013.

In October 2012, midway through the fall of Connor’s senior year when his grades began to deteriorate, the Durbrows and the School District convened another § 504 Plan meeting. During that meeting, Connor admitted to procrastinating. The CCSD responded by expanding Connor’s § 504 Plan to include authorization to audio record classes, access to online class notes, and reduced math homework. As Connor’s GPA decline steepened, the School District granted him additional accommodations at yet another § 504 Plan meeting in May 2013. That meeting highlighted the essential difficulty raised by Connor’s academic turbulence: his failure to complete homework and capitalize on extra exam time. Yet those issues were especially difficult for the School District to remedy, since school counselors are generally unable to manage a student’s after-school schedule.

In concert with the May 2013 meeting, and at the Durbrows' request, the CCSD initiated the process for determining Connor’s eligibility for special education. At a September 2013 meeting, the School District found Connor IDEA-eligible based on his failure to timely submit assignments during his senior year. The CCSD’s special education supervisor believed that Connor’s incomplete work was due to his ADHD. Yet both Connor and his senior-year teachers attributed his failing grades not to his disability, but rather to procrastination. In Dr. Adams’s Advanced Internship, although Connor demonstrated academic potential, he accumulated many missing assignments. After submitting them untimely, Connor sent Dr. Adams an apology email in which he took ownership of his "lack of effort" and acknowledged, "[I]t's about time that I grow up and start taking responsibility for my own mistakes." Dr. Adams concluded, based on 26 years of teaching experience, that Connor’s disability did not prevent him from learning.

The other teachers who gave Connor failing grades voiced the same opinion. None blamed Connor’s competency; all blamed Connor’s choices.

B.

Litigation commenced on May 20, 2013, when the Durbrows filed a Due Process Hearing Request with the Georgia Office of State Administrative Hearings (OSAH) alleging that the Cobb County School District failed to identify, locate, and evaluate Connor, in violation of the IDEA and § 504; deprived Connor of a "free appropriate public education" ("FAPE") under the IDEA; denied the Durbrows their procedural rights in violation of the IDEA and § 504; and discriminated against Connor based on his disability under § 504. While the introduction of their Due Process Hearing Request referenced the Americans with Disabilities Act ("ADA"), the Request raised only IDEA and § 504 claims.

The School District moved to consolidate hearings on the Durbrows' IDEA and § 504 claims into a single proceeding; the Durbrows opposed consolidation. The OSAH administrative law judge ("ALJ") then denied the CCSD’s motion to consolidate, after which the Durbrows withdrew their request for a § 504 hearing. Not surprisingly, the ALJ then scheduled a hearing on only the Durbrows' IDEA claims.

The School District defended, urging that some of the Durbrows' claims were time-barred under the IDEA’s statute of limitations. The Durbrows countered that they had requested the CCSD to evaluate Connor for special education, but the CCSD failed to inform them of their IDEA procedural rights, thereby tolling the limitations period. But the ALJ found as a fact that the Durbrows did not request an IDEA evaluation until Connor’s senior year, when the School District promptly provided the Durbrows with notice of their procedural rights.

Following a substantive hearing on the Durbrows' IDEA claims, the ALJ entered a Final Decision in favor of the School District. Specifically, the ALJ found that, because Connor did not qualify as a "child with a...