T.B. v. Prince George's Cnty. Bd. of Educ.

• Decision Date: 26 July 2018
• Docket Number: No. 17-1877,17-1877
• Citation: 897 F.3d 566
• Parties: T.B., JR., BY AND THROUGH his Parents, T.B., SR. and F.B., Plaintiff-Appellant, v. PRINCE GEORGE’S COUNTY BOARD OF EDUCATION; Prince George’s County Public Schools; Dr. Kevin M. Maxwell, in his official capacity as Chief Executive Officer of Prince George’s County Public Schools, Defendants-Appellees. Council of Parent Attorneys and Advocates; Disability Rights Maryland, Amici Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

897 F.3d 566

T.B., JR., BY AND THROUGH his Parents, T.B., SR. and F.B., Plaintiff-Appellant,

v.PRINCE GEORGE’S COUNTY BOARD OF EDUCATION; Prince George’s County Public Schools; Dr. Kevin M. Maxwell, in his official capacity as Chief Executive Officer of Prince George’s County Public Schools, Defendants-Appellees.

Council of Parent Attorneys and Advocates; Disability Rights Maryland, Amici Supporting Appellant.

No. 17-1877

United States Court of Appeals, Fourth Circuit.

Argued: March 20, 2018

Decided: July 26, 2018

ARGUED: Dennis Craig McAndrews, MCANDREWS LAW OFFICES, Berwyn, Pennsylvania, for Appellant. Andrew Wayne Nussbaum, NUSSBAUM LAW, LLC, Clarksville, Maryland, for Appellees. ON BRIEF: Anastasia L. McCusker, Joel I. Sher, SHAPIRO SHER GUINOT & SANDLER, Baltimore, Maryland; Michael E. Gehring, MCANDREWS LAW OFFICES, Berwyn, Pennsylvania, for Appellant. Selene Almazan-Altobelli, Catherine Merino Reisman, COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC., Towson, Maryland, for Amici Curiae.

Before GREGORY, Chief Judge, and WILKINSON and AGEE, Circuit Judges.

WILKINSON, Circuit Judge:

T.B., a former student of Prince George’s County Public Schools (PGCPS), alleges that the school district failed to provide him a free appropriate public education in violation of the Individuals with Disabilities Education Act (IDEA). While we agree with the administrative law judge and district court that the school district committed a procedural violation of the IDEA, we also agree with them, that on these facts, the violation did not actually deprive T.B. of a free appropriate public education. We thus affirm the district court’s grant of summary judgment to PGCPS.

I.

T.B. began attending PGCPS schools in elementary school. As an elementary schooler, he received mostly As and Bs, although his performance in reading and math was below grade level. T.B.’s grades took a turn for the worse in middle school. In seventh grade, he received two Cs and four Ds. The following year, he received five Cs, two Ds, and one failing grade (E). His middle school teachers noted that T.B. did "not follow instructions," did "not participate in class," had "[m]issing/incomplete assignments," and received "[p]oor test/quiz grades." J.A. 1900, 1904.

Things did not improve when T.B. began at Friendly High School in 2012. T.B.’s grades, for the most part, continued to decline. He finished ninth grade with two Ds and four Es. He did, however, receive an A in Personal Fitness and a B in Naval Science. In tenth grade, T.B. failed every class except Algebra, in which he received a B. T.B. accordingly failed the tenth grade as a whole and was not able to advance to eleventh grade.

These declining grades reflected, in part, T.B.’s declining attendance. In his two years at Friendly, T.B. recorded a total of 68.5 days of absence. More than 90% of these absences were unexcused. Near the end of T.B.’s tenth grade year, he stopped attending school entirely. On the days that T.B. did attend school, he regularly skipped class or was tardy. In class, T.B. was often disruptive. He would ignore instructions, use his cell phone, and talk to other students during class time. Even in classes he went on to fail, though, T.B. generally performed adequately when he attended class and completed assignments.

T.B.’s academic issues during this time did not go unnoticed. In October 2012, shortly after T.B. started ninth grade, T.B.’s father emailed the guidance counselor at Friendly to request that T.B. be tested for a disability or provided special education services. PGCPS held an Individualized Education Program (IEP) meeting the following month. The IEP team concluded that T.B.’s difficulties were not the result of any learning or other disability. It therefore determined further assessment to be unnecessary, and scheduled a parent-teacher conference for the following January. At the conference, T.B. and his parents met with his teachers and other PGCPS staff to discuss his academic progress and strategies to get him back on track.

When T.B.’s academic performance did not improve, T.B.’s parents continued to request testing or special education services. Because the school district maintained that no testing was necessary, T.B.’s parents retained Basics Group Practice, LLC, to perform an Independent Educational Evaluation (IEE). Basics tested T.B. in May 2014 and diagnosed him with moderate Attention Deficit Hyperactivity Disorder

(ADHD), Specific Learning Disorder with impairment in written expression, and unspecified depressive disorder. T.B.’s father provided the Basics report to PGCPS shortly after receiving it in August 2014.

T.B. transferred from Friendly to Central High School for his second year in tenth grade. T.B.’s career at Central, however, was short-lived. He attended the school for only the first few days of the fall semester before halting his attendance altogether. His parents offered various explanations, among them noise in the school, asthma

, and panic attacks.

Finding the school district insufficiently responsive to their requests for special education, T.B.’s parents filed a Due Process Complaint with the Maryland Office of Administrative Hearings on January 13, 2015. The complaint alleged that T.B. had been denied a free appropriate public education and requested both compensatory education and reimbursement for the Basics IEE.

While proceedings based on that complaint were ongoing, T.B.’s family and PGCPS continued to negotiate appropriate education for T.B. At a January 26, 2015, IEP meeting, T.B.’s parents explained that T.B.’s anxiety had prevented him from attending school in the fall. Following that meeting, the IEP team determined that T.B. should receive additional testing to determine his eligibility for special education.

A PGCPS school psychologist conducted the testing and concluded in late February that T.B. had severe problems with anxiety and was eligible for special education. Following this recommendation, an IEP team concluded in March that T.B. was eligible for special education services on the basis of an emotional disability—namely, anxiety that prevented him from regularly attending school. The team also agreed to offer T.B.’s parents five fee-waived credit recovery courses as compensatory services. In April 2015, following additional IEP meetings, an IEP team recommended a specialized program at Dr. Henry A. Wise, Jr. High School. T.B. never attended the Wise program.

Meanwhile, T.B.’s Due Process Complaint progressed. The matter was assigned to a Maryland administrative law judge (ALJ), who conducted a 6-day hearing that involved 21 witnesses and 95 exhibits. The ALJ ultimately found that PGCPS had committed a procedural violation of the IDEA in failing to conduct testing in response to T.B.’s parents’ requests, but that this violation "did not actually interfere with the provision of a free appropriate public education." J.A. 31 (quoting DiBuo ex rel. DiBuo v. Bd. of Educ. of Worcester Cty. , 309 F.3d 184, 190 (4th Cir. 2002) ). Specifically, the ALJ concluded that "no evidence supports the view that, had testing been promptly provided, the Student would have regularly attended school." J.A. 31. Instead, T.B. "simply [did] not want to go to school. This is the case regardless of the school, the teachers, the courses, the programs, the placement, the accommodations, the class size, or the compensatory services offered." J.A. 31. The ALJ therefore found that T.B. was "not entitled to compensatory education at public expense." J.A. 52. The ALJ also found that T.B. was not entitled to reimbursement for the Basics IEE.

T.B.’s parents filed a complaint in district court under 20 U.S.C. § 1415(i)(2) seeking reversal of the ALJ’s decision, an award of compensatory education, and reimbursement for the Basics IEE. While T.B. ultimately prevailed on the IEE reimbursement question, the district court otherwise affirmed the ALJ’s decision and granted summary judgment to the school district. It agreed that the "finding that T.B. would not have attended school even if he had been tested" supported the "conclusion that the procedural failure to respond to [T.B.’s parents’] request for an evaluation did not actually interfere with the provision of" a free appropriate public education. J.A. 168. The district court accordingly affirmed the ALJ’s denial of compensatory education. T.B. now appeals to this court.¹

II.

A.

The IDEA was enacted "to throw open the doors of public education and heed the needs" of students with disabilities who had for too long been "either completely ignored or improperly serviced by American public schools." In re Conklin , 946 F.2d 306, 307 (4th Cir. 1991).² It operates by way of a simple exchange: the federal government provides funding to the states, who must in return have "in effect policies and procedures to ensure" that every child with a disability has the opportunity to receive a "free appropriate public education" (FAPE). 20 U.S.C. § 1412(a).

Under the IDEA, a FAPE is defined to include "special education and related services" that are provided "without charge" to the child’s family and that "meet the standards of the State educational agency." Id. § 1401(9). A FAPE will also involve an "individualized education program" (IEP) for each eligible child. Id. The Supreme Court has described the IEP as "the centerpiece of the statute’s education delivery system for disabled children." Honig v. Doe , 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). It must include "a statement of the child’s present levels of academic achievement and functional performance," "a statement of measurable annual goals," and "a statement of the special education and related services and supplementary aids and services ... to be provided to the child." 20 U.S.C. § 1414(d)(1)(A)(i). To meet the IDEA’s "substantive obligation," the school must offer an IEP that is "reasonably calculated to enable a child to make progress appropriate in light of...