Cone v. Randolph County Schools Bd. of Educ.

• Decision Date: 22 September 2009
• Docket Number: No. 1:06cv00579.,1:06cv00579.
• Citation: 657 F.Supp.2d 667
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Elliott CONE and Nancy Cone, Individually and on behalf of Elliott Hamilton Cone, III, Plaintiffs, v. RANDOLPH COUNTY SCHOOLS BOARD OF EDUCATION, Defendant.

657 F.Supp.2d 667

Elliott CONE and Nancy Cone, Individually and on behalf of Elliott Hamilton Cone, III, Plaintiffs, v. RANDOLPH COUNTY SCHOOLS BOARD OF EDUCATION, Defendant.

No. 1:06cv00579.

United States District Court, M.D. North Carolina.

September 22, 2009.

COPYRIGHT MATERIAL OMITTED

J. David James, Seth R. Cohen, Smith James Rowlett & Cohen, Greensboro, NC, for Plaintiffs.

Donna R. Rascoe, Cranfill Sumner & Hartzog, Raleigh, NC, for Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

This is an action brought pursuant to the provisions of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Plaintiffs Elliott and Nancy Cone (the "Cones") allege that Defendant Randolph County Schools Board of Education ("RCS") failed to provide an appropriate placement for their son, Elliott Hamilton Cone, III ("Elliott"). (Doc. 1.) Before the court are cross motions for summary judgment; the Cones seek recovery of tuition costs and attorneys' fees, and RCS seeks a ruling that it complied with law in providing placement for Elliott.¹ (Docs. 31 & 33.) For the reasons set forth below, the motions are granted in part and denied in part.

I. FACTS

A. Statutory Framework

Congress enacted the initial version of the IDEA in 1970 to ensure that all children with disabilities were provided "a free appropriate public education which emphasizes special education and related services designed to meet their unique needs [and] to assure that the rights of [such] children and their parents or guardians are protected." Forest Grove Sch. Dist. v. T.A., ___ U.S. ___, 129 S.Ct. 2484, 2491, 174 L.Ed.2d 168 (2009) (internal quotation marks and citation omitted; brackets in original). All states receiving federal education funds are required to provide disabled school children with such "free appropriate public education" ("FAPE"), which "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." M.S. v. Fairfax County Sch. Bd., 553 F.3d 315, 319 (4th Cir.2009) (quoting Bd. of Educ. of the Hendrick Hudson Sch. Dist. v. Rowley, 458 U.S. 176, 188-89, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)); see 20 U.S.C. § 1412(a)(1)(A).

Schools provide a particular student with a FAPE through an Individualized Education Plan ("IEP"). An IEP "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. of Greenville County, 303 F.3d 523, 527 (4th Cir.2002); see 20 U.S.C. § 1414(d)(1)(A). 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.

States receiving IDEA funds must also "establish and maintain procedures ... to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education." 20 U.S.C. § 1415(a). If a parent objects to the identification, placement, or evaluation of his or her child, the state must provide a due process hearing. Id. § 1415(f)(1). At that hearing, the parent has the right to be accompanied by counsel, to present evidence and cross-examine witnesses, and to receive a written record of the hearing and the decision made. Id. § 1415(h)(1)-(4).

North Carolina employs a two-tiered administrative review system. The due process hearing is carried out by a hearing officer, an administrative law judge ("ALJ") selected by the North Carolina Office of Administrative Hearings. Parties aggrieved by the findings of the ALJ may appeal to the State Board of Education, which will appoint a state review officer knowledgeable about special education ("SRO") to review the ALJ's findings and decision.² After the state level appeals process is exhausted, an aggrieved party may seek further review by bringing an action in a federal district court. 20 U.S.C. § 1415(i)(2)(A).

Federal courts apply a two-step inquiry in reviewing a state administrative proceeding in an IDEA case. First, the district court must decide whether the state complied with the IDEA's procedural requirements. Rowley, 458 U.S. at 206, 102 S.Ct. 3034; Tice v. Botetourt County Sch. Bd., 908 F.2d 1200, 1206 (4th Cir. 1990) (holding that a state's failure to comply with the IDEA's procedural requirements can be adequate grounds to conclude that a school district failed to provide a FAPE). Second, the court must decide whether the substance of the IEP is "reasonably calculated" to enable the child to receive educational benefits. Rowley, 458 U.S. at 206-07, 102 S.Ct. 3034. If both requirements are met, "the State has complied with the obligations imposed by Congress and the courts can require no more." Id. at 207, 102 S.Ct. 3034.

B. The Cones' Litigation

The parties have been litigating the appropriate educational placement for Elliott since 2001. See Cone ex rel. Cone v. Randolph County Sch., 302 F.Supp.2d 500 (M.D.N.C.2004), aff'd, 103 Fed.Appx. 731 (4th Cir.2004). The history of Elliott's illness and RCS' provision of services is detailed in this court's prior opinion. See Cone, 302 F.Supp.2d at 504-05. In short, Elliott suffers from Fragile X Syndrome and autism and has been diagnosed with, among other conditions, severe to profound mental retardation. RCS began providing him with special education services in 1993 through various facilities both within and without the state of North Carolina.

The Cones' previous lawsuit challenged RCS' decision to amend Elliott's IEP in July 2001. At the time, Elliott was enrolled at the Benedictine School for Exceptional Children ("Benedictine") in Ridgeley, Maryland, under an IEP developed by RCS. In July 2001, over the Cones' objection, RCS amended Elliott's IEP to place him at the Partners in Autism Treatment and Habilitation ("PATH") program, an in-state residential program located at the Murdoch Center in Butner, North Carolina. The Cones challenged the change through the administrative process. The ALJ concluded that PATH did not provide an appropriate placement for Elliott, but the SRO reversed. The Cones filed suit in this court, and on February 6, 2004, Judge Osteen, Sr., held that RCS complied with the IDEA and could provide Elliott a FAPE through PATH. Cone, 302 F.Supp.2d at 512. That holding was affirmed on appeal, Cone v. Randolph County Sch., 103 Fed.Appx. 731 (4th Cir.2004), and the Supreme Court denied certiorari on January 24, 2005, Cone v. Randolph County Sch., 543 U.S. 1124, 125 S.Ct. 1077, 160 L.Ed.2d 1075 (2005), effectively putting that litigation to an end.

At the time the Cones' litigation terminated, Elliott resided at Benedictine pursuant to an IEP effective from May 7, 2004 to May 5, 2005. The IEP had been instituted under the IDEA's "stay put" provision, which permits a child to "remain in the then-current educational placement" during the pendency of IDEA litigation. 20 U.S.C. § 1415(j)³; Cone, 302 F.Supp.2d at 505 n. 1. To facilitate this court's February 6, 2004, decision, RCS sent the Cones in March 2005 an application for Elliott's admission to PATH. On April 28, 2005, an IEP meeting was convened to discuss Elliott's transition and placement at PATH.⁴ By the end of the meeting, a draft IEP ("April IEP") had been compiled but was not finalized. Notably, it listed placement as "Benedictine/PATH." Attempts to finalize the April IEP were unsuccessful.

On May 3, 2005, RCS sent the April IEP to the Cones' attorney, along with a request for consent to release certain information to facilitate Elliott's application to PATH.⁵ (A.R., Respondent's Ex. 6.) The Cones did not respond to this letter in writing. On May 26, 2005, RCS wrote the Cones' attorney reiterating that, because their litigation had ended with the U.S. Supreme Court's denial of the petition for writ of certiorari, Elliott's stay put placement at Benedictine ended. RCS further stated that RCS' "payment for Benedictine will end concurrent with the end of the last IEP under stay put (May 5, 2005)." (A.R., Respondent's Ex. 7.) RCS terminated payments to Benedictine effective May 6, 2005.

Elliott remained at Benedictine through mid-June 2005 to complete the school year and returned for the Extended Summer Year ("ESY") session during the month of July 2005.

Throughout the summer of 2005, the parties communicated sporadically regarding finalizing the April IEP, but no meeting was convened. The Cones finally requested mediation through the North Carolina Department of Public Instruction. Yet an August 30, 2005, mediation failed to produce an agreement.

The Cones returned Elliott to Benedictine in September 2005, at the beginning of the 2005-06 school year. At that time the April IEP remained unsigned, the last IEP had expired (on May 6, 2005), and the Cones had failed to submit a PATH application.

The Cones eventually submitted a PATH application on September 14, 2005. (A.R., Petitioner's Ex. 19; Respondent's Exs. 19, 24.) However, they attached a thirteen-page letter detailing reasons why they believed Elliott should be allowed to remain at Benedictine and discouraging admission to PATH. (A.R., Petitioner's Ex. 19; A.R., Respondent's Ex. 19.)

On September 28, 2005, the parties convened an IEP meeting. RCS presented a draft IEP proposing placement for Elliott at Trinity High School ("Trinity"), a non-residential placement at a high school close to the Cones' residence in Randolph County. PATH was not presented as an option because the Cones had indicated their opposition to placing Elliott in any facility but Benedictine. No consensus was reached on the draft IEP. The IEP team reconvened on October 10, 2005, and the draft IEP was finalized to provide services at Trinity for...