D.B v. Bedford County Sch. Bd.

• Decision Date: 23 April 2010
• Docket Number: Civil Action No. 6:09-cv-00013.
• Citation: 708 F.Supp.2d 564
• Parties: D.B., et al.,v.BEDFORD COUNTY SCHOOL BOARD, Defendant.
• Court: U.S. District Court — Western District of Virginia

708 F.Supp.2d 564

D.B., et al.,v.BEDFORD COUNTY SCHOOL BOARD, Defendant.

Civil Action No. 6:09-cv-00013.

United States District Court,

W.D. Virginia,

Lynchburg Division.

April 23, 2010.

COPYRIGHT MATERIAL OMITTED

Henry Green Bostwick, II, Legal Aid Society of Roanoke Valley, Roanoke, VA, for D.B.

Eric Eldridge Harrison, Frank Austin Wright, Jr., Overbey, Hawkins & Wright, Rustburg, VA, for Defendant.

MEMORANDUM OPINION

NORMAN K. MOON, District Judge.

Plaintiffs ¹ filed this suit pursuant to the Individuals with Disabilities Education Act (“IDEA” or “the Act”), 20 U.S.C. § 1400 et seq., asking the court to review an administrative due process hearing and reverse the Hearing Officer's finding that Defendant had provided D.B. a free and appropriate public education as required by the Act. Presently before the court are the parties' cross-motions for summary judgment (docket nos. 37 & 49) and responses thereto, Defendant's motion to strike Plaintiffs' additional evidence (docket no. 53), and Plaintiffs' motion for leave to file supplemental exhibits (docket no. 57). The motions have been fully briefed and oral arguments have been presented.² Upon review of the record, and as set forth herein, it is apparent that Defendant failed to evaluate D.B. for specific learning disability and failed to provide D.B. a free and appropriate public education as required by the Act, and the Hearing Officer erred in determining otherwise. Accordingly, I will grant Plaintiffs' motion for summary judgment, and will deny Defendant's motion for summary judgment. Additionally, Defendant's motion to strike Plaintiffs' additional evidence will be granted; Plaintiffs' motion for leave to file supplemental exhibits will be denied; and Plaintiffs will be directed to submit, within fourteen (14) days of the date of entry of the order accompanying this memorandum opinion, a petition for order of judgment (supplemented with a proposed judgment order), along with any other motions, such as a motion for attorney's fees pursuant to 20 U.S.C. § 1415(i)(3)(B).³

I.

A.

This action involves allegations that Defendant violated the Individuals with Disabilities Education Act. Plaintiffs allege the following: that Defendant (the Bedford County School Board) failed to correctly evaluate D.B., a student, for specific learning disabilities; that Defendant failed to design an Individual Educational Plan (“IEP”) reasonably calculated to result in an educational benefit to D.B.; that Defendant failed to provide for a placement suited to D.B.'s educational needs; and that Defendant therefore failed to provide D.B. with a free and appropriate public education (“FAPE”) as required by the IDEA. A.B. (D.B.'s mother), dissatisfied with D.B.'s progress, requested that Defendant place D.B. at New Vistas School (“NVS”), a private school in Lynchburg, Virginia. Having repeatedly notified Defendant of her desire to enroll D.B. at NVS at Defendant's expense, and after exhausting her direct opportunities to present her reasoning for such enrollment to Defendant (but before the state educational agency conducted the due process hearing mandated by the IDEA), A.B. enrolled D.B. at NVS.

Defendant contends that it correctly evaluated D.B. for all suspected disabilities, reasonably calculated an IEP to confer an educational benefit, and developed an IEP to suit D.B.'s individual educational needs. In Defendant's view, a FAPE was provided to D.B.; the Hearing Officer's final decision, dated November 23, 2008, was correct; and this court, after giving deference to that decision and due weight to the administrative proceedings, should ratify the Hearing Officer's decision. Defendant further contends that, even if I should find that the IEP Defendant developed for D.B. was not reasonably calculated to result in an educational benefit, Plaintiffs' request for reimbursement should be denied because Plaintiffs failed to give proper notice to Defendant before enrolling D.B. in a private school.

B.

Congress enacted the IDEA, in part, to “ensure that all children with disabilities have available to them a free appropriate public education that emphasizes 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. § 1400(d)(1)(A). The IDEA establishes that children with disabilities are those who fall in the categories of mentally retarded, hearing impaired, speech or language impaired, visually impaired, seriously emotionally disturbed, orthopedically impaired, autistic, having traumatic brain injury, other health impaired, or having specific learning disabilities, who, by reason of their condition, need special education and related services. 20 U.S.C. § 1401(3)(A)(i). As a condition of federal financial assistance under the Act, states must provide disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 1412(a)(1)(A).

FAPE, as defined in the Act, must include special education and related services that: (a) have been provided at public expense, under public supervision and direction, and without charge; (b) meet the standards of the state educational agency; (c) include an appropriate preschool, elementary school, or secondary school education in the state involved; and (d) are provided in conformity with the individualized education program. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. The Act does not explicitly define what is meant by an “appropriate” education, and neither the face of the Act itself nor the legislative history indicates a congressional intent that such education meet a specific substantive standard. Bd. of Educ. v. Rowley, 458 U.S. 176, 188-90, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); see also Kirkpatrick v. Lenoir Co. Bd. of Educ., 216 F.3d 380, 383 (4th Cir.2000) (“The IDEA provides very little by the way of substantive standards to determine whether a child is receiving a free appropriate public education.”).

In Rowley, the Supreme Court declined to establish a single test for determining the adequacy of educational benefits conferred upon children under the Act. 458 U.S. at 202, 102 S.Ct. 3034. Rather, the Court held that a state satisfies the FAPE requirement “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Id. at 203, 102 S.Ct. 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 the school district to provide a disabled child with the best possible education M.M. ex rel. D.M. v. Sch. Dist., 303 F.3d 523, 526 (4th Cir.2002) (citing Rowley, 458 U.S. at 192, 102 S.Ct. 3034), or maximize each handicapped child's potential. Hartmann v. Loudoun Co. Bd. of Educ., 118 F.3d 996, 1001 (4th Cir.1997) (quoting Rowley, 458 U.S. at 199, 102 S.Ct. 3034).

The Act requires, however, that FAPE be “tailored to the unique needs of the handicapped child by means of an ‘individualized educational program’ (IEP).” Rowley, 458 U.S. at 181-82, 102 S.Ct. 3034. The IEP is prepared at a meeting between a qualified representative of the local educational agency (“LEA”), the child's teacher, the child's parents or guardian and, where appropriate, the child. 20 U.S.C. § 1414(d)(1)(B); Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988); 34 C.F.R. § 300.321(a). The IDEA mandates that, when evaluating a child “to gather relevant ... information ... that may assist in determining ... whether the child is a child with a disability ... and ... the content of the child's individualized education program,” the LEA “shall ... use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.” 20 U.S.C. § 1414(b)(2). The IDEA imposes “[a]dditional requirements,” including the requirement that “[e]ach local educational agency shall ensure that the child is assessed in all areas of suspected disability.” 20 U.S.C. § 1414(b)(3)(B) (emphasis added). 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.” M.M. ex rel. D.M., 303 F.3d at 527 (citing 20 U.S.C. § 1414(d)(1)(A)); see also 34 C.F.R. § 300.320(a). An IEP must be reviewed once per year to ensure the child is receiving FAPE. Honig, 484 U.S. at 311, 108 S.Ct. 592; 34 C.F.R. § 300.324(b)(1). In some situations, “evidence of actual progress may be relevant to a determination of whether a challenged IEP was reasonably calculated to confer some educational benefit.” M.S. ex rel. Simchick, 553 F.3d at 326-27 (emphasis in original).

The IDEA establishes certain procedural safeguards to ensure the provision of FAPE by a state educational agency (“SEA”) or LEA. 20 U.S.C. § 1415; see also 8 Va. Admin. Code § 20-81-170 (effective July 7, 2009 (amended January 25, 2010), superseding 8 Va. Admin. Code § 20-80-70). One such safeguard is the opportunity for an impartial due process hearing. 20 U.S.C. § 1415(f)(1)(A); see also 8 Va. Admin. Code § 20-81-210 (effective July 7, 2009 (amended January 25, 2010), superseding 8 Va. Admin. Code § 20-80-76). At the conclusion of a due process hearing, an aggrieved party may file a civil action in federal court challenging the decision rendered. 20 U.S.C. § 1415(i)(2)(A). In such a case, the court's inquiry is twofold: (1) has the state complied with the procedures set forth in the Act, and (2) is the IEP reasonably calculated to enable the child to receive educational benefits? Rowley, 458 U.S. at 206-07, 102 S.Ct. 3034.

C.

A summary judgment motion is “the most...