I.Z.M. v. Rosemount-Apple Valley-Eagan Pub. Sch.

• Decision Date: 14 July 2017
• Docket Number: No. 16-1918,16-1918
• Citation: 863 F.3d 966
• Parties: I.Z.M., by and through his parents and natural guardians, et al., Plaintiffs-Appellants v. ROSEMOUNT-APPLE VALLEY-EAGAN PUBLIC SCHOOLS, Independent School District No. 196, et al., Defendants-Appellees Council of Parent Attorneys and Advocates, Inc., Amicus on Behalf of Appellants
• Court: U.S. Court of Appeals — Eighth Circuit

863 F.3d 966

I.Z.M., by and through his parents and natural guardians, et al., Plaintiffs-Appellants

v. ROSEMOUNT-APPLE VALLEY-EAGAN PUBLIC SCHOOLS, Independent School District No. 196, et al., Defendants-AppelleesCouncil of Parent Attorneys and Advocates, Inc., Amicus on Behalf of Appellants

No. 16-1918

United States Court of Appeals, Eighth Circuit.

Submitted: February 8, 2017

Filed: July 14, 2017

Counsel who presented argument on behalf of the appellant was Andrea Jepsen, of Saint Paul, MN. The following attorney(s) appeared on the appellant brief; Amy Jane Goetz, of Saint Paul, MN.

Counsel who presented argument on behalf of the appellee was Timothy R. Palmatier, of Minneapolis, MN. The following attorney(s) appeared on the appellee brief; Adam Chris Wattenbarger, of Minneapolis, MN.

The following attorney(s) appeared on the amicus brief filed by the Council of Parent Attorneys and Advocates, Inc., in support of appellants; Judith A. Gran, of Haddonfield, NJ.

Before LOKEN, COLLOTON, and KELLY, Circuit Judges.

LOKEN, Circuit Judge.

I.Z.M. suffers from severe vision problems, a disability entitling him to a "free appropriate public education" ("FAPE") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq . For ninth grade, I.Z.M. attended Eastview High School, part of Independent School District No. 196 ("the District"), consisting of the public schools in Rosemount, Apple Valley, and Eagan, Minnesota. One FAPE requirement is "special education and related services ... provided in conformity with the [child's] individualized education program" ("IEP"). 20 U.S.C. § 1401(9)(D). I.Z.M.'s IEP provided that he "will use Braille for all classroom assignments and instruction" and specified other supplemental aids and services to be provided. See § 1414(d)(1)(A)(i)(IV), (d)(3)(B)(iii). Upset with the District's perceived failures in providing these services, I.Z.M. and his parents, L.M. and T.M.,¹ filed a complaint with the Minnesota Department of Education. After a four-day evidentiary hearing, a state Administrative Law Judge issued a thirty-nine-page Order and supporting Memorandum concluding that the District provided I.Z.M. a FAPE and dismissing the complaint.

I.Z.M. then filed this action in federal court for judicial review of the ALJ's decision, as the IDEA authorizes. See 20 U.S.C. § 1415(i)(2). The Complaint joined non-IDEA claims for relief under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq ., and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The district court² granted the District's motions for judgment on the administrative record on the IDEA claim and for summary judgment on the non-IDEA claims. I.Z.M. appeals, arguing the court committed errors of law in dismissing each claim. Reviewing these issues of law de novo , we affirm.

I. IDEA Issues.

A. The ALJ rejected I.Z.M.'s claim that the District failed to provide a FAPE in five distinct ways. In the district court, I.Z.M. challenged the ALJ's decision on only two issues, so the others need not be considered. The ALJ stated the two issues:

Whether the School District consistently provided accessible, accurate and timely instructional material, especially in Braille, such that the lack of materials denied the Student access to involvement and the ability to make progress in the general education curriculum and to make progress on his IEP goals.

Whether the School District timely provided functioning assistive technology devices and maintained, repaired or replaced those devices as needed such that the lack of assistive technology denied the Student access to involvement and the ability to make progress in the general education curriculum and to make progress on his IEP goals.

I.Z.M. and his parents testified that the District failed to provide accessible instructional materials to I.Z.M. in a timely manner as well as instruction enabling him to improve his Braille skills. In her thirty-nine page decision, the ALJ explained at length why I.Z.M. failed to meet his burden to prove the denial of a FAPE by a preponderance of the evidence. See M.M. ex rel. L.R. v. Special Sch. Dist. No. 1 , 512 F.3d 455, 458-59 (8th Cir.), cert. denied , 555 U.S. 979, 129 S.Ct. 452, 172 L.Ed.2d 343 (2008). The ALJ found that "the provisions in the IEP were largely, although not perfectly, implemented." Regarding access to Braille materials, although the District did not provide I.Z.M. Brailled materials one hundred percent of the time, the ALJ found "very little evidence of times when materials were not available in some accessible format." Most failures involved not entire textbooks, but short assignments within I.Z.M.'s capacity to read with alternative aids and even large print. Regarding provision of assistive technology, the ALJ found that, although problems arose, "[t]he number of issues the Student had could be expected given the number and complexity of the devices the Student was provided," and District staff "were almost always immediately responsive to the issues."

Credibility findings were critical to the ALJ's determination. The ALJ found that I.Z.M. "tended to generalize and ... exaggerat[e] the issues that he had at school." The ALJ found there were "times when acrimony and accusations [by L.M.] depleted staff time and energy and took time away from supporting the student." When witness testimony conflicted, the ALJ credited the District's witnesses. Based on this testimony, the ALJ found that I.Z.M. was capable of reading Braille, but often chose not to do so, and concluded his lack of progress in reading Braille³ did "not negate the fact that he received significant educational benefit from his participation and progress in his classes at the School District." I.Z.M. "continued to make progress in the regular education curriculum and even in Honors classes,"⁴ and "met, and often exceeded, the ability to communicate with the proficiency of his peers."

The ALJ found "that the School District implemented the Student's IEP such that the Student received educational benefit." The District "took all reasonable steps to provide instructional materials to the Student in accessible formats and at the same time as the other children received instructional materials." I.Z.M. failed to prove that any lack of accessible materials denied him "access to involvement and the ability to make progress in the general educational curriculum and to make progress on his IEP goals." Based on these detailed findings, the ALJ concluded that the District provided I.Z.M. with a FAPE and complied with its obligations under the IDEA and state law. I.Z.M. then commenced this lawsuit.

B. In an IDEA case such as this where there are no procedural issues, the statute authorizes judicial review of the state hearing officer's "determination of whether the child received a [FAPE]." 20 U.S.C. § 1415(f)(3)(E)(i) ; see §§ 1415(b)(6) and (i)(2)(A) ; Board of Educ. v. Rowley , 458 U.S. 176, 204-05, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).⁵ 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." Rowley , 458 U.S. at 188-89, 102 S.Ct. 3034. Whether the District provided I.Z.M. with a FAPE is reviewed de novo . See M.M. , 512 F.3d at 458. The reviewing court "must give ‘due weight’ to the outcome of the administrative proceedings." T.F. v. Special Sch. Dist. of St. Louis Cty. , 449 F.3d 816, 818 (8th Cir. 2006), quoting Rowley , 458 U.S. at 206-07, 102 S.Ct. 3034. On appeal, district court factual findings "are binding unless clearly erroneous." Gill v. Columbia 93 Sch. Dist. , 217 F.3d 1027, 1035 (8th Cir. 2000).

The district court independently reviewed the entire record before the ALJ, provided a thorough summary of the evidence, and relied on the ALJ's credibility determination when the testimony of District witnesses conflicted with that of I.Z.M. and his parents. The court granted the District's motion because: (1) significant evidence showed the District took steps to provide I.Z.M. accessible instructional materials in a timely manner; (2) to the extent the District may have imperfectly complied with IEP requirements, the IDEA does not require perfection; and (3) I.Z.M. received an educational benefit from the services the District provided, as reflected by his grades. To the extent the evidence showed a lack of progress on I.Z.M.'s Braille reading speed, the district court agreed with the ALJ that this was more likely due to I.Z.M.'s persistence in reading visually rather than tactually.

C. On appeal, I.Z.M. argues the district court applied the wrong legal standards in upholding the ALJ's decision. First, with respect to the IEP provision requiring Braille instruction, I.Z.M. argues that the Minnesota Blind Persons' Literacy Rights and Education Act, Minn. Stat. § 125A.06, imposed on the District an "absolute obligation," enforceable in an IDEA lawsuit, to provide instruction in Braille reading and writing that enables each blind student to communicate with the same level of proficiency expected of the student's peers. Second, with respect to the IEP provision requiring accessible instructional materials, I.Z.M. argues that a federal Department of Education regulation, 34 C.F.R. § 300.172, requires strict compliance that is not satisfied by a determination merely that the student made some educational progress. We reject both contentions and affirm dismissal of I.Z.M.'s IDEA claims.

1. I.Z.M.'s first contention is based on the well-recognized principle that, if state law raises the standard for a FAPE, then students can enforce the heightened standard in an action under the IDEA. Gill , 217 F.3d at 1035. The Minnesota Blind Persons' Literacy Rights and Education Act provides in relevant part: "Instruction in Braille reading and writing must be sufficient to enable each blind...