A.K. ex rel. J.K. v. Alexandria City School

• Decision Date: 26 April 2007
• Docket Number: No. 06-1130.,06-1130.
• Citation: 484 F.3d 672
• Parties: A.K., a minor by his parents and next friends J.K. and E.S., Plaintiff-Appellant, v. ALEXANDRIA CITY SCHOOL BOARD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

484 F.3d 672

A.K., a minor by his parents and next friends J.K. and E.S., Plaintiff-Appellant, v. ALEXANDRIA CITY SCHOOL BOARD, Defendant-Appellee.

No. 06-1130.

United States Court of Appeals, Fourth Circuit.

Argued: November 30, 2006.

Decided: April 26, 2007.

ARGUED: William Bernard Reichhardt, Fairfax, Virginia, for Appellant. John Francis Cafferky, Blankingship & Keith, Fairfax, Virginia, for Appellee.

ON BRIEF:

Colleen C. Sweeney, William B. Reichhardt & Associates, Fairfax, Virginia, for Appellant. Andrea D. Gemignani, Blankingship & Keith, Fairfax, Virginia, for Appellee.

Before WILKINS, Chief Judge, and WILLIAMS and GREGORY, Circuit Judges.

Reversed and remanded by published opinion. Chief Judge Wilkins wrote the majority opinion, in which Judge Williams joined. Judge Gregory wrote a dissenting opinion.

OPINION

WILKINS, Chief Judge:

The parents of A.K., a minor child with disabilities, brought this action on his behalf against the Alexandria City School Board, alleging that Alexandria City Public Schools ("ACPS") violated the Individuals with Disabilities Education Act (IDEA), see 20 U.S.C.A. §§ 1400-1487 (West Supp.2006). The parents appeal an order granting summary judgment against them. We reverse and remand for further proceedings.

I.

A.

The IDEA provides every disabled child with the right to a "free appropriate public education" (FAPE) designed to meet his specialized needs. Id. § 1400(d)(1)(A). Congress has defined a FAPE as

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 . . . education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

Id. § 1401(9).

A school provides a FAPE by creating an "individualized education program" ("IEP") for each child. See id. § 1414(d)(1)(A); County Sch. Bd. v. Z.P. ex rel. R.P., 399 F.3d 298, 300 (4th Cir. 2005). Before creating the IEP, the school district must conduct an initial evaluation to determine the student's eligibility and to identify his educational needs. See 20 U.S.C.A. § 1414(a)(1)(A)-(C). If the child is deemed eligible, an IEP is created by an "IEP Team" comprised of the child's parents, at least one of his regular teachers, at least one of his special education teachers, a school board representative, an individual who can interpret evaluation results (who may be either of the teachers or the school board representative), and, if appropriate, the child himself. See id. § 1414(d)(1)(B). The IEP must outline the student's then-current educational status, establish annual goals, and detail the special educational services and other aids that the child will be provided. See id. § 1414(d)(1)(A)(i). It also must provide, among other things, "the projected date for the beginning of the services and modifications. . ., and the anticipated frequency, location, and duration of those services and modifications." Id. § 1414(d)(1)(A)(i)(VII). An IEP is substantively satisfactory if it is "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).

The IDEA also provides "procedural safeguards to insure the full participation of the parents and proper resolution of substantive disagreements." Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 368, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) (internal quotation marks omitted). As is relevant here, those safeguards include the right to present a complaint "with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." 20 U.S.C.A. § 1415(b)(6)(A); see id. § 1415(f). The IDEA also authorizes a party aggrieved by the state administrative proceeding intended to resolve the complaint to challenge the decision in a federal court action. See id. § 1415(i)(2)(A). Such an action is an independent civil action in which the district court considers the state administrative hearing record, as well as any new evidence that the parties offer, and makes findings by a preponderance of the evidence. See id. § 1415(i)(2)(C). Although the federal court action is an independent action, the court must give "due weight" to the state administrative proceeding. Rowley, 458 U.S. at 206, 102 S.Ct. 3034.

B.

A.K. was first found eligible to receive special education services under the IDEA at age two and one-half. At that time, A.K. was diagnosed with Semantic Pragmatic Language Disorder with characteristics of nonverbal learning disability. A.K. has since been diagnosed as well with numerous other disorders, including Aspergers Syndrome and obsessive compulsive disorder. A.K. was educated in the ACPS school system through the seventh grade until he began to be teased and assaulted by other students to an extent that he no longer felt safe. A.K.'s parents ("the parents") subsequently searched unsuccessfully for a private day school in the Washington, D.C. metropolitan area that could meet their son's specialized needs.

For the 2003-04 school year, when A.K. was in the eighth grade, the parents enrolled A.K. in the Riverview School, a residential school in Massachusetts, pursuant to a settlement between the parents and ACPS. ACPS had proposed local private day school but agreed to fund the portion of Riverview tuition that was equivalent to private day school placement. The parents were very happy with A.K.'s progress at Riverview.

In preparation for the 2004-05 school year, A.K.'s IEP team, which included ACPS personnel, Riverview personnel, and the parents, met on May 21 and 28, 2004, and June 9, 2004 for a total of eight to ten hours. Until the last half hour of the final meeting, the team spent its time defining A.K.'s level of performance and setting goals and objectives for the upcoming year. With only a few minutes of discussion regarding placement, ACPS announced that A.K. should be placed at an unspecified private day school.¹ Unaware of any private day school in the area equipped to meet A.K.'s specialized needs, the parents asked ACPS representatives which private day school he could attend. Susan Sullivan, ACPS's private placement specialist and the IEP team chairperson, suggested the Kellar School and the Phillips School as possibilities. A.K.'s mother responded that she did not believe either of those schools would be appropriate. The meeting closed without any significant discussion about the appropriateness of Kellar or Phillips or any other possible private day schools.

The resulting IEP contained a detailed discussion of A.K.'s then-current level of performance. It also set forth goals and objectives, along with a plan to aid A.K. in the transition from Riverview to a private day school. However, it did not identify any particular school but simply listed A.K.'s placement as "Level II — Private Day School placement." J.A. 379. Based on their objection to that placement, the parents refused to sign the IEP.²

In July 2004, ACPS sent out applications on A.K.'s behalf to five area private day schools: The Lab School, The Ivymount School, Oakmont School, Phillips, and Kellar. Based on the applications provided, The Lab School and Oakmont (and perhaps Ivymount) determined that they could not provide A.K. a FAPE due to the complexity of his disabilities.³ However, Phillips and Kellar both indicated that they believed, based on the information they had received, that they had an appropriate program for A.K., and invited him and his parents to visit the school.

A.K.'s mother toured both schools in July,⁴ and, after consulting with some experts who were familiar with A.K., determined that neither school would be able to meet A.K.'s specialized needs. Having been unable to find any local private day school that they believed could provide A.K. with a FAPE, the parents, on July 9, 2004, requested an administrative special education due process hearing to determine whether ACPS had offered A.K. a FAPE. ACPS sent a letter to the parents in early August informing them that Phillips and Kellar wanted to schedule interviews with A.K., but the parents, having determined that those schools could not serve A.K.'s needs, did not seek to schedule such interviews.

At the due process hearing, the parents did not challenge the notion that a private day school could theoretically meet A.K.'s needs, but they argued that the IEP failed to identify a particular school in the area that could do so and that they had not been able to find one.⁵ Thus, the parents sought reimbursement for their Riverview tuition on the ground that ACPS had failed to offer A.K. a FAPE and Riverview provided an appropriate education.

Both sides presented testimony regarding whether Phillips, Kellar, or Riverview was appropriate for A.K.'s individual needs. ACPS's testimony established that the Phillips School provides individualized educational programs implemented by classroom staff. It also offers small group instruction, one-on-one intervention, speech and language development, and training in social and daily-living skills. The majority of students at Phillips are 14-18 years old, and they have a wide range of disabilities. Students with similar needs are generally grouped together in particular classrooms. Phillips utilizes a progressive level system, in which students are given more freedom and responsibility as their behavior and academic motivation improve. Laura Heyer, a program supervisor at Phillips who had previously taught at the school for 10 years, testified that she did not know of any reason why Phillips could not provide an appropriate program for A.K. Susan Sullivan expressed the same opinion.

Testimony showed that the Kellar...