K.I. v. Durham Pub. Sch. Bd. of Educ.

• Decision Date: 05 December 2022
• Docket Number: 20-1834
• Parties: K.I.; J.I., Plaintiffs - Appellants, v. DURHAM PUBLIC SCHOOLS BOARD OF EDUCATION; North Carolina State Board of Education, Defendants - Appellees. Council of Parent Attorneys and Advocates, Amicus Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

54 F.4th 779

K.I.; J.I., Plaintiffs - Appellants,

v.DURHAM PUBLIC SCHOOLS BOARD OF EDUCATION; North Carolina State Board of Education, Defendants - Appellees.

Council of Parent Attorneys and Advocates, Amicus Supporting Appellant.

No. 20-1834

United States Court of Appeals, Fourth Circuit.

Argued: September 16, 2022

Decided: December 5, 2022

ARGUED: Stacey Marlise Gahagan, GAHAGAN PARADIS, PLLC, Durham, North Carolina, for Appellants. Stephen Grayson Rawson, THARRINGTON SMITH LLP, Raleigh, North Carolina; Tiffany Y. Lucas, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Ellen Marjorie Saideman, LAW OFFICE OF ELLEN SAIDEMAN, Barrington, Rhode Island; Selene Almazan-Altobelli, COUNCIL OF PARENT ATTORNEYS AND ADVOCATES, INC., Towson, Maryland, for Amicus Curiae.

Before RICHARDSON and QUATTLEBAUM, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by published opinion. Judge Quattlebaum wrote the opinion in which Judge Richardson and Senior Judge Floyd joined.

QUATTLEBAUM, Circuit Judge:

K.I., a minor who lives in Durham, North Carolina, was diagnosed with a variety of learning and psycho-social disorders. Dissatisfied with her school's response to her request for special education services, K.I. and her mother J.I. asked for and received a hearing under North Carolina's administrative procedures. Because they disagreed with the hearing decision, K.I. and J.I. tried to appeal it administratively. But their appeal was not considered because K.I. and J.I. did not follow North Carolina's rules for filing appeals.

Later, K.I. and J.I. sued in federal court under the Individuals with Disabilities Education Act (the "IDEA"). The IDEA, which helps to ensure that children with disabilities receive special education services, permits suits in federal court. But before a plaintiff can sue in federal court under the IDEA, she must first complete—or as the law phrases it, "exhaust"—her state administrative remedies.

The district court found that K.I. and J.I.'s failure to properly appeal under North Carolina's administrative rules meant that they had not exhausted their administrative remedies. So, it dismissed the federal action for lack of subject matter jurisdiction. K.I. and J.I.'s appeal of that decision requires us to address two questions about the IDEA's exhaustion requirement. First, is it jurisdictional or a claims-processing rule? Second, if the exhaustion requirement is a claims-processing rule, can federal courts second guess the way states enforce their administrative rules in excusing IDEA exhaustion?

I.

A.

We begin with an overview of the Individuals with Disabilities Education Act, 84 Stat. 175, as amended, 20 U.S.C. § 1400 et seq. The IDEA offers federal funds to states in exchange for a commitment to furnish a "free appropriate public education," more commonly known as a FAPE, to all children with certain physical or intellectual disabilities. Fry v. Napoleon Cmty. Sch. , 580 U.S. 154, 158, 137 S.Ct. 743, 197 L.Ed.2d 46 (2017). A FAPE means "special education and related services" that are (1) without charge, (2) meet the standards of the state educational agency, (3) include the appropriate level of education in the state involved and (4) are provided in conformity with an individualized education program ("IEP") as required by the IDEA. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley , 458 U.S. 176, 188, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (emphasis omitted).

Once educators determine that a student has a qualifying disability, teachers, school officials and parents prepare the IEP. Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1 , 580 U.S. 386, 391, 137 S.Ct. 988, 197 L.Ed.2d 335 (2017). The IEP spells out the student's unique needs, details the special services to be provided as well as identifies measurable academic and functional goals. Id. The IEP thus becomes the primary vehicle for ensuring the student receives a FAPE. And the "[f]ailure to identify and evaluate a child suspected of having a disability constitutes a procedural violation of the IDEA that is actionable if the violation affected the child's substantive rights." Johnson v. Charlotte-Mecklenburg Sch. Bd. of Educ. , 20 F.4th 835, 839 (4th Cir. 2021).

Parents and educators do not always agree about evaluations, eligibility determinations and the contents of the IEP. The IDEA provides a parent who disagrees on these issues several procedural safeguards. First, a parent may request an independent education evaluation ("IEE"). See 20 U.S.C. § 1415(b)(1) ; 34 C.F.R. § 300.502. If a disagreement persists, parents may turn to dispute resolution procedures established under the IDEA—mediation or a preliminary meeting. Endrew F. , 580 U.S. at 391, 137 S.Ct. 988. If those efforts do not resolve the disagreements, the parties may proceed with a due process hearing and administrative proceedings. Id. at 391–92, 137 S.Ct. 988. And finally, a parent who pursues these administrative proceedings to their conclusion but does not prevail may sue in state or federal court. Id. at 392, 137 S.Ct. 988.

B.

K.I. attended the public schools in Durham from kindergarten through sixth grade. When K.I. was in fifth grade, her mother asked Durham Public Schools Board of Education ("Durham Public Schools") to evaluate K.I.'s eligibility for services under the IDEA. In addition to services under the IDEA, students with disabilities may seek accommodations under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq. ("Section 504"). Durham Public Schools developed a plan for K.I. under Section 504 but determined she was ineligible for services under the IDEA. Disagreeing with this, K.I.'s parents requested an IEE. As part of the IEE, at the end of K.I.'s sixth grade year, independent evaluators diagnosed her with Specific Learning Disorder with impairment in reading, Autism

Spectrum Disorder and Social Communication Disorder. But K.I. enrolled in a local charter school before Durham Public Schools and the parents could hold a meeting about developing her IEP. Despite that move, K.I.'s family intends for K.I. to return to a public school in Durham for high school.

In addition to K.I.'s IDEA services, K.I. and J.I. were concerned about the contractual requirements Durham Public Schools imposed on the evaluators as part of the IEE process. The contract limited the evaluators' interaction with parents and prevented the evaluators from testifying as expert witnesses in the event of a due process hearing. K.I. and J.I. contended the required contract impeded the parents' ability to participate in the evaluation process. As part of a separate matter, the North Carolina State Board of Education ("State Board") determined that Durham Public Schools' practice of not providing parents a copy of the evaluator contract unless specifically requested did not comply with the IDEA and ordered corrective action by Durham Public Schools.¹ But it found that the provisions of the contracts that restricted evaluators' ability to testify as expert witnesses and limited evaluators' interactions with parents complied with the statute. And the State Board did not order Durham Public Schools to change the contract issues that were found noncompliant.

Not satisfied, K.I. and J.I. requested a due process hearing in the North Carolina Office of Administrative Hearings alleging violations of the IDEA by Durham Public Schools and the State Board. They alleged that Durham Public Schools failed to (1) find K.I. eligible for special education services, (2) properly consider and evaluate her needs, (3) comply with their requests for IEEs that complied with the IDEA and (4) provide K.I. a FAPE as required by the IDEA. They also alleged that the State Board failed to adequately investigate, provide oversight and resolve other complaints against Durham Public Schools regarding IEEs.

On April 11, 2019, after a hearing, an Administrative Law Judge ("ALJ") issued a final decision. The ALJ concluded that K.I. and J.I. did not prove that Durham Public Schools failed to provide a FAPE to K.I. The ALJ also concluded the Durham Public Schools correctly determined that K.I. was not eligible for services under the IDEA and that her Section 504 plan adequately accommodated her. But the ALJ found that the IEE contract impeded K.I. and J.I.'s right to participate in the decision-making process in violation of the IDEA. The ALJ also concluded that K.I. and J.I. lacked standing as to the claims against the State Board and that they failed to prove the State Board denied K.I. a FAPE.

The ALJ's decision included a "Notice of Appeal Rights." J.A. 200. The notice provided that in accordance with N.C. Gen. Stat. § 115C-109.9, a party aggrieved by the findings and decision of the hearing officer could "appeal the findings and decision within 30 days after receipt of notice of the decision by filing a written notice of appeal with the person designated by the State Board under G.S. 115C-107.2(b)(9) to receive notices." J.A. 200 (emphasis in original). From there, the State Board would appoint a review officer from a pool of approved officers to conduct an impartial review of the appealed decision.

On April 26, 2019, within the 30-day deadline, Durham Public Schools appealed the parts of the decision that found the IEE contracts violated the IDEA. It electronically filed its notice of appeal in the Office of Administrative Hearings and mailed a copy of the notice to the other parties and the State Board's designee, Teresa King. As a result, the State Board assigned a review officer, Joe Walters, to the appeal.

On May 10, 2019, before the deadline, K.I. and J.I. electronically filed a notice of appeal with the Office of Administrative Hearings. Ms. King and the parties were included on the certificate of service, but K.I. and J.I. did not mail a hard copy of the notice to the parties or to Ms. King.

On May 14, after the deadline had passed, Ms. King contacted counse...