E. L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of Educ.

• Citation: 773 F.3d 509
• Decision Date: 03 December 2014
• Docket Number: No. 13–2330.,13–2330.
• Parties: E. L., by and through her parents, Gina LORSSON and Devin Lorsson, Plaintiff–Appellant, v. CHAPEL HILL–CARRBORO BOARD OF EDUCATION, Defendant–Appellee. North Carolina School Boards Association, Amicus Supporting Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

773 F.3d 509

E. L., by and through her parents, Gina LORSSON and Devin Lorsson, Plaintiff–Appellant

v.CHAPEL HILL–CARRBORO BOARD OF EDUCATION, Defendant–Appellee.

North Carolina School Boards Association, Amicus Supporting Appellee.

No. 13–2330.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 16, 2014.

Decided: Dec. 3, 2014.

ARGUED:Robert Christopher Ekstrand, Ekstrand & Ekstrand LLP, Durham, North Carolina, for Appellant. Kenneth Alexander Soo, Tharrington Smith LLP, Raleigh, North Carolina, for Appellee. ON BRIEF:Stefanie A. Smith, Ekstrand & Ekstrand LLP, Durham, North Carolina, for Appellant. Colin A. Shive, Tharrington Smith LLP, Raleigh, North Carolina, for Appellee. Allison B. Schafer, Christine T. Scheef, North Carolina School Boards Association, Raleigh, North Carolina, for Amicus Supporting Appellee.

Before DUNCAN, AGEE, and DIAZ, Circuit Judges.

Opinion

Affirmed by published opinion. Judge DIAZ wrote the opinion, in which Judge DUNCAN and Judge AGEE joined.

DIAZ, Circuit Judge:

E.L. is a nine-year-old girl with autism

. This appeal arises out of her parents' dissatisfaction with the special education services provided to her by the Chapel Hill–Carrboro Board of Education (“the school board”), and their administrative complaint under the Individuals with Disabilities Education Act (the “IDEA”), 20 U.S.C. § 1400 et seq. An administrative law judge determined that the school board violated the IDEA by failing to provide E.L. required speech therapy; however, in all other respects, the ALJ found her special education program appropriate. On the school board's appeal, a state review officer reversed the ALJ's conclusion regarding E.L.'s speech therapy, determining that the school board did not violate the IDEA.

In her civil action seeking judicial review of the administrative proceeding, E.L. for the first time appealed the ALJ's conclusion that, except for its failure to provide required speech therapy for parts of the 2008–09 and 2009–10 school years, the school board did not violate the IDEA. Despite failing to contest the ALJ's adverse decision before the state review officer, E.L. contends that she properly exhausted her administrative remedies under the IDEA. We conclude that E.L. did not exhaust her administrative remedies and that the school board did not violate the IDEA. We therefore affirm the district court's judgment.

I.

E.L. suffers from autism

, which is compounded by complex motor and speech disabilities, resulting in global developmental delays. These significant disabilities led her parents to seek early childhood intervention services from the school board. The school board provided E.L. with an individualized education program when she turned three years old, which placed her in the partial-day preschool program at the University of North Carolina's Frank Porter Graham Child Development Institute (the “Institute”).

E.L.'s individualized education program for the 2008–09 school year afforded her a range of services, including speech, physical, and occupational therapy, all of which E.L. received onsite at the Institute. E.L.'s 2009–10 program included a split placement, with E.L. attending the Institute for two partial days per week and The Mariposa School¹ for three partial days per week. In March 2010, E.L.'s parents withdrew her from the Institute entirely and enrolled her at Mariposa for all five days.

Shortly thereafter, E.L., by and through her parents, filed a petition in the North Carolina Office of Administrative Hearings, alleging that the school board failed to provide E.L. with the free appropriate public education required by the IDEA. After a fourteen-day hearing, the parties submitted proposed findings of fact and conclusions of law to the administrative law judge. In his “Final Decision,” the ALJ sided with the school board, with one exception. Specifically, the ALJ concluded that during April and May 2009 and September through December 2009, the school board did not provide E.L. the speech therapy required by her individualized education program. Consequently, the ALJ ordered the school board to reimburse E.L.'s parents for sixty hours of speech therapy and related transportation expenses.

The school board appealed the ALJ's decision to the North Carolina State Board of Education, which appointed a state-level review officer to hear the appeal. E.L. did not appeal the ALJ's decision. The review officer reversed, concluding that the school board had indeed provided E.L. with the required therapy.

E.L. subsequently filed the underlying civil action, seeking review of the administrative decision. E.L. claimed, as she had before the ALJ, that the school board deprived her of a free appropriate public education during the 2008–09, 2009–10, and 2010–11 school years by not providing her with direct, intensive, one-on-one instruction that used applied behavior analysis methodology, as requested by her parents. On crossmotions for summary judgment, the district court dismissed E.L.'s claims, holding that because she did not raise them before the state review officer, she failed to exhaust her administrative remedies. As a result, whether the school board provided E.L. with appropriate speech therapy remained the only merits issue before the court. The court affirmed the review officer's decision as to that issue, concluding that the school board provided E.L. appropriate speech therapy.

II.

A.

The IDEA requires states receiving federal education funds to provide a “free appropriate public education” to all children with disabilities. 20 U.S.C. § 1400(d)(1)(A) (2012). As part of its procedural safeguards, the IDEA also requires states to hold a due process hearing whenever a parent lodges a complaint regarding services provided to his or her child. 20 U.S.C. § 1415(f). States may choose to conduct these hearings through either the state educational agency or the local agency “responsible for the education of the child.” Id. § 1415(f)(1)(A) ; 34 C.F.R. § 300.511(b) (2014). Where the local educational agency conducts the initial hearing, the IDEA provides a right of review to the state agency. 20 U.S.C. § 1415(g).

In North Carolina, ALJs conduct the due process hearings required by the IDEA. The North Carolina Office of Administrative Hearings (“OAH”) appoints these ALJs through a memorandum of agreement with the State Board. N.C. Gen.Stat. § 115C–109.6(a), (j) (2013). North Carolina further provides for review by a State Board-appointed review officer. Id. § 115C–109.9(a).

A party aggrieved by the decision of the state agency may bring a civil action in state or federal court. 20 U.S.C. § 1415(i)(2). We have consistently held that a plaintiff must exhaust her administrative remedies before bringing such an action. See, e.g., MM ex rel. DM v. School Dist., 303 F.3d 523, 536 (4th Cir.2002) ; Scruggs v. Campbell, 630 F.2d 237, 239 (4th Cir.1980) (construing the IDEA's materially similar predecessor statute). Whether a plaintiff has properly exhausted all administrative remedies is a pure question of law that we review de novo. See Talbot v. Lucy Corr Nursing Home, 118 F.3d 215, 218 (4th Cir.1997).

B.

E.L. contends that our exhaustion requirement should not preclude her from challenging the review officer's decision. She offers three arguments in support of this contention: (1) the IDEA does not require her to seek state-level review in order to exhaust her administrative remedies, (2) she did, nonetheless, seek state-level review, and (3) even if she did not, exceptions to the exhaustion requirement apply. We address each argument in turn.

1.

E.L. primarily argues that the IDEA does not authorize an appeal to the state educational agency where, as here, the local educational agency did not conduct the hearing.² Consequently, E.L. asserts that she was not required to appeal the ALJ's adverse decision to the State Board prior to filing suit in the district court. We reject E.L.'s interpretation of the statute.

Whether the IDEA allows states to implement a two-tiered review process, when both tiers are administered at the state level, is an issue of first impression in this circuit. Only a handful of federal courts have considered IDEA challenges to this procedure, and the majority have found no fault in it. See, e.g., O.M. ex rel. McWhirter v. Orange Cnty. Bd. of Educ., No. 1:09CV692, 2013 WL 664900, at *11 (M.D.N.C. Feb. 22, 2013) (concluding that the IDEA does not prohibit states “which choose to conduct the administrative process solely at the state level from dividing that state-level process into two steps”); L.B. ex rel. Benjamin v. Greater Clark Cnty. Schs., 458 F.Supp.2d 845, 854 (S.D.Ind.2006) (“It does not violate the IDEA for a state to adopt a two-tiered administrative-review process, both tiers of which are conducted by the state educational agency.”). But see Township High Sch. Dist. No. 211 Cook Cnty. v. Ms. V., No. 93 C 7492, 94 C 30, 1995 WL 103667, at *3 (N.D.Ill. Mar. 3, 1995) (concluding that two levels of state hearings are permissible under the IDEA only so long as the second level is “not mandatory and does not unduly delay the parties['] right to seek court review of the final administrative decision”).

The IDEA's exhaustion requirement serves the important purpose of allowing states to use their special expertise to resolve educational disputes.See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley,

458 U.S. 176, 208, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (emphasizing that courts lack the expertise to resolve questions of educational policy). As the district court noted, the IDEA's hearing provisions contemplate that “a state educational agency conduct the administrative review immediately preceding any civil action.” E.L. ex rel. G.L. v. Chapel Hill–Carrboro Bd. of Educ., 975 F.Supp.2d 528, 532 (M.D.N.C.2013) (emphasis added). The Supreme Court has also concluded as much. See Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 526, 127 S.Ct. 1994, 167 L.Ed.2d...