L.J. ex rel. N.N.J. v. Sch. Bd. of Broward Cnty.

• Decision Date: 29 March 2012
• Docket Number: Case Nos. 11–60772–CIV, 11–CIV–60780.
• Citation: 282 Ed. Law Rep. 1113,850 F.Supp.2d 1315
• Parties: L.J., by his mother and next friend, N.N.J., and N.N.J., plaintiffs, v. SCHOOL BOARD OF BROWARD COUNTY, defendant. The School Board of Broward County, Florida, plaintiff, v. L.J., a minor child, by and through his parent, N.N.J., as parent, defendant.
• Court: U.S. District Court — Southern District of Florida

850 F.Supp.2d 1315

282 Ed. Law Rep. 1113

L.J., by his mother and next friend, N.N.J., and N.N.J., plaintiffs,

v.SCHOOL BOARD OF BROWARD COUNTY, defendant.

The School Board of Broward County, Florida, plaintiff,

v.L.J., a minor child, by and through his parent, N.N.J., as parent, defendant.

Case Nos. 11–60772–CIV, 11–CIV–60780.

United States District Court, S.D. Florida.

March 29, 2012.

Alice K. Nelson, Jodi Lynn Siegel, Kirsten Noelle Clanton, Southern Legal Counsel, Inc., Gainesville, FL, for plaintiffs.

Marylin C. Batista–McNamara, School Board Attorney's Office, Fort Lauderdale, FL, for defendant.

MEMORANDUM OPINION ESTABLISHING STANDARD OF REVIEW AND DIRECTING SUBMISSION OF SUPPLEMENTAL BRIEFS

KENNETH A. MARRA, District Judge.

I. Preface

THIS MATTER involves a dispute under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. Pursuant to the procedures established by the IDEA, 20 U.S.C. § 1415(i)(2)(A), the School Board of Broward County (“School Board”) seeks judicial review of an administrative law judge's determination that the School Board deprived L.J., a disabled middle school student, of the free and appropriate public education guaranteed under the IDEA by failing to adequately implement the child's individualized education program [Case No. 11–60780–CIV–MARRA]. The child's mother, N.N.J., has filed a separate complaint seeking, among other things, enforcement of the administrative law judge's (“ALJ”) order [Case No. 11–60772–CIV–MARRA].

Following consolidation of these matters, the case is currently before the court on the parties' cross-motions for entry of judgment on the administrative record [DE 29, 30].

II. Statutory Framework

The IDEA is a comprehensive educational scheme, conferring on disabled students a substantive right to a free appropriate public education (“FAPE”) that “emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” Ortega v. Bibb County School District, 397 F.3d 1321 (11th Cir.2005), citing 20 U.S.C. § 1400(d)(1)(A); ¹J.W. ex rel. J.E.W. v. Fresno Unified School District, 626 F.3d 431, 432 (9th Cir.2010).

Pursuant to the IDEA and corresponding Florida laws, in order to achieve an “appropriate” education, the school district and parents work together to develop an individualized education program (“IEP”) for each child with a disability. Doe v. Ala. State Dept. Of Education, 915 F.2d 651, 661 (11th Cir.1990); Weber v. Cranston School Committee, 212 F.3d 41, 51 (1st Cir.2000); 20 U.S.C. § 1414(d); 34 C.F.R. § 300.45 (outlining parental involvement in the IEP process). The IEP is a written statement setting out the student's “individually tailored goals and the means of achieving them,” and is a “central component” of a disabled student's special education under the IDEA. District of Columbia v. Doe, 611 F.3d 888, 892 n. 5 (D.C.Cir.2010), citing 20 U.S.C. § 1414(d). Parents serve as members of the team that develops the IEP, and parental “concerns” for “enhancing the education” of the child must be considered by the team.²

Once an IEP is developed, the school must determine whether it will directly provide the special education needs of the child. M.M. v. School Board of Miami–Dade County, Florida, 437 F.3d 1085 (11th Cir.2006), citing Loren F. ex rel. Fisher v. Atlanta Independent School System, 349 F.3d 1309, 1312 (11th Cir.2003) (“Although the IDEA reflects a structural preference in favor of providing special education in public schools, it recognizes that certain public schools are unable or unwilling to provide appropriate special education services”). If the school elects not to provide the programs outlined in the IEP, it refers the child to a private school or program at no cost to the parent. Id., citing 20 U.S.C. § 1412(a)(10)(B)(i); 34 C.F.R. § 300.401.

If, instead, the school elects to provide the services outlined in the IEP, the parents have three options: First, the parents may enroll their child in public school and receive the services outlined in the IEP at no cost. Second, the parents can acknowledge that the IEP is sufficiently adequate to provide a FAPE, but elect to voluntarily enroll their child in a private school or program at their own expense. Id., citing 20 U.S.C. § 1412(a)(10)(C)(i). Third, the parents can notify the school that they are rejecting the IEP and then challenge the substance of the IEP via a due process hearing. Id., citing 20 U.S.C. §§ 1412(a)(6)(A) and 1415(a)-( o ). See generally Winkelman ex rel. Winkelman v. Parma City School District, 550 U.S. 516, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007); Honig v. Doe, 484 U.S. 305, 311–12, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (IDEA guarantees parents an “opportunity for meaningful input into all decisions affecting their child's education and the right to seek review of any decisions they think inappropriate”). If the parents then place the child in a private school pending a determination of their claim, and the reviewing hearing officer ultimately finds the substance of the IEP to be lacking, it may require the school to reimburse the parents for the cost of the private enrollment. 20 U.S.C. § 1412(a)(10)(C)(ii); 34 C.F.R. § 300.043(c).³

A public school system has “essentially the same right if, for example, it seeks to test the validity of a proposed IEP, or to challenge an existing IEP as over-accommodating.” Lessard v. Wilton–Lyndeborough Coop. School District, 592 F.3d 267, 269 (1st Cir.2010)(per curiam).The burden of persuasion at the resulting hearing lies with the party seeking relief, whether that is the disabled child or the school district. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005). Once the IDEA's administrative due process hearing procedures are exhausted, either side may appeal from the hearing officer's final decision to either a federal or state court of competent jurisdiction. 20 U.S.C. § 1415(i)(2)(A).

A. Content–Based IEP Challenges

A hearing officer confronted with a content-based IEP challenge must conduct a two step inquiry. First, the hearing officer must determine whether the school complied with procedures set forth in the IDEA in developing the IEP ( i.e., whether there was proper formation of an IEP team and sufficient involvement of the parents in the IEP formation). After concluding this inquiry, it must then determine whether the challenged IEP is “reasonably calculated to enable the child to receive educational benefit.” Hendrick Hudson District Board of Education v. Rowley, 458 U.S. 176, 206–07, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (“Rowley ”).

Under this second, substantive prong of the Rowley test, commonly referred to as the “basic floor of opportunity” test, the school system must provide the child “some educational benefit,” but need not provide a “potential-maximizing” education. Rowley, 458 U.S. at 200, 102 S.Ct. 3034;M.M. ex rel. C.M. v. School Board of Miami–Dade County, 437 F.3d 1085 (11th Cir.2006); Devine v. Indian River County School Board, 249 F.3d 1289, 1292 (11th Cir.2011); JSK by and through JK and PGK v. Hendry County School Board, 941 F.2d 1563, 1572–73 (11th Cir.1991). See also T.R. v. Kingwood Township Bd. of Education, 205 F.3d 572 (3d Cir.2000); Cerra v. Pawling Cent. School District, 427 F.3d 186 (2nd Cir.2005); Adam J. ex rel. Robert J. v. Keller Ind. School District, 328 F.3d 804 (5th Cir.2003); Amann v. Stow School System, 982 F.2d 644 (1st Cir.1992).

Put another way, “the IDEA sets modest goals: it emphasizes an appropriate, rather than an ideal, education; it requires an adequate, rather than an optimal, IEP.” D.B. a minor, by his next friend and mother, Elizabeth B., 675 F.3d 26 (1st Cir.2012), citing Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir.1993).

B. Failure–to–Implement IEP Challenges

A different standard of review applies where the parent initially accepts the IEP, but later challenges the sufficiency of the school's implementation of the plan. Although the Eleventh Circuit has not yet expressly addressed this issue, other circuits addressing failure-to-implement complaints under the IDEA follow the “material failure” approach articulated by the Fifth Circuit in Houston Indep. School District v. Bobby R., 200 F.3d 341, 349 (5th Cir.2000), cert. den.,531 U.S. 817, 121 S.Ct. 55, 148 L.Ed.2d 23 (2000) (“Bobby R ”). Bobby R concludes, in pertinent part:

A party challenging the implementation of an IEP must show more than a de minimis failure to implement all elements of that IEP, and, instead, must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP. This approach affords local agencies some flexibility in implementing IEPs, but it still holds those agencies accountable for material failures and for providing the disabled child a meaningful educational benefit.

See also, Sumter County School District 17 v. Heffernan ex rel. TH, 642 F.3d 478 (4th Cir.2011) (although failure to perfectly execute the IEP does not necessarily amount to denial of FAPE, failure to implement substantial or significant provision of the IEP violates IDEA); N.D. ex rel. parents acting as guardians ad litem v. Hawaii Dept. of Education, 600 F.3d 1104 (9th Cir.2010), citing Van Duyn ex rel. Van Duyn v. Baker School Dist. 5J, 502 F.3d 811 (9th Cir.2007) (material failure to implement the IEP is more than a minor discrepancy between the services a school actually provides and services required under the IEP); Savoy v. District of Columbia, 844 F.Supp.2d 23, 2012 WL 548173 (D.D.C. Feb. 21, 2012). Under this standard, the focus is on the proportion of services mandated to those actually provided, viewed in context of the goal and import of the specific service that was withheld. Wilson v. District of Columbia, 770 F.Supp.2d 270, 275 (D.D.C.2011). An IEP implementation failure,...