L.J. v. Sch. Bd. of Broward Cnty.

• Citation: 927 F.3d 1203
• Decision Date: 26 June 2019
• Docket Number: No. 17-14824,17-14824
• Parties: L.J., BY his mother and next friend, N.N.J., and N.N.J., Plaintiff-Appellant, v. SCHOOL BOARD OF BROWARD COUNTY, Florida, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

927 F.3d 1203

L.J., BY his mother and next friend, N.N.J., and N.N.J., Plaintiff-Appellant,

v.SCHOOL BOARD OF BROWARD COUNTY, Florida, Defendant-Appellee.

No. 17-14824

United States Court of Appeals, Eleventh Circuit.

June 26, 2019

Alice K. Nelson, Nelson Law Group, Tampa, FL, Kirsten Noelle Anderson, Jodi Siegel, Southern Legal Counsel, Inc., Gainesville, FL, Kevin Golembiewski, Berney & Sang, PHILADELPHIA, PA, for Plaintiff-Appellant.

Marylin C. Batista, The School Board of Broward County, Florida, Office of the General Counsel, Ft Lauderdale, FL, Michael Thomas Burke, Hudson Carter Gill, Johnson Anselmo Murdoch Burke Piper & Hochman, PA, Fort Lauderdale, FL, for Defendant-Appellee.

Ellen Marjorie Saideman, Law Office of Ellen Saideman, Barrington, RI, for Amicus Curiae Parent Attorneys and Advocates, Inc.

Before JORDAN, GRANT, and HULL, Circuit Judges.

GRANT, Circuit Judge:

L.J. and his mother surely have more experience than they would wish for in navigating the contours of the Individuals with Disabilities Education Act (IDEA) and its challenge procedures. And, to be fair, the school system likely harbors its own regrets about the amount of litigation that has occurred over the last decade-and-a-half. Since his third-grade year, L.J.—who has been diagnosed with autism

and a speech-and-language impairment—has received special education and related services under the IDEA, a statute that carries an educational guarantee for students with special needs: an individualized education plan (IEP) "reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances." Endrew F. v. Douglas Cty. Sch. Dist. , ––– U.S. ––––, 137 S. Ct. 988, 999, 197 L.Ed.2d 335 (2017). But even accounting for this guarantee, L.J.’s path through school has not been a clear one; as early as 2002, his third-grade year, he and his mother have challenged his schools’ plans for him, arguing at various times that the plans’ content, the plans’ implementation, or both, were insufficient. The current challenge is related only to implementation—that is, whether and how the school put its plan into action. The question we face is how to ensure that the IDEA’s guarantee of a free appropriate public education is honored not only in the content of an IEP, but also in its implementation. And because those two issues—content and implementation—are different in their nature—plan versus action—our analyses of shortfalls in those areas also must be different. Because the content outlined in a properly designed IEP is a proxy for the IDEA’s educational guarantee, we conclude that a material deviation from that plan violates the statute. Applying that standard to this case, we do not see a material deviation from L.J.’s IEP, and therefore affirm the judgment of the district court.

I.

Congress passed the IDEA in 1975 "to ensure that all children with disabilities have available to them a free appropriate public education." 20 U.S.C. § 1400(d)(1)(A).¹ To achieve that goal, the federal government provides funds to states in exchange for their compliance with a set of regulations aimed at delivering "special education and related services designed to meet" disabled children’s "unique needs and prepare them for further education, employment, and independent living." Id. Congress directed, and the IDEA’s scheme depends on, cooperation between schools and parents to best identify and serve disabled children’s needs. See id. § 1400(d)(1)(B), (d)(3) ; Schaffer v. Weast , 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (identifying the "core of the statute" as "the cooperative process that it establishes between parents and schools").

The individualized education program is "the centerpiece of the statute’s education delivery system for disabled children." Honig v. Doe , 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). The IDEA defines an IEP as "a written statement for each child with a disability that is developed, reviewed, and revised" according to specific procedures and that includes a roadmap for the child’s academic growth and development. 20 U.S.C. § 1414(d)(1)(A)(i). The IEP is a "plan" that "requires a prospective judgment by school officials," and crafting it is a "fact-intensive exercise." Endrew F. , 137 S. Ct. at 999. Parents and educators work together as the "IEP Team" to draft and update a child’s IEP, with the IDEA laying out both the general IEP process and a checklist of items that the plan should include—things like "a statement of the child’s present levels of academic achievement and functional performance," "a statement of measurable annual goals," and "a statement of the special education and related services and supplementary aids and services ... to be provided to the child." 20 U.S.C. § 1414(d)(1)(A)(i), (d)(1)(B). See generally id. § 1414. The IDEA also provides a detailed set of "procedural safeguards" to protect disabled children and their parents. See generally id. § 1415. Those safeguards include a graduated set of dispute resolution mechanisms: informal meetings, formal mediation, a "due process hearing" before a state or local administrative agency, and, if necessary, judicial review. See id. And while the dispute resolution process plays out, the IDEA guarantees that—unless the school and parents agree otherwise—"the child shall remain in the then-current educational placement of the child." Id. § 1415(j). This guarantee is known as the "stay-put" provision.²

The IDEA allows parents to challenge "any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education." Id. § 1415(b)(6)(A). Disagreements over a disabled child’s education can take different forms. Sometimes the child’s parent will argue that the school’s proposed IEP is inadequate and thus fails to offer a free appropriate public education. In those content cases, the Supreme Court recently made clear that to "meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances." Endrew F. , 137 S. Ct. at 999. Other times, in what are more fairly called implementation cases, the parent will argue that while their child’s IEP clears the IDEA’s substantive threshold as written , the school has nonetheless failed to properly put the plan into practice. The Supreme Court has not yet articulated a standard for these implementation cases, and neither have we. But today we conclude that a material deviation from the content of an IEP violates the IDEA.

II.

L.J., a child with autism

and a speech-and-language impairment, was a student in the Broward County public school system during his kindergarten, elementary school, and middle school years. During his third-grade year, education professionals at his elementary school worked with L.J.’s mother to develop an individualized education program for him. That IEP remained in place for several years as L.J. progressed through elementary school.

When L.J. entered middle school three years later, the school board proposed a new IEP that it believed would better suit his needs in the new environment. L.J., meanwhile, strongly disliked the new middle school setting and immediately exhibited a range of problematic behaviors—including persistent refusal to attend school. L.J.’s mother ended up homeschooling him for most of his sixth-grade year, and in August of that year she filed an IDEA complaint challenging the content of the middle school’s proposed IEP. She also invoked the IDEA’s "stay-put" provision so that the school was required to continue to implement L.J.’s elementary school IEP while her challenge to the proposed middle school IEP progressed through the system.

Over the fall and spring of L.J.’s sixth-grade year, his mother continued to file complaints challenging various aspects of L.J.’s education, including the school’s implementation of his elementary school stay-put IEP. An administrative law judge (ALJ) consolidated five complaints from L.J.’s mother as well as one filed by the school and held hearings over an eight-month period during L.J.’s sixth-grade year. The summer after sixth grade, the ALJ issued a decision addressing the content of the new IEP and the implementation of the old one; he found both that the content of the proposed middle school IEP was appropriate and that the school had adequately implemented the elementary school stay-put IEP during the challenge. L.J.’s mother appealed from that decision, and a district judge affirmed it.³ That case and the time period it involved—L.J.’s sixth-grade year—are no longer before us. But because of that case, at all times relevant to this appeal, the school was required to implement L.J.’s elementary school stay-put IEP.

L.J. returned to his public school for his seventh-grade year, but despite the apparent efforts of both his mother and the school, his attendance problems continued: due to a combination of illness and refusal to attend, L.J. was absent for well over 100 school days. All told, L.J. was present for less than a quarter of the class periods during his seventh-grade school year. That small fraction reflects the fact that L.J. often never even made it to the bus stop, much less through the school doors, and that when he did go to school, he often left early.

In December of L.J.’s seventh-grade year, his mother filed another IEP challenge—the one that eventually resulted in this appeal. Although the ALJ had found in the first case that the school had adequately implemented the elementary school stay-put IEP through the end of L.J.’s sixth-grade year, L.J.’s mother now alleged that the school had failed to implement that same IEP during the federal judicial proceedings that followed her appeal from the ALJ’s order—that is, beginning in seventh grade. As the administrative challenges continued, so did L.J.’s...