E.L. v. Chapel Hill-Carrboro Bd. of Educ.

• Decision Date: 30 September 2013
• Docket Number: No. 1:12CV29.,1:12CV29.
• Court: U.S. District Court — Middle District of North Carolina
• Parties: E.L., by and through her parents, G.L. and D.L., Plaintiff, v. CHAPEL HILL–CARRBORO BOARD OF EDUCATION, Defendant.

975 F.Supp.2d 528

E.L., by and through her parents, G.L. and D.L., Plaintiff,

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

No. 1:12CV29.

United States District Court, M.D. North Carolina.

Sept. 30, 2013.

Robert C. Ekstrand, Ekstrand & Ekstrand, LLP, Durham, NC, for Plaintiff.

Kenneth A. Soo, Tharrington Smith, LLP, Raleigh, NC, for Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

Plaintiff E.L. filed this action through her parents, G.L. and D.L., against Defendant Chapel Hill–Carrboro Board of Education (“the Board”), alleging violations of the Individuals with Disabilities Education Act (“IDEA”). Before the court are cross-motions seeking a final disposition in the case. The Board has filed a motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(1), or in the alternative a motion for summary judgment on all claims. (Doc. 33.) E.L. has filed a motion for summary judgment on all claims. (Doc. 38.) E.L. has also filed a motion to treat her motion for summary judgment as timely filed. (Doc. 41.) For the reasons set forth below, E.L.'s motion to treat her summary judgment motion as timely filed is granted, her motion for summary judgment is denied, and the Board's motion to dismiss or, in the alternative, for summary judgment is granted.

I. BACKGROUND

E.L. is an eight-year-old girl who has been diagnosed with autism¹ and has struggled since birth to learn basic skills that other children acquire naturally. She qualifies as a child with a disability under the IDEA. 20 U.S.C. § 1401(3). E.L. lives with her family in Chapel Hill, North Carolina, in the Chapel Hill–Carrboro City Schools District, for which the Board is responsible. She began attending Frank Porter Graham Child Development Center (“FPG”) in March 2008 and received Individualized Education Programs (“IEPs”) for 2008–09 and 2009–10. In addition to the instruction and services E.L. received at FPG, E.L.'s parents employed private specialists to provide further instruction and evaluation.

E.L.'s parents became concerned that E.L. was not making sufficient progress and that her IEPs and the resources at FPG were not meeting her needs. While planning for E.L.'s 2009–10 IEP in the summer of 2009, E.L.'s parents suggested splitting E.L.'s enrollment at FPG with the Mariposa School in Cary, North Carolina. Mariposa is a private school that enrolls only disabled students and uses a different method of teaching from the method used at FPG. E.L.'s 2009–10 IEP originally provided for instruction at FPG five days a week, but E.L.'s parents insisted on placing E.L. at Mariposa for three days and FPG for two days a week. E.L. began that split program in September 2009. Increasingly concerned about E.L.'s progress, E.L.'s parents removed her from FPG in March 2010 and enrolled her at Mariposa full-time. E.L.'s IEP team, including her parents and FPG staff, met several times in the fall of 2010 to determine her 2010–11 IEP. That IEP was never finalized, however, as the team was unable to agree on E.L.'s placement.

E.L.'s parents filed a petition for a due process hearing pursuant to 20 U.S.C. § 1415(f) on March 30, 2010, alleging that E.L. had been denied a free appropriate public education (“FAPE”) under the IDEA. The North Carolina Office of Administrative Hearings (“OAH”) appointed Administrative Law Judge (“ALJ”) Augustus B. Elkins II to serve as the hearing officer in the case. After an extensive hearing, the ALJ issued his decision on October 7, 2011.² The ALJ's decision was favorable to the Board in almost all respects. The Board, however, appealed the decision on the one issue decided against it: whether the Board had provided appropriate speech language services from April to May 2009 and September to December 2009. E.L. did not appeal but filed a “motion to quash respondent's purported notice of appeal” in which it challenged the authority of the State Review Officer (“SRO”) to review the ALJ's decision. (Doc. 40–1.)

The North Carolina Department of Public Instruction (“DPI”) appointed SRO Joe D. Walters to review the case pursuant to 20 U.S.C. § 1415(g) and N.C. Gen.Stat. 115C–109.9. On December 6, 2011, the SRO decided in favor of the Board on the one issue at stake, reversing the ALJ's decision as to whether the Board provided appropriate speech language services. E.L. filed the current action on January 9, 2012, pursuant to 20 U.S.C. § 1415(i)(2).

E.L. contends that she has exhausted all levels of review that the IDEA authorizes and has properly brought her claims before this court. She asserts that she was denied a FAPE because her 2008–09, 2009–10, and 2010–11 IEPs did not meet her needs, particularly for one-on-one instruction, and the services that the Board provided did not further the goals of the IEPs. She seeks reimbursement for private educational services and attorney's fees. The Board argues that the court should dismiss E.L.'s claims that challenge the ALJ's adverse findings because she failed to exhaust the administrative remedies available to her under the IDEA. The Board further urges the court to affirm the SRO's decision that the IEPs met E.L.'s needs and the services provided adequately fulfilled what the IEPs required.

II. ANALYSIS

The court considers first the Board's contention that this court lacks subject matter jurisdiction to consider E.L.'s challenge to the ALJ's findings against her because she failed to exhaust her administrative remedies under the IDEA. (Doc. 34 at 21.) E.L. argues that she exhausted her remedies because, she contends, the ALJ's hearing was the only level of administrative review authorized by the IDEA and his decision was therefore final. (Doc. 40 at 1, 3.) A court may grant a motion to dismiss for lack of subject matter jurisdiction “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999) (citation omitted).

A. Statutory Framework

The court examines first the statutory framework of the IDEA to assess E.L.'s claim that the ALJ's decision was final and appealable under the IDEA.

The IDEA provides for a system of administrative review before any claims arising under it may be pursued in state or federal court. Under the IDEA, states choose between a one-tiered system, in which a “state educational agency” decides the case, and a two-tiered system, in which a “local educational agency” initially decidesthe case and any appeal must be taken to a state educational agency review officer. 20 U.S.C. § 1415(f)(1)(A), (g)(1). Any aggrieved party may file an original civil action in the courts only after a decision on the merits by a state educational agency. Id. § 1415(i)(2)(A). Thus, in a one-tiered system, a civil action may be filed after the one and only due process hearing; in a two-tiered system, an aggrieved party must appeal to (and obtain a decision from) the state educational agency before filing a civil action.

North Carolina opted for a two-tiered system. A person wishing to sue under the IDEA first files a petition with OAH. N.C. Gen.Stat. § 115C–109.6. OAH, a state agency, appoints an ALJ to hear and decide the case. Id. After this initial hearing and decision, any aggrieved party may appeal the ALJ's decision. N.C. Gen.Stat. § 115C–109.9. The state Board of Education, through its Exceptional Children Division, appoints an SRO to review the ALJ's findings appealed and issue an independent decision. Id. The SRO's decision is final unless an aggrieved party timely files a civil action pursuant to 20 U.S.C. § 1415(i)(2)(A).

E.L. contends that the IDEA does not authorize the kind of system North Carolina has in place. She argues that North Carolina's first tier of review (by the ALJ) actually constitutes the “hearing ... conducted by the State educational agency” contemplated by 20 U.S.C. § 1415(f)(1)(A), and therefore no party has the right to appeal that decision to an SRO under section 1415(g). (Doc. 40–1.) Instead, E.L. contends, a party aggrieved by the ALJ's decision has the right to file an original civil action under section 1415(i)(2). ( Id.) Consistent with this view, E.L. moved to quash the Board's previous appeal to the SRO. ( Id.) E.L.'s contention that North Carolina's second tier of review is unauthorized thus underpins her claim that she has exhausted all her administrative remedies under the IDEA.

E.L. is not the first North Carolinian to challenge whether the state's system of review is authorized by the IDEA. L.K. ex rel. Henderson v. N.C. State Bd. of Educ., No. 5:08–CV–85–BR, 2009 WL 3172129, at *1 (E.D.N.C. Oct. 1, 2009). But to date no court has addressed the merits of that claim directly.

The IDEA's statutory scheme requires that a state educational agency conduct the administrative review immediately preceding any civil action. Whether that review is the first tier of review (and therefore the only administrative tier of review), or the second does not matter. The IDEA defines a state educational agency as “the State board of education or other agency or officer primarily responsible for the State supervision of public elementary schools and secondary schools, or, if there is no such officer or agency, an officer or agency designated by the Governor or by State law.” 20 U.S.C. § 1401(32).

E.L. does not, indeed cannot, assert that OAH is North Carolina's state educational agency, as the IDEA defines it. The North Carolina Board of Education (“NCBOE”) is North Carolina's “state educational agency,” and E.L. acknowledges as much. (Doc. 18 ¶ 38.) In North Carolina, it is the one and only “State board of education”; it is the one agency “primarily responsible for the State supervision of public elementary schools and secondary schools.” 20 U.S.C. § 1401(32). North Carolina's statute implementing the IDEA specifically designates NCBOE, through its Exceptional Children Division, to provide an...