Leggett v. Dist. of Columbia, 14–7021.

• Decision Date: 10 July 2015
• Docket Number: No. 14–7021.,14–7021.
• Citation: 793 F.3d 59
• Parties: Jane LEGGETT and K.E., A Minor, by her Parent and Next Friend, Jane Leggett, Appellants v. DISTRICT OF COLUMBIA, A Municipal Corporation, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

793 F.3d 59

Jane LEGGETT and K.E., A Minor, by her Parent and Next Friend, Jane Leggett, Appellants

v.DISTRICT OF COLUMBIA, A Municipal Corporation, Appellee.

No. 14–7021.

United States Court of Appeals, District of Columbia Circuit.

Argued March 23, 2015.

Decided July 10, 2015.

Jane A. Leggett, pro se, argued the cause and filed the briefs for appellants.

Carl J. Schifferle, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellee. With him on the brief were Irvin B. Nathan, Attorney General at the time the brief was filed, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General.

Before: TATEL and PILLARD, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

This case presents a recurring issue under the Individuals with Disabilities Education Act: When a parent chooses, without school officials' consent, to send her child to a private school, under what circumstances must the school district reimburse the parent for the costs of attending that school? Here, the parent chose a private boarding school, and both a hearing officer and the district court denied reimbursement because, in their view, the child had no need to be in a residential program. On the record before us, however, all statutory, regulatory, and judicial requirements for reimbursement of the costs of private school have been satisfied: the school district failed to offer the child a “free appropriate public education” in either a public school or a non-residential private school, 20 U.S.C. § 1412(10)(C)(i) ; the private boarding school the parent selected was, at the time, the only one on the record “reasonably calculated to enable the child to receive educational benefits” designed to meet the child's needs, Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) ; the residential component of the private school was in fact “necessary to provide a free appropriate public education to” the child, 34 C.F.R. § 104.33(a)(c)(3) ; and the school district has not shown that the parent acted “unreasonabl[y],” 20 U.S.C. § 1412(10)(C)(iii)(III). Accordingly, we reverse and remand for further proceedings consistent with this opinion.

I.

Under the Individuals with Disabilities Education Act (IDEA), every child with a disability in this country is entitled to a “free appropriate public education,” or FAPE. 20 U.S.C. § 1400(d)(1)(A). As Congress explained when it passed IDEA, the Act's primary purpose is “to ensure that all children with disabilities have available to them a[n] ... education that emphasizes special education and related services designed to ... prepare them for further education, employment, and independent living.” Id. “Special education,” in turn, means, simply, instruction “specially designed ... to meet the unique needs of a child with a disability.” Id. § 1401(29).

To guarantee that no child with a disability misses out on the education the Act promises, and to ensure, in turn, that the education offered is “appropriate,” IDEA requires that school officials develop a comprehensive strategy, known as an “individualized education program,” or IEP, tailored to the student's unique needs. Id. § 1414(d)(1)(A). Critical to the issue before us, IDEA requires that school districts have an IEP in place for each student with a disability “[a]t the beginning of each school year.” Id. § 1414(d)(2)(A).

Although Congress envisioned that children with disabilities would normally be educated in “the regular public schools or in private schools chosen jointly by school officials and parents,” Florence County School District Four v. Carter By and Through Carter, 510 U.S. 7, 12, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993), it provided that parents who believe that their child's public school system failed to offer a free appropriate public education—either because the child's IEP was inadequate or because school officials never even developed one—may choose to enroll the child in a private school that serves her educational needs. Id. Specifically, IDEA provides that if parents “enroll the child in a private ... school without the consent of [the school district], a court or a hearing officer may require the [school district] to reimburse [them] for the cost of that enrollment....” 20 U.S.C. § 1412(10)(C)(ii). The statute requires reimbursement, however, only where the school district has failed to “ma[k]e a free appropriate public education available to the child.” Id. Reimbursement, moreover, may be “reduced or denied” if the parents fail to notify school officials of their intent to withdraw the child, id. § 1412(10)(C)(iii)(I), deny them a chance to evaluate the student, id. § 1412(10)(C)(iii)(II), or, of special relevance here, otherwise act “unreasonabl [y],” id. § 1412(10)(C)(iii)(III).

In regulations that largely track these provisions, the Department of Education has made clear that parents can obtain reimbursement even for residential programs. Specifically, the regulations state that “[i]f a public or private residential placement is necessary to provide a free appropriate public education to a handicapped [child] because of his or her handicap, the placement, including non-medical care and room and board, shall be provided at no cost to the [child] or his or her parents or guardian.” 34 C.F.R. § 104.33(c)(3).

Elucidating these provisions, the Supreme Court explained in School Committee of Town of Burlington v. Department of Education of Massachusetts that it is the Act's grant of equitable authority that empowers a court “to order school authorities to reimburse parents for their expenditures on private special education for a child if the court ultimately determines that such placement ... is proper under the Act.” 471 U.S. 359, 369, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). In such cases, “parents who disagree with the proposed IEP are faced with a choice: go along with the IEP to the detriment of their child if it turns out to be inappropriate or pay for what they consider to be the appropriate placement.” Id. at 370, 105 S.Ct. 1996. For parents who make the latter choice, the Court reasoned, “it would be an empty victory to have a court tell them several years later that they were right but that these expenditures could not in a proper case be reimbursed by the school officials.” Id. Because such a result would be contrary to IDEA's guarantee of a “free appropriate public education,” the Court confirmed that “Congress meant to include retroactive reimbursement to parents as an available remedy in a proper case.” Id.

A decade later, and again considering the conditions under which reimbursement for a parental placement is appropriate, the Court reiterated in Florence County School District Four v. Carter that IDEA empowers courts to order school officials to reimburse parents for their expenditures on private special education if the private placement was “ ‘proper under the Act.’ ” 510 U.S. at 12, 114 S.Ct. 361 (quoting Burlington, 471 U.S. at 369, 105 S.Ct. 1996 ). In setting out that requirement, the Court acknowledged that “Congress has imposed a significant financial burden on states and school districts that participate in IDEA.” Id. at 17, 114 S.Ct. 361. But school districts, the Court observed, have complete control over their fate: “public educational authorities who want to avoid reimbursing parents for the private education of a disabled child can do [so by] ... giv[ing] the child a free appropriate public education in a public setting, or plac[ing] the child in an appropriate private setting of the State's choice.” Id. This, according to the Court, “is IDEA's mandate, and school officials who conform to it need not worry about reimbursement claims.” Id.

In this case, we must determine the precise contours of these requirements: Under what circumstances does the school district's failure to offer an IEP by the start of the year—either in a public or private school—amount to a denial of FAPE? When is a private boarding-school placement “proper under the Act”? And what factors must a court consider when addressing the equities? But given that these issues arise in the context of the education of a particular child-Appellant Jane Leggett's teenage daughter K.E.—we turn first to the facts.

Now nineteen years old, K.E. attended school in the District of Columbia Public Schools, or DCPS, from kindergarten through the end of her first attempt at the eleventh grade in 2012. While in elementary school, K.E. was diagnosed with several learning issues, including “deficits in auditory awareness and in fine motor skills.” Hearing Officer Determination at 4. Although her elementary school provided her with special education, her middle school did not. Still, when K.E. entered Wilson High School in 2009, Leggett asked school officials to evaluate her daughter for learning disabilities. The school agreed to perform that evaluation, but it had failed to do so by the fall of 2011 when K.E. began her junior year.

By October of that year, although K.E. had been identified as a student of above-average intelligence, she was failing most of her classes, often due to inattention, disorganization, and anxiety. Dispirited by her personal and academic struggles, K.E. threatened suicide that same fall. In February 2012, spurred on by K.E.'s efforts to harm herself and the news that she would probably fail to graduate if things did not change, Leggett again asked school officials to evaluate her daughter. When the school district refused—instead recommending that Leggett pay for a private assessment—Leggett filed a due-process complaint seeking a comprehensive evaluation to determine K.E.'s eligibility for special education. See 20 U.S.C. § 1415(f) (providing for an “impartial due process hearing, which shall be conducted by the State...