Loren F. ex rel. Fisher v. Atlanta Indep. School, No. 02-15252.

• Decision Date: 07 November 2003
• Docket Number: No. 02-15252.
• Citation: 349 F.3d 1309
• Parties: LOREN F., by his parents as next friend, Melanie FISHER, David Fisher, Plaintiffs-Appellants, v. ATLANTA INDEPENDENT SCHOOL SYSTEM, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1309

349 F.3d 1309

LOREN F., by his parents as next friend, Melanie FISHER, David Fisher, Plaintiffs-Appellants, v. ATLANTA INDEPENDENT SCHOOL SYSTEM, Defendant-Appellee.

No. 02-15252.

United States Court of Appeals, Eleventh Circuit.

November 7, 2003.

COPYRIGHT MATERIAL OMITTED

Jonathan A. Zimring, Zimring & Ellin, Atlanta, GA, for Plaintiffs-Appellants.

Kevin William Pendley, Atlanta Pub. Schools, Wendy A. Jacobs, Julia Jennings Weatherly, The Weatherly Law Firm, Atlanta, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH and HULL, Circuit Judges, and EDENFIELD^*, District Judge.

EDENFIELD, District Judge:

I. BACKGROUND

Claiming that their son, "Loren F.," suffers a "nonverbal learning disability," his parents requested that the Atlanta Public Schools (APS) accommodate him under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. (1994), and Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 791 et seq. (1994). Deeming APS's efforts inadequate, they removed him from an APS school and private-schooled him, then unsuccessfully pursued APS for reimbursement administratively and in district court.

They now appeal, inter alia, the district court's denial of their reimbursement claim (for convenience, we will simply refer to "Loren"). We preliminarily note a substantial divergence between the administrative and district court rulings below. Also, Loren presents us with several procedural (e.g., jury trial right) issues. We therefore find it useful to first review some governing legal principles before discussing the merits.

II. ANALYSIS

A. IDEA Governing Standards

The IDEA guarantees disabled students a Free and Appropriate Public Education ("FAPE"). Sch. Bd. of Collier County v. K.C., 285 F.3d 977, 979 (11th Cir.2002). A FAPE is defined as special education services that:

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency (C) include an appropriate preschool, elementary, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d)....

20 U.S.C. § 1401(8). 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. The IDEA, therefore, provides that the cost of the private school may be reimbursed if the public school did not make a FAPE available to the child in a timely manner. 20 U.S.C. § 1412(a)(10)(C)(ii).

To provide a FAPE, a school formulates an Individual Educational Plan ("IEP") during a meeting between the student's parents and school officials. See 20 U.S.C. § 1414(d)(1)(A)-(B); N.L. v. Knox County Sch., 315 F.3d 688, 689 (6th Cir.2003). An IEP must be amended if its objectives are not met, 20 U.S.C. § 1414(d)(4) (revise it at least annually if deficient); Kings Local Sch. Dist., Bd. of Educ. v. Zelazny, 325 F.3d 724, 731 (6th Cir.2003), but perfection is not required. CJN v. Minneapolis Pub. Sch., 323 F.3d 630, 638-39 (8th Cir.2003); K.C., 285 F.3d at 982.

Courts thus ask whether: (1) the school complied with the IDEA's procedures; and (2) the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits.¹ Ms. S. v. Vashon Island Sch. Dist., 337 F.3d 1115, 1129 (9th Cir.2003) (citing Board of Educ. v. Rowley, 458 U.S. 176, 206-207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). A "yes" answer to both questions ends judicial review. White v. Ascension Parish Sch. Bd., 343 F.3d 373, 378 (5th Cir.2003) (citing Rowley, 458 U.S. at 206-207, 102 S.Ct. 3034).

A "no" answer means no FAPE was provided (due to, for example, a deficient IEP), thus enabling the student to resort to private school and seek reimbursement from the school district under 20 U.S.C. § 1412(a)(10)(C)(ii). Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26 (1st Cir.2002); see also id. (court also must find the private school placement proper).

Even where a FAPE is not provided, courts can nevertheless deny reimbursement if a parent's own actions frustrated the school's efforts.² See MM v. Sch. Dist. of Greenville County, 303 F.3d 523, 533-35 (4th Cir.2002) (school district not IDEA liable for its failure to timely complete IEP where parents ceased to cooperate in IEP's completion, preferring to place child in private school); Doe v. Defendant I, 898 F.2d 1186, 1189 n. 1 (6th Cir.1990) (parent could not complain that school district failed to complete a timely IEP when IEP's non-completion was attributable to parent's request that school allow student to perform on his own for a while); see also Doe v. Ala. Dept. of Educ., 915 F.2d 651, 663-64 (11th Cir.1990).

Courts also can deny or reduce reimbursement if parents otherwise act unreasonably, see 20 U.S.C. § 1412(a)(10)(C)(iii)(III); 34 C.F.R. § 300.403(d)(3) ("Upon a judicial finding of unreasonableness with respect to actions taken by the parents"), or if parents fail to give the school proper notice that they reject the school's IEP and/or are removing their child from the school,³ 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.403(d)(1); see also M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir.2000).

"As the losing part[y] before the district court, [Loren] ... bear[s] the burden of demonstrating that the [APS] did not comply with the IDEA." M.L. v. Fed. Way Sch. Dist., 341 F.3d 1052, 1064 (9th Cir.2003); see also Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1292 (11th Cir.2001).

B. IDEA — Standard of Review

We review district court IDEA decisions under the standards set forth in K.C., 285 F.3d at 982-83 (whether an IEP provides a FAPE is a mixed question of fact and law subject to de novo review), and Walker County Sch. Dist. v. Bennett, 203 F.3d 1293, 1295 n. 6 (11th Cir.2000) (statutory interpretations are reviewed de novo).

Contrary to Loren's contention, "summary judgment [in IDEA cases] has been deemed appropriate even when facts are in dispute, and is based on a preponderance of the evidence." Beth B. v. Van Clay, 282 F.3d 493, 496 n. 2 (7th Cir.2002). That is why the district court's decision "is perhaps better described as judgment on the record." Id.; see also Slama v. Indep. Sch. Dist. No. 2580, 259 F.Supp.2d 880, 882 (D.Minn.2003) (On motion for judgment on the record in an IDEA suit, the district court "may make a decision on the merits, even if there exist, upon the stipulated [r]ecord, disputed issues of material fact") (citation omitted).

That means that the usual F.R. Civ. P. 56 summary judgment principles do not apply in an IDEA case.⁴ This is not surprising because no IDEA jury trial right exists. See Whitehead v. Sch. Bd. for Hillsborough Co., 918 F.Supp. 1515, 1518 (M.D.Fla.1996) (Because only injunctive relief and equitable damages are allowed under the IDEA, there is no jury trial right for IDEA claimants). The district court often conducts "a bench trial on a stipulated record." Slama, 259 F.Supp.2d at 882 (quotes and cite omitted).

While many courts cite to the commonly applied Rule 56 standards without acknowledging these distinctions, see, e.g., M.D. v. Southington Bd. of Educ., 334 F.3d 217, 220-21 (2d Cir.2003), we find nothing to prevent district judges from factfinding under F.R. Civ. P. 52 in IDEA cases — even on a record bearing evidence tendered in addition to the IDEA administrative record — subject to the requirement that they accord "due weight" to administrative findings.⁵

Reimbursement, after all, is "a matter of equitable relief, committed to the sound discretion of the district court...." Roland M. v. Concord Sch. Comm., 910 F.2d 983, 999 (1st Cir.1990) (cites omitted; emphasis added), see also Kurz v. Chase Manhattan Bank, 273 F.Supp.2d 474, 480 n. 1 (S.D.N.Y.2003) ("If the award of statutory damages is seen as representing equitable relief then it should go without saying that no right to a jury attaches to claims for equitable relief") (quotes, cite and alterations omitted), so no jury-trial right exists on that score. And factfinding is not limited to bench trials involving live witnesses. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (Absent clear error, a district court's factfindings cannot be overturned even if they "do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts").

Finally, in deferring to the Administrative Law Judge ("ALJ"), the district court must receive and thus review "the records of the [state] administrative proceedings." 20 U.S.C. § 1415(i)(2)(B)(i). Where the district court does not receive any additional evidence or testimony, this court stands "in the same shoes as the district court in reviewing the administrative record and may, therefore, accept the conclusions of the ALJ and district court that are supported by the record and reject those that are not." M.L., 341 F.3d at 1062.

C. Loren's IEP Rejection

Loren attended an APS school through the sixth grade, then private school for the seventh and eighth grades. In 1/00, midway through the eighth grade, his parents took him to Dr. Pamela Frey, a psychologist who diagnosed him with a "nonverbal learning disability" (NLD).

On 3/4/00, Loren's mother submitted his application to a private school for the ninth grade. The second page of the application includes the following text: "If you are seeking funding from your school district, please check here." Next to the box, which is checked, Loren's mother wrote: "But can pay without funding from school." The printed text of the application further reads: "Please note your advocate's name...