M.L. ex rel. Leiman v. Starr, Case No. PWG–14–1679.

• Decision Date: 03 August 2015
• Docket Number: Case No. PWG–14–1679.
• Citation: 121 F.Supp.3d 466
• Parties: M.L. ex rel. Akiva LEIMAN, et al., Plaintiffs, v. Joshua P. STARR, et al., Defendants.
• Court: U.S. District Court — District of Maryland

121 F.Supp.3d 466

M.L. ex rel. Akiva LEIMAN, et al., Plaintiffs,

v.Joshua P. STARR, et al., Defendants.

Case No. PWG–14–1679.

United States District Court, D. Maryland, Southern Division.

Filed Aug. 3, 2015.

Michael J. EigMichael J. Eig and Associates PC Chevy Chase, MD, for Plaintiffs.

Jeffrey A. Krew, Jeffrey A. Krew LLC, Ellicott City, MD, for Defendants.

MEMORANDUM OPINION AND ORDER

PAUL W. GRIMM, District Judge.

Rabbi Akiva Leiman and Shani Leiman ("Parents") and their minor son, M.L. ("Student"), by and through his Parents, filed suit against Joshua Starr in his official capacity as Superintendent of Montgomery County Public Schools ("MCPS") and Montgomery County Board of Education ("the Board"), claiming that Defendants failed to provide the Student, who has an intellectual disability, "with the Free Appropriate Public Education (‘FAPE’) to which he is entitled under the Individuals with Disabilities Education Improvement Act (‘IDEA’), 20 U.S.C. §§ 1400 et seq. " Compl. ¶¶ 1, 9, ECF No. 1. Specifically, they allege that Defendants "fail[ed] to propose an appropriate educational program or placement for M.L. that takes into account his religious and cultural needs." Id. ¶ 70. They also claim that the administrative law judge ("ALJ") who reviewed the Student's individualized education program ("IEP") erred in "failing to render a proper decision based on an accurate and impartial understanding of the facts and law" and consequently "unreasonably concluded that the school system had proposed an educational program and placement for M.L. that was reasonably calculated to provide him with a FAPE for the 2012–13 school year," and "incorrectly denied the parents their requested relief of funding and an appropriate placement at the Sulam School (‘Sulam’)."¹ Id. ¶¶ 1, 74. Sulam, the school the Student currently attends at his Parents' expense, "is a full-time special education program serving the Orthodox Jewish population"; there, the Student participates in a "program ... to prepare students to live independently in their Orthodox Jewish community." Id. ¶¶ 6, 22–24. Because, giving due weight to the ALJ's factual findings and from my own de novo review of the entire record, I conclude that Plaintiffs are not entitled to judgment as a matter of law and Defendants are, I will deny Plaintiffs' Motion for Summary Judgment, grant Defendants' Cross–Motion for Summary Judgment, and close this case.²

I. FREE APPROPRIATE PUBLIC EDUCATION

Children with disabilities are entitled to a free appropriate public education, or "FAPE," pursuant to the IDEA. 20 U.S.C. § 1412(a)(1)(A). Maryland regulations also "govern[ ] the provision of FAPEs to children with disabilities in accordance with the IDEA." M.C. v. Starr, No. DKC–13–3617, 2014 WL 7404576, at *1 (D.Md. Dec. 29, 2014) (citing Md.Code Regs. Tit. 13A, § 05.01). A FAPE is an education that provides "meaningful access to the educational process" in "the least restrictive environment" and is "reasonably calculated to confer ‘some educational benefit’ " on the child with a disability. Id. (citing Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 192, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) ). "The benefit conferred ... must amount to more than trivial progress," but "[t]he IDEA does not require that a school district provide a disabled child with the best possible education...." Id. (citing Rowley, 458 U.S. at 192, 102 S.Ct. 3034 ; Reusch v. Fountain, 872 F.Supp. 1421, 1425 (D.Md.1994) ).

To this end, each child with a disability must have "an appropriate Individualized Education Program (‘IEP’)" that "state[s] the student's current educational status, annual goals for the student's education, which special educational services and other aids will be provided to the child to meet those goals, and the extent to which the child will be ‘mainstreamed,’ i.e., spend time in regular school classroom with non-disabled students."Id. (citing 20 U.S.C. § 1414(d)(1)(A) ). In Maryland, parents may voice disagreement with their children's proposed IEPs and request due process hearings before the Maryland Office of Administrative Hearings to address their concerns. See id. at *2 (citing 20 U.S.C. § 1415(b)(6), (f) ; Md.Code Ann., Educ. § 8–413 ; Md.Code Regs. Tit. 13A, § 05.01.15(C)(1) ). "Any party can then appeal the administrative ruling in federal or state court." Id. (citing Educ. § 8–413(h) ). Additionally, parents may place their children in private school that is "appropriate to meet the child's needs" and "seek tuition reimbursement from the state," but only if "if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment.' " Id. (quoting Title 20 § 1412(a)(1)(C)(iii) ; citing Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369–70, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) ).

II. BACKGROUND³

The material facts are undisputed.⁴ The Student has an intellectual disability, and his "full scale IQ" was determined in 2009 and again in 2012 to be in the first percentile. Compl. ¶¶ 9, 18, 30; Defs.' Mem. 3. Therefore, he is entitled to a FAPE under the IDEA. Compl. ¶ 1; Defs.' Mem. 3. His instruction must be consistent and repetitive for him to learn. Pls.' Mem. 4, 8; Defs.' Mem. 3.

The Student is a part of the Orthodox Jewish community in which he lives, and it is very important to his Parents that he learn the rules and customs of Orthodox Jewish life. Compl. ¶ 8; Defs.' Mem. 3–4. In their view, "he has many important religious and cultural needs that must be taken into account when designing an appropriate learning environment for him," and his "functional life skills are different than those of a non-Orthodox student." Compl. ¶¶ 8, 41. Therefore, they sought an IEP for the 2012–2013 school year that provided for the Student to be placed at Sulam, where the basics of Orthodox Jewish life are a part of the curriculum. Compl. ¶ 49; Defs.' Mem. 4, 14 n. 7. Instead, MCPS proposed an IEP that placed the Student at Woodlin Elementary School, a MCPS public school, and did not include instruction for the Student on rules and customs of the Orthodox Jewish community. Compl. ¶¶ 46–47, 50, 58, 60; Defs.' Mem. 4.

In response, the Parents "filed a due process hearing request on July 26, 2013, seeking reimbursement and placement for M.L. at Sulam." Compl. ¶ 52; Defs.' Mem. 4. During the five-day hearing, the ALJ heard testimony from the Parents' six witnesses (the Student's father, an expert in Judaism, experts in special education, the Assistant Director/Director of Advocacy at the Weinfeld Education Group, and an expert in the teaching and supervision of special education in a Jewish day school) and MCPS's three witnesses (an expert in psychology and two experts in special education, one with "an emphasis on culturally and linguistically diverse students with disabilities"). Compl. ¶¶ 53–55; ALJ Dec. 5–6. He also received 56 exhibits from the Parents, 22 from the Board, and 4 from the Office of Administrative Hearings; the exhibits included assessments, reports, evaluations, the IEP, school report cards and updates, correspondence, witness resumes, and the Common Core Curriculum that MCPS follow. ALJ Dec. 5–6.

Insisting that the Student "is not capable of generalizing what he learns at school to home and vice-versa" and therefore "needs the same information taught in [both] settings," the Parents argued that " ‘It is clear that the school system's proposed IEP cannot prepare [the Student] for life in his Orthodox Jewish community, rendering it inappropriate,’ " and that " ‘MCPS has just refused to consider adding instruction that will prepare [the Student] for an Orthodox Jewish way of life, and that violates his right to a FAPE.’ " ALJ Dec. 15, 25, Admin. Rec., ECF No. 3 (quoting Parents' Rebuttal Closing 11). They noted that " ‘the school system's witnesses ... repeatedly testified that they would not personalize [the Student's] IEP to meet his unique needs or include any of the bilingual or bicultural education he needs to be part of his community.’ " Id. (quoting Parents' Written Closing ("PWC") 16). As the Parents see it, Hebrew literacy, identification of Kosher symbols, and "time recognition" tailored to abiding by Kosher rules in separating the consumption of meat and dairy are "functional and/or academic skills that [the Student] needs in his community and in his culture" and that must be included in his IEP. Id. at 25–26 (quoting PWC 19–20).

The ALJ made the following findings of fact:

1. The Student was born on March 31, 2003. He lives with the Parents and nine siblings in Montgomery County, Maryland. The family is part of the Orthodox Jewish community. All the school-age children attend private Jewish schools.

2. The way of life of an Orthodox Jew is much different from that of the general population. The Jewish Bible and Jewish law and custom govern how an Orthodox Jew dresses, eats, prays, works, what holidays are celebrated, and almost every aspect of life, including social interaction and understanding and speaking Hebrew.

3. The Student was diagnosed with Down Syndrome at birth. He is eligible for special education services under federal and State law as a child with an intellectual disability. For some period of time, but only before kindergarten, the Student received special education services from MCPS. Since September 2009, he has attended Sulam, a special education program that serves the Orthodox Jewish community and is located inside the Melvin J. Berman Hebrew Academy.

4. Beginning on June 6, 2012, the parties met to discuss an IEP for the Student for his education during the 2012–2013 school year in the MCPS. The purpose of the initial meeting in June 2012 was to reevaluate the Student's current levels of academic achievement and educational performance. The parties agreed at this meeting to obtain updated assessments of the Student in

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