M.M. ex rel. J.M. v. Foose

• Decision Date: 07 December 2015
• Docket Number: CIVIL NO. JKB–14–4014
• Parties: M.M. ex rel. J.M., et al., Plaintiffs v. Renee A. Foose, et al., Defendants.
• Court: U.S. District Court — District of Maryland

165 F.Supp.3d 365

M.M. ex rel. J.M., et al., Plaintiffs

v.Renee A. Foose, et al., Defendants.

CIVIL NO. JKB–14–4014

United States District Court, D. Maryland.

Signed December 7, 2015

MEMORANDUM

James K. Bredar, United States District Judge

J.M. and B.M. (“the Father” and “the Mother” or “the Parents”) and M.M., a disabled minor student, by and through his Parents (collectively, “Plaintiffs”), brought suit against Renee A. Foose in her official capacity as Superintendent of Howard County Public Schools (“HCPS” or “the School System”) and against the Howard County Board of Education (collectively, “Defendants”). Plaintiffs allege that Defendants denied M.M. the free appropriate public education (“FAPE”) to which he is entitled under the Individuals with Disabilities Education Act (“the IDEA”), as amended, 20 U.S.C. §§ 1400 et seq., and its Maryland corollary, Md.Code Ann., Educ. §§ 8–401 et seq.

Plaintiffs previously filed a due process complaint with the Maryland Office of Administrative Hearings (“OAH”), seeking tuition reimbursement and placement of M.M. at the nonpublic St. Elizabeth School in Baltimore City (“St.Elizabeth”). In an October 22, 2014, Order, Administrative Law Judge (“ALJ”) Marc Nachman denied Plaintiffs' requested relief. (ALJ Decision at 88.¹ ) Plaintiffs thereafter filed this action, seeking (1) a declaratory judgment that Defendants have violated Plaintiffs' rights; (2) an injunction vacating the prior decision of ALJ Nachman and requiring Defendants to reimburse Plaintiffs for the cost of enrolling M.M. at St. Elizabeth in 2013–14;² and (3) an order requiring Defendants to recognize St. Elizabeth as M.M.'s current placement under the IDEA. (ECF No. 1 at 17–18.)

Now pending before the Court are cross-motions for summary judgment filed by Plaintiffs (ECF No. 12) and Defendants (ECF No. 14). The issues have been briefed (ECF Nos. 12–1, 14–1, 17 & 20), and no hearing is required, Local Rule 105.6 (D.Md.2014). For the reasons explained below, Defendants' Motion will be GRANTED, and Plaintiffs' Motion will be DENIED.

I. The IDEA's FAPE Requirement

In enacting the IDEA, Congress recognized that disability is a “natural part of the human experience” and that “[i]mproving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.” 20 U.S.C. § 1400(c)(1). The IDEA provides federal funding for states that develop policies and procedures to ensure that each child has access to a FAPE. § 1412(a). The State of Maryland has implemented such policies and procedures. See Md.Code Ann., Educ. §§ 8–401 et seq. ; Md.Code Regs. 13A.05.01.01 et seq.

A FAPE must provide a “basic floor of opportunity” for disabled children, consisting of “access to specialized instruction and related services which are individually designed to provide educational benefit” to such children. Bd. of Educ. v. Rowley, 458 U.S. 176, 201, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). Rowley's “educational benefit” requirement will “not be met by the provision of de minimis, trivial learning opportunities.” Reusch v. Fountain, 872 F.Supp. 1421, 1425 (D.Md.1994). Even so, the IDEA does not “require a school district to provide a disabled child with the best possible education.” MM ex rel. DM v. Sch. Dist., 303 F.3d 523, 526 (4th Cir.2002) ; see also O.S. v. Fairfax Cty. Sch. Bd., 804 F.3d 354, 360 (4th Cir.2015) ( “In this circuit, the standard remains the same as it has been for decades: a school provides a FAPE so long as a child receives some educational benefit, meaning a benefit that is more than minimal or trivial, from special instruction and services.”); Hessler v. State Bd. of Educ., 700 F.2d 134, 139 (4th Cir.1983) (rejecting the premise that states are obligated to provide students with the “best education, public or nonpublic, that money can buy,” and further denying the proposition that “because a given school is allegedly more appropriate than another school, the less appropriate school becomes inappropriate”).

Moreover, while the IDEA does contemplate that some disabled students may require services in specialized, nonpublic settings, the statute imposes a Least Restrictive Environment (“LRE”) requirement: “To the maximum extent appropriate, children with disabilities ... are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes ... cannot be achieved satisfactorily.” 20 U.S.C. § 1412(a)(5)(A) ; see also DeVries ex rel. DeBlaay v. Fairfax Cty. Sch. Bd., 882 F.2d 876, 878 (4th Cir.1989) (“Mainstreaming of handicapped children into regular school programs where they might have opportunities to study and to socialize with nonhandicapped children is not only a laudable goal but is also a requirement of the Act.”).

So as to ensure that each child receives a FAPE, school officials must create an individualized education plan (“IEP”) for any child with a disability. 20 U.S.C. § 1412(a)(4) ; Md.Code Regs. 13A.05.01.09. The IEP must take into account, inter alia, the strengths of the child; the concerns of the child's parents; the results of evaluations; and the academic, developmental, and functional needs of the child. 20 U.S.C. § 1414(d)(3)(A). Parents who are dissatisfied with their child's IEP may complain to school officials and may, if their concerns are not adequately addressed, bring a due process complaint before state or local educational authorities: in Maryland, such complaints are heard by an ALJ with the state OAH. 20 U.S.C. § 1415(b)(6), (f) ; Md.Code Ann., Educ. § 8–413. Any party aggrieved by the ALJ's decision may thereafter bring suit in the United States District Court for the District of Maryland or in the circuit court for the county in which the child resides. 20 U.S.C. § 1415(i)(2)(A) ; Md.Code Ann., Educ. § 8–413(j). In reviewing the ALJ's decision, the court must “determine first whether the state has ‘complied with the procedures set forth in the [IDEA],’ and second, whether the IEP is ‘reasonably calculated to enable the child to receive educational benefits.’ ” Avjian v. Weast, 242 Fed.Appx. 77, 81 (4th Cir.2007) (per curiam) (quoting Rowley, 458 U.S. at 206–07, 102 S.Ct. 3034 ).³

When a public school system defaults on its obligations under the IDEA, a private school placement may be proper if the placement is reasonably calculated to accord the child educational benefits; in such a case, the school system may be required to reimburse parents for private tuition and related expenses. However, parents who “ ‘unilaterally change their child's placement during the pendency of review proceedings, without the consent of state or local school officials, do so at their own financial risk.’ They are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and that the private school placement was proper under the Act.” Florence Cty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 15, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993) (emphasis in original) (quoting Sch. Comm. of the Town of Burlington v. Dep't of Educ., 471 U.S. 359, 373–74, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) ), superseded on other grounds as recognized in Pollowitz v. Weast, 90 Fed.Appx. 438, 444 (4th Cir.2001) (per curiam); see also Lexington Cty. Sch. Dist. One v. Frazier ex rel. D.T., No. 3:10–01808–MBS, 2011 WL 4435690, at *8 (D.S.C. Sept. 22, 2011) (“Under what has been denominated the Burlington –Carter framework, a parent may recover tuition reimbursement if: (1) the proposed IEP was inadequate to offer the child a FAPE, and (2) the private education services obtained by the parents were reasonably calculated to enable the child to receive educational benefits”). Thus, if the court determines that the IEP proposed by the public school was reasonably calculated to provide the child with a FAPE, the court's inquiry is at an end—and it need not separately determine whether a unilateral private placement was proper. T.S. v. Weast, Civ. No. DKC–09–1581, 2010 WL 2431021, at *8 (D.Md. June 10, 2010).

II. History of the Present Case

A. Factual Background⁴

M.M. is a minor student with a neurodevelopmental disorder in the severe range of the autism spectrum. (Tr. vol.1, 46:22–47:23.) M.M. has substantial speech and language deficits; he has also been diagnosed with apraxia, or the “difficulty in organizing, planning and executing ... motor movements for speech volitionally, on demand.” (Id. vol. 9, 1830:1–3.) Before M.M. enrolled in primary school, HCPS found him eligible for special-education programs; he participated in such programs at various public and private schools, including the nonpublic Trellis School for autistic students (“the Trellis School”), during his early elementary years. (Id. vol. 2, 321:17–327:3.) In March 2010, during M.M.'s second-grade year, personnel at the Trellis School conducted a battery of tests: these tests confirmed that M.M. faced significant challenges in the areas of social interaction, communication, and academic concepts. In particular, M.M. scored age equivalencies of thirty-four (34) months for receptive language, twenty-two (22) months for expressive language, twenty-six (26) months for mathematical understanding, and thirty-six (36) months for literacy. (MM_3 at 4.)

For the 2010–11 academic year, HCPS determined that M.M.'s IEP could be implemented at the Cedar Lane School (“Cedar Lane”), a self-contained, special-education environment adjacent to Fulton Elementary School (“Fulton”). (Tr. vol.2, 327:8–11.) M.M.'s first year at Cedar Lane (during which he repeated the second grade) was fairly successful: he achieved five goals on his IEP, and he made progress toward...