S.F. v. Smith
| Decision Date | 03 August 2022 |
| Docket Number | 19-2207-PWG |
| Parties | S.F., et al., Plaintiffs, v. JACK R. SMITH, et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
S.F., a minor, by and through her parents, J.F. and S.F., who also joined their daughter as Plaintiffs, filed suit against Jack R. Smith in his official capacity as Superintendent of Montgomery County Public Schools (“MCPS”) and Montgomery County Board of Education (“the Board”). Compl., ECF No. 1. Plaintiffs claim that Defendants failed to provide S.F., a ten-year-old educationally disabled student, with the Free Appropriate Public Education (“FAPE”) to which she is entitled under the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. §§ 1400 et seq. Id. at ¶¶ 1, 3. They ask the Court to reverse the decision of the administrative law judge (“ALJ”) and award S.F.'s parents their requested relief of funding and placement at the Lab School of Washington (“Lab School”), located in Washington, D.C. Id. at ¶ 1.
According to Plaintiffs, the ALJ made multiple errors in her findings and in conducting the hearings, including the failure to consider the significance of the parents' interventions without which, S.F. would not have made the alleged progress that the ALJ relied on in reaching her conclusions.
The parties have filed cross-motions for summary judgment. ECF Nos. 18, 22. I have reviewed all the filings, including the administrative record, and find a hearing unnecessary. See Loc. R. 105.6 (D. Md. 2021). For the reasons that follow, I affirm the ALJ's decision that Defendants provided S.F. with the FAPE to which she is entitled under IDEA, deny the Plaintiff's motion for summary judgment and grant Defendants' cross-motion for summary judgment.
The Individuals with Disabilities Education Act (“IDEA”) is intended “to ensure that all children with disabilities have available to them a free appropriate public education [“FAPE”] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A); § 1412(a)(1)(A). Maryland regulations “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 (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; Reusch v. Fountain, 872 F.Supp. 1421, 1425 (D. Md. 1994)). Rather, a school must provide an Individualized Education Program (“IEP”) that is “reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1,__U.S.__, 137 S.Ct. 988, (2017) ( that “[a]ny review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal”).
To this end, each child with a disability must have an 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.” M.C., 2014 WL 7404576, at *1 (citing 20 U.S.C. § 1414(d)(1)(A)); see Endrew F., 137 S.Ct. at 994.
The IEP is “the centerpiece of the statute's education delivery system for disabled children.” Honig v. Doe, 484 U.S. 305, 311 (1988). A comprehensive plan prepared by a child's “IEP Team” (which includes teachers, school officials, and the child's parents), an IEP must be drafted in compliance with a detailed set of procedures. [20 U.S.C.] § 1414(d)(1)(B) (internal quotation marks omitted). These procedures emphasize collaboration among parents and educators and require careful consideration of the child's individual circumstances. § 1414. The IEP is the means by which special education and related services are “tailored to the unique needs” of a particular child. Rowley, 458 U.S., at 181.
If the IEP team members disagree about the contents of an IEP, they can try to “resolve their differences informally, through a ‘[p]reliminary meeting,' or, somewhat more formally, through mediation,” and if they do not reach agreement, they can participate in “a ‘due process hearing' before a state or local educational agency.” Id. (quoting 20 U.S.C. §§ 1415(e), (f)(1)(A), (B)(i), (g)). Then, “the losing party may seek redress in state or federal court.” Id. (citing 20 U.S.C. § 1415(i)(2)(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 M.C., 2014 WL 7404576, 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 a private school that is “appropriate to meet the child's needs” and “seek tuition reimbursement from the state,” but only “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, (1985)) (emphasis from M.C. removed).
S.F. was born on July 13, 2009 and began kindergarten in August 2014 at Little Bennett Elementary School (“Little Bennett”) in Montgomery County, Maryland. Little Bennett is SF's home school based on her residence. S.F.'s struggles with language skills became apparent early, and soon after school started, she began receiving one hour a week of Leveled Literacy Intervention (“LLI”), an informal reading intervention, with a paraeducator. S.F. finished kindergarten with an instructional reading level of 3, which was below grade level, and she attended a summer school program at Little Bennett in 2015 before starting first grade.
S.F. continued to struggle with reading and writing, and her first-grade teacher made a referral for special education screening. S.F.'s pediatrician also recommended psycho-educational testing and an IEP as soon as possible. At that time, the IEP team determined that her progress was sufficient and found her ineligible for special education services. Little Bennett did not refer S.F. for further testing for an education disability. In February 2016, Little Bennett staff replaced the LLI reading intervention with a different program, Early Intervention in Reading (“EIR”). S.F. finished first grade with an instruction reading level of 13, which was below grade level, and she again attended a summer school program at Little Bennett before starting second grade.
By the time S.F. started second grade, her reading ability had regressed to level 9, and by the middle of the year, she had improved only to level 10. S.F.'s second grade teacher made another referral for special education screening. In December 2016, the IEP team determined that S.F. should be screened for special education services. On January 24, 2017, MCPS sought consent from S.F.'s parents to evaluate her for special education services. An Educational Assessment Report was completed by Stacy Mallow at MCPS on March 3, 2017. She found that S.F. had deficits in reading decoding, specifically the use of short vowels, recall of sight words, difficulty re-reading what she had written, and in need of help with encoding and writing conventions. On March 8, 2017, Jodi Ward, an MCPS psychologist, administered cognitive and social-emotional testing to determine S.F.'s present levels of functioning and potential for learning. Ms. Ward reported that S.F. had an average full scale IQ, with skills ranging from Low Average to Average, and a score on the Jordan Left-Right Reversal Test that was in the deficient range. The IEP team met and determined that S.F. was eligible for special education services as a student with a Specific Learning Disability, and a program was developed with a goal in reading and a goal in written expression. S.F. finished second grade with a reading level of 12, which was not only below grade, but also below her measured reading level at the end of the first grade. S.F. attended the summer school program at Little Bennett before starting third grade.
S.F started third grade at Little Bennett at a reading level of 6 or 7, a significant regression from the previous year. That fall, S.F. underwent a psychoeducational evaluation by Dr. Anthony Henley. Dr. Henley diagnosed S.F. with a specific language-based learning disability (dyslexia[2]). Dr. Henley recommended that S.F. receive an Orton-Gillingham (“OG”) reading intervention, which is a specific phonologically-based approach, and he provided a list of instructional strategies and classroom accommodations to alleviate...
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