E.S. v. Smith
| Decision Date | 23 July 2018 |
| Docket Number | Case No.: PWG-17-3031 |
| Parties | E.S., et al., PLAINTIFFS, v. JACK R. SMITH, et al., DEFENDANTS. |
| Court | U.S. District Court — District of Maryland |
E.S. ("Student"), a minor, by and through his Parents, B.S. and M.S. ("Parents"), who also joined their son 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 the Student, who has "Multiple Disabilities, including an Autism Spectrum Disorder ('ASD'), Attention Deficit Hyperactivity Disorder ('ADHD'), and an Anxiety Disorder," 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." Id. ¶¶ 1, 7. They ask the Court to reverse the decision of the administrative law judge ("ALJ") who reviewed the Student's individualized education program ("IEP") and MCPS's decision to place him in the Bridge Program at Gaithersburg Middle School and concluded that the IEP and placement provided an appropriate education for E.S. in the least restrictive environment, as required by the IDEA. Id. ¶¶ 1, 57-61.
According to Plaintiffs, the IEP fell short because it did not include "a full-time therapeutic placement," and the Bridge Program was not appropriate for the services the IEP required, which included "twenty-nine hours and twenty minutes of specialized instruction outside the general education setting, with the option to 'self-select' lunch in the general education setting." Id. ¶¶ 57-61. In a 90-page opinion, the ALJ "agree[d] with MCPS that the IEP and placement developed by the school system is appropriate and reasonably calculated to meet the individual needs of the Student," ALJ Dec. 86, and denied the parents the relief they requested, namely "funding and placement from MCPS for E.S. at the [private] Ivymount School ('Ivymount')," Compl. ¶ 1.
Plaintiffs argue that the ALJ erred in both his factual findings and legal analysis, including "failing to properly assess the credibility of witnesses and completely ignoring evidence of how E.S. has responded to his private placement at Ivymount." Pls.' Mem. 2.1 They also contend that MCPS's "predetermination of E.S.'s placement . . . was explicitly admitted under oath by one MCPS witness and at a later IEP meeting by MCPS staff in front of the parents and their educational consultant," yet "the ALJ literally disregarded" the evidence. Id. But, giving due weight to the ALJ's factual findings and from my own de novo review of the entire record, I find that, E.S.'s IEP and placement were appropriate and reasonably calculated to meet his needs. Consequently, even if, arguendo, E.S.'s placement in the Bridge Program was predetermined, any error was harmless. Accordingly, I conclude that Plaintiffs are not entitled to judgment as a matter of law and Defendants are. Therefore, I will deny Plaintiffs' Motion forSummary Judgment, grant Defendants' Cross-Motion for Summary Judgment, and close this case.
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 Henrick 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 Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017) ().
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-disabledstudents." 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.
Endrew F., 137 S. Ct. at 994. 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).
Much of the background to this case is undisputed, and the parties provided it to the Court in a Joint Stipulation of Undisputed Facts.3 ECF No. 16. The Student initially was diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") and Oppositional Defiant Disorder ("ODD") in November 2011, while he was in second grade, and a Section 504 Plan that "provided a variety of accommodations in the classroom" was implemented. Id. at 1. A few months later, he "was diagnosed with Generalized Anxiety Disorder ("GAD"), ADHD (combined type), ODD, and Severe Mood Dysregulation." Id. at 1-2. Dr. Kenneth E. Towbin found that the Student "also [met] the criteria for a diagnosis of Social Learning Disorder" and "stated that he could 'stretch to say' that E.S. ha[d]s a mild Pervasive Developmental Disorder - Not Otherwise Specified, a diagnosis most consider to be part of the larger group of Autism Spectrum Disorder (ASD), but opined that Social Learning Disorder was a more accurate diagnosis." Id. at 2. He "recommended that the primary focus of his IEP should be for his anxiety, Social Learning Disorder, and pragmatic language impairments." Id.
Following "concerns about E.S.'s aggressive behavior, completion of written tasks, social skills, difficulty managing transitions, and anxiety," the Student was evaluated in September 2012 by the psychologist at his elementary school, who concluded that his "symptoms wereconsistent with GAD, ADHD, and mood dysregulation" and that he "met the criteria for an emotional condition that exhibits the following characteristics: '(1) inappropriate types of behavior or feelings under normal circumstances and (2) a tendency to develop physical symptoms or fears associate[d] with personal or school problems.'" Jt. Stip. Facts 2. The resource teacher at the school also evaluated him; E.S. had "scores of very advanced in letter-word identification, passage comprehension, reading vocabulary, applied problems, quantitative concepts, brief reading, reading comprehension, and math reasoning, and average to high average scores in all other areas assessed." Id. at 2-3. Educational consultant Rich Weinfeld, whom the Parents hired, also evaluated E.S. in Fall 2012 and "provided written input to the IEP team." Id. at 3.
The IEP team at his elementary school met and placed him in the Social and Emotional Support Services Program ("ED Program") at Great Seneca Creek Elementary School during third grade, and he stayed in that program through the end of fifth grade. Id. There, "he received special education services under the primary disability of Other Health Impairment ['OHI']." Id. In ...
To continue reading
Request your trial