Seth B. v. Orleans Parish Sch. Bd.

• Decision Date: 13 January 2016
• Docket Number: No. 15–30164.,15–30164.
• Citation: 810 F.3d 961
• Parties: SETH B., by and through his parents and next friends Donald and Cheryl B.; DONALD B.; Cheryl B., Plaintiffs–Appellants v. ORLEANS PARISH SCHOOL BOARD, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

810 F.3d 961

SETH B., by and through his parents and next friends Donald and Cheryl B.; DONALD B.; Cheryl B., Plaintiffs–Appellants

v.ORLEANS PARISH SCHOOL BOARD, Defendant–Appellee.

No. 15–30164.

United States Court of Appeals, Fifth Circuit.

Jan. 13, 2016.

Ronald Kenneth Lospennato (argued), Law Office of Ronald K. Lospennato, Sarah Hall Voigt, Esq., Debra Judith Weinberg, New Orleans, LA, for Plaintiff–Appellant.

Wayne Thomas Stewart, Esq. (argued), Hammonds, Sills, Adkins & Guice, L.L.P., Baton Rouge, LA, for Defendant–Appellee.

Constance Russell Wannamaker, El Paso, TX, Ellen Marjorie Saideman, Esq., Barrington, RI, Selene Ann Almazan–Altobelli, Towson, MD, Francisco Maria Negron, Jr., General Counsel, Alexandria, VA, Janet Little Horton, Attorney, Houston, TX, Amber K. King, Lake Travis Independent School District, Austin, TX, for Amicus Curiae.

Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Under the Individuals with Disabilities Education Act and its implementing regulations, parents who disagree with a school district's evaluation of their child may be entitled to an independent educational evaluation (IEE) at public expense. The parents of Seth B., a child who had previously been diagnosed with autism, asked the Orleans Parish School Board for such an evaluation. After the board assented, Seth's parents obtained the IEE and sought reimbursement. The school board denied their request on the ground that the IEE did not conform to state criteria. A state administrative hearing officer and the district court subsequently ruled that reimbursement was not warranted. We vacate and remand.

I

The Individuals with Disabilities Education Act (IDEA) seeks "to ensure that all children with disabilities have available to them a free appropriate public education."¹ To this end, it establishes a process by which school districts and parents collaborate to develop individualized education programs for students with disabilities. As part of this process, school districts evaluate children to assess any disabilities and determine their educational needs.² The IDEA and its implementing regulations also afford the parents of a child with a disability the right to an independent educational evaluation (IEE) at public expense.³ To be eligible for public funding, an IEE must meet the same criteria used by the school district in its evaluation, "to the extent those criteria are consistent with the parent's right to an independent educational evaluation."⁴

Seth B. attended public school in New Orleans. He had been diagnosed with autism and was identified as a child with a disability under IDEA. In August 2011, Seth's parents sent the Orleans Parish School Board (OPSB) a request for an IEE. The board granted the request, offering reimbursement up to $3,000 on condition that the IEE comply with Louisiana Bulletin 1508.⁵ Bulletin 1508 contains the state-mandated evaluation criteria for learning disabilities, and OPSB, like all other Louisiana public school authorities, applies Bulletin 1508 in its evaluations. The district provided a list of qualified evaluators and a link to a digital version of Bulletin 1508.

After some correspondence with the board concerning the $3,000 cost cap, Seth's parents engaged Dr. Patricia Brockman to produce Seth's IEE. In April 2012, they sent OPSB Dr. Brockman's report. OPSB responded the next month with a letter outlining 31 ways in which the IEE allegedly did not meet Bulletin 1508 criteria. The board invited Seth's parents to have Dr. Brockman contact them to discuss the alleged areas of noncompliance. The parents did not reply to this letter, and there is no indication that Dr. Brockman ever contacted the board. However, Seth's IEE was discussed in an administrative hearing, ongoing at this time, concerning whether Seth was receiving a free appropriate public education.

On December 26, 2012, several months after OPSB sent its objections, Seth's parents sent the board invoices from the IEE totaling $8066.50 and requested reimbursement. The board allegedly did not receive the request until January 31, 2013. On February 28, it denied the request in a letter to Seth's parents, noting that it could not reimburse them for a noncompliant evaluation and that some of the invoices appeared unrelated to the completion of the IEE.

In April 2013, Seth and his parents requested an administrative due process hearing.⁶ An ALJ heard preliminary arguments from counsel from both sides. On August 14, 2013, he ruled against Seth and his parents, finding that their counsel had stipulated to the IEE's noncompliance with Bulletin 1508 and that he therefore lacked jurisdiction to award reimbursement.

Seth and his parents sought review in federal district court pursuant to the IDEA.⁷ The district court received affidavits, exhibits, and depositions and heard oral argument, but did not allow a full trial on the merits. Rather, on January 20, 2015, it granted summary judgment for OPSB. The court found that the board had not waived its right to challenge Seth's IEE, that the IEE did not comply with Bulletin 1508, and that reimbursement was therefore disallowed.

This appeal followed. The Council of Parent Attorneys and Advocates, Inc., the National Disability Rights Network, the National Federation of the Blind, and the National Association of the Deaf filed amicus briefs urging reversal. The National School Boards Association, the National Association of State Directors of Special Education, and school board associations from Louisiana, Mississippi, and Texas filed an amicus brief urging affirmance.

II

Under 20 U.S.C. § 1415(i)(2)(C), which formed the basis for this action, a district court must (i) "receive the records of the administrative proceedings"; (ii) "hear additional evidence at the request of a party"; and (iii) base "its decision on the preponderance of the evidence" and "grant such relief as the court determines is appropriate." The district court is required to "accord ‘due weight’ to the hearing officer's findings," but it "must ultimately reach an independent decision based on the preponderance of the evidence."⁸

Thus, "the district court's ‘review’ of a hearing officer's decision is ‘virtually de novo.’ "⁹ Accordingly, in IDEA proceedings, summary judgment "is not directed to discerning whether there are disputed issues of fact, but rather, whether the administrative record, together with any additional evidence, establishes that there has been compliance with IDEA's processes and that the child's educational needs have been appropriately addressed."¹⁰

We have never articulated the standard of review for the appeal of a district court's determination that an IEE does not merit reimbursement. Plainly, however, the district court's inquiry was one of both fact and law, in that the court both interpreted the requirements of federal and state educational regulations and analyzed whether appellants' IEE and the board's conduct conformed to those requirements. "Mixed questions should be reviewed under the clearly erroneous standard if factual questions predominate, and de novo if the legal questions predominate."¹¹ Here, the validity of the district court's ruling turns in large part on the interpretation of regulatory text. We therefore review the ruling de novo.¹² Within this analysis, however, we review the district court's underlying factual findings for clear error.¹³

III

We first consider whether OPSB waived its right to refuse reimbursement. Appellants and amici contend that it did, both because the board failed to initiate a hearing to contest Seth's IEE and because it unnecessarily delayed in complying with its duties under IDEA's implementing regulations. We disagree.

1. Initiation of the due process hearing

Disputes over IEE reimbursement are governed by an implementing regulation of the IDEA, 34 C.F.R. § 300.502, which reads in relevant part:

(b) Parent right to evaluation at public expense.

[ ...]

(2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either—(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or

(ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria.¹⁴

In this case, after appellants requested an IEE at public expense, OPSB neither requested a hearing to show that its own evaluation was appropriate, nor did it request a hearing to show that appellants' evaluation failed to meet relevant criteria. Rather, appellants requested a hearing on the subject of reimbursement. They now claim that the regulation required OPSB to request a hearing, and that by failing to do so, the board waived its right to refuse reimbursement.

The plain text of the regulation contradicts appellants' reading. § 300.502(b)(2)(ii) excuses an agency from paying for an IEE if the agency simply "demonstrates in a hearing ... that the evaluation obtained by the parent did not meet agency criteria."¹⁵ It does not require the agency to "initiate" or "request" the hearing. In contrast, under (b)(2)(i), the agency must "file" a complaint and "request" a hearing if it wishes to decline reimbursement on the ground that its own evaluation was appropriate. This distinction strongly favors reading § 300.502(b)(2)(ii)not to require the agency to initiate a hearing.¹⁶

Appellants and amici refer us to Department of Education commentaries suggesting that § 300.502(b)(2)(ii) gives a school district the duty to initiate a hearing in this context. This contradicts the unambiguous text of the regulation. "If [a] regulation is unambiguous, we may ... consider agency interpretation, but only according to its persuasive power."¹⁷ The most squarely relevant commentary cited, a 2001 opinion letter,...