L.M.P., on behalf of E.P., D.P., and K.P., minors, Plaintiffs-Appellants,
SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, INDIVIDUAL DEFENDANTS, et al., Defendants-Appellees. C.C. and P.C., on behalf of A.C., a minor, and on behalf of allother similarly situated disabled children, Plaintiffs-Appellants,
SCHOOL BOARD OF BROWARD COUNTY, et al., Defendants-Appellees.
from the United States District Court for the Southern
District of Florida Nos. 0:05-cv-60845-KAM 0:10-cv-60032-KAM
WILSON and ROSENBAUM, Circuit Judges, and TITUS, [*] District Judge.
Individuals with Disabilities Education Act
("IDEA") case comes before this Court after a
twelve-year battle by two sets of parents on behalf of their
children to receive the specific therapy they believed their
children deserved. Beginning in 2005, Appellant L.M.P., a
mother of triplets acting individually and on her
children's behalf, sought the aid of the courts to force
Appellee School Board of Broward County ("School
Board") to include one-on-one Applied Behavioral
Analysis ("ABA") therapy in each child's
Individual Education Plan ("IEP"). Appellants C.C.
and C.P., parents acting individually and on their
child's behalf, intervened in those efforts to try to
achieve the same therapy for their child. Appellants allege
that the School Board's refusal to include the desired
therapy in the children's IEPs reflects its predetermined
policy of never including any ABA-based method or strategy in
a child's IEP, in violation of the IDEA, 20 U.S.C.
§§ 1400-1482. But as much as Appellants want to
overturn their children's original IEPs based on
impermissible predetermination, they do not have standing to
challenge the policy that they allege exists. While they
argue to the contrary, an ABA-based therapy was, in fact,
included in their children's IEPs, albeit not the
specific one that they desired, thus defeating their standing
to challenge an alleged policy that was not applied to them.
Court will explain how it reached this conclusion through
exploration of what ABA is and how it fits into the IDEA
Applied Behavioral Analysis
an applied science whose purpose is to produce socially
significant changes in behavior. D.E. 549 at 2-3. ABA is not
a method of instruction or method of teaching. Id.
at 2. Rather, it is a broad umbrella under which numerous
intervention strategies fall. Id. There is no
singular technique that must be used in all circumstances.
Id. at 5. There are hundreds of different ABA
intervention strategies that can be provided. Id.
strategy is called discrete trial training ("DTT").
Id. DTT is a highly structured form of implementing
the principles of reinforcement and stimulus control.
Id. Although DTT is often done one-on-one, it can
also be done in group settings when appropriate. Id.
at 6. Just as DTT is a method under the umbrella of ABA,
there are multiple intervention strategies that have been
developed under the umbrella of DTT. Id. Different
methods of DTT include the Lovaas method, the pivotal
response method, and the Picture Exchange Communication
System ("PECS") method. Id. PECS is a
scientifically-validated ABA-based intervention strategy for
teaching communication skills to children with autism.
Individuals with Disabilities Education Act
IDEA is a comprehensive statute that sets forth the intent of
Congress that children with disabilities be entitled to a
"free appropriate public education"
("FAPE"). See Winkleman ex rel. Winkleman v.
Parma City Sch. Dist., 550 U.S. 516, 523 (2007)
(citation omitted). Under Part B of the IDEA, states must
provide disabled children between the ages of three and
twenty-one with the opportunity to receive a FAPE by offering
each student special education and related services under an
IEP. 20 U.S.C. § 1412. An IEP must include "a
statement of the special education and related services and
supplementary aids and services . . . to be provided to the
child." Id. § 1414(d)(1)(A)(IV).
Determining an IEP "is supposed to be the culmination of
a collaborative process between parents, teachers, and school
administrators outlining the student's disability and his
educational needs, with the goal of providing the student
with a [FAPE]." R.L. v. Miami-Dade Cty. Sch.
Bd., 757 F.3d 1173, 1177 (11th Cir. 2014) (citing 20
U.S.C. §§ 1401(9), 1412(a)(1)(A),
1414(d)(1)(A)-(B), (d)(3)). Once an IEP has been determined,
it "should comply with the procedural and substantive
requirements set forth in the IDEA and should be
'reasonably calculated to enable the child to receive
educational benefits.'" Id. at 1177
(quoting J.K. ex rel. J.S.K. v. Hendry Cty. Sch.
Bd., 941 F.2d 1563, 1571 (11th Cir. 1991)).
IDEA's framework recognizes that not all stakeholders
will agree on all aspects of an IEP. Id. The statute
thus provides for procedural safeguards through which a
child's parents, if they believe that the IEP does not
comply with the IDEA's requirements, can challenge the
IEP. 20 U.S.C. § 1415; R.L., 757 F.3d at 1177.
The parents "may unilaterally withdraw their child from
the school system and pursue alternative placement
options." R.L., 757 F.3d at 1177. Even if the
parents do not withdraw their child, they, or the state,
"can file a complaint with the appropriate state
administrative agency and get a due process hearing before an
[Administrative Law Judge ("ALJ")] to resolve the
dispute." Id. (citing 20 U.S.C. §
1415(f)(1)(A); Fla. Stat. § 1003.57(c)). The complaint
may be based on "any matter relating to the
identification, evaluation, or educational placement of the
child, or the provision of a [FAPE] to such child." 20
U.S.C. § 1415(b)(6). Either party can then challenge the
ALJ's decision by appealing to either a state court or a
United States District Court. R.L., 757 F.3d at 1178
(citing 20 U.S.C. § 1415(i)(2)(A)).
has broad discretion to grant the relief it deems
"appropriate in light of the IDEA's purpose."
Id. In reviewing a challenge under the IDEA, the
court will conduct a two-part inquiry: "First, has the
State complied with the procedures set forth in the Act? And
second, is the individualized educational program developed
through the Act's procedures reasonably calculated to
enable the child to receive educational benefits?"
Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v.
Rowley, 458 U.S. 176, 206-07 (1982) (footnotes omitted).
The state must meet both the procedural and substantive
prongs of the Rowley test for the court to find the
state has complied with the IDEA. See id. at 207.
Only procedural violations that cause a party substantive
harm will entitle plaintiffs to relief. See Sch. Bd. of
Collier Cty. v. K.C., 285 F.3d 977, 982 (11th Cir.
2002); Doe v. Ala. State Dep't of Educ., 915
F.2d 651, 660-63 & nn.9-10 (11th Cir. 1990).
case, Appellants have asserted challenges solely under the
procedural prong of Rowley and have explicitly
disavowed any challenge under the substantive prong.
Appellants' Consol. Reply 6. Thus, any question as to the
sufficiency of the IEPs to provide educational benefits to
the children of the Appellants is not before this Court.
Background and ...