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Rosaria M. v. Madison City Board of Education

United States District Court, N.D. Alabama, Northeastern Division

March 30, 2018

ROSARIA M. and JOHN M. individually and as parents and next friends of F.M., a minor, Plaintiffs,



         Plaintiffs Rosaria M. and John M. bring this action on behalf of their daughter, F.M., a disabled student. The plaintiffs contend that the defendant, the Madison City Board of Education, denied F.M. the free appropriate public education guaranteed to her by the Individuals with Disabilities in Education Act (IDEA) 20 U.S.C. § 1400 et seq. The plaintiffs filed this action to appeal the decision of a hearing officer who determined that the school board did not deny F.M. a free and appropriate public education during the 2014-15 schoolyear. Both parties have asked the Court to enter judgment in their favor on the basis of the record compiled during the administrative due process hearing.[1] For the reasons explained below, the Court will enter judgment in favor of the defendant school board.


         The IDEA ensures that “all children with disabilities have available to them a free appropriate public education 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). The IDEA defines a free appropriate public education - i.e. a “FAPE” - as:

special education and related services that -
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

§§ 1401(9)(A)-(D).

         The IDEA contemplates that federal and state authorities will cooperate to provide disabled students with a FAPE. To that end, the federal government provides funding to state educational agencies, and the agencies agree to comply with the procedures and conditions imposed by the IDEA. See generally 20 U.S.C. §1412(a). The Madison City Board of Education is a state education agency that accepts federal funding and is covered by the provisions of the IDEA. (Doc. 8, p. 3).

         Under the IDEA, state educational agencies must identify and evaluate students who qualify for the special education services mandated under the IDEA. 28 U.S.C. § 1412(a)(3)(A). When the state identifies a qualified student, the individualized education program (IEP) is the primary tool by which a state educational agency accomplishes its mandate to provide disabled students with an appropriately tailored education. See Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist., 137 S.Ct. 988, 994 (2017) (quoting Honig v. Doe, 484 U.S. 305, 311 (1988)). An IEP is a written document that a public school produces in collaboration with a student's parents or guardians, the student's general and special education teachers, and the representatives of the state educational agency collectively known as the IEP team. 20 U.S.C. § 1414(d)(B).

         To ensure that the IEP team appropriately considers a student's particular challenges and needs when designing a plan, the IDEA states that an IEP must contain certain information. An IEP must describe the student's disability and the disability's effect on the student's participation in the general education curriculum, the student's present levels of achievement, the goals the student is to reach under the IEP program, and additional services that the school will provide to aid the student in achieving those goals. See §§ 1414(d)(1)(A)(i)(I)-(III). The IEP team must meet at least annually to review the program, to verify the program's effectiveness, and to ensure that it remains responsive to the student's changing educational needs. § 1414(d)(4)(A)(i).

         “Parents and educators often agree about what a child's IEP should contain. But not always. When disagreement arises, parents may turn to dispute resolution procedures established by the IDEA.” Endrew F., 137 S.Ct. at 994. Parents who disagree with an aspect of their child's IEP may present their grievance to an impartial hearing officer at a due process hearing. § 1415(f)(1)(A). If either party disagrees with the outcome of the due process hearing, then they may seek review of that decision by filing a civil action in “any State court of competent jurisdiction or in a district court of the United States . . . .” § 1415(i)(2)(A).

         Plaintiffs Rosaria M. and John M. are parents of a disabled child who have exercised the due process and appeal rights that the IDEA provides. Their daughter, F.M., is a ten-year-old child with a specific learning disability. (Doc. 13- 18, pp. 16, 30). Ms. M. states that F.M. has ADHD and dyslexia. (Doc. 13-9, pp. 5, 115).

         In the fall of 2014, plaintiffs moved their family from Pennsylvania to Madison City, Alabama. They enrolled F.M. and her older sister at Mill Creek Elementary on October 14, 2014. (Doc. 13-9, pp. 10-11, 33). F.M. had completed preschool and kindergarten in Pennsylvania. (Doc. 13-9, pp. 11, 18-19). She also had attended roughly a month of first grade before her family moved and enrolled her in first grade at Mill Creek. (Doc. 13-9, p. 27). While the family was still in the Pennsylvania school system, the school district evaluated F.M.'s older sister and determined that she was eligible for special education. (Doc. 13-9, pp. 28-29). Based on the feedback that Ms. M. received from F.M.'s teachers in Pennsylvania, Ms. M. suspected that F.M. also might be eligible for special education services. (Doc. 13-9, pp. 29-33). She approached F.M.'s first grade teacher and the principal at Mill Creek, and she expressed interest in having F.M. evaluated. She made a formal written request for an evaluation on November 4, 2014. (Doc. 13-9, pp. 35-36, 40-41; Doc. 13-17, pp. 55).

         Before Ms. M. submitted her written request, F.M.'s first grade teacher, Rebecca Davis, noticed that F.M. had behavioral and academic issues in the classroom. F.M.'s initial assessments put her well below her first grade classmates in terms of her academic ability. (Doc. 13-3, pp. 31, 45). F.M. was unable to remain still or attentive during class, and Ms. Davis found that F.M. needed frequent redirection to complete even basic tasks. (Doc. 13-3, pp. 41; 45). Due to these concerns, Ms. Davis met with Ms. M. and assistant principal Kathleen McKay to suggest that F.M. be enrolled in kindergarten for the year. (Doc. 13-3, p. 7). Ms. M. requested that F.M. remain in first grade. (Doc. 13-3, p. 35). Mill Creek honored that request and offered F.M. some general educational supports including tutoring three days a week and classes in English-as-a-second language (ESL), because the school mistakenly believed that Ms. M. spoke a foreign language with her daughters. (Doc. 13-3, pp. 36-38; Doc. 13-9, pp. 36-37). Ms. Davis referred her concerns regarding F.M. to Mill Creek's “Problem Solving Team, ” so that she (Ms. Davis) could develop strategies for responding to F.M.'s classroom issues. (Doc. 13-3, p. 152). Ms. Davis permitted Ms. M. to observe F.M.'s class on several occasions and communicated with Ms. M. regularly. (Doc. 13-3, pp. 39-40, 68, 89; Doc. 13-9, pp. 141-42).

         After the school received Ms. M's written request for an evaluation, the school board's special education eligibility team assessed F.M. in the areas of hearing, speech/language, academic achievement, behavior, and environmental concerns. (Doc. 13-5, p. 205; Doc. 13-6, p. 21; Doc. 13-18, pp. 16-22, 25-26). The eligibility team also considered F.M.'s medical records, obtained from treating physicians near the family's former home, and observational information from F.M.'s parents and Ms. Davis. (Doc. 13-18, pp. 26-28). On January 16, 2015, the eligibility team determined that F.M. had a specific learning disability and that she was eligible for special education services. (Doc. 13-18, p. 30).[2]

         On February 6, 2015, the Board conducted an IEP meeting. The plaintiffs met with Ms. Davis; Assistant Principal McKay; Mill Creek's special education teacher, Alicia Waddail; and F.M.'s ESL teacher, Michelle Phillips, to design an educational program that would assist F.M. in her areas of difficulty. (Doc. 13-14, p. 21). At this IEP meeting, Ms. M. claims that she informed the other members of the IEP team that F.M. suffered from hypoglycemia and Multiple Hereditary Exostoses (MHE), also called Osteochondroma, a condition that causes the rapid growth of benign tumors on F.M.'s bones. (Doc. 13-9, pp. 4-5, 44-45). Although F.M.'s teachers were aware of F.M.'s diagnosis, both Ms. Davis and Ms. Waddail testified that they became aware of the diagnosis after the initial IEP meeting. (Doc. 13-3, pp. 189-90; Doc. 13-4, pp. 155-56).

         Based on the information discussed in the IEP meeting, the IEP team targeted four areas for improvement: articulation, behavior, math, and fluency. (Doc. 13-14, pp. 16-19). Under her IEP, F.M. received several hours of special instruction from Ms. Waddail each week to focus on basic kindergarten and first grade skills. Ms. Waddail and F.M. also used this time to complete any assignments that F.M. was unable to finish in class. (Doc. 13-4, pp. 45-47; Doc 13-14, p. 20).

         By early April 2015, Ms. Davis informed the plaintiffs that F.M. would likely have to remain in the first grade because F.M. did not meet the state's general education standards for advancement to the second grade in the areas of reading and math. (Doc. 13-2, pp. 118, 230-31; Doc. 13-18, pp. 11-13). In May, Mill Creek's retention committee discussed F.M.'s case, reviewed her test results and Ms. Davis's input, and determined that F.M. would return to the first grade for the 2015-16 academic year. (Doc. 13-2, pp. 77, 108-109). The consensus of F.M.'s teachers was that “if she had another year in the 1st grade to receive those foundational skills that it would set her up for success.” (Doc. 13-2, p. 139).

         Ms. Davis and Assistant Principal McKay informed the plaintiffs of the committee's decision at a conference on May 14, , 2015. (Doc. 13-3, pp. 113-14). The plaintiffs did not agree with the decision and expressed their concern that retaining F.M. in the first grade would cause her emotional or psychological harm; they reported that F.M. already suffered from low self-esteem caused by the prospect of retention. (Doc. 13-9, pp. 110, 141). The plaintiffs contend that after they learned that F.M. would have to repeat first grade, they asked Mill Creek to provide F.M. with extended year services (ESY) and that the school denied their request. (Doc. 13-9, pp. 70-71). The teachers and administrators at Mill Creek who spoke with the plaintiffs dispute this fact, claiming that the conversation focused on what the plaintiffs could do to see that F.M. was promoted to second grade. (Doc. 13-3, pp. 115, 119-20, 252). The parties agree that the plaintiffs requested instructional materials, so that they could tutor F.M. in hopes that she could test into the second grade before the start of the 2015-16 academic year. (Doc. 13-3, p. 115; Doc. 13-9, p. 110).

         Ms. Davis and Ms. Waddail provided some supplementary materials for the plaintiffs to use with F.M. during the summer. (Doc. 13-9, pp. 112-113). Ms. M. worked through these materials with F.M. during the summer, and the school board reassessed F.M.'s readiness for second grade after her summer preparations. (Doc. 13-9, pp. 114, 117). F.M.'s scores indicated that she was not prepared for second grade, and the school board determined that the decision to retain F.M. in the first grade was sound. (Doc. 13-9, pp. 134-36).

         When F.M. returned to Mill Creek in August 2015, she was assigned to Celynn Ballard's class, but she continued to work with Ms. Waddail in special education. Ms. Ballard noted that in the early weeks of the new school year, F.M. was having more success completing her assignments during class and that F.M.'s behavior and attentiveness generally had improved. (Doc. 13-6, pp. 72-74, 101-102). F.M. left Mill Creek in late September 2015 to undergo a medical procedure related to her MHE. (Doc. 13-9, pp. 151-52). When she recovered, the plaintiffs removed her from Mill Creek and enrolled her in an online educational program. (Doc. 13-9, p. 154).

         The plaintiffs filed their due process complaint on September 14, 2015. (Doc. 13-12, p. 16). The defendants argue that the school board failed to comprehensively evaluate F.M. in all suspected areas of disability and that her IEP was not reasonably calculated to provide her with a FAPE. (Doc. 13-1, pp. 2-3). Over nine days, the hearing officer heard extensive testimony and compiled a substantial evidentiary record. (Doc. 13-1, pp. 4-6). The hearing officer rendered a decision in the school board's favor on all the plaintiffs' claims and concluded that the school board had not denied F.M. a FAPE during the 2014-15 schoolyear. (Doc. 13-1, p. 55-61). The plaintiffs filed this civil action on April 11, 2016. (Doc. 1).

         These facts suffice as background to the case, but the Court offers additional facts below as they bear on the legal analysis.


         Any party to a due process hearing aggrieved by the hearing officer's decision may seek review of that decision by filing a civil action “in a district court of the United States.” Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1280 (11th Cir. 2008) (quoting 20 U.S.C. § 1415(i)(2)(A)). “[T]he party attacking the IEP bears the burden of showing that the IEP is inappropriate.” Devine v. Indian River Sch. Bd., 249 F.3d 1289, 1292 (11th Cir. 2001); see also Ala. Admin. Code 290-8-9-.08(9)(c).

         The Supreme Court has formulated a two-part test to determine whether a school has provided a student with a FAPE: “[f]irst, 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. Ed. Hendrick Hudson Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). Whether an educational program provided an adequate education under the Act “is a mixed question of law and fact.” CP v. Leon Cty. Sch. Bd. Fla., 483 F.3d 1151, 1155 (11th Cir. 2007).

         “The usual F.R. Civ. P. 56 summary judgment principles do not apply in an IDEA case.” Loren F ex rel. Fisher v. Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1313 (11th Cir. 2003). “A District Court may issue a judgment on the record based ‘on the preponderance of the evidence, ' . . . even when facts are in dispute.” R.L. v. Miami-Dade Cty. Sch. Bd., 757 F.3d 1173, 1178 (11th Cir. 2014) (quoting 20 U.S.C. § 1415(i)(2)(C)(iii)). A district court may accept the conclusions of the hearing officer that are supported by the record and reject those that are not. R.L., 757 F.3d at 1178. “[A]dministrative factfindings are considered to be prima facie correct, and if a reviewing court fails to adhere to them, it is obliged to explain why.” M.M. ex rel. C.M. v. Sch. Bd. Miami-Dade Cty., 437 F.3d 1085, 1097 (11th Cir. 2006) (quoting Loren F., 349 F.3d at 1314 n.5).


         The plaintiffs argue that the defendant committed both procedural and substantive violations of the IDEA. The Court, adhering to the two part test announced in Rowley, first addresses plaintiffs' allegations of procedural deficiencies. Then the Court addresses the plaintiffs' additional reasons for arguing that F.M.'s IEP was not reasonably calculated to provide a FAPE.

         a. The Adequacy of the School Board's Evaluation of F.M.

         The plaintiffs contend that the school board's evaluation of F.M. was procedurally deficient because the school board did not comprehensively evaluate F.M. in all suspected areas of disability. The plaintiffs argue that (i) the board did not conduct a formal behavioral assessment of F.M., and (ii) the evaluation that the school performed focused too narrowly on F.M.'s academic issues to the exclusion of behavioral and medical concerns. (Doc. 17, p. 22). The plaintiffs submit that, “[w]ithout a full and complete evaluation, it was impossible for a School District to meet its FAPE responsibility.” (Doc. 17, p. 24). The plaintiffs also argue that the school board unreasonably delayed an evaluation of F.M. for eligible disabilities. (Doc. 19, p. 12).

         Under the IDEA, a state must ensure that “[a]ll children with disabilities residing in the State . . . who are in need of special education and related services, are identified, located, and evaluated . . . .” 20 U.S.C. § 1412(a)(3)(A). When a school board, as an agent of the state, identifies a student who exhibits signs of a covered disability, the school board must evaluate the student “in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities . . . .” 34 C.F.R. 300.304(c)(4). The school's evaluation of the student must be “sufficiently comprehensive to identify all of the child's special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified.” 34 C.F.R. 300.304(c)(6).

         1. The School Board's Assessment of F.M.'s ...

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