United States District Court, N.D. Alabama, Northeastern Division
D.J.D., by and through his father and next friend, Billy Driver, Plaintiff,
MADISON CITY BOARD OF EDUCATION, Defendants.
K. KALLON, UNITED STATES DISTRICT JUDGE
the court is the Madison City Board of Education's motion
for summary judgment, or in the alternative, judgment on the
administrative record. Doc. 24. In December 2014, Billy
Driver, as father and next friend of D.J.D., a minor, filed
an administrative due process complaint against the Board
pursuant to 20 U.S.C. §§ 1415(b)(6)(A) and
1415(f)(1)(A). Docs. 21-3 at 121-26; 21-1 at 1-2. Driver
alleged that the Board violated the Individuals with
Disabilities Education Act (“IDEA”) by failing to
provide D.J.D. a free appropriate public education
(“FAPE”). Id. After a hearing officer
found in favor of the Board, doc. 21-1, Driver appealed by
filing this civil action. Doc. 1. The court granted the
Board's partial motion to dismiss Driver's claims for
injunctive relief and damages, doc. 12, and the Board now
moves for summary judgment on the sole remaining claim Count
II, which seeks a declaration that the hearing officer's
decision was erroneous, doc. 24. After careful review of the
evidence, the court concludes that the motion is due to be
granted, and judgment is due in the Board's favor.
STANDARD OF REVIEW
IDEA cases, “the usual [Rule] 56 summary judgment
principles do not apply” because no IDEA jury trial
right exists. Loren F. ex rel. Fisher v. Atlanta Indep.
Sch. Sys., 349 F.3d 1309, 1313-14 (11th Cir. 2003). As
such, a district court may “bas[e] its decision on the
preponderance of the evidence” even when facts are in
dispute. 20 U.S.C. § 1415(i)(2)(C)(iii). District court
judges are permitted to make findings of fact in IDEA cases,
and “judgment on the record” is appropriate
“even when facts are in dispute, ” as long as
judges “accord due weight to administrative
findings” and base their own findings on a
preponderance of the evidence. Id. Although courts
“must be careful not to substitute [their] judgment for
that of the state educational authorities, . . . the extent
of the deference to be given to the administrative decision
is left to the sound discretion of the district court which
must consider the administrative findings but is free to
accept or reject them.” Walker Cty. Sch. Dist. v.
Bennett ex rel. Bennett, 203 F.3d 1293, 1297-98 (11th
FACTUAL AND PROCEDURAL BACKGROUND
his fifth grade year at a school in the Madison City School
System, D.J.D.'s parents noticed that he began suffering
from behavioral difficulties, including “poor
attention, poor concentration, non-compliance, excessively
high or inappropriate activity levels, frustration,
inappropriate social skills, and forgetfulness.” Doc.
21-1 at 16. D.J.D's teachers had concerns about his
“difficulty in organizational skills, numerous office
referrals, and overall noncompliance and disregard for many
adult directives.” Id. Consequently, Driver
requested that the Board conduct an evaluation to determine
D.J.D.'s eligibility for special education services.
Id. Consistent with its standard practice, the Board
placed D.J.D. in a “pre-referral” intervention
program, Problem Solving Team (“PST”), whereby
teachers and administrators monitor the child before deciding
whether to refer the child for a formal IEP evaluation. Docs.
21-6 at 185-186; 24-1 at 6; 26 at 2.
with this approach, Driver filed an administrative complaint,
alleging that the Board failed to satisfy its child-find
obligation. Doc. 21-3 at 121-26. Specifically, the complaint
alleged that the Board should have timely referred D.J.D. for
an IEP evaluation immediately because it purportedly knew
that D.J.D's asthma medication caused hyperactivity.
Id. After the complaint, the Board assembled an IEP
Team and conducted an evaluation using various testing
methods. Doc. 21-1 at 28. One evaluation tool utilized, the
Behavior Assessment System for Children (“BASC”),
indicated that D.J.D. struggled in several behavioral areas,
including functional communication, hyperactivity, attention,
adaptability, social skills, and aggression. Id.
Despite the BASC score, the IEP Team concluded that D.J.D.
was ineligible for special education services due to his
purported progress in the PST program. Docs. 21-3 at 62-66;
24-1 at 6-8; 26 at 3.
behavioral troubles continued after that, however, resulting
in multiple suspensions over the next two months. Doc. 21-1
at 27 (detailing instances of D.J.D. grabbing and throwing
other students to the ground). Due to the ongoing issues,
Driver amended his administrative complaint to allege that
the IEP Team's evaluation process had denied D.J.D. a
FAPE by “failing to conduct an adequate functional
behavioral assessment.” Doc. 21-3 at 62-66. Driver then
requested his own medical evaluation of D.J.D. from a
licensed psychologist, who diagnosed D.J.D. with Attention
Deficit Hyperactivity Disorder (“ADHD”) based on
his behavioral scores reflecting difficulties with
“academics, hyperactivity/impulsivity, separation
fears, perfectionistic and compulsive behaviors.” Doc.
21-1 at 30-32. About a month later, the Board convened a
second IEP Team, which found D.J.D. eligible to receive
special education services. Doc. 21-1 at 51.
a state hearing officer heard the complaint at a formal
hearing. Doc. 21-1. Driver argued at the hearing that the
Board denied D.J.D. a FAPE, in part, because it failed to
obtain or conduct a full and comprehensive evaluation to
determine whether D.J.D. suffered from behavioral
disabilities, including ADD or ADHD. Doc. 21-1 at 54-73. The
Board, in turn, argued that it had no duty to conduct such an
evaluation because D.J.D. was making progress in the
pre-referral intervention program based on teacher
observations. Doc. 21-1 at 54-73. The Board argued also that
D.J.D.'s subsequent ADHD diagnosis was immaterial to the
second IEP's Team's conclusion, which purportedly
found D.J.D. eligible because his behavioral problems had
increased in severity after the initial eligibility denial.
Doc. 21-1 at 54-73. After considering the evidence and the
parties' briefs, the hearing officer found in favor of
the Board, id., which Driver now asks the court to
set aside as erroneous, doc. 1.
IDEA offers federal funds to states to assist in educating
children with disabilities on the condition that a
“[s]tate pledges to comply with a number of statutory
conditions, ” which include providing FAPE to all
eligible children. Endrew F. ex rel. Joseph F. v. Douglas
Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 993 (2017). A FAPE
must include “specially designed instruction . . . to
meet the unique needs of a child with a disability.” 20
U.S.C. at §§ 1401(9), (29). To that end, schools
must devise an “individualized education program”
for disabled children, otherwise known as an
“IEP.” Id. at § 1401(9)(D). To
satisfy its procedural IEP obligation, a school designates an
“IEP Team” (comprised of teachers, school
officials, and the child's parents) tasked with preparing
a “comprehensive plan . . . in compliance with a
detailed set of procedures.” Endrew F, 137
S.Ct. at 994 (citing 20 U.S.C. § 1414(d)(1)(B)). To meet
its substantive IEP obligation, a school must provide an IEP
that is “reasonably calculated to enable a child to
make progress appropriate in light of the child's
circumstances.” Id. at 997; see also
20 U.S.C. at §§ 1401(9).
here, covered states must also comply with the IDEA's
“child find” obligation, which requires its
schools to “identif[y], locat[e], and evaluat[e]”
“[a]ll children with disabilities residing in the
State” to ensure that they receive needed
special-education services. 20 U.S.C. § 1412(a)(3)(A).
School boards must assess children “in all areas of
suspected disability” within 60 days of receiving
parental consent for the evaluation. Id. at §
1414; 34 C.F.R. 300.304(c)(4). However, the child-find
obligation “does not extend to testing every student
who is not successful when factors other than a disability
would also explain the failure to progress; evaluations are
only required when the evidence is sufficient to cause a
school system to have a reasonable belief that such an
evaluation is necessary.” Jefferson Cty. Bd. of
Educ. v. Lolita S., 977 F.Supp.2d 1091, 1124 (N.D. Ala.
2013), aff'd, 581 Fed.Appx. 760 (11th Cir.
2014); see also D.K. v. Abington Sch. Dist., 696
F.3d 233, 252 (3d Cir. 2012) (finding that “schools
need not rush to judgment or immediately evaluate every
student exhibiting below-average capabilities”).
sole issue before the court is whether the hearing officer
erred in finding that the Board did not deny D.J.D. a FAPE
when it failed to evaluate him initially for
ADHD. Docs. 1 at 13-15; 24-1 at 11-24; 26 at
14-21. Under the IDEA, “the party attacking the IEP
bears the burden of showing that the IEP is
inappropriate.” Devine v. Indian River Cty. Sch.
Bd., 249 F.3d 1289, 1292 (11th Cir. 2001). To satisfy
this burden, Driver must show that the Board
“overlooked clear signs of disability” or
“negligently failed to order testing.”
Durbrow v. Cobb Cty. Sch. Dist., 887 F.3d 1182, 1196
(11th Cir. 2018) (citing Bd. of Educ. of Fayette Cty.,
Ky. v. L.M., 478 F.3d 307, 313 (6th Cir. 2007)). In that
respect, Driver maintains that a proper evaluation during the
first IEP process would have uncovered D.J.D.'s ADHD
diagnosis, which in turn would have allowed the Board to
better identify how to meet his needs and provide him a FAPE.
Doc. 26. The Board counters that their first evaluation of
D.J.D.'s behavior was not inadequate because the school
implemented positive behavioral interventions responsive to
D.J.D.'s needs, teachers' evaluations indicated there
was no alarming need for specialized education, and his
academic performance on classroom material was strong. Doc.
24. Upon consideration, the court agrees with the Board.
to the IDEA, the Board had a duty to assess D.J.D. “in
all areas of suspected disability.” See 20
U.S.C. § 1414; 34 C.F.R. 300.304(c)(4). The Alabama
Administrative Code § 290-8-9.03(9) provides minimum
evaluation criteria that schools must administer to identify
and evaluate children suspected of an “Other Health
disability that “adversely affects their
educational performance.” Relevant here, evidence must
demonstrate that the OHI adversely affects the
“educational performance of the child” and
interventions and accommodations have been “tried in
regular education” classes but “were deemed
unsuccessful.” Ala. Code § 290-8-9.03(9)(d)(1-4).
A student is unlikely to need special education, qualify as a
“child with disability, ” and thus trigger IDEA
obligation for a FAPE when: “(1) the student meets
academic standards; (2) teachers do not recommend special
education for the student; (3) the student does not exhibit
unusual or alarming conduct warranting special education; and
(4) the student demonstrates the capacity to comprehend
course material.” Durbrow v. Cobb Cty. Sch.
Dist., 887 F.3d 1182 (11th Cir. 2018); see also L.C.
v. TuscaloosaCty. Bd. of Educ., 2016 WL
1573269, at *5 (N.D. Ala. Apr. 19, 2016) (finding that the
student's “testing and academic achievement,
” including mastering grade level standards and meeting
benchmarks, failed to demonstrate how the disability caused
“requisite adverse effects necessary to qualify him for
special education services during the time at ...