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D.J.D. v. Madison City Board of Education

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

September 7, 2018

D.J.D., by and through his father and next friend, Billy Driver, Plaintiff,



         Before 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.[1] 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.


         For 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 Cir. 2000).


         During 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.

         Unsatisfied 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.

         D.J.D's 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.

         Ultimately, 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.

         III. ANALYSIS

         The 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).

         Relevant 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”).

         The 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.[2] 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.

         Pursuant 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 Impairment” (“OHI”) disability[3] 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 ...

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