M. L., a minor, by his parents and next friends, Akiva and Shani Leiman; AKIVA LEIMAN; SHANI LEIMAN, Plaintiffs - Appellants,
DR. JACK R. SMITH, in his official capacity as Superintendent; MONTGOMERY COUNTY BOARD OF EDUCATION, Defendants - Appellees. NATIONAL JEWISH COMMISSION ON LAW AND PUBLIC POLICY, "COLPA"; MARYLAND CAPE, INC.; JEWELS SCHOOL; MAGEN LEGAL, Amici Supporting Appellants, NATIONAL SCHOOL BOARDS ASSOCIATION; MARYLAND ASSOCIATION OF BOARDS OF EDUCATION; AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; AMERICAN CIVIL LIBERTIES UNION; ACLU OF MARYLAND; BAPTIST JOINT COMMITTEE FOR RELIGIOUS LIBERTY; CENTRAL CONFERENCE OF AMERICAN RABBIS; JEWISH SOCIAL POLICY ACTION NETWORK; PEOPLE FOR THE AMERICAN WAY FOUNDATION; UNION FOR REFORM JUDAISM; WOMEN OF REFORM JUDAISM, Amici Supporting Appellees.
Argued: December 8, 2016
from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge.
Michael Eig, MICHAEL J. EIG AND ASSOCIATES, P.C., Chevy
Chase, Maryland, for Appellants.
Jeffrey A. Krew, JEFFREY A. KREW, LLC, Ellicott City,
Maryland, for Appellees.
A. Rosenstock, MICHAEL J. EIG AND ASSOCIATES, P.C., Chevy
Chase, Maryland, for Appellants.
Civin, Zvi Greismann, Office of the General Counsel,
MONTGOMERY COUNTY PUBLIC SCHOOLS, Rockville, Maryland, for
Lewin, Alyza D. Lewin, LEWIN & LEWIN, LLP, Washington,
D.C.; Meir Katz, MAGEN LEGAL, Baltimore, Maryland, for Amici
National Jewish Commission on Law and Public Policy
"COLPA", Maryland CAPE, Inc., JEWELS School, and
Magen Legal. Leslie Robert Stellman, PESSIN KATZ LAW, P.A.,
Towson, Maryland; Francisco M. Negrón, Jr., NATIONAL
SCHOOL BOARDS ASSOCIATION, Alexandria, Virginia, for Amici
National School Boards Association and Maryland Association
of Boards of Education. Daniel Mach, AMERICAN CIVIL LIBERTIES
UNION FOUNDATION, Washington, D.C.; Jeffrey I. Pasek, COZEN
O'CONNOR, Philadelphia, Pennsylvania; Richard B. Katskee,
Carmen N. Green, AMERICANS UNITED FOR SEPARATION OF CHURCH
AND STATE, Washington, D.C., for Amici Americans United for
Separation of Church and State, American Civil Liberties
Union, ACLU of Maryland, Baptist Joint Committee for
Religious Liberty, Central Conference of American Rabbis,
Jewish Social Policy Action Network, People for the American
Way Foundation, Union for Reform Judaism and Women of Reform
NIEMEYER, KING, and AGEE, Circuit Judges.
by published opinion. Judge Agee wrote the opinion, in which
Judge Niemeyer and Judge King joined.
minor, by and through his parents, Akiva and Shani Leiman,
and Akiva and Shani Leiman, individually and in their
capacity as M.L.'s parents (collectively, the
"Plaintiffs"), appeal the district court's
denial of their motion for summary judgment under the
Individuals with Disabilities Education Act
("IDEA"), 20 U.S.C. § 1400 et seq.,
and the grant of summary judgment to Dr. Jack Smith,
 in his official capacity as
superintendent of Montgomery County Public Schools, and the
Montgomery County Board of Education (collectively,
"MCPS"). The district court held that the IDEA does
not require a school system to instruct disabled students in
the customs and practice of Orthodox Judaism as part of a
"free appropriate public education"
("FAPE"). For the reasons stated below, we affirm
the judgment of the district court.
facts are largely undisputed. M.L. was born in 2003 with Down
Syndrome and is considered a "child with a
disability" under the IDEA. See 20 U.S.C.
§ 1401(3)(A). He and his family are members of the
Orthodox Jewish faith and reside in an Orthodox Jewish
community in Montgomery County, Maryland. The tenets of
Orthodox Judaism include instruction that "[t]he Jewish
Bible and Jewish law and custom govern how an Orthodox Jew
dresses, eats, prays, works, what holidays are celebrated,
and almost every aspect of life, including social interaction
and understanding and speaking Hebrew." J.A. 1117.
2009, M.L. was enrolled, at his parents' expense, in
Sulam, "a special education program that serves the
Orthodox Jewish community." J.A. 1117. In 2012, the
Plaintiffs and MCPS met to form an individualized education
program ("IEP") for M.L. so that he could attend
classes in the public school district. After expert assessments of M.L.'s
capabilities, MCPS determined that M.L. "is able to
learn despite his severe intellectual disability, but he
needs constant repetition and consistency." J.A. 1118.
After multiple meetings with the Plaintiffs, MCPS created an
IEP for M.L. in 2013. The Plaintiffs, however, "rejected
the IEP because it does not provide functional instruction to
prepare [M.L.] for life in the Orthodox Jewish
community." J.A. 1119. Rather, the Plaintiffs wanted the
"incorporation of goals and objectives designed to teach
[M.L.] about the laws and customs of Orthodox Judaism."
J.A. 1119. MCPS rejected this proposal in turn because it was
"not part of the curriculum, too specific, religious, or
not compatible with [M.L.'s] present levels." J.A.
1119. Shortly thereafter, the Plaintiffs filed a due process
complaint against MCPS with the Maryland Office of
Administrative Hearings, alleging violations of the IDEA and
Maryland state law. See 20 U.S.C. § 1415(b)(6),
(f) (requiring due process hearings and instructing that
those hearings "be conducted by the State educational
agency or by the local educational agency, as determined by
State law"); Md. Code Ann., Educ. § 8-413
(establishing the procedures for due process hearings under
their request for mediation and a due process hearing, the
Plaintiffs maintained that M.L. "has many important
cultural needs that must be taken into account when designing
an appropriate learning environment for him, " and the
IEP proposed by MCPS was "not appropriate for his
religious and cultural needs." J.A. 836. Although the Plaintiffs conceded that the
goal of the MCPS IEP "is to prepare students to live
independently in their community, " they preferred Sulam
because there "this goal is accomplished by preparing
students to live independently in their community within
their cultural guidelines." J.A. 838 (emphasis
added). The Plaintiffs stressed that "Orthodox
students[, and therefore M.L., ] do not and will not
participate in the non-Orthodox community, and the community
that MCPS . . . curriculums prepare students for is not the
same community [M.L.] will live in." J.A. 838. For
example, Sulam instructors lead M.L. in
"davening, the reciting of Jewish
prayers." J.A. 840. Sulam "prepares [M.L.] to
participate in the Sabbath or religious holidays, [and]
familiarizes him with [the parsha, ] a particular
portion [of the Torah] read [weekly] in Synagogue." J.A.
839-40. The Plaintiffs argued that the IEP proposed by MCPS
did "not address the cultural and religious realities of
[M.L.'s] life [and] would not prepare him to be
functional in his Orthodox community." J.A. 840.
parties engaged in an extensive hearing process before a
Maryland administrative law judge ("ALJ"). Both
sides presented testimonial evidence from several witnesses,
including Rabbi Akiva Leiman, M.L.'s father and fellow
plaintiff. He testified that all of his children are in
"private, religious schools that teach the Orthodox
Jewish way of life" because he and his wife
"believe that children should be educated for an
Orthodox lifestyle and the only place to get that type of
education would be in a private, religious school." J.A.
52. The Plaintiffs want M.L. taught about the Torah, kosher
rules, and Orthodox Jewish garments (such as the
yarmulke-"kind of a skullcap, to remind us of
God"-and tzitzit-"a garment that has
fringes at the end, strings that hang out"). J.A. 68-69.
They want him instructed, as part of his IEP, in
halacha (Jewish law) and mitzvot
("commandments from God, " or things "that the
Rabbis have asked [Orthodox Jews] to do over the
centuries"). J.A. 82. The Plaintiffs would also require
instruction in the berachot, which "is a
blessing that [Orthodox Jews] make before [they] partake in
food and a blessing that [they] make when [they] finish
partaking in food." J.A. 87. They believe it is
"[e]ssential" for M.L.'s education "that
he be able to read Hebrew." J.A. 97. The Plaintiffs
demand that MCPS provide this instruction to M.L. as part of
his IEP. E.g., J.A. 118 (Rabbi Leiman admitting that
he "expect[s] the public school to teach [M.L.] Jewish
precepts such as mitzvot and dietary laws").
Plaintiffs submitted Sulam's 2012-13 Formal Education
Plan for M.L. as an exhibit at the administrative hearing.
That plan shows the type of curriculum that the Plaintiffs
want included in M.L.'s IEP. For example, like the Sulam
plan, the Plaintiffs desire the IEP to include lessons in
"Judaic Studies, " where the goal is to
"increase [M.L.'s] understanding of Jewish customs
and halacha." J.A. 907. One of the targets of Judaic
Studies includes "correctly sequenc[ing] between 3 and 5
events from the parsha" when "[g]iven a previously
studied parsha or part of a parsha." J.A. 907. In a
class studying the "Chumash, " a religious text,
Sulam would teach M.L. different parts of the
Chumash, such as the parsha,
perek, pasuk, and Rashi. J.A. 908.
The Sulam plan also establishes goals for
"Ivrit/Kriah" class, or instruction in Hebrew,
where objectives include identifying ...