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M. L. v. Smith

United States Court of Appeals, Fourth Circuit

August 14, 2017

M. L., a minor, by his parents and next friends, Akiva and Shani Leiman; AKIVA LEIMAN; SHANI LEIMAN, Plaintiffs - Appellants,
v.
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

         Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:14-cv-01679-PWG)

         ARGUED:

          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.

         ON BRIEF:

          Paula A. Rosenstock, MICHAEL J. EIG AND ASSOCIATES, P.C., Chevy Chase, Maryland, for Appellants.

          Joshua Civin, Zvi Greismann, Office of the General Counsel, MONTGOMERY COUNTY PUBLIC SCHOOLS, Rockville, Maryland, for Appellees.

          Nathan 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 Judaism.

          Before NIEMEYER, KING, and AGEE, Circuit Judges.

         Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Niemeyer and Judge King joined.

          AGEE, Circuit Judge:

         M.L., a 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, [1] 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.

         I.

         The 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.

         In 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.[2] 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 Maryland law).

         In 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.[3] 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.

         The 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").

         The 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 ...


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