T.B., JR., by and through his Parents, T.B., SR. and F.B., Plaintiff - Appellant,
PRINCE GEORGE'S COUNTY BOARD OF EDUCATION; PRINCE GEORGE'S COUNTY PUBLIC SCHOOLS; DR. KEVIN M. MAXWELL, in his official capacity as Chief Executive Officer of Prince George's County Public Schools, Defendants - Appellees. COUNCIL OF PARENT ATTORNEYS AND ADVOCATES; DISABILITY RIGHTS MARYLAND, Amici Supporting Appellant.
Argued: March 20, 2018
from the United States District Court for the District of
Maryland, at Greenbelt. George Jarrod Hazel, District Judge.
Craig McAndrews, MCANDREWS LAW OFFICES, Berwyn, Pennsylvania,
Wayne Nussbaum, NUSSBAUM LAW, LLC, Clarksville, Maryland, for
Anastasia L. McCusker, Joel I. Sher, SHAPIRO SHER GUINOT
& SANDLER, Baltimore, Maryland; Michael E. Gehring,
MCANDREWS LAW OFFICES, Berwyn, Pennsylvania, for Appellant.
Almazan-Altobelli, Catherine Merino Reisman, COUNCIL OF
PARENT ATTORNEYS AND ADVOCATES, INC., Towson, Maryland, for
GREGORY, Chief Judge, and WILKINSON and AGEE, Circuit Judges.
WILKINSON, Circuit Judge:
former student of Prince George's County Public Schools
(PGCPS), alleges that the school district failed to provide
him a free appropriate public education in violation of the
Individuals with Disabilities Education Act (IDEA). While we
agree with the administrative law judge and district court
that the school district committed a procedural violation of
the IDEA, we also agree with them, that on these facts, the
violation did not actually deprive T.B. of a free appropriate
public education. We thus affirm the district court's
grant of summary judgment to PGCPS.
began attending PGCPS schools in elementary school. As an
elementary schooler, he received mostly As and Bs, although
his performance in reading and math was below grade level.
T.B.'s grades took a turn for the worse in middle school.
In seventh grade, he received two Cs and four Ds. The
following year, he received five Cs, two Ds, and one failing
grade (E). His middle school teachers noted that T.B. did
"not follow instructions," did "not
participate in class," had "[m]issing/incomplete
assignments," and received "[p]oor test/quiz
grades." J.A. 1900, 1904.
did not improve when T.B. began at Friendly High School in
2012. T.B.'s grades, for the most part, continued to
decline. He finished ninth grade with two Ds and four Es. He
did, however, receive an A in Personal Fitness and a B in
Naval Science. In tenth grade, T.B. failed every class except
Algebra, in which he received a B. T.B. accordingly failed
the tenth grade as a whole and was not able to advance to
declining grades reflected, in part, T.B.'s declining
attendance. In his two years at Friendly, T.B. recorded a
total of 68.5 days of absence. More than 90% of these
absences were unexcused. Near the end of T.B.'s tenth
grade year, he stopped attending school entirely. On the days
that T.B. did attend school, he regularly skipped class or
was tardy. In class, T.B. was often disruptive. He would
ignore instructions, use his cell phone, and talk to other
students during class time. Even in classes he went on to
fail, though, T.B. generally performed adequately when he
attended class and completed assignments.
academic issues during this time did not go unnoticed. In
October 2012, shortly after T.B. started ninth grade,
T.B.'s father emailed the guidance counselor at Friendly
to request that T.B. be tested for a disability or provided
special education services. PGCPS held an Individualized
Education Program (IEP) meeting the following month. The IEP
team concluded that T.B.'s difficulties were not the
result of any learning or other disability. It therefore
determined further assessment to be unnecessary, and
scheduled a parent-teacher conference for the following
January. At the conference, T.B. and his parents met with his
teachers and other PGCPS staff to discuss his academic
progress and strategies to get him back on track.
T.B.'s academic performance did not improve, T.B.'s
parents continued to request testing or special education
services. Because the school district maintained that no
testing was necessary, T.B.'s parents retained Basics
Group Practice, LLC, to perform an Independent Educational
Evaluation (IEE). Basics tested T.B. in May 2014 and
diagnosed him with moderate Attention Deficit Hyperactivity
Disorder (ADHD), Specific Learning Disorder with impairment
in written expression, and unspecified depressive disorder.
T.B.'s father provided the Basics report to PGCPS shortly
after receiving it in August 2014.
transferred from Friendly to Central High School for his
second year in tenth grade. T.B.'s career at Central,
however, was short-lived. He attended the school for only the
first few days of the fall semester before halting his
attendance altogether. His parents offered various
explanations, among them noise in the school, asthma, and
the school district insufficiently responsive to their
requests for special education, T.B.'s parents filed a
Due Process Complaint with the Maryland Office of
Administrative Hearings on January 13, 2015. The complaint
alleged that T.B. had been denied a free appropriate public
education and requested both compensatory education and
reimbursement for the Basics IEE.
proceedings based on that complaint were ongoing, T.B.'s
family and PGCPS continued to negotiate appropriate education
for T.B. At a January 26, 2015, IEP meeting, T.B.'s
parents explained that T.B.'s anxiety had prevented him
from attending school in the fall. Following that meeting,
the IEP team determined that T.B. should receive additional
testing to determine his eligibility for special education.
school psychologist conducted the testing and concluded in
late February that T.B. had severe problems with anxiety and
was eligible for special education. Following this
recommendation, an IEP team concluded in March that T.B. was
eligible for special education services on the basis of an
emotional disability- namely, anxiety that prevented him from
regularly attending school. The team also agreed to offer
T.B.'s parents five fee-waived credit recovery courses as
compensatory services. In April 2015, following additional
IEP meetings, an IEP team recommended a specialized program
at Dr. Henry A. Wise, Jr. High School. T.B. never attended
the Wise program.
T.B.'s Due Process Complaint progressed. The matter was
assigned to a Maryland administrative law judge (ALJ), who
conducted a 6-day hearing that involved 21 witnesses and 95
exhibits. The ALJ ultimately found that PGCPS had committed a
procedural violation of the IDEA in failing to conduct
testing in response to T.B.'s parents' requests, but
that this violation "did not actually interfere with the
provision of a free appropriate public education." J.A.
31 (quoting DiBuo ex rel. DiBuo v. Bd. of Educ. of
Worcester Cty., 309 F.3d 184, 190 (4th Cir. 2002)).
Specifically, the ALJ concluded that "no evidence
supports the view that, had testing been promptly provided,
the Student would have regularly attended school." J.A.
31. Instead, T.B. "simply [did] not want to go to
school. This is the case regardless of the school, the
teachers, the courses, the programs, the placement, the
accommodations, the class size, or the compensatory services
offered." J.A. 31. The ALJ therefore found that T.B. was
"not entitled to compensatory education at public
expense." J.A. 52. The ALJ also found that T.B. was not
entitled to reimbursement for the Basics IEE.
parents filed a complaint in district court under 20 U.S.C.
§ 1415(i)(2) seeking reversal of the ALJ's decision,
an award of compensatory education, and reimbursement for the
Basics IEE. While T.B. ultimately prevailed on the IEE
reimbursement question, the district court otherwise affirmed
the ALJ's decision and granted summary judgment to the
school district. It agreed that the "finding that T.B.
would not have attended school even if he had been
tested" supported the "conclusion that the
procedural failure to respond to [T.B.'s parents']
request for an evaluation did not actually interfere with the
provision of" a free appropriate public education. J.A.
168. The district court accordingly affirmed the ALJ's
denial of compensatory education. T.B. now appeals to this
IDEA was enacted "to throw open the doors of public
education and heed the needs" of students with
disabilities who had for too long been "either
completely ignored or improperly serviced by American public
schools." In re Conklin, 946 F.2d 306, 307 (4th
Cir. 1991). It operates by way of a simple exchange:
the federal government provides funding to the states, who
must in return have "in effect policies and procedures
to ensure" that every child with a disability has the
opportunity to receive a "free appropriate public
education" (FAPE). 20 U.S.C. § 1412(a).
the IDEA, a FAPE is defined to include "special
education and related services" that are provided
"without charge" to the child's family and that
"meet the standards of the State educational
agency." Id. § 1401(9). A FAPE will also
involve an "individualized education program" (IEP)
for each eligible child. Id. The Supreme Court has
described the IEP as "the centerpiece of the
statute's education delivery system for disabled
children." Honig v. Doe, 484 U.S. 305, 311
(1988). It must include "a statement of the child's
present levels of academic achievement and functional
performance," "a statement of measurable annual
goals," and "a statement of the special education
and related services and supplementary aids and services . .
. to be provided to the child." 20 U.S.C. §
1414(d)(1)(A)(i). To meet the IDEA's "substantive
obligation," the school must offer an IEP that is
"reasonably calculated to enable a child to make
progress appropriate in light of the child's
circumstances." Endrew F. v. Douglas Cty. Sch. Dist.
RE-1, 137 S.Ct. 988, 999 (2017).
addition to providing an IEP for all students known to have
disabilities, states receiving IDEA funding have an ongoing
obligation to ensure that "[a]ll children with
disabilities . . . who are in need of special education and
related services are identified, located, and
evaluated." 20 U.S.C. § 1412(a)(3)(A). This
obligation, known as Child Find, extends to all
"[c]hildren who are suspected of being a child with a
disability . . . and in need of special education." 34
C.F.R. § 300.111(c). Failure to meet this obligation
"may constitute a procedural violation of the
IDEA." D.K. v. Abington Sch. Dist., 696 F.3d
233, 249 (3d Cir. 2012). But such a procedural violation
"will be 'actionable' only 'if [it] affected
the student's substantive rights.'" Leggett
v. District of Columbia, 793 F.3d 59, 67 (D.C. Cir.
2015) (quoting Lesesne ex rel. B.F. v. District of
Columbia, 447 F.3d 828, 832, 834 (D.C. Cir. 2006)).
IDEA rightly "recogni[zes] that federal courts cannot
run local schools." Hartmann v. Loudoun Cty. Bd. of
Educ., 118 F.3d 996, 1001 (4th Cir. 1997). Complaints
under the IDEA thus do not begin their journey in the federal
courts. Instead, parents who disagree with a school
district's educational plan for their child first have
the opportunity "to participate in meetings with respect
to the identification, evaluation, and educational placement
of the child," as well as an "opportunity for
mediation" with the school district. 20 U.S.C. §
1415(b). If the parents remain unsatisfied, they are entitled
to "an impartial due process hearing, which shall be
conducted by the State [or local] educational agency."
Id. § 1415(f)(1)(A).
light of the IDEA's manifest preference for local control
of schools, we apply a "modified de novo review" to
a state ALJ's decision in an IDEA case, "giving due
weight to the underlying administrative proceedings."
M.L. by Leiman v. Smith, 867 F.3d 487, 493 (4th Cir.
2017) (quoting O.S. v. Fairfax Cty. Sch. Bd., 804
F.3d 354, 360 (4th Cir. 2015)). We determine independently
whether the school district violated the IDEA but consider
the ALJ's factual findings to be "prima facie
correct." O.S., 804 F.3d at 360 (quoting
Lorsson v. Chapel Hill-Carrboro Bd. of Educ., 773
F.3d 509, 517 (4th Cir. 2014)).
correctly, this sort of review ensures that courts do not
"substitute their own notions of sound educational
policy for those of the school authorities which they
review." Bd. of Educ. of Hendrick Hudson Cent. Sch.
Dist. v. Rowley, 458 U.S. 176, 206 (1982). Indeed, ALJs
within state and local educational agencies are themselves
expected to "give appropriate deference to the decisions
of professional educators." M.M. ex rel. D.M. v.
Sch. Dist. of Greenville Cty., 303 F.3d 523, 533 (4th
Cir. 2002). The IDEA thus serves to set standards for the
education of children with disabilities without displacing