O.S. v. Fairfax County School Board , 804 F.3d 354 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1994
O.S., by and through his Parents; MICHAEL S. and AMY S., of
Fairfax County, VA,
Plaintiffs - Appellants,
v.
FAIRFAX COUNTY SCHOOL BOARD, of Fairfax County, VA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:13-cv-01580-TSE-IDD)
Argued: September 16, 2015 Decided: October 19, 2015
Before MOTZ and WYNN, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Wynn and Senior Judge Davis joined.
ARGUED: Dennis Craig McAndrews, MCANDREWS LAW OFFICES, Berwyn,
Pennsylvania, for Appellants. John Francis Cafferky,
BLANKINGSHIP & KEITH, P.C., Fairfax, Virginia, for Appellee. ON
BRIEF: Michael Edward Gehring, Caitlin Elizabeth McAndrews,
MCANDREWS LAW OFFICES, Berwyn, Pennsylvania, for Appellants.
Patricia A. Minson, BLANKINGSHIP & KEITH, P.C., Fairfax,
Virginia, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:
This case poses the question of whether the standard for a
free appropriate public education under the Individuals with
Disabilities Education Act has changed since Board of Education
v. Rowley, 458 U.S. 176 (1982). We hold that it has not and
affirm the judgment of the district court that the Fairfax
County School Board did not violate that standard in this case.
I.
A.
The Individuals with Disabilities Education Act (IDEA)
creates a federal grant program to assist states in educating
children with disabilities. See 20 U.S.C. § 1411 (2012). To
receive federal funding, states must provide each student with a
disability a “free appropriate public education” (FAPE). Id.§ 1412(a)(1). States, through local educational agencies,
achieve this by developing an “individualized education program”
(IEP) for each child who has a disability. Id. § 1412(a)(4).
The IEP documents the student’s current level of achievement,
sets annual goals, states how to measure progress, and specifies
special education services. See id. § 1414(d)(1)(A). Educators
work with the student’s parents as part of an “IEP team” to
develop the IEP. Id. § 1414(d)(1)(B), (d)(3)(A). At least
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annually, that team must review the IEP and revise it as
appropriate. Id. § 1414(d)(4).
Additionally, the IDEA establishes procedural safeguards
for students and their parents. Id. § 1415. These include the
right to an impartial due process hearing if the local
educational agency and parents disagree on the appropriate IEP.
Id. § 1415(b)(6), (f). After the hearing officer makes a
decision, any unsatisfied party may bring a civil action in
federal court. Id. § 1415(i)(2). The court then reviews the
record, hears additional evidence if requested by either party,
and makes a decision as to the appropriateness of the IEP based
on the preponderance of the evidence. Id. § 1415(i)(2)(C).
B.
Appellant O.S. attended public school in Fairfax County for
kindergarten and first grade. He has several medical disorders:
Doose Syndrome (a seizure disorder), Atrial Septal Defect (a
small hole in his heart), and ankyloglossia (a disorder commonly
referred to as tongue-tie). Those disorders qualify him for
special education under the other health impairment category.
For kindergarten and first grade, O.S.’s school developed and
revised IEPs for him with his parents’ approval.
Under his initial kindergarten IEP, O.S. received special
education services during fifteen of the thirty hours in his
school week. He received those services in his general
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education classroom with a special education teacher or
instructional assistant working with him on his IEP goals.
Additionally, O.S. received two hours each month of occupational
therapy in a special education classroom. Later that year, the
IEP team added two hours each month of adapted physical
education. After a speech evaluation, it also added four hours
of speech and language therapy each month, which later increased
to six hours each month.
For first grade, the team revised O.S.’s IEP to meet his
goals in communication, reading readiness, reading
comprehension, writing, writing readiness, mathematics
readiness, attending skills, and adapted physical education.
O.S. continued receiving six hours each month of speech and
language therapy and two hours each month of occupational
therapy, but his adapted physical education increased to four
hours each month. The team gradually shifted O.S.’s hours away
from the general education classroom until ten of his fifteen
hours were in the special education classroom.
Over the course of first grade, O.S. missed over thirty
full school days, and part of almost twenty additional days.
Toward the end of that year, a committee designated by Fairfax
County reviewed psychological, sociocultural, and educational
evaluations of O.S. to determine if he still qualified for
special education. It also reviewed testing results that O.S.’s
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parents submitted from the Kennedy Krieger Institute, a private
institution. The committee included representatives from the
Fairfax County School Board (School Board), as well as O.S.’s
mother and a family friend. It again found O.S. eligible for
special education under the other health impairment category.
For second grade, the IEP team proposed new goals in
writing and written language, reading, mathematics,
communications, and behavior improvements. In the proposed
plan, O.S. would continue to receive two hours each month of
occupational therapy and six hours each month of speech and
language therapy, both in a special education setting. He would
also continue to receive fifteen hours of other special
education services, but with more of those hours in his general
education classroom. This time, however, O.S.’s parents
rejected the school’s proposed IEP. The team attempted to
address some of their concerns by adding and modifying goals in
writing, reading, math, organization, and behavior. But O.S.’s
parents also requested a one-on-one aide, extended school year
services, and that FCPS assign a full-time nurse to the school.
The team did not adopt those requests, and the parents did not
agree to the new IEP.
C.
Instead, O.S.’s parents, on his behalf, requested a due
process hearing to determine whether the School Board provided
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him a FAPE. They challenged the adequacy of his education on
six grounds: (1) inadequate instruction in reading, math, and
writing; (2) inadequate occupational therapy and speech and
language services; (3) lack of extended school year services;
(4) lack of a one-on-one aide; (5) failure to program for his
safety (lack of a full-time nurse); and (6) failure to develop
an appropriate IEP for second grade. As evidence that O.S. had
not progressed, he pointed to results from the Woodcock-Johnson-
Third Edition; the Kaufman Test of Educational Achievement,
Second Edition; and the School Board’s sociocultural evaluation.
Based on those evaluations, O.S. argued that he had actually
regressed academically.
After conducting a three-day hearing, in which the hearing
officer heard from fourteen witnesses and received over 200
exhibits, the officer issued a detailed written opinion. In
that opinion, the officer first recognized that the IEP team had
complied with the IDEA’s procedural requirements in developing
O.S.’s IEPs, and then evaluated the implementation of the IEPs.
The officer considered O.S.’s IEPs and progress reports
particularly important exhibits and noted that all of the
testifying witnesses were “open and honest.”
The officer then credited ten witnesses in particular, who
were O.S.’s teachers and other educational experts. All
testified to O.S.’s progress during kindergarten and first
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grade, and explained why each additional accommodation that his
parents requested was unnecessary for second grade. While
acknowledging that the IDEA does not require parents to present
expert testimony, the officer noted that, in contrast to the
School Board’s showing, O.S.’s parents “offer[ed] virtually no
witnesses, other than the parent,” to support their position.
The hearing officer concluded that the School Board had provided
O.S. a FAPE.
O.S. filed a complaint in federal court challenging the
decision. Both parties moved for judgment on the administrative
record. The district court held that the hearing officer’s
findings were regularly made, and thus “entitled to some
deference.” The court then rejected each of O.S.’s challenges,
concluding that the School Board did provide a FAPE and
affirming the hearing officer’s decision. O.S. noted this
timely appeal.
II.
Initially and principally, O.S. argues that the district
court applied the wrong standard in evaluating whether he
received a FAPE. Specifically, he maintains that in the current
version of the IDEA, a FAPE requires “meaningful” rather than
“some” educational benefit. Our analysis of the statute is a
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question of law that we review de novo. See WLR Foods, Inc. v.
Tyson Foods, Inc., 65 F.3d 1172, 1178 (4th Cir. 1995).
Congress first required a FAPE as part of the Education for
All Handicapped Children Act of 1975 (EHA). See Education for
All Handicapped Children Act of 1975, Pub. L. No. 94-142, sec.
3-4, §§ 601-602, 89 Stat. 773, 775. Since then, Congress has
amended the Act multiple times. The 1990 amendment renamed the
EHA as the IDEA. See Individuals with Disabilities Act of 1990,
Pub. L. No. 101-476, 104 Stat. 1103. The IDEA, as amended in
2004, remains in effect today. See Individuals with
Disabilities Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647(codified as amended at 20 U.S.C. § 1400 (2012)). Both the
original EHA and the current IDEA require the states to provide
a FAPE to students with disabilities. They define it in almost
identical terms. 1
In Board of Education v. Rowley, 458 U.S. 176 (1982), the
Supreme Court provided more content to the FAPE requirement. In
1 See 20 U.S.C. § 1401(9) (“The term ‘free appropriate
public education’ means special education and related services
that -- (A) have been provided at public expense, under public
supervision and direction, and without charge; (B) meet the
standards of the State educational agency; (C) include an
appropriate preschool, elementary school, or secondary school
education in the State involved; and (D) are provided in
conformity with the individualized education program required
under section 1414(d) of this title.”). The EHA used
essentially the same definition. See Pub. L. No. 94-142,
§ 602(18), 89 Stat. 773, 775.
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that case, a deaf first-grade student challenged her IEP because
her school refused to provide her an interpreter. Id. at 184-
85. Although she performed better than many of her peers, she
understood “considerably less” than she would have without her
disability. Id. at 185. She argued that the school did not
provide a FAPE because of the disparity between her potential
and her achievement. Id. at 185-86, 198.
The Supreme Court rejected this argument, holding that
schools need not “maximize each child’s potential.” Id. at 198.
The Court held that a FAPE requires “access” to instruction
“individually designed to provide educational benefit.” Id. at
201. Because that access to education must be “meaningful,” id.
at 192, schools have to provide “some educational benefit” to
fulfill Congress’s intent, id. at 200.
Despite various amendments to the IDEA since 1982, we have
continued to follow the Rowley definition of a FAPE. See, e.g.,
E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of Educ., 773
F.3d 509, 517 (4th Cir. 2014) (“some educational benefit”);
Sumter Cty. Sch. Dist. 17 v. Heffernan ex rel. T.H., 642 F.3d
478, 484 (4th Cir. 2011) (same); J.H. ex rel. J.D. v. Henrico
Cty. Sch. Bd., 395 F.3d 185, 187 (4th Cir. 2005) (same); A.B. ex
rel. D.B. v. Lawson, 354 F.3d 315, 319 (4th Cir. 2004) (same).
O.S. asks us to find that, in the 1997 and 2004 amendments
to the statute, Congress replaced the Rowley standard. He
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points to the 2004 congressional findings in the IDEA preamble
as evidence that the law now focuses on results rather than mere
access. The congressional findings lament “low expectations” of
children with disabilities, and state that educating children
with disabilities is “more effective” when there are “high
expectations” of them “to the maximum extent possible.” See 20
U.S.C. § 1400(c) (2012). While the EHA succeeded in providing
access to education and improving educational results, id., O.S.
argues that the IDEA aimed to go further.
The legislature’s shift from requiring access to requiring
results does not necessarily establish a shift in the meaning of
FAPE from providing “some” benefit to providing “meaningful”
benefit. When Congress changes the law on an issue already
decided by the Supreme Court, it typically does so explicitly.
See, e.g., Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No.
111-2, 123 Stat. 5, 5 (expressly responding to the Supreme
Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550
U.S. 618 (2007)); Religious Freedom Restoration Act of 1993,
Pub. L. No. 103-141, 107 Stat. 1488, 1488 (expressly responding
to the Supreme Court’s decision in Employment Division v. Smith,
494 U.S. 872 (1990)); cf. Examining Recommendations to Reform
FISA Authorities: Hearing Before the H. Comm. on the Judiciary,
113th Cong. 107, 113, 128-29, 153, 171, 191 (2014) (expressly
discussing whether Congress should limit the application of
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Smith v. Maryland, 442 U.S. 735 (1979), given advancements in
technology). Congress did not do that with respect to the
definition of FAPE.
Rather than articulate a new definition of FAPE, Congress
amended the IDEA in other ways. For example, the IDEA now
requires that an IEP document “academic achievement and
functional performance,” rather than educational performance.
Pub. L. No. 108-446, § 614(d)(1)(A)(i)(I), 118 Stat. 2647, 2707
(2004). Schools must include students with disabilities in
statewide assessments, and now must justify a decision to give a
student an alternative assessment. Id. §§ 612(a)(16),
614(d)(1)(A)(i)(VI). Schools must produce progress reports for
children with disabilities with the same frequency as they issue
regular report cards. Id. § 614(d)(1)(A)(i)(III). Schools must
now base special education on peer-reviewed research, to the
extent practicable. Id. § 614(d)(1)(A)(i)(IV).
These examples suffice to show that Congress implemented
the IDEA’s higher expectations in specific ways, and altering
the standard for providing a FAPE was not one of them. In fact,
the IDEA calls for schools to evaluate a child’s “progress,” but
does so without any quantifier. See, e.g., 20 U.S.C.
§ 1414(d)(1)(A)(i)(II)(aa) (requiring IEP goals that “enable the
child to . . . make progress”). Congress could easily have
modified “progress” with “meaningful” if that were its intent.
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We note that we have never held “some” educational benefit
means only “some minimal academic advancement, no matter how
trivial.” Hall ex rel. Hall v. Vance Cty. Bd. of Educ., 774
F.2d 629, 636 (4th Cir. 1985). Rather, we have used the word
“meaningful” to describe what a FAPE requires, even before the
2004 amendments. G. ex rel. R.G. v. Fort Bragg Dependent Schs.,
343 F.3d 295, 306 (4th Cir. 2003). But in doing so, we have
cited Rowley’s “educational benefit” requirement. Id. at 303.
Using “meaningful,” as the Court also did in Rowley, was simply
another way to characterize the requirement that an IEP must
provide a child with more than minimal, trivial progress.
O.S. cites cases from some of our sister circuits in
support of the view that the IDEA requires “meaningful”
educational benefit as distinct from “some” educational benefit.
Some courts do explicitly hold that the IDEA as amended requires
school districts to meet a heightened standard. See, e.g., N.B.
v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1212-13 (9th
Cir. 2008). Others, although using the word “meaningful,” seem
to describe the same standard developed in Rowley. See, e.g.,
D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir.
2012) (holding that Rowley’s “some educational benefit” requires
“meaningful” as opposed to “trivial” educational benefit). For
our part, we are loath to hold, without any express
acknowledgment of its intent to do so, that Congress abrogated
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Supreme Court precedent. We note that recently the Tenth
Circuit also rejected a similar contention that a heightened
“meaningful benefit” standard had replaced the “some benefit”
standard. Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch.
Dist. RE-1, No. 14-1417, 2015 WL 5011927, at *6-8 (10th Cir.
Aug. 25, 2015).
In this circuit, the standard remains the same as it has
been for decades: a school provides a FAPE so long as a child
receives some educational benefit, meaning a benefit that is
more than minimal or trivial, from special instruction and
services.
III.
O.S. maintains, in the alternative, that even if the
district court applied the correct standard in evaluating
whether he received a FAPE, as we have held it did, the court
erred in finding that he had received a FAPE under that
standard.
In IDEA cases, a district court conducts “modified de novo
review, giving ‘due weight’ to the underlying administrative
proceedings.” M.S. ex rel. Simchick v. Fairfax Cty. Sch. Bd.,
553 F.3d 315, 323 (4th Cir. 2009) (quoting Rowley, 458 U.S. at
206). While the court must make an independent determination on
whether the school complied with the IDEA, the hearing officer’s
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factual findings are “considered prima facie correct.” E.L.,
773 F.3d at 517. “[W]hether or not a program is appropriate” is
itself a question of fact. Doyle v. Arlington Cty. Sch. Bd.,
953 F.2d 100, 105 (4th Cir. 1991). At the request of the
parties, a court shall also hear and consider additional
evidence. E.L., 773 F.3d at 516-17.
A district court determines whether a school provided a
FAPE based on the preponderance of the evidence. Id. It must
“afford great deference to the judgment of education
professionals in implementing the IDEA,” id. at 517, because the
IDEA does not allow federal courts “to substitute their own
notions of sound educational policy” for those of local school
authorities, A.B., 354 F.3d at 325 (quoting Rowley, 458 U.S. at
207). Finally, the party seeking relief bears the burden of
proof. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 51
(2005). On appeal, we “apply[] the standard of review utilized
by the district court.” E.L., 773 F.3d at 517 (quoting M.M. ex
rel. D.M. v. Sch. Dist., 303 F.3d 523, 531 (4th Cir. 2002)). 2
For kindergarten and first grade, O.S. challenges the
implementation of his IEP rather than specific aspects of it.
2This court has sometimes stated that we review the
district court for clear error. See, e.g., Cty. Sch. Bd. v.
Z.P. ex rel. R.P., 399 F.3d 298, 309 & n.7 (4th Cir. 2005)
(noting tension in the way we describe the standard of review).
We need not resolve that possible tension in this case because
the outcome here is the same under both standards.
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He argues that he did not make sufficient educational progress,
and as evidence, he relies on a few evaluations to contend he
actually regressed. Those evaluations do measure academic
achievement, but, as the district court noted, they are not the
only evidence in the record as to the sufficiency of O.S.’s
progress. The hearing officer credited numerous IEP progress
reports and the testimony of O.S.’s teachers and other education
experts that O.S. did progress on many of his individualized
objectives.
For example, experts in elementary education, physical
education, and speech and language all testified that the IEP
was appropriate and that O.S. had made progress. An expert in
special education testified that it was “not surprising” O.S.
progressed at a slower rate than students without disabilities,
but that he was “still making progress.” In fact, that same
expert said that at the end of the year, O.S. “had made
tremendous progress.” O.S.’s kindergarten teacher explained
that O.S. “definitely” made progress towards his IEP goals, and
an expert in occupational therapy noted that O.S. “made very
nice progress” over the course of two years. In sum, all of the
educators who testified, many of whom qualified as experts,
opined that O.S. made progress under the School Board’s IEP.
Further, addressing his parents’ concern that O.S. at times
regressed, an expert in special education attributed the
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regression in part to O.S.’s extensive absences. Even so, the
expert did not consider this occasional regression so
significant that O.S. could not catch up.
In addition to evaluating O.S.’s progress, the hearing
officer considered whether additional accommodations should have
been included in O.S.’s second grade IEP. The hearing officer
credited unrebutted testimony that a one-on-one aide was only
necessary when a student required help with “even the basic
needs of the day.” The hearing officer found no evidence that
O.S. needed that sort of support, and that O.S. already had
“teachers and assistan[ts] nearby on a routine basis.” And the
hearing officer credited an expert in school health who
testified that “a nurse is not necessary for the child to be
safe in school” because the school already had “protocols in
place” to address O.S.’s needs should he have a seizure.
Further, because O.S. did not show “significant” regression, the
hearing officer found that he did not require extended school
year services. The officer noted evidence that O.S.
nevertheless could have attended summer school, but that his
parents decided not to enroll him in it.
Given that the record supports the hearing officer’s
findings, we cannot conclude as a matter of law that the School
Board did not provide O.S. with a FAPE. To do so would ignore
our obligation to give due weight to the hearing officer’s
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findings, and to defer to the judgment of professional
educators. 3
IV.
We hold that, in evaluating whether a school provides a
FAPE, we still look to whether the IEP provides some educational
benefit to the student. Here, the district court did not err in
finding that the School Board met that requirement.
Accordingly, the judgment of the district court is
AFFIRMED.
3 Because the School Board did not fail in its obligation
“to provide educational benefit to a disabled student,” we
reject O.S.’s request for an award of compensatory education.
See M.S., 553 F.3d at 325 (discussing compensatory education as
a possible remedy for failure to provide a FAPE).
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