M.L. Ex Rel. Leiman v. Smith , 867 F.3d 487 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1977
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.
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: December 8, 2016 Decided: August 14. 2017
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Niemeyer
and Judge King joined.
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.
2
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,
1
The superintendent has changed multiple times throughout the proceedings. Smith is
the current superintendent.
3
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
2
The IDEA requires a school to furnish a covered student with a FAPE. It is uncontested
that M.L. is a covered student.
4
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.
3
Although the Plaintiffs often make “cultural” arguments, at the administrative hearing
they presented an expert in Judaism who testified that there is no “significant difference between
describing” Orthodox Judaism as a religion or culture. J.A. 174.
5
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
6
[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 vocabulary words such as those “taken from the current parsha” and
“us[ing] the correct Ivrit word to identify . . . object[s]/explain . . . illustration[s].” J.A.
909.
The ALJ concluded that neither the IDEA nor Maryland law requires a public
school to provide religious instruction to disabled students as part of an IEP. According
to the ALJ, a FAPE primarily requires that a school provide the disabled student with
“access [to] the general curriculum.” J.A. 1141; see also J.A. 1140 (“Nothing in the
IDEA, corresponding State law, or enabling regulations require a state educational
agency to individualize an educational program to a disabled child’s religion, culture, or
community enclave.”). Ultimately, the ALJ found the IEP proposed by MCPS provided
M.L. with a FAPE under the IDEA. In view of that holding, it was not necessary for the
ALJ to address any of the Establishment Clause defenses made by MCPS.
The Plaintiffs then filed a complaint in the United States District Court for the
District of Maryland seeking declaratory and injunctive relief under the IDEA and
Maryland state law. See 20 U.S.C. § 1415(i)(3)(A) (“The district courts of the United
States shall have jurisdiction of actions brought under this section without regard to the
7
amount in controversy.”). In pertinent part, the Plaintiffs requested that the district court
“order[ MCPS] to reimburse plaintiffs for the costs associated with enrolling M.L. at
Sulam School for the 2012–13 school year” and also “[o]rder [MCPS] to place and fund
M.L. at Sulam School for the 2013–14 school year and declare it to be his current
educational placement under the IDEA.” J.A. 14. On cross motions for summary
judgment, the district court granted the motion by MCPS and denied that of the Plaintiffs.
In its memorandum opinion and order, the district court recognized that “beyond
the alleged problematic interplay between the IEP and [M.L.’s] role in his Orthodox
community, including the ALJ’s failure to account for [M.L.’s] inability to generalize and
the consequent (in Plaintiffs’ view) failure to place [M.L.] at Sulam, Plaintiffs do not
identify any faults in the IEP or the ALJ’s review of it.” J.A. 43. The court identified
“the crux of this dispute: Is the education proposed in the IEP a FAPE when it does not
account for [M.L.’s] individual religious and cultural needs?” J.A. 43. Answering that
query in the affirmative, the district court held that “a FAPE, to which a child with a
disability is entitled, is the education that any student without disabilities would receive.”
J.A. 43. Outside of their religious and cultural argument, the district court concluded that
the Plaintiffs had not shown that the IEP was in any way deficient or treated M.L. in a
different way than any other disabled student. Because MCPS provided a FAPE to M.L.
under the IDEA, it was unnecessary to reach the Establishment Clause issues that would
arise had the Plaintiffs prevailed and placement of M.L. at Sulam resulted.
8
The Plaintiffs filed a timely notice of appeal, and we have jurisdiction pursuant to
28 U.S.C. § 1291. 4
II.
The Plaintiffs argue that the district court erred in concluding that the IDEA does
not require a school to provide religious or cultural instruction to disabled students as part
of their IEPs. In other words, the Plaintiffs contend that MCPS failed to provide M.L.
with a FAPE in violation of federal and state law, despite their concession that the IEP
was adequate in all other respects. 5 We disagree with the Plaintiffs.
A.
In IDEA cases, we apply “the standard of review utilized by the district court” in
reviewing the ALJ’s decision: a “modified de novo review, giving due weight to the
underlying administrative proceedings.” O.S. v. Fairfax Cty. Sch. Bd., 804 F.3d 354, 360
(4th Cir. 2015). 6 “While the court must make an independent determination on whether
4
After oral argument, the Plaintiffs filed a motion to hold the appeal in abeyance pending
the Supreme Court’s decision in Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE–1,
580 U.S. __, 137 S. Ct. 988 (2017). We granted the motion. After the Supreme Court released
its decision, we ordered supplemental briefing on the limited issue of how Endrew F. affects the
disposition of this case, if at all. The case is now ripe for decision.
5
While the Plaintiffs largely focus their arguments on the IDEA, they also cite to
Maryland statutes and regulations designed to implement the IDEA. See Md. Code Ann., Educ.
§ 8-401 et seq.; Md. Code Regs. 13A.05.01.01 et seq. These statutes and regulations, however,
do not deviate materially from their federal counterparts. See generally John A. v. Bd. of Educ.,
929 A.2d 136, 140–43 (Md. 2007) (discussing the requirements of the IDEA and citing to its
Maryland counterpart). Thus, the Plaintiffs’ arguments under Maryland law fail for the same
reasons that their IDEA arguments are unavailing.
6
We have omitted internal quotation marks, alterations, and citations here and throughout
this opinion, unless otherwise noted.
9
the school complied with the IDEA, the hearing officer’s factual findings are considered
prima facie correct.” Id. The determination of whether an IEP is adequate “is itself a
question of fact.” Id.
B.
1.
Among other purposes, the IDEA seeks “to ensure that all children with
disabilities have available to them a free appropriate public education that emphasizes
special education and related services designed to meet their unique needs and prepare
them for further education, employment, and independent living.” 20 U.S.C.
§ 1400(d)(1)(A). 7 A FAPE is defined as
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 [20 U.S.C. § 1414(d)].
Id. § 1401(9). “Special education” is “specially designed instruction, at no cost to
parents, to meet the unique needs of a child with a disability, including (A) instruction
conducted in the classroom, in the home, in hospitals and institutions, and in other
settings; and (B) instruction in physical education.” Id. § 1401(29). The goals of the
“specially designed instruction” are “(i) [t]o address the unique needs of the child that
result from the child’s disability; and (ii) [t]o ensure access of the child to the general
7
Congress provides federal funding to states to implement this goal. See generally 20
U.S.C. § 1411(a).
10
curriculum, so that the child can meet the educational standards within the jurisdiction of
the public agency that apply to all children.” 34 C.F.R. § 300.39(b)(3). A FAPE includes
the provision of certain “nonacademic and extracurricular services and activities in the
manner necessary to afford children with disabilities an equal opportunity for
participation in those services and activities.” Id. § 300.107(a).
An IEP is “a written statement for each child with a disability that is developed,
reviewed, and revised in accordance with [20 U.S.C. § 1414(d)].” 20 U.S.C. § 1401(14).
Among other provisions, the IEP includes “a statement of measurable annual goals,
including academic and functional goals, designed to (aa) meet the child’s needs that
result from the child’s disability to enable the child to be involved in and make progress
in the general education curriculum; and (bb) meet each of the child’s other educational
needs that result from the child’s disability.” Id. § 1414(d)(1)(A)(i)(II); see also 34
C.F.R. § 300.320 (defining IEP). When developing the IEP, the school “shall consider (i)
the strengths of the child; (ii) the concerns of the parents for enhancing the education of
their child; (iii) the results of the initial evaluation or most recent evaluation of the child;
and (iv) the academic, developmental, and functional needs of the child.” 20 U.S.C.
§ 1414(d)(3)(A).
11
2.
The leading IDEA case is Board of Education v. Rowley, 458 U.S. 176 (1982). 8 In
that case, the plaintiff was a deaf student who sued the defendant school district after it
refused to provide her with a sign-language interpreter in class as part of her IEP. Id. at
184–85. The district court held that the child “was not receiving a free appropriate public
education, which the court defined as an opportunity to achieve her full potential
commensurate with the opportunity provided to other children.” Id. at 185–86. The
Second Circuit affirmed that decision. Id. at 186. The Supreme Court granted certiorari
to address “[w]hat is meant by the Act’s requirement of a free appropriate public
education.” Id. at 186.
The Rowley Court began by recognizing that the purpose of the IDEA is “to
promote the education of handicapped children, and [that it] was passed in response to
Congress’ perception that a majority of handicapped children in the United States were
either totally excluded from schools or were sitting idly in regular classrooms awaiting
the time when they were old enough to drop out.” Id. at 179. Further, the Court
determined that the IDEA defined a FAPE essentially as “consist[ing] of educational
instruction specially designed to meet the unique needs of the handicapped child,
supported by such services as are necessary to permit the child to benefit from the
instruction.” Id. at 188–89. Although the Court acknowledged that the definition of
8
The Rowley Court analyzed the plaintiff’s claims under the Education of the
Handicapped Act (“EHA”). Congress later renamed the EHA the IDEA. To prevent confusion,
we use “IDEA” in our Rowley discussion instead of “EHA.”
12
FAPE found in the IDEA “tends toward the cryptic rather than the comprehensive,” it
nevertheless concluded that the definition “is the principal tool which Congress has given
us for parsing the critical phrase of the Act.” Id. at 188.
The Court also looked to the motive of Congress in enacting the IDEA,
understanding it to be the “intent to bring previously excluded handicapped children into
the public education systems of the States and to require the States to adopt procedures
which would result in individualized consideration of and instruction for each child.” Id.
at 189. That said, the Court noted that “[n]oticeably absent from the language of the
statute is any substantive standard prescribing the level of education to be accorded
handicapped children.” Id. The legislative history of the IDEA’s enactment likewise did
not support an interpretation that, “in seeking to provide [children with disabilities]
access to public education, Congress [intended to] impose upon the States any greater
substantive educational standard than would be necessary to make such access
meaningful.” Id. at 192. Rather, “the intent of the Act was more to open the door of
public education to handicapped children on appropriate terms than to guarantee any
particular level of education once inside.” Id.; see also id. at 197 n.21 (“Whatever
Congress meant by an ‘appropriate’ education, it is clear that it did not mean a potential-
maximizing education.”).
The Court also held that the term “free appropriate public education” did not
mandate “equality” or any requirement that schools provide the same education to
students with disabilities as that provided to students without disabilities. Id. at 198
(“The requirement that States provide ‘equal’ educational opportunities would thus seem
13
to present an entirely unworkable standard requiring impossible measurements and
comparisons.”). Instead, a school is required only to provide “equal access.” Id. at 200
(emphasis added). Thus, the lower courts in Rowley “erred when they held that the Act
requires [the State] to maximize the potential of each handicapped child commensurate
with the opportunity provided nonhandicapped children.” Id. Rather, providing a FAPE
means “that the education to which access is provided [must] be sufficient to confer some
educational benefit upon the handicapped child.” Id. The Court “conclude[d] that the
basic floor of opportunity provided by the Act consists of access to specialized
instruction and related services which are individually designed to provide educational
benefit to the handicapped child.” Id. at 201. In sum, a school “satisfies [the FAPE]
requirement by providing personalized instruction with sufficient support services to
permit the child to benefit educationally from that instruction.” Id. at 203.
Since Rowley, we have consistently held that “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.” O.S., 804 F.3d at 360 (stating that, “[i]n
this circuit, the standard remains the same as it has been for decades”). After oral
argument in this case, however, the Supreme Court heard argument in and decided
Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE–1, 580 U.S. __, 137 S. Ct. 988
(2017), in which the Court rejected the Tenth Circuit’s “merely more than de minimis”
FAPE standard, id. at 1000–01. The Supreme Court held that Rowley’s “statement that
the Act did not guarantee any particular level of education simply reflects the
unobjectionable proposition that the IDEA cannot and does not promise any particular
14
educational outcome.” Id. at 998. Although the Court in Rowley had found it “difficult
. . . to say when educational benefits are sufficient,” that did not mean “that any
educational benefit was enough.” Id.
The Court went on to hold that, “[t]o meet its substantive obligation under the
IDEA, a school must offer an IEP reasonably calculated to enable a child to make
progress appropriate in light of the child’s circumstances.” Id. at 999. This is a “fact-
intensive exercise.” Id. When a child is unable to “fully integrate[] in[to] the regular
classroom,” as with M.L., the “educational program must be appropriately ambitious in
light of his circumstances, just as advancement from grade to grade is appropriately
ambitious for most children in the regular classroom.” Id. at 1000. In sum, the Court
found that “[t]he IDEA demands more” than “an educational program providing ‘merely
more than de minimis’ progress from year to year.” Id. at 1001. However, the Court
rejected Endrew F.’s argument that “a FAPE is an education that aims to provide a child
with a disability opportunities to achieve academic success, attain self-sufficiency, and
contribute to society that are substantially equal to the opportunities afforded children
without disabilities.” Id.
Our prior FAPE standard is similar to that of the Tenth Circuit, which was
overturned by Endrew F. We have cited to the Tenth Circuit’s standard in the past,
including that court’s decision in Endrew F. itself. See O.S., 804 F.3d at 360 (citing
Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE–1, 798 F.3d 1329, 1338–41
(10th Cir. 2015)). For purposes of the case at bar, though, we need not delve into how
Endrew F. affects our precedent because the IDEA does not provide the remedy the
15
Plaintiffs want, regardless of the standard applied. Moreover, the Plaintiffs never raised
any issue about the standard before the ALJ or district court, and it was never at issue on
appeal. The Plaintiffs have not identified in post-argument briefing any way in which
Endrew F. affects the resolution of this case.
3.
Like Rowley, “[t]his case presents a question of statutory interpretation.” 458 U.S.
at 179. In that regard, absent from the IDEA is any requirement that schools provide
religious or cultural instruction. The Plaintiffs do not point to any section of the IDEA or
its implementing regulations that requires a school to develop a religious or cultural
curriculum, such as the Plaintiffs’ requested teaching of “blessings [and] Hebrew words.”
Opening Br. 38; see also J.A. 86–87 (Rabbi Leiman’s testimony that the school should
instruct M.L. in “keeping kosher,” “wearing a yarmulke,” “observing mitzvot,” and
“observing Jewish holidays”). The Plaintiffs’ requested interpretation of the IDEA
necessitates adding requirements not present in the statute: a function for Congress, not
the judiciary. See United States v. Luskin, 926 F.2d 372, 376 (4th Cir. 1991) (refusing to
“legislate from the bench by adding [a] provision” to a statute because “[t]he statute does
not contain words to this effect, and this Court does not have the power to make such an
amendment”); see also Henson v. Santander Consumer USA Inc., 582 U.S. __, 137 S. Ct.
1718, 1726 (2017) (“[T]he proper role of the judiciary . . . [is] to apply, not amend, the
work of the People’s representatives.”); Rowley, 458 U.S. at 190 n.11 (“After all,
Congress expresses its purpose by words. It is for us to ascertain—neither to add nor to
subtract, neither to delete nor to distort.”). In fact, federal regulations support the
16
conclusion that states may not use IDEA funds to provide religious and cultural
instruction. See, e.g., 34 C.F.R. § 76.532(a)(1) (funding regulation prohibiting a state
from “us[ing] its grant or subgrant to pay for . . . [r]eligious worship, instruction, or
proselytization”). As the Sixth Circuit stated in an IDEA case, albeit in response to an
Establishment Clause argument, “[t]he IDEA certainly has a secular purpose and its
primary effect is one that does not advance religion.” Peck ex rel. Peck v. Lansing Sch.
Dist., 148 F.3d 619, 629 (6th Cir. 1998).
The district court was correct in holding that religious and cultural instruction does
not fall within the school’s duty to provide a disabled student with access to the general
curriculum. Under the IDEA, the school must only address the student’s individual needs
to the extent it takes to provide that access. See 20 U.S.C. § 1414(d)(1)(A)(i)(II) (stating
that the IEP must include “a statement of measurable annual goals, including academic
and functional goals, designed to (aa) meet the child’s needs that result from the child’s
disability to enable the child to be involved in and make progress in the general education
curriculum; and (bb) meet each of the child’s other educational needs that result from the
child’s disability”). MCPS is not required to “maximize the potential of handicapped
children commensurate with the opportunity provided to other children.” Rowley, 458
U.S. at 189–90.
The Plaintiffs’ witnesses, including Rabbi Leiman, agreed that the IEP would be
sufficient but for the Plaintiffs’ desire for instruction in Orthodox Judaism. For example,
Rabbi Leiman acknowledged that “the goals and objectives [of the MCPS IEP] meet
[M.L.’s] secular needs.” J.A. 111. He also admitted that, “but for his religion [and
17
culture], [MCPS] could meet [M.L.’s] special education and general education needs.”
J.A. 112. Further, the Plaintiffs concede that they “send [M.L.] to Sulam school in
furtherance of [their] religious beliefs.” J.A. 102. Their “main objection” to the MCPS
IEP is that it “does not address Judaism,” and they are concerned that M.L. will be taught
“various things that would contravene Jewish law” if he were to attend public school.
J.A. 156–57. Thus, the Plaintiffs concede that their only objection to the IEP proposed
for M.L. is the absence of religious instruction on M.L.’s cultural preferences.
MCPS offered uncontested evidence that it would make reasonable
accommodations for M.L.’s religious preferences. See Reply Br. 1 (the Plaintiffs
conceding that “[t]his appeal has nothing to do with any allegation that MCPS has failed
in its efforts to accommodate M.L.’s religious beliefs and those of his parents”). For
example, the Plaintiffs have continually cited their objection to M.L.’s participation in
MCPS-sponsored trips to McDonald’s “to practice buying and ordering items,” Opening
Br. 49; see also J.A. 75 (testimony of Rabbi Leiman: “McDonald’s serves food that is
specifically non-kosher and we wouldn’t want [M.L.] to be there, certainly not to
purchase there, and obviously not to eat there.”), but MCPS does not “require children to
participate in things that go against their cultural beliefs.” J.A. 612. Another example is
that, for children, like M.L., whose parents find the celebration of Halloween “very
offensive . . . and strongly against their religious beliefs, . . . those children rather than
participating in the party and the parade, participate[] in a story time in the library.” J.A.
560. MCPS accommodates “students who maintain a kosher diet.” J.A. 604. Even
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more, the school “provide[s] opportunities to practice certain prayers” as well as “places
for students to come and have their prayers if they need be.” J.A. 613.
The Plaintiffs also contend that the district court and ALJ erroneously disregarded
their argument that an IEP must allow M.L. “to generalize what he learns from one
setting to another.” Opening Br. 44. 9 However, the Plaintiffs do not truly argue that the
IEP fails to generalize M.L.’s education across the school and home settings. Instead,
they contend that the religious instruction he receives at home should be generalized to
the school setting. Again, however, the IDEA does not mandate that a school instruct a
student in his preferred religious practices. Rabbi Leiman essentially conceded this point
when he testified that he and his family “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”—not just for M.L., but all of the Leiman children. J.A. 51–52.
Because the IDEA does not require a school to provide religious and cultural instruction
inside the schoolhouse gates, it likewise does not contemplate how a student may absorb
such instruction at home.
Finally, the Plaintiffs cite to the requirement that an IEP include “a statement of
measurable annual goals, including academic and functional goals, designed to . . . meet
9
As MCPS points out, the Eleventh Circuit has held that a school need not necessarily
consider a student’s ability to generalize skills between school and home to find an IEP adequate.
Devine v. Indian River Cty. Sch. Bd., 249 F.3d 1289, 1293 (11th Cir. 2001) (holding that
“generalization across settings is not required to show an educational benefit”). It is unnecessary
for us to decide today whether to adopt that holding, as the Plaintiffs do not contest that the IEP
does instruct M.L. on generalizing among settings, except when it comes to religious practice.
As we explain at several places herein, that type of instruction is not required by the IDEA for a
FAPE.
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each of the child’s other educational needs that result from the child’s disability.” 20
U.S.C. § 1414(d)(1)(A)(i)(II)(bb). They argue that, “to the extent that M.L.’s religious
and cultural needs resulting from his inability to generalize skills across settings do not
fall within his progress in the general education curriculum, they are squarely within the
context of the statute’s ‘other educational needs’ section.” Opening Br. 34. According to
the Plaintiffs, these “other educational needs” include “[l]earning Hebrew, recognizing
kosher signs and impurities in foods, and telling time according to [M.L.’s] dietary
restrictions.” Opening Br. 34. 10 Assuming for the sake of argument that the Plaintiffs are
correct that these “other educational needs” are much broader than the needs of the child
“to be involved in and make progress in the general education curriculum,” 20 U.S.C.
§ 1414(d)(1)(A)(i)(II)(aa), the IEP did appropriately address those other needs. For
example, the MCPS IEP provided for instruction in areas not specifically part of the
general curriculum, such as learning to tell time, fine motor coordination, identification
of community and safety signs, and cognizance of currency. M.L. would also be taught
how to interact when participating in a community experience. These non-general
education curriculum activities would be the same as for any other disabled child with
similar disabilities. The IEP also set goals for M.L. outside the general curriculum in
behavioral, speech and language, and occupational therapy. Just like the needs in
10
By way of explanation, according to Rabbi Leiman, the Plaintiffs do not “eat milk and
meat together.” J.A. 79. If M.L. eats a “milky meal,” he must wait five hours before eating a
“meaty meal,” and vice versa, so he must be taught how to calculate those religious increments
as part of his faith practice. J.A. 79. M.L. must learn how to identify “blood spots” in eggs
because Orthodox Jewish law forbids the consumption of eggs with those spots. J.A. 76. M.L.
must also learn to recognize “dozens of kosher symbols”—perhaps even “over a thousand.” J.A.
62, 237.
20
§ 1414(d)(1)(A)(i)(II)(aa), these “other educational needs” do not include any religious or
cultural instruction, nor are they required by the IDEA.
The Plaintiffs erroneously read “other educational needs” as “all other educational
needs.” But the IDEA does not require a public school to account for every deficiency a
disabled student might possess, just like a school does not have to exhaust its resources to
enable a nondisabled student to achieve his ultimate potential. See Rowley, 458 U.S. at
199 (concluding that the IDEA does not require “the furnishing of every special service
necessary to maximize each handicapped child’s potential”). Rather, the school must
only “offer an IEP reasonably calculated to enable a child to make progress appropriate in
light of the child’s circumstances.” Endrew F., 137 S. Ct. at 999. The relevant
circumstance here is that M.L. is disabled, not that he is of the Orthodox Jewish faith. As
the Supreme Court reaffirmed in Endrew F., “the IDEA cannot and does not promise any
particular educational outcome,” id. at 998, and it does not require one that furthers a
student’s practice of his religion of choice.
MCPS provided M.L. with equal access to an education, on the same basis as it
provides to all other students with disabilities. It does not provide religious and cultural
instruction to its students with or without disabilities and has no duty under the IDEA to
administer such instruction to M.L. Thus, because the proposed IEP provided M.L. with
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a FAPE, it meets the requirements of the IDEA. The district court did not err in so
finding and awarding summary judgment to MCPS. 11
III.
For all of these reasons, the judgment of the district court is
AFFIRMED.
11
The district court concluded that it was unnecessary to decide whether MCPS would
violate the Establishment Clause by paying for M.L.’s private education. A public school is not
required to pay for a student’s placement in private school if the public school “made a free
appropriate public education available to the child and the parents elected to place the child in
such private school or facility.” 20 U.S.C. § 1412(a)(10)(C)(i); see also 34 C.F.R. § 300.148(a).
A court may order the public school to pay the private school tuition only if it finds the public
school did not provide the student with a FAPE. 20 U.S.C. § 1412(a)(10)(C)(ii); see also 34
C.F.R. § 300.148(c). Once the district court determined that MCPS provided M.L. with a FAPE,
the inquiry ended. Thus, any question of whether publicly-funded private tuition in this case
would violate the Establishment Clause would be speculative and purely advisory. Therefore,
that issue is moot.
Finally, we do not reach the Free Exercise Clause arguments raised by amici and
addressed by MCPS and the Plaintiffs in their response and reply briefs, respectively. The
Plaintiffs did not raise a Free Exercise argument in their opening brief. Because the Court
generally does not consider arguments raised in amicus or reply briefs in the first instance, we do
not reach those arguments here. See Suarez-Valenzuela v. Holder, 714 F.3d 241, 248–49 (4th
Cir. 2013) (reply briefs); Snyder v. Phelps, 580 F.3d 206, 216–17 (4th Cir. 2009) (amicus briefs).
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