S.T. v. Howard County Public School System , 627 F. App'x 255 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1031
S.T.; S.J.P.T.; I.T.,
Plaintiffs – Appellants,
v.
HOWARD COUNTY PUBLIC SCHOOL SYSTEM; RENEE A. FOOSE, officially,
Defendants – Appellees.
---------------------------
COUNCIL OF PARENT ATTORNEYS AND ADVOCATES,
Amicus Supporting Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:14-cv-00701-JFM; 1:15-cv-00100-JFM)
Argued: December 8, 2015 Decided: January 5, 2016
Before TRAXLER, Chief Judge, SHEDD, Circuit Judge, and Elizabeth
K. DILLON, United States District Judge for the Western District
of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Wayne D. Steedman, CALLEGARY & STEEDMAN, P.A.,
Baltimore, Maryland, for Appellants. Jeffrey A. Krew, JEFFREY
A. KREW, LLC, Ellicott City, Maryland, for Appellees. ON BRIEF:
James F. Silver, CALLEGARY & STEEDMAN, P.A., Baltimore,
Maryland, for Appellants. Caroline Heller, GREENBERG TRAURIG,
LLP, New York, New York, for Amicus Curiae.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
S.T., through his parents, appeals the district court’s
grant of summary judgment for Howard County Public School
System. We affirm.
S.T. is a nine year old boy in the Howard County Public
School System. Diagnosed with autism spectrum disorder, S.T.
qualifies as disabled under the Individuals with Disabilities in
Education Act (“IDEA”). He receives special-education services
through an Individualized Educational Program (“IEP”) developed
by an IEP team which includes both school system personnel and
S.T.’s parents.
On October 21, 2013, the school system conducted an annual
review of S.T.’s IEP. At this meeting, the IEP team developed a
new IEP which included a new placement, transferring S.T. from
The Trellis School, a private institution, to the Cornerstone
Program at Cedar Lane, a school in the Howard County Public
School System. S.T.’s parents filed a Due Process Complaint
challenging the new placement. After a five-day hearing, the
administrative law judge found that the IEP provides S.T. a free
appropriate education (“FAPE”) as required by the law. S.T.’s
parents appealed to the district court, which granted summary
judgment for the school system. The district court found that
the ALJ used the correct methodology to reach a decision and
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that her factual findings indicate that administering the IEP at
the Cornerstone Program will provide S.T. with a FAPE.
We review a district court’s grant of summary judgment de
novo. Lee Graham Shopping Ctr., LLC v. Estate of Kirsch, 777
F.3d 678, 681 (4th Cir. 2015). On a motion for summary judgment,
we view “all facts and reasonable inferences in the light most
favorable to the non-moving party.” Dulaney v. Packaging Corp.
of America, 673 F.3d 323, 330 (4th Cir. 2012). Whether an IEP is
sufficient to provide a FAPE is a question of fact that we
review for clear error. County School Bd. of Henrico County, Va.
v. Z.P. ex rel. R.P., 399 F.3d 298, 309 (4th Cir. 2005).
On appeal, S.T.’s parents argue that the IEP utilizing the
Cornerstone Program did not offer S.T. a FAPE at the time it was
developed and that the ALJ and the district court erred in
relying on “retrospective evidence” to show that the Cornerstone
Program meets the IEP requirements. They argue that the
Cornerstone Program was a 36-week program at the time the IEP
was created, not a 46-week program as required by the IEP. Since
the evidence that the program could meet the durational
requirements of the IEP was offered for the first time at the
ALJ hearing (rather than at the IEP meeting), they argue, it was
improper retrospective evidence.
The district court held that the ALJ’s determination that
the Cornerstone Program can meet the requirements of S.T.’s IEP
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is supported by the testimony of Howard County Public School
System employees, autism specialist Shannon Majoros and
instructional facilitator Janet Zimmerman. Testimony before the
ALJ indicated that bridge services are available to lengthen the
program to 46 weeks. The court held, therefore, that the ALJ did
not err when she determined that the Cornerstone Program can
meet any IEP requirement for 46 weeks of services.
The district court further held that Mojoros’ and
Zimmerman’s testimony about the current duration of available
services at the Cornerstone Program was not improper evidence
because the dispute here is not over the services required to be
provided to S.T., but the ability of the school placement to
provide those services. Further, the court noted that even if
offering new testimony about the duration of the Cornerstone
Program were a procedural violation of the IDEA, it is subject
to a harmlessness analysis and there is no evidence of actual
harm to S.T.’s education because he will receive all necessary
services under his IEP at the Cornerstone Program. See MM ex
rel. DM v. School Dist. of Greenville County, 303 F.3d 523, 534
(4th Cir. 2002)(a school district fulfills its statutory
obligation where a disabled child received or was offered a
FAPE, even if there was a technical violation of the IDEA).
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Having reviewed the record and the applicable law, and
having had the benefit of oral argument, we affirm the judgment
based substantially on the reasoning of the district court.
AFFIRMED
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