A.K., a Minor by His Parents and Next Friends J.K. And E.S. v. Alexandria City School Board , 484 F.3d 672 ( 2007 )

Reversed and remanded by published opinion. Chief Judge WILKINS wrote the majority opinion, in which Judge WILLIAMS joined. Judge GREGORY wrote a dissenting opinion.

OPINION

WILKINS, Chief Judge:

The parents of A.K., a minor child with disabilities, brought this action on his behalf against the Alexandria City School Board, alleging that Alexandria City Public Schools (“ACPS”) violated the Individuals with Disabilities Education Act (IDEA), see 20 U.S.C.A. §§ 1400-1487 (West Supp.2006). The parents appeal an order granting summary judgment against them. We reverse and remand for further proceedings.

I.

A.

The IDEA provides every disabled child with the right to a “free appropriate public education” (FAPE) designed to meet his specialized needs. Id. § 1400(d)(1)(A). Congress has defined a FAPE 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 ... education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

Id. § 1401(9).

A school provides a FAPE by creating an “individualized education program” (“IEP”) for each child. See id. § 1414(d)(1)(A); County Sch. Bd. v. Z.P. ex rel. R.P., 399 F.3d 298, 300 (4th Cir.2005). Before creating the IEP, the school district must conduct an initial evaluation to determine the student’s eligibility and to identify his educational needs. See 20 U.S.C.A. § 1414(a)(l)(A)-(C). If the child is deemed eligible, an IEP is created by an “IEP Team” comprised of the child’s parents, at least one of his regular teachers, at least one of his special education teachers, a school board representative, an individual who can interpret evaluation results (who may be either of the teachers or the school board representative), and, if appropriate, the child himself. See id. § 1414(d)(1)(B). The IEP must outline the student’s then-current educational status, establish annual goals, and detail the special educational services and other aids that the child will be provided. See id. § 1414(d)(1)(A)®. It also must provide, among other things, “the projected date for the beginning of the services and modifications ..., and the anticipated frequency, location, and duration of those services and modifications.” Id. § 1414(d)(l)(A)(i)(VII). An IEP is substantively satisfactory if it is “reasonably calculated to enable the child to receive educational benefits.” Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).

The IDEA also provides “procedural safeguards to insure the full participation of the parents and proper resolution of substantive disagreements.” Sch. Comm. of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359, 368, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) (internal quotation marks omitted). As is relevant here, those safeguards include the right to present a complaint “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” 20 U.S.C.A. § 1415(b)(6)(A); see id. § 1415(f). The IDEA also authorizes a party aggrieved by the state administrative proceeding intended to resolve the complaint to challenge the decision in a federal court action. See id. § 1415(i)(2)(A). Such an action is an independent civil action in which the district court considers the state administrative hearing record, as well as any new evidence that the parties offer, and makes findings by a preponderance of the evidence. See id. § 1415(i)(2)(C). Although the federal court action is an independent action, the court must give “due weight” to the state administrative proceeding. Rowley, 458 U.S. at 206, 102 S.Ct. 3034.

B.

A.K. was first found eligible to receive special education services under the IDEA at age two and one-half. At that time, A.K. was diagnosed with Semantic Pragmatic Language Disorder with characteristics of nonverbal learning disability. A.K. has since been diagnosed as well with numerous other disorders, including Asper-gers Syndrome and obsessive compulsive disorder. A.K. was educated in the ACPS school system through the seventh grade until he began to be teased and assaulted by other students to an extent that he no longer felt safe. A.K.’s parents (“the parents”) subsequently searched unsuccessfully for a private day school in the Washington, D.C. metropolitan area that could meet their son’s specialized needs.

For the 2003-04 school year, when A.K. was in the eighth grade, the parents enrolled A.K. in the Riverview School, a residential school in Massachusetts, pursuant to a settlement between the parents and ACPS. ACPS had proposed local private day school but agreed to fund the portion of Riverview tuition that was equivalent to private day school placement. The parents were very happy with A.K’s progress at Riverview.

In preparation for the 2004-05 school year, A.K.’s IEP team, which included ACPS personnel, Riverview personnel, and the parents, met on May 21 and 28, 2004, and June 9, 2004 for a total of eight to ten hours. Until the last half hour of the final meeting, the team spent its time defining A.K.’s level of performance and setting goals and objectives for the upcoming year. With only a few minutes of discussion regarding placement, ACPS announced that A.K. should be placed at an unspecified private day school.¹ Unaware of any private day school in the area equipped to meet A.K.’s specialized needs, the parents asked ACPS representatives which private day school he could attend. Susan Sullivan, ACPS’s private placement specialist and the IEP team chairperson, suggested the Kellar School and the Phillips School as possibilities. A.K.’s mother responded that she did not believe either of those schools would be appropriate. The meeting closed without any significant discussion about the appropriateness of Kellar or Phillips or any other possible private day schools.

The resulting IEP contained a detailed discussion of A.K.’s then-current level of performance. It also set forth goals and objectives, along with a plan to aid A.K. in the transition from Riverview to a private day school. However, it did not identify any particular school but simply listed A.K.’s placement as “Level II — Private Day School placement.” J.A. 379. Based on their objection to that placement, the parents refused to sign the IEP.²

In July 2004, ACPS sent out applications on A.K.’s behalf to five area private day schools: The Lab School, The Ivymount School, Oakmont School, Phillips, and Kel-lar. Based on the applications provided, The Lab School and Oakmont (and perhaps Ivymount) determined that they could not provide A.K. a FAPE due to the complexity of his disabilities.³ However, Phillips and Kellar both indicated that they believed, based on the information they had received, that they had an appropriate program for A.K., and invited him and his parents to visit the school.

A.K.’s mother toured both schools in July,⁴ and, after consulting with some experts who were familiar with A.K., determined that neither school would be able to meet A.K.’s specialized needs. Having been unable to find any local private day school that they believed could provide A.K. with a FAPE, the parents, on July 9, 2004, requested an administrative special education due process hearing to determine whether ACPS had offered A.K. a FAPE. ACPS sent a letter to the parents in early August informing them that Phillips and Kellar wanted to schedule interviews with A.K., but the parents, having determined that those schools could not serve A.K.’s needs, did not seek to schedule such interviews.

At the due process hearing, the parents did not challenge the notion that a private day school could theoretically meet A.K.’s needs, but they argued that the IEP failed to identify a particular school in the area that could do so and that they had not been able to find one.⁵ Thus, the parents sought reimbursement for their Riverview tuition on the ground that ACPS had failed to offer A.K. a FAPE and Riverview provided an appropriate education.

Both sides presented testimony regarding whether Phillips, Kellar, or Riverview was appropriate for A.K.’s individual needs. ACPS’s testimony established that the Phillips School provides individualized educational programs implemented by classroom staff. It also offers small group instruction, one-on-one intervention, speech and language development, and training in social and daily-living skills. The majority of students at Phillips are 14-18 years old, and they have a wide range of disabilities. Students with similar needs are generally grouped together in particular classrooms. Phillips utilizes a progressive level system, in which students are given more freedom and responsibility as their behavior and academic motivation improve. Laura Heyer, a program supervisor at Phillips who had previously taught at the school for 10 years, testified that she did not know of any reason why Phillips could not provide an appropriate program for A.K. Susan Sullivan expressed the same opinion.

Testimony showed that the Kellar School is a smaller school for middle and high school students. At Kellar, the students work in teams with a counselor in each classroom to help the students. Like Phillips, Kellar employs a level system, under which students gain independence as their work habits, academic work, and behavior improve. Sullivan testified that she believed Kellar would have been able to provide A.K. with a beneficial education.

The parents, on the other hand, presented testimony from two experts that neither Phillips nor Kellar could meet A.K.’s specialized needs. They first presented the testimony of Cheryl Weitz, a licensed social worker in the practice of child psychotherapy who frequently works in IEP development. She testified that many of the students at Phillips were aggressive, disruptive, and occasionally violent. She testified that she would expect that A.K., if placed at Phillips, would “regress into that fearful, anxious state where he would be more shutdown in self-protection.” J.A. 921. She also opined that Phillips’ focus on eliminating problems in behavior and motivating students to try to learn would cause A.K., who did not have significant behavior or motivation problems, to regress cognitively. She expressed similar concerns about Kellar based on her view that Kellar educated many children with psychiatric problems who often are violent and attend the school for only a short period. She stated that although she believed A.K. could benefit educationally from a private day school “if the structure were appropriate,” she did not believe that either Kellar or Phillips “would be appropriate” considering A.K.’s needs. Id. at 923-24.⁶

Dr. William Stixrud, a neuropsychologist in private practice, expressed similar reservations about A.K.’s prospects in schools having a significant number of students with psychiatric and behavior problems. Dr. Stixrud opined that such a setting would be “counter-productive in terms of [A.K.’s] availability for learning and his ability to benefit from education that focuses on academics or adaptive behavior.” Id. at 1006. Like Weitz, Dr. Stixrud did not testify that no private day school could meet A.K.’s needs. Rather, he testified that A.K.’s multiple disabilities overlapped, providing a complex set of challenges requiring a very specific type of learning environment in order for A.K. to make academic progress. He testified that he was not aware of any private day school geographically accessible to A.K. that could meet A.K.’s specialized needs.

The hearing officer denied the parents’ claim. He concluded that ACPS did offer A.K. a FAPE by offering him education at “private day school.” Although the hearing officer did not specifically resolve the parents’ contentions that Phillips and Kel-lar could not offer A.K. a FAPE, he did discuss ACPS’s failure to identify a particular school that could meet A.K.’s specialized needs:

The fact that ACPS did not specify a particular private day program suggests to me that ACPS wanted to give the parents as much flexibility as possible on this issue. Several private day possibilities were suggested, and the parents [were] given the option of choosing the one which was most attractive to them. The fact that they found none of the possibilities attractive does not mean that the ACPS approach was not in accordance with the FAPE mandates. Thus I conclude that private day placement does provide FAPE.

Id. at 1305.

Dissatisfied with this result, the parents brought the present civil action in federal district court, again seeking reimbursement for their Riverview tuition. They alleged not only that the IEP failed to offer a FAPE, but also, as is relevant here, that ACPS had failed to notify the parents before the IEP meetings that private day placements in their area would be considered. The district court granted summary judgment against the parents. See A.K. ex rel. J.K. v. Alexandria City Sch. Bd., 409 F.Supp.2d 689 (E.D.Va.2005). On the notification question, the district court ruled that the parents were on notice that private day schools in their area would be considered because ACPS had recommended private day school placement for the 2003-04 school year. See id. at 693. With regard to substantive compliance, the district court concluded that ACPS’s mentioning of Kellar and Phillips during the final IEP meeting constituted a “placement offer” of those two schools. Id. at 694. Citing the testimony of the ACPS officials that the offer was appropriate, the district court found that ACPS offered A.K. a FAPE. See id. at 694-95.

II.

The parents argue that the district court erred in determining that the school district complied with the substantive components of the IDEA. In particular, they maintain that ACPS failed to offer a FAPE because its IEP did not identify a particular school at which it anticipated that A.K. would be educated.⁷ We agree.

“When a state receiving IDEA funding fails to provide a FAPE, the child’s parent may remove the child to a private school and then seek tuition reimbursement from the state.” A.B. ex rel. D.B. v. Lawson, 354 F.3d 315, 320 (4th Cir.2004). “The parent may recover if (1) the proposed IEP was inadequate to offer the child a FAPE and (2) the private education services obtained by the parents were appropriate to the child’s needs.” Id.

The parents bore the burden here of proving that the IEP was substantively deficient. See Spielberg ex rel. Spielberg v. Henrico County Pub. Sch., 853 F.2d 256, 258 n. 2 (4th Cir.1988) (assigning burden to party challenging the hearing officer’s decision); cf. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 126 S.Ct. 528, 537, 163 L.Ed.2d 387 (2005) (holding that party challenging IEP in due process hearing bears burden of proof). A determination that an IEP is sufficient is a factual finding that we review for clear error.⁸ See Z.P., 399 F.3d at 309 & n. 7. However, such a finding is not entitled to deference to the extent that it is based upon application of an incorrect legal standard. See id. at 309.

The IDEA provides that an IEP must state “the projected date for the beginning of the services and modifications ..., and the anticipated frequency, location, and duration of those services and modifications.” 20 U.S.C.A. § 1414(d)(l)(A)(i)(VTI) (emphasis added). The Senate Report concerning the 1997 amendments to the IDEA, which added the requirement that the location be identified, noted that the new requirement reflects the fact that the location “influences decisions about the nature and amount of these services and when they should be provided.” S.Rep. No. 105-17, at 21 (1997), U.S.Code Cong. & AdmimNews 1997, 78, 99. Indeed, we have previously discussed the potential importance of the particular location at which special educational services are provided. See AW ex rel. Wilson v. Fairfax County Sch. Bd., 372 F.3d 674 (4th Cir.2004). In AW, the student alleged that the school district’s transfer of him to a different classroom within the same school because of a pattern of misbehavior violated the “stay-put” provision of the IDEA, which requires that a student’s “educational placement” not change while disciplinary proceedings are pending. See 20 U.S.C.A. § 1415Q); AW, 372 F.3d at 676, 678. We concluded that there was “little support in the IDEA’S underlying principles for [the] assertion that ‘educational placement’ should be construed to secure [the] right to attend school in a particular classroom at a particular location.” AW, 372 F.3d at 681. We held “that the term ‘educational placement’ as used in the stay-put provision refers to the overall educational environment rather than the precise location in which the disabled student is educated.” Id. at 676. We nevertheless observed that a change in the location at which special education services are provided causes a change in “educational placement” if the location change “results in a dilution of the quality of a student’s education or a departure from the student’s [least restrictive environment]-compliant setting.” Id. at 682.

In light of the fact that the school at which special education services are expected to be provided can determine the appropriateness of an education plan, it stands to reason that it can be a critical element for the IEP to address. See Paolo Annino, The 1997 Amendments to the IDEA: Improving the Quality of Special Education for Children with Disabilities, 23 Mental & Physical Disability L. Rep. 125, 126 (Jan./Feb.1999) (noting that requirement that IEP identify location at which special education is expected to be provided reflects the fact that “[a]ll schools and classes are not uniform”). But see White ex rel. White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir.2003) (holding that “[t]he provision that requires the IEP to specify the location is primarily administrative”). The identification of a particular school in the IEP indicates to the parents that the school district has carefully considered and selected a school that will meet the unique needs of the student. See Glendale Unified Sch. Dist. v. Almasi, 122 F.Supp.2d 1093, 1107 (C.D.Cal.2000). Conversely, an offer that fails to identify the school at which special educational services are expected to be provided may not be sufficiently specific for the parents to effectively evaluate. See Union Sch. Dist. v. Smith, 15 F.3d 1519, 1526 (9th Cir.1994) (explaining that despite district’s contentions that its school for autistic children would have been an appropriate placement for the child, district did not offer that school when it did not make a formal, written offer to provide the child services at that school); Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755, 768 (6th Cir.2001) (similar).

Here, we hold as a matter of law that because it failed to identify a particular school, the IEP was not reasonably calculated to enable A.K. to receive educational benefits. See Rowley, 458 U.S. at 207, 102 S.Ct. 3034. Indeed, this case presents an excellent example of the circumstances under which inclusion of a particular school in an IEP can be determinative of whether a FAPE has been offered. The parents agree that an appropriate private day school could provide a FAPE; they favor keeping A.K. at Riverview only because they have not found a private day school in their area that could meet A.K’s specialized needs. Yet, the IEP development process concluded without any significant discussion of whether such a school existed, or if it did, how it would be a satisfactory match for A.K. Although Sullivan mentioned during an IEP meeting that Kellar and Phillips would be possible placements, the IEP team had never considered whether these particular schools would be able to satisfy A.K.’s specialized needs. Indeed, IEP team member Jill Cohen, an ACPS autism resource specialist, acknowledged at the due process hearing that when she signed the IEP recommending private day school she had no knowledge of any specific private day schools being considered.

That ACPS proceeded to submit applications on A.K.’s behalf to five different private day schools, at least two of which indicated, without even meeting A.K., that they could not satisfy his specialized needs, only highlights the need for the IEP team and the IEP to identify a particular school. With the IEP not identifying any particular school (because the IEP team had not discussed the issue), the parents were left to fend for themselves to determine whether any private day school in their area — including the five ACPS applied to — would be a satisfactory fit. This is not how the IDEA was designed to work. See Glendale, 122 F.Supp.2d at 1107 (noting that a failure to identify a particular school places “an undue burden on a parent to eliminate potentially inappropriate placements, and makes it more difficult for a parent to decide whether to accept or challenge the school district’s offer”).⁹ Rather, “[a]fter discussing the advantages and disadvantages of various programs that might serve the needs of a particular child,” it is incumbent on the school district to utilize its expertise to “clearly identify an appropriate placement from the range of possibilities.”¹⁰ Id. at 1108.

In finding that ACPS offered A.K. a FAPE, the district court erroneously relied on the premise that “ACPS made a placement offer both at the Phillips School and the Kellar School.” A.K., 409 F.Supp.2d at 694. In evaluating whether a school district offered a FAPE, a court generally must limit its consideration to the terms of the IEP itself. See Z.P., 399 F.3d at 306 n. 5; Knable, 238 F.3d at 768. But cf. MM ex rel. DM v. Sch. Dist., 303 F.3d 523, 535 (4th Cir.2002) (evaluating proposed IEP when parents’ lack of cooperation prevented IEP team from finalizing the IEP). Expanding the scope of a district’s offer to include a comment made during the IEP development process would undermine the important policies served by the requirement of a formal written offer, namely, “creating a clear record of the educational placement and other services offered to the parents” and “assisting] parents in presenting complaints with respect to any matter relating to the educational placement of the child.” Knable, 238 F.3d at 768 (internal quotation marks & alteration omitted). Especially in this case, in which the parents had tried in vain to find a local private day school that could meet A.K.’s specialized needs, the offer of an unspecified “private day school” was essentially no offer at all.¹¹

We emphasize that we do not hold today that a school district could never offer a FAPE without identifying a particular location at which the special education services are expected to be provided. There is no reason for us to frame the issue so broadly.¹² But, certainly in a case in which the parents express doubt concerning the existence of a particular school that can satisfactorily provide the level of services that the IEP describes, the IEP must identify such a school to offer a FAPE.

Our determination that the school district failed to offer a FAPE does not resolve the parents’ reimbursement claim, however. The claim remains unresolved because the district court has not made findings regarding the appropriateness of A.K.’s placement at Riverview. See Z.P., 399 F.3d at 311. Thus, we remand to the district court for further proceedings consistent with this decision. See id.

III.

In sum, we reverse the grant of summary judgment against the parents and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED

1 .The district court found that ''[p]rivate day school placement is a term of art describing an educational program which includes several characteristics such as a small overall student body size, small classes, small facility, extensive clinical support, the ability to work individually with a student, extensive behavioral management, and parental involvement.” A.K. ex rel. J.K. v. Alexandria City Sch. Bd., 409 F.Supp.2d 689, 693 (E.D.Va.2005).

2 . On July 2, the parents signed the IEP only as it related to the extended school year (ESY) services to be provided for A.K. in the summer of 2004 but continued to refuse to accept the plan with regard to the 2004-05 school year.

3 . An Ivymount representative informed Sullivan that the school did not have space available for A.K. A.K.’s mother testified, however, that the same representative also told her that Ivymount's program would not have been appropriate for A.K. in any event.

4 . She had toured both previously in her attempts to find an appropriate local private day school for A.K.

5 . The parents also challenged the adequacy of the services described in the IEP, contending that A.K. needed more than one hour of private counseling per week, that needed transition services were not adequately specified, and that certain supplemental services were not properly described. The parents further argued that ESY services included in the IEP for July 1, 2004 to August 1, 2004 were never provided. These claims were also raised before the district court; however, they are not germane to this appeal.

6 . On the issue of placement with violent students, Sullivan testified that she believed Phillips would be able to group students to accommodate their varying needs.

7 . The parents actually characterize this as both a procedural and a substantive violation of the IDEA. However, because we view this claim as an alleged deficiency in what ACPS was offering rather than in the procedure by which the offer was developed or conveyed, we consider the alleged violation to be substantive. See Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755, 767-70 (6th Cir.2001) (considering the question of whether the IEP offered an appropriate program to be substantive). But cf. MM ex rel. DM v. Sch. Dist., 303 F.3d 523, 533-35 (4th Cir.2002) (holding that failure of the school district to finalize an IEP prior to the beginning of the school year was a procedural defect). The dissent appears to assert that the failure of the IEP to identify a particular school was a procedural violation subject to harmlessness analysis rather than a substantive violation because the parents would have sent A.K. to Riverview no matter what ACPS offered. See post, at 684-86. This argument conflates the question of whether a violation is merely procedural — and thus subject to harmlessness analysis — with the harmlessness analysis itself. Under the dissent's logic, even a complete failure by a school district to offer — • formally or informally — any alternative to the parents’ favored educational plan would amount only to a harmless procedural error if the district could establish that the parents would not have been receptive to the district’s offer.

The parents also contend that the district court erred in granting judgment against them because ACPS failed to meet the procedural requirements of the IDEA. In particular, they argue that ACPS failed to provide them with a description of the proposed change — from Riverview to a private day school — prior to the IEP meetings. Regardless of whether the district court addressed this issue, because the issue was apparently never raised to the hearing officer, we do not address it. See David D. v. Dartmouth Sch. Comm., 775 F.2d 411, 424 (1st Cir.1985) (”[F]or issues to be preserved for judicial review they must first be presented to the administrative hearing officer.”). In any event, in light of our holding that A.K.’s IEP was not reasonably calculated to enable A.K. to receive educational benefits, the notice issue is not material to our decision.

8 . That the order on review here is nominally one for summary judgment does not preclude our application of the clear error standard to what are essentially factual findings following a bench trial. See Z.P., 399 F.3d at 309 n. 7.

9 . We note that in MM, the school district had agreed to provide special education services at either of two different schools and we nonetheless held that the district had offered a FAPE. See MM, 303 F.3d at 535. The opinion there, however, provides no indication that the parents objected to the particular schools at issue or argued that the school district should have identified a single school. See id.

10 . That is not to say that a change in the school where services were to be provided would constitute a change in placement. Rather, a change in school constitutes a change in placement only if the change "result[ed] in a dilution of the quality of [the] student's education or a departure from the student’s LRE-compliant setting.” AW, 372 F.3d at 682.

We emphasize that the IEP-development process is a cooperative one. Thus, if the school district identifies several schools during that process that it believes would serve the needs of the child, parents will have the opportunity to voice their preference before the IEP is finalized.

11 . For this reason, the dissent's contention that despite the fact that no location was included in the IEP, the parents knew "with a reasonable degree of certainty” where ACPS proposed to educate A.K. is not dispositive. Post, at 684-85. The contention is also factually suspect considering that although Sullivan mentioned that Kellar and Phillips would be possibilities for A.K., she never indicated that the district would not consider other schools as well (as it did when it sent applications to three other schools).

12 . The dissent's characterization notwithstanding, we do not "acknowledge[ ] that the failure to identify the location of the provision of special education services on a student's IEP need not always result in the denial of a FAPE.” Post, at 684. We merely note that we need not decide that issue today.