T.B. v. Prince George's Cnty. Bd. of Educ.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1877
T.B., JR., by and through his Parents, T.B., SR. and F.B.,
Plaintiff - Appellant,
v.
PRINCE GEORGE’S COUNTY BOARD OF EDUCATION; PRINCE
GEORGE’S COUNTY PUBLIC SCHOOLS; DR. KEVIN M. MAXWELL, in his
official capacity as Chief Executive Officer of Prince George’s County Public
Schools,
Defendants - Appellees.
------------------------------
COUNCIL OF PARENT ATTORNEYS AND ADVOCATES; DISABILITY
RIGHTS MARYLAND,
Amici Supporting Appellant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
George Jarrod Hazel, District Judge. (8:15-cv-03935-GJH)
Argued: March 20, 2018 Decided: July 26, 2018
Before GREGORY, Chief Judge, and WILKINSON and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Agee
joined. Chief Judge Gregory wrote an opinion concurring in the judgment only.
ARGUED: Dennis Craig McAndrews, MCANDREWS LAW OFFICES, Berwyn,
Pennsylvania, for Appellant. Andrew Wayne Nussbaum, NUSSBAUM LAW, LLC,
Clarksville, Maryland, for Appellees. ON BRIEF: Anastasia L. McCusker, Joel I. Sher,
SHAPIRO SHER GUINOT & SANDLER, Baltimore, Maryland; Michael E. Gehring,
MCANDREWS LAW OFFICES, Berwyn, Pennsylvania, for Appellant. Selene
Almazan-Altobelli, Catherine Merino Reisman, COUNCIL OF PARENT ATTORNEYS
AND ADVOCATES, INC., Towson, Maryland, for Amici Curiae.
2
WILKINSON, Circuit Judge:
T.B., a former student of Prince George’s County Public Schools (PGCPS),
alleges that the school district failed to provide him a free appropriate public education in
violation of the Individuals with Disabilities Education Act (IDEA). While we agree with
the administrative law judge and district court that the school district committed a
procedural violation of the IDEA, we also agree with them, that on these facts, the
violation did not actually deprive T.B. of a free appropriate public education. We thus
affirm the district court’s grant of summary judgment to PGCPS.
I.
T.B. began attending PGCPS schools in elementary school. As an elementary
schooler, he received mostly As and Bs, although his performance in reading and math
was below grade level. T.B.’s grades took a turn for the worse in middle school. In
seventh grade, he received two Cs and four Ds. The following year, he received five Cs,
two Ds, and one failing grade (E). His middle school teachers noted that T.B. did “not
follow instructions,” did “not participate in class,” had “[m]issing/incomplete
assignments,” and received “[p]oor test/quiz grades.” J.A. 1900, 1904.
Things did not improve when T.B. began at Friendly High School in 2012. T.B.’s
grades, for the most part, continued to decline. He finished ninth grade with two Ds and
four Es. He did, however, receive an A in Personal Fitness and a B in Naval Science. In
tenth grade, T.B. failed every class except Algebra, in which he received a B. T.B.
accordingly failed the tenth grade as a whole and was not able to advance to eleventh
grade.
3
These declining grades reflected, in part, T.B.’s declining attendance. In his two
years at Friendly, T.B. recorded a total of 68.5 days of absence. More than 90% of these
absences were unexcused. Near the end of T.B.’s tenth grade year, he stopped attending
school entirely. On the days that T.B. did attend school, he regularly skipped class or was
tardy. In class, T.B. was often disruptive. He would ignore instructions, use his cell
phone, and talk to other students during class time. Even in classes he went on to fail,
though, T.B. generally performed adequately when he attended class and completed
assignments.
T.B.’s academic issues during this time did not go unnoticed. In October 2012,
shortly after T.B. started ninth grade, T.B.’s father emailed the guidance counselor at
Friendly to request that T.B. be tested for a disability or provided special education
services. PGCPS held an Individualized Education Program (IEP) meeting the following
month. The IEP team concluded that T.B.’s difficulties were not the result of any learning
or other disability. It therefore determined further assessment to be unnecessary, and
scheduled a parent-teacher conference for the following January. At the conference, T.B.
and his parents met with his teachers and other PGCPS staff to discuss his academic
progress and strategies to get him back on track.
When T.B.’s academic performance did not improve, T.B.’s parents continued to
request testing or special education services. Because the school district maintained that
no testing was necessary, T.B.’s parents retained Basics Group Practice, LLC, to perform
an Independent Educational Evaluation (IEE). Basics tested T.B. in May 2014 and
diagnosed him with moderate Attention Deficit Hyperactivity Disorder (ADHD), Specific
4
Learning Disorder with impairment in written expression, and unspecified depressive
disorder. T.B.’s father provided the Basics report to PGCPS shortly after receiving it in
August 2014.
T.B. transferred from Friendly to Central High School for his second year in tenth
grade. T.B.’s career at Central, however, was short-lived. He attended the school for only
the first few days of the fall semester before halting his attendance altogether. His parents
offered various explanations, among them noise in the school, asthma, and panic attacks.
Finding the school district insufficiently responsive to their requests for special
education, T.B.’s parents filed a Due Process Complaint with the Maryland Office of
Administrative Hearings on January 13, 2015. The complaint alleged that T.B. had been
denied a free appropriate public education and requested both compensatory education
and reimbursement for the Basics IEE.
While proceedings based on that complaint were ongoing, T.B.’s family and
PGCPS continued to negotiate appropriate education for T.B. At a January 26, 2015, IEP
meeting, T.B.’s parents explained that T.B.’s anxiety had prevented him from attending
school in the fall. Following that meeting, the IEP team determined that T.B. should
receive additional testing to determine his eligibility for special education.
A PGCPS school psychologist conducted the testing and concluded in late
February that T.B. had severe problems with anxiety and was eligible for special
education. Following this recommendation, an IEP team concluded in March that T.B.
was eligible for special education services on the basis of an emotional disability—
namely, anxiety that prevented him from regularly attending school. The team also
5
agreed to offer T.B.’s parents five fee-waived credit recovery courses as compensatory
services. In April 2015, following additional IEP meetings, an IEP team recommended a
specialized program at Dr. Henry A. Wise, Jr. High School. T.B. never attended the Wise
program.
Meanwhile, T.B.’s Due Process Complaint progressed. The matter was assigned to
a Maryland administrative law judge (ALJ), who conducted a 6-day hearing that involved
21 witnesses and 95 exhibits. The ALJ ultimately found that PGCPS had committed a
procedural violation of the IDEA in failing to conduct testing in response to T.B.’s
parents’ requests, but that this violation “did not actually interfere with the provision of a
free appropriate public education.” J.A. 31 (quoting DiBuo ex rel. DiBuo v. Bd. of Educ.
of Worcester Cty., 309 F.3d 184, 190 (4th Cir. 2002)). Specifically, the ALJ concluded
that “no evidence supports the view that, had testing been promptly provided, the Student
would have regularly attended school.” J.A. 31. Instead, T.B. “simply [did] not want to
go to school. This is the case regardless of the school, the teachers, the courses, the
programs, the placement, the accommodations, the class size, or the compensatory
services offered.” J.A. 31. The ALJ therefore found that T.B. was “not entitled to
compensatory education at public expense.” J.A. 52. The ALJ also found that T.B. was
not entitled to reimbursement for the Basics IEE.
T.B.’s parents filed a complaint in district court under 20 U.S.C. § 1415(i)(2)
seeking reversal of the ALJ’s decision, an award of compensatory education, and
reimbursement for the Basics IEE. While T.B. ultimately prevailed on the IEE
reimbursement question, the district court otherwise affirmed the ALJ’s decision and
6
granted summary judgment to the school district. It agreed that the “finding that T.B.
would not have attended school even if he had been tested” supported the “conclusion
that the procedural failure to respond to [T.B.’s parents’] request for an evaluation did not
actually interfere with the provision of” a free appropriate public education. J.A. 168. The
district court accordingly affirmed the ALJ’s denial of compensatory education. T.B. now
appeals to this court. 1
II.
A.
The IDEA was enacted “to throw open the doors of public education and heed the
needs” of students with disabilities who had for too long been “either completely ignored
or improperly serviced by American public schools.” In re Conklin, 946 F.2d 306, 307
(4th Cir. 1991). 2 It operates by way of a simple exchange: the federal government
provides funding to the states, who must in return have “in effect policies and procedures
to ensure” that every child with a disability has the opportunity to receive a “free
appropriate public education” (FAPE). 20 U.S.C. § 1412(a).
1
The ALJ and district court also both addressed the statute of limitations in this
case. Because no party has appealed the district court’s decision on that issue, we do not
consider the statute of limitations arguments made by amici.
2
Early cases refer to the Act by its original title: the “Education of the
Handicapped Act.” Its title was changed to the “Individuals with Disabilities Education
Act” in 1990. Education of the Handicapped Act Amendments of 1990, Pub. L. No. 101-
476, § 901(a)(1), 104 Stat. 1103, 1141-42 (codified as amended at 20 U.S.C. § 1400(a)).
For simplicity, we refer to the Act by its contemporary title throughout.
7
Under the IDEA, a FAPE is defined to include “special education and related
services” that are provided “without charge” to the child’s family and that “meet the
standards of the State educational agency.” Id. § 1401(9). A FAPE will also involve an
“individualized education program” (IEP) for each eligible child. Id. The Supreme Court
has described the IEP as “the centerpiece of the statute’s education delivery system for
disabled children.” Honig v. Doe, 484 U.S. 305, 311 (1988). It must include “a statement
of the child’s present levels of academic achievement and functional performance,” “a
statement of measurable annual goals,” and “a statement of the special education and
related services and supplementary aids and services . . . to be provided to the child.” 20
U.S.C. § 1414(d)(1)(A)(i). To meet the IDEA’s “substantive obligation,” the school must
offer an IEP that is “reasonably calculated to enable a child to make progress appropriate
in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.
Ct. 988, 999 (2017).
In addition to providing an IEP for all students known to have disabilities, states
receiving IDEA funding have an ongoing obligation to ensure that “[a]ll children with
disabilities . . . who are in need of special education and related services[] are identified,
located, and evaluated.” 20 U.S.C. § 1412(a)(3)(A). This obligation, known as Child
Find, extends to all “[c]hildren who are suspected of being a child with a disability . . .
and in need of special education.” 34 C.F.R. § 300.111(c). Failure to meet this obligation
“may constitute a procedural violation of the IDEA.” D.K. v. Abington Sch. Dist., 696
F.3d 233, 249 (3d Cir. 2012). But such a procedural violation “will be ‘actionable’ only
‘if [it] affected the student’s substantive rights.’” Leggett v. District of Columbia, 793
8
F.3d 59, 67 (D.C. Cir. 2015) (quoting Lesesne ex rel. B.F. v. District of Columbia, 447
F.3d 828, 832, 834 (D.C. Cir. 2006)).
B.
The IDEA rightly “recogni[zes] that federal courts cannot run local schools.”
Hartmann v. Loudoun Cty. Bd. of Educ., 118 F.3d 996, 1001 (4th Cir. 1997). Complaints
under the IDEA thus do not begin their journey in the federal courts. Instead, parents who
disagree with a school district’s educational plan for their child first have the opportunity
“to participate in meetings with respect to the identification, evaluation, and educational
placement of the child,” as well as an “opportunity for mediation” with the school
district. 20 U.S.C. § 1415(b). If the parents remain unsatisfied, they are entitled to “an
impartial due process hearing, which shall be conducted by the State [or local]
educational agency.” Id. § 1415(f)(1)(A).
In light of the IDEA’s manifest preference for local control of schools, we apply a
“modified de novo review” to a state ALJ’s decision in an IDEA case, “giving due weight
to the underlying administrative proceedings.” M.L. by Leiman v. Smith, 867 F.3d 487,
493 (4th Cir. 2017) (quoting O.S. v. Fairfax Cty. Sch. Bd., 804 F.3d 354, 360 (4th Cir.
2015)). We determine independently whether the school district violated the IDEA but
consider the ALJ’s factual findings to be “prima facie correct.” O.S., 804 F.3d at 360
(quoting Lorsson v. Chapel Hill-Carrboro Bd. of Educ., 773 F.3d 509, 517 (4th Cir.
2014)).
Performed correctly, this sort of review ensures that courts do not “substitute their
own notions of sound educational policy for those of the school authorities which they
9
review.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206
(1982). Indeed, ALJs within state and local educational agencies are themselves expected
to “give appropriate deference to the decisions of professional educators.” M.M. ex rel.
D.M. v. Sch. Dist. of Greenville Cty., 303 F.3d 523, 533 (4th Cir. 2002). The IDEA thus
serves to set standards for the education of children with disabilities without displacing
the traditional notion that primary responsibility for education belongs to state and local
school boards, educators, parents, and students themselves.
III.
We first consider whether PGCPS violated the IDEA in this case. Both the ALJ
and district court concluded that PGCPS committed a procedural IDEA violation, and we
agree. While our concurring friend suggests that the ALJ and majority place all the blame
in this case on T.B. and his parents and absolve PGCPS of all responsibility, Concurring
Op. at 28, that is simply incorrect.
The ALJ ultimately concluded that PGCPS had violated the IDEA by “failing to
respond to the Parents’ requests and conduct a timely evaluation” of whether T.B. was
eligible for special education or related services. J.A. 31. The ALJ found that T.B.’s
parents had made and PGCPS had ignored “repeated requests for evaluation” throughout
T.B.’s ninth- and tenth-grade years. J.A. 30. Indeed, in October of T.B.’s ninth grade
year, his father wrote an e-mail to a PGCPS guidance counselor with the subject line:
“Having my son get tested.” J.A. 1899. E-mails to teachers also demonstrated that T.B.’s
father wanted him to get tested, noting that he was “willing to take it as far as [he] can to
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get [T.B.] the help he need[s].” J.A. 1864. As the ALJ concluded, “[n]ot all of the
requests . . . were clear, articulate requests for testing, but some were.” J.A. 30.
Both the IDEA itself and the implementing Maryland laws permit parents to refer
their children for a special education assessment. See 20 U.S.C. § 1414(a)(1)(B); Md.
Code Regs. 13A.05.01.04(A)(2)(a). When such a referral is made, these state and federal
laws dictate that certain procedures must be followed. In this case, the school district
provided no testing in response to T.B.’s parents’ requests for an evaluation until after
they had filed a formal complaint. The school district declined to test even after T.B.’s
parents supplied it with the results of the Basics IEE, which diagnosed T.B. with
qualifying disabilities. As the ALJ found, “the failure of PGCPS to timely respond to the
Parents’ requests for evaluation is inexcusable.” J.A. 31.
This is not to say, however, that T.B. was neglected throughout his time at
PGCPS. The ALJ found that, on multiple occasions, T.B.’s teachers had been in touch
with his parents regarding his academic shortcomings, but that such attempts at a
dialogue were often rebuffed. Ms. Eller, T.B.’s tenth-grade English teacher, testified that
she had “made contact with” T.B.’s parents and “had also requested a face-to-face
meeting.” J.A. 1142. But that meeting never happened. Ms. Deskin, T.B.’s tenth-grade
Art teacher, testified that she wrote T.B.’s father to “inform him that this student was in
danger of failing that quarter.” J.A. 1117. But she received no response. Ms. Wilkinson,
T.B.’s ninth-grade English teacher, testified that she “sent letters home by [T.B.] for his
parents regarding his work.” J.A. 1084. But instead of responding to her concerns, T.B.’s
parents accused her of “picking on him.” Id.
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Individual educators in this case attempted to promote T.B.’s academic progress.
But the ALJ’s finding that the school district as a whole failed to timely respond to T.B.’s
parents’ requests for an evaluation is based on a 6-day hearing and extensive evidence.
We, like the district court, see no reason to disturb it.
IV.
The fact of a procedural IDEA violation does not necessarily entitle T.B. to relief,
however. To obtain the compensatory education he seeks, T.B. must show that this defect
in the process envisioned by the IDEA had an adverse effect on his education.
A.
A procedural violation of the IDEA may not serve as the basis for recovery unless
it “resulted in the loss of an educational opportunity for the disabled child.” M.M., 303
F.3d at 533. A “‘mere technical contravention of the IDEA’” that did not “actually
interfere with the provision of a FAPE” is not enough. DiBuo, 309 F.3d at 190 (quoting
M.M., 303 F.3d at 533). Rather, the procedural violation must have caused substantive
harm. Specifically, the prospect of recovery for a procedural violation of the IDEA
depends on whether the student’s disability resulted in the loss of a FAPE.
Thus, this court has held procedural violations to be harmless where the student
nonetheless received an IEP and achieved reasonable educational progress. See Burke
Cty. Bd. of Educ. v. Denton, 895 F.2d 973, 982 (4th Cir. 1990) (concluding that a student
was not entitled to compensatory education where “the procedural faults committed by
the [school district] . . . did not cause [the student] to lose any educational opportunity”);
Tice v. Botetourt Cty. Sch. Bd., 908 F.2d 1200, 1207 (4th Cir. 1990) (denying
12
reimbursement for special education services where there was no allegation that
“violations of the evaluation time limits had any detrimental effect on the substance of
th[e] IEP”). We have also found that a school district’s failure to properly finalize a
student’s IEP was harmless because the parents had refused to cooperate with the school
and the student suffered no educational harm. M.M., 303 F.3d at 535 (agreeing with the
district court that “it would be improper to hold [the] School District liable for the
procedural violation of failing to have the IEP completed and signed, when that failure
was the result of [the parents’] lack of cooperation” (alterations in original)). We have
also explained that “refusal to consider . . . private evaluations” of a student is a harmless
procedural violation if the student was not actually entitled to additional services. DiBuo,
309 F.3d at 191.
Other courts have taken a similar approach to causation and harmlessness. See,
e.g., Alvin Indep. Sch. Dist. v. A.D. ex rel. Patricia F., 503 F.3d 378, 384 (5th Cir. 2007)
(declining to address potential procedural violations after concluding that the student was
ineligible for special education services in any event); Lesesne, 447 F.3d at 834 (“[A]n
IDEA claim is viable only if th[e] procedural violations affected the student’s substantive
rights.”); C.M. v. Bd. of Educ. of Union Cty. Reg’l High Sch. Dist., 128 F. App’x 876,
881-82 (3d Cir. 2005) (per curiam); Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618,
625 (6th Cir. 1990), superseded by regulation on other grounds, 34 C.F.R. § 300.116;
Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994-95 (1st Cir. 1990).
Of course, the question of causation is not always an easy one. The premise of the
IDEA is that struggling students sometimes owe their difficulties to a disability that
13
special education services could remedy. But not always. Not every student who falters
academically owes his difficulties to a disability. Academic challenges may reflect
“personal losses,” “family stressors,” or “unwilling[ness] to accept responsibility” on the
part of the student. D.G. v. Flour Bluff Indep. Sch. Dist., 481 F. App’x 887, 892 (5th Cir.
2012) (per curiam). They might simply reflect that a child is “going through a difficult
time in her life.” J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 663
(S.D.N.Y. 2011). Therefore, schools are not required “to designate every child who is
having any academic difficulties as a special education student.” A.P. ex rel. Powers v.
Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 (D. Conn. 2008), aff’d, 370 F. App’x
202 (2d Cir. 2010).
These alternative explanations for academic difficulties make it imperative to
identify those students whom “special education and related services” would assist and
those whom they would not. Because academic struggles may arise from such a vast
array of circumstances, determining whether intervention would help a student achieve a
FAPE, and what type and degree of intervention would do so, is necessarily a “fact-
intensive exercise.” Endrew F., 137 S. Ct. at 999.
It is axiomatic in this sort of inquiry that deference is due to the trier of fact. See
Doyle v. Arlington Cty. Sch. Bd., 953 F.2d 100, 105 (4th Cir. 1991) (“[F]indings of fact
by the hearing officers in cases such as these are entitled to be considered prima facie
correct.”). Faced with thorny counterfactuals, it is the duty of the fact-finder to carefully
weigh the evidence to discern whether a procedural violation has in fact adversely
affected a student’s education. Giving due deference to such determinations recognizes
14
that “the primary responsibility for developing IEPs belongs to state and local agencies in
cooperation with the parents, not the courts.” Spielberg v. Henrico Cty. Pub. Sch., 853
F.2d 256, 258 (4th Cir. 1988). It also recognizes that ALJs are typically “in a far superior
position to evaluate . . . witness testimony” than are reviewing courts. A.B. ex rel. D.B. v.
Lawson, 354 F.3d 315, 329 n.9 (4th Cir. 2004). Such evaluations almost inevitably rely
on “various cues that . . . are lost on an appellate court later sifting through a paper
record.” Cooper v. Harris, 137 S. Ct. 1455, 1474 (2017). This is in part why, throughout
the federal system, “deference to the original finder of fact” is “the rule, not the
exception.” Anderson v. City of Bessemer City, 470 U.S. 564, 574-75 (1985).
All of this, of course, assumes that the trier of fact did a conscientious job with the
case. And as shown below, the ALJ’s review here was anything but cursory. Indeed, he
went out of his way to exhaustively determine whether there was any scenario in which
special education would have been of any assistance to T.B. within the ambit of the
IDEA.
B.
The ALJ in this case concluded that “PGCPS[’s] failure to promptly schedule
testing in this case did not establish a failure to provide [a] FAPE” and that therefore T.B.
could not recover under the IDEA. J.A. 31. The ALJ described his reasoning as “simple”:
“the entirety of the record before me establishes that the Student simply does not want to
go to school. This is the case regardless of the school, the teachers, the courses, the
programs, the placement, the accommodations, the class size, or the compensatory
services offered.” Id. In other words, no type or amount of special education services
15
would have helped T.B. achieve a FAPE. This conclusion was reached following a 6-day,
21-witness, 95-exhibit hearing, and represents the culmination of 67 specific factual
findings.
After reviewing the extensive record in this case, the ALJ found “no evidence
support[ing] the view that, had testing been promptly provided, the Student would have
regularly attended school.” Id. All of the testimony—that marshalled by the defendant
and that marshalled by the plaintiff—pointed to one thing: that T.B.’s problems were
rooted in his refusal to go to class or attend school.
This view was vindicated when T.B. failed even to attend the transition program at
Wise recommended by his IEP team. That program “is a self-contained program within
the Wise building for students with emotional disabilities.” J.A. 21. Classes “typically
have 8-12 students” and are capped at 12 students. Id. The ALJ found that this program
“would provide the Student with a FAPE.” J.A. 22. At the meeting where this program
was recommended, T.B.’s parents participated and “were provided with all required
procedural safeguards and documentation.” J.A. 21. T.B. was, albeit belatedly, offered
the academic services he sought, yet he chose not to take advantage of them. T.B. “has
never attended the Transition Program at Wise,” and his parents “have never told PGCPS
why” this is the case. Id. As the ALJ reasoned, all this therefore “tends to corroborate the
view that either the Student, or his Parents, or both, are not interested in the Student
receiving academic services from PGCPS.” J.A. 49.
It was apparent that T.B. had in the past gotten—and was capable of again
earning—decent grades if he applied himself. For example, at the January 2013 parent-
16
teacher conference, T.B.’s teachers explained that T.B. did well enough on his completed
assignments, but that the real difficulty was getting him to turn in the assignments. When
asked why he was not doing his assignments, T.B. “just said he wasn’t trying.” J.A. 968-
69.
T.B.’s widely variable grades, even within single courses, also reflect that he often
failed to perform in settings where he was capable of performing well. The fluctuation is
remarkable: In ninth-grade U.S. History, T.B. received a grade of 43 in the first quarter
but 74 in the third quarter. J.A. 1873. In his ninth-grade Integrating the Sciences course,
he received a high of 81 in the first quarter and a low of 45 in the fourth quarter. Id.
Variation over the course of T.B.’s tenth-grade year was even more extreme: T.B.’s first
quarter English grades were 83 and 79, slipping to 17 and 29 by third quarter, and all the
way to 0 and 0 by fourth quarter. J.A. 1834.
Consistent with this evidence, “[v]irtually every teacher . . . testified that the
Student was capable of performing satisfactory work but that his frequent absences and
failure to do assignments necessarily led to poor or failing grades.” J.A. 36. Indeed, the
teachers’ testimony speaks for itself:
• T.B.’s guidance counselor testified that when T.B. “chose to work, he could
perform. When he chose not to work, he didn’t perform.” J.A. 1312.
• T.B.’s tenth-grade Foundations of Technology teacher testified that T.B. “was
capable of doing the work required of him” and, in fact, “did well on a number of
tests.” J.A. 38. The problem was that T.B. “simply didn’t do homework and
showed little effort or motivation.” Id.
17
• T.B.’s ninth-grade English teacher testified that when T.B. “wanted to do work,
his work was satisfactory.” Id. She also testified that he “failed every quarter
because he simply did not do the work.” Id.
• T.B.’s tenth-grade Spanish teacher testified that a student cannot pass his class “if
he doesn’t do homework, has irregular attendance, doesn’t pay attention in class,
and/or does not show any motivation or desire to learn.” J.A. 37.
• T.B.’s tenth-grade Art teacher testified that T.B. “was capable” and that “the work
[he] did turn in was satisfactory.” J.A. 38-39, 1123. She also testified that “she
gave [T.B.] an opportunity to turn in work late when he was absent, but that he
never did so.” J.A. 39.
• T.B.’s tenth-grade English teacher testified that T.B. “was capable of doing the
work required of the course” but that he “made little or no effort” and was “absent
. . . a total of 46 times and was also tardy on numerous occasions.” Id.
These teachers were intimately familiar with T.B. and his work product. They had
interacted with him in class, observed his work habits, and evaluated the assignments he
submitted. Yet they almost universally testified that “there was no reason to suspect that
the Student suffered from a learning disability or any other condition mandating special
education services.” J.A. 36-37. This is true of not only the teachers the school district
called but also the teachers T.B. called. Most, if not all, of the teachers who testified had
recommended other students for special education evaluation in other cases. But in T.B.’s
case, their professional judgment and experience led them to the opposite conclusion.
Like the ALJ, this court is rightfully “reluctant to second-guess” the educational
18
decisions of professionals with first-hand experience not only with the student in this
case, but with a wide variety of other students. M.M., 303 F.3d at 532; see also Cty. Sch.
Bd. of Henrico Cty. v. Z.P. ex rel. R.P., 399 F.3d 298, 307 (4th Cir. 2005) (“[A]t all levels
of an IDEA proceeding, the opinions of the professional educators are entitled to
respect.”).
The educational professionals who interacted with T.B. were nearly unanimous in
their conclusion: T.B. had no disability that special education would have remedied; he
was simply unwilling to take his education seriously. And routinely, this disinterest
manifested itself in outright contempt. T.B.’s teachers reported that he would talk, text,
play cell phone games, and otherwise cause disruptions during class. Ms. Eller testified
that T.B. “need[ed] to be told multiple times per day to do his work and to stop talking
with other students” and “routinely ha[d] to be told to put his phone away.” J.A. 1136.
Ms. Wilkinson testified that T.B. simply “wouldn’t follow the rules.” J.A. 1090. These
behaviors detracted not only from his own education but also from the education of his
classmates, and required frequent intervention from teachers. When not actively
disruptive, T.B. would occasionally sleep through class. J.A. 1336.
Perhaps most tellingly, his disdain for schooling at times ventured into pure
meanness: T.B. ridiculed his tenth-grade English teacher, who was a transgender woman.
He would refer to her as “Mr.,” “sir,” “he,” and “him,” even after she pleaded with him to
respect her gender preference. J.A. 1139.
In contrast to the consistent refrain from T.B.’s teachers that his academic
challenges stemmed from his lack of effort, the contrary testimony T.B.’s father offered
19
“was frequently shifting or contradicted by other testimony and documentary evidence.”
J.A. 41. The ALJ therefore discounted his testimony as “unreliable.” Id. This type of
credibility determination by the fact-finder is the type of conclusion to which we afford
the greatest deference, and it is amply supported by the record here.
The ALJ found much of the plaintiff’s other evidence similarly inconsistent or
incredible. The Basics report was unpersuasive because “the qualifications and training
(and, indeed, the identi[t]y) of the person administering the test [were] uncertain,”
because “the author or authors of the report were not present to testify and therefore were
not subject to cross-examination,” and because the “Basics documents contradict each
other” with respect to T.B.’s diagnosis. J.A. 42, 47. Finally, the ALJ noted that the
authors of the Basics report “had no contact with any of [T.B.’s] teachers or other PGCPS
educators.” J.A. 43.
The plaintiff’s expert opinions, too, were “in a jumble.” J.A. 47. In contrast to
T.B.’s teachers, each expert had very limited contact with T.B., and they offered differing
diagnoses. One expert concluded that “T.B. suffers from situational depression and
anxiety” rather than a learning disability. J.A. 47-48. Another “adopt[ed] the views of the
Basics author” without making clear which of the contradictory Basics documents she
agreed with. Id.
In the face of such a consistent conclusion from the educational professionals who
best knew T.B. and such an inconsistent message from the plaintiff’s evidence, it is no
wonder the ALJ concluded that “the overwhelming evidence . . . establishes that the
Student was capable of doing satisfactory work when he wanted to and that his poor
20
performance was due to the fact that he failed to attend an almost preposterous number of
classes and rarely did either homework or class work.” J.A. 36. Testimony from teachers,
testimony from parents, and testimony from experts can all be effective to demonstrate a
substantive violation of the IDEA. Yet many of the witnesses T.B. ultimately called
turned out to be effective witnesses for PGCPS.
T.B. has given us no reason to disturb the well-reasoned conclusions of the ALJ
and the district court. It is unfortunate that T.B. did not do better in PGCPS. But the fault
does not lie with the school district. Teachers tried repeatedly to get T.B. to take even a
modest interest in his education, and their efforts just as repeatedly came up short.
Holding the school district liable for regrettable results in every case would simply
deplete its resources without improving outcomes for anyone, a result Congress could not
have intended.
V.
School systems have obligations under the IDEA, and PGCPS in this case
defaulted in failing to promptly evaluate T.B. On the other hand, the IDEA is focused
precisely and humanely on ensuring that students with disabilities are not left behind by
their schools. In this case, as the ALJ found, the record is devoid of any credible evidence
that an unaddressed disability caused T.B.’s educational difficulties and replete with
credible evidence that T.B. himself was the cause.
Every child possesses a gift within, something unique that he or she can contribute
to society. Many times special education is needed to nurture that gift. But there are times
too when students need to assist educators in developing their own inner capabilities.
21
Poor motivation and poor performance do not always and invariably lie at the feet of
teachers and schools. Students themselves also have to try.
Based on the foregoing, the judgment of the district court is
AFFIRMED.
22
GREGORY, Chief Judge, concurring in the judgment only:
Although I join the Court’s judgment, I do so solely on the grounds that the
plaintiffs failed to present sufficient evidence at the due process hearing to establish that
T.B. was denied FAPE. I write separately to express my view that I cannot agree with
the majority’s characterization in its opinion of either T.B. and his parents or PGCPS and
its employees. While I am constrained to conclude that the plaintiffs have failed to
demonstrate that the school division’s egregious child find violations actually interfered
with the provision of FAPE, I cannot agree that the blame lies with T.B. and his parents,
and that PGCPS should bear little or no responsibility for a student in its care or for the
unfortunate outcome of this case. Accordingly, I concur in the judgment only.
I.
T.B. first showed signs of academic difficulty in elementary school, where he was
already performing below grade level in both reading and math. By middle school, his
challenges were evident, as his grades had fallen to Cs and Ds and he failed a class for
the year. T.B.’s father sounded the alarm in October of his freshman year of high school,
where T.B.’s grades had continued their steady decline. He informed T.B.’s guidance
counselor that T.B. was “having trouble remembering things” and was “struggling to
process the information in class.” He asked whether “there is a program or some kind of
23
test he could take. I want to help my son [sic] he need before it is too late and he fall
behind.” 1 J.A. 1899.
PGCPS unilaterally scheduled an IEP meeting on a date when only T.B.’s mother
could attend, despite the requirement that the meeting be scheduled at “a mutually agreed
on time and place.” 34 C.F.R. § 300.322(a)(2). See also Md. Code Regs.
13A.05.01.07(D)(1). PGCPS also failed to include, as required by 34 C.F.R.
§ 300.321(a)(2) and Reg. 13A.05.01.07(A)(1)(b), any regular education teachers at the
meeting even though he was receiving full-time regular education instruction. 2 Not
surprisingly, the IEP team concluded, without testing T.B., that he was “proficient” and
did not have a disability, and that no further assessment was necessary. No other
academic supports were offered or provided.
When T.B.’s academic performance did not improve, and after more desperate
pleas by T.B.’s parents for testing and special education services for their son, 3 T.B.’s
1
This was T.B.’s parents’ first request for an evaluation. Over the next few years,
they made over a dozen additional requests, in writing, for testing or special education
services. J.A. 1805-11, 1816, 1818, 1822, 1827, 1833, 1864, 1871, 1881, 1887, 1899,
2110, 2119.
2
Unfortunately, this violation was not raised in the due process complaint, thus it
was not considered by the ALJ or the district court, J.A. 16, and is not before this Court
for consideration on appeal.
3
T.B.’s father wrote his son’s guidance counselor on January 4, 2013:
I wanted to see if there is [sic] any programs that can help him in
school or after school. He is struggling very badly and I asked him to go to
his teacher after class to get further assistance. . . . He is getting
discourage, [sic] because if he don’t [sic] understand the concept and it [sic]
not being explained then he will be lost . . . . I am open to any suggestions
that you can recommend for my son, we are trying to work with him at
(Continued)
24
guidance counselor responded that T.B.’s records did not indicate a need for special
education testing, and that he could not be reassigned to smaller special education classes
as he was appropriately placed in regular education classes. By the end of ninth grade,
T.B. failed four core subjects for the year and received a D in History. J.A. 1873. T.B.
was promoted to, and then repeated the tenth grade, but his attendance was poor due to
his academic and emotional difficulties. Even after T.B.’s parents provided PGCPS a
copy of an IEE indicating that T.B. had a learning disability, PGCPS did nothing. It was
only after his parents filed a due process complaint that PGCPS convened an IEP meeting
to consider the IEE it had received at the beginning of the school year, and to pursue
testing of T.B. PGCPS’s testing found that T.B. had average intellectual abilities, but
home. He understands then but when in class it’s something different. I’m
trying to save my son before he give [sic] up. (emphasis added).
J.A. 1887.
Just six days later, he wrote again:
Is there way we can move [T.B.] to a smaller class? He may need to
be moved from a regular class to [a] smaller group. He is having trouble
keeping up in the classroom, a lot of his teachers are agreeing with me
about my son. He don’t [sic] understand the work and he may need to be
put in [a] special classroom. Mrs. Dent, I wrote a while back about getting
my son tested because he was having trouble remembering things and
keeping up. When [my] wife came to the meeting on November 7th, they
didn’t know what to do. They looked at his transcripts and said he was
proficient, and they was [sic] suppose [sic] to reschedule the meeting.
Nothing happened [and] he didn’t get tested or we haven’t heard anything
else.
If we have to go to special education classes I looking [sic] for a
solutions [sic]? Do [sic] Friendly have smaller classes where he can be
changed too [sic]? I was told to come to you as far as helping my son.
J.A. 1881.
25
was from four to seven years behind his chronological age/grade level in several
academic areas. Yet the IEP team found him eligible for special education services only
in the category of emotional disability. PGCPS placed T.B. in a self-contained program
for students with emotional disabilities, but T.B. never attended the program and his
parents never informed the school district why he did not.
II.
I must take issue with the majority’s attempt to place blame on T.B.’s parents for
the regrettable outcome of his educational experience in PGCPS. The majority, in stating
that the teachers’ “attempts at a dialogue were often rebuffed,” Maj. Op. 11, strongly
suggests that T.B.’s parents displayed only a halfhearted interest in T.B.’s education, and
ignored teachers’ concerns about T.B.’s performance. A review of the entire record does
not support such a suggestion. T.B., Sr. was a father desperate to help his son. He
understood that his son stood at an academic crossroads where frustration and anxiety
could cause him to give up on his education. Despite PGCPS’s determination in October
2012 that T.B. was “proficient,” and thus no testing was necessary, T.B., Sr. continued to
advocate for his son. He regularly advised teachers, counselors and PGCPS
administrators for over two years that he was aware of T.B.’s struggles, describing in
detail problems with comprehension and focus that he believed were the result of a
learning disability. He both initiated and responded to communications from teachers
about absences, missed assignments, and makeup work. He also repeatedly asked for
26
advice about available programs and strategies to help T.B. with his learning challenges. 4
T.B., Sr. continued to seek testing and T.B.’s placement in a classroom setting conducive
to his educational needs and learning style, but his pleas fell on deaf ears. 5 By the time
PGCPS offered T.B. any type of IEP, he was several years behind academically.
4
On November 20, 2013, T.B., Sr. emailed, “[I]s there anything I can do to help
my son improve in your class, I see he [sic] struggling. I think he may have trouble
comprehending with the procedure on how to do what is asked of him.” J.A. 2110. On
the same date, he wrote another teacher asking the same question, but adding, “I have
tried to contact you in the pass [sic] but no response I am trying to help my son.” J.A.
1871.
He emailed yet another teacher on February 10, 2014, “This year has been very
trying for [T.B] and we are trying to do our best to help him focus in all of your classes.”
J.A. 1868. On the same date, he emailed a teacher a second time, stating that they “sent
T.B. to the doctor on January 20 to see his pediatrician. They wouldn’t do a KAT [sic]
Scan on him they said he need to be tested first by the school. No one is trying to set this
up for us. I am willing to go as far as I have to so I will keep you informed.” J.A. 1867.
On March 6, 2014, T.B., Sr. wrote another teacher. “For your FYI we are trying
to get my son additional help with his learning, because we believe he has a learning
disability. No one wants to test him to see, I am working on this matter and I am willing
to take it as far as I can to get him the help he need. I will go over what assignments he
has missed and try my best to get it to you.” J.A. 1864.
5
On March 10, 2014, T.B., Sr. contacted the school division’s administrative
offices:
I writing this in concern for my son . . . . My wife and I has [sic]
seen some changes in my [son’s] learning ability and we have requested
for him to be tested . . . . This request has been ignored and my son is
falling behind because he don’t [sic] understand what he is doing. He
writes certain letters backwards, he has a hard time remembering things
which causes him to get frustrated. All I heard . . . [is] that he is
proficient, they are missing the signs. We took him to his Pediatrician and
he said the school needed to test him. Teachers . . . has [sic] labeled my
son as not wanting to do anything, but not realizing he is in trouble. This
has [sic] went on for 2 years now . . . .
I would like to ask for special transfer to a school where he can be
properly tested and to get the attention he need [sic] to better himself. To
(Continued)
27
I submit that it was PGCPS and its employees, not T.B.’s parents, that displayed a
lackadaisical attitude toward T.B.’s education. The school division and its administrators
seemingly had inadequate concern for his academic success. Based on a determination
made at a procedurally deficient IEP meeting, PGCPS refused to test T.B., even after it
was presented with conflicting IEE testing results. PGCPS failed to offer, or even to
suggest, to T.B. and his parents educational resources typically offered to regular
education students to help them succeed in the classroom. Sadly, the majority places
blame on T.B. and his parents, and absolves PGCPS of responsibility.
III.
While these facts clearly demonstrate the abysmal failure of PGCPS to meet its
child find obligations, this Court’s holding in DiBuo ex rel. DiBuo v. Board of Education
of Worcester County, 309 F.3d 184 (4th Cir. 2002), requires that plaintiffs demonstrate
that the violation “actually interfere[d] with the provision of a free appropriate public
education.” Id. at 190. The ALJ concluded, as the majority does here, that “[n]o type or
amount of special education services would have helped T.B. to achieve a FAPE”
because his problems were “rooted in his refusal to go to class or attend school.” Maj.
Op. 16. The easy explanation for T.B.’s educational demise is that he did not attend
take him out of this negative environment before something happens to
him.
J.A. 2119.
28
school regularly, and when he did, he did not put forth his best effort. The unfortunate
reality of this case, however, is that the evidence presented at the due process hearing
fails to answer the obvious question: “Why?” In the special education context, the
answer is rarely that a student “simply does not want to go to school.” J.A. 31. While
one could certainly argue that the ALJ’s conclusion that T.B. would not have come to
school even with an appropriate IEP was speculative, the plaintiffs’ evidence offered
nothing to counter it.
The evidence presented by the plaintiffs failed to establish that T.B. was denied
FAPE. Educational experts who could have supported the IEE’s finding that T.B. had a
previously undiagnosed learning disability, and established a link between the long-term
denial of special education services and T.B.’s failure to attend school due to frustration
and anxiety, either failed to provide helpful testimony or did not testify at all. No witness
challenged in any meaningful way PGCPS’s self-serving conclusion that its failures had
no impact on T.B.’s lack of academic progress. No evidence effectively refuted the
conclusion that T.B. did not have a learning disability, or demonstrated that T.B.’s
frustration at school led to his emotional problems and school avoidance. No one
testified as to why T.B. did not attend the self-contained program or otherwise accept the
much delayed compensatory services offered to him. Based on the record here, I must
concur with the judgment.
I reach this conclusion solely on the basis of the insufficiency of legal proof in
support of the claim presented to and considered by the ALJ. It is in no wise based upon
blaming T.B. or his parents. The proof of T.B.’s parents’ love, support, and advocacy for
29
him is clearly demonstrated in this record. His father repeatedly made clarion cries
seeking help for his son. The majority, however, concludes that the blame lies at T.B.’s
feet. T.B., Sr. only wanted the school district’s help to save his son before he gave up.
Carl Hasen, former Superintendent of Schools in Washington, D.C., said “[e]ducation is a
difficult enough process under any condition because educational effort is primarily an
expression of hope on the part of the student.” Sometimes a student “is asked to have
faith and confidence which at the moment he is in school seems unreasonable and
unjustifiable.” T.B. has been denied a reason to have hope.
30