E. L. Ex Rel. Lorsson v. Chapel Hill-Carrboro Board of Education

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2330
E. L., by and through her parents, Gina Lorsson and Devin
Lorsson,
Plaintiff – Appellant,
v.
CHAPEL HILL−CARRBORO BOARD OF EDUCATION,
Defendant – Appellee.
−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−
NORTH CAROLINA SCHOOL BOARDS ASSOCIATION,
Amicus Supporting Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:12-cv-00029-TDS-JEP)
Argued: September 16, 2014 Decided: December 3, 2014
Before DUNCAN, AGEE, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Duncan and Judge Agee joined.
ARGUED: Robert Christopher Ekstrand, EKSTRAND & EKSTRAND LLP,
Durham, North Carolina, for Appellant. Kenneth Alexander Soo,
THARRINGTON SMITH LLP, Raleigh, North Carolina, for Appellee.
ON BRIEF: Stefanie A. Smith, EKSTRAND & EKSTRAND LLP, Durham,
North Carolina, for Appellant. Colin A. Shive, THARRINGTON
SMITH LLP, Raleigh, North Carolina, for Appellee. Allison B.
Schafer, Christine T. Scheef, NORTH CAROLINA SCHOOL BOARDS
ASSOCIATION, Raleigh, North Carolina, for Amicus Supporting
Appellee.
2
DIAZ, Circuit Judge:
E.L. is a nine-year-old girl with autism. This appeal
arises out of her parents’ dissatisfaction with the special
education services provided to her by the Chapel Hill-Carrboro
Board of Education (“the school board”), and their
administrative complaint under the Individuals with Disabilities
Education Act (the “IDEA”), 20 U.S.C. § 1400 et seq.. An
administrative law judge determined that the school board
violated the IDEA by failing to provide E.L. required speech
therapy; however, in all other respects, the ALJ found her
special education program appropriate. On the school board’s
appeal, a state review officer reversed the ALJ’s conclusion
regarding E.L.’s speech therapy, determining that the school
board did not violate the IDEA.
In her civil action seeking judicial review of the
administrative proceeding, E.L. for the first time appealed the
ALJ’s conclusion that, except for its failure to provide
required speech therapy for parts of the 2008–09 and 2009-10
school years, the school board did not violate the IDEA.
Despite failing to contest the ALJ’s adverse decision before the
state review officer, E.L. contends that she properly exhausted
her administrative remedies under the IDEA. We conclude that
E.L. did not exhaust her administrative remedies and that the
3
school board did not violate the IDEA. We therefore affirm the
district court’s judgment.
I.
E.L. suffers from autism, which is compounded by complex
motor and speech disabilities, resulting in global developmental
delays. These significant disabilities led her parents to seek
early childhood intervention services from the school board.
The school board provided E.L. with an individualized education
program when she turned three years old, which placed her in the
partial-day preschool program at the University of North
Carolina’s Frank Porter Graham Child Development Institute (the
“Institute”).
E.L.’s individualized education program for the 2008–09
school year afforded her a range of services, including speech,
physical, and occupational therapy, all of which E.L. received
onsite at the Institute. E.L.’s 2009–10 program included a
split placement, with E.L. attending the Institute for two
partial days per week and The Mariposa School 1 for three partial
days per week. In March 2010, E.L.’s parents withdrew her from
1
Mariposa is a private school for children with autism. It
uses applied behavior analysis methods, including positive,
repetitive reinforcement of specific individual skills and
goals, to work one-on-one with each child.
4
the Institute entirely and enrolled her at Mariposa for all five
days.
Shortly thereafter, E.L., by and through her parents, filed
a petition in the North Carolina Office of Administrative
Hearings, alleging that the school board failed to provide E.L.
with the free appropriate public education required by the IDEA.
After a fourteen-day hearing, the parties submitted proposed
findings of fact and conclusions of law to the administrative
law judge. In his “Final Decision,” the ALJ sided with the
school board, with one exception. Specifically, the ALJ
concluded that during April and May 2009 and September through
December 2009, the school board did not provide E.L. the speech
therapy required by her individualized education program.
Consequently, the ALJ ordered the school board to reimburse
E.L.’s parents for sixty hours of speech therapy and related
transportation expenses.
The school board appealed the ALJ’s decision to the North
Carolina State Board of Education, which appointed a state-level
review officer to hear the appeal. E.L. did not appeal the
ALJ’s decision. The review officer reversed, concluding that
the school board had indeed provided E.L. with the required
therapy.
E.L. subsequently filed the underlying civil action,
seeking review of the administrative decision. E.L. claimed, as
5
she had before the ALJ, that the school board deprived her of a
free appropriate public education during the 2008–09, 2009–10,
and 2010–11 school years by not providing her with direct,
intensive, one-on-one instruction that used applied behavior
analysis methodology, as requested by her parents. On cross-
motions for summary judgment, the district court dismissed
E.L.’s claims, holding that because she did not raise them
before the state review officer, she failed to exhaust her
administrative remedies. As a result, whether the school board
provided E.L. with appropriate speech therapy remained the only
merits issue before the court. The court affirmed the review
officer’s decision as to that issue, concluding that the school
board provided E.L. appropriate speech therapy.
II.
A.
The IDEA requires states receiving federal education funds
to provide a “free appropriate public education” to all children
with disabilities. 20 U.S.C. § 1400(d)(1)(A) (2012). As part
of its procedural safeguards, the IDEA also requires states to
hold a due process hearing whenever a parent lodges a complaint
regarding services provided to his or her child. 20 U.S.C.
§ 1415(f). States may choose to conduct these hearings through
either the state educational agency or the local agency
6
“responsible for the education of the child.” Id.§ 1415(f)(1)(A); 34 C.F.R. § 300.511(b) (2014). Where the local
educational agency conducts the initial hearing, the IDEA
provides a right of review to the state agency. 20 U.S.C.
§ 1415(g).
In North Carolina, ALJs conduct the due process hearings
required by the IDEA. The North Carolina Office of
Administrative Hearings (“OAH”) appoints these ALJs through a
memorandum of agreement with the State Board. N.C. Gen. Stat.
§ 115C-109.6(a), (j) (2013). North Carolina further provides
for review by a State Board-appointed review officer. Id.
§ 115C-109.9(a).
A party aggrieved by the decision of the state agency may
bring a civil action in state or federal court. 20 U.S.C.
§ 1415(i)(2). We have consistently held that a plaintiff must
exhaust her administrative remedies before bringing such an
action. See, e.g., MM ex rel. DM v. School Dist., 303 F.3d 523,
536 (4th Cir. 2002); Scruggs v. Campbell, 630 F.2d 237, 239 (4th
Cir. 1980) (construing the IDEA’s materially similar predecessor
statute). Whether a plaintiff has properly exhausted all
administrative remedies is a pure question of law that we review
de novo. See Talbot v. Lucy Corr Nursing Home, 118 F.3d 215,
218 (4th Cir. 1997).
7
B.
E.L. contends that our exhaustion requirement should not
preclude her from challenging the review officer’s decision.
She offers three arguments in support of this contention: (1)
the IDEA does not require her to seek state-level review in
order to exhaust her administrative remedies, (2) she did,
nonetheless, seek state-level review, and (3) even if she did
not, exceptions to the exhaustion requirement apply. We address
each argument in turn.
1.
E.L. primarily argues that the IDEA does not authorize an
appeal to the state educational agency where, as here, the local
educational agency did not conduct the hearing. 2 Consequently,
E.L. asserts that she was not required to appeal the ALJ’s
2
The school board contends that the initial hearing should
be considered “local” for the purposes of the IDEA, primarily
because the relevant statute requires that the hearing “be
conducted in the county where the child attends school or is
entitled to enroll . . . .” N.C. Gen. Stat. § 115-109.6(d). We
find this argument somewhat curious, given that the hearing took
place not in the county where E.L. attends school, but instead
at the OAH offices in Raleigh, North Carolina, albeit at the
request of the parties. More importantly, local school boards
in North Carolina have no role in choosing the hearing officer;
rather, an aggrieved party must file her petition directly with
the OAH, which conducts due process hearings under a memorandum
of agreement with the State Board. N.C. Gen. Stat. § 115-
109.6(a), (j). In light of this, we are satisfied that North
Carolina’s statutory scheme does not provide for a “local”
hearing, as that term is defined by the IDEA.
8
adverse decision to the State Board prior to filing suit in the
district court. We reject E.L.’s interpretation of the statute.
Whether the IDEA allows states to implement a two-tiered
review process, when both tiers are administered at the state
level, is an issue of first impression in this circuit. Only a
handful of federal courts have considered IDEA challenges to
this procedure, and the majority have found no fault in it.
See, e.g., O.M. ex rel. McWhirter v. Orange Cnty. Bd. of Educ.,
No. 1:09CV692, 2013 WL 664900, at *11 (M.D.N.C. Feb. 22, 2013)
(concluding that the IDEA does not prohibit states “which choose
to conduct the administrative process solely at the state level
from dividing that state-level process into two steps”); L.B. ex
rel. Benjamin v. Greater Clark Cnty. Schs., 458 F. Supp. 2d 845,
854 (S.D. Ind. 2006) (“It does not violate the IDEA for a state
to adopt a two-tiered administrative-review process, both tiers
of which are conducted by the state educational agency.”). But
see Township High Sch. Dist. No. 211 Cook Cnty. v. Ms. V., No.
93 C 7492, 94 C 30, 1995 WL 103667, at *3 (N.D. Ill. Mar. 3,
1995) (concluding that two levels of state hearings are
permissible under the IDEA only so long as the second level is
“not mandatory and does not unduly delay the parties[’] right to
seek court review of the final administrative decision”).
The IDEA’s exhaustion requirement serves the important
purpose of allowing states to use their special expertise to
9
resolve educational disputes. See Bd. of Educ. of Henrick
Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 208 (1982)
(emphasizing that courts lack the expertise to resolve questions
of educational policy). As the district court noted, the IDEA’s
hearing provisions contemplate that “a state educational agency
conduct the administrative review immediately preceding any
civil action.” E.L. ex rel. G.L. v. Chapel Hill-Carrboro Bd. of
Educ., 975 F. Supp. 2d 528, 532 (M.D.N.C. 2013) (emphasis
added). The Supreme Court has also concluded as much. See
Winkleman v. Parma City Sch. Dist., 550 U.S. 516, 526 (2007)
(“Once the state educational agency has reached its decision, an
aggrieved party may commence suit in federal court.”).
To uphold North Carolina’s scheme for implementing the
review provisions of the IDEA is simply to recognize the state’s
primary role in setting educational policy and resolving
disputes under the statute. And while it is conceivable that a
state statute requiring numerous and onerous levels of
administrative review could offend the IDEA, North Carolina’s
measured decision to add an additional level of review before
the State Board of Education only enhances procedural
protections for disabled students.
E.L. points to an advisory opinion by the U.S. Department
of Education as proof that North Carolina’s scheme violates the
IDEA. We disagree. There, the Department of Education
10
concluded that because hearings conducted under Florida’s one-
tier structure were not conducted by the local educational
agency but rather by a hearing officer from the Division of
Administrative Hearings, the IDEA did not require a separate
right of review by the state educational agency. Letter from
Stephanie Smith Lee, Director, Office of Special Ed. Programs,
U.S. Dep’t of Educ. (Dec. 10, 2003), available at
http://www2.ed.gov/policy/speced/guid/idea/letters/2003-
4/redact121003dueprocess4q2003.pdf (saved as ECF opinion
attachment).
The advisory opinion thus stands for two unremarkable
propositions: (1) a state educational agency may assign the
responsibility to conduct hearings to another entity (as both
North Carolina and Florida have done) and (2) in such a
circumstance, the IDEA does not require an additional level of
review. Nowhere does the letter state (as E.L. asserts) that
the IDEA prohibits a state from offering an additional layer of
review.
2.
E.L. offers two alternative reasons why the district court
should not have dismissed her claims for failure to exhaust:
first, that she did in fact appeal the ALJ’s decision to the
review officer, as evidenced by the fact that the review officer
addressed some of her claims on the merits, and second, that she
11
should be excepted from any exhaustion requirement. We find
neither argument persuasive.
North Carolina law provides that any party “aggrieved by
the findings and decision of a hearing officer” in an IDEA case
may seek review by filing a written notice of appeal with the
North Carolina Department of Public Instruction, Exceptional
Children Division. See N.C. Gen. Stat. § 115C-109.9(a). This
E.L. chose not to do, a fact she does not dispute. Instead,
E.L. submitted a “Response to the State Board of Education’s
Request for Written Arguments,” which outlined her contention
that the IDEA does not authorize North Carolina’s administrative
appeal. E.L. also submitted a copy of her “Proposed Final
Decision” filed with the ALJ following the conclusion of the
hearing.
E.L. contends that these “over 100 pages of written
argument seeking reversal of the ALJ’s erroneous findings”
constitute an appeal. Appellant’s Br. at 35. That is not
correct. Nothing in these documents identified the “findings
and decisions” by which E.L. was aggrieved and on which she
sought review. Indeed, E.L.’s filings expressly disavowed her
ability to appeal the ALJ’s decision.
E.L.’s separate assertion that the review officer
considered and rejected her “contentions of error” on the merits
is plainly wrong. It is true that the review officer identified
12
all the issues that the parties raised before the ALJ. But the
review officer also noted that E.L. chose not to appeal a
decision “that was very unfavorable to [her] on most issues.”
J.A. at 3561. Consequently, the review officer focused almost
exclusively on that portion of the ALJ’s decision appealed by
the school board. To the extent that the review officer took
note of factual findings and conclusions of law not related to
the school board’s appeal, he did so only to give context to his
decision to reverse the ALJ. J.A. at 3562, 3575.
Finally, the review officer’s cursory alternative finding
of “no significant error” in the ALJ’s decisions unfavorable to
E.L. did not satisfy E.L.’s obligation to exhaust her
administrative remedies. As the district court properly noted,
the review officer had jurisdiction to review only those
findings and decisions appealed. See N.C. Gen. Stat. § 115C-
109.9; E.L., 975 F. Supp. 2d at 535, n.8. Because E.L. failed
to properly take an appeal, there was nothing for the review
officer to consider as to E.L’s claims.
Nor do any exceptions to exhaustion apply. See MM, 303
F.3d at 536 (recognizing three “narrow” exceptions to the
exhaustion requirement: (1) where the administrative process
would be futile, (2) when the parents do not receive proper
notice of their administrative rights, or (3) when exhaustion
13
would be harmful to a disabled child). 3 Appeal here would not
have been futile because the review officer clearly could have
granted E.L. relief, had she availed herself of the opportunity
of appeal. We also reject E.L’s frivolous contention that she
lacked proper notice of her right to appeal. Although the ALJ
concluded (incorrectly) that E.L. had no further state-level
appeal rights, E.L. effectively invited the error by asserting
as much in the proposed “Final Decision” that she submitted to
the ALJ. See United States v. Jackson, 124 F.3d 607, 617 (4th
Cir. 1997) (“[A] court cannot be asked by counsel to take a step
in a case and later be convicted of error, because it has
complied with such request.” (internal quotation marks
omitted)); see also Johnson v. I.N.S., 971 F.2d 340, 343–44 (9th
Cir. 1992) (applying invited error doctrine in the context of
administrative review proceedings).
C.
1.
Because we conclude that E.L. failed to exhaust her
administrative remedies as to her claims, the sole issue
remaining before us is whether the school board provided
appropriate speech therapy to E.L. during the 2008-09 and 2009-
3
E.L. makes no claim as to this third exception.
14
10 school years. On that question, the district court granted
summary judgment to the school board.
Although a district court’s review of IDEA administrative
proceedings is typically conducted on motions for summary
judgment, this is a procedural misnomer. More precisely, the
IDEA requires that a reviewing court (1) receive the record of
the administrative proceeding, (2) hear additional evidence at
the request of a party, and (3) base its decision on the
preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(C)
(emphasis added). Under this standard, the district court must
conduct an independent, de novo review, albeit one generally
cabined by the record of the administrative proceedings. 4 See
Rowley, 458 U.S. at 205; Burke Cnty. Bd. of Educ. v. Denton ex
rel. Denton, 895 F.2d 973, 981 (4th Cir. 1990).
In this posture, the district court must give “due weight”
to the administrative proceedings, Rowley, 458 U.S. at 206,
bearing in mind that a hearing officer’s findings of fact are
entitled to “be considered prima facie correct.” J.P. ex rel.
Peterson v. Cnty. Sch. Bd., 516 F.3d 254, 259 (4th Cir. 2008)
4
Where the district court receives additional evidence
under the statute, the court acts as an independent fact-finder,
“essentially conducting a bench trial.” MM, 303 F.3d at 531
n.12. Because the parties here did not present additional
evidence to the district court, this broader standard of review
is not implicated.
15
(citing Doyle v. Arlington Cnty. Sch. Bd., 953 F.2d 100, 105
(4th Cir. 1991)). In a two-tiered system, such as North
Carolina’s, a review officer’s decision is also entitled to
deference unless it departs from the “normal process of fact-
finding.” G ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d
295, 303 (4th Cir. 2003).
“In conducting our review in an IDEA proceeding, we [too]
must examine the entire record, and we must afford ‘due weight’
to the administrative determinations, applying the standard of
review utilized by the district court.” MM, 303 F.3d at 531.
2.
A free appropriate public education must confer “some
educational benefit” on the disabled child receiving services.
Rowley, 458 U.S. at 200. Such an education, however, need not
“maximize each child’s potential”; the IDEA is concerned with
equality of access rather than equality of outcome. See Rowley,
458 U.S. at 198–99 (“[T]o require . . . the furnishing of every
special service necessary to maximize each handicapped child’s
potential is . . . further than Congress intended to go.”). To
that end, an individualized education program formulated under
the IDEA is sufficient if it is “reasonably calculated to enable
the child to receive educational benefits.” Peterson, 516 F.3d
at 257 (citing Rowley, 458 U.S. at 207).
16
We afford great deference to the judgment of education
professionals in implementing the IDEA. As long as an
individualized education program provides the basic floor of
opportunity for a special needs child, a court should not
attempt to resolve disagreements over methodology. See Rowley,
458 U.S. at 208; see also Hartmann ex rel. Hartmann v. Loudoun
Cnty. Bd. of Educ., 118 F.3d 996, 999 (4th Cir. 1997) (“[T]he
IDEA does not grant federal courts a license to substitute their
own notions of sound educational policy for those of local
school authorities . . . .”); Tice ex rel. Tice v. Botetourt
Cnty. Sch. Bd., 908 F.2d 1200, 1207 (4th Cir. 1990) (“Neither
the district court nor this court should disturb an
[individualized education program] simply because we disagree
with its content.”).
The dispute here centers not on whether E.L.’s
individualized education programs themselves were appropriate,
but whether the speech therapy required by those programs was in
fact provided during April and May 2009 and September through
December 2009. The record supports the finding that the speech
therapy was provided.
E.L.’s individualized education program for the 2008–09
school year required her to receive forty-five sessions of
speech therapy per nine-week grading period, or one session per
day, five days a week. It further required that these services
17
be provided in the “total school environment,” as part of the
“embedded, inclusive model” of instruction the Institute used
regarding therapies. This model, where therapists work with
students directly within their normal classroom and concurrently
with other instruction, differs from alternative models, where
students are “pulled” from the classroom to go to the
therapist’s office, or “reverse-pulled,” where students remain
behind in the classroom with the therapist while the rest of the
class leaves for another activity (e.g., recess).
The ALJ apparently based his conclusion that E.L. did not
receive appropriate speech therapy during April and May 2009 on
several factors: (1) the Institute’s speech therapist at the
time, Kathy Davis, provided services in a “group” setting, (2)
Davis supervised speech therapy interns, who assisted in
providing therapy and writing progress notes, and (3) Davis
shredded her personal therapy notes when she left the Institute
in July 2009.
None of these factors demonstrates that E.L. did not
receive appropriate therapy. First, E.L.’s individualized
education program never called for isolated, one-to-one
instruction; rather, it explicitly stated that therapy would be
provided in an embedded, inclusive model. Second, although
interns assisted with the therapy, they were supervised by
Davis, who was present during most of the therapy sessions. We
18
note that interns also participated in therapy sessions in June
and July 2009, but the ALJ did not find that speech therapy
provided during those months was inappropriate. Third, the fact
that Davis shredded her personal notes (as she testified she did
with all her notes at the end of every school year) has little
bearing on whether E.L. received appropriate therapy. 5
For the 2009–10 school year, E.L.’s parents enrolled her at
the Mariposa School three days per week, and she continued to
attend the Institute during the other two school days. E.L.’s
individualized education program required that she receive four
hours of speech therapy per month, in approximately half-hour
sessions, or one session each day she was at the Institute.
From September 2009 until March 2010, when her parents withdrew
her from the Institute, E.L. received therapy from three
different providers, each of whom conducted therapy sessions in
the “total school environment,” as prescribed by the program.
The ALJ’s conclusion that E.L. did not receive appropriate
speech therapy between September and December 2009 appears to be
based on the view of one of those providers (Ms. Melissa
Felicelli), who believed that E.L. needed attention outside the
5
E.L. also contends that she did not receive the required
hours or sessions of speech therapy. However, the unrebutted
testimony of the Institute’s therapists was that they provided
speech therapy to E.L. daily while in the classroom.
19
embedded classroom setting. Felicelli’s attempts to “reverse-
pull” E.L. from the classroom created a conflict with Institute
teachers and administrators (who felt this was contrary to
Institute teaching methodology) and eventually led to her
resignation in October 2009. There is no dispute, however, that
Felicelli provided E.L. with the speech therapy prescribed by
E.L.’s individualized education program. Her methodological
disagreement with Institute staff is, as the review officer
noted, immaterial to whether E.L. received appropriate services.
In sum, the review officer’s conclusion that E.L. received
the speech therapy mandated by her individualized education
program is supported by the evidence. We therefore affirm the
district court’s determination that E.L. received a free
appropriate public education.
AFFIRMED
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