County School Board v. A. L.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1167
COUNTY SCHOOL BOARD OF YORK COUNTY, VIRGINIA,
Plaintiff - Appellant,
versus
A. L., and his parents and next friends; A.
L.; S. L.,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (CA-03-174)
Argued: May 23, 2006 Decided: August 16, 2006
Before WIDENER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kathleen Shepherd Mehfoud, REED SMITH, L.L.P., Richmond, Virginia,
for Appellant. Shannon Marie Manning, VIRGINIA OFFICE FOR
PROTECTION & ADVOCACY, Virginia Beach, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
The County School Board of York County, Virginia (the
“Board”), appeals the January 18, 2005 judgment issued in the
Eastern District of Virginia in favor of A.L., a disabled student
who suffers from Down Syndrome.1 In 2003, after A.L. and his
parents were unable to agree to an individualized education program
(an “IEP”) proposed by the Board, the Board sought an impartial due
process hearing to authorize implementation of its proposal.
Following the due process hearing, the hearing officer concluded,
by decision of August 25, 2003 (the ”Administrative Decision”),
that the Board’s proposal (the “Proposed IEP”) was legally
insufficient under the Individuals with Disabilities Education Act,
20 U.S.C. §§ 1400 et seq. (the “IDEA”). Thus, the Board was
ordered to develop an appropriate IEP for A.L. in accordance with
the IDEA.
In December 2003, the Board filed its complaint in the
district court, seeking review of the Administrative Decision.
Thereafter, by Opinion and Order of January 18, 2005, County Sch.
Bd. of York County, Va. v. A.L., No. CA-03-174 (E.D. Va. filed Jan.
18, 2005) (the “Court Decision”), the court affirmed the three
rulings of the Administrative Decision challenged by the Board in
1
Down Syndrome (also known as Down’s Syndrome) is a
“congenital disorder caused by the presence of an extra 21st
chromosome and marked by moderate to severe mental retardation,
short stature, and a flattened facial profile.” Webster’s II New
College Dictionary 342 (1995).
2
this appeal: (1) that the Board committed procedural violations
regarding the Proposed IEP (the “Procedural Ruling”); (2) that the
sign language communication assistance contemplated by the Proposed
IEP failed to comply with Virginia’s regulations (the “Sign
Language Ruling”); and (3) that A.L. is entitled to an IEP
providing him with direct occupational therapy services (the “OT
Ruling”). Additionally, at oral argument the Board asserted, for
the first time, that the Court Decision should be vacated on
mootness grounds. As explained below, we reject the Board’s
contentions and affirm the district court’s order that an IEP be
developed “which provides A.L. a [free appropriate public
education] under the IDEA.” Court Decision at 12.2
I.
A.
A.L. is a 20-year-old student at Grafton High School in York
County, Virginia. As a result of Down Syndrome, A.L. has
difficulty speaking, and he must use sign language to clarify his
communications with others. Because of his disability, A.L. is
eligible for special education and related services by the Board.
His access to such education and services is governed by the IDEA,
which mandates that school districts provide IEPs for disabled
2
The Court Decision is found in its entirety at pages 1186
through 1197 of the Joint Appendix.
3
students. See 20 U.S.C. § 1414(d). Under the IDEA, an IEP is a
written statement setting forth a school district’s plan for
educating and accommodating a child with a disability, prepared by
an “IEP team” consisting of a representative of the school
district, the disabled student’s teachers, the student’s parents,
and the student. See §§ 1414(d)(1)(A)-(B); MM v. Sch. Dist. of
Greenville County, 303 F.3d 523, 527 (4th Cir. 2002). An IEP must
contain statements concerning the disabled student’s level of
functioning, set forth measurable annual achievement goals,
describe the services to be provided, and establish objective
criteria for evaluating the child’s progress. See § 1414(d)(1)(A).
The Board first developed and implemented an IEP for A.L. in
June 2001. A.L.’s IEP was thereafter revised by certain addenda,
the most recent in August 2002. Although the IEP team members met
several times during the 2002-2003 school year to develop a new IEP
for A.L., they were unable to reach any consensus. During that
time, A.L.’s parents expressed their desire for him to participate
in the Virginia Alternate Assessment Program (the “VAAP”), a test
employed to assess the performance of students, such as A.L., who
have traditionally been exempt from educational assessment
programs. A chief source of disagreement among the IEP team
members concerned whether A.L. should receive sign language
services consistent with Virginia’s Regulations Governing Special
Education Programs. The IEP team members also disagreed on whether
4
A.L. was required to continue receiving direct OT services.
Although the Proposed IEP resulted from these meetings and various
discussions among the IEP team, it was not agreed to by A.L.’s
parents because it failed to provide A.L. with direct OT services
and a sign language interpreter (an “SLI”) meeting the
qualifications for an SLI, as established by the pertinent Virginia
regulations.
B.
In May 2003, the Board requested a due process hearing,
pursuant to 20 U.S.C § 1415(f)(1)(A), seeking authorization to
implement the Proposed IEP. As a result of this request, a hearing
officer was appointed by the Virginia Department of Education’s
Division of Special Education, and the due process hearing was
conducted over a period of five days in July and August 2003 (the
“Hearing”). The Hearing revealed, inter alia, that A.L. had been
excluded from participation in the VAAP. A.L.’s parents had
earlier agreed with the Board that A.L. should participate in the
VAAP, and that agreement had been spelled out in an earlier draft
of the Proposed IEP. See Administrative Decision at 44;3 see also
J.A. 44-46. The parents first learned at the Hearing, however,
that the Board had removed the VAAP provision from the Proposed IEP
3
The Administrative Decision is found in its entirety at pages
1049 through 1101 of the Joint Appendix.
5
because A.L. had been “promoted” to the twelfth grade, which, the
Board asserted, rendered him (at the time of the Hearing)
ineligible for the VAAP. Administrative Decision at 6. On August
25, 2003, by the Administrative Decision, the hearing officer
concluded that the Proposed IEP was legally insufficient under the
IDEA because it failed to provide A.L. with a “free appropriate
public education” (a “FAPE”). The Administrative Decision also
detailed the hearing officer’s findings and conclusions in
connection with its rulings, which are summarized, in pertinent
part, below.
On the Procedural Ruling, the hearing officer concluded that
the Board had contravened the IDEA’s requirements in two ways: (1)
it had revised the Proposed IEP to exclude A.L. from participation
in the VAAP, without notifying A.L. and his parents of its
decision; and (2) it had failed to inform A.L. and his parents that
the revision to the Proposed IEP triggered their due process
rights. See Administrative Decision at 45. The hearing officer
observed that A.L.’s parents had requested (during the May 5, 2003
IEP team meeting) that he participate in the VAAP, but the Board
later decided that he should not do so. Id. at 44-45. The officer
also found that the Board’s failure to permit A.L. to participate
in the VAAP, as well as its failure to properly notify his parents
thereof, had impaired A.L.’s ability to receive an IEP
appropriately formulated for his individual needs and abilities.
6
Id. at 45. Moreover, the officer observed that A.L.’s promotion to
the twelfth grade “appears to be one in name only as [A.L.] made
minimal progress, at best, in core subjects and he will remain a
12th grader for 3 years.” Id. The hearing officer then concluded
that the Board’s procedural violations rendered the Proposed IEP
legally insufficient under the IDEA, and she ordered the Board to
formulate a new IEP consistent with IDEA-mandated procedures. Id.
at 51-53.
Next, with respect to the Sign Language Ruling, the Proposed
IEP called for A.L. to receive “[c]ommunication [a]ssistance with
expressive language/oral communication with peers and teachers,”
which assistance was to “include use of basic sign language as
appropriate.” See Administrative Decision at 46; see also J.A. 42.
The Proposed IEP did not specify, however, who was to provide such
communication assistance to A.L. J.A. 42. The hearing officer
determined that the Proposed IEP was defective with respect to
communication assistance services in two ways: (1) it was an
inadequate accommodation of A.L.’s Down Syndrome disability, as
well as of his Oral Motor Apraxia (“OMA”), a condition of the
palate interfering with articulation;4 and (2) it did not satisfy
4
Beginning in 2001, A.L.’s parents contended that A.L. was
entitled to be dually labeled with both Down Syndrome and OMA, but
the Board determined that the OMA label was unnecessary. A.L.’s
parents later consented to an addendum to the 2001 IEP, made in
August 2002, providing full-time interpreter services to assist
A.L. in his oral and/or sign language communications skills — an
accommodation for his Down Syndrome, but not for his OMA. Although
7
Virginia’s Regulations Governing Special Education Programs,
because the Board proposed utilizing a “teacher assistant (basic
sign language)” who did not satisfy the requirements of an SLI
under the Virginia regulations. Id. at 46-48. Accordingly, the
hearing officer mandated that the Board provide A.L. with a
qualified SLI throughout the school year. Id. at 53.
Finally, with regard to the OT Ruling, A.L.’s parents and the
Board disputed whether A.L required direct OT services in order to
offset his deficiencies in the use of fine motor and visual skills.
See Administrative Decision at 48. According to occupational
therapist Julie Herndon, who had been providing A.L. with direct OT
services since 2001, he did not require OT services at all, based
on her 2001 assessment. Id. at 31. Thus, as a compromise, the
Board incorporated consultative (rather than direct) OT services
into the Proposed IEP, maintaining that such services sufficiently
satisfied A.L.’s needs. Id. at 32.
In determining that the Board should continue to provide A.L.
with direct OT services, however, the hearing officer rejected
Herndon’s evaluation and the Board’s proposed solution, as well as
the testimony of Dr. Lawrence Leichtman, A.L.’s treating physician
and a specialist in mental retardation. Instead, the Board
the hearing officer acknowledged that she had not been appointed to
review the Board’s determinations regarding OMA, she nonetheless
premised certain of her rulings on A.L.’s need for OMA
accommodations.
8
credited a medical evaluation of A.L. submitted by his parents,
which had been made in 2003, two years after the evaluation relied
upon by the Board. See Administrative Decision at 49. The 2003
evaluation by occupational therapist Kristin Weisz indicated that
A.L. was “slow,” that he had difficulty with bilateral tasks and
bilateral hand use, and that he required direct OT services. Id.
at 32. Based on this more recent evaluation and Weisz’s
recommendation, the hearing officer ordered the Board to continue
providing A.L. with direct OT services. Id. at 52.5
C.
On December 30, 2003, the Board filed its complaint in the
Eastern District of Virginia, pursuant to 20 U.S.C.
§ 1415(i)(2)(A), seeking to overturn the adverse rulings of the
Administrative Decision. On January 18, 2005, after reviewing the
record of the administrative proceedings and considering additional
evidence submitted by the Board (as authorized under
§ 1415(i)(2)(A)), the court upheld the Procedural Ruling, the Sign
Language Ruling, and the OT Ruling, concluding that the Board had
5
The hearing officer further concluded that, because the IEP
was inappropriate under the IDEA, it was also inappropriate under
the Rehabilitation Act, 29 U.S.C. § 794, which mandates school
districts to provide a FAPE to “handicapped persons” as adequate as
that which is provided to “nonhandicapped persons.” See 34 CFR
§ 104.33(b)(1). Under the federal regulations implementing the
Rehabilitation Act, the development and implementation of an IEP
“in accordance with the [IDEA] is one means of meeting [this]
standard.” Id. § 104.33(b)(2).
9
not carried its burden of establishing, by a preponderance of the
evidence, that the hearing officer’s determinations on these issues
were erroneous. See Court Decision at 11-12.6 The court thus
ordered the Board to “develop an IEP which provides A.L. a FAPE
under the IDEA.” Id. at 12.7 The Board has timely appealed, and
we possess jurisdiction pursuant to 28 U.S.C. § 1291.
II.
As a preliminary matter, the Board asserted at oral argument
(for the first time), and thereafter by way of a supplemental
brief, that a February 28, 2006 IEP addendum (the “2006 Addendum”)
served as a “replacement IEP which substantially alters A.L.’s
placement and moots the issues in the case.” See Appellant’s Supp.
Br. at 1. Specifically, the Board contends that the 2006 Addendum
removed the goals and objectives of the Proposed IEP, with the
6
The district court concluded that the hearing officer had
erred in premising the Sign Language Ruling, in part, on the
finding that A.L. required services for OMA. See Court Decision at
9. The court determined that any such error was harmless, however,
because the hearing officer also correctly found that the IEP did
not comply with Virginia’s pertinent regulations. Id. at 10. We
agree.
7
With no evidence of bad faith or gross misjudgment on the
part of the Board having been presented, however, the district
court concluded that the Board had not discriminated against A.L.
under the Rehabilitation Act. See Court Decision at 12.
Nevertheless, the court ruled that the Proposed IEP was inadequate
under the Rehabilitation Act, and it thus ordered the Board to
develop an IEP that provides A.L. with a FAPE, in compliance with
the Rehabilitation Act. Id.10
exception of speech and language therapy, to address vocational
training needs and measure the progress of vocational skills. Id.
at 7. Accordingly, the Board has requested that we vacate the
Court Decision and remand with instructions to dismiss its
complaint. A.L. correctly asserts, however, that the issues on
appeal have not been rendered moot by the 2006 Addendum because it
does not constitute, and the parties have not agreed to, “any IEP
addressing or resolving the issues before this Court.” Appellee’s
Supp. Br. at 7. Specifically, the 2006 Addendum does not allow
A.L. to participate in VAAP, and it does not provide him with a
qualified SLI in accordance with Virginia’s regulations, or with
direct OT services, all of which A.L. and his parents continue to
seek. As the parties have not agreed on the services A.L. is to be
provided, the controversies with respect to the Administrative
Decision are ongoing and viable, and the issues on appeal are not
moot. See City of Erie v. Pap’s A.M., 529 U.S. 277, 277 (2000)
(observing that case is moot when issues presented no longer
constitute live controversy or when parties are without legal
interest in outcome). Thus, we reject the Board’s mootness
contention, and turn to the merits of the other issues it has
raised on appeal.
11
III.
We review de novo a district court’s interpretations of the
IDEA. See AW v. Fairfax County Sch. Bd., 372 F.3d 674, 677 (4th
Cir. 2004). When a district court reviews a hearing officer’s
administrative decision under the IDEA, it is obliged to make an
“independent decision based on a preponderance of the evidence,”
according “due weight” to the officer’s findings. Id. As we have
explained, such a court should, “to the extent possible, defer to
the considered rulings of the administrative officers, who also
must give appropriate deference to the decisions of professional
educators.” MM v. Sch. Dist. of Greenville County, 303 F.3d 523,
533 (4th Cir. 2002). Findings of fact made in such administrative
proceedings are “considered prima facie correct, and if a reviewing
court fails to adhere to them, it is obliged to explain why.” G v.
Fort Bragg Dependent Schs., 343 F.3d 295, 302 (4th Cir. 2003)
(internal quotation marks omitted). And, of course, a party
challenging the conclusions of a hearing officer bears the burden
of establishing that such rulings were erroneous. See Spielberg v.
Henrico County Pub. Schs., 853 F.2d 256, 258 n.2 (4th Cir. 1988).
When additional evidence has been received and considered by a
district court, we review any findings of fact premised thereon for
clear error. See G, 343 F.3d at 302 n.11.
12
IV.
Congress enacted the IDEA in 1990 to “ensure that all children
with disabilities receive a [FAPE],” that includes “the special
education and related services required to meet the unique needs”
of disabled children. See MM v. Sch. Dist. of Greenville County,
303 F.3d 523, 526 (4th Cir. 2002). Under the IDEA, a FAPE must
provide a disabled child with meaningful access to the educational
process, and it must be reasonably calculated to confer some
educational benefit on the child. See Bd. of Educ. v. Rowley, 458
U.S. 176, 207 (1982). Such an educational benefit must be provided
to the disabled child in the least restrictive environment
available, with the child participating, to the extent possible, in
the same activities as non-disabled children. See 20 U.S.C.
§ 1412(a)(5)(A). And while a school district “must provide
specialized instruction and related services sufficient to confer
some educational benefit upon the handicapped child, . . . the Act
does not require the furnishing of every special service necessary
to maximize each handicapped child’s potential.” Hartmann v.
Loudoun County Bd. of Educ., 118 F.3d 996, 1001 (4th Cir. 1997)
(internal quotation marks omitted).
The IDEA establishes a series of elaborate procedural
safeguards, which are “designed to ensure that the parents or
guardian of a child with a disability are both notified of
decisions affecting their child and given an opportunity to object
13
to these decisions.” Gadsby v. Grasmick, 109 F.3d 940, 956 (4th
Cir. 1997). Parents and school officials are each entitled to
request and receive a due process hearing before a state
administrative officer to determine the appropriateness of a
proposed IEP. See 20 U.S.C. § 1415(b), (f). And, any party
aggrieved by the findings or decision of the administrative officer
at such a due process hearing may seek judicial review in either
state or federal court. See id. § 1415(i)(A)(2).
In assessing whether an IEP satisfies the requirements of the
IDEA, a court is obliged to employ the two-fold inquiry spelled out
by the Supreme Court in Rowley. First, it must determine whether
the school district has complied with the procedures set forth in
the IDEA. See Rowley, 458 U.S. at 206. And second, the court must
assess whether the IEP is reasonably calculated to allow the
disabled child to receive educational benefits. Id. at 207; see
also Spielberg, 853 F.2d at 258. With this framework in mind, we
assess in turn the Board’s contentions of error.
A.
With regard to the Procedural Ruling, the hearing officer
found that the Board had committed two procedural violations: (1)
failing to notify A.L.’s parents that it had revised the Proposed
IEP to remove him from any participation in the VAAP; and (2)
14
failing to notify A.L.’s parents that this revision of the Proposed
IEP triggered their due process rights. As we have heretofore
recognized, “it is possible for a school district’s failure to
abide by the IDEA’s procedural requirements to constitute an
adequate basis for contending that the district has failed to
provide a disabled child with a FAPE.” MM, 303 F.3d at 533. Where
a school district has failed to abide by the IDEA’s procedural
requirements, a reviewing court is “obliged to assess whether it
resulted in the loss of an educational opportunity for the disabled
child, or whether, on the other hand, it was a mere technical
contravention of the IDEA.” Id.Generally speaking, pursuant to 20 U.S.C. § 1415(d), a school
district must give written prior notice of a proposed alteration of
an IEP to a disabled child’s parents, and it must also inform them
of their due process rights. In this case, the Board maintains
that its “technical violations” of this statutory mandate, as
spelled out by the hearing officer, essentially constituted
harmless error and should be disregarded because they did not
negatively impact the development of the Proposed IEP or the
provision of a FAPE. The Board also contends that, in any event,
A.L.’s parents did not consent to his participation in the VAAP
because they failed to agree to the Proposed IEP. The hearing
officer, however, found the Board’s procedural violations harmful,
resulting in a lost educational opportunity for A.L., in that his
15
participation in the VAAP would have resulted in a more appropriate
IEP that would have better “reflect[ed] the results of the
assessment test and aid[ed] [A.L.’s] transition to the adult
world.” Administrative Decision at 45. Moreover, the hearing
officer deemed A.L.’s “promotion” to the twelfth grade to be
“troubling,” in that the Board apparently had surreptitiously
promoted him out of the eleventh grade, where testing was
available, to the twelfth grade, where it was not. Id.8 Finally,
the hearing officer found that A.L.’s parents had specifically
requested his participation in the VAAP, even though they did not
sign off on the entire Proposed IEP. Id. at 44; see also id. at 5.
In the district court, the Board renewed its contention that
its failure to comply with the IDEA’s procedural mandate did not
prejudice A.L.’s ability to receive a FAPE. See Court Decision at
5. The court determined, however, that the Board’s contention on
this point was insufficient to meet its burden of establishing that
the hearing officer’s finding was erroneous, and it thus affirmed
the hearing officer on the Procedural Ruling. Id. at 6. In these
circumstances, we agree that the Board’s stark assertion that its
procedural errors were harmless fails to overcome the prima facie
8
Although the Board maintained at the Hearing that A.L.’s
transition to the twelfth grade made him ineligible for
participation in the VAAP, the Board subsequently allowed A.L. to
participate therein. See Appellee’s Supp. Br. at 1. Accordingly,
it appears that A.L. is eligible for the VAAP, notwithstanding the
Board’s earlier assertion to the contrary.
16
correctness of the Administrative Decision, and we therefore affirm
the Court Decision on the Procedural Ruling.
B.
With regard to the Sign Language Ruling, the Board contends on
appeal that a VQAS Level III interpreter is unnecessary for A.L.,
because he rarely relies on sign language in order to be understood
in school.9 And ordinarily, of course, “[a court] should be
reluctant . . . to second-guess the judgment of education
professionals,” as reflected in their development of a Proposed
IEP. MM, 303 F.3d at 532. Indeed, a reviewing court is “obliged
to defer to educators’ decisions as long as an IEP provided the
child the basic floor of opportunity that access to special
9
In Virginia, SLIs employed by the school districts must have
the following qualifications:
a Virginia Quality Assurance Screening (VQAS) Level III,
any Registry of Interpreters for the Deaf Certificate
(excluding Certificate of Deaf Interpretation), or any
other state or national certification recognized by the
Virginia Department for the Deaf and Hard-of-Hearing as
equivalent to or exceeding the VQAS Level III.
See 8 Va. Admin. Code § 20-80-45(E)(1)(a). The VQAS assessment
process involves interpreting sign language for a screening panel.
To achieve a VQAS Level III, one must correctly interpret 80% of
the signs presented. See 22 Va. Admin. Code § 20-30-110(D)(2)(b).
The Board contends that it would be sufficient to provide a Level
II interpreter (one who correctly interpreted 65% of signs
presented in the VQAS assessment).
17
education and related services provides.” Id. (internal quotation
marks omitted).
In this case, however, the hearing officer found the
communication assistance provided to A.L. by the Proposed IEP to be
an inadequate accommodation, in that it fails to comply with
Virginia’s Regulations Governing Special Education Programs. See
Administrative Decision at 48. Pursuant to Virginia law, the SLIs
employed by the school districts must be certified at the VQAS
Level III or higher. See 8 Va. Admin. Code § 20-80-45(E)(1)(a).
As we have recognized, “[t]he IDEA expressly incorporates State
educational standards,” and the courts should not “usurp state
educational standards and policy [by] re-writ[ing] state teaching
certification requirements . . . .” Hartmann, 118 F.3d at 1004(internal quotation marks omitted). Thus, the hearing officer was
correct in concluding that the communication assistant proposed by
the Board to assist A.L. (qualifying at VQAS Level II only) failed
to comply with Virginia’s regulatory requirements for personnel
providing sign language interpretation services.
In the district court, the Board was permitted to present
additional evidence, not heard or considered by the hearing
officer, that A.L. made significant progress in communications
skills in the year following the Hearing, and that he requires a
VQAS Level II SLI only, because he seldom relies on an interpreter
in order to be understood. The court, however, rejected this
18
proposition, and it agreed with the hearing officer that any sign
language interpreter provided for A.L. had to meet the
qualifications specified in Virginia’s regulations. See Court
Decision at 10. The court also affirmed the hearing officer’s
finding that the Board’s failure to comply with Virginia’s
regulations had resulted in a proposed IEP that was not reasonably
calculated to provide A.L. with a FAPE. Id. at 11. Although the
pertinent Virginia regulations unequivocally mandate that all SLIs
employed in Virginia’s school districts be qualified at the VQAS
Level III, see 8 Va. Admin. Code § 20-80-45(E)(1)(a), the Proposed
IEP provided for an SLI qualified at the VQAS Level II only. We
are therefore obliged to affirm the Court Decision on the Sign
Language Ruling.
C.
In making the OT Ruling in the Administrative Decision, the
hearing officer concluded that A.L. was entitled to continue
receiving direct OT services, thereby rejecting the Board’s
contention that such services were unnecessary. In that regard,
Herndon, testifying for the Board at the Hearing, asserted that she
had been providing direct OT services to A.L. on a weekly basis
since 2001 and that, based on her 2001 assessment of A.L., he did
not require OT services at all. See Administrative Decision at 31.
According to Herndon, the consultative (rather than direct) OT
19
services provided for as a compromise in the Proposed IEP would be
sufficient to meet A.L.’s needs. Id.In response, A.L.’s parents submitted to the hearing officer
the evaluation of Weisz, who had assessed A.L. in July 2003, just
prior to the Hearing being conducted. See Administrative Decision
at 32. Utilizing a “medical” (rather than an “educational”) model,
she concluded that A.L. suffered from a deficit in his motor and
visual skills, causing him to have difficulty performing routine
tasks, such as using both hands simultaneously or catching a ball.
Id. Weisz thus recommended that A.L. continue to receive direct OT
services. Id. Additionally, A.L.’s parents presented the hearing
officer with the testimony of Dr. Leichtman, who testified that OT
services issues should be left “totally to the discretion of the
therapist at the school,” asking only that the therapist “evaluate
[A.L.] and, if [the therapist deems] he needs treatment, to treat
him.” J.A. 1016-17.
In concluding that A.L. was entitled to continue to receive
direct OT services, the hearing officer credited Weisz’s 2003
evaluation over Herndon’s 2001 educational assessment and Dr.
Leichtman’s testimony, primarily because Weisz’s evaluation was
more recent. See Administrative Decision at 49. In so doing, the
hearing officer observed that the deficits A.L. exhibited, such as
being unable to use two hands simultaneously, were skills necessary
in both school and in the workplace. Id. The hearing officer
20
therefore rejected the Board’s contention that A.L. no longer
required direct OT services.
In assessing the OT Ruling, the district court concluded that,
“despite the deference typically due . . . the judgment of
professional educators,” the hearing officer’s reliance on Weisz’s
assessment was justified because her 2003 report was more recent
than the evaluations relied upon by the Board. See Court Decision
at 10. In these circumstances, we are unable to say that the
district court erred in deferring to the hearing officer’s view of
the evidence, and we thus affirm the Court Decision on the OT
Ruling as well.10
10
As discussed above, see supra notes 5 and 7, the hearing
officer and the district court each concluded that the Proposed IEP
was inadequate under the Rehabilitation Act, for the same reasons
it was inadequate under the IDEA. Because we agree that the
Proposed IEP did not comply with the IDEA, we need not resolve the
question of the IEP’s propriety under the Rehabilitation Act. We
observe, however, that a failure to provide an appropriate IEP
under the IDEA would not, in and of itself, establish
discrimination under the Rehabilitation Act, absent some evidence
of “bad faith or gross misjudgment” on the part of the school
authorities. Sellers v. Sch. Bd. of Manassas, Va., 141 F.3d 524,
529 (4th Cir. 1998). And, as we have recognized, “to prove
discrimination in the education context, ‘something more than a
mere failure to provide the ‘free appropriate education’ required
by [the IDEA] must be shown.’” Id. (quoting Monahan v. Neb., 687
F.2d 1164, 1170 (8th Cir. 1982)).
21
V.
Pursuant to the foregoing, we reject the Board’s contentions
and affirm the judgment of the district court.
AFFIRMED
22