Gray v. O'Rourke

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LAUREN GRAY, a minor, by her 
parents and next friends; DAVID
GRAY; LYNN GRAY,
Plaintiffs-Appellants,
v.
 No. 01-2349
JOHN O’ROURKE, officially as
Superintendent, Howard County
Public Schools; HOWARD COUNTY
BOARD OF EDUCATION,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CA-01-736-CCB)
Argued: September 23, 2002
Decided: October 24, 2002
Before LUTTIG and WILLIAMS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Brian Keith Gruber, BRIAN K. GRUBER, P.C., Chevy
Chase, Maryland, for Appellants. Jeffrey Alan Krew, Columbia,
Maryland, for Appellees.
2 GRAY v. O’ROURKE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The plaintiffs, Lauren Gray (Lauren) and her parents, David and
Lynn Gray (collectively the Grays), brought this action against the
defendants, the Howard County, Maryland Board of Education and
John O’Rourke, in his official capacity as superintendent of the How-
ard County Public Schools, under the Individuals with Disabilities
Education Act (the IDEA), 20 U.S.C. §§ 1400 et seq., seeking reim-
bursement from the defendants (collectively the School District) for
the costs associated with the private placement of Lauren at Chelsea
School (Chelsea), a private school for children with learning disabili-
ties, for the 1998-99 and 1999-2000 school years. The district court
granted summary judgment in favor of the School District, and the
Grays appeal. We affirm.
I
Lauren, who was born on May 6, 1982, has a learning disability.
In the school year 1995-96, Lauren attended the eighth grade in a
Howard County public school (HCPS), where she was determined to
be eligible for special education services, and received those services
under an Individualized Education Program (IEP).1 After the eighth
1
Under the IDEA, all states receiving federal funds for education must
provide each child between the ages of three and twenty-one, who has
a disability, with a free appropriate public education (FAPE) that is
designed specifically to meet that child’s needs. 20 U.S.C.
§ 1412(a)(1)(A). To effectuate this goal, a school district is required to
provide, among other things, an IEP for each disabled child. MM v.
School Dist. of Greenville County, No. 01-1364, 2002 WL 31001195, at
*2 (4th Cir. Sept. 6, 2002). An appropriate IEP must contain statements
concerning the disabled child’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. 20 U.S.C.
§ 1414(d)(1)(A).
GRAY v. O’ROURKE 3
grade, Lauren was educated in private schools. In the ninth grade, she
attended a parochial school. In the tenth, eleventh, and twelfth grades,
she attended Chelsea. The School District did not place Lauren at
Chelsea, nor did it approve the placement at any time. Lauren gradu-
ated from Chelsea in June 2000.
In the fall of 1997, the School District convened several meetings
of an IEP team to develop a new IEP for Lauren.2 The Grays attended
the meetings and were represented by an attorney, Michael Eig (Eig).
On January 16, 1998, an IEP (January 1998 IEP) was approved for
Lauren. Special education services were to be provided by Atholton
High School, a HCPS. An annual review date was set for January 16,
1999.3
The Grays disagreed with the placement set forth in the IEP and
informed the School District that Lauren would remain at Chelsea for
the remainder of the 1997-98 school year. On March 20, 1998, the
Grays filed a due process hearing request, which was dismissed by an
administrative law judge (ALJ) on June 23, 1998.4
On August 11, 1998, Eig requested "reimbursement" for Lauren’s
Chelsea tuition from Ronald Caplan (Caplan), the "Facilitator for
HCPS Community Services and Alternative Programs." (J.A. 15).
Caplan told Eig that the School District would not reimburse the
Grays. Eig contacted Caplan numerous times during Lauren’s elev-
enth grade year, 1998-99, further requesting tuition reimbursement on
behalf of the Grays. In each instance, Caplan responded that the
School District would not reimburse the Grays. As noted above,
Lauren graduated from Chelsea in June 2000 after completing her
twelfth-grade year.
2
An IEP team generally consists of a representative of the school dis-
trict, the disabled child’s teacher, the parents or guardian of the child
and, when appropriate, the child herself. 20 U.S.C. § 1414(d)(1)(B).
3
Under the IDEA, the school district must review each disabled child’s
IEP at least "annually." 20 U.S.C. § 1414(d)(4)(A)(i).
4
If the parents or guardian of a disabled child are not satisfied with the
IEP, they are entitled to request a due process hearing before an impartial
hearing officer. 20 U.S.C. § 1415(f).
4 GRAY v. O’ROURKE
On October 25, 2000, the Grays requested a due process hearing
to address the School District’s failure to: (1) respond in writing to
the Grays’ request for a new IEP;5 and (2) review Lauren’s January
1998 IEP at least on an annual basis. On November 17, 2000, a due
process hearing was held before an ALJ, and the ALJ issued her deci-
sion on December 7, 2000. With regard to the Grays’ respond-in-
writing argument, the ALJ found that Eig’s August 11, 1998 verbal
request for "reimbursement" of tuition at Chelsea constituted a request
to change Lauren’s educational placement, thus, triggering the written
notice requirement of 20 U.S.C. § 1415(b)(3). The ALJ found, how-
ever, that Lauren was not denied a FAPE on account of the School
District’s failure to provide written notice of its refusal to change
Lauren’s placement because Lauren suffered no loss of educational
opportunity as a result of this procedural violation.6 With regard to the
Grays’ argument that the School District failed to review Lauren’s
January 1998 IEP at least on an annual basis, the ALJ rejected this
argument on the basis that the Grays’ unilateral placement of Lauren
at Chelsea relieved the School District of its responsibility to review
Lauren’s January 1998 IEP.
As parties aggrieved by the ALJ’s final decision, the Grays filed
the present civil action against the School District, pursuant to 20
U.S.C. § 1415(i)(2)(A), in the United States District Court for the
District of Maryland. On cross motions for summary judgment, the
5
Under the IDEA, once the IEP is in place, the school district must
provide written notice whenever the school district refuses to change the
disabled child’s placement. 20 U.S.C. § 1415(b)(3).
6
Under our circuit precedent, to the extent that "procedural violations
did not actually interfere with the provision of a free appropriate public
education, these violations are not sufficient to support a finding that an
agency failed to provide a free appropriate public education." Gadsby v.
Grasmick, 109 F.3d 940, 956 (4th Cir. 1997). Accordingly, before the
Grays can recover for the alleged procedural violations of the IDEA, they
must demonstrate that the procedural violations actually interfered with
the provision of a FAPE. Id.; cf. School Committee of Town of Burling-
ton v. Department of Ed. of Mass., 471 U.S. 359, 370-71 (1985)
("Reimbursement [remedy under the IDEA] merely requires [the school
district] to belatedly pay expenses that it should have paid all along and
would have borne in the first instance had it developed a proper IEP.").
GRAY v. O’ROURKE 5
district court granted the School District’s motion for summary judg-
ment and denied the Grays’ motion for summary judgment.
In granting the School District’s motion, the district court agreed
with the ALJ that Lauren was not denied a FAPE on account of the
School District’s failure to provide written notice of its refusal to
change Lauren’s placement because Lauren suffered no loss of educa-
tional opportunity as a result of the procedural violation. Unlike the
ALJ, however, the district court concluded that the Grays’ unilateral
placement of Lauren at Chelsea did not relieve the School District of
its responsibility to review Lauren’s January 1998 IEP. The district
court went on to reject the Grays’ annual review claim on the basis
that the Grays did not demonstrate that Lauren suffered any loss of
educational opportunity on account of the School District’s failure to
review the January 1998 IEP.
II
On appeal, the Grays argue that the School District’s two proce-
dural violations of the IDEA, namely, the School District’s failure to
respond in writing to the Grays’ request for a new IEP and the School
District’s failure to review Lauren’s January 1998 IEP at least on an
annual basis, denied Lauren a FAPE. Upon review of the briefs and
the record, and after consideration of oral arguments, we find no
reversible error. Accordingly, we affirm the judgment of the district
court.
AFFIRMED