Wake County Board of Education v. Kamin

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

Consolidated Action

WAKE COUNTY BOARD OF )

EDUCATION, )

Plaintiff, )

v. ) No. 5:19-CV-497-BO

)

S.K., by and through her parent, R.K., )

Defendant. )

RHONDA K., individually and on behalf)

of S.K., her minor child, )

Plaintiff, )

v. ) No. 5:19-CV-498-BO

)

WAKE COUNTY BOARD OF )

EDUCATION, )

Defendant. )

ORDER

This consolidated action is before the Court on Wake County Board of Education’s

motion for judgment on the administrative record and Rhonda K.’s motion for attorney fees and

expenses. The motions have been fully briefed and are ripe for ruling. For the reasons that

follow, both motions are granted in part and denied in part.

BACKGROUND

Procedural History

On December 29, 2017, S.K., by and through her parent R.K., filed a petition for a

contested case hearing in Wake County, North Carolina, asserting claims against the Wake

County Board of Education (WCBOE) pursuant to the Individuals with Disabilities Education

Improvement Act of 2004 (IDEA), 20 U.S.C. §§ 1400, et seg.; N.C. Gen. State §§ 115C-109.6,

et seg.; and Article 3 of Chapter 150B of the North Carolina General Statutes. [DE 18-8 at 7.

The petitioners below’ alleged that the WCBOE had failed to: offer S.K. a free and appropriate

public education, develop substantively and procedurally valid Individualized Education

Programs (IEPs) for S.K., provide substantively appropriate school placement to S.K., employ

adequate placement procedures, properly evaluate S.K. and employ proper evaluative

procedures, properly consider S.K.’s need for related services, properly consider S.K.’s need for

extended school year services, follow the requirements set forth in the IDEA, and follow the

North Carolina law as provided in Section 115C-109.6, et seq., of the North Carolina General

Statutes. Id.

Between March 19 and March 26, 2018, an evidentiary hearing was held by a North

Carolina Administrative Law Judge (ALJ). [DE 18-17 at 20]. The ALJ’s final decision, issued on

July 31, 2018, held in favor of WCBOE.’ The ALJ determined that the IEP present levels and

goals were appropriate, that a class-size cap was not a required accommodation for S.K., that

service delivery was appropriate, that a transition plan was not legally required, and that the May

2017 IEP provided S.K. a free and appropriate public education. The ALJ further concluded that

S.K.’s placement had not been predetermined and made provisional conclusions that the private

school program was not appropriate, and that, had S.K. prevailed, the ALJ would have been

inclined to reduce the private tuition reimbursement. Finally, the ALJ concluded that S.K. had

failed to satisfy her burden to show that the WCBOE had failed to offer her a free and

appropriate education through May 19, 2017 and dismissed S.K.’s claims with prejudice. Jd. at

77-81.

' Due to the size of the administrative record, all citations will reflect the CM/ECF file stamp

page number.

2 The petitioners below will be referred to throughout this order collectively as S.K. Rhonda K.

will be referred to where she is the moving party.

3 The ALJ’s decision is found in the administrative record filed at [DE 18-17 at 20-81].

S.K. appealed the ALJ’s decision pursuant to N.C. Gen. Stat. § 115C-109.9. /d. at 89. On

August 9, 2019, a State Hearing Review Officer (SHRO) for the State Board of Education

resolved the appeal.* [DE 18-7 at 136-37]. The SHRO affirmed in part and reversed in part the

ALJ’s final decision and further affirmed in part, reversed in part, and remanded the ALJ’s prior

order granting in part WCBOE’s Rule 41 motion to dismiss. The ALJ’s final decision was

reversed as to its holding on the following issues: whether the May 2017 IEP denied S.K. a free

and appropriate public education based on its failure to incorporate any accommodation to

support S.K.’s need for a small-class, small-school setting in the general-education environment,

whether Camelot Academy was an appropriate private placement, and whether R.K. acted

unreasonably throughout the IEP process.

On November 6, 2019, WCBOE initiated an action in this Court seeking relief from the

SHRO’s decision. No. 5:19-CV-497-BO. The same day, Rhonda K. initiated an action in this

Court seeking an award of attorney fees and costs and reimbursement of private school tuition.

No. 5:19-CV-498-BO. The cases were subsequently consolidated.

Factual Background

The following is a summary of the factual background of this matter drawn primarily

from the stipulated facts by the parties in the final pretrial order before the ALJ. [DE 18-12 at

146-157].

S.K. was born in September 2002 and was fifteen years old at the time of the filing of the

petition. S.K. was a child with a disability as defined by the IDEA and eligible for services under

the IDEA. S.K. began attending school in the Wake County Public School System (WCPSS) in

kindergarten and remained enrolled there through part of eighth grade.

4The SHRO’s decision is found in the administrative record filed at [DE 18-17 at 95 through 18-

18 at 138].

S.K.’s March 2016 IEP, which is not directly at issue in this case, found that she was an

intelligent student who was able to meet, but was not meeting grade level expectations. S.K.’s

teachers noted that she struggled with socialization, behavior, isolation from peers, and concerns

about bullying. S.K. had earned F grades in math and a Level 1, the lowest score, on her most

recent end-of-grade test in math. S.K. had also earned a Level 1, the lowest score, on her most

recent end-of-grade test in reading. S.K.’s deficits in writing were found to impact her across the

general education curriculum.

In March 2016, prior to the end of her eighth-grade year, S.K.’s parents enrolled her in

the Asheville Academy for Girls (Asheville Academy), a private therapeutic boarding school. At

Asheville Academy, S.K. was enrolled in academic classes as well as individual and family

therapy. In June 2016, S.K. underwent comprehensive psychological and educational evaluations

with Dr. Anna Edwards-Gaura.° The testing revealed an average IQ, delayed processing speed,

and working memory challenges. S.K. was documented to have clinically significant executive

functioning weakness in behavior regulation and metacognition. Dr. Edwards diagnosed S.K.

with Autism Spectrum disorder; Unspecified Anxiety Disorder; ADHD, Primarily Inattentive

Presentation; Specific Learning Disorder with impairments in math and reading; and

Developmental Coordination Disorder (Dysgraphia).

S.K.’s social and emotional challenges included cognitive rigidity, sensory integration

difficulties, inappropriate behavior, and slow processing speed. Prior to her enrollment at

Asheville Academy, S.K.’s frustrations with academic demands, other students, and being asked

to do things she did not want to do, including following through with some of her OCD

behaviors, would result in meltdowns in the classroom consisting of shouting, crying, and

5 The administrative decisions refer to Dr. Edwards-Gaura as Dr. Edwards, and this Court will do

the same.

throwing herself on the floor. In January 2017, an Individualized Academic Plan (IAP) was

developed at Asheville Academy. The IAP noted that at present S.K. “had made great strides

with the supports in place and is displaying a more engaged and positive attitude across the

board.” [DE 18-17 at 37].

In her third quarter at Asheville Academy, S.K. earned A and B grades. It was noted that

during her year at Asheville Academy, S.K. no longer had meltdowns, she had developed

positive relationships with peers and staff, and with universal supports she was able to meet

behavioral and academic expectations. [DE 18-17 at 43]. In February or March of 2017, R.K.

began exploring options for S.K. to return to the WCPSS. On March 23, 2017, R.K. requested a

list of suggested WCPSS high schools that would be appropriate for S.K. R.K. requested the

opportunity to tour the schools with staff members from Asheville Academy prior to an IEP

meeting that was scheduled for April 21, 2017. The IEP meeting was rescheduled, and R.K. was

provided with possible WCPSS school assignments on April 27, 2017. Members of WCPSS also

visited Asheville Academy to gain information about the program and on April 19, 2017, a draft

IEP was provided to the Asheville Academy and R.K. The IEP accepted Dr. Edwards’s

evaluation and used that information in completing the IEP. On May 19, 2017, a reevaluation

and annual review IEP meeting was held. R.K. and her parent advocate as well as an

administrator, psychologist, autism specialist, occupational therapist, attorney, and others from

WCPSS participated in the IEP meeting.

At the end of the meeting, R.K. rejected the IEP. Through her advocate, R.K. asked about

a private school setting. The IEP Team explained that the IEP could be implemented in a

WCPSS school. R.K. subsequently requested a transfer from S.K.’s base school assignment to a

magnet school where options for S.K. might be more fitting. The transfer request was denied and

R.K. did not appeal the denial. R.K. subsequently enrolled S.K. in Camelot Academy in Durham,

North Carolina by submitting paperwork on July 2, 2017. On July 6, 2017, R.K. emailed the

principal of S.K.’s assigned WCPSS base school stating that she had rejected the IEP developed

at the May 19, 2017, meeting and that since there was no appropriate program in place for S.K.

in WCPSS she would enroll S.K. in private school and seek reimbursement from WCPSS. S.K.

began school at Camelot Academy on August 24, 2017.

S.K. performed well at Camelot Academy. She was described as having been able to

“maintain emotional regulation and meet academic, behavioral, and social expectations

throughout the school day.” [DE 18-14 at 12].

DISCUSSION

Motion for Judgment on the Administrative Record

WCBOE seeks entry of judgment in its favor on the administrative record and asks the

Court to reverse the SHRO’s decision and reinstate the ALJ’s decision in full. S.K. asks the

Court to not disturb the well-reasoned and well-supported decision of the SHRO.°

The IDEA was enacted in part

to ensure that all children with disabilities have available to them a free

appropriate public education that emphasizes special education and related

services designed to meet their unique needs and prepare them for further

education, employment, and independent living.

20 U.S.C. § 1400(d)(1)(A). To further this end, the IDEA offers federal funds to states in

exchange for a commitment to furnish a “free appropriate public education” (FAPE) to all

children with certain physical or intellectual disabilities. 20 U.S.C. § 1401(3)(A)(i). A FAPE

comprises special education and related services and includes both instruction tailored to meet a

child’s unique needs and sufficient supportive services to permit the child to benefit from that

6 At the outset, the Court in its discretion grants S.K.’s motion for leave to file a surreply.

instruction. 20 U.S.C. §§ 1401(9), (26), (29); see also Board of Ed. of Hendrick Hudson Central

School Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 203 (1982). An eligible child acquires a

substantive right to such an education once a state accepts the IDEA’s financial assistance. Smith

v. Robinson, 468 U.S. 992, 1010 (1984).

Under the IDEA, an IEP serves as the primary vehicle for providing each child with the

promised FAPE. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1414(d). An IEP is

crafted by the child’s school officials, teachers, and parents and spells out a personalized plan to

meet all of the child’s educational needs. 20 U.S.C. §§ 1414(d)(1)(A)(G)(ID(bb), (d)(1)(B). “The

adequacy of a given IEP turns on the unique circumstances of the child for whom it was

created.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 8. Ct. 988, 1001

(2017). The IDEA establishes that any disputes involving the FAPE or IEP are to be resolved

through state administrative procedures. 20 U.S.C. § 1415.

North Carolina has adopted a two-tiered administrative review process. The first tier is an

evidentiary hearing before an ALJ following the filing of a petition with the Office of

Administrative Hearings (OAH). See E.L. ex rel. G.L. v. Chapel Hill-Carrboro Bd. of Educ., 975

F. Supp. 2d 528, 532 (M.D.N.C. 2013) (citing N.C. Gen. Stat. § 115C-109.6). A party may then

appeal the ALJ’s decision at the OAH level to the State Board of Education which, “through its

Exceptional Children Division, appoints an [SHRO] to review the ALJ’s findings appealed and

issue an independent decision.” Jd. Any aggrieved party may then file a civil action in state or

federal court within ninety days from the date of the hearing officer’s decision or within the time

prescribed by state law. 20 U.S.C. § 1415(i)(2).

“(T]he federal action is an independent civil action and not an appeal of the state

administrative proceeding.” Cty. Sch. Bd. of Henrico Cty., Virginia v. Z.P. ex rel. R.P., 399 F.3d

298, 304 (4th Cir. 2005).

[T]he 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. Under this

standard, the district court must conduct an independent, de novo review, albeit

one generally cabined by the record of the administrative proceedings. In this

posture, the district court must give “due weight” to the administrative

proceedings, bearing in mind that a hearing officer’s findings of fact are entitled

to “be considered prima facie correct.” 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.”

E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of Educ., 773 F.3d 509, 517-17 (4th Cir. 2014)

(internal emphasis and citations omitted); see also MM ex rel. DM v. Sch. Dist. of Greenville

Cty., 303 F.3d 523, 531 (4th Cir. 2002) (“findings of fact made in administrative proceedings are

considered to be prima facie correct, and if a reviewing court fails to adhere to them, it is obliged

to explain why.”). The burden of proof is on the party who brings the civil action challenging the

state administrative decision. Spielberg by Spielberg v. Henrico Cty. Pub. Sch., 853 F.2d 256,

258 n.2 (4th Cir. 1988).

Due Weight and Credibility of the Witnesses.

Because the SHRO and the ALJ decisions are in conflict, the Court “must initially

determine whether the ALJ’s decision or the S[H]RO’s decision is entitled to due weight.”

Wittenberg v. Winston-Salem/Forsyth Cty. Bd. of Educ., No. 1:05CV818, 2008 WL 11189389, at

*3 (M.D.N.C. Nov. 18, 2008).

When the decisions of administrative hearing officers and review officers conflict,

“due weight” is generally given to the administrative hearing by according the

hearing officer’s findings of fact a rebuttable presumption of prima-facie

correctness. But in particular circumstances, reviewing courts may defer to the

findings of the review officer rather than those of the hearing officer, such as

where (1) the review officer’s decision does not turn on witness credibility but on

the weight of the evidence, or (2) the hearing officer’s opinion is cursory and

conclusory, or (3) the review officer provides reasons for departing from the

hearing officer’s findings.

D.B. v. Craven Cty. Bd. of Educ., 210 F.3d 360 (4th Cir. 2000) (unpublished) (citing Springer v.

Fairfax Cty. Sch. Bd., 134 F.3d 659, 663 n.* (4th Cir. 1998)). In determining whether findings of

fact were regularly made, a court “should examine the way in which the state administrative

authorities have arrived at their administrative decision and the methods employed.” Doyle v.

Arlington Cty. Sch. Bd., 953 F.2d 100, 105 (4th Cir. 1991).

WCBOE contends that the SHRO’s decision should be afforded no deference because she

abandoned the ALJ’s thorough credibility determinations. WCBOE contends that the SHRO paid

“lip service” to the idea of deference, but abandoned that deference, relying inappropriately on a

Third Circuit decision finding that if there was evidence in the record to support her

disagreement it was acceptable to abandon her deference to the ALJ.

S.K., on the other hand, argues that the SHRO properly exercised her authority to conduct

a review of the decision wherein she was not required to accept factual findings, including

credibility determinations, that were unsupported by the record. S.K. contends that factual

findings without evidentiary support are not findings that were “regularly made” and are thus not

entitled to deference under Doyle and its progeny.

At the outset, the Court determines that the SHRO’s reliance on the Third Circuit’s

decision in Carlisle Area School District v. Scott P. was not misplaced where that court, in

determining which standard it would apply when reviewing conflicting administrative decisions

under a two-tier system, decided that it would “embrace the Fourth Circuit’s approach in Doyle

[] to the extent that that decision was premised on this specific principle, that credibility-based

findings deserve deference unless non-testimonial, extrinsic evidence in the record would justify

a contrary conclusion or unless the record read in its entirety would compel a contrary

conclusion.” Carlisle Area Sch. v. Scott P. By & Through Bess P., 62 F.3d 520, 528 (3d Cir.

195).

A review of the record in this matter reveals that the SHRO did not pay lip service to the

idea of deference. Rather, the SHRO went through the record in painstaking detail and declined

to assign weight to credibility determinations that were based on factual inaccuracies in the

record or were otherwise completely unsupported. In so doing, the SHRO did not decline to give

due weight to the ALJ’s credibility decisions insofar as those decisions were based upon matters

that only the ALJ could have witnessed first-hand, such as the demeanor of the witness or the

witness’s tone when answering questions on direct and cross-examination. The SHRO properly

reviewed the entire record, including the transcripts of the hearing, and, where the ALJ based

decisions of how much weight to assign to a witness on statements that were either not found in

the transcript or not supported by the transcript, the SHRO decline to afford the ALJ’s weight

determinations due deference.

For example, in her decision the ALJ held that Dr. Kreig, who testified for WCBOE, had

been received as an expert in educational planning for students with autism when in fact the ALJ

had at the hearing expressly declined to receive Dr. Kreig as an expert in educational planning

for students with autism. See [DE 18-17 at 141]; [18-4 at 32]. This error was not harmless,

because in her decision the ALJ relied on Dr. Kreig’s non-expert testimony in this area over the

testimony of S.K.’s expert in this area, Dr. Leach. [DE 18-18 at 21].

WCBOE also contends that the SHRO improperly rehabilitated the credibility of

witnesses that the ALJ found unconvincing or unhelpful, specifically Dr. Leach, Dr. Edwards,

10

Ms. Mojave, and R.K. WCBOE further contends that the SHRO improperly discredited its

witnesses, whom the ALJ had found convincing and credible.

Review of the record in this matter does not support WCBOE’s arguments. In reviewing

the ALJ’s treatment of the witnesses at the hearing, the SHRO noted that the ALJ diminished the

credibility of all of S.K.’s witnesses and none of WCBOE’s. This is notable as none of

WCBOE’s witnesses “had ever spoken with, taught, served, or evaluated S.K.” [DE 18-17 at

118]. As to Dr. Leach, S.K.’s only expert witness, the ALJ found Dr. Leach to be generally very

knowledgeable in her nine areas of expertise and also noted that Dr. Leach had specific

knowledge about S.K. based upon her review of the records, her observation of S.K. at Asheville

Academy, and her discussions about S.K. with staff at Asheville Academy and Camelot

Academy. [DE 18-17 at 28]. The ALJ went on, however, to find Dr. Leach’s credibility

diminished by several aspects of her testimony, including her repeated application of

assumptions and perceptions about public schools generally. Jd. However, as the SHRO found,

the hearing transcript does not support the ALJ’s finding that Dr. Leach “repeatedly” applied

assumptions, and to the contrary reflects that Dr. Leach declined to make generalizations or

assumptions. See, e.g., [DE 18-3 at 143].

WCBOE argues that the transcript plainly reflects that on direct examination Dr. Leach

found inadequacies in every aspect of the IEP, but then on questioning from the ALJ changed her

tune, supporting the ALJ’s decision to give less weight to her testimony. Contrary to WCBOE’s

assessment, the transcript does not reflect that Dr. Leach was unable to sustain her position on

direct during questioning by the ALJ. Dr. Leach was permitted testify as an expert in the area of,

among other things, IEP development, and on questioning by S.K.’s counsel she related the

deficiencies she had identified in the May 2017 IEP. When asked by the ALJ whether there was

11

anything about the May 2017 IEP that she thought was appropriate, Dr. Leach identified areas

where she thought the IEP was “getting to appropriateness” and others that she found

appropriate. Dr. Leach clarified that while she did not take issue with the entirety of the May

2017 IEP, she determined that it was not sufficiently comprehensible for S.K. to be successful.

See, generally, [DE 18-3 at 57 — 171].

The SHRO further found that the ALJ’s reliance on Dr. Leach’s lack of familiarity with

WCPSS’s Autism Support Program “introduce[d] a red herring because WCPSS’[s] Autism

Support Program [was] not incorporated into the May 2017 IEP in whole or in part.” [DE 18-17

at 161]. Moreover, the SHRO concluded that the record contradicted the ALJ’s finding that Dr.

Leach was not familiar with WCPSS’s Autism Support Program based upon testimony that Dr.

Leach had reviewed WCPSS’s published descriptions of its Autism Support Program and

compared those to S.K.’s May 2017 IEP. Dr. Leach concluded that the May 2017 IEP did not

include the supports offered in the Autism Support Program. [DE 18-3 at 97].

Finally, the ALJ relied on Dr. Leach’s lack of personal knowledge of the high school and

the IEP Team members in question to discredit her testimony. The SHRO noted that “[w]hile Dr.

Leach had not taught at or observed a class within the specific high school to which [WCPSS]

assigned S.K., neither had [WCPSS’s] expert, Dr. Faulkner, and the ALJ did not find Dr.

Faulkner’s lack of teaching or observation at the specific high school to which [WCPSS]

assigned S.K. to create a ‘lack of personal knowledge or experience that would undermine Dr.

Faulkner’s credibility.”” [DE 18-17 at 155 n. 29]. Nor did the hearing testimony reveal that Dr.

Faulkner had any personal experience with S.K.’s IEP Team or that she had experience with

WCPSS’s Autism Support Program. [DE 18-18 at 22]. The record does, however, reflect that Dr.

Leach had some familiarity with the IEP Team members, including R.K. and Stephanie Shaw, a

12

special education teacher with WCPSS. [DE 18-17 at 152-53]. Despite Dr. Faulkner having the

same deficits in experience that the ALJ assigned to Dr. Leach, the ALJ declined to diminish Dr.

Faulkner’s credibility in any way.

The ALJ also diminished the credibility of Dr. Edwards, who was offered as a fact, not an

expert, witness for S.K. [DE 18-17 at 27]. The ALJ found Dr. Edwards’s report and her

testimony about her report and evaluation of S.K. comprehensive and credible. The ALJ

expressed concern, however, that Dr. Edwards had never worked in a public-school setting and

that she had “repeatedly refused to answer questions that were appropriate subjects for

questioning by [WCBOE]’s counsel.” Jd. at 29. The ALJ found that Dr. Edwards refused to

answer questions about the necessity of a class-size cap for S.K.’s academic achievement, which

the ALJ described as the central issue in the case, and that Dr. Edwards’s unwillingness to

answer demonstrated “that her expert opinion, if given, would not have been favorable to

[S.K.].” Id.

Again, the record does not support the ALJ’s finding. A review of Dr. Edwards’s

testimony does not reveal that she refused to answer questions, but rather that she attempted to

limit her testimony to the scope of her report. Dr. Edwards was not called or admitted as an

expert witness and thus was not permitted to express her scientific, technical, or specialized

opinion. See Fed. R. Evid. 701-702. Nonetheless, she answered questions that went beyond the

scope of her 2016 report when she was asked. See, e.g., [18-2 at 61; 72-73; 76-78].

Critically, the ALJ’s determination that Dr. Edwards refused to answer questions about

the whether a class-size cap was necessary, which the ALJ described as the central issue in the

case, is completely unsupported by the transcript. As the SHRO thoroughly explained, Dr.

Edwards was never asked about class size or a class-size cap. WCBOE does not address this

13

error in its brief describing Dr. Edwards’s testimony. Accordingly, the Court determines that the

SHRO correctly declined to afford due weight to the ALJ’s assessment of Dr. Edwards’s

testimony as it was based in large part on a misstatement of the record.

In diminishing the credibility of R.K., S.K.’s mother, the ALJ in her decision found that

R.K. was unreasonable in her search for private schools, but during the hearing the ALJ had

expressly found that it was reasonable for a parent to explore private school options given the

time of year that the IEP was developed. See [DE 18-17 at 113]; see also [DE 18-3 at 270] (“I

don’t think it’s unreasonable for a parent if they’re not sure if the school is going to offer an

appropriate IEP to look at other options.”). The ALJ’s written findings are in conflict with her

statements at the hearing, and the written findings fail to explain the basis for departing from

those statements.

Cases in this circuit have generally “focused on the process through which the findings

were made”, J.P. ex rel. Peterson v. Cty. Sch. Bd. of Hanover Cty., Va., 516 F.3d 254, 259 (4th

Cir. 2008) (emphasis in original), when determining whether the hearing officer’s findings were

regularly made and thus entitled to due weight or to be considered prima facie correct. Here, the

SHRO carefully considered each of the ALJ’s credibility findings and determined that several

were based on erroneous accounts of the record or were otherwise unsupported by it. The SHRO

further fully explained her reasons for departing from the fact-finding of the ALJ, and the

SHRO’s grounds for doing so are supported by the record. The Court determines that findings

based upon erroneous accounts of the record are not findings which were regularly made, and

thus the SHRO did not improperly decline to afford deference to the ALJ’s credibility

determinations. Accordingly, the Court gives due weight to the SHRO’s findings of fact

regarding the testimony of the witnesses and their credibility.

14

II. Small School, Small Class Size.

WCBOE next argues that the SHRO inappropriately reversed the ALJ’s thorough

decision supporting the determination that a small class size was not required for a FAPE.

WCBOE further argues that the SHRO committed several errors in reversing the ALJ’s carefully

reasoned decision on class size.

In S.K.’s petition for a contested case hearing, S.K. requested that the IEP Team place

S.K. in a small school with small class sizes as recommended by Asheville Academy. [DE 18-18

at 32]. Indeed, the ALJ and SHRO both recognized that a small-class setting for S.K.’s general

education classes was “the heart of the case” [DE 18-18 at 28] and the “primary judiciable

issue”. [DE 18-17 at 22]. The ALJ, however, focused on whether the evidence in the record

would support the need for a particular class-size cap, and concluded that S.K. had failed to

demonstrate that a particular class-size cap was necessary.

The SHRO reversed this decision, concluding that S.K. had never requested a class-size

cap, and thus a determination that she had failed to demonstrate that a particular class-size cap

was necessary was unnecessary to deciding the petition. [DE 18-18 at 38-39]. Contrary to

WCBOE’s arguments, the SHRO’s decision on this issue was regularly made and is well-

supported by both her detailed explanation for departing from the ALJ’s conclusion and the

record, and the Court will thus afford it due weight.

The SHRO identified the gap in the ALJ’s reasoning as to what both agreed was the

primary issue in the case. S.K. never asked for a particular cap on class or school size, and thus

she never presented any evidence which would support a determination that her school or classes

must be limited to a particular size — and the ALJ in her decision held as much, concluding that

the evidence supported the WCBOE’s position that a class-size cap was not required in S.K.’s

15

IEP. [DE 18-17 at 61]. Instead of asking for a particular school or class-size cap, S.K. recognized

that a small-class setting could be achieved in a number of different ways, including lowering the

teacher-student ratio with the inclusion of teacher’s aides or co-teachers, using fewer students in

particular sections, and providing certain training to regular education teachers, not just special

education teachers. [DE 18-18 at 35].

The Court is unpersuaded by WCBOE’s argument that whether S.K. required a small

school or class size necessarily hinged on defining the specific number of students in her classes.

WCBOE has cited no case or regulation which requires that the term “small class” or “small-

class setting” be defined by a particular number of students or a particular student-teacher ratio.

Because the ALJ only considered the small school, small class size issue in the context of a

class-size cap, she never reached the issue actually raised by S.K. Thus, the SHRO properly

considered the issue presented by S.K.: “whether the May 2017 IEP failed to offer a FAPE when

it failed to offer any accommodation(s) to address [S.K.’s] need for a small-class, small-school

environment within S.K.’s general education classrooms . . ..” [DE 18-18 at 39] (emphasis

omitted).

WCBOE criticizes the SHRO’s reliance on Gellert v. District of Columbia Public

Schools, 435 F. Supp. 2d 18 (D.D.C. 2006), arguing that Gellert does not stand for the assertion

that a child’s need for a small class size must be met. This Court, like the SHRO, finds Gellert

both instructive and persuasive in this context.

Gellert’s parents removed him from D.C. Public Schools after his school performance

deteriorated following his attendance at a public junior high school. Once enrolled at a private

school, Gellert showed significant improvement in academics. Gellert suffered from emotional

issues, including anxiety in crowded settings. After Gellert’s parents and representatives from his

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private school attended an IEP meeting, they “did not agree to the IEP that was developed

because it did not contain a requirement for a small class size.” Id. at 20. While the record

included an opinion that Gellert should attend classes with no more than ten students, id. at 25-

26, this does not, as WCBOE suggests, require that an expert persuasively establish a particular

class-size cap or that parents request a class-size cap in order to sufficiently request a small class-

size environment. Indeed, the Gellert court, as the SHRO did in this case, concluded that

“without addressing the main point of contention between the parties—namely whether [the high

school] could accommodate [Gellert’s] need for a small class size and related services—the

Hearing Officer could not have accurately determined whether [Gellert] could receive FAPE at

[the high school].” Jd. at 24.

WCBOE further contends that, as the ALJ determined, the fact that witnesses testified

that S.K.’s optimal learning environment was a small-school, small-class setting, or that S.K.

would do better in a small learning environment was not the proper way to frame the issue.

WCBOE argues that none of the evidence shows that S.K. required a small class setting. See

also Bd. of Educ. of Frederick Cty. v. IS. ex rel. Summers, 325 F. Supp. 2d 565, 590 (D. Md.

2004) (“IDEA’s FAPE standards do not require schools to provide an education that will enable

the child to achieve maximal educational benefit.”). To the contrary, however, S.K.’s March

2016 IEP with WCPSS “expressly recognized that S.K. ‘requires small group instruction to

complete her work . . . [and] meet grade level expectations.’”. [DE 18-18 at 33]. This conclusion

was supported by the findings of Dr. Leach, Dr. Edwards, and S.K.’s measured improvement

while attending Asheville Academy, which provided small-class learning environments. S.K.

was an intelligent student who could perform in a regular education classroom. [DE 18-18 at 29].

However, her complex diagnoses and disabilities prevented her from being able to retain and

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process information in a large-class setting such as those offered through her May 2017 IEP. Jd.

(citing Hrg. Tr. 138-193).

The SHRO compared the March 2016 IEP to the May 2017 IEP and noted the

similarities, especially regarding S.K.’s placement in a large regular education setting with time

spent in a segregated, small-class resource setting. [DE 18-18 at 46-47]. But it was plain that the

March 2016 IEP was insufficient to meet S.K.’s needs as it resulted in “below-grade-level

performance, a failing grade in math, and a D in language arts”. [DE 18-18 at 65]. WCBOE also

contends that the Break Card accommodation in the May 2017 IEP allowed S.K. sufficient

flexibility and access to small environment during the school day. The Break Card

accommodation was designed as something that S.K. could use whenever she felt she needed to

leave the large, general-education setting. She could use the Break Card to go to a resource room

available only to disabled students or engage in other behaviors, such as taking a walk around the

quad, which would help her get through her day. See [DE 18-14 at 61-64; 84]; [DE 18-5 at 980].

Though the Break Card offered a flexible way for S.K. to manage her day, it nonetheless

required her to leave her general education classroom to get support, which, as her mother noted,

would detract from S.K.’s ability to work hard and progress academically. The Break Card was

not a sufficient substitution for a small-class environment which the March 2016 IEP, S.K’s

expert, and her teachers at Asheville Academy recognized that she needed.

In sum, the Court has considered the arguments raised by WCBOE on this issue and

concludes that the record supports the SHRO’s conclusion that S.K. required a small-school,

small-class environment for her general education classes and that such an accommodation was

not provided by the May 2017 IEP. Affording the SHRO’s decision due deference, the Court

finds WCBOE’s arguments unavailing and declines to disturb the SHRO’s decision on this issue.

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III. Private School Appropriateness and Entitlement to Reimbursement.

WCBOE next argues that the SHRO inappropriately reversed the ALJ’s decision that the

private school was not appropriate and S.K. and her parents were not entitled to reimbursement.

WCBOE contends that the SHRO misconstrued the legal standard and afforded improper weight

to selective factors in assessing the appropriateness of the private school. The Court disagrees

and finds that the SHRO’s findings were appropriately made and should be afforded due weight.

The IDEA requires a school district to reimburse a parent of a child with a disability the

cost of enrollment in a private school if the school district has failed to offer a FAPE and the

program is appropriate. 20 U.S.C. § 1412(a)(10)(c); Florence Cty. Sch. Dist. Four v. Carter By

& Through Carter, 510 U.S. 7, 9-10 (1993). A private school need not meet the IDEA definition

of a FAPE for a parent to obtain reimbursement, id. at 13, and “a parental placement is

appropriate if it is reasonably calculated to enable the child to receive educational benefits.” M.S.

ex rel. Simchick v. Fairfax Cty. Sch. Bd., 553 F.3d 315, 324 (4th Cir. 2009) (internal quotation

and citation omitted).

Camelot Academy provided S.K. with a small-class environment, with an average class

size of nine or ten students. [DE 18-2 at 95]. At Camelot Academy, S.K. was provided with

organizational skills and study skills during her regular education classes. Jd. at 135. Because of

the small-school environment, Camelot Academy teachers are able to identify weaknesses in

students’ abilities and provide support across subjects. Jd. at 96. While at Camelot Academy,

S.K. experienced a decrease in anxiety and was able to achieve academic goals due to the small

class size and her ability to feel safe and secure. Jd. at 117. Camelot Academy does not have

special education classes but is able to make needed accommodations within the general

education classroom. Jd. at 118. According to S.K.’s team at Camelot Academy:

Due to the consistent structure of the school day, very clear expectations,

opportunities to take breaks when she needs them, accommodations for testing

(e.g. one page at a time), preferential seating where S.K. is placed on the sides as

opposed to in the center of the room to address her focus and attention issues as

well as her sensory and social/emotional needs, academic success resulting from

individualized instruction tailored to her present abilities and learning profile, and

a culture in the school that encourages self-advocacy, S.K. has been able to

maintain emotional regulation and meet academic, behavioral, and social

expectations throughout the school day. She is able to ask questions if she needs

help understanding content or assignment expectations, advocate for specific

accommodations (e.g. more time, breaks, visual supports), and she raises her hand

to answer questions in class.

[DE 18-4 at 11]. To be sure, several of these supports were included in S.K.’s May 2017 IEP,

such as preferential seating, testing accommodations, and the opportunity to take breaks. A

primary difference, however, is that Camelot Academy provided S.K. with a small-school, small-

class environment. Although Dr. Shaw, a witness for WCPSS, had testified that S.K. would need

instruction on social skills outside the regular classroom setting, S.K. appeared to be able to

absorb social skill instruction within a small classroom setting with individualized support.

Finally, a finding that parents acted unreasonably may be grounds to reduce or deny a

claim for tuition reimbursement. See 34 C.F.R. § 300.148(d)(3). As discussed above, the Court

affords due deference to the SHRO’s findings that R.K.’s actions were not unreasonable, and its

own review of the record does not identify grounds to reduce the tuition reimbursement.

Based upon its review of the testimony and the record, and affording the SHRO’s

decision due weight, the Court determines that the program at Camelot Academy was reasonably

calculated to enable S.K. to receive meaningful educational benefits. Thus, it was an appropriate

placement under the statute. There are no grounds which would support a reduction of tuition

reimbursement.

V. Dismissal of Certain Claims.

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Finally, WCBOE argues that the SHRO inappropriately reversed the ALJ’s decision to

dismiss certain claims following its Rule 41(b) motion. The Court agrees and declines to follow

the SHRO’s conclusions as to these claims.

The SHRO reversed the ALJ’s dismissal of four claims, finding that the ALJ’s findings

of fact were insufficient. Those claims related to counseling/parent training, supplementary aids

and services, the alleged refusal to fully evaluate S.K., and any procedural violations not related

to parental participation. The Court agrees with WCBOE that adequate support for the ALJ’s

conclusions as to these claims can be found in the record.

S.K.’s mother testified at the hearing that she did not ask for parent training and that she

did not remember asking for counseling at the IEP meeting because S.K. was already receiving

counseling. [DE 18-2 at 208]. The record thus supports the ALJ’s decision as to S.K.’s claim for

counseling and parent training, and this claim was properly dismissed.

At the hearing, the ALJ stated on the record that she would dismiss all claims for

supplemental aids and services except S.K.’s claim for a small class size. [DE 18-3 at 257-58].

The ALJ found dismissal of S.K.’s claims on supplemental aides and services appropriate

because S.K.’s expert had opined that S.K.’s existing accommodations were appropriate. Jd. This

record was a sufficient ground on which to dismiss this claim.

The hearing transcript further supports the ALJ’s dismissal of S.K.’s claims related to

WCBOE’s alleged refusal to fully evaluate S.K. S.K. alleged that WCBOE failed to evaluate

S.K. in all areas. But the ALJ relied on the fact that, for example, as to a reading and math

evaluation, the IEP Team had adopted S.K.’s private evaluation in reading in math, and thus the

ALJ determined that an evaluation in reading and math had, in fact, been conducted. [DE 18-3 at

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259-60]. Although S.K.’s allegation is not particularly clear, the ALJ’s colloquy with counsel

provides a sufficient basis on which to dismiss this claim. Jd.

Finally, the ALJ included a catch-all dismissal of any other procedural violations, stating

that, to the extent there were any additional procedural violations alleged by S.K., they had not

been proven and would be dismissed. The Court discerns no error in the ALJ’s statement.

V. Conclusion.

The Court has conducted a modified de novo review of the record and the decisions in

this case. The Court determines that the decision of the SHRO rather than the ALJ should be

afforded due weight as it is based upon a thorough and exhaustive review of the record and

includes detailed explanations for any departures from the ALJ’s conclusions. The arguments by

WCBOE, which has burden of proof in this action, fail to demonstrate that the decision of the

SHRO was erroneous with the exception of the SHRO’s reversal of the ALJ’s Rule 41(b)

dismissal of four of S.K’s claims.

As discussed above, S.K. was an intelligent child whose unique and complex symptoms

required placement in a small-school, small-class setting in order for her to benefit from

instruction tailored to meet her needs. Affording the SHRO’s decision due deference and based

upon its own review, the Court concludes that WCBOE failed to offer S.K. a FAPE in the least

restrictive environment and that the May 2017 IEP was not appropriate to meet S.K.’s needs. The

Court further determines that S.K.’s placement in Camelot Academy was appropriate and S.K.’s

parents are entitled to reimbursement.

Motion for Attorney Fees

Rhonda K., individually and on behalf of her minor child S.K., seeks attorney fees and

costs against WCBOE as prevailing parties. Rhonda K. further seeks reimbursement of S.K.’s

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educational expenses and related costs incurred. As discussed above, the Court has declined to

disturb the holding of the SHRO that S.K. was denied a FAPE and that Camelot Academy was

an appropriate placement. Accordingly, it is undisputed that Rhonda K. and S.K. are the

prevailing parties for purposes of the IDEA. See [DE 40 at 3-4].

The IDEA provides for reasonable attorney fees to be awarded to the prevailing party

who is the parent of a child with a disability. 20 U.S.C. § 1415()(3)(B)(i). The award of attorney

fees is within the court’s discretion. /d.; J.D. ex rel. Davis v. Kanawha Cty. Bd. of Educ., 571

F.3d 381, 387 (4th Cir. 2009). Any fees awarded shall be based on the prevailing rates in the

community in which the action arose, without the use of any bonus or multiplier. Jd at §

1415(i)(3)(C). “The court may award fees not only in the case before it but also with respect to

the administrative proceeding.” Cone v. Randolph Cty. Sch. Bd. of Educ., No. 1:06CV00579,

2010 WL 1610445, at *3 (M.D.N.C. Apr. 19, 2010). Finally, a court should consider not only the

customary hourly rates but also the results obtained. J.D. ex rel. Davis, 571 F.3d at 387.

Rhonda K. requests a total of $159,271.00 in attorney fees and $911.43 in litigation

expenses. The attorney fees are based upon a top hourly rate of $250 per hour, which WCBOE

agrees is a reasonable rate based on the prevailing rate in this community. WCBOE does not

object generally to the number of hours rcpt but does object to some of the billing entries as

vague. WCBOE further requests a reduction in the overall fee request based upon Rhonda K.’s

partial success in the litigation.

To calculate an award of attorney fees, the court “must first determine a lodestar figure

by multiplying the number of reasonable hours expended times a reasonable rate.” Robinson v.

Equifax Info Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009). Factors to consider in determining

the reasonableness of the hours and rate include: (1) the time and labor required; (2) the novelty

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and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the

preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee;

(6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the

circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation

and ability of the attorneys; (10) the “ undesirability” of the case; (11) the nature and length of

the professional relationship with the client; and (12) awards in similar cases. Hensley v.

Eckerhart, 461 U.S. 424, 430 n.3 (quoting Johnson v. Georgia Highway Express, Inc., 488 F.2d

714, 717— 19 (Sth Cir. 1974)); see also Grissom v. The Mills Corp., 549 F.3d 313, 320 (4th Cir.

2008).

As noted above, WCBOE does not contest the reasonableness of the rate or hours

generally, though it does request a reduction in the overall fee based upon Rhonda K.’s limited

success. The Court finds, however, that Rhonda K.’s success on her most significant claims —

contesting the May 2017 IEP and obtaining a decision that S.K.’s placement at Camelot

Academy was appropriate — supports her request for her full amount of attorney fees. See J.D. ex

rel. Davis., 571 F.3d at 387. Indeed, where a party “has obtained excellent results, his attorney

should recover a fully compensatory fee. . . . In these circumstances the fee award should not be

reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit.”

Hensley, 461 U.S. at 435. The Court, in its discretion, declines to reduce Rhonda K.’s attorney

fees based upon her failure to prevail on every contention she raised.

The Court has also considered the billing records in this matter and finds them to be

sufficiently detailed. [DE 39-1]. The Court’s review of the remaining Johnson factors further

supports a full fee award. As detailed by Rhonda K. in her reply, this case presented a novel

issue as North Carolina’s public schools typically do not offer small-school or small-class

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settings in the general education environment as an accommodation. Special education litigation

on behalf of parents under the IDEA are not desirable cases, as is evidenced by the fact that there

are only a handful of private special education attorneys in the state. See, e.g. [DE 1-3] S.K. v.

Wake Co. Public School Sys. Bd. Of Ed., No. 5:19-CV-498-BO (Nov. 6, 2019 E.D.N.C.). None

of the other Johnson factors counsel in favor of a reduction in Rhonda K.’s attorney fees.

Accordingly, the court awards Rhonda K. the full amount of attorney fees and litigation expenses

requested.

The Court further awards Rhonda K. tuition and transportation reimbursement for the

2017-2018, 2018-2019, 2019-2020, and 2020-2021 school years. WCBOE agrees that if this

Court upholds the SHRO decision, which it has, Rhonda K. is entitled to reimbursement for the

2017-2018 and 2020-2021 school years. WCBOE further does not contest that Rhonda K. is

entitled to reimbursement for the 2019-2020 school year and it has reimbursed Rhonda K. for

this school year. WCBOE contests reimbursement for the 2018-2019 based upon a waiver

argument. The Court determines, however, that the stay-put provision of 20 U.S.C. § 1415q)

applies to the 2018-2019 contested school year. See Rena C. v. Colonial Sch. Dist., 890 F.3d 404,

415 (3d Cir. 2018). Accordingly, Rhonda K. has demonstrated she is entitled to reimbursement

for all four school years she has claimed.

The Court will not, however, award reimbursement for the costs of before-and-after

school care. The statute provides for reimbursement of tuition and transportation costs, and

Rhonda K. has cited no case law which would support reimbursement for care provided outside

the typical school day. The Court therefore reduces Rhonda K.’s requested reimbursement by the

amount claimed for these expenses See [DE 39-2]. Rhonda K.’s reimbursement award is

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therefore $66,378.83, representing reimbursement for transportation in the amount of $17,560.83

and reimbursement for tuition and fees in the amount of $48,818.00.

CONCLUSION

For the foregoing reasons, S.K. by and through her parent R.K’s motion for leave to file

surreply [DE 44] is GRANTED and the clerk is DIRECTED to file the proposed surreply at [DE

44-1]. Wake County Board of Education’s motion for judgment on the administrative record [DE

36] is GRANTED IN PART and DENIED IN PART. The Court holds that S.K. was denied a

free and appropriate public education based upon her May 2017 IEP and that her placement at

the private school was appropriate to meet S.K.’s needs.

Rhonda K., individually and on behalf of her minor child S.K.’s motion for attorney fees

and costs [DE 38] is GRANTED IN PART and DENIED IN PART. Rhonda K. is entitled to the

full attorney fee request of $159,271.00 plus reasonable litigation expenses of $911.43. Rhonda

K. is further entitled to private school tuition and transportation reimbursement in the amount of

$66,378.83.

The clerk is DIRECTED to enter judgment in each of these consolidated cases and close

the files.

SO ORDERED, this @@ day of May, 2021.

UNITED STATES DISTRICT JUDGE

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