A.W. v. Tennessee Department of Education

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

A.W. and M.W., )

) Lead Case No. 3:20-cv-76

Plaintiffs, )

) Member Case No. 3:21-cv-57

v. )

) Judge Travis R. McDonough

LOUDON COUNTY SCHOOL )

DISTRICT, ) Magistrate Judge Debra C. Poplin

)

Defendant. )

)

MEMORANDUM OPINION

Before the Court is Plaintiffs’ motion for judgment on the administrative record (Doc.

102). For the following reasons, the motion will be GRANTED IN PART and DENIED IN

PART.

I. BACKGROUND & FINDINGS OF FACT

Under the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C.

§ 1400 et seq., schools receiving federal funding must provide children with disabilities a “free

and appropriate public education” (“FAPE”). Hupp v. Switz. of Ohio Loc. Sch. Dist., 912 F.

Supp. 2d 572, 588 (S.D. Ohio 2012) (citing Burilovich v. Bd. of Educ. of Lincoln Consol. Schs.,

208 F.3d 560, 565 (6th Cir. 2000)). To provide a FAPE, school districts subject to the IDEA

must create an individualized education program (“IEP”) for each child with a disability that is

designed to meet the eligible student’s unique needs. Id.; 20 U.S.C. § 1414(a)(5).

M.W. is a fifteen-year-old girl who has attended schools in Defendant Loudon County

School District (“LCSD”) since kindergarten. (Doc. 67-3, at 727.) M.W. has been diagnosed

with attention-deficit-hyperactivity disorder (“ADHD”), oppositional-defiance disorder

(“ODD”), and intellectual disability. (Id. at 558.) In January 2013, when M.W. was in

kindergarten, her IQ was evaluated using the General Intellectual Ability subtest of the

Woodcock-Johnson IV Tests of Cognitive Abilities, and she received a score of 87. (Id. at 764.)

By September 2016, M.W.’s IQ was again evaluated using the same test, but on this evaluation,

she received a score of only 70. (Id. at 552.)

A. Fifth Grade

M.W. began her fifth-grade year in fall 2017, and she attended North Middle School, a

school within LCSD. (Id. at 727.) During her fifth-grade year, M.W. was eligible for special-

education services pursuant to the IDEA under the classification “intellectual disability” and

“otherwise health impaired.” (Id.)

On September 27, 2017, several LCSD employees met for M.W.’s annual IEP review and

to generate an IEP for her fifth-grade year (“Fifth-Grade IEP”). (Id. at 743.) A.W., M.W.’s

mother, is listed as a participant in the September 27, 2017 IEP review, but she testified that she

does not believe she attended this meeting. (Id.; Doc. 67-2, at 1114–15.) In a sworn affidavit,

A.W. averred that, while she received the invitation to the September 27, 2017 IEP meeting

initially, M.W.’s fifth-grade special-education teacher told A.W. that, due to “some kind of

personal situation,” there was not going to be an IEP meeting on September 27, 2017. (Doc. 67-

2, at 385.) Nonetheless, an IEP for M.W. was created after the September 27, 2017 meeting.

(Doc. 67-3, at 727–43.) The Fifth-Grade IEP includes descriptions and data of M.W.’s “present

levels of performance” in six assessment areas: (1) academic readiness, (2) adaptive behavior,

(3) fine motor, (4) gross motor, (5) pre-vocational, and (6) social/emotional behavior. (Doc. 67-

3, at 729–32.) Based on the data presented under the “present levels of performance,” the Fifth-

Grade IEP identifies M.W.’s areas of need, sets an annual goal for M.W. to meet in each area,

lists the LCSD personnel/position responsible for meeting the need, lists “benchmarks/short-term

instructional objectives,” notes the anticipated beginning date for working toward the

benchmarks, and specifies the methods of evaluation for each benchmark. (Id. at 733–36.)

The IEP team copied the annual goals for four out of M.W.’s five areas of need (all but

fine motor) verbatim from her previous IEP, which was created in January 2017. (Compare id.

at 733–36, with id. at 710–713.) On November 16, 2017, LCSD held another IEP meeting—less

than two months after the September 27, 2017 meeting. (Doc. 97, at 37.) A.W. participated in

the November 16, 2017 meeting. (Doc. 97, at 37–38.) The only difference between the IEP

generated on November 16, 2017 (“Fifth-Grade IEP Addendum”), and the Fifth-Grade IEP is the

specification of certain additional accommodations to be provided to M.W. in her classes. (Id. at

30–32.) The goals in the Fifth-Grade IEP Addendum are exactly the same as the goals in the

Fifth-Grade IEP. (Id. at 26–29; Doc. 67-3, at 733–36.) Therefore, the academic readiness,

social/emotional behavior, pre-vocational and adaptive-behavior goals in M.W.’s IEPs remained

the same from January 2017, through all of M.W.’s fifth-grade year, and until September 2018—

a period of twenty months. (Doc. 67-3, at 710–13, 733–36; Doc. 97, at 26–29.) The IEP

progress reports for M.W.’s fifth-grade year indicate that M.W. did not meet any of her goals

during this period, though she made progress. (Doc. 67-3, at 919–44.)

B. Sixth Grade

During the 2018–2019 school year, M.W. was in the sixth grade and continued to attend

North Middle School in LCSD. (Id. at 558.) The teacher assigned to provide M.W. with special-

education services was Zachary Buchanan. (Id. at 577.)

On September 21, 2018, the IEP team once again met for M.W.’s annual IEP review.

(Id.) A.W. was present for this meeting and was accompanied by an advocate, Jennifer Nagel.

(Id.) The IEP generated at this meeting (the “Sixth-Grade IEP”) follows the same structure as

the Fifth-Grade IEP: it sets out present levels of performance, identifies areas of need, sets goals

for each area, and includes details on how each goal will be measured. (See id. at 558–77.) The

“present levels of performance” section of the Sixth-Grade IEP indicated that on September 13,

2018, LCSD administered the Woodcock-Johnson III Normative Update Tests of Achievement

(“WJ-III NU Ach”) subtest for Math Computation (Calculation) to M.W. (Id. at 561.) M.W.’s

score on this subtest placed her at a grade equivalent of 1.9—meaning her math-calculation skills

were equivalent to the expected skills of students in the ninth month of first grade. (Id.)

i. Special-Education Teacher

The Sixth-Grade IEP specified that M.W. should continue to receive 240 minutes per day

of services from a special-education teacher in a special-education setting. (Id. at 573–74.)

Buchanan signed the Sixth-Grade IEP as the special-education teacher, leading A.W. to believe

that he was properly licensed to teach special education. (Id. at 577.)

However, Buchanan was not licensed to teach special education at the time he taught

M.W. (Doc. 67-2, at 549–53.) In Tennessee, a licensed teacher may obtain a provisional

special-education endorsement by submitting a recommendation from a State Board-approved

educator-preparation provider verifying the teacher’s enrollment in a program of study for

additional endorsement in special education and assuring that the teacher will be assigned a

mentor who is endorsed in special education. Tenn. Comp. R. & Regs. 0520-02-03-.11. At the

time LCSD Special-Education Supervisor Melanie Amburn interviewed and hired Buchanan to

teach special education at North Middle School, he was licensed to teach kindergarten through

fifth grade in Tennessee and was enrolled in a master’s degree program in special education at

Tusculum University. (Doc. 67-2, at 550–51.) He advised Amburn that he was working on

obtaining his provisional endorsement in special education. (Id.) Amburn assumed, because he

was enrolled in an appropriate program of study for the additional endorsement, that Buchanan

would complete the necessary steps once hired to obtain his provisional endorsement in special

education, but she did not follow up with the Tennessee Department of Education (“TDOE”) or

with Buchanan to ensure that he obtained the endorsement. (Id. at 552.) It is undisputed that

Buchanan failed to submit the required recommendation from Tusculum University, his

educator-preparation provider, verifying his enrollment and assuring that he would be assigned a

mentor. (Id. at 549–53, 650–51.) However, LCSD assigned Buchanan another teacher, Tracy

Fritts, to mentor Buchanan. (Id. at 628.) In late February 2019, Buchanan resigned from his

position with LCSD. (Id. at 618–20.) After Buchanan resigned, Lesly Brown replaced him as

special-education teacher for M.W.’s classroom. (Id. at 567.) Brown is a certified special-

education teacher and had served as a paraprofessional in M.W.’s classroom before she was

promoted to full-time special-education teacher after Buchanan left. (Id.)

ii. Progress Monitoring

The Sixth-Grade IEP also provided that M.W.’s math-calculation and math-problem-

solving goals were to be measured by “data collection, work samples, and monthly progress

monitoring.” (Doc. 67-3, at 566–67.) Her reading-comprehension goal was to be measured by

“data collection, teacher observation, and monthly progress monitoring.” (Id. at 567.)

AIMSweb tests, or “probes,” are short, timed tests, which last from one to eight minutes

at the sixth-grade level, depending on the subject area. (Doc. 67-2, at 748–79.) Buchanan and

Brown administered these probes to M.W. as part of her goal monitoring during her sixth-grade

year. (Id. at 1290–91.) Sandy Stewart, another special-education teacher at North Middle

School, trained Buchanan and Brown to administer AIMSweb probes and instructed them to

perform them monthly. (Id. at 984, 1247, 1253–54.) Stewart also administered some of the

AIMSweb probes and other testing to M.W. to assist Buchanan and Brown. (Id. at 701, 994.)

LCSD’s education expert, Dr. John McCook, Ed.D., testified that “AIMSweb is not a diagnostic

instrument. AIMSweb is an observational one piece of data that is one minute out of the 7,200

minutes that month that the child has instruction,” and “typically . . . it would not be best practice

to use one piece of data to make a determination of progress monitoring.” (Doc. 67-3, at 330–

31.) Stewart testified that LCSD had a policy requiring all students to be given AIMSweb

probes for their grade level every nine weeks. (Id. at 2–3.) However, LCSD administered some

AIMSweb probes at other grade levels to M.W. in subject areas where her abilities measured

below grade-level to allow LCSD to track her progress at the appropriate instructional level. (Id.

at 1–3, 10–11.)

The first IEP progress report for M.W.’s sixth-grade year stated that she had “shown

growth and mastered addition with the use of a number line” in math calculation. (Id. at 947.)

The report indicated an annual goal status of “5,” meaning the school anticipated M.W. would

meet the goal by the end of the year. (Id.) The IEP progress report for the second reporting

period stated that M.W. “has shown steady improvement and is more excited for math than the

last grading period,” also indicating a goal status of “5.” (Id. at 950.) The progress report for the

third reporting period stated M.W. “is making slow, but steady[,] progress,” and still indicated a

goal status of “5.” (Id. at 953.)

On March 27, 2019, LCSD once again administered the WJ-III NU Ach Math-

Calculation subtest to M.W. (Id. at 678.) At this administration of the test, she received a score

that placed her grade equivalent at “<K.2,” meaning her math-calculation skills fell below a

kindergarten level. (Id.) The progress report for the final reporting period, prepared on May 17,

2019, stated M.W. “is doing a good job applying her knowledge in addition and subtraction,”

and still indicated a goal status of “5,” meaning her teacher believed she would complete her

math-calculation goal by the end of the year. (Id. at 959.) M.W.’s results on the AIMSweb

assessments in reading comprehension, math calculation, and math concepts were not included in

the Sixth-Grade IEP progress reports shared with A.W. (Id. at 946–62.) None of the IEP

progress reports included any AIMSweb or Woodock-Johnson test data. (Id.) Nevertheless,

M.W.’s teachers opined in their comments on her Sixth-Grade IEP progress reports that she

made progress on every goal and samples of her in-class work and assessments demonstrated

progress. (Id. at 946–62, 993–1098.)

iii. April IEP Review

On April 2, 2019, the IEP team met for another annual review and prepared a new IEP

(the “Seventh-Grade IEP”). (Id. at 675.) The section of the Seventh-Grade IEP that described

M.W.’s present level of performance in math calculation listed the “<K.2” grade equivalency

from the results of the March WJ-III Nu Ach Math-Calculation test. (Id. at 677–78.) The

narrative written in this section of the Seventh-Grade IEP states that M.W. “can add and subtract

one digit numbers correctly and fluently when tasks are not timed. When the assessment is

timed, [M.W.] writes down any number to get the task completed rather than actually trying to

perform the calculation correctly.” (Id. at 677.) Despite her regression on the WJ-III Nu Ach

Math-Calculation test, M.W.’s math-calculation and math-problem-solving goals for the

Seventh-Grade IEP remained substantively identical to the Sixth-Grade IEP. (Compare id. at

566–67, with id. 685–86 (same goals, but Sixth-Grade IEP requires ninety-percent accuracy on

four of five trials while Seventh-Grade IEP requires eighty-percent accuracy of the same).)

A.W. was accompanied at the Seventh-Grade IEP meeting by an advocate who pointed

out M.W.’s math-calculation score decreased and that some of the scores under her “present

levels of performance” were the same as the previous year. (Doc. 67-2, at 772.) A.W. and the

advocate therefore asked to see the data underlying M.W.’s scores in that section of the IEP, but

Brown and Amburn informed A.W. that they did not have the data, because Buchanan took it

with him when he resigned. (Id.) Eventually, LCSD “dug deeper” and did find results from

AIMSweb probes given to M.W. during her sixth-grade year. (Id. at 992.)

C. Seventh Grade

During the 2019–2020 school year, M.W. attended seventh grade at Fort Loudoun

Middle School, a different school within LCSD. (Doc. 67-3, at 964.) Her special-education

teacher for seventh grade was Jodi Smith. (Id. at 1160.) As in the previous year, M.W.’s

Seventh-Grade IEP progress reports do not contain objective test data; they only reflect her

teacher’s subjective evaluations of her progress, which indicate she made progress on her goals.

(Id. at 964–92.)

M.W.’s Seventh-Grade IEP required that she participate in a general-education setting,

rather than a special-education setting, for ninety minutes per day. (Id. at 694.) However, for the

first nine weeks of the school year, M.W. only received instruction in her special-education

classroom from Smith. (Doc. 67-3, at 1160.) Nevertheless, by November 2019, she was

attending science and social-studies classes in the general-education setting with her non-

disabled peers. (Id.)

On September 18, 2019, the IEP team, including A.W., met to complete a Reevaluation

Summary Report1 for M.W. (Id. at 750–64.) Although A.W. had reported M.W.’s recent

diagnoses of ODD and intellectual disability to LCSD by at least September 21, 2018, the

Reevaluation Summary Report did not include these diagnoses. (Id. at 558, 756.) Instead, the

Reevaluation Summary Report incorrectly checked “no” next to the question, “in the last three

years has there been a change in the student’s medical/disability status?” until A.W. corrected the

document at the meeting. (Id. at 756.) The Reevaluation Summary Report also did not include

any AIMSweb testing data from prior to February 2019. (Id. at 751–52.) On September 30,

2019, after noticing the missing diagnoses and AIMSweb data at the Reevaluation Summary

Report meeting, A.W. filed a due-process complaint with the TDOE alleging that LCSD was

refusing to perform M.W.’s eligibility evaluation and correct the Reevaluation Summary Report.

(Doc. 67, at 6–8.)

D. Procedural History

i. Due-Process Hearing

On January 2, 2020, A.W. filed an amended due-process complaint, which expanded the

allegations against LCSD from merely refusing to reevaluate M.W. to: (1) failure to properly

evaluate M.W. for disability-services eligibility; (2) failure to obtain parental written informed

consent; (3) failure to properly design, develop and track M.W.’s IEPs; (4) failure to hire

properly credentialed teachers and train them; (5) failure to implement M.W.’s IEPs; (6) bad

1 For IDEA-eligible students, an eligibility reevaluation must occur at least every three years

“unless the parent and the public agency agree that a reevaluation is unnecessary.” 34 C.F.R.

§ 300.303(b)(2).

faith by LCSD; and (7) deception by LCSD. (Id. at 125–37.) These allegations span as far back

into M.W.’s education as kindergarten. (Id. at 128.)

The administrative proceeding was heard in front of Administrative Law Judge Phillip R.

Hilliard over the course of seven days, from June 17–19, 2020, August 17–19, 2020, and August

24, 2020. (Doc. 67-4, at 143.) On the third day of the hearing, June 19, 2020, Plaintiffs

identified certain categories of documents that they believed were missing from the production

of M.W.’s educational record. (Doc. 67-2, at 1022–25.) Defendants disputed the contention that

there were any additional documents that should have been produced pursuant to discovery

requests. (Id. at 1025–29.) As a result of the dispute, ALJ Hilliard suspended the hearing to

allow time for Plaintiffs to identify the categories of documents they believed were missing,

LCSD to file any unproduced documents with the administrative court, the parties to state their

positions on whether those documents were necessary to respond to the discovery requests, and

ALJ Hilliard to determine whether the disputed documents should be admitted into the record.

(Id. at 1028–36.)

LCSD produced additional documents, including a different version of the Fifth-Grade

IEP. (Compare Doc. 67-3, at 866–92, with Doc. 67-3, at 727–48.) In the initially produced

Fifth-Grade IEP (the “First Version”), an “Informed Parental Consent” page appears to be signed

by A.W. (Doc. 67-3, at 744.) In the later-produced Fifth-Grade IEP (the “Second Version”), the

“Informed Parental Consent” page was blank, containing no signature. (Id. at 883.) To reiterate,

A.W. testified that she did not attend the September 27, 2017 IEP review meeting. (Id.; Doc. 67-

2, at 1114–15.) Additionally, on the “IEP Participants” page in the First Version, A.W.’s

signature appears, there is a checkmark on “yes” to “in agreement [with the IEP],” and it is dated

“9-27-17.” (Doc. 67-3, at 743.) On the “IEP Participants” page in the Second Version, A.W.’s

signature appears, but there is no checkmark denoting agreement with the IEP, and it is not

dated. (Id. at 882.)

After LCSD produced these documents, the due-process hearing resumed on August 17,

2020. (Doc. 67-2, at 430–31.) Plaintiffs sought to introduce the evidence of irregularities in the

Informed Parental Consent page and IEP Participants page of the Fifth-Grade IEP when the

hearing resumed. (Id. at 1103.) LCSD initially objected to the evidence as being outside the

four corners of the complaint. (Id.) In response, counsel for Plaintiffs explained that the

evidence supported the allegations of failure to obtain informed parental consent and use of

invalid assessment data. (Id. at 1103–06.) ALJ Hilliard then stated, “[Plaintiffs’ counsel] has

explained the page and paragraph number of the Amended Complaint that he believes shows that

this testimony would be within the four corners of the Amended Complaint. Any objection to

continuing on that basis; if so, why?” to which counsel for LCSD responded, “No, your Honor,”

and ALJ Hilliard reiterated, “so there’s no remaining objection about whether the documents are

within the scope of the Amended Complaint . . . .” (Id. at 1106–07.)

After this exchange, the Second Version of the Fifth-Grade IEP was admitted into

evidence, and A.W. testified that she did not sign the Fifth-Grade IEP on the IEP Participants

page and that she did not believe she was at the September 27, 2017 meeting. (Id. at 1114–15.)

She also testified that, while the signature on the IEP Participants page “appeared” to be hers,

there was no checkmark next to “in agreement” and no date to confirm her attendance, which she

would have completed. (Id. at 1114–17.) Plaintiffs closed their proof later that day.

LCSD closed their proof on August 19, 2020, with closing arguments to be held on

August 24, 2020. (Id. at 430–31.) At the outset of the proceedings on August 24, 2020,

Plaintiffs moved to reopen proof to allow an expert forensic examination of the original

documents LCSD had produced, and ALJ Hilliard directed them to file a written motion. (Id. at

430–31.) ALJ Hilliard ultimately denied the motion, finding that Plaintiffs were not reasonably

diligent in seeking this discovery prior to the close of proof when they had both versions of the

Fifth-Grade IEP at least as early as July 22, 2020. (Id. at 431.) Nonetheless, Plaintiffs

maintained that A.W. did not participate in the Fifth-Grade IEP meeting, and in their proposed

findings of fact and conclusions of law submitted before the final disposition of the

administrative proceeding, they proposed a conclusion of law that LCSD procedurally violated

the IDEA by failing to provide A.W. with notice of the meeting, failing to allow A.W. to

participate in the meeting, and proceeding with the Fifth-Grade IEP without A.W.’s consent.

(Doc. 67-4, at 131.)

ii. Final Order of the Administrative Proceeding

ALJ Hilliard entered his final order on December 23, 2020. (Id. at 201.) ALJ Hilliard

concluded that Plaintiffs failed to meet their burden of proof to show that M.W.’s IEPs were not

substantively appropriate, thereby denying her a FAPE. (Id. at 181.) Plaintiffs’ expert, Dr.

David Rostetter, Ed.D., had opined that M.W.’s IEPs were insufficient, in part, because LCSD

did not determine through its evaluation that M.W. had an intellectual disability under 2016,

when she was in fourth grade. (Id. at 179.) ALJ Hilliard found that this claim fell outside the

two-year statute-of-limitations period, and even if it had not, A.W. knew that she could have

requested an Independent Educational Evaluation at LCSD’s expense if she saw fit, but she did

not. (Id. at 179–81.)

ALJ Hilliard also found that Buchanan’s teaching M.W. without even a provisional

special-education endorsement to his teaching license constituted a procedural violation of the

IDEA and that it impeded A.W.’s opportunity to participate in the decision-making process

regarding M.W.’s education, thereby also constituting a substantive violation. (Id. at 185.) ALJ

Hilliard, however, did not award Plaintiffs any damages because they did not show that

Buchanan’s lack of proper endorsement resulted in fact in a denial of a FAPE. (Id. at 185–86.)

He further concluded that Plaintiffs did not show denial of a FAPE through lack of

progress, insufficient monitoring or progress, or failure to appropriately modify the IEPs,

because there was no proof in the record regarding the progress M.W. should have made, the

IEPs did not require AIMSweb data tracking for the most part, many other ways were used to

measure M.W.’s progress, those methods were not insufficient metrics, and the evidence did not

show that the IEPs offered insufficient behavioral interventions. (Id. at 186–193.) Finally, ALJ

Hilliard concluded the evidence did not support Plaintiffs’ claim that the Fifth-Grade IEP and

other documents in M.W.’s educational record were inauthentic, nor did it support their

contention that LCSD failed to provide sufficient information to allow A.W. to effectively

participate in the design of M.W.’s IEP. (Id. at 194–99.)

iii. Appeal to this Court

Plaintiffs filed their appeal of that decision in this Court on February 19, 2021. (Doc. 1 in

Case No. 3:21-cv-57.)

a. Additional Evidence

On September 3, 2021, Plaintiffs moved this Court for limited discovery to retain an

expert forensic document examiner, reiterating their concerns regarding the authenticity of

certain documents in M.W.’s educational record that they raised in their motion to reopen proof

in front of ALJ Hilliard. (Doc. 70.) The Court granted this motion because the IDEA expressly

allows parties to present additional evidence, and the Sixth Circuit has taken an expansive view

of the scope of additional evidence that may supplement the administrative record, declining to

adopt the narrow position of other circuits that additional evidence is admissible only in limited

circumstances. (Doc. 77, at 5–6 (citing 20 U.S.C. § 1415(i)(2)(C); Adam Wayne D. ex rel. David

D. v. Beechwood Indep. Sch. Dist., 482 F. App’x 52, 56 (6th Cir. 2012); Deal v. Hamilton Cnty.

Bd. of Educ., 392 F.3d 840, 850 (6th Cir. 2004); Metro Gov’t of Nashville & Davidson Cnty. v.

Cook, 915 F.2d 232, 234 (6th Cir. 1990))).

Accordingly, Plaintiffs retained a forensic document examiner, Emily Will, who testified

that the evidence supports the proposition that the Informed Parental Consent page in the First

Version of the Fifth-Grade IEP was written by someone other than A.W. (Doc. 99-1, at 22–25.)

Will also testified that there is qualified support2 for the proposition that the date written by

A.W.’s named on the IEP Participants page in the First Version (Doc. 67-3, at 743) was written

by someone other than A.W. (Doc. 99-1, at 27.) Nevertheless, it is undisputed that A.W. signed,

but did not date, the “IEP Participants” page in the First and Second Versions (Doc. 67-3, at 743,

882), and the “Notice of Procedural Safeguards” page in the Second Version (Doc. 67-3, at 884;

Doc. 99-1, at 35, 39).

While ALJ Hilliard’s finding that Plaintiffs did not prove the Fifth-Grade IEP was

inauthentic is owed deference, the Court now has the benefit of the additional, unrebutted expert

testimony that A.W. did not sign the Informed Parental Consent page or check in agreement and

date the IEP Participants page. In light of the expert opinion indicating forgery on the Fifth-

Grade IEP was likely, A.W. credibly testified that she did not attend the meeting because M.W.’s

teacher told her, after she had received the invitation to the meeting, that it would not be held.

Her credibility is bolstered by a note she gave to M.W.’s teacher on October 4, 2017, just days

2 Ms. Will testified that it was necessary to qualify this opinion, because the date was a very

small amount of writing. (Doc. 99-1, at 27.)

after LCSD asserts she attended the IEP meeting, which states, “[a]fter reviewing [M.W.’s] IEP

plan yesterday, I’m requesting an IEP meeting. It looks like some of [M.W.’s] accommodations

are missing. I think I may have been given a draft.” (Doc. 67-2, at 402.) A.W. credibly averred

that she “would not have requested an IEP meeting on 10/4/17 if [she] had just participated in an

IEP meeting 7 days earlier on 9/27/17.” (Id. at 386.) Further, LCSD cites no testimony to

support its contention that A.W. did, in fact, attend the meeting. They only point to A.W.’s

signature on the face of the documents, which an unrebutted expert has opined was likely forged.

(See Doc. 109, at 9–10.) While it is undisputed that the Notice of Procedural Safeguards page

was signed and dated by A.W. on September 27, 2017, it is on different letterhead than the rest

of the IEP documents—the disputed documents read “IEP Meeting Date: 09/27/2017” at the top

of each page, unlike the Notice of Procedural Safeguards page, and it does not otherwise state

anything about an “IEP meeting”—and it does not appear to be part of the same “packet” as the

Fifth-Grade IEP. (See Doc. 67-3, at 866–84.) In light of this evidence, the Court FINDS that

A.W. did not attend the September 27, 2017 IEP meeting.

b. Issues on Appeal

In this appeal, Plaintiffs challenge ALJ Hilliard’s conclusions, asserting that LCSD

denied M.W. a FAPE by: (1) failing to include A.W. in the September 27, 2017 IEP meeting

and forging her signature, (2) failing to develop new goals despite a lack of progress, especially

in math, (3) placing M.W. with a teacher who did not have special-education endorsement, (4)

failing to provide A.W. with objective progress-monitoring data, and (5) failing to provide M.W.

with instruction in the general-education setting. (Doc. 102, at 11–18.) Plaintiffs have filed a

motion for judgment on the administrative record (Doc. 102), and their motion is ripe for review.

II. STANDARD OF REVIEW

“A district court must give ‘modified de novo review’ to the administrative officer’s

finding of facts under the IDEA.” Adam Wayne D., 482 F. App’x at 56 (quoting N.L. ex rel.

Mrs. C. v. Knox Cnty. Schs., 315 F.3d 688, 692 (6th Cir. 2003)). The district court: “(i) shall

receive the records of the administrative proceedings; (ii) shall hear additional evidence at the

request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant

such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C). “Under this

standard of review, ‘a district court is required to make findings of fact based on a preponderance

of the evidence contained in the complete record, while giving some deference to the fact

findings of the administrative proceedings.’” Adam Wayne D., 482 F. App’x at 56 (quoting

Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755, 764 (6th Cir. 2001)). To give due

weight to the administrative proceedings, district courts should not “substitute their own notions

of sound educational policy for those of the school authorities which they review” because courts

are “generalists with no expertise in the educational needs of [disabled] students.” Metro. Bd. of

Pub. Educ. v. Guest, 193 F.3d 457, 463 (6th Cir. 1999) (quoting Bd. of Educ. of the Hendrick

Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982); Crocker v. Tenn. Secondary Sch.

Athletic Ass’n, 873 F.2d 933, 935 (6th Cir. 1989)).

III. ANALYSIS

“Under the IDEA, schools that receive federal funds for education must provide every

disabled student with a FAPE.” Somberg ex rel. Somberg v. Utica Cmty. Schs., 908 F.3d 162,

170 (6th Cir. 2018) (citing 20 U.S.C. § 1412(a)(1)(A)). To provide a child a FAPE is to provide

her adequate special-education services, i.e., specially designed instruction, at no cost to her

parents, to meet her unique needs. 20 U.S.C.A. § 1401(9), (29). “The IEP is ‘the centerpiece of

the [IDEA]’s education delivery system for disabled children.’” L.H. v. Hamilton Cnty. Dep’t of

Educ., 900 F.3d 779, 788 (6th Cir. 2018) (alteration in original) (quoting Honig v. Doe, 484 U.S.

305, 311 (1988)). To comply with the IDEA’s requirement to provide a FAPE, “schools must

develop, review, and be prepared to revise an IEP for each such student.” Somberg, 908 F.3d at

170 (citing 20 U.S.C. § 1412(a)(4)).

“The IEP must (1) comply with the procedures set forth in the IDEA and (2) be

‘reasonably calculated to enable the [student] to receive educational benefits.’” L.H., 900 F.3d at

788 (6th Cir. 2018) (alteration in original) (quoting Rowley, 458 at 206–07). When reviewing

claims under the IDEA, “[f]irst, a court conducts an examination of prior proceedings for

procedural compliance, and then an examination of whether the student’s substantive rights to

services under the IDEA were violated.” N.L., 315 F.3d at 693 (citing Rowley, 458 U.S. at 206).

“Procedural violations generally concern ‘the preparation of an IEP.’” Somberg, 908 F.3d at 171

(quoting Rowley, 458 U.S. at 206). When a complaint alleges a procedural violation, an ALJ

may only find the child was denied a FAPE if the procedural violations: “(I) impeded the child’s

right to a free appropriate public education; (II) significantly impeded the parents’ opportunity to

participate in the decisionmaking process regarding the provision of a free appropriate public

education to the parents’ child; or (III) caused a deprivation of educational benefits.” 20 U.S.C §

1415(f)(3)(E)(ii).

“Substantive violations concern the substance of the IEP; namely, whether the school has

provided ‘an educational program reasonably calculated to enable a child to make progress

appropriate in light of the child’s circumstances.’” L.H., 900 F.3d at 789 (internal citations

omitted) (quoting Rowley, 458 U.S. at 206; Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch.

Dist. RE-1, 137 S. Ct. 988, 1001 (2017)); see also L.H., 900 F.3d at 788–89 (“[T]he process of

providing special education and related services to handicapped children is not guaranteed to

produce any particular outcome, and, therefore, the IEP’s substantive educational benefits are

best measured under the paradigm of appropriate progress based on the unique circumstances of

the child for whom it was created.”) (alteration in original) (internal quotations and citations

omitted). The IDEA is also substantively violated “when a school district materially deviates

from a student’s IEP.” S.B. ex rel. N.J.B. v. Murfreesboro City Schs., No. 3-15-0106, 2016 WL

927441, at *6 (M.D. Tenn. Mar. 11, 2016) (citing Holman v. District of Columbia., 153 F. Supp.

3d 386, 393 (D.D.C. 2016)). “A material failure occurs when there is more than a minor

discrepancy between the services a school provides to a disabled child and the services required

by the child’s IEP.” Id. (citations omitted). “[T]he proportion of services mandated [in the IEP]

to those provided that is the crucial measure for purposes of determining whether there has been

a material failure to implement.” Turner v. District of Columbia, 952 F. Supp. 2d 31, 41 (D.D.C.

2013).

Plaintiffs argue that LCSD denied M.W. a FAPE in her fifth-grade, sixth-grade, and

seventh-grade years. (Doc. 102, at 10–18.) They assert IDEA violations for failure to include

A.W. in the September 27, 2017 IEP meeting and failure to develop new goals for M.W.’s Fifth-

Grade IEP. (Id. at 10–13.) As to M.W.’s sixth-grade year, Plaintiffs assert IDEA violations for

Buchanan lacking special-education credentials, LCSD failing to provide A.W. with progress-

monitoring data, and LCSD failing to address M.W.’s lack of progress in math. (Id. at 10–17.)

Finally, Plaintiffs assert that while M.W. was in seventh grade, LCSD materially failed to

implement her IEP by not providing instruction in the general-education setting for nine weeks

and substantively violated the IDEA by continuing to fail to address her math deficits. (Id. at

17–18.)

A. Fifth Grade

i. Parent Participation in the September 27, 2017 IEP Meeting

a. Statute of Limitations

Plaintiffs contend that A.W. did not attend the September 27, 2017 IEP meeting and that

her signature was forged on the Informed Parental Consent page, therefore resulting in the

procedural violation of the IDEA by failing to include M.W.’s parent at the meeting and, further,

resulting in the denial of a FAPE by “significantly imped[ing] the parent’s opportunity to

participate in the decision-making process regarding the provision of FAPE.” 20 U.S.C §

1415(f)(3)(E)(ii); 20 U.S.C. § 1414(d)(1)(B)(i) (requiring the inclusion of parents on the IEP

team); Honig, 484 U.S. at 311 (“Congress repeatedly emphasized throughout the [IDEA] the

importance and indeed the necessity of parental participation in both the development of the IEP

and any subsequent assessments of its effectiveness.”) (citations omitted).

Under the IDEA, the two-year limitations period begins to run when the complainant

“knew or should have known about the alleged action that forms the basis of the complaint.” 20

U.S.C. § 1415(f)(C)(3). Plaintiffs concede that the September 27, 2017 meeting occurred outside

the IDEA’s two-year limitations period, but they contend that they did not know that the

Informed Parental Consent page had been forged until their forensic document examiner

concluded as much on February 26, 2022, so the two-year statute of limitations should run from

that date. (See Doc. 104-1, at 4.) The earliest Plaintiffs could be said to have had reason to

know of the irregularities in the documents was when LCSD first produced those documents in

discovery for the administrative proceeding, in 2020. (Doc. 67-2, at 432.) Therefore, the Court

finds that this claim is within the statute-of-limitations period for IDEA claims.

b. Exhaustion

However, “Plaintiffs bringing claims under the IDEA are generally required to exhaust

their administrative remedies before bringing a civil action.” Donoho ex rel. Kemp v. Smith

Cnty. Bd. of Educ., 21 F. App’x 293, 296 (6th Cir. 2001) (citations omitted). Defendants contend

that if Plaintiffs did not know or have reason to know of the inauthenticity of the Fifth-Grade IEP

until after the administrative proceeding began, they cannot have exhausted their administrative

remedies as to the claim that LCSD denied A.W. participation in the September 27, 2017 IEP

meeting. (Doc. 109, at 8–9.) Plaintiffs’ amended complaint for the administrative proceedings

alleges that LCSD failed “to obtain parental written informed consent” in the IEP process and

that it engaged in “bad faith” and “deception” for many years. (Doc. 67, at 127.) Plaintiffs also

alleged that LCSD utilized invalid assessment data. (Id. at 129.) LCSD’s reliance on

assessments set forth by an IEP that was prepared without parent participation also falls within

Plaintiffs’ allegation that LCSD used invalid assessment data. While they did not raise the

specific factual allegation that LCSD held an IEP meeting on September 27, 2017, without A.W.

in attendance and forged her signature on the documentation in the amended complaint, the

discovery process routinely reveals additional facts to support the allegations. See In re Perrine,

No. 18-31333, 2021 WL 3276647, at *8 n.8 (Bankr. E.D. Mich. July 30, 2021) (“The very

purpose of discovery is to flesh out facts that are necessary to support or refute a party’s claim.”).

Further, Plaintiffs raised the issue of suspected inauthenticity of the Fifth-Grade IEP

before ALJ Hilliard on August 17, 2020, during A.W.’s testimony. (Doc. 67-2, at 430–31,

1114–15.) Plaintiffs introduced the evidence of irregularities in the Informed Parental Consent

page, and LCSD withdrew its prior objection to the evidence as being outside the four corners of

the complaint. (Id. at 1103–07.) A.W. testified that she did not sign the Fifth-Grade IEP on the

IEP Participants page, she did not believe she was at the September 27, 2017 meeting, and she

would have checked “in agreement” and dated the IEP Participants page if she were in

attendance. (Id. at 1114–17.) Plaintiffs continued to pursue this claim in the administrative

proceeding, moving to reopen discovery proof to retain an expert forensic document examiner.

ALJ Hilliard denied the motion, (Doc. 67-2, at 431), but Plaintiffs maintained their claim that

A.W. did not participate in the September 27, 2017 IEP meeting in their proposed findings of

fact and conclusions of law submitted before the final disposition of the administrative

proceeding. (Doc. 67-4, at 131.)

The IDEA’s exhaustion requirement exists to enable the agency “to develop a factual

record, to apply its expertise to the problem, to exercise its discretion, and to correct its own

mistakes, and is credited with promoting accuracy, efficiency, agency autonomy, and judicial

economy.” Donoho, 21 F. App’x at 296–97 (quoting Christopher W. v. Portsmouth Sch. Comm.,

877 F.2d 1089, 1094 (1st Cir. 1989)). Given the allegations in Plaintiffs’ amended complaint,

A.W.’s testimony during the administrative proceeding, Plaintiffs’ motion to reopen discovery

and proof to further support the claim, and Plaintiffs’ continued position that A.W. did not

participate in the Fifth-Grade IEP meeting, ALJ Hilliard had the opportunity to develop the

factual record, apply his expertise, exercise his discretion, and accomplish all of the other goals

underlying the IDEA’s exhaustion requirement. See id. Therefore, the Court finds that Plaintiffs

sufficiently exhausted their administrative remedies as to their claim that LCSD failed to allow

parent participation in the provision of a FAPE with respect to the Fifth-Grade IEP.

c. Procedural and Substantive Violation

The Court has found that A.W. did not attend the September 27, 2017 IEP meeting. See

supra Section I.D.iii.a. The IDEA requires the parents of the child to be a part of the IEP Team,

and all IEP team members must attend IEP meetings unless the parent and the public agency

agree, in writing, that the attendance of a team member is not necessary. 20 U.S.C. §

1414(d)(1)(B)–(C). There is no evidence that A.W. agreed in writing that her attendance at the

September 27, 2017 IEP meeting was not necessary. Therefore, LCSD procedurally violated the

IDEA by failing to include her at the meeting. See id.

“A procedural violation of the IDEA is not a per se denial of a FAPE. Rather, a

procedural violation will constitute a denial of a FAPE only if it causes substantive harm to the

child or his parents; such as seriously infringing on the parents’ opportunity to participate in the

IEP process, depriving an eligible student of an IEP, or causing the loss of educational

opportunity.” Berger v. Medina City Sch. Dist., 348 F.3d 513, 520 (6th Cir. 2003) (internal

citation omitted) (citing Knable, 238 F.3d at 765 (“[A] school district’s failure to comply with

the procedural requirements of the Act will constitute a denial of a FAPE only if such violation

causes substantive harm to the child or his parents.”)); 20 U.S.C § 1415(f)(3)(E)(ii). By failing

to include A.W. in the September 27, 2017 IEP meeting, the meeting during which M.W.’s Fifth-

Grade IEP was prepared, LCSD seriously infringed on A.W.’s ability to participate in the IEP

process, thereby constituting substantive harm and a denial of FAPE. Accordingly, the Court

GRANTS IN PART Plaintiffs’ motion for judgment on the administrative record with respect to

the fifth-grade parent-participation claim.

ii. Failure to Develop New Goals

Plaintiffs contend that LCSD violated the IDEA by not revising the goals in M.W.’s

IEPs at any point between January 2017 and September 2018. (See Doc. 102, at 13.) She

worked on the same goals, verbatim, during that twenty-month period, but her progress reports

from the same period do not reflect that she met any of the goals. (Doc. 67-3, at 710–13, 733–

36, 919–44; Doc. 97, at 26–29.) Because Plaintiffs filed their original due-process complaint

on September 30, 2019, the IDEA’s statute-of-limitations period allows Plaintiffs to proceed

with claims that they knew of, or had reason to know of, starting after September 30, 2017.

(Doc. 67, at 6–8.) Even assuming Plaintiffs did not have reason to know that LCSD failed to

revise M.W.’s goals in light of inadequate progress until after September 30, 2017, this claim

fails.

ALJ Hilliard found that “Petitioners provided no proof of what manner, or type, of

progress should have been made by M.W. during the time covered by the statute of limitations,

but simply argue that not enough progress was made, primarily relying on the evolution of her

educational experience from her kindergarten year through 2016. This is insufficient to show a

denial of FAPE.” (Doc. 67-4, at 187.) The Court agrees. Without any evidence of what

progress was possible for M.W. to make during this period, or what goals would have been

achievable, the Court cannot conclude that LCSD denied her a FAPE by failing to revise her

goals. See J.B. ex rel. Belt v. District of Columbia, 325 F. Supp. 3d 1, 9 (D.D.C. 2018)

(“[L]imited academic progress does not ipso facto signal a violation of the IDEA . . . .”)).

Accordingly, Plaintiffs’ motion for judgment on the administrative record is DENIED IN

PART with respect to this claim.

B. Sixth Grade

i. Buchanan’s Special-Education Qualifications

It is undisputed that Buchanan did not have the appropriate endorsements to serve as

M.W.’s special-education teacher and that A.W. was not informed of this fact while Buchanan

was teaching, resulting in a procedural violation of the IDEA. (See Doc. 109, 3–5.) Because of

this, ALJ Hilliard found that Plaintiffs “carried their burden of proof to show that Mr. Buchanan

having taught M.W., without the appropriate endorsements, is a procedural violation of the

IDEA, and that it significantly impeded parent A.W.’s opportunity to participate in the decision-

making process regarding the provision of FAPE to M.W., thereby also constituting a substantive

violation of the IDEA.” (Doc. 67-4, at 181.) However, ALJ Hilliard also found that Plaintiffs

did not carry “their burden of proof to show that Mr. Buchanan having taught M.W. constituted a

substantive violation of the IDEA by way of causing a deprivation of educational benefit.” (Id.

at 181–82.) He appears to suggest that claimants are only afforded a remedy for denial of a

FAPE when they have shown (1) a procedural violation, (2) a substantive violation, and (3)

deprivation of an educational benefit.3 In fact, the inquiry has only two prongs: “In Rowley, the

Supreme Court held that an IDEA inquiry is twofold. First, a court conducts an examination of

prior proceedings for procedural compliance, and then an examination of whether the student’s

substantive rights to services under the IDEA were violated.” N.L., 315 F.3d at 693 (citing 458

U.S. at 206). In the Sixth Circuit, “a procedural violation will constitute a denial of a FAPE only

if it causes substantive harm to the child or his parents; such as seriously infringing on the

parents’ opportunity to participate in the IEP process, depriving an eligible student of an IEP, or

causing the loss of educational opportunity.” Berger, 348 F.3d at 520 (internal citation omitted)

(emphasis added) (citing Knable, 238 F.3d at 765–66 (“Substantive harm occurs when the

procedural violations in question seriously infringe upon the parents’ opportunity to participate

in the IEP process. In addition, procedural violations that deprive an eligible student of an

3 It is unclear in his opinion whether ALJ Hilliard treats “deprivation of an educational benefit”

as an additional prong to prove the merits of a denial-of-FAPE claim, or whether it is merely an

impediment to Plaintiffs recovering damages or another remedy. (See Doc.. 67-4, at 181–86.)

To the extent the ALJ grafts this requirement onto the merits of a denial-of-FAPE claim, the

Court would overrule his decision; however, to the extent he merely treats it as an impediment to

recovering a compensatory-education remedy only, the Court affirms. See infra Section IV.

individualized education program or result in the loss of educational opportunity also will

constitute a denial of a FAPE under the IDEA.”) (internal citations omitted)).

Showing “deprivation of an educational benefit” is not an additional prong required to

support a FAPE-denial claim, rather, it is one way to satisfy the “substantive harm” prong. Id.

Therefore, when ALJ Hilliard found that Buchanan’s teaching M.W. without the proper

endorsements was a procedural violation that “significantly impeded parent A.W.’s opportunity

to participate in the decision-making process regarding the provision of FAPE to M.W., thereby

also constituting a substantive violation,” (Doc. 67-4, at 185–86), the inquiry on the merits of

Plaintiffs’ claim should have ended, as LCSD was thereby liable for denying M.W. a FAPE. The

Court agrees with ALJ Hilliard’s finding that Buchanan serving as M.W.’s special-education

teacher seriously infringed on A.W.’s opportunity to participate in the IEP process, because

LCSD held him out as a credentialed special-education teacher, depriving her of the opportunity

to raise the issue of whether Buchanan should provide M.W.’s special-education instruction.

(See Doc. 67-2, at 552; Doc. 67-3, at 577.) Therefore, the Court GRANTS IN PART Plaintiffs’

motion for judgment on the administrative record with respect to their claim that Buchanan’s

lack of proper credentials seriously infringed on A.W.’s opportunity to participate in the IEP

process.

ii. Failing to Provide A.W. with Progress-Monitoring Data

Plaintiffs also contend that LCSD violated the IDEA by failing to provide A.W. with

objective progress-monitoring data, specifically, the results of AIMSweb probes for her math-

problem-solving, math-calculation, and reading-comprehension goals. (Doc. 102, at 15–16.)

The IDEA requires that an IEP include, among other items:

(ii) a statement of measurable annual goals, including academic and functional

goals, . . . ;

(iii) a description of how the child’s progress toward meeting the annual goals

described in subclause (ii) will be measured and when periodic reports on the

progress the child is making toward meeting the annual goals (such as through the

use of quarterly or other periodic reports, concurrent with the issuance of report

cards) will be provided.

20 U.S.C. § 1414(d)(1)(A). M.W.’s Sixth-Grade IEP states that her math-calculation and math-

problem-solving goals were to be measured by “data collection, work samples, and monthly

progress monitoring,” and her reading-comprehension goal would be measured by “data

collection, teacher observation, and monthly progress monitoring.” (Doc. 67-3, at 566–67.)

Plaintiffs argue that, because of these provisions in the Sixth-Grade IEP, AIMSweb probes

should have been administered monthly and the results shared with A.W. in the IEP progress

reports, and LCSD’s failure to do so significantly impeded A.W.’s opportunity to participate in

the decision-making process regarding the provision of FAPE to M.W. (Doc. 102, at 15.)

However, the Sixth-Grade IEP did not specifically require AIMSweb probes to be used as the

method for data collection or monthly progress monitoring. (See Doc. 67-3, at 566–67.) Nor

did the IEP or other LCSD policy require AIMSweb probes to be administered monthly; it was

merely Stewart’s practice when she trained Buchanan and Brown on how to perform the probes.

(See Doc. 67-2, at 984, 1247, 1253–54.) Therefore, the Court does not find that LCSD violated

the IDEA solely by failing to perform AIMSweb probes monthly.

Beyond some instances in which AIMSweb probes were not administered monthly, there

is no evidence that LCSD failed to monitor M.W.’s progress as required in her IEP or share such

progress with A.W. LCSD produced in evidence the various, frequent assessments and in-class

work the teachers gave M.W. between November 2018 and May 2019 in reading

comprehension, math calculation, math problem-solving, and other areas. (Doc. 67-3, at 993–

1098.) M.W.’s progress reports all provide detailed comments, based on data collection, teacher

observation, and progress monitoring, stating the status of M.W.’s goal and her progress since

the last report, and these comments are substantiated by the assessments and in-class work

LCSD produced. (See id.; Doc. 67-3, at 946–62.) For example, M.W.’s first progress report

states, regarding her math-calculation goal, that M.W. “is still working on regrouping and

borrowing with subtraction problems, but has shown growth and mastered addition with the use

of a number line.” (Doc. 67-3, at 947.) Additionally, her final Sixth-Grade IEP progress report

states regarding her math problem-solving goal that M.W. “had been able to do a few one step

math word problems at a second grade level, and during the month of May she has been able to

demonstrate she can do two step math problems at the same level, as long as the teacher reads

the problems.” (Id. at 960.) These comments reflect that the progress reports kept A.W.

appropriately apprised of M.W.’s progress and that M.W.’s teachers were tracking her progress

with data collection, observation, and monitoring. Further, Plaintiffs present no evidence that

LCSD failed to utilize any method required by her IEP to track her progress—they only point to

some missing AIMSweb data. Significantly, if M.W.’s teachers had only based their

assessments of M.W.’s progress on the AIMSweb data, they would not have been complying

with the IEP, because, as Dr. McCook testified, “AIMSweb is an observational one piece of data

that is one minute out of the 7,200 minutes that month that the child has instruction,” and

“typically . . . it would not be best practice to use one piece of data to make a determination of

progress monitoring.” (Doc. 67-3, at 330–31.)

Plaintiffs point to M.W.’s regression on the WJ-III NU Ach Math-Calculation subtest

from a 1.9 grade-level equivalent in September 2018 to a “<K.2” equivalent in March 2019 as

evidence that M.W.’s progress was not adequately monitored. (Doc. 67-3, at 678.) However,

“[l]imited academic progress does not ipso facto signal a violation of the IDEA,” and Plaintiffs

present no evidence regarding what type of progress M.W. should have made on the WJ-III NU

Ach Math-Calculation subtest. See J.B., 325 F.Supp.3d at 9. The Court also credits and defers

to ALJ Hilliard’s conclusion, given his expertise in education, that, because of M.W.’s

disabilities, the AIMSweb probes and Woodcock-Johnson tests could not accurately reflect her

progress:

Dr. McCook credibly testified that M.W., due to her disabilities, has not

developed “automaticity” in math – the ability to simply know and remember, for

example, that 2+2=4. Instead, M.W. has to add the numbers together. This

inhibits her ability to do multi-step problems, or to solve problems in a timed

setting, such as on Aimsweb probes. He further testified that the lack of

automaticity will likely cause M.W. to continue to fall further behind as time

progresses and the content becomes more difficult. Additionally, Dr. McCook

credibly testified that, as with any person, because math is not her strong suit,

M.W. appears to avoid working most diligently in that area. Moreover, Dr.

McCook credibly testified that due to M.W.’s ADHD, not unexpectedly, she has

difficulty paying attention and following multi-step directions. Similar to math,

not performing well with multi-step directions may result in less motivation to

participate in learning that requires that discipline. This is not to say that the

Respondent does not have the obligation to continue to help M.W. overcome

these hurdles, but it does inform the discussion about what expectations should

be, in terms of progress. Therefore, the Petitioners failed to meet their burden of

proof to show M.W.’s progress, during the time captured by the statute of

limitations, constituted a FAPE violation.

(Doc. 67-4, at 188.) In light of the evidence that LCSD complied with the progress-monitoring

requirements in M.W.’s Sixth-Grade IEP, the Court finds no violation of the IDEA on this basis.

Therefore, Plaintiffs’ motion for judgment on the administrative record (Doc. 102) is DENIED

IN PART as to this claim.

iii. Failure to Address M.W.’s Deficits in Math Calculation

Plaintiffs also contend that M.W.’s lack of progress on AIMSweb probes and the WJ-III

NU Ach Math-Calculation subtest should have resulted in LCSD changing M.W.’s math goals

and instruction and/or addressing M.W.’s opposition to math through behavior goals. (Doc. 102,

at 16–17.) This claim fails for the same reason that Plaintiffs’ fifth-grade claim for failure to

develop new goals changed—they provided no proof regarding what kind of progress M.W.

should have made, or how different goals would have been more reasonably calculated to enable

M.W. to make progress appropriate in light of her circumstances. (See Doc. 67-4, at 187.) The

only evidence Plaintiffs rely on to support this claim is M.W.’s regression on AIMSweb probes

and the WJ-III NU Ach Math-Calculation subtest, which, as the Court previously discussed,

have limited value in actually assessing M.W.’s abilities and progress due to her disabilities’

impact with respect to timed testing. Additionally, her regression on these tests is credibly

rebutted by her sixth-grade student work and her teachers’ assessments of her progress. (See

Doc. 67-3, at 946–62, 993–1098.) As ALJ Hilliard found, the Court also finds that the evidence

supports that M.W. did, in fact, make appropriate progress toward her goals. (See Doc. 67-4, at

189–90.) Accordingly, Plaintiffs’ motion for judgment on the administrative record is DENIED

IN PART with respect to this claim.

C. Seventh Grade

Finally, Plaintiffs contend that LCSD denied M.W. a FAPE during her seventh-grade

year because, for the first nine weeks of school, she did not attend classes in the general-

education setting as required by her IEP, and LCSD continued to fail to address M.W.’s deficits

in math calculation. (Doc. 102, at 17.) While ALJ Hilliard heard some evidence relating to

M.W.’s seventh-grade year, Plaintiffs did not raise the issue regarding M.W.’s attendance in the

general-education setting in the administrative proceeding at all. (See Doc. 67, at 125–37; Doc.

67-4, at 143–99.) Therefore, Plaintiffs have not exhausted their administrative remedies as to

this claim, and their motion for judgment on the administrative record (Doc. 102) is DENIED IN

PART on that basis. Plaintiffs’ claim regarding the continued failure to address M.W.’s deficits

in math calculation in seventh grade fails for the same reasons the Court found this claim failed

as to M.W.’s sixth-grade year. See supra Section III.B.iii. Therefore, Plaintiffs’ motion for

judgment on the administrative record (Doc. 102) is also DENIED IN PART as to the seventh-

grade math-calculation-deficits claim.

IV. REMEDIES

If a district court determines that a school district has violated the IDEA by denying

the student in question a FAPE, then the court shall “shall grant such relief as the court

determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii). In so doing, the court has broad

discretion. Knable, 238 F.3d at 770. “An award of compensatory education is an equitable

remedy that a court can grant as it finds appropriate.” Bd. of Educ. of Fayette Cnty., Ky. v. L.M.

ex rel. T.D., 478 F.3d 307, 316 (6th Cir. 2007) (citing 20 U.S.C. § 1415(i)(2)(C)(iii)).

“Compensatory education is ‘[a] judgment that simply reimburses a parent for the cost of

obtaining educational services that ought to have been provided free.’” Somberg, 908 F.3d at

171 (alteration in original) (quoting Hall v. Knott Cnty. Bd. of Educ., 941 F.2d 402, 407 (6th Cir.

1991)).

Plaintiffs seek the remedy of compensatory education. (Doc. 102, at 17–18.) LCSD

contends that the remedies awarded by ALJ Hilliard—ordering LCSD to provide adequate

training to district and school personnel regarding TDOE’s requirements for special-education

teachers and to create a checklist of applicable TDOE requirements to be reviewed and signed by

personnel responsible for new hires—was the appropriate remedy. (Doc. 109, at 17–18.)

The Court has found LCSD liable for denying M.W. a FAPE because LCSD did not

include A.W. at the September 27, 2017 IEP meeting and because Buchanan did not have a

special-education endorsement on his teaching license when he served as M.W.’s special-

education teacher. See supra Section III. However, Plaintiffs have not advanced any evidence to

show that these violations deprived M.W. of some educational benefit that she could now obtain

through compensatory education. Buchanan met all the substantive requirements of having a

provisional special-education endorsement to his teaching license. (Doc. 67-2, at 550–52; 628.)

Plaintiffs made no showing that if Buchanan had submitted the letter from his graduate program

to TDOE to complete the paperwork required for his special-education endorsement, and been

properly credentialed, that the quality of educational services M.W. received would have

changed.

Plaintiffs also made no showing that including A.W. in the September 27, 2017 IEP

meeting would have changed the educational services M.W. received. In fact, on November 16,

2017, LCSD held another IEP meeting that A.W. did attend, and she signed off on the Fifth-

Grade IEP Addendum which included the exact same goals as the Fifth-Grade IEP. (Doc. 97, at

26–32.) The only difference was the specification of certain additional accommodations to be

provided to M.W. in her classes. (Id.; Doc. 67-3, at 733–36.) M.W. was operating under an IEP

that A.W. did not participate in creating for less than two months, and once A.W. was able to

participate, there was no change to the substantive instruction and educational benefit A.W. was

to receive. Therefore, the Court cannot find on either of Plaintiffs’ meritorious denial-of-FAPE

claims that M.W. was deprived of an educational benefit such that compensatory education

would be an appropriate remedy. Accordingly, the remedy awarded by ALJ Hilliard (see Doc.

67-4, 200–01) is AFFIRMED. Plaintiffs seek attorneys’ fees and costs for litigating this action

but no other alternative remedy to compensatory education. (Doc. 102, at 17–18; Doc. 111, at

5.) Plaintiffs SHALL file a post-judgment motion for attorneys’ fees and costs. See Tompkins

ex rel. A.T. v. Troy Sch. Dist., 199 F. App’x 463, 466 (6th Cir. 2006) (“[F]or the Parents to be

eligible for an award of attorneys’ fees as ‘prevailing parties’ under the IDEA, they must have

(1) succeeded on a significant issue, and (2) this success must be embodied in [] a judgment on

the merits . . . .”) (emphasis added).

V. CONCLUSION

For these reasons, Plaintiffs’ motion for judgment on the administrative record (Doc.

102) is GRANTED IN PART and DENIED IN PART. ALJ Hilliard’s decision is

OVERRULED to the extent it found no denial-of-FAPE liability regarding LCSD’s failure to

include A.W. in the September 27, 2017 IEP meeting and Buchanan lacking special-education

credentials. ALJ Hilliard’s decision is AFFIRMED to the extent it found no liability for

Plaintiffs’ remaining claims and as to the remedy it awarded Plaintiffs.

AN APPROPRIATE JUDGMENT SHALL ENTER.

/s/Travis R. McDonough

TRAVIS R. MCDONOUGH

UNITED STATES DISTRICT JUDGE