A.B. Ex Rel. D.B. v. Lawson

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

A.B., a minor, by his parent and 

next friend, D.B.; D.B.,

Plaintiffs-Appellees,

v.

KENNETH P. LAWSON, (officially as)  No. 03-1046

Superintendent, Anne Arundel

County Public Schools; BOARD OF

EDUCATION OF ANNE ARUNDEL

COUNTY,

Defendants-Appellants.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

James K. Bredar, Magistrate Judge.

(CA-02-79-WMN)

Argued: September 24, 2003

Decided: January 6, 2004

Before WILKINSON and GREGORY, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Reversed and remanded by published opinion. Judge Gregory wrote

the opinion, in which Judge Wilkinson and Senior Judge Hamilton

joined.

COUNSEL

ARGUED: Eric Charles Brousaides, REESE & CARNEY, L.L.P.,

Columbia, Maryland, for Appellants. Michael Jeffrey Eig, MICHAEL

2 A.B. v. LAWSON

J. EIG & ASSOCIATES, P.C., Chevy Chase, Maryland, for Appel-

lees. ON BRIEF: Haylie M. Iseman, MICHAEL J. EIG & ASSO-

CIATES, P.C., Chevy Chase, Maryland, for Appellees.

OPINION

GREGORY, Circuit Judge:

Kenneth Lawson, in his capacity as Superintendent of the Anne

Arundel County Public Schools ("AACPS"), and the Board of Educa-

tion of Anne Arundel County appeal from a judgment of the United

States District Court for the District of Maryland (Bredar, M.J.),

entered under the Individuals with Disabilities Education Act

("IDEA"), 20 U.S.C. § 1400 et seq., ordering payment of reimburse-

ment to the parent of a learning disabled child for two years’ tuition

at a private school. The district court concluded that such reimburse-

ment was necessary because AACPS denied AB a free appropriate

public education ("FAPE").

AACPS and the student’s mother, DB, had engaged in a protracted

dispute as to the nature and extent of AB’s learning disability. An

administrative law judge held that AACPS formulated an Individual-

ized Education Program ("IEP") for the 2000-2001 and 2001-2002

school years that was reasonably calculated to provide AB with a

FAPE under IDEA. The district court reversed the ALJ’s ruling and

granted summary judgment for the Bs. The lower court held that AB

had not been provided a FAPE, and AACPS was obligated to reim-

burse DB for two years of private school education. Because, as

explained below, AACPS complied with IDEA and formulated an

IEP reasonably calculated to provide AB with some educational bene-

fit, we reverse the district court and direct that summary judgment be

entered for Appellants. We also vacate the district court’s order inso-

far as it ordered AACPS to reimburse plaintiffs for AB’s placement

at the Summit School for the 2000-2001 and 2001-2002 school years.

A.B. v. LAWSON 3

I.

A.

This case involves the application of IDEA, a statute designed to

provide free appropriate educational services to millions of children

with learning disabilities in the United States. 20 U.S.C.A. § 1400.

One of Congress’ primary purposes in enacting IDEA in 1990 was "to

ensure that all children with disabilities have available to them a

[FAPE] that emphasizes special education and related services

designed to meet their unique needs . . . ." 20 U.S.C. § 1400(d)(1)(A);

see also MM ex rel. DM v. Sch. Dist. of Greenville County, 303 F.3d

523, 526 (4th Cir. 2002).1 To receive federal funding under IDEA, the

state must provide all children with disabilities a FAPE. 20 U.S.C.

§§ 1400(c), 1412(a)(1). A FAPE requires the school district to pro-

vide instruction that suits the child’s needs as well as related services

to ensure that the child receives some educational benefit from

instruction. 20 U.S.C. § 1401(8); see also Md. Code Ann., Educ. § 8-

402(a)(3) (defining FAPE); 20 U.S.C. § 1401(22) (defining related

services).

Under the act, the state must provide children with "meaningful

access" to public education. Bd. of Ed. of Hendrick Hudson Cent. Sch.

Dist. v. Rowley, 458 U.S. 176, 192 (1982). The FAPE must only be

"calculated to confer some educational benefit on a disabled child."

MM, 303 F.3d at 526 (citing Rowley, 458 U.S. at 207) (emphasis

added). The Supreme Court has held that under IDEA Congress

intended to provide a satisfactory level of educational opportunity, not

the best education that money could buy. See Rowley, 458 U.S. at

189. The Court noted that "[w]hatever Congress meant by an ‘appro-

priate’ education, it is clear that it did not mean a potential-

maximizing education." Id. at 197 n.21; see also Hartmann v. Lou-

doun County Bd. of Ed., 118 F.3d 996, 1001 (4th Cir. 1997) ("States

must . . . confer some educational benefit upon the handicapped child,

1

IDEA is the successor to the Education of the Handicapped Act of

1970, which was amended in 1975 and renamed the Education of All

Handicapped Children Act. For the ease of reference, we refer only to

"IDEA," even when discussing cases interpreting the statute prior to the

1990 amendments.

4 A.B. v. LAWSON

but the Act does not require the furnishing of every special service

necessary to maximize each handicapped child’s potential.") (internal

citations and quotation marks omitted).

In addition to IDEA’s requirement that the state provide each stu-

dent with some educational benefit, the student must be placed in the

least restrictive environment to achieve the FAPE. The disabled child

is to participate in the same activities as non-disabled children to the

"maximum extent appropriate." 20 U.S.C. § 1412(a)(5)(A); see also

34 C.F.R. § 300.550 ("That special classes, separate schooling or

other removal of children with disabilities from the regular educa-

tional environment occurs only when the nature or severity of the dis-

ability is such that education in regular classes cannot be achieved

satisfactorily."); Md. Regs. Code tit. 13A § 05.01.10 (regulations con-

cerning least restrictive environments). We stated in DeVries v. Fair-

fax County Sch. Bd., 882 F.2d 876, 878 (4th Cir. 1989),

"mainstreaming of handicapped children into regular school programs

. . . is not only a laudable goal but is also a requirement of the Act."

To assure that students with disabilities receive FAPEs, IDEA

requires that school districts provide IEPs for each disabled child. 20

U.S.C. § 1414(d). Before providing special education, the school dis-

trict must conduct an individual evaluation to determine a student’s

eligibility under IDEA. Id. § 1414(a)(1)(a); 34 C.F.R. § 300.531.

Upon a determination that a student is learning disabled and thus eli-

gible for special education services, the school district is to develop

an IEP through cooperation between parents and school officials. 20

U.S.C. § 1414(a)(5). The IEP is to be formulated by an IEP Team

consisting of the child’s parents, one of the student’s regular teachers,

a special education teacher, a representative of the school board, an

individual who can interpret evaluation results and, whenever appro-

priate, the disabled child. Id. § 1414(d)(1)(B). An IEP must detail the

student’s current educational status, set forth annual goals for the stu-

dent’s education and state the special educational services and other

aids that will be provided to the child as well as the extent to which

the child will be mainstreamed. Id. § 1414(d)(1)(A).

IDEA also establishes a series of procedural safeguards "designed

to ensure that the parents or guardian of a child with a disability are

both notified of decisions affecting their child and given an opportu-

A.B. v. LAWSON 5

nity to object to those decisions." MM, 303 F.3d at 527 (internal quo-

tation marks and citation omitted); see also 20 U.S.C. § 1415

(procedural safeguards). If the parents are not satisfied with the IEP,

they may "present complaints with respect to any matter related to the

identification, evaluation, or educational placement of the child, or the

provision of a [FAPE] to such a child." Id. § 1415(b)(6). After such

a complaint has been received, the parents also are entitled to request

a due process hearing conducted by the state or local educational

agency. Id. § 1415(f). Under Maryland law, the Maryland Office of

Administrative Hearings conducts the due process hearing. Md. Code

Ann., Educ. § 8-413; Md. Regs. Code tit. 13A § 05.01.15. Any party

can then appeal the administrative ruling to federal or state court. Md.

Code Ann., Educ. § 8-413(h).

When a state receiving IDEA funding fails to provide a FAPE, the

child’s parent may remove the child to a private school and then seek

tuition reimbursement from the state. Sch. Comm. of Burlington v.

Dep’t of Ed., 471 U.S. 359, 369-70 (1985). The parent may recover

if (1) the proposed IEP was inadequate to offer the child a FAPE and

(2) the private education services obtained by the parents were appro-

priate to the child’s needs. Id. at 370.

B.

AB is a student that all parties now agree is learning disabled in the

areas of writing and reading, thus he is considered disabled under

IDEA. The dispute between AACPS and DB arose because AB was

not initially coded as learning disabled, and once coded, DB and her

experts disagreed with the IEPs proposed by AACPS.

AB was born in 1990. He attended kindergarten through third

grade at Annapolis Area Christian School ("Annapolis Christian")

during the school years from 1995-1999. During 1997-1998, because

of AB’s difficulties with reading, DB brought her son to AACPS for

educational and psychological testing.The AACPS test results showed

various IQ scores between 93 and 113, and its report noted that AB’s

full scale IQ placed him in the 58th percentile and that he was in the

average range of intellectual ability. On educational tests, AB scored

below average for his grade in writing and word recognition, but he

scored above his grade level in mathematics. AACPS concluded that

6 A.B. v. LAWSON

the student should be able to "perform academically at a level consis-

tent with same-aged peers." (J.A. 749.)

During the spring of 1998, Annapolis Christian administered multi-

ple achievement tests, finding that while AB was at an advanced level

in arithmetic, he had difficulties in written language and reading. The

following spring, Annapolis Christian conducted more tests, and AB

scored in the average range in reading but scored below his grade

level in spelling. His arithmetic performance continued to be above

his grade level. At the administrative hearing, DB testified that her

son was frustrated at Annapolis Christian and he was "shutting down"

and "withdrawing" at the end of the third grade. At the end of the

1998-1999 school year, Annapolis Christian recommended that AB

repeat the third grade.

In July 1999, DB had AB evaluated by the Kennedy Krieger Insti-

tute ("KKI"). KKI tests results revealed AB’s Verbal IQ (WISC-III)

was in the high average range, Performance IQ in the superior range,

and Full Scale IQ in the high average range. (J.A. 607.) By other test-

ing indicia, however, KKI found that AB’s "reading and writing skills

[were] poor enough to qualify him as learning disabled." (J.A. 611.)

Though Annapolis Christian recommended that AB repeat third

grade, DB withdrew her son from that school and enrolled him in the

fourth grade in AACPS at Millersville Elementary School for the

1999-2000 school year. Before the school year started, DB requested

that AACPS identify AB’s education needs and determine whether he

had a disability that would qualify him for special education. AACPS

held an IEP meeting on September 27, 1999. Based on the informa-

tion presented at the meeting, AACPS recommended that AB receive

further evaluations to be completed by November 22, 1999.

On October 5, 1999, AACPS’s school psychologist Sabbino Strip-

poli ("Strippoli") administered the Oral and Written Language Scales

(OWLS) to AB, and he found all of AB’s scores were within the aver-

age range. On October 18, 1999, the IEP Team held another meeting

and determined that AB did not have a learning disability. On October

22, 1999, DB requested a due process hearing on AB’s eligibility for

special education services. That hearing was scheduled for December

2, 1999.

A.B. v. LAWSON 7

On November 8, 1999, the IEP Team held another meeting and

concluded that the student did not have a special education disability.

At the meeting, the IEP Team concluded that AB was making solid

progress in school, noting satisfactory grades and favorable comments

by AB’s classroom teacher. DB, however, contended that AB would

be "‘better off’ if he [was] identified as having a learning disability,"

because she asserted her son was performing at a level below his

potential as evidenced by his high KKI ability scores. DB further

cited the KKI report as determinative evidence of a learning disabil-

ity. (J.A. 631.)

On November 23, 1999, DB’s counsel requested that the due pro-

cess hearing be postponed so she could obtain an independent evalua-

tion for AB. On November 29, 1999, AACPS opposed the request for

postponement. On the same day, DB’s attorney withdrew AB’s peti-

tion for a due process hearing.

On January 5 and 10, 2000, Dr. Sue Antell conducted the indepen-

dent evaluation. Dr. Antell concluded that AB was "a child of supe-

rior intellectual abilities with problems in complex language

formulation giving rise to a Disorder of Written Expression, Reading

Disabilities with problems in both vocabulary and comprehension."

(J.A. 702.) After AACPS belatedly received AB’s scores on the tests

conducted by Dr. Antell, AACPS offered to hold an IEP meeting on

March 10 or March 17, 2000. DB found those dates inconvenient,

thus the meeting was delayed.2

On March 22, 2000, the IEP Team reconvened and identified AB

as having a "special education disability." (J.A. 632.) The Team

stated, however, that they had:

some reservations regarding an adverse impact on this stu-

dent’s educational performance to the extent that special

education services are warranted. This student is displaying

2

During this period, on February 24, 2000, DB took AB to meet with

a Summit School, a specialty school for gifted and talented children with

learning disabilities. The school administered tests on which AB’s read-

ing and spelling scores were below his grade average, but his arithmetic

score was above average for his grade.

8 A.B. v. LAWSON

satisfactory achievement based on the report card, work

samples and classroom performance. [DB’s] representatives

do not agree that there is a lack of impact on his educational

performance and believe that he needs intensive educational

services.3

(J.A. 632.) On April 7, 2000, Strippoli prepared a report regarding the

IEP Team’s interpretation of the various assessment results. An IEP

meeting originally scheduled for April 14, 2000 was again delayed to

accommodate DB’s expert Dr. Antell. At the rescheduled May 3

meeting, the Team presented the draft IEP, and the parties agreed to

reconvene on May 30, 2000 to give DB time to review the draft. The

draft IEP found AB had a disability limited to the area of written

expression. (J.A. 16, 25, 48.)

On May 15, 2000, Dr. Antell sent AACPS’s counsel a letter stating

that the proposed IEP was unacceptable. She concluded that a main-

stream public school education would not provide AB proper flexibil-

ity, but also that "[AB]’s superior intelligence render [sic] it

inappropriate to place him in a public school’s ‘special class’ for chil-

dren with far more severe and persuasive disabilities. Again, the only

available option appears to be placement in a specialized private

school for intelligent children with significant learning disabilities,

such as Summit School." (J.A. 709 (emphasis added).) At the May 30

3

Indeed, AB’s report card for the 1999-2000 school year evidences that

he earned primarily A’s, B’s and C’s (he earned a single D in "communi-

cat[ing] mathematical concepts and ideas" for one of four marking peri-

ods). (J.A. 688.) He received "satisfactory" and "very good" marks for

all of his classes. (J.A. 688.) His reading level, however, was found to

be below average during each of the four marking periods. (J.A. 688.)

His teacher noted that "[AB] is a pleasure to have in class. He is quick

to participate in group discussion," and further added that he was a "de-

light" who "comes to class prepared and participates regularly." She

pointed out at various points, that he had difficulty with spelling, and

during the third marking period when he received the D that he had diffi-

culty communicating math concepts. (J.A. 689-90.) During the final

marking period, however, she stated "[n]ice improvement in math, [AB]"

as the communication mark was a C and the rest of his math grades were

B’s. AB was also promoted to the fifth grade at the end of the year. (J.A.

688.)

A.B. v. LAWSON 9

IEP meeting, at DB’s insistence supported by Dr. Antell and the KKI

evaluation, the IEP Team agreed to further consider whether AB was

also learning disabled in reading. DB, however, denied AACPS’s

request to conduct testing on an expedited basis because she con-

tended the assessments already provided a basis for the diagnosis.

On June 6, 2000, DB filed another request for a due process hear-

ing, arguing that AB should be coded learning disabled in reading.

After AACPS moved to dismiss the hearing request as premature,

DB’s counsel withdrew her request for a hearing on July 27, 2000. On

or around July 31, 2000, DB granted consent to conduct additional

testing.

On August 12, 2000, AACPS administered the Lindamood Audi-

tory Conceptualization (LAC) test to AB. The test showed that AB

could read and spell at approximately the third grade level and his

"phonemic ability" was not fully developed. On August 15, 2000, DB

notified AACPS that she would be placing AB in the Summit School

for the 2000-2001 school year at AACPS’s expense. On August 23,

2000, AACPS administered the Wechsler Individual Achievement

Test to AB. That test found reading difficulties; AB scored approxi-

mately two years below his grade level on each of the tests.

AB enrolled in and attended the Summit School for the 2000-01

school year. On August 30, 2000, counsel for AACPS notified DB’s

counsel that an IEP meeting was scheduled for September 11, 2000,

however, at DB’s request the meeting was pushed back one month to

accommodate Dr. Antell. At the October meeting, the IEP Team

defined AB as having a learning disability in the area of reading in

addition to the already identified disability in written expression.

AACPS presented an IEP plan whereby AB would attend 31.25 hours

of general (integrated) education per week and various forms of spe-

cial education each day, amounting to 9.0 hours of special education

each week. DB requested time to review the IEP. On October 17,

2000, Dr. Antell wrote AACPS again, contesting the IEP’s suffi-

ciency and requesting that it provide AB with (among other things):

books on tape, a reader, a note taker, extra time for math assignments,

oral presentations of math lessons, a dictation system or similar appa-

ratus and other accommodations.

10 A.B. v. LAWSON

Again, per DB’s request, the IEP meeting was scheduled for

November 29, 2000. At the November 29 IEP meeting, the Team con-

sidered Dr. Antell’s letter as well as a speech/language pathology

evaluation from April 2000, which DB presented for the first time.

DB additionally requested that AB be placed in a full-day special edu-

cation program. The IEP Team agreed to review the April 2000 evalu-

ation and discuss it at a follow-up meeting.

On February 8, 2001, DB proposed that an IEP meeting be held on

March 14, 2001, and she stated that Dr. Joan McCarthy of the Summit

School would attend. At the March 14, 2001 meeting, the IEP Team

submitted a revised IEP which called for 10.5 hours of special educa-

tion. DB again declined to accept the IEP because it did not entail

full-time special education. Dissatisfied with AACPS’s proposal, DB

left AB enrolled at the Summit School and pursued her challenge to

the proposed IEP through a due process hearing.

C.

On May 23 and June 6, 2001, an ALJ conducted the due process

hearing at AACPS’s offices in Annapolis to consider (1) whether the

IEP offered by AACPS for the 2000-2001 and 2001-2002 school

years was reasonably calculated to provide a FAPE; and (2) if not,

whether DB should be reimbursed for the cost of the Summit School.

At the hearing, the ALJ admitted fifty-eight exhibits and heard testi-

mony from eight witnesses.

On July 12, 2001, the ALJ issued an order holding that both IEPs

were reasonably calculated to offer a FAPE and denying DB’s request

for reimbursement. In issuing its order, the ALJ considered the par-

ties’ joint stipulated findings of fact, as presented at the hearing, and

made numerous additional findings of fact based on a preponderance

of the evidence. The ALJ first dismissed DB’s claim that her son had

been improperly evaluated and coded by AACPS, stating there was

"no evidence presented at the hearing to show that the evaluation pro-

cess was flawed, that the Parent was not provided with a meaningful

opportunity to participate, or that any factors or considerations pre-

sented by the Parent were not duly considered during the process."

ALJ Op. at 24 (J.A. 29).

A.B. v. LAWSON 11

DB’s claim rested on her assumption that AACPS should have

immediately coded her son as learning disabled based on the KKI

evaluation. Indeed, the ALJ considered DB’s claim that the lengthy

evaluation process impacted her child’s academic progress, and found

the measures taken by AACPS to diagnose the child were proper,

albeit lengthy. ALJ Op. at 24-25 (J.A. 29-30). The ALJ held that

"AACPS was not required to rely on the [KKI] report," noting that the

responsibility to determine whether a student is eligible for special

education is the responsibility of the IEP Team. ALJ Op. at 26-27

(J.A. 31-32).

The ALJ concluded that the IEP was "reasonably calculated" to

provide AB educational benefit, citing IDEA’s mandate that "to the

maximum extent appropriate, children with disabilities be educated

with children who are not disabled." ALJ Op. at 33-34 (J.A. 38-39).

In holding that the proposed IEP offered a FAPE, the ALJ credited

the testimony of AACPS’s experts, finding that the child did not

require all-day special education and that the proposed IEP offered

the least restrictive means of conferring educational benefit to the

child. The judge cited AACPS’s expert testimony, which she credited,

finding that the Summit School program was "overly restrictive." ALJ

Op. at 29 (internal quotation marks omitted) (J.A. 34). Thus, the ALJ

rejected the views of DB and her experts, who had maintained that

AB required an entire school day with special educational services.

In so holding, she rejected DB’s contention that the child must "be

placed in a private school that serves only students with learning dis-

abilities." (J.A. 41.)

In supporting her holding that the IEP offered a FAPE, the ALJ

noted her reliance on testimony from Millersville personnel as well

as evidence of AB’s educational progress as measured by his report

card and teacher’s comments. ALJ Op. at 30-31 (J.A. 35-36). In

reviewing such data, the ALJ noted that AB’s reading ability

increased nearly two grade levels while attending Millersville despite

the fact that he was not receiving special education. See ALJ Opinion

at 29 (J.A. 34). On the basis of such evidence, the ALJ concluded

"there is no indication that the Child’s needs cannot be met at Millers-

ville Elementary School." ALJ Op. at 30 (J.A. 35). The ALJ con-

cluded that under IDEA, "[t]he issue is not whether the Summit

School is better, or even appropriate, but whether AACPS has offered

12 A.B. v. LAWSON

. . . an appropriate program for the Child at Millersville Elementary."

ALJ Op. at 36-37 (J.A. 41-42). In denying DB’s claim, the ALJ

acknowledged that while she appreciated DB’s concern that given

AB’s high IQ, he should have performed at a greater academic level

at Millersville and in contrast was "thriving" at the Summit School,

ALJ Op. at 30 (J.A. 35), "IDEA does not require a program that

would maximize a student’[s] potential, but instead simply a program

that is appropriate," id. at 36 (internal quotation marks and citation

omitted) (J.A. 41).

D.

On January 8, 2002, DB filed a complaint in the United States Dis-

trict Court for the District of Maryland, appealing the ALJ’s decision

and requesting declaratory and injunctive relief pursuant to IDEA, 20

U.S.C. §§ 1400, et seq., the Rehabilitation Act, 29 U.S.C. § 794, and

42 U.S.C. § 1983. After cross-motions for summary judgment, the

magistrate judge granted summary judgment for the Bs, holding that

AACPS’s IEPs did not offer a FAPE. The court further ordered that

AACPS reimburse DB for the costs of Summit School for the 2000-

2001 and 2001-2002 school years, holding that the Summit School

provided the least restrictive means of providing a FAPE.

II.

Ordinarily, we review a district court’s grant of summary judgment

de novo, applying the same standards employed by the district court.

U.S. Search, LLC v. U.S. Search.com Inc., 300 F.3d 517, 522 (4th Cir.

2002) (citations omitted). In the IDEA context, as we explained in

MM, 303 F.3d at 530-31, we are "obliged to conduct a modified de

novo review, giving ‘due weight’ to the underlying administrative

proceedings" (citations omitted). Additionally, "[w]hether a district

court has accorded ‘due weight’ to the administrative proceedings is

a question of law — or at least a mixed question of law and fact —

to be reviewed de novo by an appellate court." Id. at 531. Further,

administrative findings in an IDEA case "are entitled to prima facie

correctness," and "the district court, if it is not going to follow them

is required to explain why it does not." Doyle v. Arlington County

Sch. Bd., 953 F.2d 100, 105 (4th Cir. 1991). Indeed, "we need not

defer to factual recitations made by a district court from the adminis-

A.B. v. LAWSON 13

trative record, because that court stands in no better position than we

do in reviewing the record." Id.

Finally, the court’s role in reviewing the administrative proceeding

concerning IDEA "is by no means an invitation to the courts to substi-

tute their own notions of sound educational policy for those of the

school authorities they review." Rowley, 458 U.S. at 206; accord

Hartmann, 118 F.3d at 999. The Supreme Court has directed that

"courts must be careful to avoid imposing their view of preferable

educational methods upon the States." Rowley, 458 U.S. at 207.

III.

A.

On appeal, AACPS argues that the district court erred in finding a

violation of IDEA. AACPS contends that, as the ALJ held, the IEP

for the 2000-2001 and 2001-2002 school years was (1) reasonably

calculated to offer a FAPE and (2) it was the least restrictive environ-

ment for the child. We consider these arguments in turn. Overarching

all of Appellants’ arguments is their contention that the district court

erred in failing to accord the ALJ’s findings proper deference. See

generally Appellants’ Br. at 27-32. Appellees counter that the district

court properly deviated from the ALJ’s findings of fact and "made

factual findings and legal conclusions de novo, with explicit reasons

therefore." Appellees’ Br. at 22. They argue that AACPS’s proposed

IEPs did not offer AB a FAPE. Appellees further contend that the IEP

was not the least restrictive environment, because — despite outward

appearances — "[AB] did not make progress in the general education

setting." Id. at 33.

We find Appellees’ arguments wholly unconvincing. The district

court ignored the principles animating IDEA and wrongfully dis-

missed the ALJ’s findings of fact. The district court substituted its

own views on educational policy — and those of DB and her experts

— for the determinations of the local education officials charged with

formulating an IEP. Accordingly, we reverse the district court and

hold that the ALJ correctly recognized that AACPS offered AB an

IEP that was reasonably calculated to provide him some educational

14 A.B. v. LAWSON

benefit, thus providing a FAPE and satisfying IDEA’s modest

requirements. See Rowley, 458 U.S. at 203-04; MM, 303 F.3d at 532.

B.

In Tice v. Botetourt County Sch. Bd., 908 F.2d 1200 (4th Cir.

1990), we held that "once a procedurally proper IEP has been formu-

lated, a reviewing court should be reluctant indeed to second guess

the judgment of education professionals. Neither the district court nor

this court should disturb an IEP simply because we disagree with its

content. . . . [W]e wholeheartedly agree that once education authori-

ties have made a professional judgment about the substantive content

of a child’s IEP, that judgment must be respected." Id. at 1207-08

(internal citations omitted).4 The ALJ recognized that the IEP Team’s

determinations concerning AB’s eligibility for special education ser-

vices were, by law, "solely the responsibility of the IEP team." ALJ

Op. at 32 (citing 34 C.F.R. § 300.532(a); Md. Regs. Code tit. 13A

4

Here, there is some controversy concerning whether DB properly pre-

sented a substantive or a procedural challenge to the IEP at the adminis-

trative hearing. Significantly, the ALJ framed the questions on review as

substantive challenges. See ALJ Op. at 2 (J.A. 7). Yet even if the Bs had

properly lodged their procedural challenge, the ALJ noted there was "no

evidence presented at the hearing to show the evaluation process

[employed by AACPS] was flawed, that the parent was not provided

with a meaningful opportunity to participate . . . ." ALJ Op. at 24 (J.A.

29). The ALJ also concluded "there were no procedural errors in this pro-

cess." ALJ Op. at 27 (J.A. 32). On appeal, Appellees seem to admit that

they had not directly acknowledged a procedural violation, but because

AB was denied learning disabled status during 1999-2000 it "contributed

to his need for full special ed[ucation] placement" and "the procedural

and substantive violations are inextricably intertwined." Appellees’ Br.

at 41. Regardless, we find that while AACPS’s coding process may not

have issued with the speed to which school districts should aspire, no

procedural violation was present. Indeed, as the ALJ found and as recited

in the facts above, ante, the delays in coding AB and formulating an IEP

are often directly attributable to the parent and her experts. Emblematic

of the delays occasioned by DB was her presentation by ambush of a

speech/language pathology evaluation at the November 29, 2000 IEP

meeting, though that evaluation had been completed seven months ear-

lier.

A.B. v. LAWSON 15

§ 05.01.06) (additional citation omitted) (J.A. 32). As such, the ALJ

found the Team crafted an IEP reasonably calculated to provide AB

with some educational benefit and that AACPS officials made profes-

sional judgments in accord with federal and Maryland regulations.

The ALJ correctly noted that the AACPS IEP Team considered a lit-

any of factors concerning AB’s educational background, and pro-

posed an IEP that focused on the child’s difficulties in reading and

writing, providing him with individualized services to improve in

those areas. Further, the ALJ found that the proposed IEPs reflected

the studied determinations of AACPS’s experts that the child did not

require intensive special education in a segregated classroom. Finally,

the ALJ correctly and explicitly held that under IDEA, the AACPS

IEP Team was not required to rely on the KKI report and complied

with state and federal law. ALJ Op. at 27-28 (J.A. 32-33).5

C.

DB has nonetheless continuously maintained that the proposed

IEPs did not offer a FAPE because AB did not make progress in the

general educational setting. DB and her experts assert that AB would

regress in general education, and that he required full-time special

education services. Undergirding all of DB’s arguments are her

claims that because AB, a child of above-average IQ, was not fulfill-

ing his potential within a general education setting — and, in contrast,

allegedly was "thriving" and "getting the help he needs" at the Sum-

mit School — AACPS was not in compliance with IDEA. Although,

as discussed above, nowhere does IDEA require that a school system

"maximize" a student’s potential, Rowley, 458 U.S. at 189, the district

court ignored the findings of the ALJ and adopted DB’s contrary

reading of the statute.

5

In contending that AACPS should have determined AB was learning

disabled solely on the basis of KKI, Appellees’ argument squarely con-

flicts with the statutory language of IDEA. The statute provides that dur-

ing the IEP evaluation process, the school district "shall . . . not use any

single procedure as the sole criterion for determining whether a child is

a child with a disability or determining an appropriate educational pro-

gram . . . ." 20 U.S.C. § 1414(b)(2). Additionally, the IEP Team has full

discretion to "identify what additional data, if any, are needed to deter-

mine . . . whether the child needs special education and related services

. . . ." Id. § 1414(c)(1)(B)(iii).

16 A.B. v. LAWSON

Whereas the ALJ found that the IEP was formulated to meet AB’s

educational needs and a general education setting was appropriate

because, in part, "the Child made educational progress during the aca-

demic year he spent at Millersville, albeit not as great as the Parent

had hoped for," ALJ Op. at 30-31 (J.A. 35-36), the district court con-

sistently reached diametrically opposing conclusions, see e.g., Dist.

Ct. Op. at 19 (J.A. 73) ("[AB] require[s] full-time placement in spe-

cial education services in order to make educational progress and to

obtain some benefit"); id. at 20 (J.A. 74) ("[AB] would have regressed

rather than progressed were [AACPS’s proposed IEP] to have been

implemented.").

Appellees contend, however, that the district court properly dis-

carded the ALJ’s factual findings in reversing the administrative

body. However, we find the district court repudiated the findings of

the ALJ and discarded the expertise of the IEP Team without reason

or explanation. Instead, the district court simply adopted the world-

view of DB’s experts and their perspectives on proper educational

policy. Nowhere did the district court try to square its findings with

those of the ALJ, although in this circuit the determination of whether

an IEP is appropriate is a question of fact. See DiBuo v. Bd. of Ed.

of Worcester County, 309 F.3d 184, n.8 (4th Cir. 2002); Doyle, 953

F.2d at 105. Nor did the district court explain how it, despite the fact

that it was reviewing a cold record, reached a conclusion completely

contrary to that of the ALJ, who conducted the proceedings. See

Doyle, 953 F.2d at 105 (noting that the district court "if it is not going

to follow [the ALJ’s findings of fact], is required to explain why it

does not"). Rather than providing the required explanations, the dis-

trict court substituted its own credibility assessments for those of the

ALJ, stating only that it found "the testimony provided by AACPS to

have been externally and internally inconsistent, generally garbled

and aimed primarily at self-justification. The testimony on behalf of

the plaintiffs, in contrast, was clear and consistent. . . . [T]he court

finds wholly competent the assessments from the plaintiffs’ witnesses

. . . and incompetent the assessment from AACPS." Dist. Ct. Op. at

18 (J.A. 72).6

6

In purported support of their argument that the district court was cor-

rect to jettison the ALJ’s findings, Appellees cite a case that is contrary

A.B. v. LAWSON 17

In doing so, the district court disregarded the ALJ’s resolution of

conflicting expert testimony. The ALJ carefully considered the views

of DB’s experts Drs. Antell and McCarthy, implicitly finding them

unconvincing while crediting the contrary views of AACPS’s experts.7

Despite the ALJ’s findings, the district court’s opinion rests almost

entirely upon a voluminous discussion of Drs. Antell and McCarthy’s

testimony. See Dist. Ct. Op. at 5-14 (J.A. 59-68). The district court

thus reached factual conclusions entirely irreconcilable with those of

the ALJ. E.g., "[C]hildren with superior intelligence and learning dis-

orders require special treatment in a special classroom setting;" "addi-

tional testing that was performed by AACPS was unnecessary;" "what

[AB] needed could not . . . be done at this point in an inclusion class-

room or general ed classroom;" "[AB] not only could not succeed but

would degenerate in a general education setting;" "an appropriate IEP

could not be implemented at Millersville because the school did not

have the ability to integrate all of the goals in every classroom, in

every subject, with every teacher." The district court fully adopted Dr.

McCarthy’s testimony that "placement at Summit was ‘absolutely’

the least restrictive environment in which [AB] could learn and reiter-

to their position. See Appellees’ Br. at 19-20 (citing Arlington County

Sch. Bd. v. Smith, 230 F. Supp. 2d 704 (E.D. Va. 2002)). While the dis-

trict court in Arlington County did reverse the ALJ decision, it did so

because "the hearing officer succumbed to the temptation which exists

for judges and hearing officers alike in IDEA cases, to make his own

independent judgment as to the best placement . . . instead of relying on

the record evidence presented in the hearing" and "defer[ring] to educa-

tors’ decisions as long as the IEP provided the child the basic floor of

opportunity . . . ." Id. at 713, 715 (citations omitted). Here, precisely the

opposite situation occurred. The ALJ made the factual finding that a

proper IEP had been formulated, yet the district court, like the hearing

officer in Arlington County, succumbed to its temptation to inject itself

into matters of professional educational judgment.

7

For example, the ALJ stated that DB claimed the IEP goals drafted

by Dr. McCarthy were the "only appropriate ones for the Child," and

noted that Drs. McCarthy and Antell "testified in great detail as to the

inferiority of the AACPS IEP and the superiority of the special education

services that the Child is receiving at the Summit School." ALJ Op. at

24 (J.A. 29). Yet the ALJ reached a completely opposite result, holding

that the IEP complied with IDEA.

18 A.B. v. LAWSON

ated that placing [AB] in a general education setting was not appro-

priate" although that assessment was flatly contradicted by AACPS’s

experts which the ALJ credited. Dist. Ct. Op. at 14 (J.A. 68).

In its sweeping dismissal of the ALJ’s findings — with little expla-

nation other than that on the basis of a cold record it found their

experts "generally garbled and aimed primarily at self-justification"

— the district court wholly disregarded IDEA’s mandate that it

"leave[ ] the substance and the details of [the proper education for a

disabled child] to state and local officials." Barnett v. Fairfax County

Sch. Bd., 927 F.2d 146, 152 (4th Cir. 1991). The ALJ correctly recog-

nized that while AACPS and DB’s experts disagreed, IDEA requires

great deference to the views of the school system rather than those of

even the most well-meaning parent. However, the district court failed

to apply the proper standard of review to the ALJ’s findings and

incorrectly applied IDEA’s FAPE standard.

First, the district court did not apply the proper standard in deter-

mining whether the IEP at Millersville would provide an educational

benefit, rather it essentially assessed "whether the IEP would replicate

the benefit to [AB] of the [Summit School program], which [the dis-

trict court found] successful for him." G ex rel. SSGT RG v. Ft. Bragg

Dependent Sch., 324 F.3d 240, 253, amended on reh’g, 343 F.3d 295

(4th Cir. 2003). The district court ignored the fact that the ALJ found

that AB was obtaining "some educational benefit" at AACPS even

when he was receiving no special education. See ALJ Op. at 29 (not-

ing AB’s reading level had increased nearly two grade levels while

at Millersville) (J.A. 34); id. at 30-31 ("the Child made educational

progress during the academic year he spent at Millersville, albeit not

as great as the Parent had hoped for") (J.A. 35-36).8 Yet the district

court did not even bother to refer to the ALJ’s findings that AB made

progress at Millersville, rather the Magistrate Judge simply accepted

— contrary to the findings of fact and weight of the evidence — Dr.

McCarthy’s testimony that AB "would degenerate in a general educa-

8

As discussed above, AB’s report card for his year at Millersville, ante

n.3, also supports the ALJ’s findings. See Rowley, 458 U.S. at 207 n.28

(recognizing that "achievement of passing marks and advancement from

grade to grade" are "important factor[s] in determining educational bene-

fit").

A.B. v. LAWSON 19

tional setting." Dist. Ct. Op. at 13 (J.A. 67); see also id. at 20 ("the

Court is convinced that the final IEP offered by AACPS for [AB] was

not designed to confer some educational benefit upon him and, in

fact, that [AB] would have regressed rather than progressed were such

a program to have been implemented") (J.A. 74).

The district court not only evaded the ALJ’s findings without

explanation, but it also credited the testimony of Dr. McCarthy

though it was riddled with internal inconsistencies. Specifically, the

Magistrate Judge chose to ignore that Dr. McCarthy acknowledged

that AB had "at minimum a satisfactory year" academically at Mil-

lersville. (J.A. 353.) Indeed, that admission completely refutes the dis-

trict court’s favored reading of Dr. McCarthy’s testimony, and wholly

supports the ALJ’s finding that AACPS offered a FAPE.

Appellees, however, have contended in their briefs and at oral

argument that the district court gave proper deference to the ALJ’s

findings because the court’s 180-degree turn stemmed from "unsup-

ported weight afforded to evidence (rather than on the credibility of

witnesses)." Appellees’ Br. at 26-27. Appellees’ arguments indicate

that they simply do not understand the role of the fact finder. For they

state: "The ALJ’s failure to consider significant parts of testimony

and exhibits is doubly of concern. . . . For example, the administrative

decision literally only mentions Dr. Antell in passing, though the dis-

trict court opinion chiefly relies upon this expert’s testimony, and

quotes her opinions in unabridged detail." Appellees’ Br. at 26 n.8

(emphasis added). Appellees appear oblivious that this is precisely the

role of a fact finder. The ALJ heard extensive testimony from Drs.

Antell and McCarthy who claimed the IEP did not offer a FAPE, yet

in holding that AACPS provided a FAPE and resting its opinion on

an entirely contrary body of expert testimony, the ALJ obviously

found the testimony of Appellees’ experts unpersuasive. In essence,

Appellees’ argument is reducible to the sour grapes claim that the

ALJ was simply wrong in failing to rely on the testimony of Drs.

Antell and McCarthy. Accordingly, that argument merely illustrates

just how far the district court had to deviate from the ALJ’s findings

to reach its result.9

9

Additionally, Appellees argue, relying on Springer v. Fairfax County

Sch. Bd., 134 F.3d 659, 663 n.* (4th Cir. 1998), that the district court did

20 A.B. v. LAWSON

In "chiefly relying" on Dr. Antell’s testimony, the district court

adopted DB’s preferred reading of what IDEA requires. DB and her

experts testified before the ALJ they believed the Summit School

environment was "ideal;" AB was "thriving" and "getting the help he

needs there;" and "given his high IQ, he should be performing at a

much greater academic level than he has done in the past." ALJ Op.

at 30 (internal quotation marks omitted) (J.A. 35). However, as the

ALJ recognized, but the district court ignored, this is not what IDEA

requires. Indeed, "[t]he issue is not whether the Summit School is bet-

ter, or even appropriate, but whether AACPS has offered . . . an

appropriate program for the Child at Millersville Elementary." ALJ

Op. at 37 (J.A. 42). As discussed above, IDEA’s FAPE standards are

far more modest than to require that a child excel or thrive. The

requirement is satisfied when the state provides the disabled child

with "personalized instruction with sufficient support services to per-

mit the child to benefit educationally from the instruction." Rowley,

458 U.S. at 203; accord MM, 303 F.3d at 526-27; Hartmann, 118

F.3d at 1001. In this case, the record shows that AACPS’s proposed

IEPs offered AB a FAPE.

IV.

Given that we find the district court erred in overturning the ALJ’s

findings that the IEP provided a FAPE, it follows a fortiori that the

not need to accord the ALJ’s findings any deference because the "admin-

istrative decision assigns an inaccurate degree of weight to critical evi-

dence," and the ALJ decision was "cursory and conclusory." Appellees’

Br. at 25-26. Springer, however, is readily distinguishable from this case.

In Springer, the local hearing officer did not rely on expert testimony but

"[r]el[ied] exclusively on a letter written by a psychiatrist." 134 F.3d at

662 (emphasis added). Here, however, the ALJ conducted a formal hear-

ing and considered witness testimony and multiple exhibits. The ALJ

was in a far superior position to evaluate such witness testimony than the

court below, which relied on a body of completely contrary testimony

within the cold record. Springer is also distinguishable because the

courts were in a position identical to the local hearing officer in evaluat-

ing the letter — a document within a cold record — upon which the offi-

cer’s decision was based. Moreover, the ALJ’s opinion here is anything

but conclusory and cursory. To the contrary, the ALJ made extensive

factual findings and applied governing precedent "explain[ing] the result

with some care" as Springer, supra, requires.

A.B. v. LAWSON 21

AACPS IEP, with its integrated curriculum, was less restrictive than

the wholly segregated Summit School. IDEA requires mainstreaming

that Summit School does not provide. 20 U.S.C. 1412(5)(B); see

DeVries, 882 F.2d at 876. While the district court stated that it was

"mindful of the Congressional preference for mainstreaming," Dist.

Ct. Op. at 19 (J.A. 73), its holding that only the wholly segregated

educational environment that Summit provided offered a FAPE

refutes such purported mindfulness. The district court held that AB

required a "full-time placement" in a program with learning disabled

children of "above-average intelligence," Dist. Ct. Op. at 19 (J.A. 73).

The lower court then took judicial notice of a Learning Dis-

abled/Gifted and Talented Program designed for learning disabled

students with high cognitive ability in Montgomery County. Id. at 19

n.3. In holding that the appropriate placement for AB was "full-time

placement in special education services . . . with children of above-

average intelligence," the court erroneously substituted its judgment

for those of education professionals. MM, supra; Rowley, supra. The

district court’s holding bears repeating: the Magistrate Judge found

the least restrictive way — indeed the only way — to educate AB was

to place him in a wholly segregated special education classroom in

which students were also "gifted and talented," while also forcing

AACPS to pay for such a placement. At minimum, the district court

showed no "reluctan[ce] to second-guess professional educators" at

AACPS. MM, 303 F.3d at 532.

First, there was no evidence in the record as to whether AACPS

had such a Gifted and Talented program for learning disabled students

in which AB could be enrolled. Additionally, there was no evidence

in the record showing that AB would be devoid of interaction with

children of "above-average intelligence" in classes at Millersville.

Finally, there was no evidence in the record regarding the program at

Colonel E. Brooke Lee Middle School, which the district court so

readily endorsed, despite the fact that AB was an elementary school

student during the period at issue. Regardless of the educational effi-

cacy of that program, or the schooling at Summit, the FAPE analysis

amounts to whether the AACPS IEP was reasonably calculated to con-

fer some educational benefit. 20 U.S.C. § 1401(a)(17); MM, 303 F.3d

at 532. In applying the wrong standard, the district court "substi-

tut[ed] [its] own notions of sound educational policy for those of local

22 A.B. v. LAWSON

school authorities." MM, 303 F.3d at 531 (internal quotation and cita-

tion omitted).

Even after skewing the proper analysis of whether AACPS pro-

vided some educational benefit, the district court still had to ignore

the ALJ’s factual findings regarding Summit to reach its result. The

district court first disregarded the ALJ’s clear factual finding that AB

had "mixed" results at Summit.10 Instead, the district court conclu-

sorily stated that at Summit: "[AB] vaulted three grade levels in math-

ematics, which tends to support the assessments of Drs. Antell and

McCarthy that the alternative strategies employed at Summit, and not

recommended by AACPS, were working and were permitting AB to

obtain some benefit . . . ." Dist. Ct. Op. at 19 (J.A. 73). In relying on

this evidence and making such a determination, the district court

made no mention of AB’s inconsistent progress at Summit in the

areas of reading and written language — the very areas in which all

parties agree that he was learning disabled. Indeed, the record consis-

tently reflects that throughout his educational history, AB regularly

scored above his age and grade level in mathematics.

In sum, the magistrate judge ignored the congressional preference

for mainstreaming, clearly and strongly substituted its views on edu-

cation and IDEA for that of Congress, and failed to accord the ALJ’s

factual findings the requisite degree of deference. In reversing the

ALJ, the district court consistently failed to heed "IDEA’s recognition

that federal courts cannot run local schools. Local educators deserve

latitude in determining the individualized education program most

appropriate for a disabled child. The IDEA does not deprive these

educators of the right to apply their professional judgment." Hart-

mann, 118 F.3d at 1001. As the ALJ determined, the AACPS IEP

offered an integrated education, and AB had already made progress

within that setting.11

10

The ALJ found AB’s performance in math at Summit was "solid" but

"his performance in written language and reading/language arts was

inconsistent . . . ." ALJ Op. at 18 (J.A. 23).

11

As a final attempt to support its finding that the Summit School was

the least restrictive placement, the district court again ventured outside

the record to state "that not all the students at Summit have been defined

A.B. v. LAWSON 23

V.

Because we hold that AACPS offered AB a FAPE, the issue of

reimbursement under Burlington, supra, and Florence County Sch.

Dist. Four v. Carter, 510 U.S. 7 (1993), is clearly inapplicable.

VI.

For the reasons stated above, we reverse the judgment of the dis-

trict court and remand with instructions that the district court enter

summary judgment in favor of AACPS. Accordingly, we also vacate

the district court’s order that AACPS reimburse DB for the costs of

educating her son at the Summit School during the 2000-2001 and

2001-2002 school years.

REVERSED AND REMANDED

by their school systems as learning disabled." Dist. Ct. Op. at 20. (J.A.

74.) This finding, however, is a strawman. The magistrate judge had

already determined that "not only did [AB] require full-time placement

in special education services in order to make educational progress and

to obtain some benefit from education services but also that the appro-

priate placement was and is with children of above-average intelli-

gence." Id. (emphasis added). Neither party disputed that Summit was a

segregated learning disabled-exclusive school, and indeed Summit’s own

publications support that finding. See Summit School, Summit Specifics

("The Summit School is a private, non-profit, co-educational day school

established in September of 1989 to promote literacy and success for stu-

dents with language-based learning differences."), available at http://

www.thesummitschool.org/About_Summit/Summit_Specifics.htm

(emphasis added); see also Summit School, 1998-1999 National Blue

Ribbon School (stating that in 1999 when the school won a U.S. Depart-

ment of Education Blue Ribbon Award, "Summit was one of the three

private schools chosen, and the only special education school of the 266

named"), available at http://www.thesummitschool.org/About_Summit/

Blue_Ribbon_School.htm.