“[R]eimbursement [for private-school tuition] is [not] necessarily barred by a private school’s failure to meet state education standards.”
How later courts described this case
- “[R]eimbursement [for private-school tuition] is [not] necessarily barred by a private school’s failure to meet state education standards.”
Written by the judges who cited it.
The opinion
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
J.S., a minor student, by )
T.S. and R.S., the )
student’s parents, )
)
Plaintiffs, )
) CIVIL ACTION NO.
v. ) 2:22cv284-MHT
) (WO)
AUTAUGA COUNTY BOARD OF )
EDUCATION, )
)
Defendant. )
AUTAUGA COUNTY BOARD OF )
EDUCATION, )
)
Plaintiff, )
) CIVIL ACTION NO.
v. ) 2:22cv306-MHT
) (WO)
R.S. and T.S., as parents )
and next friend of J.S., )
)
Defendants. )
OPINION AND ORDER
In these consolidated cases brought pursuant to the
Individuals with Disabilities in Education Act (IDEA),
20 U.S.C. § 1415(i)(2), the parties challenge the
decision of a state hearing officer regarding the
provision of special-education services to J.S., a
kindergarten student. This court has jurisdiction over
these cases pursuant to 28 U.S.C. § 1331 (federal
question) and 20 U.S.C. § 1415(i)(2)(A) (IDEA). In the
lead case, plaintiffs T.S. and R.S, both parents of
J.S., appeal the hearing officer’s refusal to order
defendant Autauga County Board of Education to
reimburse them for private-school tuition for their
child. In the member case, plaintiff Autauga County
Board of Education appeals the hearing officer’s
findings both that it violated J.S.’s and defendants
T.S. and R.S.’s rights to a free appropriate public
education under the IDEA and that it must provide
certain relief.
Now before the court is the parents’ appeal only.
The court held an oral argument on the parents’ appeal
on January 31, 2023. For the reasons discussed below,
the court upholds the decision of the hearing officer
2
to the extent that he found that reimbursement for
private-school tuition is not required, though the
court reaches such decision on different grounds.
I. LEGAL BACKGROUND
The IDEA was enacted “to ensure that all children
with disabilities have available to them a free
appropriate public education that emphasizes special
education and related services designed to meet their
unique needs.” Walker Cnty. Sch. Dist. v. Bennett, 203
F.3d 1293, 1294 (11th Cir. 2000) (citing 20 U.S.C.
§ 1400(d)(1)(A)). Pursuant to the statute, state and
local educational agencies receive federal funds; in
exchange, these agencies “are required ... to identify
children with disabilities and to develop for each
disabled child an annual individualized education
program or IEP.” Id. (footnotes omitted).
The IDEA requires state and local educational
agencies receiving federal funds to set up procedures
3
“to ensure that children with disabilities and their
parents are guaranteed procedural safeguards with
respect to the provision of a free appropriate public
education by such agencies.” 20 U.S.C. § 1415(a).
Parents and local educational agencies must be allowed
to file complaints “with respect to any matter relating
to the identification, evaluation, or educational
placement of the child, or the provision of a free
appropriate public education to such children,” id.
§ 1415(b)(6)(A), and to have an impartial “due process
hearing” on such complaints by a hearing officer, id.
§ 1415(f). That hearing officer must determine
“whether the child received a free appropriate public
education.” Id. § 1415(f)(3)(E).
If a party disagrees with the findings and decision
of the hearing officer, the party may file a civil
action regarding the complaint. Id. § 1415(i)(2)(A).
The court hearing the case “shall receive the records
of the administrative proceedings; ... hear additional
4
evidence at the request of a party; and ... basing its
decision on the preponderance of the evidence, shall
grant such relief as the court determines is
appropriate.” Id. § 1415(i)(2)(C).
In reviewing a hearing officer’s decision under 20
U.S.C. § 1415(i)(2), the district court must give the
findings of the hearing officer “due weight.” Bd. of
Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 206 (1982). “To that end, administrative
fact[-]findings ‘are considered to be prima facie
correct, and if a reviewing court fails to adhere to
them, it is obliged to explain why.’” Loren F. ex rel.
Fisher v. Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1314
n.5 (11th Cir. 2003) (citations omitted). However,
“[t]he extent of deference to be given the
administrative findings of fact is an issue left to the
discretion of the district court.” Jefferson Cnty. Bd.
5
of Educ. v. Breen, 853 F.2d 853, 857 (11th Cir. 1988).1
The hearing officer’s legal conclusions are to be
reviewed de novo. Myles S. ex rel. SS v. Montgomery
Cnty. Bd. of Educ., 824 F. Supp. 1549, 1553 (M.D. Ala.
1993) (Thompson, J.). In determining whether the IDEA
has been violated, “courts must be careful to avoid
1. As Judge Steele has pointed out, the case law
setting forth the standard of review is somewhat
inconsistent. See Escambia Cnty. Bd. of Educ. v.
Benton, 406 F. Supp. 2d 1248, 1257 n.8 (S.D. Ala. 2005)
(Steele, J.). “[T]he Eleventh Circuit has stated that
‘the district court conducts an entirely de novo review
of the ... [hearing officer]’s findings’ in IDEA cases.
Such a pronouncement may not be irreconcilable with
principles of deference to educational expertise,
granting ‘due weight’ to the administrative decision,
and non-substitution of judgment for that of the
hearing officer, but it certainly does underscore the
tension and ambiguities permeating the appellate
guidance on this point.” Id. (citing Sch. Bd. of
Collier Cnty., Fla. v. K.C., 285 F.3d 977, 983 (11th
Cir. 2002)).
In any case, the result here is the same regardless
of whether the court applies a deferential or de novo
standard of review to the hearing officer’s factual
findings. As discussed below, the court disagrees with
the hearing officer’s legal conclusions, not his
factual findings.
6
imposing their view of preferable educational methods
upon the States.” Rowley, 458 U.S. at 207.
II. FACTUAL BACKGROUND
In August 2021, five-year-old J.S. enrolled in
kindergarten at Pine Level Elementary School in the
Autauga County, Alabama Public Schools. Tr. (Doc. 21-
1) at 262.2 From the start, he exhibited behavioral
issues. He could not sit still in class, ran around
the classroom and the hall in circles, and failed to
follow directions. Id. at 262, 265-267. In response
to these behaviors, the principal quickly implemented
strategies to address his behavior and referred him for
a special-education evaluation. Id. at 269-271.
J.S.’s parents agreed to the evaluation.
The child’s behavior varied from day to day. He
had some good days but had many others marred by
2. The court’s citations to the administrative
record refer to the court system’s ECF page numbers,
not the parties’ Bates numbers.
7
behavioral difficulties. See Behavior Charts (Doc.
21-5) at 107-108. J.S., who strongly identified with a
cartoon/videogame character named Sonic the Hedgehog,
frequently referred to himself as Sonic, “would
constantly run in circles and spin” like Sonic, and
would “[s]ometimes say he was being a tornado” and, in
doing so, knock things over. Tr. (Doc. 21-1) at
273-74. He began kicking, spitting, punching, yelling
“I hate you” at adults, and cursing when upset.
Behavior Documentation (Doc. 21-5) at 147-63 and (Doc.
21-6) at 2-30. As time went on, he began threatening
staff using sometimes-graphic language. See Freeman
Email (Doc. 21-6) at 32.
The special-education evaluation found that J.S.
had a sensitivity to loud noise as well as severe
deficits in a number of areas, including behavior,
attention, motor skills, communication, interpreting
social cues, and interacting appropriately with peers
and adults. Occupational-Therapy Evaluation (21-3) at
8
39-40; Notice and Eligibility Decision (Doc. 21-5) at
117-121 (summarizing findings). J.S.’s mother had him
further evaluated by his pediatrician, who diagnosed
him with Attention-Deficit Hyperactivity Disorder
(ADHD), which she communicated to the school district’s
special-education evaluator. Notice and Eligibility
Decision (Doc. 21-5) at 120. J.S. was found eligible
for special education in the category of Other Health
Impairment. Eligibility Decision (Doc. 21-5) at
123-24.
On October 6, a group of school-district employees,
J.S.’s mother, and a behavior analyst convened to
develop an initial IEP for J.S. See October 6, 2021
IEP (Doc. 21-5) at 144-45. The team agreed that the
behavior analyst would complete a functional behavioral
assessment and that a behavior plan would be developed
using the findings from the assessment. Id. at 138.3
3. The behavior analyst conducted three
observations of J.S. between October 6 and 15 but did
not complete the assessment.
9
The IEP also called for 30 minutes of group behavior
classes four days per week, 30 minutes of occupational
therapy once per week, and 30 minutes of speech therapy
once per week, all of which would be provided by
pulling J.S. out of his kindergarten classroom. Id. at
142. The child would also get no more than three
breaks of 15 minutes per day in a sensory room to calm
down, as well as assistance from adults with
transitions and safety. Id.
As October went on, and his behavior problems
continued, school staff filed multiple reports about
J.S.’s behavior with child-welfare authorities,
referred him to the local mental-health authority, and
made safety plans. See Reports of Suspected Child
Abuse/Neglect (Doc. 21-2) at 242 and (Doc. 21-3) at 3,
21; Greene Email (Doc. 21-2) at 244; Safety Plan (Doc.
21-2) at 250-252. His parents took their child to a
psychiatrist but had concerns about the doctor’s
approach; they attempted to get J.S. an appointment at
10
the University of Alabama at Birmingham medical center
for a more thorough psychiatric evaluation but faced a
wait of four to five months. Tr. (Doc. 21-1) at
701-703. On October 20, the principal reached out to
the district’s special-education director and shared
her belief that Pine Level Elementary School might not
be J.S.’s least-restrictive environment. Harry Email
(Doc. 21-3) at 8-9.
On November 4, after being disruptive in class,
J.S. ran out of the classroom and up and down the
halls. Id. at 24. The principal and assistant
principal grabbed him in an attempt to restrain and
carry him into a classroom. While they were attempting
to restrain him, he grabbed the principal’s neck with
both hands. Id. When she yelled at him to let go, he
did so. Suspension Notice (Doc. 21-3) at 26. In
response to this incident, the principal suspended J.S.
for two days, made a police report, documented the
11
incident, and again referred the family to
child-welfare authorities.
An IEP meeting was held five days later. IEP
Meeting Agenda (Doc. 21-2) at 162. At the IEP meeting,
school staff discussed the efforts they had made to
accommodate J.S. in the elementary school and had a
teacher explain the benefits of a behavior unit located
at the Second Chance Alternative School.4 J.S.’s father
told the group that this was a very important decision
about his child’s future and that he needed to go home
to talk it over with his wife and think it over. See
Nov. 9 IEP Meeting Notes (Doc. 21-2) at 168. After the
parents left the meeting, the school staff went ahead
and changed J.S.’s least-restrictive environment to the
behavior unit at the alternative school, effective
4. The Second Chance Alternative School is a small
building that provides long-term disciplinary
placements for students in grades three through 12
charged with major infractions of the code of conduct.
The school is surrounded by an eight-to-ten-foot fence
topped with barbed wire and lacks a playground, a gym,
and a cafeteria. Students are screened for weapons and
must empty their pockets when they enter the building.
12
immediately. See Notice of Proposal or Refusal to Take
Action (Doc. 21-6) at 87; Nov. 9, 2021 IEP (Doc. 21-6)
at 78-86.
J.S.’s parents, through counsel, submitted a
request for a due-process hearing on November 19, which
was received by the State Board of Education on
November 23. See Request for Due Process Hearing (Doc.
21-2) at 3. At the end of November, J.S.’s mother
twice attempted to bring him back to Pine Level
Elementary School to attend school but was rebuffed by
school staff, even after stating that she was invoking
her “stay put” rights.5 Tr. (Doc. 21-1) at 679-681.
On December 6, the parties participated in a
due-process resolution meeting, which was unsuccessful.
Email from Hearing Officer (Doc. 21-2) at 11. At that
meeting, the parents requested an independent
5. The part of the IDEA commonly known as the
“stay put” provision, 20 U.S.C. § 1415(j), generally
allows students to stay in their educational placements
while their parents challenge a proposed change in
placement through the IDEA’s provisions.
13
educational evaluation of J.S. for autism spectrum
disorder at the district’s expense, to which the
district agreed. Later that day, the hearing officer
convened a conference call with the parties’ attorneys
to discuss whether J.S. was entitled to return to Pine
Level Elementary based on the IDEA’s “stay put”
provision. Email from Hearing Officer (Doc. 21-2) at
11. The hearing officer ruled that J.S. was entitled
to return to Pine Level Elementary School and that the
school would remain his placement until the hearing
officer issued a decision after the due-process
hearing. Id.
J.S.’s parents decided not to take him back to Pine
Level and instead enrolled him at Success Unlimited
Academy, a private school. On December 17, 2021, they
notified the district, through counsel, of their intent
to place J.S. in private school at Success Unlimited
Academy and demanded reimbursement of the cost of his
attendance there. Sexton Email (Doc. 21-5) at 54.
14
Success Unlimited Academy was started by a former
special-education teacher with many years of experience
in the field. Tr. (Doc. 26-1) at 5-6. Around half of
its employees and several administrators have a
special-education background. Id. at 6-7. The school
educates approximately 50 students in kindergarten
through sixth grade and approximately 280 students in
total. Id. at 6, 41. About 53 percent of the
students have disabilities. Id. at 41.
J.S. began attending Success Unlimited after winter
break, in early January 2022. The school schedule for
kindergartners was four days per week for four hours
per day. Tr. (Doc. 26-1) at 61. J.S. was placed in a
classroom with one teacher for 11 students, of whom he
was the only child with a disability. Id. at 56. At
the request of the school, one of J.S.’s parents sat
outside the classroom in the hall, in case they were
needed to assist with his behavior; when he misbehaved,
the parent came into the classroom with him. Id. at
15
52, 53-54. He attended for about two days before being
required to be out for a week or two because a family
member had been infected with COVID-19, but then
returned to the school. Id. at 15.
At Success Unlimited, J.S. continued to have
behavioral issues, but they were less severe than those
at Pine Level Elementary. Id. at 22. He did not
swear, did not threaten anyone, and did not use graphic
language. Id. at 22, 35-36. However, he continued to
have trouble sitting down and focusing on his work,
knocked books off the shelf, tried to run out of the
classroom, and kicked his legs; though he did not
actually kick any children or staff, probably because
his parents handled him. Id. at 16-17, 55. He also
continued to say, “I hate you,” id., and on at least
one occasion said, “I’ll fight you,” id. at 46. Due to
behavior issues, the head of school testified that J.S.
probably never spent more than two hours per day in the
16
classroom before going home--two and half hours at the
most. Id. at 61.
In mid-February 2022, in response to his
distracting behavior in the classroom, the head of
school reduced J.S.’s education plan from four
four-hour days of school per week to two hours per week
of one-on-one tutoring. Id. at 9, 43. The tutoring
was provided by a teacher at the high-school campus and
was to cover both behavioral and academic subjects; by
the time of the due-process hearing in early March,
these sessions had mostly focused on behavior. Id. at
19-20. J.S. also received packets of schoolwork to do
at home. Id. at 20. His mother reported difficulty
with getting him to complete assignments at home. T.S.
Email (Doc. 21-6) at 128-29.
At the due-process hearing on March 3, 2022,
shortly after the switch to tutoring, the head of
school testified that her plan was to allow J.S. to
adjust to the demands of a classroom setting by
17
returning him to the classroom gradually after spring
break, beginning on March 29. Id. at 9, 19-21, 47-48.
After the break, she planned to have him come to the
classroom two days per week, for increasing amounts of
time, and to continue with the tutoring two days per
week. Id. at 20-21, 47. She hoped to build up his
ability to stay in the classroom over time. Id. at
47-48.
That same month, the independent educational
evaluation requested by the parents concluded with a
diagnosis of autism spectrum disorder, attention
deficit hyperactivity disorder, and other disruptive
behavioral disorder. Evaluation (Doc. 21-2) at 54.
III. THE HEARING OFFICER’S DECISION
Later that month, the hearing officer decided that
the district denied J.S. and his parents a free
appropriate public education (FAPE) and granted the
parents limited relief. See Due-Process Decision (Doc.
18
21-7) at 111-36. The following summarizes the parts of
the decision relevant to the parents’ appeal.
The hearing officer found the district had violated
J.S. and his parents’ right to a FAPE by violating the
requirement that the child be educated in the
least-restrictive environment and through the
cumulative effect of a combination of procedural
violations. Id. at 122-24. He then turned to the
issue of whether the parents should be reimbursed for
the cost of J.S.’s private-school tuition.
In his decision, the hearing officer correctly
noted that the parents of a child who qualifies for
special education can be reimbursed for the cost of a
private school when a school district fails to provide
a FAPE and the private-school placement is appropriate
under the IDEA--and he elaborated the factors that come
into play in deciding whether to order reimbursement.
Id. at 125. He explained:
“Once it is determined that a school district
failed to provide a free appropriate public
19
education and private placement is suitable,
various related factors such as notice to the
district of the private placement, the
district’s opportunity to evaluate the child
and most significantly in this case, the
district’s opportunity to provide services each
must be examined to determine if reimbursement
is warranted ... . Moreover, those factors and
other equities may also be considered in
awarding reimbursement or reducing the amount
of the reimbursement.”
Due-Process Decision (Doc. 21-7) at 125 (citing Forest
Grove Sch. Dist. v. T.A., 557 U.S. 230, 247 (2009), and
Sch. Comm. of Town of Burlington v. Dep't of Educ., 471
U.S. 359, 370 (1985)).
The hearing officer concluded that the parents’
placement of J.S. at the private school was appropriate
for reasons that will be discussed below. However,
based on equitable considerations, he decided that the
parents were not entitled to tuition reimbursement. In
so deciding, he pointed to the school district’s
willingness to take the child back into the school
after being ordered to do so and the district’s
agreement to pay for the independent educational
20
evaluation requested by the parents at the December 6
resolution meeting. Id. He reasoned that the district
was entitled to another chance to educate J.S. before
having to reimburse the child’s parents for
private-school tuition. Id. at 126.
IV. DISCUSSION
In their appeal, the parents challenge the hearing
officer’s decision to deny reimbursement for J.S.’s
tuition at Success Unlimited Academy. They argue that,
while the hearing officer correctly found the placement
at Success Unlimited was appropriate, he erred in
deciding that equitable considerations weighed against
tuition reimbursement. For purposes of this opinion,
the court assumes that the hearing officer’s decision
that the district denied J.S. a FAPE is correct.
When a court finds that a school district has
denied a child a FAPE, the IDEA authorizes the court to
“grant such relief as the court determines is
21
appropriate.” 20 U.S.C. § 1415(e)(2). The “IDEA
authorizes reimbursement for the cost of private
special-education services when a school district fails
to provide a FAPE and the private-school placement is
appropriate.” Forest Grove Sch. Dist. v. T.A., 557
U.S. 230, 247 (2009); see 20 U.S.C.
§ 1412(a)(10)(C)(ii). To be “appropriate,” a private
placement need not provide all of the services that
would be required of a public school. See Florence
Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 14 (1993)
(“[R]eimbursement [for private-school tuition] is [not]
necessarily barred by a private school’s failure to
meet state education standards.”). “An alternative
educational program chosen by parents who reject an
inadequate program is appropriate so long as it is
reasonably calculated to enable their child to receive
educational benefits.” R.L. v. Miami-Dade Cnty. Sch.
Bd., 757 F.3d 1173, 1183 (11th Cir. 2014) (citing
22
Florence Cnty. Sch. Dist. Four, 510 U.S. at 12-13;
Rowley, 458 U.S. at 206-07).
Even where a placement is appropriate, the IDEA
vests district courts with discretion to deny some or
all reimbursement based on equitable considerations.
See 20 U.S.C. § 1412(a)(10)(C)(iii). For example,
courts may reduce or deny the cost of reimbursement if
the parents failed to inform the IEP team in a timely
manner of their rejection of the proposed placement and
their intent to place the child in private school at
public expense. See 20 U.S.C.
§ 1412(a)(10)(C)(iii)(I). A hearing officer or court
may also deny reimbursement if it finds that the
parents’ actions were unreasonable. See 20 U.S.C.
§ 1412(a)(10)(C)(iii)(III).
The court first addresses the appropriateness of
the placement. As noted above, the hearing officer
found that Success Unlimited was an appropriate
placement but that the equities weighed against
23
ordering the district to reimburse the parents for
tuition. He found Success Unlimited to be
“appropriate” for J.S. because the school has qualified
staff with training in special education, has an
“acceptable student to staff ratio[,] ... has taken
steps to address ... [J.S.’s] distracted and
noncompliant behavior by reducing the hours he will
attend[, and] ... will provide tutoring as compensation
for missed instruction.” Due-Process Decision (Doc.
21-7) at 125. Notably, he added that “it would be
speculative to say that the child will ‘progress’ at
the school in the future[, and] ... [w]ere he not to
progress, the placement might not remain appropriate or
‘proper under the Act’ for purposes of reimbursing its
cost.” Id.
The court agrees that Success Unlimited is staffed
by qualified individuals, many of whom have backgrounds
in special education. However, the court does not have
sufficient evidence before it at this time to find that
24
Success Unlimited was in fact an appropriate placement
for J.S.
The court understands that, from the parents’
perspective, Success Unlimited had much to recommend
it. The school has a staff and administration with
significant experience in serving students with special
needs. In spite of being informed about J.S.’s serious
behavioral issues, the head of school felt that the
school could work with him. J.S. was placed, at least
at first, in a mainstream classroom with
regular-education students. The class size of 11
students was far smaller, and probably much better for
J.S., than were the more than 20 students in his
kindergarten class at Pine Level Elementary School.
However, at the time he enrolled, Success Unlimited
was not able to deal effectively with his behavior.
Though J.S. started out in a regular kindergarten
classroom, he stayed in class at most for
two-and-a-half hours per day due to his behavior, even
25
with a parent there to help control him. Tr. (Doc.
26-1) at 61.
Due to his distracting behavior, after only 19 days
of schooling, J.S. was switched from four days per week
of schooling to a total of two hours per week of
tutoring on behavior and academics, which had focused
almost solely on behavior at the time of the hearing.
He was also given packets of schoolwork to complete at
home with assistance from his parents, although his
mother had told the head of school that she was having
trouble getting him to complete assignments at home.
Given these difficulties, the court assigns little
educational value to the packets.
This arrangement was to last for at least a month.
After that, the head of school planned to start
bringing J.S. back to the classroom for increasing
amounts of time on two days a week so that he could
adjust to the behavioral requirements of a classroom
environment. Whether this was likely to work--and how
26
much time J.S. was likely to end up spending in the
classroom after the break--was not at all clear. That
is not to say that the court does not find the head of
school credible; rather, the court finds her testimony
as to what would happen after the break insufficiently
concrete to find placement at Success Unlimited
appropriate and to serve as a basis for ordering
reimbursement.
Notably, the head of school testified that J.S.
would ideally have been placed in the school’s
classroom for children with serious behavioral issues,
academic issues, and disabilities, in which five
students are taught by two teachers--but the class was
full for the school year. Tr. (Doc. 26-1) at 56. She
testified that, if his behaviors did not improve by the
beginning of the next school year, she would recommend
that J.S. be placed in that classroom. Id. at 56-57.
However, the record contains no evidence as to what
occurred the following school year.
27
In addition, J.S.’s initial IEP determined that he
needed both occupational therapy and speech therapy,
which Success Unlimited does not provide. As mentioned
earlier, a private school’s inability to meet all of
the legal requirements applicable to a public school
does not necessarily render it inappropriate for
reimbursement. See Florence Cnty. Sch. Dist. Four, 510
U.S. at 14; 34 C.F.R. § 300.148(c) (“A parental
placement may be found to be appropriate by a hearing
officer or a court even if it does not meet the State
standards that apply to education provided by the SEA
and LEAs.”). Here, however, an occupational-therapy
evaluation rated J.S.’s fine-motor skills in only the
first percentile and found that he has “significant
deficits in his age group’s fine and visual-motor
skills ... [that] can impact ... [his] ability to
perform independent self-care, write, manipulate
learning tools, and engage in the learning
environment.” Occupational-Therapy Evaluation (Doc.
28
21-3) at 39-40. Given the severity of his motor-skills
deficit and its potential impact on his ability to
learn, the unavailability of occupational therapy at
the school is a further non-dispositive factor weighing
against a finding of appropriateness.
The parents suggest that Success Unlimited was an
appropriate placement because J.S. made progress there.
The court does not find this argument persuasive.
While J.S. did not curse, threaten anyone, use graphic
language, or kick or punch students or staff during
this time at Success Unlimited, this was likely due to
the presence of his parents to handle his misbehavior
and take him home before his behavior could escalate to
such an extent. The testimony showed that J.S. engaged
in kicking at others but that he did not actually kick
another student because a parent was present to
intervene. And the court sees no evidence that J.S.
made any academic progress during his time at Success
29
Unlimited, though such progress admittedly would have
been difficult to prove in such a short time frame.
In finding the placement appropriate, the hearing
officer treated the reduction of J.S.’s hours in school
as evidence that the school was tailoring its approach
to J.S.’s education. The court does not entirely
agree. Though the change was in part an effort tailor
the approach to J.S.’s needs, the court finds that the
choice of tutoring was mostly a response to the lack of
space in the (more appropriate) small classroom for
students with intensive needs. Moreover, the provision
of tutoring for only one hour two times per week--to
cover both academics and behavior--was simply too
little. And though the court might find such a
reduction in educational time acceptable on a brief
interim basis, the court has no evidence as to what
actually happened after the head of school’s testimony
in early March 2022. The court knows only what the
head of school hoped would happen.
30
This is not to say that Success Unlimited could
never be an appropriate placement for J.S. The head of
school testified that the school staff would develop
the school’s equivalent of a behavior-improvement plan
for J.S. after receiving the results of his independent
educational evaluation. Tr. (Doc. 26-1) at 17. If the
evidence showed that the school indeed implemented such
a plan and was thus able to provide J.S. with
significantly more hours of teaching, or that J.S. was
placed in the smaller class the head of school thought
best for him, the court might have found the placement
appropriate. Such evidence could well be presented in a
future proceeding. But the court does not have such
evidence before it now.
In sum, the record now before the court is simply
too thin a reed on which to order the district to
reimburse J.S.’s parents for his tuition. The court
concludes that, on this record, Success Unlimited was
not an appropriate placement for J.S. from January 2022
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to March 28, 2022. Therefore, the court will not order
reimbursement of the cost of J.S.’s tuition there for
that period.6
***
While the court enters this opinion today on the
parents’ challenge to the hearing officer’s decision,
it is not entering an order finally resolving the
matter at this time. The court first wants to meet
with the attorneys to discuss (1) what type of order
should be entered and (2) how to proceed on the school
district’s appeal and the parents’ other claims.
Accordingly, it is ORDERED that:
(1) A status conference to discuss how to proceed
is set for May 12, 2023, at 9:00 a.m., by
videoconference. The courtroom deputy is to arrange
for such.
6. As this resolves the reimbursement issue, the
court does not address whether equitable factors
preclude reimbursement.
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(2) In the interim, no later than three business
days before the status conference, the parties shall
meet in person or by videoconference and make a
good-faith effort to resolve the remaining issues in
the case.
DONE, this the 3rd day of May, 2023.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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