Jefferson County Board of Education, The v. S.

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

THE JEFFERSON COUNTY BOARD OF }

EDUCATION, an agency of the State of }

Alabama, }

}

Appellant, }

v. } Case No.: 2:19-cv-00727-RDP

}

AMANDA S. and CECIL S., individually }

and as parents, guardians, next friends }

and legal representatives of T.S., a minor., }

Appellees.

MEMORANDUM OPINION

The matter before the court is on Plaintiff’s Motion to Stay Enforcement. (Doc. # 16). The

matter has been briefed (see Docs. # 16, 21, 22) and is ripe for decision. For the reasons discussed

below, Plaintiff’s Motion (Doc. # 16) is due to be granted.

I. Background1

This is an action for review of an administrative proceeding conducted pursuant to the

Individuals with Disabilities Education Act (“IDEA”). See 20 U.S.C. §§ 1400, 1415(i)(2)(A). The

IDEA “offers the States federal funds in exchange for a commitment to provide all ‘children with

disabilities’ individually tailored special education, also known as a ‘free appropriate public

education’ or ‘FAPE.’ ” Durbrow v. Cobb Cty. Sch. Dist., 887 F.3d 1182, 1189 (11th Cir. 2018)

1 On May 21, 2019, the court held a telephone conference with counsel. The court instructed the parties to: “(1) share

information, consult with their clients, and meet and confer with the goal of reaching an agreed plan for providing the

educational assistance T.S. needs both this summer and next school year; and (2) . . . file a joint report updating the

court on any agreement that has been reached and whether the parties wish to proceed with briefing on Plaintiff's

Motion to Stay Enforcement.” (Doc. # 12). The parties informed the court that no agreement could be reached with

respect to Student’s summer instruction. (Docs. # 11, 14). Consequently, the Plaintiff filed the motion now before the

court.

(citing 20 U.S.C. §§ 1400(d)(1)(A), 1412(a)(1)(A)). “The principal vehicle for providing a FAPE

is an individualized education program (‘IEP’) prepared by the child’s parents, teachers, and

school officials that is reasonably calculated to enable a child to make progress appropriate in light

of the child’s circumstances.” Durbrow, 887 F.3d at 1189 (internal quotation marks omitted); CP

v. Leon Cty. Sch. Bd. of Fla., 483 F.3d 1151, 1153 (11th Cir. 2007) (“[T]he IEP is more than a

mere exercise in public relations. It forms the basis for the [disabled] child’s entitlement to an

individualized and appropriate education.” (quoting Doe v. Ala. State Dep’t of Educ., 915 F.2d

651, 654 (11tth Cir. 1990))). An IEP serves to “set out a plan for pursuing academic and functional

advancement.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. R.E-1, 137 S. Ct. 988, 999

(2017). “Any review of an IEP must appreciate that the question is whether the IEP is reasonable,

not whether the court regards it as ideal.” Endrew, 137 S. Ct. at 999.

The FAPE requirements relate to special education and related services that:

(1) have been provided at public expense, under public supervision and direction,

and without charge, (2) meet the standards of the State educational agency; (3)

include an appropriate preschool, elementary school, or secondary school education

in the State involved; and (4) are provided in conformity with the individualized

education . . . program required under section 1414(d) . . . .

Jefferson Cty. Bd. of Educ. v. S.B., 788 F. Supp. 2d 1347, 1350 (N.D. Ala. 2011) (citing 20

U.S.C.A. § 1401(9)). The test for determining whether a school board has provided a FAPE as

called for under the IDEA includes asking “(1) whether the state actor has complied with the

procedures set forth in the IDEA, and (2) whether the [individualized educational program]

developed pursuant to the IDEA is reasonably calculated to enable the child to receive educational

benefit.” Leon Cty. Sch. Bd. of Fla., 483 F.2d at 1152-53. “[A] student offered an educational

program providing ‘merely more than de minimis’ progress from year to year can hardly be said

to have been offered an education at all. . . . The IDEA demands more. It requires an educational

program reasonably calculated to enable a child to make progress appropriate in light of the child's

circumstances.” Endrew, 137 S. Ct. at 1001.

The IDEA also provides parents and children the right “to present complaints regarding

placement of the child or the provision of FAPE and to initiate an impartial due process hearing.”

Leon Cty. Sch. Bd. of Fla., 483 F.2d at 1153; 20 U.S.C. § 1415(f)(1). After the conclusion of an

administrative proceeding, “[a] party aggrieved by a hearing officer’s findings and decision on a

due process complaint shall have the right to bring a civil action concerning the matter in a district

court of the United States.” Hoover City Bd. of Educ. v. Leventry, 2019 WL 4415565, at *9 (N.D.

Ala. Sept. 16, 2019); 20 U.S.C, 1415(i)(2)(A).

Here, the aggrieved party is the Jefferson County School Board (“the Board”). The Board

filed its appeal in this court seeking relief from the hearing officer’s legal and factual

determinations arising out of an administrative ruling.2 (Doc. # 1 at 1, ¶ 1). The relevant facts are

discussed below.

On December 4, 2018, the student in this case, T.S. (“Student”), by and through her parents,

initiated an administrative due process hearing against the Jefferson County School Board. (Doc.

# 1 at 1, ¶ 7). Student alleged that the Board “failed to comply with the IDEA’s substantive

requirements, and, consequently, that the Board denied . . . Student a ‘free appropriate public

education’” for two years. (Id. ¶ 7). The due process hearing took place on February 21-22, 2019.

(Id. ¶ 8). On March 22, 2019, the hearing officer entered a written decision, framing the issues for

determination as: (1) “[i]s the Petitioner’s Complaint for Due Process moot due to what the District

[suggested] was a lack of opportunity to address the Petitioner’s concerns before the complaint

was filed?”; and (2) “[w]as the Petitioner denied a free appropriate public education (“FAPE”) due

2 The hearing officer throughout the administrative proceedings was Steve P. Morton, Jr. (Doc. # 20-1).

to the failure of the Petitioner to make more than minimal progress in reading pursuant to services

provided under the [IEP] in place by the School for [Student] during the 24 months prior to the

filing of the Due Process Complaint?” (Id. ¶ 9; Doc. # 20-1 (SEALED) at 11).

The hearing officer found that “the lack of progress of [Student] with reading and decoding,

at least during the 24 months prior to the due process filing date, . . . is evidence of a denial of [a]

FAPE by the District.” (Doc. # 1 at 1, ¶ 10). Consequently, the hearing officer ordered:

(1) [w]ithin 30 days of [the hearing officer’s] Order, the IEP team is due to re-

convene in further efforts to determine what programs would be appropriate for the

child in light of her reading deficits; (2) [w]ithin 30 days of [the hearing officer’s]

Order, the IEP [t]eam, including pertinent District personnel, should thoroughly

review all the test results and determine if there is adequate information to address

why [the Student] is not making progress in reading and if not, what information is

needed to address this; (3) [a]s compensatory benefits for the time lost while the

[Student] was denied a FAPE, the District is due to find, fund and provide [the

Student] with a one-on-one summer reading program that is intensive along the

lines suggested by the Petitioner such as Lindamood [sic] Bell. This is due to be

provided during the summer of 2019; and (4) Petitioner is due compensatory

services for 90 minutes per school week . . . for the remainder of the 2018-19 school

year and the 2019-20 school year in a one-on-one direct reading instruction scenario

to address her weakness in decoding and sight words with a program that meets her

unique needs.

(Id. ¶ 11(a)-(d)). After publication of the hearing officer’s findings and orders, the Board filed this

lawsuit under the IDEA. The Board argues that because the hearing officer “did not identify or

find that the Board committed an actionable procedural violation of the IDEA,” but rather only

found a “lack of progress” as “evidence of a denial of FAPE by the District,” the hearing officer

acted improperly, and the decisions and findings should not be enforceable. (Id. ¶ 16). Specifically,

the Board contends that the hearing officer: (1) misapplied the law by incorrectly applying the

appropriate legal standard for determining substantive compliance; (2) ordered relief that is

“unworkable, inappropriate, not required, and/or supported by record evidence;” (3) “erred in

concluding that lack of significant progress in one area of Student’s academic program constituted

a denial of FAPE;” and (4) incorrectly found that Student met her burden of proof. (Id. ¶ 10).

On July 22, 2019, the Board filed its Motion to Stay, requesting the court to stay

enforcement of the hearing officer’s administrative decision pending the outcome of their appeal.

(Doc. # 16). On August 16, 2019, Student filed her response to the Board’s Motion. (Doc. # 21).

On August 23, 2019, the Board filed its reply. (Docs. # 22).

II. Standard of Review

“A stay is an ‘intrusion into the ordinary processes of administration and judicial review,’

and accordingly ‘is not a matter of right, even if irreparable injury might otherwise result to the

[moving party].’” Nken v. Holder, 556 U.S. 418, 427 (2009). “It is an exercise of judicial

discretion. The propriety of its issue is dependent upon the circumstances of the particular case.”

Scripps-Howard Radio v. F.C.C., 316 U.S. 4, 10-11 (1942). “The party requesting a stay bears the

burden of showing that the circumstances justify an exercise of [judicial] discretion.” Id. at 433-

34. In considering whether to grant a stay, the court evaluates four factors:

(1) whether the stay applicant has made a strong showing that he is likely to succeed

on the merits; (2) whether the applicant will be irreparably injured absent a stay;

(3) whether issuance of the stay will substantially injure the other parties interested

in the proceeding; and (4) where the public interest lies.

Id. at 434.

“Whether an IEP provided [a] FAPE is a mixed question of law and fact subject to de novo

review. . . . To the extent that this issue involves the interpretation of a federal statute, it is a

question of law . . . review[ed] de novo.” Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1284

(11th Cir. 2008) (quoting C.P. v. Leon Cty. Sch. Bd. Fla., 483 F.3d 1151, 1155-56 (11th Cir.2007)).

A district court judge “has discretion to determine the level of deference it will give to the ALJ’s

findings.” Jefferson Cty. Bd. of Educ., 788 F. Supp. 2d at 1350. But, quite obviously, “[t]he

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

Endrew, 137 S. Ct. at 1001.

III. Analysis

The Board argues that a stay is warranted and appropriate because it has met all four factors

required for a stay. The court addresses each, in turn, and agrees that the Board is entitled to a stay

of enforcement.

a. Likelihood of Success on the Merits

The Board argues that under Endrew, the hearing officer applied the incorrect legal

standard when asking whether Student was “denied a [FAPE] due to the failure of [Student] to

make more than minimal progress in reading.”3 (Doc. # 20-1 at 11). Specifically, the Board argues

that Endrew does not call upon a hearing officer to ask how much progress the child made, but

whether the school district created an IEP for the child that is “reasonably calculated to enable [a]

child to make progress appropriate in light of [the child’s] circumstances.” (Doc. # 16 at 7);

Endrew, 137 S. Ct. at 1001. Therefore, the Board contends that under Endrew, a mere “lack of

progress” does not itself equate to an inadequate and/or “deficient” IEP, contrary to the hearing

officer’s conclusion. (Id. at 15).

The Board cites a Third Circuit decision in support of its argument. Colonial Sch. Dist. v.

G.K. by and through A.K., 763 F. App’x 192, 196 (3d Cir. 2019). In G.K., the court recognized

that “an IEP is not guaranteed to produce any particular outcome,” and that “the measure and

adequacy of an IEP can only be determined as of the time it is offered to the student, and not at

some later date.” Id. at 196; see K.B., by and through Dunn v. Downington Area Sch. Dist., 904

F.3d 248, 255 (3d Cir. 2018) (noting that a child’s “slow progress [did] not prove that her IEPs

3 This question was framed slightly differently elsewhere in the hearing officer’s order. Specifically, the hearing officer

asked “whether or not the IEP provided [to Student], was not only reasonable, but whether or not it enabled the child

to make progress.” (Doc. 20-1 at 19).

were deficient.”); id. at 255 (“We may not rely on hindsight to second-guess an educational

program that was reasonable at the time.”).

Of course, Third Circuit precedent is not binding on this court. But in this instance it is

highly persuasive. The G.K. decision is certainly consistent with the Supreme Court’s teaching

that decisions regarding a student’s educational program are afforded “deference . . . based on the

application of expertise and the exercise of judgment by school authorities.” Endrew, 137 S. Ct. at

1001. Therefore, the court must give appropriate deference to the program the Board structured

for Student in this case.

The hearing officer noted that “to the [Board’s] credit, [Student’s] IEP team consistently

reviewed and modified her IEP and steadily increased the amount of reading instruction she

receives every year, . . . [and the Board] also implemented various different methods to increase

her reading skills.” (Doc. # 20-1 at 14). Indeed, as the hearing officer specifically noted:

Each year, [Student’s teacher] created an individualized reading program for

[Student] comprised of . . . what she thought were the most potentially effective

components of the various reading programs that were available to her based on

[Student’s] needs. She also collaborated with [Student’s] regular classroom

teachers to provide guidance to them regarding what instructional techniques they

could use in the classroom to assist [Student], as did the school and county reading

specialists. [Student’s] regular education teachers also worked with [Student] on

specific reading skills such as sight words and decoding in their classes.

(Id. at 15). The Order discussed how Student’s teacher “engaged in more one-on-one instruction

with [Student] as the curriculum [became] more challenging in the third and fourth grade.” (Id.).

A careful review of the administrative record makes clear that the Board took into account

Student’s particular and unique circumstances to formulate the IEP.

The hearing officer stated that “despite all the resources and efforts of the teachers and

support personnel, . . . the [Student] has remained at the pre-primer-primer level in reading

abilities, reading goals have been repeated, and reading goals have not been mastered.”4 (Doc. #

20-1 at 1). However, the appropriate standard is not how much Student has progressed, but rather

the adequacy of the IEP at its inception. D.J.D., by and through Driver v. Madison Cty. Bd. of

Educ., 2018 WL 4283058, at *5 (N.D. Ala. Sept. 7, 2018) (“An [IEP] must be evaluated in light

of the ‘snapshot rule,’ which instructs a reviewing court to judge an IEP not in hindsight. . . . The

court must base its decision . . . on the information that was reasonably available to the parties at

the time of the IEP.” (internal quotation marks omitted)).

The hearing officer interpreted Endrew to mean that “the IEP must aim to enable [a] child

to make progress.” (Doc. # 20-1 at 18). While Endrew certainly includes that language, that is not

at all surprising. “A substantive standard not focused on student progress would do little to remedy

the pervasive and tragic academic stagnation that prompted Congress to act.” Endrew, 137 S. Ct.

at 999. And, the court is aware that Endrew also emphasizes the “reasonably calculated” standard

-- focusing on the particular child -- that must be employed when reviewing the sufficiency of an

IEP. Id. at 999.

To be clear, the record does not suggest that Student made no progress whatsoever. The

hearing officer reiterated a segment of Student’s fourth grade teacher’s statement, which is

enlightening for purposes of understanding whether Student was progressing, albeit slowly:

[Student] has made minimal progress. She is a very auditory learner. She does well

answering all questions about stories that are read to her. She participates in each

of the group activities that we do. She - you know, her - I know she struggles with

decoding. We work in small group with decoding which is learning to word call.

But her auditory comprehension is very good. She is an active member in our

classroom. She works well with her peers. They work well with her. She other than

struggles with reading is a typical fourth grade student.

4 In the midst of the hearing officer’s conclusion that the IEP is deficient due to Student’s lack of progress, he quite

clearly notes that the “IEPs do evidence an effort to address” Student’s “ongoing issue with reading and decoding.”

(Doc. # 20-1 at 16). This suggests to the court that the Board drafted the IEP to meet Student’s educational needs,

even if it did not result in the progress that was anticipated.

(Doc. # 20-1 at 19). Notwithstanding the insufficiency of progress found by the hearing officer,

see Endrew, 137 S. Ct. at 1001, the record establishes that the IEP was crafted to allow Student’s

teachers and the Board to aid with satisfactory progress, even if some goals were repetitious. The

hearing officer stated that he was concerned about the repetitive curriculum with respect to

Student’s 2nd, 3rd, and 4th grade reading levels. (Id. at 21). The hearing officer cited Damarcus,

by and through K.S. v. Dist. of Columbia, 190 F. Supp. 3d 35 (2016), for the proposition that

repetitious IEPs can be problematic. But Demarcus involved a 16-year-old student who only

received “cut and paste” goals in each IEP, which caused him frustration while learning the same

concepts over and over. Id. at 53. Many of his teachers also “wrote him off as having plateaued.”

Id. That is simply not the case here.

Here, Student is nine years old. The administrative record indicates that she has been

unable to fully grasp the concepts taught. There is no evidence, as the hearing officer pointed out,

that Student’s teachers have written her off as just having “plateaued.” Rather, the record is replete

with information indicating that Student has a deficiency in her reading skills and that her teachers

were designing plans to address that challenge.5

Again, whether Student did in fact progress as anticipated is not the question in front of the

court. Rather, the question is the adequacy and sufficiency of the IEP. The hearing officer’s ruling

was based on the former, not the latter. Therefore, the court is satisfied that the Board has

demonstrated a likelihood of success on the merits.

5 In light of that, and given that Student is not progressing as was anticipated with the IEPs, it would seem

counterintuitive for the Student’s IEPs to cover new material that is more challenging when the current material was

not being learned or dealt with proficiently. As one of Student’s instructors, Ms. Reeves, stated to the hearing officer

that “[i]n second grade, we started the Foundations Wilson program. Her IEP goal in second grade was geared more

towards sight words. But that doesn’t mean that I cancel out working on decoding and blending. We still worked on

all aspects of reading. And that program has a sight word component as well as blending and a phonics portion to it.

It does a multisensory approach . . . . So in third grade, we continued the same program because she had only been

using it for a year.” (Doc. # 20-1 at 15). So, to the extent that the hearing officer was concerned about repetition, there

is clearly a valid purpose for certain repetitive instructional programs.

b. Irreparable Injury to Moving Party

“[S]imply showing some possibility of irreparable injury, fails to satisfy [the irreparable

harm] . . . factor.” Nken, 556 U.S. at 434-35 (internal quotation marks omitted). A stay is

appropriate to preserve the Board’s right to appeal what it considers to be an erroneous decision.

Dist. of Columbia v. Masucci, 12 F. Supp. 3d 33, 41 (D.D.C. 2014). The Board contends that “if

interim compliance is required, . . . the result will be to effectively deprive the Board of its statutory

right to appeal what it perceives to be an erroneous decision.” (Doc. # 16 at 22). The Board also

suggests that it will be precluded from fully defending itself against Student’s inevitable claim for

attorney’s fees. (Id.). The Board cites Masucci in support of its argument that its claim on appeal

may become moot if a stay is not granted. Masucci, 13 F. Supp. 3d at 41.

Here, the court finds that were the motion to stay enforcement not granted, the Board’s

claim on appeal would likely become moot. Indeed, one of the remedies imposed by the hearing

officer was to begin in the summer of 2019, which has already come and gone, and the other is to

continue through the 2019-2020 school year, which has already begun. Therefore, a stay is

warranted in light of the circumstances, not only to re-evaluate the remedies furnished by the

hearing officer, but also to ensure the Board’s claim does not become moot.

c. Irreparable Injury to Non-Moving Party

Although the Board has established that it is likely to succeed on the merits and it will be

irreparably injured, the court will not issue a stay if these considerations are outweighed by the

risk of irreparable injury to the non-movant (Student). The proposed remedies sought in this case

include having the “IEP team. . . reconvene in further efforts to determine what programs would

be appropriate for the child in light of her reading deficits,” and “compensatory services for 90

minutes per school week . . . for the 2019-20 school year in a one-on-one direct reading instruction

scenario to address her weakness in decoding and sight words with a program that meets her unique

needs.” (Doc. # 20-1 at 25). The court is doubtful that a stay would harm Student because she is

still under the instruction of her IEP, which is tailored to her educational needs “each year” (see

Id. at 15), and she already receives individualized instruction from her special education teacher,

Ms. Reeves. (Id.) (“Reeves created an individualized reading program for [Student] comprised of

the what she thought were the most potentially effective components of the various reading

program s that were available to her based on [Student’s] current needs.”).

Therefore, the court does not foresee any harm that might come to Student as a consequence

of a stay of enforcement. The Board is under a continuing obligation to continue individualized

instruction for Student, as well as develop IEPs tailored to her particular needs that aim to help her

progress. See 20 U.S.C. §§ 1400, 1415(i)(2)(A).

d. Public Interest

“Public interest considerations weigh slightly in favor of a stay.” Masucci, 13 F. Supp. 3d

at 41. The Board argues that it is in the public interest to maintain the right to appeal to ensure a

“timely disposition of disputes.” (Doc. # 16 at 25). Student argues that “improving educational

results for children with disabilities is an essential element of our national policy of ensuring

equality of opportunity, full participation, independent living, and economic self-sufficiency.”

(Doc. # 21 at 8). However, the record indicates that the Board is doing everything in its power to

ensure Student has the best chance at success given her unique learning circumstances, and in any

event, denying the Board’s motion would not, in and of itself, improve educational results for

children with disabilities. Therefore, it would seem to be in the public interest to grant the Board’s

motion to stay enforcement.

IV. Conclusion

The court finds that the Board has shown a substantial likelihood that it will prevail on

appeal, the Board faces irreparable injury if a stay is not granted, the risk of irreparable injury to

Student is low, and public interest considerations weigh slightly in favor of a stay. Consequently,

a stay is due to be issued.

For the reasons discussed above, the court finds that the Board’s Motion to Stay

Enforcement is due to be granted.® A separate Order will be entered.

DONE and ORDERED this October 3, 2019.

R! DAVID Z. 24 2

UNITED STATES DISTRICT JUDGE

6 The Board argues that because it met, with respect to Student’s IEPs, the FAPE standard in Endrew, it should not be

required to pay Student’s attorney’s fees. However, it is not appropriate for the court to evaluate any associated fees

in this case until resolution of the appeal.

12