Jefferson County Board of Education, The v. M.

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

THE JEFFERSON COUNTY BOARD OF }

EDUCATION, }

}

Plaintiff, }

}

v.

} Case No.: 2:19-CV-1136-RDP

RAJEENI M., }

}

Defendant. }

}

MEMORANDUM OPINION

This matter is before the court on the Jefferson County Board of Education’s (“the Board”)

Motion to Stay Enforcement. (Doc. # 2). The Motion has been fully briefed (see Docs. # 2, 11, 12,

16, 17) and is ripe for decision. After careful review, and for the reasons discussed below, the

Board’s Motion (Doc. # 2) is due to be granted, and the case is to be remanded back to the hearing

officer.

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)

(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.” Id. (internal quotation marks omitted); CP v. Leon Cty. Sch. Bd. of

Fla., 483 F.3d 1151, 1153 (11th Cir. 2007).

The IDEA requires states that accept IDEA funds to identify, locate, and evaluate all

“children with disabilities” who reside in the state. 20 U.S.C. § 1412(a)(3)(A); Forest Grove Sch.

Dist. v. T.A., 557 U.S. 230, 245 (2009). This obligation is known as a state’s “child-find duty,”

Durbrow, 887 F.3d at 1189, and a local school system’s “[f]ailure to locate and evaluate a

potentially disabled child constitutes a denial of FAPE.” N.G. v. D.C., 556 F. Supp. 2d 11, 16

(D.D.C. 2008). Pursuant to this duty, “[s]chool districts are granted a ‘reasonable time’ to identify,

locate, and evaluate children with disabilities once they are on notice of the student’s need for

special education.” Id. at 1196; D.J.D. ex rel. Driver v. Madison Cty. Bd. of Educ., 2018 WL

4283058, at *3 (N.D. Ala. Sept. 7, 2018) (“School boards must assess children ‘in all areas of

suspected disability’ within 60 days of receiving parental consent for the evaluation.”). However,

the child-find obligation “does not extend to testing every student who is not successful when

factors other than a disability would also explain the failure to progress.” D.J.D., 2018 WL

4283058, at *3 (citing Jefferson Cty. Bd. of Educ. v. Lolita S., 977 F. Supp. 2d 1091, 1124 (N.D.

Ala. 2013), aff’d, 581 F. App’x 760 (11th Cir. 2014)) (internal quotation marks omitted).

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

placement of the child . . . 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).

I. Factual Background

The Petitioner in this case, C.M. (“Student”), is seventeen years old and a senior at Clay-

Chalkville High School. (Doc. # 9-1 (SEALED) at 37). Student suffers from juvenile diabetes and,

allegedly, Attention Deficit Hyperactive Disorder.1 (Id.). Student’s parents are also having him

evaluated for Oppositional Defiant Disorder. (Id. at 5). Because of his diabetes, a Section 504 plan

was developed for Student. (Id. at 4, 44). A Section 504 plan “prohibits . . . the exclusion of, denial

of benefits to, or discrimination against, an individual solely on the basis of that individual’s

disability.” H. v. Montgomery Cty. Bd. of Educ., 784 F. Supp. 2d 1247, 1251 (M.D. Ala. 2011); 29

U.S.C. § 794(a). Pursuant to Student’s Section 504 plan, he is permitted to carry his cell phone

with him throughout the day, and he is given extra time to taken tests and complete his work. (Doc.

# 9-1 (SEALED) at 16).

In addition to his juvenile diabetes, Student has shown behavioral problems throughout his

academic schooling.2 These behavioral problems include acts of defiance, disruption, frustration,

failure to follow instructions, and failure to complete assignments. (Doc. # 9-1 (SEALED) at 5).

Student has also undergone “several functional behavioral assessments under his [Section] 504

plan,” which documented his “pattern of defiance.” (Id.; Doc. # 9-2 (SEALED) at 169-70). Student

has also been disciplined on numerous occasions for violation of school policy. For instance, in

September of his junior year, Student was given a 45-day suspension for failing to put away his

cell phone after being instructed to do so. (Id. at 7). This, among other infractions, caused the

school to send Student to the Jefferson County School System’s “alternative school.” (Id.).

Student’s parent argued that “throughout [his] school career, there has been no effort to

1 In the Board’s Response to the initial due process complaint, the Board states that it “has been unable to locate any

record of such diagnosis or treatment” and, therefore, cannot confirm or deny that Student has been so diagnosed.

(Doc. # 9-1 (SEALED) at 44). Student’s parent testified that he has never been diagnosed with an intellectual

disability. (Doc. # 9-2 (SEALED) at 47).

2 The hearing officer noted that “[m]edical and educational records of [Student] revealed declining grades and

increasing behavior problems beginning in middle school and continuing forward.” (Doc. # 9-1 (SEALED) at 6).

Student’s parent testified that by middle school, he was being “suspended from school at least two times a year.” (Id.).

provide him with positive behavior supports. . . . [no] behavior plan. . . . [and no suggestion of

counseling] by school personnel.” (Id. at 8). Student’s parent also argued that although Student “is

permitted to make up work when he returned from [his] absences, he has difficulty . . . because he

has not had the lesson explained. He has not been instructed about the materials presented to him.

. . . [and] [h]is inability to understand his school work caused him to be frustrated. When he is

frustrated, he acts out.” (Id.). The school, however, argued that when it has offered or suggested a

behavior plan, Student’s parent has rejected it (see Doc. # 9-2 (SEALED) at 155-56), and when

Student’s teachers have offered him additional assistance, he has not accepted it. (Id. at 96-97).

II. Procedural Background

Here, the aggrieved party is the Jefferson County School 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.3 (Doc. # 1 at 1, ¶ 1). The relevant facts are discussed below.

On October 30, 2018, Student, by and through his parent, Rajeeni M., initiated an

administrative due process hearing against the Jefferson County School Board. (Doc. # 1 at 3, ¶

7). At the hearing, Student alleged that “the Board failed to comply with the IDEA’s ‘child find’

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

education’ during the two-year period that proceeded the date that the hearing request was

initiated.” (Id.). After the hearing was initiated, the Board conducted a “full and individual initial

evaluation” of Student to determine if Student met IDEA eligibility criteria and thus was eligible

to receive a “specially designed instruction” under the IDEA. (Id. ¶ 8; Doc. # 9-1 (SEALED) at

10).

On January 8, 2019, the IDEA eligibility team “concluded during a meeting that . . . Student

3 The hearing officer was Wesley Romine. (Doc. # 9-1 (SEALED) at 35).

met at least one of the 13 disability categories in § 300.8(a)(1) and § 290–809–.03.” (Id. ¶ 10). The

team also concluded that Student’s disability adversely affected his “educational performance.”

(Id.). Notwithstanding, “the school representatives of the eligibility team . . . concluded . . . that .

. . Student did not need ‘special education’ in the form of ‘specially designed instruction.’”4 (Id.)

(emphasis added). Consequently, “the school representatives of the eligibility team determined

that . . . Student did not meet all IDEA eligibility criteria. (Id.).

An administrative due process hearing was conducted on February 13 and 15, 2019, as well

as on April 12 and 13, 2019. (Doc. # 1 at 4, ¶ 11). The Board filed a post-hearing brief on May 28,

2019; Student did not file a brief. (Id. ¶ 12). On June 5, 2019, the hearing officer entered his Order,

determining that:5

1. “The eligibility committee improperly added the need by specialized instruction

as defined in 34 C.F.R. 39(b)(3) and State Department of Education regulation

290–8–9.002(21)(a)3 as a component of eligibility criteria;”6

2. That the Board’s failure to “engage in an assessment of [Student] for a behavior

plan” (to address Student’s disruptive and defiant behavior) constituted a

violation of the child-find obligation; and

3. Student is “not only disabled, but . . . his disability adversely affects his

educational performance in math computations so that specially designed

instruction is warranted.”7

4 The hearing officer nullified this eligibility termination in his Order. (Doc. # 9-1 (SEALED) at 34).

5 One of the foundations of the hearing officer’s conclusions is the fact that Student suffers from juvenile diabetes,

which requires him to wear an insulin pump and carry his cell phone at all times in the event he needs to contact his

mother. (Doc. # 9-1 (SEALED) at 23). The hearing officer consistently noted that Student’s diabetes caused him

“frequent absences from school,” thus inhibiting him from full academic performance throughout his education. (Id.

at 24).

6 The hearing officer stated that such action “lead to a finding of ineligibility for special education when the committee

concluded that the true eligibility criteria had been met[;] i.e., a disability that had an adverse effect on [Student’s]

educational performance.” (Doc. # 9-1 (SEALED) at 21).

7 The hearing officer found that Student’s use of a calculator in all of his classes and even on standardized tests

qualified him for special education in math computation. (Doc. # 9-1 (SEALED) at 22). The hearing officer also noted

that the discrepancy between Student’s scores in his “predicted achievement” and “actual performance” in math

computation ability “should have compelled an IDEA evaluation under the category of specific learning disability.”

(Id. at 27).

(Doc. # 9-1 (SEALED) at 21, 27) (emphasis added). The hearing officer also ordered the following

relief:

1. Student is “entitled [to a] compensatory education from the period of October 17, 2017

(the date the school system recognized and suggested that a behavioral intervention

plan would be of assistance to [Student]) to October 30, 2018 (the filing of the due

process hearing request).” The hearing officer determined that the compensatory

education should involve “additional vocational services beyond that normally

provided to senior students in the Jefferson County School System.” (Doc. # 9-1

(SEALED) at 32);

2. Student “shall be evaluated for a vocational assessment by an appropriate person not

employed by the school system . . . . The evaluation shall include a full battery aptitude

test, an IQ assessment, an interest inventory and at the discretion of the individual

conducting the evaluation such other terms . . . as the evaluator deems necessary or

relevant;”8

3. Student “shall receive one hour weekly, throughout his Senior year, of counseling as a

vocational or compensatory component of his education;”

4. “The school system shall make an effort to enroll [Student] in a mentoring/apprentice

type program and/or consideration of paying a third-party to train or instruct [Student]

in a vocation or, alternatively, in lieu of such payment, the school system pay [Student]

an hourly wage directly so that his training/instruction is at no cost to the mentor/person

to whom [Student] is apprenticed;” and

5. “School system personnel shall provide in writing to the parent an

explanation/description of its efforts. . . . [which] shall be supplied . . . every 6 weeks

for the 2019-2020 school year.”

(Id. at 31-32).

The Board contests the relief granted, arguing that it is not “appropriate because it is

premised on an erroneous conclusion that the January 8th eligibility determination was wrong, and

because the relief is otherwise unclear, arbitrary, unsupported by record evidence, and

inconsistent.” (Id. ¶ 16). The Board also argues that “even if a child-find duty was owed, . . .

8 The hearing officer held that before the first day of school for the 2019-2020 school year, the eligibility team shall

determine the category of Student’s disability. (Doc. 9-1 (SEALED) at 34).

Student did not prove that the Board violated that duty.” (Id. ¶ 21).

On June 21, 2019, the Board filed its notice of intent to appeal and requested that the

hearing officer stay implementation of the relief pending the outcome of the Board’s appeal. (Id.

¶ 17). Thereafter, on July 18, 2019, the Board filed this civil action and a Motion to Stay

Enforcement of the hearing officer’s Order pending disposition of its appeal. (Docs. # 1, 2).

III. 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; Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 56 (2005). 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.

In assessing the administrative record, a district court reviews a hearing officer’s factual

findings for clear error and reviews questions of law de novo. Draper v. Atlanta Indep. Sch. Sys.,

518 F.3d 1275, 1284 (11th Cir. 2008); “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. v. S.B., 788 F. Supp.

2d 1347, 1350 (N.D. Ala. 2011).

IV. Analysis

The Board argues that the hearing officer: (1) “erred as a matter of law in finding that the

school representatives of the eligibility team acted ‘improperly’ in examining whether Student

‘need[ed] special education’ in the form of ‘specially designed instruction’”; (2) “erred in finding

that ‘a behavior plan’ and ‘use of a calculator’ constitute ‘specially designed instruction’ and, thus,

‘special education’ under the IDEA”; (3) “erred insofar as he found the Student proved that the

Student met IDEA eligibility criteria”; (4) “did not apply the correct ‘child find’ standard under

Durbrow. . . . [And he] erred to the extent that he found the Student proved the Board violated the

IDEA’s ‘child find’ obligation”; and (5) “ordered [relief that] is not appropriate given the Student’s

individual needs and unique circumstances, and the record evidence does not support the relief

that was ordered.” (Doc. # 2 at 2-3).

It is clear from the record that the hearing officer applied the incorrect legal analysis in

finding that the Board violated its obligations under the IDEA. Eligibility for special education has

three components: (1) the child must have a disability under the criteria of the Alabama

Administrative Code, (2) the disability must adversely affect the child’s educational performance,

and (3) the disability must require the need for specially designed instruction. Ala. Admin. Code

§§ 290–8–9.02, 290–8–9.03; 34 C.F.R. § 300.306(c)(2); Alvin v. Ind. Sch. Dist. v. A.D., 503 F.3d

378, 383 (5th Cir. 2007); Marshall Joint Sch. Dist. No. 2 v. C.D., 616 F.3d 632, 640-41 (7th Cir.

2010).

The pertinent question here relates to the definition of the term “need” as used in the statute

and regulations. The hearing officer held that the Alabama Administrative Code should not be read

to include a requirement that a student show need, but rather the use of that term should be

understood to address “what a disabled child whose disability is impairing the student’s

educational performances is entitled to receive (or “needs”) when those criteria (disability, adverse

educational performance) occur.” (Id.). Specifically, the hearing officer stated:

The use of the phrase who, as a result of a disability that adversely affects their

educational performance, may . . . (not shall) could be read as mandating the need

for specially designed instruction as criteria for eligibility. But, it appears more

likely that it should be read as what a disabled child whose disability is impairing

the student’s educational performances is entitled to receive (or “needs”) when

those criteria (disability, adverse educational performance) occur.

(Doc. # 9-1 (SEALED) at 20) (internal quotation marks omitted). The hearing officer cited no

authority for this interpretation. More significantly, the interpretation conflicts with Eleventh

Circuit precedent.

In Durbrow, the Eleventh Circuit held that “to establish an entitlement to FAPE, a student

. . . must show (1) that her [disability] adversely affects her academic performance; and (2) ‘by

reason thereof,’ needs special education.” Id. at 1193 (emphasis added); 20 U.S.C. §

1401(3)(A)(ii). In Durbrow, the student could “not demonstrate a need for special education,” even

though he suffered from ADHD, because the student’s “overall academic performance ranged

from mediocre to extraordinary.” Id. at 1194. Additionally, the Alabama Administrative Code --

which the hearing officer inexplicably found unpersuasive -- states that “[c]hild [f]ind includes a

practical method of determining which children with disabilities are currently receiving needed

special education and related services.” Ala. Admin. Code § 290–8–9–.01 (emphasis added).

Additionally, a pertinent federal regulation provides that “[i]f a determination is made that a child

has a disability and needs special education and related services, an IEP must be developed for the

child.” 34 C.F.R. § 300.306(c)(2) (emphasis added).

With respect to Student’s disability, Student’s parent focuses heavily on Student’s

behavioral problems and his frustration with not being able to understand his make-up work. The

hearing officer focused on both Student’s behavioral problems and his deficiency in mathematical

calculations (with an emphasis on the latter). However, the record indicates that Student could still

grasp the material, understand the general concepts, and master grade-level standards. (Doc. # 9-

1 (SEALED) at 18). The question is whether Student’s behavioral problems and academic

performance entitle him to specially designed instruction because he needs it.

The Eleventh Circuit has held that:

A student is . . . unlikely to need special education if, inter alia: (1) the student

meets academic standards; (2) teachers do not recommend special education for the

student; (3) the student does not exhibit unusual or alarming conduct warranting

special education; and (4) the student demonstrates the capacity to comprehend

course material.

Durbrow, 887 F.3d at 1193-94. Here, Student generally met academic standards (notwithstanding

his two failed math courses),9 his teachers did not recommend specially designed instruction (see

e.g., Doc. # 9-2 (SEALED) at 114), and Student demonstrated his capacity to comprehend course

material. One of his teachers testified that Student is “a very social person” and has many friends

in the class that distract him. (Doc. # 9-3 (SEALED) at 144). Another teacher testified that Student

is “very willing and capable of completing all the content standards for [the] class.” (Id. at 123).

And others stated that “while [Student] seemed to be embarrassed or resistant to teachers’ help, if

he would allow himself to receive the assistance necessary to complete his work, he could complete

his lessons in a satisfactory manner.”10 (Doc. # 9-1 (SEALED) at 9-10).

Additionally, the hearing officer’s conclusion that use of a calculator is specially designed

instruction is without merit. The hearing officer repeatedly emphasized that specially designed

9 The hearing officer noted that Student’s IQ score, notwithstanding one portion of the assessment involving math-

type questions, was “similar to the fifty percent of his peers who all fall in the average category.” (Doc. # 9-1

(SEALED) at 11). Additionally, the hearing officer noted that, with respect to Student’s standardized test scores in

the 10th grade, “[a]ll witnesses characterized the standardized score of [Student] to be similar to those of most of his

classmates. One witness stated they were within the range of the ‘vast majority’ of [Student’s] fellow students.” (Id.

at 13).

10 The hearing officer noted that Student’s progress reports support these testimonies. (Doc. # 9-1 (SEALED) at 10).

instruction is different in kind than that given to other students. (Id. at 22-23). However, Student’s

teachers testified that every child at the school is permitted to use a calculator on homework and

tests. (Doc. # 9-3 (SEALED) at 93; Doc. # 9-2 (SEALED) at 119). Therefore, contrary to the

hearing officer’s finding, Student’s use of a calculator cannot be deemed “specially designed

instruction.” (Doc. # 9-1 (SEALED) at 23).

The hearing officer also found that Student needs specially designed instruction in the form

of a behavioral plan. But, it is not clear from the record why the hearing officer recommended an

IEP behavioral plan as opposed to a Section 504 behavioral plan, which, based on the record

evidence, is readily available to Student. (Id. at 22). Indeed, Student’s Section 504 Coordinator

has suggested adopting a Section 504 behavioral plan for Student. (Id.).

Student failed his freshman and sophomore year math courses and was required to attend

summer school (which he completed and passed). He also was required to attend alternative school

(due to his disciplinary history and his refusal to follow instruction and ask for help—which, again,

was readily available to him). (Doc. # 9-1 (SEALED) at 6-7). Some of Student’s teachers testified

that his “poor grades were the result of his not doing (or not turning in) the work that he was

permitted to make-up.” (Id. at 10). And, one of Student’s teachers testified that Student would act

in defiance when asked to put his cell phone away. (Doc. # 9-3 (SEALED) at 155). While the

record also reflects that Student exhibits disruptive conduct, there is no indication from the record

that his behaviors caused an inability to comprehend course material. (Doc. # 9-1 (SEALED) at 6-

7). These circumstances simply do not qualify Student to receive special education or related

services under the IDEA. See D.J.D., 2018 WL 4283058, at *3 (noting that the child-find

obligation “does not extend to testing every student who is not successful when factors other than

a disability would also explain the failure to progress”) (citing Jefferson Cty. Bd. of Educ. v. Lolita

S., 977 F. Supp. 2d 1091, 1124 (N.D. Ala. 2013), aff’d, 581 F. App’x 760 (11th Cir. 2014)) (internal

quotation marks omitted).

One of the purposes of the IDEA is to ensure that students who suffer from behavioral

issues and disruptive behavior receive the specialized training and educational tools needed when

such behaviors cause an adverse effect on a student’s educational performance. See W.C. ex rel.

Sue C., 707 F. Supp. 2d at 1360-61 (“While certainly not the only consideration, the [c]ourt holds

that, where a student has behavioral disabilities, academic progress is a significant factor in

determining whether that student has received adequate educational benefits.”); L.J. ex rel. N.N.J.

v. Sch. Bd. of Broward Cty., 927 F.3d 1203 (11th Cir. 2019); see also Ala. Admin. Code § 290–8–

9–.00(4). However, not every disability or behavioral issue warrants specially designed instruction

under the IDEA. A student must need specially designed instruction because of his disability. Even

if a child suffers from a disability, if that student does not need specially designed instruction, he

is not entitled to FAPE. See Durbrow, 887 F.3d at 1195 (holding that a child who suffers from

ADHD did not need special education because he “(1) met academic standards, (2) was not

recommended for special education by any of his teachers, (3) did not exhibit especially alarming

conduct warranting special education, and (4) demonstrated he was learning, while displaying

some weaknesses not readily amenable to special-education remediation”).

Essentially, if special education would not help a child access the “general curriculum” of

the school, then the student will likely not “need” special education. Id. Here, the record certainly

indicates the conclusion that Student could access and comprehend the “general curriculum” if he

applied himself. None of his teachers believed he needed specially designed instruction or would

even benefit from it. If Student needs anything, it would likely be a behavior plan under his Section

504 plan, notwithstanding the hearing officer’s aversion to such suggestion. Or, alternatively,

Student may need a “related service” under the IDEA to develop a behavior plan. However, a

related service is not “specially designed instruction” under the IDEA. See 34 C.F.R. § 300.8 (‘Lf

it is determined, through an appropriate evaluation under §§ 300.304 through 300.311, that a child

has one of the disabilities identified in paragraph (a)(1) of this section, but only needs a related

service and not special education, the child is not a child with a disability under this part.”)

(emphasis added).

Therefore, it is necessary to remand this case back to the hearing officer to make

appropriate determinations under the correct legal standard; i.e., evaluating “need” as an

independent inquiry with respect to Student’s eligibility for specially designed instruction.

V. Conclusion

For the reasons stated above, this case is due to be remanded back to the hearing officer for

findings consistent with this Opinion. The Board’s Motion to Stay (Doc. # 2) is due to be granted

to the extent that the hearing officer will be directed to apply the correct legal standard to the claim

in this matter. An Order consistent with this Memorandum Opinion will be entered.

DONE and ORDERED this November 25, 2019.

UNITED STATES DISTRICT JUDGE

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