A.K., a Minor by His Parents and Next Friends J.K. And E.S. v. Alexandria City School Board

GREGORY, Circuit Judge,

dissenting:

Today the majority mistakenly concludes that an inconsequential procedural error denied a disabled student of the opportunity for a FAPE. Of equal concern, the majority blurs the already indistinct line between procedural and substantive errors in the preparation of IEPs, documents that are of singular importance to the proper operation of the IDEA. The IEP that ACPS prepared for A.K. was flawed — it did not include the location at which A.K. would receive special educational services — but the flaw was merely *683procedural and did not deny A.K. a FAPE. Because I believe the school district’s error was harmless, I respectfully dissent.

I.

In cases in which a student claims he was denied a FAPE, we first inquire into whether the school district complied with the procedural requirements of the IDEA. See Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07, 102 S.Ct. 3084, 73 L.Ed.2d 690 (1982). Even if ACPS violated one or more of the IDEA’S procedural requirements, A.K. may have received an acceptable opportunity for a FAPE. See DiBuo v. Bd. of Educ., 309 F.3d 184, 190 (4th Cir.2002) (ruling that a procedural violation of the IDEA cannot deny a disabled child a FAPE when the violation does not interfere with the provision of a FAPE to that child); Burke County Bd. of Educ. v. Denton, 895 F.2d 973, 982 (4th Cir.1990). If A.K. did not lose an educational opportunity as a result of the procedural error, he was not denied a FAPE. See DiBuo, 309 F.3d at 190.

The majority is correct that A.K.’s IEP did not meet the IDEA’S requirements. Specifically, the IEP did not specify the anticipated location at which the school district would provide special education services to A.K. The IDEA requires that an IEP include “the projected date for the beginning of the services and modifications described in subclause (IV), and the anticipated frequency, location, and duration of those services and modifications.... ” 20 U.S.C. § 1414(d)(l)(A)(i)(VII) (Supp.2004). The statute does not define location as it is used in § 1414(d)(l)(A)(i)(VII), but the term must refer to something other than an educational placement, something more akin to a particular geographic locale. Section 1414(d)(l)(A)(i)(VII) concerns itself with some of the logistical considerations parents might have when making a decision regarding their • child’s education. The projected starting date, frequency, location, and duration of the child’s educational sessions are relevant to practical concerns like scheduling the child’s day and arranging for the child’s transportation. See White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 (5th Cir.2003) (“The provision that requires the IEP to specify the location is primarily administrative .... ”).

This understanding of location is consistent with our precedent. When defining educational placement as it is used in the IDEA’S “stay put” provision, we repeatedly distinguished educational placement from location. See A.W. v. Fairfax County Sch. Bd., 372 F.3d 674, 681-83 (4th Cir.2004). Concluding that educational placement referred to an “instructional setting,” this Court emphasized that the placement did not refer to the “precise location of that setting” or the “precise physical location where the disabled student is educated.” Id. at 683, 681. As it is used in the IDEA (and in common parlance), then, location refers to something geographic in nature: a place or locale. This understanding is consistent with the notion that .§ 1414(d)(l)(A)(i)(VII) deals with practical, logistical considerations.

A.K.’s 2004-2005 IEP contains a chart with a column labeled “LOCATION OF SERVICES.” That column bears the solitary entry “SpeEd [illegible],” in reference to the type of education A.K. would receive, not the location at which he would receive it. Thus, A.K.’s IEP was flawed.1 ACPS’s error, however, was only procedural.

*684There is no bright line distinguishing all the “procedural” requirements of the IDEA from its “substantive” requirements.2 If such a line could be drawn, it might be done by looking to the consequences of the violation of the IDEA requirement in question. The violation of a substantive requirement results, of necessity, in the denial of a FAPE, whereas the violation of a procedural requirement does not, see DiBuo, 309 F.3d at 190. More than once the majority acknowledges that the failure to identify the location of the provision of special education services on a student’s IEP need not always result in the denial of a FAPE. See ante 681, 682. This concession supports the conclusion that the requirement that a school district give an anticipated location on the IEP is only procedural. But then the majority states without explanation that it “views [A.K.’s] claim as an alleged deficiency in what ACPS was offering rather than in the procedure by which the offer was developed or conveyed” and therefore considers the ACPS’s violation to be substantive. Ante 679 n. 7. It is not. ACPS erred, but that error was procedural.

II.

ACPS’s error did not deny A.K. a FAPE. In DiBuo, this Court asked “[w]hether a procedural violation of the IDEA can support a finding that a school district failed to provide a disabled child with a FAPE when the procedural violation did not actually interfere with the provision of a FAPE to that child.” 309 F.3d at 190. The answer to the question, we said, is no. Id. DiBuo and the cases it cites make clear that something more than a simple procedural violation must exist in order for an aggrieved student to prevail in this sort of appeal: the violation must result in some loss of educational benefit or opportunity and cannot simply be a harmless error. See id. Here A.K. lost no educational opportunity and therefore was not denied a FAPE.

As the district court pointed out, ACPS recommended both the Phillips and Kellar schools as options for A.K. during the June 9 IEP meeting. A.K. ex rel. J.K. v. Alexandria City Sch. Bd., 409 F.Supp.2d 689, 693 (E.D.Va.2005). Whether or not there was extensive discussion of the schools during the meeting, Susan Sullivan named the schools as possible locations at which A.K. might be educated. In A.K.’s case, this oral notice was equivalent to the written notice the IDEA requires: after Sullivan’s suggestions were made, A.K.’s parents knew with a reasonable degree of *685certainty where ACPS proposed to educate their child the following school year. The Phillips and Kellar schools were the only ones named as possibilities by ACPS until the school district sent A.K.’s information to several other private day schools on July 6, and during the IEP meeting, A.K.’s parents understood them as such.

The majority discounts the mention of these two schools because, it says, the IEP team had never considered whether those particular schools would be able to satisfy A.K.’s needs. See ante 681-82. This objection has no bearing on the question whether ACPS’s failure to specify a location on the IEP harmed A.K. The majority’s principal concern is that A.K.’s parents had no idea where them child was likely to receive special education services, placing upon them the “undue burden” of investigating any number of potential placements. See ante at 681. But A.K.’s parents did know where he would likely receive special education services: the Phillips School or the Kellar School.

Even if the decision-making process was relevant to the question of notice, there was no defect in the manner in which ACPS selected the Phillips and Kellar schools as possibilities. Sullivan, who suggested the schools at the June 9 meeting, was ACPS’s private placement specialist and had nearly thirty years of experience in the special education field. It was her job to place needy students in private day or residential schools. She visited schools (including Phillips and Kellar) and worked with teachers and parents to ensure successful placements. She knew A.K.’s case well and had placed other students in both the Phillips and Kellar schools before. Her recommendations for A.K. were of precisely the sort it was her job to make. The IDEA does not govern the process by which she must arrive at her recommendations, and I find no problem with either her reliance upon her expertise or her ultimate suggestions. Cf. § 1414(d)(3)(B) (listing factors IEP team must consider while developing IEP).

The IDEA does not require that an IEP identify the definitive location for the provision of a child’s special education services; the IEP need only supply the anticipated location. § 1414(d)(l)(A)(i)(VII). In A.K.’s case, the IEP did not, but ACPS suggested two potential locations during the June 9 meeting.3 If A.K.’s parents wished to challenge the suitability of either school, they could have done so (and did), but the basis for their complaint ought not to have been that they were unaware of the anticipated location of services. Because A.K.’s parents were given notice that the Phillips and Kellar schools were locations under consideration; ACPS’s failure to write this information on his IEP did not deny A.K. of an educational opportunity-

*686Perhaps more important than the notice provided in the June 9 IEP meeting is the apparent determination of A.K.’s parents to keep him at Riverview no matter the outcome of the IEP proceedings. See MM ex rel. DM v. Sch. Dist., 303 F.3d 523, 535 (4th Cir.2002) (finding procedural error harmless in part because there was no evidence parents would have accepted FAPE offered by school district). Before the 2004-2005 IEP development process even began, A.K.’s parents signed a contract and paid a deposit for A.K. to return to Riverview for the summer of 2004 and the 2004-2005 school year.4 A.K.’s mother testified that she was unwilling to bring A.K. back from Riverview, where he was attending a summer program, without a “specific placement” in Alexandria being identified first. Apparently this unwillingness extended even to trips home that might help identify that “specific placement”: both Phillips and Kellar requested interviews with A.K. during the summer in order to determine conclusively whether they could give him the assistance he required, but A.K.’s parents never brought him home to attend those interviews. A.K.’s mother testified that when the Phillips and Kellar schools were named as potential locations in the June 9 IEP meeting, she already had determined that both schools were inappropriate for her son. She understood those schools were suggested locations; she simply disagreed with their selection. It is difficult to understand how A.K. could have lost educational opportunity on account of the omission of the schools’ names from his IEP when his parents understood both schools were under consideration and had already expressed that neither was appropriate for their son.

Finally, the Hearing Officer’s decision indicates that the parents had no objections to the notice the IEP provided at the time of A.K.’s due process hearing. Any procedural violations pertaining to the IEP’s notice function, then, were considered harmless by the parents (or at least, harmless enough that the parents chose not to raise the issue before the Hearing Officer). In short, A.K. was denied no educational opportunity as a result of ACPS’s failure to list an anticipated location for his education on his 2004-2005 IEP. Without a denial of an educational opportunity, A.K. could not have been denied a FAPE by the error. See DiBuo, 309 F.3d at 190.

III.

The second component of the reviewing court’s inquiry regards substantive compliance with the IDEA. It is intended to ensure that the IEP developed is “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. at 206-07, 102 S.Ct. 3034. In this case, the Hearing Officer found that private day placement would “assist A.K. in his transition into the local community, and constitute the least restrictive environment for him.” A residential program like Riverview, the Hearing Officer concluded, was not required by the IDEA because it *687“merely enhance[d] an otherwise sufficient day program.”

Before reaching this conclusion, the Hearing Officer heard the testimony of educational experts presented by both parties on topics including the appropriateness of the Phillips and Kellar schools for A.K. See A.K., 409 F.Supp.2d at 694-95. ACPS presented Sullivan, who had visited both schools many times. She offered testimony about both schools and how A.K. would fit in at each based on her knowledge of the schools and A.K.’s needs. ACPS also presented Cara Jill Cohen, its autism resource specialist and an expert in special education. Cohen had observed A.K. in a variety of school settings, including at Riverview, and had worked with Sullivan on A.K.’s IEP team. She was involved in the decision to recommend a private day school for A.K. and believed that his needs could be met by one. The Hearing Officer also heard the testimony of Laura Heyer, the program supervisor of the high school combination program at Phillips, who described the school and its programs in detail. She testified on the basis of her experience and A.K.’s records, which were sent to her in July 2004, that she saw nothing about A.K.’s case to suggest that Phillips could not adequately serve his needs. In opposition, A.K.’s parents presented two experts who opined that A.K. could not properly be served at a private day school like Phillips or Kellar, but neither expert had more than the shallowest of acquaintances with either school.

The Hearing Officer’s findings, including the finding that the Phillips or Kellar school were sufficient to meet A.K.’s needs, are entitled to a presumption of correctness. A.B. ex rel. D.B. v. Lawson, 354 F.3d 315, 325 (4th Cir.2004). The evidence in the record does not rebut the presumption in this case. A.K.’s mother may not have cared for Phillips or Kellar, but the evidence indicates that the schools adequately would have attended to A.K.’s educational needs. As this Court has said before, the “IDEA requires great deference to the views of the school system rather than those of even the most well-meaning parents.” A.B., 354 F.3d at 328. ACPS provided A.K. with the opportunity for a FAPE and therefore has no obligation to bear the cost of his private school education during the 2004-2005 school year. See 20 U.S.C. § 1412(a)(10)(C)(i).

IV.

Despite committing a procedural error in the preparation of his IEP, ACPS provided A.K. with the opportunity for a FAPE. Consequently, he is not entitled to reimbursement of his Riverview tuition or the remand granted by the majority. I am disappointed that my colleagues today punish a school district for a harmless oversight. Had ACPS simply written the names of the candidate schools on A.K.’s IEP there would be no basis for complaint. In this case, A.K. has a legitimate complaint, but because he lost no educational opportunity as a result of ACPS’s oversight, the IDEA affords him no remedy. The district court’s decision should be affirmed.

. I note that in IEPs developed for A.K. in previous years, the “LOCATION OF SERVICES” column contained such entries as "Special Edu,” "General Edu,” "Consult,” and "regular.” These descriptions, whatever their value, do not satisfy the IDEA’S requirement that the school district list the anticipated location of services in the IEP. They did, *684however, satisfy A.K.'s parents: A.K.’s mother signed IEPs that did not specify location for both the 2002-2003 and 2003-2004 school years without objection on this point.

A.K.'s mother signed the 2003-2004 IEP as part of a settlement agreement between the parents and ACPS. Under the terms- of the agreement, the parents consented to the "private day school placement” designated in the IEP in exchange for ACPS's partial funding of A.K.'s education at Riverview that year. Then, as now, the parents' true complaint was that A.K. should be at Riverview and not in private day placement at all. Unfortunately, ACPS refused to subsidize A.K.'s Riverview education for the 2004-2005 school year and presented ample evidence during the 2004 due process hearing to justify its choice of private day placement for A.K. To obtain funding for their preferred school a second time, the parents are left with a claim that a procedural oversight denied A.K. some educational opportunity.

. Although 20 U.S.C. § 1415 addresses itself specifically to procedural safeguards, we have found several of the requirements listed in § 1414 to be procedural as well. See, e.g., DiBuo, 309 F.3d at 187, 190-92; MM ex rel. DM v. Sch. Dist., 303 F.3d 523, 535 (4th Cir.2002).

. As the majority acknowledges, see ante 681 n. 9, this Court has upheld the validity of an IEP in which a school district promised to provide special education services at one of two different locations, see MM, 303 F.3d at 529, 535. Although the number of schools suggested on the IEP was not at issue in that case, MM lends support to the proposition that a school district may suggest more than one school and still satisfy its obligation to write the anticipated location of the provision of services on an IEP. A multiplicity of suggested locations may well place an "undue burden" on the parents (as might suggesting no school at all), but two schools hardly constitute a multiplicity. I am troubled that the majority is willing to punish a school district for acknowledging that more than one school may appropriately serve a child’s needs. Given that neither of the two suggested schools had met with A.K. personally (as each needed to do before finally determining whether it could adequately serve him), it would serve no purpose to force ACPS arbitrarily to suggest one over the other in the IEP.

. A.K.'s father pointed out that the deposit was to reserve A.K.'s spot at Riverview and that the parents had not yet given any "substantive funding” to Riverview at the time of the IEP meetings. The $5,700 deposit accompanied a document entitled "Reservation and Enrollment Agreement,” signed April 8, 2004, by A.K.’s parents that set out the terms and conditions of A.K.'s education at Riverview for the 2004-2005 school year. Such a deposit might have served only as a safety net intended to catch A.K. should negotiations with ACPS fall through or lead to the conclusion that Riverview was the appropriate placement. On the other hand, the deposit and enrollment agreement are also consistent with an intent to keep A.K. at Riverview no matter the outcome of the IEP proceedings.