[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR TH E ELEV ENTH C IRCUIT
____________________________
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-15252
November 7, 2003
____________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 01-01532-CV -BBM-1
LOR EN F ., by his pa rents as n ext friend ,
MELANIE FISHER, DAVID FISHER,
Plaintiffs-Appellants,
versus
ATLANTA INDEPENDENT SCHOOL SYSTEM,
Defendant-Appellee.
____________________________
Appe al from th e United States D istrict Cou rt
for the N orthern District o f Geor gia
____________________________
(November 7, 2003)
Before BIRCH and H ULL, Circuit Judges, and EDENF IELD*, District Judge.
______________________
*Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sitting by designation.
EDENF IELD, District Judge:
I. BACKGROUND
Claimin g that their son, “Lo ren F.,” s uffers a “n onverb al learning disability,”
his paren ts reques ted that the Atlanta P ublic Schools (A PS) ac comm odate him
under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400
et seq. (1994), and Section 504 of the Rehabilitation Act of 1973 ("Section 504"),
29 U.S.C. § 791 et seq. (1994). Deeming APS’s efforts inadequate, they removed
him from an APS school and private-schooled him, then unsuccessfully pursued
APS for reim bursem ent adm inistratively and in d istrict cour t.
They n ow ap peal, inter alia, the district c ourt’s de nial of the ir
reimbu rsemen t claim (fo r conve nience, w e will sim ply refer to “Loren ”). We
preliminarily note a substantial divergence between the administrative and
district cou rt rulings below . Also, L oren pr esents us with sev eral proc edural (e.g.,
jury trial right) issues. We therefore find it useful to first review some governing
legal principles before discussing the merits.
II. ANAL YSIS
A. IDEA Governing Standards
The ID EA g uarantee s disabled students a Free an d App ropriate P ublic
Educa tion (“FA PE”). Sch. Bd. of Collier County v. K.C., 285 F .3d 977 , 979 (1 1th
Cir. 2002). A FA PE is d efined as special ed ucation s ervices th at:
2
(A) have been provided at public expense, under public supervision
and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or secondary
school education in the State involved; and
(D) are provided in conformity with the individualized education
progra m requ ired und er section 1414( d) . . . .
20 U.S.C. § 1401(8). Although the IDEA reflects a structural preference in favor
of prov iding sp ecial educ ation in p ublic sch ools, it reco gnizes th at certain p ublic
schools are unab le or unw illing to pr ovide ap propria te special ed ucation s ervices.
The IDEA, therefore, provides that the cost of the private school may be
reimbursed if the public school did not make a FAPE available to the child in a
timely ma nner. 20 U.S.C. § 1412(a)(10)(C)(ii).
To provide a FAPE, a school formulates an Individual Educational Plan
(“IEP” ) during a meeting betwee n the stud ent’s pare nts and s chool o fficials. See
20 U.S .C. § 14 14(d)( 1)(A) -(B); N.L. v. Knox County Sch., 315 F .3d 688 , 689 (6 th
Cir. 200 3). An IEP m ust be am ended if its objectiv es are no t met, 20 U .S.C. §
1414( d)(4) (r evise it at leas t annually if deficien t); Kings Local Sch. Dist., Bd. of
Educ. v. Zelazny, 325 F .3d 724 , 731 (6 th Cir. 20 03), bu t perfectio n is not re quired.
CJN v. Minneapolis Pub. Sch., 323 F .3d 630 , 638-3 9 (8th C ir. 2003 ); K.C., 285
F.3d at 982.
3
Courts thu s ask whe ther: (1) the scho ol complied w ith the IDE A’s
proced ures; and (2) the IE P deve loped th rough those pr ocedur es is reaso nably
calculated to enable the student to receive educational benefits. 1 Ms. S. v. Vashon
Island S ch. Dist., 337 F.3d 1115, 1129 (9th Cir. 2003) (citing Board of Educ. v.
Rowley, 458 U.S. 176, 206-207 (1982)). A “yes” answer to both questions ends
judicial rev iew. White v. Ascension Parish Sch. Bd., 343 F.3d 373, 378 (5th Cir.
2003) (citing Rowley, 458 U.S. at 206-207).
A “no” answe r means no FA PE w as prov ided (du e to, for ex ample, a
deficient IEP), thus enabling the student to resort to private school and seek
reimbu rsemen t from th e schoo l district un der 20 U .S.C. § 1 412(a) (10)(C )(ii).
Rafferty v. Cranston Pub. Sch. Comm., 315 F .3d 21, 2 6 (1st C ir. 2002 ); see also id.
(court also must find the private school placement proper).
Even where a FAPE is not provided, courts can nevertheless deny
reimbursement if a parent’s own actions frustrated the school’s efforts. 2 See MM v.
1
“The FAPE described in an IEP need not be the best possible one. . . rather, it need only be an
education that is specifically designed to meet the child's unique needs, supported by services
that will permit him to benefit from the instruction.” Pace v. Bogalusa City Sch. Bd., 325 F.3d
609, 618-19 (5th Cir. 2003) (quotes and cite omitted); see also JSK v. Hendry County Sch. Bd.,
941 F.2d 1563, 1573 (11th Cir.1991) (“While a trifle might not represent ‘adequate’ benefits . . .
maximum improvement is never required”)]; E.D. v. Enterprise City Bd. of Educ., 273
F.Supp.2d 1252, 1263 (M.D. Ala. 2003) (“[A] denial of a FAPE is difficult to establish. The
standard for whether an IEP provides a FAPE is whether it is reasonably calculated to confer the
basic floor of educational benefits”).
2
Parental involvement in the handicapped child’s education is the purpose of many of the
IDEA’s procedural requirements. See, e.g., Weber v. Cranston Sch. Comm., 212 F.3d 41, 51 (1st
4
Sch. D ist. of Gre enville Co unty, 303 F.3d 523, 533-35 (4th Cir. 2002) (school
district not IDEA liable for its failure to timely complete IEP where parents ceased
to coop erate in IE P's com pletion, p referring to place ch ild in priv ate schoo l); Doe
v. Defen dant I, 898 F.2d 1186, 1189 n. 1 (6th Cir. 1990) (parent could not
compla in that sch ool distric t failed to co mplete a tim ely IEP when IEP's
non-co mpletion was attrib utable to p arent's req uest that sc hool allo w stud ent to
perform on his o wn fo r a while ); see also Doe v. Ala. Dept. of Educ., 915 F.2d 651,
663-64 (11th Cir. 1990).
Courts also can deny or reduce reimbursement if parents otherwise act
unreaso nably, see 20 U.S.C. § 1412(a)(10)(C)(iii)(III); 34 C.F.R. § 300.403(d)(3)
(“Upon a judicial finding of unreasonableness with respect to actions taken by the
parents”), or if parents fail to give the school proper notice that they reject the
school’s IEP an d/or are removin g their ch ild from the scho ol, 3 20 U.S .C. §
1412( a)(10)( C)(iii)(I) ; 34 C.F .R. § 30 0.403( d)(1); see also M.C. v. Voluntown Bd.
of Educ., 226 F.3d 60, 68 (2d Cir. 2000).
Cir. 2000); Doe v. Ala. Dept. of Educ., 915 F.2d 651, 661 & n. 9 (11th Cir. 1990); see also
Rowley, 458 U.S. at 205-06). While this may not be an absolute requirement, it is a goal of the
IDEA, and courts should be reluctant to award monies to parents who refuse or hinder the
development of a FAPE or IEP.
3
Even if the parent has acted unreasonably, that may be excused (and reimbursement may be
ordered) if one of the four exceptions has been shown, including, that denying reimbursement
“would likely result in physical or serious emotional harm to the child . . . .” 20 U.S.C. §
1412(a)(10)(C)(iv)(II); 34 C.F.R. § 300.403(e)(2).
5
“As the losing part[y] before the district court, [Loren] . . . bear[s] the
burden of demonstrating that the [APS] did not comply with the IDEA.” M.L. v.
Fed. W ay Sch. D ist., 341 F .3d 105 2, 1064 (9th Cir . 2003) ; see also Devine v.
Indian River County Sch. Bd., 249 F.3d 1289, 1292 (11th Cir. 2001).
B. IDEA -- Stand ard of Review
We rev iew distr ict court ID EA d ecisions u nder the standard s set forth in
K.C., 285 F.3d at 982-83 (whether an IEP provides a FAPE is a mixed question of
fact and law subject to de novo review), and Walker Coun ty Sch. D ist. v. Benn ett,
203 F.3d 1293, 1295 n. 6 (11th Cir. 2000) (statutory interpretations are reviewed
de novo).
Contrary to Loren’s contention, “summary judgment [in IDEA cases] has
been deemed appropriate even when facts are in dispute, and is based on a
preponderance of the evidence.” Beth B. v. Van Clay, 282 F .3d 493 , 496 n.2 (7th
Cir. 2002). That is why the district court’s decision “is perhaps better described as
judgment on the record.” Id.; see also Slama v. Indep. Sch. Dist. No. 2580, 259
F.Supp.2d 880, 882 (D. Minn. 2003) (O n motion for judgment on the record in an
IDEA suit, the district court “may make a decision on the merits, even if there
exist, upon the stipulated [r]ecord, disputed issues of material fact”) (citation
omitted).
6
That means that the usual F. R. Civ. P. 56 summary judgment principles do
not apply in an IDEA case. 4 This is not surprising because no IDEA jury trial right
exists. See Whitehead v. Sch. Bd. for Hillsborough Co., 918 F.Supp. 1515, 1518
(M.D. Fla. 1996) (Because only injunctive relief and equitable damages are
allowed under the IDEA, there is no jury trial right for IDEA claimants). The
district court often conducts “a bench trial on a stipulated record.” Slama, 259
F.Supp.2d at 882 (quotes and cite omitted).
While many courts cite to the commonly applied Rule 56 standards without
acknow ledging these distin ctions, see, e.g., M.D. v. Southington Bd. of Educ., 334
F.3d 217, 220-21 (2d Cir. 2003), we find nothing to prevent district judges from
factfinding under F. R. Civ. P. 52 in IDEA cases -- even on a record bearing
evidence tendered in addition to the IDEA administrative record -- subject to the
requirement that they accord “due w eight” to administrative findings. 5
4
Though “[s]ummary judgment procedure does not serve to prevent a court from hearing
evidence pertaining to questions of material fact,” Victoria L. v. Dist. Sch. Bd., 741 F.2d 369,
372 (11th Cir. 1984), it is, at bottom, “simply a procedural vehicle requiring [the district judge]
to decide . . . [the IDEA] action on the basis of the administrative record.” Suzawith v. Green
Bay Area Sch. Dist., 132 F.Supp.2d 718, 724 (E.D. Wis. 2000); see also Hanson v. Smith, 212
F.Supp.2d 474, 480-81 (D. Md. 2002).
5
Courts owe some judicial deference to local administrative agency judgments, see Deal v.
Hamilton County Dept. of Educ., 259 F.Supp.2d 687, 691-92 (E.D. Tenn. 2003) (When
reviewing IEPs, court keeps in mind that state and local administrative agencies are deemed to
have expertise in education policy and practice), though that’s typically limited to matters calling
upon educational expertise. Zelazny, 325 F.3d at 728 (The amount of weight due to
administrative findings under the IDEA depends on whether the finding is based on educational
expertise) (citing McLaughlin v. Holt Pub. Sch. Bd. of Educ., 320 F.3d 663, 669 (6th Cir. 2003)).
7
Reimbursement, after all, is “a matter of equitable relief, committed to the
sound discretion of the district court . . . .” Roland M. v. Concord Sch. Comm., 910
F.2d 9 83, 999 (1st Cir.1 990) (c ites omitted ; empha sis added ), see also Kurz v.
Chase Manhattan Bank, 273 F.Supp.2d 474, 480 n. 1 (S.D.N.Y. 2003) (“If the
award of statuto ry dama ges is seen as repres enting eq uitable relie f then it sh ould
go without saying that no right to a jury attaches to claims for equitable relief”)
(quotes , cite and alte rations o mitted), so no jury- trial right ex ists on tha t score.
And f actfindin g is not lim ited to ben ch trials inv olving liv e witnes ses. See
Ander son v. C ity of Bessemer C ity, N.C., 470 U.S. 564, 574 (1985) (Absent clear
error, a district court’s factfindings cannot be overturned even if they “do n ot rest
on credibility determinations, but are based instead on physical or documentary
evidence or inferences from other facts”).
Finally, in deferring to the Administrative Law Judge (“ALJ”), the district
court must receive and thus review “the records of the [state] administrative
proceedings.” 20 U.S.C. § 1415(i)(2)(B)(i). Where the district court does not
receive any additional evidence or testimony, this court stands “in the same shoes
as the district court in reviewing the administrative record and may, therefore,
To that end, administrative factfindings “are considered to be prima facie correct, and if a
reviewing court fails to adhere to them, it is obliged to explain why.” MM, 303 F.3d at 531; see
also G v. Fort Bragg Dependent Sch., 343 F.3d 295, 302 (4th Cir. 2003).
8
accept the conclusions of the ALJ and district court that are supported by the
record and reject those that are not.” M.L., 341 F.3d at 1062.
C. Loren’s IEP Rejection
Loren attended an APS school through the sixth grade, then private school
for the se venth an d eighth grades. I n 1/00, m idway th rough the eighth grade, h is
parents took him to Dr. Pamela Frey, a psychologist who diagnosed him with a
“nonverbal learning disability” (NLD).
On 3/4/00, Loren’s mother submitted his application to a private school for
the ninth grade. The second page of the application includes the following text: “If
you are seeking funding from your school district, please check here.” Next to the
box, which is checked, Loren’s mother wrote: “But can pay without funding from
school.” The printed text of the application further reads: “Please note your
advocate’s name and phone number (if applicable) and where you are in the
process at this time.” Beneath this text, Loren’s mother wrote: “Jon Zimring -
attorney 4 04-60 7-160 0. Hav e met [w ith] Mr. Z imring [ ] and plan to meet w ith
school reps in 2-3 weeks. Mr. Zimring expects to be able to complete process by
end of th is academ ic year.”
Despite the fact that Loren was currently enrolled in private school and had a
pending application at a private high school, Loren’s mother contacted APS on
9
4/17/00 , via teleph one, and express ed an inte rest in re-e nrolling her son in public
school. I n a letter on 4/20/00 , Loren ’s mothe r inform ed AP S that sh e wante d to
enroll her son in public school and that he would “need Special Education
services.” Also in the letter, Loren’s mother requested a meeting with Ms. Battle,
an adm inistrator f or AP S’s spec ial educatio n needs , “to register Loren and beg in to
discuss the accommodations and services that he will need. With the end of the
school year being so near, I feel it is very important that we meet as soon as
possible.” The letter then went on to describe her scheduling constraints for such a
meeting. Specifically, the letter states that, “I will be out of town from April 26 -
May 1, but could meet with you Tuesday, April 25, after 10:30 AM, or after I
return to Atlanta. I do not work on Tuesday afternoons but with enough notice
could m eet you o n anoth er day.”
On 5/9/00, Loren’s parents met informally with APS. Due to the scheduling
constraints of Loren’s parents and Darlene Brooks, Loren’s special education
“advocate,” the parties did not meet again until 5/24/00. At the meeting, the
participan ts review ed Lor en’s case a nd discu ssed the c oncern s of Lo ren’s par ents.
A timetable was set for Loren’s evaluation concerning his eligibility for special
education programs. Loren’s mother also gave her written consent to the
10
evaluations and 6/16/00 was set for a meeting to determine her son’s eligibility for
special education and to develop an IEP.
The next day, an APS speech/language pathologist began assessing Loren
but was not able to complete the assessment because Loren’s father told the APS
speech/language pathologist that he and Loren had to leave. However, APS
comple ted an “O T evalu ation,” an d a learnin g disability teacher co nducted math
and read ing asses sments, w hile an A PS ps ycholog ist was to contact D r. Frey to
discuss her evaluation and diagnosis of Loren.
On 6/16 /00, the parents a nd AP S person nel reconven ed to discuss L oren’s
special education services availability and, if appropriate, to write an IEP. By then,
however, certain evaluations had not been completed and the school system had
not had the opportunity to observe Loren in the classroom. Therefore, the group
formulated an “interim IEP.” During the next 30-60 days, then, classroom
observ ations an d evalua tions w ould be comple ted, after w hich the g roup w ould
reconvene.
Loren’s parents did not sign the interim IEP. Neither, however, did they
reject it. The school added an addendum to the IEP minutes, however,
acknowledging the parents’ contention that APS lacked a program and training for
handling NLD students. Loren’s mother (Ms. Fisher) attests that no personnel
11
qualified to implement what Lo ren needed ever contacted her thro ugh Loren’s first
week o f schoo l.
Loren started school at Southside o n 8/14/00 but left after five days
(8/18/00), never to return. On 8/21/00, Ms. Fisher sent APS a letter rejecting the
IEP an d inform ing AP S that L oren w ould be attending private sc hool. She, in
essence, stated her belief that the school could not meet her son’s needs. This was
the parents’ first formal IEP rejection notice to the APS.
The A PS po ints to evid ence refle cting its attem pts, starting on 8/31 /00, to
contact Ms. Fisher to arrange a meeting to review Loren’s IEP. This and
subseq uent attem pts to con tact her, it claim s, prove d fruitless . Ms. F isher adm its
she received an 8/31/00 APS letter announcing that it would contact her to arrange
an IEP meeting, but denies receiving a follow-up communication from the APS
until it com munica ted with her attorn ey in Ap ril, 2001 .
Ms. Fisher does not contend that she ever attempted to contact APS after
withdrawing Loren from school on 8/18/00. Rather, she explains that she did not
do so because APS’s letter stated that it would contact her. She claims she never
received any communications from the APS after 8/31/00. Thus, factual issues
exist as to precisely what communications, or attempted communications, occurred
after 8/31/00 but before 3/21/01.
12
We do know that after Loren’s parents removed him from the APS,
they formally challenged his IEP and sought tuition reimbursement through an
administrative h earing reque st on 3/21/01 . On 5/23 /01, the AL J ruled in the A PS’s
favor, finding that the parents had failed to provide the APS with sufficient notice
of their rejection of Loren’s IEP (and their intention to private place him), as
required by 20 U.S.C. § 1412(10)(C)(iii)(I), and also failed to provide the APS
with a reasonable chance to accommodate Loren.
Specifically, the ALJ concluded that the fact that Loren’s parents removed
Loren from A PS after only five days meant that Lo ren’s parents “cannot, as a
matter of law, establish that [APS] failed to provide [Loren] with FAPE . . . .”
That is, the fact that Loren’s parents gave the interim IEP only five days meant that
Loren’s parents failed to give the “IEP a chance to succeed, and thus cannot
establish that [APS] failed to provide [Loren] with a FAPE.” According to the
ALJ,
[t]his is par ticularly tru e wher e [Lore n] had n ot been e nrolled in
[APS] for two years, and had never demonstrated previously any need
for special education and related services. Indeed, because of an utter
lack of in formatio n regard ing [Lo ren’s] nee ds and a bilities, the IE P in
question was an interim diagnostic designed to provide [APS] with the
opportunity to observe [Loren] in the classroom and gather baseline
data, and to conduct evaluations, in order to assess the exact nature of
[Loren ’s] disability a nd create approp riate prog rammin g to mee t his
individu al needs. . . . W here [A PS] ha d prom ptly respo nded to
13
[Loren ’s] reques ts and w as taking the appr opriate ste ps to edu cate
[Loren], it cannot be said to have denied him FAPE.
The A LJ also c onclud ed that “it is b eyond d ispute tha t [Loren ’s] parents
never gave [APS] the requisite notice of their rejection of the IEP until after
[Loren ] had bee n withd rawn from sch ool and enrolled in the priv ate schoo l in
Vermont.” That is, Loren’s “mother did not provide [APS] with 10-days’ notice of
her rejection of the IEP and her intent to enroll [Loren] in private school.”
According to the A LJ,
the paren ts refused to respo nd to [A PS’s] en treaties to d iscuss an d, if
appropriate, modify [Loren’s] programming, nor did [Loren’s mother]
contemporaneously request a due process hearing to challenge
[APS’s] offered IEP. Instead, the parents waited idle until almost an
entire school year had passed, and on ly then sought a due process
hearing to claim th e costs of the priva te placem ent.”
On review before the district court, the APS again prevailed. While finding
fault with the ALJ’s determination,6 the district judge nevertheless found for the
APS on a different ground -- that Loren ’s parents had acted unreasonably as a
matter of law. Th is obviate d the nee d to rule o n whe ther the A PS pr ovided him
with a FAPE.
6
The district court expressed diminished deference for the ALJ’s decision because the ALJ
summarily decided the issue, included no findings of fact and basically adopted the APS’s brief
as the ALJ’s decision. In light of the result we reach infra, we need not decide whether the
district court erred in the level of deference it employed.
14
In a later order, the district court rejected the parents’ proffered
supplem ental affid avits as, inter alia, untimely, cumulative, prejudicial to the APS,
and contrary to precedent cautioning against allowing losing parties to undercut the
statutory role of administrative expertise.7 Finally, the district court found that
Loren failed to establish a Section 504 claim, then denied his IDEA-
reconsideration motion.
D. “Unreasonableness”
Insisting that he qualifies for reimbursement, Loren raises a variety of issues
on app eal, includ ing wh ether the d istrict cour t erred by failing to r ecogniz e that his
private-school placement was a remedy for the school’s failure to provide an
adequate IEP, and thus a F APE, and n ot evidence of unreasonab leness.
Rather than decide whether APS provided Loren with a FAP E, the district
court focused on whether his parents acted unreasonably within the meaning of 20
U.S.C. § 1412(a)(10)(C)(iii)(III) (“The cost of reimbursement ... may be reduced or
denied ... upon a judicial finding of unreasonableness with respect to actions taken
by the parents”). The district court found it unreasonable that Loren’s mother
7
The affidavits Loren’s parents sought to admit were presented to the district court more than six
months after the close of discovery and were adequately covered by the parents’ three prior
affidavits. We easily conclude that the district court did not abuse its discretion in excluding the
additional evidence Loren’s parents sought to admit. See K.C., 285 F.3d at 982 (concluding that
the district court did not abuse its discretion in denying motion to supplement record in IDEA
case where the motion came more than one year after the close of discovery).
15
filled out an application to Pine Ridge before she contacted APS about enrolling
Loren in public school. The district court relied on the fact that Loren’s mother
indicated on the Pine Ridge enrollment form that she would be seeking funding
from the public school system.
Yet, the district court also “assum[ed] good faith on the part of the p arents”
before f inding “u nreason able their a pparen t unwillin gness to comm unicate w ith
APS regardin g their co ncerns a bout his IEP an d their dif ferences of opin ion with
APS about its im plemen tation.” It fu rther fou nd that “[i]t w as also un reasona ble
for the parents to have acted on the unrealistic expectation that the interim IEP
could have been perfectly impleme nted and suited Loren’s needs w ithin the first
five days of the school year, prior to the APS’s completion of its evaluations.” At
the same time, the judge did not reach the IDEA’s formal-rejection notice
requirement, 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(aa)-(bb).
The rec ord sup ports L oren’s co ntention that in som e ways h is parents did
communicate their “IEP dissatisfaction” with the APS. But there is a difference
betwee n voicin g gener al dissatisfa ction and formally rejecting a n IEP . And it is
arguab le that Co ngress s ought to compe l a definitiv e rejection (as opp osed to
vague griping) by enacting § 1412(a)(10)(C)(iii)(I)(aa)-(bb) – a subsection the
16
district court did not expressly apply. That provision specifies that reimbursement
may be r educed or denie d if
(aa) at the m ost recen t IEP m eeting tha t the paren ts attended prior to
removal of the child from the public school, the parents did not inform
the IEP Team that they were rejecting the placement proposed by the
public ag ency to provide a free app ropriate p ublic edu cation to th eir
child, including stating their concerns and their inten t to enroll th eir
child in a p rivate sch ool at pu blic expe nse; or
(bb) 10 business days (including any holidays that occur on a business
day) prior to the removal of the child from the public school, the
parents did not give written notice to the public agency of the
inform ation des cribed in division (aa).
20 U.S .C. § 14 12(a)(1 0)(C)( iii)(I)(aa)- (bb) (em phasis ad ded); 34 C.F.R . §
300.403(d)(1).
The ALJ applied this provision, but the district court did not, instead
focusing only on the parents’ general unreasonableness. We do not pass on the
ALJ’s approach because, as we further explain below, the district court did not and,
in any ev ent, furth er factfind ing by th e district co urt is need ed on it.
But we do reject the district court’s conclusion of “unreaso nableness” as a
matter of law because, on the present record there is a significant disputed factual
issue of whether Loren parents were gaming the system to extract free tuition for
private sc hool, or simply h edging their bets w hen face d with a demon strably
17
under-resourced public school system (one that, as it turns out, generated only an
“interim” IEP by the start of Loren’s school year).8
While in some ca ses the fac ts may be so clear as to wha t occurre d as to
allow a district court to determine the sequence and meaning of events on summary
judgmen t in IDEA cases, this record c ontains dispu ted events abo ut both A PS’s
and the parents’ conduct and the intent of the parties. In this case, the district court
needs to ma ke specific factfind ings as to: (1) the parents’ cond uct; (2) AP S’s
conduct; (3) when the parties did or did not do certain things; and, more
importantly, (4) the parties’ intent when they did what they did or did not do.
We further note that, as part of its “unreasonableness” conclusion, the
district cou rt seemed to find d eficient no tification b y Loren ’s parents . See R. 63 at
15-16 (“the cou rt finds u nreason able their a pparen t unwillin gness to comm unicate
with APS regarding their concerns about his IEP and their differences of opinion
with APS about its implementation”). And failing to provide formal notice under
§ 1412(a)(10)(C)(iii)(I) may be a form of “unwillingness to communicate.”
8
We do not suggest that the actions identified by the district court are, as a matter of law,
reasonable. Rather, the district court, after a bench trial, could find these actions unreasonable as
a matter of fact. However, in the particular factual circumstances in this case, we cannot
conclude that they are unreasonable as a matter of law, even under the standard applicable to
IDEA cases.
18
Further, failing to provide the formal 10-day notice may also be an independent
ground for denying the claim here.
But in a follow-up order, the district court denied that it based its ruling on
Loren ’s failure to comply with 20 U.S.C . § 1412 (a)(10) (C)(iii)(I ), appare ntly to
avoid having to reach Loren’s argument on the “potential harm exception” to that
statutory p rovision . See 20 U.S.C. § 1412(a)(10)(C)(iv)(II).9 It later reached the §
1412(a)(10)(C)(iii)(I)(bb) issue and construed the term “removal,” but then
expressly disavowed reliance on this result to support its ruling.
The bottom line is that the district court based it decision on the sole ground
that Loren’s parents acted unreasonably as a matter of law, but as to that issue, we
conclude that a bench trial is needed for the reasons outlined above. While we
understand and do not criticize the district court’s efforts to dispose of the case on
a single, narrow ground, we direct the district court on remand to conduct a bench
trial on the entire IDEA case and to make findings of fact and conclusions of law
on each of the issues in this case, including, but not limited to: (1) whether Loren
was provided a F APE; (2) w hether the APS co mplied with the IDE A’s procedures;
(3) whether the IEP developed through those procedures was reasonably calculated
9
The safe harbor provision of the IDEA states that “[n]otwithstanding the notice requirement in
clause (iii)(I), the cost of reimbursement may not be reduced or denied for failure to provide
such notice if . . . compliance with clause (iii)(I) would likely result in physical or serious
emotional harm to the child.” 20 U.S.C. § 1412(a)(10)(C)(iv)(II).
19
to enable Loren to receive educational benefits; (4) if Loren was not provided an
appropriate FAPE or IEP, whether Loren’s parents contributed to, and to what
extent, the failure to provide Loren with an appropriate FAPE or IEP by either
being unavailable themselves or in not making Loren more available to APS;10 (5)
did Loren’s parents act unreasonably under 20 U.S.C. § 1412(a)(10)(C)(iii)(III);
(6) wh en was Loren “remov ed,” for th e purpo ses of 20 U.S.C . §
1412(a)(10)(C)(iii)(I), from public school under the IDEA -- that is was Loren
removed from APS w hen he stopped attending APS on 8/18/00, when his mother
sent a for mal rejectio n of the I EP on 8/21/00 , when Loren actually en rolled in
private school, or on some other date;11 (7) whether the parents complied with the
10
The fact that Loren’s parents may have frustrated the development of an appropriate IEP and,
thereby, diminished APS’s ability to provide Loren with a FAPE has two potential impacts.
First, as noted above, parental involvement in the handicapped child’s education is the purpose
of many of the IDEA’s procedural requirements. See, e.g., Weber, 212 F.3d at 51; Doe v. Ala.
Dept. of Educ., 915 F.2d at 661; see also Rowley, 458 U.S. at 205-06. If Loren’s parents
significantly hindered or frustrated the development of an IEP, the district court may be justified
in denying equitable relief on that ground alone.
However, the parents’ actions are also relevant with respect to an unreasonableness
determination under § 1412(a)(10)(C)(iii)(III). For example, on remand the district court may
consider whether Loren’s parents were unreasonable when waiting until April, 2000 to trigger
APS’s involvement after Loren’s learning disability was diagnosed in January, delaying
development over the summer, or making him unavailable for requested evaluations after his
transfer to private school (thus affirmatively impeding IEP-generation).
11
We do not pass on, but merely note the following legal source on this issue: 3 AMERICANS
WITH DISABILITIES: PRACTICE & COMPLIANCE MANUAL § 11:130 (Aug. 2003) (“‘Removal,’ for
purposes of prior notice requirements of Individuals With Disabilities Education Act (IDEA),
refers to the actual physical removal of the child from public school; if removal occurs during
the school year, the ten business days count back from the date of the intended actual physical
removal, and if decision to enroll in private school occurs during a summer recess, the ten
20
notice requirement in 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(aa)-(bb); and (8) whether
the safe h arbor p rovision in § 141 2(a)(10 )(C)(iv )(II) is ap plicable to this case.
Given the complexity of the issues, and in an effort to avoid piecemeal appeals, we
direct the district court to address all issues and make alternative rulings.
E. Reh abilitat ion A ct Claim
Loren next con tends tha t the district c ourt erre d in rejectin g his
Rehabilitation Act claim. More specifically, it erred in using the IDEA to strike
some of his evidence and in using the IDEA’s “unreasonableness” test in denying
his § 504 claim.
Becaus e the distric t court see med to b ase its Reh abilitation A ct claim
decision on its rejec tion of th e IDE A claim , and the r ecord d oes not e nable us to
determine whether that court believed there were alternative reasons to deny § 504
relief, we vacate that ruling, too, for reconsideration on remand.
We note, however, that the nature of the Rehabilitation Act claim figures
into wh ether Lo ren hold s a jury trial r ight on th is claim. See Waldrop v. S. Co.
Serv., 24 F.3d 152, 157 (11th Cir. 1994) (“[W]e refrain from saying that a jury trial
is constitutionally required in every § 504 action”; jury trial rights often ride on
business days mark from the beginning of the public school year or sooner if the child is
physically placed in private school. Individuals with Disabilities Education Act, §
612(a)(10)(C)(iii), 20 U.S.C.A. § 1412(a)(10)(C)(iii). Sarah M. v. Weast, 111 F.Supp.2d 695
(D.Md.S.Div., 2000)”).
21
money damage claims, but not all awards of monetary damages constitute legal
relief); Whitehead, 915 F .Supp . at 1523 .
We leave it to the district court to decide these procedural issues, including
whether a hybrid jury trial (jury on some issues, bench on others) or sequential
factfindin g (IDE A ben ch trial first, R ehabilitatio n Act ju ry trial seco nd) is
warran ted. See F. R. Civ. P. 39(c); 47 A M. JUR. 2 D Jury § 36 (“Order of Trial”)
(May 2003) (“In actions inv olving both jury and non jury claims, the court must use
its discretio n to deter mine w hich claim is to be tried first”); Southland Reship, Inc.
v. Flegel, 534 F .2d 639 , 644 (5 th Cir. 19 76) (“[W ]here dete rminatio n of equ itable
issues would be conclusive as to the legal issues, the legal issues must be tried first
in order to prevent abrogation of the right to a jury trial.”).
III. CONCLUSION
The judgment of the d istrict court therefore is VACATED AND
REMANDED for further proceedings.
VACATED AND REM ANDED.
22
Loren F. Ex Rel. Fisher v. Atlanta Independent School System
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2003-11-07
Citations: 349 F.3d 1309
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