[ PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 6, 2008
No. 07-11777 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-00487-CV-MHS-1
JARRON DRAPER,
Plaintiff-Appellee,
versus
ATLANTA INDEPENDENT SCHOOL SYSTEM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 6, 2008)
Before HULL and PRYOR, Circuit Judges, and MOORE *, District Judge.
*
Honorable K. Michael Moore, United States District Judge for the Southern
District of Florida, sitting by designation.
PRYOR, Circuit Judge:
The issue in this appeal is whether the district court abused its discretion
when it awarded a student who is disabled placement in a private school as
compensation for violations of the Individuals with Disabilities Education Act. 20
U.S.C. §§ 1400–1482. Jarron Draper entered the Atlanta Independent School
System as a student in the second grade. After years of conflict with the School
System, Draper’s family requested and received an administrative hearing about
his education. By then, Draper was 18 years old and in the eleventh grade, but he
could read at only a third-grade level. The administrative law judge entered
extensive findings and awarded Draper relief, and the district court, after both
parties sought review, adopted the findings and increased the award. Draper is
now 21 years old. The School System concedes that it violated some of Draper’s
rights and, in one year, provided him a deficient educational program, but the
School System argues that other violations are either barred by the statute of
limitations or not supported by the record. The School System also contends that
Draper must be educated in a public school and that Draper’s award is
disproportionate to the violations of his rights. This appeal reminds us of words
written by the late Judge John Minor Wisdom about a denial of educational
opportunity in a different era: “A man should be able to find an education by
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taking the broad highway. He should not have to take by-roads through the woods
and follow winding trails through sharp thickets, in constant tension because of the
pitfalls and traps, and, after years of effort, perhaps attain the threshold of his goal
when he is past caring about it.” Meredith v. Fair, 298 F.2d 696, 703 (5th Cir.
1962). Because the district court did not abuse its broad discretion to fashion
appropriate relief under the Act, we affirm.
I. BACKGROUND
Before we address the merits of the arguments of the School System, we
review three matters. First, we provide a brief overview of the Act to place the
factual record in context. Next, we review the factual record about the education
of Draper by the School System. Finally, we review the decisions of both the
district court and the administrative law judge.
A. The Individuals with Disabilities Education Act
The Act provides federal assistance to states that provide a free and
appropriate education to children with disabilities. 20 U.S.C. § 1412(a)(1)(A).
States are required to identify children in need of special education services. Id. §
1412(a)(3)(A). After a child is identified as disabled, the state must develop,
review, and revise an “individualized education program” that meets the
requirements of the Act. Id. § 1412(a)(4). A team that includes, at a minimum, the
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parents of the child, one regular-education teacher of the child, one special-
education teacher of the child, and a representative of the local educational agency
develops the educational program. Id. § 1414(d)(1)(B), (d)(3)(A). The program
must comply with the procedures of the Act and be “reasonably calculated to
enable the child to receive educational benefits.” JSK ex. rel. JSK v. Hendry
County Sch. Bd., 941 F.2d 1563, 1571 (11th Cir. 1991) (citing Bd. of Educ. of
Hendrick Hudson Cent. Sch. Dist., Westchester County v. Rowley, 458 U.S. 176,
206–07, 102 S. Ct. 3034, 3051 (1982)).
If the parents either disagree with the educational program or believe that the
child has been denied rights under the Act, they are entitled to a hearing
“conducted by the State educational agency or by the local educational agency” as
determined by state law. 20 U.S.C. § 1415(f)(1)(A). Georgia law provides that the
hearings are to be conducted by the Office of State Administrative Hearings. Ga.
Code Ann. § 50-13-41(a)(1). If either party is aggrieved by the decision of the
state educational agency, the party can file a civil action “in a district court of the
United States.” 20 U.S.C. § 1415(i)(2)(A).
The Act directs the district court to base its decision on a preponderance of
the evidence and to “grant such relief as the court determines is appropriate.” 20
U.S.C. § 1415(i)(2)(C)(iii). “This Circuit has held compensatory education
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appropriate relief where responsible authorities have failed to provide a
handicapped student with an appropriate education as required by [the Act].” Todd
D. ex rel. Robert D. v. Andrews, 933 F.2d 1576, 1584 (11th Cir. 1991) (citing
Jefferson County Bd. of Educ. v. Breen, 853 F.2d 853, 857 (11th Cir. 1988)).
Compensatory education provides services “prospectively to compensate for a past
deficient program.” G ex. rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295,
308 (4th Cir. 2003).
B. Factual Background
Draper entered the School System as a seven-year-old child in the second
grade in 1994. He could not read, was writing at a kindergarten level, and did not
know the sounds of the alphabet. Draper’s teachers recommended that Draper be
tested to determine the cause of his academic struggles in February 1995,
November 1996, February 1997, and October 1997.
The School System performed an evaluation of Draper on June 1, 1998, and
concluded that he had an intelligence quotient of 63. This evaluation was flawed
because it failed to assess Draper for a specific learning disability even though he
displayed signs of dyslexia, such as writing letters, numbers, and words backwards.
Draper was 11 years old.
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On January 25, 1999, Draper was placed in the most restrictive educational
environment available, a self-contained classroom for children with mild
intellectual disabilities. The restrictive classroom provided Draper with a
functional curriculum that would not lead to a regular high school diploma.
Draper’s team met on April 19, 2000, and determined that he was reading at a
third-grade level and spelling at a first-grade level. Draper was 13 years old.
Draper remained in the restrictive classroom through the school year of 2002–03.
His placement in the restrictive classroom between 1999 and 2003 was based on
the 1998 evaluation.
Draper was not reevaluated until April 2003, when he was in the ninth grade
and 16 years old. Under the Act, Draper should have been reevaluated by June
2001. 20 U.S.C. § 1414(a)(2)(B)(ii). After completing the evaluation, the school
psychologist recommended further testing because discrepancies in subtest scores
suggested that the evaluation did not accurately reflect Draper’s intellectual
potential.
The School System reevaluated Draper in July 2003. This evaluation
revealed that Draper did not have mild intellectual disabilities but had a specific
learning disability. The evaluation established that a full-scale intelligence
quotient of 82, which is in the low-average range of intelligence, more accurately
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reflected Draper’s intelligence. The evaluation also established that Draper was
still reading at a third-grade level, performing at a third-grade level in arithmetic,
and performing at a second-grade level in spelling. His reading level had not
improved since April 2000.
Draper’s team met several times throughout the summer and fall to modify
his educational program. Draper’s family made it clear to the School System that
Draper wanted to receive a regular high school diploma so that he could go to
college. On August 3, 2003, Draper’s family requested private schooling and one-
on-one tutoring to help Draper close the achievement gap in his studies. No action
was taken on these requests.
On September 9, 2003, the School System modified Draper’s diagnosis from
mild intellectual disabilities to specific learning disability. Draper’s team
recommended only 1.5 hours of speech tutoring a week. On October 7, 2003,
Draper’s team amended the educational program to provide Draper with 19.5 hours
of general education and 10.5 hours of special education a week. The School
System placed Draper in regular-education classes for the first time since third
grade even though a witness for the School System testified that a fifth-grade or
sixth-grade reading level is required to survive academically in high school.
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Draper’s educational program provided that he would use the Lexia
program, an instructional computer program, to improve his ability to read, but
Draper was not provided the Lexia program. On November 17, 2003, the School
System agreed, after mediation, to provide Draper with the Lexia program by no
later than November 21, 2003. Despite the agreement, the School System did not
implement the Lexia program until December 9, 2003, and, by January 12, 2004,
Draper had received only 2.5 hours of instruction with the Lexia program.
On May 24, 2004, Draper was privately evaluated by the Lindamood-Bell
reading program. The Lindamood-Bell Center recommended that Draper receive
intensive sensory-cognitive training at a rate of 6 hours daily for a total of 360
hours. On May 26, 2004, although the School System was aware that Draper was
still reading at a third grade level, Draper’s team decided that he would use the
Lexia program for the summer. Draper’s family requested private reading services
but were informed that they would have to file a formal complaint to pursue the
matter.
During the summer of 2004, the School System referred Draper to Dr. Judy
Wolman for an independent psychological evaluation. The evaluation established
that Draper’s skills in several areas were severely discrepant from his potential.
Dr. Wolman concluded that Draper suffered from a specific learning disability
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consistent with dyslexia and recommended “intensive multi-sensory training” to
remedy his academic deficits. Despite Draper’s family’s objections that the Lexia
program was inadequate to address Draper’s needs, Draper’s team decided on
November 18, 2004, to continue the use of the Lexia program. When Draper’s
team met again on May 12, 2005, Draper had failed his language-arts class and was
failing the second semester of algebra.
On September 10, 2004, the Georgia Department of Education
acknowledged that Draper’s grades had not improved. The Department informed
Draper’s family that they could request a hearing if they were not satisfied with
Draper’s educational program. The hearing was conducted by the administrative
law judge in November 2005. By then, Draper was 18 years old and in the
eleventh grade.
C. Procedural History
The administrative law judge held a hearing for three days regarding
Draper’s education. The School System retained an expert, Dr. Barry Bogan, who
had never met or spoken with Draper. Cross-examination established that Bogan’s
assumptions regarding Draper’s diagnosis, age, and educational level were
incorrect. Bogan was unaware that Draper had been diagnosed as having a specific
learning disability. Bogan testified that Draper was 16 or 17 years old when in fact
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Draper was almost 19 years old. Bogan was of the opinion, based on his review of
a single test, that Draper was reading at a sixth-grade or eighth-grade level instead
of a third-grade level. Bogan opined that the School System had provided Draper
an adequate education.
Draper called several experts to testify on his behalf. Both Dr. Wolman and
Camilla Fletcher had spent extensive time with Draper. Wolman testified that
Draper did not have the necessary skills to benefit from the Lexia program, and
Fletcher testified that the use of the Lexia program for 30 minutes a day was
insufficient to remedy Draper’s achievement gap. After Dr. Edward Dragan spoke
with Draper and reviewed his educational file, Dragan testified that the School
System should have discovered that it had misdiagnosed Draper as mildly
intellectually disabled much earlier than 2003. Dragan expressed serious doubt
that the School System could or would provide Draper the appropriate services to
remedy his educational deficits. Wolman and Fletcher both expressed concern
about the ability of an expert to evaluate a student’s education if the expert had
never spoken with the student and was unfamiliar with the student’s diagnosis.
Draper testified that the School System did not provide him with Lexia
instruction 30 minutes a day for five days a week as the School System had
alleged. Draper stated that his tutor, a football coach, spent much of the sessions
10
surfing websites about football on the internet. Draper testified that his science
class consisted of coloring and his math class of crossword puzzles. The
administrative law judge concluded that Draper was “very articulate” and a “very
impressive witness.”
The administrative law judge found that the School System failed to provide
Draper an adequate education for the school years of 2002–03, 2003–04, and
2004–05. The administrative law judge found that, after the School System
misdiagnosed Draper in 1998, the School System failed to reevaluate him, in
violation of the Act. The administrative law judge concluded that the use of an
educational program that did not increase Draper’s reading ability after three years
failed to satisfy the Act.
The administrative law judge awarded Draper a choice of two remedial
options. The first option provided Draper with substantial additional support
services in the School System. The School System would have been required to
provide Draper with intensive multi-sensory reading services for 60 minutes a day,
five days a week; train all of Draper’s teachers in dyslexia instructional strategies;
provide Draper with a one-on-one, certified, special-education teacher to support
him in all his classes; provide one hour a day of tutorial services; provide services
during the summer; and, during the first year, evaluate Draper’s progress monthly.
11
The second option allowed Draper to be placed in a private school and required the
School System to pay his tuition, not to exceed $15,000 a year. These services
were available until June 2009 or when Draper received a high school diploma,
whichever came first.
Both parties sought review by the district court. 20 U.S.C. § 1415(i)(2)(A).
Draper contended that the administrative law judge provided inadequate
compensatory services to remedy the violations of the Act by the School System,
and the School System argued that it had not violated the Act. The School System
argued that the administrative law judge had disregarded the statute of limitations,
made erroneous findings of fact, failed to use the proper standard under the Act,
and created a remedy “unauthorized by the law or the evidence.”
While the dispute was pending in the district court, Draper selected the
second option, the placement in a private school, and requested placement at the
Cottage School, but Draper reserved his right to argue that the second option was
inadequate. The School System moved to stay the enforcement of the order of the
administrative law judge so that the School System would not have to pay for
Draper’s placement in a private school while the district court reviewed the
dispute. The district court denied the motion to stay the enforcement of the award
12
and ruled that Draper’s selection of the second option was enforceable while the
dispute was pending in the district court.
In its final order, the district court ruled for Draper in part and for the School
System in part. The district court concluded that the statute of limitations
permitted an award for Draper’s placement in the restrictive classroom in 1999 but
limited compensation for the failure by the School System to reevaluate Draper for
the period between November 2002 and April 2003. The district court agreed with
the administrative law judge that the School System failed to provide Draper an
adequate education for the school years of 2002–03, 2003–04, and 2004–05. As
Draper requested, the district court modified the second option in the award by the
administrative law judge. The district court awarded Draper full services at the
Cottage School without the $15,000 cap and extended the time frame of the
remedy to 2011 or when Draper receives a high school diploma, whichever comes
first. The district court found that “there is ample evidence in the record of the
types of services [Draper] will require to appropriately educate him within the
meaning of the [Act].” The district court concluded that the Cottage School could
address Draper’s educational needs and was the “appropriate” placement.
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II. STANDARDS OF REVIEW
A few standards govern our review of this appeal. Whether an educational
program provided an adequate education under the Act “is a mixed question of law
and fact subject to de novo review.” CP v. Leon County Sch. Bd. Fla., 483 F.3d
1151, 1155 (11th Cir. 2007) (citing Sch. Bd. v. K.C., 285 F.3d 977, 982–83 (11th
Cir. 2002)). “Specific findings of fact are reviewed for clear error.” Id. (citing
K.C., 285 F.3d at 983). “To the extent that this issue involves the interpretation of
a federal statute, it is a question of law which we review de novo.” Id. (citing
Walker County Sch. Dist. v. Bennett ex rel. Bennett, 203 F.3d 1293, 1295 (11th
Cir. 2000)). We review awards under section 1415(i)(2)(B)(iii) of the Act for
abuse of discretion. See Bd. of Educ. v. L.M., 478 F.3d 307, 316 (6th Cir. 2007).
If the district court finds a violation of the Act, it “shall grant such relief as the
court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii). The Act grants
“broad discretion” to the district court. Sch. Comm. of Burlington v. Dep’t of
Educ., 471 U.S. 359, 369, 105 S. Ct. 1996, 2002 (1985).
III. DISCUSSION
We evaluate the argument of the School System in two parts. First, we
consider whether the district court abused its discretion in the light of the decision
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of the administrative law judge. Second, we consider whether Draper’s award is
disproportionate to the violations of the Act by the School System.
A. The District Court Did Not Abuse its Discretion in the Light of the Decision of
the Administrative Law Judge.
The School System argues that, even if Draper was entitled to an award, the
district court abused its discretion in two ways. First, the School System argues
that, because the award by the administrative law judge provided Draper a
placement in a public school as one option for compensation, the district court
could not award Draper a placement in a private school. Second, the School
System contends that Draper’s award is contrary to the Act because the
administrative law judge granted Draper a unilateral choice regarding his
education. These arguments fail.
1. The Provision of a Public School Option by an Administrative Law Judge Does
Not Preclude an Award of Placement in a Private School by a District Court.
The School System argues that Draper’s award violates the Act as a matter
of law because it allows a placement in a private school when the administrative
law judge provided the option of a placement in a public school. The School
System reads the provision of a public school option by the administrative law
judge as a finding that the School System is able to educate Draper adequately.
Although we doubt that the decision of the administrative law judge evinced any
15
confidence in the ability of the School System to compensate for its failed attempt
to educate Draper, we will assume, for the purpose of this discussion, that the
administrative law judge found that the School System could prospectively provide
an appropriate educational program for Draper. Even with that assumption, the
argument of the School System fails.
The district court was free to fashion appropriate relief for Draper regardless
of the options offered in the discussion of the administrative law judge. The Act
requires “appropriate” relief, and “the only possible interpretation is that the relief
is to be ‘appropriate’ in light of the purpose of the Act.” Burlington, 471 U.S. at
369, 105 S. Ct. at 2002. “‘[E]quitable considerations are relevant in fashioning
relief,’ Burlington, 471 U.S., at 374, 105 S. Ct., at 2005, and the court enjoys
‘broad discretion’ in so doing, id., at 369, 105 S. Ct., at 2002.” Florence County
Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16, 114 S. Ct. 361, 366 (1993).
“This Circuit has held compensatory education appropriate relief where
responsible authorities have failed to provide a handicapped student with an
appropriate education as required by [the Act].” Andrews, 933 F.2d at 1584 (citing
Breen, 853 F.2d at 857).
The district court did not find that the School System could afford Draper
appropriate relief. The district court, unlike the administrative law judge, did not
16
award Draper a placement in a public school as one option for compensation. The
district court awarded Draper placement in a private school.
The School System argues that a purpose of the Act, which is to make public
schools the preferred setting, precludes Draper’s award of placement in a private
school, but we disagree. The Supreme Court has explained, “[T]he Act
contemplates that such education will be provided where possible in regular public
schools . . . , but the Act also provides for placement in private schools at public
expense where this is not possible.” Burlington, 471 U.S. at 369, 105 S. Ct. at
2002–03. We have recognized that the Act “reflects a structural preference in
favor of providing special education in public schools,” but we have explained that
when a public school fails to provide an adequate education in a timely manner a
placement in a private school may be appropriate. Loren F. ex rel. Fisher v.
Atlanta Indep. Sch. Sys., 349 F.3d 1309, 1312 (11th Cir. 2003).
A prospective injunction that requires a placement in a private school is
appropriate “beyond cavil” when an educational program “calling for placement in
a public school [is] inappropriate.” Burlington, 471 U.S. at 370, 105 S. Ct. at
2002. “[A] disabled student is not required to demonstrate that he cannot be
educated in a public setting. Under [the Act], the relevant question is not whether
a student could in theory receive an appropriate education in a public setting but
17
whether he will receive such an education.” Ridgewood Bd. of Educ. v. N.E. ex
rel. M.E., 172 F.3d 238, 248–49 (3d Cir. 1999).
It is well settled that an award of reimbursement for the expenses of a private
school is allowed under the Act when the private placement is appropriate for the
student and an educational program at a public school has been inadequate.
Burlington, 471 U.S. at 370, 105 S. Ct. at 2002–03. In Burlington, the student’s
father unilaterally removed the student from the public school and placed the
student in a private school because the father believed that the educational program
offered by the public school was inadequate. Id. at 362, 105 S. Ct. at 1999. The
Supreme Court held that a prospective injunction providing placement in a private
school would be appropriate, as would reimbursement for those expenses. Id. at
370, 105 S. Ct. at 2003. The Court reasoned that, because of the inevitable elapse
of time during the litigation, a determination that a public school system violated
the Act would be an “empty victory” if reimbursement for the expenses of a private
education were unavailable. Id. Similarly, in Florence County, after the local and
state agencies rejected the parents’ complaints about an educational program, the
parents unilaterally placed the student in a private school. 510 U.S. at 10, 114 S.
Ct. at 363–64. The Supreme Court affirmed the award of reimbursement because
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the educational program offered by the public school was inadequate and the
placement in a private school was appropriate. Id. at 12–15, 114 S. Ct. at 364–66.
The School System argues that Draper’s award is different from an award of
reimbursement, but reading “appropriate” as requiring prospective placement in a
public school, as the School System argues, would create an anomaly in the law. If
Draper’s family had unilaterally placed him in the Cottage School, then an award
of reimbursement would be appropriate under the Act. See Burlington, 471 U.S. at
370, 105 S. Ct. at 2003. The district court found that the School System had failed
to provide Draper an adequate educational program, and the district court
concluded that the Cottage School offered an appropriate placement. If the district
court could not prospectively award Draper a placement in a private school, Draper
would be worse off with an award of prospective education than he would be with
a retroactive award of reimbursement for the same violations of the Act. The
Supreme Court has recognized that “conscientious parents who have adequate
means” will place their child in private school if they are “reasonably confident of
their assessment” that an educational program at a public school is inadequate. Id.
at 370, 105 S. Ct. at 2003. The argument of the School System would provide
those wealthier parents greater benefits under the Act than poorer parents.
19
We do not read the Act as requiring compensatory awards of prospective
education to be inferior to awards of reimbursement. The Act does not relegate
families who lack the resources to place their children unilaterally in private
schools to shouldering the burden of proving that the public school cannot
adequately educate their child before those parents can obtain a placement in a
private school. The Act instead empowers the district court to use broad discretion
to fashion appropriate equitable relief.
The argument of the School System is wrong. Although it ordinarily has a
structural preference for special education in public schools, the Act does not
foreclose a compensatory award of placement in a private school. The district
court was free to award Draper a placement in a private school without regard to
the remedy fashioned by the administrative law judge, and Draper was not required
to prove that the School System was incapable of providing him an appropriate
education.
2. The Provision of Two Options for Draper by the Administrative Law Judge
Does Not Affect the Validity of the Award by the District Court.
The School System also contends that Draper’s award violates the Act
because the administrative law judge provided Draper a unilateral choice between
two options. The School System argues that Draper’s award is inconsistent with
“the cooperative process that [the Act] establishes between parents and schools.”
20
Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53, 126 S. Ct. 528, 532 (2005).
We disagree.
The argument of the School System is based on the erroneous premise that
the district court, like the administrative law judge, awarded Draper two options for
compensation when, in fact, the district court awarded Draper placement in only a
private school. Whatever two options the administrative law judge awarded
Draper is beside the point. We review the decision of the district court, and that
decision awarded Draper his preferred form of compensation.
The School System contends that the district court left the provision of two
options in Draper’s award intact, but we read the record differently. Before the
district court modified and supplemented Draper’s award, Draper selected the
second option in that award, which was placement in a private school. The School
System moved to stay the enforcement of the award so that it would not have to
pay for Draper’s placement in a private school, but the district court denied that
motion. The district court ruled that Draper’s selection of the second option was
enforceable. When the district court, in its final order, granted Draper’s request to
increase his award, the first option was no longer viable. Draper had already
rejected that option.
21
In its final order, the district court awarded relief to supplement the option
that Draper had already selected. The district court unequivocally found that the
second option, with the supplements sought by Draper, would provide the
appropriate relief under the Act: “In exercising its discretion to grant such relief as
the Court deems appropriate, the Court finds that [Draper] is entitled to the full
services at The Cottage School including the supplemental services as outlined by
Dr. Digieso in her affidavit. [The School System] shall pay for these services in
full at a total cost of $34,150.00 a year.” The district court did not leave the first
option intact as the School System contends.
Even if we assume that the district court left the first option intact, the
argument of the School System still fails. Parents have a right, under the Act, to
make some unilateral decisions concerning their child’s education after a school
system has violated the Act. In Florence County, the Supreme Court, for example,
reaffirmed the parental “right of unilateral withdrawal recognized in Burlington.”
Florence County, 510 U.S. at 13, 114 S. Ct. at 365. The cooperative process
established by the Act between parents and schools does not bar district courts
from providing parents appropriate relief that includes a unilateral choice regarding
their child’s education.
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B. The District Court Did Not Abuse Its Discretion and Enter a Disproportionate
Remedy.
The School System argues that the district court abused its discretion in
three ways: (1) the district court erroneously based its decision on Draper’s
misdiagnosis and placement in the restrictive classroom in 1998; (2) the award was
a disproportionate remedy for the violations of the Act by the School System; and
(3) the award constituted impermissible punitive damages. The first two
arguments implicate findings of fact by the district court, which we review for
clear error. We reject the arguments of the School System.
1. The District Court Did Not Abuse Its Discretion When It Considered Draper’s
Misdiagnosis in 1998 and His Placement in the Restrictive Classroom Between
1999 and 2003.
The School System presents two arguments about Draper’s misdiagnosis.
The School System contends that Draper was not misdiagnosed in 1998 but that, if
he was misdiagnosed, Draper’s complaint about his placement in the restrictive
classroom between 1999 and 2003 is barred by the statute of limitations. We
disagree on both points.
The School System contends that “there is no undisputed record evidence”
of Draper’s misdiagnosis, but that is not the issue. What matters is that there is
substantial evidence to support the finding of the administrative law judge that
23
Draper was misdiagnosed in 1998, and the acceptance of this factual finding by the
district court was not clearly erroneous.
The administrative law judge relied on substantial evidence that the
evaluation of Draper in 1998 was far from the comprehensive evaluation that was
supposed to be administered. The administrative law judge found as follows that
the limited evaluation failed to measure key aspects of Draper’s abilities:
Given that [Draper] had been observed writing words, letters, and
numbers backwards, a classic symptom of dyslexia, and that he
performed much better on verbal tasks, the evaluation performed in
June 1998 was spectacularly deficient. The evaluation did not
measure [Draper’s] phonological processing levels (which are
essential to reading) nor did the evaluator review [Draper’s] receptive
and expressive levels. Based on the limited evaluation performed,
which essentially included an I.Q. test, the school psychologist
concluded that [Draper] had a full scale I.Q. of 63.
The persistent refusal of the School System to acknowledge the substantial
evidence of its misdiagnosis borders on incredible.
The district court also did not err in finding that the misplacement of Draper
in the restrictive classroom between 1999 and 2002 is not barred by the statute of
limitations. The Act requires parents to request a due process hearing “within 2
years of the date the parent . . . knew or should have known about the alleged
action that forms the basis of the complaint.” 20 U.S.C. § 1415(f)(3)(C). Draper
filed his complaint in November 2004. The district court found that Draper’s
24
family did not have the facts necessary to know that Draper had been injured by his
misdiagnosis and misplacement until they received the results of his evaluation in
2003.
The argument of the School System rests on the dubious proposition that
Draper’s family should have known that Draper had been misdiagnosed and
misplaced even before the School System informed Draper’s family that it had
reached that conclusion. The School System argues, for example, that because the
administrative law judge found it “incredulous” that anyone would consider Draper
mentally retarded in 2003, Draper’s family should have been “intimately aware of
the particular nature—if not the precise medical classification—of his disability.”
The School System contends that the district court clearly erred because Draper’s
family should have known something that the trained professionals of the School
System did not admit they knew.
This argument fails. Substantial evidence supports the finding that, until
2003, Draper’s family did not know enough to realize that Draper had been injured
by his misdiagnosis and misplacement by the School System. We decline the
invitation of the School System to conclude, as a matter of law, that Draper’s
family should be blamed for not being experts about learning disabilities. The
observation by the administrative law judge was a statement about an obvious
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failure by the School System, not a statement about a misdiagnosis by Draper’s
family. The district court did not clearly err by adopting the finding that Draper’s
family did not have reason to know of Draper’s injury until 2003.
2. Draper’s Award Is Not Disproportionate to the Violation by the School System.
The School System contends that Draper’s award is disproportionate to the
violations by the School System. The School System does not contest that it failed
to provide Draper an adequate education for the school year of 2002–03, but
instead challenges the findings of the administrative law judge and the district
court that the School System failed to provide Draper an adequate education in the
school years of 2003–04 and 2004–05. The School System contends that it
provided Draper with an adequate program in reading in those years.
In our review of Draper’s award, we are mindful that an award of
compensation for a violation of the Act is different from the educational program
ordinarily required by the Act. An educational program must be “reasonably
calculated to enable the child to receive educational benefits.” JSK, 941 F.2d at
1571 (quoting Rowley, 458 U.S. at 206–07, 102 S. Ct. at 3051). “[W]hen
measuring whether a handicapped child has received [adequate] educational
benefits . . . courts must only determine whether the child has received the basic
floor of opportunity.” Id. at 1572–73 (citing Andrews, 933 F.2d at 1580). If there
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has been a violation, the district court may award “appropriate” compensatory
relief. 20 U.S.C. § 1415(i)(2)(C)(iii); Andrews, 933 F.2d at 1584. Although
“ordinary [educational programs] need only provide ‘some benefit,’ compensatory
awards must do more—they must compensate.” Reid ex rel. Reid v. Dist. of
Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005). Compensatory awards should
place children in the position they would have been in but for the violation of the
Act. Id. at 518.
a. 2003–04
The School System contends that the district court erred when it found a
violation for the school year of 2003–04 based on a disagreement with the use of
the Lexia program, but this argument misunderstands the findings of the district
court. The use of the Lexia program was one of many deficiencies in Draper’s
educational program during the school year of 2003–04. In September Draper’s
program maintained his placement in the restrictive classroom even though the
evaluation in July 2003 found that Draper did not have mild intellectual
disabilities. After the School System changed Draper’s diagnosis, the School
System provided Draper with only 1.5 hours of speech tutoring a week. On
October 7, 2003, the School System was aware that Draper could read at only a
third-grade level and that a fifth-grade or sixth-grade reading level was required to
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access the curriculum in high school, but the School System placed Draper in
regular-education classes. Draper’s program stated that the Lexia program would
be provided to address his reading deficit, but Draper’s family had to file a formal
complaint before the School System actually provided the Lexia program. Even
after the formal complaint, the School System did not provide Draper with the
Lexia program until December 2003, and by January 2004 Draper had received
only 2.5 hours of services using the Lexia program. Draper was still reading at a
third-grade level at the end of the school year of 2003–04.
Substantial evidence supports the findings of the district court. The School
System failed to modify Draper’s educational program for several months after
testing established that his placement was not appropriate, knowingly placed
Draper in classes in which he could not succeed, and failed to address Draper’s
reading deficiency for half of the school year. The finding that the School System
failed to provide Draper an adequate education for the school year of 2003–04 is
not clearly erroneous.
b. 2004–05
The School System argues that the district court, in its finding about the
school year of 2004–05, failed to recognize the difficulty of modifying an
educational program to address a complex situation. This Court has recognized
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that, when a program is revised, “perfection is not required.” Loren F., 349 F.3d at
1312 (citing K.C., 285 F.3d at 982). The record reflects that the district court
understood this admonition.
The district court did not fault the School System because it failed to be
perfect. The district court found that the School System failed to provide Draper
with “the basic floor of opportunity.” JSK, 941 F.2d at 1573 (citing Andrews, 933
F.2d at 1580). The School System was aware in the summer of 2004 that Draper
was still reading at a third-grade level, and the School System was informed that
Dr. Wolman recommended “intensive multi-sensory training to bring the deficient
skills closer to his potential so that he can ultimately perform independently as an
adult.” Despite Draper’s continued academic stagnation and the recommendation
of Dr. Wolman, the School System continued to use the Lexia program over the
objection of Draper’s family. The district court did not clearly err when it found
that the educational program provided by the School System failed to provide
Draper with an adequate education for the school year of 2004–05.
3. Draper’s Award Is Compensatory, Not Punitive.
The School System argues that both the decision of the district court and the
earlier findings of the administrative law judge smack of retaliation. The School
System complains of “disdainful references” to its witnesses and officials by the
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administrative law judge, and the School System describes as “caustic” the
conclusion of the administrative law judge that the School System had “forfeited
its right to continue to ‘educate’ [Draper].” The School System complains that the
district court repeated these allegedly improper comments.
We are not in any position to disturb these findings. Unlike the
administrative law judge, we have not observed the parties and witnesses who
appeared and testified at Draper’s hearings. There is ample evidence to support the
administrative law judge’s description of Draper’s educational experience as a
“tragic tale,” and there is nothing in this record that suggests to us that the findings
adopted by the district court are anything but supported in fact. Although strongly
worded, the decisions of both the district court and the administrative law judge are
professional and temperate.
In the light of this record, we cannot say that Draper’s award was an abuse
of discretion. The record supports the conclusion of the district court that Draper’s
award is “reasonably calculated to provide the educational benefits that likely
would have accrued from special education services the school district should have
supplied in the first place.” Reid, 401 F.3d at 524. We categorically reject the
assertion of the School System that Draper’s award “looks suspiciously like” an
award of punitive damages.
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IV. CONCLUSION
We AFFIRM the judgment in favor of Draper.
AFFIRMED.
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