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Z. B. v. District of Columbia

United States Court of Appeals, District of Columbia Circuit

May 1, 2018

Z. B., A Minor, By Her Parents and Next Friends, et al., Appellants
v.
District of Columbia, A Municipal Corporation, Appellee

          Argued December 5, 2017

          Appeal from the United States District Court for the District of Columbia (No. 1:15-cv-01037)

          Michael J. Eig argued the cause and filed the briefs for appellants.

          Richard S. Love, Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellee. With him on the brief were Karl A. Racine, Attorney General, Todd S. Kim, Solicitor General at the time the brief was filed, and Loren L. AliKhan, Solicitor General.

          Before: Millett and Pillard, Circuit Judges, and Williams, Senior Circuit Judge.

          OPINION

          Pillard, Circuit Judge

         Z.B. is an elementary school student who, from pre-kindergarten through third grade, attended the Phoebe Hearst Elementary School in the District of Columbia Public Schools system (DCPS). Her parents claim that DCPS failed to offer Z.B. a fourth grade education appropriate to her needs under the Individuals with Disabilities Education Act (IDEA or Act). Because they thought the education at Hearst was deficient, they withdrew Z.B. in the summer of 2014 and enrolled her at the Lab School, a private school for children with disabilities. By all accounts, Z.B. did well at the Lab School. DCPS, however, stands by the adequacy of the individualized education programs (IEPs) Hearst offered, so it denied Z.B.'s family reimbursement under the IDEA of the tuition costs at the Lab School.

         On cross-motions, the district court granted summary judgment for DCPS. The court determined that DCPS, after reviewing and responding to diagnostic information and action requests from Z.B.'s parents, offered Z.B. an adequate education. The Supreme Court thereafter, in Endrew F. ex rel. Joseph F. v. Douglas County School District RE-1, 137 S.Ct. 988 (2017), raised the bar on what counts as an adequate education under the IDEA. Endrew F. held that the Act requires education "reasonably calculated to enable a child to make progress in light of the child's circumstances"-a standard that the Court described as "markedly more demanding than the 'merely more than de minimis'" standard the Tenth Circuit had applied, id. at 999-1000, and that also appears more demanding than the district court's approach here, see Z.B. v. District of Columbia, 202 F.Supp.3d 64, 75-80 (D.D.C. 2016). In requiring more than merely some "educational benefits, " id. at 77 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)), the Court in Endrew F. stressed that "every child should have the chance to meet challenging objectives, " and that a student's "educational program must be appropriately ambitious in light of his circumstances." 137 S.Ct. at 1000.

         The district court ably and extensively engaged the record in this case, but we discern certain errors in the legal standards it applied. The court excused arguable shortfalls in the IEP DCPS offered to Z.B. in June 2014 because of "the short time frame between the eligibility determination and the adoption of the initial IEP." 202 F.Supp.3d at 80. The court did not explain, however, why that short time frame was not DCPS's own fault. The IDEA places affirmative obligations on schools, but the district court appears to have accepted DCPS's passivity: Z.B.'s parents, not DCPS, finally procured the evaluations used for the 2014 IEP. And the court affirmed the administrative finding that the 2014 IEP was adequate in part because, when the school "was made aware" by Z.B.'s parents of their "issues" with an initial version of that IEP, the school "agreed to all of plaintiffs' proposed changes." Id. It thus remains unclear whether and how DCPS itself made a valid assessment of Z.B.'s needs before it offered the 2014 IEP-and so whether that IEP was adequate.

         The district court also faulted Z.B.'s parents for failing to show that Z.B.'s special education needs could not be met "within DCPS." Id. at 66; see id. at 75-79. But the legal issue is not whether, as a general and hypothetical matter, the school system as a whole somehow could have met Z.B.'s needs; it was not Appellants' burden to show that any possible placement in DCPS "was not a viable option" or "would not have worked." Id. at 76-77. The issue, rather, is whether each of the IEPs that Hearst actually proffered was adequate at the time; if not, DCPS may be responsible to pay for an education that was.

          Given the legal standard the district court actually applied, we are not confident that DCPS met its duty under Endrew F. to evaluate Z.B. and offer a 2014 IEP that adequately responded to her needs: Was it too little, too late? We thus vacate and remand for further consideration of the substantive adequacy of Z.B.'s 2014 IEP under the standards of the IDEA as Endrew F. and this opinion describe them.

         The second IEP DCPS offered in 2015, which Z.B.'s parents also challenge as inadequate, is a different story. By the time it composed the 2015 IEP, DCPS had fully familiarized itself with Z.B.'s individual circumstances and needs. Hearst had by then made its own evaluation of the information Z.B.'s parents and the Lab School provided, and conducted its own further assessments of Z.B. The record shows that the IEP DCPS offered Z.B. in 2015 was supported by the requisite analysis of Z.B.'s circumstances, and that it was reasonably calculated to afford her an opportunity to make progress in light of her particular circumstances. We accordingly affirm the decision of the district court as to the adequacy of the 2015 IEP.

         I.

         A.

         The IDEA, 20 U.S.C. § 1400 et seq., offers states federal funding to provide a "free appropriate public education" to students with disabilities, id. § 1412(a)(1)(A). The IDEA details evaluation procedures that schools must use to determine precisely what services an eligible child should receive. See id. §§ 1414(a)-(b); see also 34 C.F.R. § 300.301, 300.304-06. Operationally, when a school has reason to believe that a child with a disability is not receiving an adequate education, see 20 U.S.C. § 1412(a)(3), it must first take initiative to "review existing evaluation data, " including those the parents may have provided and observations of teachers and other professionals, "before" it begins providing services under the IDEA. Id. §§ 1414(a)(1)(A), (c)(1)(A). "[O]n the basis of that review, and input from the child's parents, " the school must "identify what additional data, if any, are needed to determine" the child's current needs and skills. Id. § 1414(c)(1)(B). The burden is on the school to "ensure that . . . the child is assessed in all areas of suspected disability." Id. § 1414(b)(3)(B). If the school determines additional assessment is needed, the school is responsible for conducting that assessment. Id. § 1414(c)(2). If, however, the school determines no more data is needed to create an adequate educational program tailored to the student's needs, it must so notify the child's parents and inform them of their right to request further assessment. Id. § 1414(c)(4).

         With the "results of [that] initial evaluation" before it, the school and the parents-together, the "IEP Team, " see id. § 1414(d)(1)(B)-must design an individualized education program. Id. § 1414(d)(3)(A)(iii). An IEP operationalizes a specific student's appropriate educational plan: It sets out, in writing, the student's existing levels of academic and functional performance, establishes appropriate goals, and describes how the student's progress toward those goals will be measured. Id. § 1414(d)(1)(A)(i)(I)-(III); see id. § 1401(9)(D). Failure to follow those procedures is actionable where it denies the child an appropriate education. Id. § 1415(f)(3)(E)(ii)(I).

         Substantively, the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances, " Endrew F., 137 S.Ct. at 1001, even as it stops short of requiring public schools to provide the best possible education for the individual child, Rowley, 458 U.S. at 200, or an education "equal" to that of non-disabled peers, Endrew F., 137 S.Ct. at 1001; Rowley, 458 U.S. at 198-99. If a school system fails to provide a student with an appropriate education and such education is offered at a private school, the school system may be liable to reimburse the student for the cost of private education. See 20 U.S.C. § 1412(a)(10)(C)(ii); see generally Leggett v. District of Columbia, 793 F.3d 59 (D.C. Cir. 2015).

         B.

         Z.B. began her schooling in pre-kindergarten at DCPS's Hearst Elementary School. Because Hearst was not Z.B.'s neighborhood school, she was able to enroll there only after winning a place through a DCPS lottery.[1] In their initial administrative complaint, Z.B.'s parents claimed they first noticed in pre-kindergarten that Z.B. struggled to pay attention and that her impulsivity and disorganization increasingly affected her daily functioning and ability to learn at school. The record contains neither evidence of any steps taken by DCPS to evaluate Z.B. during her pre-kindergarten or kindergarten years for possible disabilities, nor any direct explanation that such steps were unnecessary.

         Z.B.'s first and second grade experiences were marked by bullying and other interpersonal conflicts between Z.B. and other students, which her parents claim prompted Z.B. to behave inappropriately and negatively affected her academic progress. Nothing in the record suggests that DCPS then evaluated Z.B. to determine whether she was eligible for special education under the IDEA. Concerned about her behavior and academic performance, Z.B.'s parents took her in the spring of her second grade year for a private psychological evaluation at their own expense. In March 2013, a doctor at Children's National Medical Center (Children's) diagnosed Z.B. with "[a]ttention deficit hyperactivity disorder combined type" (ADHD). That doctor also recommended that Z.B. receive a functional behavioral assessment.

         Z.B.'s parents hired a therapist at Children's to work with Z.B. soon after that diagnosis. On May 1, 2013, near the end of Z.B.'s second grade year, the therapist wrote DCPS to recommend developing a Section 504 plan for Z.B. A Section 504 plan, named after the section of the Rehabilitation Act of 1983 in which it was established, defines and commits to provide public support for persons with disabilities. See 29 U.S.C. § 701 et seq.; see generally Fry v. Napoleon Cmty. Sch., 137 S.Ct. 743, 749-50 (2017). While the IDEA applies to all school-aged children, 20 U.S.C. §§ 1401(3)(A), 1412(a)(1), Section 504 applies more broadly to federally financed programs or activities, requiring as a condition of public funding that recipients provide certain accommodations for physically or mentally impaired individuals, 29 U.S.C. §§ 705(20)(A), 794(a)-(b), and, in the school context, requires a free, appropriate education for students with qualifying disabilities, 34 C.F.R. § 104.33.

         DCPS developed a Section 504 plan for Z.B. within two weeks of receiving the private therapist's request. The plan provided for classroom accommodations such as simplified directions, extra time, and preferential seating in the classroom to minimize distractions. After DCPS implemented the Section 504 plan, Z.B.'s father periodically contacted the school with concerns about the slow pace of Z.B.'s progress. He testified that, after DCPS implemented ...


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