              Case: 12-15373       Date Filed: 02/14/2014   Page: 1 of 7


                                                                [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-15373
                          ________________________

                      D.C. Docket No. 1:11-cv-00426-LTW



A.K.
by and through her parent, E.K.,
E.K.,

                        Plaintiffs - Appellants,

versus

GWINNETT COUNTY SCHOOL DISTRICT,

                        Defendant - Appellee.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                               (February 14, 2014)
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Before TJOFLAT and WILSON, Circuit Judges, and BUCKLEW, * District Judge.

PER CURIAM:

       A.K., by and through her father, E.K., appeals the district court’s affirmance

of the administrative law judge’s (ALJ) dismissal of E.K.’s due process complaint

and its finding that the Gwinnett County School District (GCSD) provided A.K.

with a free and appropriate public education (FAPE) under the Individuals with

Disabilities Education Act (IDEA). E.K. also appeals the district court’s dismissal

of his other claims. After a careful review of the parties’ briefs and the record, we

affirm the district court’s judgment.

                                               I.

       E.K. filed a due process complaint under IDEA on October 2, 2009, alleging

improper identification of A.K.’s disability, negligent evaluation of A.K., and

improper placement of A.K. in a severe intellectual disability class. The parties

reached a settlement agreement resolving the matter on October 7, 2009, which,

inter alia, provided that A.K. would remain in a moderate autism spectrum

disorder classroom. E.K. subsequently withdrew the complaint. On February 18,

2010, A.K.’s parents and GCSD met to discuss A.K.’s individualized education

program (IEP). E.K. informed GCSD that A.K. was taking nutritional supplements

every forty-five minutes and requested that A.K. be provided home-based services

       *
          Honorable Susan C. Bucklew, United States District Judge for the Middle District of
Florida, sitting by designation.
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for three months (the duration of the regimen) so that she could be provided the

diet in a low-stress environment. Although GCSD offered to provide the diet to

A.K. in school, it acceded to E.K.’s request to provide in-home services until the

end of the school year.

      When the parties met again on May 14, 2010, GCSD suggested extended

school year services in the home and a switch to in-school placement for the 2010–

11 school year. A.K.’s parents requested that in-home schooling be continued and

rejected a modified plan that would place A.K. in school for two hours per day and

in her home for three. After another meeting on August 13, 2010, A.K.’s parents

once again rejected the modified placement. E.K. then filed a second due process

complaint on August 17, 2010. E.K. asserted that A.K. needed in-home schooling

so that she could maintain her strict diet. An ALJ with the Georgia Office of State

Administrative Hearings conducted a hearing and granted GCSD’s motion to

dismiss for E.K.’s failure to meet the burden of proof. E.K. filed an action in state

court, which GCSD removed to the District Court for the Northern District of

Georgia. E.K. subsequently filed motions to admit evidence not previously

considered by the ALJ. The district court granted GCSD’s motion for judgment on

the administrative record and denied E.K.’s motion for relief from judgment on

order on September 26, 2012, concluding that GCSD offered A.K. FAPE. E.K.

filed a notice of appeal on October 11, 2012, but missed the deadline to file his


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appellate brief and record excerpts. We granted E.K.’s motion to vacate the

dismissal and reinstate the appeal on February 11, 2013.

                                         II.

      Whether an IEP provides a child with FAPE “is a mixed question of law and

fact subject to de novo review.” Draper v. Atlanta Ind. Sch. Dist., 518 F.3d 1275,

1284 (11th Cir. 2008).

      To determine whether the IDEA requirement for a FAPE is met, we inquire

(1) whether the school district complied with the procedures set forth in the act;

and (2) whether the IEP was reasonably calculated to enable the child to receive

educational benefit in the least restrictive environment (LRE). Bd. of Educ. of the

Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206–07, 102 S. Ct.

3034, 3051 (1982). “If these requirements are met, the State has complied with the

obligations imposed by Congress and the courts can require no more.” Id. at 207,

102 S. Ct. at 3051. E.K.’s complaint is not procedural; he argues that placement in

school is improper. Thus, we must decide whether the IEP was reasonably

calculated to enable A.K. to receive educational benefit in the LRE. In

determining whether the IEP is substantively adequate, we “pay great deference to

the educators who develop the IEP.” Todd D. by Robert D. v. Andrews, 933 F.2d

1576, 1581 (11th Cir. 1991). The IEP is not meant to provide the absolute

maximum benefit to the child, Rowley, 458 U.S. at 198, 102 S. Ct. at 3046, but is


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instead required only to provide “the basic floor of opportunity” to the child,

Andrews, 933 F.2d at 1581 (internal quotation marks omitted).

      The IEP here met IDEA’s substantive requirements. The dispute arose

when, during planning of the IEP for the 2010–11 school year, GCSD

recommended placing A.K. in a severe autism classroom. A.K.’s parents

disagreed with the in-school placement and demanded in-home schooling. The

LRE requirement of IDEA, though, aims to educate disabled children in the

classroom with their non-disabled peers:

      To the maximum extent appropriate, children with disabilities,
      including children in public or private institutions or other care
      facilities, are educated with children who are not disabled, and special
      classes, separate schooling, or other removal of children with
      disabilities from the regular educational environment occurs only
      when the nature or severity of the disability of a child is such that
      education in regular classes with the use of supplementary aids and
      services cannot be achieved satisfactorily.

20 U.S.C. § 1412(a)(5)(A). It seems clear, then, that the statute favors

reintegrating children into the school setting, where they can socially interact with

other children. See Dep’t of Educ., Haw. v. Katherine D. ex rel. Kevin and

Roberta D., 727 F.2d 809, 817 (9th Cir. 1983) (“The congressional preference for

educating handicapped children in classrooms with their peers is made

unmistakably clear in section [1412(a)(5)(A)].”). The district court correctly

concluded that E.K. did not present evidence justifying in-home schooling. A.K.’s

strict diet was not prescribed by a medical doctor, she does not have a life-
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threatening condition, and she is not under the regular care of a medical doctor.

Most importantly, though, E.K. provides no evidence that GCSD will be unable to

adequately supply A.K. with her special diet. In fact, the evidence actually shows

that A.K. would be best served by reintegrating her into the school setting where

she can practice social interaction with her peers.

      E.K. sought to admit additional evidence in support of his due process

complaint and request for in-home schooling. The district court, however, relied

on the administrative record without admitting additional evidence. While the

IDEA instructs that a district court “shall hear additional evidence at the request of

a party,” 20 U.S.C. § 1415(i)(2)(C)(ii), “[t]he determination of what is ‘additional’

evidence must be left to the discretion of the trial court which must be careful not

to allow such evidence to change the character of the hearing from one of review to

a trial de novo,” Walker Cnty. Sch. Dist. v. Bennett ex rel. Bennett, 203 F.3d 1293,

1298 (quoting Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 791 (1st Cir.

1984)). The district court concluded that additional evidence would be irrelevant

or cumulative. E.K. gives us no reason to question that conclusion, so we cannot

say that the district court abused its discretion.

      E.K. brought additional claims against GCSD for various torts. IDEA

requires claims brought pursuant to it, the ADA, § 504, or the Constitution to be

exhausted in state administrative proceedings. M.T.V. v. DeKalb Cnty. Sch. Dist.,


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446 F.3d 1153, 1157–58 (11th Cir. 2006). At the administrative hearing, the ALJ

properly examined only the issues raised. E.K. raised only identification,

evaluation, and educational placement in the due process complaint. The fraud and

42 U.S.C. § 1983 claims were raised in the district court for the first time, and the

court properly declined to consider those claims because they had not been

administratively exhausted. On appeal, E.K. failed to raise identification and

evaluation in his brief, and those claims are therefore abandoned. Access Now, Inc.

v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). Because these claims

have not been administratively exhausted, we cannot consider them in addition to

E.K.’s allegation that A.K. was not offered FAPE.

      For the foregoing reasons, we affirm the judgment of the district court

granting GCSD’s motion for judgment on the administrative record and dismissing

E.K.’s motion for relief from judgment on order.

      AFFIRMED.




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