                Case: 13-15170       Date Filed: 09/11/2014       Page: 1 of 10


                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                           _____________________________

                                    No. 13-15170
                           _____________________________

                          D.C. Docket No. 2:12-cv-02324-KOB


JEFFERSON COUNTY BOARD OF EDUCATION,

                                                                        Plaintiff - Appellant,

                                             versus

LOLITA S., individually and as parent, guardian, next friend and legal
representative of M.S., a minor, and M.S. in his individual capacity,

                                                                       Defendant - Appellee.

                           _____________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                         _____________________________

                                    (September 11, 2014)

Before JORDAN and BENAVIDES, * Circuit Judges, and RYSKAMP, ** District
Judge.

       *
          Honorable Fortunato P. Benavides, United States Circuit Judge for the Fifth Circuit,
sitting by designation.

       **
          Honorable Kenneth L. Ryskamp, United States District Judge for the Southern District
of Florida, sitting by designation.
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PER CURIAM:

      The Jefferson County Board of Education, an Alabama state agency, appeals

the district court’s order denying its motion for summary judgment, and granting in

part and denying in part Lolita S.’ motion for summary judgment. After review of

the record, and with the benefit of oral argument, we affirm.

                                         I

      Because we write only for the parties, we assume their familiarity with the

extensive record in this case, and restate only those facts necessary for our

decision.

      Ms. S. requested a due process hearing to determine, among other things,

whether the Board had failed to provide her son M.S., a student with disabilities

who is eligible to receive special education services, with a free and appropriate

education (FAPE), as required by the Individuals with Disabilities Education Act

(the IDEA), 20 U.S.C. §§ 1400-1482. Ms. S. also sought reimbursement for an

independent education evaluation (IEE) under 34 C.F.R. § 300.502(b)(1) and Ala.

Admin. Code R. 290-8-9-.02(4). The Alabama hearing officer ruled in favor of the

Board on the FAPE issue, and ruled in favor of Ms. S on her IEE reimbursement

claim, finding that the Board waived its opposition to the reimbursement claim by

choosing not to file its own due process request to defend its evaluation of the



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child. See 34 C.F.R. § 502(b)(2)(i)-(ii). Both parties sought review in federal

district court.

       The district court’s disposition of the parties’ motions, in effect, reversed

and remanded in part and affirmed in part the hearing officer’s decision. The

district court agreed with the hearing officer that the Board should reimburse Ms.

S. for the IEE. The district court, however, did not agree that the Board provided

M.S. with a FAPE. Among other reasons, the district court concluded that the

Individualized Education Program was not “reasonably calculated to enable M.S.

to receive educational benefits” because the Board used stock goals in M.S.’

Individualized Education Programs for the 2010-11 and 2011-12 school years

which were not designed to meet his needs in the areas of reading and transition

services. See Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). The district court

remanded for the hearing officer to determine the appropriate amount and type of

compensatory education necessary for M.S. and to determine whether the same

stock goals were used in the IEPs for the area of math. This appeal followed.

                                                II

       Whether the 2010-11 and 2011-12 IEPs provided M.S. with a FAPE is a

mixed question of law and fact subject to de novo review. See G.J. v. Muscogee

Cnty. Sch. Dist., 668 F.3d 1258, 1263 (11th Cir. 2012). We review the district

court’s specific findings of fact for clear error. See Jefferson Cnty. Bd. of Educ. v.


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Breen, 853 F.2d 853, 857 (11th Cir. 1988). However, “[t]he extent of deference to

be given the administrative findings of fact is an issue left to the discretion of the

district court.” Id. Because the district court reviewed the administrative record

without receiving any other evidence, “we stand in the same shoes as the district

court in reviewing the administrative record and may, therefore, accept the

conclusions of the [hearing officer] and the district court that are supported by the

record and reject those that are not.” G.J., 668 F.3d at 1268; see also R.L. v.

Miami-Dade Cnty. Sch. Bd., 757 F.3d 1173, 1181 (11th Cir. 2014) (same).

                                         III

      The IDEA provides federal assistance to states that provide a FAPE to

children with disabilities. See 20 U.S.C. § 1412(a)(1)(A). In exchange for that

assistance, IDEA requires states to develop, review, and revise IEPs that are

“reasonably calculated to enable the child to receive educational benefits.” Draper

v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1278 (11th Cir. 2008). See also 20

U.S.C. § 1412(a)(4). In doing so, “the state must provide the child with only a

basic floor of opportunity.” Drew P. v. Clarke Cnty. Sch. Dist., 877 F.2d 927, 930

(11th Cir. 1989) (quoting Rowley, 458 U.S. at 201). “This opportunity provides

significant value to the handicapped child who, before [IDEA], might otherwise

have been excluded from any educational opportunity.” JSK By and Through JK v.

Hendry Cnty. Sch. Bd., 941 F.2d 1563, 1573 (11th Cir. 1991) (emphasis added). A


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state satisfies this obligation if the educational benefits are “adequate,” which

“must be determined on a case-by-case basis in light of the child’s individual

needs.” Id. (emphasis added).

                                         A

      With regard to the IEP’s reading goals, we agree with the district court that

the goals were inadequate because they were not adapted to address M.S.’

individual needs. For example, his reading skills were assessed to be at the first-

grade level at the time his 2011-2012 IEP was created. The reading goal in his

IEP, however, was derived from the state standard for ninth-grade students. As the

district court noted, this goal was set without any evidence showing that M.S.’

reading comprehension had increased from a first-grade level to a ninth-grade level

during the prior school year. In addition, the Board provided no program to

address the gap between the ninth-grade goal and M.S.’ first-grade reading level.

As the district court explained, the one program the Board “intended” for him to

participate in, the STAR program, is actually an assessment, and not a substantive

program intended to help students like M.S. improve their reading competency.

These facts persuade us that M.S.’ IEP reading goals were not individualized.

      One additional fact strongly supports this conclusion. The narratives for

reading, math, and personal management in M.S.’ 2010-2011 IEP appeared with

another child’s name printed on the form, which was crossed out and replaced with


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M.S.’ name on three different pages. See Admin. R. at 1741-43. Subsequent IEPs

had M.S.’ name correctly printed, but the goals were largely the same. The

school’s apparent use of boilerplate IEPs, with goals far above M.S.’ reading level,

indicate that the reading goals of M.S.’ IEPs did not provide him with any

educational benefits beyond those he would have received if he never had the IEPs.

It appears M.S. was treated as any other disabled student during the creation of his

IEPs, and was held to same standards that any student, with or without a disability,

would have been.

      On appeal, the Board characterizes the district court’s focus on the reading

goals of M.S.’ IEPs as an improper “piecemeal” review. Appellant’s Br. at 31

(citing Klein Ind. Sch. Dist. v. Hovem, 690 F.3d 390, 397 (5th Cir. 2012); Lenn v.

Portland Sch. Comm., 998 F.2d 1083, 1090 (1st Cir. 1993)). We disagree.

      In Klein, the parents of a disabled student argued that a school board, in

claiming that it had provided a FAPE, could not rely on that student’s academic

success in areas unrelated to the student’s disability. Rejecting that argument, the

Fifth Circuit explained that limiting the analysis to areas related to the student’s

disability would improperly restrict the definition of “educational benefit . . . in

terms of correcting the student’s disability,” and prevent proper examination of the

student’s “whole educational experience.” 998 F.3d at 397.




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      Here, we cannot say that the district court’s focus on M.S.’ reading skills

prevented a proper examination of his educational experience. The district court

considered the IEPs’ goals in relation to, among other things, M.S.’ oral language

skills, written expression, motivation, reading, math, and transition services. The

district court did agree with the hearing officer that, with the information the Board

had at the time, M.S.’ IEPs were appropriate in many of these areas. The district

court did disagree with the hearing officer in the area of reading. But finding that

M.S. was denied a FAPE based on the assignment of ninth-grade reading goals in a

boilerplate IEP, where M.S.’ actual reading level was elementary, can hardly be

characterized as “a one-dimensional view of an IEP.” Lenn, 998 F.2d at 1090. Cf.

Draper, 518 F.3d at 1289-90 (finding no reversible error in the district court’s

holding that a FAPE was denied to a student with dyslexia who read at a third-

grade level in high school and the school’s program failed to provide any

improvement over three years).

      The district court also did not err in finding that the postsecondary goals and

transition services in M.S.’ IEPs fell below the FAPE standard.           The IDEA

requires that “beginning not later than the first IEP in effect when the child is 16,”

IEPs must provide for “appropriate measurable postsecondary goals based upon

age appropriate transition assessments” and “the transition services (including

courses of study) needed to assist the child in reaching those goals.” 20 U.S.C. §


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1414(d)(1)(A)(i)(VIII). Here, as the district court explained, the hearing officer

“suggested,” but did not require, the Board to conduct transition assessments. See

Admin. R. at 1917.

      Though the 2010-2011 IEP and the 2011-2012 IEP indicate that assessments

were used to determine M.S.’ transition goals, see, e.g., id. at 1761 (checked box

next to “Transition Planning Assessments”), the district court found that one had

not yet been done because of the hearing officer’s suggestion that a vocational

assessment be performed. See id. at 1917. The Board waited until its reply brief to

ask for review of this finding on appeal, and therefore we decline to address the

issue. See United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir. 1999). The

postsecondary goals and transition services in M.S.’ IEP, therefore, were not

created in compliance with IDEA.

      We recognize that a procedural defect is not dispositive, and that we “must

consider the impact of the procedural defect, and not merely the defect per se.”

G.J., 668 F.3d at 1270 (citations omitted). The impact of failing to implement a

vocational assessment here is similar to that which resulted from M.S.’ reading

goals—M.S. received the same vocational and career-based training that the rest of

his peers received, without any insight or determination as to whether that would

be appropriate for M.S.




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      We further agree with the district court that this lack of individualized

planning and programming for M.S’ education deprived him of a FAPE. For

example, the vague language used to describe M.S.’ postsecondary goal—“student

will be prepared to participate in post-secondary education”—did not match M.S.’

diploma track. M.S. was not on a track for receiving a post-secondary education,

as he was “unlikely to go to college.” D.E. 35 at 48. M.S. was instead placed on

an alternate diploma track—the Alabama Occupational Diploma—which is

designed to prepare students with disabilities for employment upon exiting high

school. This is another illustration of the Board’s use of stock language in the

planning and implementation of M.S.’ IEP.

      On this record, we hold that the district court did not commit reversible error

in finding that M.S. was denied a FAPE with regard to postsecondary goals and

transition services.

                                         B

      Turning to the IEE reimbursement issue, we recently recognized that

“Congress has clearly evinced its intent that parents have the right to obtain an IEE

at public expense.” Phillip C. ex rel A.C. v. Jefferson Cnty. Bd. of Educ., 701 F.3d

691, 697 (11th Cir. 2012) (upholding the validity of 34 C.F.R. § 300.502, which

requires state and local agencies to reimburse parents for IEEs). A parent can

obtain an IEE at public expense if he or she disagrees with a school board’s


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evaluation, unless the school board files a due process complaint to request a

hearing to show that its evaluation was appropriate or the school board shows that

the IEE did not meet agency criteria. See 34 C.F.R. § 300.502.

      The hearing officer found that Ms. S. was entitled to reimbursement because

the school system did not file a due process request to defend its evaluation or

challenge the IEE. The district court rejected the Board’s argument that Ms. S.’

letter of October 13, 2011, requesting an IEE at public expense was not proper

because it failed to identify a specific disagreement with the Board’s evaluation.

See D.E. 35 at 58 (“the public agency may not require the parent to provide an

explanation”) (quoting 34 C.F.R. § 300.502(b)(4)) (italics omitted).

      Based on the plain language of the regulation, we have no basis to conclude

that there was reversible error. The Board did not file a due process request, and it

cannot now defend its evaluation or challenge the IEE.            See 34 C.F.R. §

300.507(a)(2) (“The due process complaint must allege a violation that occurred

not more than two years before the date the parent or public agency knew or should

have known about the alleged action that forms the basis of the due process

complaint”).

                                         IV

      For these reasons, we affirm.

               AFFIRMED.


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