             Case: 13-11392     Date Filed: 08/05/2014   Page: 1 of 12


                                                                         [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-11392
                          ________________________

          D.C. Docket Nos. 2:11-cv-03539-AKK; 2:11-cv-03555-AKK

2:11-cv-03539-AKK

BLOUNT COUNTY BOARD OF EDUCATION,

                                                                Plaintiff-Appellant,

                                      versus

MELINDA BOWENS,
as parent and Next Friend of J.B., a minor,

                                                               Defendant-Appellee.

 __________________________________________________________________

2:11-cv-03555-AKK

J.B.,
by and through his mother, Melinda B.,

                                                                 Plaintiff-Appellee,

                                      versus

JAMES E. CARR,
Superintendent of and for Blount County Board of Education,

                                                              Defendant-Appellant.
               Case: 13-11392      Date Filed: 08/05/2014      Page: 2 of 12


                             ________________________

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

                                     (August 5, 2014)

Before PRYOR and MARTIN, Circuit Judges, and HONEYWELL, * District
Judge.

PRYOR, Circuit Judge:

       The Blount County Board of Education appeals the summary judgment that

requires the Board to reimburse Melinda Bowens for the cost of the placement of

her son in a private school. 20 U.S.C. § 1400 et seq. The Board offered Bowens

other placement options for her autistic son, J.B., but she concluded that those

options were inadequate and enrolled J.B. in Mitchell’s Place, a private school.

When Bowens sought reimbursement for the tuition, the Board denied her request.

A hearing officer later found that the Board failed to offer a free appropriate public

education to J.B. before his third birthday, as required by the Individuals with

Disabilities Education Act, id. § 1412(a)(1)(A), and that the Board instead

consented to J.B.’s placement at Mitchell’s Place. The hearing officer ruled that the

Board must reimburse Bowens for J.B.’s tuition from October 7, 2009, through

July 2010, plus mileage. The district court affirmed that decision. Because the


*
 Honorable Charlene Edwards Honeywell, United States District Judge for the Middle District
of Florida, sitting by designation.
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district court did not abuse its discretion when it weighed the equities and

concluded that Blount County must reimburse Bowens, we affirm.

                                I. BACKGROUND

      When J.B. was two years and four months old, doctors diagnosed him with

autism. Before that diagnosis, doctors had diagnosed J.B. as “developmentally

delayed,” and he received aid from the Early Intervention System of Alabama, an

agency that administers services to children from birth to age three under the

Individuals with Disabilities Education Act. 20 U.S.C. § 1431–44. Bowens

participated in several meetings with Early Intervention about J.B. and was

involved in the creation of an individualized family service plan to determine what

services and support were appropriate for him. Id. § 1436. The coordinator for

Early Intervention arranged for the Sparks Clinic at the University of Alabama at

Birmingham to evaluate J.B. After that evaluation, the Sparks Clinic diagnosed

J.B. with autism.

      In March 2009, Early Intervention alerted the Blount County Board of

Education that J.B.’s third birthday would occur on October 27, 2009. Early

Intervention invited the Board to a transition planning meeting with J.B.’s family

because the Act requires states to offer a free appropriate public education to

disabled children when they reach the age of three years. See 34 C.F.R. §

300.101(b). The purpose of the meeting was to introduce J.B.’s parents to the

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Board and to allow the attendees to explore possibilities for J.B.’s future education.

The meeting was scheduled for the following month.

      In April 2009, Bowens and representatives from the Board and Early

Intervention met at the transition planning meeting. Susan Betke, a service

coordinator with Early Intervention, acted as its representative. Jan Sullivan, a

speech and language pathologist with Blount County, represented the Board.

During the meeting, Sullivan offered three possible placement options for J.B.

when he turned three, but none of those facilities met J.B.’s specific needs. Bowens

explained to Sullivan that those options were unsatisfactory. The three meeting

participants planned to meet again in May to continue discussing options for J.B.

      Between the transition planning meeting and the meeting in May, Bowens

explored other options for J.B., but she still held out hope that the Board would

find an appropriate placement for J.B. and that Sullivan would offer more

promising options at the next meeting. She preferred to place J.B. in Blount

County because he would eventually attend kindergarten in that school system.

      Based on her independent research, Bowens determined that Mitchell’s

Place, a private school, was the best option for J.B. Mitchell’s Place, in

Birmingham, Alabama, provided services and education to autistic children, and

J.B. could attend preschool there full-time. To secure a spot at Mitchell’s Place in

the event that the Board could not provide an appropriate option, Bowens

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completed an application as a backup plan. She toured Mitchell’s Place, paid an

application fee of $50, and later paid an additional $250 to include J.B. on the

Mitchell’s Place waiting list.

      In May, Bowens again met with Sullivan and Betke to discuss placement

options for J.B. They reviewed the diagnosis from the Sparks Center, and Sullivan

told Bowens that the Board accepted all of the evaluations from the Sparks Center

and that the Board required no additional testing of J.B. Sullivan did not suggest

any placement options for J.B., other than those that they had discussed in the

April meeting.

      When Bowens asked Sullivan about Mitchell’s Place, Sullivan responded

that Mitchell’s Place was an excellent placement option. Afterward, Sullivan acted

as though the meeting was finished. Before leaving, Bowens suggested that, to ease

the eventual transition to kindergarten, J.B. should meet with speech and

occupational therapists in Blount County about once a month. Sullivan agreed, and

the meeting concluded. Shortly after that meeting, Bowens made a $3,500 payment

to Mitchell’s Place for tuition. Sullivan and Bowens met again in August, and

Bowens confirmed that she planned to enroll J.B. at Mitchell’s Place. Sullivan

made no additional offers of placement. They did not discuss reimbursement.

      In October 2009, shortly before J.B. turned three, Sullivan, Bowens, and

Derrick Bowens, J.B.’s father, met to discuss J.B.’s individualized education

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program. They agreed that Mitchell’s Place was the most appropriate placement

for J.B. based on the evaluation and recommendations of the Sparks Clinic. By

then, J.B. had already begun attending Mitchell’s Place, where he started in

August. They created an individualized education program that included special

language services twice a week with Sullivan and another therapist, as well as

consultation services to be provided once a month by Blount County. They then

signed paperwork, which included a statement that the Board accepted all

evaluations from the Sparks Center and that the Board needed no additional

evaluations. Sullivan also provided Bowens with a form for a representative of

Mitchell’s Place to sign. The form acknowledged that Mitchell’s Place would be

responsible for the implementation of J.B.’s individualized education program.

J.B.’s preschool teacher signed that form, and Bowens returned it to Sullivan.

Sullivan, Bowens, and Mr. Bowens never discussed reimbursement at the October

meeting.

      Bowens later sent a letter to the Board in May 2010, in which she requested

a formal individualized education program meeting to discuss the upcoming school

year. The Board and Bowens met that month, and Bowens, for the first time,

requested reimbursement for the tuition that she had paid to Mitchell’s Place. The

Board postponed the meeting with Bowens so that it could determine its next step.

Representatives of the Board then met without Bowens and decided to offer J.B. an

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individualized education program that was substantially similar to the Mitchell’s

Place program. After it made that offer, Bowens declined and informed the Board

that J.B. would remain at Mitchell’s Place for the following year and that she

would be seeking reimbursement for that placement too. The Board denied all of

Bowens’s requests for reimbursement.

      Bowens responded by requesting a due process hearing to obtain

reimbursement from the Board. At that hearing, both Bowens and Betke testified

that Sullivan seemed to be unaware of the services available to J.B. in Blount

County. Sullivan testified that she did not offer any alternative to Mitchell’s Place

during the individualized education program meeting in October because Bowens

had already enrolled J.B. there. And Bowens testified that by that October meeting,

she made up her mind that J.B. would attend Mitchell’s Place for the entire 2009–

2010 school year, but she also stated that it was “with the district’s full

knowledge.” Bowens further testified that she did not know that they should have

discussed reimbursement at the meeting in October nor that she might be entitled

to reimbursement.

      The hearing officer found that the Board had not offered a free appropriate

public education to J.B. because the facilities and services that Sullivan had

proposed were not appropriate. The hearing officer found that Bowens had not

unilaterally sent J.B. to Mitchell’s Place because “the local education

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representative of the school system acquiesced and approved the parent’s

placement of their son in Mitchell’s Place.” The hearing officer determined that

Bowens was entitled to reimbursement for the 2009–2010 school year, beginning

in October 2009 and ending in July 2010.

      The Board then filed a civil action in the district court, and Bowens filed a

separate civil action and sought attorney’s fees and costs as the prevailing party in

the administrative proceedings. See J.B. v. Carr, No. 2:11-cv-3555-WMA (N.D.

Ala. filed on Oct. 4, 2011). The district court consolidated the actions. The parties

filed cross motions for summary judgment, and the district court granted Bowens’s

motion for summary judgment and denied the motion filed by the Board.

                           II. STANDARD OF REVIEW

      We review awards of relief under section 1415(i)(2)(C)(iii) of the Act for

abuse of discretion. Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1284 (11th

Cir. 2008). The Act grants “broad discretion” to district courts, Sch. Comm. of

Burlington v. Dep’t of Educ., 471 U.S. 359, 369, 105 S. Ct. 1996, 2002 (1985), and

allows them to “grant such relief as the court determines is appropriate.” 20 U.S.C.

§ 1415(i)(2)(C)(iii); see also Draper, 518 F.3d at 1284.

                                 III. DISCUSSION

      The Board cannot overcome the deferential standard of review that we

afford to a district court after it weighs the equities. See Florence Cnty. Sch. Dist.

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Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361, 366 (1993). The district court

considered all of the “relevant factors,” Forest Grove Sch. Dist. v. T.A., 557 U.S.

230, 247, 129 S. Ct. 2484, 2496 (2009), and it did not abuse its discretion when it

agreed with the determination by the hearing officer.

      The Act requires states that receive federal funding to make a “free

appropriate public education” available to all resident children with disabilities. 20

U.S.C. §§ 1400(d)(1)(A), 1412(a)(1)(A); see also Loren F. v. Atlanta Indep. Sch.

Sys., 349 F.3d 1309, 1311–12 (11th Cir. 2003). The Act defines a free appropriate

public education as special education services that meet four criteria:

      The term “free appropriate public education” means special education
      and related services that—

          (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 school, or
          secondary school education in the State involved; and
          (D) are provided in conformity with the individualized education
          program required under section 1414(d) . . . .

20 U.S.C. § 1401(9). When a public school fails to provide a free appropriate

public education, and parents place their child in an “appropriate” private school, a

court may require the school district to reimburse the parents for the cost of the

private education. See 34 C.F.R. § 300.148(c); Forest Grove, 557 U.S. at 232–33,

129 S. Ct. at 2487–88.



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      But reimbursement is discretionary, and a court may still deny some—or

all—reimbursement based on equitable considerations. See 20 U.S.C.

§ 1412(a)(10)(C)(iii). For example, “[t]he cost of reimbursement . . . may be

reduced or denied” if the parents neither informed the individualized education

program team at the most recent meeting that they rejected the placement proposed

by the team and that they intended to “enroll their child in a private school at

public expense,” id., nor gave written notice of that information ten days before

they removed the child from public school. Id. Other equitable considerations

include whether the parents failed to make their child available for evaluation by

the school and whether a court finds that the parents acted unreasonably. Id; see

also Forest Grove, 557 U.S. at 247, 129 S. Ct. at 2496.

      The Board argues that Bowens failed to request reimbursement at the last

meeting in October 2009 and, as a result, failed to satisfy a statutory “[l]imitation

on reimbursement” for a unilateral private school placement, 20 U.S.C. §

1412(a)(10)(C)(iii), but the Board has it wrong for at least two reasons. First,

Bowens did not unilaterally enroll J.B. at Mitchell’s Place. Both the district court

and the hearing officer found that Sullivan—and the Board by extension—agreed

to the placement of J.B. at Mitchell’s Place, and the Board does not contest that

factual finding. Because the Board approved or, at the very least, acquiesced in the

placement of J.B. at Mitchell’s Place, the provision for a limitation on

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reimbursement for a unilateral placement does not apply to this appeal. See also 20

U.S.C. § 1412(a)(10)(B)(i) (providing for a free education when a school board

agrees to the placement of a child in a private school). Second, even if Bowens had

unilaterally placed J.B. at Mitchell’s Place, the provision for a limitation on

reimbursement still does not bar a claim for reimbursement. Instead, that provision

grants discretion to a district court to “reduce[] or den[y]” reimbursement in

accordance with the equitable considerations—such as failure to give notice—that

the statute lists. Id. § 1412(a)(10)(C)(iii); see also id. § 1415(i)(2)(C).

      The Board also argues that Bowens’s placement of J.B. at Mitchell’s Place

and failure to alert the Board of her intent to seek reimbursement deprived it of an

opportunity to address her concerns, but we disagree. The Board argues that if

Bowens had provided notice at the October 2009 meeting that she intended to

request reimbursement, it would have offered additional services to satisfy its

obligations under the Act. But the Board again ignores that it agreed to the

placement of J.B. at Mitchell’s Place, so Bowens had no duty to notify the Board

that she planned to seek reimbursement.

      We agree with the district court that the Act imposes a duty on the Board to

offer a free appropriate education at the outset, instead of waiting to see if a parent

will seek reimbursement for a private placement. To the extent that the Board was

harmed, Bowens’s failure to request reimbursement was not the culprit; as the

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district court stated, the Board harmed itself when it offered “inadequate option[s]

and [attempted to] wash its hands of its obligations.” The Board cannot now

complain that it was not offered the opportunity for a do-over.

      Bowens argues that we should grant her reimbursement for the 2010–2011

school year, but she did not appeal the denial of that reimbursement by the hearing

officer to the district court, nor to this Court. We will not consider that argument

for the first time on appeal. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d

1324, 1331 (11th Cir. 2004).

                                IV. CONCLUSION

      We AFFIRM the summary judgment in favor of Bowens.




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