MM, et al. v. School District of Greenville County a/k/a Greenville County Public Schools

The School District of Greenville County, South Carolina ("the
District"), has appealed the district court's ruling that the 1995-96
Individualized Education Program ("IEP") of student MM
1
failed to
provide her with a statutorily mandated "free appropriate public edu-cation."
MM v. Sch. Dist., C/A No.: 3:98-2971-17, Findings of Fact
and Conclusions of Law (D.S.C. Aug. 17, 2000) (the "Opinion"). MM
and her parents have cross-appealed, contending that the district court erred in four respects. As explained below, the 1995-96 IEP complied
with the requirements of the Individuals with Disabilities Education
Act (the "IDEA"), and we reverse the district court on the District's
appeal. On the other hand, the contentions raised by MM and her par-ents
are without merit, and we affirm on the cross-appeal.

I.

* * *

The IDEA was enacted in 1990 to ensure that all children with dis-abilities
receive a "free appropriate public education" (a "FAPE"), and
the IDEA emphasized the special education and related services
required to meet the unique needs of such children.
3
In return for the receipt of federal education funding, states are required by the IDEA
to provide each of their disabled children with a FAPE. Under the
IDEA, a FAPE must provide such children with meaningful access to
the educational process. Board of Educ. v. Rowley, 458 U.S. 176, 192
(1982) ("[I]n seeking to provide . . . access to public education, Con-gress
did not impose upon the States any greater substantive educa-tional
standard than would be necessary to make such access
meaningful."). That is, a FAPE must be reasonably calculated to con-fer
some educational benefit on a disabled child. Id. at 207. Such an
educational benefit must be provided to a disabled child in the least
restrictive and appropriate environment, with the child participating,
to the extent possible, in the same activities as non-disabled children.
20 U.S.C. § 1412(a)(5)(A).

The IDEA does not, however, require a school district to provide
a disabled child with the best possible education. Rowley, 458 U.S. at
192. And once a FAPE is offered, the school district need not offer
additional educational services. Matthews v. Davis, 742 F.2d 825, 830
(4th Cir. 1984). That is, while a state "must provide specialized
instruction and related services ‘sufficient to confer some educational
benefit upon the handicapped child,' . . . the Act does not require the
‘furnishing of every special service necessary to maximize each hand-icapped
child's potential.'" Hartmann v. Loudoun County Bd. of
Educ., 118 F.3d 996, 1001 (4th Cir. 1997) (quoting Rowley, 458 U.S.
at 199-200).

A school district is required by the IDEA to provide an IEP for
each disabled child. An appropriate IEP must contain statements con-cerning
a disabled child's level of functioning, set forth measurable
annual achievement goals, describe the services to be provided, and
establish objective criteria for evaluating the child's progress. 20
U.S.C. § 1414(d)(1)(A).
4
The IDEA establishes a series of elaborate procedural safeguards "designed to ensure that the parents or guardian
of a child with a disability are both notified of decisions affecting
their child and given an opportunity to object to these decisions."
Gadsby v. Grasmick, 109 F.3d 940, 956 (4th Cir. 1997). The IEP must
therefore be prepared by an IEP Team, which consists of a representa-tive
of the school district, the child's teacher, the parents or guardian
and, where appropriate, the child herself. 20 U.S.C. § 1414(d)(1)(B).

The IDEA requires that the parents or guardian of a disabled child
be notified by the school district of any proposed change to their
child's IEP. It also requires that the parents or guardian be permitted
to participate in discussions relating to their disabled child's evalua-tion
and education. 20 U.S.C. § 1415(b). If the parents or guardian are
not satisfied with the IEP, they are entitled to request a due process
hearing. 20 U.S.C. § 1415(f). In South Carolina, that hearing is con-ducted
before a local Hearing Officer and is appealable to a state-level
Reviewing Officer. 24 S.C. Code Ann. Regs. § 43-243. Any
party aggrieved by the findings and decision of a Reviewing Officer
may then bring suit in state or federal court. See id. ("Any party
aggrieved by the findings and decision . . . shall have the right to
bring a civil action . . . in any State court of competent jurisdiction
or in a district court of the United States . . . .").

B.

MM recently turned eleven years old. She suffers from two disorders: first, from a disease called myotonic dystrophy,
5
and second,
from moderate autism.
6
She thus qualifies as a "child with a disabil-ity"
under the IDEA. When MM was three years old, she resided with
her family in Henderson County, North Carolina. In 1994, the Hen-derson
County school officials evaluated MM under the IDEA for a
preschool program, and they developed an IEP for her benefit.
7

In the Summer of 1995, just before her fourth birthday, MM moved
with her parents to South Carolina, and they sought IDEA services for
her from the District. At the District's suggestion, her parents visited
two public schools in the Greenville area: the Meyers Center, a five-day-
per-week preschool, and the Golden Strip Preschool, a one-day-per-
week preschool. The parents then advised the District that they
preferred the Golden Strip Preschool, in part because the limited
hours afforded them the opportunity to utilize an in-home program for
treating MM's autism (denominated as the "Lovaas" system).
8

On September 21, 1995, MM's IEP Team, including her parents,
met in Greenville. During this meeting, MM's 1995-96 IEP was completed, and her parents accepted and signed the written IEP. This IEP
placed MM in the Golden Strip Preschool one day per week, from
9:00 to 11:00 a.m., in a classroom with a four-to-one student-to-teacher
ratio. The 1995-96 IEP also provided MM with one-half hour
per week of speech therapy, one-half hour per week of physical ther-apy,
and one-half hour per month of occupational therapy. MM's
physical therapy took place before preschool hours, but her speech
therapy occurred during school hours. The IEP did not, however, pro-vide
for Extended School Year Services ("ESY Services") for the
Summer of 1996.
9
The 1995-96 IEP was then implemented as
planned, and MM's parents did not object to it during the school year.

MM made educational progress during 1995-96, and she was then
re-evaluated for the 1996-97 school year. On May 13, 1996, her IEP
Team reconvened and discussed possible IEP placements for MM at
both the Sara Collins Elementary School and the Golden Strip Pre-school.
The District preferred the Sara Collins placement, which
included classroom services from 8:30 a.m. to 2:30 p.m., five days per
week, plus two twenty-five-minute sessions of speech therapy per
week, two thirty-minute sessions of physical therapy per week, and
one thirty-minute session of occupational therapy per week. The District's proposed 1996-97 IEP (the "Proposed 1996-97 IEP") did not
contemplate providing MM with any ESY Services. Primarily
because her parents desired that she spend more time in the Lovaas
program, the IEP Team discussed placing MM at Golden Strip for
another year. As a result of this IEP Team meeting, the District agreed
to support the placement of MM at either Sara Collins or Golden
Strip, but an IEP was neither signed nor agreed to for 1996-97.

On May 24, 1996, MM's parents requested reimbursement from
the District for the in-home Lovaas program in which MM had been
participating. A follow-up IEP Team meeting was then conducted on
August 8, 1996, during which her parents presented their goals and
objectives for MM, primarily based on her participation in the Lovaas
program. This meeting was unsuccessful, and the Proposed 1996-97
IEP was not accepted by MM's parents.

Another IEP Team meeting was scheduled for August 22, 1996,
but it was cancelled by the parents. An IEP was never finalized for
1996-97, and MM has not attended school in the District since May
1996. She has, however, continued to engage in the in-home Lovaas
program, and she has attended kindergarten at a local Presbyterian
Church. In preparing to offer an IEP for 1997-98, the District asked
the parents for an opportunity to reassess MM, but they refused. The
District did not make an IEP placement offer to MM for the 1997-98
school year.

On March 2, 1998, pursuant to the IDEA and § 43-243 of the South
Carolina Code of Regulations, the Parents
10
requested a due process
hearing regarding the 1995-96, 1996-97, and 1997-98 school years.
11

This hearing, conducted before a Hearing Officer in Greenville, lasted
five days and included the testimony of twelve witnesses. The Hear-ing
Officer thereafter concluded that the 1995-96 IEP and the Pro-posed
1996-97 IEP each were legally sufficient (i.e., they offered a
FAPE), and that the District was not required to formulate an IEP for
MM for the 1997-98 school year. He found, however, that the District
had improperly failed to offer ESY Services to MM for the Summer
of 1997, and he consequently ordered the District to pay $3,600 in
reimbursement to the Parents. DM & EM v. Sch. Dist., Due Process
Hearing Pursuant to IDEA, Hearing Officer Decision (June 24, 1998)
(the "Hearing Officer Decision").

The Parents thereafter appealed the Hearing Officer Decision to a
Reviewing Officer of the South Carolina Department of Education,
the second tier of the State's review process. 24 S.C. Code Ann. Regs.
§ 43-243. On October 2, 1998, the Reviewing Officer affirmed the
Hearing Officer Decision on the legal sufficiency of the 1995-96 IEP
and the Proposed 1996-97 IEP, and he concluded that no IEP was
required for the 1997-98 school year. On the issue of ESY Services,
however, the Reviewing Officer reversed the Hearing Officer, con-cluding
that the District was not required to offer ESY Services for
the Summer of 1997. MM v. Greenville County Sch. Dist., Decision
on Appeal from a Due Process Hearing (Oct. 2, 1998) ("Reviewing
Officer Decision").

On October 13, 1998, the Parents instituted this suit, seeking judi-cial
review of the administrative decisions and asserting that the Dis-trict
had inappropriately failed to offer MM an IEP for the three
school years after 1996-97. The parties thereafter filed cross-motions
for summary judgment, and the court awarded summary judgment to
the District for the school years 1997-98, 1998-99, and 1999-2000,
concluding that the Parents had failed to exhaust their administrative
remedies for each of those years. MM v. Sch. Dist., No. 3:98-2971-17,
Sealed Hearing Tr. at 37 (D.S.C. Feb. 22, 2000). The court then heard
evidence on the issue of whether the District should have offered ESY
Services to MM for the Summer of 1997. On August 17, 2000, it filed
its Opinion, upholding the administrative rulings that the Proposed
1996-97 IEP was sufficient, and sustaining the Reviewing Officer's
conclusion that the District was not obligated to offer ESY Services
for the Summer of 1997. The district court reversed the Reviewing
Officer on the 1995-96 IEP, however, concluding that it failed to pro-vide
MM with a FAPE. Opinion at 8. As a result of its rulings, the
court awarded MM approximately $5,500 in damages. On August 18,
2000, the court entered judgment for those damages, and it also
awarded MM nearly $2,000 in prejudgment interest. MM v. Sch. Dist.,
Sealed Judgment in a Civil Case, C/A No. 3:98-2971-17 (D.S.C. Aug.
18, 2000). On February 6, 2001, the court, by separate order, awarded
MM attorneys' fees and litigation expenses in the sum of over
$42,000, but it held that her expert witness fees were not recoverable.
MM v. Sch. Dist., Order, C/A No.: 3:98-2971-17 (D.S.C. Feb. 6,
2001).

The District has timely appealed the district court's ruling that the
1995-96 IEP failed to provide MM with a FAPE. The Parents have
cross-appealed, raising four issues. They contend that the court erred
in deciding that: (1) the Proposed 1996-97 IEP offered MM a FAPE;
(2) the Parents improperly failed to exhaust their administrative reme-dies
for the school years 1997-98, 1998-99, and 1999-2000; (3) the
District properly denied ESY Services to MM for the Summer of
1997; and (4) their expert witness fees were not recoverable costs
under the IDEA.

* * *

Click the case caption above for the full
text of the Court's opinion.

Pursuant to the foregoing, we reverse the district court on the 1995-
96 IEP. We affirm its rulings that the Proposed 1996-97 IEP provided
a FAPE, that summary judgment was appropriate for the school years
1997-98, 1998-99, and 1999-2000, and that the District was not
required to offer ESY Services to MM for the Summer of 1997. We
remand for such further proceedings, if any, that might be appropriate.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

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