Civil Rights — IDEA Claims Not Exhausted at State Level

E.L. v. Chapel Hill-Carrboro Board of Educ. (Lawyers Weekly No. 001-201-14, 20 pp.) (Diaz, J.) No. 13-2330, Dec. 3, 2014; USDC at Greensboro, N.C. (Schroeder, J.) 4^th Cir.

Holding: Parents challenging a school’s Individualized Education Plan for their nine-year-old autistic daughter did not exhaust their administrative remedies under the Individuals with Disabilities Education Act because they did not challenge the IEP as a whole before the state review officer; on a first-impression issue, the 4^th Circuit says plaintiff was required to exhaust all her claims through the state’s two-tiered review.

An administrative law judge determined the school board violated the IDEA by failing to provide the child with required speech therapy; in all other respects, the ALJ found the IEP appropriate. On the school board’s appeal, a state review officer reversed the ALJ’s conclusion regarding speech therapy, determining that the school board did not violate the IDEA. In her suit under the IDEA, the student for the first time appealed the ALJ’s conclusion that, except for its failure to provide speech therapy for certain time periods, the school board did not violate the IDEA. The district court concluded the speech therapy issue was the only merits issue before the court, as plaintiffs failed to exhaust administrative remedies. The court affirmed the review officer’s decision and concluded the school board provided the student with appropriate speech therapy.

Plaintiff offers three arguments on appeal: 1) the IDEA does not require her to seek state-level review in order to exhaust her administrative remedies; 2) she did, nonetheless, seek state-level review, and 3) even if she did not, exceptions to the exhaustion requirement apply.

Whether the IDEA allows states to implement a two-tiered review process, when both tiers are administered at the state level, is an issue of first impression in this circuit. Only a handful of federal courts have considered IDEA challenges to this procedure, and the majority has found no fault in it.

The IDEA’s exhaustion requirement allows states to use their special expertise to resolve educational disputes. North Carolina’s measured decision to add an additional level of review before the State Board of Education only enhances procedural protections for disabled students.

In her second argument, plaintiff contends that “over 100 pages of written argument seeking reversal of the ALJ’s erroneous findings” constitutes an appeal. That is not correct. Nothing in these documents identified the findings and decisions by which the student was aggrieved and on which she sought review. Indeed, plaintiff’s filings expressly disavowed her ability to appeal the ALJ’s decision. Although the review officer identified all the issues the parties raised before the ALJ, the review officer noted plaintiff chose not to appeal a decision that was “very unfavorable” to her on most issues. The review officer’s cursory alternative finding of “no significant error” in the ALJ’s decisions unfavorable to plaintiff did not satisfy plaintiff’s obligation to exhaust her administrative remedies.

Nor do any exceptions to exhaustion apply, for instance, where the administrative process would be futile, parents have not received proper notice of their administrative rights, or exhaustion would be harmful to a disabled child.

Turning to plaintiff’s sole claim on the merits, the court upholds the district court decision for defendant. The record supports the finding that the speech therapy was provided. Plaintiff’s IEP never called for isolated, one-to-one instruction; rather, it explicitly stated that therapy would be provided in an embedded, inclusive model. Although interns assisted with the therapy, they were supervised by the speech therapist, who was present during most of the therapy sessions. The fact that the speech therapist shredded her personal notes (as she testified she did with all her notes at the end of every school year) has little bearing on whether plaintiff received appropriate therapy.

We affirm the district court determination that plaintiff received a free appropriate public education.