Cheri Miller v. Charlotte-Mecklenburg Schools

64 F.4th 569

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 6, 2023
• Docket: 21-2003
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-2003

CHERI MILLER, as parent or guardian of minor JM,

Plaintiff - Appellant,

v.

CHARLOTTE-MECKLENBURG SCHOOLS BOARD OF EDUCATION,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:20-cv-00493-MOC-DCK)

Argued: January 25, 2023 Decided: April 6, 2023

Before RICHARDSON, QUATTLEBAUM, and HEYTENS, Circuit Judges.

Affirmed by published opinion. Judge Heytens wrote the opinion, in which Judge Richardson and Judge Quattlebaum joined.

ARGUED: Andrew Kiernan Cuddy, CUDDY LAW FIRM PLLC, Auburn, New York, for Appellant. Kristopher Lee Caudle, CAMPBELL SHATLEY, PLLC, Asheville, North Carolina, for Appellee. ON BRIEF: Christopher Z. Campbell, CAMPBELL SHATLEY, PLLC, Asheville, North Carolina, for Appellee. USCA4 Appeal: 21-2003 Doc: 31 Filed: 04/06/2023 Pg: 2 of 11

TOBY HEYTENS, Circuit Judge:

This appeal raises a host of issues under the Individuals with Disabilities Education

Act (IDEA). We deny the defendant school district’s motion to dismiss the appeal and

affirm the district court’s grant of summary judgment for the school district.

I.

The IDEA and its implementing regulations promise students with disabilities a

“free appropriate public education” tailored to their individual needs. 20 U.S.C. § 1400(d).

Only children with at least one qualifying disability are entitled to services. The statute

includes 10 categories of disability, including “autism spectrum disorder” and “specific

learning disabilit[y].” § 1401(3)(A). Federal law allows States to develop their own criteria

for assessing whether a child falls within a qualifying category. 34 C.F.R. § 300.111.

If a child has a qualifying disability, the IDEA requires the relevant educational

agency to create an individualized education program (IEP). See generally 20 U.S.C.

§ 1414(d). An IEP must lay out measurable annual goals designed to meet the child’s needs

and provide accommodations and services to aid in academic achievement and functional

performance. § 1414(d)(1)(A).

Parents have several procedural protections under the IDEA. A parent who believes

their child is eligible for services “may initiate a request for an initial evaluation to

determine” whether the child has a qualifying disability. 20 U.S.C. § 1414(a)(1)(B). “[I]f

the parent disagrees with an evaluation obtained by [a] public agency,” the “parent has the

right to an independent educational evaluation at public expense.” 34 C.F.R.

§ 300.502(b)(1).

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A parent who questions “the identification, evaluation, or educational placement of

[their] child” may also commence a formal adjudicative process. 20 U.S.C.

§ 1415(b)(6)(A). In North Carolina, a parent begins that process by filing a complaint with

the North Carolina Office of Administrative Hearings, which triggers “due process”

proceedings before an administrative law judge (ALJ). See N.C. Gen. Stat. § 115C-

109.6(a), (f); see also 20 U.S.C. § 1415(f), (h) (establishing rules for due process hearings).

At the time relevant to this case, a parent could appeal an ALJ’s final decision to a state

review officer. See N.C. Gen. Stat. § 115C-109.9 (repealed). Finally, a “party aggrieved

by the findings and decision” of the administrative process may “bring a civil action with

respect to the complaint” in state or federal court. 20 U.S.C. § 1415(i)(2)(A).

II.

This case involves a student named J.M. In July 2018, a psychologist diagnosed

J.M. with autism spectrum disorder. Based in part on that diagnosis, J.M.’s mother—

plaintiff Cheri Miller—asked the local school district to evaluate J.M. for an IEP.

The school district convened a team to evaluate J.M.’s eligibility in the autism

category and requested evaluations in several areas, including adaptive behavior, vision

and hearing, educational, speech-language, occupational therapy, and autism rating scales.

The team determined J.M. was not eligible for special education under the IDEA because

he did not demonstrate at least three of the four impairments required to qualify as a student

with autism needing special services as laid out in state policies. The school district thus

declined to provide J.M. with an IEP.

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Miller disagreed with the IEP team’s conclusion and asked the school district to pay

for additional evaluations in five areas it had considered before (adaptive behavior,

educational, speech-language, occupational therapy, and autism). Miller also requested

three new evaluations: psychological, assistive technology, and behavior/functional. The

school district approved funding for the first five areas but declined to pay for the new

evaluations.

Without waiting for another decision from the IEP team, Miller launched the

administrative review process by petitioning for a contested case hearing. Miller’s initial

filing alleged seven violations of the IDEA. At oral argument before the ALJ, Miller added

a claim of disenfranchisement of the parents. The ALJ granted the school district’s motion

for summary judgment on all seven counts and rejected Miller’s parental

disenfranchisement claim. On appeal, a state review officer affirmed the ALJ’s decision.

Miller then filed a complaint in federal district court, seeking seven forms of relief.

After discovery, the district court entered summary judgment for the school district, stating

it was “affirm[ing]” the decisions of the ALJ and state review officer. JA 65.

III.

We deny the school district’s motion to dismiss this appeal for lack of subject matter

jurisdiction. That motion relies on Johnson v. Charlotte-Mecklenburg Schools Board of

Education, 20 F.4th 835 (4th Cir. 2021), which issued after the district court’s decision.

According to the school district, Johnson establishes that Miller “seek[s] relief that is

impossible for this Court, or any federal court, to grant,” which makes this case moot.

ECF 18 at 8.

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The school district’s arguments are more appropriately directed to the district

court’s jurisdiction than our own. Whether the district court had original subject matter

jurisdiction and whether this Court has appellate jurisdiction are distinct questions. Under

28 U.S.C. § 1291, this Court has jurisdiction to review “all final decisions of the district

courts” within the Fourth Circuit, and here the district court issued a final decision in favor

of the school district by granting summary judgment. We thus have—at minimum—

appellate jurisdiction to review whether the district court had subject matter jurisdiction.

See, e.g., Ameur v. Gates, 759 F.3d 317, 322 (4th Cir. 2014). Indeed, in Johnson itself, this

Court did not dismiss for lack of appellate jurisdiction. Instead, we “affirm[ed] the district

court’s judgment,” which had “dismiss[ed] . . . the complaint as moot.” 20 F.4th at 838,

846 (emphasis added).

IV.

We turn next to the school district’s argument that Johnson establishes the district

court would lack jurisdiction to grant Miller’s requested relief. See Bender v. Williamsport

Area Sch. Dist., 475 U.S. 534, 541 (1986) (“every federal appellate court has a special

obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts

in a cause under review” (quotation marks omitted)). We conclude Johnson establishes the

district court would lack authority to grant some—but not all—of the relief sought in

Miller’s complaint.

In Johnson, this Court held that “[t]he limited, original jurisdiction of federal district

courts in IDEA cases does not extend to appellate review of state administrative IDEA

complaints.” 20 F.4th at 845. For that reason, “district courts cannot affirm, reverse, or

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vacate the decision of the state administrative agency,” nor can they “remand an IDEA case

to a state agency.” Id. at 845–46 (quotation marks omitted).

To be sure, Miller’s complaint sought various forms of relief Johnson holds a

district court may not order, including “annul[ling]” the decisions of the ALJ and the state

review board and “remand[ing] . . . this matter to a new ALJ for an evidentiary hearing.”

JA 20. But the complaint also sought at least one form of relief the district court could

grant. The complaint asked the district court to order “compensatory education services”

(id.), a form of relief Johnson specifically says is permitted. See Johnson, 20 F.4th at 840,

845. Indeed, Johnson emphasized that a plaintiff may “avoid dismissal” by “includ[ing] in

her federal complaint a request for compensatory education.” Id. at 845. Thus, even

assuming Johnson reflects a truly jurisdictional rule—rather than recognizing limits on a

district court’s remedial authority—that rule would not require dismissal of Miller’s entire

complaint. See, e.g., K.I. v. Durham Pub. Schs. Bd. of Educ., 54 F.4th 779, 791–92 (4th

Cir. 2022) (stressing the need to exercise “caution[] . . . about the overuse of the term

‘jurisdiction,’” including in the IDEA context).

At this point, however, we part company with Miller. On the merits, we see no basis

for disturbing the district court’s grant of summary judgment for the school district.

A.

We begin with a framing point. Miller relies heavily on various procedural

violations she claims were committed during the state administrative proceedings. As

earlier explained, however, federal courts do not superintend or review state administrative

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proceedings under the IDEA, so any procedural violations that may have occurred during

those proceedings were not for the district court to review. Instead, a federal court “offers

its own independent de novo review and conclusion” about whether the defendant has

violated the IDEA. Kirkpatrick v. Lenoir Cnty. Bd. of Educ., 216 F.3d 380, 387 (4th Cir.

2000).

That is not to say, of course, that the previous administrative proceedings are

irrelevant when a federal court adjudicates “an original civil action” under the IDEA.

Johnson, 20 F.4th at 844. To the contrary, despite being “empowered to receive and

consider evidence outside the administrative record,” district courts must give “due weight

to the underlying administrative proceedings.” Id. (quotation marks omitted). When

conducting its own “modified de novo review” (id.), a district court may certainly consider

whether any procedural irregularities undermine the “deference” that would otherwise be

due to “the findings of the administrative hearing officer.” Kirkpatrick, 216 F.3d at 385.

But, as described below, beyond making a bare allegation that the ALJ issued an

incompetent decision, Miller does not explain how any of the alleged procedural defects

she identified corrupted any administrative findings.

B.

We see no error in the district court’s conclusion that the school district did not

violate the IDEA’s “child find” obligation. That obligation requires States to establish

“policies and procedures to ensure” that “[a]ll children with disabilities residing in the State

. . . are identified, located, and evaluated.” 20 U.S.C. § 1412(a) & (a)(3)(A). States must

also “develop[] and implement[]” “a practical method . . . to determine which children

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with disabilities are currently receiving needed special education and related services.”

§ 1412(a)(3)(A).

But the child find obligation does not require schools to provide an IEP to any

student whose parent believes their child is entitled to one. Rather, when a school district

has convened an IEP team and comprehensively evaluated a student’s eligibility for

services, and where the State maintains and follows detailed policies to evaluate children

needing such services, the child find obligation has been satisfied. See, e.g., Durbrow v.

Cobb Cnty. Sch. Dist., 887 F.3d 1182, 1196 (11th Cir. 2018) (school district fails to satisfy

child find obligation when it “overlook[s] clear signs of disability” or “negligently fail[s]

to order testing” but satisfies the child find obligation “by initiating the IDEA-eligibility

process”). Miller’s disagreement with the outcome of J.M.’s evaluation does not amount

to a failure to conduct an evaluation in the first instance.

C.

A stronger argument may be that the school district’s eligibility determination was

wrong and J.M. was entitled to an IEP. But Miller’s opening brief develops no argument

on that point beyond asserting that J.M. had “deficits,” a “lack of meaningful progress,”

and “problems with focus and inattentiveness.” Miller Br. 38–39. These may be

characteristics of a student underperforming by a school’s standards, but they are not, by

themselves, necessarily indicative of a child with a qualifying disability under the then-

existing North Carolina policies. The IDEA does not cover every student who is struggling

in school; rather, its protections are limited to a student who has a qualifying disability and

who, for that reason, “needs special education and related services.” 20 U.S.C.

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§ 1401(3)(A). But a student does not “need” such services if the student is already getting

what would qualify as a free appropriate public education without them. And Miller’s terse

arguments fail to create a genuine dispute that her son “needed” an IEP, particularly given

the ”deference” due the administrative hearing officer on this point. Kirkpatrick, 216 F.3d

at 385.

We also reject Miller’s claim that the IEP team acted wrongfully in failing to follow

the recommendations of private evaluators in determining J.M.’s eligibility for an IEP. The

IDEA does not require school districts to defer to the opinions of private evaluations

procured by a parent. To the contrary, the IDEA instructs school districts to rely on diverse

tools and information sources in making an eligibility assessment. 20 U.S.C.

§ 1414(b)(2)(A).

D.

Miller’s remaining arguments are procedural. None of them requires us to disturb

the district court’s judgment.

First, Miller correctly notes that the school district did not complete J.M.’s initial

evaluation within the required period. As the school district acknowledges, North Carolina

policies implementing the IDEA instruct that such evaluations must be completed within

90 days of receiving a referral. Yet here the school district did not finish its initial

evaluation until 110 days after Miller requested it.

This Court has held, however, that a bare procedural violation of the IDEA does not

warrant a remedy unless a plaintiff shows the violation resulted in the student being denied

a free appropriate public education. See R.F. v. Cecil Cnty. Pub. Schs., 919 F.3d 237, 251–

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52 (4th Cir. 2019). Miller has not met that burden. For starters, Miller failed to create a

genuine dispute of material fact about whether J.M. was entitled to an IEP. See Part V(C),

supra. Because J.M. was not shown to be entitled to services under the IDEA, he could not

have been denied a free appropriate public education within the meaning of the statute.

What is more, even if J.M. were entitled to services under the IDEA, Miller offers

nothing but conclusory assertions that the school district’s 20-day delay in completing the

initial evaluation prevented J.M. from receiving a free appropriate public education. Here,

as elsewhere, “a party’s self-serving opinion cannot, absent objective corroboration, defeat

summary judgment.” CTB, Inc. v. Hog Slat, Inc., 954 F.3d 647, 658 (4th Cir. 2020)

(alterations and quotation marks omitted).

Second, Miller argues the school district violated the IDEA by failing to assess J.M.

for eligibility under the specific learning disability category. But Miller identifies no

evidence the evaluations the school district conducted for autism would not also have

allowed the school district to find J.M. eligible as a student with a specific learning

disability. Indeed, based on the evaluations the school district did conduct, the IEP team

was able to conclude J.M. would not have met the school district’s criteria for an IEP under

a specific learning disability either.

Finally, Miller challenges the school district’s refusal to fund evaluations in

“assistive technology” and “functional behavior” and its failure to initiate a due process

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hearing to defend its decision as required by 34 C.F.R. § 300.502(b). * But, here again, even

assuming the school district committed a procedural violation, no remedy is warranted

unless the error resulted in J.M. being denied a free appropriate public education. See R.F.,

919 F.3d at 251–52. And because Miller’s opening brief presents no argument that either

of these alleged violations resulted in J.M. being denied any substantive rights under the

IDEA, any such claim is now forfeited. See, e.g., Grayson O Co. v. Agadir Int'l LLC,

856 F.3d 307, 316 (4th Cir. 2017).

* * *

We deny the school district’s motion to dismiss the appeal and hold that the district

court was not required to dismiss Miller’s complaint for lack of jurisdiction. We affirm the

district court’s grant of summary judgment for the school district.

SO ORDERED

* The school district initially declined to pay for an assessment in a third area as well. That issue is now moot because the school district later provided the requested assessment.