Blind Deference

 supreme court

Introduction: *

In the Rowley decision of 1982, the Supreme Court wrote,

Thus the provision that a reviewing court base its decision on the “preponderance of the evidence” is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.Board of Ed v Rowley, 1982

deference

This was widely interpreted by some to mean that courts were to give deference to school educators in matters of policy and methodology.

The Standard Revisited by the Circuit (and lower) Courts *

However,  that was never the case.    For one thing, the Supreme Court’s dicta was aimed at the courts, not at hearing officers  or state hearing review officers.  States by law have ultimate authority for ensuring that public schools comply with the IDEA, so subsequent courts have included hearing officers and state hearing review officers under the umbrella of “school authorities.”  Those administrative law judges are thereby accorded the same deference that would be accorded any school authority, while their authority to weigh the methodology and policy arguments made by the parents’ educational experts against those of the school itself is also recognized.  (Just as a sidenote, while the Supreme Court put the burden of proof on the party challenging the status quo, most usually the parent, some states require the schools to defend their IEPs, no matter who brings the suit.   Check your state laws.)

As the Ninth Circuit observed in Amanda C. v Clark County in 2002,

Because Congress intended states to have the primary responsibility of formulating each individual child’s education, we must defer to their “specialized knowledge and experience” by giving “due weight” to the decisions of the states’ administrative bodies. Id. at 206-08.

While the decisions of hearing officers  (a.k.a. administrative law judges in some states) and state were entitled to deference, that did not mean blind deference either.  There have been many examples both before and since the Amanda C. decision illustrating that the “rare exceptions” are nowhere near as rare as one might expect..

On July 28, 1988, the Third Circuit in Polk v. Susquehanna Intermediate School Unit 16 (IU), Third Circuit , 1988 wrote:

 Finally, we do not read the Supreme Court’s salutary warnings against interference with educational methodology as an invitation to abdicate our obligation to enforce the statutory provisions that ensure a free and appropriate education  In this decision, the court also held an opinion universally endorsed by other circuits since, that is,  “We hold that the EHA calls for more than a trivial educational benefit.”

Taken together, all of those principles have had significant implications for much of spedlaw litigation since.   For example, in the late eighties and nineties, schools were losing the majority of their methdology cases regarding autism to parents seeking tuition reimbursement for unilateral private school placements.  When schools were unable to show evidence that their interventions were time tested and proven to provide children with autism a resonable expectation of non trivial benefit, and parent advocates could provide abundant data showing their choice was proven to help autistic children — the schools lost.  Amanda C. above was just one of many.   Once schools realized that they needed to provide research based interventions (and this was long before NCLB or the IDEA 2004) and, preferably, data showing that the intervention had provided meaningful benefit for that child, the odds began to shift in their favor.

T.B. v. Warwick School Committee, First Circuit, March 18, 2004. In this case, the hearing officer had ruled in favor of the parents.   However, both the district and circuit court reversed.  The reason here was that the Hearing Officer had rejected the district’s methodology based on alleged procedural errors, not on substance, and the district court found that the facts did not support the that finding.    Deference was given . . . but in this case to the school system, not the Hearing Officer.  What this writer found interesting was that the district court did not find the hearing officer’s findings of credibility credible . . .which in Amanda C. above constituted grounds to overturn the district court’s opinion.  But in this case, the district court judge found that the grounds for rejecting the district expert’s testimony were flawed and documented the reasons  for finding them flawed.  Which once again shows that even when you think  you’ve got a bedrock principle supporting your position, there are no slam dunks in special education litigation.

(Also see Wrightslaw’s summary of case kaw regarding  FAPE, ABA, and Lovass and and also his Summary of Autism Case Law ).

The Amanda C.  decision, which also rejected a de minimus standard of progress for establishing FAPE, was followed by a district court decision in 1991 that also addressed deference.

In Johnson v. Lancaster-Lebanon Intermediate Unit 16 (IU), District Court, 1991, case, the judge wrote, in an early rephrasing of the principle above, that

Like Judge Becker, this court does not read Rowley to mean that it should accept the IU’s opinion out of blind deference to their expertise in special education.

They also cited a First Circuit court case providing the following guidance to district courts:

The First Circuit recently stated that a district court

. . . must . . . be deferential [to the administrative agency], recognizing `the expertise of the administrative agency, . . . consider[ing] the [agency’s] findings carefully and endeavor[ing] to respond to the hearing officer’s resolution of each material issue.’ (Quoting Burlington, 736 F.2d at 791-92). Jurists are not trained, practicing educators. Thus, the statutory scheme binds trial courts to give `due weight’ to the state agency’s decision in order to prevent judges from `imposing their views of preferable educational methods upon the States.’

Ultimately, this case was about a child who was deaf was decided based on whether or not the child’s IEP was reasonably calculated for him to receive more than non trivial benefit.  The decision that it was NOT appropriate was based, not on the district’s choice of methodology, but because that methodology and the child’s IEP were not tailored to his individual needs.

In Amanda C (above) the State Hearing Review Officer (SHRO)’s decision was overturned in favor of the Hearing Officer (H.O.)’s decision in part because of the weight the state reviewer gave to the credibility of one of the key witnesses.  He had held that the testimony of one of the witnesses was not credible, whereas the H.O. had found that same witness very credible.  The court held that on that point, the H.O.’s opinion was entitled to deference.   This decision was not the first time a circuit court had opined on this issue, and the Ninth  Circuit wrote:

We also agree with our colleagues in the Second, Third, Fourth, and Tenth Circuits that when an SRO overturns the credibility determinations of an HO, due weight to the decision of the SRO is not warranted. The Fourth Circuit has held, for example, that in situations where two state administrative decisions differ only with respect to the credibility of a witness, the HO is “entitled to be considered prima facie correct.” Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 105 (4th Cir. 1992). In Doyle, the SRO reversed the HO’s decision on the grounds that a particular witness’s testimony was not credible even though the SRO had neither seen nor heard the witness testify. Id. at 104.

eligibility

Am I Eligible? *

Rowley did not explicitly address eligibility issues, because it was obvious to everyone that being deaf adversely affected Amy’s educational performance.  Decisions regarding the amount of deference to be given regarding eligibility decisions appear to have been split.  In eligibility disputes,  the Ninth concluded that deference must be given to the SHRO, because

This standard comports with general principles of administrative law which give deference to the unique knowledge and experience of state agencies while recognizing that a HO who receives live testimony is in the best position to determine issues of credibility.

split

A Split Decision *

However, not all the circuits have agreed with the Ninth’s position on eligibility decisions. In a split with the Ninth, in the Muller v Islip, Second Circuit, May 22, 1998decision, the court acknowledged the direction given in the Rowley decision above, but then went on to say,

Here, however, the district court was not faced with the typical question raised in cases brought under the IDEA, that is, whether the particular IEP adopted by the school district for the student satisfied the IDEA’s requirement that the disabled child receive a “free appropriate public education.”   See 20 U.S.C. § 1400(c).   Rather, the issue before the district court was whether the school district properly classified Treena as an individual with or without a disability in the first instance.   Treena was not provided with an IEP pursuant to the IDEA because the CSE determined that she was not disabled as that term is defined under the IDEA. The dispute, therefore, is not whether the CSE developed an IEP for Treena that was “reasonably calculated to enable [her] to receive educational benefits,” Rowley, 458 U.S. at 207, 102 S.Ct. 3034 but rather, whether she satisfied the definition of “emotionally disturbed” set forth in the relevant state and federal regulations.

Resolution of this issue involves interpretation of the IDEA and the definition of “emotional disturbance” under the applicable federal and New York State regulations.   In this matter of statutory interpretation, the district court was as well-positioned as the state administrative officials to determine Treena’s eligibility.

So, in short, depending on where you live, courts may or may give any deference whatsoever to an H.O. or S.H.R.O. decision regarding eligibility determinations.

More recently, in R.L. v. Miami Dade School District, Eleventh Circuit, July 2, 2014, the court opined,

But the ALJ is not entitled to blind deference. The District Court is free to accept the ALJ’s conclusions that are supported by the record and reject those that are not. Loren F., 349 F.3d at 1314. At the same time, when the District Court rejects the ALJ’s conclusions, it is “obliged to explain why.” Id. at 1314 n.5 (quotation mark omitted).

(Author’s Note:  An ALJ or Administrative Law Judge is just another state’s name for a Hearing Officer.)

So . . . putting that in plain English . . . district courts are not required to give an ALJ any deference whatsoever if they determine that his or her conclusions weren’t supported by the record, as long as the judge gives a reason for the disagreement.   Or putting it still another way, if on the other hand, the court concludes that the ALJ or H.O. decision was well-reasoned, then of course the judge would give deference to that administrative decision.  In short, deference is required when the judge agrees with the state review officer, but if the judge doesn’t agree, it’s Katy, bar the door for one party or the other.

eligibiity 2

A Court Considers ED Eligibility *

For an example of what happens when a judge does agree, see Springer v. Fairfax, Fourth Circuit, January 1998.   The Fourth began its discussion  by citing the quote from the Supreme Court decision in Rowley.  Then it went on to say it  agreed with the state review officer’s decision.  But then, instead of just saying that it was deferring to the state review officer’s decision, it went for fourteen pages explaining why it agreed.  Which creates the impression that they deferred because they agreed with the SRO, not because they felt obliged to defer if they had not.  Also,  different facts may lead to different outcomes, even when the principles remain the same.

differentfacts

Different Facts, Same Principle *

Another eligiblity case about emotional disability.  Tennessee is within the geographic boundaries of the Sixth Circuit.  In J.M. and H.M v. Weakley, District Court,  March 13, 2015,  the judge was tasked with resolving the same question that the Fourth addressed . . .whether or not a student qualified as emotionally disabled under the IDEA.  And that judge provided exactly the same quote from Raleigh with which we introduced this section and that was quoted by the Fourth Circuit in Springer.  The court even cited Springer and called it “informative” with respect to its discussion of social maladjustment.  It then went on to cite the Sixth Circuit standard which the judge reported as “N.W. ex rel. J.W. v. Boone Cnty. Bd. of Educ.763 F.3d 611, 614 (6th Cir. 2014). Under this standard, the court “may not simply adopt the state administrative findings without an independent re-examination of the evidence, nor may [it] substitute [its] own notions of sound educational policy for those of the school authorities which they review.” Woods v. Northport Pub. Sch., 487 F. App’x 968, 973 (6th Cir. 2012) (internal quotation marks omitted).”

In this case, however the court disagreed with the administrative decision, reversed it, and decided that the child was eligible for services. In justifying the obvious limited deference accorded the reviewer officer’s decision,  the district judge added this footnote, which, paraphrased, basically accused the judge as having cherry picked his facts :  “It is the Court’s view that Judge Summers’s opinion, in light of its factual selectivity and inadequate legal analysis, is entitled to limited deference. See Forest Grove Sch. Dist. v. Student, Civ. No. 3:12-cv-01837-AC, 2014 WL 2592654, at *12 (D. Or. June 9, 2014) (Because the ALJ’s opinion is factually selective to the detriment of an accurate factual record and inadequately develops the applicable legal standards, the court affords the ALJ’s opinion little deference.“).

What We’ve Seen So Far *

So far, we’ve found that administrative decisions, even at the state level, may not be entitled to deference if the case is about eligibility, or if the judge finds that the state review officer’s  conclusions were not well-reasoned.  A district’s methodology may be dismissed if the administrative review concludes with a finding that the school’s data do not support its contention that the methodology they proposed was reasonably calculated to provide the child in question with FAPE.   District courts usually may not disregard an administrative decision just because the district judge doesn’t agree with the ALJ or HO regarding the credibility of the witnessed.  However even that principle is not written in stone if the reasons appear inadequate.  And if the court finds that the hearing officer or review officer cherry picked his or her facts, deference may be denied altogether.

The courts are in no way hampered by the Supreme Court warning regarding policy or methodology when the issues before it are procedural, that is, the parents are contending that the procedural flaws in the district’s adherence to those procedures in the law should be regarded as fatal in and of themselves to the district’s case.  While the IDEA’s definition of FAPE has always been vague, it is quite specific in terms  of evaluation, IEP meetings, and with respect to procedures for the resolution of disputes over a child’s IEP.  Disputes over rules and regulations are meat and potatoes to the courts.

 

Other Targets *

It is not uncommon for attorneys, seeing that they have missed one target, to unload a quiver full of arrows at multiple targets, in the hopes of hitting just one.   So even when a school is confident that its methodology or policies are defensible and that they have made no fatal procedural errors (e.g., excluding a parent from the IEP team meeting),  it also needs to be sure there are no other potential legal problems.   That can be ascertained in part but not entirely from reading the record; discussions with staff and parents to uncover potentially damaging facts before they become part of a quasi judicial record is also important.   For example, in the preface to the IDEA 2006 FR,  OSERS reiterated a long standing warning that In all cases, placement decisions must be individually determined on the basis of each child’s abilities and needs and each child’s IEP, and not solely on factors such as category of disability, severity of disability, availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience.  p. 45688, 2006 FR  Establishing any one of those as unduly influencing a district’s decisions could be fatal, e.g., if the district had a policy that limited ABA therapy to a maximum number of hours per week regardless of the child’s needs.

The point here is that not only is a defense based on an expectation of due deference overrated to a considerable degree; there really are a multiplicity of other potential parent attorney  targets that do not rely upon overcoming  the due deference principle at all.  In fact, it would be a rare case indeed where an attorney relied upon only one argument to persuade a judge in his or her favor.