Wake Forest Law Review

Overview

M.L. was born in 2003 with Down Syndrome and lives with his family in an Orthodox Jewish community in Maryland.[1]  M.L’s faith governs almost every aspect of his life, including how he dresses, eats, and works.[2]  In 2009, M.L. enrolled in a private special education program that was tailored to his religious needs.[3]  In 2012, M.L.’s parents met with the Montgomery County Board of Education (“MCPS”) to create an individualized education program (“IEP”) as part of his public school education, but his parents rejected the IEP, complaining that it did not offer instruction on preparing for life in an Orthodox Jewish community.[4]  MCPS replied that an IEP meeting the standards of M.L.’s parents would be too specific, too religious, and not part of the public school curriculum.[5]

M.L. filed a due process claim against the School Board with the Maryland Office of Administrative Hearings, arguing a violation of the Individuals with Disabilities Education Act (“IDEA”).[6]  The administrative law judge (“ALJ”) ruled that the IDEA does not require a public school to offer specialized religious instruction in an IEP because the IDEA only requires “access [to] the general curriculum.”[7]  M.L. then filed a claim in the United States District Court for the District of Maryland where summary judgment was granted to the School Board. M.L. appealed to the Fourth Circuit Court of Appeals.[8]

Arguments for Tailoring an IEP to Religious Needs

The National Jewish Commission on Law and Public Affairs (“COLPA”) argued in its amicus brief that directing certain IDEA benefits toward “the non-practice of religion is coercive.”[9]  In support of their argument, COLPA cited the Supreme Court’s firmly established precedent that the “Free Exercise Clause bars government action aimed at suppressing religious belief or practice.”[10]  While the Court previously noted “a law that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability,”[11] the Court recently held that a policy that makes practicing one’s religion more expensive “imposes a burden on the exercise of religion.”[12]  Thus, COLPA raised a valid question as to whether the IEP, as written, violated the Free Exercise Clause.

M.L. argued that “a student’s religious, cultural, or other individual circumstances are relevant to the fashioning of an appropriate special education program for that student.”[13]  Specifically, the appellants observed that, because M.L. was unable to distinguish home and school settings, his religious background is part of his “unique needs.”[14]  Thus, the IEP should have accounted for “[l]earning Hebrew, recognizing kosher signs and impurities in foods, and telling time according to [M.L.’s] dietary restrictions.”[15]

Arguments against Tailoring an IEP to Religious Needs

In brief, the School Board suggested that pursuing the goals and objectives that M.L. requested would itself violate the Establishment Clause due to their religious nature.[16]  However, despite both parties’ Establishment Clause arguments, both the ALJ and the district court quickly dismissed any Establishment Clause considerations by resolving the relevant issues using only the IDEA and Maryland state law.  The School Board argued that neither the IDEA nor Maryland state law requires it to provide M.L. with IEP goals and objectives that incorporate his religious practices.[17]

M.L. also asserted that requests that his religious practices be developed through his IEP were simply requests for accommodation of his religious practices.  In response, the School Board countered by asserting that M.L. was clearly seeking “affirmative IEP goals and objectives” that were designed to incorporate M.L.’s religion into his IEP.  The School Board’s counterargument effectively diverted the court’s analysis of M.L.’s claims from a focus on accommodation toward a focus on affirmative IEP goals.[18]  In brief, the School Board reminded the court that, religious concerns aside, M.L. previously and consistently agreed that the IEP was otherwise adequate to meet M.L.’s educational needs.[19]

Conclusion

The Fourth Circuit Court of Appeals held that the appellants had been mistaken in reading “other education needs” as “all other educational needs.”  The court observed that the IDEA is not so comprehensive—not every limitation a disabled student may possess needs to be addressed.[20]  The court further elaborated that the IDEA does not ensure a specific scholastic result and therefore does not address a disabled student’s ability to practice his chosen religion.[21]  Relying on the reasoning in Rowley, the court emphasized the function of the IDEA, not as a guarantee for providing certain levels of education to disabled students, but as a way to “open the door of public education to handicapped children on appropriate terms.”[22]  Similarly, the court emphasized that Free Appropriate Public Education (“FAPE”) requires only that a child receives an educational benefit that is slightly more than trivial from the special instruction and services provided.[23]  The court declined to address COLPA’s Free Exercise Clause arguments because the appellants did not raise a Free Exercise argument in their opening brief.[24]

By finding for the School Board in this case, the court made clear that the IDEA does not require a school board to provide a religious or cultural curriculum to a disabled student.[25]  Under the IDEA, disable students do not need a religious curriculum in order to have equal access to education.[26]

By Mike Garrigan & Mary Kate Gladstone

_______________

[1] M.L. by Leiman v. Smith, 867 F.3d 487, 490 (4th Cir. 2017).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id. at 492.

[8] Id.

[9] Brief for National Jewish Commission on Law and Public Affairs as Amicus Curiae Supporting Appellants at 11, M.L. by Leiman v. Smith, 867 F.3d 487 (4th Cir. 2017).

[10] See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 559 (1993).

[11] See Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990).

[12] See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2770 (2014).

[13] Brief for Appellants at 19, M.L. by Leiman v. Smith, 867 F.3d 487 (4th Cir. 2017).

[14] Id.

[15] Id. at 34.

[16] Brief for Appellees at 14, M.L. by Leiman v. Smith, 867 F.3d 487 (4th Cir. 2017).

[17] Id.

[18] Brief of Appellants, supra note 13, at 14–15.

[19] Id. at 21.

[20] M.L. v. Smith, 867 F.3d 487, 498–99 (4th Cir. 2017).

[21] Id. at 499.

[22] Id. at 498.

[23] Id. at 495.

[24] Id. at 499

[25] Id. at 499.

[26] Id.

By Sarah Saint

On April 8, 2016, the Fourth Circuit released its published opinion in the civil case of S.B. v. Board of Education of Harford. S.B., a student with disabilities who attend Aberdeen High School in Harford County, Maryland, by and through his mother, A.L., sued the Harford County Board of Education (the “Board”), alleging that the Board violated § 504 of the Rehabilitation Act by allowing other students to bully and harass S.B. because of his disability. S.B.’s stepfather, T.L., who is a teacher and athletic director at Aberdeen High School, sued in his own right, alleging that the Board violated § 504 by retaliating against him for advocating for S.B. The Fourth Circuit affirmed the district court’s grant of summary judgment to the Board, ruling that neither S.B. nor T.L. provided evidence for their claims.

Facts Presented in the Light Most Favorable to S.B. and T.L.

S.B.’s disabilities included Attention Deficit Hyperactivity Disorder, weak visual-spatial ability, and a nonverbal learning disability. During high school, S.B.’s classmates severely bullied him, insulting him with homophobic slurs, sexually harassing him, physically threatening him, and calling him racist names. S.B.’s parents reported these incidents to the school, which investigated each incident. The school regularly disciplined the offenders and assigned a paraeducator to follow S.B. during school to monitor his safety. Nevertheless, this was not to A.L. and T.L.’s liking, and S.B.’s parents eventually began publicly criticizing the school’s efforts to protect S.B in November 2012.

Around the same time, the school denied T.L. the opportunity to complete a practicum for his master’s degree program at Aberdeen High School. Then, in the spring 2013, the school did not give T.L. tickets to a scholarship banquet for student-athletes and informed him that he would not be teaching the summer physical education classes that year, though he had taught it the previous years.

In April 2013, A.L. and T.L. filed the original complaint. In October 2013, T.L. raised concerns at a parents’ forum about the lack of harassment reporting forms available at the high school.

Despite the bullying, S.B. graduated Aberdeen High School on time in June 2014. He consistently achieved passing grades throughout high school and began taking classes at Harford Community College after graduation.

Procedural History

In June 2013, S.B. and his parents amended their complaints to allege violations of § 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq.; Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; and 42 U.S.C. §§ 1983 and 1985. The claims were premised on the fact that the defendants had discriminated against S.B. on his disability by failing to prevent student-on-student bullying and harassment and had retaliated against S.B.’s parents when they advocated for S.B.

In September 2013, the district court dismissed all the individual defendants and S.B.’s claims under §§ 1983 and 1985. A.L. also voluntarily dismissed her retaliation claim. Before the district court at trial and before the Fourth Circuit on appeal were S.B.’s claim of disability-based discrimination in violation of § 504 and the ADA and T.L.’s claim of retaliation under § 504.

After substantial discovery, in April 2015, the district court granted summary judgment to the Board because there was not evidence to support S.B.’s and T.L.’s claims. For one, there was no evidence in the record that the Board had acted with bad faith, gross misjudgment or deliberate indifference in responding to the harassment. Additionally, there was no evidence of a causal link between T.L. advocating for S.B. and any action taken by the Board.

Standard of Review

The Fourth Circuit reviewed the district court’s decision de novo. Summary judgment is proper when there is no genuine dispute to any material fact and the movant is entitled to a judgment as a matter of law. Fact are viewed and inferences are drawn in the light most favorable to the non-moving party, here S.B. and T.L. If no reasonably jury could find for the non-moving party, the appellate court will affirm a grant for a motion for summary judgment.

Fourth Circuit Adopted Davis Standard of Deliberate Indifference for § 504 Claims

Section 504 provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). S.B. claimed that he was subjected to years of sustained and pervasive student-on-student harassment and bullying based on his disability. By the Board failing to prevent the harassment, S.B. alleged that the Board engaged in disability-based discrimination prohibited by § 504.

In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court addressed a similar claim under Title IX, which provides for similar protections as § 504 but for gender instead of disability. The Court held in Davis that a school could only be liable for student-on-student harassment when it was “deliberately indifferent” to known acts of such harassment. A negligent failure to learn of or react to student-on-student harassment does not subject a school to liability–only “deliberate indifference to known acts of harassment.” Id. at 642–43.

The Fourth Circuit, in alignment with most other federal courts who have reached this issue, decided that the same reasoning the Davis Court applied to Title IX also applies to § 504 claims arising from student-on-student harassment or bullying because of the statutory parallels. Schools must be on notice of the student-on-student harassment and act with deliberate indifference in order to be held liable for it.

The Fourth Circuit rejected S.B.’s argument that the Fourth Circuit had already adopted a different standard for § 504 liability in 1998: that a school can be liable if the school acted with bad faith or gross misjudgment. The 1998 case that S.B. cited in support of this theory–Sellers v. School Board of City of Manassas, 141 F.3d 524 (4th Cir. 1998)–did not involve school liability for student-on-student misconduct but a school’s own direct conduct. When a school allegedly violates § 504 through it’s own conduct, such as failing to provide a free appropriate public education, the bad faith or gross misjudgment standard applies. However, Sellers said nothing about school liability for student-on-student harassment. Accordingly, the Fourth Circuit found that it is guided by Davis and not Sellers.

S.B.’s Claim of Disability Discrimination in Violation of § 504

To succeed on a § 504 student-on-student harassment claim, a plaintiff must show that he was an individual with a disability; that he was harassed by other students because of his disability; that the disability-based harassment was sufficiently severe, pervasive, and objective offensive that it effectively deprived him of access to educational benefits and opportunities at school; and that the school knew about the disability-based student-on-student harassment and was deliberately indifferent to it.

The Fourth Circuit agreed with the district court that S.B. could not establish that the student-on-student harassment was based on his disability. It was more likely that S.B. was bullied because of his race, which is not actionable conduct under § 504. Further, the Fourth Circuit agreed with the district court that S.B. and his parents never informed the Board that he was being bullied because of his disability, only that he was being bullied. S.B. alleged that the school should have known that the harassment was based on his disability, but the Supreme Court expressly rejected such a standard in Davis.

Finally, the Fourth Circuit agreed with the district court that the Board was not deliberately indifferent under Davis, which is a high standard that requires an official decision by the school no to remedy the student-on-student harassment. The response to the harassment must be clearly unreasonable in light of the known circumstances. Because the school investigated every single incident of harassment of which it was informed, disciplined the offenders, and assigned a paraeducator to accompany S.B., the school acted reasonably. School administrators are entitled to substantial deference when they execute a disciplinary response to student-on-student bullying or harassment, so requests from parents for stronger discipline is not enough to make the school’s chosen actions clearly unreasonable. The Fourth Circuit decided that no reasonable juror could find that the school was less than fully responsive to S.B.’s situation.

T.L.’s Claim of Retaliation in Violation of § 504

Because there was no direct evidence of retaliation, T.L. had to use the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), burden-shifting framework to make a prima facie case of retaliation by showing (1) that he engaged in protected activity, (2) that the Board took an adverse action against him, and (3) that the adverse action was causally connected to his protected activity. The Board did not dispute that T.L. engaged in a protected activity, advocating for S.B., a student with disabilities. The Fourth Circuit found that the Board’s decision not to rehire T.L. to teach the summer physical education class was a materially adverse action. Nevertheless, the Fourth Circuit agreed with the district court that no reasonable jury could find the necessary causal connection between the Board’s adverse action and T.L.’s protected activity. The Board proffered the legitimate, non-retaliatory reason for its decision that they needed one male and one female physical education teacher for the summer, and that another male had more experience than T.L. T.L. attempted to rely on the temporal proximity between the reassignment and the protected activity to show the causal connection, but timing alone cannot defeat summary judgment once an employer offered a legitimate, non-retaliatory reason.

Conclusion

Because the Fourth Circuit agreed with the district court that no reasonable juror could find that the school was deliberately indifferent to the student-on-student harassment of S.B. and no reasonable juror could find that there was a causal connection between T.L.’s protected activity and the adverse action against him, the Fourth Circuit affirmed the judgment of the district court granting the Board’s motion for summary judgment.

By Taylor Ey

Today the Fourth Circuit published its unanimous opinion in the civil case O.S. ex rel. Michael S. and Amy S. v. Fairfax County School Board.  Plaintiff-Appellant O.S. was a second grader in the Fairfax County School system (“Defendant”) at the time the case originated.  O.S. has several disorder that qualify him for special education under the Individuals with Disabilities Education Act (“IDEA”).  Before he started kindergarten in Fairfax County schools, a team developed an individualized education plan (“IEP”), which O.S.’s parents approved.  O.S. then went to public school in the Defendant school system for kindergarten and first grade.  Before O.S.’s second grade year, the team proposed a revised IEP, but O.S.’s parents did not approve it.  O.S.’s parents and the team were unable to agree on a revised IEP, and the parents sought recourse at a due process hearing.

Procedural History: Due Process Hearing and Federal District Court

Under the IDEA, the due process hearing is the first administrative remedy available to a petitioner that believes he or she is not being provided a free appropriate public education (“FAPE”), where the hearing officer makes a determination.  Any unsatisfied party may bring a civil action in federal district court.  In this case, the hearing officer conducted a three-day hearing, heard from multiple witness, and ultimately found that the Defendant had complied with IDEA requirements, and that O.S.’s parents additional requests for accommodation were not necessary.  O.S. filed in district court.  The district court held that the Defendant did provide a FAPE.

Reviewing De Novo Whether Free Appropriate Public Education Under the Individuals with Disabilities Education Act Is Still Defined As “Access” to Instruction “Individually Designed to Create Educational Benefit”

O.S.’s principal argument on appeal was whether the district court applied the appropriate standard in determining whether the Defendant school board provided O.S. with a FAPE.  O.S. argued that IDEA requires that students have a “meaningful” education benefit, not just a minimal one.  The Court examined IDEA’s procedural history and Supreme Court precedent to determine the correct legal standard.  Despite amendments to the act, including amendments after the seminal Supreme Court decision in Board of Education v. Rowley, 458 U.S. 176 (1982), the Court determined that the standard remains the same: FAPE requires “access” to instruction “individually designed to provide educational benefit.”  The Court added that this standard has always required that instruction provide more than minimal or trivial educational benefit.

The Court Affirmed the District Court’s Decision

The Fourth Circuit held that the same legal standard continues to apply, and to determine whether a school provides an FAPE, courts will examine whether an IEP provides access to some educational benefit.  Thus, the Court affirmed the decision of the district court.