SAMPSON COUNTY BOARD OF EDUCATION v. TORRES (2024)

ORDER (SEALED)1

This matter is before the court on plaintiff's motion for judgment on the administrative record. (DE 39). The motion has been briefed fully and the issues raised are ripe for ruling. For the following reasons, the motion is denied and the court awards judgment on the administrative record in favor of defendants.

STATEMENT OF THE CASE

Plaintiff commenced this action June 24, 2022, seeking judicial review of a decision by a North Carolina Administrative Law Judge (“ALJ”) under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”) (the “ALJ's decision”), in favor of defendants, who are E.T., a student at Roseboro-Salemburg Middle School (the “school”), and his grandparents and legal guardians, Jose Torres and Dianne Torres. In that decision, the ALJ concluded that misconduct by defendant E.T., which gave rise to a violation of the school code of conduct for sexual assault, was a manifestation of his disabilities and reversed plaintiff's long-term suspension of E.T. Plaintiff seeks judgment in its favor vacating the ALJ's decision and finding procedurally and substantively appropriate plaintiff's prior determination that the misconduct was not a manifestation of E.T.’s disabilities. Plaintiff also seeks a declaration that it is the prevailing party on all issues and an award of costs.²

After framing of the pleadings and filing the administrative record,³ plaintiff filed the instant motion for judgment on the administrative record. By way of summary, the administrative record consists of 1) transcripts of seven days of virtual hearings held before the ALJ, 2) pleadings, exhibits, administrative filings of the parties, and orders of the ALJ, including the ALJ's decision, and 3) video recordings of testimony before the ALJ. Additional evidence not in the administrative record filed by plaintiff includes documentation of E.T.’s student disciplinary appeal hearing, audio recordings of the same, as well as plaintiff's education policies.

In response, defendants request that this court deny plaintiff's motion and affirm the ALJ's decision. Defendants rely upon administrative correspondence from the United States Department of Education providing guidance concerning its IDEA regulations, captioned Letter to Ramirez, Office of Special Education Programs (Dec. 5, 2012). Plaintiff then replied in support of the instant motion.

STATUTORY FRAMEWORK

To provide context to the court's statement of facts and the analysis herein, the court first sets forth the following summary of the statutory framework under IDEA and related North Carolina administrative procedures.

The purposes of IDEA include ensuring “that all children with disabilities have available to them a free appropriate public education [‘FAPE’]⁴ that emphasizes special education and related services designed to meet their unique needs,” and “that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. § 1400(d)(1)(A)-(B). “Congress’ intention was not that the Act displace the primacy of States in the field of education, but that States receive funds to assist them in extending their educational systems to the handicapped.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 208, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).

In furthering these purposes, IDEA sets forth procedural requirements for parental participation in developing an “ ‘individualized education program’ or ‘IEP’ ” for “each child with a disability.” 20 U.S.C. § 1414(d)(1)(A). It also allows parents to “present a complaint ․ with respect to any matter relating to the identification, evaluation, or educational placement of the child,” and it directs states to provide a “due process hearing” for parents who disagree with school authorities’ decisions on such a complaint. Id. § 1415(b)(6), (f).

As pertinent here, IDEA also provides procedures for “school personnel” for “determining whether to order a change in placement for a child with a disability who violates a code of student conduct,” such as through long-term suspension. Id. § 1415(k)(1)(A). Whether or not “relevant disciplinary procedures applicable to children without disabilities” may apply depends on whether “the behavior that gave rise to the violation of the school code” is a “manifestation of the child's disability.” Id. § 1415(k)(1)(C). To make this “manifestation determination” in the case of a suspension more than 10 days, the following standards and procedures apply:

within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the local educational agency, the parent, and relevant members of the IEP Team (as determined by the parent and the local educational agency) shall review all relevant information in the student's file, including the child's IEP, any teacher observations, and any relevant information provided by the parents to determine--

(I) if the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or

(II) if the conduct in question was the direct result of the local educational agency's failure to implement the IEP.

Id. § 1415(k)(1)(E). As part of this manifestation determination review (“MDR”), “[i]f the local educational agency, the parent, and relevant members of the IEP Team,” also referenced herein as the “MDR team,” “determine that either subclause (I) or (II) ․ is applicable for the child, the conduct shall be determined to be a manifestation of the child's disability.” Id.

If “the conduct was a manifestation of the child's disability,” then the MDR team must “conduct a functional behavioral assessment” (“FBA”), and “implement a behavioral intervention plan” (“BIP”), or modify an existing BIP “as necessary, to address the behavior.” Id. § 1415(k)(1)(F). Except in exceptional circumstances involving weapons, illegal drugs, or serious bodily injury, not applicable here,⁵ the school must then “return the child to the placement from which the child was removed.” Id. By contrast, if the determination is made that the conduct was not a manifestation of the child's disability, then the child may be disciplined in accordance with “relevant disciplinary procedures applicable to children without disabilities” Id. § 1415(k)(1)(C).

IDEA provides procedures for “appeal” by the parents “of a child with a disability who disagrees with ․ the manifestation determination,” under which the “State or local educational agency shall arrange for an expedited hearing, which shall occur within 20 school days of the date the hearing is requested and shall result in a determination within 10 school days after the hearing.” Id. § 1415(k)(4)(B). IDEA “requires states to hold a due process hearing whenever a parent lodges a complaint regarding services provided to his or her child.” E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of Educ., 773 F.3d 509, 513 (4th Cir. 2014) (citing 20 U.S.C. § 1415(f)). “In North Carolina, ALJs conduct the due process hearings required by the IDEA.” Id. “The North Carolina Office of Administrative Hearings (‘OAH’) appoints these ALJs through a memorandum of agreement with the State Board” of Education. Id. (citing N.C. Gen. Stat. § 115C–109.6(a), (j)).

IDEA guarantees that any party to a due process hearing “shall be accorded (1) the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities; (2) the right to present evidence and confront, cross-examine, and compel the attendance of witnesses; (3) the right to a ․ verbatim record of such hearing; and (4) the right to written ․ findings of fact and decisions.” 20 U.S.C. § 1415(h). North Carolina law further provides that an ALJ “may exclude evidence that is inadmissible,” and that “the rules of evidence as applied in the trial division of the General Court of Justice shall be followed.” N.C. Gen. Stat. § 150B-29. Further, the ALJ “shall make a final decision or order that contains findings of fact and conclusions of law,” and “shall decide the case based upon the preponderance of the evidence, giving due regard to the demonstrated knowledge and expertise of the agency with respect to facts and inferences within the specialized knowledge of the agency.” Id. § 150B-34.

Finally, any “party aggrieved by the findings and decision” made by the ALJ in a due process hearing has the right to bring a civil action in federal court. 20 U.S.C. § 1415(i)(2)(A). In any such action, “the court-- (i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.” Id. § 1415(i)(2)(C).

STATEMENT OF FACTS

Factual findings set forth in the ALJ's decision and other facts in the record may be summarized as follows.⁶ At the time of the ALJ's decision, E.T. was a “twelve-year-old student ⁷ with selective mutism (an anxiety disorder that impacts one's ability to communicate in certain social settings), attention-deficit hyperactivity disorder - combined (‘ADHD’), and oppositional defiant disorder (‘ODD’).” (ALJ's Decision (DE 24-2) at 233).⁸ Plaintiffs are the grandparents, and legal guardians, of E.T., who were “granted custody of E.T. when he was a toddler because he was neglected by his biological parents.” (Id. at 239).

“E.T. qualified for special education services in kindergarten, the 2014-2015 school year, as a student with a speech-language impairment.” (Id. at 233). “He was exited from special education in March of 2015.” (Id.). “Four years later, in March 2019, E.T. was again referred and an IEP was developed in November 2019.” (Id.). “E.T. then qualified for special education services under the category of Other Health Impairment (‘OHI’)” because his disabilities comprising Selective Mutism, attention-deficit hyperactivity disorder-combined (“ADHD-Combined”), and oppositional defiant disorder (“ODD”) “adversely impacted him academically and behaviorally.” (Id.).

“Throughout his education, E.T. has a long history of using physical touch to communicate with peers and adults to gain attention.” (Id.). “Because his touching was often inappropriate, it resulted in numerous disciplinary incidents.” (Id.). “As a result, Behavioral Intervention Plans (‘BIPs’) were developed in 2014, during his initial eligibility as speech-language impaired, and again in 2019 when he qualified the second time” for special education services. (Id.).

“Sometime early October 2021 [near the beginning of his sixth-grade academic year], E.T. physically touched a female student,” the victim, C.S. (Id.). “How E.T. touched the student is disputed, but nevertheless was inappropriate and caused a disciplinary referral and recommended change in placement to a long-term suspension for the rest of the 2021-2022 school year.” (Id. at 233-234). “As required, [the school]⁹ conducted a Manifestation Determination Review (‘MDR’) meeting,” on October 18, 2021. (Id. at 234).

Handwritten minutes of the MDR meeting, dated October 18, 2021, include the following summary of the “Team Discussion”:

(DE 24-3 at 113).¹⁰ A “Prior Written Notice” form dated the same day provides that the following participants attended the MDR meeting: 1) Douglas R. Massengill, Jr. (“Massengill”), who is the principal of the school,¹¹ 2) Andrea D. Bell, “special education teacher”; 3) Marian L. Hairr, “regular education teacher”; 4) Alicia A. Brophy-Dick (“Brophy-Dick”), “EC Director”¹² ; and 5) defendants Jose Torre and Dianne Torres. (Id. at 115).

An MDR form (hereinafter, the “MDR form”) completed in part by Massengill prior to the manifestation determination meeting includes the following description of the “Current Disciplinary Event”:

In the incident that prompted this recommendation, [E.T.] entered a classroom to which he was not assigned at the end of the school day. [E.T.] then approached a female student who promptly told [E.T.] to “get away”. Rather than return to his assigned classroom and area, [E.T.] proceeded to grab the female student and touched her buttocks and breast. [E.T.]’s bus was then called for and her [sic] left the room.

Complicating this incident is the fact that [E.T.] sexually assaulted this very same student in April of 2021 at Roseboro Elementary School. He was suspended for that incident and is currently serving a sentence of probation for sexual assault as a result of a juvenile court petition.

[E.T.] has had one other office referral this year for fighting which resulted in a three (3) day out-of-school suspension.

Due to the seriousness of this offense and the fact that he has now targeted the same student twice, the principal feels that a Long-Term Suspension for the remainder of the school year is appropriate. The circumstances of this incident are compounded by the fact that [E.T.] has no classes with the female student in question and had to intentionally seek her out.

(DE 24-3 at 111). In a section regarding “Data Used to Consider Manifestation of Student's Disability” the MDR form specifies that E.T. does not “have a Behavior Intervention Plan (BIP) based on a Functional Behavioral Assessment [‘FBA’].” (Id. at 112). The form then specifies the “conduct in question” was not caused by E.T.’s disability, did not have a direct or substantial relationship to his disability, and was not the result of the school's “failure to implement the IEP.” (Id.). Thus, the form answers “No” to the question “Is the violation of the student code of conduct a manifestation of the student's disability.” (Id.).

At a subsequent disciplinary hearing on the school's long-term suspension decision (hereinafter, the “disciplinary hearing”), held November 19, 2021, assistant superintendent Melinda Vickers (“Vickers”) considered evidence including written statements by student witnesses, including the victim, C.S. In her written statement dated October 12, 2021, the victim provides the following description of E.T.’s conduct:

(DE 37-1 at 17; see DE 24-3 at 117).¹³

Vickers also heard testimony of Shakisha Young, assistant principal at the school, who explained that “she handled” the incident on the day it occurred, noting: “approximately 3:10 p.m. [s]tudents were being called to buses by bus numbers due to heavy rain as Bus 114 completed their [l]oading, [the victim, C.S.] came running to the end of the hallway and outside where I was standing; the student appeared upset. She was crying and screaming and stated, I don't care if I go to ISS, but I want him to stop touching me,” in reference to E.T. (DE 37-1 at 33). Vickers also heard testimony of Massengill, who stated that after speaking with Young, he charged E.T. with a “class IV violation of the Student Handbook for sexual assault, not rape,” and that he “reported the incident to the school resource officer, who filed a report for the appropriate juvenile petitions.” (Id. at 34).

Following the disciplinary hearing, on November 23, 2021, Vickers issued a decision determining that E.T. “engaged in misconduct in violation of Board Policy 4300 ¹⁴ and Sexual Assault Class IV and that a suspension of the recommended length through the end of the school year is appropriate.” (DE 37-1 at 5).

Defendants appealed the disciplinary hearing decision to plaintiff, which reviewed the transcript of the disciplinary hearing, as well as the statements of the victim C.S. and four student witnesses. (See id. at 4). Plaintiff also considered a statement from the victim's mother and pediatrician concerning the psychological impact on the victim, and requesting authorization for “home school services” for her for the remainder of the school year. (Id. at 1-2). Plaintiff affirmed the long-term suspension on March 1, 2022.¹⁵

In the meantime, on January 18, 2022, defendants filed a petition for a due process hearing challenging the manifestation determination to be held in the North Carolina Office of Administrative Hearings. (DE 24-2 at 205-223). The ALJ held a virtual hearing on the petition February 21-25 and March 10-11, 2022. (See Tr. (DE 24-1); Video Ex. (DE 24-3)). At the hearing, defendants presented testimony of Dianne Torres and two expert witnesses: 1) Bobbie Grammer (“Grammer”), a “retired monitoring consultant” for the North Carolina Department of Public Instruction who testified as an expert in “special education and special education compliance”; and 2) Jennifer Holmes (“Holmes”), a “Board Certified Behavior Analyst” who testified as an “expert in behavior and special education.” (ALJ's Decision (DE 24-2) at 240-242).

Plaintiff presented testimony of Massengill and three expert witnesses: 1) Brophy-Dick, plaintiff's EC director, who testified as an expert on “special education, behavior and compliance”; 2) Reem S. Utterback (“Utterback”) a forensic psychiatrist who testified as an expert in “child and adolescent psychiatry”; and 3) Lori Langston (“Langston”), a speech language pathologist employed by plaintiff. (Id. at 245-247).

The ALJ's decision, which is 51 pages long, is titled a “final expedited decision,” and dated March 28, 2022. (Id. at 233). It includes a description the issues presented and procedural background, and it makes findings regarding the credibility of the witnesses and the weight given to their testimony. It also sets forth factual findings regarding relevant documents and information in E.T.’s educational records. Regarding the October 2021 MDR meeting, the ALJ's decision includes factual findings regarding notice provided to defendants, materials considered prior to and during the MDR meeting, and the completion of the MDR form and conduct of the MDR meeting. The ALJ's decision then sets forth conclusions of law, including a general legal framework, followed by reasons why the MDR decision was not “procedurally appropriate” and not “substantively appropriate.” (Id. at 279-283).

The ALJ's decision concludes that “the MDR was procedurally inappropriate, denied [defendant Dianne Torres] meaningful participation in the decision-making process, and denied E.T. a FAPE.” (Id. at 279). It further concludes that “E.T.’s misconduct, even as described by [plaintiff], had a direct and substantial relationship” to his ADHD, ODD, and Selective Mutism, and that E.T.’s misconduct “was the direct result of [plaintiff's] failure to implement the BIP attached to his IEP.” (Id. at 281-282). In sum, the ALJ's decision concludes, “E.T.’s conduct was a manifestation of his disabilities,” and the “manifestation decision is reversed.” (Id. at 283).

The ALJ's decision orders plaintiff to conduct a FBA and revise the BIP for E.T., and to place E.T. back into the school. Accordingly, the ALJ's decision concludes, the “long-term suspension of E.T. for the conduct in question is hereby invalidated.” (Id. at 284). Finally, it declares defendants the “prevailing party on the manifestation determination review issue.” (Id.).

COURT'S DISCUSSION

A. Standard of Review

“In a judicial proceeding under the IDEA, a reviewing court is obliged to conduct a modified de novo review, giving due weight to the underlying administrative proceedings.” MM ex rel. DM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523, 530–31 (4th Cir. 2002).¹⁶ Under this standard, “a hearing officer's findings of fact are entitled to be considered prima facie correct.” Lorsson, 773 F.3d at 517. “The deferential standard reflects the respect that courts accord to primary fact-finders” in IDEA cases. Bouabid v. Charlotte-Mecklenburg Sch. Bd. of Educ., 62 F.4th 851, 857 (4th Cir. 2023). “[C]redibility determinations implicit in a hearing officer's decision are as entitled to deference ․ as explicit findings.” Cnty. Sch. Bd. of Henrico Cnty., Virginia v. Z.P. ex rel. R.P., 399 F.3d 298, 306–07 (4th Cir. 2005).

An exception to this deferential standard exists “when an ALJ has strayed ‘so far from the accepted norm of a fact-finding process’ that its findings were not ‘regularly made.’ ” Bouabid, 62 F.4th at 857 (quoting Doyle v. Arlington Cnty. Sch. Bd., 953 F.2d 100, 104-105 (4th Cir. 1991)). In determining whether this exception applies, “reviewing courts [must] consider the way in which the state administrative authorities have arrived at their administrative decision and the methods employed.” Id. (emphasis in original). “An ALJ who made factual determinations by ‘flipping a coin’ or ‘throwing a dart,’ for example, would obviously not be entitled to deference.” Id. By contrast, “[w]hen an ALJ's decision is grounded in procedural care, ․ reviewing courts [must] be especially deferential in their scrutiny.” Id. at 858.

In addition, “a factual finding ․ is not entitled to deference to the extent that it is based upon application of an incorrect legal standard.” A.K. ex rel. J.K. v. Alexandria City Sch. Bd., 484 F.3d 672, 679–80 (4th Cir. 2007). “The burden, however, is ․ properly allocated to the party bringing the civil action to challenge the state administrative decision.” Spielberg by Spielberg v. Henrico Cnty. Pub. Sch., 853 F.2d 256, 258 n.2 (4th Cir. 1988). “[A] party challenging the conclusions of a hearing officer bears the burden of establishing that such rulings were erroneous.” Cnty. Sch. Bd. of York Cnty., Virginia v. A.L., 194 F. App'x 173, 179 (4th Cir. 2006).

“After giving the administrative fact-findings such due weight, if any, the district court then is free to decide the case on the preponderance of the evidence, as required by the statute.” Doyle, 953 F.2d at 105. “[A]t all levels of an IDEA proceeding, the opinions of the professional educators are entitled to respect.” Cnty. Sch. Bd. of Henrico Cnty., Virginia, 399 F.3d at 307. “The respect and deference that must be accorded to those professional opinions, however, does not give a district court license to ignore the requirement ․ that the findings of the administrative proceeding must be given due weight.” Id.

B. Analysis

Plaintiff challenges the ALJ's decision on multiple grounds. Plaintiff argues that the ALJ's factual findings and credibility determinations are not regularly made because they arise out of the ALJ's review of the school's disciplinary investigation. Plaintiff also challenges multiple specific factual findings and credibility determinations by the ALJ, and argues that little or no deference is due where the ALJ's hearing is recorded and the court can determine credibility. In addition, plaintiff argues that procedural errors identified by the ALJ either did not violate IDEA or were harmless. Finally, plaintiff argues that, even affording the ALJ's factual findings due weight, a preponderance of the evidence supports the determination that E.T.’s misconduct was not a manifestation of his disability. The court addresses each ground in turn below.

1. Disciplinary Investigation

Plaintiff's argument that the ALJ's factual findings and credibility determinations are not regularly made because they arise out of the ALJ's review of the school's disciplinary investigation is unavailing on multiple levels.

As an initial matter, the premise of plaintiff's argument is inaccurate. The ALJ did not undertake a “review” of the “school's disciplinary investigation,” as plaintiff contends. (Pl's Mem. (DE 40) at 11; see id. at 14). Indeed, the ALJ expressly noted that she “recognize[d] that it is not the job of an administrative law judge to adjudicate a disciplinary matter and does not intend to do so with this decision.” (ALJ's Decision (DE 24-2) at 262). However, she noted, it is her “responsibility to determine if the MDR was conducted in compliance with the IDEA,” and “to the extent that the conduct description is questionable, then the underlying facts which led to the creation of that description must be reviewed.” (Id.).

The ALJ's inquiry in this manner specified was not an incorrect application of the law. Neither party cites any controlling precedent concerning the extent to which an ALJ may inquire into the conduct description in an MDR form upon review of an MDR determination. The court thus turns, first, to the plain language of the statute.

In setting forth “manifestation determination” procedures, IDEA requires the MDR team to review “all relevant information in the student's file,” and “any relevant information provided by the parents,” to determine “if the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability,” or “failure to implement the IEP.” 20 U.S.C. § 1415(k)(1)(E) (emphasis added). Understanding the nature of “the conduct in question” is thus an integral part of the manifestation determination. Id. Notably, by its plain terms, the statute is worded broadly, requiring consideration of “all relevant information” and “any relevant information provided by the parents,” id., and it does not restrict the MDR team to considering only the description or findings already made by any disciplinary personnel or investigation. See id.

In addition, IDEA does not restrict the ALJ to adopting the description of the “conduct in question” already made by the MDR team, or by a disciplinary official, upon review in a due process hearing. Id. Indeed the statute directs the ALJ to make “a decision ․ on substantive grounds” and it gives the parties “the right to present evidence and confront, cross-examine, and compel the attendance of witnesses.” 20 U.S.C. §§ 1415(f)(3)(E)(i) and (h)(2). Notably, the statute does not carve out the “conduct in question” as a topic on which the parties have no “right to present evidence.” Id. § 1415(h)(2). Where the statute requires a determination whether “the conduct in question was caused by” a disability, id. § 1415(k)(1)(E), it follows that the ALJ properly may consider underlying facts bearing upon the description of the conduct in question, if it is relevant to the manifestation determination review.

This interpretation of IDEA is consistent with the purposes of the statute and the case law addressing its application generally. For example, the United States Supreme Court has observed that, in enacting IDEA, “Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, ․ as it did upon the measurement of the [result] against a substantive standard.” Rowley, 458 U.S. at 205–06, 102 S.Ct. 3034. Where, as here, the ALJ makes findings regarding the procedures by which the MDR team determined the conduct in question and the accuracy of its description of the conduct in question, this has bearing directly on whether the procedural requirements of the statute were followed in the MDR process. To remove consideration of the description of the “conduct in question” from parental input at the stage of the MDR determination, and again at the stage of the due process hearing, runs contrary to the central purposes of the statute.

Likewise this interpretation of IDEA is consistent with the balance struck in the law between deference owed to both educators and administrative officers. “The courts should, to the extent possible, defer to the considered rulings of the administrative officers, who also must give appropriate deference to the decisions of professional educators.” MM ex rel. DM, 303 F.3d at 532. “The respect and deference that must be accorded to those professional opinions, however, does not give a district court license to ignore the requirement of Rowley and Doyle that the findings of the administrative proceeding must be given due weight.” Cnty. Sch. Bd. of Henrico Cnty., Virginia, 399 F.3d at 307. Here, the ALJ correctly recognized that “[t]he professional judgment of teachers and other school staff is an important factor in evaluating an IEP,” and that IDEA “requires great deference to the views of the school system rather than those of even the most well-meaning parents.” (ALJ's Decision (DE 24-2) at 274). Nevertheless, the ALJ also determined within her authority under the circumstances of this case that “school authorities in this case are not given due regard despite their professional expertise as educators,” because of “numerous inconsistencies in [their] testimony” and other credibility findings. (Id.). As such, the ALJ's inquiry into the nature of the conduct in question, and how it was determined, was not an incorrect application of the law, but rather a necessary part of the ALJ's review under IDEA.

Plaintiff cites to this court's December 14, 2022, order for the proposition that “a plain reading of [IDEA] forecloses any authority of an MDR committee to redetermine the ‘conduct in question’ or whether that behavior violated the school code of conduct.” (Pl's Mem. (DE 40) at 12) (emphasis in original). The court did not, however, make such a pronouncement of law in its prior order. To the contrary, the court recognized that an ALJ's “findings regarding the nature of the ‘conduct in question’ may be a critical part of evaluating the procedural and substantive appropriateness of the manifestation determination.” (Dec. 14, 2022 Order (DE 17) at 9 (quoting 20 U.S.C. § 1415(k)(1)(E)(i)).

In addition, the court's December 14, 2022, order is inapposite because it solely determined whether plaintiff stated a claim, and in doing so it drew all inferences in plaintiff's favor based upon the allegations in the complaint, and it did not involve review of the administrative record or the ALJ's findings in her decision. (See id. at 6 (noting “[i]n evaluating whether a claim is stated, the court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff”). For example, the court expressly noted that “[i]n reviewing this claim at this juncture, the court draws inferences in favor of [plaintiff] that school administrators had thoroughly examined and determined the conduct of E.T. and concluded that it constituted a sexual assault.” (Id. at 12 (citing Compl. ¶¶ 76-89) (emphasis added)). The court also “credit[ed] [plaintiff's] allegation that the parents did not challenge the characterization of the alleged misconduct in their due process complaint.” (Id.).

At this juncture, by contrast, upon judicial review of the ALJ's decision, no such inferences in favor of plaintiff apply. Rather, “due weight” must be given to the findings of the ALJ, such that her administrative findings “are entitled to a presumption of correctness.” MM ex rel. DM, 303 F.3d at 531; Cnty. Sch. Bd. of Henrico Cnty., Virginia, 399 F.3d at 305. And, on this issue, the ALJ determined, contrary to plaintiff's allegation in the complaint, that school administrators had not thoroughly examined and determined the conduct of E.T., and that this issue was preserved for review as part of her “responsibility to determine if the MDR was conducted in compliance with the IDEA.” (ALJ's Decision (DE 24-2) at 262). In fact, according to the ALJ, Massengill's description of the conduct in question in the MDR form “is inaccurate and worrisome in several respects,” including the following:

First, E.T. was not on probation because of a result of a juvenile court petition. Second, although E.T. did touch C.S. on the breast in April [2021], he was not suspended for a sexual assault. Third, Dr. Massengill assumes that E.T. “intentionally” sought out C.S. Fourth, Dr. Massengill's description of the incident varied significantly from that of C.S.’s․

C.S. sequenced the conduct differently. She states that: E.T. left his class, went into her class, his bus got called, E.T. left her class, but came back, touched her on the butt, touched her by grabbing her, touched her arm and back, pulled her hair, and then she told him to “get away”.

(Id. at 264). As such, because of “the way in which the [ALJ] arrived at [her] administrative decision and the methods employed,” her findings of fact and credibility determinations regarding the description of the conduct in question in the MDR form are “regularly made” and entitled to deference. Bouabid, 62 F.4th at 857.

Plaintiff cites to Danny K. ex rel. Luana K. v. Dep't of Educ., Hawai'i, No. CIV. 11-00025 ACK, 2011 WL 4527387 (D. Haw. Sept. 27, 2011), for the proposition that there is “no authority ‘to suggest that a manifestation determination team must review the merits of a school's findings as to how a student violated the code of student conduct’ ” and that “ ‘such a requirement would essentially deputize manifestation determination teams, and in turn administrative hearings officers and federal courts, as appellate deans of students.” Id. at *12. This proposition and the case cited, however, are inapposite for several reasons. First, in Danny K., the hearing officer found that the parents “did not show that [the school] ‘failed to conduct an appropriate manifestation determination,” and the court thus owed substantial deference to the findings of the hearing officer. Id. at 11. By contrast, here, the ALJ found defects in the manifestation determination, to which this court must defer.

Second, the hearing officer Danny K. also made factual and credibility findings against the student and in favor of the school regarding the misconduct in question: “[T]he hearings officer concluded, ‘Student's inconsistencies show that either he was not telling the truth to the vice-principal when he admitted to setting off the bomb or not telling the truth when testifying under oath at the hearing. Either way, Student's credibility is at issue, and the believability of his testimony is diminished.’ ” Id. at 13. Again, in contrast, here, the ALJ made factual and credibility findings against the description of the conduct in question set forth in the MDR form, against Massengill, and in favor of the parents, to which this court must defer. In any event, the hearing officer in Danny K. did in fact consider the nature of the student's misconduct in its review of the manifestation determination. Id.

Third, the plaintiffs in Danny K. disputed, despite the hearing officer's findings, whether the student had committed any misconduct at all in the first place, contending that the student “falsely confessed.” Id. There is no such dispute in the instant case concerning whether E.T. committed misconduct; rather, the dispute concerns the nature of the misconduct and the MDR form's description of the misconduct, and its relation to E.T.’s disabilities. The ALJ's review of the nature of the underlying conduct in the instant case thus does not amount “essentially deputiz[ing] manifestation determination teams, and in turn administrative hearings officers and federal courts, as appellate deans of students,” as characterized in Danny K. Id. Rather, it constitutes an appropriate consideration of central issues bearing upon the procedural and substantive correctness of the manifestation determination. Accordingly, Danny K. is instructively distinguishable from the instant case.

Plaintiff also cites to Leigh Ann H. as Next Friend of K.S. v. Riesel Indep. Sch. Dist., No. W-17-CA-00210-RP, 2017 WL 11714572 (W.D. Tex. Aug. 29, 2017), for the proposition that “[w]hether a student violates the student code of conduct is a decision made by campus administrators.” Id. at 4. That statement, however, is beside the point because the ALJ did not in this case make a determination about whether E.T. violated the student code of conduct. Indeed, the ALJ accepted that E.T. was “disciplined for sexual assault,” and the ALJ found that the discipline due to a “violation of a code of student conduct” triggered procedural rights of the parents under IDEA. (ALJ's Decision (DE 24-2) at 262, 279). In any event, the court in Leigh Ann H. did not address circumstances, as here, where the ALJ made findings that “the conduct description is questionable” in the MDR form. (Id. at 262).

Plaintiff also argues that, even if IDEA “authorized an administrative officer to review a school's disciplinary decision, that issue was not properly before the ALJ.” (Pl's Mem. (DE 40) at 15). As an initial matter, this argument again misses the mark because the ALJ did not purport “to review a school's disciplinary decision,” but rather expressly stated her intent not to “adjudicate a disciplinary matter.” (ALJ's Decision (DE 24-2) at 262). In any event, plaintiff's suggestion of a failure to exhaust administrative remedies is without merit. Plaintiff cites MM ex rel. DM, for the proposition that “[f]ailure to properly raise an issue constitutes failure to exhaust administrative remedies and deprives a district court of subject matter jurisdiction.” (Pl's Mem. (DE 40) at 15) (citing 303 F.3d at 536). In MM ex rel. DM, however, the plaintiff parents sought to litigate the lack of IEPs “for three separate academic years,” but only challenged one year at the due process hearing. MM ex rel. DM, 303 F.3d at 536.

Such a failure to exhaust is not at issue here because defendants squarely challenged the manifestation determination in their due process complaint, noting the “issue before this Tribunal is whether ․ the District wrongfully determined E.T.’s behavior was not a manifestation of his disabilities.” (Petition (DE 24-2) at 205). Consideration of E.T.’s behavior in question necessarily is an integral part of this issue as stated. In addition, defendants asserted procedural errors in the MDR process, stating “they were talked to but not permitted to provide parental input as was necessary to demonstrate how and why E.T.’s behaviors would be deemed a manifestation.” (Id. at 220). They also asserted the MDR team improperly “did not discuss or consider” “E.T.’s extensive disciplinary history” or history of “physically assaulting students,” “sexually related behavior” and “engaging in defiant behavior,” all of which encompass also the behavior in question. (Id. at 219). The ALJ thoroughly addressed those issues presented, and all evidence relevant to them, not an unexhausted issue as plaintiff's argument suggests.

Moreover, plaintiff has not demonstrated that it preserved the issue of a failure to exhaust, or that it was prejudiced by the ALJ's consideration of the description of the conduct in question in the MDR form. As an initial matter, plaintiff states incorrectly that when defendants “sought to raise the issue” at the hearing, plaintiff “objected.” (Pl's Mem. (DE 40) at 15) (emphasis added). The cited objection lodged, instead, was that plaintiff would “have to object on the discipline finding. We're not here to challenge the disciplinary findings of the administrative investigation either.” (Tr. 24-1 at 22) (emphasis added). As noted previously, the ALJ expressly did not “adjudicate [the] disciplinary matter,” and the description of the conduct in question in the MDR form was “an essential, if not the most essential, part of the MDR form,” and thus was properly a topic of her review because of its central importance to the MDR process. (ALJ's Decision (DE 24-2) at 262).

Plaintiff also was allowed to present evidence on the issue of the description of the misconduct in the MDR form. In fact, plaintiff's own expert witness, Brophy-Dick, testified, in response to the question “What is the role of the [MDR] team with regard to the actual fact finding by the administrator?” that “We're to investigate it and determine if it was appropriate as far as if it was a true manifestation of their disability. So we're there to question it, ․ in essence.” (Tr. (DE 24-1) at 726-727). She also was invited by plaintiff to provide an opinion on whether the “current disciplinary event” description in the MDR form was “an accurate description of the conduct in question,” and responded in the affirmative, particularly regarding the “actual touching of [victim's] buttocks and breast.” (Id. at 728). Massengill also testified as to his understanding of the nature of the conduct in question, as well as discrepancies between written statements and verbal statements. (See, e.g., id. 1258, 1412, 1416, 1417-1419, 1433). Accordingly, plaintiff's argument based upon a failure to exhaust is without merit.

In sum, the court rejects the premise of plaintiff's argument that the ALJ engaged in an unauthorized and improperly conducted inquiry into the school's determination of E.T.’s conduct. Findings cited by plaintiff demonstrate neither “application of an incorrect legal standard,” A.K. ex rel. J.K. v. Alexandria City Sch. Bd., 484 F.3d 672, 679–80 (4th Cir. 2007), nor a “depart[ure] from the fact-finding norm.” Doyle, 953 F.2d at 105. The court turns next to address specific challenges by plaintiff to factual and credibility findings by the ALJ. For purposes of the instant argument, it suffices they are within the ALJ's authority to make evidentiary and credibility determinations, and they are subject of reasoned discussion in the ALJ's decision.

2. Factual Findings and Credibility Determinations

Plaintiff challenges various factual findings and credibility determinations made by the ALJ. However, none of these challenges demonstrate that the factual findings and credibility determinations were not “regularly made” or that they should not be owed deference by this court. Doyle, 953 F.2d at 105.

For example, plaintiff argues that the ALJ improperly “gave no weight” to Massengill's testimony that “C.S. verbally stated that E.T. had touched her breast or his testimony that the description of the disciplinary event on the MDR form was accurate.” (Pl's Mem. (DE 40) at 16). However, there is ample basis in the record for the ALJ to disregard Massengill's testimony on this issue. In particular, the victim's written statement differs in the “order of events and actions” from the description on the MDR form written by Massengill. (ALJ's Decision (DE 24-2) at 264; see DE 24-3 at 117). “The order of events in other witnesses’ statements also differ” from Massengill's and the victim's statement.” (ALJ's Decision (DE 24-2) at 264; see DE 24-3 at 118-119). Plaintiff's argument invites the court to re-weigh the evidence, which this court cannot do under the “deferential standard” for accepting factual findings and credibility determinations by the ALJ. Bouabid, 62 F.4th at 857.

Plaintiff suggests the ALJ made an evidentiary error when she “admitted [defendants’] evidence – two witness statements that were silent as to whether E.T. touched C.S.’s breast – but inexplicably questioned the [plaintiff's] offer of witness statements that did state E.T. touched C.S.’s breast.” (Pl's Mem. (DE 40) at 16). This argument is unavailing on several levels. First, at the referenced point in the hearing, the ALJ allowed plaintiff's counsel to ask a witness, defendant Dianne Torres, questions about these statements, “because the door has been opened for this.” (Tr. (DE 24-1) at 275). Counsel for plaintiff, however, was unable to present these statements to the witness, because “She doesn't have access to a computer. We're on a virtual hearing. She can't see it on her phone.” (Id. at 276-277). The ALJ also noted that plaintiff would need to “lay a foundation to who's writing what.” (Id. at 276). Plaintiff did not then do so, and the court did not make a ruling on the record as to admissibility of plaintiff's offer of witness statements, but rather proceeded to the next witness. (Id. at 278).

Second, plaintiff did not articulate then, and plaintiff does not articulate now upon review, an evidentiary basis for admitting the additional written witness statements that plaintiff references from the disciplinary hearing. (See Pl's Mem. (DE 40) at 16; Pl's Reply (DE 42) at 5). The ALJ admitted two statements offered by defendants not “for the truth of the matter asserted therein but as corroboration of [the victim's] statement.” (ALJ's Decision (DE 24-2) at 262).

Third, upon this court's review of all the referenced statements in the supplemental record submitted by plaintiff, the court finds that the ALJ's questioning of admissibility of two witness statements, at that point described by plaintiff, was not prejudicial to it. The ALJ expressly recognized at hearing that “the parties stipulated that there were student statements that said that the student touched ․ the [victim] on her breast.” (Tr. (DE 24-1) at 1156). Massengill testified on direct examination that E.T. touched the victim “[o]n her butt and breast,” and “We had two victim statements that stated that E.T. had touched the victim on her breast.” (Id. at 1258, 1433). In addition, he testified whether or not E.T. touched the victim's breasts or only buttocks is not determinative to whether E.T. could be charged with a “sexual assault” code of conduct violation. (Id. at 1370). In sum, plaintiff has not demonstrated the ALJ erred in its evidentiary ruling or that the error, if any, was prejudicial to it.

Plaintiff argues that the ALJ made an “unsupported accusation of intentional misconduct” by Massengill that “reveals bias against him.” (Pl's Mem. (DE 40) at 19). Plaintiff points to a statement in the ALJ's decision that Massengill “instructed the students” to write the wrong incident date on their student statements. However, the ALJ's findings about Massengill's credibility are both more nuanced than plaintiff suggests and not a “depart[ure] from the fact-finding norm to such an extent” as to disregard the ALJ's findings. Doyle, 953 F.2d at 105. In fact, the ALJ discusses in detail various disparate statements in the record regarding the incident date, recognizing that Massengill “took down student statements on October 12, 2021,” whereas “[t]he behavior incident happened on October 7, 2021.” (ALJ's Decision (DE 24-2) at 261).

Regarding the MDR form and the student statements, the ALJ notes: “Massengill also had personal knowledge of the actual incident date; therefore, he must have intentionally written the wrong incident date on the MDR form and E.T.’s Disciplinary History (Pet. Ex. 57, p. 175) and instructed the students to do the same on their Student Statements.” (Id. at 264). This finding does not so depart from a fact-finding norm that it is owed no deference, because it is a plausible interpretation of the evidence referenced by the ALJ, for several reasons. First, the MDR Form itself is ambiguous concerning the date of the incident, specifying only “10/12/2021” as the “Date of Data Source” being the “Discipline Report(s).” (DE 24-3 at 111). Second, the reference to “Pet. Ex. 57, p. 175” is an “Incidents Summary” that states “Incident Date 10/12/2021,” which at best is misleading, and at worst wrong. (DE 24-3 at 120). Third, the student statements are ambiguous as to the significance of the “Date” specification on each of the forms, with the exception of one student form that expressly states the incident took place October 7. (DE 37-1 at 17-21). Finally, there is an email from Massengill in the disciplinary investigation file where he expressly states “10/12/21: Incident occurred at the end of the day.” (DE 37-1 at 14). In sum, while it is plausible to weigh this evidence differently than how the ALJ weighed the evidence, the ALJ's findings are not so lacking in support as to preclude the requisite deference. See, e.g., Cnty. Sch. Bd. of Henrico Cnty., Virginia, 399 F.3d at 305 (deferring to ALJ's findings where his “opinion was thorough, with many citations and references to the testimony of the School Board's witnesses).

Plaintiff also argues that the ALJ incorrectly found that, at the MDR meeting, defendant Dianne Torres “tried to explain to the MDR committee that E.T.’s medications wore off by the end of the school day but that the team failed to discuss the medications, thereby implicating [Dianne Torres's] right to meaningfully participate.” (Pl's Mem. (DE 40) at 17). Plaintiff contends that, to the contrary, Dianne Torres “acknowledged that she did not bring up E.T.’s medications at the MDR,” and both Massengill and Brophy-Dick testified Dianne Torres did not discuss medications at the MDR. (Id.). As such, plaintiff argues, the ALJ made an “unsupported finding” entitled to no deference. (Id.). However, this argument does not reflect accurately the nature of the ALJ's findings and the support in the record. The ALJ does not state that Dianne Torres did, in fact, explain to the MDR team that E.T.’s medication wore off by the end of the school day, but rather only that she “did try to explain” this and that the MDR team “did not consider” it. (ALJ's Decision (DE 24-2) at 267) (emphasis added). This is within a plausible range of inferences that can be drawn from Dianne Torres's testimony that “Massengill shot me down with the discussion on [E.T.’s] impulsiveness, so he would have shot me down on that [medication] information.” (Tr. (DE 24-1) at 191).

In addition, and in the alternative, even if the court disregards the ALJ's specific factual statement about what Dianne Torres tried to explain at the MDR meeting about medication, the court disagrees with plaintiff that this statement “taint[s] the ALJ's entire analysis as to credibility and meaningful participation.” (Pl's Mem. (DE 40) at 17). Indeed, plaintiff's argument misses the context and additional points made by the ALJ's decision about lack of investigation by the MDR team and Dianne Torres's inability to meaningfully participate. For example, the ALJ noted that medication information was available to the MDR team through a medical evaluation form completed by Antonia Cusi, M.D. (“Cusi”), on March 6, 2019:

Dr. Cusi also noted that E.T. was on medication to control these behaviors but his medications were taken “at home” not at school. Because E.T. did not take his medications at school, Respondent suggested that the school-based members of the MDR team were not aware that E.T. was medicated for his ADHD and ODD. Had they reviewed and read the form accurately, as well as E.T.’s educational records, documentation exists that E.T. had taken medication for his ADHD for years. Moreover, had they bothered to update this form or ask for a release to communicate with Dr. Cusi or E.T.’s other mental health providers, they would have known what medications E.T. currently took for his ADHD. Or, they simply could have asked [Dianne Torres] at the MDR meeting.

(ALJ's Decision (DE 24-2) at 266-267) (emphasis added). Thus, taken as a whole, the ALJ's discussion of procedural shortcomings in the MDR meeting is supported by evidence in the record and is owed deference.

Plaintiff also argues that the ALJ's discussion of her “personal disapproval of the proposed sanction” of long-term suspension “places her findings outside normal fact-finding.” (Pl's Mem. (DE 40) at 18). Plaintiff points to statements by the ALJ that long-term suspension recommendation was “perplexing” and “disproportionate” to how E.T. was disciplined in April 2021 for “a similar behavior which resulted in only a 3-day suspension.” (ALJ's Decision (DE 24-2) at 259, 266 n. 7). Plaintiff also points to the ALJ's suggestion that Massengill was less credible because he assigned himself the roles of both the “LEA Representative and the ‘Interpreter of the Instruction Implications of Evaluation Results.’ ” (Id. at 264). However, what plaintiff has “identified as failings on the part of the hearing officer are not failings at all, much less failings of a degree that would warrant a wholesale rejection of the hearings officer's findings.” Cnty. Sch. Bd. of Henrico Cnty., Virginia, 399 F.3d at 305. Plaintiff's criticisms do not “have anything to do with the process through which the hearing officer made the required factual findings ․ [and] instead focus on the manner in which the hearing officer expressed [her] view of the case.” J.P. ex rel. Peterson v. Cnty. Sch. Bd. of Hanover Cnty., Va., 516 F.3d 254, 259–60 (4th Cir. 2008). The cited ALJ's comments were made by the ALJ in context of emphasizing the importance of the MDR determination “where the stakes are high for E.T.,” thus supporting her determination that it was critical “for all members of the team to collaboratively consider the documents relevant to [the] student's special education needs.” (ALJ's Decision (DE 24-2) at 265-266). In this context, the ALJ's findings are not “so from the accepted norm of a fact-finding process designed to discover truth” that no deference is owed. Doyle, 953 F.2d at 104.

Plaintiff argues that the court need not defer to the ALJ's credibility findings where the administrative hearing is recorded. In support of this argument, plaintiff points to the rationale for deference stated in Fitzgerald v. Fairfax Cnty. Sch. Bd., 556 F. Supp. 2d 543, 550 (E.D. Va. 2008), that “[b]ecause a district court does not have the same opportunity to hear and observe the witnesses as they testify, and thus to assess the weight and credibility of evidence presented at the hearing, the ․ administrative findings of fact are considered prima facie correct.” Id. (emphasis added). This rationale, however, is not the only reason why the court must defer to credibility finings of the ALJ. Rather, there is also a basis in efficiency and principles of administrative review. “The deferential standard reflects the respect that courts accord to primary fact-finders.” Bouabid, 62 F.4th at 857. “There is but one exception to this deferential standard: when an ALJ has strayed so far from the accepted norm of a fact-finding process that its findings were not regularly made.” Id. (emphasis added). “When an ALJ's decision is grounded in procedural care, [the Fourth Circuit has] required reviewing courts to be especially deferential in their scrutiny.” Id. at 858. To add another exception for video-recorded hearings runs contrary to these principles and law.¹⁷

In any event, the court has reviewed portions of recorded testimony that plaintiff urges the court to review, and it finds no basis to overturn the ALJ's credibility determinations based on these witness's testimony. For example, plaintiff points out that “Brophy-Dick was admonished several times to answer a Yes/No question with Yes or No before going on to her explanation, but that goes to her communication style and lack of experience as a witness, not to her integrity or educational judgment.” (Pl's Mem. (DE 40) at 21). Plaintiff encourages the court to reconsider the ALJ's credibility determination that “Brophy-Dick's evasive demeanor and inconsistencies impaired the weight given to her expert opinion.” (ALJ's Decision (DE 24-2) at 249). Upon review of the video testimony cited, the court finds that the ALJ's description of Brophy-Dick's testimony is accurate and that disregarding the ALJ's credibility determination is not warranted. This is not only because of the demeanor of the witness, and the manner of her responses, but also because of substantive inconsistencies, which the ALJ also points out in her decision. (See, e.g., ALJ's Decision (DE 24-2) at 248 (“[E]ven though ․ Brophy-Dick was tendered as an expert in compliance and reviewed all of E.T.’s records, she failed to notice or chose not to disclose to the October 2021 MDR team that E.T.’s February 2020 BIP was still in place ․ Even at the hearing, she failed to concede what was obviously a significant procedural error.”).

In sum, the court must give “due weight” to the findings of fact and credibility determinations in the ALJ's decision. MM ex rel. DM, 303 F.3d at 531. Plaintiff has not rebutted the presumption that the ALJ's “findings of fact are entitled to be considered prima facie correct.” Lorsson, 773 F.3d at 517. With this “deferential standard” in mind the court turns next to considering procedural and substantive errors in the MDR identified by the ALJ. Bouabid, 62 F.4th at 857.

3. Procedural Errors

Plaintiff argues that the procedural errors identified by the ALJ either did not violate the IDEA or were harmless. The court disagrees.

“When ․ a procedural defect exists, [the court is] obliged to assess whether it resulted in the loss of an educational opportunity for the disabled child, or whether, on the other hand, it was a mere technical contravention of the IDEA.” MM ex rel. DM, 303 F.3d at 533. “In matters alleging a procedural violation,’ an ALJ ‘may find that a child did not receive a FAPE,’ if the ALJ determines that a procedural right was violated and that the violation ‘significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a FAPE to the parents’ child.’ ” R.F. by & through E.F. v. Cecil Cnty. Pub. Sch., 919 F.3d 237, 248 (4th Cir. 2019) (quoting 20 U.S.C. § 1415(f)(3)(E)(ii)). Indeed, “a procedural violation of the IDEA (or one of its implementing regulations) that causes interference with the parents’ ability to participate in the development of their child's IEP will often actually interfere with the provision of a FAPE to that child.” DiBuo ex rel. DiBuo v. Bd. of Educ. of Worcester Cnty., 309 F.3d 184, 191 (4th Cir. 2002).

In addition, in considering procedural violations, the court is cognizant that “[w]hen the elaborate and highly specific procedural safeguards embodied in § 1415 are contrasted with the general and somewhat imprecise substantive admonitions contained in the Act, ․ the importance Congress attached to these procedural safeguards cannot be gainsaid.” Rowley, 458 U.S. at 205, 102 S.Ct. 3034. “[T]he congressional emphasis upon full participation of concerned parties ․, demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Id. at 206, 102 S.Ct. 3034.

In this case, the ALJ correctly determined that the MDR team committed a procedural violation of IDEA by failing to consider all relevant and necessary information, and that this violation significantly impeded defendant Dianne Torres's right to meaningfully participate in the MDR and resulted in the denial of a FAPE. For purposes of the instant analysis, the court focuses on one category of information that the MDR team entirely failed to consider: the fact that E.T. had received a FBA and was subject to a BIP. (See ALJ's Decision (DE 24-2) at 254-265, 265). This was information that, by its nature, had a direct bearing upon E.T.’s behavior and factors impacting his behavior.

The importance of this information to the MDR determination is illustrated by the MDR form itself, which includes “Functional Behavior Assessment” (FBA), and “Behavior Intervention Plan” (BIP), as one of only seven enumerated categories of data to be “Used to Consider Manifestation of Student's Disability.” (DE 24-3 at 111). In addition, under the section captioned “Behavior,” the first of three questions is “Does the student have a Behavior Intervention Plan (BIP) based on a Functional Behavior Assessment?” (Id. at 112). The statute also reflects that consideration of FBA and BIP is central to a manifestation determination, where it requires the MDR team to “review all relevant information in the student's file.” 20 U.S.C. § 1415(k)(1)(E)(i). After a MDR determination is made it requires creation of a FBA and BIP if the school “had not conducted such assessment prior to such determination,” or modification of the same “as necessary, to address the behavior.” Id. § 1415(k)(1)(F).

Despite the importance of FBA and BIP to the MDR determination, the MDR form in this instance leaves these data sources blank on the MDR form, and it responds “No” to the question whether the student has a BIP based on a FBA. (DE 24-3 at 111-112). Moreover, the MDR team did not review or discuss these data sources. (See ALJ's Decision (DE 24-2) at 265). Thus, these omissions constitute a procedural violation of IDEA that is material and not harmless. See M.M. ex rel. D.M., 303 F.3d at 533.

The materiality of this procedural violation is compounded by the fact that E.T.’s BIP was “supposed to be part of E.T.’s IEP,” but was not. (Id. at 255). This, in turn, impacts other critical questions on the MDR form and for the MDR determination. In particular, “[t]he BIP is an important part of an IEP because it is the behavioral component and the instrument for modifying problem behaviors.” (ALJ's Decision (DE 24-2) at 268). The MDR form in this instance expressly requires the MDR team to “[d]escribe how the ․ behavioral goals on the student's IEP are being implemented.” (DE 24-3 at 112). It also asks the MDR team to determine the “essential question”: “Was the conduct in question the direct result of the school district's failure to implement the IEP?” (Id.). Because the MDR team did not consider E.T.’s FBA and BIP, it necessarily lacked information needed to answer this IEP-related question properly.

The materiality of this procedural violation is further compounded by the failure of the MDR team to consider prior disciplinary violations and their relation to E.T.’s prior IEP's, FBA and BIP. In particular, the MDR team did not review “relevant information about E.T.’s prior behavioral deficits.” (ALJ's Decision (DE 24-2) at 265). “E.T.’s records indicated that he had similar behaviors in the past related to inappropriate touching of other students which the MDR team did not consider,” and “[i]n fact, the vast majority of his behaviors related to touching another student.” (Id.; see, e.g., id. at 258 (“hitting a student in the chest; kicking a student; pushing a student; slapping a student on the back of the head ․ pushing a little girl down on the floor”; Tr. (DE 24-1) at 331 (testimony of Holmes that “the majority of his discipline referrals ․ could be characterized as physical assault or physical aggression ․ physical in nature, a disrespect of physical boundaries”)).

Plaintiff argues that “[t]here is no persuasive evidence the MDR committee would have reached a different conclusion had each member reviewed the BIP or any other record” not considered. (Pl's Mem. (DE 40) at 26). Plaintiff suggests “[t]here is no reason to conclude that the BIP which addressed ‘poking’ would have had any impact on sexually assaultive behavior.” (Id.). This argument is unavailing on two levels. First, it does not take into account the critical role that consideration of a BIP and other prior disciplinary records necessarily plays in the MDR determination, as set forth above. Second, it does not take into account findings of fact by the ALJ, that lack of consideration of the BIP and prior accounts of disciplinary violations, under the circumstances of this case, directly impacted the substantive MDR determination.

Such findings include the following: 1) “the 2020 FBA identified ‘communicating (poking) with peers and unfamiliar adults’ as the behaviors that disrupt E.T.’s learning and that of others” 2) “E.T. engaged in misconduct: ‘when E.T. is in transition, with substitute teacher, or in an unstructured activity and tries to communicate, he typically responds by poking other students to gain attention” 3) while plaintiff “focuse[s] on ‘poking’ as the only problem behavior identified during the FBA,” the ALJ “disagrees and declines to read the misconduct so narrowly” where “E.T. has used inappropriate touching of which ‘poking’ is simply an example”; 4) the “reason E.T. uses inappropriate touching is because he is trying to communicate, albeit poorly, with other students because he does not speak in the school setting”; 5) the “BIP was not being followed during the 2021-2022 school year when E.T. exhibited a touching behavior with the function of gaining the attention of a peer, for which the February 2020 BIP had a replacement behavior of E.T. snapping his fingers”; and, thus, 5) “had [the school] implemented the BIP's consequences, E.T. would not have been referred”; and 6) “E.T.’s misconduct, even as described by [plaintiff], was the direct result of [plaintiff's] failure to implement the BIP attached to his IEP.” (ALJ's Decision (DE 24-2) at 253, 268, 282).

Plaintiff suggests the court can disregard these findings because Dianne Torres “herself testified that the BIP would not have changed E.T.’s poking behavior and ‘he wouldn't do it anyway.’ ” (Pl's Mem. (DE 40) at 141). As an initial matter, this suggestion misses the point that consideration of E.T.’s FBA and BIP was critical to understanding the nature of E.T.’s disabilities and their relation to E.T.’s inappropriate behaviors. The testimony of Dianne Torres, moreover, is one of multiple sources of evidence considered and weighed by the ALJ, and is “simply not of the nature or quality that would require the hearing officer to accept” it on this specific point over that of other witnesses. Cnty. Sch. Bd. of Henrico Cnty., Virginia, 399 F.3d at 306. For example, defendant's expert, Grammer, opined that E.T.’s “behavior intervention plan addressed the types of behavior [E.T.’s] being charged with.” (Tr. (24-1) at 931). “[T]hey had a behavior goal of talking about appropriate touching that they took away.” (Id. at 934-935). Holmes testified the FBA and BIP were “very relevant ․ because the behaviors are in the same category.” (Id. at 353). In addition, the ALJ directly addressed in her decision plaintiff's argument that “implementation of the [BIP] would not have prevented E.T.’s misconduct.” (Id. at 268). In response, the ALJ found “[n]either [defendants’] behavioral expert nor the Undersigned reads the BIP as narrowly as [the school],” and the school is, in an alternative sense, “admitting that the February 2020 BIP is so bad that its implementation would have been useless,” a reading that the ALJ implicitly did not accept. (Id.).

Plaintiff cites to Fitzgerald v. Fairfax Cnty. Sch. Bd., 556 F. Supp. 2d 543 (E.D. Va. 2008), as an example of a case where the parents “set forth no reason why they believe the outcome of [a student's] MDR may have been different” if an omitted document had been considered. Id. at 559. Fitzgerald is inapposite, however, because the omitted document in that instance was an IEP from 2005, where the MDR team had reviewed an IEP from 2006. Critically, “[t]his document was similar in nearly every respect to the 2006 IEP, and plaintiffs have set forth no reason why they believe the outcome of Kevin's MDR may have been different if the 2005 IEP had also been reviewed.” Id. This unlike the omitted FBA and BIP, which were not similar to the information reviewed, and there is much reason why the outcome may have been different if they were reviewed.

In sum, the MDR team's failure to discuss the E.T.’s FBA and BIP was in itself a material violation of the procedural requirements of the IDEA sufficient to deny a FAPE to E.T. See M.M. ex rel. D.M., 303 F.3d at 533. That violation alone thus supports the ALJ's conclusion to reverse the MDR determination.

In addition to failing to address E.T.’s FBA and BIP, the MDR team made several additional omissions. According to the ALJ, the MDR team: 1) did not give defendant Dianne Torres a copy of “Procedural Safeguards also known as the Parent Rights & Responsibilities in Special Education and Notice of Procedural Safeguards” (Id. at 240, 279); 2) “did not consider relevant and necessary information, including facts surrounding the behavioral incident in question, E.T.’s prior manifestations of his ODD, ADHD, and selective mutism, and E.T.’s intent surrounding the behaviors” (Id. at 280); 3) inaccurately described his behavior and “leaned too heavily on the alleged sexual nature of E.T.’s touch without considering the totality of his behavior.” (Id. at 280). Where these findings are “regularly made” and supported by evidence in the record, they are also entitled to deference by this court. Doyle, 953 F.2d at 105. While the court does not consider each of these independently sufficient to deny E.T. a FAPE, they nevertheless reinforce the conclusion that the MDR determination in this case suffered from material procedural violations, when coupled with the failure to consider the FBA and BIP.

In sum, the MDR violated the procedural requirements of IDEA and these violations “resulted in the loss of an educational opportunity” for E.T. MM ex rel. DM, 303 F.3d at 533. This, alone, is a sufficient basis to invalidate the MDR and the long-term suspension of E.T. Nonetheless, the court turns next to address that part of the ALJ's decision addressing the substantive MDR determination.

4. Substantive Decision

Based on the findings of fact and credibility determinations in the ALJ's decision, to which this court must be “especially deferential,” Bouabid, 62 F.4th at 858, a preponderance of the evidence supports the conclusion that E.T.’s misconduct was a manifestation of his disabilities. Evidence bearing on this conclusion includes testimony of defendants’ expert witnesses, which the ALJ found more credible than plaintiff's witnesses, and to which the court must now defer. (See ALJ's Decision (DE 24-2) at 242-249).

In particular, both Holmes, who was accepted as an expert in behavior and special education, and Grammer, who was accepted as an expert in special education and special education compliance, each independently testified that in their expert opinions, as to the questions on the MDR form regarding E.T.: 1) “whether the conduct in question was caused by the student's disability?”; 2) “did the conduct in question have a direct or substantial relationship to the student's disability?”; and 3) “[w]as the conduct in question the direct result of the school district's failure to implement the IEP”; the answers were all “Yes.” (Tr. (DE 24-1) at 374-375, 936-937). This provides substantial evidence, accepted as credible, supporting the ALJ's decision.

In addition, Holmes testified that the conduct in question was caused by [E.T.’s] disability since the [he] is diagnosed OHI as a result of ADHD, oppositional defiant disorder and selective mutism.” (Id. at 374). She testified E.T.’s conduct in question was “directly correlated to his disability because ADHD can cause that impulsivity, because oppositional defiant disorder leads to doing the opposite or not complying with the directive --the girl told him to get away and he didn't do it -- and then because the selective mutism impedes his ability to communicate appropriately with his peers in a school setting.” (Id. at 375). She also testified “that the school district did not implement the behavior intervention plan directly relating to poking another student as a means of communication.” (Id.). She further testified:

Based on my review of the records, my interview with Mrs. T., my attempted interview with E.T., to include the IEPs over the years that I had access to and also the functional behavior assessment in 2014 and also the functional behavior assessment in 2020, where the district clearly states that the behavior is an attempt to communicate because he has selective mutism, so he is engaging in physical aggression or physical contact with another person as a form of communication due to selective mutism, not to mention the ADHD label that -- diagnosis that the student has and the oppositional defiant disorder diagnosis that the student has, being labeled as OHI, his behavior of touching another student in that unstructured setting is a manifestation of his disability.

(Id. at 379). Likewise, Grammer testified, as to E.T.:

[I]t was the end of the day. It was when he has -- according to -- all of his records say he has difficulty with transitions. He has difficulty if there's a sub[statute teacher]. There was a sub in the classroom. You start adding all those different things up, and then his behavior in the past. And that's not to say what he did was correct. That's to say that it's a manifestation of his disability.

(Id. at 964).

Accordingly, in light of the credibility and weight the ALJ afforded defendants’ expert witnesses, and the negative credibility findings and less weigh afforded plaintiff's witnesses, a preponderance of the evidence supports the determination that E.T.’s misconduct was a manifestation of his disability.

Plaintiff argues that evidence in the record does not support the “causation” and “direct and substantial relationship” prongs of the manifestation determination. (Pl's Mem. (DE 40) at 27; see also Pl's Reply (DE 42) at 6). This argument is unavailing, however, because it invites the court to make new findings of fact and credibility determinations, where the court is required to defer to findings of fact and credibility determinations already made by the ALJ. See Bouabid, 62 F.4th at 858.

For example, plaintiff contends “the evidence shows the E.T.’s ADHD primarily manifested at school as impulsiveness during transitions, and the conduct in question was neither impulsive nor during a transition.” (Id.). The ALJ found to the contrary, however, that E.T.’s behavior was “rule-breaking and attention seeking, impulsive behavior,” and “[t]his incident happened during a transition period.” (ALJ's Decision (DE 24-2) at 264, 281). These findings were supported, for instance, by testimony of Holmes, who opined E.T.’s behavior was “correlated to his disability because ADHD can cause that impulsivity.” (Tr. (24-1) at 375). Further, she opined that E.T.’s misconduct was part of his ADHD because of “the impulsive behavior.” (Id. at 367).

With respect to transition, multiple witnesses recognized that the conduct in question took place during a transition. (See, e.g., Tr. 346 (Holmes testifying that “doing so during transition or unstructured settings is identical to what happened in October of 2021”) 457, 636 (Langston), 1136 (Utterback), 1147, 1188)). The victim's statement also illustrates well the transitions where the conduct in question giving rise to the violation of student code of conduct is described as taking place after E.T. came to her classroom once, left “when his bus got called,” and then returned. (DE 24-3 at 117).

Similarly, plaintiff contends “the evidence shows that E.T.’s selective mutism manifested primarily as ‘poking’ to get someone's attention, and the conduct in question was neither ‘poking’ nor intended to get C.S.’s attention,” citing to testimony of its experts Langston and Utterback. (Pl's Mem. (DE 40) at 28). The ALJ found, however, that “when E.T. wants attention, either good or bad, from other students or teachers, because of his Selective Mutism, he touches them, often inappropriately.” (ALJ's Decision (DE 24-2) at 249). This finding was supported, for instance, by testimony of Holmes, who opined E.T.’s misconduct resulted “because the selective mutism impedes his ability to communicate appropriately with his peers in a school setting,” and he's using “touch to gain attention and to communicate.” (Tr. (DE 24-1) at 368, 375). This testimony was given the most weight because the ALJ found “Holmes was the most credible expert with the most experience working with students diagnosed with Selective Mutism in the school setting as a behavior specialist.” (ALJ's Decision (DE 24-2) at 271).

Plaintiff also points to testimony of its expert witness, Utterback, that she did not “see evidence of E.T. actively defying or refusing to comply with requests of authority figures,” thus suggesting lack of a connection to ODD. (Pl's Mem. (DE 40) at 30; see Pl's Reply (DE 42) at 6-7). However, the ALJ found “the primary manifestation of E.T.’s ODD was defiance and rule breaking behavior at school.” (ALJ's Decision (DE 24-2) at 271). The ALJ found Utterback “contradicted herself” in her testimony on this point, and the “weight given to her expert opinion was diminished by her failure to follow her own diagnostic requirements and standards.” (Id. at 267, 271). This finding further was supported, for instance, by testimony of Holmes, who opined “oppositional defiant disorder leads to doing the opposite or not complying with the directive --the girl told him to get away and he didn't do it.” (Tr. (DE 24-1) at 375).

Finally, plaintiff challenges the conclusion that the misconduct was the direct result of a failure to implement the BIP. Plaintiff contends the evidence “establishes that a failure to implement E.T.’s BIP – which was only created to address poking to get someone's attention – did not directly result in the sexual assault.” (Pl's Mem. (DE 40) at 31). As noted previously, the ALJ addressed this argument in her decision, finding that plaintiff reads the BIP too narrowly, and that the “target behavior is appropriate, not inappropriate, ‘communication,’ with E.T.’s peers and unfamiliar adults,” with “poking being an example of inappropriate communication E.T. used to get the attention of others.” (ALJ's Decision (DE 24-2) at 268). This finding is supported by Holmes's testimony, where she opines “the 2020 FBA [states] that [E.T.] pokes because he's having difficulty communicating with peers and adults,” and that this is “related to the selective mutism” because E.T. engaged in misconduct “to gain attention and communicate.” (Tr. (DE 24-1) at 364). By contrast, the ALJ found Langston's testimony “not persuasive or particularly useful,” as she was not an expert in selective mutism. (ALJ's Decision (DE 24-2) at 247).

In sum, after giving the ALJ's factual findings and credibility determinations “due weight” as entitled to “prima facie correctness,” the court is compelled to conclude based on the “preponderance of the evidence as required by the statute” that E.T.’s misconduct was a manifestation of his disability and the direct result of the school's failure to implement his IEP. Doyle, 953 F.2d at 105. Plaintiff has not met its burden of establishing that the ALJ's decision was erroneous. Spielberg by Spielberg, 853 F.2d at 258 n.2. Therefore, mindful that this court is required to be “especially deferential” in [its] scrutiny,” Bouabid, 62 F.4th at 858, the ALJ's decision must be affirmed and judgment on the administrative record must be awarded in favor of defendants.

CONCLUSION

Based on the foregoing, plaintiff's motion (DE 39) is DENIED. The court AFFIRMS the ALJ's decision and awards judgment on the administrative record in favor of defendants. The clerk is DIRECTED to close this case.¹⁸

SO ORDERED, this the 13th day of February, 2024.

Appendix A

Table of Acronyms

FOOTNOTES

2.   In a related case, Torres et al. v. Sampson County Board of Education, No. 7:22-CV-99-FL (hereinafter the “fee case”), defendants Jose Torres and Dianne Torres seek an award of attorneys’ fees and costs incurred by them in the underlying matter culminating in the ALJ's decision, as well as attorneys’ fees and costs in the fee case. On January 26, 2023, the court stayed and administratively closed the fee case pending this court's judgment in the instant case.

3.   On December 14, 2022, the court denied defendants’ motion to dismiss the complaint for failure to state a claim. (See Order (DE 17) at 19). The court also subsequently granted plaintiff's motion for leave to file additional evidence not in the administrative record, (see Order (DE 35) at 5), and the parties’ joint motion to seal the administrative record. (See id. at 6).

4.   The court includes as Appendix A to this order a table of acronyms referenced herein.

5.   In those exceptional circumstances, “[s]chool personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child's disability.” 20 U.S.C. § 1415(k)(1)(G). In addition, IDEA provides that “[n]othing in this subchapter shall be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.” 20 U.S.C. § 1415(k)(6)(A).

6.   The court summarizes the ALJ's findings of fact for background purposes, given that an ALJ's “findings of fact are entitled to be considered prima facie correct,” generally, upon review by this court. Lorsson, 773 F.3d at 517. To provide context to these findings, the court also includes additional facts and procedural history from the administrative record. The court addresses further herein analysis of plaintiff's challenge to both findings of fact and law by the ALJ, and additional facts will be discussed in the analysis herein.

7.   E.T. was born in 2009. (See DE 24-3 at 111).

8.   Page numbers in citations to documents in the record are to the page number specified in the docket entry (DE) in the court's case management / electronic case filing (“CM/ECF”) system, and not the page number, if any, showing on the face of the underlying document.

9.   Herein, all references to the “school,” unless otherwise specified, are to Roseboro-Salemburg Middle School.

10.   For purposes of reference in the analysis herein, the court understands this handwritten statement to state the following:Each person was introduced. Parent was given a Handbook Link and receipt obtained. The purpose of meeting to conduct a Manifestation Determination. IEP Service Times and accommodations were reviewed. No related services. No BIP. Behavior referrals were reviewed. Parent want[s] a FBA and a BIP put back in place. The team decided that [E.T.’s] recent conduct is not a manifestation of his disability. Student is OHI. Prior written notice will be give today. Principal stated that parent can schedule a meeting at any time. The team is requesting long term recommendation which has to be determined by the superintendent. Parent can contact the Board of Education if parent is not satisfied with the superintendent's decision.(DE 24-3 at 113).

11.   The form additionally provides that Massengill was acting in the position of local educational agency (“LEA”) “Representative and Interpreter of Instructional Implications of Evaluation Results.” (DE 24-3 at 115).

12.   Although not specified in the form, “EC” stands for “exceptional children.” (See Tr. (DE 24-1) at 1244).

13.   For purposes of reference in the analysis herein, the ALJ's decision provides the following transcription of this statement: “he [E.T.] was in m/s. [sic] T class and he left to go to my class when his bus got called[,] he left but came back and touched [sic] me on the butt [sic] also touched by garbing [sic] me[,] he touched my arm[,] my back[,] he also pulled my hair and I would tell him to get away from me.” (ALJ's Decision (DE 24-2) at 264).

14.   Board Policy 4300 is a reference to “Policy 4300 Student Behavior Policies” in the disciplinary hearing packet, which includes descriptions of “consequences for violations” of the “code of student conduct.” (DE 37-1 at 48-49).

15.   Evidence regarding plaintiff's affirmation of the disciplinary hearing appeal decision is not in the record. Plaintiff instead supports this fact through defendants’ admission of the allegation in the complaint that plaintiff “affirmed the long-term suspension of E.T., by letter dated March 1, 2022.” (Compl. (DE 1) ¶ 89; Answer (DE 13) ¶ 89).

16.   All internal quotations and citations are omitted from legal citations in this order unless otherwise specified.

17.   In the court's December 14, 2022, order, the court noted that “video conferencing may render it difficult for a factfinder in adjudicative proceedings to make credibility determinations and to gauge demeanor.” (Dec. 14, 2022, Order (DE 17) at 15 (quoting Rusu v. U.S. I.N.S., 296 F.3d 316, 322 (4th Cir. 2002)). While this observation provided a basis to allow plaintiff's claim to proceed, it is inconclusive at this juncture in light of the principles cited in the text above.

18.   In the related fee case, now stayed and administratively closed, separate order will enter lifting the stay and directing further proceedings in that case.

LOUISE W. FLANAGAN, United States District Judge