A.k., a minor by his parents v. Alexandria City School Board

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 A.K., a minor by his parents and
next friends J.K. and E.S.,
Plaintiff-Appellant,
No. 06-1130 v.
ALEXANDRIA CITY SCHOOL BOARD,
Defendant-Appellee. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(1:05-cv-00229-GBL)
Argued: November 30, 2006
Decided: April 26, 2007
Before WILKINS, Chief Judge, and WILLIAMS
and GREGORY, Circuit Judges.
Reversed and remanded by published opinion. Chief Judge Wilkins
wrote the majority opinion, in which Judge Williams joined. Judge
Gregory wrote a dissenting opinion.
COUNSEL
ARGUED: William Bernard Reichhardt, Fairfax, Virginia, for
Appellant. John Francis Cafferky, BLANKINGSHIP & KEITH, Fair-
fax, Virginia, for Appellee. ON BRIEF: Colleen C. Sweeney, WIL-
LIAM B. REICHHARDT & ASSOCIATES, Fairfax, Virginia, for

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Appellant. Andrea D. Gemignani, BLANKINGSHIP & KEITH, Fair-
fax, Virginia, for Appellee.
OPINION
WILKINS, Chief Judge:
The parents of A.K., a minor child with disabilities, brought this
action on his behalf against the Alexandria City School Board, alleg-
ing that Alexandria City Public Schools ("ACPS") violated the
Individuals with Disabilities Education Act (IDEA), see
20 U.S.C.A. §§ 1400-1487 (West Supp. 2006). The parents appeal an
order granting summary judgment against them. We reverse and
remand for further proceedings.
I.
A.
The IDEA provides every disabled child with the right to a "free
appropriate public education" (FAPE) designed to meet his special-
ized needs. Id. § 1400(d)(1)(A). Congress has defined a FAPE as
special education and related services that . . . (A) have been
provided at public expense, under public supervision and
direction, and without charge; (B) meet the standards of the
State educational agency; (C) include an appropriate . . .
education in the State involved; and (D) are provided in con-
formity with the individualized education program required
under section 1414(d) of this title.
Id. § 1401(9).
A school provides a FAPE by creating an "individualized education
program" ("IEP") for each child. See id. § 1414(d)(1)(A); County Sch.
Bd. v. Z.P. ex rel. R.P., 399 F.3d 298, 300 (4th Cir. 2005). Before cre-
ating the IEP, the school district must conduct an initial evaluation to
determine the student’s eligibility and to identify his educational
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needs. See 20 U.S.C.A. § 1414(a)(1)(A)-(C). If the child is deemed
eligible, an IEP is created by an "IEP Team" comprised of the child’s
parents, at least one of his regular teachers, at least one of his special
education teachers, a school board representative, an individual who
can interpret evaluation results (who may be either of the teachers or
the school board representative), and, if appropriate, the child himself.
See id. § 1414(d)(1)(B). The IEP must outline the student’s then-
current educational status, establish annual goals, and detail the spe-
cial educational services and other aids that the child will be provided.
See id. § 1414(d)(1)(A)(i). It also must provide, among other things,
"the projected date for the beginning of the services and modifications
. . ., and the anticipated frequency, location, and duration of those ser-
vices and modifications." Id. § 1414(d)(1)(A)(i)(VII). An IEP is sub-
stantively satisfactory if it is "reasonably calculated to enable the
child to receive educational benefits." Bd. of Educ. v. Rowley, 458
U.S. 176, 207 (1982).
The IDEA also provides "procedural safeguards to insure the full
participation of the parents and proper resolution of substantive dis-
agreements." Sch. Comm. of Burlington v. Dep’t of Educ. of Mass.,
471 U.S. 359, 368 (1985) (internal quotation marks omitted). As is
relevant here, those safeguards include the right to present a com-
plaint "with respect to any matter relating to the identification, evalua-
tion, or educational placement of the child, or the provision of
a free appropriate public education to such child."
20 U.S.C.A. § 1415(b)(6)(A); see id. § 1415(f). The IDEA also autho-
rizes a party aggrieved by the state administrative proceeding
intended to resolve the complaint to challenge the decision in a fed-
eral court action. See id. § 1415(i)(2)(A). Such an action is an inde-
pendent civil action in which the district court considers the state
administrative hearing record, as well as any new evidence that the
parties offer, and makes findings by a preponderance of the evidence.
See id. § 1415(i)(2)(C). Although the federal court action is an inde-
pendent action, the court must give "due weight" to the state adminis-
trative proceeding. Rowley, 458 U.S. at 206.
B.
A.K. was first found eligible to receive special education services
under the IDEA at age two and one-half. At that time, A.K. was diag-
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nosed with Semantic Pragmatic Language Disorder with characteris-
tics of nonverbal learning disability. A.K. has since been diagnosed
as well with numerous other disorders, including Aspergers Syn-
drome and obsessive compulsive disorder. A.K. was educated in the
ACPS school system through the seventh grade until he began to be
teased and assaulted by other students to an extent that he no longer
felt safe. A.K.’s parents ("the parents") subsequently searched unsuc-
cessfully for a private day school in the Washington, D.C. metropoli-
tan area that could meet their son’s specialized needs.
For the 2003-04 school year, when A.K. was in the eighth grade,
the parents enrolled A.K. in the Riverview School, a residential
school in Massachusetts, pursuant to a settlement between the parents
and ACPS. ACPS had proposed local private day school but agreed
to fund the portion of Riverview tuition that was equivalent to private
day school placement. The parents were very happy with A.K’s prog-
ress at Riverview.
In preparation for the 2004-05 school year, A.K.’s IEP team, which
included ACPS personnel, Riverview personnel, and the parents, met
on May 21 and 28, 2004, and June 9, 2004 for a total of eight to ten
hours. Until the last half hour of the final meeting, the team spent its
time defining A.K.’s level of performance and setting goals and
objectives for the upcoming year. With only a few minutes of discus-
sion regarding placement, ACPS announced that A.K. should be
placed at an unspecified private day school.1 Unaware of any private
day school in the area equipped to meet A.K.’s specialized needs, the
parents asked ACPS representatives which private day school he
could attend. Susan Sullivan, ACPS’s private placement specialist and
the IEP team chairperson, suggested the Kellar School and the Phil-
lips School as possibilities. A.K.’s mother responded that she did not
believe either of those schools would be appropriate. The meeting
1The district court found that "[p]rivate day school placement is a term
of art describing an educational program which includes several charac-
teristics such as a small overall student body size, small classes, small
facility, extensive clinical support, the ability to work individually with
a student, extensive behavioral management, and parental involvement."
A.K. ex rel. J.K. v. Alexandria City Sch. Bd., 409 F. Supp. 2d 689, 693
(E.D. Va. 2005).
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closed without any significant discussion about the appropriateness of
Kellar or Phillips or any other possible private day schools.
The resulting IEP contained a detailed discussion of A.K.’s then-
current level of performance. It also set forth goals and objectives,
along with a plan to aid A.K. in the transition from Riverview to a
private day school. However, it did not identify any particular school
but simply listed A.K.’s placement as "Level II — Private Day School
placement." J.A. 379. Based on their objection to that placement, the
parents refused to sign the IEP.2
In July 2004, ACPS sent out applications on A.K.’s behalf to five
area private day schools: The Lab School, The Ivymount School,
Oakmont School, Phillips, and Kellar. Based on the applications pro-
vided, The Lab School and Oakmont (and perhaps Ivymount) deter-
mined that they could not provide A.K. a FAPE due to the complexity
of his disabilities.3 However, Phillips and Kellar both indicated that
they believed, based on the information they had received, that they
had an appropriate program for A.K., and invited him and his parents
to visit the school.
A.K.’s mother toured both schools in July,4 and, after consulting
with some experts who were familiar with A.K., determined that nei-
ther school would be able to meet A.K.’s specialized needs. Having
been unable to find any local private day school that they believed
could provide A.K. with a FAPE, the parents, on July 9, 2004,
requested an administrative special education due process hearing to
determine whether ACPS had offered A.K. a FAPE. ACPS sent a let-
ter to the parents in early August informing them that Phillips and
2On July 2, the parents signed the IEP only as it related to the extended
school year (ESY) services to be provided for A.K. in the summer of
2004 but continued to refuse to accept the plan with regard to the 2004-
05 school year.
3An Ivymount representative informed Sullivan that the school did not
have space available for A.K. A.K.’s mother testified, however, that the
same representative also told her that Ivymount’s program would not
have been appropriate for A.K. in any event.
4She had toured both previously in her attempts to find an appropriate
local private day school for A.K.
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Kellar wanted to schedule interviews with A.K., but the parents, hav-
ing determined that those schools could not serve A.K.’s needs, did
not seek to schedule such interviews.
At the due process hearing, the parents did not challenge the notion
that a private day school could theoretically meet A.K.’s needs, but
they argued that the IEP failed to identify a particular school in the
area that could do so and that they had not been able to find one.5
Thus, the parents sought reimbursement for their Riverview tuition on
the ground that ACPS had failed to offer A.K. a FAPE and Riverview
provided an appropriate education.
Both sides presented testimony regarding whether Phillips, Kellar,
or Riverview was appropriate for A.K.’s individual needs. ACPS’s
testimony established that the Phillips School provides individualized
educational programs implemented by classroom staff. It also offers
small group instruction, one-on-one intervention, speech and lan-
guage development, and training in social and daily-living skills. The
majority of students at Phillips are 14-18 years old, and they have a
wide range of disabilities. Students with similar needs are generally
grouped together in particular classrooms. Phillips utilizes a progres-
sive level system, in which students are given more freedom and
responsibility as their behavior and academic motivation improve.
Laura Heyer, a program supervisor at Phillips who had previously
taught at the school for 10 years, testified that she did not know of
any reason why Phillips could not provide an appropriate program for
A.K. Susan Sullivan expressed the same opinion.
Testimony showed that the Kellar School is a smaller school for
middle and high school students. At Kellar, the students work in
teams with a counselor in each classroom to help the students. Like
5The parents also challenged the adequacy of the services described in
the IEP, contending that A.K. needed more than one hour of private
counseling per week, that needed transition services were not adequately
specified, and that certain supplemental services were not properly
described. The parents further argued that ESY services included in the
IEP for July 1, 2004 to August 1, 2004 were never provided. These
claims were also raised before the district court; however, they are not
germane to this appeal.
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Phillips, Kellar employs a level system, under which students gain
independence as their work habits, academic work, and behavior
improve. Sullivan testified that she believed Kellar would have been
able to provide A.K. with a beneficial education.
The parents, on the other hand, presented testimony from two
experts that neither Phillips nor Kellar could meet A.K.’s specialized
needs. They first presented the testimony of Cheryl Weitz, a licensed
social worker in the practice of child psychotherapy who frequently
works in IEP development. She testified that many of the students at
Phillips were aggressive, disruptive, and occasionally violent. She tes-
tified that she would expect that A.K., if placed at Phillips, would "re-
gress into that fearful, anxious state where he would be more
shutdown in self-protection." J.A. 921. She also opined that Phillips’
focus on eliminating problems in behavior and motivating students to
try to learn would cause A.K., who did not have significant behavior
or motivation problems, to regress cognitively. She expressed similar
concerns about Kellar based on her view that Kellar educated many
children with psychiatric problems who often are violent and attend
the school for only a short period. She stated that although she
believed A.K. could benefit educationally from a private day school
"if the structure were appropriate," she did not believe that either Kel-
lar or Phillips "would be appropriate" considering A.K.’s needs. Id.
at 923-24.6
Dr. William Stixrud, a neuropsychologist in private practice,
expressed similar reservations about A.K.’s prospects in schools hav-
ing a significant number of students with psychiatric and behavior
problems. Dr. Stixrud opined that such a setting would be "counter-
productive in terms of [A.K.’s] availability for learning and his ability
to benefit from education that focuses on academics or adaptive
behavior." Id. at 1006. Like Weitz, Dr. Stixrud did not testify that no
private day school could meet A.K.’s needs. Rather, he testified that
A.K.’s multiple disabilities overlapped, providing a complex set of
challenges requiring a very specific type of learning environment in
order for A.K. to make academic progress. He testified that he was
6On the issue of placement with violent students, Sullivan testified that
she believed Phillips would be able to group students to accommodate
their varying needs.
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not aware of any private day school geographically accessible to A.K.
that could meet A.K.’s specialized needs.
The hearing officer denied the parents’ claim. He concluded that
ACPS did offer A.K. a FAPE by offering him education at "private
day school." Although the hearing officer did not specifically resolve
the parents’ contentions that Phillips and Kellar could not offer A.K.
a FAPE, he did discuss ACPS’s failure to identify a particular school
that could meet A.K.’s specialized needs:
The fact that ACPS did not specify a particular private day
program suggests to me that ACPS wanted to give the par-
ents as much flexibility as possible on this issue. Several
private day possibilities were suggested, and the parents
[were] given the option of choosing the one which was most
attractive to them. The fact that they found none of the pos-
sibilities attractive does not mean that the ACPS approach
was not in accordance with the FAPE mandates. Thus I con-
clude that private day placement does provide FAPE.
Id. at 1305.
Dissatisfied with this result, the parents brought the present civil
action in federal district court, again seeking reimbursement for their
Riverview tuition. They alleged not only that the IEP failed to offer
a FAPE, but also, as is relevant here, that ACPS had failed to notify
the parents before the IEP meetings that private day placements in
their area would be considered. The district court granted summary
judgment against the parents. See A.K. ex rel. J.K. v. Alexandria City
Sch. Bd., 409 F. Supp. 2d 689 (E.D. Va. 2005). On the notification
question, the district court ruled that the parents were on notice that
private day schools in their area would be considered because ACPS
had recommended private day school placement for the 2003-04
school year. See id. at 693. With regard to substantive compliance, the
district court concluded that ACPS’s mentioning of Kellar and Phil-
lips during the final IEP meeting constituted a "placement offer" of
those two schools. Id. at 694. Citing the testimony of the ACPS offi-
cials that the offer was appropriate, the district court found that ACPS
offered A.K. a FAPE. See id. at 694-95.
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II.
The parents argue that the district court erred in determining that
the school district complied with the substantive components of the
IDEA. In particular, they maintain that ACPS failed to offer a FAPE
because its IEP did not identify a particular school at which it antici-
pated that A.K. would be educated.7 We agree.
7The parents actually characterize this as both a procedural and a sub-
stantive violation of the IDEA. However, because we view this claim as
an alleged deficiency in what ACPS was offering rather than in the pro-
cedure by which the offer was developed or conveyed, we consider the
alleged violation to be substantive. See Knable ex rel. Knable v. Bexley
City Sch. Dist., 238 F.3d 755, 767-70 (6th Cir. 2001) (considering the
question of whether the IEP offered an appropriate program to be sub-
stantive). But cf. MM ex rel. DM v. Sch. Dist., 303 F.3d 523, 533-35 (4th
Cir. 2002) (holding that failure of the school district to finalize an IEP
prior to the beginning of the school year was a procedural defect). The
dissent appears to assert that the failure of the IEP to identify a particular
school was a procedural violation subject to harmlessness analysis rather
than a substantive violation because the parents would have sent A.K. to
Riverview no matter what ACPS offered. See post, at 17-20. This argu-
ment conflates the question of whether a violation is merely procedural
—and thus subject to harmlessness analysis—with the harmlessness
analysis itself. Under the dissent’s logic, even a complete failure by a
school district to offer—formally or informally—any alternative to the
parents’ favored educational plan would amount only to a harmless pro-
cedural error if the district could establish that the parents would not
have been receptive to the district’s offer.
The parents also contend that the district court erred in granting judg-
ment against them because ACPS failed to meet the procedural require-
ments of the IDEA. In particular, they argue that ACPS failed to provide
them with a description of the proposed change—from Riverview to a
private day school—prior to the IEP meetings. Regardless of whether the
district court addressed this issue, because the issue was apparently never
raised to the hearing officer, we do not address it. See David D. v. Dart-
mouth Sch. Comm., 775 F.2d 411, 424 (1st Cir. 1985) ("[F]or issues to
be preserved for judicial review they must first be presented to the
administrative hearing officer."). In any event, in light of our holding that
A.K.’s IEP was not reasonably calculated to enable A.K. to receive edu-
cational benefits, the notice issue is not material to our decision.
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"When a state receiving IDEA funding fails to provide a FAPE, the
child’s parent may remove the child to a private school and then seek
tuition reimbursement from the state." A.B. ex rel. D.B. v. Lawson,
354 F.3d 315, 320 (4th Cir. 2004). "The parent may recover if (1) the
proposed IEP was inadequate to offer the child a FAPE and (2) the
private education services obtained by the parents were appropriate to
the child’s needs." Id.
The parents bore the burden here of proving that the IEP was sub-
stantively deficient. See Spielberg ex rel. Spielberg v. Henrico County
Pub. Sch., 853 F.2d 256, 258 n.2 (4th Cir. 1988) (assigning burden
to party challenging the hearing officer’s decision); cf. Schaffer ex rel.
Schaffer v. Weast, 126 S. Ct. 528, 537 (2005) (holding that party chal-
lenging IEP in due process hearing bears burden of proof). A determi-
nation that an IEP is sufficient is a factual finding that we review for
clear error.8 See Z.P., 399 F.3d at 309 & n.7. However, such a finding
is not entitled to deference to the extent that it is based upon applica-
tion of an incorrect legal standard. See id. at 309.
The IDEA provides that an IEP must state "the projected date for
the beginning of the services and modifications . . ., and the antici-
pated frequency, location, and duration of those services and modifi-
cations." 20 U.S.C.A. § 1414(d)(1)(A)(i)(VII) (emphasis added). The
Senate Report concerning the 1997 amendments to the IDEA, which
added the requirement that the location be identified, noted that the
new requirement reflects the fact that the location "influences deci-
sions about the nature and amount of these services and when they
should be provided." S. Rep. No. 105-17, at 21 (1997). Indeed, we
have previously discussed the potential importance of the particular
location at which special educational services are provided. See AW
ex rel. Wilson v. Fairfax County Sch. Bd., 372 F.3d 674 (4th Cir.
2004). In AW, the student alleged that the school district’s transfer of
him to a different classroom within the same school because of a pat-
tern of misbehavior violated the "stay-put" provision of the IDEA,
8That the order on review here is nominally one for summary judgment
does not preclude our application of the clear error standard to what are
essentially factual findings following a bench trial. See Z.P., 399 F.3d at
309 n.7.
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which requires that a student’s "educational placement" not
change while disciplinary proceedings are pending. See
20 U.S.C.A. § 1415(j); AW, 372 F.3d at 676, 678. We concluded that
there was "little support in the IDEA’s underlying principles for [the]
assertion that ‘educational placement’ should be construed to secure
[the] right to attend school in a particular classroom at a particular
location." AW, 372 F.3d at 681. We held "that the term ‘educational
placement’ as used in the stay-put provision refers to the overall edu-
cational environment rather than the precise location in which the dis-
abled student is educated." Id. at 676. We nevertheless observed that
a change in the location at which special education services are pro-
vided causes a change in "educational placement" if the location
change "results in a dilution of the quality of a student’s education or
a departure from the student’s [least restrictive environment]-
compliant setting." Id. at 682.
In light of the fact that the school at which special education ser-
vices are expected to be provided can determine the appropriateness
of an education plan, it stands to reason that it can be a critical ele-
ment for the IEP to address. See Paolo Annino, The 1997 Amend-
ments to the IDEA: Improving the Quality of Special Education for
Children with Disabilities, 23 Mental & Physical Disability L. Rep.
125, 126 (Jan./Feb. 1999) (noting that requirement that IEP identify
location at which special education is expected to be provided reflects
the fact that "[a]ll schools and classes are not uniform"). But see
White ex rel. White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379
(5th Cir. 2003) (holding that "[t]he provision that requires the IEP to
specify the location is primarily administrative"). The identification of
a particular school in the IEP indicates to the parents that the school
district has carefully considered and selected a school that will meet
the unique needs of the student. See Glendale Unified Sch. Dist. v.
Almasi, 122 F. Supp. 2d 1093, 1107 (C.D. Cal. 2000). Conversely, an
offer that fails to identify the school at which special educational ser-
vices are expected to be provided may not be sufficiently specific for
the parents to effectively evaluate. See Union Sch. Dist. v. Smith, 15
F.3d 1519, 1526 (9th Cir. 1994) (explaining that despite district’s
contentions that its school for autistic children would have been an
appropriate placement for the child, district did not offer that school
when it did not make a formal, written offer to provide the child ser-
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vices at that school); Knable ex rel. Knable v. Bexley City Sch. Dist.,
238 F.3d 755, 768 (6th Cir. 2001) (similar).
Here, we hold as a matter of law that because it failed to identify
a particular school, the IEP was not reasonably calculated to enable
A.K. to receive educational benefits. See Rowley, 458 U.S. at 207.
Indeed, this case presents an excellent example of the circumstances
under which inclusion of a particular school in an IEP can be determi-
native of whether a FAPE has been offered. The parents agree that an
appropriate private day school could provide a FAPE; they favor
keeping A.K. at Riverview only because they have not found a private
day school in their area that could meet A.K.’s specialized needs. Yet,
the IEP development process concluded without any significant dis-
cussion of whether such a school existed, or if it did, how it would
be a satisfactory match for A.K. Although Sullivan mentioned during
an IEP meeting that Kellar and Phillips would be possible placements,
the IEP team had never considered whether these particular schools
would be able to satisfy A.K.’s specialized needs. Indeed, IEP team
member Jill Cohen, an ACPS autism resource specialist, acknowl-
edged at the due process hearing that when she signed the IEP recom-
mending private day school she had no knowledge of any specific
private day schools being considered.
That ACPS proceeded to submit applications on A.K.’s behalf to
five different private day schools, at least two of which indicated,
without even meeting A.K., that they could not satisfy his specialized
needs, only highlights the need for the IEP team and the IEP to iden-
tify a particular school. With the IEP not identifying any particular
school (because the IEP team had not discussed the issue), the parents
were left to fend for themselves to determine whether any private day
school in their area—including the five ACPS applied to—would be
a satisfactory fit. This is not how the IDEA was designed to work. See
Glendale, 122 F. Supp. 2d at 1107 (noting that a failure to identify
a particular school places "an undue burden on a parent to eliminate
potentially inappropriate placements, and makes it more difficult for
a parent to decide whether to accept or challenge the school district’s
offer").9 Rather, "[a]fter discussing the advantages and disadvantages
9We note that in MM, the school district had agreed to provide special
education services at either of two different schools and we nonetheless
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of various programs that might serve the needs of a particular child,"
it is incumbent on the school district to utilize its expertise to "clearly
identify an appropriate placement from the range of possibilities."10
Id. at 1108.
In finding that ACPS offered A.K. a FAPE, the district court erro-
neously relied on the premise that "ACPS made a placement offer
both at the Phillips School and the Kellar School." A.K., 409 F. Supp.
2d at 694. In evaluating whether a school district offered a FAPE, a
court generally must limit its consideration to the terms of the IEP
itself. See Z.P., 399 F.3d at 306 n.5; Knable, 238 F.3d at 768. But cf.
MM ex rel. DM v. Sch. Dist., 303 F.3d 523, 535 (4th Cir. 2002) (eval-
uating proposed IEP when parents’ lack of cooperation prevented IEP
team from finalizing the IEP). Expanding the scope of a district’s
offer to include a comment made during the IEP development process
would undermine the important policies served by the requirement of
a formal written offer, namely, "creating a clear record of the educa-
tional placement and other services offered to the parents" and "as-
sist[ing] parents in presenting complaints with respect to any matter
relating to the educational placement of the child." Knable, 238 F.3d
at 768 (internal quotation marks & alteration omitted). Especially in
this case, in which the parents had tried in vain to find a local private
day school that could meet A.K.’s specialized needs, the offer of an
unspecified "private day school" was essentially no offer at all.11
held that the district had offered a FAPE. See MM, 303 F.3d at 535. The
opinion there, however, provides no indication that the parents objected
to the particular schools at issue or argued that the school district should
have identified a single school. See id.
10That is not to say that a change in the school where services were to
be provided would constitute a change in placement. Rather, a change in
school constitutes a change in placement only if the change "result[ed]
in a dilution of the quality of [the] student’s education or a departure
from the student’s LRE-compliant setting." AW, 372 F.3d at 682.
We emphasize that the IEP-development process is a cooperative one.
Thus, if the school district identifies several schools during that process
that it believes would serve the needs of the child, parents will have the
opportunity to voice their preference before the IEP is finalized.
11For this reason, the dissent’s contention that despite the fact that no
location was included in the IEP, the parents knew "with a reasonable
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We emphasize that we do not hold today that a school district could
never offer a FAPE without identifying a particular location at which
the special education services are expected to be provided. There is
no reason for us to frame the issue so broadly.12 But, certainly in a
case in which the parents express doubt concerning the existence of
a particular school that can satisfactorily provide the level of services
that the IEP describes, the IEP must identify such a school to offer
a FAPE.
Our determination that the school district failed to offer a FAPE
does not resolve the parents’ reimbursement claim, however. The
claim remains unresolved because the district court has not made
findings regarding the appropriateness of A.K.’s placement at River-
view. See Z.P., 399 F.3d at 311. Thus, we remand to the district court
for further proceedings consistent with this decision. See id.
III.
In sum, we reverse the grant of summary judgment against the par-
ents and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED
GREGORY, Circuit Judge, dissenting:
Today the majority mistakenly concludes that an inconsequential
procedural error denied a disabled student of the opportunity for a
FAPE. Of equal concern, the majority blurs the already indistinct line
degree of certainty" where ACPS proposed to educate A.K. is not dispo-
sitive. Post, at 18. The contention is also factually suspect considering
that although Sullivan mentioned that Kellar and Phillips would be possi-
bilities for A.K., she never indicated that the district would not consider
other schools as well (as it did when it sent applications to three other
schools).
12The dissent’s characterization notwithstanding, we do not "acknowl-
edge[ ] that the failure to identify the location of the provision of special
education services on a student’s IEP need not always result in the denial
of a FAPE." Post, at 17. We merely note that we need not decide that
issue today.
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between procedural and substantive errors in the preparation of IEPs,
documents that are of singular importance to the proper operation of
the IDEA. The IEP that ACPS prepared for A.K. was flawed—it did
not include the location at which A.K. would receive special educa-
tional services—but the flaw was merely procedural and did not deny
A.K. a FAPE. Because I believe the school district’s error was harm-
less, I respectfully dissent.
I.
In cases in which a student claims he was denied a FAPE, we first
inquire into whether the school district complied with the procedural
requirements of the IDEA. See Bd. of Educ. v. Rowley, 458 U.S. 176,
206-07 (1982). Even if ACPS violated one or more of the IDEA’s
procedural requirements, A.K. may have received an acceptable
opportunity for a FAPE. See DiBuo v. Bd. of Educ., 309 F.3d 184, 190
(4th Cir. 2002) (ruling that a procedural violation of the IDEA cannot
deny a disabled child a FAPE when the violation does not interfere
with the provision of a FAPE to that child); Burke County Bd. of
Educ. v. Denton, 895 F.2d 973, 982 (4th Cir. 1990). If A.K. did not
lose an educational opportunity as a result of the procedural error, he
was not denied a FAPE. See DiBuo, 309 F.3d at 190.
The majority is correct that A.K.’s IEP did not meet the IDEA’s
requirements. Specifically, the IEP did not specify the anticipated
location at which the school district would provide special education
services to A.K. The IDEA requires that an IEP include "the projected
date for the beginning of the services and modifications described in
subclause (IV), and the anticipated frequency, location, and duration
of those services and modifications . . . ." 20 U.S.C.
§ 1414(d)(1)(A)(i)(VII) (Supp. 2004). The statute does not define
location as it is used in § 1414(d)(1)(A)(i)(VII), but the term must
refer to something other than an educational placement, something
more akin to a particular geographic locale. Section
1414(d)(1)(A)(i)(VII) concerns itself with some of the logistical con-
siderations parents might have when making a decision regarding
their child’s education. The projected starting date, frequency, loca-
tion, and duration of the child’s educational sessions are relevant to
practical concerns like scheduling the child’s day and arranging for
the child’s transportation. See White v. Ascension Parish Sch. Bd.,
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343 F.3d 373, 379 (5th Cir. 2003) ("The provision that requires the
IEP to specify the location is primarily administrative . . . .").
This understanding of location is consistent with our precedent.
When defining educational placement as it is used in the IDEA’s
"stay put" provision, we repeatedly distinguished educational place-
ment from location. See A.W. v. Fairfax County Sch. Bd., 372 F.3d
674, 681-83 (4th Cir. 2004). Concluding that educational placement
referred to an "instructional setting," this Court emphasized that the
placement did not refer to the "precise location of that setting" or the
"precise physical location where the disabled student is educated." Id.
at 683, 681. As it is used in the IDEA (and in common parlance),
then, location refers to something geographic in nature: a place or
locale. This understanding is consistent with the notion that
§ 1414(d)(1)(A)(i)(VII) deals with practical, logistical considerations.
A.K.’s 2004-2005 IEP contains a chart with a column labeled "LO-
CATION OF SERVICES." That column bears the solitary entry
"SpeEd [illegible]," in reference to the type of education A.K. would
receive, not the location at which he would receive it. Thus, A.K.’s
IEP was flawed.1 ACPS’s error, however, was only procedural.
1I note that in IEPs developed for A.K. in previous years, the "LOCA-
TION OF SERVICES" column contained such entries as "Special Edu,"
"General Edu," "Consult," and "regular." These descriptions, whatever
their value, do not satisfy the IDEA’s requirement that the school district
list the anticipated location of services in the IEP. They did, however,
satisfy A.K.’s parents: A.K.’s mother signed IEPs that did not specify
location for both the 2002-2003 and 2003-2004 school years without
objection on this point.
A.K.’s mother signed the 2003-2004 IEP as part of a settlement agree-
ment between the parents and ACPS. Under the terms of the agreement,
the parents consented to the "private day school placement" designated
in the IEP in exchange for ACPS’s partial funding of A.K.’s education
at Riverview that year. Then, as now, the parents’ true complaint was
that A.K. should be at Riverview and not in private day placement at all.
Unfortunately, ACPS refused to subsidize A.K.’s Riverview education
for the 2004-2005 school year and presented ample evidence during the
2004 due process hearing to justify its choice of private day placement
for A.K. To obtain funding for their preferred school a second time, the
parents are left with a claim that a procedural oversight denied A.K.
some educational opportunity.
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There is no bright line distinguishing all the "procedural" require-
ments of the IDEA from its "substantive" requirements.2 If such a line
could be drawn, it might be done by looking to the consequences of
the violation of the IDEA requirement in question. The violation of
a substantive requirement results, of necessity, in the denial of a
FAPE, whereas the violation of a procedural requirement does not,
see DiBuo, 309 F.3d at 190. More than once the majority acknowl-
edges that the failure to identify the location of the provision of spe-
cial education services on a student’s IEP need not always result in
the denial of a FAPE. See ante 12, 14. This concession supports the
conclusion that the requirement that a school district give an antici-
pated location on the IEP is only procedural. But then the majority
states without explanation that it "views [A.K.’s] claim as an alleged
deficiency in what ACPS was offering rather than in the procedure by
which the offer was developed or conveyed" and therefore considers
the ACPS’s violation to be substantive. Ante 9 n.7. It is not. ACPS
erred, but that error was procedural.
II.
ACPS’s error did not deny A.K. a FAPE. In DiBuo, this Court
asked "[w]hether a procedural violation of the IDEA can support a
finding that a school district failed to provide a disabled child with a
FAPE when the procedural violation did not actually interfere with
the provision of a FAPE to that child." 309 F.3d at 190. The answer
to the question, we said, is no. Id. DiBuo and the cases it cites make
clear that something more than a simple procedural violation must
exist in order for an aggrieved student to prevail in this sort of appeal:
the violation must result in some loss of educational benefit or oppor-
tunity and cannot simply be a harmless error. See id. Here A.K. lost
no educational opportunity and therefore was not denied a FAPE.
As the district court pointed out, ACPS recommended both the
Phillips and Kellar schools as options for A.K. during the June 9 IEP
meeting. A.K. ex rel. J.K. v. Alexandria City Sch. Bd., 409 F. Supp.
2Although 20 U.S.C. § 1415 addresses itself specifically to procedural
safeguards, we have found several of the requirements listed in § 1414
to be procedural as well. See, e.g., DiBuo, 309 F.3d at 187, 190-92; MM
ex rel. DM v. Sch. Dist., 303 F.3d 523, 535 (4th Cir. 2002).
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2d 689, 693 (E.D. Va. 2005). Whether or not there was extensive dis-
cussion of the schools during the meeting, Susan Sullivan named the
schools as possible locations at which A.K. might be educated. In
A.K.’s case, this oral notice was equivalent to the written notice the
IDEA requires: after Sullivan’s suggestions were made, A.K.’s par-
ents knew with a reasonable degree of certainty where ACPS pro-
posed to educate their child the following school year. The Phillips
and Kellar schools were the only ones named as possibilities by
ACPS until the school district sent A.K.’s information to several other
private day schools on July 6, and during the IEP meeting, A.K.’s par-
ents understood them as such.
The majority discounts the mention of these two schools because,
it says, the IEP team had never considered whether those particular
schools would be able to satisfy A.K.’s needs. See ante 12-13. This
objection has no bearing on the question whether ACPS’s failure to
specify a location on the IEP harmed A.K. The majority’s principal
concern is that A.K.’s parents had no idea where their child was likely
to receive special education services, placing upon them the "undue
burden" of investigating any number of potential placements. See ante
at 12. But A.K.’s parents did know where he would likely receive
special education services: the Phillips School or the Kellar School.
Even if the decision-making process was relevant to the question
of notice, there was no defect in the manner in which ACPS selected
the Phillips and Kellar schools as possibilities. Sullivan, who sug-
gested the schools at the June 9 meeting, was ACPS’s private place-
ment specialist and had nearly thirty years of experience in the special
education field. It was her job to place needy students in private day
or residential schools. She visited schools (including Phillips and Kel-
lar) and worked with teachers and parents to ensure successful place-
ments. She knew A.K.’s case well and had placed other students in
both the Phillips and Kellar schools before. Her recommendations for
A.K. were of precisely the sort it was her job to make. The IDEA
does not govern the process by which she must arrive at her recom-
mendations, and I find no problem with either her reliance upon her
expertise or her ultimate suggestions. Cf. § 1414(d)(3)(B) (listing fac-
tors IEP team must consider while developing IEP).
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The IDEA does not require that an IEP identify the definitive loca-
tion for the provision of a child’s special education services; the IEP
need only supply the anticipated location. § 1414(d)(1)(A)(i)(VII). In
A.K.’s case, the IEP did not, but ACPS suggested two potential loca-
tions during the June 9 meeting.3 If A.K.’s parents wished to chal-
lenge the suitability of either school, they could have done so (and
did), but the basis for their complaint ought not to have been that they
were unaware of the anticipated location of services. Because A.K.’s
parents were given notice that the Phillips and Kellar schools were
locations under consideration, ACPS’s failure to write this informa-
tion on his IEP did not deny A.K. of an educational opportunity.
Perhaps more important than the notice provided in the June 9 IEP
meeting is the apparent determination of A.K.’s parents to keep him
at Riverview no matter the outcome of the IEP proceedings. See MM
ex rel. DM v. Sch. Dist., 303 F.3d 523, 535 (4th Cir. 2002) (finding
procedural error harmless in part because there was no evidence par-
ents would have accepted FAPE offered by school district). Before
the 2004-2005 IEP development process even began, A.K.’s parents
signed a contract and paid a deposit for A.K. to return to Riverview
for the summer of 2004 and the 2004-2005 school year.4 A.K.’s
3As the majority acknowledges, see ante 12 n.9, this Court has upheld
the validity of an IEP in which a school district promised to provide spe-
cial education services at one of two different locations, see MM, 303
F.3d at 529, 535. Although the number of schools suggested on the IEP
was not at issue in that case, MM lends support to the proposition that
a school district may suggest more than one school and still satisfy its
obligation to write the anticipated location of the provision of services
on an IEP. A multiplicity of suggested locations may well place an
"undue burden" on the parents (as might suggesting no school at all), but
two schools hardly constitute a multiplicity. I am troubled that the major-
ity is willing to punish a school district for acknowledging that more than
one school may appropriately serve a child’s needs. Given that neither
of the two suggested schools had met with A.K. personally (as each
needed to do before finally determining whether it could adequately
serve him), it would serve no purpose to force ACPS arbitrarily to sug-
gest one over the other in the IEP.
4A.K.’s father pointed out that the deposit was to reserve A.K.’s spot
at Riverview and that the parents had not yet given any "substantive
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mother testified that she was unwilling to bring A.K. back from
Riverview, where he was attending a summer program, without a
"specific placement" in Alexandria being identified first. Apparently
this unwillingness extended even to trips home that might help iden-
tify that "specific placement": both Phillips and Kellar requested
interviews with A.K. during the summer in order to determine conclu-
sively whether they could give him the assistance he required, but
A.K.’s parents never brought him home to attend those interviews.
A.K.’s mother testified that when the Phillips and Kellar schools were
named as potential locations in the June 9 IEP meeting, she already
had determined that both schools were inappropriate for her son. She
understood those schools were suggested locations; she simply dis-
agreed with their selection. It is difficult to understand how A.K.
could have lost educational opportunity on account of the omission of
the schools’ names from his IEP when his parents understood both
schools were under consideration and had already expressed that nei-
ther was appropriate for their son.
Finally, the Hearing Officer’s decision indicates that the parents
had no objections to the notice the IEP provided at the time of A.K.’s
due process hearing. Any procedural violations pertaining to the IEP’s
notice function, then, were considered harmless by the parents (or at
least, harmless enough that the parents chose not to raise the issue
before the Hearing Officer). In short, A.K. was denied no educational
opportunity as a result of ACPS’s failure to list an anticipated location
for his education on his 2004-2005 IEP. Without a denial of an educa-
tional opportunity, A.K. could not have been denied a FAPE by the
error. See DiBuo, 309 F.3d at 190.
funding" to Riverview at the time of the IEP meetings. The $5,700
deposit accompanied a document entitled "Reservation and Enrollment
Agreement," signed April 8, 2004, by A.K.’s parents that set out the
terms and conditions of A.K.’s education at Riverview for the 2004-2005
school year. Such a deposit might have served only as a safety net
intended to catch A.K. should negotiations with ACPS fall through or
lead to the conclusion that Riverview was the appropriate placement. On
the other hand, the deposit and enrollment agreement are also consistent
with an intent to keep A.K. at Riverview no matter the outcome of the
IEP proceedings.
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III.
The second component of the reviewing court’s inquiry regards
substantive compliance with the IDEA. It is intended to ensure that
the IEP developed is "reasonably calculated to enable the child to
receive educational benefits." Rowley, 458 U.S. at 206-07. In this
case, the Hearing Officer found that private day placement would "as-
sist AK in his transition into the local community, and constitute the
least restrictive environment for him." A residential program like
Riverview, the Hearing Officer concluded, was not required by the
IDEA because it "merely enhance[d] an otherwise sufficient day pro-
gram."
Before reaching this conclusion, the Hearing Officer heard the tes-
timony of educational experts presented by both parties on topics
including the appropriateness of the Phillips and Kellar schools for
A.K. See A.K., 409 F. Supp. 2d at 694-95. ACPS presented Sullivan,
who had visited both schools many times. She offered testimony
about both schools and how A.K. would fit in at each based on her
knowledge of the schools and A.K.’s needs. ACPS also presented
Cara Jill Cohen, its autism resource specialist and an expert in special
education. Cohen had observed A.K. in a variety of school settings,
including at Riverview, and had worked with Sullivan on A.K.’s IEP
team. She was involved in the decision to recommend a private day
school for A.K. and believed that his needs could be met by one. The
Hearing Officer also heard the testimony of Laura Heyer, the program
supervisor of the high school combination program at Phillips, who
described the school and its programs in detail. She testified on the
basis of her experience and A.K.’s records, which were sent to her in
July 2004, that she saw nothing about A.K.’s case to suggest that
Phillips could not adequately serve his needs. In opposition, A.K.’s
parents presented two experts who opined that A.K. could not prop-
erly be served at a private day school like Phillips or Kellar, but nei-
ther expert had more than the shallowest of acquaintances with either
school.
The Hearing Officer’s findings, including the finding that the Phil-
lips or Kellar school were sufficient to meet A.K.’s needs, are entitled
to a presumption of correctness. A.B. ex rel. D.B. v. Lawson, 354 F.3d
315, 325 (4th Cir. 2004). The evidence in the record does not rebut
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the presumption in this case. A.K.’s mother may not have cared for
Phillips or Kellar, but the evidence indicates that the schools ade-
quately would have attended to A.K.’s educational needs. As this
Court has said before, the "IDEA requires great deference to the
views of the school system rather than those of even the most well-
meaning parents." A.B., 354 F.3d at 328. ACPS provided A.K. with
the opportunity for a FAPE and therefore has no obligation to bear the
cost of his private school education during the 2004-2005 school year.
See 20 U.S.C. § 1412(a)(10)(C)(i).
IV.
Despite committing a procedural error in the preparation of his
IEP, ACPS provided A.K. with the opportunity for a FAPE. Conse-
quently, he is not entitled to reimbursement of his Riverview tuition
or the remand granted by the majority. I am disappointed that my col-
leagues today punish a school district for a harmless oversight. Had
ACPS simply written the names of the candidate schools on A.K.’s
IEP there would be no basis for complaint. In this case, A.K. has a
legitimate complaint, but because he lost no educational opportunity
as a result of ACPS’s oversight, the IDEA affords him no remedy.
The district court’s decision should be affirmed.
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