Seventh Circuit Holds That School Provided Free Appropriate Public Education

In M.B. v. Hamilton Southeastern Schools, No. 10-3096, the 7^th Circuit Court of Appeals (which has jurisdiction over Illinois) held on December 22, 2011, that Hamilton Southeastern Schools and Hamilton-Boone-Madison Special Services did not deny a student a free appropriate public education ("FAPE") when the school system refused to place the student in full-day kindergarten despite a neuropsychologist's opinion that full-day kindergarten was necessary.

M.B., at the age of four, was involved in a car accident that resulted in traumatic brain injury.  Before M.B. began kindergarten, his parents asked his school about special education services, including early childhood and extended school year services.  The parents had M.B. evaluated by a neuropsychologist who determined that M.B. must be placed in full-day kindergarten to provide him with the consistency and reinforcement he would need to obtain a FAPE.

At the IEP team's first meeting, M.B.'s parents agreed to allow the school to place M.B. in a half-day early childhood program for four weeks so that the school could further evaluate him to determine a proper kindergarten placement.  The IEP team reconvened at the end of the four weeks to assess M.B.'s progress.  At this meeting, M.B.'s parents requested that he be placed in a full-day kindergarten program per the neuropsychologist's recommendation.  However, school officials determined that M.B. had made adequate progress toward his IEP goals and that a half-day session of kindergarten was sufficient to provide M.B. with a FAPE. 

Discussions over M.B.'s placement eventually stalled, prompting his parents to remove him from the school and unilaterally place him in a private school.  M.B.'s parents then invoked IDEA's due process mechanism seeking reimbursement for the expenses they incurred by placing M.B. in a private program.  The parents argued that the school failed to provide M.B. with a FAPE because it refused to place him in a full-day kindergarten program as recommended by the neuropsychologist who evaluated M.B.  The hearing officer who considered the parents' due process complaint found that the school officials could reasonably conclude that a full day of kindergarten was unnecessary based on M.B.'s progress during the four week early childhood program and that the school did not fail to provide M.B. with a FAPE. 

The parents appealed the hearing officer's decision to the state appeals board, which upheld the decision.  Then, the parents filed suit in federal district court again seeking reimbursement for the private placement.  However, the district court granted the school's motion for summary judgment.  Finally, M.B.'s parents appealed to the 7th Circuit Court of Appeals.

The 7th Circuit affirmed the district court's grant of summary judgment, holding that the school did not fail to provide M.B. a FAPE even though it refused to place him in a full-day kindergarten program against the neuropsychologist's recommendation.  The court noted that a "physician cannot simply prescribe special education."  Rather, the school was entitled to determine M.B.'s placement in light of the progress he had made during the early childhood program.  The court stated, "[g]iven that M.B. was making progress toward his IEP goals while receiving half-day, early-childhood services, it was reasonable for the committee to conclude that M.B. did not require double-session kindergarten to meet his needs."  Because the parents could not establish a denial of FAPE, they were not entitled to reimbursement for the private placement or attorney's fees.