FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JANUARY 31, 2012

JOHN LEY

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 10-12556

________________________

D. C. Docket No. 4:09-cv-00022-CDL

G.J., L.J., AND E.J., INDIVIDUALLY AND ON BEHALF OF G.J.,

Appellants,

versus

MUSCOGEE COUNTY SCHOOL DISTRICT,

Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(January 31, 2012)

Before DUBINA, Chief Judge, CARNES, Circuit Judge, and FORRESTER,*

District Judge.

Forrester, District Judge:

Honorable J. Owen Forrester, United States District Judge for the Northern District of *

Georgia, sitting by designation.
I. Procedural History

In this case, we should be called upon to determine whether the

Administrative Law Judge and the district court properly evaluated Appellants’

claims that the Muscogee County School District (“the school district” or

“MCSD”) did not comply with certain provisions of the Individuals with

Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., with respect to

services it was to provide to G.J., the elementary school-aged child of Appellants

E.J. and L.J. Instead, as the Administrative Law Judge and the district court

1

before us, we must first offer our dismay at the state of events which has brought

us to this appeal. Rather than working in the collaborative model anticipated by

the IDEA, Appellants and their counsel have taken positions throughout the course

of this litigation that have no foundation in the law and would require the school

district to give up important rights granted to it under the IDEA. The school

district could not be expected to agree to such requests. In reviewing these

matters, the Administrative Law Judge and the district court have specifically

commented on the difficulties that have arisen due to Appellants’ positions and the

distraction they have caused from the development of a beneficial program for G.J. 

Congress amended the IDEA in the Individuals with Disabilities Education Improvement 1

Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 ("IDEIA"), which took effect on July 1, 2005.

2
Appellants E.J. (father) and L.J. (mother) are the parents of Appellant, G.J.,

a child with autism and brain injuries. G.J. is non-verbal and self-abusive. G.J.

was first found to be eligible for special education services under the IDEA in

March 2005 after the school district performed certain evaluations. The record

reveals little of what happened among the parties between March 2005 and an

April 23, 2008, individualized education program (“IEP”) meeting where the

school district sought Appellants’ consent to complete a triennial reevaluation of

G.J. Due to disagreements among the parties, no agreement on consent was

reached at the April 23, 2008, meeting.

On May 20, 2008, L.J. again refused to sign the consent form and noted on

the form “Not approved by IEP or parents until lawyers work out guidelines. 

MCSD cannot evaluate [G.J.] for anything.” By June 3, 2008, E.J. and L.J. were

prepared to sign the consent form but only under the conditions “as explained and

granted in the addendum.” That “addendum” contained the following conditions:

(1) the terms, scope, and usage of the evaluation shall be as

identified for the purposes of this consent as the IEP meeting

concerning [G.J.], held on 4-23-08 only;

(2) the evaluation shall be conducted by Dr. Lankenau;

(3) the evaluation shall be conducted pursuant to the ethical

standards of the American Psychological Association and, if

different, also pursuant to the standards and ethical and rules

3
[sic] of the Georgia State Composite Board for applied licensed

psychologists;

(4) the evaluation shall include an initial meeting with the parents

prior to the evaluation to discuss all aspects of the evaluation

and their consent, including the identification of the time and

location of the evaluation, and it shall not be considered

complete until the evaluator affords the parents the opportunity

at a mutually convenient time and place to meet to discuss the

evaluation and its results prior to its submission to or use by the

IEP team;

(5) this consent is based upon the information provided to the

parent(s) at the IEP meeting or in any prior written notice and

granted in reliance upon such information and these terms. 

Any changes requested by the evaluator or to the evaluator or

the System shall invalidate this consent and require additional

notice and subsequent consent. The parents do not agree that

the “Examples of Assessment Instruments” attached to the

evaluation consent form is an adequate notice for the purposes

of obtaining consent;

(6) the evaluation shall be maintained as confidential and shall not

be used or distributed in any personal identifying fashion by

any third party, person or entity without prior notice and

written consent; and

(7) this consent is not a waiver of any rights or actions not

explicitly identified, nor should any implied waiver be

presumed.

See ALJ, Final Order, AR1-84, at 3-4. Not surprisingly, the school district refused

to accede to these conditions. Since then, the parties have engaged in three years

4
of litigation surrounding the manner in which the issue of reevaluation was

handled.

On July 21, 2008, Appellants filed a Due Process Hearing Request

(Complaint) with the Office of State Administrative Hearings in Georgia. This

administrative hearing has been referred to by the parties as G.J.-1 (G.J. v. MCSD,

OSAH-DOE-SE-0902167-106-Miller). Appellants’ complaint in G.J.-1 is lengthy

and wide-ranging. In general terms, Appellants alleged that the school district

failed to: provide proper notice under 20 U.S.C. § 1415(c)(1); comply with

Hearing Procedure Rights found in 34 C.F.R. § 300.504(a)(2) and (c); timely

provide records under 34 C.F.R. § 300.501(a), § 300.613 and § 300.614; permit

proper parent participation; provide notice of progress and valid progress reports;

implement or develop an appropriate IEP; allow access to the program and

observation; allow consideration of placement; and offer an appropriate and safe

placement. Appellants also alleged that the school district: violated decisions

made in IEP meetings, provisions and agreements; altered and created records;

was hostile to the parents; provided an illegal and void placement; and denied the

parents the right to informed consent.

Appellants contended that these procedural violations formed the basis for a

claim of relief because the actions impeded G.J.’s right to a “free and appropriate

5
public education” (“FAPE”) under the IDEA. They also asserted that the school

district substantively denied G.J. a free and appropriate education because of these

violations. Finally, Appellants claimed that the school district denied them their

hearing rights because Appellants did not have the appropriate access to

documents and other materials for a hearing before the Administrative Law Judge.

Several months later, on September 25, 2008, Appellants filed a separate

complaint before the Office of State Administrative Hearings, G.J. v. MCSD,

OSAH-DOE-SE-IEE-0908379-106-Miller (G.J.-2). This complaint sought an

independent educational evaluation (“IEE”) at public expense and a right to have a

private evaluation. The Administrative Law Judge consolidated the two

proceedings and issued two Final Orders on November 19, 2008.

In G.J.-1, although the Administrative Law Judge recognized that

Appellants alleged “numerous procedural and substantive violations of IDEA and

[sought] various forms of relief, including a private residential placement at public

expense, compensatory education, and attorney’s fees,” the judge found that

Appellants were not entitled to proceed on these claims because “Defendant is no

longer obligated to provide special education services to him under IDEA.” See

ALJ, Final Order, AR1-84, at 5-6. The judge continued:

6
Here, the Plaintiff’s parents have effectively refused to consent to the

Defendant’s IDEA-mandated triennial reevaluation. As a

consequence of this refusal, the Plaintiff is not entitled to receive

special education services from the Defendant; and, since the

Defendant is not required to provide services, this Court is unable to

grant any of the relief sought by the Plaintiff. 

Id. at 6.

In G.J.-2, the Administrative Law Judge found that a student has a right to

an independent educational evaluation (either publicly or privately funded) only

when the school district has already performed an evaluation or reevaluation with

which the parent disagrees. See ALJ, Final Order AR2-30, at 6, 8-9. Because the

judge found that the parents had effectively refused to consent to the reevaluation,

the judge found that the parents were not entitled to an independent educational

evaluation. Id.

The decisions of the Administrative Law Judge were appealed to the United

States District Court for the Middle District of Georgia. Before the district court,

Appellants added claims under the Americans with Disabilities Act, 42 U.S.C. §§

12131 et seq., as well as Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.

§ 794, and 42 U.S.C. § 1983. The district court held: (1) although Appellants did

not “refuse” to have G.J. reevaluated to the extent that the school district would no

longer be required to provide services to G.J., Appellants could not dictate the

7
terms and conditions of the reevaluation; (2) Appellants are not entitled to an

“independent educational evaluation” at this time; and (3) because Appellants did

not exhaust their administrative remedies, the school district’s motion to dismiss

Appellants’ non-IDEA claims would be granted.2

We review questions of law, including interpretation of the IDEA, de novo. 

See, e.g., Walker Cnty. Sch. Dist. v. Bennett ex rel. Bennett, 203 F.3d 1293, 1295

n.6 (11th Cir. 2000). We review a district court’s determination to exclude

additional evidence for abuse of discretion. Id. Whether the district court

properly determined that the parents failed to consent to the reevaluation is a

mixed question of law and fact subject to de novo review. Id. at 1295 n.7. We

review specific findings of fact for clear error. Id. 

II. Discussion

Under the post-2004 IDEA amendments, a student receiving special

education services must be reevaluated “at least once every 3 years, unless the

parent and the local educational agency agree that a reevaluation is unnecessary.”

20 U.S.C. § 1414(a)(2)(B)(ii). Parental consent is required for a reevaluation. 20

U.S.C. § 1414(c)(3). “Consent” is defined as:

The Appellants do not appeal the district court’s dismissal of the non-IDEA claims and 2

have therefore abandoned any claim that the district court erred in doing so.

8
(a) The parent has been fully informed of all information relevant

to the activity for which consent is sought . . .;

(b) The parent understands and agrees in writing to the carrying

out of the activity for which his or her consent is sought, and

the consent describes that activity and lists the records (if any)

that will be released and to whom; and

(c)(1) The parent understands that the granting of consent is

voluntary on the part of the parent and may be revoked at any

time.

34 C.F.R. § 300.9. “If the parent refuses to consent to the reevaluation, the

[school district] may, but is not required to, pursue the reevaluation by using the

consent override procedures” in the regulations. 34 C.F.R. § 300.300(c)(1)(ii); see

also Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53-54, 126 S. Ct. 528, 532

(2005). 

In M.T.V. v. DeKalb County School District, 446 F.3d 1153 (11th Cir.

2006), we held that when conducting a reevaluation, a school is “entitled to

reevaluate [a child] by an expert of its choice.” Id. at 1160. “The school cannot

be forced to rely solely on an independent evaluation conducted at the parents’

behest.” Id. (quotation and citation omitted). “Every court to consider the IDEA’s

reevaluation requirements has concluded if a student’s parents want him to receive

special education under IDEA, they must allow the school itself to reevaluate the

9
student and they cannot force the school to rely solely on an independent

evaluation.” Id. (quotation and citation omitted).

Appellants first argue that the school district never gave them an

opportunity to consent because it never informed them about what tests it intended

to use, but rather gave them blank forms to sign. The record is not as bare as

Appellants suggest. There is no dispute that the reevaluation was discussed at the

April 23, 2008, individualized education program meeting. No agreement was

reached and several days later, the school district sent the standard “Parental

Consent for Evaluation” form to Appellants. The form states that G.J. was

referred by the IEP team for reevaluation. It also stated that

[i]f you have any questions about why we feel your child needs

testing or want to know more details about the evaluation, please call

your child’s school. If you agree to have this evaluation done, you

can request to know the exact time and place that it will occur. You

will have a chance to discuss the results following the evaluation. 

You will also be invited to a meeting to discuss the findings. No

changes will be made in your child’s educational program until we

hold the meeting. The individual evaluation may include tests in the

following areas: vision, hearing, motor skills, social/emotional,

achievement, speech/language or others. An explanation of these

areas is included. Your parental rights are included, which show that

you have certain rights regarding consent and evaluation procedures.

See Parental Consent for Evaluation (attaching Parents Rights in Special

Education and Examples of Assessment Instruments). The form then asks the

10
parents to check either: “Yes, I agree for the Muscogee County School System to

evaluate my child” or “No, I do not agree for the following reasons.” 

In this case, the parents refused to sign those forms and then provided their

own lengthy “Addendum” as discussed above. Because the parameters of

reevaluation had been discussed at the April 23, 2008, individualized education

program meeting and examples of testing were provided in the consent form, we

conclude that the parents were provided with sufficient information on which to

consent. The parents, themselves, state that one of the reasons they did not sign

off on the school district’s consent form is that the form did not reflect the

discussion the parties had during the IEP meeting. Thus, it is not so much lack of

information the parents oppose, but the manner in which the evaluation was to be

conducted. To be clear, the parents did not agree to the manner of reevaluation,

but that is a different matter than whether they were given information about the

reevaluation.

The district court found that due to the number of conditions appended,

Appellants had not provided consent when they proposed the Addendum to the

school district. See Dist. Ct. Order, R4-35-18-19. We find there is absolutely no

basis upon which any party could disagree with the district court’s conclusion on

this issue. Appellants’ conditions vitiated any rights the school district had under

11
the IDEA for the reevaluation process, such as who is to conduct the interview, the

presence of the parents during the evaluation, not permitting the evaluation to be

used in litigation against Appellants, and whether the parents received the

information prior to the school district. We find, therefore, no error in the district

court’s conclusion that due to the extensive nature of the conditions demanded by

the parents, the parents had refused to provide consent to the school district for the

reevaluation.

3

In contrast to the Administrative Law Judge, however, the district court

found that this refusal to consent did not result in the parents relinquishing any

right to services under the IDEA. See id. at 21. Rather, the district court held that

because a reevaluation had never been ordered by either the Administrative Law

Judge or a court, Appellants had not refused a reevaluation after it had been

ordered. Id.

G.J.’s father testified via affidavit that at some point, the parents had agreed to withdraw 3

the conditions contained in the Addendum. See E.J. Aff., ¶¶ 39, 41. However, there is no

indication that these attempted withdrawals of the conditions were made in writing. 

Furthermore, Paragraph 41 does not describe a withdrawal of all conditions. Rather, it states that

the parents would agree to the reevaluation so long as the school district agreed not to use the

reevaluation in litigation against the parents. This is a significant condition. Given the history of

the parties’ interactions, it was unlikely that the parents and the school district would be able to

agree to an individualized education program after the reevaluation. The school district could not

waive in advance its right to use its reevaluation in any challenge the parents made to the

individualized education program proposed by the school district, particularly when the parents

would retain the right to use their independent educational evaluations. We find, therefore, that

the district court did not commit clear error in determining that the parents had never withdrawn

their conditions to the reevaluation.

12
It is at this point in the litigation where the old adage “no good deed goes

unpunished” comes to bear. Recognizing the degree to which the relationship

between the parents and the school had disintegrated and the time with which G.J.

had been without a reevaluation, the district court determined that the best course

of action was for the court to “grant such relief as the court determines is

appropriate,” as it must, under 20 U.S.C. § 1415(i)(2)(C)(iii), and order Appellants

to consent to a reevaluation. Id. 

The district court, however, placed certain conditions on the reevaluation,

including that the reevaluation could be used for any purpose permitted by the

IDEA, the school district would pick the evaluator, consult with Appellants to find

a mutually agreeable date, and provide relevant information to the parents. See

Dist. Ct. Prder. R4-35-22-23. The court also provided that the evaluator could

request additional tests, the results would not be shared beyond that which is

contemplated by the IDEA, and the parties would receive the results of the test at

the same time. Id. at 23. If the parents disagreed with the results of the

reevaluation, the parents could seek an independent educational evaluation. Id.

Thus, the district court attempted to move the parties toward the main goal of the

IDEA which is to provide the appropriate services to the student, a goal which

could be reached only by completing the reevaluation process. The district court’s

13
remedy did not force the parents to relinquish their rights to services under the

IDEA in order to challenge any findings of the reevaluation. It also addressed the

reasonable concerns of the parents, including the right to be informed of certain

aspects of the reevaluation.

Appellants disagree with the findings of the district court, arguing first that

any support for the district court’s order found in M.T.V. is not helpful because

M.T.V. has been effectively overruled by the 2004 amendments to the IDEA which

did not take effect until July 1, 2005, and therefore, did not apply to our

consideration in M.T.V. See 446 F.3d at 1157 n.2. It is not clear to us that this is

the case. We do recognize that the 2004 amendments set forth that the school

district had the right to seek a due process hearing if parents refused to consent to

an evaluation. See Schaffer, 546 U.S. at 53, 126 S. Ct. at 532. 

4

In any event, we do not find it necessary to determine whether the 2004

amendments abrogated M.T.V. because unlike the Administrative Law Judge, the

district court did not find that Appellants waived entitlement to services due to the

Appellants’ argument that if the school district wanted to proceed with the reevaluation 4

in light of the parents’ refusal to consent, it was required to file its own request for a due process

hearing, is a bit disingenuous in light of the manner in which the parents attempted to block the

school district’s efforts to take that very course of action before the Administrative Law Judge.

14
disagreement over consent and it is this portion of the 2004 amendments upon

which Appellants focus. 

There is no question that the IDEA grants “broad discretion” to the district

court. See, e.g., Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1284 (11th Cir.

2008). We find that given the hostile circumstances here, the district court worked

admirably to develop the parameters for reevaluation that would address the

concerns of both the school district and the parents, as well as get the educational

process for G.J. moving again. Therefore, we find no error in the manner in which

the district court resolved the reevaluation issue.

We turn now to whether an independent educational evaluation should have

been granted at the parents’ request. Because no reevaluation had taken place due

to the parents’ refusal to consent, the district court determined that Appellants had

no right to a publicly funded independent educational evaluation. See Dist. Ct.

Order, R4-35-24. For the same reason, the court also found that Appellants did

not have a right to a privately funded independent educational evaluation. Id. at

25. 

Parents have a right under certain circumstances “to obtain an independent

educational evaluation of the child.” 20 U.S.C. § 1415(b)(1). A parent has a right

to evaluation “at public expense if the parent disagrees with an evaluation

15
obtained by a public agency.” 34 C.F.R. § 300.502(b)(1). “A parent is entitled to

only one independent educational evaluation at public expense each time the

public agency conducts an evaluation with which the parent disagrees.” Id. §

300.502(b)(5).

The district court correctly determined that the statutory provisions for a

publicly funded independent educational evaluation never kicked in because no

reevaluation ever occurred. The right to a publicly funded independent

educational evaluation does not obtain until there is a reevaluation with which the

parents disagree. 

The IDEA does not specifically address when parents may obtain a privately

funded independent educational evaluation. Obviously, the IDEA does not govern

the right of parents to take their child to any privately paid evaluator at any time

they wish. Rather, the IDEA regulates the manner in which such an evaluation

can be used in the development of a special education program. The IDEA

provides that “[i]f the parent . . . shares with the public agency an evaluation

obtained at private expense, the results of the evaluation – (1) Must be considered

by the public agency, if it meets agency criteria, in any decision made with respect

to the provision of FAPE to the child . . .” Id. § 300.502(c). 

16
Appellants’ contention with respect to the independent educational

evaluation conducted at private expense seems really to be about whether the

parents’ chosen evaluators would have access to observe G.J. in the school setting. 

There is scant development of law on this issue. Both parties point to an

administrative ruling of the Office of Special Education Programs in the United

States Department of Education, Letter to Mamas, 42 IDELR 10 (OSEP, May 26,

2004). There, the agency commented that 

[w]hile the IDEA expects parents of children with disabilities to have

an expanded role in the evaluation and placement of their children

and be participants, along with school personnel, in developing,

reviewing, and revising the IEPs for their children, neither the statute

nor the regulations implementing the IDEA provide a general

entitlement for parents of children with disabilities, or their

professional representatives, to observe their children in any current

classroom or proposed educational placement. The determination of

who has access to classrooms may be addressed by State and/or local

policy. However, we encourage school district personnel and parents

to work together in ways that meet the needs of both the parents and

the school, including providing opportunities for parents to observe

their children’s classrooms and proposed placement options. In

addition, there may be circumstances in which access may need to be

provided. For example, if parents invoke their right to an

independent educational evaluation of their child, and the evaluation

requires observing the child in the educational placement, the

evaluator may need to be provided access to the placement.

Id. at 2. Contrary to the parties’ assertions, we find no mandate either for or

against access in this agency ruling. Rather, the process contemplates cooperation

17
between parents and school administrators. The district court noted that

Appellants did receive permission for their experts to observe G.J. in the

classroom sometime in 2007 or 2008. Their observations were included in their

report which recommended the consideration of residential placement for G.J. See

Dist. Ct. Order, R4-35-24 n.11. Further, Appellants cited on appeal to portions of

Dr. Babcock’s affidavit where he describes his observations of G.J. in the

classroom. See Gray Brief, at 14-15. Thus, some observation of G.J. in the

classroom setting did occur.

In crafting its remedy on reevaluation, the district court anticipated that the

school district would have a reevaluation done by its evaluator and also

recognized that the parents had obtained their own independent educational

examinations which contained recommendations on placement. So that all

information would be brought to the table, the district court ordered that the IEP

team consider any information provided by G.J.’s parents, “including the reports

prepared by Plaintiffs’ expert.” See Dist. Ct. Order, R4-35-23-24. The district

court’s order, therefore, considered observation of G.J. by Appellants’ chosen

evaluators.

5

We make no comment as to whether the parents would need the opportunity to conduct 5

additional observation as a result of the school district’s proposed educational program based on

the reevaluation that later took place.

18
Appellants also complain that the district court did not hear additional

evidence before ruling on the motions for summary judgment. We have discussed

at length the procedure for adjudicating motions for summary judgment in the

IDEA context. See, e.g., Loren F. ex rel. Fisher v. Atlanta Indep. Sch. Sys., 349

F.3d 1309 (11th Cir. 2003). Although it is often called a summary judgment

proceeding, courts have more accurately described it as a judgment on the record. 

Id. at 1313. Even if facts are in dispute, courts may use the “summary judgment”

process. Id. Nothing bars a district court from fact-finding under Federal Rule of

Civil Procedure 52 in IDEA cases. Id. at 1313-14. The district court reviews the

record of the state administrative agency and where the court does not receive any

additional evidence, we stand “in the same shoes as the district court in reviewing

the administrative record and may, therefore, accept the conclusions of the ALJ

and district court that are supported by the record and reject those that are not.” 

Id. (quotation and citation omitted).

Despite the fact that the statute says the district court “shall hear additional

evidence at the request of a party,” 20 U.S.C. § 1415(i)(2)(C)(ii), we have not

previously read that as a mandate to take additional evidence any time a party so

requests. A district court is permitted to accept additional evidence, but is not

required to do so. The “IDEA specifically provides that the court may take

19
additional evidence and may fashion relief that the court deems appropriate.”

School Bd. of Collier Cnty. v. K.C., 285 F.3d 977, 981 (11th Cir. 2002) (quotation

and citations omitted). “The determination of what is ‘additional’ evidence must

be left to the discretion of the trial court which must be careful not to allow such

evidence to change the character of the hearing from one of review to a trial de

novo.” Id. (quotations and citations omitted).

We review a district court’s decision to deny a motion for additional

evidence for an abuse of discretion. Walker Cnty., 203 F.3d at 1295 n.6. The only

specific evidence Appellants assert they would have wanted to present is the

affidavit of Dr. Richard Elliott. The portion of Dr. Elliott’s affidavit cited by the

parents is simply his “expert opinion” that the Administrative Law Judge got the

issue of informed consent wrong. Consent is amply discussed in the regulations

promulgated under the IDEA. It is an issue of law upon which no expert opinion

is generally required. Similarly, Dr. Elliott’s testimony concerning what the

medical profession teaches doctors with respect to consent is simply irrelevant to

what might be required under the IDEA. See Elliott Aff., ¶ 8 (cited by Appellants,

Gray Brief, at 16). Therefore, we find no error in the district court’s refusal to

consider the affidavit of Dr. Elliott.

20
Now that we have determined that the district court did not err in setting

forth reasonable conditions for G.J.’s reevaluation and in determining that

Appellants were not entitled to either a private or publicly funded independent

educational evaluation, we must consider one final argument by Appellants. 

Because the Administrative Law Judge determined that the parents’ refusal to

consent to the reevaluation meant that the parents had waived any services under

the IDEA, she did not consider any of Appellants’ arguments with respect to the

alleged multiple procedural violations of the IDEA. Appellants raised those

procedural arguments at each level of review, including before the district court. 

The district court determined that those issues were moot in light of the fact that

the district court directed that a reevaluation take place.

Based on representations made at oral argument, we do know now that a

reevaluation took place and an individualized education program was established

for G.J. in June 2011. Any issues with respect to that evaluation would be handled

in separate litigation. Despite this fact, Appellants do not believe that the past

IDEA violations are moot because they assert that for three years, G.J. went

without an adequate individualized education program and that under Draper, G.J.

is now entitled to additional compensatory services beyond that which would be

statutorily provided in accordance with a “free and appropriate public education.”

21
518 F.3d at 1280 (recognizing that “compensatory education” is “appropriate

relief where responsible authorities have failed to provide a handicapped student

with an appropriate education” under the IDEA).

In their motion for partial summary judgment before the district court,

Appellants asked that the court find that the school district had violated numerous

procedural safeguards under the IDEA. Appellants argued that the school district

had denied their right to informed parental consent by not fully informing them of

the details of the proposed reevaluation. They also contended that the school

district had improperly held IEP meetings in August 2008 and August 2009 at

times that the school district was aware the parents could not attend, and

compounded this error by unilaterally altering G.J.’s IEP at those meetings without

the parents’ consent and without seeking a hearing. Appellants averred to the

district court that the school district failed to consider G.J.’s unique needs,

placement and services because the district had a second attorney attend the April

2008 IEP meeting unannounced and the school district refused to consider

residential placement as an alternative to school placement. Finally, Appellants

argued that the school district violated its own “Notice of Procedural Safeguards”

provided to Appellants when it (a) did not fully explain all of the procedures

associated with the reevaluation, (b) failed to provide full records before the April

22
2008 and August 2008 IEP meetings, (c) opposed Appellants’ desire to have

public and private independent educational evaluations without seeking a hearing,

and (d) failed to seek a hearing which resulted in Appellants’ inability to confront

and cross-examine witnesses.

6

We have addressed many of the issues in our resolution of the parties’

disagreements concerning the reevaluation process and whether Appellants were

entitled to private or public independent educational evaluations. Thus, we need

not further discuss Appellants’ procedural defects regarding issues of consent to

reevaluation procedures or the private/public independent educational evaluation. 

Because we resolved those questions against Appellants, those complaints could

not form the basis of an argument that G.J. was denied a free and appropriate

public education based on the school district’s actions in those areas.

We also find that Appellants’ argument that the school district refused to

consider residential placement for G.J. to be intertwined with the reevaluation

issue. The school district could not make an informed decision about residential

placement until it conducted a reevaluation, a process that could not take place

We recognize that Appellants listed many more procedural violations in their Second 6

Amended Complaint before the Administrative Law Judge. However, because Appellants only

raised certain of those violations before the district court, we focus our attention on those

Appellants’ argue the district court should have considered.

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until the parents consented. We have ruled that the district court appropriately

resolved the issue of consent to the reevaluation and therefore, we find no

procedural defect with the fact that the school district would not consider

residential placement until the reevaluation was completed.

The remaining procedural problems raised by Appellants are: (1) the

scheduling of the August 2008 and August 2009 IEP meetings at times the parents

could not attend, (2) not providing full records before the August 2008 IEP

meeting, (3) an additional attorney from the school district attending the April

2008 IEP meeting without prior notice, and (4) failure of the school district to seek

a hearing to resolve certain issues. 

Not every procedural defect results in a violation of the IDEA. Rather, “[i]n

evaluating whether a procedural defect has deprived a student of a FAPE, the court

must consider the impact of the procedural defect, and not merely the defect per

se.” See Weiss by Weiss v. School Bd. of Hillsborough Cnty., 141 F.3d 990, 994

(11th Cir. 1998) (adopting order of district court). Thus, for example, it is clear

that the addition of one unannounced counsel for the school district at the April

2008 IEP meeting cannot have deprived G.J. of a free and appropriate public

education. Nor can the “failure” of the school district to seek a due process

hearing be said to have substantively impacted the education received by G.J. The

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case was already proceeding on the basis of two due process complaints filed by

the parents. Appellants have not been able to adequately explain to any tribunal

why they were harmed by the school district’s failure to file for a due process

hearing, particularly where the school district did, in fact, attempt to file a

complaint before the Administrative Law Judge and Appellants opposed the filing

of that complaint.

Remaining, then, are the parents’ allegations regarding the August 2008 and

2009 IEP meetings. It is important to consider the timing and context of these

events in order to determine whether any impacted G.J.’s right to a free and

appropriate public education. The Administrative Law Judge issued her final

orders on November 19, 2008. At that time, she determined that by their refusal to

consent to the reevaluation, the parents had forfeited their rights to special

educational services under the IDEA. The parents appealed that decision to the

district court, which issued its order on March 6, 2010. 

We have previously discussed the IDEA’s statutory requirements for such

“interim” periods. In CP v. Leon County School Board of Florida, 483 F.3d 1151

(11th Cir. 2007), we held that 

Section 1415(j) provides that “during the pendency of any

proceedings conducted pursuant to [the IDEA], unless the State or

local agency and the parents otherwise agree, the child shall remain in

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the then-current educational placement of such child ... until all such

proceedings have been completed.” The Supreme Court has held that

Section 1415(j) is “unequivocal,” stating “plainly” that a school board

shall not change the current educational placement unless or until it

can agree on an alternative placement with the parents, or until the

issue is resolved through the administrative hearing process. Honig v.

Doe, 484 U.S. 305, 323, 108 S.Ct. 592, 604, 98 L.Ed.2d 686 (1988)

(quoting 20 U.S.C. § 1415(e)(3) (now codified at 20 U.S.C. §

1415(j))).

Id. at 1156 (footnote omitted). These are sometimes referred to as “stay-put”

provisions. Thus, while the parties’ complaints were making their way through

the litigation process, G.J.’s placement and IEP would not change unless the

parents and the school district agreed on such a change or a change was mandated

through the administrative hearing process.

As we stated above, we do know that G.J. remained in placement at the

school district and was eventually reevaluated in June 2011. In none of their

pleadings before the district court or our court have Appellants described in any

detail what changes were allegedly made by the school district at the 2008 and

2009 IEP meetings or on what portions of the IEP the parents withdrew consent. 

The parents did not remove G.J. to a different educational program, nor have they

articulated any efforts they have undertaken to make up for any perceived gaps in

G.J.’s IEP while these appeals were pending. Thus, regardless of whether the

district court correctly determined that these issues were “moot,” there is no basis

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for making a determination that any procedural failures with regard to the August

2008 and 2009 IEP meetings impacted the education received by G.J. to any

substantive degree. 

For all of the foregoing reasons, we AFFIRM the order of the district court.

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