[PUBLISH]

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 13-11392

________________________

D.C. Docket Nos. 2:11-cv-03539-AKK; 2:11-cv-03555-AKK

2:11-cv-03539-AKK

BLOUNT COUNTY BOARD OF EDUCATION, 

Plaintiff-Appellant,

versus

MELINDA BOWENS, 

as parent and Next Friend of J.B., a minor,

Defendant-Appellee.

__________________________________________________________________

2:11-cv-03555-AKK

J.B., 

by and through his mother, Melinda B.,

Plaintiff-Appellee,

versus

JAMES E. CARR,

Superintendent of and for Blount County Board of Education,

Defendant-Appellant.

Case: 13-11392 Date Filed: 08/05/2014 Page: 1 of 12 
2

________________________

Appeal from the United States District Court

for the Northern District of Alabama

________________________

(August 5, 2014)

Before PRYOR and MARTIN, Circuit Judges, and HONEYWELL,* District 

Judge.

PRYOR, Circuit Judge:

The Blount County Board of Education appeals the summary judgment that 

requires the Board to reimburse Melinda Bowens for the cost of the placement of 

her son in a private school. 20 U.S.C. § 1400 et seq. The Board offered Bowens 

other placement options for her autistic son, J.B., but she concluded that those 

options were inadequate and enrolled J.B. in Mitchell’s Place, a private school. 

When Bowens sought reimbursement for the tuition, the Board denied her request.

A hearing officer later found that the Board failed to offer a free appropriate public 

education to J.B. before his third birthday, as required by the Individuals with 

Disabilities Education Act, id. § 1412(a)(1)(A), and that the Board instead 

consented to J.B.’s placement at Mitchell’s Place. The hearing officer ruled that the 

Board must reimburse Bowens for J.B.’s tuition from October 7, 2009, through 

July 2010, plus mileage. The district court affirmed that decision. Because the 

 

* Honorable Charlene Edwards Honeywell, United States District Judge for the Middle District 

of Florida, sitting by designation.

Case: 13-11392 Date Filed: 08/05/2014 Page: 2 of 12 
3

district court did not abuse its discretion when it weighed the equities and 

concluded that Blount County must reimburse Bowens, we affirm.

I. BACKGROUND

When J.B. was two years and four months old, doctors diagnosed him with 

autism. Before that diagnosis, doctors had diagnosed J.B. as “developmentally 

delayed,” and he received aid from the Early Intervention System of Alabama, an 

agency that administers services to children from birth to age three under the 

Individuals with Disabilities Education Act. 20 U.S.C. § 1431–44. Bowens 

participated in several meetings with Early Intervention about J.B. and was 

involved in the creation of an individualized family service plan to determine what 

services and support were appropriate for him. Id. § 1436. The coordinator for 

Early Intervention arranged for the Sparks Clinic at the University of Alabama at 

Birmingham to evaluate J.B. After that evaluation, the Sparks Clinic diagnosed 

J.B. with autism. 

In March 2009, Early Intervention alerted the Blount County Board of 

Education that J.B.’s third birthday would occur on October 27, 2009. Early 

Intervention invited the Board to a transition planning meeting with J.B.’s family 

because the Act requires states to offer a free appropriate public education to 

disabled children when they reach the age of three years. See 34 C.F.R. § 

300.101(b). The purpose of the meeting was to introduce J.B.’s parents to the 

Case: 13-11392 Date Filed: 08/05/2014 Page: 3 of 12 
4

Board and to allow the attendees to explore possibilities for J.B.’s future education. 

The meeting was scheduled for the following month. 

In April 2009, Bowens and representatives from the Board and Early 

Intervention met at the transition planning meeting. Susan Betke, a service 

coordinator with Early Intervention, acted as its representative. Jan Sullivan, a 

speech and language pathologist with Blount County, represented the Board. 

During the meeting, Sullivan offered three possible placement options for J.B. 

when he turned three, but none of those facilities met J.B.’s specific needs. Bowens 

explained to Sullivan that those options were unsatisfactory. The three meeting 

participants planned to meet again in May to continue discussing options for J.B. 

Between the transition planning meeting and the meeting in May, Bowens 

explored other options for J.B., but she still held out hope that the Board would 

find an appropriate placement for J.B. and that Sullivan would offer more 

promising options at the next meeting. She preferred to place J.B. in Blount 

County because he would eventually attend kindergarten in that school system. 

Based on her independent research, Bowens determined that Mitchell’s 

Place, a private school, was the best option for J.B. Mitchell’s Place, in 

Birmingham, Alabama, provided services and education to autistic children, and 

J.B. could attend preschool there full-time. To secure a spot at Mitchell’s Place in 

the event that the Board could not provide an appropriate option, Bowens 

Case: 13-11392 Date Filed: 08/05/2014 Page: 4 of 12 
5

completed an application as a backup plan. She toured Mitchell’s Place, paid an 

application fee of $50, and later paid an additional $250 to include J.B. on the 

Mitchell’s Place waiting list. 

In May, Bowens again met with Sullivan and Betke to discuss placement 

options for J.B. They reviewed the diagnosis from the Sparks Center, and Sullivan 

told Bowens that the Board accepted all of the evaluations from the Sparks Center 

and that the Board required no additional testing of J.B. Sullivan did not suggest 

any placement options for J.B., other than those that they had discussed in the 

April meeting. 

When Bowens asked Sullivan about Mitchell’s Place, Sullivan responded 

that Mitchell’s Place was an excellent placement option. Afterward, Sullivan acted 

as though the meeting was finished. Before leaving, Bowens suggested that, to ease 

the eventual transition to kindergarten, J.B. should meet with speech and 

occupational therapists in Blount County about once a month. Sullivan agreed, and 

the meeting concluded. Shortly after that meeting, Bowens made a $3,500 payment 

to Mitchell’s Place for tuition. Sullivan and Bowens met again in August, and

Bowens confirmed that she planned to enroll J.B. at Mitchell’s Place. Sullivan 

made no additional offers of placement. They did not discuss reimbursement. 

In October 2009, shortly before J.B. turned three, Sullivan, Bowens, and 

Derrick Bowens, J.B.’s father, met to discuss J.B.’s individualized education 

Case: 13-11392 Date Filed: 08/05/2014 Page: 5 of 12 
6

program. They agreed that Mitchell’s Place was the most appropriate placement 

for J.B. based on the evaluation and recommendations of the Sparks Clinic. By 

then, J.B. had already begun attending Mitchell’s Place, where he started in 

August. They created an individualized education program that included special 

language services twice a week with Sullivan and another therapist, as well as 

consultation services to be provided once a month by Blount County. They then

signed paperwork, which included a statement that the Board accepted all 

evaluations from the Sparks Center and that the Board needed no additional 

evaluations. Sullivan also provided Bowens with a form for a representative of 

Mitchell’s Place to sign. The form acknowledged that Mitchell’s Place would be 

responsible for the implementation of J.B.’s individualized education program. 

J.B.’s preschool teacher signed that form, and Bowens returned it to Sullivan. 

Sullivan, Bowens, and Mr. Bowens never discussed reimbursement at the October 

meeting. 

Bowens later sent a letter to the Board in May 2010, in which she requested

a formal individualized education program meeting to discuss the upcoming school 

year. The Board and Bowens met that month, and Bowens, for the first time, 

requested reimbursement for the tuition that she had paid to Mitchell’s Place. The 

Board postponed the meeting with Bowens so that it could determine its next step. 

Representatives of the Board then met without Bowens and decided to offer J.B. an 

Case: 13-11392 Date Filed: 08/05/2014 Page: 6 of 12 
7

individualized education program that was substantially similar to the Mitchell’s 

Place program. After it made that offer, Bowens declined and informed the Board

that J.B. would remain at Mitchell’s Place for the following year and that she 

would be seeking reimbursement for that placement too. The Board denied all of 

Bowens’s requests for reimbursement. 

Bowens responded by requesting a due process hearing to obtain

reimbursement from the Board. At that hearing, both Bowens and Betke testified 

that Sullivan seemed to be unaware of the services available to J.B. in Blount 

County. Sullivan testified that she did not offer any alternative to Mitchell’s Place 

during the individualized education program meeting in October because Bowens 

had already enrolled J.B. there. And Bowens testified that by that October meeting, 

she made up her mind that J.B. would attend Mitchell’s Place for the entire 2009–

2010 school year, but she also stated that it was “with the district’s full 

knowledge.” Bowens further testified that she did not know that they should have 

discussed reimbursement at the meeting in October nor that she might be entitled 

to reimbursement. 

The hearing officer found that the Board had not offered a free appropriate 

public education to J.B. because the facilities and services that Sullivan had 

proposed were not appropriate. The hearing officer found that Bowens had not 

unilaterally sent J.B. to Mitchell’s Place because “the local education 

Case: 13-11392 Date Filed: 08/05/2014 Page: 7 of 12 
8

representative of the school system acquiesced and approved the parent’s 

placement of their son in Mitchell’s Place.” The hearing officer determined that 

Bowens was entitled to reimbursement for the 2009–2010 school year, beginning 

in October 2009 and ending in July 2010. 

The Board then filed a civil action in the district court, and Bowens filed a 

separate civil action and sought attorney’s fees and costs as the prevailing party in 

the administrative proceedings. See J.B. v. Carr, No. 2:11-cv-3555-WMA (N.D. 

Ala. filed on Oct. 4, 2011). The district court consolidated the actions. The parties 

filed cross motions for summary judgment, and the district court granted Bowens’s 

motion for summary judgment and denied the motion filed by the Board. 

II. STANDARD OF REVIEW

We review awards of relief under section 1415(i)(2)(C)(iii) of the Act for 

abuse of discretion. Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1284 (11th 

Cir. 2008). The Act grants “broad discretion” to district courts, Sch. Comm. of 

Burlington v. Dep’t of Educ., 471 U.S. 359, 369, 105 S. Ct. 1996, 2002 (1985), and 

allows them to “grant such relief as the court determines is appropriate.” 20 U.S.C. 

§ 1415(i)(2)(C)(iii); see also Draper, 518 F.3d at 1284.

III. DISCUSSION

The Board cannot overcome the deferential standard of review that we 

afford to a district court after it weighs the equities. See Florence Cnty. Sch. Dist. 

Case: 13-11392 Date Filed: 08/05/2014 Page: 8 of 12 
9

Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361, 366 (1993). The district court 

considered all of the “relevant factors,” Forest Grove Sch. Dist. v. T.A., 557 U.S. 

230, 247, 129 S. Ct. 2484, 2496 (2009), and it did not abuse its discretion when it 

agreed with the determination by the hearing officer.

The Act requires states that receive federal funding to make a “free 

appropriate public education” available to all resident children with disabilities. 20 

U.S.C. §§ 1400(d)(1)(A), 1412(a)(1)(A); see also Loren F. v. Atlanta Indep. Sch. 

Sys., 349 F.3d 1309, 1311–12 (11th Cir. 2003). The Act defines a free appropriate 

public education as special education services that meet four criteria:

The term “free appropriate public education” means 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 preschool, elementary school, or 

secondary school education in the State involved; and

(D) are provided in conformity with the individualized education 

program required under section 1414(d) . . . .

20 U.S.C. § 1401(9). When a public school fails to provide a free appropriate 

public education, and parents place their child in an “appropriate” private school, a 

court may require the school district to reimburse the parents for the cost of the 

private education. See 34 C.F.R. § 300.148(c); Forest Grove, 557 U.S. at 232–33, 

129 S. Ct. at 2487–88.

Case: 13-11392 Date Filed: 08/05/2014 Page: 9 of 12 
10

But reimbursement is discretionary, and a court may still deny some—or 

all—reimbursement based on equitable considerations. See 20 U.S.C.

§ 1412(a)(10)(C)(iii). For example, “[t]he cost of reimbursement . . . may be 

reduced or denied” if the parents neither informed the individualized education 

program team at the most recent meeting that they rejected the placement proposed 

by the team and that they intended to “enroll their child in a private school at 

public expense,” id., nor gave written notice of that information ten days before 

they removed the child from public school. Id. Other equitable considerations 

include whether the parents failed to make their child available for evaluation by 

the school and whether a court finds that the parents acted unreasonably. Id; see 

also Forest Grove, 557 U.S. at 247, 129 S. Ct. at 2496. 

The Board argues that Bowens failed to request reimbursement at the last 

meeting in October 2009 and, as a result, failed to satisfy a statutory “[l]imitation 

on reimbursement” for a unilateral private school placement, 20 U.S.C. § 

1412(a)(10)(C)(iii), but the Board has it wrong for at least two reasons. First, 

Bowens did not unilaterally enroll J.B. at Mitchell’s Place. Both the district court 

and the hearing officer found that Sullivan—and the Board by extension—agreed 

to the placement of J.B. at Mitchell’s Place, and the Board does not contest that 

factual finding. Because the Board approved or, at the very least, acquiesced in the 

placement of J.B. at Mitchell’s Place, the provision for a limitation on 

Case: 13-11392 Date Filed: 08/05/2014 Page: 10 of 12 
11

reimbursement for a unilateral placement does not apply to this appeal. See also 20 

U.S.C. § 1412(a)(10)(B)(i) (providing for a free education when a school board 

agrees to the placement of a child in a private school). Second, even if Bowens had 

unilaterally placed J.B. at Mitchell’s Place, the provision for a limitation on 

reimbursement still does not bar a claim for reimbursement. Instead, that provision

grants discretion to a district court to “reduce[] or den[y]” reimbursement in 

accordance with the equitable considerations—such as failure to give notice—that 

the statute lists. Id. § 1412(a)(10)(C)(iii); see also id. § 1415(i)(2)(C). 

The Board also argues that Bowens’s placement of J.B. at Mitchell’s Place 

and failure to alert the Board of her intent to seek reimbursement deprived it of an 

opportunity to address her concerns, but we disagree. The Board argues that if 

Bowens had provided notice at the October 2009 meeting that she intended to 

request reimbursement, it would have offered additional services to satisfy its 

obligations under the Act. But the Board again ignores that it agreed to the 

placement of J.B. at Mitchell’s Place, so Bowens had no duty to notify the Board 

that she planned to seek reimbursement. 

We agree with the district court that the Act imposes a duty on the Board to 

offer a free appropriate education at the outset, instead of waiting to see if a parent 

will seek reimbursement for a private placement. To the extent that the Board was 

harmed, Bowens’s failure to request reimbursement was not the culprit; as the 

Case: 13-11392 Date Filed: 08/05/2014 Page: 11 of 12 
12

district court stated, the Board harmed itself when it offered “inadequate option[s] 

and [attempted to] wash its hands of its obligations.” The Board cannot now 

complain that it was not offered the opportunity for a do-over. 

Bowens argues that we should grant her reimbursement for the 2010–2011 

school year, but she did not appeal the denial of that reimbursement by the hearing 

officer to the district court, nor to this Court. We will not consider that argument 

for the first time on appeal. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 

1324, 1331 (11th Cir. 2004). 

IV. CONCLUSION

We AFFIRM the summary judgment in favor of Bowens.

Case: 13-11392 Date Filed: 08/05/2014 Page: 12 of 12