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T.S. v. Utica Community Schools

United States District Court, E.D. Michigan, Southern Division

January 20, 2017

T.S., a minor, and GINA SHARBOWSKI, Plaintiffs,



         In this action under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400, et seq. (“the IDEA”), Plaintiff Gina Sharbowski has been a tireless advocate for her son, T.S., in her efforts to obtain for T.S. the free appropriate public education (“FAPE”) that is guaranteed under the IDEA. Plaintiffs currently appeal the ruling of the state Administrative Law Judge (“ALJ”) Christopher S. Saunders, the latest in a long series of administrative defeats for Plaintiffs, in which ALJ Saunders dismissed the entirety of Plaintiffs' due process complaint and declined to address several of Plaintiffs' claims against the Defendant Utica Community Schools (“Utica') on jurisdictional grounds. The Court has reviewed the parties' briefs on appeal, thoroughly examined the administrative record and conducted a hearing on August 23, 2016. Regrettably, the Court must remand the matter to ALJ Saunders for further proceedings.

         The Court is unable to determine, on this administrative record, whether ALJ Saunders correctly ruled, in an Order issued on August 27, 2014, that he lacked jurisdiction to consider, in the first instance, Plaintiffs' claims that Utica failed to implement the due process hearing decision issued by Administrative Law Judge Susan Harris on July 23, 2012, in which ALJ Harris concluded that Utica had failed to provide a FAPE to T.S. and ordered Utica to adopt a number of corrective actions. The jurisdictional issue is thus REMANDED to ALJ Saunders for reconsideration and clarification consistent with this Opinion and Order.

         The Court further finds that ALJ Saunders erred in refusing to consider certain evidence and exhibits proffered by Ms. Sharbowski at the administrative hearing and in refusing to permit Ms. Sharbowski to return for the second scheduled hearing date to organize and present additional evidence. The Court therefore REVERSES ALJ Saunders's February 5, 2015 Decision and Order, in which he concluded that Plaintiffs did not carry their burden of proof to demonstrate that the 2013 and 2014 Individualized Education Plans (“IEPs”) prepared by Utica for T.S. failed to provide T.S. with a FAPE, and REMANDS the matter to ALJ Saunders for further proceedings consistent with this Opinion and Order.

         I. BACKGROUND

         On July 18, 2011, Plaintiffs Gina Sharbowski and her minor child T.S. filed a complaint in a case previously assigned to this Court, T.S. and Gina Sharbowski v. Utica Community Schools, et al., E.D. Mich. No. 11-13092 (Sharbowski I). Plaintiffs claimed in that previously-filed case that Utica had improperly addressed T.S.'s special education needs, denying him a FAPE and brought suit pursuant to the Americans With Disabilities Act (ADA), the Individuals with Disabilities Education Improvement Act (IDEA) and Family Educational Rights and Privacy Act of 1947 (FERPA). In that case, on April 18, 2012, this Court adopted the Report and Recommendation of Magistrate Judge, now District Judge, Laurie Michelson, recommending that Plaintiffs' case be dismissed without prejudice for failure to properly exhaust administrative remedies. (Sharbowski I, ECF No. 34, Order Adopting Report and Recommendation, ECF No. 32, Report and Recommendation.) In dismissing the case, the Court followed Magistrate Judge Michelson's recommendation to stay the two-year statute of limitations under 34 C.F.R. § 300.507 to permit Plaintiffs to re-file that case within 90 calendar days from the date of the decision of the ALJ in any future due process proceeding. (Id. at 9 n.4.) In granting the dismissal without prejudice, the Court denied Plaintiffs' request to stay the case rather than dismiss but did indicate that it would consider an application to proceed in forma pauperis at the time of any future filing. (Id. at 2 n. 2.)

         Plaintiffs did not appeal the Court's dismissal of Sharbowski I and did proceed to administratively address their claims, which resulted in a decision in favor of the Plaintiffs issued by ALJ Susanne E. Harris on July 23, 2012. The essence of Plaintiffs' claim was that T.S. should have been classified as eligible for special education as a student with Autism Spectrum Disorder (ASD), not as a student who was only Mildly Cognitively Impaired (MCI). The ALJ (in a 45-page Opinion that was filed with this Court under seal) concluded that Utica had denied T.S. a FAPE, citing numerous failings on the part of Utica with regard to the “individualized education program” (“IEP”) for T.S., and ordered Utica to adopt a host of remedial measures. The ALJ issued several corrective action orders to the Defendant school district and required the school district to file proof of compliance with her Opinion and Orders. On or about June 11, 2013, the MDE determined that Utica was in compliance with ALJ Harris's July 23, 2012 Order.[1]

         On March 11, 2013, almost eight months after receiving ALJ Harris's decision, the Plaintiffs filed, in the then-closed Sharbowski I, what was interpreted by then-Magistrate Judge Michelson as a Motion for Relief From Judgment in the previously-dismissed case, No. 11-13092. (Sharbowski I, ECF No. 35, 3/11/2013 “Motion for Assistance from Higher Court to Address Ongoing Issues Post Due Process Hearing”). Plaintiffs complained that the Defendant school district had failed to comply with the ALJ's Decision and Order and stated that Plaintiffs needed the assistance of an attorney, that they did not understand the process and that they did not believe they qualified for in forma pauperis status but nor could they afford to refile their case as instructed by this Court in its earlier dismissal of the case without prejudice.

         Judge Michelson interpreted the motion as one for relief from judgment and recommended that this Court deny the motion because Plaintiffs in fact prevailed in the administrative proceeding and appeared to be challenging not the outcome of that proceeding but the school district's failure to implement the ALJ's Decision and Order. The Magistrate Judge noted that if Plaintiffs had been challenging the decision of the ALJ, their motion, which came 232 days after the ruling, was time-barred by the 90-day limitation period imposed by the Court in dismissing the case previously. (Sharbowski I, ECF No. 40, 9/9/13 Report and Recommendation at 7 n. 2.) The Magistrate Judge concluded that the remedy for Plaintiffs' challenge to the school district's non-compliance was to participate in the state complaint resolution procedure (“CRP”) found in 34 C.F.R. § 300.151, et seq. (Id. at 7.) The Report and Recommendation outlined in great detail the process that Plaintiffs should follow to challenge the school district's alleged failure to implement the ALJ's Decision and Order. Over Plaintiffs' Objection (Sharbowski I, ECF No. 41, Objection), which failed to cite any specific objection to the Report and Recommendation and largely complained that Plaintiffs needed the assistance of counsel, this Court adopted the Magistrate Judge's Report and Recommendation and denied the motion for relief from judgment on November 7, 2013. (Sharbowski I, ECF No. 42.) Again, Plaintiffs did not appeal this Court's ruling.

         On January 17, 2014, Plaintiffs filed a new case, No. 14-cv-10216 (Sharbowski II), that is presently before the Court. The Original Complaint in this case, titled “Re-Filed Complaint, ” is a restatement of the claims asserted in Sharbowski I. In fact, in Sharbowski II Plaintiffs attach and incorporate the complaint from Sharbowski I. The Original Complaint in Sharbowski II expressed Plaintiffs' continued frustration with the process of administrative exhaustion and complained that Plaintiffs were adrift without the assistance of competent counsel, which they asserted they could not find or afford.

         Recognizing that ALJ Harris's July 23, 2012 Decision and Order had noted certain failings on the part of Utica with respect to T.S.'s educational needs, the Court appointed pro bono counsel for Plaintiffs with the hope that with the proper guidance, the Plaintiffs would be able to better understand and see their way through the administrative exhaustion requirements that must precede any action in this Court. To their credit Defendants, despite their legally well-founded pending motions to dismiss, were in agreement that appointment of counsel for the Plaintiffs could help to move the case along to a fair and equitable resolution. On July 24, 2014, the Court assigned counsel, James E. Stewart of the Honigman, Miller firm, to represent Plaintiffs pro bono in this action. (ECF No. 23, Order of Assignment of Counsel.) The Court then directed the parties to participate in facilitation, under the guidance of Dr. Carla Harting, in an effort to resolve certain issues regarding the current educational placement of T.S. The parties met with Dr. Harting on two separate occasions and subsequently, at a status conference held before this Court on October 31, 2014, announced to the Court that they had reached a tentative agreement regarding the proper placement for T.S. for the current school year.

         Despite the parties' agreement on an acceptable plan for T.S. for the then-current school year, Plaintiffs were unwilling to agree to dismiss the claims in this action against Utica and the MDE based upon that agreement because Plaintiffs were of the opinion that Utica should be ordered to bear the cost of a private educational placement for T.S. as compensation for the past wrongs committed by prior administrations that were acknowledged in ALJ Harris's July 23, 2012 Opinion. Notably, while ALJ Harris did conclude that Utica had denied T.S. a FAPE, citing numerous failings on the part of Utica with regard to T.S.'s IEP, and ordered Utica to adopt numerous remedial measures, she did not order private placement of T.S. at that time. The Court requested briefing on the issue of the requested private placement and concluded that, particularly in view of the new due process Complaint that Plaintiffs had filed on July 23, 2014, challenging T.S.'s 2013 and 2014 IEPs that was then-pending before Administrative Law Judge Christopher Saunders of the Michigan Administrative Hearing System, this Court was without jurisdiction to consider/order private placement for T.S. at that time in this action. (Sharbowski II, ECF No. 31, Order Regarding Plaintiffs' Request for Private Placement of T.S.)

         While the Plaintiffs proceeded with their July 23, 2014 due process complaint before ALJ Saunders, the Court resolved Utica's and MDE's long-pending motions to dismiss, and concluded that the issues raised in the Original Complaint, which merely restated the allegations already rejected by the Court in Sharbowski I, were either time barred under the IDEA 2-year statute of limitations or the 90-day filing period permitted under that statute, or had not been administratively exhausted, as explained in great detail by this Court in Sharbowski I and Sharbowski II. In agreement with this conclusion, Plaintiffs' counsel stipulated on the record, at the April 9, 2015 hearing on the Defendants' motions to dismiss, to dismiss with prejudice all claims against the MDE and to dismiss as to Utica the claims as stated in the Original Complaint in this action, preserving the right to appeal ALJ Saunders's dismissal of Plaintiffs' July 23, 2014 due process complaint against Utica, which ALJ Saunders had issued on February 5, 2015. The Court then granted the MDE's motion to dismiss and dismissed MDE from the case, dismissed Plaintiffs' time-barred and unexhausted claims as stated in the Original Complaint in this action against Utica, but denied Utica's motion to dismiss as against Utica those claims which had not been fully exhausted and were the subject of the then-pending July 23, 2014 due process complaint before ALJ Saunders. The Court then stayed the matter against Utica to give Plaintiffs time to appeal ALJ Saunders' dismissal of Plaintiff's due process complaint and permitted Plaintiffs to file an Amended Complaint against Utica that conformed to these rulings. Plaintiffs did file a conforming Amended Complaint on May 5, 2015, which set forth the sole administrative appeal that is currently before the Court. (ECF No. 37.)


         Under the IDEA, a “party aggrieved by the findings and decision” of an administrative proceeding “may bring a civil action . . . in a district court of the United States.” 20 U.S.C. § 1415(i)(2)(A). The district court “(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on a preponderance of the evidence, shall grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(B). The district court's decision shall be based upon a preponderance of the evidence but the Supreme Court has instructed that “due weight” also must given to the findings and determinations made during the administrative proceeding. Bd. of Educ of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982). See also Doe v. Bd. of Educ. of Tullahoma City Schools, 9 F.3d 455, 458 (6th Cir. 1993) (district courts must apply a “modified de novo” standard of review in IDEA administrative appeals, and “should give due weight to the state administrative proceedings in reaching its decision”). In performing their task of reexamining the evidence, district courts must not substitute their own notions of “sound educational policy for those of the school authorities which they review.” Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 849 (6th Cir. 2004) (internal quotation marks and citations omitted). “The amount of weight due to administrative findings depends on whether the finding is based on educational expertise. Less weight is due to an agency's determinations on matters for which educational expertise is not relevant because a district court is just as well suited to evaluate the situation.” Id. (internal quotation marks and citations omitted).

         III. ANALYSIS

         The IDEA “‘leaves to the States the primary responsibility for developing and executing educational programs for handicapped children, [but] imposes significant requirements to be followed in the discharge of that responsibility.'” Zdrowski v. Rieck, 119 F.Supp.3d 643, 659 (E.D. Mich. 2015) (quoting Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 52 (2005)) (alteration in original). “‘[T]he core of the statute . . . is the cooperative process that it establishes between parents and schools [and] [t]he central vehicle for this procedure is the [] IEP process . . . which establishes a framework for parents and educators to work together to identify, evaluate, and plan the education of a disabled child.” Zdrowski, 119 F.Supp.3d at 659 (internal quotation marks and citations omitted) (first alteration in original). The exhaustion procedures discussed at length supra are critical to carrying out the goal of providing a FAPE for every handicapped child, affording “[f]ederal court generalists with no expertise in the educational needs of handicapped students . . . the benefit of expert factfinding by a state agency devoted to this very purpose.” Fry v. Napoleon Cmty. Schools, 788 F.3d 622, 626 (6th Cir. 2015).

         In the Due Process Complaint that is the subject of this appeal, Plaintiffs alleged 11 separate violations of the IDEA. (Pls.' Br. Ex. B, Due Process Hearing Request Form.) In his August 27, 2014 Decision and Order, ALJ Saunders dismissed on jurisdictional grounds all but two of the 11 claims set forth in the Due Process Complaint. (Pls.' Br. Ex. C, Order Following Prehearing Conference.) In his February 5, 2015 Decision and Order, issued following a hearing and the presentation of evidence, ALJ Saunders dismissed the two remaining claims of Plaintiffs' Due Process Complaint in response to Utica's motion for a directed verdict, finding it unnecessary to consider further evidence, and concluding that Plaintiffs failed to meet their evidentiary burden to establish by a preponderance of the evidence that the 2013 and 2014 IEP's failed to provide T.S. a FAPE. (Pls.' Br. Ex. D, Decision and Order dated February 5, 2015.)

         A. ALJ Saunders' August 27, 2014 Jurisdictional Ruling

         In reaching the conclusion that he lacked jurisdiction over the bulk of Plaintiffs' claims, ALJ Saunders provided scant authority for his decision. In his August 27, 2014 written Order, issued following a prehearing conference held on August 9, 2014, ALJ Saunders “dismissed the allegations contained in paragraphs 1, 2, 3, 4, 5, 7, 8, 9, and 10 of Petitioner's due process complaint as those paragraphs contain allegations and/or requests for relief which are outside the jurisdiction of this Tribunal, as was discussed on the record.” (Pls.' Br. Ex. C, 8/27/14 Order 2; Pls.' Br. Ex. F, 8/9/14 Hr'g Tr.) No authority, statutory or otherwise, is cited in the written opinion and an examination of the “record” of the prehearing conference sheds no more light on the legal basis for the ALJ's jurisdictional ruling. In the course of the prehearing conference to address the jurisdictional issue, ALJ Saunders remarked numerous times that it was “not within the jurisdiction of this tribunal to enforce previous orders, ” and that such an issue was “for the Department of Education.” (Pls.' Br. Ex. F, 8/9/14 Hearing Transcript 9.) Again, on the record, ALJ Saunders cited no statute, administrative rule or case law in support of this conclusion.

         Although ALJ Saunders provided no legal authority for his jurisdictional decision to decline to address the majority of the claims of Plaintiffs' due process complaint, Utica asserts in its brief to this Court on appeal that the ALJ properly concluded that he lacked jurisdiction because Plaintiffs failed to properly exhaust their administrative remedies before challenging Utica's compliance with ALJ Harris's Order in a due process hearing. Utica refers to the Court's prior Opinions and Orders in Sharbowski I that directed Plaintiffs back to the state compliance procedures for proper exhaustion of their claims challenging Utica's compliance. While ALJ Saunders did not offer an explanation for his decision, Utica argues that Plaintiffs were required, as instructed by then-Magistrate Judge Michelson in her September 9, 2013 Report and Recommendation, to present their challenge to Utica's compliance through the state complaint procedure. Utica insists, quoting the Report and Recommendation, that the state complaint resolution procedure was “Plaintiffs' exclusive recourse for challenging the District's failure to implement the corrective actions required by [ALJ Harris's] Decision and Order . . . .” (Def.'s Br. 15) (emphasis in original). Utica argues, again citing the Report and Recommendation, that: “Only then, after the state complaint process has been completed, could Plaintiffs file for a due process hearing (or go directly to an appeal in state court).” Id. According to Utica, this Court “wholly adopted ...

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