Delaina Barney v. Akron Bd. of Educ. ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0091n.06
No. 17-4116
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
DELAINA BARNEY, ) Feb 25, 2019
DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE
AKRON BOARD OF EDUCATION, )
NORTHERN DISTRICT OF
)
OHIO
Defendant-Appellee. )
)
Before: BATCHELDER, COOK, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. Delaina Barney argues that the Akron Board of Education
violated the Individuals with Disabilities Education Act in nearly a dozen ways. The district court
rejected all her arguments. We affirm.
I.
The Individuals with Disabilities Education Act provides states with funding for special
education in return for their guarantee to provide disabled students a “free appropriate public
education.” 20 U.S.C. § 1412(a)(1). A free appropriate public education includes instruction
tailored to the disabled student’s unique needs. Id. § 1401(9), (26), (29). The Act therefore
requires schools to work with parents to prepare an “individualized educational program” for each
eligible student. Id. § 1414.
Delaina Barney’s son, J.B., has cognitive disabilities and a peanut allergy. J.B. has
received special education for his cognitive disabilities since preschool. [R. 1-2, Pg. ID 14.] J.B.
No. 17-4116, Barney v. Akron Bd. of Educ.
has not received special services under the Act for his allergy, but his school had a medical plan
for preventing and responding to allergic reactions. [See Admin. R. Ex. 3.] Among other
safeguards, the school had instructed food servers not to bring peanut butter to J.B.’s classroom
when serving students their free breakfast.
In 2014, Barney enrolled J.B. as a third-grader at an Akron public elementary school. Early
in the fall semester, school employees accidentally included sealed containers of peanut butter on
the breakfast carts taken to J.B.’s classroom. A food server noticed the mistake and told J.B.’s
teacher. The teacher then brought J.B. to her office to eat his breakfast. She saw no signs of an
allergic reaction, and J.B. went to class after he finished his meal. When Barney heard about J.B.’s
potential exposure to peanut butter, however, she visited the school to check on him. Barney and
J.B.’s teachers disagreed about whether J.B. was suffering an allergic reaction, but the school
principal still agreed to drive Barney and J.B. to the emergency room. (What happened there is
unclear from the record.)
A few weeks later, Barney met with J.B.’s teachers to discuss his “individualized education
program.” The teachers described J.B.’s academic progress, as well as his behavioral
improvements since he began taking Ritalin for his ADHD. Barney was moved to tears when she
heard about J.B.’s progress, and signed off on the proposed program without objection. Two days
later, however, Barney removed J.B. from the school.
Barney thereafter filed a complaint with the Ohio Department of Education under the Act,
challenging the school district’s response to J.B.’s peanut allergy and the district’s implementation
of J.B.’s educational program. [R. 1-3.] After a hearing, the Department of Education ruled for
the school district. [R. 1-4.] Barney appealed the decision to a state-level review officer, who
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affirmed. [R. 1-2.] Barney then brought this lawsuit. The district court likewise entered judgment
in favor of the district. Barney now appeals.
II.
We review the district court’s factual findings for clear error and its legal conclusions de
novo. See Tucker by Tucker v. Calloway Cty. Bd. of Educ., 136 F.3d 495, 503 (6th Cir. 1998).
A.
Barney primarily claims that the school district violated the Act’s procedural provisions in
various ways. To obtain relief for a procedural violation, Barney must show that the violation
caused “substantive harm” to her or to J.B. Deal v. Hamilton Cty. Bd. of Educ., 392 F.3d 840, 854
(6th Cir. 2004).
Barney argues that the school district repeatedly deprived her of “a meaningful opportunity
to participate” in the process of developing J.B.’s educational program. Id. at 858-59. Specifically,
Barney says that the school district failed to ensure that she understood J.B.’s program, decided
how to address J.B.’s allergy without her input, and impermissibly delayed its 2014 reevaluation
of J.B.’s disabilities. But Barney does not identify any part of J.B.’s educational program that she
did not understand. Nor does she explain how these alleged violations affected J.B.’s education.
Barney thus cannot show that she or J.B. suffered any “substantive harm” from these alleged
wrongs. See id. at 854.
Barney next argues that the school district violated the Act by failing to provide copies of
J.B.’s educational records, which in turn prevented her from obtaining an independent expert’s
opinion about the adequacy of J.B.’s program. See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49,
60-61 (2005). But the record belies this argument. During the administrative proceedings, Barney
conceded that she had received these records prior to the first hearing. [R. 1-2, Pg. ID 12; R. 1-4,
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Pg. ID 89.] And she fails to explain how any delay in obtaining those records prevented her from
seeking an expert opinion.
Barney also argues that the district violated the Act by failing to consider whether J.B.
would benefit from an extended school year. See Bd. of Educ. of Fayette Cty., Ky. v. L.M., 478
F.3d 307, 314-15 (6th Cir. 2007). But the record shows that Barney attended a meeting where
school officials did discuss an extended school year, and that she said nothing when they decided
that J.B. was not eligible for those services. [Admin. R. Ex. 11, Pg. 11; Tr., Pg. ID 323.] Hence
Barney has not shown that the district violated the Act on this ground.
Finally, Barney argues that the school district violated the Act’s mandate to educate J.B. in
the “least restrictive environment”—that is, to educate J.B. “alongside non-disabled children to the
maximum extent appropriate[.]” McLaughlin v. Holt Pub. Sch. Bd. of Educ., 320 F.3d 663, 671-
72 (6th Cir. 2003). In support of that argument, Barney asserts that she had to drive J.B. to a field
trip, which isolated J.B. from his classmates who traveled on a school bus. But Barney herself
insisted on driving J.B. out of fear that he might be exposed to peanut butter on the bus. She cannot
blame the school district for her own decision to separate J.B. from his peers. Cf. Doe By &
Through Doe v. Def. I, 898 F.2d 1186, 1192 (6th Cir. 1990).
B.
Barney also challenges the substance of J.B.’s educational program. “To meet its
substantive obligation under the Act, a school must offer an [educational program] reasonably
calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017).
Barney first takes issue with J.B.’s program, which (she says) was not sufficiently
“ambitious” or specific. Contrary to Barney’s assertion, however, the program contained goals
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tailored to J.B.’s weaknesses in five categories: speech, fine motor skills, reading, writing, and
math. [See R. 1-2, Pg. ID 26; Admin. R. Ex. 10-11.] Each goal included detailed academic
objectives. Moreover, the program specified how much time should be spent weekly on each goal
and provided for regular reporting of J.B.’s progress to his parents. [Admin. R. Ex. 10-11.] Barney
therefore has not shown why the program was not “reasonably calculated” to enable J.B. to make
“progress appropriate in light of [his] circumstances.” Id.
Barney also argues that the school district should have revised J.B.’s plan mid-year because
J.B. was not meeting his goals. But the Act guarantees access to education—not that a student
will achieve a particular outcome. See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 192 (1982). And Barney offers no evidence that J.B.’s progress was so deficient
that the school district should have revised his goals in the middle of the school year. Hence this
argument is without merit.
Barney next argues that the J.B.’s program was not “reasonably calculated” to address his
unique problems. See Endrew F., 137 S. Ct. at 999. Specifically, she says that J.B. was bullied at
school and that the district should have addressed the bullying in his educational program. But
Barney never told the school about the bullying—even when she was explicitly asked about
bullying in a questionnaire for J.B.’s reevaluation. [R. 1-4, Pg. ID 62; Tr. Pg. ID 88.] And Barney
does not explain why the district should have otherwise identified bullying as a problem that was
severe enough to warrant modification to J.B.’s educational program.
Barney also contends that J.B.’s program should have addressed his peanut allergy. Yet
the district noted that J.B. had a peanut allergy in his written individualized-education program
under the heading, “other information.” [R. 1-4, Pg. ID 83.] And the school district had a separate
medical plan to address his allergy. The Act does not require more. See id. at 999-1000.
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Finally, Barney contends that the school district should have addressed problems resulting
from J.B.’s transfers among various schools in the district (all of which transfers Barney initiated).
But Barney nowhere explains what the district should have done differently because of those
transfers. She therefore has not shown that J.B’s educational program was not “reasonably
calculated” to enable J.B. to make “progress appropriate in light of [his] circumstances.” Id. at
999.
Barney’s remaining arguments—that the district court improperly denied her request for
discovery and that the court made various mistakes of fact—are undeveloped. We therefore do
not reach them. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997).
* * * * *
The district court’s judgment is affirmed.
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