L.J. v. School Board of Broward County, Florida

*1206L.J. and his mother surely have more experience than they would wish for in navigating the contours of the Individuals with Disabilities Education Act (IDEA) and its challenge procedures. And, to be fair, the school system likely harbors its own regrets about the amount of litigation that has occurred over the last decade-and-a-half. Since his third-grade year, L.J.-who has been diagnosed with autism and a speech-and-language impairment-has received special education and related services under the IDEA, a statute that carries an educational guarantee for students with special needs: an individualized education plan (IEP) "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. v. Douglas Cty. Sch. Dist. , --- U.S. ----, 137 S. Ct. 988, 999, 197 L.Ed.2d 335 (2017). But even accounting for this guarantee, L.J.'s path through school has not been a clear one; as early as 2002, his third-grade year, he and his mother have challenged his schools' plans for him, arguing at various times that the plans' content, the plans' implementation, or both, were insufficient. The current challenge is related only to implementation-that is, whether and how the school put its plan into action. The question we face is how to ensure that the IDEA's guarantee of a free appropriate public education is honored not only in the content of an IEP, but also in its implementation. And because those two issues-content and implementation-are different in their nature-plan versus action-our analyses of shortfalls in those areas also must be different. Because the content outlined in a properly designed IEP is a proxy for the IDEA's educational guarantee, we conclude that a material deviation from that plan violates the statute. Applying that standard to this case, we do not see a material deviation from L.J.'s IEP, and therefore affirm the judgment of the district court.

I.

Congress passed the IDEA in 1975 "to ensure that all children with disabilities have available to them a free appropriate public education." 20 U.S.C. § 1400(d)(1)(A).1 To achieve that goal, the federal government provides funds to states in exchange for their compliance with a set of regulations aimed at delivering "special education and related services designed to meet" disabled children's "unique needs and prepare them for further education, employment, and independent living." Id. Congress directed, and the IDEA's scheme depends on, cooperation between schools and parents to best identify and serve disabled children's *1207needs. See id. § 1400(d)(1)(B), (d)(3) ; Schaffer v. Weast , 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (identifying the "core of the statute" as "the cooperative process that it establishes between parents and schools").

The individualized education program is "the centerpiece of the statute's education delivery system for disabled children." Honig v. Doe , 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). The IDEA defines an IEP as "a written statement for each child with a disability that is developed, reviewed, and revised" according to specific procedures and that includes a roadmap for the child's academic growth and development. 20 U.S.C. § 1414(d)(1)(A)(i). The IEP is a "plan" that "requires a prospective judgment by school officials," and crafting it is a "fact-intensive exercise." Endrew F. , 137 S. Ct. at 999. Parents and educators work together as the "IEP Team" to draft and update a child's IEP, with the IDEA laying out both the general IEP process and a checklist of items that the plan should include-things like "a statement of the child's present levels of academic achievement and functional performance," "a statement of measurable annual goals," and "a statement of the special education and related services and supplementary aids and services ... to be provided to the child." 20 U.S.C. § 1414(d)(1)(A)(i), (d)(1)(B). See generally id. § 1414. The IDEA also provides a detailed set of "procedural safeguards" to protect disabled children and their parents. See generally id. § 1415. Those safeguards include a graduated set of dispute resolution mechanisms: informal meetings, formal mediation, a "due process hearing" before a state or local administrative agency, and, if necessary, judicial review. See id. And while the dispute resolution process plays out, the IDEA guarantees that-unless the school and parents agree otherwise-"the child shall remain in the then-current educational placement of the child." Id. § 1415(j). This guarantee is known as the "stay-put" provision.2

The IDEA allows parents to challenge "any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education." Id. § 1415(b)(6)(A). Disagreements over a disabled child's education can take different forms. Sometimes the child's parent will argue that the school's proposed IEP is inadequate and thus fails to offer a free appropriate public education. In those content cases, the Supreme Court recently made clear that to "meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. , 137 S. Ct. at 999. Other times, in what are more fairly called implementation cases, the parent will argue that while their child's IEP clears the IDEA's substantive threshold as written , the school has nonetheless failed to properly put the plan into practice. The Supreme Court has not yet articulated a standard for these implementation cases, and neither have we. But today we conclude that a material deviation from the content of an IEP violates the IDEA.

II.

L.J., a child with autism and a speech-and-language impairment, was a student in the Broward County public school system *1208during his kindergarten, elementary school, and middle school years. During his third-grade year, education professionals at his elementary school worked with L.J.'s mother to develop an individualized education program for him. That IEP remained in place for several years as L.J. progressed through elementary school.

When L.J. entered middle school three years later, the school board proposed a new IEP that it believed would better suit his needs in the new environment. L.J., meanwhile, strongly disliked the new middle school setting and immediately exhibited a range of problematic behaviors-including persistent refusal to attend school. L.J.'s mother ended up homeschooling him for most of his sixth-grade year, and in August of that year she filed an IDEA complaint challenging the content of the middle school's proposed IEP. She also invoked the IDEA's "stay-put" provision so that the school was required to continue to implement L.J.'s elementary school IEP while her challenge to the proposed middle school IEP progressed through the system.

Over the fall and spring of L.J.'s sixth-grade year, his mother continued to file complaints challenging various aspects of L.J.'s education, including the school's implementation of his elementary school stay-put IEP. An administrative law judge (ALJ) consolidated five complaints from L.J.'s mother as well as one filed by the school and held hearings over an eight-month period during L.J.'s sixth-grade year. The summer after sixth grade, the ALJ issued a decision addressing the content of the new IEP and the implementation of the old one; he found both that the content of the proposed middle school IEP was appropriate and that the school had adequately implemented the elementary school stay-put IEP during the challenge. L.J.'s mother appealed from that decision, and a district judge affirmed it.3 That case and the time period it involved-L.J.'s sixth-grade year-are no longer before us. But because of that case, at all times relevant to this appeal, the school was required to implement L.J.'s elementary school stay-put IEP.

L.J. returned to his public school for his seventh-grade year, but despite the apparent efforts of both his mother and the school, his attendance problems continued: due to a combination of illness and refusal to attend, L.J. was absent for well over 100 school days. All told, L.J. was present for less than a quarter of the class periods during his seventh-grade school year. That small fraction reflects the fact that L.J. often never even made it to the bus stop, much less through the school doors, and that when he did go to school, he often left early.

In December of L.J.'s seventh-grade year, his mother filed another IEP challenge-the one that eventually resulted in this appeal. Although the ALJ had found *1209in the first case that the school had adequately implemented the elementary school stay-put IEP through the end of L.J.'s sixth-grade year, L.J.'s mother now alleged that the school had failed to implement that same IEP during the federal judicial proceedings that followed her appeal from the ALJ's order-that is, beginning in seventh grade. As the administrative challenges continued, so did L.J.'s problems at school, including several violent incidents. L.J.'s mother eventually removed him from the public school in February 2008, a little more than halfway through his eighth-grade year.

And so began this case, which relates to the time between the ALJ's decision at the end of L.J.'s sixth-grade year and L.J.'s removal from school partway through eighth grade. Eighteen non-consecutive days of hearings on these new claims spanned over two years between March 2007 and October 2009. Over a year later, the ALJ issued a written opinion concluding that the school had failed to implement L.J.'s elementary school stay-put IEP during his seventh- and eighth-grade years, the time when the decision approving the content of the proposed middle school IEP was being appealed in federal court. The ALJ opinion acknowledged the age of the stay-put IEP and recognized that "the School Board found the implementation of the IEP to be very difficult." But after a lengthy recitation of factual findings and specific day-to-day incidents, the ALJ concluded that "there were substantial or significant provisions of [L.J.'s] IEP that the School Board failed to implement." The ALJ also found that the school had discriminated and retaliated against L.J. and his mother for exercising their rights under the IDEA, but the parties have settled that claim and it is not at issue here.

The parties filed complaints in federal district court-L.J.'s mother seeking enforcement of the ALJ's order and additional relief, and the school challenging the order. Soon after, both parties cross-moved for judgment on the administrative record. The district court issued an opinion setting the standard of review and ordering supplemental briefing. See L.J. v. Sch. Bd. of Broward Cty. , 850 F. Supp. 2d 1315 (S.D. Fla. 2012). Five years later, it issued a detailed opinion that addressed each alleged implementation deficiency, relied on an extensive review of the administrative record, and ultimately reversed the ALJ's decision.4 The district court entered judgment in favor of the school. See L.J. v. Sch. Bd. of Broward Cty. , No. 11-60772-CIV-MARRA, 2017 WL 6597516 (S.D. Fla. Sept. 28, 2017). L.J.'s mother appealed from that decision, and we now consider *1210whether the school's implementation of L.J.'s elementary school stay-put IEP during his seventh- and eighth-grade school years (up until his removal in the middle of eighth grade) violated the IDEA.

III.

When a district court reviews an administrative decision in an IDEA case, it must make a decision based on the preponderance of the evidence and give "due weight" to the ALJ's conclusions. R.L. v. Miami-Dade Cty. Sch. Bd. , 757 F.3d 1173, 1178 (11th Cir. 2014) (citation omitted). "Due weight" means that a reviewing court "must be careful not to substitute its judgment for that of the state educational authorities," but "the ALJ is not entitled to blind deference" and the district court "is free to accept the ALJ's conclusions that are supported by the record and reject those that are not" so long as it explains any rejections. Id. (citation omitted).

When we review a district court's decision in an IDEA case, we review questions of law de novo and findings of fact for clear error. Id. at 1181. But where-as here-the district court does not receive additional evidence and its findings are "based solely on a cold administrative record," 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. (citation omitted).

IV.

A.

The IDEA was Congress's response to a national problem: the exclusion of disabled children from the benefits and opportunities of public education. It gives force to a congressional determination that all children-including those who suffer from disabilities-are entitled to participate in the life of this country's public schools. To effectuate that goal, the IDEA created an array of procedures allowing parents and schools to work together to provide "special education and related services designed to meet" disabled children's "unique needs." 20 U.S.C. § 1400(d)(1)(A) (stating congressional purpose). And in 1982, the Supreme Court held that it does more than that: beyond mere procedures, the IDEA confers a substantive right to a "free appropriate public education" for children with disabilities. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley , 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).

Rowley set the starting line for IEPs. Emphasizing that "[i]mplicit in the congressional purpose of providing access to a 'free appropriate public education' is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child," the Rowley Court concluded that a covered child's IEP must be "reasonably calculated to enable the child to receive educational benefits." Id. at 200, 207, 102 S.Ct. 3034. The decision, however, left many questions unresolved-expressly declining to "establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act." Id. at 202, 102 S.Ct. 3034. But in the years that followed, many circuits concluded that the substantive right Rowley described was not so robust after all. See, e.g. , O.S. v. Fairfax Cty. Sch. Bd. , 804 F.3d 354, 360 (4th Cir. 2015) (requiring only "a benefit that is more than minimal or trivial"); K.E. v. Indep. Sch. Dist. , 647 F.3d 795, 810 (8th Cir. 2011) ("some educational benefit") (internal quotation marks and citation omitted);

*1211P. v. Newington Bd. of Educ. , 546 F.3d 111, 119 (2d Cir. 2008) ("more than only trivial advancement") (internal quotation marks and citation omitted); Thompson R2-J Sch. Dist. v. Luke P. , 540 F.3d 1143, 1149 (10th Cir. 2008) ("merely ... more than de minimis ") (internal quotation marks and citation omitted).

In 2017, the Supreme Court stepped in again. In Endrew F. v. Douglas County School District , the Court rejected the Tenth Circuit's "merely more than de minimis " standard because, "[w]hen all is said and done, a student offered an educational program providing 'merely more than de minimis ' progress from year to year can hardly be said to have been offered an education at all." 137 S. Ct. at 1001. Such a weak standard, the Court reasoned, was out of step with the IDEA's loftier guarantees and with Rowley itself. Endrew F. drove home the point that to "meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Id. at 999.

Both Rowley and Endrew F. explain how an IEP as written may fail to clear the IDEA's substantive threshold (and therefore fail to offer a free appropriate public education). Those cases provide useful guideposts to courts evaluating "content" claims. But even where an IEP as written may satisfy the IDEA, schools can also fail to meet their obligation to provide a free appropriate public education by failing to implement the IEP in practice . These are "implementation" cases, and it is this second species of IDEA claim that this case presents.

B.

We have not yet articulated a legal standard to govern implementation cases. For the courts that have, the heart of this issue has been whether any deviation whatsoever from an IEP necessarily violates the IDEA, and-if not-how far is too far. Confronting this issue for the first time ourselves, we conclude that to prevail in a failure-to-implement case, a plaintiff must demonstrate that the school has materially failed to implement a child's IEP. And to do that, the plaintiff must prove more than a minor or technical gap between the plan and reality; de minimis shortfalls are not enough. A material implementation failure occurs only when a school has failed to implement substantial or significant provisions of a child's IEP. Under that standard, students and parents can be assured that they will receive the benefits of a properly designed IEP, while schools work to meet those requirements without being inappropriately penalized for de minimis failures that do not themselves deprive a student of the educational promise of the IDEA.

Several considerations convince us that a materiality standard-rather than a perfect-implementation requirement-is best suited to determine whether a school has satisfied its obligations under the IDEA, at least with respect to the implementation of an IEP. In determining what those obligations are, we look first to the definition of a "free appropriate public education" in the text of the IDEA:

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 *1212(D) are provided in conformity with the individualized education program required under section 1414(d) of this title .

20 U.S.C. § 1401(9) (emphasis added). When we consider implementation claims, the fourth part of the test is the crux of the matter-we must decide what it means to provide special education and related services "in conformity with [a child's] individualized education program." And we also must decide what it means to fail at that responsibility.

The phrase "in conformity with" suggests that general agreement or congruence, not perfect adherence, is the standard. See Van Duyn v. Baker Sch. Dist. , 502 F.3d 811, 821 (9th Cir. 2007) (concluding that the phrase "in conformity with" counsels "against making minor implementation failures actionable"); see also 34 C.F.R. § 300.323(c)(2) (requiring education "in accordance with" the IEP). "Conformity" means "[c]orrespondence in form, manner, or use; agreement; harmony; congruity." Black's Law Dictionary 207 (Abridged 6th ed. 1991); see also Webster's New World College Dictionary 313 (5th ed. 2014) ("the condition or fact of being in harmony or agreement; correspondence; congruity; similarity"). Conspicuously absent from this definition are words like "exact" or "identical," suggesting that the IDEA recognizes that some degree of flexibility is necessary in implementing a child's IEP. We see nothing in the text of the IDEA holding schools to a standard of perfect implementation.5

To the contrary, statutory context also points toward a materiality standard. In seeking to deliver "special education and related services designed to meet" disabled children's "unique needs," 20 U.S.C. § 1400(d)(1)(A), the IDEA recognizes that a child's individual circumstances and "unique needs" do not remain static as the child progresses from grade to grade. That is because "children develop quickly and once correct placement decisions can soon become outdated." Cory D. v. Burke Cty. Sch. Dist. , 285 F.3d 1294, 1299 (11th Cir. 2002). The statute thus requires a child's IEP team to review and revise the IEP "periodically, but not less frequently than annually." 20 U.S.C. § 1414(d)(4)(A). Rowley similarly acknowledged the wide range of situations that an IEP may seek to accommodate. See 458 U.S. at 202-03, 102 S.Ct. 3034. Even in their development, then, we see that IEPs have some amount of flex in their joints with an expectation that parents and schools will work together to keep the plans up to date as circumstances and the child's needs demand. This recognition counsels against a rigid, perfect-implementation interpretation of "in conformity with."

Setting out a standard under which even a de minimis failure to implement a particular provision of an IEP would be actionable would also be inconsistent with the recognition that an IEP is a plan, not a contract. See 20 U.S.C. § 1414(d)(1)(A)(i) (defining an IEP as "a written statement"); see also *1213Van Duyn , 502 F.3d at 820. Indeed, as Endrew F. itself recognized, an IEP is a "plan" that requires "prospective" and "fact-intensive" judgments. 137 S. Ct. at 999. To be sure, this is no license for a school to disregard an IEP, in whole or in part, during litigation. But it is a recognition that a properly designed IEP will be capable of providing a free appropriate public education even in the face of a non-material implementation failure.

Another contextual clue is particularly telling. In some implementation cases (including this one), the parties dispute the implementation of a "stay-put" IEP-that is, a child's old IEP that a school district is required to implement during the pendency of disputes over the content of a new one. See 20 U.S.C. § 1415(j). An old IEP may quite literally be impossible to fully implement in a new setting-for example, where (as here) the child has transitioned from elementary to middle school. In view of this on-the-ground reality, other circuits have recognized that as "a child progresses from preschool to elementary school, from elementary school to middle school or from middle school to high school, the status quo no longer exists"-and as a result, when a school finds itself in this situation, "the obligation of the new district is to provide educational services that approximate the student's old IEP as closely as possible." John M. v. Bd. of Educ. of Evanston Twp. High Sch. Dist. , 502 F.3d 708, 714-15 (7th Cir. 2007) (internal quotation marks and citation omitted). Whatever implementation standard the IDEA requires, it must apply to these sorts of stay-put cases. In those cases, it would be odd-and again, often impossible-for the IDEA to demand blind compliance with an out-of-date IEP in an educational context that it was not designed for and in which it cannot be carried out in its entirety.

Given this impossibility, the alternative to a materiality standard-holding that any deviation, however minor, necessarily and conclusively amounts to an IDEA violation-is a poor fit for the IDEA and the contexts in which it operates. Adopting a hair-trigger standard for implementation cases would turn the stay-put provision into a sword rather than a shield by rendering every misstep, no matter how insignificant or unavoidable, a violation of the IDEA. It would ignore the realities and the challenges that the IDEA was built to accommodate and fail to distinguish between schools that implement stay-put IEPs to the fullest extent possible in a new setting and schools that simply give up. We decline to read such a counterproductive trap into the IDEA.

We thus conclude that the materiality standard-asking whether a school has failed to implement substantial or significant provisions of the child's IEP-is the appropriate test in a failure-to-implement case.6

C.

We offer a few points on the implementation of this implementation standard.

*1214In keeping with the Supreme Court's example in Endrew F. , we will not attempt to map out every detail of this test. Indeed, as with the substantive standard in content cases, it is "in the nature of the Act and the standard we adopt to resist such an effort." Endrew F. , 137 S. Ct. at 1001. That is because every child, and every IEP, is different; whether an implementation failure is material will therefore depend on the relevant provision's place and purpose in the IEP, as well as the overall educational context that the IEP was designed for and the extent and duration of any difference between practice and plan. We are also mindful that it is not our job "to elaborate a federal common law of public education." Id. at 998. But we lay down a few principles to guide the analysis.

To begin, the focus in implementation cases should be on "the proportion of services mandated to those actually provided, viewed in context of the goal and import of the specific service that was withheld." L.J. , 850 F. Supp. 2d at 1320 (citing Wilson v. District of Columbia , 770 F. Supp. 2d 270, 275 (D.D.C. 2011) ). The task for reviewing courts is to compare the services that are actually delivered to the services described in the IEP itself. That means that courts must consider implementation failures both quantitatively and qualitatively to determine how much was withheld and how important the withheld services were in view of the IEP as a whole.

A child's actual educational progress (or lack thereof) can be evidence of the materiality of an implementation failure-but it is not dispositive. Cf. Endrew F. , 137 S. Ct. at 998 (noting that Rowley "involved a child whose progress plainly demonstrated that her IEP was designed to deliver more than adequate educational benefits"). In other words, some evidence of success-or failure-in achieving certain outcomes is not outcome-determinative here any more than it is in a content case. See id. at 998-99. An IDEA plaintiff cannot show an implementation failure merely by pointing to a lack of educational progress. But, conversely, "the materiality standard does not require that the child suffer demonstrable educational harm in order to prevail." Van Duyn , 502 F.3d at 822. Still, "the child's educational progress, or lack of it, may be probative of whether there has been more than a minor shortfall in the services provided." Id. So, for example, "if the child is not provided the reading instruction called for and there is a shortfall in the child's reading achievement, that would certainly tend to show that the failure to implement the IEP was material," and vice versa. Id.

We reiterate our caution, however, that reviewing courts should not rely too heavily on actual educational progress, at least where a plaintiff has not tied the lack of progress to a specific implementation failure. It is merely one piece of evidence courts may use in assessing whether a school failed to implement substantial or significant provisions of the IEP. This is particularly true where a school implements a stay-put IEP after its newly proposed IEP has been challenged: given the circumstances, it may be unfair to judge the school based only on the output of a plan that the school itself believes is due for revision.

Along those same lines, we agree with the district court that schools must be afforded some measure of leeway when they implement a stay-put IEP, especially when the child has transitioned from one educational level to another after the stay-put IEP was adopted. In such a case, the school's implementation "must produce as closely as possible the overall educational experience enjoyed by the child under his *1215previous IEP." John M. , 502 F.3d at 715. But reviewing courts "must recognize that educational methodologies, appropriate and even necessary in one educational environment, are not always effective in another time and place in serving a child's continuing educational needs and goals." Id.

This is not to say that a school may unilaterally reject or revise a child's stay-put IEP-that would defang the stay-put requirement entirely. To the contrary, the Supreme Court has made clear that the IDEA "strip[s] schools of the unilateral authority they had traditionally employed to exclude disabled students." Honig , 484 U.S. at 323, 108 S.Ct. 592 (emphasis omitted); see also Sch. Comm. of the Town of Burlington v. Dep't of Educ. , 471 U.S. 359, 373, 105 S.Ct. 1996,