In Plotkin v. Montgomery County Public Schools, No. 22-2073, 2023 WL 7272102, — F. App’x —, 123 LRP 33167 (4th Cir. Nov. 3, 2023) (unpublished), petition for cert. filed, No. 23-1074 (Apr. 2, 2024), the Fourth Circuit considered whether a school district’s failure to fully implement a student’s individualized education program (IEP) amounted to a denial of a free appropriate public education. The court’s opinion was brief and affirmed the administrative law judge’s ruling in favor of the school system, concluding that the implementation lapse constituted a procedural violation that did not deprive the student of FAPE.
The court noted that the record showed the student received satisfactory classroom marks, demonstrated test score gains exceeding the average student’s improvement, and experienced test anxiety that negatively affected performance. On that record, the court concluded that the failure to adhere to the IEP, which the opinion did not describe in detail, did not rise to the level of a FAPE denial. 2023 WL 7272102, at *2.
The district court decision affirmed by the Fourth Circuit provides additional context. The case involved a third-grade student with autism whose IEP called for pull-out math instruction. Instead, the student received all math instruction in the general education classroom, supplemented by small-group work, manipulatives, and support from a one-to-one paraeducator. The district court concluded that, despite the deviation from the IEP, the student made meaningful educational progress.
At the beginning of third grade, the student’s score on the math portion of the Measure of Academic Progress standardized test was 169, placing him at a first-grade level. By the end of the school year, his score increased to 183, reflecting growth of 14 points, slightly above the average increase of 13 points for third graders. The student’s percentile rank also increased from the 5th percentile to the 11th percentile. 2022 WL 4280170, at *2.
The general education teacher testified that, with supports, the student was performing at grade level in math and benefited from instruction alongside peers. She explained that the difference between classroom performance and standardized test results could be attributed to the student’s test anxiety. The parent testified that the student received weekly private math tutoring during the school year and suggested that tutoring explained the progress observed. The court, however, deferred to the administrative findings crediting the school system’s evidence.
The district court concluded that failure to strictly implement the IEP constituted a procedural violation that would justify compensatory relief only if it resulted in a denial of FAPE under the standard articulated in Endrew F. v. Douglas County School District, 580 U.S. 386 (2017). Relying on expert testimony regarding the student’s progress and the extent of classroom observation, the court found no such denial. The court also noted that the in-class instruction incorporated features recommended by the parent’s expert, including a quiet environment and small-group instruction, and that the parent failed to establish that private tutoring was the cause of the student’s progress.
Taken together, the decisions reflect that a failure to fully implement an IEP, standing alone, does not automatically result in a denial of FAPE where the record demonstrates meaningful educational progress and supports the administrative determination that the student’s needs were adequately addressed.