United States District Court, E.D. Arkansas, Western Division
DONALD LEWIS and ROXANN LEWIS, individually and as parents of Child Doe
CLARKSVILLE SCHOOL DISTRICT
OPINION AND ORDER
Donald and Roxann Lewis, individually and as the parents of Child Doe, bring this action against Clarksville School District, seeking the reversal of a due process hearing decision in favor of the school district along with costs and attorney’s fees. The plaintiffs filed an administrative complaint against the school district, the Arkansas School for the Deaf (ASD), and the Arkansas Department of Education (ADE) on October 10, 2011, alleging that the Child Doe had been denied a free appropriate public education (FAPE) during school years 2009-2010; 2010-2011; and 2011-2012. A hearing was held under the authority of the ADE pursuant to the Individuals with Disabilities Education Act (IDEA). 20 U.S.C. § 1415. The hearing officer found that there was insufficient evidence to show the school district denied a FAPE to Child Doe. Document #1 at 78. The plaintiffs filed their complaint in this court on April 10, 2013. Document #1. Resolution of the matter with a bench trial or evidentiary hearing has been postponed multiple times. The plaintiffs eventually moved without objection to submit the case on the stipulated record and deposition testimony. Document #70. The Court granted the motion and permitted the parties to submit supplemental briefs and testimony of witnesses who would have testified at a hearing by evidentiary deposition. Document #71. For the following reasons, this Court finds that Clarksville School District complied with its obligation under federal law to provide Child Doe a FAPE in accordance with the IDEA.
The IDEA requires all local educational agencies receiving federal funds to implement policies “to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education by such agencies.” B.S. ex rel. K.S. v. Anoka Hennepin Public Schools, 799 F.3d 1217, 1219 (8th Cir. 2015) (quoting 20 U.S.C. § 1415(a)). A party challenging whether a FAPE has been provided has the right to file an administrative complaint and receive an impartial due process hearing before a local or state agency. 20 U.S.C. § 1415(b)(6). It also provides that a party who is aggrieved by the findings and decision made in a due-process hearing and who has no further administrative appeal has the right to seek review of that decision in federal district court without regard to the amount in controversy. 20 U.S.C. § 1415(i)(2)(A) and (3)(A).
In actions brought under the IDEA, a district court serves a quasi-appellate function while remaining a court of original jurisdiction. See Kirkpatrick v. Lenoir Cnty Bd. of Educ., 216 F.3d 380, 387 (4th Cir. 2000) (“[W]hile a federal district court may review a state review officer's decision and even defer to that decision, the federal district court does not sit as an appellate court. Federal district courts are courts of limited, original jurisdiction with no power to sit as appellate tribunals over state court or administrative proceedings.”); Spiegler v. D.C., 866 F.2d 461, 465-66 (D.C. Cir. 1989) (holding that the quasi-appellate role of the district court in an action brought under the [IDEA] does not differ in important ways from an administrative appeal for purposes of borrowing an appropriate statute of limitations); Adler by Adler v. Educ. Dep't of State of N.Y., 760 F.2d 454, 458-59 (2d Cir. 1985) (same). The Eighth Circuit has explained the nature of a district court’s role in reviewing a claim brought under the Individuals with Disabilities Education Act as follows:
The district court must . . . review the administrative record, hear additional evidence if requested, and “basing its decision on the preponderance of the evidence, . . . grant such relief as [it] determines is appropriate.” Id. at § 1415(i)(2)(C). In deciding whether the IDEA has been violated, the district court must “independently determine whether the child [in question] has received a [free appropriate public education].” CJN v. Minneapolis Pub. Schs., 323 F.3d 630, 636 (8th Cir. 2003), cert. denied, 540 U.S. 984, 124 S.Ct. 478, 157 L.Ed.2d 375 (2003). In doing so, the court must also give “‘due weight’ to agency decision-making.” Id. (quoting Independent Sch. Dist. No. 283 v. S.D. ex rel. J.D., 88 F.3d 556, 561 (8th Cir. 1996)). This somewhat “unusual” standard of review is less deferential than the substantial-evidence standard commonly applied in federal administrative law. Dist. No. 283, 88 F.3d at 561. But we have recognized that this limited grant of deference-“due weight”-is appropriate in IDEA cases because the ALJ “had an opportunity to observe the demeanor of the witnesses and because a [district] court should not substitute its own notions of sound educational policy for those of the school authorities that [it] review[s].” CJN, 323 F.3d at 636 (internal quotation marks and citation omitted).
K.E. ex rel. K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 803 (8th Cir. 2011) (first and fifth alterations added).
Doe was born on July 20, 1999 and, on that day, he failed a hearing screening. Ex. Vol. VIII CSD at N-8. At four months old, an auditory evoked response test performed at Arkansas Children’s Hospital indicated a severe to profound hearing loss in both ears, so medical professionals fitted Doe with over-the-ear hearing aids. Id. Doe was further evaluated on February 7, 2000, while attending pre-school at the Forrester-David Development Center in Clarksville, and as a result, he was determined eligible for early intervention services. Id. at N-2-N-4. He received day habilitation and speech therapy, and the Lewises received information from ASD on hearing loss, associated technology, and how to develop his communication skills. Id. at N-17. A speech pathologist reevaluated Doe on January 10 and 18, 2001 in preparation for his annual review from Forrester-David Development Center. Id. She found that Doe’s language skills were approximately six months below his chronological age of 17 months and that his comprehension skills were delayed. Id. at N-58. She also noted that Doe still had difficulty tolerating his hearing aid. Id. at N-55. The annual review conducted on January 30, 2001, determined Doe was eligible to continue day habilitation and speech therapy, and added occupational therapy services. Id. at N-59, N-63.
On July 20 and 24, 2002, Doe completed another speech-language evaluation in preparation for his transition from the development center to the Western Arkansas Education Service Cooperative’s three to five-year-old program. Ex. Vol. IV CSD at C-103. The speech pathologist noted that Doe had been without his hearing aids for almost two months prior to the evaluation and had been at the development center without his hearing aids fifty days in the past calendar year. Id. Doe did not receive therapy on days he did not have his hearing aids. Id. The speech pathologist found that Doe had made little progress in the past year and that it should be determined whether another communication method-such as sign language-may be more appropriate for him. Id. at C-105. She also recommended that the level of parental capability for at-home training in auditory skills and sign language be determined. Id. The Lewises indicated at a meeting on August 1, 2002 that they were not ready to use sign language at home and that they wanted the speech pathologist to use a cued-language system. Ex. Vol. VIII CSD at N-154.
Several months later on January 21, 2003-while Doe was still at the development center-the Lewises met with the director of the center and other employees to discuss a solution to Doe wetting his pants at school and to address Doe’s communication plan. Id. at N-147. Roxann indicated at the conference that the speech pathologist wanted to train the family in cued speech before she began to use the system with Doe. Id. The Lewises agreed to work together with the speech pathologist to help Doe integrate into the classroom. Id. School officials met with the Lewises again a little over a month later to address the fact that speech therapy was unsuccessful, despite the parental involvement implemented in the previous meeting. Id. at N-145. Other options were discussed-such as therapy at Arkansas Children’s Hospital or the Ramey Speech Clinic in Fort Smith-but the Lewises rejected those options due to gasoline costs. Id. at N-146. The Lewises attributed the lack of progress partly to the center’s failure to require Doe to wear hearing aids. Id.
On February 19, 2003-when Doe was three years and seven months old-he underwent another assessment at Arkansas Children’s Hospital. Ex. Vol. IV CSD at C-95. The speech-pathologist performing the assessment noted that Doe’s parents had been counseled extensively on their role in communication development and that they appeared to understand all the information presented to them. Id. at C-96. She recommended that Doe be enrolled in an intensive therapy program for a trial period of three to six months so he could rapidly develop verbal language skills but that if he did not develop those skills, a change in communication methodology might be necessary. Id. at C-97. At the administrative hearing, Doe’s former occupational therapist-who provided services for nine years beginning in April 2003-testified that Doe had been kicked out of two preschools. Hearing Transcript Vol. XII at 6-7. She also testified that Doe had no signing ability when she began working with him. Id. at 8.
The next documented evaluations of Doe’s hearing took place in February and March of 2004, when Doe was four years old. Ex. Vol. IV CSD at C-92. He had left the Forrester-David Development Center by that time and was referred to Miracle of Speech Rehab. Inc. for evaluation by the Western Arkansas Educational Service Cooperative. Id. Doe was participating in occupational therapy, receiving counseling, and his family was receiving services from ASD. Id. He was enrolled at Community Development Inc. with an aide and scheduled to receive extended school year services for four weeks during the summer session. Id. The records from Doe’s time at CDI were destroyed. Hearing Transcript Vol. XXII at 138. But Doe’s occupational therapist testified that she worked with him that summer to help him communicate clearly, rather than grunting and pointing. Hearing Transcript Vol. XII at 102-103.
Doe started kindergarten at Pyron Elementary School in August 2004. Ex. Vol. IV at B-1. In September of that year, the Clarksville School District conducted a psycho-educational reevaluation in accordance with state and federal guidelines. Id. at C-85. The examiner conducted a variety of tests, concluding that the ultimate determination of the existence of a disabling condition was the evaluation committee’s responsibility. Id. at C-89. The committee created an individualized education program (IEP) for Doe on October 19, 2004. Ex. Vol. V CSD at G-66. The program dictated that Doe would receive ninety minutes a week of speech therapy and sixty minutes of occupational therapy, and that he would spent 150 minutes a week in special education. Id. at G-51. The program also implemented a variety of modifications, supplemental aids, and supports in the classroom, including reduced assignments, extra time for completing assignments, extra time for oral communication response, and some assignments conducted in a one-on-one setting. Id. at G-62. An educational consultant attended the meeting. Id. at G-66.
An annual review of Doe’s first year in kindergarten was conducted on May 20, 2005. Id. at F-90. The review form indicates that Doe made progress but that he was being retained in the kindergarten. Id. He was able to sign two-word, conceptually accurate utterances to describe objects and state action in pictures. Id. He also was able to recognize sign and letter pairs-except for “K”-count to seven, and knew his colors. Id. The committee recommended that Doe have a sign language interpreter with him at all times during the school day. Id. It also determined that he benefitted from structural intervention and that extended year services for speech and occupational therapy with sign language would continue his progress. Id. at F-92. The committee prepared another IEP, which included 100 minutes of speech therapy each week, sixty minutes of occupational therapy each week, and 160 minutes of special education ...