Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Parrish v. Bentonville School District

United States District Court, W.D. Arkansas, Fayetteville Division

March 22, 2017

RON and LAUREN PARRISH, as Parents of L; VICTOR and LAURA CRAIG, as Parents of A; Y and CHASTIDY LAWS, as Parents of G; and RACHELLE SIVERLY, as Parent of S PLAINTIFFS
v.
BENTONVILLE SCHOOL DISTRICT; ARKANSAS DEPARTMENT OF EDUCATION; and JOHNNY KEY, Commissioner DEFENDANTS

          OPINION AND ORDER

          P.K. HOLMES, III CHIEF U.S. DISTRICT JUDGE

         Before the Court are the following motions to be resolved:

         • Bentonville School District filed a motion for summary judgment on all claims asserted by the Parrish Plaintiffs (Doc. 136), a brief in support of its motion (Doc. 138), and a statement of facts in support of its motion (Doc. 137). Plaintiffs submitted a response in opposition to summary judgment (Doc. 161), a brief in support of their response (Doc. 162), a statement of facts to which they contend there is a dispute of material fact (Doc. 163), and a supplement to their response in opposition (Doc. 169). Bentonville School District filed a reply to the Parrishes' opposition (Doc. 180).

         • Bentonville School District filed a motion for summary judgment on all claims asserted by the Craig Plaintiffs (Doc. 143), a brief in support of its motion (Doc. 144), and a statement of facts in support of its motion (Doc. 145). Plaintiffs submitted a response in opposition to summary judgment (Doc. 161), a brief in support of their response (Doc. 162), a statement of facts to which they contend there is a dispute of material fact (Doc. 163), and a supplement to their response in opposition (Doc. 169). Bentonville School District filed a reply to the Craigs' opposition (Doc. 182).

         • Bentonville School District filed a motion for summary judgment on all claims asserted by the Siverly Plaintiff (Doc. 128), a brief in support of its motion (Doc. 129), and a statement of facts in support of its motion (Doc. 130). Plaintiff submitted a response in opposition to summary judgment (Doc. 164), a brief in support of her response (Doc. 165), a statement of facts to which she contends there is a dispute of material fact (Doc. 166), and a supplement to her response in opposition (Doc. 170). Bentonville School District filed a reply to Ms. Siverly's opposition (Doc. 181).

         • Bentonville School District filed a motion for summary judgment on all claims asserted by the Laws Plaintiffs (Doc. 132), a brief in support of its motion (Doc. 134), and a statement of facts in support of its motion (Doc. 133). Plaintiffs submitted a response in opposition to summary judgment (Doc. 164), a brief in support of their response (Doc. 165), a statement of facts to which they contend there is a dispute of material fact (Doc. 166), and a supplement to their response in opposition (Doc. 170). Bentonville School District filed a reply to the Laws' opposition (Doc. 179).

         • Defendants Arkansas Department of Education and Commissioner Johnny Key filed a motion for summary judgment (Doc. 125), a brief in support of their motion (Doc. 126), and a statement of facts in support of their motion (Doc. 127). Plaintiffs submitted a response in opposition to summary judgment (Doc. 172), a brief in support of their opposition (Doc. 173), and a statement of facts that they contend are in dispute (Doc. 167). Defendants Arkansas Department of Education and Commissioner Key filed a reply to the Plaintiffs' opposition. (Doc. 176).

         • The Parrish and Craig Plaintiffs filed a motion for summary judgment against the Arkansas Department of Education (Doc. 139), a statement of facts in support of their motion (Doc. 140), a brief in support of their motion (Doc. 141), and two supplemental filings (Docs. 142, 148). The Arkansas Department of Education submitted a response in opposition to the Plaintiffs' motion (Doc. 155), and a response to Plaintiffs statement of facts and supplements (Doc. 156). Plaintiffs filed a reply to the Arkansas Department of Education's opposition to their motion for summary judgment. (Doc. 174).

         • Bentonville School District filed a motion to sever the case. (Doc. 77). Plaintiffs filed a response in opposition to the motion (Doc. 83) as well as a memorandum brief in support of their response in opposition. (Doc. 84). The Court previously took this motion under advisement and directed the parties to submit a succinct joint proposal of severance, or if no agreement could be reached, separate succinct proposals by Monday May 9, 2016. (Doc. 91, p. 16). Defendants Bentonville School District and the Arkansas Department of Education filed a joint severance proposal on May 9, 2016. (Doc. 99). Plaintiffs did not file anything in accordance with the Court's order.

         For the following reasons, Bentonville School District's motions for summary judgment (Docs. 128, 132, 136, 143) will be GRANTED, the Arkansas Department of Education's motion for summary judgment (Doc. 125) will be GRANTED, Plaintiffs' motion for summary judgment on claims against the Arkansas Department of Education (Doc. 139) will be DENIED, and Bentonville School District's motion to sever the case (Doc. 77) will be TERMINATED AS MOOT.

         I. Background

         The Parrishes, the Craigs, Ms. Siverly, and the Lawses all had children that attended the Bentonville School District (BSD) for various lengths of time, and out of these interactions with BSD arose the instant lawsuit. Additionally, the Parrishes and the Craigs exhausted administrative due process hearings with the Arkansas Department of Education (ADE) and as such have also asserted claims against the ADE and Commissioner Johnny Key. The Court has reviewed all of the filings on the docket as well as the administrative records of the Craig and Parrish Plaintiffs.

         The Parrishes' son, L, is an autistic student who attended BSD from kindergarten until the middle of his third grade year on March 14, 2013. L was significantly behind grade level academically, and during his third grade year L's misbehavior become more frequent and severe. His misbehavior included striking other students and staff members, including punching one teacher in the eye and also striking a pregnant teacher. L's misbehavior included many outbursts and acts of physical aggression. In the course of preventing physical harm to themselves and others, BSD employees touched[1] L, which led to the Parrishes' claims that BSD used inappropriate force in restraining L.

         The Craigs' son, A, is an autistic student who attended BSD from kindergarten until the end of his second grade year. A was mostly at or above grade level academically, but his behavior was largely disruptive and destructive. There was a period in the fall of his second grade year where A's behavior was under control. However, in the spring of his second grade year his behavior problems returned and his parents voluntarily withdrew him from school at the end of the year. A's misconduct included a long list of destructive behaviors such as striking others, destroying property, and causing an imminent threat to himself and others. In the course of preventing physical harm to themselves and others, BSD employees touched A, which led to the Craigs' claims that BSD used inappropriate force in restraining A.

         Ms. Siverly's son, S, is an autistic student who attended BSD during his second grade year. S's behavior was physically aggressive, and included throwing objects at others, kicking, and punching. S's student crisis plan explicitly authorized BSD to use physical restraint as a last resort when S presented a danger to himself and others. In addressing S's misbehavior and acts of physical aggression, BSD restrained S and placed S in a de-escalation room.

         The Laws' son, G, an autistic student who attended BSD during his second grade year. In educating G, BSD did not use methods of behavior management involving physical restraint and seclusion.

         The Craig and Parrish Plaintiffs seek review of final administrative orders that followed due process hearings conducted by the ADE. The hearings were held at the request of Plaintiffs, who alleged that their disabled children had been denied a Free Appropriate Public Education (FAPE) by BSD, contrary to the requirements of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. Defendant BSD is a political subdivision organized and existing under the laws of the State of Arkansas. BSD is subject to the IDEA's requirements because it is a public school system receiving federal funds for its educational programming. Accordingly, BSD is mandated by federal law to provide a FAPE to all children with disabilities residing within its educational boundaries. Id.

         In accordance with the provisions of the IDEA, BSD developed Individualized Educational Programs (IEP) for each student each year that the child was enrolled at BSD. To create an IEP for a disabled student, the district assembled a team of educators, specialists, and the child's parents to plan a course of study that would educate the child while taking into account the child's particular disability. An IEP contains, among other things, information about the child's present level of academic achievement and functional performance, including measurable annual goals and short term objectives, a description of the specific educational services to be provided to the child, and the extent to which the child will be educated in regular education programs. 20 U.S.C. § 1414(d). In addition, Congress requires that educational services be provided to a child with disabilities, to the maximum extent appropriate, in the regular educational environment, and that no child with a disability be removed to special classes or separate schools unless the child cannot be educated satisfactorily in the regular education environment. 20 U.S.C. § 1412(a)(5); W.K. v. Harrison Sch. Dist., 2012 WL 2681592, at *1 (W.D. Ark. July 6, 2012), aff'd, 509 F. App'x 565 (8th Cir. 2013). In seeking review of these administrative proceedings, the Parrishes and Craigs not only allege that BSD denied their children a FAPE under the IDEA, but also that the ADE violated the IDEA in conducting the underlying hearings.

         This lawsuit also involves all four plaintiffs bringing claims under 42 U.S.C. § 1983 based on the right to bodily integrity, equal protection claims also brought under § 1983, § 504 of the Rehabilitation Act claims, and claims under Title II of the Americans with Disabilities Act against BSD, the ADE, and Commissioner Key. This lawsuit previously involved many other defendants in their individual capacities, as well as multiple state tort claims, but those additional defendants and claims have been dismissed.

         II. Legal Standard

         A. Summary Judgment

         When a party moves for summary judgment, it must establish both the absence of a genuine dispute of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Nat'l Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999). In order for there to be a genuine issue of material fact, the non-moving party must produce evidence “such that a reasonable jury could return a verdict for the nonmoving party.” Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66-67 (8th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Only facts “that might affect the outcome of the suit under the governing law” need be considered. Anderson, 477 U.S. at 248. “[T]he non-movant must make a sufficient showing on every essential element of its claim on which it bears the burden of proof.” P.H. v. Sch. Dist. of Kan. City, Mo., 265 F.3d 653, 658 (8th Cir. 2001) (quotation omitted). Facts asserted by the nonmoving party “must be properly supported by the record, ” in which case those “facts and the inferences to be drawn from them [are viewed] in the light most favorable to the nonmoving party.” Id. at 656-57.

         B. District Court in Review of State Administrative IDEA Proceedings

         The IDEA requires every local educational agency (LEA) 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 [FAPE] by such agenc[y].” B.S. ex rel. K.S. v. Anoka Hennepin Public Schs., 799 F.3d 1217, 1219 (8th Cir. 2015) (quoting 20 U.S.C. § 1415(a)). A party challenging whether an LEA provided FAPE 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). The IDEA also allows for a party to seek a review of the local or state due-process hearing in a federal district court. 20 U.S.C. § 1415(i)(2)(A) and (3)(A). In reviewing a hearing officer's decision, the IDEA provides that 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 the preponderance of the evidence, shall grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415.

         In handling such a review, 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 function in handling an IDEA claim as:

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 FAPE.” 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).

         “A prevailing party at the administrative level is entitled to an award of its attorneys' fees.” Swearingen v. Ozark Mountain Sch. Dist., No. 3:16-CV-03029, 2016 WL 7155773, at *6 (W.D. Ark. Dec. 7, 2016). A party has prevailed “if it succeeded on any significant issue which achieved some of the benefit it sought.” Yankton School District v. Schramm, 93 F.3d 1369, 1377 (8th Cir. 1996). “The IDEA's attorney's fees provision, 20 U.S.C. § 1415(e)(4)(B) (1986), is similar to the civil rights attorney's fees award statute, 42 U.S.C. § 1988 (1986). Under both statutes, attorney's fees should ordinarily be awarded to the prevailing party unless ‘special circumstances' exist to make an award unjust.” Borengasser v. Ark. State Bd. of Educ., 996 F.2d 196, 199 (8th Cir. 1993).

         III. Discussion

         A. BSD's Motion for Summary Judgment on All Claims Asserted by the Parrish Plaintiffs. (Doc. 136).

         1. IDEA Claim

         In reviewing BSD's motion for summary judgment on the Parrishes' IDEA claim, the Court will follow the law as set out in Section II.B above, and a motion for summary judgment is not defeated by merely showing a genuine dispute of material fact. Instead such a showing triggers a more thorough review of the record. See 3 Ams. with Disabilities: Practice & Compliance Manual § 11:314 (2016). The Court has examined the parties' briefs, reviewed the entire administrative record, carefully read the Hearing Officer's written opinion, and looked at the relevant case law. See Swearingen v. Ozark Mtn. Sch. Dist., 2016 WL 7155773 (W.D. Ark. 2016). For the reasons set forth below, the Court affirms the Hearing Officer's decision in favor of BSD. Therefore, BSD's motion for summary judgment is granted. (Doc. 136).

         a. Background

         When L was two years old, his mother noticed that he was not making progress and was exhibiting behaviors indicating that assistance may be needed. (Hearing Officer's Final Decision and Order, p. 4). At age four, L began receiving speech and occupational therapy, and he was diagnosed with autism when he was in kindergarten at BSD. (Id.). In the 2012-2013 school year, L was enrolled in the third grade at Elm Tree Elementary School in the BSD. (Id.). During this school year, L received services pursuant to the IDEA due to his diagnosis of autism. At the beginning of the school year BSD provided services to L under his existing IEP dated March 30, 2012. That IEP was current through March 30, 2013, at which time BSD would be obligated to revisit it in an annual meeting. (Id.).

         Pursuant to that existing IEP, L was to receive 900 minutes of general education and 1, 200 minutes of special education per week. (Parent's Exhibits, p. 82).[2] That IEP also provided for L to receive occupational therapy one time per week and speech therapy two times per week. (Id.). Further, the IEP provided an assessment of L's academic progress, in which it was documented that he was performing below grade level. (Id.). Specifically, the results of L's most recent STAR tests revealed that he was reading at ¶ 0.5 grade level and performing math at ¶ 1.4 grade level. (Id.). The IEP went on to outline goals for L over the next year, and describe the various instructional modifications, supplemental aids, and supports that BSD would provide to L. (Id.). The IEP provided minimal guidance on how BSD was to manage L's behavior, but that was because prior to L's third grade year behavior had not been an issue at school. (Hearing Officer's Final Decision and Order, pp. 6-7). In compliance with the IDEA, L's mother was present at the March 30, 2012 meeting, and signed the IEP. (Id.).

         During L's third grade year his behavior in school took a drastic turn for the worse. (Id., p. 7; 2014-11-11 Hearing Transcript, p. 117). BSD held a programming conference at the Parrishes' request on September 4, 2012, and began to create a behavioral plan for L. (Hearing Officer's Final Decision and Order, pp. 6-7). The behavior plan identified six specific methods that BSD would use to address L's misbehavior, and at the programming conference it was decided that more comprehensive steps would be taken by BSD such as conducting a functional behavior assessment (FBA), and making behavioral observations. (Id., pp. 7-8). L's mother was present at this meeting. (Id., p. 7).

         On October 3, 2012, another programming conference was held to review the behavior plan that had been developed for L. (Id., p. 8). The record includes the FBA as well as a behavioral support plan, both dated October 3, 2012. (TAB 1P - IEP - 10-03-2012, p. 4). The FBA outlines L's specific recurring misbehaviors. First, L exhibited a variety of attention seeking behaviors in the general education setting that stemmed in part from disagreements with another student. (Id.). Second, L refused to do work. (Id.). The FBA listed five specific steps to be taken by BSD in response to these recurring behaviors. (Id.). Additionally, the FBA outlined several curriculum modifications to be taken by BSD to address the behaviors. (Id.). One specific modification listed was that L would go to a separate recess to avoid contact with a particular student who appears to have been an instigator of L's behavioral outbursts. (Hearing Officer's Final Decision and Order, p. 10).

         The behavior support plan reviewed at that meeting outlined other changes in the space and curriculum that would address L's misbehaviors. (Id., p. 11). Specifically, the behavior support plan allowed for the following seven changes: (i) L would be placed across the room and facing away from the child that triggered his aggressive behavior (change in space); (ii) L would be provided with a visual timer to indicate changes in schedule (change in instructional materials); (iii) L would be provided research-based methods such as Applied Behavior Analysis, Picture Exchange Methods, or story-based intervention (change in curriculum); (iv) L's functional routines in the classroom would be addressed (change in curriculum); (v) L would be provided with a sensory diet (change in the curriculum); (vi) L would be provided with quiet time after recess, whereby he could listen to calming music and sleep until he awakened (change in curriculum); and (vii) L would have a designated time each day to work with his special education teacher on social skills (change in curriculum). (Id.). The plan also allowed for a specific method for L to communicate with his teachers. This FBA and the changes made to address L's misbehaviors were implemented after the October 3rd meeting, not before. (2014-11-13 Hearing Transcript, pp. 71-72).

         On October 29, 2012, another programming conference was held, and in addition to reviewing classroom and home observations, L's IEP was reviewed. (Hearing Officer's Final Decision and Order, p. 11). L's mother was present at this meeting. (Id.). At that meeting it was agreed that reevaluation was needed for the purpose of measuring L's skill development in academic content areas. (Id., p. 12). On November 28, 2012, another programing conference was held to review the results of the academic testing administered following the October 29, 2012 meeting. (Id.). At that November 28th meeting is was determined that L would begin receiving 600 minutes of general education and 1, 500 minutes of special education per week. (Id.). This change reflected a 300 minute decrease in general education minutes and a corresponding 300 minute increase in special education minutes over the existing IEP already in place. L's mother was present at this meeting. (Id.).

         From December 2012 until the time that the Parrishes withdrew L from BSD in March 2013, L exhibited a series of behavioral outbursts that ranged from mild disruptions all the way up to acts of aggression that resulted in physical harm done to various BSD employees. On December 7, 2012 during one such outburst, L put his feet on his desk and pushed backwards. (Id., p. 13). His chair collapsed, and as he was falling a teacher reached out and caught him before he hit the ground. (Id.). L started screaming and kicking, and only calmed down after several other teachers came over to assist, applying deep pressure to his hands. (Id.). Also during this incident, one of the teachers had to restrain L's feet by placing her hand over them. (Id.). The teacher did this to prevent L from kicking her in the face. (Id.). On December 13, 2012, L began hitting an instructional assistant. (Id., p. 14). Later in that same day, when another student made a loud noise, L began screaming and pushing a classroom divider toward the student. (Id.). When a teacher intervened to prevent harm to the other student, L began striking the teacher in her head with his fists. (Id.). Teachers again applied deep pressure to L's hands and held down his legs from striking the teachers. (Id.). During this incident L also attempted to bite a teacher. (Id., p. 15). Additionally during the process of calming L down, teachers rubbed L's back. (Id., p. 15). Following these incidents, L's mother was in contact with the school principal, and L's mother requested that L spend less time in the autism room. (Id.).

         On February 6, 2013, L hit a pregnant teacher in the presence of L's mother, and L's mother expressed concern for the unborn baby. (Id., p. 16). On the same date, L pushed another student off of playground equipment, and when an instructional assistant intervened to prevent harm to the other student L punched the instructional assistant in the eye. (Id., p. 17). L continually hit and kicked the instructional assistant. (Id.). The school nurse arrived to help, and the incident continued with L attempting to strike the school nurse with his hands and feet. (Id., p. 18). The school nurse took L by the hand and attempted to get him to leave the playground but L refused. (Id.). Once there were enough staff members present to safely conduct a CPI transport[3] with L, they did so. (Id.). Once L was inside the school, he hit a staff member in the jaw, and then pushed over a bookshelf. (Id.).

         On February 8, 2013, another programming conference was held to address L's behavior issues. (Id., p. 19). It was decided at that meeting that L would be moved to an academic self-contained classroom. (Id.). Also at that meeting, it was decided that the team would develop a crisis plan.

         On March 12, 2013, L tried to charge another child in an attempt to attack him. (Id.). Later in that day L ran out of the classroom and began running around the school. (Id.). Again later in that day L hit yet another student and left the room with a teacher, who had L remain in the office area for some time. (Id.). The following day, another programming conference was held to discuss L's mother's complaints and to discuss the behavior plan. (Id.). At that meeting, L's mother submitted a note from Bentonville Pediatrics, P.A. which stated that L had panic attacks, and that Bentonville Pediatrics, P.A. recommended that BSD not restrain L or put him in a seclusion room. (Id., p. 20). At this meeting L's mother said that she didn't want anyone to put their hands on L, but the representatives of BSD made it clear that they would have to put their hands on L if necessary to protect other students and staff. (Id.). This meeting ended with L's mother and L's student advocate yelling and storming out of the meeting. (Id.). The very next day on March 14, 2013, the Parrishes withdrew L from BSD. (Id.).

         At Elm Tree Elementary School there is a cool down room where L was sometimes placed following his outbursts. (Id., p. 22). When used, the door to the cool down room remained open, and an adult was present in the room with L at all times. (Id.).

         b. Discussion

         BSD's reason for seeking summary judgment is simply that the “Hearing Officer properly found that the District committed no procedural or substantive violations of the IDEA.” (Doc. 138, p. 13). Rather than assign error to the Hearing Officer or point out what part of the decision the Parrishes disagree with, the Parrishes argued their entire case. (Doc. 162, pp. 3-16). The Parrishes alleged the following violations of the IDEA: (i) BSD failed to train its employees on how to educate students with autism and how to comply with the IDEA (Id., p. 5); (ii) BSD used physical restraint and seclusion on L (Id., p. 6); (iii) BSD did not address the lack of academic progress or the increasing severity, frequency, and intensity of L's disability related behaviors (Id.); (iv) BSD failed to provide data to indicate that the Behavior Intervention Plan was implemented and that BSD failed to collect data to evaluate the effectiveness of the plan (Id., p. 10); (v) BSD used strategies with L that were not supported by empirical evidence and bordered on abusive (Id.); (vi) BSD failed to educate L in the least restrictive environment (Id., p. 11); and (vii) BSD failed to involve L's parents in making placement decisions (Id., p. 14).

         In BSD's reply, rather than actually addressing the theories raised by the Parrishes or point to the Hearing Officer's opinion with citations to how the Plaintiffs' theories were found to be meritless, BSD submitted a short response mostly criticizing Plaintiffs' counsel.[4] (Doc. 180, pp. 2-3). BSD's response then selectively quoted the Eighth Circuit without actually identifying the standard under which the Court must review BSD's own motion. (Id.). The Court will now address each one of Plaintiffs' alleged IDEA violations.

         In reviewing whether any of BSD's actions amounted to a violation of the IDEA the Court must employ a two prong analysis as outlined by the Eighth Circuit. The first inquiry is whether the school complied with the procedures set forth in the IDEA. K.E. ex rel. K.E, 647 F.3d at 804. Second, the court must decide whether the resulting IEP was “reasonably calculated to enable the child to receive educational benefit.” Id. (citations omitted). “If these requirements are met, the [school district] has complied with the obligations imposed by Congress and the courts can require no more.” Id.

         i. The Parrishes' Allegation that BSD Failed to Train its Employees on How to Educate Students with Autism and How to Comply with the IDEA. (Doc. 162, p. 5).

         The Parrishes allege that BSD failed to train its employees on how to educate students with autism and on how to ensure compliance with the IDEA. (Doc. 162, p. 5). School districts must take reasonable steps to train and prepare a student's teaching staff. Light v. Parkway C-2 Sch. Dist., 41 F.3d 1223, 1230 (8th Cir. 1994). There is ample testimony in the record about the training that BSD provided for its teachers. (2014-11-12 Hearing Transcript, pp. 43-46, 123-24, 149-50, 154); (2014-11-13 Hearing Transcript, pp. 47, 51, 61-63, 75-76, 230, 232-37, 240, 246-48, 255); (2014-11-14 Hearing Transcript, pp. 32, 34-35, 40-43, 48-50). While the Parrishes may have alternative theories about what training might have been best or what additional steps the school might have taken, BSD's training regimen does not bend to the whims of any one particular parent. The record shows that BSD took reasonable steps to train its teachers, and that is all that is required. Therefore, the Court concludes that BSD's training of its teachers did not result in a denial of a FAPE that would result in a violation of the IDEA.

         ii. The Parrishes' Allegation that BSD's Use of Physical Restraint and Seclusion on L Amounted to a Violation of the IDEA. (Doc. 162, p. 6).

         BSD did not use physical force and seclusion in a way that denied L a FAPE. It is undisputed that BSD employees touched L. The issue is whether that touching amounted to a violation of the IDEA. Teachers rubbed L's back, applied deep pressure to L's hands, touched L's hair, held down L's feet to avoid being kicked in the face, hugged L to calm him down, and placed him in the cool down room under adult supervision.

         The Court concludes that nothing about this application of physical force amounted to a procedural violation of the IDEA. BSD arranged many meetings, both formal and informal, at which L's behavioral issues were addressed. BSD held programming conferences on September 4, 2012 (Hearing Officer's Final Decision and Order, pp. 6-7), October 3, 2012 (Id., p. 8), October 29, 2012 (Id., p. 11), November 28, 2012 (Id., p. 12), February 8, 2013 (Id., p. 19), and March 13, 2013 (Id., p. 19). The day after the last programming conference the Parrishes withdrew L from BSD. (Id.). L's mother was present at all of these intermittent programming conferences. At these conferences behavioral progress was updated, test results were reviewed, strategies were discussed, plans were made, and BSD employees involved L's mother in making all of these decisions. BSD was transparent about all of L's behavioral issues, and communicated about the physical restraints that were being used. Documentation from these meetings makes it clear that BSD's use of physical force was an issue presented to L's mother. The point in time at which physical force became an issue was the March 13, 2013 meeting where L's mother asked that BSD employees stop putting their hands on L, and when she was told that this would not be possible given her son's aggressive outbursts, L's mother began yelling and stormed out of the meeting. Nothing about L's mother's extensive participation in this entire process could amount to a procedural violation of the IDEA.

         Next, the Court cannot conclude that BSD's use of physical restraint substantively resulted in denying L of a FAPE in violation of the IDEA. After reviewing the record, the Court agrees with the Hearing Officer in concluding that:

[T]he evidence suggests that the District continually acted quickly in response to Student's escalating behavior, particularly in light of the short time frame, approximately 48 days, in which Student attended school between September 30, 2012 and March 13, 2013. It is impossible to know if the crisis plan contemplated by the District would have been successful on account of the fact that Parents removed Student from the District prior to the development and implement of the plan.

(Id., p. 41). Although the report of Plaintiffs' expert, Dr. Travers, seems to identify other methods that could have been used or alternative ways in which BSD could have handled L's misbehavior, the Court agrees with the Hearing Officer that procedurally the complaint is suspect. (Id.). Furthermore, the Court notes that ensuring that a child obtains a FAPE does not mean providing a perfect education in conformity with every wish of parents.

         On the issue of using CPI transports to move L, the Court concludes that BSD had no choice but to use this method. While the Plaintiffs criticize BSD's decision to use this tactic, it is unclear what other alternative BSD had. L was aggressive, posed a threat to other students and staff members, and would sit down on the ground and refuse to move. BSD used a strategy to deal with this behavior that is expressly excluded from the definition of “physical restraint” under the ADE Guidelines for the Use of Restraint. (Id., pp. 41-42). Under that fact alone, the use of the CPI transport seems to be a nonstarter for constituting restraint as long as the procedure was followed correctly. There is no proof cited by Plaintiffs showing that the procedure was used incorrectly.

         The Hearing Officer noted that “[a] significant portion of the transcript in this case is dedicated to questioning regarding seclusion, restraint, and whether the actions taken to address [L]'s aggressive behavior fell within either category.” (Id., p. 42). While the Court has also reviewed this testimony, a part of that review involves deciding which party to believe. The Court is in agreement with the Hearing Officer because the Court determines that the weight of the evidence is in favor of BSD on this issue. Also, the Court realizes that there is somewhat of a credibility determination that is to be made in weighing this testimony and the Hearing Officer is in the best position to make that determination. See K.E. ex rel. K.E., 647 F.3d at 802.

         Plaintiffs repeatedly use the word “seclude” in discussing BSD's use of the cool down room. The room used has a conference table and chairs, and children's art on the walls. A BSD employee testified that L was never locked inside, but rather that an adult was present in the room at all times. (Hearing Officer's Final Decision and Order, p. 22). The Hearing Officer concluded that this was not seclusion. The Court agrees.

         Further, the Parrishes were long aware that physical touch was effectively being used to control L's outbursts. And the Parrishes did not object. In an October 3, 2012 meeting at which L's mother was present, the team reviewed L's FBA. That FBA includes the following statements:

[L] is spoken to in a soft calming voice to diffuse his anger. Deep pressure and a soft touch to the hair along with singing are also used as needed. Dividers use to keep peer and adult attention to a minimum. When using these techniques, [L] is very easily calmed down.

(TAB 1P - IEP - 10-03-2012, p. 4). The record reflects that the October 3rd meeting “concluded with [L's mother] saying that it was one of the best meetings that they had been in.” (2014-11-13 Hearing Transcript, p. 70). The advocate at the meeting on behalf of L's mother also came to this same conclusion. (Id.). L's mother confirmed this in an email that she sent after the meeting. (Id., p. 72).

         The first time that the Parrishes raised serious concerns about the use of force was on March 13, 2013. (Id., p. 19). At that meeting, L's mother yelled and stormed out of the meeting after BSD told her that it would continue using physical force to prevent L from harming others. (Id.). The very next day on March 14, 2013, the Parrishes withdrew L from BSD. (Id.). The Hearing Officer best addressed this by concluding:

Parents testified that they ultimately removed [L] from school because the District refused to stop restraining him. First, there is no evidence to suggest that [L] was ever restrained within the definitions provided in the Arkansas guidelines. In addition, there is no evidence that the “cool down” room, as described above, is a seclusion room. It is illogical and unreasonable for Parents to have the expectation that [L] will never be transported in situations in which he is being aggressive with peers and staff, or, alternatively, posing a physical danger to himself. Certainly, if [L] was the victim of another student's violent behavior, it seems unlikely that Parents would want the school to step back and refuse to protect [L].

(Id., p. 43) (emphasis added). The Court agrees with the Hearing Officer, and finds the Parrishes' requests unreasonable in light of L's repeated and severe acts of physical aggression.

         iii. The Parrishes' Allegation that BSD did not Address the Lack of Academic Progress or the Increasing Severity, Frequency, and Intensity of L's Disability Related Behaviors. (Doc. 162, p. 6).

         BSD did not deny L a FAPE by failing to address L's lack of academic progress or increasing behavior issues. As mentioned above, BSD held programming conferences on September 4, 2012 (Hearing Officer's Final Decision and Order, pp. 6-7), October 3, 2012 (Id., p. 8), October 29, 2012 (Id., p. 11), November 28, 2012 (Id., p. 12), February 8, 2013 (Id., p. 19), and March 13, 2013 (Id., p. 19). These meetings proposed a multitude of interventions, and updated all parties on the progress that had been made in implementing the interventions agreed upon at previous meetings. L's mother was at all of these meetings. Furthermore, there were many informal meetings and communication with L's mother. (Id., pp. 29-30). The record is clear that BSD took many steps and that the Parrishes were involved along the way. The Court finds this did not amount to procedural or substantive violations of the IDEA.

         iv. The Parrishes' Allegation that BSD Failed to Provide Data to Indicate that the Behavior Intervention Plan was Implemented and that BSD Failed to Collect Data to Evaluate the Effectiveness of the Plan. (Doc. 162, p. 10).

         BSD did not deny L a FAPE by its handling of data to show that L's Behavior Improvement Plan was implemented or to show that the plan had been effective. It should be noted that the entire period over which this alleged failure took place was 48 school days.[5] (Id., p. 29). As shown by the five programming conferences and the accompanying documentation that took place over that 48 day time period, the Behavior Improvement Plan was being implemented, changed, and adapted to meet L's needs very frequently. On average, BSD was holding meetings and revisiting the plan once every two weeks. These meetings were informed by the observations, notes, and theories of the BSD employees and by L's mother and advocate. It is not entirely clear what type of “data” Plaintiffs allege BSD failed to collect, but that may be because this argument is somewhat at odds with the rest of Plaintiffs' IDEA claim. If BSD had held fewer meetings and made less frequent changes to L's Behavior Improvement Plan, then there might have been more data collected because the plan would have been in existence longer. But if BSD had held fewer meetings and left the original plan in place longer, then this would bolster Plaintiffs' claim that BSD did not do enough to adequately address L's misbehavior. Thus this claim cuts against other claims alleging violations of the IDEA.

         Of course it is also possible that there would have been more data and that BSD would have done more to evaluate the plan's effectiveness, but after a programming conference when L's mother became upset, the Parrishes immediately withdrew L from BSD. Considering that a school year in Arkansas is 180 days and that this entire alleged violation took place over a 48 day period during which BSD revisited L's behavior plans five times at separate programming conferences, BSD's actions are reasonable. BSD's handling of the implementation of this plan and BSD's collection of data arising from the plan did not amount to a procedural or substantive violation of the IDEA.

         v. The Parrishes' Allegation that BSD Used Strategies with L that were Not Supported by Empirical Evidence and Bordered on Being Abusive. (Doc. 162, p. 10).

         The strategies used by BSD were not abusive, and they do not rise to the level of an IDEA violation. See Section III.A.1.b.ii above. L's mother was present over the course of the five separate programming conferences held by BSD, and there is “no evidence in the record to suggest that [BSD] refused to consider suggestions from [L's mother] or [L's advocate].” (Id., p. 30).

         Furthermore, the strategies used by BSD were in compliance with the IDEA. The Court is not an educational policy review board for every decision made by a school.

[C]ourts must be careful to avoid imposing their view of preferable educational methods upon the States. The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child.

Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 207 (1982).[6] A court must ensure compliance with the IDEA, and educational decisions that are shown to be unreasonable are potentially subject to criticism or reversal. But it is also clear that the IDEA does not impose a standard of perfection. Moreover, the IDEA “does not require states to make available the best possible option.” Springdale Sch. Dist. No. 50 of Washington Cty. v. Grace, 693 F.2d 41, 43 (8th Cir. 1982) (emphasis in original). Rather, the IDEA exists “to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a [FAPE] by such agencies.” 20 U.S.C. § 1415; B.S. ex rel. K.S., 799 F.3d at 1219.

         Whether the specific strategies settled upon at the numerous meetings between BSD officials and L's mother were perfect, or supported by more educational policy research than other strategies available, is not a question for a federal district court in review of a state's IDEA proceedings. After reviewing the record, the Court cannot find any strategy implemented by BSD that should draw a reversal. BSD ensured that the procedural safeguards required by the IDEA were in place. Therefore, the Court concludes that the strategies used by BSD did not amount to a violation of the IDEA.

         vi. The Parrishes' Allegation that BSD Failed to Educate L in the Least Restrictive Environment. (Doc. 162, p. 11).

         BSD did not fail to educate L in the least restrictive environment. The IDEA requires a school to educate children with disabilities in the least restrictive environment, meaning that a disabled student is to be educated with non-disabled students to the “maximum extent appropriate.” 34 C.F.R. § 300.114. The Eighth Circuit has interpreted what this standard means:

[T]he IDEA creates a preference for mainstream education, and a disabled student should be separated from her peers only if the services that make segregated placement superior cannot “be feasibly provided in a non-segregated setting.” Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir. 1983). Nevertheless, while endorsing Roncker, we have emphasized that the statutory language “significantly qualifies the mainstreaming requirement by stating that it should be implemented ‘to the maximum extent appropriate, ' 20 U.S.C. § 1412[a](5) (emphasis added), and that it is inapplicable where education in a mainstream environment ‘cannot be achieved satisfactorily.' Id. (emphasis added).” A.W. v. Northwest R-1 Sch. Dist., 813 F.2d 158, 163 (8th Cir. 1987). Thus, removing a child from the mainstream setting is permissible when “the handicapped child would not benefit from mainstreaming, ” when “any marginal benefits received from mainstreaming are far outweighed by the benefits gained from services which could not feasibly be provided in the non-segregated setting, ” and when “the handicapped child is a disruptive force in the non-segregated setting.” Roncker, 700 F.2d at 1063.

Pachl v. Seagren, 453 F.3d 1064, 1067-68 (8th Cir. 2006). This standard makes it clear that educating students in a separate environment is not prohibited, but permits an IEP team-including the parent or guardian of a student-to determine that education in an integrated environment cannot be accomplished such that education in a segregated setting is warranted.

         Pursuant to the IEP dated March 30, 2012, L was to receive 900 minutes of general education and 1, 200 minutes of special education per week. (Parent's Exhibits, p. 82). On November 28, 2012, a programing conference was held and it was determined that L would begin receiving 600 minutes of general education and 1, 500 minutes of special education per week. (Hearing Officer's Final Decision and Order, p. 12). Under these facts, the Parrishes appear to be arguing that placing their child in a general education setting for 600 minutes per week and in a special education setting for 1, 500 minutes per week amounts to a failure to educate their child in the least restrictive environment. The Parrishes have cited many cases from many circuits on this topic, but none of those cases suggest that under the facts of this case BSD failed to educate L in the least restrictive environment. L was in part being educated in a less restrictive environment prior to November 28, 2012, but the IEP team met and determined that the current arrangement was not working. L's role as a disruptive force in the general education setting was a substantial basis for this determination. Furthermore, the decision to increase L's segregation from the general education setting was not a decision to segregate L for the entire school day.

         Like the data collection argument, the Parrishes' argument here is at odds with the rest of the IDEA claim: if the IEP team had not met at all, or failed to consider other placement options for L, it would bolster the Parrishes' claim that BSD had not adequately addressed L's failure to make academic progress. Under these facts, the Court concludes that BSD did not fail to educate L in the least restrictive environment.

         vii. The Parrishes' Allegation that BSD Failed to Involve L's Parents in Making ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.