United States District Court, W.D. Arkansas, Fort Smith Division
ORDER AND OPINION
HOLMES, III, CHIEF U.S. DISTRICT JUDGE.
the Court is Paris School District's (PSD) motion for
summary judgment (Doc. 26), brief in support of its motion
(Doc. 27), and a statement of facts in support of its motion
(Doc. 28). PSD also submitted the administrative record on
the docket. (Docs. 29-40). Defendants filed a response in
opposition to summary judgment (Doc. 41), a brief in support
of their response (Doc. 42), and a statement of facts to
which they contend there is a dispute of material fact (Doc.
43). PSD filed a reply to Defendants' opposition (Doc.
44). Defendants, as a party prevailing in part at the state
administrative level, made a demand for reasonable
attorney's fees. (Doc. 6, ¶¶ 87-96). As
originally filed and up through all of the filings described
above, this case had involved PSD's lawsuit seeking
reversal of the Hearing Officer's final order and
opinion, as well as counterclaims asserted by Defendants. On
July 13, 2016, the Court severed the non-IDEA claims from
this lawsuit. (Doc. 45). For the reasons set forth below,
PSD's motion for summary judgment (Doc. 26) on the claims
in this case is GRANTED IN PART and DENIED IN PART.
November 13, 2013, A.H. first enrolled in the PSD as a fourth
grader. (Doc. 6-1, p. 3). While enrolled at PSD, A.H.
received special education services for her diagnosis of
autism. (Id.). A.H. previously attended school in
Memphis, Tennessee. Upon moving into the area covered by the
PSD A.H. was enrolled at the “virtual academy” of
the Memphis school, and then a private school within the PSD.
enrolling A.H. at PSD, Ms. Harter provided the following to
PSD: (1) a May 18, 2012 neuropsychological evaluation
conducted at Memphis Neuropsychology, LLC that contained 16
specific recommendations; (2) a September 9, 2013 speech
language evaluation conducted by Pediatrics Plus in
Russellville, Arkansas; (3) a September 13, 2013 occupational
therapy evaluation conducted at Pediatrics Plus, complete
with four treatment goals and ten objectives that were
considered appropriate treatment for A.H.'s deficits; (4)
a September 19, 2013 physical therapy evaluation conducted by
Pediatrics Plus that concluded that A.H. qualified for
physical therapy to improve her participation in activities
at home, in the community, and at school; (5) a November 6,
2013 letter from A.H.'s treating neurologist recommending
that A.H. receive homebound services and that she be slowly
integrated into a school setting at PSD; and (6) an
assessment and behavior support plan developed by an
independent consultant between October 2011 and August 2012
when A.H. was attending school in Memphis. (Id., pp.
5-6). A team first convened on November 13, 2013 to develop
an Individualized Education Program (IEP) for A.H. (Doc. 36,
p. 30). In attendance were Ms. Harter, a special education
teacher, a general education teacher, the director of special
education, and two occupational therapists. (Id.).
The IEP team decided to initially educate A.H. on a shortened
school day in a regular classroom with special education
services being provided in a resource room. (Doc. 6-1, pp.
6-7). The IEP provided for related services including
occupational therapy, physical therapy, and speech therapy.
(Id., p. 7). PSD did not collect any evaluative data
prior to developing the IEP, but presumably they were
informed by the multiple assessments and opinions that Ms.
Harter provided. (Id.).
team met again on December 13, 2014 to revise the IEP
“to include a behavior management plan devised by the
director of special education and to define the shortened
school day that [A.H.] would attend.” (Id.).
The documentation shows that there were “other factors
which needed consideration.” (Id.). Allegedly,
a behavior support plan was put in place at the December 13
meeting while the school worked to develop another
On December 20, 2013, PSD submitted a request for a behavior
support specialist to assist in the development of a behavior
support plan. (Id., p. 8). The specialist then came
to PSD to observe A.H. five times between January 30, 2014
and April 7, 2014. (Id.). After these observations,
the specialist developed a behavior support plan which she
provided to PSD on April 28, 2014. (Id.). That
behavior plan addressed the issue of “noncompliance,
” but did not address any of the other behaviors
reported by previous schools, reported by Ms. Harter, or
those contained in evaluations. (Id.). The behavior
plan generally lumped all of A.H.'s behaviors into the
category “noncompliance.” (Id., p. 9).
This, and other facts in the record summarized below, show
the lack of a baseline understanding of autism, which would
have resulted in a more nuanced analysis. (Id.).
speech therapist testified that she provided services as
outlined in A.H.'s IEP, although progress was not
documented on the IEP. (Id., p. 13). A.H. received
physical therapy in thirteen sessions from November 26, 2013
to March 17, 2014, although the therapists' notes do not
reflect any progress towards the goals. (Id.). As
per the IEP developed in November 2013, A.H. was supposed to
be receiving 60 minutes of physical therapy per week. (Doc.
36, p. 4). On March 20, 2014, the physical therapist
indicated that she received an email from PSD's special
education coordinator, indicating that the IEP team had met
and made the decision that physical therapy would be
discontinued. (Doc. 6-1, p. 13). There was no evaluation done
prior to discontinuing these services, and there was not a
physical therapist present at the meeting where the decision
was made to discontinue physical therapy. (Id.). The
special education coordinator testified that the reason for
this decision was that A.H. fought the physical therapist on
“many occasions” and that “the physical
therapist pretty much decided to end services because there
was no progress.” (Id., pp. 13-14). However
the notes from the physical therapist recording summaries of
the sessions held do not reflect this problem. (Id.,
p. 14). A.H.'s occupational therapist was present at the
initial IEP meeting in November 2013, and was therefore part
of the decision whereby A.H. was prescribed 60 minutes of
occupational therapy in one session per week. (Doc. 36, p. 4).
The therapy notes indicate twenty-three occupational therapy
treatment sessions between November 21, 2013 and May 23,
2014. (Doc. 6-1, p. 14).
Hearing Officer reached the following conclusions about
A.H.'s education at PSD during the 2013-2014 school year:
the district failed to timely develop a behavior management
plan, and when that plan was developed it was deficient
because it identified A.H.'s behaviors only as
“noncompliant;” A.H.'s teachers were not
adequately trained; the occupational therapy and speech
therapy were adequate; the physical therapy was deficient and
was discontinued without an appropriate evaluation; and A.H.
was educated in the least restrictive environment.
(Id., pp. 14-15).
team convened on May 26, 2014 to evaluate A.H.'s
performance during the fourth grade and develop an IEP for
the upcoming fifth grade year. (Id., p. 15). At that
meeting it was determined that in the upcoming school year
A.H. would receive 60 minutes of occupational therapy, 60
minutes of speech therapy, 700 minutes in the resource room,
and the remainder of the time in the general education
setting. (Id.). Another IEP team meeting was held on
August 12, 2014, at which time the IEP team decided to place
A.H. in the Alternative Learning Environment (ALE) instead of
in the general fifth grade classroom setting. (Id.,
p. 19). In attendance at this meeting were a counselor and
co-therapist social worker, and they indicated that they were
concerned about A.H. attending mainstream
classes. (Id.). Resulting from the
treatment provided to A.H. by the Valley Behavioral group,
individuals from that group changed her diagnosis to include
“intermittent explosive disorder.” (Id.,
p. 18). Ms. Harter expressed that she thought this change in
diagnosis was in part for insurance reasons, and she
disagreed with the recommendations by the Valley Behavioral
group. (Id.). There is some evidence that Ms. Harter
opposed placing A.H. at ALE, but that is where the IEP team
determined that A.H. would be placed. (Id., p. 20).
Based on this opposition, the Hearing Officer concluded that
the placement agreed to during the May 2014 IEP meeting was
the “last fully agreed to placement.”
began attending ALE for her fifth grade year. (Id.,
p. 21). The ALE appears to have operated like a
one-room-schoolhouse, with nine total students and one
teacher. (Id.). Three of the students, including
A.H., were from the middle school and six of the students
were from the high school. (Id.). There was one
teacher, Coach Trey Prieur, who was not a “highly
qualified” teacher in any of the core academic subject
areas. (Id.). The ALE classroom did not meet any of
the criteria of the Arkansas Department of Education (ADE)
for educating A.H. (Id.). The ALE Director even
acknowledged that criteria and requirements were not met, and
that in effect ALE was not an appropriate placement for A.H.
(Id., p. 22). Furthermore, Coach Prieur and the ALE
Director were not involved in the decision to place A.H. at
ALE. (Id., p. 21). PSD did not provide the
occupational and speech therapy services provided for in the
IEP, because PSD had not yet entered into a contract with a
qualified provider. (Id., p. 22). The Hearing
Officer concluded that because of all of these breakdowns,
PSD had failed to provide a Free Appropriate Public Education
(FAPE) to A.H. during the 2014-2015 school year.
(Id., pp. 22-23).
Harter's relationship with PSD deteriorated, and she
initiated a separate due process hearing to take up the issue
of A.H.'s placement in ALE. (Id., pp. 23-24).
PSD argued that the last agreed placement was the placement
in ALE. (Id.). Ms. Harter, however, thought that the
last agreed placement was the one agreed to at the IEP
meeting in May 2014, at which time it was agreed that A.H.
would be placed in the regular school setting with
supplemental special education services. (Id., p.
24). PSD's superintendent claimed that in part because of
Ms. Harter's demands that A.H. be moved out of ALE and in
part because of an incident where A.H. allegedly made a death
threat while in ALE, PSD was justified in terminating special
education services. (Id.). However, there was
“no testimony nor evidence presented that [A.H.'s]
acting out behaviors were directed towards another
student.” (Id.). And the teacher who witnessed
the alleged death threat testified that they did not take it
as a viable threat. (Id.). The Hearing Officer
concluded that “at this point  it would have been
[PSD's] responsibility of the [ADE's] regulations to
ask for a due process hearing to resolve the issue of whether
or not [A.H.] needed special education services.”
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 Schools,
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 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.
handing 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
K.E. ex rel. K.E. v. Indep. Sch. Dist. No. 15, 647
F.3d 795, 803 (8th Cir. 2011).
reviewing whether any of PSD'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. At the time
that the Hearing Officer wrote his final opinion, the Eighth
Circuit law to be applied was the standard that a student who
“enjoyed more than what [the court] would consider
‘slight' or ‘de minimis' academic
progress” was not denied an educational benefit.
Id., at 810. At that time, there was a notable
circuit split. The Hearing Officer cited to some law from
circuits that required more than the Eighth Circuit, so to
the extent that the Hearing Officer relied on the authority
cited, the Hearing Officer committed legal error during his
review. Since that time, the United States Supreme
Court rejected the “merely more than de minimis”
standard that had previously been the law of the Eighth
Circuit. Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch.
Dist. RE-1, No. 15-827, 2017 WL 1066260, 580 U.S.___
is “the centerpiece of the [IDEA's] education
delivery system for disabled children.” Id.,
at *4, citing Honig v. Doe, 484 U.S. 305, 311
(1988). Through the development and implementation of an IEP,
the school provides a FAPE that is “tailored to the
unique needs of a particular child.” Endrew
F., 2017 WL 1066260, at *4. An IEP is “not a form
document” and must be “constructed only after
careful consideration of the child's present levels of
achievement, disability, and potential for growth.”
Id., at *10. While there is no bright line rule
defining what is required of a school, in Endrew F.
the Court made it clear that “[t]o 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. (citations omitted). In defining what is
“reasonably calculated” for a particular student,
the Court acknowledged that this is a “fact-intensive
exercise, ” and that it “will be informed not
only by the expertise of school officials, but also by the
input of the child's parents or guardians.”
Id. For most students, “a FAPE will involve
integration in the regular classroom and individualized
special education calculated to achieve advancement from
grade to grade.” Id. at *11. But even where
that is not feasible, an education still needs to be
“appropriately ambitious in light of [the child's]
comparing this standard to the “merely more than de
minimis” test-previously the law of the Eighth
Circuit-the Court held that “this standard is markedly
more demanding.” Id. Writing for a unanimous
Court, Chief Justice Roberts stated that “[i]t cannot
be the case that the [IDEA] typically aims for grade level
advancement for children with disabilities who can be
educated in the regular classroom, but is satisfied with
barely more than de minimis progress for those who
cannot.” Id. Aiming “so low would be
tantamount to sitting idly . . . awaiting the time when
[students] were old enough to drop out.” Id.
at *12 (citations and quotations omitted). But this standard
does not require an ideal education. Id. at *10. It
“should not be mistaken for an invitation to the courts
to substitute their own notions of sound educational policy
for those of the school authorities which they review.”
Id. at *12 (citations and quotations omitted). The
Court will apply the standard articulated by Endrew
F., using the existing Eighth Circuit case law where it
is still relevant.
PSD's Assignment of Error to what the Hearing Officer
Found as Inadequate Training of Staff for
the 2013-2014 School Year.
assigns error to the Hearing Officer's conclusion that
the PSD staff who provided services to A.H. in the 2013-2014
school year “were not adequately trained nor were they
prepared to address all of [A.H's] behavioral and social
needs.” (Doc. 27, pp. 13-14) (quoting Doc.
6-1, p. 15). To the extent set forth below, the Court agrees
with PSD on this point, and reverses the finding of the
Hearing Officer. In reaching this conclusion, the Hearing
Officer relied on the testimony of A.H.'s fourth grade
teachers, which the Hearing Officer viewed as
“indicat[ing] that they did not understand the
noncompliance exhibited by [A.H].” (Doc. 6-1, p. 9).
The Hearing Officer similarly viewed the testimony of
A.H.'s special education resource teacher. (Id.,
pp. 9-10). The Hearing Officer also noted that the principal
stated that he personally did not know a lot about autism.
(Id., p. 11). Further, the Hearing Officer found
noteworthy that the school resource officer made the
statement that he was “not a hundred percent sure
exactly what autism is.” (Id. ...