United States District Court, E.D. Arkansas, Jonesboro Division
MICHAEL McMINN, Parent and Next Best Friend of M; and STELLA McMINN, Parent and Next Best Friend of M PLAINTIFFS
SLOAN-HENDRIX SCHOOL DISTRICT DEFENDANT
MARSHALL JR. UNITED STATES DISTRICT JUDGE.
circumstances give rise to this case. M was a special
education student at Sloan-Hendrix School District. He
suffered from cerebral palsy and various developmental
delays. Over a period of several weeks in
2014, M was sexually assaulted by another student in the
school bathroom. After noticing some changes in M's
habits, the school investigated. Eventually M told the
counselor that another student, S, had, among other things,
put ''his front booty into [M]'s back booty/'
No 25-19 at 202. M's parents, the McMinns, eventually
requested a due process hearing with the Arkansas Department
of Education. They alleged that the District had failed to
follow M's Individualized Education Program and, in doing
so, had denied M a free appropriate public education. A
hearing officer heard the case and awarded the McMinns some
relief. No one appealed. The McMinns have sued for
attorney's fees under the Individuals with Disabilities
Education Act and for damages for the sexual abuse. They
claim the District violated several civil rights statutes.
The McMinns moved for partial summary judgment on the fees
issue. The District moved for summary judgment on all claims.
And the McMinns asked the Court to postpone ruling until
discovery was completed. The Court held the motions until
after the discovery period ended.
Fees. The McMinns prevailed at the IDEA hearing. To be
considered the prevailing party, a plaintiff must show relief
on the merits that "materially alters the legal
relationship between the parties/' Farrar v.
Hobby, 506 U.S. 103, 111 (1992). Here, the hearing
officer found that M was denied a free appropriate public
education and that the District failed to carry out its IEP.
No 19-4 at 25-26. That's relief on the merits.
And the District was ordered to provide seventy hours of
compensatory education, ten hours of occupational therapy,
and four hours of physical therapy. Ibid. That's
enough to show a legal change in the relationship.
Birmingham v. Omaha Sch. Dist., 298 F.3d 731, 734
(8th Cir. 2002). Contrary to the District's arguments,
this was more than de minimus relief. The McMinns
are entitled to reasonable attorney's fees. 20 U.S.C.
requested fees aren't reasonable, though. The proposed
rates are too high for Northeast Arkansas. This Court
confronted similar circumstances in Buries v. Pocahontas
School District, No. 3:16-cv-183-DPM, Order No
35. As in Surles, an hourly rate of $250 for
lead counsel best captures the expertise, uncertainty, and
complexity involved. An hourly rate of $180 for less
experienced counsel is also appropriate. The due process
issues covered a two-year period. There were many exhibits
and witnesses. The requested hours must be trimmed
nonetheless to reflect several circumstances: the modest
success achieved; the work on non-FAPE related issues; the
extra hearing time for what was essentially discovery on the
statutory claims now alleged in this case; some travel time
that could have been reduced by a hotel stay during the
multi-day hearing; and some excess time spent on routine
matters, such as FOI requests. Hensley v. Eckerhart,
461 U.S. 424, 440 (1983). The Court applauds the pre-motion
reduction of time actually spent, but the hours must be
further reduced to be a reasonable fee. All material things
considered, the Court approves eighty hours of work by lead
counsel, thirty hours of work by Cone, and all the time
requested for Fendley's fee-related work.
expenses. These are unchallenged and reasonable in general,
except the Court can't tax the private process
server's fee as a cost. Crues v. KFC Corp., 768
F.2d 230, 234 (8th Cir. 1985). It will be subtracted.
are the final numbers:
Caldwell (80 hrs x $250):
$ 20, 000.00
$ 5, 400.00
Fendley (23.6 hrs x $180):
$ 4, 248.00
$ 30, 506.62
$30, 506.62 total will be taxed as costs in the Judgment. 20
U.S.C. § 1415(i)(3)(B)(i).
and § 1983. The District is entitled to summary
judgment on these claims. First, there isn't a policy or
custom at work here; and the McMinns' don't argue the
§ 1983 claims. Second, the ADA claims fail because the
District didn't act with bad faith or gross misjudgment
in dealing with the student-on-student sexual assault
involving M. B.M. ex rel Miller v. S. Callaway R-II Sch.
Dist, 732 F.3d 882, 887-88 (8th Cir. 2013); Smith ex
rel. Townsend v. Special Sch. Dist. No. 1
(Minneapolis), 184 F.3d 764, 769 (8th Cir. 1999).
The timeline is helpful. M's abuse began the week of
November 17th. No 25-20 at 183. M first
told the school counselor on December 4th. No 25-19 at
195. That same day, the superintendent took charge
and M's parents were notified. No 25-19 at 200. By the
next morning, the state police were investigating. No 25-19
at 201. M was never assaulted again. No 34 at 4. The
District's response to the sad facts was prompt. The
parties dispute whether the District should have acted before
the assault was reported. This issue is more important on the
Title IX and § 504 claims. Here, it's undisputed
that the District acted as soon as what had happened to M
became clear. In these circumstances, the Court shouldn't
second-guess the decisions of professional educators.
B.M., 732 F.3d at 888; M.Y. ex rel. J.Y. v.
Special Sch. Dist No. 1, 544 F.3d 885, 888 (8th Cir.
IX and § 504. The record is
too murky for the Court to decide if there's a genuine
factual question about whether the District was deliberately
indifferent to the sexual assaults on M. S's sexual
aggression, combined with M's disability, is strong
medicine. But the Court doesn't know precisely what the
District knew and when. Under Title IX, a school is liable if
it was "(1) deliberately indifferent (2) to known acts
of discrimination (3) which occur under its control."
Ostrander v. Duggan, 341 F.3d 745, 750 (8th Cir.
2003). The harassment must be also be "severe,
pervasive, and objectively offensive" in order to count
as discrimination. Davis v. Monroe Cnty. Bd. of
Educ., 526 U.S. 629, 650 (1999). The sexual assaults on
M were severe and objectively offensive. While the United
States Court of Appeals has not definitively decided whether
the deliberate-indifference standard applies to § 504
claims about student-on-student harassment, it has noted that
the law's trend is to do so. Estate of Barnwell ex
rel. Barnwell v. Watson, 880 F.3d 998, 1006 (8th Cir.
2018) (collecting cases). This Court will therefore review
the District's actions for deliberate indifference under
both Title IX and § 504.
jury reasonably conclude that the District had prior
knowledge about M's abuse? K.T. v. Culver-Stockton
College, 865 F.3d 1054, 1058-59 (8th Cir. 2017). The
Court needs a better timeline to answer this question.
It's not clear from the record when S's bathroom
assault on another student occurred, when it was reported,
and if S later abused M. All of those circumstances are
material because S's other prior acts of harassment,
insofar as the current record shows, didn't give the
District notice that he was dangerous in the bathroom.
Ostrander, 341 F.3d at 751. Next, the Court needs to
know more about the exact timing and nature of M's
behavioral changes. They may have given the District some
notice. His repeated requests for rubber gloves, for example,
raised eyebrows. No 25-20 at 191. Was there any
indication in his glove requests of either abuse or another
student's involvement? As the record currently stands,
the Court can't be sufficiently sure of what took place
between 17 November 2014 and 5 December 2014. So the Court
denies the District's motion on the Title IX and §
504 claims without prejudice and directs the parties to
provide the following supplemental materials. The Court needs
two things: a record-rooted timeline; and information about
any prior substantially similar incidents involving S.
A timeline of the events.
The parties must collaborate and conduct some focused