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Parrish v. Bentonville School District

United States Court of Appeals, Eighth Circuit

July 24, 2018

Ron Parrish, Parents of L; Lauren Parrish, Parents of L; Victor Craig, Parents of A; Laura Craig, Parents of A; Casey Laws, Parents of G; Chastidy Laws, Parents of G; Rachelle Siverly, Parent of S Plaintiffs - Appellants
Bentonville School District Defendant-Appellee Michael Poore, District Superintendent; Tanya Sharp, District Executive Director Student Services; Rebecca Powers, Bentonville School Board; Travis Riggs, Bentonville School Board; Rudy Upshaw, Bentonville School Board; Wendi Cheatham, Bentonville School Board; Willie Cowgur, Bentonville School Board; Grant Lightle, Bentonville School Board; Maureen Bradshaw, District SPED Coordinator Defendants Arkansas Department of Education; Johnny Key, Commissioner Defendants - Appellees

          Submitted: February 14, 2018

          Appeal from United States District Court for the Western District of Arkansas - Fayetteville

          Before LOKEN, BENTON, and ERICKSON, Circuit Judges.

          ERICKSON, Circuit Judge.

         Child L, Child A, Child G, and Child S are all children who attended elementary school for varying lengths of time in the Bentonville School District (District). Each child has been diagnosed with autism. The children allege the District denied them a free appropriate public education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA). The claims on appeal fall under the IDEA, 42 U.S.C. § 1983, based on the right to bodily integrity and equal protection, § 504 of the Rehabilitation Act, and Title II of the Americans with Disabilities Act.[1] The parents, on behalf of their children, appeal the district court's[2]seventy-seven page decision granting the District's and the Arkansas Department of Education's motions for summary judgment. We affirm.

         I. BACKGROUND

         A single complaint initiated this action on behalf of four different children with four different sets of facts. The court will briefly identify pertinent background information on each child.

         1. Child L

         Child L was diagnosed with autism when he was in kindergarten. He was enrolled in the District from kindergarten until third grade. Child L received services pursuant to the IDEA. The District provided services to Child L under an IEP. During Child L's third grade year, his behavior substantially worsened. A behavior support plan was created that identified specific methods the District would use to address Child L's misbehavior. In addition, the District decided to conduct a functional behavior assessment, which outlined Child L's recurring behavioral issues.

         Child L exhibited a variety of attention seeking behaviors, which primarily stemmed from disagreements with another student. In an attempt to respond to these behaviors, the District outlined several curriculum modifications to address Child L's misbehavior, including that Child L would go out for a separate recess to avoid contact with the particular student who appeared to be an instigator in Child L's behavioral outbursts.

         In addition, the behavior support plan was reviewed and modified to address Child L's ongoing needs. Specifically, the plan provided: (1) he was to be placed across the room and facing away from the child that triggered his aggressive behavior (change in space); (2) he would be provided with a visual timer to indicate changes in schedule (change in instructional materials); (3) he would be provided research-based methods such as applied behavior analysis, picture exchange methods, or story-based intervention (change in curriculum); (4) his functional routines in the class would be modified (change in curriculum); (5) he would be given a sensory diet (change in curriculum); (6) he would be allowed quiet time after recess and would have the opportunity to listen to calming music and sleep until he awakened (change in curriculum); and (7) he would have a designated time each day to work with his special education teacher on social skills (change in curriculum).

         Despite multiple programming conferences and attempts to manage Child L's recurring misbehavior, from December 2012, until the time the parents withdrew Child L from the District, Child L exhibited behavioral outbursts that ranged from mild disruptions to acts of aggression that resulted in physical harm to several District employees.

         2. Child A

         Child A's mother observed early in A's life that he was not progressing at the same rate as his twin sister. Before being enrolled in the District, a doctor noted that Child A exhibited "high intellectual abilities" but struggled with self-regulation, peer relationships, and social reciprocity. Child A was enrolled in the District from kindergarten through second grade.

         Child A received services pursuant to the IDEA. The District provided Child A with education under an IEP, which contained academic goals, instructional modifications, supplemental aids, and supports to assist Child A in receiving a FAPE. As part of the IEP, the District provided Child A with a paraprofessional staff member for all of Child A's general education activities. The IEP noted that Child A exhibited "physically aggressive behaviors towards staff and other students." The District prepared a behavior support plan to address these behaviors.

         Between January and March 7, 2013, Child A behaved aggressively on nine separate occasions. The behavior included hitting; spitting; throwing objects, furniture, school supplies, and books; yelling; biting; pushing walls and objects; scratching; pulling and ripping out hair; head-butting; pulling clothing; attempting to insert spit into an electrical outlet; disrobing; attempting to choke himself by putting a finger down his throat; running around the room; banging on doors and glass; pushing over cabinets; throwing furniture; tearing the back end off cabinets; dumping out containers; ripping handles off closed shelves; kicking computer monitors, chairs, and desks; and urinating on the carpet. The hearing officer concluded that the District first ...

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