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Cook v. Little Rock School District

United States District Court, E.D. Arkansas, Western Division

October 3, 2018

DON COOK, individually and as parent and next friend of D; and ELIZABETH JACOBY, individually and as parent and next friend of D PLAINTIFFS



         Don Cook and Elizabeth Jacoby, individually and as the parents of their child, referred to herein as “D, ” filed a due process complaint against Little Rock School District, asserting a claim under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., as well as a claim under section 504 of the Rehabilitation Act, 29 U.S.C. §§ 701 et seq. They alleged that the school district denied D a free appropriate public education during the 2015-16 school year when he was an eighth-grade student at Horace Mann Middle School. The heart of their claim was (and is) that the school district failed to develop a behavior intervention plan as a part of D's individualized education program for the 2015-16 school year and, as a result, his behavior deteriorated, which prevented him from progressing academically. Pursuant to 20 U.S.C. § 1415, the Arkansas Department of Education appointed Garry Corrothers to serve as the hearing officer. A hearing took place on May 16, 17, and 18, 2016, and was later concluded on September 9, 2016. The hearing officer held that he lacked jurisdiction over the Rehabilitation Act claims and found that the parents presented insufficient evidence that the school district denied D a free appropriate public education. AR 126. The plaintiffs then commenced this action, seeking reversal of the decision in favor of the school district on their claim under the Individuals with Disabilities Education Act. They also seek costs and attorney's fees. The parties have submitted the case on a stipulated record.


         The Individuals with Disabilities Education Act 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.” 20 U.S.C. § 1415(a). A party challenging whether a free appropriate public education has been provided has the right to file an administrative complaint and receive an impartial due process hearing before a local or state agency. Id. § 1415(b)(6). An aggrieved party who has no further administrative appeal has the right to seek review of the decision made in a due-process hearing in federal district court without regard to the amount in controversy. Id. § 1415(i)(2)(A) and (3)(A).

         In actions brought under the Individuals with Disabilities Education Act, 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.”). The Eighth Circuit has explained that a district court's role in reviewing a claim brought under the Individuals with Disabilities Education Act is to receive the records of the administrative proceedings, to hear additional evidence at the request of a party, and to grant such relief as the court determines is appropriate based on the preponderance of the evidence. K.E. ex rel. K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 803 (8th Cir. 2011); see also 20 U.S.C. § 1415(i)(2)(C). District courts must independently determine whether the school district provided D with a free appropriate public education, giving “due weight” to the state administrative proceedings. K.E. ex rel. K.E., 647 F.3d at 803. “This somewhat ‘unusual' standard of review is less deferential than the substantial-evidence standard commonly applied in federal administrative law.” Id. It is nevertheless appropriate “because the administrative panel had an opportunity to observe the demeanor of the witnesses and because the court should not substitute its own educational policy for those of the school authorities that they review.” Strawn v. Missouri State Bd. of Educ., 210 F.3d 954, 958 (8th Cir. 2000).


         D has an autism spectrum disorder. “Autism is a neurodevelopmental disorder marked by impaired social and communicative skills, ‘engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.'” Endrew F. Ex rel. Joseph F. V. Douglas Cnty. Sch. Dist. RE-1, 137 S.Ct. 988, 996, 197 L.Ed.2d 335 (2017) (citation omitted). D started sixth grade at Pulaski Heights Middle School, but in February 2014 he transferred to Horace Mann because of a combination of severe behavioral regression and issues with the manner staff at Pulaski Heights addressed D's behavior. AR 1344; AR 1175-1212. D continued to attend Horace Mann through seventh and eighth grades, which were the 2014-15 and 2015-16 school years. AR 1342.

         Shortly after D transferred to Horace Mann, Dr. Peggy Whitby, at the request of D's parents and lawyers, issued a report on whether D was being provided with a free appropriate public education. AR 1174-1213. The report lists numerous deficiencies in the manner in which Pulaski Heights addressed D's needs. It documents in detail various instances throughout the first semester of the 2013-14 school year in which D's education plan was not followed, D was removed forcibly from classrooms, and staff at the school used ineffective behavioral interventions. AR 1194-1212. In Whitby's section on recommendations, she begins by noting that “[D] is now served at Horace Mann Arts Middle School” and “in this environment, it appears that the school is now using proactive strategies to prevent behaviors.” AR 1212. She also states that “[t]he paraprofessional was using appropriate use of breaks, choice, and positive reinforcement for on-task behavior” and that “[D] has had no incidents of aggressive behavior since his placement at this new school environment.” Id. Although Whitby believed D was doing “very well” at Horace Mann, she recommended that D undergo a functional behavior assessment and that D's education team develop and implement a behavior intervention plan. AR 1212-13.

         The Act requires that local educational agencies “have in effect, for each child with a disability in the agency's jurisdiction, an individualized education program.” 20 U.S.C. § 1414(d)(2)(A). An individualized education program is developed by a team composed of the child's parents, at least one of the child's regular education teachers, at least one of the child's special education teachers, a qualified representative of the local educational agency, and an individual capable of interpreting the instructional implications of evaluation results. Id. § 1414(d)(1)(B). Once a program is developed and adopted, it may only be modified “by the entire IEP Team” or by agreement of the parents and local educational agency to “develop a written document to amend or modify the child's current IEP.” Id. § 1414(d)(3).

         After D's parents received Whitby's report, D's education team met at the end of the 2013-14 school year to develop an individualized education program for D. AR 1134. D's individualized education program included 60 minutes per week of speech therapy, occupational therapy, and physical therapy and provided him with a paraprofessional on a daily basis. AR 1133. The program also included the following behavior management strategies: a calming area in D's general education and special education settings (“SAFE HAVEN”); use of a “visual/written schedule”; preparing D in advance of changes in his routine; and use of a word processor. AR 1140. These strategies mirror recommendations in a report issued by Sandy Crawley, a behavior support specialist, who observed D and provided the school district with a program of “positive behavior supports” on April 23, 2014. AR 1240-41. The individualized education program noted that D's behavior did not significantly impair his ability to learn in a large group setting. AR 1138.

         The team met again in May 2015 to develop D's individual education program for the 2015-16 school year. D's parents attended, and the “Statement of Parental Participation and Concerns” states that D's parents “are very pleased with [D's] progress academically and socially.” AR 1118. D's “Student Profile Summary” notes that D scored below basic in literacy and math and scored basic in science. Id. The team, however, did not think those scores were “a true register of his academic ability.” Id. The team found that D “continued to make progress in the general curriculum as evidenced by achieving passing grades in all academic areas by the 3rd quarter.” AR 1124. D's education program continued to provide him with a paraprofessional to support him throughout the day. Id. D also continued with 60 minutes per week of speech therapy, occupational therapy, and physical therapy. AR 1116.

         D's individualized education plan for the 2015-16 school year noted that he had a behavior support plan. AR 1119. His paraprofessional worked with him on classroom procedures, such as raising his hand and waiting to be called on and obtaining permission to leave class. AR 1118. The annual review, in which D's parents participated and which is included in D's 2015-16 education program, states that “since [D's] arrival here at Mann, his behaviors, while still present, continue to be much more manageable . . . with the support of his paraprofessional.” AR 1124. The review adds that D's inappropriate behavior has been effectively managed “with a flexible routine and schedule.” Id. The team created an annual goal for D to “display productive school behavior on a daily basis with 80% accuracy.” AR 1127. This goal was to be measured by D's attendance and preparation for class. Id. D's 2015-16 individualized education program, like the program for the prior year, provided the following behavior management strategies: a calming area, use of a visual/written schedule; preparing D in advance of changes in his routine; use of a word processor; and added use of a calculator. AR 1129. Finally, the team noted that D did not need “an intensive behavior management program.” AR 1131.

         On October 14, 2015, D's team met to review his progress for the first nine weeks of the school year. Although D had an F in English for that nine weeks, the conference notes stated that D would continue in his current placement and that he had shown progress. AR 1218. The notes also stated that while D is “sometimes defiant, ” his paraprofessional is continuing to work with him on classroom behavior and following rules. Id.

         Around the second week in November, D's mother expressed concern to D's special education teacher regarding his grades. AR 1390. The teacher told D's mother that she would talk to D's teachers and follow-up with her. Id. On December 2, 2015, D's mother again expressed concern about D's grades to his special education teacher. AR 1392. The teacher reassured D's mother that there was still time for D to get his grades up and that she would discuss the situation with D's ...

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