United States District Court, W.D. Arkansas, Harrison Division
JACQUIE ALBRIGHT, Individually, and as Parent and Next Friend of T PLAINTIFF
MOUNTAIN HOME SCHOOL DISTRICT DEFENDANT
OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE
before the Court are Plaintiff Jacquie Albright's Motion
for Judgment on the Record (Doc. 25) and Memorandum Brief
(Doc. 26) in Support, Defendant Mountain Home School
District's ("the District") Response (Doc. 33),
and Ms. Albright's Reply (Doc. 36). For the reasons given
below, Ms. Albright's Motion is DENIED,
and her Complaint is DISMISSED WITH
case is the latest in a series of lawsuits between Ms.
Albright, on behalf of her disabled child, and the District,
where her child is enrolled as a student. (Ms. Albright's
child will be referred to as "Student" throughout
this Opinion and Order.) Of those lawsuits, this is the
second one to make it into federal court; the other four all
appear to have been resolved at the state administrative
level, whether through settlement or dismissal. The previous
federal lawsuit ("Albright I") was heard
in this Court and ultimately resolved on summary judgment in
the District's favor. See Albright I, 2017 WL
2880853 (W.D. Ark. July 5, 2017). That ruling is currently on
appeal in the Eighth Circuit.
case, as with Albright I, involves claims brought
under the Individuals with Disabilities Education Act
("IDEA"), 20 U.S.C. § 1400 et seq. As
the Court explained in Albright I, the IDEA requires
[T]he District must provide [Student] with a free appropriate
public education ("FAPE"), id. at §
1412(a)(1), which includes special education and related
services in conformity with an individualized education
program ("IEP"), id. at § 1401
(9)(D). The IDEA sets out a process by which teachers, school
officials, and a child's parents should collaborate to
draft an IEP that fits the child's unique needs. See
Id. at § 1414(d)(1)(B).
When a parent disagrees with other members of the IEP team
over what the IEP should include, the parties may attempt to
resolve the disagreement, either through a "preliminary
meeting" or through mediation. id. at
§§ 1415(e), (f)(1)(B)(i). If unsuccessful, then the
parent may file a complaint with the Arkansas Department of
Education to initiate a "due process hearing."
See Id. at § 1415(f)(1)(A). Following the
Hearing Officer's decision, the losing party may appeal
it by filing a lawsuit in federal court. See Id. at
§ 1415(i)(2)(A). And that is what happened here.
Albright I, 2017 WL 2880853, at *1.
I concerned whether Student was denied a FAPE between
November 15, 2013 and October 17, 2014. See Id. at
*2. This Court affirmed the Hearing Officer's decision in
Albright I, ruling that Student was not denied a
FAPE during that time period. See Id. at *4. The
instant case picks up where Albright I left off, and
concerns the time period from October 18, 2014 through
October 7, 2016. Here, as in Albright I, Ms.
Albright is the appellant, following a finding by the Hearing
Officer that Student was not denied a FAPE during the
relevant time period.
federal district court is asked to review the Hearing
Officer's decision, the 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.'" K.E. ex rel. K.E. v. Indep. Sch.
Dist. No. 15, 647 F.3d 795, 803 (8th Cir. 2011) (quoting
20 U.S.C. § 1415(i)(2)(C)) (alterations in original). In
so doing, this Court "must independently determine
whether the child in question has received a FAPE,"
while also giving "due weight to agency
decision-making" since the Hearing Officer "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 reviews." See Id. (internal
alterations and quotation marks omitted). The centerpiece of
a FAPE is the IEP. See Honig v. Doe, 484 U.S. 305,
311 (1988). "When reviewing a school district's
compliance with the IDEA, a district court must engage in a
two-part inquiry: It must first determine whether the school
district followed the procedures set forth in the IDEA,"
K.E., 647 F.3d at 804, and then it must determine
whether the IEP was "reasonably calculated to enable a
child to make progress appropriate in light of the
child's circumstances," Endrew F. ex rel. Joseph
F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S.Ct. 988, 1001
(2017); see also K.E., 647 F.3d at 804. "If
these requirements are met, the school district has complied
with the obligations imposed by Congress and the courts can
require no more." K.E., 647 F.3d at 804
(quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207
(1982)) (internal alterations omitted). However, even if a
school district failed in some manner to follow the
procedures set forth in the IDEA, the reviewing court should
not set aside the IEP unless "the procedural
inadequacies compromised the pupil's right to an
appropriate education, seriously hampered the parent's
opportunity to participate in the formulation process, or
caused a deprivation of educational benefits." See
Id. at 804-05 (quoting Sch. Bd. of Indep. Sch. Dist
No. 11 v. Renollett, 440 F.3d 1007, 1011 (8th Cir.
2006)) (internal alterations omitted).
Albright's Brief identifies a litany of alleged
procedural violations, which she contends cumulatively amount
to a substantive denial of a FAPE for Student. See R.E.
v. N.Y.C. Dep't of Educ, 694 F.3d 167, 190 (2d Cir.
2012) ("Multiple procedural violations may cumulatively
result in the denial of a FAPE even if the violations
considered individually do not"). All of those alleged
procedural violations appear to relate in some way or another
to the issue of whether Student should have received a new
functional behavioral assessment ("FBA") and
whether Student's IEP should have included a new
behavioral intervention plan ("BIP"), to deal with
maladaptive behaviors that Student was exhibiting at school.
Court would first observe that the District was not required
under the IDEA to conduct a new FBA or to include a new BIP
in Student's IEP, because Student was never' removed
from her then-current educational placement for more than ten
school days for misbehavior that was a manifestation of her
disability, see 34 C.F.R. § 300.530(f)(1), and
was never placed in an alternative educational placement due
to behavior involving weapons, drugs, or the infliction of
serious bodily injury on another person, see 34
C.F.R. § 300.530(g). Rather, the IEP team was simply
required to "consider the use of positive
behavioral interventions and supports, and other
strategies" to address Student's behavior, to the
extent that Student's behavior "impede[d] the
child's learning or that of others." See 20
U.S.C. § 1414(d)(3)(B)(i) (emphasis added). So to the
extent that Ms. Albright alleges it was a procedural
violation for the District not to conduct a new FBA or
develop a BIP, see, e.g., Doc. 26, pp. 16, 18, the
Court believes she is incorrect.
lEPs for the 2015-16 and 2016-17 school years stated that
Student's behavior was not impeding her learning.
See AR3045, AR3255. Ms. Albright contends that these
statements were incorrect, and that their wrongness
constitutes a procedural violation of the IDEA. See
Doc. 26, pp. 14, 20. She bases this allegation on daily
observation notes that the District provided her, which
documented, among other things, various instances of
misbehavior on the part of Student such as throwing things,
climbing on equipment, screaming, and banging her head on a
table. See Id. at 13, 18-19. Thus, she infers the
District "was not harvesting data from these notes that
could be used to measure progress toward behavior
goals," which she says constitutes an additional
procedural violation of the IDEA. See id.
this ignores the fact that prior to development of
Student's 2015-16 IEP, Ms. Albright rejected the
District's proposal that a Board Certified Behavior
Analyst named Susanne Belk conduct an FBA and develop a BIP
for Student. See AR3239. A school district
"[m]ust obtain informed parental consent... prior to
conducting any reevaluation of a child with a
disability." See 34 C.F.R.
§300.300(c)(1)(i). However, Ms. Albright contends that
the District "used Parent's refusal to consent to
Belk conducting the FBA as an excuse to . . . argue
the Parent prevented them from conducting an FBA or approving
a BIP they secretiy didn't fee/ was needed
and never intended to do" and that this too was a
procedural violation of the IDEA. See Doc. 26, p. 17
(emphasis in original). But this ignores the fact that the
District then went ahead and had Ms. Belk conduct an
evaluation and prepare a report anyway, complete with
recommendations for behavior management. See
AR3151-57. However, Ms. Albright contends that this too was a
procedural violation, because she alleges the District did
not follow the proper "consent override" procedures
by pursuing mediation or filing a due process complaint.
See 34 C.F.R. § 300.300(a)(3)(i); Doc. 26, p.
18. Finally, and relatedly, Ms. Albright argues that the
District committed a procedural violation of the IDEA by
declining to employ "consent override" procedures
to Include an FBA and BIP in Student's FAPE over and
against Ms. Albright's consent. See Doc. 26, pp.
the Court initially set a hearing to be held on these matters
on November 6, 2018, the Court has determined now that the
record is already sufficiently clear to enable it to rule
without receiving any further oral argument. The Court finds
that none of the alleged procedural violations, except
possibly one, are supported by a preponderance of the
evidence in the administrative record. Rather, it is very
clear from the record that the District regularly provided
Ms. Albright notice of IEP meetings, was in nearly constant
communication with Ms. Albright about Student's
behavioral issues, and that Ms. Albright refused to consent
to an FBA proposed by the District. And even if it was a
procedural violation for the District to have Ms. Belk
eventually conduct an evaluation of Student over Ms.
Albright's wishes without first filing a formal due
process complaint, the Court finds that this procedural
shortcoming made no substantive difference in the end; such a
due process complaint surely would have resulted in a ruling
favorable to the District on the matter, because
"[e]very court to consider the IDEA'S reevaluation
requirements has concluded If a student's parents want
[her] to receive special education under IDEA, they must
allow the school itself to reevaluate the student and they
cannot force the school to rely solely on an independent
evaluation." G.J. v. Muscogee Cnty. Sch. Dist,668 F.3d 1258, 1263-64 (11th Cir. 2012). Thus, the Court
finds by a ...