Bentonville School District v. Smith

          OPINION AND ORDER

          P.K. HOLMES, III CHIEF U.S. DISTRICT JUDGE

         Before the Court is Plaintiff Bentonville School District's (“BSD”) complaint (Doc. 1) seeking review of the findings and decision of the administrative hearing officer in a due process hearing brought pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq. Defendant Lisa Smith filed an answer (Doc. 7). The parties filed an administrative record (Docs. 26, 27), and BSD filed a supplemental record (Doc. 31) with leave of Court. BSD then filed a posthearing brief (Doc. 34). Smith filed a response (Doc. 35). BSD filed a reply (Doc. 36) to Smith's response. For the following reasons, the Court finds that the administrative hearing officer erred in finding that BSD violated the substantive provisions of IDEA, reverses the hearing officer's decision, and enters judgment on the pleadings in favor of BSD.

         I. Standard of Review

         The 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 free appropriate public education by such agenc[y].” B.S. ex rel. K.S. v. Anoka Hennepin Pub. Schs., 799 F.3d 1217, 1219 (8th Cir. 2015) (quoting 20 U.S.C. § 1415(a)). A party challenging whether an LEA provided a free appropriate public education (“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 a party to seek review of the local or state due process hearing in a federal district court. 20 U.S.C. § 1415(i)(2)(A) & (3)(A). In reviewing a hearing officer's decision, a 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.

         In these actions, 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). The Eighth Circuit has explained a district court's duty in handling an IDEA claim:

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 Indep. 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. Indep. Sch. 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 citation omitted).

K.E. ex rel. K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 803 (8th Cir. 2011).

         II. Facts

         Lisa Smith, mother of M.S., brought an action under IDEA against BSD, alleging that M.S. was denied due process by BSD from the time he enrolled in the district's Early Childhood Center in January of 2008 until she filed her due process complaint on October 24, 2016. (Doc. 10-1, p. 6; Doc. 1, p. 3).

         M.S. resides with his mother, father, and sisters. (Doc. 27-9, p. 199). In 2007, M.S.'s primary care physician referred him for a developmental evaluation from the Schmieding Developmental Center. (Doc. 27-9, p. 280). The Center determined M.S. met the criteria for anxiety disorder, mixed developmental disorder, and mixed receptive/expressive language disorder. (Doc. 27-9, p. 289). That same year, as a four-year-old, M.S. began preschool at BSD's Early Childhood Center (“ECC”). (Doc. 27-9, p. 183). On February 29, 2008, BSD evaluated M.S. to determine his eligibility for special education. (Doc. 27-9, p. 268). Examiner Tracy Ervin found that M.S. attained developmental milestones within age-appropriate expectations. (Doc. 27-9, p. 269). However, Ervin noted that M.S. was noncompliant and aggressive when he did not get his way. (Id.). Ultimately, Ervin determined that M.S. qualified for special education services and recommended M.S. receive developmental therapy for 45-60 minutes, once a week. (Doc. 27-9, p. 277).

         Elizabeth Srader, M.S.'s preschool teacher at ECC, believed M.S. to be “a little behind.” (Doc. 27-1, p. 40). She described M.S. as withdrawn and angry. (Id.). M.S. was placed on an Individualized Education Plan (“IEP”) during the 2008-09 school year. (Doc. 27-1, p. 40). M.S. received occupational and physical therapy for his developmental delays. (Doc. 27-1, p. 41). In February of 2009, Srader described M.S. as average for his age in meeting expected educational benchmarks. (Doc. 27-1, p. 44). However, ECC faculty and staff were concerned that M.S. presented hallmarks of autism. (Doc. 27-6, pp. 224-25).

         On March 9, 2009, M.S.'s IEP team met for M.S.'s annual review. (Doc. 27-9, p. 183). The IEP team reviewed existing evaluation data, teacher reports, M.S.'s current IEP, and classroom-based assessment results. (Id. at 183-87). The team opted to extend M.S.'s existing IEP to June 4, 2009. (Id. at 183). During the existing data review, the team decided M.S. should undergo additional testing. (Doc. 27-9, p. 185).

         On May 6, 2009, M.S.'s IEP team met again for an evaluation/programming conference. (Doc. 27-9, p. 189). The IEP team identified M.S.'s disability as “Non-Categorical Developmental Delay.” (Id. at 189). The IEP team determined that occupational, physical, and developmental therapies were appropriate. (Id. at 190). At this meeting, the team also determined that Extended School Year Services were unnecessary for M.S. at that time. (Id. at 194).

         On May 14, 2009, M.S.'s IEP team met for a transition conference at Apple Glen Elementary School. (Doc. 27-1, p. 50). The team determined M.S.'s evaluation data did not substantiate the existence of a disability consistent with state and federal regulations implementing IDEA. (Doc. 27-9, p. 199). The team also determined that M.S. qualified for occupational and physical therapy under a Section 504 plan. (Doc. 27-9, p. 200; Doc. 27-6, p. 237).

         Before M.S. began his kindergarten year at Apple Glen Elementary, Smith reached out to Lisa St. John, principal at the school, to notify her that M.S. had been placed at Vista Health Therapeutic Day Treatment (“TDT”) program. (Doc. 27-1, p. 96). Smith told St. John that “[M.S.] can't come to school. He will hurt someone. He is in a bad place and I need you to help me make sure that he can stay there.” (Id.; Doc. 27-1, p. 186). Apple Glen Elementary worked to honor Smith's wishes. Brad Reed, Director of Student Services for BSD, assisted Smith in placing M.S. at the TDT for his elementary school tenure. (Doc. 27-1, p. 97). M.S. stayed on Apple Glen's classroom roll and Apple Glen was responsible for completing an annual review of TDT services for M.S. (Id. at 98).

         There are no academic records for M.S. at the TDT for kindergarten or first grade. (Doc. 27-1, p. 118). Second grade TDT academic records reflect that M.S. received failing grades in all academic courses for the Fall semester. (Id.). On May 2 and May 9, 2012, Carrie Cousins, special education lead and speech/language pathologist at Apple Glen, conducted an evaluation of M.S. while he was at the TDT. (Doc. 27-1, p. 147). Cousins's evaluation did not find the extreme or severe expressive/receptive language disorder diagnosed by the Schmieding Developmental Center in 2007. (Doc. 27-1, p. 152).

         In second grade, Smith began asking BSD to place M.S. back at Apple Glen. (Doc. 27-1, p. 217). Cousins observed M.S. at the TDT and witnessed many of the behavioral issues previously noted about M.S., including withdrawal from the other students, work refusal, and aggressive behavior. (Doc. 27-1, p. 218). On September 29, 2011, a referral conference was held. (Doc. 27-9, p. 121). The IEP team opted to wait on an evaluation report from Lisa Fitzgibbons, a psychologist BSD used for special education evaluations, before deciding whether to place M.S. back in the public-school setting. (Id.). The Fitzgibbons report found that M.S.'s performance on a series of tasks was suggestive of Autism Spectrum Disorder. (Doc. 27-9, p. 233). Fitzgibbons diagnosed M.S. with Pervasive Developmental Disorder, not otherwise specified.^[1] (Id.). On March 29, 2012, BSD received an official referral by Karrie Bradshaw, Assistant Principal and Special Education designee at Apple Glen Elementary School, to move M.S. from the TDT to public school. (Doc. 27-9, p. 123). Although Smith initially wanted M.S. to return to public school when the referral was made, she opted to leave M.S. at TDT. (Doc. 27-1, p. 234).

         M.S. remained at the TDT until his third-grade year. On March 6, 2013, Kathy Herndon, BSD's elementary school special education coordinator, met with the TDT staff and Lisa Smith to discuss M.S.'s increased behavioral issues at the TDT and recent safety concerns TDT had with M.S. remaining at their facility. (Doc. 27-2, p. 167). At the meeting, all parties agreed that moving M.S. from the TDT to homebound education for 90 days was the best option for M.S. (Doc. 27-9, p. 112).

         On November 13, 2013, M.S.'s IEP team met to discuss M.S.'s progress on homebound school work and determine the appropriate placement for M.S. when he returned to public school. (Doc. 27-9, p. 17). The team determined that M.S. would return to school at Old High Middle School in a behavior classroom for 360 minutes per week. (Id.). On December 2, 2013, M.S. returned to the public school system at Old High Middle School as a fourth grader in Natalie Young's fifth and sixth grade behavior classroom. (Doc. 27-4, pp. 178-82). In Young's class, M.S. took off his shoes and climbed the cabinets when he became frustrated. (Doc. 27-4, p. 186). Young frequently sent M.S. home because of his inappropriate behavior. (Doc. 27-7, p. 192). During M.S.'s time at Old High, he never attended a full day. (Doc. 27-1, p. 211). On January 13, 2014, Janice Christy, a certified psychological examiner, completed an existing data review of M.S. (Doc. 27-1, p. 208; Doc. 27-9, p. 212). Christy concluded that M.S. had autism. (Doc. 27- 1, ...