United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE
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
Standard of Review
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.
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).
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.
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).
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).
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).
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).
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).
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).
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.
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. (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).
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).
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, ...