United States District Court, W.D. Arkansas, Harrison Division
CHAD AND TONYA RICHARDSON, Individually, and as Parents and Next Friends of L. PLAINTIFFS
OMAHA SCHOOL DISTRICT DEFENDANT
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE..
pending before the Court are Defendant Omaha School
District's ("the District") Motion for Summary
Judgment (Doc. 36), Statement of Facts (Doc. 37), and Brief
in Support (Doc. 38); Plaintiffs Chad and Tonya
Richardson's Response in Opposition (Doc. 41) and
Statement of Facts (Doc. 42); and the District's Reply
(Doc. 47). For the reasons explained below, the Motion is
Richardsons, individually and on behalf of their child, L,
filed a due process complaint on November 29, 2016, before
the Arkansas Department of Education, concerning claims
brought under the Individuals with Disabilities Education Act
("IDEA"), 20 U.S.C. § 1400, et seq.
The Richardsons alleged in their due process complaint that
L, while attending school in the District, was denied the
right to a free, appropriate public education
("FAPE"). The parties participated in a due process
hearing before a hearing officer appointed by the Arkansas
Department of Education, and the hearing officer issued his
final decision on April 14, 2017.
13, 2017, the Richardsons appealed the hearing officer's
decision to this Court in No. 3:17-CV-3053. The hearing
officer had found in their favor on some of their claims, but
in favor of the District on other claims. In particular, the
hearing officer concluded that the "District denied [L]
FAPE between November 29, 2014 and November 29, 2016 by
failing to comprehensively reevaluate [L], as well as failing
to provide IEPs ["Individualized Education
Program"] reasonably calculated to enable [L] to make
progress appropriate in light of his specific
circumstances." (Doc. 1-2 at 51). The District was
ordered to evaluate L. within the next 30 days "for
[the] purpose of obtaining a comprehensive understanding of
[L's] academic, social and behavioral deficits" and
then "reconvene [L's] IPE team to develop and update
[L's] IEP based on the information received from the
updated evaluations (regardless of whether [L] is able to
return to school or whether he needs homebound
services)." Id. at 51-52.
Richardsons lost before the hearing officer on their claims
that peer-bullying and teacher-bullying of L. denied him FAPE
under the IDEA. See Id. at 43. Of the four incidents
of bullying raised during the hearing, the hearing officer
determined that only one of the incidents actually qualified
as bullying. He concluded that, "[r]egardless, all
incidents were promptly and thoroughly investigated."
Id. at 47. The hearing officer then made a finding
that the incidents described as "bullying"-and the
District's response to those incidents-did not violate
the IDEA and "d[id] not constitute a violation of
FAPE." Id. at 48.
Court ultimately dismissed No. 3:17-CV-3053 without prejudice
because the Richardsons never served the Complaint.
See Doc. 7, No. 3:17-CV-3053. Then, on December 4,
2017, the Richardsons filed the instant lawsuit and served
it. Eventually, the District and the other defendants who had
been named in the Complaint filed a motion for partial
dismissal of some of the Richardsons' claims. The Court
granted the motion in a Memorandum Opinion and Order issued
on March 22, 2018 (Doc. 23).
of the Complaint was dismissed with prejudice, due to the
running of the statute of limitations. Counts IV-IX were
dismissed without prejudice under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim. This left
for later resolution Counts II and III-which are now the
subject of the District's Motion for Summary Judgment.
II asserts that the District discriminated against L. in
violation of § 504 of the Rehabilitation Act, 29 U.S.C.
§ 701, etseq. ("§ 504"). The
Richardsons contend that the District was aware that L. was
being bullied by other children and by at least one of his
teachers due to his disabilities, but was deliberately
indifferent to the bullying and took no steps to protect L.
Count III is similar to Count II in that it alleges that the
District discriminated against L. in violation of the
Americans with Disabilities Act ("ADA"), 42 U.S.C.
§ 12131-12165. The Richardsons maintain that L. did not
receive the same services, programs, and activities that
children in the District without disabilities received, due
to the fact that L. was subjected to a hostile and bullying
environment at school.
504 and the ADA contain exceedingly similar prohibitions on
disability discrimination. Section 504 states that "[n]o
otherwise qualified individual with a disability in the
United States . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied
the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial
assistance," 29 U.S.C. § 794. The ADA'S
corresponding language states that "no qualified
individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such
entity," 42 U.S.C. § 12132.
summary judgment, the District argues that the Richardsons
have produced no evidence from which a jury could reasonably
conclude that the District and its staff are liable for
violations of the Rehabilitation Act or the ADA by deviating
from accepted professional practices or standards in their
response to allegations of bullying. The District further
contends that there is no evidence to suggest the District
acted in bad faith with respect to complaints of bullying or
that it engaged in intentional wrongdoing in handling the
bullying claims. In making these arguments, the District
relies primarily on the administrative hearing officer's
decision, which considered and rejected the Richardsons'
claims that L. was denied FAPE due to bullying and/or the
District's lack of an appropriate response to bullying.
summary judgment, the Richardsons focus not on bullying, but
on the hearing officer's conclusion that the District
failed to conduct proper educational assessments and provide
IEPs that were suited to L.'s needs. The Richardsons'
briefing makes clear that they believe Counts II and III do
not have much, if anything, to do with bullying. In fact, no
facts or legal argument about bullying are contained in their
brief and statement of undisputed facts.
the Richardsons agree that the District has referred in its
opening brief to the facts surrounding the bullying
allegations that were developed in the administrative
hearing, they think that mere references to the hearing
officer's opinion are not enough to meet the
District's initial burden under Rule 56. Instead, they
argue that the District was obligated on summary judgment to
cite to specific "actions taken by the school and its
employees, as well as an explanation for the alleged
reasonableness of those actions," (Doc. 41 at 5), in
order to trigger a fulsome response. To summarize, then, the
Richardsons maintain they are not obligated to provide any
facts to support their claims on Counts II and III, but if
they are wrong and a response is required, the only facts
that truly matter are those that show the District's
failure to evaluate L. for services and provide him with an
appropriate IEP. The Court will take up the parties'
arguments on summary judgment below.
legal standard for summary judgment is well established.
Under Federal Rule of Civil Procedure 56(a), "[t]he
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." The
Court must review the facts in the light most favorable to
the opposing party and give that party the benefit of any
inferences that can be drawn from those facts. Canada v.
Union Bee. Co., 135F.3d 1211, 1212-13 (8th Cir.
1997).The moving party bears the burden of proving the
absence of a genuine dispute of material fact and that it is
entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(c); Matsushita Bee. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986); Nat'l Bank
of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165
F.3d 602 (8th Cir. 1999).
movant's initial burden on summary judgment is "far
from stringent, for it is sufficient if the movant points out
that the record does not contain a genuine issue of material
fact and identifies that part of the record which bears out
his assertion." Handeen v. Lemaire, 112 F.3d
1339, 1346 (8th Cir. 1997) (internal quotation marks and
alterations omitted). But "[e]ven when the non-movant
bears the burden of proof at trial, simply filing a summary
judgment motion does not immediately compel the party
opposing the motion to come forward with evidence
demonstrating material issues of fact as to every element of
its case." Id. (internal quotation marks
Elements of § 504 and ADA Claims
"To prevail on a claim under § 504, a plaintiff
must demonstrate that: (1) he is a qualified individual with
a disability; (2) he was denied the benefits of a program or
activity of a public entity which receives federal funds; and
(3) he was discriminated against based on his
disability." Gorman v. Bartch, 152 F.3d 907,
911 (8th Cir. 1998) (footnote omitted) (citing 29 U.S.C.
§ 794(a)). Section 504 requires that "'a
person's disability serve as the sole impetus
for a defendant's adverse action against the plaintiff,
'" Wojewski v. Rapid City Reg'l Hosp.,
Inc., 450 F.3d 338, 344 (8th Cir. 2006) (emphasis in
original). "Although the ADA has no federal funding
requirement, it is otherwise similar in substance to the
Rehabilitation Act, and cases interpreting either are
applicable and interchangeable." Wojewski, 450
F.3d at 344 (internal quotation marks omitted); see also
Hoekstra by & through Hoekstra v. Indep. Sch.
Dist. No. 283, 103 F.3d 624, 626 (8th Cir. 1996)
("[Enforcement remedies, procedures and rights under
Title II of the ADA are the same as under §
both § 504 and ADA claims are asserted against a
defendant based on a failure to provide educational services
for a disabled child, "the plaintiff must prove that
school officials acted in bad faith or with gross
misjudgment." Birmingham v. Omaha Sch. Dist,
220 F.3d 850, 856 (8th Cir. 2000). In order to establish bad
faith or gross misjudgment, a plaintiff must show that the
defendant's conduct "depart[ed] substantially from
'accepted professional judgment, practice or standards
[so] as to demonstrate that the person[s] responsible
actually did not base the decision on such a
judgment.'" B.M. ex rel. Miller v. S. Callaway
R-ll Sch. Dist, 732 F.3d 882, 887 (8th Cir. 2013)
(internal citations omitted; alterations in original). As the
Eighth Circuit has explained:
Because the ADA and § 504 do not create general tort
liability for educational malpractice, bad faith or gross
misjudgment requires something more than mere non-compliance
with the applicable federal statutes. The defendant's
statutory non-compliance must deviate so substantially from
accepted professional judgment, ...