United States District Court, E.D. Arkansas, Western Division
Kristine G. Baker, United States District Judge.
the Court are plaintiff Vilonia School District’s
(“School District”) appeal of final
administrative decision in Case No. EH-18-23 and appeal of
final administrative decision in Case No. H-18-22 (Dkt. Nos.
31, 51). Defendants M.S. and T.S., as parents of the juvenile
A.R.S. (“Parents”), responded to both motions
(Dkt. Nos. 34, 55). This case involves a juvenile student of
School District who used a social media platform allegedly to
make threats of self-harm and harm to others while
off-campus; the student receives education services pursuant
to the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1044 et seq.
School District’s first pending motion is an appeal of
the hearing officer’s final administrative decision
following the expedited due process hearing conducted in Case
No. EH-18-23 (Dkt. No. 31). School District’s second
pending motion is an appeal of the hearing officer’s
final administrative decision following the regular due
process hearing conducted in Case No. H-18-22 (Dkt. No. 51).
before the Court is School District’s motion for leave
to file first amended appeal of final administrative
decisions (Dkt. No. 58). Parents responded to the motion, and
School District filed a reply (Dkt. Nos. 59, 61). School
District requests leave to file an amended appeal in order to
supplement the original appeals with citations to the record,
testimony, and final administrative decisions issued by the
hearing officer at the administrative hearing stage of this
case (Dkt. No. 58, ¶ 2). Parents argue that School
District’s motion is untimely and without good cause
(Dkt. No. 59, ¶ 4). The Court will allow School District
to file the amended appeal to supplement its original appeals
with record cites. For this reason, the Court grants School
District’s motion for leave to file first amended
appeal of final administrative decision (Dkt. No. 58). School
District will have 10 days from the date of this Order to
file their proposed amended appeal. The Court made its
determination on the pending appeal of final administrative
decision and appeal of final administrative decision in Case
No. H-18-22 after reviewing School District’s proposed
following reasons, the Court denies School District’s
appeals and affirms the Hearing Officer’s Final
Decisions and Orders in the expedited due process hearing
conducted in Case No. EH-18-23 and the due process hearing
conducted in Case No. H-18-22 (Dkt. Nos. 31, 51).
March 13, 2018, Parents filed a due process complaint notice
with the Arkansas Department of Education
(“ADE”), designated as ADE Special Education Unit
Case No. H-18-22. On March 23, 2018, School District filed a
response to Parents’ due process complaint and an
expedited due process complaint notice with the ADE,
requesting a change in placement for A.R.S. as a
counter-complaint to Parent’s complaint, designated as
ADE Special Education Unit Case No. EH-18-23.
April 11, 2018, this Court entered an Order granting School
District’s request for a preliminary injunction until
the ADE due process hearing officer issued his order
finalizing A.R.S.’s long-term placement through the
administrative review process or until further Order of this
Court, whichever occurred first (Dkt. No. 20, at 46). This
Court’s Order also placed A.R.S. on home-bound setting
where School District was to provide a staff member to
educate A.R.S. at an appropriate location until
A.R.S.’s long-term placement could be finalized through
the administrative review process of the IDEA, or, if Parents
preferred, A.R.S. be placed in a day treatment facility until
A.R.S.’s long-term placement could be finalized through
the IDEA’s administrative review process
morning of April 12, 2018, the state hearing officer, Robert
B. Doyle, Ph.D., held the expedited due process hearing.
Immediately after the conclusion of the expedited due process
hearing, Dr. Doyle started the regular due process hearing
that took place on April 12, 13, and 26, 2018.
April 16, 2018, School District filed a motion to compel
compliance with subpoena and motion for protective order
(Dkt. Nos. 21, 23). On April 23, 2018, this Court entered an
Order denying without prejudice both of School
District’s motions (Dkt. No. 29).
expedited due process complaint, pursuant to 20 U.S.C. §
1415(k), School District requested a change of placement of
A.R.S. to an appropriate interim alternative educational
setting for not more than 45 school days because maintaining
the current placement of A.R.S. was substantially likely to
result in injury to A.R.S. or to others (School
District’s Response, at 8-9). On April 27, 2018,
Parents filed a notice of final decision from expedited due
process hearing (Dkt. No. 30).
Final Decision and Order entered on April 27, 2018, the
Hearing Officer ordered the following relief:
1. The District will immediately upon receipt of this order
notify the Parents and the Student that he will be receiving
his special education services at the previously agreed upon
location as contained in his amended [individualized
education plan (“IEP”)] of October 25, 2017.
2. The District will immediately upon receipt of this order,
but no later than April 30, 2018, schedule an IEP conference
to be held at a time and place agreeable to the Parents and
the Department's Brain Injury Consultant. The purpose of
the conference will be to determine the most appropriate and
least restrictive environment in which to provide the
Student's special educational needs, including any
necessary supports and related services as dictated by his
qualifying disability of Traumatic Brain Injury.
(Dkt. No. 30-1, at 18-19). On April 30, 2018, School District
filed with this Court an appeal of the final administrative
decision (Dkt. No. 31). Parents answered the appeal and filed
a counterclaim (Dkt. No. 34).
regular due process complaint, Parents requested:
1. The Parents be entitled to place [A.R.S.] in a private
school placement at District expense or Compensatory Special
Education and Related Service for the denial of Free
Appropriate Public Education.
2. The development of an appropriate IEP to be implemented in
the Least Restrictive Environment, specifically to include a
Functional Behavior Assessment, Behavioral Intervention Plan,
individualized instructional program to address
[A.R.S.’s] TBI deficits and depression and their impact
on his academic achievement, social skills training, and
teaching strategies to address [A.R.S.’s] behavioral
and emotional dysfunction and to provide opportunities for
rehabilitation with and interaction with [A.R.S.’s]
non-disabled peers. . . .
(Parents’ Due Process Complaint, at 13).
14, 2018, this Court entered an Order granting the
Parents’ motion for a preliminary injunction requiring
School District to comply with the Final Decision and Order
from the expedited due process hearing entered on April 27,
2018, by Dr. Doyle, at least until such time as this Court
resolved the pending appeal of final administrative decision
or until further Order of this Court, whichever occurs first
(Dkt. No. 42). In that Order, this Court also ordered the
parties to provide a status report on May 24, 2018, the last
day of school for the Vilonia School District (Id.,
at 16). Both parties filed a status reported on May 24, 2018,
and School District filed a response to the Parents’
status report on June 1, 2018 (Dkt. Nos. 45, 46, 50).
25, 2018, Dr. Doyle entered the Final Decision and Order
regarding the regular due process hearing, ordering the
1. The District will immediately upon receipt of this order
implement the order as directed in the final decision of the
expedited hearing on placement. . .
2. If the above order has not been implemented the date for
completion of the action as ordered in [the second part of
the relief ordered in the expedited due process hearing] will
be implemented no later than June 15, 2018.
3. The District will upon receipt of this order make
arrangements to provide the Student with sufficient
compensatory special education services to provide him with
the opportunity to obtain the equivalent credits towards
graduation as expected of other ninth grade students in the
4. The District will upon receipt of the order, but no later
than August 1, 2018, make arrangements to provide teaching
strategies to teachers as well as other support staff through
the Department’s CIRCUIT process.
5. The District will upon receipt of this order, if not
having already done so, will no later than August 1, 2018,
make arrangements for the Student to receive an occupational
6. Finally, the District will within one month of the
beginning of school year 2019-20 conduct a functional
behavior assessment to determine the need for behavior
interventions and the development of an appropriate IEP with
the assistance and guidance of a behavior expert as agreed to
by the Parents.
(HO Regular Due Process Final Decision and Order, at 46-47).
August 20, 2018, School District filed an appeal of final
administrative decision in ADE Special Education Unit Case
No. H-18-22 (Dkt. No. 51). Parents answered the appeal (Dkt
Court included a detailed account of the facts and procedural
background of this case in the Orders from April 11 and May
14, 2018 (Dkt. Nos. 20, 42). The Court will not repeat it
here. Based on the parties’ status reports and response
to the status report, the relevant factual background in this
case has continued to evolve since the Court’s Order
from May 14, 2018 (Dkt. Nos. 45, 46, 50).
to School District’s and Parents’ status reports
and School District’s response to Parents’ status
report, the parties agree to the following facts concerning
A.R.S.’s return to Vilonia Freshman Academy. A.R.S.
returned to Vilonia Freshman Academy at the scheduled time on
May 16, 2018 (Dkt. Nos. 46, ¶ 1; 50, ¶ 1). On that
same day, an IEP meeting was held to determine A.R.S.’s
education placement and schedule for May 17-24, 2018 (Dkt.
Nos. 46, ¶ 2; 50, ¶ 2). A.R.S. underwent various
testing for the next three days (Dkt. Nos. 46, ¶ 3; 50,
¶ 3). A.R.S.’s last day at school was May 22,
2018, and he did not report to school for his final day of
to Parents’ status report, at the May 16, 2018, IEP
meeting, “[n]o other plans were made or have been made
. . . for a Summer Program or any educational services to be
provided to A.R.S.” (Dkt. No. 46, ¶ 2). Parents
assert that A.R.S. did not attend the final day of school
“[d]ue to the actions of the District . . . .”
(Id., ¶ 3). Parents further assert that
“[w]hile refusing to allow A.R.S. to be placed in an
appropriate residential facility as recommended by the
[Traumatic Brain Injury (“TBI”)] Consultant since
March 26, 2018, the District has intentionally disobeyed the
ADE Hearing Officer’s Orders and this Court’s
Order in providing any educational services to A.R.S.”
(Id., ¶ 4). Parents also assert that School
District “has intentionally created a hostile
environment-thereby making it impossible for A.R.S. to return
to the District-despite his right to do.”
(Id.). In support of this assertion, Parents
attached as exhibits to their status upDated: social media
posts allegedly made by a School District employee regarding
this case; School District’s Social Networking and
Ethics policy; a declaration from A.R.S.’s mother that
School District has failed to provide educational services
and School District personnel ridiculed A.R.S. by telling him
about news articles written about the case; and a local
newspaper article that allegedly contains confidential
information that the School District Superintendent and local
police gave to the press (Dkt. No. 46, Exs. A-D). School
District denies the above allegations from Parents’
status report (Dkt. No. 50, ¶¶ 2-6)
to School District’s response to Parents’ status
report, “the parties agreed that a speech language
evaluation and executive functioning assessments would be
conducted over the summer to inform decisions on
A.R.S.’s programming and placement for the 2018-2019
school year, all of which would be discussed and finalized at
another IEP meeting prior to the start of the 2018-2019
school year.” (Dkt. No. 50, ¶ 2). School District
also asserts that the parties discussed whether A.R.S. should
repeat the ninth grade, and School District “asked the
Parents to consider the use of credit recovery classes (to be
taught by a special education teacher with experience in
traumatic brain injury) to make up for the credits not
received in the spring semester of the 2017-2018 school
year.” (Id.). School District further asserts
that “it has communicated on numerous times to
Defendants since March 2, 2018, that it stood ready, willing
and available to provide homebound services to A.R.S. or to
facilitate admission to a day treatment program to serve
A.R.S.” (Id., ¶ 4). School District also
asserts that Parents “have rejected the provision of
day treatment services and failed to provide the District
with the dates or locations at which A.R.S. would be made
available for the District to provide homebound services to
A.R.S.” (Id.). Finally, School District
asserts that “it has not released confidential
information, and that the views expressed in the social media
posts are solely those of the author of the posts in his
personal capacity and do not in any way represent the views
of the District . . . .” (Id., ¶ 5).
Standard Of Review
IDEA 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).
judges are not trained educators, judicial review under the
IDEA is limited.” E.S. v. Indep. Sch. Dist., No.
196 Rosemount-Apple Valley, 135 F.3d 566, 569 (8th Cir.
1998). In actions brought under the IDEA, 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
Eighth Circuit has explained that a district court’s
role in reviewing a claim brought under the IDEA 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 A.R.S. 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. (quoting Indep.
Scho. Dist. No. 283 v. S.D. by J.D., 88 F.3d 556, 561
(8th Cir. 1996)). 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.
Mo. State Bd. of Educ., 210 F.3d 954, 958 (8th Cir.
2000). Further, the party challenging the outcome of the
state administrative hearing bears the burden of proof.
E.S., 135 F.3d at 569; Bd. of Educ. of Cmty.
Consol. Sch. Dist. No. 21 v. Ill. State Bd. of Educ.,
938 F.2d 712, 716 (7th Cir. 1991).
Relevant IDEA Provisions
Hearing Officer’s Final Decision and Order in the
expedited due process hearing, he denied School
District’s request for a change of placement of A.R.S.
to an appropriate interim alternative educational setting for
not more than 45 school days under 20 U.S.C. §
1415(k)(3)(B). That section of the IDEA states in pertinent
(B) Authority of hearing officer
(i) In general: A hearing officer shall hear, and make a
determination regarding, an appeal requested under
(ii) Change of placement order: In making the determination
under clause (i), the hearing officer may order a change in
placement of a child with a disability. In such situations,
the hearing officer may:
(I) return a child with a disability to the placement from
which the child was removed; or
(II) order a change in placement of a child with a disability
to an appropriate interim alternative educational setting for
not more than 45 school days if the hearing officer
determines that maintaining the current placement of such
child is substantially likely to result in injury to the
child or to others.
20 U.S.C. § 1415(k)(3)(B).
Hearing Officer’s Final Decision and Order from the due
process hearing, he determined that School District failed to
provide A.R.S. with a free appropriate public education (HO
Regular Due Process Final Decision and Order, at 45).
IDEA requires local agencies to provide students with
disabilities a free appropriate public education. Lathrop
R-11 Sch. Dist. v. Gray, 611 F.3d 419, 424 (8th Cir.
2010). The primary tool for implementing the aims of the IDEA
is the individualized education plan (“IEP”),
which “tailor[s] the statutorily required ‘free
appropriate public education’ to each ...