Vilonia School District v. M.S.

          ORDER

          Kristine G. Baker, United States District Judge.

         Before 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).

         Also 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 amended appeal.

         For the 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).

         I. Procedural Background

         On 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.

         On 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 (Id.).

         On the 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.

         On 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).

         In the 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).

         In the 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).

         In the 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).

         On May 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).

         On May 25, 2018, Dr. Doyle entered the Final Decision and Order regarding the regular due process hearing, ordering the following relief:

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 District.

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 therapy evaluation.

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).

         On 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 No. 55).

         II. Factual Background

         The 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).

         According 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 class (Id.).

         According 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)

         According 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).

         III. Standard Of Review

         The 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).

         “Because 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 proceedings.”).

         The 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).

         IV. Relevant IDEA Provisions

         In the 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 part:

(B) Authority of hearing officer

(i) In general: A hearing officer shall hear, and make a determination regarding, an appeal requested under subparagraph (A).

(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).

         In the 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).

         The 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 ...