Albright v. Mountain Home School District

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HARRISON DIVISION

JACQUIE ALBRIGHT, Individually, and as

Parent and Next Friend of T PLAINTIFF

V. CASE NO. 3:17-CV-3075

MOUNTAIN HOME SCHOOL DISTRICT DEFENDANT

OPINION AND ORDER

Currently before the Court are Plaintiff Jacquie Albright’s Motion for Judgment on

the Record (Doc. 25) and Memorandum Brief (Doc. 26) in Support, Defendant Mountain

Home School District’s (“the District”) Response (Doc. 33), and Ms. Albright’s Reply (Doc.

36). For the reasons given below, Ms. Albright’s Motion is DENIED, and her Complaint

is DISMISSED WITH PREJUDICE.

This case is the latest in a series of lawsuits between Ms. Albright, on behalf of her

disabled child, and the District, where her child is enrolled as a student. (Ms. Albright's

child will be referred to as “Student” throughout this Opinion and Order.) Of those

lawsuits, this is the second one to make it into federal court; the other four all appear to

have been resolved at the state administrative level, whether through settlement or

dismissal. The previous federal lawsuit (“Albright I’) was heard in this Court and ultimately

resolved on summary judgment in the District’s favor. See Albright I, 2017 WL 2880853

(W.D. Ark. July 5, 2017). That ruling is currently on appeal in the Eighth Circuit.

This case, as with Albright |, involves claims brought under the Individuals with

Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 ef seg. As the Court explained in

Albright |, the IDEA requires that:

1 .

[T]he District must provide [Student] with a free appropriate public education

(“FAPE”), id. at § 1412(a)(1), which includes special education and related

services in conformity with an individualized education program (“IEP”), id.

at § 1401(9)(D). The IDEA sets out a process by which teachers, school

officials, and a child’s parents should collaborate to draft an IEP that fits the

child’s unique needs. See id. at § 1414(d)(1)(B).

When a parent disagrees with other members of the IEP team over what

the IEP should include, the parties may attempt to resolve the

disagreement, either through a “preliminary meeting” or through mediation.

Id. at §§ 1415(e), (f}(1)(B)(i). If unsuccessful, then the parent may file a

complaint with the Arkansas Department of Education to initiate a “due

process hearing.” See id. at § 1415(f)(1)(A). Following the Hearing Officer's

decision, the losing party may appeal it by filing a lawsuit in federal court.

See id. at § 1415(i)(2)(A). And that is what happened here.

Albright |, 2017 WL 2880853, at *1.

Albright | concerned whether Student was denied a FAPE between November 15,

2013 and October 17, 2014. See id. at *2. This Court affirmed the Hearing Officer's

decision in Albright |, ruling that Student was not denied a FAPE during that time period.

See id. at *4. The instant case picks up where Albright ! left off, and concerns the time

period from October 18, 2014 through October 7, 2016. Here, as in Albright !, Ms. Albright

is the appellant, following a finding by the Hearing Officer that Student was not denied a

FAPE during the relevant time period.

When a federal district court is asked to review the Hearing Officer's decision, the

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.” K.E. ex rel. K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795,

803 (8th Cir. 2011) (quoting 20 U.S.C. § 1415(i)(2)(C)) (alterations in original). In so

doing, this Court “must independently determine whether the child in question has

received a FAPE,” while also giving “due weight to agency decision-making” since the

Hearing Officer “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 reviews.” See id. (internal alterations and.

quotation marks omitted). The centerpiece of a FAPE is the IEP. See Honig v. Doe, 484

U.S. 305, 311 (1988). “When reviewing a school district's compliance with the IDEA, a

_ district court must engage in a two-part inquiry: It must first determine whether the school

district followed the procedures set forth in the IDEA,” K.E., 647 F.3d at 804, and then it

- must determine whether the IEP was “reasonably calculated to enable a child to make

progress appropriate in light of the child’s circumstances,” Endrew F. ex rel. Joseph F-. v.

Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001 (2017); see also K.E., 647 F.3d at

804, “If these requirements are met, the school district has complied with the obligations

imposed by Congress and the courts can require no more.” K.E., 647 F.3d at 804 (quoting

Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)) (internal alterations omitted). However,

even if a school district failed in some manner to follow the procedures set forth in the

IDEA, the reviewing court should not set aside the IEP unless “the procedural

inadequacies compromised the pupil’s right to an appropriate education, seriously

hampered the parent's opportunity to participate in the formulation process, or caused a

deprivation of educational benefits.” See id. at 804-05 (quoting Sch. Bd. of Indep. Sch.

Dist. No. 11 v. Renollett, 440 F.3d 1007, 1011 (8th Cir. 2006)) (internal alterations

omitted).

Ms. Albright’s Brief identifies a litany of alleged procedural violations, which she

contends cumulatively amount to a substantive denial of a FAPE for Student. See R.E.

v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 190 (2d Cir. 2012) (“Multiple procedural violations

may cumulatively result in the denial of a FAPE even if the violations considered

individually do not.”). All of those alleged procedural violations appear to relate in some

way or another to the issue of whether Student should have received a new functional

behavioral assessment (“FBA”) and whether Student’s IEP should have included a new

behavioral intervention plan (“BIP”), to deal with maladaptive behaviors that Student was

exhibiting at school.

The Court would first observe that the District was not required under the IDEA to

conduct a new FBA or to include a new BIP in Student’s IEP, because Student was never □

‘removed from her then-current educational placement for more than ten school days for

misbehavior that was a manifestation of her disability, see 34 C.F.R. § 300.530(f)(1), and

was never placed in an alternative educational placement due to behavior involving

weapons, drugs, or the infliction of serious bodily injury on another person, see 34 C.F.R.

§ 300.530(g). Rather, the IEP team was simply required to “consider the use of positive

behavioral interventions and supports, and other strategies” to address Student's

behavior, to the extent that Student's behavior “impede[d] the child’s learning or that of

others.” See 20 U.S.C. § 1414(d)(3)(B)(i) (emphasis added). So to the extent that Ms.

Albright alleges it was a procedural violation for the District not to conduct a new FBA or

develop a BIP, see, e.g., Doc. 26, pp. 16, 18, the Court believes she is incorrect.

Student's IEPs for the 2015-16 and 2016-17 school years stated that Student's

behavior was not impeding her learning. See AR3045, AR3255.' Ms. Albright contends

that these statements were incorrect, and that their wrongness constitutes a procedural

1 This Opinion and Order's citations to the administrative record will take the form of

“AR[page number].”

4 .

violation of the IDEA. See Doc. 26, pp. 14, 20. She bases this allegation on daily

observation notes that the District provided her, which documented, among other things,

various instances of misbehavior on the part of Student such as throwing things, climbing

on equipment, screaming, and banging her head on a table. See id. at 13, 18-19. Thus,

she infers the District “was not harvesting data from these notes. that could be used to

measure progress toward behavior goals,” which she says constitutes an additional

procedural violation of the IDEA. See id.

But this ignores the fact that prior to development of Student's 2015-16 IEP, Ms.

Albright rejected the District's proposal that a Board Certified Behavior Analyst named

Susanne Belk conduct an FBA and develop a BIP for Student. See AR3239. A school

district “[mJust obtain informed parental consent . . . prior to conducting any reevaluation

of a child with a disability.” See 34 C.F.R. § 300.300(c)(1)(i). However, Ms. Albright

contends that the District “used Parent’s refusal to consent to Belk conducting the FBA

as an excuse to . . . argue the Parent prevented them from conducting an FBA or

approving a BIP they secretly didn’t feel was needed and never intended to do,” and that

this too was a procedural violation of the IDEA. See Doc. 26, p. 17 (emphasis in original).

But this ignores the fact that the District then went ahead and had Ms. Belk conduct an

evaluation and prepare a report anyway, complete with recommendations for behavior

management. See AR3151-57. However, Ms. Albright contends that this too was a

procedural violation, because she alleges the District did not follow the proper “consent

override” procedures by pursuing mediation or filing a due process complaint. See 34

C.F.R. § 300.300(a)(3)(i); Doc. 26, p. 18. Finally, and relatedly, Ms. Albright argues that

the District committed a procedural violation of the IDEA by declining to employ “consent

override” procedures to include an FBA and BIP in Student’s FAPE over and against Ms.

Albright’s consent.2 See Doc. 26, pp. 20-21.

Although the Court initially set a hearing to be held on these matters on November

6, 2018, the Court has determined now that the record is already sufficiently clear to

enable it to rule without receiving any further oral argument. The Court finds that none of

the alleged procedural violations, except possibly one, are supported by a preponderance

of the evidence in the administrative record. Rather, it is very clear from the record that

the District regularly provided Ms. Albright notice of IEP meetings, was in nearly constant

communication with Ms. Albright about Student's behavioral issues, and that Ms. Albright

refused to consent to an FBA proposed by the District. And even if it was a procedural

violation for the District to have Ms. Belk eventually conduct an evaluation of Student over

Ms. Albright’s wishes without first filing a formal due process complaint, the Court finds

that this procedural shortcoming made no substantive difference in the end; such a due

process complaint surely would have resulted in a ruling favorable to the District on the

matter, because “[e]very court to consider the IDEA’s reevaluation requirements has

2 It is a rare and perhaps altogether unique occasion for the undersigned to preside over

a lawsuit in which a plaintiff complains of a defendant's decision not to sue the plaintiff.

In Albright | this Court noted the existence of “a long history of bad blood” between these

parties, see 2017 WL 2880853, at *2, as well as the “profoundly toxic lack of trust”

between them, see id. at *4. The Court also observed in that case that “[iJt is also

undoubtedly true that Ms. Albright disagrees with other members of [Student]’s IEP team

about what [Student]’s true academic potential is.” See id. The Court would echo all of

those observations again now. The Court is left with the distinct impression that literally

the only way the District could have avoided this lawsuit would have been to turn the IEP

team effectively into a team of one—consisting solely of Ms. Albright—and to consent -

every single respect, whether material or immaterial, to Ms. Albright’s IEP wishes. But

that is not what the IDEA requires. Rather, an IEP team must include not only the parents

of the child with a disability, but also educators and school officials, along with other

individuals, see 20 U.S.C. § 1414(d)(1)(B), and “collaboration between IEP Team

members’ is an explicit goal of the IDEA, see id. at § 1414(d)(5)(B)(iv).

concluded if a student's parents want [her] to receive special education under IDEA, they

must allow the school itself to reevaluate the student and they cannot force the school to

rely solely on an independent evaluation.” G.J. v. Muscogee Cnty. Sch. Dist., 668 F.3d

1258, 1263-64 (11th Cir. 2012). Thus, the Court finds by a preponderance of the

evidence that any such procedural inadequacy did not “compromise[] the pupil’s right to

an appropriate education, seriously hamper|] the parent’s opportunity to participate in the

[IEP] formulation process, or cause[] a deprivation of educational benefits.” K.E. ex rel.

K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 804-05 (8th Cir. 2011).

The Court further finds by a preponderance of the evidence that Student's IEPs

during the relevant period were “reasonably calculated to enable [Student] to make

progress appropriate in light of the child’s circumstances,” Endrew F. ex rel. Joseph F. v.

Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001 (2017), especially given the evidence

in the record that Student “made great progress . . . in the areas of syntax, grammar, play

and [leisure], social interaction, group instruction, classroom routines, [generalized]

responding, reading and math,” see AR3296, and in light of Ms. Belk’s testimony about

the social skills training that Student received during the relevant period, see AR 1348—

54, and her report's recommendation that Student “[cjontinue with [her] current behavior

management plan,” see AR 3156.

IT IS THEREFORE ORDERED that Plaintiff Jacquie Albright’s Motion for

Judgment on the Record (Doc. 25) is DENIED, and her Complaint (Doc. 1) is DISMISSED

WITH PREJUDICE. Judgment will enter contemporaneously with this Order.

IT IS SO ORDERED on this So day of ber, 2018.

“TAMOT BROOKS

4 -UNIP STATES DISTRICT JUDGE