Larry Hansen v. Republic R-III School District
Filing
OPINION FILED - THE COURT: RAYMOND W. GRUENDER, MYRON H. BRIGHT and BOBBY E. SHEPHERD. Bobby E. Shepherd, Authoring Judge (PUBLISHED), CONCUR BY: RAYMOND W. GRUENDER [3746986] [10-1514]
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1514
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Larry Hansen,
on behalf of J.H., a minor,
Appellee,
v.
Republic R-III School District,
Appellant.
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* Appeal from the United States
* District Court for the
* Western District of Missouri.
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Submitted: September 21, 2010
Filed: January 21, 2011
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Before GRUENDER, BRIGHT, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
This case presents the issue of whether J.H., a student at Republic R-III School
District, is eligible for special education benefits under the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1482. After Republic’s
administrative panel concluded that J.H. was not eligible, Larry Hansen, J.H.’s father,
challenged the decision in the district court.1 Hansen and Republic filed cross motions
1
The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
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for judgment on the administrative record, which the district court resolved in favor
of Hansen. Republic appeals the district court’s order, and we affirm.
I.
The administrative record reflects that J.H., a ninth-grade student at Republic,
struggles socially and academically at school. He has been diagnosed with conduct
disorder, bipolar disorder, and attention deficit hyperactivity disorder (ADHD). Since
he began attending Republic in the fifth grade, J.H. has been suspended numerous
times for threatening his classmates and teachers, has made suicidal comments on
multiple occasions, and has consistently performed poorly in his classes and on
standardized tests.
At the end of J.H.’s fifth-grade year, Hansen initiated proceedings under the
IDEA seeking special education services for J.H. He made a formal request with
Republic for an eligibility evaluation, and when Republic determined J.H. did not
qualify, Hansen exercised his statutory right to challenge the decision at an
administrative due process hearing. The hearing was conducted before Republic’s
Due Process Panel. After Hansen presented his case, Republic elected not to offer
evidence and, relying on Hansen’s submissions, moved for a directed verdict. The
panel granted Republic’s motion and issued a one paragraph opinion, concluding as
a matter of law that J.H. did not qualify for special education services under the IDEA.
Hansen sought judicial review of the panel’s decision in the district court under
section 1415(i)(2) of the IDEA. Both Hansen and Republic filed motions for
judgment on the administrative record. Based on the evidence in the record, the
district court held that J.H. was disabled as defined by the IDEA and thus eligible for
special education benefits. Republic appeals, asserting that the district court erred in
holding that J.H. meets the statutory definition of a “child with a disability” based on
the facts in the administrative record and, alternatively, that the district court erred in
failing to remand the case to the panel for additional proceedings sua sponte.
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II.
Republic first argues that J.H. does not meet the statutory definition of a “child
with a disability” based on the facts in the administrative record. The IDEA provides
procedural safeguards to parents and guardians seeking to enforce a disabled child’s
right to a “free appropriate public education.” See 20 U.S.C. §§ 1412 (a)(1)(A), 1415.
One of those procedural safeguards is the right to bring a civil action to challenge the
result of a due process hearing conducted pursuant to the statute. Id. § 1415(i)(2). In
lawsuits filed under section 1415(i)(2), the district court is required to receive the
records of the administrative proceedings, hear additional evidence at the request of
a party, and independently determine the appropriate relief based on a preponderance
of the evidence. 20 U.S.C. § 1415(i)(2)(C); Yankton Sch. Dist. v. Schramm, 93 F.3d
1369, 1373 (8th Cir. 1996).
Although the district court makes an independent determination as to the
appropriate relief, it must give due weight to the factual findings of the administrative
panel, Yankton Sch. Dist., 93 F.3d at 1376 n.6, and refrain from substituting its own
judgment as to educational policy for that of school authorities. Indep. Sch. Dist. No.
283 v. S.D., 88 F.3d 556, 561 (8th Cir. 1996). Here, however, the panel’s decision
reflected neither factual findings nor educational policy decisions. The panel
determined only that J.H. was ineligible for special education services as a matter of
law based on the facts presented in Hansen’s case-in-chief. Moreover, the parties did
not seek to present additional evidence to the district court and did not dispute the
underlying facts as to J.H.’s diagnosis, symptoms, behavior, and academic
performance. Instead, the parties filed cross motions for judgment on the
administrative record, disputing only the legal conclusion to be drawn from the facts
in the record. Accordingly, the district court was free to consider the panel’s legal
conclusions de novo. See Marshall Joint Sch. Dist. No. 2 v. C.D., 616 F.3d 632, 636
(7th Cir. 2010); Muller v. Comm. on Special Educ. of the East Islip Union Free Sch.
Dist., 145 F.3d 95, 102 (2d Cir. 1998). Likewise, we review the district court’s legal
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conclusion based on the administrative record de novo.2 Pachl v. Seagren, 453 F.3d
1064, 1068 (8th Cir. 2006).
In order to be eligible for special education services under the IDEA, a student
must first be a “child with a disability” as defined in section 1401(3). The statute
provides 13 categories of eligibility, and Hansen argues that J.H. meets the statutory
definition of the “emotional disturbance” and “other health impairment” categories.
20 U.S.C. § 1401(3)(A)(i).
We agree with the district court’s conclusion that J.H. meets the eligibility
requirements for “emotional disturbance” under the IDEA. The Code of Federal
Regulations provides that “emotional disturbance” means a condition exhibiting at
least one of five listed characteristics “over a long period of time and to a marked
degree that adversely affects a child’s educational performance.” 34 C.F.R.
§ 300.8(c)(4)(i). Children who are only “socially maladjusted” and fail to exhibit at
least one of the five provided characteristics do not qualify. Id. § 300.8(c)(4)(ii).
Hansen argues that J.H. suffers from bipolar disorder and exhibits an “inability to
build or maintain satisfactory interpersonal relationships with peers and teachers,”
which adversely affects his educational performance. Id. § 300.8(c)(4)(i)(B).
Republic contends that J.H. is primarily socially maladjusted rather than emotionally
disturbed.
Although this Circuit has not been called upon to define “emotional
disturbance,” a Fourth Circuit case is informative. In Springer v. Fairfax County
School Board, 134 F.3d 659 (4th Cir. 1998), the student at issue was found to be
merely socially maladjusted rather than emotionally disturbed. The evidence showed
that the student had progressed successfully from grade to grade, had maintained
2
Although the parties assert that we review the district court’s findings of fact
for clear error, the clear error standard of review is not implicated here because we
review only the district court’s legal conclusion.
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positive relationships with teachers and peers, and had participated in extracurricular
activities until the eleventh grade when he began stealing, sneaking out of his house,
skipping school, and using marijuana and alcohol. Id. at 661. At that point, the
student continued to score in the average to superior range on standardized tests, but
his grades suffered due to skipping class and failing to complete assignments. Id.
Additionally, “the overwhelming consensus” among the psychologists who examined
the student was that he did not suffer from an emotional disturbance. Id. at 665.
In contrast, J.H. received numerous disciplinary referrals over a four-year
period for threatening students and teachers, fighting with other students, and treating
his peers and teachers with disrespect. After working with J.H., Republic’s schoolbased mental health clinician, Peggy DeFazio, described him as socially unsuccessful
due to his limited social skills and terminated their relationship because he threatened
her. Unlike the student in Springer who started to fail his courses because he skipped
class and refused to turn in assignments but continued to perform above average on
standardized tests, J.H. consistently struggled to pass his classes, failed the
standardized test he was required to pass for advancement to the seventh grade, and
suffered academically because of his diagnosed bipolar disorder.
In support of its argument that J.H. did not exhibit an inability to build or
maintain satisfactory interpersonal relationships, Republic cites the testimony of its
director of special services, Matt White, who stated that J.H. did well with some
teachers but not well with others. However, White based his opinion on behavior
reports and had no personal interactions with J.H.
We also agree with the district court’s conclusion that J.H. meets the eligibility
requirements for “other health impairment” under the IDEA. The Code of Federal
Regulations provides:
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Other health impairment means having limited strength, vitality,
or alertness, including a heightened alertness to environmental stimuli,
that results in limited alertness with respect to the educational
environment, that—
(i) Is due to chronic or acute health problems such as . . . attention deficit
hyperactivity disorder . . . ; and
(ii) Adversely affects a child’s educational performance.
34 C.F.R. § 300.8(c)(9). Hansen argues that J.H.’s inability to focus and hyperactive
behavior results from ADHD and adversely affects his educational performance.
Republic contends that the evidence does not support a conclusive diagnosis of
ADHD and that a diagnosis of ADHD alone does not entitle J.H. to special education
services.
We agree with the district court that the administrative record supports the
conclusion that J.H.’s educational performance is adversely affected by ADHD. First,
the record reflects that J.H. was diagnosed with ADHD. J.H.’s treating psychiatrist,
Dr. Colby Wang, diagnosed ADHD and prescribed medication for the disorder. The
psychologist who first evaluated J.H., Dr. Anna Hertel, and the school’s psychologist,
Dr. Brian Petrovich, each gave a rule-out diagnosis3 for ADHD. Defazio also found
J.H.’s hyperactive, impulsive, and inattentive behavior to be consistent with ADHD.
Second, the record reflects that J.H.’s educational performance is adversely
affected by ADHD. J.H.’s tutor, Renee Doubleday, testified that J.H. had difficulty
focusing during tutoring sessions and that his concentration improved after J.H. began
taking the ADHD medication prescribed by Dr. Wang. Defazio similarly found that
3
A “rule-out” diagnosis, according to Dr. Hertel’s testimony, means the patient
meets some criteria for the disorder, but the doctor needs more information to rule it
out and would not be comfortable diagnosing it at that time. Dr. Hertel stated, “The
rule-out does not mean the person does not have the disorder. When you give it as a
rule-out, it means there’s a very good likelihood the person has the disorder.”
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J.H.’s hyperactive, impulsive, and inattentive behavior severely impaired his ability
to learn. Further, J.H. initially failed the standardized test required for advancement
to the seventh grade but passed when allowed to retake the test on ADHD medication.
Although Republic correctly states that a diagnosis of ADHD alone does not entitle
J.H. to special education services, it fails to cite any evidence in the record supporting
the conclusion that ADHD does not adversely affect J.H.’s educational performance.
Republic alternatively argues that the district court erred in failing to remand
the case to the panel sua sponte with instructions to make the factual findings that
were absent from the panel’s initial decision. We decline to address this argument
because it was raised for the first time on appeal. Ryder v. Morris, 752 F.2d 327, 332
(8th Cir. 1985).
Based on the undisputed facts in the administrative record, J.H. meets the
statutory definition of a “child with a disability” under the IDEA. Accordingly, we
affirm the district court’s order granting Hansen’s motion for judgment on the
administrative record.
GRUENDER, Circuit Judge, concurring in the judgment.
I agree with the district court that the record supports the conclusion that J.H.
is a “child with a disability” under the IDEA, 20 U.S.C. § 1401(3), because he suffers
from an “other health impairment,” and, therefore, I concur in the judgment affirming
the district court. Nevertheless, I disagree with the court’s analysis to the extent that
it accords no deference whatsoever to the underlying administrative decision of the
Due Process Panel. Applying the proper standard, I also disagree with the court’s
conclusion that J.H. suffers from “serious emotional disturbance.”
While review of an administrative decision under the IDEA is not as deferential
as the well-known “substantial evidence test that courts ordinarily apply in federal
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administrative law cases,” courts are instructed to give “due weight” to the
proceedings of the Due Process Panel and may not “substitute their own notions of
sound educational policy for those of the school authorities which they review.”
Blackmon ex rel. Blackmon v. Springfield R-XII Sch. Dist., 198 F.3d 648, 654-55 (8th
Cir. 1999) (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester
Cnty. v. Rowley, 458 U.S. 176, 206 (1982)). The court holds that the “due weight”
standard does not apply in this case because the Due Process Panel made “neither
factual findings nor educational policy decisions.” Ante at 3. To the contrary, while
the Panel may not have provided detailed findings of fact, its decision to deny IDEA
services to J.H. surely falls within the ambit of educational policy. In any event, the
principle of affording due weight to a Due Process Panel’s decision is not premised
narrowly on the presence of express findings of fact. See Rowley, 458 U.S. at 206
(“The fact that § 1415(e) requires that the reviewing court ‘receive the records of the
[state] administrative proceedings’ carries with it the implied requirement that due
weight shall be given to these proceedings.” (emphasis added)); Lathrop R-II Sch.
Dist. v. Gray ex. rel. D.G., 611 F.3d 419, 423 (8th Cir. 2010) (“[T]he district court
must accord due weight to the administrative panel’s decision.” (emphasis added)).
Therefore, I would conclude that the court should have afforded due weight to the Due
Process Panel’s decision.
With regard to our standard of review of the district court’s decision, I agree
with the court that de novo review is appropriate, although I reach that conclusion by
a different path. The court indicates that the district court merely drew legal
conclusions from settled facts in the administrative record. I disagree. Before
reaching its ultimate legal conclusion that J.H. suffers from a “serious emotional
disturbance” and from an “other health impairment,” the district court necessarily
resolved several underlying factual questions from conflicting evidence in the
administrative record. For example, the district court’s findings that “JH was unable
to build and maintain satisfactory interpersonal relationships” and “JH suffered
from . . . ADHD,” Hansen v. Republic R-III Sch. Dist., No. 09-3119, slip op. at 6, 9
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(W.D. Mo. Feb. 5, 2010), can only be characterized as factual findings because the
record contains evidence to the contrary on both points. Because the district court
heard no new evidence and made its determinations after reviewing only the record
of the Due Process Panel proceeding, however, I conclude that de novo review is
appropriate for the district court’s factual findings as well. See JH ex rel. JD and SS
v. Henrico Cnty. Sch. Bd., 326 F.3d 560, 566 (4th Cir. 2003) (“[W]e need not defer
to factual recitations made by a district court from the administrative record, because
that court stands in no better position than do we in reviewing the record.” (quoting
MM ex rel. DM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523, 530-31 (4th Cir.
2002))); see also Reaves v. Mo. Dep’t of Elementary & Secondary Educ., 422 F.3d
675, 681 (8th Cir. 2005) (“[W]here the district court received no new evidence and
made no independent factual findings, we conclude that the de novo review of the
district court is appropriate.”).
The existence of conflicting testimony in the administrative record on key
points serves to illustrate that due weight should be given to the Due Process Panel’s
decision because “the administrative panel had an opportunity to observe the
demeanor of the witnesses.” Lathrop R-II, 611 F.3d at 427 (quoting Strawn v. Mo.
State Bd. of Educ., 210 F.3d 954, 958 (8th Cir. 2000)). Affording due weight to the
Due Process Panel’s decision, I come to a different conclusion than the court on the
question of whether a preponderance of the record evidence supports the finding that
J.H. suffers from “serious emotional disturbance” because he displays an “inability
to build or maintain satisfactory interpersonal relationships with peers and teachers.”
See Rowley, 458 U.S. at 205 (“[A] court ‘shall . . . bas[e] its decision on the
preponderance of the evidence . . . .’” (quoting § 1415(e)(2)). The court identifies
some evidence in the record that supports J.H.’s claim, such as J.H.’s bipolar
diagnosis, evidence that J.H. was disrespectful toward figures of authority, and
evidence that J.H. struggles with academic assignments. However, the court
improperly discounts the testimony of Matt White, the director of special services for
Republic, who stated that J.H. has “demonstrated to us [Republic staff] that he can
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develop appropriate relationships. He’s doing it right now.” White also testified that
J.H. had been able to form relationships with his teachers: “he did well with some
[teachers] and not well with others.” White stated that Joni Ragain, a Republic
counselor, “had a very close relationship with [J.H.].” The court also overlooks the
testimony of Mary Newby, J.H.’s sixth grade math teacher, who stated that she
thought J.H. was not in need of special education services because “[t]he time that he
was with me, he was one of my top students when he was in my classroom. . . . I
never had any behavior problems with [J.H.].”
Furthermore, the court overlooks evidence which supports Republic’s argument
that J.H. is ineligible for IDEA services under the “serious emotional disturbance”
prong because he is socially maladjusted rather than emotionally disturbed. Matt
White described socially maladjusted students as the “kinds of kids that have
difficulty taking responsibility for their actions. They have very little or no remorse.
They know the rules but still continue to want to break them. They -- their behavior
is by design, and they use their behavior to manipulate the situation to get their needs
met.” In contrast, White stated that “[e]motionally disturbed kids typically have
things that are much more internalizing. . . . They have faulty feelings. They have a
lot of guilt and a lot of remorse. Sometimes they have delusions and hallucinations.”
White testified that the Republic IDEA eligibility team determined that J.H. exhibited
behaviors more akin to social maladjustment than emotional disturbance because
“[J.H.] controls his behavior. He turns it on and turns it off.” An example of such
control is evident in the testimony of Dr. Anna Ross Hertel, a psychologist who
examined J.H. Dr. Hertel testified that, at the start of her examination, J.H. was
“extremely angry, [he] did not want to come back to the testing room willingly, [he]
threw his cell phone, smashed it into pieces.” Nevertheless, after “Mr. Hansen offered
a number of items that he would purchase [for J.H.] if he would just complete the
testing,” including “a laptop from Best Buy,” J.H. agreed to continue the examination.
Once J.H. had accepted his father’s proposal, Dr. Hertel stated that “he was compliant,
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pleasant, completed everything I asked him to do . . . [and] apologized for behaving
in such a manner.”
After considering the entire record de novo and giving due weight to the Due
Process Panel’s decision, I would find that the preponderance of the evidence does not
support the conclusion that J.H. was incapable of forming and maintaining
relationships with peers or teachers and that J.H. was not merely socially maladjusted.
Therefore, I cannot conclude that J.H. suffers from “serious emotional disturbance”
under the IDEA. See R.B. ex rel. F.B. v. Napa Valley Unified Sch. Dist., 496 F.3d
932, 944, 945 (9th Cir. 2007) (where there was “conflicting evidence regarding
whether [a student] could maintain satisfactory relationships [with] testimony on both
sides,” the court found that the student “was not eligible for IDEA relief under this
prong”).
Nevertheless, even giving due weight to the Due Process Panel’s decision to
deny IDEA benefits to J.H., I agree with the court that the preponderance of the record
evidence supports its finding that J.H. suffers from an “other health impairment” that
adversely affects his educational performance. In particular, J.H.’s treating
psychiatrist, Dr. Colby Wang, conclusively diagnosed him with ADHD, and two other
experts assigned him an ADHD rule-out diagnosis. Dr. Hertel testified that J.H.
displayed “hyperactivity, impulsivity, [and] difficulty concentrating.” Renee
Doubleday, J.H.’s Republic-provided tutor, testified that J.H. often would refuse to
do work, use profane language, and run around the room during their tutoring
sessions. Doubleday stated that she and J.H. had “quite a few sessions that had not
gone very well” before he began taking medication for ADHD. Moreover, there are
several independent indications that J.H.’s educational performance improved after
he began taking ADHD medication.
In conclusion, I disagree with the court’s holding that due weight need not be
afforded to the underlying administrative decision of the Due Process Panel. I also
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agree with the Due Process Panel’s decision that J.H. does not suffer from “serious
emotional disturbance.” However, even giving due weight to the Due Process Panel’s
decision, I agree with the district court that J.H. is a “child with a disability” under the
IDEA because he suffers from an “other health impairment” that adversely affects his
educational performance. As a result, I concur in the judgment of the court.
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