Lewis et al v. Clarksville School District et al

Filing 81

OPINION AND ORDER the Court has reviewed the administrative record and reviewed the additional evidence submitted by the parties; the Court cannot find based on a preponderance of the evidence that Clarksville School District violated the IDEA by avoiding its duty to provide Doe a FAPE; the relief requested by the Lewises is denied 1 . Signed by Judge J. Leon Holmes on 4/20/16. (tjb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
DONALD LEWIS and ROXANN LEWIS,
individually and as parents of Child Doe

v.

PLAINTIFFS

No. 4:13CV00212 JLH

CLARKSVILLE SCHOOL DISTRICT

DEFENDANT

OPINION AND ORDER
Donald and Roxann Lewis, individually and as the parents of Child Doe, bring this action
against Clarksville School District, seeking the reversal of a due process hearing decision in favor
of the school district along with costs and attorney’s fees. The plaintiffs filed an administrative
complaint against the school district, the Arkansas School for the Deaf (ASD), and the Arkansas
Department of Education1 (ADE) on October 10, 2011, alleging that the Child Doe had been denied
a free appropriate public education (FAPE) during school years 2009-2010; 2010-2011; and 20112012. A hearing was held under the authority of the ADE pursuant to the Individuals with
Disabilities Education Act (IDEA). 20 U.S.C. § 1415. The hearing officer found that there was
insufficient evidence to show the school district denied a FAPE to Child Doe. Document #1 at 78.
The plaintiffs filed their complaint in this court on April 10, 2013. Document #1. Resolution of the
matter with a bench trial or evidentiary hearing has been postponed multiple times. The plaintiffs
eventually moved without objection to submit the case on the stipulated record and deposition
testimony. Document #70. The Court granted the motion and permitted the parties to submit
supplemental briefs and testimony of witnesses who would have testified at a hearing by evidentiary
deposition. Document #71. For the following reasons, this Court finds that Clarksville School

1

The Court dismissed the plaintiffs’ claims against ASD and the ADE on October 9, 2013.

District complied with its obligation under federal law to provide Child Doe a FAPE in accordance
with the IDEA.
I.
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.”
B.S. ex rel. K.S. v. Anoka Hennepin Public Schools, 799 F.3d 1217, 1219 (8th Cir. 2015) (quoting
20 U.S.C. § 1415(a)). A party challenging whether a FAPE has been provided has the right to file
an administrative complaint and receive an impartial due process hearing before a local or state
agency. 20 U.S.C. § 1415(b)(6). It also provides that a party who is aggrieved by the findings and
decision made in a due-process hearing and who has no further administrative appeal has the right
to seek review of that decision in federal district court without regard to the amount in controversy.
20 U.S.C. § 1415(i)(2)(A) and (3)(A).
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.”); Spiegler v. D.C., 866 F.2d 461, 465-66
(D.C. Cir. 1989) (holding that the quasi-appellate role of the district court in an action brought under
the [IDEA] does not differ in important ways from an administrative appeal for purposes of
borrowing an appropriate statute of limitations); Adler by Adler v. Educ. Dep't of State of N.Y., 760
F.2d 454, 458-59 (2d Cir. 1985) (same). The Eighth Circuit has explained the nature of a district
2

court’s role in reviewing a claim brought under the Individuals with Disabilities Education Act as
follows:
The district 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.” Id. at § 1415(i)(2)(C). In deciding
whether the IDEA has been violated, the district court must “independently
determine whether the child [in question] has received a [free appropriate public
education].” CJN v. Minneapolis Pub. Schs., 323 F.3d 630, 636 (8th Cir. 2003), cert.
denied, 540 U.S. 984, 124 S. Ct. 478, 157 L. Ed. 2d 375 (2003). In doing so, the
court must also give “‘due weight’ to agency decision-making.” Id. (quoting
Independent Sch. Dist. No. 283 v. S.D. ex rel. J.D., 88 F.3d 556, 561 (8th Cir. 1996)).
This somewhat “unusual” standard of review is less deferential than the substantialevidence standard commonly applied in federal administrative law. Dist. No. 283,
88 F.3d at 561. But we have recognized that this limited grant of deference—“due
weight”—is appropriate in IDEA cases because the ALJ “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] review[s].” CJN, 323 F.3d at 636 (internal quotation marks and
citation omitted).
K.E. ex rel. K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 803 (8th Cir. 2011) (first and fifth
alterations added).
III.
Doe was born on July 20, 1999 and, on that day, he failed a hearing screening.2 Ex. Vol. VIII
CSD at N-8. At four months old, an auditory evoked response test performed at Arkansas Children’s
Hospital indicated a severe to profound hearing loss in both ears, so medical professionals fitted Doe
with over-the-ear hearing aids. Id. Doe was further evaluated on February 7, 2000, while attending
pre-school at the Forrester-David Development Center in Clarksville, and as a result, he was
determined eligible for early intervention services. Id. at N-2-N-4. He received day habilitation and
speech therapy, and the Lewises received information from ASD on hearing loss, associated

2

The Court has followed the timeline laid out by the school district in Document #65, while
supplementing certain pertinent facts.
3

technology, and how to develop his communication skills. Id. at N-17. A speech pathologist
reevaluated Doe on January 10 and 18, 2001 in preparation for his annual review from ForresterDavid Development Center. Id. She found that Doe’s language skills were approximately six
months below his chronological age of 17 months and that his comprehension skills were delayed.
Id. at N-58. She also noted that Doe still had difficulty tolerating his hearing aid. Id. at N-55. The
annual review conducted on January 30, 2001, determined Doe was eligible to continue day
habilitation and speech therapy, and added occupational therapy services. Id. at N-59, N-63.
On July 20 and 24, 2002, Doe completed another speech-language evaluation in preparation
for his transition from the development center to the Western Arkansas Education Service
Cooperative’s three to five-year-old program. Ex. Vol. IV CSD at C-103. The speech pathologist
noted that Doe had been without his hearing aids for almost two months prior to the evaluation and
had been at the development center without his hearing aids fifty days in the past calendar year. Id.
Doe did not receive therapy on days he did not have his hearing aids. Id. The speech pathologist
found that Doe had made little progress in the past year and that it should be determined whether
another communication method–such as sign language–may be more appropriate for him. Id. at C105. She also recommended that the level of parental capability for at-home training in auditory
skills and sign language be determined. Id. The Lewises indicated at a meeting on August 1, 2002
that they were not ready to use sign language at home and that they wanted the speech pathologist
to use a cued-language system.3 Ex. Vol. VIII CSD at N-154.

3

Cued speech is different from sign language because it is a tool for the deaf or hard-ofhearing to better understand spoken languages, while sign language is its own complete language.
Learning Language, Centers for Disease Control and Prevention (Feb. 18, 2015),
http://cdc.gov/ncbddd/hearingloss/language.html.
4

Several months later on January 21, 2003–while Doe was still at the development center–the
Lewises met with the director of the center and other employees to discuss a solution to Doe wetting
his pants at school and to address Doe’s communication plan. Id. at N-147. Roxann indicated at
the conference that the speech pathologist wanted to train the family in cued speech before she
began to use the system with Doe. Id. The Lewises agreed to work together with the speech
pathologist to help Doe integrate into the classroom. Id. School officials met with the Lewises
again a little over a month later to address the fact that speech therapy was unsuccessful, despite the
parental involvement implemented in the previous meeting. Id. at N-145. Other options were
discussed–such as therapy at Arkansas Children’s Hospital or the Ramey Speech Clinic in Fort
Smith–but the Lewises rejected those options due to gasoline costs. Id. at N-146. The Lewises
attributed the lack of progress partly to the center’s failure to require Doe to wear hearing aids. Id.
On February 19, 2003–when Doe was three years and seven months old–he underwent
another assessment at Arkansas Children’s Hospital. Ex. Vol. IV CSD at C-95. The speechpathologist performing the assessment noted that Doe’s parents had been counseled extensively on
their role in communication development and that they appeared to understand all the information
presented to them. Id. at C-96. She recommended that Doe be enrolled in an intensive therapy
program for a trial period of three to six months so he could rapidly develop verbal language skills
but that if he did not develop those skills, a change in communication methodology might be
necessary. Id. at C-97. At the administrative hearing, Doe’s former occupational therapist–who
provided services for nine years beginning in April 2003–testified that Doe had been kicked out of
two preschools. Hearing Transcript Vol. XII at 6-7. She also testified that Doe had no signing
ability when she began working with him. Id. at 8.

5

The next documented evaluations of Doe’s hearing took place in February and March of
2004, when Doe was four years old. Ex. Vol. IV CSD at C-92. He had left the Forrester-David
Development Center by that time and was referred to Miracle of Speech Rehab. Inc. for evaluation
by the Western Arkansas Educational Service Cooperative.

Id.

Doe was participating in

occupational therapy, receiving counseling, and his family was receiving services from ASD. Id.
He was enrolled at Community Development Inc. with an aide and scheduled to receive extended
school year services for four weeks during the summer session. Id. The records from Doe’s time
at CDI were destroyed. Hearing Transcript Vol. XXII at 138. But Doe’s occupational therapist
testified that she worked with him that summer to help him communicate clearly, rather than
grunting and pointing. Hearing Transcript Vol. XII at 102-103.
Doe started kindergarten at Pyron Elementary School in August 2004. Ex. Vol. IV at B-1.
In September of that year, the Clarksville School District conducted a psycho-educational
reevaluation in accordance with state and federal guidelines. Id. at C-85. The examiner conducted
a variety of tests, concluding that the ultimate determination of the existence of a disabling condition
was the evaluation committee’s responsibility. Id. at C-89. The committee created an individualized
education program (IEP) for Doe on October 19, 2004. Ex. Vol. V CSD at G-66. The program
dictated that Doe would receive ninety minutes a week of speech therapy and sixty minutes of
occupational therapy, and that he would spent 150 minutes a week in special education. Id at G-51.
The program also implemented a variety of modifications, supplemental aids, and supports in the
classroom, including reduced assignments, extra time for completing assignments, extra time for oral
communication response, and some assignments conducted in a one-on-one setting. Id. at G-62.
An educational consultant attended the meeting. Id. at G-66.

6

An annual review of Doe’s first year in kindergarten was conducted on May 20, 2005. Id.
at F-90. The review form indicates that Doe made progress but that he was being retained in the
kindergarten. Id. He was able to sign two-word, conceptually accurate utterances to describe
objects and state action in pictures. Id. He also was able to recognize sign and letter pairs–except
for “K”–count to seven, and knew his colors. Id. The committee recommended that Doe have a sign
language interpreter with him at all times during the school day. Id. It also determined that he
benefitted from structural intervention and that extended year services for speech and occupational
therapy with sign language would continue his progress. Id. at F-92. The committee prepared
another IEP, which included 100 minutes of speech therapy each week, sixty minutes of
occupational therapy each week, and 160 minutes of special education each week. Id. at G-39. The
program implemented modifications, supplemental aids, and supports in the classroom similar to
his IEP for the first year in kindergarten. Id. at G-46. An educational consultant attended the
meeting. Id. at G-50.
On May 12, 2006, an annual review was conducted of Doe’s second year in kindergarten.
Ex. Vol. V CSD at F-70. Doe was able to sign the alphabet, write the alphabet, count and write
numbers one through ten, and write his first and last name. Id. He continued to have difficulty
communicating remote events, understanding and following requests, answering questions,
providing opposites, demonstrating active-listening skills, and using age-appropriate vocabulary.
Id. Doe met six of twelve of his speech objectives set out in his most recent IEP. Id. The
committee determined that Doe was again eligible for extended year services for speech and
occupational therapy with sign language instruction. Id. The annual review also indicates that a
counselor with Arkansas Rehabilitative Services provided Roxann with information about a summer
camp for children with hearing impairments. Id. The committee prepared Doe’s IEP for the first
7

grade, which increased speech therapy to 150 minutes a week and special education services to 210
minutes a week, and provided Doe a full-time sign-language interpreter. Id. at G-29. The plan
dictated that Doe would continue to participate in sixty minutes of occupational therapy a week and
again implemented instructional modifications, supplemental aids, and supports. Id. at G-29, G-34.
At the end of the first grade, on May 10, 2007, the committee conducted another annual
review of Doe’s progress. Id. at F-54. Doe began to read in the first grade and met three of the six
speech objectives from his most recent IEP. Id. The committee recorded that Doe would continue
to need speech therapy for receptive and expressive language. Id. Because Doe made progress on
his IEP, the committee determined that extended year services were not necessary. Id. Occupational
therapy recommended those services but Roxann chose not to participate. Id. The committee
developed an IEP for the second grade that provided the same amount of time each week of speech
therapy, occupational therapy, and special education, and again provided instructional modifications,
supplemental aids, and supports. Id. at G-20, G-25. The IEP continued the provision of a full-time
sign-language interpreter. Id. at G-20.
In the fall of Doe’s second-grade year on November 9, 2007, educators and administrators
held a separate programming conference at Roxann’s request to consider Doe’s placement at ASD.
Ex. Vol. IV CSD at E-15. The attendees discussed transportation to and from ASD, communication
skills, behavioral issues at ASD, and academics. Id. The committee decided that Doe would
transfer to ASD on Monday, November 26, 2007. Id. The school pledged to help Doe with the
transition and to provide ASD with his IEP. Id. But the record from another separate programming
conference held on November 30, 2007, indicates that Doe did not transfer to ASD, as previously
planned. Id. at E-9. The Lewises, however, were aware that ASD was an option for the future, if
they decided they wanted Doe to attend. Id.
8

The record also reflects that school employees noticed bugs on Doe’s desk and in his ears
during his second-grade year. Ex. Vol. VI CSD at L-2-7. On October 19, 2007, Doe’s interpreter
took him to the nurse’s office because he complained of a bug in his ear. Id. at L-3. The nurse
examined Doe’s right ear and found a small bug coming out of the right ear canal. Id. at L-2. She
also found what appeared to be a dead bug inside the right ear canal and found dried debris in the
left ear canal. Id. Donald came to the school to take Doe home and indicated to Doe’s interpreter
that he needed to spray their home for pests. Id. at L-4. On November 5, 2007, school employees
communicated with one another regarding a roach crawling across Doe’s desk and his representation
that they were in his shoes at home over the weekend. Id. at L-5. On November 22, 2007, Doe’s
interpreter took him to the nurse to have his ears checked, and she reported that the ears looked as
if they had been cleaned. Id. at L-6. But two days later, Doe pulled what appeared to be the shell
of a small bug from his ear while returning to the classroom from the nurse’s office with his
interpreter. Id.
In February 2008, a counselor from Community Service, Inc. met with Doe and his teachers
for several weeks. Id. at L-9. She reported that Doe did not exhibit any conditions requiring regular
mental health services and that individual counseling was not necessary. Id. Doe’s annual review
for the second grade took place on May 8, 2008. Ex. Vol. V CSD at F-34. He mastered none of the
second grade reading skills but two out of five were emerging, he mastered one of ten writing skills
but five out of ten were emerging, he mastered all of the oral or visual communication skills, and
he mastered five out of 25 math skills with eighteen emerging. Id. Doe’s teacher reported that the
Lewises needed to support his learned skills from school in the home and make sure that he got
enough sleep each night. Id. Roxann asked about a possible behavior plan at the meeting and the
assistant principal indicated she would speak with the principal about a plan. Id. The committee
9

determined that Doe did not need extended year services. Id. The IEP developed for the third
grade–2008-09–provided sixty minutes each week of occupational therapy, 150 minutes each week
of speech therapy, and 210 minutes each week of special education. Id. at G-7.
School officials, the Lewises, an attorney, and a juvenile officer developed a behaviormodification plan during Doe’s third-grade year. Id. at G-17-19. The record from the meeting states
that the juvenile officer was present as part of a coordinated effort between the Lewises and the
school to keep Doe out of the court system due to his misbehavior. Id. at G-17. The juvenile officer
was directed to contact a juvenile case-worker in order to arrange counseling for Doe and his family.
Id. Handwritten notes on the form show that on May 8, 2009, the plan was extended into Doe’s
fourth-grade year. Id. Behavior records from Doe’s third-grade year demonstrate an increased
pattern of insubordination. Ex. Vol. VI CSD at I-22-26. The principal testified that school officials
used a mixture of the general disciplinary policy and Doe’s specialized plan but that Doe still
received the same discipline other students received. Hearing Transcript Vol. XV at 160.
On March 17, 2009, the assistant principal learned that Doe stole a teacher’s wedding ring.
Id. at K-2. The school resource officer transported Doe to the police station and contacted the
Lewises. Id. The police department turned Doe over to the custody of the Lewises and school
officials, but the school resource officer requested that a Family in Need of Services (FINS) petition
be filed regarding Doe. Id. He stated that during the course of the school year, Doe had stolen a
variety of items and thrown rocks at fellow students during recess. Id. The officer indicated that
the school had implemented a number of interventions and was seeking court assistance. Id. The
assistant principal referred Doe to Day Spring Behavioral Health Services for counseling shortly
after the wedding ring incident. Ex. Vol. VI CSD at L-12. Day Spring replied that it had no
openings and required a court order from the juvenile officer to get him in. Id. at L-11.
10

The Deputy Prosecuting Attorney of Johnson County filed a petition on April 13, 2009
asking the court to adjudicate Doe as a member of a family in need of services as defined by Ark.
Code Ann. § 9-27-303(18). Id. at K-3. The juvenile court held a hearing on May 12 and filed an
order the next day adjudicating Doe as a member of a family in need of services. Id. at K-5. The
court placed Doe on court supervision for twelve months, ordered Doe and his family to participate
in individual and family counseling, ordered the Lewises to make reasonable efforts to learn sign
language, and ordered Doe to participate in the summer program at Day Spring. Id. at K-5-6. The
Court also ordered Doe and the Lewises to cooperate with the juvenile office to facilitate a plan for
his fourth-grade year–2009-2010–including taking a tour of the ASD campus and the Clarksville
Public Schools Alternative Learning Environment classroom (ALE). Id. at K-6.
After the deputy prosecutor filed a FINS petition but before the hearing, the usual
participants developed Doe’s IEP for his fourth-grade year. Ex. Vol. 1 Parent Binder at 49. His
speech and occupational therapy services and special education remained the same. Id. Roxann
signed a parental agreement placing Doe in an ALE classroom. Ex. Vol. VI CSD at L-31. The ALE
class included individual and group therapy each week for students–like Doe–who were Day Springs
clients. Ex. Vol. XXII Hearing Transcript at 28-29. A staff member from Day Springs was present
in the classroom each day. Id. Doe also retained the full-time services of his sign-language
interpreter. Id. at 30. A Day Springs therapist testified that Doe made progress in social skills,
behavioral skills, and academics during his time in the ALE classroom. Id. at 32, 35. Doe’s teacher
recorded that he missed seven days due to suspension or being held out by parents when schoolrelated issues arose. Ex. Vol. IV CSD at C-25. Roxann testified at the due process hearing that she
spoke with school officials after Doe stole the wedding ring and discussed a potential transfer to
ASD, but was “dead set against it.” Hearing Transcript Vol. XV at 103-05.
11

The juvenile court reviewed the FINS order on August 11, 2009, stating that all orders would
remain in place. Ex. Vol. VI CSD at K-7. On September 16, 2009, Doe brought a pocket knife to
school. Id. at K-11. The assistant principal drafted a letter to juvenile officers on that day, stating
her issues of concern. Id. at K-9. She stated that Doe brought a pocket knife to school and lied to
the principal about it, he was referred to the office for misbehavior in class, his legs were covered
in insect or parasite bites which distracted him, he was out of compliance with Day Springs
counseling services, and he was out of compliance with the provision of proof of hearing screenings
to the school nurse. Id. Around this time, the principal brought in a behavioral consultant, who
offered suggestions for managing Doe’s behavior. Hearing Transcript Vol. XV at 143. On
September 29, 2009, the school nurse–a mandatory reporter–filed a suspected child abuse report
when Doe’s interpreter found two live bugs inside his hearing aids. Ex. Vol. VI CSD at J-95-97.
The juvenile court conducted a FINS review hearing on November 24, 2009. Id. at K-18.
Doe appeared in person and was represented by counsel. Id. The court found that Doe continued
to be a member of a family in need of services as defined by Arkansas law. Id. The court ordered
Doe to attend ASD and for the Lewises to comply with the school and enroll Doe. Id.

The

principal testified at the administrative hearing that the juvenile judge asked him about ASD during
the review hearing. Hearing Transcript Vol. XV at 201 He told the judge that it was an option the
school would like to try. Id. The CSD special education supervisor testified at the administrative
hearing that when she heard the juvenile court had ordered Doe to enroll in ASD, she called the
ADE compliance officer to ask if the court could do that. Hearing Transcript Vol. XXII at 134. The
compliance officer responded that the juvenile judge could order the parents to enroll Doe in the
ASD but could not order the school to do send him. Id. at 135.

12

A speech pathologist evaluated Doe on November 20, 2009 as part of his three-year
comprehensive revaluation, as required by law. Ex. Vol. IV CSD at C-61. She rated Doe’s
articulation and language skills as “severe,” indicating a need for special education services. Id. at
C-66.
Doe’s attorney, the prosecuting attorney, and the judge signed an agreed order on
February 23, 2010 stating that Doe was enrolled in ASD, that he was ordered to follow all rules and
conditions of the school policies, and that the parents would follow all conditions and policies. Ex.
Vol. VI CSD at K-20. While Doe was attending ASD, the CSD special education supervisor
attended some meetings, provided financial assistance to Doe’s mother so that she could travel to
meetings, and provided a behavioral consultant. Hearing Transcript Vol. XXII at 135-36.
IV.
Though Doe’s background provides context for the Lewises’ allegations, the relevant time
period for this Court’s determination is limited by the statute of limitations. The IDEA states:
A parent or agency shall request an impartial due process hearing within 2 years of
the date the parent or agency knew or should have known about the alleged action
that forms the basis of the complaint, or, if the State has an explicit time limitation
for requesting such a hearing under this subchapter, in such time as the State law
allows.
20 U.S.C. § 1415(f)(3)(C). The ADE procedural requirements on hearings state:
The due process complaint must allege a violation that occurred not more than two
years before the date the parent or public agency knew or should have known about
the alleged action that forms the basis of the due process complaint.
Ark. Admin. Code 005.18.10-10.01.3.2 (West 2015). The Lewises requested a due process hearing
on October 10, 2011. Document #1 at 4, ¶9. Therefore, only actions taken by the school district
between October 10, 2009 and October 10, 2011 may form the basis of the Lewises’ due process
complaint. During this time period, Doe was enrolled in Clarksville Public Schools from the first
13

day of the statutory period through February 9, 2010. Ex. Vol. VII ASD at 54-63. The courtordered transfer of Doe from the Clarksville School District to the Arkansas School for the Deaf
occurred during this time period and is the alleged action at issue.
The Lewises contend that “the District specifically devised a method of changing Child
Doe’s placement from the District to the Arkansas School for the Deaf through the Johnson County
Juvenile Court by filing a FINS Petition.” Document #64 at 35. According to the Lewises, Doe’s
transfer to ASD was without due process, constituting a denial of a FAPE and a failure to select the
least restrictive learning environment. Id. at 31. They rely on Springdale School District #50 of
Washington County v. Grace, an Eighth Circuit opinion where the court held that the Education for
All Handicapped Children Act–currently enacted as the IDEA–does not require the state to provide
the child with the best possible education. Document #79 at 62-3 (citing 693 F.2d 41, 43 (8th Cir.
1982)). An IEP was developed for the child–Sherry–stating that ASD was the proper school to meet
her needs. Id. Her parents challenged that portion of the IEP in a due process hearing and a hearing
officer found that the school district could offer her a FAPE by providing her a certified teacher of
the deaf, rather than sending her to ASD. Id. A district court affirmed the hearing officer’s decision
and the school district appealed, arguing that it was unreasonable for it to bear the cost of
establishing a program for Sherry when ASD already had one and when ASD officials were more
equipped to handle the needs of handicapped children. Id. The Eighth Circuit stated:
Although the School for the Deaf may offer the best education opportunities for
Sherry, the Supreme Court has made it clear that the Act does not require states to
make available the best possible option . . . The cost to the school or the judgment
of local authorities do not justify the intervention of this Court to place Sherry
elsewhere when the mainstreaming provisions of the Act and the judgment of the
state’s administrative decisionmakers support a finding that the Springdale School
can provide a “free appropriate public education” consistent with the Act.

14

Id. The Lewises argue that the Clarksville School District knew about this decision and therefore
conspired to change Doe’s placement to ASD, rather than provide him special education services
or supports required by the IDEA. Document #79 at 63-64.
But there is no evidence in the expansive record to show that the school district orchestrated
a plot with the police department, the deputy prosecuting attorney, and the juvenile judge to remove
Doe from the Clarksville School District in order to avoid providing him a FAPE. The events
precipitating Doe’s placement at ASD do not involve any unilateral action by the school district to
develop or amend Doe’s IEP to require placement at ASD. Rather, the events that precipitated
Doe’s transfer to ASD involved a variety of players, including Doe and those trying to obtain help
for him. First, Doe stole a teacher’s wedding ring on March 17, 2009. Ex. Vol. VI CSD at K-2. On
the next day, a police officer with the Clarksville Police Department, who also served as the school
resource officer, filed a report to document the incident in which he requested that a FINS petition
be opened on Doe. Id. The deputy prosecuting attorney filed a FINS petition on April 13, 2009,
requesting that Doe be adjudicated a member of a family in need of services pursuant to Ark. Code
Ann. § 9-27-303(18). Id. at K-3. The juvenile court adjudicated Doe a member of a family in need
of services on May 12, 2009. Id. at K-5. The court ordered the Lewises to make reasonable efforts
to learn sign language and to take a tour of ASD. Id. at K-6. But circumstances worsened when Doe
brought a pocket knife to school on September 16, 2009. Id. at K-11. After this incident, in a FINS
review order on November 24, 2009, the court ordered Doe to attend ASD and ordered the Lewises
to enroll him. Id. at K-18.
First, while the principal did testify in the review hearing that ASD was an option the school
would like to try, the court ultimately made the call for Doe to transfer schools. Hearing Transcript
Vol. XV at 201. The court subpoenaed the principal to testify. There is no indication that the
15

principal had prior communication with anyone else involved regarding the possibility that the court
would order a transfer to ASD. Ex. Vol. VI CSD at K-17. Second, the school district’s special
education supervisor testified at the due process hearing that she called the ADE to ask whether the
juvenile court had the authority to order Doe to enroll in ASD. Hearing Transcript Vol. XXII at 134.
This demonstrates that school officials acted in good faith to ensure Doe’s transfer was in
compliance with the law. Third, the fact that district employees repeatedly noted Doe’s poor
behavior and signs of neglect does not show that the CSD engaged in a “poorly concealed attempt
to paint the Parents as neglectful.” Document #79 at 58. Multiple teachers, aides, and nurses
independently reported Doe’s behavioral problems and issues with bugs in his hearing aides and
inadequate sleep. Ex. Vol. V CSD at F-34; Ex. Vol. VI CSD at I-22-26, K-2, K-11, K-9, L-2-7. The
record is void of evidence to corroborate the Lewises’ insinuation that the CSD fabricated these
issues in order to convince the court to order Doe’s transfer so that it could avoid its duty to provide
him a FAPE.
CONCLUSION
The Court has reviewed the administrative record and reviewed the additional evidence
submitted by the parties. The Court cannot find based on a preponderance of the evidence that
Clarksville School District violated the IDEA by avoiding its duty to provide Doe a FAPE. For the
foregoing reasons, the relief requested by the Lewises is DENIED. Document #1.
IT IS SO ORDERED this 20th day of April, 2016.

__________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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