B. v. Ozark Mountain School District
MEMORANDUM OPINION AND ORDER; IT IS ORDERED that Plaintiffs' Motion for Award of Attorneys' Fees Doc. 23 is GRANTED, and judgment as a matter of law will enter as to Claim One of the Complaint Doc. 1 . IT IS FURTHER ORDERED THAT Defendant's Counterclaim Doc. 7 is DISMISSED WITH PREJUDICE. Signed by Honorable Timothy L. Brooks on December 7, 2016. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
ROBERT and KIMBERLY SWEARINGEN,
as Parents and Next Friends of B
CASE NO. 3:16-CV-03029
OZARK MOUNTAIN SCHOOL DISTRICT
MEMORANDUM OPINION AND ORDER
On July 25, 2016, the Court issued an Order (Doc. 17) bifurcating certain issues
from the rest of the case and ordering briefing on those issues in an expedited manner.
Specifically, the Court ordered that Plaintiffs Robert and Kimberly Swearingen submit a
complete copy of the hearing transcript and state administrative record for proceedings that
they participated in concerning their child, identified here as "B." The Swearingens argued
in the state administrative hearing conducted by the Arkansas Department of Education
that Defendant Ozark Mountain School District ("OMSD" or "the District") had denied B a
free appropriate public education ("FAPE"), as that term is defined in the Individuals with
Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1415, during B's kindergarten year at
Bruno-Pyatt Elementary School.
According to the Swearingens, they prevailed at the
administrative level and then brought suit in this Court to, among other things, recover the
attorneys' fees they spent litigating the administrative action.
Claim One in the Swearingens' Complaint requests an award of attorneys' fees for
being the "prevailing party" at the state administrative proceeding, as defined at 20 U.S.C.
§ 1415(i)(3)(B). As per the Court's direction in the Order on Bifurcation of Proceedings, the
Swearingens filed a Motion for Award of Attorneys' Fees (Doc. 23) and Brief in Support
(Doc. 24) on August 22, 2016. This Motion essentially requests summary judgment on
Claim One of the Complaint.
The sole issue before the Court in deciding the Motion is
whether the Swearingens were the prevailing party at the administrative level. If so, the
Motion should be granted, and judgment as a matter of law on Claim One should issue in
the Swearingens' favor. If not, the Motion should be denied and Claim One dismissed with
The second issue before the Court is the matter of OMSD's Counterclaim (Doc. 7),
which argues that the administrative Hearing Officer wrongly decided the case in the
Swearingens' favor, and that OMSD should have prevailed on the merits. OMSD briefed
its Counterclaim in the process of responding to the Swearingens' Motion for Attorneys'
Fees. See Docs. 26, 27. Thereafter, the Swearingens filed a response to OMSD's briefing
on the Counterclaim, see Doc. 32, and OMSD filed a reply, see Doc. 33. OMSD contends
that the Hearing Officer erred in refusing to acknowledge that the Swearingens' claims
under the IDEA were barred as a matter of law because B no longer attended school within
the District at the time the hearing took place. OMSD also maintains that it fully complied
with the IDEA and did not deny FAPE to B while he was enrolled at Bruno-Pyatt
Elementary School during the 2014-2015 school year.
On December 5, 2016, the Court conducted a hearing on these issues, during which
both parties had the opportunity to present oral argument, and neither party submitted new
evidence for the Court's consideration. Below, the Court has set forth the legal standard
it has considered in evaluating OMSD's appeal of the state administrative Hearing Officer's
decision under the IDEA.
In reviewing the appeal, the Court has examined the parties'
briefing, the entire administrative record, the Hearing Officer's written Opinion, and the
relevant case law.
For the reasons set forth below, the Court AFFIRMS the Hearing
Officer's decision in favor of the Swearingens,
means that the
Counterclaim filed by OMSD is DISMISSED as a matter of law, and the Swearingens'
Motion for Attorneys' Fees will be GRANTED, resulting in judgment in favor of the
Swearingens on Claim One of their Complaint.
The administrative record in this case is lengthy, and it amounts to several volumes
of hearing transcripts and documents. With that said, however, the pertinent, undisputed
facts concerning B's educational history are relatively straightforward. Prior to entering
kindergarten at Bruno-Pyatt Elementary School, B was a preschool student at Ozark
Unlimited Resources Cooperative, a Head-Start facility located in OMSD. In preschool, B
was identified as a student who needed special education services.
His parents were
presented with an Individualized Education Program ("IEP"), as contemplated by the IDEA.
See Doc. 25, pp. 5-19. At the time B was evaluated for special education services, he was
four years and ten months old.
The areas in which he was deemed deficient were:
cognition, social/emotional, and language. Id. at p. 5.
In the area of cognition, B was described as "ha[ving] trouble understanding ordinal
positions, matching quantity with numeral past 2, and counting past 3." Id. at p. 8. The
report went on to state that B's "deficits in the cognitive domain adversely affect his
progress in the general curriculum" and B's "lack of understanding of age appropriate
concepts inhibits his ability to participate meaningfully in age appropriate learning
As for B's social/emotional skills, he ranked in the 4th percentile. Id. at p. 11. The
report explained that "[t]his score indicates that his social skills are poor." Id. B could not
repeat rhymes, songs, or dances, play group games with simple rules, or play competitive
Ms. Heather Gilbert, a developmental therapist in early childhood special
education, explained in writing that "[a]ny score below the 7th percentile is considered to
be a significant delay in function in that area." Id. at p. 32.
Finally, with respect to the area of language ability, B's performance was similarly
deficient, as evaluators found he was unable to explain "the function of objections, using
plurals and irregular plurals, and telling a story about a picture." Id. at p. 14. Although B
could identify common objects when prompted, the evaluators found that B's "deficits in
the language domain in expressive language adversely affect his progress in the general
curriculum" and ability "to participate meaningfully in age appropriate learning activities."
In accordance with the IDEA, and with the approval of his parents, B's preschool
implemented a comprehensive plan to address his cognitive, social/emotional, and
See id. at pp. 34-35.
However, when it came time for B to
transition to kindergarten, his eligibility for special education services was required by law
to be reevaluated. OMSD's elementary special education teacher, Mary Beth Anderson
participated in this evaluation and observed B in his preschool class on two occasions,
later making a report of her findings. See id. at pp. 47-48.
In her report, Ms. Anderson
noted that B was both a frequent distraction to others in class and also was easily
distracted. Id. at p. 47. She observed that B "did not interact with his peers and anytime
that he did interact with his peers it was in a negative way."
Id. at p. 48. A
speech/language therapist then evaluated B on March 18, 2014, at the tail end of his last
year of preschool,
and found contrary to earlier evaluations that B's language deficits were
not so severe that they interfered with his classroom learning. Id. at p.53. She drew this
conclusion despite the fact that B apparently scored in the 19th percentile in expressive
communication skills. Id. The speech/language therapist also observed in her report that
B "kept making noises ...that were not words during his speech," "did not answer
questions appropriately " in some instances,and when leaving the testing site "became
interested in a toy and had some difficulty separating from it." Id. at p.54.
Based on the above evaluations,OMSD ultimately determined at the conclusion of
the transition conference that B did not meet the criteria for having a specific learning
disability. The Hearing Officer later observed that "even though the District was aware of
[B's] maladaptive behaviors [in preschool], they elected to conduct an evaluation to
determine only if the Student met the criteria of having a specific learning disability." (Doc.
9-1,p.17). In reviewing the record,it appears that,despite the fact that B exhibited
numerous behavioral/social/emotional problems in preschool that were being addressed
through an IEP, OSMD focused in the transition conference on the fact that B's IQ
appeared to be in the normal range,and his speech/language skills had been deemed
adequate for his age level. Without a referral for special education services,B began
kindergarten without any special education support.
Almost immediately after starting kindergarten, B began displaying the same
behavioral issues that he did in preschool,namely: difficulty with transitions,inability to
keep his hands and feet to himself,
difficulty communicating with others,
and difficulty in
toileting without prompting or assistance. B's mother expressed to the school her concern
that perhaps B was autistic or had some other behavioral/medical condition that could be
the cause of his issues at school. See Hearing Transcript, Vol. IV, p. 45. But she testified
at the administrative hearing that she was under the impression that the school was not
planning on doing anything to address B's problems until she first had B officially
"diagnosed," or "evaluated by a doctor," something that she could not do immediately, as
seeing a specialist involved making an appointment and waiting for an opening.
Hearing Transcript, Vol. IV, p. 45. Meanwhile, B's principal testified that she contacted the
District's behavioral specialist for assistance with B in the kindergarten classroom as early
as the fall semester of 2014, just after the school year started. The behavioral specialist
tried to assist B's kindergarten teacher on an informal basis, making general suggestions
for discipline and improvements to the classroom environment, but the specialist testified
at the administrative hearing that she was unable to provide specific assistance to B
because he was not currently receiving special education services.
Transcript, Vol. Ill, p. 233, 254. She further testified that she had no authority to refer B
for evaluation on her own-someone at his school needed to refer him. Id.
B's behavioral issues led to him missing a significant amount of time from school,
which the Swearingens argue was one factor among many constituting a denial of FAPE.
For example, in the first few weeks of kindergarten, B had such serious issues with toileting
that Mrs. Swearingen was called to the school routinely to clean and dress B in fresh
clothes, or else take him home for the day. She testified that she informed his teacher that
he needed both prompting and help when using the bathroom, but despite this, B
continued to have accidents at school and on more than one occasion came home from
school covered with feces. See Hearing Transcript, Vol. IV, pp. 63-66. There were other
behavioral issues B exhibited that were persistent, frequent, and distracting, according to
the testimony of school officials. The principal of B's elementary school, Ms. Mitzi Cantrell,
testified that B hit other students frequently, put them in headlocks, chased students with
a stick, would hide behind trees and refuse to come in from the playground, would not
make eye contact with her, and on one occasion defecated in her office while he was
waiting for his father to pick him up. See Hearing Transcript, Vol. 1, pp. 34-40.
In the first half of the school year, Ms. Cantrell attempted to address B's mounting
behavioral problems by referring B and his parents to Youth Ridge, an agency she
describes as providing social and emotional counseling for children and parents. However,
B's parents declined to attend counseling because they did not think the service would be
helpful. See id. at pp. 42-45. Ms. Cantrell testified that, despite B's challenging behavior
issues, she never considered referring him for a special education assessment in the first
semester of the school year. Id. at p. 47.
As B's behavior deteriorated, he was pulled out of class to receive discipline more
and more frequently-either to have one-on-one time with a teacher or teacher's aide, or
to run laps on the track or run up and down the stairs while a teacher monitored him. The
record reflects that B was often sent home early for aggressive or disruptive behavior, and
on at least one occasion was suspended from school.
Ms. Cantrell and B's teachers
responded by attempting to address his problems with "fixes" of their own devising, or by
continuing to seek the informal advice of the District's behavioral specialists. For example,
Ms. Cantrell testified that she consulted informally with Ms. Anderson, the school's special
education teacher, and would call her to B's room to help B's kindergarten teacher when
B failed to comply with directions.
Id. at p. 50.
In addition, it appears that the school
somehow acquired a number of medical devices that the principal or members of the staff
speculated might help with B's maladaptive behaviors, including a "bouncy seat," a
"weighted blanket," and "weighted gloves." Id. at p. 52. The record is not crystal clear
about when these devices were acquired, but Ms. Cantrell testified that she never met with
B's parents to formally discuss these "assists" before trying them in the classroom. Id.
Ms. Cantrell further conceded that "[n]obody was prescribing [any of these devices]." Id.
The Swearingens' attorney asked Ms. Cantrell during the hearing why she never
made a special education referral early on in the school year, once it was evident to her
that B's emotional and behavioral issues were disruptive and required professional-and
Ms. Cantrell explained that the reason why she did not
refer B for services was "[b]ecause he did not qualify at the beginning of the year." Id. at
p. 110. Further, she testified that she was worried that B's parents would not want him to
be referred to special education-despite the fact that B participated in special education
in preschool and followed an IEP there. When pressed on these points during the hearing,
Ms. Cantrell explained:
I didn't think [B's mother ] wanted me to refer him.
Never in any conversation did she want me to refer him.
Did you talk to her about a referral?
Well, he was tested prior to the kindergarten year.
Right. Was he tested for his social, emotional piece?
Do you know whether they did that?
I don't - I don't know what all was tested. I just know
that he didn't qualify.
struggling, you were pulling everybody in to help you,
right? With [B's] behavior?
Id. at 113, 115.
Further, as is detailed in the Hearing Officer's written Opinion, the school recorded
multiple "disciplinary violations" involving B throughout the first semester of the school year,
in September, October, November, and December of 2014. (Doc. 9-1, pp. 10-11). These
incidents continued into the following semester, and B's parents were contacted by the
school multiple times in January, March, and April of 2015 regarding B's maladaptive
In January of 2015, B's parents were able to schedule an appointment to have B
examined by a physician, for the purpose of obtaining a medical diagnosis regarding B's
problems at school and at home, and in an attempt to qualify for special education
services-as the Swearingens believed they needed to obtain a medical diagnosis before
B would be referred by the school for special education. The physician, Dr. Eldon Schultz
at the Dennis Development Center's clinic in Marshall, Arkansas, performed an evaluation
and diagnosed B with "ADHD-Hyperactive Impulsive Type with functional impairments in
the social and behavioral domains," (Doc. 25, p. 110), as well as "hypotonia," id. at p. 109,
which is a condition in which the subject displays low muscle tone or strength in the
http://www.ninds.nih.gov/disorders/hypotonia/hypotonia.htm (last visited Dec. 2, 2016).
Dr. Schultz also observed that B likely had a sensory processing disorder. (Doc. 25,
He observed in his written report that "there have been no modifications or
accommodations made in his classroom," and suggested that the Swearingens visit a
website "to develop home and classroom strategies to minimize the impact of [B's] core
ADHD on his performance" and "meet with the school to consider classroom and curricular
modifications including a possible 504 plan." Id. at p. 110.
As the Hearing Officer noted in his Opinion, Dr. Schultz's diagnosis did not provoke
the school to refer B for evaluation for special education. (Doc. 9-1, p. 12). Instead, the
school on January 29, 2015 scheduled a meeting with the counselor, B's kindergarten
teacher, the school principal, Ms. Cantrell, and B's parents to develop a plan for services
pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U. S. C.
§ 794(a), a civil rights
law that, among other things, prohibits discrimination against individuals with disabilities
by programs that receive federal funding. See Doc. 25, p. 123. On February 12, 2014, a
finalized 504 Student Accommodation Plan ("Plan") was developed for B. (Doc. 25, pp.
130-132). The Plan only noted B's ADHD diagnosis and did not address Dr. Schultz's·
diagnosis of hypotonia or his suggestion that B likely had a sensory processing disorder
and needed further testing by the school for this condition.
The Plan's only
accommodations were as follows: "preferential seating ([B's] own space), extended time
for work and testing, physical active involvement whenever appropriate, plenty of notice for
transitions, positive re-enforcement (point system), behavior redirection, time out/restriction
of privilege for discipline, short & specific directions, consistent routines." Id. at p. 132.
It appears that after the 504 Plan was put in place, OMSD staff simply collected data
for the next several months, detailing B's continuing behavioral problems in the face of all
the accommodations implemented through the Plan.
See id. at pp. 133-151.
documents reflect, B's maladaptive behaviors persisted through at least April of 2015,
without abatement. Then on April 14, 2015, Dr. Schultz's office sent a letter to OMSD to
"ask the school (in [B's] behalf) for a 504 Plan to address his issues in regard to his
diagnosis of ADHD" and that the Plan "exclude paddling & suspensions for his
behavior"-both of which had been administered to B in the past. Id. at p. 154. Further,
Dr. Schultz recommended that a behavioral specialist from the District "come & observe
& make recommendations for all involved in [B's] schooling." Id. This recommendation
was made despite the fact that District policy dictated that a specialist could not be involved
unless the student was being considered for or was already receiving special education
See Hearing Testimony of Dr. Stacy Moore, Behavior Support Specialist for
O.U.R. Educational Cooperative, Vol. Ill, p. 254 (explaining that it is the District's role to
refer a child for special education testing and services prior to involving a behavioral
specialist in the case).
On April 16, 2015, unbeknownst to B's parents, Ms. Cantrell submitted a referral for
B to be evaluated and considered as a student in need of special education services, due
to the District's recent assessment that B's behaviors had not improved with the
implementation of the 504 Plan, but had only escalated. Just the day before the referral
was made, on April 15, 2015, B's parents took him to see a speech-language pathologist,
who in turn referred B to a licensed psychologist for evaluation for Autism Spectrum
Disorder. Before the appointment with the psychologist took place, B's parents on April 20,
2015, filed an administrative complaint with the Department of Education and withdrew
their consent for B to undergo further testing by the school. OMSD proceeded with its plan
to evaluate B for special education services-even though the Swearingens had at that
point withdrawn their consent for the District to perform testing on B. An IEP committee
met- without B's parents present-on May 4, 2015, and determined that B should remain
on the 504 Plan for the time being. Then, on May 7, 2015, the Swearingens withdrew B
from school following an incident they claim resulted in a teacher grabbing B so roughly
that B's arms were bruised.
On May 18, 2015, B was evaluated by a psychologist and diagnosed with a mild
form of Autism Spectrum Disorder. See Doc. 25, pp. 213-217. The school never learned
about this diagnosis because B had already withdrawn from school at that point, never to
On July 19, 2015, the day before the scheduled due process hearing on the April
20, 2015 complaint, counsel for the Swearingens became aware that she wished to assert
a "Child Find" violation pursuant to the IDEA, 1 and needed to do so by filing a new
complaint. She requested a continuance of the hearing date, but that request was denied.
The following day, July 20, 2015, the Swearingens filed a new due process complaint,
which OMSD concedes was "substantially identical" to the former complaint, except that
it added the Child Find claim. See Doc. 27, p. 2. Then, on July 21, 2015, the Hearing
Officer dismissed the April complaint and proceeded on the July complaint, setting a new
hearing date. Shortly thereafter, or perhaps at around the same time, the Swearingens
moved out of the District. OMSD's attorney stated during the Court's motion hearing on
December 5, 2016, that OMSD believed B to be enrolled in the District until it received
notice that he was not, sometime around July 27, 2015. OMSD then filed a motion to
The Child Find provisions require that each public school district take affirmative steps
to identify, locate, and evaluate children who are in need of special education and related
services in order "to determine which children with disabilities are currently receiving
needed special education and related services." 20 U.S.C. § 1412(a)(3)(A).
dismiss the complaint due to B's enrollment in a school outside the District. The Hearing
Officer denied the motion, and the due process hearing took place over the course of four
days: August 20, September 30, October 2, and November 2, 2015.
At the hearing, OMSD denied liability under the IDEA or other applicable law and
asserted that the complaint should be dismissed.
Both the Swearingens and OMSD
presented several witnesses at the hearing, as well as a number of exhibits. The Hearing
Officer issued a written Opinion (Doc. 9-1) on December 11, 2015, and the Swearingens,
believing themselves to have prevailed at the administrative level, filed the instant
Complaint in this Court on March 10, 2016, seeking attorneys' fees under the IDEA and
damages under 42 U.S.C.§ 1983, Section 504 of the Rehabilitation Act, and Arkansas law.
Only the Swearingens' claim for fees and OMSD's Counterclaim that appeals the Hearing
Officer's adverse decision are now ripe for resolution.
II. LEGAL STANDARD
The IDEA at 20 U.S.C. § 1415(i)(2)(C) states that a district court reviewing an
appeal of a hearing officer's decision
(i) shall receive the records of the administrative proceedings;
(ii) shall hear additional evidence at the request of a party; and
(iii) basing its decision on the preponderance of the evidence, shall grant
such relief as the court determines is appropriate.
Further, under§ 1415(i)(3)(B)(i), the district court may, in its discretion, "award reasonable
attorneys' fees as part of the costs to a prevailing party who is the parent of a child with a
"The district court must independently determine whether the child has received a
FAPE, giving 'due weight' to the administrative proceedings." Sch. Bd. of lndep. Sch. Dist.
Renollett, 440 F.3d 1007, 1010 (8th Cir. 2006) (quoting CJN
Sch., 323 F.3d 630, 636 (8th Cir. 2003)). The reason why the district court must give due
weight to the findings of the hearing officer is because the officer "'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."' CJN, 323 F.3d
at 636 (quoting Strawn
Mo. State Bd. of Educ., 210 F.3d 954, 958 (8th Cir. 2000)).
A prevailing party at the administrative level is entitled to an award of its attorneys'
fees. The Eighth Circuit has explained that a party has prevailed "if it succeeded on any
significant issue which achieved some of the benefit it sought." Yankton School District
Schramm, 93 F.3d 1369, 1377 (8th Cir. 1996). "The IDEA's attorney's fees provision, 20
U.S.C. § 1415(e)(4 )(B) (1986), is similar to the civil rights attorney's fees award statute, 42
U.S.C. § 1988 (1986). Under both statutes, attorney's fees should ordinarily be awarded
to the prevailing party unless 'special circumstances' exist to make an award unjust."
Ark. State Bd. of Educ., 996 F.2d 196, 199 (8th Cir. 1993).
OMSD advances three
in favor of
summary judgment on
Counterclaim-and in opposition to the Swearingens' Motion for Attorneys' Fees. The first
argument is that the Swearingens' claims should have been dismissed by the Hearing
Officer once it was determined that the family had moved out of the District. OMSD cites
a handful of cases it believes support its argument that due process claims against a
school district are barred if a student is enrolled in a new school district prior to the date of
the due process hearing.
The Court has reviewed the cases cited to by OSMD with respect to its argument
and finds that these cases concern students and/or parents who
process proceedings prior
failed to initiate due
to moving out of their respective school districts. For example,
Board of Special School District No. 1,
144 F.3d 575, 578 (8th Cir. 1998),
the Eighth Circuit found that a disabled student had failed to state a cause of action under
the IDEA "because his request for a review comes after he left the District previously
responsible for his education." The Court explained that "[i]f a student changes school
districts and does not request a due process hearing, his or her right to challenge prior
educational services is not preserved."
at 579. In other words, the Court held that
claims for relief will be barred if the student failed to request a due process hearing
changing school districts. The
Court supported its reasoning on this point
by reference to the Supreme Court's decision in
Florence County School District Four
114 S. Ct. 361 (1993), in which remedial relief-in the form of post-hoc
reimbursement of private school tuition-was not barred for a student who left the school
district after a due process complaint was filed, but while those administrative proceedings
were still pending, given the fact that the hearing officer concluded that the school district
did, in fact, deny FAPE to the student.
144 F.3d at 579. In the
case, the claims were barred because the parent "did not preserve her rights by instituting
a due process hearing prior to Thompson's transfer [to another school district]."
After Thompson was decided, the Eighth Circuit considered a similar factual
situation in C.N.
Willmar Public Schools, Independent School District No. 347, 591 F.3d
624, 631 n.6(8th Cir. 2010), and reiterated its holding in Thompson "that a student [must]
request a due process hearing before transferring from the delinquent district if the student
wishes to preserve his or her right to challenge the educational services provided by that
district." The Court explained:
After all, "'[t]he purpose of requesting a due process hearing is to challenge
an aspect of a child's education and to put the school district on notice of a
perceived problem. Once the school district receives notice, it has the
opportunity to address the alleged problem."' [citations omitted] .... C.N.
however, did not request a due process hearing while the District was
responsible for her education. Rather, by the time C.N.requested a hearing
against the District, Atwater [Public School District] had already assumed
responsibility for providing C.N.with an appropriate education geared toward
addressing her specific needs (including any arising from deficiencies in
C.N.'s prior education).Under these circumstances, we agree with the district
court that C.N.'s IDEA claim fails ....
Id. at 631.
Comparing the facts above to those in the instant case, it is clear that the
Swearingens cannot have been barred from seeking relief from OMSD. The Swearingens
requested a due process hearing on April 20, 2015, while B still attended Bruno-Pyatt
Elementary School. OMSD was therefore on notice of the Swearingens' claims as of the
date that complaint was filed, and the District continued to be on notice of these claims
through July 20, 2015, the date that the second complaint-which only added a Child Find
claim-was filed. It was not until August 10, 2015, that OMSD received confirmation that
B was enrolled in another district. It follows that the transfer to another district occurred
after the Swearingens instituted their IDEA case and requested a due process hearing.
Furthermore, OMSD has not cited to, nor has the Court independently located, any Eighth
Circuit case in which a due-process complainant's claims were barred when the
complainant filed for relief against a school district at the same time that the c.omplainant
was receiving educational services from that district.
Moving on to OSMD's second argument, the District contends that the Swearingens'
claims should be barred because the Hearing Officer stated at the end of his written
Opinion that the relief granted would be considered "null and void" and the Swearingens'
complaints "dismissed with prejudice" if the parents did "not agree with returning the
Student to being the educational responsibility of the District."
(Doc. 9-1, pp. 23-24).
OMSD argues that the "null and void" language in the Opinion should be interpreted to
mean that the Swearingens did not succeed on any of their claims. The Court finds this
argument unpersuasive, as it has made a de novo review of the record and believes the
Hearing Officer's ultimate conclusions to be correct, and, regardless of the "null and void"
language the Hearing Officer inserted, would make the same findings and conclusions and
would grant the same relief to the Swearingens. The holding in Thompson makes clear
that a student who has been denied FAPE is entitled to relief even if the student moves out
of the district during the pendency of the due process hearing; in other words, moving out
of the district does not nullify the right to relief. A more reasonable interpretation of the
Hearing Officer's "null and void" language is that he was merely intending to clarify to the
parties that if 8 refused to return to the District, OMSD would not be obligated to develop
a temporary IEP, assemble an IEP team, or provide compensatory educational services
to 8. It further bears mentioning that the Hearing Officer holds a Ph.D. in Psychology and
is not a lawyer, and so his use of legal jargon should be taken with a grain of salt.
OMSD's third argument in favor of reversing the Hearing Officer's decision is that
OMSD should have prevailed on the merits at the administrative hearing, as in OMSD's
view, it fully complied with federal law. OMSD points out that even though B was ineligible
for special education services at the beginning of kindergarten, his teacher and school staff
still implemented classroom supports at the beginning of the kindergarten school year that
were designed to get B's behavior under control, at a time when such behavior became an
issue. Further, OMSD observes that it took these informal steps to help B when there was
no medical diagnosis of a disabling condition in the school record. Lastly, OMSD notes
that it promptly implemented a 504 Plan after receiving an ADHD diagnosis from B's
physician, and Ms. Cantrell referred B for special education evaluation towards the end of
the school year, in April of 2015, once it became clear that the 504 Plan was not working.
According to OMSD, it could have provided further services to B at that point, but his
parents interfered with the process by filing their due process complaint and removing B
Having considered OMS D's arguments in light of the full administrative record, and
having given due weight to the Hearing Officer's assessments regarding the demeanor of
the witnesses, the Court affirms the Hearing Officer's decision.
In the Court's view, the
Swearingens established that FAPE was denied to B due to OMSD's failure to refer him
for a thorough evaluation of all of his disabilities when such were obvious and interfered
with his education.
Rather than comply with the Child Find provisions of IDEA, which
require a district to make a referral for any child suspected of having a disability, the
school, and in particular its principal, failed to make such a referral and instead attempted
to address these issues informally, seeking help and advice from the special education
teacher and the behavioral specialist for the District on a purely informal, "advisory" basis,
and without the behavioral specialist having the benefit of observing B in person. School
staff also ordered and tested medical devices on B without his parents' knowledge,
disciplined him in various ways, including through physical restraints and the use of
corporal punishment, and never succeeded in altering B's classroom behavior. When B's
parents submitted a doctor's diagnosis of ADHD, hypotonia, and suspected sensory
processing disorder, the school responded only to the ADHD diagnosis and failed to test
B for anything else.
The school also failed to listen and respond to B's parents, who were frustrated with
B constantly missing school and being disciplined in ways that did not lead to constructive
solutions. Cf lndep. Sch. Dist. No. 413, Marshall
H.M.J., 123 F. Supp. 3d 1100, 1111
(D. Minn. 2015) (observing that excessive absenteeism affects the ability of a child to
receive FAPE). The principal admitted when testifying at the administrative hearing that
she essentially avoided contact with B's parents out of concern that they were upset with
Finally, when the school implemented the 504 Plan, and those solutions proved
unworkable and unhelpful, the school's staff did nothing more than document the Plan's
failures and declined to take constructive action to help B until the school year was almost
at an end, and after B's parents filed for due process relief. Under these facts, the school
had an affirmative obligation to refer B for special education testing, and they failed to do
so, thus denying B FAPE.
The Court further finds that the Swearingens prevailed at the administrative level,
and they are entitled to reasonable attorneys' fees under the IDEA.
made the following claims for relief:
that B be declared eligible to receive special
(2) that he be evaluated by school specialists for his various behavioral
and learning issues; (3) that an IEP team be convened to develop an appropriate IEP to
address B's educational needs; and
(4) that compensatory special education services be
provided to B in the interim, while the IEP was being put in place. The Hearing Officer
ordered the following relief:
that OMSD develop a temporary IEP for B and
comprehensively evaluate B for behavioral, sensory, or autism-related conditions, as well
as any learning deficits; (2) that OMSD assemble an appropriate IEP team to consider the
results of the aforementioned evaluations and develop a comprehensive IEP for B; and (3)
that OMSD provide B with compensatory educational opportunities for eight hours per
week until the IEP plan was finally put in place. (Doc. 9-1, p. 23).
Clearly, the Swearingens prevailed here. Further, as previously explained, there is
no authority for the proposition that the Swearingens failed to prevail simply because B left
the District during the pendency of the due process proceedings and did not enforce the
terms of the order.
The Swearingens successfully challenged several aspects of their
child's education and put the District on notice of a number of problems concerning its
compliance with the IDEA, including:
OMSD's failure to vigilantly comply with the Child
(2) OMSD's failure to consistently and carefully evaluate special education
students during the transition period between preschool and grade school, and (3) OMSD's
failure to refer students for special education evaluation at the earliest time such evaluation
appears necessary. Even though the Swearingens did not elect to continue to send their
child to OMSD schools, they brought a successful action on their child's behalf that could,
possibly, result in a positive change within the administration of the District and could
benefit other special- needs students. Their complaint was therefore not made in vain, and
having prevailed, they are entitled to compensation for their attorneys' fees.
The Court will refrain from making a specific award of fees at this time, as other
claims remain for resolution in Plaintiffs' Complaint. Once all claims in the lawsuit have
been resolved, the Court will request briefing from Plaintiffs' counsel as to the amount
requested in fees on Claim One. OMSD will then have an opportunity to respond as to the
reasonableness of the request and lodge any opposition to the requested amount. The
Court will then consider the briefing and issue an order awarding a reasonable amount of
fees to Plaintiffs for prevailing on Claim One of the Complaint.
For the reasons stated herein, IT IS ORDERED that Plaintiffs' Motion for Award of
Attorneys' Fees (Doc. 23) is GRANTED, and judgment as a matter of law will enter as to
Claim One of the Complaint (Doc. 1 ).
FURTHER ORDERED THAT Defendant's
DISMISSED WITH PREJUDICE.
IT IS SO ORDERED on this
day of Decembe ,
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