Artichoker v. Todd County School District
Opinion and Order on Pending Motions and Affirming Hearing Examiner Decision; granting 38 Motion for Leave to Submit Additional Evidence; granting 41 Motion Supplement the Record with Admissions ; denying 42 Motion to Determine Sufficiency to Defendant's Answers to Request for Admissions; denying as moot 44 Motion for Order Directing Counsel for the Defendant to Sign the District's Responses to the Plaintiff's Request for Admissions; denying 18 Motion for Summary Judgment; denying 23 Motion for Partial Summary Judgment. Signed by U.S. District Judge Roberto A. Lange on 12/29/2016. (JLS)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
DEC 29 2016
KAREN ARTICHOKER,legal guardian and
next friend of D.D., a minor.
OPINION AND ORDER ON PENDING
MOTIONS AND AFFIRMING HEARING
TODD COUNTY SCHOOL DISTRICT,
Plaintiff Karen Artichoker brought this action against Defendant Todd County School
District (School District) as an appeal from administrative proceedings before a Special
Education Hearing Examiner for the State of South Dakota. Doc. 1. The hearing examiner ruled
in favor of Artichoker on both issues considered, but Artichoker nonetheless brought this civil
action under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1482 (IDEA)
because the hearing examiner did not award compensatory education services. Artichoker filed a
Motion for Partial Summary Judgment, Doc. 18, and the School District responded by filing a
Cross-Motion for Partial Summary Judgment, Doc. 23. Despite this being an administrative
case, Artichoker also filed motions to supplement the record and to determine the sufficiency of
Defendant's responses to requests for admissions. Having considered the parties' briefings, filed
affidavits and exhibits, and having conducted a hearing on the matter. Doc. 49, this Court denies
Plaintiffs Motion for Partial Summary Judgment, denies Defendant's Cross-Motion for Partial
Summary Judgment, and affirms the rulings of the hearing examiner. This Courts grants
supplementation of the reeord and has considered that material to the extent appropriate, but
denies the remaining discovery motions.
This ease arises under the IDEA. The IDEA aims to help meet the edueational needs of
children with disabilities by ensuring "that all children with disabilities have available to them a
free appropriate public education [FAPE] that emphasizes special education and related services
designed to meet their unique needs." 20 U.S.C. § 1400(d)(1)(A). A key component in ensunng
all students receive FAPE is the Individual Education Program (lEP), which is developed in
conjunction with the disabled student's parents, teachers, and local education agencies to ensure
the student is receiving all necessary accommodations to meet the child's educational needs.
id. § 1414(d). Throughout the IDEA and the lEP process. Congress established a specific set of
procedural requirements, which the Supreme Court has characterized as requiring the same
amount of strict adherence as the substantive features of the IDEA.
Bd. of Educ. v. Rowlev.
458 U.S. 176, 205-206 (1982). Before an lEP can be developed or any special education and
related services can be provided to a student, an initial evaluation must occur "to determine
whether a child is a child with a disability," and "to determine the edueational needs of such
child." 20 U.S.C. § 1414(a)(l)(C)(i). The child's parent, a local or state educational agency, or
any other state agency can request this "full and individual initial evaluation."
§ 1414(a)(l)(A)-(B). The IDEA makes clear that "[t]he screening of a student by a teacher or
specialist to determine appropriate instructional strategies for eurrieulum implementation shall
not be considered to be an evaluation for eligibility for special education and related services."
Id § 1414(a)(1)(E).
The IDEA includes protections for students with a disability who have been "suspended
or expelled from school," noting that they also are entitled to FAPE. Id § 1412(a)(1)(A). As
part of this requirement, while a student with a disability may be suspended from school for
violating a student code of conduct, if the suspension is to last for longer than ten school days,
the student must be placed m an "interim alternative educational setting," so long as the behavior
has been deemed not to be a manifestation of the child's disability Id, § 1415(k)(l)(B)-(C).
These procedural protections apply to students if the "local educational agency had
knowledge ... that the child was a child with a disability before the behavior that precipitated
the disciplinary action occurred," even though the full and individual initial evaluation under
§ 1414(a)(1) had not been completed. Id, § 1415(k)(5)(A). A school district is deemed to have
knowledge under this section if"the parent of the child has requested an evaluation of the child."
Id. § 1415(k)(5)(B). Knowledge also can be attributed to the local education agency if the parent
has expressed concern in writing that the child may need special education services, or if the
teachers or personnel ofthe local education agency have expressed specific concerns directly to a
special education director or supervisor. Id, However, if a parent has not allowed an initial
evaluation, or has refused services, the school district is deemed not to have knowledge of the
child's disability, and thus these procedural protections do not apply. Id,§ 1415(k)(5)(C).
The IDEA allows any party to present a complaint regarding the identification,
evaluation, or placement of a child, or a child's FAPE. Id § 1415(b)(6). The IDEA requires an
"impartial due process hearing" on such a complaint. Id § 1415(f)(1)(A). This hearing can be
provided by either the local education agency or the state; if it is provided by the local education
agency, it can be appealed to the state. Id, § 1415(g). Finally, either "party aggrieved" by the
heanng results can bnng a civil action in a federal district court. Id, § 1415(i)(2)(A); see also
Schaffer ex rel. Schaffer v. Weast. 546 U.S. 49, 67-68 (2005)(Breyer, J., dissenting) (offering
an overview of the due process hearing provisions of the E)EA). The distnct court has the
ability to "grant such relief as the court determines appropriate." 20 U.S.C. § 1415(i)(2)(C)(iii).
The Eighth Circuit has recognized that this relief can include compensatory education, but not
general or punitive damages.
Birmingham v. Omaha Seh. Dist.. 220 F.3d 850, 856 (8th Cir.
2000); Hoekstra v. Indep. Sch. Dist. No. 283. 103 F.3d 624, 625-26 (8th Cir. 1996); Miener v.
Missoun. 800 F.2d 749, 754(8th Cir. 1986).
Under Local Rule 56.1, Plaintiff Artichoker filed a Statement of Undisputed Material
Facts in support of her motion for partial summary judgment. Doc. 19. In response, the
Defendant School District filed a response to the Plaintiffs statements, and its own Statement of
Undisputed Material Facts in support of its Motion for Summary Judgment. Doc. 26. Plaintiff
filed a response to the Defendant's statement of undisputed material facts. Doe. 32. This Court
takes the facts in the light most favorable to the Defendant in ruling on Plaintiffs motion for
summary judgment, and must take the facts in the light most favorable to Plaintiff in ruling on
Defendant's motion for summary judgment. S^ Scott v. Harris. 550 U.S. 372, 378-79 (2007).
In reality, the parties' disputes relate more to how the facts apply in this appeal of a hearing
examiner's ruling than to genuine disputes of material fact. Moreover, the standard of review of
the hearing examiner's decision is different than the Rule 56 standard. See generallv Rowlev.
458 U.S. at 204-08.
At the beginning of the 2014—2015 school year at issue in this ease, D.D. was a 12-yearold student, enrolled in seventh grade at Lakeview School on the Rosebud Sioux Indian
Reservation, within the Todd County School District. Doc. 19 at ]f 8; Doc. 26 at 3, 9.' In
2012, Karen Artichoker became the legal guardian of D.D. Doc. 19 at
5-7; Doc. 26 at 3,
TfTI 5-8. Dunng D.D.'s prior enrollment at Lakeview Elementary, she had minimal behavioral
and discipline concerns. Doc. 26 at 7-8,
2-3; Doc. 32 at^2-3.
During the first month of D.D.'s seventh-grade year, the School District reported a
number of behavioral incidents. Doc. 26 at 8, Tf 3; Doc. 32 at 3. On September 22 or 23, 2014,
Artichoker and Bobbi Cox, the Principle of Lakeview School, had a conversation to discuss
D.D.'s behavior.^ Doc. 19 at
11-13; Doc. 26 at 3^,
12-13; Doc.|32 at
26 at 8, 3; Doc.
^ 3. During this conversation, Artichoker verbally requested an evaluation for D.D. to determine
if she was eligible for special education services under the IDEA. Doc. 19 at Tf 13; Doc. 26 at 4,
In response, on October 1, 2014, the School District held a teacher assistance team(TAT)
meeting, which Principal Cox described as the first step in the special education evaluation
process. Doc. 19 at H 13; Doc. 26 at 4, Iflf 13-14. Artichoker claims that at the TAT meeting.
Dr. Gail Mason, a psychologist, advised the meeting's participants that D.D. was suffering firom
post-traumatic stress disorder (PTSD), and offered an explanation of the disorder; the School
District claims that while Dr. Mason was present at the TAT meeting regarding D.D., she was
described as a "friend" of Artichoker, and spoke generally about PTSD rather than about D.D.
having a PTSD diagnosis. Doc. 19 at Iflf 13-14; Doc. 26 at 4, HI 14-15; Doc.|
26 at 9, 7; Doc.
^ Because the School District has chosen to submit a response to Plaintiffs Statement of
Undisputed Facts and its own Statement of Undisputed Facts m the same document using
repeating paragraph numbers, this opinion cites both the relevant page and paragraph numbers
within Doc. 26.
The parties disagree about who initiated the conversation, and whether it was the first such
conversation regarding D.D.'s behavior. Doc. 19 at 11-13; Doc. 26 at 3-4, 12-13; Doc. 26
at 8,13; Doc. 32 at 13. This dispute of facts is not material to the outcome ofthis case.
32 at If 7. The TAT team developed a written plan to assist D.D. with her errant behaviors,
which included advising D.D. of the behaviors that are inappropriate for the classroom
environment through a behavioral plan, and a combination of removing D.D. from the classroom
when she became disruptive and allowing D.D. to receive more frequent breaks from classroom
activities. Doc. 26, at 9,
7-8; Doc. 23-14.
About a week later, Artichoker placed D.D. in the Avera Behavioral Health Adolescent
Program at Avera McKennan Hospital, where she stayed for ten days.^ Doe. 19 at ]f 16; Doc. 26
at 4, I 17; Doe. 26, at 10 ^f^f 14-15. Without retuming to school, D.D. then went to the
Wellspring Residential Treatment Facility on October 17, 2014 to begin a forty-five day course
ofresidential chemical dependency treatment. ^Doc. 19 at 116; Doe. 26 at 4,117; Doc. 26 at
10, If 15; Doe. 32 at 15. Upon completion of the program, D.D. was scheduled to retum to
school on December 2, 2014, but called in sick, attended school for two days, then called in sick
again on December 5, 2014, and did not show up for school the next week, December 8-12,
2014. Doc. 26 at 10,^ 17; Doc. 32 at ^ 17; Doc. 23-8. The School District's winter break began
the following Monday, and due to a winter storm, lasted a week longer than usual. See Doc. 26
at 10, Tf 17; Doe. 32 at If 17.
D.D. had two weeks of attendance in the School District until January 29,2015, when she
was suspended for five days for "assaulting a student and making threats toward a student via
social media while at school." Doc. 19 at Iff 20-21; Doe. 26 at 4-5,ff 19-21. D.D. retumed to
school on February 5, 2015, but upon bringing a dangerous weapon (a knife) to school on
February 6, 2015, was suspended on the following Monday for the remainder of the semester.
Doe. 19 at ff 21-22; Doc. 26 at 5,ff 20-21. D.D. had posted a photograph of herself to social
During part of this time, D.D. was suspended from school for theft of school property. See
Doe. 23-9 at 4-5.
media holding a four-inch long knife, emblazoned with a marijuana leaf, while at school. See
Doe. 23-13. D.D. did not receive any form of educational services for the remainder of her
seventh grade year dunng her suspension. Doe. 19 at
23-24; Doc. 26 at 5-6,
26 at 11, t 23; Doc. 32 at ^ 23. The parties contest whether the School District made to
Artichoker an informal oral offer of out-of-distnct educational services for D.D. during her
suspension. Doc. 19 at
23-24; Doc. 26 at 5-6,
22-23; Doc. 26 at 11,^ 23; Doe. 32 at ^ 23.
On Apnl 27, 2015, Artichoker initially filed an IDEA complaint against the School
District, and requested a due process hearing. Doc. 23-2. Artichoker claimed that the School
District had "violated D.D.'s rights under IDEA and deprived her of a free appropriate public
education (TAPE), by failing to conduct a full, individual special education evaluation, as
required by Section 1414 of IDEA, and by failing to provide D.D. with FAPE or any IDEA
procedural rights during the three and one-half months of her expulsion." Doe. 19 at ^ 25; Doc.
26 at 6,^ 24. As part of the complaint, Artichoker requested a full and individual evaluation as
allowed under the IDEA, an lEP, compensatory education, "including one on one tutoring
beginning in the summer, one on one counseling," and attorney's fees. Doc. 23-2 at 5. The
School District responded, and a due process hearing was scheduled before an administrative
hearing examiner for July 7, 2015. Doe. 19 at ^ 27; Doc. 26 at 6,^ 26. Before the hearing, the
School District made a settlement offer to Artichoker, including providing D.D. with an
evaluation while she resided at a short-term facility, at the Distnct's expense; providing D.D.
with a tutoring software system she could use over the summer; and placing D D. in the fall at
another school within the district that could better handle D.D.'s needs.
See Doc. 23-20.
Artichoker rejected the offer, m party due to the absence of compensatory educational services.
See Does. 23-23-23-24.
The hearing examiner condueted an evidentiary hearing and issued a written decision on
August 27, 2015 containing findings of fact, conclusions of law, and a final decision. Doe. 19 at
If 29; Doc. 19-3; Doe. 26 at 6, Tf 28. The hearing examiner considered two issues, both of which
were decided in Artichoker's favor: 1) "Whether the Todd County School District's failure to
order an evaluation after referral and request for evaluations by the guardian violated the IDEA
and deprived D.D. of FAPE;" and 2)"Whether the Todd County School District's expulsion of
D.D. without the procedural safeguards of the IDEA deprive her of FAPE." Doe. 19-3 at 1. The
hearing examiner ordered that the School District complete a full individualized evaluation of
D.D., and that if D.D. was determined to qualify for special services of the IDEA, the School
District was required to implement those services within one month, including the convening of
an lEP team. Doc. 19-3 at 11.
In November 2015, D.D. was placed at "Our Home" residential treatment facility in its
Parkston Psychiatric Residential Treatment Program.'^ Doe. 19 at Tf 34; Doc. 19-3; Doc. 26 at
^ 7, ]f 33. On January 11, 2016, the School District finally arranged for the completion of the
individual evaluation to determine D.D.'s eligibility for special education services. Doc. 19 at
Tf35; Doc. 19-1 at 1. The evaluation concluded that D.D. was eligible for special education
services under the IDEA within the categories of emotional disturbance and specific leaming
disability. Doe. 19 at ^ 35; Doe. 19-1 at 14—15. On February 18, 2016, an lEP was created to
address D.D.'s special leaming needs while she resides at the Our Home treatment facility. Doc.
19 at % 15; Doe. 19-2. Artiehoker did not take issue with the lEP, and this case makes no
challenge to the lEP itself. On April 11, 2016, the School District received notice from the South
^ D.D. continued to reside at Our Home during at least part of the time this ease has been
Dakota Department of Education that it had fulfilled the relief ordered by the hearing examiner.
Standard of Review
Although the parties have filed motions for summary judgment, the IDEA sets forth a
specific standard of review for distnct courts to follow in a case such as this. Parties aggrieved
by a decision of an administrative hearing examiner may bring a civil action in federal district
court to appeal the ruling. 20 U.S.C. § 1415(i)(2)(A). In these administrative appeals, the court
is instructed that it "(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." Id. § 1415(i)(2)(C).
The party challenging the administrative decision retains the burden of proof. E.S. v. Inden. Sch.
Dist.. No. 196 Rosemount-Apple Vallev. 135 F.3d 566, 569(8th Cir. 1998). This preponderance
of the evidence standard is tempered by the direction from the Supreme Court that "due weight
shall be given to the [administrative] proceedings." Rowlev. 458 U.S. at 206. The Supreme
Court further instructed that "the provision that a reviewing court base its decision on the
preponderance of the evidence is by no means an invitation to the courts to substitute their own
notions of sound educational policy for those of the school authorities which they review." Id.
"Whether a child has received a FAFE is a mixed question oflaw and fact. Accordingly, when a
distnct court examines this issue, it is obligated to determine independently the legal significance
of the [applicable] facts." K.E. ex rel. K.E. v. Inden. Sch. Dist. No. 15. 647 F.3d 795, 804 (8th
Cir. 2011)(alteration in original)(internal citation and quotation removed).
Artichoker's motion to supplement the record and the parties' reference to matter not
before the hearing examiner present the issue of when to allow supplementation of the
administrative record under 20 U.S.C. § 1415(i)(2)(C)(ii). Case law discussing this issue tends
to draw heavily on a First Circuit Court of Appeals decision, later affirmed by the Supreme
Court, where the court explained that "[t]he determination of what is 'additional' evidence must
be left to the discretion of the trial court which must be careful not to allow such evidence to
change the character of the hearing from one of review to a trial de novo." Town of Burlington
V. Dep't of Edue. for Mass.. 736 F.2d 773, 791 (1st Cir. 1984), afPd sub nom Seh. Comm. Town
of Burlington v. Dep't of Educ. of Mass.. 471 U.S. 359 (1985). While this standard has been
adopted in various ways among the circuits, the Eighth Circuit has taken a more conservative
approach to supplementing an IDEA appeal record, explaining that "[rjendering a decision on the
record compiled before the administrative agency ... is the norm" and parties require a "solid
justification for supplementing the administrative record." West Platte R-II Seh. Dist. v. Wilson,
439 F.3d 782, 785 (8th Cir. 2006). The court m West Platte determined it was not error for the
district court to refuse to allow supplementation of the record because of the length of the
administrative record, over two thousand pages, "together with the fact that we normally
determine these issues based solely on the administrative record," and the evidence to be
supplemented related to the post-hearing status of the student. Id; see also Yankton Seh. Dist. v.
Schramm. 900 F. Supp. 1182, 1186 (D.S.D. 1995)(relying on the administrative record m an
IDEA ease and limited additional evidence to ensure its review did not become one of a trial de
novo); M.M. v. Dist. 0001 Lancaster Ctv. Seh.. No. 8:10CV449, 2011 WL 2680582, at *2 (D.
Neb. July 8, 2011)(refusing to allow supplementation of the administrative record in an IDEA
case when the evidence to be included was mostly "cumulative to, or an embellishment of,
information presently contained in the record"); McComish v. Underwood Pub. Sch.. No.
I:06cv65, 2007 WL 1892086, at *2(D.N.D. June 29, 2007)(rejecting the supplementation of the
record with information relating to a student's progress after the administrative hearing because
it was not available to the hearing examiner at the time of the due process heanng).
The School District's Cross-Motion for Partial Summary Judgment challenges the
hearing examiner's two final decisions: 1) that the Sehool District violated the IDEA and denied
D.D. FAFE when it failed to timely evaluate D.D. for special education services; and 2) that the
Sehool Distnct violated the IDEA and denied D.D. FAFE when it suspended D.D. for the
remainder of the semester without the procedural safeguards required by the IDEA. Doc. 25 at
8. Although both main issues were decided in favor of D.D., Artichoker's Motion for Partial
Summary Judgment appeals the absence of an award of any eompensatory education for the time
D.D. was suspended. Doc. 18 at 3, 11. Artichoker seeks a "reversal of the heanng officer's
decision that failed to award compensatory educational services," Doc. 18 at 3, but the heanng
examiner did not foreclose compensatory educational services, other than to observe that it
would be inappropriate to order speeifie services before a determination that D.D. was eligible,
see Doc. 19-3 at 9, 11.
The Supreme Court in Rowlev offered two guiding questions for courts considenng
challenges to a child's receipt of FAFE: "First, has the State complied with the procedures set
forth in the Act? And second, is the individualized educational program developed through the
Act's procedures reasonably caleulated to enable the child to receive educational benefits?"
Rowlev. 458 U.S. at 206-07 (footnote omitted). The hearing examiner's decision came before
D.D.'s IFF was developed, so this Court is limited to evaluating the first question in resolving
both the School District's and Artichoker's ehallenges.
A. Delayed IDEA Evaluation
Although the record contains testimony that Artichoker may have requested an evaluation
of D.D. under the IDEA previously, both parties agree that on September 22 or 23, 2014,
Artichoker told Principal Cox that she wanted an evaluation done of D.D. Doc. 40-18 at 46. The
School District's response to this request was to initiate its TAT process. Doc. 40-18 at 46. The
School District's TAT process is its implementation of the State of South Dakota's version of the
Response to Intervention (RTI) model; there is no functional difference between the two. Doc.
25 at 2-3; Doc. 30 at 6; Doc. 40-18 at 3, 45. The RTI models came out of the 2004 amendments
to the IDEA, where Congress indicated that "[i]n determining whether a child has a specific
learning disability, a local educational agency may use a process that determines if the child
responds to scientific, research-based intervention as a part of the evaluation procedures." 20
U.S.C. § 1414(b)(6)(B); see also 34 C.F.R. § 300.307(a) (implementing regulation requiring
states to adopt "criteria for determining whether a child has a specific learning disability"). In
South Dakota's RTI model, there are three tiers of responses and interventions to a child's
Response to Intervention Implementation Guide: The South Dakota
Model. S.D. Dep't of Educ., 7-9 (2012). The School District maintains that because D.D. was
out of school so often after the initial TAT meeting and because a behavioral plan was created, it
was not able to proceed through the TAT proeess and complete a fiill initial evaluation of D.D.
Doe. 25 at 10. Artichoker responds that the TAT process is not a prerequisite to the School
Distnct's requirements to complete an evaluation of D.D. under the IDEA. Doc. 30 at 8.
The School District cherry picks from South Dakota's RTI Implementation Guide to
support its argument that the TAT proeess begins the IDEA evaluation. Doe. 25 at 10 ("S.D.
Dept. of Education guidance states that 'the time in which the student is [actually] referred for
special education eligibility should occur when it is determined that the student has not made
sufficient progress during the high quality instruction and interventions.' Ex EE." (quoting
Response to Intervention hnnlementation Guide: The South Dakota Model. S.D. Dep't of Educ.,
45 (2012))). However, this leaves out the first sentence of the quoted paragraph from South
Dakota's RTI Implementation Guide: "As a reminder, a referral for special education can be
initiated at any time throughout the process of RTI." Doc. 23-30 at 3. Similarly, the School
District points to Administrative Rules of South Dakota(ARSD)24:05:25:13.01, whieh requires
"School districts that elect to use a response to intervention model as part of the evaluation
process for specific learning disabilities shall submit to the state for approval a formal proposal
that at a minimum addresses the provisions in § 24:05:25:12," as evidence that its TAT proeess
began the IDEA evaluation. However, ARSD 24:05:25:12 requires that the district submit to the
state a formal proposal that addresses, at minimum,"[t]he documentation that the child's parents
were notified about [including] . . . (iii) The parent's right to request an evaluation." ARSD
24:05:25:13.01; ARSD 24:05:25:12(7). Read in conjunction, these two sections envision a
scenario where a school district may use an RTI process to help with the child's IDEA
evaluation, but make clear that a parent always has the right to step out of the RTI process and
obtain a "full and individual initial evaluation" as required by the IDEA. ^ 20 U.S.C.
The School District's argument that its TAT process began an IDEA evaluation for D.D.
runs contrary to a January 21, 2011 memorandum, sent from the Federal Education Department's
Office of Special Education Programs to the Director of Special Education in each state. ^
Doc. 38-4; Memorandum from Melody Musgrove, Director, Office of Special Education
Programs, to State Directors of Special Education (Jan. 21, 2011). This memorandum expressly
addresses the question of timing in the RTI process as it relates to a student's individualized
evaluation under the IDEA. Doc. 38-4 at 1. Specifically, the Director of the Office of Special
Education Programs stated that "[s]tates and LEAs [local educational agencies] have an
obligation to ensure that evaluations of children suspected of having a disability are not delayed
or denied because ofimplementation of an RTI strategy." Doc. 38-4 at 1.
While case law on how the RTI process might impact individual evaluations is relatively
sparse, El Paso Independent School District v. Richard R.. 567 F. Supp. 2d 918 (W.D. Tex.
2008) is instructive. In Richard R.. the school district made the same argument as the School
Distnct here: that after a parent requested special education testing, it did not ignore the parent's
request, but scheduled a TAT meeting. Id at 946. Richard R.'s parents requested an
individualized evaluation under the IDEA in August 2005, but instead of initiating the
evaluation, the school district began an RTI process in October 2005, delaying the full referral
for special education testing until September 2006, thirteen months after the initial request. Id at
946-52. After a due process administrative hearing, the district court upheld the finding of the
state heanng examiner that "the IDEA gives the parent a right to seek an evaluation and
overrides local district policy concerning intervening procedures," and where a TAT "committee
impedes the exercise of rights guaranteed by federal law, those practices violate the IDEA." Id
at 946 (internal quotation removed).
The hearing examiner m D.D.'s case specifically reasoned that "a school distnct cannot
require that a student complete an Rtl process before it conducts an evaluation for special
education eligibility. Regardless of the Rtl process the IDEA regulations grant parents the nght
to request an evaluation for special education services at any time." Doc. 19-3 at 7 (emphasis
removed). The heanng examiner based this conclusion on the January 2011 memorandum and
Eighth Circuit precedent regarding FAPE requirements. Doc. 19-3 at 6-7. The hearing
examiner specifically focused on South Dakota's Administrative Rules requiring the full and
individual evaluation to occur within 25 school days after a signed parental consent to evaluate,
and made a conclusion of law that the School District did not comply with this requirement.
Doe. 19-3 at 10; ARSD § 24:05:25:03.
Under the circumstances of this ease, the more
appropriate timeliness question is the length of time between the initial request for evaluation
and the beginning of the evaluation process, because the School District never provided
Artichoker with a formal request to consent to the evaluation of D.D. Artichoker requested a
special education evaluation of D.D. no later than September 22 or 23, 2014. Doc. 19 at
Doc. 26 at 4,]f 14. The Sehool District did not offer D.D. the required testing until June 2015, as
part of the settlement agreement discussions before the due process hearing. Doc. 23-20. A
delay of nine months has been deemed to be unreasonable by many courts that have eonsidered
the question in the context of a loeal educational agency's "child find" responsibilities.^ See
N.B. V. Hellgate Elementarv Sch. Dist., 541 F.3d 1202, 1205-06, 1209-10 (9th Cir. 2008)(delay
from August to March unreasonable); Riehard R.. 567 F. Supp. 2d at 946 (delay of thirteen
months unreasonable); New Paltz Ctr. Sch. Dist. v. St. Pierre ex rel. M.S., 307 F. Supp. 2d 394,
401 (N.D.N.Y. 2004)(delay of ten months unreasonable); W.B. v. Matula, 67 F.3d 484, 501 (3rd
Cir. 1995)(delay of six months was a triable issue), abrogated on other grounds, A.W. v. Jersev
Citv Public Sch.. 486 F.3d 791 (3rd Cir. 2007); Dep't of Educ. of Hawaii v. Can Rae S.. 158 F.
Supp. 2d 1190, 1195-97 (D. Haw. 2001) (delay of six months unreasonable). The School
District did not complete the testing until after the hearing examiner required it to do so.
' "ehild find" provisions of the IDEA require that loeal educational agencies receiving finds
implementing the IDEA seek out children who may have a disability and ensure they are
"identified, located, and evaluated" to ensure they are receiving a proper education and
applicable special needs services. See 20 U.S.C. § 1412(a)(3).
A full review of the administrative rules and guidance from the state of South Dakota,
along with the relevant case law, establish that while the RTI process can occur before, or in
. conjunction with, an initial evaluation under the IDEA, if a parent makes a request for an initial
evaluation of her child for special education services, the RTI process cannot be used to delay, in
any way, that evaluation. The hearing examiner's decision that the School District violated the
IDEA by failing to provide a full and individualized evaluation is affirmed.
The School District also argues that it was unable to timely complete an evaluation of
D.D. because of the actions of Artichoker and D.D. Doc. 25 at 6. The School District points to
three main ways in which Artichoker was responsible for a delay in D.D.'s requested evaluation:
1) Artichoker never provided any written diagnosis to the School District; 2) Artichoker refused
to sign a medical release for the School District regarding D.D.; and 3) Artichoker unilaterally
removed D.D. from the School District for several large periods of time. Doc. 25 at 8-11. First,
while the School District may be correct that having a written diagnosis of an ailment that D.D.
was suffering from would have sped up the evaluation process, the School District could have
started the evaluation, beginning with sending a parental consent form for Artichoker to sign,
without any written diagnosis for D.D. Second, there are no materials in the record supporting
the School District's argument that Artichoker "deliberately withheld any diagnosis information
from the District." Doc. 25 at 11. In fact, testimony at the initial hearing suggests that no
conscious decision was made to withhold medical information from the School District. S^
Doc. 40-18 at 17. Finally, removing D.D. from the School District and the number of days of
school missed (both scheduled time off, and absences) undoubtedly did, as the hearing examiner
reflected, make it more difficult for the School District to complete D.D.'s evaluation. Doc. 25
at 10; Doc. 19-3 at 9. However, the ability of the School District to perform the evaluation after
It was ordered by the hearing examiner, while D.D. was attending a sehool outside of the district,
indicates that the School District could have had D.D. evaluated dunng her absences and well
before the heanng. See Doe. 19-1.
B. Suspension without IDEA Protections
The District next argues that the hearing examiner erred when she found that D.D. had
been denied FAFE when the suspension without IDEA safeguards occurred. The IDEA includes
procedural protections for students with a disability who are sanctioned for violating a code of
student conduct. 20 U.S.C. § 1415(k). If a student with a disability violates a code of student
conduct, it is determined that the violation is not a manifestation of the child's disability, and the
punishment is removal of more than ten days from the current educational placement, then the
child must receive FAFE from the sehool district in an alternative educational setting. W.
§ 1415(k)(l)(C)-(E). D.D. was suspended for more than ten days without receiving FAFE from
the Sehool District in an alternate setting. The IDEA provides procedural protections for
children even if they—as was the case with D.D. at the time—^have "not been determined to be
eligible for special education and related services . . . if the local educational agency had
knowledge . . . that the child was a child with a disability[.]" Id § 1415(k)(5)(A). Knowledge
under this specific section, as relevant here, occurs when a parent requests a fiill and individual
evaluation for special education services under § 1414(a)(1)(B). Id. § 1415(k)(5)(B). However,
a school district is excused from this knowledge if "the parent of the child has not allowed an
evaluation of the child . . . or has refused serviees[.]" Id. § 1415(k)(5)(C).
The Sehool District first argues that it had no actual knowledge of D.D.'s disability
because it was never provided a written diagnosis of D.D.'s disability before the suspension.
Doc. 25 at 11. It argues that although Dr. Mason discussed FTSD at D.D.'s TAT meeting, it had
no knowledge that D.D. suffered from PTSD. Doc. 25 at 11. As the School District's counsel
acknowledged at the motion hearing, the TAT meeting was convened only for D.D., and no other
student was discussed at the meeting. Doe. 49. Thus, when Dr. Mason, who knew and treated
D.D., discussed PTSD during a TAT focused solely on D.D., the School District could surmise
that D.D. might have PTSD. Regardless, actual knowledge of a disability is not required under
§ 1415(k)(5)(B); the section is satisfied so long as an evaluation of the child has been requested.
The School District admits that Artichoker requested an evaluation of D.D. on September 22 or
23, 2014, well before D.D.'s suspension from school. Doc. 19 at 13; Doc. 26 at 4,^ 14.
The School District next argues that it qualifies for the exception in § 1415(k)(5)(C); that
because it offered to pay for an out-of-distriet placement for D.D. and Artichoker refused, it
cannot be deemed to have knowledge of D.D.'s disability prior to her suspension. See Doc. 25 at
13; Doe. 40-18 at 52, 54; 20 U.S.C. § 1415(k)(5)(C). The School Distnct asserts that it offered
to place D.D. at an out-of-district school during her long term suspension, more than once, but
that Artichoker refused those services. See Doc. 34 at 12-13. Any such offer occurred verbally
and apparently casually over the telephone during a conversation between Artichoker and
Principal Cox. See Doc. 40-18 at 52, 54. Artichoker's declination of one, or possibly two,
informal and vague verbal offers of out-of-district placements was because Artichoker hoped to
keep D.D. living at home. Doc. 40-18 at 63-64. This Court is unpersuaded that this equates to a
full rejection of all special education services offered to D.D. that would excuse the District from
§ 1415(k)(5). ^ M.G. V. Crisfield. 547 F. Supp. 2d 399, 403-05, 414-15 (D.N.J. 2008)
(parental refusal under § 1415(k)(5)(C) involved repeated refusals of both classification under
the IDEA and placement at a specific school on a specified date). At the very least, the School
District should have confirmed any offer in writing to Artichoker, explaining the offer and the
next, or alternative, steps in the proeess. This Court must give the hearing examiner's finding of
faets "due weight" on this issue,
Rowlev. 458 U.S. at 206, and must make a decision based
on the "preponderance of the evidence,"^20 U.S.C. § 1415(i)(2)(C)(iu).
The hearing examiner's discussion of this second issue, D.D.'s TAPE during her
suspension, was brief. Rather than including a separate reasoning section for this issue, the
examiner "specifically adopt[ed] the reasoning set forth in pages 5 through 8 of the Petitioners
brief dated August 18, 2015." Doc. 19-3 at 9; Doc. 40-15 at 5-8. Although the hearing
examiner ideally should have supplied her own reasoning separately, the cited reasoning from
the Petitioner's brief parallels what this Court discussed above. The Petitioner's brief also raises
20 U.S.C. § 1415(k)(5)(C) and 34 C.F.R. § 300.301(a), which require that any offer of special
education services can occur only after a full individual evaluation has been completed on a
child. See 40-15 at 7. Indeed, because a full evaluation was never completed on D.D., even had
the School District made a formal offer of an out-of-distriet placement for D.D., it would not
have satisfied the provision of services under 34 C.F.R. § 300.301(a), and was not replacement
for a ftill individual evaluation and lEP.
Having considered the evidence available to the hearing examiner at the time of her
decision, the decision is upheld and the School District's Cross-Motion for Partial Summary
Judgment, Doc. 23, is denied. D.D. should have been receiving the protections of the IDEA
during her suspension. Despite this Court's ruling below on the issue of compensatory
educational services, this is not a situation where the School District's actions resulted m only a
procedural defect of the IDEA, as the School District argues. See Doc. 25 at 15. Unlike in
Costello V. Mitchell Public School District 79. 266 F.3d 916, 922(8th Cir. 2001), where a failure
to follow the IDEA to the letter did not result in a loss of educational opportunity to the student.
here D.D. went three and a half months without any aeeess to edueational services because of a
failure ofthe School District to begin a timely evaluation ofD D.
Compensatory Education Award
Finding that the hearing examiner was correct in determining that D.D. was denied
FAPE,"if it [was] necessary" during her suspension brings this Court to the core issue raised by
Artiehoker: whether the hearing examiner erred in failing to award any compensatory education.
Doe. 19-3 at 10. Although Artiehoker raised the issue in briefing and at the hearing, the hearing
examiner only discussed compensatory education in her decision by name in a short evidentiary
ruling allowing testimony regarding compensatory education, and "giv[ing] it the weight she
deems appropriate." Doe. 19-3 at 2;^ Doe. 40-13 at 15-16; Doe. 40-18 at 15. When the
hearing examiner released her decision, no assessment of D.D. had been done, and m tum no
determination of a disability or lEP requirement existed, so the silence of the decision as to
compensatory education services is not peculiar. Thus, the hearing examiner noted that "the
school never completed the requested evaluation. The school has not finished the evaluation
process since September of 2014 so there can be no FAPE being provided, if it is necessary."
Doe. 19-3 at 10 (emphasis added). From this Court's research, compensatory education claims
appear in federal courts m situations where a student's disability has been established before the
filing of a due process complaint with a state hearing examiner. See generallv Forest Grove Seh.
Dist. V. T.A.. 557 U.S. 230, 242(2009)(although not such a ease itself, describing as "common"
the "situation in which a school district has provided a child with some special-education
services and the child's parents believe those services are inadequate"); Doe ex rel Doe v. Todd
Ctv. Seh. Dist.. 625 F.3d 459 (8th Cir. 2010); M.M. ex rel. L.R. v. Special Seh. Dist. No. 1. 512
F.3d 455 (8th Cir. 2008); Seh. Bd. of Indep. Seh. Dist. No. 11 v. Renollett. 440 F.3d 1007 (8th
Cir. 2006); Hale ex rel. Hale v. Poplar Bluffs R-I Sch. Dist.. 280 F.3d 831 (8th Cir. 2002); Indep.
Sch. Dist. No. 284 v. A.C., 258 F.3d 769(8th Cir. 2001); Strawn v. Mo. State Bd. of Educ.. 210
F.3d 954 (8th Cir. 2000). In this case, Artichoker as the prevailing party is appealing a lack of
compensatory education award in a situation where the hearing examiner's decision ordered the
School District to evaluate D.D., and for D.D. to receive an lEP if needed.
Not surprisingly, then, because all the evidence arguably justifying compensatory
education services was not available or in existence at the time of the hearing, Artichoker has
sought to engage m discovery and supplement the record, with two pending motions to
supplement the record. Docs. 38, 41, and two motions to compel discovery. Docs. 42, 44. In
addition to the reasons listed below, because Artichoker's motions to compel discovery have no
bearing on the outcome of this case, they are both denied. This Court has read each of the
complained-of questions and answers in Artichoker's Motion to Determine Sufficiency of
Defendant's Answers to Request for Admissions, Doc. 42, and has determined that the School
District was entitled to use the explanatory responses that it did. Artichoker's requests were not
"straightforward" or "unequivocal," Doc. 43, m that they attempted to distill case-dispositive
applications offacts to law into one-sentence requests for admissions; the Motion is denied.^ See
Disabilitv Rights Council v. Wash. Metro. Area. 234 F.R.D. 1, 3(D.D.C. 2006).
This Court previously allowed Artichoker to supplement the record, but noted the nature
of this administrative appeal and "reserve[d] judgment on what weight and value to give the
^ Artichoker also filed a Motion for Order Directing Counsel for the Defendant to Sign the
District's Responses to Plaintiffs Request for Admissions, Doc. 44, and supporting
memorandum. Doc. 45. The School District's Responses to Plaintiffs Second Request for
Admissions was signed by the Superintendent of the School District with the School District's
counsel signing only a certificate of service and not a certification under Rule 26(g)(1)(B) of the
Federal Rules of Civil Procedure. Although such a certification should have been made, the
issue is moot in light ofthis Court's rulings.
additional evidence." Doc. 27 at 1. This Court will allow supplementation of the record again,
but is mindful of its scope of review of supplemented evidence. Although a district court may
consider additional evidence as provided by parties in its review, and this Court has done so, it
must be careful not to let the review devolve into a trial de novo. See Town of Burlington. 736
F.2d at 791: West Platte. 439 F.3d at 785; Yankton Sch. Dist.. 900 F. Supp. at 1186.
The Eighth Circuit's IDEA jurisprudence takes a restrictive approach regarding
supplementation of the record, which indicates to this Court that it should weigh more heavily
the information known by the hearing examiner at the time of the heanng. See West Platte. 439
F.3d at 785; Yankton Sch. Dist.. 900 F. Supp. at 1186; see also McComish. 2007 WL 1892086,
at *2. At that time, D.D. had yet to be evaluated for special education services. In order to
award compensatory education, the hearing examiner would have had to assume both that D.D.
would ultimately be found to qualify for special education services, and that D.D.'s lEP would
not include adequate compensatory education to resolve the three and a half month denial of
FAPE experienced by D.D. during her suspension. See Doc. 19-3 at 9("Based on the above, it is
inappropriate for this examiner, before knowing if services are mandated, to order Ms.
Artichoker's requests for only Rapid City intervention."). The hearing examiner theoretically
could have awarded general or specific compensatory education in the form of hours of tutoring,
but this would have risked doubling any special accommodation and structure that might be
included in D.D.'s lEP.
This Court feels it inappropriate to vacate or reverse in part the hearing examiner's
decision and then fashion an award of compensatory education to D.D. Judicial review under the
IDEA is necessarily limited, because federal judges are not trained educators, nor are they
regularly charged with creating educational policy. See Rowlev. 458 U.S. at 206; Blackmon v.
Springfield R—XII Sch. Dist.. 198 F.3d 648, 655 (8th Cir. 1999). Nearly two years have passed
since D.D.'s suspension, and during that time she has progressed two grade levels. ^Doc. 19-
2(D D.'s February 18, 2016 IE? listing D.D. as being in 8th grade); Doc. 49 at 2:23pm-2:25pm
(D.D.'s counsel affirming that D.D. is now in 9th grade). In these circumstances, it is
inappropriate for this Court to overturn the decision of the hearing examiner, or, even after an
evidentiary hearing, to write an order that would essentially be a new lEP providing specific
hours and types of compensatory education. Such an order would require this Court to
"substitute [its] own notions of sound educational policy for those of the school authorities,"
which the Supreme Court has cautioned against. Rowlev, 458 U.S. at 206. Some courts have
remanded decisions on particular compensatory educational services to the hearing examiner for
further consideration, but here the hearing examiner made no error in her ruling, and could not be
expected to fashion a remedy prior to the evaluation and lEP having been done. Accord Thomas
V. Distnct of Columbia. 407 F. Supp. 2d 102, 115 (D.D.C. 2005) (remanding after finding
hearing examiner incorrectly interpreted IDEA statute, but refusing to fashion a compensatory
education award itself because the record lacked both evidence that it would benefit the child and
evidence that it may not be needed because it would not help or the child "has flourished in his
current placement"). Moreover, Artichoker's specific request for compensatory services from
the hearing examiner—four months of one-on-one tutoring and daily psychological counseling
provided by professionals in Rapid City, outside the School District—likely exceeds what is
proper to award. See Doc. 40-13 at 16; Doc. 19-3 at 9("Based on the above, it is inappropriate
for this examiner, before knowing if services are mandated, to order Ms. Artichoker's requests
for only Rapid City intervention."). The IDEA has been interpreted time and again to provide
and guarantee FAPE for students with disabilities—a floor, baseline level of education, not the
best education possible for a child.
Rowley. 458 U.S. at 203; A.W. v. Northwest R-1 Sch.
Dist.. 813 F.2d 158, 163-64 (8th Cir. 1987); Fort Zumwalt Sch. Dist. v. Clvnes. 119 F.3d 607,
612(8th Cir. 1997); K^,647 F.3d 795, 809(8th Cir. 2011).
The IDEA does not require an award of compensatory educational services every time a
child has been denied FAPE. Cases outside the Eighth Circuit favor awards of compensatory
education, as "replacement of educational services the child should have received in the first
place." Reid ex rel. Reid v. Distnct of Columbia. 401 F.3d 516, 518 (D.C. Cir. 2005); see also
G. ex rel. R.G. v. Fort Bragg Dependent Sch.. 343 F.3d 295, 308-09 (4th Cir. 2003); Doc. 18 at
Even so, such eases, especially within the Eighth Circuit, require compensatory
education only when and in the amount "necessary to secure the child's right to a free
appropriate public education," Miener. 800 F.2d at 753, in reflection of the IDEA'S instruction
that relief should be granted "as the court determines is appropriate," 20 U S.C §
1415(i)(2)(C)(iii). S^ Burlington. 471 U.S. at 369 (explaining that a reviewing court has
discretion in awarding relief"'appropriate' in light of the purpose of the [IDEA]"); Birmingham
V. Omaha Sch. Dist.. 220 F.3d 850, 856 (8th Cir. 2000) ("[T]he district court may order
compensatory education if it deems such a remedy just and proper . .. ."); Parents of Student W.
V. Puvallup Sch. Dist. No. 3. 31 F.3d 1489, 1497 (9th Cir. 1994)("Appropriate relief is relief
designed to ensure that the student is appropriately educated within the meaning of the
IDEA.... It may be a rare ease when compensatory education is not appropriate, but it was not
an abuse of the district court's discretion to decide that this case was such a rarity."). D.D. was
provided with an evaluation and is currently working under an lEP to address her behavioral and
special learning disability issues. Doc. 19-2. D.D. was in seventh grade when she was
suspended for three and a half months, but has progressed and reportedly was enrolled in ninth
grade classes at the Our Home facility. While D.D., like most children, would benefit from
private tutoring and counseling, she is progressing through the educational system with the
services provided in her lEP. If she needs private tutoring now as a consequence of what
occurred in her seventh grade year, or as part of the lEP, the proper course is to seek to modify
the lEP and file a claim if there is disagreement with that lEP.
For the above reasons, this Court determines that Artichoker has not met the required
burden of proof that the hearing examiner erred in not providing specific compensatory
education to D.D., and denies Artichoker's motion for partial summary judgment on this issue.
While this Court is sympathetic to the difficulties that Artichoker has had in attempting to
obtain a standard level of education for her child, she has not met her burden of persuading this
Court that the hearing examiner erred. Educational policy, and the proper progression of a
student's education are decisions best made initially by the educators in daily contact with the
student. At the time of the hearing examiner's decision, D.D. had not yet been evaluated, and
did not have an lEP; it was impossible for the hearing examiner to know whether D.D. would
qualify for compensatory educational services or not have adequate services provided through a
future lEP. The School District, similarly, has failed to persuade this Court that the hearing
examiner erred in its decision that D.D. experienced an undue delay in receiving an evaluation
and a subsequent FAPE demal.
Therefore, it is hereby
ORDERED that Plaintiffs Motion for Leave to Submit Additional Evidence, Doc. 38, is
granted and that additional material may be part of any record on appeal. It is further
ORDERED that Plaintiffs Motion to Supplement the Record with Admissions by
Defendant, Doc. 41,is granted. It is further
ORDERED that Plaintiffs Motion to Determine the Sufficiency to Defendant's Answers
to Request for Admissions, Doc. 42, is denied. It is further
ORDERED that Plaintiffs Motion for Order Directing Counsel for the Defendant to Sign
the District's Responses to the Plaintiffs Request for Admissions, Doc. 44, is denied as moot. It
ORDERED that Plaintiffs Motion for Partial Summary Judgment, Doc. 18, is denied to
the extent that it seeks reversal on the absence of compensatory education services. It is further
ORDERED that Defendant's Cross-Motion for Partial Summary Judgment, Doc. 23, is
denied. It is finally
ORDERED that the decision ofthe hearing examiner is affirmed.
DATED this ^ day ofDecember, 2016.
BY THE COURT:
ROBERTO A. LANGI
UNITED STATES DISTRICT JUDGE
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