Thomas BRADLEY, as Natural Guardians of, and on behalf of David BRADLEY, a minor, individually and on behalf of themselves and all others similarly situated; Dianna Bradley, as Natural Guardians of, and on behalf of David Bradley, a minor, individually and on behalf of themselves and all others similarly situated, Plaintiffs—Appellants, v. ARKANSAS DEPARTMENT OF EDUCATION; Mike Crowley, individually and in his capacity as an employee of the Arkansas Department of Education; Williford School District 39; John Does, 1—10, Defendants—Appellees. David Bradley, and his parents and next friend, Plaintiff, Thomas Bradley, individually and on behalf of all others similarly situated; Dianna Bradley, individually and on behalf of all others similarly situated, Plaintiffs—Appellants, v. Arkansas Department of Education; Raymond Simon, in his official capacity as Director of the Department, as well as individually; Diane Sydoriak, in her official сapacity as Director, Special Education and individually; Marcia Harding, in her official capacity as Acting Associate Director, Special Education and individually; Mike Crowley, in his official capacity as Administrator for Special Education Monitoring and Technical Assistance and individually; Williford School District 39, its Superintendent and Board, respectively; Bruce Evans, in his official and individual capacities; Clinton Madison, in his official and individual capacities; Rodney Despain, in his official and individual capacities; Jeff Goings, in his official and individual capacities; Don Coggins, in his official and individual capacities; Eddie Gray, in his official and individual capacities, Defendants—Appellees.
No. 04-3520.
United States Court of Appeals, Eighth Circuit.
Submitted: Nov. 17, 2005. Filed: April 7, 2006.
444 F.3d 965
Ingram argues finally that the statute of limitations should be equitably tolled because she was 15 years old when T.L. was born. Ingram notes that she had no legal guardian at the time, although her grandmother had cared for her since she was six years old. In Wilson ex rel. Wilson v. Gunn, 403 F.3d 524, 526 (8th Cir. 2005), we held that the FTCA limitations period was not tolled merely because an infant’s mother was also an “infant parent” at the time of the delivery. We noted that while the mother could not herself commence a civil suit, she was responsible for her daughter’s well-being, knew of the alleged injuries and their cause just days after the delivery, and could make аn administrative claim while still an “infant.” Id. at 527.
Ingram is T.L.’s mother and has been responsible for her care since T.L.’s birth, as evidenced by her signature on the form consenting to transfer T.L.’s care from Deaconess to Cardinal Glennon Children’s Hospital. The district court found that Ingram was aware of T.L.’s brain damage shortly after her birth. Although Ingram herself did not have an appointed guardian, her grandmother was actively involved in her care, was informed of T.L.’s brain damage and poor prognosis, and eventually became Ingram’s guardian for the purpose of filing the civil suit against the doctors in state court. Ingram’s family even retained an attorney for her six days after T.L.’s birth. Although a minor, Ingram could have filed an administrative claim. Wilson, 403 F.3d at 527. Under these circumstances, it is not inequitable to apply the ordinary rule that infanсy does not toll the statute of limitations.
* * * * *
For the foregoing reasons, we affirm the judgment of the district court.
Sherri L. Robinson, argued, Asst. Atty. Gen., Little Rock, AR, for State Appellees.
W. Paul Blume, argued, Little Rock, AR, for Williford Appellees.
Before MURPHY, BOWMAN, and GRUENDER, Circuit Judges.
BOWMAN, Circuit Judge.
Thomas and Dianna Bradley, on behalf of their son David Bradley, appeal from the judgment of the District Court,1 entered after a bench trial, dismissing their claims against all defendants, including the Arkansas Department of Education (ADE); the Williford, Arkansas, School District; and several individual defendants. We affirm.
David Bradley, born in May 1981, was diagnosed at a young age with autism2 and was, at the relevant times, a student with a disability entitled to special education and related services under the Individuals with Disabilities Education Act (IDEA or Act),
At the time of trial, there were fewer than 300 children in the entire Williford School District, kindergarten through twelfth grade.4 David started first grade, and completed elementary school, in the Williford school system. At some point, a written individualized education program, or IEP, was developed for David. See
The Bradleys felt that David was not learning as he should and called for a meeting of David’s IEP team (parents, teachers, and others, see id.). Dissatisfied with the results of that meeting, the Bradleys called in consultant Sidney Padgett, a psychologist speciаlizing in developmental disabilities, who had evaluated David earlier in grade school. Padgett and Rita Lee, a behavior consultant, observed David and made written recommendations. The Bradleys called for another IEP meeting where the recommendations of Padgett and Lee were presented to the team. That was followed in the spring of 1995 by an annual review conference. Again dissatisfied with the response from other members of the IEP team, the Bradleys requested a due process hearing in April 1995 to address the proposed 1995-96 IEP. See
After David started the eighth grade in the fall of 1995, the Bradleys concluded that the School District was not following David’s IEP. Thomas Bradley filed an administrative complaint with the ADE in March 1996. Among the charges: the School District hired an aide for David without consulting the IEP team and failed to give her intensive training (although the evidence showed that thе aide was trained by Padgett, the consultant chosen by the Bradleys), the software the District agreed to purchase for David’s use at home was more than sixty days late, and there were problems with the integrated speech therapy and the occupational therapy the District was to provide for David. The state employees who conducted the investigation reviewed the case file; the IEP; the notes from weekly meetings held with David’s teachers and others, including his parents; and David’s school records. They interviewed the Bradleys and others who were involved in David’s education. The investigative team found that the only charge with merit concerned David’s occupational therapy. The Bradleys had located the occupational therapist fоr David when it was the School District’s responsibility to do so. By the time the School District contacted the therapist and arranged for payment and transportation to the therapist’s office in Jonesboro (about an hour and a half away from Williford), the implementation of this IEP service was six days late. The School District was directed to provide two hours of compensatory occupational therapy.
As David’s eighth-grade year was drawing to a close in the spring of 1996, David’s IEP team met to review and revise the IEP in anticipation of David’s ninth-grade year. The IEP for 1996-97 was far less detailed than the one for 1995-96 that had been negotiated with the hearing officer, and Thomas Bradley was not happy. In May 1996, he requested another due pro-
In April 1997, near the end of David’s ninth-grade year, Thomas Bradley filed another administrative complaint with the ADE. This time he alleged that David’s IEP had not been updated, effectively denying David a free appropriate public education, and that a current transition plan was not a part of David’s IEP.9 The Bradleys thought the School District was misapplying the “stay-put” provision of the IDEA, which provides for maintenance of current educational placement during the pendency of any proceedings brought under the Act. See
The Bradleys filed a second suit in October 2000, which was consolidated with the first. When the District Court denied qualified immunity to three ADE officials, sued in their individual capacities for damages, they filed an interlocutory appeal. We concluded that all three officials were entitled to qualified immunity on the Bradleys’ claims for damages. Bradley v. Ark. Dep’t of Educ., 301 F.3d 952 (8th Cir.2002).
by the Williford School District: a 1997-98 IEP for the tenth grade and a current transition plan for David were both on file. In the meantime, on May 1, 1997, an article about the conflict between the Bradleys and the School District appeared in the Jonesboro Sun newspaper. Thomas Bradley and Evans were quoted in the article. Following that publication, the Bradleys reported harassing incidents and phone calls at their home and initiated some prosecutions of the students involved. Students who bothered David at school and could be identified were suspended or otherwise punished. There was no evidence that the defendants were involved in any of these incidents.
Effective July 1, 1997, Evans was named superintendent of the Williford schools but continued to direct David’s IEP. In formulating David’s 1997-98 (tenth grade) IEP, a major change was made in the plan. Previously, at the behest of his parents, David had only been graded on the work that he chose to complete, including tests. As a consequence, he was making As and Bs. A majority of the IEP team members was concerned thаt this practice was creating holes in David’s knowledge base that would become a real problem for him, so that provision was removed. Although the Bradleys did not sign this IEP, they did not appeal it, and the School District began implementing the plan when David started the tenth grade in the fall of 1997. When graded on all work, completed or not, David began failing some of his classes.
At a December 1997 meeting about a remediation plan to close the now obvious gaps in David’s learning, Thomas Bradley expressed hostility to the plan and to Evans personally. A few days later, Bradley confronted Evans in a manner that made Evans feel threatened. Evans complained to the deputy prosecutor, who filed charges against Bradley. By the time
Meanwhile, back on December 1 and 29, 1997, the ADE received additional requests from Thomas Bradley for due process hearings. The first of these requests challenged the School District’s refusal to pay for an assistive technology evaluation for David.10 The hearing officer found that the District had already paid for two such evaluations, the most recent on December 11, 1996, and had scheduled a meeting of David’s IEP team in February 1997 to discuss the recommendations. In addition, Evans testified at the hearing regarding a proposal to evaluate assistive technology for David in early 1998. In her report issued in January 1998, the hearing officer said there was no violation. In the complaint the ADE received on December 29, 1997, Thomas Bradley alleged that David’s IEP was not appropriate and that the School District had denied David a free appropriate public education because the District had not arranged for a comprehensive evaluation of David. In March 1998, the hearing officer found that the District had performed the necessary evaluations and that the current IEP was not the one developed for the 1995-96 (eighth grade) school year, as Thomas Bradley alleged, but was developed specifically for the 1997-98 (tenth grade) school year, and the Bradleys’ refusal to sign the 1997-98 IEP did not stop its implementation. According to the hearing officer, the Williford School District was not in violation of the IDEA.
On March 10, 1998, the ADE received a request from Thomas Bradley for a due process hearing on the question of David’s placement. On March 31, in an interim order, the hearing officer ordered the School District to begin providing offsite instruction. The School District complied with the order, providing David with instruction at a neutral location, a fire station about three blocks from the school. The hearing officer further ordered the Bradleys to provide the School District with the qualifications of the psychologist who had diagnosed David with school phobia and to check with that psychologist about getting a full evaluation of David, to be paid for by the School District. At its option, the School District could get its own evaluation done, and the Bradleys were to make David available. As it turns out, the opinion of the District’s specialist regarding David’s placement did not differ significantly from the opinion of the Bradleys’ psychologist.
A full hearing was held in August 1998. Finding that both professionals agreed that homebound schooling was the appropriate placement for David, the hearing officer ordered the parties to prepare an IEP compatible with off-site schooling with full curriculum instruction and compensatory education through the summer of 1999. The School District was required to provide a teacher properly trained in educating autistic students. David’s IEP was revised accordingly.
Evans set up interviews with prospective teachers. He permitted Thomas Bradley to interview the applicants separately, even though the School District had discretion under the order to choose the teacher. Evans hired the person recommended by the Bradleys and arranged to have her trained. She began instructing David twelve hours a week at his home,
At the start of the summer in 1999, David’s IEP was revised, at the request of his parents, to reduce the number of hours of instruction for his compensatory education from twelve to eight. When the fall semester began, his parents asked that it be reduced to four hours. When Evans suggested in the spring of 2000 that David take some classes at a vocational-technical school, the Bradleys were interested. In the fаll of 2000, David began taking some remediation classes at the vo-tech school. The School District paid for tuition, books, and transportation, and the vo-tech school arranged for an aide. The School District also continued to provide homebound instruction, speech and occupational therapy, driving lessons, and private art lessons, including transportation when necessary. At the Bradleys’ request, the School District graduated David from Williford High School in December 2000. Evans told the Bradleys that the School District’s obligations to David could continue until he reached the age of twenty-one, if the parents so desired. See
In February and March 2004, the District Court held a bench trial on the Bradleys’ claims and issued written findings of fact and conclusions of law. The court determined that none of the defendants violated federal law. The Bradleys appeal, raising three issues under the IDEA and one under § 504 of the Rehabilitation Act.
For their first IDEA issue, the Bradleys challenge a finding by the District Court necessary to the conclusion that the Williford School District did not violate the IDEA in its handling of the education of David Bradley. The court credited the opinion of the School District’s expert that David’s standardized test scores showed he “made educational progress.” Findings of Fact and Conclusions of Law at 11 (factual finding 73). The Bradleys argue that the evidence was insufficient to support this finding. In support of their contention, they point to David’s scores on standardized tests over the years. Indeed, he did not perform well, but he did perform consistently. That is, as the School District’s expert pointed out, the scores on these tests are not based on the raw number of correct answers. Instead, David’s correct answers were compared with the answers of students across the country who took the same test at the same age. As the expert explained, for David to be performing consistently, he had to be learning at the same pace as his peers, that is, he was making academic progress. We see no clear error in this finding of fact. Gill v. Columbia 93 Sch. Dist., 217 F.3d 1027, 1035 (8th Cir. 2000) (standard of review).
The Bradleys next argue that David’s IEPs “were not reasonably calculated to enable David to receive educational benefits.” Aрpellants’ Brief at 46. To begin, the Bradleys specifically challenge the determination by a hearing officer that two of the issues Thomas Bradley raised in one of his requests for a due process hearing—teacher training and appropriate computerized instruction for David—were not justiciable in such a hearing. The District Court made no findings or conclusions on this part of the hearing officer’s decision. As we have said, supra note 7, it appears that the hearing officer was mistaken, at least in part, in his ruling. But we need not consider the merits of the justiciability issue or whether it is even properly before us because we conclude that resolution of the question will not change the result. Accordingly, we proceed directly to our de novo review of the District Court’s сonclu-
In response to the Bradleys’ IEP argument, the School District first contends that the Bradleys have challenged only the 1995-96 (eighth grade) IEP in this lawsuit. In fact, the Bradleys’ original complaint references only the May 1995 due process hearing on the 1995-96 IEP. In their Reply Brief, the Bradleys refer to the challenged IEP as “the 1995-96 IEP for 9th grade”—although the 1995-96 IEP was for eighth grade. Appellants’ Reply Brief at 10 n.6 (emphasis added). To further muddy the waters, Thomas Bradley testified at trial that the order from the 1996 due process hearing on the 1996-97 (ninth grade) IEP was the only one being challenged in the lawsuit. Transcript at 60, 125. But we will not try to sort it all out at this stage of the litigation because we conclude that the Bradleys have asked the federal courts in their consolidated lawsuit to consider the appropriateness of the overall education provided to David by the Williford School District since the seventh grade, therefore implicating all of the IEPs from that time period. We will give the Bradleys the benefit of the doubt and conduct our review considering all of David’s IEPs from the relevant period, as did the District Court.
The District Court found that the “Williford School District developed and adopted [IEPs] reasonably calculated to enable David to receive educational benefits.” Findings of Fact and Conclusions of Law at 11 (factual finding 72). Although the court characterized this as a factual finding, the ultimate conclusion is a mixed question of law and fact that we review de novo, with any pure factual findings reviewed for clear error. Gill, 217 F.3d at 1035. Notwithstanding that our review is de novo, “we must give ‘due weight’ to the outcomе of administrative proceedings, giving particular consideration to state officials’ educational judgments.” Mo. Dep’t of Elementary & Secondary Educ. v. Springfield R-12 Sch. Dist., 358 F.3d 992, 998 (8th Cir.2004) (quoting Rowley, 458 U.S. at 206, 102 S.Ct. 3034). We recognize that the hearing officers “had an opportunity to observe the demeanor of the witnesses,” and we are mindful that it is not the place of the courts to “substitute [our] own notions of sound educational policy for those of the school authorities that [we] review.” Strawn v. Mo. State Bd. of Educ., 210 F.3d 954, 958 (8th Cir.2000). In none of the administrative proceedings in this case did the hearing officer find that a challenged IEP was in violation of the IDEA. (After the final due process hearing, David’s IEP was inappropriate only because it was determined that his placement should be changed to homebound schooling. His IEP was revised accordingly.)
“The standard to judge whether an IEP is appropriate undеr IDEA is whether it offers instruction and supportive services reasonably calculated to provide some educational benefit to the student for whom it is designed.” Gill, 217 F.3d at 1035 (emphasis added). The record reveals that the School District and Evans were sincere in their efforts not just to provide some educational benefit to David, but to put together IEPs that would give David superior educational benefit. Many of the suggestions of the Bradleys’ consultants were incorporated into David’s IEPs. The factual finding regarding David’s academic progress shows not only that the IEPs were reasonably calculated to provide educational benefit to David, but that they had the desired effect. “[T]he IDEA does not require that schools attempt to maximize a child’s potential, or . . . guarantee that the student actually make any progress at all.” CJN v. Minneapolis Pub. Sch., 323 F.3d 630, 642 (8th Cir.),
To the extent the Bradleys are really challenging the implementation of the IEPs, that argument also fails. The record reveals that the persons responsible for implementing David’s IEPs, Bruce Evans in particular, made every effort to provide the services called for. Evans and Thomas Bradley attended training conferences, with fees and travel expenses paid for by the School Distriсt. The District hired and trained aides for David. Weekly meetings were held with those responsible for David’s education, and his parents were invited to attend. Computers and software were purchased for David’s use. At school, he was allowed to leave the classroom to take a break if he felt overwhelmed and to leave class five minutes early to dress for gym. His father was permitted to stay at the school all day (until restrained by the court) to calm and refocus David as necessary. David was provided with a break room to which he could retreat when he was unable to cope with sensory stimulation from his environment. The District paid for speech and occupational therapies and private art and driving lessons, and provided transportation when neсessary. It may be that the District could have done more. Thomas Bradley thought at times that too many of the School District’s responsibilities fell to him because the District was not acting quickly enough. There also was some evidence that the purchased software was not being used effectively, in part because not all of David’s teachers were properly trained to use it. So perhaps the District’s implementation of David’s IEPs, like the IEPs themselves, was not perfect. But the “IDEA does not require that a school either maximize a student’s potential or provide the best possible education at public expense.” Fort Zumwalt Sch. Dist. v. Clynes, 119 F.3d 607, 612 (8th Cir.1997), cert. denied, 523 U.S. 1137, 118 S.Ct. 1840, 140 L.Ed.2d 1090 (1998). We conclude that the Williford School District was not in violation of the IDEA in its implementation of David’s IEPs. In sum, we hold that the IEPs, in both formulation and implementatiоn, were reasonably calculated to enable David to receive educational benefits.
The Bradleys further challenge the IEPs because, they allege, the IEPs were developed “without the assistance of persons knowledgeable about Asperger[’s].” Appellants’ Brief at 49. This goes to the teacher and staff training, which the Bradleys perceived to be inadequate. The incidence of David’s particular disability was low in the special education programs of Arkansas public schools in general and the Williford School District in particular, so the training may not have been as intensive or as thorough as the Bradleys would have liked. But we see no error in the District Court’s factual finding that the School District “provided appropriate training for its personnel in the implementation of the IEP’s.” Findings of Fact and Conclusions of Law at 11 (factual finding 74). The record reflects considerable training of David’s teachers, aides, and even his fellow students. Thomas Bradley wanted more. But as we have said, the IDEA does not require that parental preferences be implemented, so long as the IEP is reasonably calculated to provide some educational benefit. See Blackmon v. Springfield R-XII Sch. Dist., 198 F.3d 648, 658 (8th Cir.1999). If the plan is so
The Bradleys next charge that the District Court erred in dismissing their complaint without making a finding that the School District did not retaliate against them in violation of § 504 of the Rehabilitatiоn Act,
Section 504 provides that no individual with a disability “shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity” that receives federal funding.
Under the Rehabilitation Act, “to be engaged in a protected activity,” the Bradleys “must have been protesting what [they] perceived as discriminatory” action taken by the School District. Sherman v. Runyon, 235 F.3d 406, 410 (8th Cir.2000). Threatening Evans and keeping David out of school in violation of state law likely are not protected activities. On the other hand, the Bradleys’ requests under the IDEA for state investigations into David’s education in Williford, their calls for due process hearings under the IDEA, and their filing an IDEA lawsuit might be protected activities for purposes of a § 504 retaliation claim. As for the alleged adverse action, the Bradleys essentially contend that David’s right to a free appropriate public education under the IDEA was negatively affected by the actions of the School District. They also claim a “steady stream of adverse actions taken by the District against the Bradleys.” Appellants’ Brief at 57. To the extent they are relying on actions taken against someone other than David, it is not clear that such actions can support a § 504 claim. The Bradleys have identified no Eighth Circuit cases where action against a parent who is exercising IDEA rights on behalf of his disabled child has been determined to be “adverse action” for a § 504 claim of retaliation. But we need not address that question in this case because we hold that the Bradleys have not shown that any adverse action was taken in response to protected activity. That is, they cannot show a causal connection between the two.
Evans filed a complaint with the prosecutor’s office because he felt physically threatened by Thomas Bradley. (The actual charges, it should be noted, were filed at the discretion of the prosecutor, not Evans.) The Bradleys have made no effort to show that Evans’s explanation for his actions was pretextual and that he really was punishing Thomas Bradley for seeking to vindicate David’s rights under the IDEA. See Sherman, 235 F.3d at 410. We hold that the District Court clearly erred if it was suggesting otherwise when it found that Evans “filed criminal charges of terroristic threatening and disorderly conduct” and got a restraining order against Thomas Bradley “[i]n retribution” for Bradley’s threat to sue Evans personally if Evans did not meet his demands regarding David’s education. Findings of
Finally we come to the claims against the ADE, also dismissed after the District Court concluded that the state agency did not violate the IDEA or
The IDEA presently requires that the state have in place “a comprehensive system of personnel development [CSPD] that is designed to ensure an adequate supply of qualified special education, regular education, and related services personnel” consistent with the IDEA’S requirements for personnel development.
The Bradleys argue that the ADE’s receipt of a state improvement grant does not bar a remedy of compensatory education for David since he was not in school when the first grant was approved in 2003. But as we have said, David’s personal rights under the IDEA were not violated, regardless of the ADE’s purported failures in training and monitoring while David was attending school in the Williford School District, so he cannot receive compensatory education at the state’s expense for an alleged statewide failure of the ADE’s special education training program. And in any event, the District Court found that Arkansas’s state plans (or “assurances” when plans were no longer required), in-
We hold that the District Court properly dismissed all of the Bradleys’ claims. The judgment is affirmed.
BOWMAN
CIRCUIT JUDGE