Bradley v. Arkansas Department of Education

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3520
___________
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; * Appeal from the United States
Mike Crowley, individually and in his * District Court for the
capacity as an employee of the * Eastern District of Arkansas.
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 capacity 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. *
___________
Submitted: November 17, 2005
Filed: April 7, 2006
-2-
___________
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), 20 U.S.C. §§ 1400–1491o.3 The IDEA requires that children with disabilities
be afforded a free appropriate public education. "The core of the statute . . . is the
cooperative process that it establishes between parents and schools." Schaffer v.
1
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
2
There was testimony at trial that it is likely that David's disability is high-
functioning autism or Asperger's Syndrome. According to the American Psychiatric
Association, autism and Asperger's Syndrome are distinct conditions, although they
share some of the same characteristics. American Psychiatric Ass'n: Diagnostic and
Statistical Manual of Mental Disorders 82–83 (Michael B. First, M.D., et al. eds., 4th
ed. Text Revision 2000). In any event, it is without dispute that David has at least
average intelligence.
3
Except where indicated, we cite the 1994 edition of the United States Code,
the version in effect when the events leading up to this litigation began. We note,
however, that the Act was substantially overhauled by the IDEA Amendments of
1997, Pub. L. 105-17, 111 Stat. 37. So we cite post-1997 decisional law for legal
propositions only if substantive 1997 IDEA amendments are not implicated.
-3-
Weast, 126 S. Ct. 528, 532 (2005). As we will explain, the record in this case reflects
a regrettable failure of that cooperative process.
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 20
U.S.C. § 1401(a)(20) (defining IEP).5 Through the sixth grade, David received most
of his instruction in a regular classroom, supplemented by indirect services (therapy
sessions and other classes not provided by his classroom teachers) and some time in
a resource classroom for special education. Someone accompanied him when he
changed classrooms. But when David entered the seventh grade in the fall of 1994,
it was necessary for him to change classrooms by himself, and he became frustrated
and anxious about going to school. In order to relieve some of David's stress, his
father began going to school with David and staying there all day, sometimes staying
with David in David's classroom.
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 specializing in developmental disabilities, who had evaluated David
earlier in grade school. Padgett and Rita Lee, a behavior consultant, observed David
4
At oral argument, the Court was advised that the Williford School District has
been consolidated into a larger district and thus no longer exists.
5
The 1997 IDEA amendments, which became effective in the middle of this
litigation, significantly broaden the IEP requirements. Compare 20 U.S.C. § 1414(d)
(2000) with 20 U.S.C. § 1401(a)(20) (1994); see also 34 C.F.R. §§ 300.340–.350
(1995 & 2005). These amendments appear not to have had an impact on the
formulation of David's IEPs after their effective date, and none of the parties
mentions the amendments in relation to those IEPs.
-4-
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 id.
§ 1415(b)(2) (providing for an impartial due process hearing at the parents' request).
The parties, together with the hearing officer, negotiated an IEP acceptable to the
Bradleys, which incorporated suggestions of Padgett, Lee, and the family. By the fall
of 1995, the superintendent of schools had named Bruce Evans, an English teacher
and former coach, as administrative assistant and had made him responsible for
supervising the implementation of David's IEP. Around this time, it was also agreed
that it would be a positive step to phase out David's excessive reliance on his father,
with Thomas Bradley gradually increasing the distance between himself and his son
while David was at school.
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 the 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 for David
when it was the School District's responsibility to do so. By the time the School
-5-
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 process hearing. He thought that the 1996–97
IEP omitted most of the positive modifications that had been included a year before.
The hearing officer identified the primary issue as an alleged denial of a free
appropriate public education to David because of these purported flaws in his IEP:
it relied on inaccurate test data, it did not require the assistive technology (computer
software) that David needed, it did not provide for extended-year speech and
occupational therapies, the related services6 were inadequate, and the behavior
management plan was inadequate. Other issues included in-service training of school
personnel about autism and reimbursement for an independent evaluation sought by
the Bradleys.7 Late in October, the hearing officer, rejecting Thomas Bradley's
arguments, ruled in favor of the School District and ordered immediate
implementation of the 1996–97 IEP. In December 1996, the Bradleys filed suit
6
"Related services" are defined as transportation and other services that must
be provided for a child to benefit from special education, such as counseling, therapy,
and recreation. 20 U.S.C. § 1401(a)(17).
7
On the training question, the hearing officer ruled that the issue was not
justiciable in a due process hearing. That was an erroneous ruling, as counsel for the
state defendants acknowledged at oral argument.
-6-
against the ADE, the Williford School District, and various individuals charging,
inter alia, violations of the IDEA and the Rehabilitation Act.8
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 20 U.S.C. § 1415(e)(3)(A).
This "stay-put provision ensures an uninterrupted continuity of education for a
disabled child pending administrative [or judicial] resolution," unless the school and
8
This case has been in the federal system for nearly ten years because of
interlocutory appeals unrelated to the merits. First, the District Court denied the state
defendants' motion to dismiss on Eleventh Amendment grounds. In an appeal,
consolidated with another case, we affirmed, holding that the state had waived its
Eleventh Amendment immunity and could not argue that defense on the IDEA claim.
Bradley v. Ark. Dep't of Educ., 189 F.3d 745 (8th Cir. 1999). Parts of that opinion
(not relevant here) were vacated for rehearing by the Court en banc. Jim C. v. Ark.
Dep't of Educ., 197 F.3d 958 (8th Cir. 1999). The en banc opinion is found at Jim C.
v. United States, 235 F.3d 1079 (8th Cir. 2000), cert. denied, 533 U.S. 949 (2001).
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).
9
A transition plan should call for services that assist the disabled child in
preparing for life after school. See 20 U.S.C. § 1401(a)(19) (defining "transition
services"). For example, one of David's plans included activities such as exploring
career opportunities, working on personal finance skills, and studying for his driver's
license.
-7-
the parents otherwise agree. Light v. Parkway C-2 Sch. Dist., 41 F.3d 1223, 1227
(8th Cir. 1994), cert. denied, 515 U.S. 1132 (1995). Late in June 1997, a report was
issued stating that the investigation found no violations 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 that 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 school resumed after the Christmas holiday,
Bradley had been arrested and legally restrained from going into David's school.
-8-
Because he could not accompany David, Bradley refused to send his son to school.
In February 1998, Bradley presented the School District with a one-page report from
a psychologist who had diagnosed David with school phobia and prescribed
homebound schooling. The School District resisted the recommendation. Members
of David's IEP team did not feel that homebound schooling was in David's best
interests, especially in terms of his socialization, or that his home was the least
restrictive learning environment—the IDEA's preference—in which David could
receive a free appropriate public education. See 20 U.S.C. § 1412(5)(B) (noting that
disabled children, to the extent possible, should be educated in the regular classroom
with children who are not disabled); see also Bd. of Educ. v. Rowley, 458 U.S. 176,
202 (1982); Indep. Sch. Dist. No. 283 v. S.D., 88 F.3d 556, 561 (8th Cir. 1996)
("IDEA enacted a strong preference that handicapped children attend regular classes
with children who are not handicapped," giving rise to a presumption in favor of
placement in a public school.). The School District asked for additional information
and the opportunity to get a second professional opinion. The Bradleys did not honor
those requests, and when David's school principal reported him to authorities as
truant, Thomas Bradley was arrested. At hearings in municipal court on both the
threatening and the truancy charges in March 1998, the criminal charges for
threatening Evans were dismissed. But on the truancy charges, Bradley was ordered
to return David to school and not to stay at the school. According to Evans, who was
present for both hearings, the municipal judge was not pleased when Thomas Bradley
indicated that he did not intend to cooperate with the School District in getting the
best placement for David because he thought it might jeopardize his lawsuit against
the District.
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
-9-
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 off-
site 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
10
Assistive technology devices "increase, maintain, or improve functional
capabilities of individuals with disabilities." 20 U.S.C. § 1401(a)(25); see also id.
§ 1401(a)(26) (defining assistive technology services).
-10-
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, with a computer and software
purchased by the District.
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 fall 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 20 U.S.C.
-11-
§ 1412(a)(1)(A) & (B) (2000). After David's graduation, the Bradleys never
requested compensatory education from the School District, except in this
consolidated lawsuit.
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." Appellants' 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
-12-
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
conclusion that David's IEPs were appropriate under the IDEA.
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
-13-
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 outcome 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). 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 under 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.), cert. denied, 540 U.S.
984 (2003). It is true that the 1996–97 IEP was less detailed than the one for the
previous year, but it covered almost identical ground. In any event, the Act does not
require "the furnishing of every special service necessary to maximize each
-14-
handicapped child's potential." Rowley, 458 U.S. at 199. We conclude that the IEPs
were formulated in accordance with the IDEA.
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 District. 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 necessary. 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 (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 implementation, were reasonably
calculated to enable David to receive educational benefits.
-15-
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 designed, the federal courts "should not
intervene in these questions of education policy." Gill, 217 F.3d at 1037. We cannot
say that the IEPs were inappropriate because of a failure of training.
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 Rehabilitation Act, 29 U.S.C. § 794 (1994). While
it is true that no such explicit finding was made, the court did conclude that the
"Williford School District did not violate § 504 of the Rehabilitation Act." Findings
of Fact and Conclusions of Law at 12 (conclusion of law 6). The necessary factual
finding is implicit in that conclusion. We review the ultimate legal conclusion
de novo and any factual findings that are material to the conclusion for clear error.
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
-16-
receives federal funding. 29 U.S.C. § 794(a). To make out a case of retaliation under
§ 504, the Bradleys must show they were engaged in protected activity, the School
District took some adverse action, and a causal connection between the activity and
the District's action. See Neudecker v. Boisclair Corp., 351 F.3d 361, 363–64 (8th
Cir. 2003) (citing cases).
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
-17-
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 Fact and Conclusions of
Law at 6 (factual findings 29, 30). The record belies such a finding. Evans's
undisputed testimony was that he felt physically—not legally—threatened when,
within a few days, Thomas Bradley told him "to stick the rights where the sun don't
shine"; Bradley asked him "to step outside" and told Evans, when Evans told Bradley
he was not mad at him, that "I'm certainly mad at you"; and Bradley requested a
meeting with Evans and then told Evans to "[s]ave yourself a lot of trouble and put
something between us." Transcript at 981, 982 (testimony of Bruce Evans). Evans
testified that it was his concern for the safety of his staff and himself, with Thomas
Bradley's hostility escalating with each encounter, that caused him to file an affidavit
with the prosecutor's office—not Bradley's threat to sue Evans "and everybody that
had ever been connected with David's education for the last eight years." Id. at 982.
As for the truancy charge against Thomas Bradley, the principal had Bradley arrested
because he was required by state law to do so. Evans actually resisted the filing of
that charge earlier, when David was first truant, in order to talk with the Bradleys
about it and because he was "reluctant to take additional action against the Bradleys."
Id. at 987. Finally, we have already held that the School District did not violate
David's IDEA rights, so a retaliation suit under § 504 based on IDEA violations is
precluded. See Indep. Sch. Dist. No. 283, 88 F.3d at 562. Because the Bradleys
cannot show that the challenged actions of the School District and Evans were taken
because the Bradleys were engaged in protected activity, their retaliation claim must
fail. The District Court properly dismissed the Bradleys' claim of retaliation brought
under § 504 of the Rehabilitation Act.
-18-
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 42 U.S.C. § 1983.
The contentions against the ADE involve its responsibilities under the Act to train
and monitor school district personnel throughout the state.
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. 20
U.S.C. § 1412(a)(14) (2000). Because the IDEA was enacted under the authority of
the spending clause, see U.S. Const. art. I, § 8, cl.1, the state must be in compliance
with the Act to receive federal funding. See Gill, 217 F.3d at 1035. Under the
regulations, any state that has a state improvement grant issued by the United States
Department of Education (USDOE) "has met the requirements" of a CSPD. 34 C.F.R.
§ 300.380(b) (2005). In 2003, the ADE received a five-year state improvement grant.
The receipt of this grant is de facto compliance with the requirement of a CSPD and
thus a defense to the Bradleys' claim for injunctive relief.
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), including provisions for the training of personnel,
from 1994 onward have all been approved by the USDOE as in compliance with the
IDEA. See Findings of Fact and Conclusions of Law at 8–9 (factual findings 44–50).
These findings are not clearly erroneous.
-19-
We hold that the District Court properly dismissed all of the Bradleys' claims.
The judgment is affirmed.
______________________________
-20-