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Lathrop R-II School Dist. v. Gray

July 2, 2010

LATHROP R-II SCHOOL DISTRICT, PLAINTIFF - APPELLEE,
v.
WILLIAM GRAY, BY AND ON BEHALF OF HIS SON, D.G., DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Western District of Missouri.

The opinion of the court was delivered by: Murphy, Circuit Judge

Submitted: June 17, 2010

Before MURPHY, BEAM, and BENTON, Circuit Judges.

William Gray alleges that his son D.G., a student with autism, was not provided a free appropriate public education (FAPE) by Lathrop R-II School District (the District) as required by the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et seq. He and D.G.'s mother brought a successful challenge through an administrative hearing process. The district court*fn1 reversed the decision of the administrative panel, and Gray appeals. We affirm.

I.

In fall 2000 D.G. transferred to the District from Putnam County School District (Putnam) as a fourth grader. He had been educated at Putnam under an Individualized Education Plan (IEP) as required by the IDEA for students with disabilities. 20 U.S.C. § 1414(d)(2)(A).*fn2 An evaluation of D.G. at Putnam in 1999 determined that although he could read words comfortably at the third grade level, his comprehension was at a pre first grade level. He did not know the value of coins. D.G.'s last IEP from Putnam described him as engaging in disruptive behaviors. He did not acknowledge his peers, and his speech was echolalic and robotic.

D.G. was among the first students with autism in the District. Anticipating his arrival, Special Services Director Dr. Ken Quick and other District employees enrolled in autism training. The District's first IEP for D.G. included occupational and speech language therapies and a full time paraprofessional. D.G. was to spend 65% of his day in the special education classroom of Cindy Nance and some time in "regular" education classes.

Nance, who had over two decades of experience teaching students with disabilities, noticed that D.G. exhibited behaviors similar to those described by Putnam. For example, D.G. would bite his finger when in the regular education classroom, recite from movies, and engage in loud outbursts. According to Nance these behaviors were severe and impeded D.G.'s ability to learn. By December 2001 D.G. also began to exhibit sexual behaviors at school, including touching his penis.

Katie Alexander, D.G.'s occupational therapist from 2000-2002, attempted to address D.G.'s sexual behaviors, but the District hired Marilyn Stubbs, an autism and behavioral specialist, in April 2002. She conducted a functional behavior assessment (FBA) of D.G.'s sexual behaviors, collecting eight weeks of daily data from District staff, observing the student, and consulting with Gray (D.G.'s father). Based on her data Stubbs developed a behavior plan designed to decrease D.G.'s inappropriate behaviors and increase appropriate behaviors. The District implemented her suggested strategies.

D.G.'s IEP team, which included his father, Nance, Stubbs, Alexander, Quick, and "parent advocate" Rand Hodgson, convened in May 2002 to discuss extended school year services (ESY), a behavior plan, and diagnostic staffing. The team deemed D.G. eligible for ESY, discussed his behaviors, and agreed to conduct a full reevaluation of D.G. in fall 2002. The District hired an outside licensed psychologist to evaluate D.G.'s cognitive and adaptive behavioral abilities.

The IEP team met several times later that fall to discuss the reevaluation and prepare D.G.'s IEP. Gray attended each meeting. D.G.'s IEP for the 2002-2003 school year (2002 IEP) included a section titled "Present Level of Performance" describing how his autism impacted his ability to access the general sixth grade curriculum. For example, D.G. was "challenged to participate in activities[] which require gross/fine motor skills" such as art and physical education class.

The IEP also documented D.G.'s progress on his prior IEP goals, incorporated information from the reevaluation, and established a series of goals and objectives. In addition, the 2002 IEP discussed D.G.'s disruptive behaviors, both sexual and non-sexual, and included a behavior plan with strategies to address problems as well as a sensory diet to curb improper behaviors.

D.G.'s IEP for the 2003-2004 school year (2003 IEP) similarly described his present level of performance and noted his progress in both academic and non academic areas. For example, while his 2002 IEP stated that D.G. "demonstrates a desire for social interaction and a sense of belonging[,]" his 2003 IEP observed that he "has learned to greet people with visual prompts[.]" The 2003 IEP contained a revised behavior plan with strategies and a modified sensory diet. It set academic goals and objectives but also included a separate list of occupational therapy goals. Christi Foreman, D.G.'s speech language therapist for the 2002-2003 and 2003-2004 school years, provided him with daily, thirty minute, one on one sessions.

There is conflicting evidence about whether D.G.'s behaviors improved. Between 2002 and 2003, D.G. spent less time in regular education classes such as physical education. The administrative panel which ultimately ruled against the District nonetheless concluded ...


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