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Artichoker v. Todd County School District

United States District Court, D. South Dakota, Central Division

December 29, 2016

KAREN ARTICHOKER, legal guardian and next friend of D.D., a minor, Plaintiff,



         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 record and has considered that material to the extent appropriate, but denies the remaining discovery motions.

         I. Background

         A. IDEA

         This case arises under the IDEA. The IDEA aims to help meet the educational 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 ensuring all students receive FAPE is the Individual Education Program (IEP), 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. See Id. § 1414(d). Throughout the IDEA and the IEP 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. See Bd. of Educ. v. Rowley, 458 U.S. 176, 205-206 (1982). Before an IEP 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 educational needs of such child." 20 U.S.C. § 1414(a)(1)(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." Id. § 1414(a)(1)(A)-(B). The IDEA makes clear that "[t]he screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum 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 in 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)(1)(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 of the 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 bring 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 IDEA). The district 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. See Birmingham v. Omaha Sch. 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. Missouri, 800 F.2d 749, 754 (8th Cir. 1986).

         B. Facts

         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. Doc. 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. See 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 generally Rowley, 458 U.S. at 204-08.

         At the beginning of the 2014-2015 school year at issue in this case, D.D. was a 12-year-old student, enrolled in seventh grade at Lakeview School on the Rosebud Sioux Indian Reservation, within the Todd County School District. Doc. 19 at ¶ 8; Doc. 26 at 3, ¶ 9.[1]In 2012, Karen Artichoker became the legal guardian of D.D. Doc. 19 at ¶¶ 5-7; Doc. 26 at 3, ¶¶ 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, ¶ 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.[2] Doc. 19 at ¶¶ 11-13; Doc. 26 at 3-4, ¶¶ 12-13; Doc. 26 at 8, ¶ 3; Doc. 32 at ¶ 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 ¶ 13; Doc. 26 at 4, ¶14.

         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 ¶ 13; Doc. 26 at 4, ¶¶ 13-14. Artichoker claims that at the TAT meeting, Dr. Gail Mason, a psychologist, advised the meeting's participants that D.D. was suffering from 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 ¶¶ 13-14; Doc. 26 at 4, ¶¶ 14-15; Doc. 26 at 9, ¶ 7; Doc. 32 at ¶ 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.[3] Doc. 19 at ¶ 16; Doc. 26 at 4, ¶ 17; Doc. 26, at 10 ¶¶ 14-15. Without returning to school, D.D. then went to the Wellspring Residential Treatment Facility on October 17, 2014 to begin a forty-five day course of residential chemical dependency treatment. See Doc. 19 at ¶ 16; Doc. 26 at 4, ¶ 17; Doc. 26 at 10, ¶ 15; Doc. 32 at ¶ 15. Upon completion of the program, D.D. was scheduled to return 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, ¶ 17; Doc. 32 at ¶ 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 ¶¶ 20-21; Doc. 26 at 4-5, ¶¶ 19-21. D.D. returned 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. Doc. 19 at ¶¶ 21-22; Doc. 26 at 5, ¶¶ 20-21. D.D. had posted a photograph of herself to social media holding a four-inch long knife, emblazoned with a marijuana leaf, while at school. See Doc. 23-13. D.D. did not receive any form of educational services for the remainder of her seventh grade year during her suspension. Doc. 19 at ¶¶ 23-24; Doc. 26 at 5-6, ¶¶ 22-23; Doc. 26 at 11, ¶ 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; Doc. 32 at ¶ 23.

         On April 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 (FAPE), 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." Doc. 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 IEP, 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. Doc. 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 District'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, in party due to the absence of compensatory educational services. See Docs. 23-23-23-24.

         The hearing examiner conducted an evidentiary hearing and issued a written decision on August 27, 2015 containing findings of fact, conclusions of law, and a final decision. Doc. 19 at ¶ 29; Doc. 19-3; Doc. 26 at 6, ¶ 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." Doc. 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 IEP 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.[4] Doc. 19 at ¶ 34; Doc. 19-3; Doc. 26 at ¶ 7, ¶ 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 ¶35; 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 learning disability. Doc. 19 at ¶ 35; Doc. 19-1 at 14-15. On February 18, 2016, an IEP was created to address D.D.'s special learning needs while she resides at the Our Home treatment facility. Doc. 19 at ¶ 15; Doc. 19-2. Artichoker did not take issue with the IEP, and this case makes no challenge to the IEP itself. On April 11, 2016, the School District received notice from the South Dakota Department of Education that it had fulfilled the relief ordered by the hearing examiner. Doc. 23-19.

         II. ...

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