B.M. v. South Callaway R-II Sch. Dist., No. 12-3841 (8th Cir. Oct. 17, 2013)
Abstract: A U.S. Court of Appeals for the Eighth Circuit (ND, SD, MN, NE, IA, MO, AR) three-judge panel has ruled that the parents of a disabled student failed to show that the delays in accommodating the student were the result of bad faith or gross misjudgment in violation of § 504 of the Rehabilitation Act (§ 504) or the Americans with Disabilities Act (ADA). The panel concluded that because the evidence revealed that the school district had made persistent efforts to aid the student, “no reasonable jury could conclude that the delays in accommodating him resulted from bad faith or gross misjudgment by the District.”
Facts/Issues: B.M. began exhibiting behavioral difficulties in second grade in the South Callaway R-II School District (SCSD). In April 2007, he was sent to the principal’s office several times for disrupting class. In late April B.M. had an incident in which he threw chairs, hit two teachers, and bit and scratched John Elliston, the school’s principal. As a result, B.M. received a day-and-a-half suspension. On May 1, B.M. threw a chair, overturned desks and a table, and used obscene language. He was suspended again.
In May 2007, his mother took B.M. to a a pediatrician with expertise treating children with behavioral problems. The doctor did not diagnose B.M. with any behavioral disorder, but rather referred him to the Thompson Center for further evaluation and recommended that B.M.’s teachers record their observations regarding his behavior, which they did. B.M.’s mother did not request that SCSD evaluate or accommodate her son under either § 504 or the Individuals with Disabilities in Education Act (IDEA), nor did she take B.M. to the Thompson Center for evaluation.
When B.M. returned for the third grade year, his behavioral problems continued. Principal Elliston encouraged her to take B.M. to counseling, stressing that she should not delay seeking psychological treatment, and gave her written information about outside resources. In December or January the principal proposed that SCSD evaluate B.M. for accommodation under the IDEA and provided the mother with the appropriate authorization forms. Three times Elliston requested that Ms. Miller complete the authorization forms so that the District could commence the IDEA process. She refused and eventually returned the forms blank. The principal then suggested she have B.M. evaluated by an outside party.
In February 2008, the mother took B.M. to the Thompson Center, where he was diagnosed with ADHD. Skeptical of this diagnosis, she took B.M. to see another doctor, who diagnosed him with dysthymic disorder, a form of depression. Neither physician recommended evaluation or accommodation under either § 504 or IDEA.
During this time, B.M. began weekly counseling sessions with Kendall Grayson. To facilitate her evaluations, the District permitted Grayson to observe B.M. in class. The District also agreed to implement the two recommendations Grayson issued. Despite these efforts, B.M.’s behavioral problems persisted.
At the beginning of September 2008 the mother requested for the first time that SCSD evaluate B.M. under § 504. SCSD insisted that it first conduct an IDEA evaluation, which she authorized. When the mother expressed concern over the SCSD’s plan to place B.M. in special education classes for part of the evaluation process, the district adopted her recommendation that B.M. remain in ordinary classes with assistance from a “facilitator.” Later, at the mother’s request, SCSD replaced the facilitator. At the end of October, the mother again requested a § 504 evaluation, but the district informed her that it would not conduct a § 504 evaluation until it had completed its IDEA evaluation.
In November 2008, SCSD concluded that B.M. did not qualify for accommodation under the IDEA and promptly provided the mother with a § 504 referral form. The district proposed a § 504 education plan on December 1 and began implementing the plan on December 8. The mother objected to the details of the plan and, consequently, pulled B.M. out of school.
The mother filed a complaint with the United States Department of Education’s Office for Civil Rights (“OCR”), alleging numerous statutory and regulatory violations. In March 2009, SCSD proposed yet another § 504 plan. Mom permitted B.M. to return to school under that plan. The district revised the plan once more in August 2009.
In May 2010, OCR completed its investigation and concluded that SCSD had failed to comply with two regulations implementing § 504 and the ADA. However, OCR found that the record did not support Ms. Miller’s other twelve complaints, including her allegations that the District failed to evaluate B.M., implement a § 504 plan, or consider adequately her input. The OCR decision did not suggest any wrongful intent by the District.
OCR concluded SCSD had used erroneous criteria in determining whether its suspensions of B.M. constituted a significant change in educational placement warranting a manifestation hearing. OCR further concluded that the materials provided by the district explaining statutory procedural safeguards provided inadequate detail regarding the complaint and hearing process. SCSD entered into voluntary compliance agreements with OCR to remedy both violations.
In January 2011, B.M.’s mother filed suit in federal district court against SCSD raising claims under § 504 and the ADA. The claims were premised on the SCSD’s alleged failures to evaluate and accommodate B.M. and to comply with statutory procedural requirements. After the court granted SCSD’s motion for summary judgment, the mother filed a motion for reconsideration on the ground she should be excused from exhausting the administrative remedies because exhausting those remedies would be futile. The district court granted her motion in part, vacated its prior order, and again granted summary judgment in favor of the SCSD, this time on the ground that there was no genuine dispute whether the district had acted in bad faith or with gross misjudgment.
Ruling/Rationale: The Eighth Circuit panel affirmed the lower court’s decision.
The panel said that the mother was obligated to show bad faith or gross misjudgment: “We have consistently held that ‘[w]here alleged ADA and § 504 violations are based on educational services for disabled children, the plaintiff must prove that school officials acted in bad faith or with gross misjudgment.’”
To prove bad faith or gross misjudgment, a plaintiff must show the school district “depart[ed] substantially from ‘accepted professional judgment, practice or standards [so] as to demonstrate that the person[s] responsible actually did not base the decision on such a judgment.’” It added that the district’s “statutory non-compliance must deviate so substantially from accepted professional judgment, practice, or standards as to demonstrate that the defendant acted with wrongful intent.”
The panel rejected the mother’s proof of bad faith or gross misjudgment, which consisted of (1) the District’s repeated suspensions of B.M.; (2) the District’s insistence that it first evaluate B.M. under the IDEA; (3) the District’s failure to conclude that B.M. qualified for accommodation under § 504 until December 2008; and (4) the District’s failure to implement an adequate § 504 plan until March 2009. The panel stated:
The Millers have not presented any evidence regarding what an accepted professional judgment would have been under the circumstances or how the District’s conduct substantially departed from such a judgment. Nor do these facts support even an inference of wrongful intent by the District. Most of the facts cited by the Millers amount to nothing more than possible instances of statutory non-compliance. As noted above, statutory non-compliance alone does not constitute bad faith or gross misjudgment.
The panel found that the delays in conducting the § 504 evaluation and providing accommodations were not enough to establish bad faith or gross misjudgment:
Nothing in the record suggests anything more than disagreement between a school and a concerned parent as both struggled to meet B.M.’s needs. Under these circumstances, the ADA and § 504 do not permit the federal courts to second-guess the educational decisions of school officials.
B.M. v. South Callaway R-II Sch. Dist., No. 12-3841 (8th Cir. Oct. 17, 2013)
[Editor's Note: In February 2012, Legal Clips summarized a press release from the U.S. Department of Education (ED)’s Office for Civil Rights (OCR) announcing that it had issued a Dear Colleague letter and Frequently Asked Questions document on the requirements of ADA and § 504 in elementary and secondary schools, given the changes to those laws made by the ADA Amendments Act. The Act, effective January 1, 2009, “broadened the meaning of disability and, in most cases, shifts the inquiry away from the question of whether a student has a disability as defined by the ADA and Section 504, and toward school districts’ actions and obligations to ensure equal education opportunities,” said the press release.]