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Clasen v. Unified School District No. 266

United States District Court, D. Kansas

August 27, 2019

JANET CLASEN, for herself and on behalf of her minor child, M.S., Plaintiff,



         Plaintiff Janet Clasen brings this lawsuit on behalf of her minor child, M.S. This is a special education case whereby Clasen appeals a Kansas State Department of Education decision under the Individuals with Disabilities Education Act (“IDEA”) and asserts additional claims under Title II of the Americans with Disabilities Act (“ADA”) and § 504 of the Rehabilitation Act. Before the Court are Defendants' Unified School District No. 266 (“USD 266”) and Sedgwick County Area Educational Services Interlocal Cooperative No. 618 (“SCAESIC 618”) Motions for Judgment on the Administrative Record of the IDEA claims (Docs. 127 & 131), Motions for Summary Judgment on the Section 504 and ADA Claims (Docs. 132 & 133), and Plaintiff's Motion for Summary Judgment (Doc. 129). For the reasons below, the Court grants Defendants' motions and denies Clasen's motion.

         I. Factual and Procedural Background [1]

         M.S. is a minor and was, at all times material to this case, enrolled as a student at USD 266 (Maize School District). She is a child with a disability under the IDEA, [2] the ADA, [3] and § 504 of the Rehabilitation Act.[4] Janet Clasen is M.S.'s mother, and they both reside in Maize, where M.S. attends school. USD 266 is a local education agency under the IDEA.[5] SCAESIC 618 is a special education interlocal that provides educational services to nine school districts, including USD 266. As a result, SCAESIC 618's employees have provided special education services to M.S.

         M.S. has been diagnosed with Down Syndrome, attention deficit hyperactivity disorder, heart conditions, and hypothyroidism. She was identified as qualifying for special education services under the IDEA at age three. On April 26, 2013, M.S. was reevaluated to determine her present levels of performance and special education needs. Clasen was involved in this reevaluation, requesting that M.S. be “mainstreamed” as much as possible. As a result of that evaluation, an individualized educational plan (“IEP”) was developed for M.S on May 10, 2013.

         During the 2013-2014 school year, USD 266 and SCAESIC 618 conducted a functional behavior assessment (“FBA”), which is considered an evaluation under the IDEA. The FBA was prepared by Dean Stwalley, School Psychologist for SCAESIC 618.[6] During the 2013-2014 school year, M.S. attended kindergarten at Maize Central Elementary. Her general education teacher was Shari LaMunyon. M.S. was also in a Functional Applied Academics (“FAA”) classroom for special education instruction in most of her core academic subjects. With these accommodations, M.S. made some educational progress and received satisfactory report cards.

         At the request of M.S.'s parents, USD 266 agreed to keep M.S. in kindergarten for a second year with LaMunyon. This decision was partially based on the fact that M.S. would be undergoing heart surgery over the summer, causing her to miss several weeks of class at the beginning of the 2014-2015 school year. Additionally, M.S.'s parents wanted to see how M.S. would perform in a regular education classroom another year. The IEP team agreed to these changes and included more supplementary aids and services to address M.S.'s behavior using positive behavioral supports. M.S. made progress under this IEP during her second year of kindergarten and advanced to first grade for the 2015-2016 school year.

         For first grade, M.S. was to be pulled out of the general education classroom for special education in language arts. At the request of M.S.'s parents, M.S. had two different general education teachers throughout the 2015-2016 school year. The parties disagree whether the pull-out was to be for 40-45 minutes-only part of the language arts class-or for 75 minutes-the entire general education language arts class time. In February 2016, the IEP team proposed also pulling M.S. out of her general education classroom for 60 minutes of special education in math, but the parents did not consent to this change, so it was not implemented.

         The following members of the IEP team testified that M.S.'s behavior made her unsuited for the general education classroom in math and reading: Lori Gabrielson, Kathy VanDeest, Kim Pohl, Dean Stwalley, and Christy Skelton. M.S. had a documented increase in behavioral disruptions in frequency and severity beginning in January 2016. During first grade, M.S. was sent to the office for eight discipline referrals. On January 27, 2016, David Jennings-the principal at Maize Central Elementary School-decided to suspend M.S. for hitting, kicking, and spitting on peers and adults. Before this suspension, the school followed the behavioral strategies in M.S.'s IEP, but they had proved ineffective. M.S. was suspended again on March 4, 2016, for throwing items at teachers and peers. M.S. was suspended a third time on March 7, 2016, after she bit a teacher, threw objects, and attacked classmates. As a result of this outburst, six students were injured. The purpose of M.S.'s suspensions was to keep others-primarily her peers-safe.

         In response to M.S.'s behavioral issues and Defendants' recommendation that she be pulled out of the general education classroom for her core subject areas, Clasen requested that the IEP team complete a new FBA of M.S. After considering this request, the IEP team denied the request for a new FBA.

         M.S. remained at Maize Central Elementary for second grade during the 2016-2017 school year. At the end of the year, the IEP team recommended that M.S. be reassigned to the FAA classroom. Since there was not an FAA classroom at Maize Central Elementary, M.S. moved to the nearby Pray-Woodman Elementary School for FAA education.

         M.S.'s parents filed a complaint with the Kansas State Department of Education (“KSDE”) on March 24, 2016, requesting a due process hearing. The parties, represented by counsel, presented witness testimony and hundreds of pages of exhibits over the course of 10 days, beginning August 30, 2016, and ending October 10, 2018. The hearing created approximately 2, 400 pages of transcript from 24 witnesses. The Hearing Officer entered his decision on May 2, 2017, finding for Defendants on four issues: (1) whether Defendants violated M.S.'s IEP by removing M.S. from the least restrictive environment in which she can receive a FAPE; (2) whether Defendants failed to implement the IEP, thereby denying M.S. a FAPE in the least restrictive environment; (3) whether Defendants violated M.S.'s IEP by making a substantial change in her placement without parental consent; and (4) whether Defendants violated M.S.'s IEP by treating her parents in a punitive manner for their revocation of consent to certain IEP changes.

         M.S.'s parents appealed this decision to the KSDE, and the state-level review officer affirmed the Hearing Officer's decision on August 24, 2017. This action was commenced shortly thereafter. Clasen seeks judicial review of the administrative decision under the IDEA.

         Clasen also asserts claims pursuant to the ADA and the Rehabilitation Act. For most of Clasen's allegations under these statutes, she relies on the bulk of the facts stated above. Clasen also contends that Defendants retaliated against her by scheduling IEP meetings at times when it is impossible for her to attend. The record indicates that Defendants worked extensively with Clasen to try to find a mutually agreeable time to conduct IEP team meetings. School teachers in Defendants' district are under a negotiated contract that prevents Defendants' from requiring teachers' presence at meetings after 4:00 p.m. Accordingly, IEP meetings do not typically start meetings after 4:00 p.m. As a result, there were challenges scheduling IEP meetings with M.S.'s parents. Clasen wanted to meet on evenings and weekends, which Defendants' employees were not always able to do.[7] The parties encountered difficulty finding mutually agreeable dates in spring 2016 for IEP meetings. M.S.'s parents objected to the IEP meeting on May 16, 2016, because Clasen was unable to arrive on time.[8] Defendants notified the parents that the meeting could not be moved, but that the parents could still arrive late in order to participate.

         II. Legal Standard

         A. IDEA Administrative Record Review

         Under the IDEA, plaintiffs may seek judicial review of administrative findings.[9] When reviewing IDEA proceedings, courts do not apply the deferential “substantial evidence” standard typical in the review of administrative proceedings. Instead, courts must independently decide whether the IDEA requirements have been met under a modified de novo standard.[10] In accordance with this modified de novo standard, courts must “independently review the evidence contained in the administrative record, accept and review additional evidence, if necessary, and make a decision based on the preponderance of the evidence, while giving due weight to the administrative proceedings below.”[11] Giving due weight to the administrative proceedings means that reviewing courts must consider the hearing officer's factual findings as prima facie correct.[12] The burden of proof in an IDEA case is on the party seeking relief.[13]

         B. Summary Judgment Standard

         Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.[14] A fact is “material” when it is essential to the claim, and issues of fact are “genuine” if the proffered evidence permits a reasonable jury to decide the issue in either party's favor.[15] The movant bears the initial burden of proof and must show the lack of evidence on an essential element of the claim.[16] The nonmovant must then bring forth specific facts showing a genuine issue for trial.[17]These facts must be clearly identified through affidavits, deposition transcripts, or incorporated exhibits-conclusory allegations alone cannot survive a motion for summary judgment.[18] The court views all evidence and reasonable inferences in the light most favorable to the party opposing summary judgment.[19]

         III. Analysis

         A. IDEA Claims

         Clasen seeks judicial review of an administrative proceeding under the IDEA, alleging both substantive and procedural violations of the Act. The substantive IDEA claims in this case hinge on whether the Defendants provided M.S. with a FAPE in the least restrictive environment. The parties disagree as to how frequently M.S. should have been pulled out of her regular education classroom to be provided with special education services. Clasen also alleges that the administrative hearings violated the procedural safeguards of the IDEA. For the reasons stated below, the Court affirms the KSDE decisions.

         The IDEA provides federal funds to help state and local education agencies meet their obligation to educate students with disabilities.[20] A state receiving federal funds under the IDEA must implement policies to ensure that disabled students have access to a “free, appropriate public education, ” commonly known as FAPE.[21] Under the IDEA, state educational agencies must adhere to substantive and procedural requirements.[22] In Kansas, if a disabled student believes that he is not receiving a FAPE, or that the state has violated IDEA procedures, he can file a complaint with the KSDE.[23] The aggrieved student is then entitled to a due process hearing from an administrative law judge (the “Hearing Officer”).[24] During the hearing, parties can present evidence and cross-examine witnesses.[25] Following the hearing, the Hearing Officer creates a record and issues a decision.[26]

         The student can appeal the Hearing Officer's decision to the Kansas Office of Administrative Hearings.[27] At that stage, another administrative law judge (the “Review Officer”) will review the Hearing Officer's decision in its entirety and issue its decision.[28] After exhausting these two administrative remedies at the state level, a student may file a civil action in federal district court, seeking review of the administrative hearings.[29] Plaintiffs may state a cause of action under the IDEA by asserting a violation of the Act's substantive or procedural requirements.[30]

         1. Substantive Claim

         The IDEA's substantive requirement states that a public agency responsible for providing educational services to a disabled student must develop an IEP that is reasonably calculated to provide those services in the least restrictive environment.[31] “The IEP includes a written statement of the present educational level of [the] child, of annual goals and short-term instructional objectives, and of specific educational services to be provided . . . .”[32] “Any review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal.”[33]

         The main issue in this case is whether Defendants provided M.S. a FAPE in the least restrictive environment. When considering possible violations of the least restrictive environment provision, the Tenth Circuit follows the Daniel R.R. test.[34] This test has two parts. In the first part, courts determine whether education in a regular classroom, with the use of supplemental aids, can be achieved satisfactorily.[35] If not, courts move to the second part and determine if the school district has mainstreamed the child to the maximum extent appropriate.[36] In the first part of the Daniel R.R. analysis, courts weigh the following four factors: (1) steps the school district has taken to accommodate the child in the regular classroom, including the consideration of a continuum of placement and support services; (2) comparison of the academic benefits the child will receive in the regular classroom with those she will receive in the special education classroom; (3) the child's overall educational experience in regular education, including non-academic benefits; and (4) the effect on the regular classroom of the disabled child's presence.[37]

         The Court concludes that the four factors under the first part of the Daniel R.R. test weigh in favor of Defendants. As to the first factor-steps the school district has taken to accommodate the child in the regular classroom-multiple employees of the Defendants testified that they had considered modifying the regular education curriculum, training staff to better accommodate M.S.'s special needs, creating alternative classroom accommodations such as visual cues, and placing paraeducators in the classroom to support M.S. during the school day. They testified that they implemented behavior strategies to the greatest possible extent without implementing a BIP, which required the consent of M.S.'s parents.[38] Clasen has failed to establish by a preponderance of the evidence that the Defendants took insufficient steps to accommodate M.S. in the regular classroom, and therefore the first factor of the first part of the Daniel R.R. test weighs in favor of Defendants.

         The second factor of the first part of the Daniel R.R. test also weighs in favor of the Defendants. At the KSDE hearing, multiple witnesses testified that M.S. would receive substantially worse academic benefits in a regular classroom than she would in a special education classroom. They indicated that M.S. would benefit more from the smaller class sizes, one-on-one attention, and instruction tailored to her skill-level and special needs. On the other hand, multiple witnesses testified that M.S. did not have the necessary skill to successfully maneuver the faster pace of the larger, general education classroom. As a result, the Court concludes that Clasen has failed to show by a preponderance of the evidence that the second factor of the first part of the Daniel R.R. weighs in her favor.

         The third factor of the first part of the Daniel R.R. test also weighs in favor of the Defendants. At the hearing, multiple witnesses testified that M.S. frequently exhibited negative behavior while in the general education classroom. The record shows that M.S. was unable to successfully and consistently access the general education curriculum, even with attempted modifications, accommodations, and supplementary aids. Although one witness testified that M.S.'s social skills would benefit from exposure to students in the general education classroom, M.S.'s IEP did not remove her entirely from the general education classroom, but only in her core subject areas. For her remaining classes, M.S. could interact socially with her general education classmates. Taken together, Clasen has failed to carry her burden to prove, by a preponderance of the evidence, that the third factor weighs in her favor.

         Finally, the fourth factor of the first part of the Daniel R.R. test weighs in favor of the Defendants. Sufficient evidence in the record indicates that M.S.'s presence in the general education classroom oftentimes had negative consequences for the rest of the class. M.S. was at times disobedient, defiant, and violent. These behaviors-and the teacher's necessitated responses-disrupted the classroom. While teachers in the special education classroom receive more nuanced training in confronting misbehaviors, the general education teacher could not always appropriately handle M.S.'s behavior without negatively impacting the experience of the other students. The Court concludes that the four factors weigh in favor of Defendants and that M.S.'s education could not be satisfactorily achieved in a regular classroom, even with the use of supplemental aids.

         Moving on to the second part of the Daniel R.R. test, the Court concludes that the Defendants mainstreamed M.S. to the maximum extent appropriate. At the KSDE hearing, the Hearing Officer received evidence and testimony from M.S.'s IEP team, multiple experts, educators, and district representatives, including Ms. Turybury, Ms. Potter, Ms. Pohl, Ms. VanDeest, Mr. Jennings, Dr. Skelton, Ms. Pfeifer, Ms. Jones, Ms. Nibarger, Ms. Koehn, and Mr. Stwalley. All of these individuals-respected professionals in their fields-testified that the least restrictive environment for M.S.'s FAPE was a special education classroom for her core academic subjects and a general education classroom for her remaining subjects. The Hearing Officer found that testimony credible, the Review Officer concurred, and the Court accepts those findings as prima facie correct.[39]

         Furthermore, the IEP team only gradually removed M.S. from the regular education classroom. The IEP initially pulled M.S. out of only part of her language arts class. However, when the team re-evaluated M.S.'s results in the general education classroom, they determined that the least restrictive environment for M.S.'s core subject areas was the special education classroom. Taken as a whole, the Court concludes that Clasen has failed to carry her burden to prove, by a preponderance of the evidence, that Defendants failed to mainstream M.S. to the maximum extent appropriate under the second part of the Daniel R.R. test.

         The Court views the Hearing Officer's findings as prima facie correct under the modified de novo standard of review. Clasen has not overcome this presumption. The Court therefore affirms the KSDE decisions and denies Clasen's substantive IDEA claim.

         2. Procedural Claim

         Clasen alleges that Defendants violated the procedural requirements of the IDEA by substantially changing M.S.'s placement without parental consent or notice, by retaliating against her for not consenting to certain IEP changes, and by failing to perform an additional FBA. To establish a prima facie case of liability for violation of the IDEA's procedural requirements, a plaintiff must prove that the agency responsible for providing educational services to the disabled student failed to comply with either (1) the IDEA's identification, evaluation, or placement procedures, or (2) the IDEA's procedural safeguards, including the opportunity to make a complaint, to receive notice of a proposal or refusal to change a student's placement, and to have an impartial due process hearing.[40] The Court will address each of Clasen's arguments in turn.

         Clasen first alleges that Defendants substantially changed M.S.'s placement without parental consent or prior written notice. In Kansas, school districts must obtain parental consent before taking any of the following actions: “(1) [c]onducting an initial evaluation or any reevaluation of [a disabled] child; (2) initially providing special education and related services . . . or (3) making a material change in services to, or a substantial change in the placement of, a [disabled] child. . .”[41] A “substantial change in placement” means “the movement of an exceptional child, for more than 25 percent of the child's school day, from a less restrictive environment to a more restrictive environment or from a more restrictive environment to a less restrictive environment.”[42] “Before developing or changing a child's IEP, the agency must provide written notice to the parents.”[43]

         The parties present two competing interpretations of this statute. Defendants agree with the KSDE's interpretation of the statute: that only each separate change of placement needs to fall below the 25 percent threshold. Dr. Skelton testified that any change had to be by more than 108 minutes to meet the 25 percent threshold. Further testimony showed that the change for the reading placement in the April 2015 IEP was 75 minutes, which was a 17 percent difference. Similarly, the change for the math placement in the February 2016 IEP was 70 minutes, which was also approximately a 17 percent difference. Based on this evidence, both the Hearing and Review Officer concluded that neither change constituted a substantial change in placement under Kansas law, and, as a result, did not require parental consent. This conclusion was consistent with the finding of the state investigator regarding this same legal issue in the 2013 state complaint.[44]

         On the other hand, Clasen interprets the statute to mean that individual changes, whilst separately below the 25 percent threshold, cannot aggregate to more than a 25 percent change. The parties do not cite controlling or persuasive authority interpreting this statutory provision. The Court agrees with Clasen's sentiment that “if Defendants' arguments were taken to their logical conclusion, a school district could change the entirety of a student's IEP without parental consent in one school week-so long as it evenly spread out the changes to be less than 25% each day.” The Kansas legislature certainly enacted this statute to avoid unreasonable results. However, Clasen's logical analysis loses most of its bite in this case, since Defendants changed M.S.'s placement first in April 2015 and again in February 2016. During that 10-month interim period, the IEP team continued to monitor-and met multiple times to evaluate-M.S.'s educational performance. The IEP team further changed M.S.'s placement in February 2016 only after observing marginally successful, but less than ideal, results under the April 2015 change. The record in this case clearly indicates that the Defendants were not simply spacing out the placement changes to circumvent the statutory provision. They made subsequent changes to the IEP in good faith. Clasen has failed to overturn, by a preponderance of the evidence, the presumption of the prima facie correctness of the Hearing Officer's findings. As a result, the Court concludes that Defendants' decision to increase M.S.'s special education placement without parental consent did not violate the procedural requirements of the IDEA.

         Even though Defendants did not require parental consent to increase M.S.'s special education placement, they were required to provide M.S.'s parents with prior written notice of the placement changes. However, they failed to provide such notice before they changed M.S.'s placement in February 2016 and after they denied Clasen's request for a new FBA. As a result, the Defendants violated the IDEA procedural requirement to provide parents with prior written notice before a change in placement. With that being said, the ...

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