Case 4:96-cv-01004-JMM Document 47 Filed 10/13/99 Page 1 of 22

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

FILED

EASTuP.,'~-NDoItflTlT"fItCtC'fTQAOfUtK~A'"NSAS

No. 98-1010

Ul: I 1 S 1999

Thomas Bradley, as Natural Guardian *

of: and on behalf of David Bradley, a *

minor; Dianna Bradley, as Natural

*

Guardian of, and on behalf of David

*

Bradley, a minor;

*

*

Pllaintiffs - Appellees,

*

*

United States of America.

*

*

Intervenor on Appeal,

*

*

v.

*

*

Arkansas Department of Education;

*

Mike Crowley, individually and in his *

capacity as an employee of the

*

Arkansas Department of Education;

*

* Defendants - Appellants. *

* Williford School District 39; John Does, *

1-10,

*

*

Defendants,

*

*

*

Advocacy Sen'ices, Inc.,

*

*

Amicus Curiae.

*

JAMES W. McCORMACK. CLERK

By:____

--
.. DEP CLERK

Appeals from the United States District Court for the Eastern District of Arkansas.

Case 4:96-cv-01004-JMM Document 47 Filed 10/13/99 Page 2 of 22

No. 98-1830

Jim C, individually and as parent and *

next friend of J.C.; Susan C,

*

individually and as parent and next

*

friend of J..C.;

*

*

Plaintiffs - Appellees.

*

*

United States of America,

*

*

Intervenor on Appeal,

*

*

v.

*

*

Atkins School District; Arch Ford

*

Education Service Cooperative;

*

*

Defendants,

*

*

Arkansas Department of Education,

*

*

Defendant - Appellant.

*

Submitted: September 24, 1998 Filed: August 31, 1999

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Before BOWMAN, Chief Judge, I LOKEN, and KELLY, 2 Circuit Judges.
BOWMAN, Chief Judge.
In these two cases, consolidated on appeal, Arkansas residents brought suit against the Arkansas Department of Education (ADE) and other defendants, alleging violations of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §§ 1400-1487 (West Supp. 1999); § 504 of the Rehabilitation Act (RA), 29 U.S.C. § 794 (1994); and other provisions of state and federal law. The State of Arkansas, representing the ADE and Mike Crowley, a Bradley defendant and ADE employee, moved the District Court in each case to dismiss the actions, claiming the Eleventh Amendment prevented a federal court from exercising jurisdiction over such claims.
The DistrictCourt denied Arkansas's motions with respect to the IDEA and, in :~im c.,
§ 504 of the RA. The state then filed these interlocutory appeals.
I.
These interlocutory appeals involve exclusively legal issues, so we provide only a brief summary of the facts of each case. In Bradley, Thomas and Dianna Bradley filed suit against the ADE, ADE employee Mike Crowley, the local school district, and other unidentified individual defendants, alleging violations of the IDEA and other state and federal statutes. The Bradleys' IDEA claim asserts that the ADE, Crowley,
IThe Honorable Pasco M. Bowman stepped down as ChiefJudge ofthe United States Court of Appeals for the Eighth Circuit at the end ofthe day on April 23, 1999. He has been succeeded by the Honorable Roger L. Wollman.
2The Honorable John D. Kelly died on October 21, 1998. The case has been decided by the: remaining members of the panel pursuant to 28 U.S.c. § 46(d) (1994) and 8th Cir. R. 47E.
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and the local school district failed to provide an adequate due process hearing under the IDEA to review their son David's Individual Education Program (IEP). 3
Representing the ADE and Crowley, Arkansas moved for dismissal or in the alternative for summary judgment on a number of grounds. One argument Arkansas raised is that the Eleventh Amendment bars a federal court from exercising jurisdiction over the Bradleys' IDEA claim.
The Honorable James M. Moody, United States District Judge for the Eastern District ofArkansas, denied the state's motion. Judge Moody concluded that the IDEA wa~ a valid exercise of Congress's power under § 5 of the Fourteenth Amendment to enforce the Equal Protection Clause, and that the IDEA's provisions abrogating the state's Eleventh Amendment immunity therefore were valid under Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). See Bradley v. Arkansas Dep't ofJ.;~duc., No. LR-C-96-1004, slip op. at 4 (E.D. Ark. Nov. 21, 1997) (order denying motion to dismiss or for summary judgment). Arkansas appealed the denial of its motion to dismiss thl~ Bradleys' IDEA claim on Eleventh Amendment grounds, and Judge Moody stayed proceedings pending this appeal.
In Jim C., Jim and Susan C. filed suit against the ADE, Arch Ford Education Services Cooperative, and the local school district, alleging violations ofthe IDEA, § 504 ofthe RA, 42 U.S.C. § 1983 (1994), and state law. In particular, Jim and Susan C.
claimed that their child, J.c., should receive additional treatment consistent with the
Lovaas program, a methodology found to have some success in treating children with autism. ~ee Jim C. v. Atkins Sch. Dist., No. LR-C-96-748, slip op. at 2 (E.D. Ark.
3An IEP is a written statement that indicates the educational perfonnance level of a child with a disability and the special and mainstream services that will be used to accommodate the child and ensure that the child receives an appropriate education. See 20 U.S.C.A. §§ 1401(11), 1414(d) (West Supp. 1999).
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Feb. 23, 1998) (memorandum opinion and order). Representing the ADE, Arkansas moved for dismissal or in the alternative for summary judgment, asserting in part that the Eleventh Amendment prevented a federal court from exercising jurisdiction over Jim and Susan C.'s IDEA, § 504, and § 1983 claims.
The Honorable G. Thomas Eisele, United States District Judge for the Eastern District of Arkansas, denied Arkansas's motion to dismiss Jim and Susan C.'s IDEA and § 504 claims. Judge Eisele agreed with Judge Moody's order in Bradley that the abrogation provision in the IDEA was a valid exercise of Congress's § 5 power. See id. at 5-6 (quoting Bradley, LR-C-96-1 004, slip op. at 4). Judge Eisele also detennined § 504 was a valid exercise of Congress's § 5 power. See id. at 7.4 Therefore, the District Court concluded it had jurisdiction over the IDEA and § 504 claims. Arkansas appealed, and the District Court held in abeyance its ruling on further motions and granted a continuance while the appeal was pending. See id. Arkansas then requested that Jim C. be consolidated with Bradley.
II.
The text of the Eleventh Amendment reads: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one ofthe United States by Citizens ofanother State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. The Amendment's text, however, does not accurately define the bounds of the immunity that the Amendment reflects. See Alden v. Maine, 119 S. Ct. 2240, 2246 (1999) (stating that "Eleventh Amendment immunity," while a convenient shorthand, is "something ofa misnomer,
4Judgc Eisele concluded that the Eleventh Amendment prevents the District Court from exercising jurisdiction over the § 1983 claim Jim and Susan C. brought against the ADE, and therefore dismissed that claim. See Jim C., LR-C-96-748, slip op. at 7. This ruling has not been appealed.
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for the sovereign immunity ofthe States neither derives from nor is limited by the terms of the Eleventh Amendment"). Rather, Eleventh Amendment immunity generally prevents an unwilling state from being sued in federal court. See Flori(ia Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199, 22:04 (1999) [hereinafter Florida Prepaid]; Seminole Tribe, 517 U.S. at 54; see also Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267 (1997) (saying the Eleventh Amendment "enacts a sovereign immunity from suit, rather than a nonwaivable limit on the Federal Judiciary's subject-matter jurisdiction"). The Amendment's protections also may reach to state officials and state agencies, see Hadley v. North Ark. Community_Technical College, 7h F.3d 1437, 1438 (8th Cir. 1996) (quoting Pennhurst State Sch. & Hosp. v. Ha!derman, 465 U.S. 89,123 n.34 (1984)), cert. denied 519 U.S. 1148 (1997), and to suits brought against a state by citizens of that same state, see Hans v. Louisiana, 134 U.S. 1, 15 (1890); see also Coeur d'Alene, 521 U.S. at 268 (reaffinning Hans). Therefore, the Eleventh Amendment may prevent the plaintiffs in these consolidated cases, all citizens of Arkansas, from proceeding in federal court against the ADE, an Arkansas state agency, and defendant Crowley, an ADE official, for alleged violations 'ofthe IDEA and § 504.
Although agreeing that Eleventh Amendment analysis is appropriate, the plaintiffs and intervenor the United States argue that three exceptions to Arkansas's Eleventh Amendment immunity allow the plaintiffs to proceed with their claims in federal court. First, the plaintifts assert that Congress, exercising the power granted it by § 5 of the Fourteenth Amendment, abrogated the states' immunity and forced unwilling states to defend themselves in federal court against claims brought for violating the IDEA and § 504. Second, they argue that Arkansas waived its Eleventh Amendment immunity because it received federal funds appropriated with the conditions imposed by the IDEA and § 504, and that one of the conditions imposed was that it state consent to defend itself in federal court against claims arising under those statutes. Finally, the Bradleys contend that, even if Arkansas is shielded by its
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Eleventh Amt:ndment immunity, defendant Crowley nevertheless may be enjoined from engaging in future conduct that is contrary to federal law.
III.
Turning first to the plaintiffs' arguments that federal courts have jurisdiction over IDEA claims hrought against the ADE and, in Bradley, defendant Crowley, we note that this Court recently has considered whether a state may be sued in federal court for alleged violations of the IDEA. In that decision, Little Rock School District v. Mauney, No. 98-1721, 1999 WL 407763 (8th Cir. Jun. 14, 1999), we allowed private citizens' claims that the ADE had violated the IDEA to proceed in federal court on two independent grounds, either of which was a sufficient basis for rejecting the lWE's claim of Eleventh Amendment immunity: (1) that the IDEA abrogated the states' immunity and that the abrogation was effective because Congress exercised its power under § 5 of the Fourteenth Amendment when enacting the IDEA; and (2) that Congress created a valid spending program when it enacted the IDEA, and that Arkansas waived its immunity when it participated in IDEA programs, accepting funds appropriated pursuant to the IDEA and governed by the conditions imposed by the IDEA. See i(L at *11-* 12.
After our opinion in Mauney was filed, however, the Supreme Court announced a trilogy of Elleventh Amendment cases, Alden, Florida Prepaid, and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 119 S. Ct. 2219 (1999) [hereinafter College Savings]. This Court then announced its en bane decision in Alsbrook v. City of Maumelle, No. 97-1825,1999 WL 521709 (8th Cir. Jul. 23, 1999) (en bane). Looking at these more recent authorities, we conclude that Florida Prepaid and Alsbrook undercut Mauney's abrogation analysis. Therefore, we reexamine the question whether a private citizen's suit for a violation ofthe IDEA may be brought against an unwilling state in federal court.
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A.
To detennine whether the IDEA abrogates the states' immunity, we begin, as Mauney and the subsequent decisions ofthis Court and the Supreme Court do, with the two-part Seminole Tribe test. See,~, Florida Prepaid, 119 S. C1.. at 2205; Alsbrook, 1999 WL 521709, at *4; Mauney, 1999 WL 407763, at *3. 1be first part of the Seminole Tribe test requires that a federal statute contain an "unequivocal expression" ofCongn~ss's intent to abrogate the states' immunity. See Seminole Tribe, 517 U.S. at
55.. The IDEA contains an abrogation provision, 20 U.S.C. § 1403, which reads in
part: "A State shall not be immune under the eleventh amendment to the Constitution of the United States from suit in Federal court for a violation of this chapter." 20 U .S.C.A" § 1403(a) (West Supp. 1999). In Mauney, a panel of this Court stated that the IDEA abrogation provision satisfies the first part of the Seminole Tribe test. See Mauney, 1999 WL 407763, at *4. The subsequent decisions ofthis Court and the .' Supreme Court do not undermine this part of Mauney: both Florida prepaid and Alsbrool~ conclude that abrogation provisions that essentially mirror § 1403 satis1y the first part of the Seminole Tribe test. See Florida Prepaid, 119 S. Ct. at 2205 (stating the abrogation provision in the Patent and Plant Variety Protection Act, 35 U.S.C. § 296(a), satisfies the first part ofthe Seminole Tribe test); Alsbrook, 1999 WL 521709, at *4 (concluding the abrogation provision in the Americans with Disabilities Act, 42 U.S.C. § 12202 (1994), unequivocally expresses Congress's intent to abrogate the states' immunity). After examining these authorities, we believe Mauney's determination that § 1403 offers an unequivocal expression of Congress's intent to abrogatl: the states' immunity remains correct.
The second part of the Seminole Tribe test requires that a statute be an appropriate exercise of Congress's constitutional powers for its abrogation provision to have effect. See Seminole Tribe, 517 U.S. at 55. The Supreme Court and this Court
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have recognized only one constitutional power under which Congress may abrogate the states' Eleventh Amendment immunity, the power granted Congress by § 5 of the Fourteenth Amendment. See Florida Prepaid, 119 S. Ct. at 2205-06; Alsbrook., 1999 WL 521709, at *4. Section 5 empowers Congress to "enforce, by appropriate legislation, the provisions" of the Fourteenth Amendment, including the Equal Protection Clause. See U.S. Const. amend. XIV, § 5; see also U.S. Const. amend. XIV, § 1 (containing the Equal Protection Clause, which commands that no state shall "deny to any person within its jurisdiction the equal protection of the laws").
Legisla.tion is an appropriate exercise of Congress's § 5 power only when it is preventative or remedial. See City ofBoeme v. Flores, 521 U.S. 507,530 (1997). For legislation to be preventative or remedial, Congress must "identifY the conduct transgressing the Fourteenth Amendment's substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct." Florida Prepaid, 119 S. Ct. at 2207.
Because the briefs in this case were submitted prior to the Court's decision in Florida Prepaid, the parties did not pinpoint the constitutional transgressions Congress sought to remedy when it enacted the IDEA. "[G]uided by the principle that the propriety of any § 5 legislation 'must be judged with reference to the historical experience ... it reflects,'" id. (quoting Boerne, 521 U.S. at 525), we have reviewed the legislative history and believe that Congress did not adequately identifY the constitutional transgressions it sought to remedy when it enacted the IDEA. Congress did identifY significant disparities in the treatment ofstudents with disabilities and those without disabilities, and made six relevant findings regarding these differences:
(1) tht;:re are more than eight million children with disabilities in the United States today; (2) the special educational needs of such children are not being fully met;
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(3) more than half ofthe children with disabilities in the United States do not receive appropriate educational services which would enable tht:m to have full equality of opportunity; (4) one million of the children with disabilities in the United States are excluded entirely from the public school system and will not go through the educational process with their peers; (5) there are many children with disabilities throughout the United States participating in regular school programs whose disabilities prevent them from having a successful educational experience because their disabilities are undetected; [and] (6) because of the lack of adequate services within the public school system, families are often forced to find services outside the public school system, often at great distance from their residence and at their own expense.
20 U.S.c. § 1400(b)(l)-(6) (1994); see also Board ofEduc. v. Rowley, 458 U.S. 176, 189 (1982) (discussing these congressional findings); Mauney, 1999 \VL 407763, at *6 (sam~).
In making these six findings, however, Congress did not find that the disparate treatm{:nt of students with disabilities resulted from action by the states or, if it did, that such state action violated the Equal Protection Clause. Florida Prepaid requires that Congress find that the states themselves are transgressing the constitution. See Florida Prepaid, 119 S. Ct. at 2207 (stating that, when Congress enacted the patent infringement legislation at issue in that case, "Congress identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations"). Congress did not purport to find that the disparate treatment ofstudents with disabilities resulted from state action in violation of the Constitution, which requires states only to have a rational basis to justify treating students with disabilities differently from those without disabilities. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 445-46 (1985). Moreover, Congress did not indicate whether the states were treating students differently, or whether local school districts were responsible for the lack of education for disabled children that Congress sought to remedy when it enacted the IDEA.
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Whether Congress correctly identified the constitutional transgressions it sought to remedy. however, is not decisive in this case. Even if we assume Congress adequately identified perceived constitutional transgressions it sought to remedy when it enacted the IDEA, Alsbrook requires us to conclude that the IDEA's abrogation provision is invalid because the IDEA is not an appropriate exercise of Congress's § 5 power. The same difficulty that this Court found with the ADA in Alsbrook applies to the IDEA in the present case. Like the ADA, the IDEA "does far more than enforce the rational relationship standard recognized by the Supreme Court in Cleburne." Alsbrook, 1999 WL 521709, at *6 (discussing the ADA). In many instances, programs rationally rellated to a legitimate state interest--and thus constitutional under Cl~burne-­ would be struck down as failing to satisfy the IDEA's requirement that students with disabilities receive a "free appropriate public education." 20 U.S.C. § 1400(c) (1994); cf. Alsbro01~. 1999 WL 521709, at *6 (stating that, for the same reason, the ADA exceeds Congress's § 5 power). The Constitution would not, for example, require a local school district to provide the nursing care that the Supreme Court in Cedar Rapids Community School District v. Garrett F. ex reI. Charlene F., 119 S. Ct. 992 (1999), determined the IDEA requires.
Although this Court in Mauney determined that the IDEA had the requisite congruence and proportionality to Congress's goal of providing equal educational opportunity for students with disabilities, see Mauney, 1999 WL 407763, at *11, we now must conclude that the IDEA extends beyond the power granted Congress by § 5 ofthe Fourteenth Amendment. Th(: IDEA, therefore, cannot be an appropriate exercise of Congress's § 5 power, and its abrogation provision is not valid. See Alsbrook, 1999 WL 521709,. at *5 (stating that, iflegislation seeks to "expand, enhance, or add to the guarantees of the Fourteenth Amendment," that legislation's abrogation provision is invalid). The abrogation portion of Mauney has been undercut by subsequent events that have changed the legal landscape, and we believe that this portion of Mauney no longer represents current law.
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B.
In addition to its abrogation holding, Mauney holds that Arkansas waived its Eleventh Amendment immunity by receiving funds appropriated under the IDEA.
See Maumy, 1999 WL 407763, at *11. The Supreme Court's recent decisions add to
the Court's waiver jurisprudence, see, ~, College Savings, 119 S. Ct. at 2228 (rejecting the concept of constructive waiver), but these decisions do not affect Mauney's analysis of the waivt;~r issue. Rather, the Supreme Court continues to recognize that Congress, if acting within its spending power, may condition a state's participation in a federal spending program on the state's waiving its Eleventh Amendment immunity to claims arising from that program. See College Savings, 119 S. Ct. at 2231; see also Alden, 119 S. Ct. at 2267. The waiver portion of Mauney has not been undercut by subsequent decisions. Thus this portion ofMauney represents the law of the Circuit and we are bound by it.5
For a federal statute to produce a waiver ofa state's immunity through the state's .participation in a federal spending program, the statute must provide a clear expression ofCongress's "intent to condition participation in the program[] ... on a State's consent to waive its constitutional immunity." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985).6 This Court noted in Mauney that there has been some unease in
5For the record, we would have reached the same conclusion regarding waiver even ifw(! had decided the present case in advance of Mauney.
6In Part IV.B of this opinion, we identifY three requirements a federal appropriations statute must satisfy before a state's participation in that spending program causes the state to waive its Eleventh Amendment immunity to suits arising from such participation. We do not analyze all three elements here because this Court already has detennined in Maur~ that Arkansas waived its immunity to suits arising under the IDEA by receiving IDEA funds, and because Arkansas conceded during oral argument 1hat the IDEA was a valid exercise ofCongress's spending power and that the state received funds under the IDEA.
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finding that § 1403, the IDEA's abrogation provision, satisfies this requirement, because § 1403 is entitled "Abrogation of state sovereign immunity" and does not
mention waiver. See Mauney, 1999 WL 407763, at *11. Although § 1403 has some
shortcomings that limit its use as a clear expression of Congress's intent to condition a receipt of IDEA funds on a state's waiving its immunity, another provision of the IDEA reinforces the warning contained in § 1403. That provision, IDEA § 1415, requires states to provide certain procedures for parents who wish to challenge: a state's implementation of the "free appropriate public education" standard. See 20 U.S.C.A. § 1415(a) (\Vest Supp. 1999). One of the procedures that must be provided is the opportunity to have IDEA decisions reviewed in federal court. See 20 U.S.C.A. § 1415(i)(2) (West Supp. 1999) (stating that parties who are aggrieved by a decision under the IDEA may file an action in a federal district court); see also 20 U.S.C.A. § 1415(i)(3)(A) (West Supp. 1999) (stating that "district courts of the United States shall have jurisdiction of actions brought under this section without regard to the amount in controversy"). When it enacted §§ 1403 and 1415, Congress provided a clear, unambiguous warning ofits intent to condition a state's participation in the IDEA pr-ogram and its receipt of federal IDEA funds on the state's waiver of its immunity from suit in federal court on claims made under the IDEA. We therefore hold in accordance with Mauney that Arkansas waived its Eleventh Amendment immunity with respect to IDEA claims when it chose to participate in the federal spending program created by the IDEA.
c.
The Bradleys argue that, even if the ADE could not be sued in federal court, Ex parte Young., 209 U.S. 123 (1908), allows them to seek to enjoin ADE officials, including defendant Crowley, from committing violations of federal law. We agree. Ex parte Young permits a private party to receive prospective injunctive relief in federal court against a state official, even if the Eleventh Amendment otherwise protects the state and its officials from being sued in federal court. See Ex parte
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Young, 209 U.S. at 155-56, 159, 166-68 (allowing a federal court. to ignore a state's Eleventh i\mendment immunity and impose prospective injunctive relief on state officials to enjoin a future violation of federal law); see also Missouri v. Jenkins, 491 U.S. 274,279 (1989) (stating that a state's Eleventh Amendment immunity does not prevent "an award of attorney's fees ancilIal)' to a grant of prospective relief' pursued under Ex parte Young).7
Furthermore, even if Ex parte Young did not apply, the Bradleys could pursue any remedies available under the IDEA against Crowley because, when Arkansas waived its own Eleventh Amendment immunity with respect to IDEA claims, it also
w.aived any Eleventh Amendment immunity Crowley might have had as a state official
with respect to such claims. "The only immunities that can be claimed in an officialcapacity action are forms of sovereign immunity that the entity, qua entity, may possess, such as the Eleventh Amendment." Kentucky v. Graham, 473 U.S. 159, 167 (1985). Under Graham, when Arkansas waived its own Eleventh Amendment immunity from suits brought under the IDEA, the state also waived the Eleventh Amendment immunity of its officials from such suits. See DuffY v. Riveland, 98 F.3d 447, 452 n.4 (9th Cir. 1996). The District Court, therefore, may exercise jurisdiction over the Bradleys' IDEA claims against Crowley and may provide any relief that the IDEA authorizes.
'7The Bradleys make no claim for compensatory or punitive damages, damages not being available for violations of the IDEA. See,~, Thompson v. Board of Special Sch. Dist. No. 1, 144 F.3d 574,579 (8th Cir. 1998); Heidemann v. Rother, 84 FJd 1021, 1033 (8th Cir.1996).
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IV.
Next, we turn to Arkansas's contention that the Eleventh Amendment prevents the states fi'om being forced to litigate in federal court claims arising under § 504 ofthe Rehabilitation Act. Section 504 states in part:
No otherwise qualified individual with a disability in the United States. . . 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 receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
29 U.S.C. § 794(a) (1994). Arkansas concedes that the ADE receives federal funds, and apparently the state does not dispute that § 504 prohibits the ADE from discriminating on the basis of disability. The state does assert that the Eleventh Amendment bars federal courts from exercising judicial power over the state with respect to claims brought under § 504. Therefore, we apply the same analysis that we applied to the IDEA in Parts III.A and III.B of this opinion to detennine whether Jim and Susan C. may pursue their § 504 claim against the ADE in federal court.
A.
To determine whether § 504 abrogates the states' Eleventh Amendment immunity, we again engage in Seminole Tribe's two-part analysis. First, the statute must contain an unequivocal expression of Congress's intent to abrogate the states' Eleventh Amendment immunity. In 1985, the Court in Atascadero held that § 504 lacked the required expression ofintent. See 473 U.S. at 247. Congress responded by enacting an abrogation provision" now codified as 42 U.S.C. § 2000d-7 (1994). See Lane v. Pena, 518 U.S. 187, 198 (J996) (discussing the legislative history of § 2000d-7). This abrogation provision states:
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(a) General provision
(1) A State shall not be immWIe WIder the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, Title VI ofthe Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
(2) In a suit against a State for a violation of a statute referred to in paragraph (1), remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation in the suit against any public or private entity other than a State.
42 U.S.c. § 2000d-7(a) (1994) (internal citations omitted). This Court already has concludj~d in Alsbrook and Mauney that abrogation provisions mirroring 42 U.S.C. § 2000d-7 adequately express Congress's intent to abrogate. See AlsbroQk, 1999 WL 521709, at *4 (examining the ADA abrogation provision, codified at 42 U.S.C. § 12202 (1994)); Mauney, 1999 WL 407763, at *11 (examining the IDEA's abrogation provision, 20 U.S.C. § 1403). Because we find no material differences between § 2000d-7 and the abrogation provisions considered and found adequate in Alsbrook and Mauney, we conclude that § 504 also satisfies the first part of the Seminole Tribe test.
DIe second part of the Seminole Tribe test, as discussed supra in Part IILA, requires that a statute be an appropriate exercise of Congress's constitutional powers for the statute's abrogation provision to have effect. See Seminole Tribe, 517 U.S. at 55. TIle United States, intervening in this litigation, argues that § 504 is a valid exercise of Congress's power under § 5 of the Fourteenth Amendment. Congress did
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not rely expressly on its § 5 pow{~r when it enacted § 504 or its abrogation provision, 42 U.S.c. § 2000d-7. See Franks v. Kentucky Sch. for the Deaf, 142 F.3d 360, 363 (6th Cir. 1998). But there is no requirement that a statute specifically refer to § 5 of the Fourteenth Amendment for the statute to be a valid exercise of that constitutional power. Set~ EEOC v. Wyoming, 460 U.S. 226, 243 n.18 (1983) (stating that Congress need not "recite the words 'section 5' or 'Fourteenth Amendment' or 'equal protection' for the constitutionality of action taken by Congress does not depend on recitals ofthe power which it undertakes to exercise" (internal quotation and citation omitted)); see also Humenansky v. Regents ofthe Univ. ofMinn., 152 F.3d 822, 830 (8th Cir.1998). "As long as Congress had such authority as an objective matter, whether it also had the specific intent to legislate pursuant to that authority is irrelevant." Crawford v. Davis, 109. F.3d 1281, 1283 (8th Cir. 1997). lberefore, although the legislative history of § 504 does not mention § 5 of the Fourteenth Amendment, we must consider whether Congress has the constitutional power under § 5 ofthe Fourteenth Amendment to enact § 504. Accordingly, we examine whether Congress adequately identified the constitutional transgressions it sought to remedy, and whether § 504 is properly tailored, with the requisite (;ongruity and proportionality, to remedy those transgressions. See Florida Prepp-aaid, 119 S. Ct. at 2207; Boerne, 512 U.S. at 520.
Wh~~n we consider the legislative history of § 504 and its abrogation provision, we find little indication that Congress properly identified constitutional transgressions it sought to remedy by enacting § 504. In fact, the legislative history is largely silent regarding the reason § 504 was included in the RA. The Joint Explanatory Statement of the Committee of the Conference, for example, does not mention § 504. See 1. Conf. Rep. No. 93-500, reprinted in 1973 U.S.C.C.A.N. 2143; see also Richard K. Scotch, From Good Will to Civil Rights: Transforming Federal Disability Policy 54 (1984) ("It appears that most members of Congress either were unaware that § 504 was includ(~d in the act or saw the section as little more than a platitude, a statement of a desired goal with little potential for causing institutional change. "). Similarly, the legislative history of the abrogation provision does not
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identity constitutional transgressions that make such a provision appropriate. The legislativt: history of § 2000d-7 instead reveals only that Congress sought to override the Supreme Court's decision in Atascadero by providing an unequivocal expression of Congr,ess's intent to abrogate the states' immunity. See,~, 132 Congo Rec. S28622-2:4 (daily ed. Oct. 3, 1986) (statement of Sen. Cranston and attached letter from John R. Bolton, Assistant Attorney General, stating that the purpose of the Civil Rights Remedies Equalization Act is to remedy the statutory flaw identified in AtascaderQ). The legislative history apparently lacks any indication of why Congress thought such abrogation was necessary or appropriate.
We again refrain from relying on Congress's failure to identity properly the evil it sought to remedy, however, because this issue was not fully briefed and would not affect the outcome of our analysis. Instead. Alsbrook compels us to conclude that § 504 reaches beyond the scope ofCongress's § 5 power. As noted supra in Part III.A, this Court determined in Alsbrook that Title II of the ADA exceeds Congress's § 5 power because the ADA is not merely remedial, but provides substantive rights in excess of those that are protected by the Constitution from impairment by government action. ;See Alsbrook, 1999 WL 521709, at *6. Alsbrook requires us to reach the same conclusion here, because the ADA and § 504 provide essentially the same protections for the same group of individuals, people with disabilities. See § 29 U.S.C. 794(d) (1994) (directing that courts should use the same standard to determine if § 504 and the sections of the ADA relating to employment have been violated).8 The only difference
8Regulations promulgated under the RA require schools to provide a "free appropriate public education,II the same standard imposed by the IDEA. See,~, 34 C.F.R. § 104.33(a) (1998) (requiring recipients of federal funds that operate public elementary or secondary education programs to provide a free appropriate public education to qualified persons with disabilities). We already have determined that the "free appropriate public education" standard exceeds the constitutional burdens imposed by the Equal Protection Clause. See supra Part lILA. These regulations, therefore, do not save § 504'05 abrogation provision.
-18-

Case 4:96-cv-01004-JMM Document 47 Filed 10/13/99 Page 19 of 22
between the ADA and § 504 is § 504's application only to recipients offederal funds. See Randolph v. Rogers, 170 F.3d 850,858 (8th Cir. 1999) (liThe ADA and [§ 504 of the] RA are 'similar in substance' and, with the exception of the RA's federal funding requirement., 'cases interpreting either are applicable and interchangeable."') (quoting Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998)). This distinction is immaterial to our § 5 analysis.
This Court determined in Alsbrook that the ADA employment provisions were not an appropriate exercise of Congress's § 5 power because the ADA imposes duties upon the states exceeding those commanded by the Fourteenth Amendment. Applying the reasoning of Alsbrook, we conclude that § 504 does not abrogate the states' Eleventh Amendment immunity. 9
9In concluding that § 504 does not abrogate the states' immunity, we recognize the existence of decisions to the contrary by the Fourth, Fifth, and Ninth Circuits that predate the Supreme Court's Alden trilogy. See Amos v. Maryland Dep't ofPub. Safety & Correctional Servs., 178 F.3d 212, 222-23 (4th Cir. 1999); Coolbaugh v. Louisiana, 136 F.3d 430,438 (5th Cir.), celt. denied, 119 S. Ct. 58 (1998); Clark v. California, 123 F.3d 1267, 1270 (9th Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998). We also are aware of dicta contained in earlier Supreme Court opinions to the effect that § 504 abrogated the states' immunity. See,~, Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 72 (1992) (in which the Court, while considering whether Title IX creates an implied right ofprivate action, stated that Congress when enacting 42U.S.C. § 2000d-7 "abrogated the States' Eleventh Amendment immunity under Title IX, Title VI, § 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975 ").. This sort of dicta, unsupported by Seminole Tribe's abrogation analysis, is probably best read simply as a statement of historical legislative fact rather than as a statement of constitutional law. To give it import as a statement of constitutional law would be to render it out of step with the Court's more recent decisions.
-19-

Case 4:96-cv-01004-JMM Document 47 Filed 10/13/99 Page 20 of 22
B.
We next consider whether Arkansas waived its Eleventh Amendment immunity with respect to claims arising under § 504 by accepting federal funds. Examining the Supreme Court's decisions in Atascadero and Pennhurst State School & l-Iospital v. Halderm<!!1 451 U.S. 1 (1981), we find three requirements that must be satisfied if a state's participation in a federal spending program is to be held to constitute a waiver ofthe state's Eleventh Amendment immunity against claims arising under that program. The three requirements are: (1) the federal spending program must represent a valid e?,ercise of Congress's spending power; (2) the statute creating the federal spending program must contain a clear., unambiguous warning that Congress intends to exact waiver of Eleventh Amendment immunity as a condition for participating in the program; and (3) the state must have participated in the federal spending program. See Atascadero, 473 U.S. at 247;pennhurst, 451 U.S. at 17; see also Abril v. Virginia, 145 F.3d 182,190-91 (4th Cir. 1998) (formulating a two-factor test to determine if states have waived their immunity).
Section 504 fails the first requirement because it is not a valid exercise of Congn~ss's spending power. College Savings recognizes that Congress may require states to comply with conditions to receive federal funds, including waiving their Eleventh Amendment immunity. See College Savings, 119 S. Ct. at 2231. College Saving~ warns, however, that "the financial inducements offered by Congress might be so cm:rcive as to pass the point at which pressure turns into compulsion." Id. (internal quotations and citations omitted). There are also limitations on the conditions that Congress may impose on a state's receipt of federal funds. One of these limitations is that "conditions must ... bear some relationship to the purpose ofthe federal spending; otherwise, of course, the spending power could render academic the Constitution's other grants and limits of federal authority." New York v. United States, 505 U.S. 144, 167 (1992) (internal citation omitted).
-20-

Case 4:96-cv-01004-JMM Document 47 Filed 10/13/99 Page 21 of 22
Section 504 and its abrogation provision impose overly broad conditions on state agencies such as the ADE. Section 504 prohibits "any program or activity receiving federal funding" from treating an individual differently "solely by reason of' that person's disabilities. See 29 U.S.c. § 794(a). "Program or activity" is defined broadly to include "all of the operations" of state departments, agencies, or instrumentalities. See 29'[ T.S.C. § 794(b)(l)(A). With these provisions, § 504 mandates that Arkansas waive ib Eleventh Amendment immunity to all claims arising under § 504 if it receives any federal funding, even funding unrelated to the state's obligations to comply with § 504 or the rest of the RA.
Congress's imposition of such conditions on a state violates the Constitution because it amounts to impennissible coercion: Arkansas is forced to renounce all federal funding, including funding wholly unrelated to the RA, if it does not want to comply with § 504. Congressional imposition of such a condition does not give Arkansas, or any other state, a meaningful choice regarding whether to receive federal funding and waive its Eleventh Amendment immunity to suits arising under § 504 or reject funding and retain its Eleventh Amendment immunity to such suits.
The condition § 504 imposes on recipients offederal funds exceeds the ordinary quid pro quo involved in a proper exercise of Congress's spending power. See Pennhurst, 451 U.S. at 17 (stating that "legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress's power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms ofthe 'contract.'''). Therefore, § 504 is not a valid exercise of Congress's spending power, and Arkansas by receiving federal funds did not waive its Eleventh Amendment immunity to suits arising from alleged violations of§ 504. We reverse the District Court's order in Jim C. to the extent it holds that it may exercise jurisdiction over Jim and Susan C.'s § 504 claim, and remand the case to the District
-21-

Case 4:96-cv-01004-JMM Document 47 Filed 10/13/99 Page 22 of 22
Court for dismissal of the claim on the basis of Arkansas's Eleventh Amendment immWlity"
v.
For the reasons stated above, we affinn the orders in 98-1010 and 98-1830 with regard to the IDEA, not on the abrogation grounds upon which those orders relied, but on the grounds that Arkansas waived its Eleventh Amendment immunity with respect to claims arising under the IDEA by voluntarily participating in this federal spending program. We reverse the order in 98-1830 to the extent it rejects Arkansas's assertion of Eleventh Amendment immlmity with respect to Jim and Susan C.'s claim that the ADE violated § 504 of the Rehabilitation Act, and remand for dismissal of the plaintiffs' § 504 claim on the basis ofthe state's Eleventh Amendment immunity. Both cases arc remanded for further proceedings consistent with this opinion.
A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-22-

 
 Case 4:96-cv-01004-JMM Document 134 Filed 09/27/01 Page 1 of 10

>

INTEHAESUTNElRTNEDDISSTTRAITCETSODFIASRTKRANISCATS~EAUSRTTM/NF~,'~LlirC;l~n~~SAS-

,

.
.

WESTERN DIVISION

SEP 2? 2001

Ji
,

DAVID BRADLEY, et. al.

JAMES W. McCORMA(;K

By:

INTIFFS"

VS.

NO:4:96CVI004

4:00CV00747

ARKANSAS DEPARTMENT OF EDUCATION, et. al.

DEFENDANTS

ORDER
Pending are Plaintiffs' motion for determination of class action under Federal Rule of
Civil Procedure 23(c)(l ) (docket #91) and Plaintiffs' motion for reconsideration (docket # 117).
The Defendants have responded. Following a hearing held in this matter September 19, 2001,
the Court finds that Plaintiffs' motion for reconsideration shonld be, and hereby is granted in part
and denied in part. Plaintiffs' motion for class certification, as set forth herein, is granted in part
and denied in part.
Facts
Plaintiffs' motion for class certification requests that the Court certifY the two following
classes of persons:
(1) All school-age children with disabilities and their parents, guardians and next friends who have been, are being or will be denied
(a) their right to a decision of their due process complaint within 45 days; (b) the opportunity to confront, cross examine and compel the attendance of witnesses at the due process hearing; or (c) their right to an impartial hearing.
(2) All high school, junior high school, middle school, or late primary school-age children, as well their parents, guardians and next friends who have been identified as having autism, Asperger's Syndrome, or Pervasive Developmental Disorder (PDD), or a

Case 4:96-cv-01004-JMM Document 134 Filed 09/27/01 Page 2 of 10
disability with characteristics similar to autism, and who have strong cognitive abilities, but who have been, are being or will be denied an education which
(a) is both appropriate and integrated, as to both academic and extracurricular activities;
(b) provides for participation and progress in the general curriculum; and (c) utilizes promising and proven educational practices. On June 8, 200 I this Court entered an order denying Plaintiffs' motion for class certification with respect to the substantive class ( that class identified in #2 above). The Court requested the parties present evidence with regard to the procedural class (that class identified in #1 above). Plaintiffs subsequently filed a motion to reconsider the Court's denial of the substantive class. As proposed representative of both classes, Plaintiffs state that they have met the prerequisites of Rule 23(a): "(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23 (a). Plaintiffs goes on to say that they have met the requirements of 23(b)(2) because the Defendants have policies of denying procedural safeguards to children with disabilities and meaningful, integrated education to children with autism and related disabilities, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Fed. R. Civ. P. 23(b)(2).
Substantive Class With regard to the proposed substantive class, the Court previously held that the Plaintiffs failed to satisfY the commonality and typicality requirements of Rule 23(a). In response to the
2

Case 4:96-cv-01004-JMM Document 134 Filed 09/27/01 Page 3 of 10
Court's ruling Plaintiffs state that the common thread applicable to this class is that the State Defendants have failed to have in effect a comprehensive system of personnel development that is designed to ensure an adequate supply of qualified special education and regular education personnel, failed to acquire and disseminate significant knowledge derived from educational research and other sources and failed to adopt promising practices, materials and technology.
The Plaintiffs presented evidence that the current state system is inadequate to meet the needs of the proposed class and that the proposed class totals approximately 766. Plaintiffs seek declaratory and injunctive relief on behalf ofthe proposed class members. Although Defendants responded with evidence concerning the appropriateness and effectiveness ofthe state system, Defendants did not present evidence contradicting the elements necessary for class certification.
Based upon the evidence presented and the relief sought, the Court concludes that a review of each class member's individual education plan will not be necessary. The issue at trial will be whether the State met the requirements of the IDEA with regard to the adoption and dissemination of promising educational practices designed to ensure a free appropriate public education by the class members defined herein.
The Court finds that Plaintiffs have met all four requirements of Rule 23(a). The class, as defined by Plaintiffs, includes:
All high school, junior high school, middle school, or late primary school-age children, as well their parents, guardians and next friends who have been identified as having autism, Asperger's Syndrome, or Pervasive Developmental Disorder (PDD), or a disability with characteristics similar to autism, and who have strong cognitive abilities, but who have been, are being or will be denied an education which
(a) is both appropriate and integrated, as to both academic and extracurricular activities;
(b) provides for participation and progress in the general curriculum; and (c) utilizes promising and proven educational practices.
3

Case 4:96-cv-01004-JMM Document 134 Filed 09/27/01 Page 4 of 10
The Immerosity requirement of Rule 23(a)(l) requires an inquiry into whether the class is "so numerous that joinder of all members is impracticable." The evidence presented to the Court indicates that the proposed class totals approximately 766. This number is certainly sufficient to meet the requirement of numerosity.
Rule 23(a)(2) requires that there be common questions oflaw or fact among the members· ofthe class. This element may be satisfied "where the question of law linking the class members is substantially related to the resolution of the litigation even though the individuals are not identically situated." Paxton v. Union National Bank, 688 F. 2d 552,561 (8th Cir. 1982). The commonality requirement is satisfied because the following issue pervades all the class members' claims: whether the State met the requirements of the IDEA with regard to the adoption and dissemination of promising educational practices designed to ensure a free appropriate public education by the class members defined herein.
Rule 23(a)(3) requires that "the claims or defenses of the representative parties (be) typical of the claims or defenses of the class." The Eighth Circuit has interpreted typicality to mean that there are "other members of the class who have the same or similar grievances as the plaintiff'. Christina A. v. Bloomberg, 197 F.R.D. 664,668 (S.D.S.D. 2000). The Plaintiffs have met this requirement. Plaintiffs presented evidence to the Court that the current state system is failing to meet the educational requirements of the proposed class. Plaintiffs offered testimony that the State Defendants have failed to have in effect a comprehensive system of personnel development that is designed to ensure an adequate supply of qualified special education and regular education personnel, failed to acquire and disseminate significant knowledge derived from educational research and other sources and failed to adopt promising practices, materials
4

Case 4:96-cv-01004-JMM Document 134 Filed 09/27/01 Page 5 of 10
and technology. The Court is satisfied that the class representatives have common interests with the
members of the class and that the class representatives will vigorously prosecute the interests of the class through qualified counsel. Therefore, the requirements of Rule 23(a)(4) have been met. Further, the Court finds that Rule 23(b)(2) certification is appropriate. Plaintiffs seek injunctive and declaratory relief to cure the alleged violations.
The Court also finds that the Plaintiffs are entitled to an exemption from the exhaustion of administrative remedies requirement. Although failure to exhaust may deprive a district court of subject matter jurisdiction, the exhaustion requirement is not absolute. Exhaustion is not required "where it would be futile or the state administrative system would be inadequate". See Garro v. State o/Connecticut, 23 F.3d 734, 737 (2d Cir. 1994) and Doe v. Maher, 793 F. 2d 1470 (9th Cir., 1986), cert. granted on other grounds, 107 S. Ct. 1284 (l987)(exhaustion not required where the administrative relief would be futile or inadequate). Plaintiffs seek to remedy alleged system wide violations of the IDEA. The Court finds that it is improbable ifnot impossible for adequate reliefto be obtained by pursuing administrative remedies. If the administrative procedure is incapable of offering a remedy for a party's complaint and is incapable of addressing the issues presented by a party's claim, exhaustion is not required. Mrs. W. v. Tirozzi. 832 F. 2d 748 (2d Cir. 1987).
For the reasons set forth above, the Court finds that Plaintiffs motion to certify the proposed substantive class should be and hereby is granted.
Procedural Class Plaintiffs define the proposed procedural class as follows:
5

Case 4:96-cv-01004-JMM Document 134 Filed 09/27/01 Page 6 of 10
(1) All school-age children with disabilities and their parents, guardians and next friends who have been, are being or will be denied
(a) their right to a decision of their due process complaint within 45 days; (b) the opportunity to confront, cross examine and compel the attendance of witnesses at the due process hearing; or (c) their right to an impartial hearing.
In support of this class, Plaintiffs submitted numerous documents identifYing those individuals who had allegedly been denied their right to a decision of their due process complaint within 45 days. Plaintiffs presented no evidence to support the maintenance of a class on behalf of individuals denied the opportunity to confront, cross examine and compel the attendance of witnesses at the due process hearing or their right to an impartial hearing. As such, the Court will deny Plaintiffs request to certifY a class based upon these alleged violations of the proposed class members rights. The Court will limit its inquiry into the proposed class allegedly denied their right to a decision oftheir due process complaint within 45 days.
Plaintiffs have presented evidence that approximately 26 violations have occurred. The State contends these 26 alleged violations represent only 20 individual students, 7 of whom have pursued litigation individually. However, Plaintiffs also include in this class those individuals who will in the future be denied their right to a decision of their due process complaint within 45 days. No arbitrary rules regarding the necessary size of classes have been established. Boyd v. Ozark Air Lines, Inc., 568 F. 2d 50, 54 (8th Cir. 1977). In addition, Plaintiffs' complaint seeks to remedy alleged systematic violations. The Court finds that joinder of the members of this class is impracticable. None ofthe individual members could obtain the broad based injunctive or declaratory relief that the class representatives seek. Therefore, the Court concludes that Plaintiffs have met the numerosity requirement.
6

Case 4:96-cv-01004-JMM Document 134 Filed 09/27/01 Page 7 of 10
The Court finds that the Plaintiffs have presented sufficient evidence to satisfY the remaining requirements for class certification. Plaintiffs have demonstrated common questions of law and fact exist among the members ofthe class and that other members of the class have the same or similar grievances as the Plaintiffs. For the reasons stated above, the Court finds that the Plaintiffs have satisfied the requirements of Rule 23 (a)(4) and Rule 23(b)(2). Further, Plaintiffs are entitled to an exemption from the exhaustion requirement for the reasons set forth herein. As such, Plaintiffs' motion to certifY the procedural class, as defined below, should be and hereby is granted. Plaintiffs motion to certifY the procedural class of all school-age children with disabilities and their parents, guardians and next friends who have been, are being or will be denied the opportunity to confront, cross examine and compel the attendance of witnesses at the due process hearing or their right to an impartial hearing is denied.
Conclusion For the reasons set forth herein, Plaintiffs' motion for determination of class action under Federal Rule of Civil Procedure 23(c)(1 ) (docket #91) and Plaintiffs' motion for reconsideration (docket # 117) are granted in part and denied in part. The Court hereby certifies the following classes of individuals:
(1) All school-age children with disabilities and their parents, guardians and next friends who have been, are being or will be denied
(a) their right to a decision of their due process complaint within 45 days. (2) All high school, junior high school, middle school, or late primary school-age children, as well their parents, guardians and next friends who have been identified as having autism, Asperger's Syndrome, or Pervasive Developmental Disorder (PDD), or a disability with characteristics similar to autism, and who have strong cognitive abilities, but who have been, are being or will be denied an education which (a) is both appropriate and integrated, as to both academic and
7

Case 4:96-cv-01004-JMM Document 134 Filed 09/27/01 Page 8 of 10

extracurricular activities; (b) provides for participation and progress in the general curriculum; and (c) utilizes promising and proven educational practices.
Plaintiffs motion to certify the procedural class of all school-age children with disabilities
and their parents, guardians and next friends who have been, are being or will be denied the
opportunity to confront, cross examine and compel the attendance of witnesses at the due process
hearing or their right to an impartial hearing is denied.
IT IS SO ORDERED this _2._,'----_ day of September, 2001.

~/'-VV\ \[~
ames M. Moody
United States District Judge

THiS DOCUMENT ENTERED ON

DOCKET S\iEET IN COri?~L6,NCE

WIT'&!xtjo(8 ANDI02il~) FRCP

ON

BY~---~~-----

8

Case 4:96-cv-01004-JMM Document 134 Filed 09/27/01 Page 9 of 10
ah UNITED STATES DISTRICT COURT Eastern District of Arkansas
U.S. Court House 600 West Capitol, Suite 402 Little Rock, Arkansas 72201-3325
September 28, 2001
* * MAILING CERTIFICATE OF CLERK * *
Re: 4:96-cv-01004.
True and correct copies of the attached were mailed by the clerk to the following:
W. Paul Blume, Esq. Attorney at Law 808 Dr. Martin Luther King, Jr. Drive Little Rock, AR 72202-3631
Sherri L. Robinson, Esq. Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610
Thomas K. Gilhool, Esq. Public Interest Law Center of Philadelphia 125 South Ninth Street Suite 700 Philadelphia, PA 19107
Michael Churchill, Esq. Public Interest Law Center of Philadelphia 125 South Ninth Street Suite 700 Philadelphia, PA 19107
Max Lapertosa, Esq. Public Interest Law Center of Philadelphia 125 South Ninth Street Suite 700 Philadelphia, PA 19107
Luther Oneal Sutter, Esq. Harrill & Sutter, P.L.L.C. 310 Natural Resources Drive Post Office Box 26321 Little Rock, AR 72221-6321

Case 4:96-cv-01004-JMM Document 134 Filed 09/27/01 Page 10 of 10

press

Date:

9/28/01

James W. McCormack, Clerk
A Hensley BY:

 
 Case 4:96-cv-01004-JMM Document 142 Filed 11/04/02 Page 1 of 8

Nnv - 42002
United States Court of Appeal~~MES W. MCCORMACK, CLERK
FOR THE EIGHTH CIRCUIT

No. 01-3367

Thomas Bradley, as Natural Guardian *
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 - Appellees,

*

*

v.

*

*

Arkansas Department of Education; *

Mikc Crowley, individually and in his *

capacity as an employee of the

*

Arkansas Department of Education, *

*
Defendants - Appellants, *
*

Williford School District 39;

*

John Does, 1-10,

*

*

Defendants.

*

*

*

* David Bradley, and his parents and next *

friends; Thomas Bradley, individually *

and on behalf of all others similarly *

Appeal from the United States District Court for the Eastern District of Arkansas.

Case 4:96-cv-01004-JMM Document 142 Filed 11/04/02 Page 2 of 8

situated; Dianna Bradley, individually *

and on behalf of all others similarly *

situated,

*

*

Plaintiffs - Appellees,

*

*

v.

*

*
Arkansas Department of Education; *

Raymond Simon, in his official capacity *

as Director of the Department, as well *

as individually,

*

*

Defendants - Appellants, *

*
Diane Sydoriak, in her official capacity *

as Director, Special Education and

*

individually,

*

*

Defendant,

*

* 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,

*

*

Defendants - Appellants, *

*

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 *

-2-

Case 4:96-cv-01004-JMM Document 142 Filed 11/04/02 Page 3 of 8

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.

*

Submitted: May 15,2002 Filed: August 30, 2002

Before BOWMAN, LOKEN, and BYE, Circuit Judges.

BOWMAN, Circuit Judge.
Thomas and Dianna Bradley bring this suit on behalf of their autistic son to challenge multiple aspects of the educational services provided to him while he was a student in the Williford, Arkansas, school district. I Thcy claim thc school district, the Arkansas Department of Education (DOE), and state education officials have violated the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-

IThe Bradleys filed their first suit in 1996 and filed a second suit in 2000. These cases have been consolidated hy the District Court. The suit has been brought both on behalf of their son and as a class action. The Bradleys' son is no longer in school (the record does not show why), and therefore the Bradleys' request for injunctive relief as to their son is now moot. Their case thus remains viable as to their son only as an action for a money judgment. Meanwhile, the class action, in which only injunctive relief is sought on behalf ofthe class, remains pending in the District Court.
-3-

Case 4:96-cv-01004-JMM Document 142 Filed 11/04/02 Page 4 of 8
1487, § 504 ofthe Rehabilitation Act, 29 U.S.c. § 794, and 42 U.S.c. § 1983.2 Three Arkansas DOE officials, sued in their individual capacities for damages, bring this appeal challenging the refusal of the District Court to grant their motion for summary judgment based on qualified immunity. Because these officials are entitled as a matter oflaw to dismissal from this lawsuit on the ground of qualified immunity, we reverse and remand.
1.
The events underlying the instant complaint already have an extensive history of litigation in this Circuit. See Bradley ex reI. Bradley v. Ark. Dept. of Educ., 189 F.3d 745 (8th Cir.), reh'g en banc granted in part, opinion vacated in part by Jim C. v. Ark. Dept. ofEduc., 197 F.3d 958 (8th Cir. 1999), aft'g the District Court on reh'g in part en banc, Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000), cert. denied, 533 U.S. 949 (2001). Despite this lengthy history and the breadth of the underlying complaint, we are asked in this appeal to address the quite narrow question of whether three state DOE officials-Ray Simon, Marcia Harding, and Mike Crowley (collectively, the state officials)3-are entitled to qualified immunity. A district
2The Bradleys' complaint also pleaded a claim under the Americans with Disabilities Act (ADA), 42 U.S.c. §§ 1210 1-12213. The District Court dismissed the ADA claim in an April 12, 2000, order, and thus it is not at issue in this appeal.
lRay Simon has been the Director of the Arkansas Department of Education (DOE) since 1997. He "is responsible for developing the overall mission, goals, and operational strategies" for the state DOE. Appellants' Br. at 2. Marcia Harding is the Associate Director for Special Education, having assumed the position in an interim capacity in October 2000 (only four days before the Bradleys filed their second lawsuit). She directs the "overall administration and implementation of special education and related services" for the state. [d. at 3. Mike Crowley has served as the Program Support Manager for Special Education since 1990. He directs the section ofthe DOE that monitors "school districts and other agencies for compliance with state and federal regulations governing the provision of education to students
-4-

Case 4:96-cv-01004-JMM Document 142 Filed 11/04/02 Page 5 of 8
court's denial of summary judgment based on qualified immunity is immediately appealable and is reviewed de novo. Sexton v. Martin, 210 F.3d 905, 909 (8th Cif. 2000); accord Heidemann v. Rother, 84 F.3d 1021, 1027 & n.4 (8th Cir. 1996) (§ 1983 action).
Qualified immunity is "an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). In determining whether the state officials are entitled to qualified immunity, we must first consider whether the facts as alleged, taken in the light most favorable to the Bradleys, show that the defendant officials violated a federal statutory right. See id. at 201. "If no ... right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." ld. Ifthe Bradleys' allegations show a violation of such a right, then we must inquire whether the right was clearly established. See id.; Ware v. Morrison, 276 F.3d 385, 387 (8th Cif. 2002). For a right to be "clearly established," "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). In other words, "[i]fthe law did not put [the defendant] on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Saucier v. Katz, 533 U.S. 194, 202 (200 I).
II.
We first address the Bradleys' allegations under § 504, because we may easily conclude that the state officials are entitled to qualified immunity as to that claim. In order to state any claim against a state school official under § 504, the Bradleys must show that the official "acted in bad faith or with gross misjudgment." See
with disabilities as identified under the IDEA." Id. -5-

Case 4:96-cv-01004-JMM Document 142 Filed 11/04/02 Page 6 of 8
Birmingham v. Omaha Sch. Dist., 220 F.3d 850, 856 (8th Cir. 2000); accord Monahan v. Nebraska, 687 F.2d 1164, 1171 (8th Cir. 1982), cert. denied, 460 U.S. 1012 (1983). Allegations of negligence do not "clear the hurdle set by the explicit language ofscction 504." Sellers v. Sch. Bd., 141 F.3d 524,529 (4th Cir.) (holding § 504 claim was properly dismissed where complaint alleged failure to timely assess and diagnose a student's disability), cert. denied, 525 U.S. 871 (1998). We have thoroughly reviewed the summary judgment record, and although the Bradleys claim that the state officials have committed violations "so severe, pervasive and objectively offensive" that they amount to "gross violations" of § 504, ComplaintClass Action at 5, they have failed to set forth any specific facts from which we may infer that these officials acted in bad faith or with gross misjudgment. Evcn in their complaint, the Bradleys merely allege that the state officials "knew or should have known" about the violations the Bradleys claim. Id. Taking the facts in the light most favorablc to the Bradleys, the alleged negligence of the state officials, even if proved, would not meet the standard required to establish a violation of § 504. Because the facts as alleged fail to show a violation of a federal statute, the state officials are cntitled to qualified immunity on this claim.4
III.
We next tum to the Bradleys' claims under the IDEA and under § 1983 for violations ofthe IDEA. The Bradleys have set out numerous instances in which both their substantive and procedural rights under the IDEA were allegedly violated. They argue that, as the District Court held with little elaboration, numerous material facts remain in dispute and therefore the state officials are not entitled to qualified immunity. In contrast, the state officials urge this Court to reverse the District Court
4Because the Bradleys cannot sustain their claim brought directly under § 504, the state officials are also entitled to qualified immunity as to the Bradleys' § 1983 claims asserting the same alleged statutory violation.
-6-

Case 4:96-cv-01004-JMM Document 142 Filed 11/04/02 Page 7 of 8
because reasonable state officials, based on their knowledge at the timc, would not have known that their actions violated the IDEA.
We do not reach these specific arguments because the state officials are entitled to qualified immunity on the basis of the remedy the Bradleys have requested. To avoid dismissal on grounds of qualified immunity the Bradleys must allege a valid claim under the IDEA; their claim must also seek remedies available against those officials undcr that statute. See Heidemann, 84 F.3d at 1033 (granting qualified immunity where plaintiffs' IDEA claims sought compensatory and punitive damages "because general and punitive damagcs for the types of injuries alleged by plaintiffs arc not available under thc IDEA").5 In this suit the Bradleys have stated that as to the state officials, "[e]ach is sued individually for damages." Complaint-Class Action at 5. Thcy reiterate this by implication by asking for compensatory and punitive damages in thcir request for relief. Id. at 19. Because the Bradleys cannot recover either compensatory or punitive damages under the IDEA, see Heidemann, 84 F.3d at 1033, the state officials are entitled to qualified immunity as to the Bradleys' IDEA claims."
'We note that there is a disagreement among the circuit courts as to whether monetary damages are available under the IDEA. Compare Heidemann v. Rother, 84 F.3d 1021 (8th CiT. 1996) with W.B. v. Matula, 67 F.3d484 (3d CiT. 1995) and Salley v. St. Tammany Parish Sch. Bd., 57 F.3d 458 (5th CiT. 1995).
"The complaint does not appear to seek recovery, from the state defendants in their individual capacities, of educational expenses incurred by plaintiffs that the Williford School District would have paid all along if an individualized education program (lEP) agreeable to plaintiffs had been in place. In any event, such expenses would be recoverable from the school district, not from any of the individual defendants. See 20 U.S.C. § 1401(8)(A) (2000) (requiring that the education be "provided at public expense, under public supervision and direction"); cf. Florence County Sch. Dist. Fourv. Carter, 510 U.S. 7,15-16 (1993) (affirming reimbursement to parents by school district of education expenses incurred at a private school). We have found no authority, and the parties have not directed this Court to any authority,
-7-

Case 4:96-cv-01004-JMM Document 142 Filed 11/04/02 Page 8 of 8
Because the Bradleys cannot recover damages against the state officials in their individual capacities under the IDEA, they also cannot recover those damages in a § 1983 suit for violations of the IDEA. "Section 1983 merely secures the federally protected rights a plaintiff already holds. It does not expand those rights.... Section 1983 did not provide a right to damages where none existed before." Crocker v. Tenn. Secondary Sch. Athletic Ass'n, 980 F.2d 382, 387 (6th Cir. 1992). "[Section] 1983 by itself does not protect anyone against anything.... [It] does not provide any substantive rights at all." Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-18 (1979).
IV.
For the foregoing reasons, we hold that the District Court erred in denying the school officials' motion for summary judgment on the basis of qualified immunity. We reverse the District Court and remand the case for further proceedings consistent with this opinion.
A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
awarding such expenses against either state or local education officials. This is hardly surprising, inasmuch as the IDEA is devoid of textual support for such an award.
-8-

 
 Case 4:96-cv-01004-JMM Document 150 Filed 05/12/03 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

EAST~RS~~~~9~~SAE

MAY 1 2 2003

JAMES By:

W,

MC.cz;!{fWr~C~KF%C-LLEf

DAVID BRADLEY, et. al.

PLAINTIFFS

VS.

NO:4:96CVI004

4:00CV00747

ARKANSAS DEPARTMENT OF EDUCATION, et. at.

DEFENDANTS

ORDER Pending are the motion to dismiss on behalf of the State Defendants (docket # 144) and motion to strike Plaintiffs memorandum in opposition to motion to dismiss (docket # 147). The Court will consider Plaintiffs opposition to the motion to dismiss., accordingly, Defendants' motion to strike is denied. The Court finds that Defendants' motion to dismiss should be granted in part and denied in part for the reasons set forth herein. Thomas and Dianna Bradley originally filed this lawsuit against the Arkansas Department of Education ("ADE"), Mike Crowley, the Williford School District and several school district officials in 1996. In 2000, Plaintiffs filed an additional lawsuit naming the same Defendants as weI! as officials from the ADE, Ray Simon, Marcia Harding and members of the Williford School Board. These lawsuits were consolidated on November 8, 2000. Plaintiffs claim that the school district, the Arkansas Department of Education and the state education officials have violated the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§1400-l487, §504 of the Rehabilitation Act, 29 U.S.C. §794 and 42 U.S.c. §1983. On August 30, 2002 the Eighth Circuit Court of Appeals issued an opinion reversing this

150

•

Case 4:96-cv-01004-JMM Document 150 Filed 05/12/03 Page 2 of 6

Court, finding that Ray Simon, Marcia Harding and Mike Crowley are entitled to qualified immunity and dismissing all claims for money damages against these individuals.
Defendants assert that because David Bradley is no longer a student eligible for services under the IDEA, his claim for injunctive relief against the State Defendants is moot. Plaintiffs agree that David is now graduated from Williford, is over the age of 21 and will not benefit from the injunctive relief that is sought on behalf of the class. Plaintiffs argue, however, that David continues to have individual claims against the Department of Education for violations of its obligations to him under the IDEA which entitle him to the equitable remedy of compensatory education and reimbursement for past expenses. Both the Fourth and Fifth Circuits have concluded that there is nothing in either the language or the structure of IDEA that limits the district court's authority to award reimbursement costs against the state educational agency or the local educational agency, or both, in any particular case. Gadsby by Gadsby v. Grasmick, 109 F.3d 940, 955 (4th Cir. I 997); SI. Tammany Parish School Ed v. State ofLouisiana, 142 F.3d 776, 783-84 (5th Cir.1998). In accordance with Gadsby and St. Tammany Parish School Board, the Court finds that David Bradley continues to have a claim against the Department of Education for violations of it obligations to him under the IDEA which might entitle him to reimbursement costs.'
, The State argues that the Eighth Circuit in footnote 6 of its August, 2002 opinion recognized that the Plaintiffs can only maintain a claim for compensatory education against the school district and not the state department of education. The court disagrees with this interpretation of the Eighth Circuit's opinion. The Eighth Circuit, in Footnote 6, specifically addressed the issue of recovery of reimbursement expenses from the state defendants in their individual capacities. The Circuit noted the lack of authority to award such expenses against either state or local education officials. The note does not suggest that such recovery is unavailable from either the state department of education or the local district.
2

Case 4:96-cv-01004-JMM Document 150 Filed 05/12/03 Page 3 of 6
,
Next, the Defendants argue that David Bradley is not an adequate class representative in this class action. The Court has certified the following classes of individuals:
(I) All school-age children with disabilities and their parents, guardians and next friends who have been, are being or will be denied
(a) their right to a decision of their due process complaint within 45 days.
(2) All high school, junior high school, middle school, or late primary school-age children, as well their parents, guardians and next friends who have been identified as having autism, Asperger's Syndrome, or Pervasive Developmental Disorder (PDD), or a disability with characteristics similar to autism, and who have strong cognitive abilities, but who have been, are being or will be denied an education which
(a) is both appropriate and integrated, as to both academic and extracurricular activities;
(b) provides for participation and progress in the general curriculum; and (c) utilizes promising and proven educational practices.
Defendants argue that implicit in both class definitions is the requirement that the class representative be someone qualified to receive services under the IDEA. Prior to David Bradley's graduation from high school, there is no dispute that he was qualified to receive
services under the IDEA. Additionally, as set forth above, he continues to have a claim for reimbursement expenses. Although David Bradley had graduated from high school at the time
the Court certified the class in this case, he had not graduated at the time the complaint was filed and thus met the definitions set forth above. The Court finds that this case belongs "to that narrow class of cases in which the termination of a class representative's claim does not moot the claims of the unnamed members ofthe class." Gerstein v. Pugh, 420 U.S. 103, III (1975), see also, Sosna v. Iowa, 419 U.S. 393 (1975). The Court finds that David Bradley will continue to adequately protect the interests of the class. As in Sosna, the Court finds that the nature of the
3

Case 4:96-cv-01004-JMM Document 150 Filed 05/12/03 Page 4 of 6
,
class claims are such that because ofthe passage of time, no single challenger may remain subject to the provisions of the IDEA for the period necessary to see the lawsuit to its conclusion, yet, the claims remain alive for the members of the class. The problems posed by the class are "capable of repetition, yet evading review." See, Sosna, supra.
Accordingly, Defendants' motion to dismiss, docket # 144 is granted in that all claims for money damages are hereby dismissed against the individual State Defendants. Defendants' motion to dismiss is otherwise denied. Defendants' motion to strike, docket # 147 is denied.
IT IS SO ORDERED this _ct_·_· _ day of May, 2003.
esM. Moody United States District Judge
THIS DOCUMENT ENTERED Ol~ DOCKET SHEET !tJ COMPL!ANCt::
I B y . J . ',\'1 ~! uI I <= "8 :• ",~~"I-.,-:J ,'".. 'J'OI'OR 7Q.... q") FRCP
')~L.5.-J-l2 O?
4

Case 4:96-cv-01004-JMM Document 150 Filed 05/12/03 Page 5 of 6 ti
UNITED STATES DISTRICT COURT Eastern District of Arkansas
U.S. Court House 600 West Capitol, Suite 402 Little Rock, Arkansas 72201-3325
May 13, 2003

* * MAILING CERTIFICATE OF CLERK * *
Re: 4:96-cv-Ol004.

True and correct copies of the attached were mailed by the clerk to the

following:

press, file

W. Paul Blume, Esq. Attorney at Law 808 Dr. Martin Luther King, Jr. Drive Little Rock, AR 72202-3631
Sherri L. Robinson, Esq. Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610
Max Lapertosa, Esq. Public Interest Law Center of Philadelphia 125 South Ninth Street Suite 700 Philadelphia, PA 19107
Michael Churchill, Esq. Public Interest Law Center of Philadelphia 125 South Ninth Street Suite 700 Philadelphia, PA 19107
Thomas K. Gilhool, Esq. Public Interest Law Center of Philadelphia 125 South Ninth Street Suite 700 Philadelphia, PA 19107
Luther Oneal Sutter, Esq. Harrill & Sutter, P.L.L.C. 310 Natural Resources Drive Post Office Box 26321 Little Rock, AR 72221-6321

Case 4:96-cv-01004-JMM Document 150 Filed 05/12/03 Page 6 of 6

5/13/03
Date:

James w. McCormack, Clerk
T Jones BY:

 
 Case 4:96-cv-01004-JMM Document 172 Filed 09/10/04 Page 1 of 14
,

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

SEP 10 2004

DAYID BRADLEY, et a!.

VS.

NO:-i:96-CV-I004 JMM

NO. 4:00-CV-00747 GTE

ARKANSAS DEPARTMENT
OF EDUCATION, et a!.

PLAINTIFFS DEFENDANTS

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiffs, Thomas and Diana Bradley, bring this action on behalf of their son, David,

against Williford School District ("Williford") and the Arkansas Department of Education

("ADE"), Tom Courtway, Mike Crowley, and Marcia Harding. The latter are referred to

collectively as the State Defendants.

The plaintiffs' claims against Williford are for not providing David Bradley with a "free

appropriate public education" ("FAPE"); violation of § 504 of the Rehabilitation Act; violation

of the Americans with Disabilities Act; and retaliation against plaintiffs for asserting their rights

and creating a hostile environment. An additional claim for violation of David Bradley's privacy

rights was dismissed at the close of plaintiffs' proof.

Plaintiffs asserted six claims against the State Defendants: (1) State Defendants failed to

identifY, adopt, acquire and disseminate promising educational practices to teach children like

David; (2) State Defendants failed to provide an appropriate, integrated education to David which meets the state's own standards, including participation and progress in the general

1

curriculum; (3) State Defendants violated the "45-day rule" with regard to the due process hearings; (4) State Defendants failed to afford families the right to compel and cross-examine

7

2

Case 4:96-cv-01004-JMM Document 172 Filed 09/10/04 Page 2 of 14
witnesses at due process hearings; (5) State Defendants failed to correct a hostile environment within the school district which denied David FAPE; and (6) State Defendants disclosed private facts about David's individualized education program ("IEP") in violation of the Individuals with Disabilities Education Act ("IDEA"). All of the claims were dismissed except the class issues as to whether the State's comprehensive system of personnel development is in compliance with the IDEA and whether the State Defendants violated the 45-day rule and Plaintiffs individual claims that the state did not require the District to provide a FAPE and did not ensure David's teachers had the knowledge and skill necessary to provide David with an appropriate education.
The case was tried to the Court from February 23,2004 through March 4, 2004 and all parties have submitted excellent post-trial briefs. After consideration of all of the evidence and the arguments of counsel, the Court finds in favor of the defendants. The complaint of the plaintiffs will be dismissed with prejudice.
The Court makes the following findings offact and conclusions oflaw: Findings of Fact
1. David Bradley is a student with disabilities, specifically he is a high functioning student with autism, sometimes called Asperger's Syndrome. His intelligence and cognitive ability to learn is average or above.
2. Williford School District and the State of Arkansas Department of Education are recipients of federal funds for education and are covered by the IDEA and § 504.
3. In the fall of 1994, David was attending 7th grade in Williford. At that time, David was having trouble attending and participating in classes. He made verbal protests. His teachers did not know how to elicit his participation. David would not attend school without one
2

Case 4:96-cv-01004-JMM Document 172 Filed 09/10/04 Page 3 of 14
of his parents present. Williford suggested putting him in a self-contained classroom.
4. Williford agreed that: David's current academic achievements in reading, math, written expression, science, social studies, and humanities is significantly lower than would be expected given his nonverbal intelligence quotient and grade placement.
David displays sensory processing difficulties with poor eye contact, atypical visual responses, auditory hypersensitivity, oralmotor hypersensitivity, and tactile defensiveness. David experiences severe communication difficulties which include articulation.errors and pragmatics characteristic of an autistic disorder. Social behaviors such as waiting, turn taking, transitioning, negotiating, changing topics, finishing, initiating, flexibility, being quiet and modulating behavior in exciting situations are difficult activities for David.
5. Rita Lee, a Behavior Intervention Consultant observed David in class in January,
1995 and suggested steps for Williford to take. 6. Sidney Padgett, a consultant from the University Affiliated Program, attended IEP
meetings in November, observed David at home, at school, and at an evaluation. She wrote a
report detailing specific steps for Williford to take. 7. After the District placed David in a self-contained classroom at the IEP meetings
in the Spring of 1995 for eighth grade, the Bradleys filed for a due process hearing in May. 8. Hearing Officer Robert Doyle held a prehearing conference on May 19, 1995 and
July 14,1995. At these conferences, the District Superintendent agreed to an IEP which had been prepared with the assistance of Sidney Padgett. David's IEP included "intensive" training for David's aide, training of all of David's teachers in his behavior modification plan,
3

Case 4:96-cv-01004-JMM Document 172 Filed 09/10/04 Page 4 of 14
occupational therapy, and assistive technology. The District agreed to use Ms. Padgett as a consultant to assist in implementing the IEP.
9. Exhibit A to the IEP, agreed to on July 14, 1995, states, right above the list of attendees:
The Educational Management Team will reconvene following the July 24,1995 school board meeting to determine if the aide/aide scheduler proposed by the school district is appropriate to implement the IEP. 10. The School District hired Rhonda May for the aide position at the Board Meeting on July 24, 1995. Rhonda May was a recent graduate of Williford with no additional schooling or training. She had no experience with students with autism. 1I. Rhonda May received pre-service training from Ms. Padgett prior to the beginning of school in August. 12. In March 1996 the District had an evaluation conducted by Lynn Stringfield of the Arkansas Special Education Resource Center. The report recommended using a Circle of Friends Support System and that Rita Lee be contacted for assistance in implementing this proposal. 13. In March 1996 the Bradleys filed an administrative complaint with the state ADE concerning Williford's failure to implement the July 1995 IEP. 14. The state investigation concluded that there was no requirement that input from the IEP team was necessary before the District employed the aide. 15. The state investigation concluded that the training of Rhonda May satisfied the requirement for "intensive" training.
4

Case 4:96-cv-01004-JMM Document 172 Filed 09/10/04 Page 5 of 14
16. In 1996 the Bradleys filed a complaint with the Federal Office of Civil Rights in the Department of Education that the Arkansas procedure of not counting time before prehearing conference by the Hearing Officer against the 45 day time limit violated IDEA.
17. The U.S. Department of Education wrote in October 1996 to the ADE confirming that prehearing conferences could not stop the clock from running.
18. In the Spring of 1996 Williford adopted an IEP for David's 9th grade (1996-97) school year which removed some of the specific detail of the 1995 IEP. As a consequence, the Bradleys filed another request for a due process hearing.
19. Hearing Officer Doyle held a prehearing conference and a due process hearing. Officer Doyle found no evidence to warrant a finding in favor of the Plaintiffs' on any justiciable issue.
20. At the time of the hearing, Arkansas law did not give hearing officers power of subpoena. Since the hearing, the Arkansas legislature has extended subpoena power to hearing officers and the subpoena issue is now moot.
21. For 1996-97 Williford hired Rita Goins, a relative of a school district employee, as a new aide for David.
22. In 1996-97 Alicia Sta;key and Rita Lee conducted a training session. 23. In April 1997 the Bradleys filed a second administrative complaint, alleging that there had been no transition plan since the one developed in 1995 because the school said it was not allowed to develop a new plan while there was a due process hearing pending. It also alleged that the school had similarly refused to update David's 8th grade IEP to reflect the 9th grade classes he was taking.
5

Case 4:96-cv-01004-JMM Document 172 Filed 09/10/04 Page 6 of 14
24. The investigation team was headed by Marcia Harding. 25. The investigation was completed in June 1997. It was found that after the complaint was filed a transition plan was adopted in May 1997. 26. In the Spring of 1997 the Williford Superintendent gave a newspaper interview concerning Tom Bradley. The day after the interview was published, a pink toilet seat was placed in the area that Tom and Diane Bradley nonnally sat. During the year, students increased their teasing and harassment of David. 27. In the 1997-98 school year (lOth grade) the hostile environment towards David increased. Several students threatened David and classmates started driving past his home making threats. 28. The Bradleys complained to the sheriff about the threats and two students were arrested. Both admitted in Court to the conduct, but the Court stated it was just a prank and both students returned to regular classes. 29. In December 1997 Mr. Bradley told the Superintendent that if David's education was not promptly improved he would sue him personally. 30. In retribution, Superintendent Evans filed criminal charges of terroristic threatening and disorderly conduct against Tom Bradley in December 1997 and obtained a restraining order prohibiting Mr. Bradley from being at the school. 31. In light of the hostile environment, David refused to go to school. The Bradleys requested home schooling based on a recommendation from Dr. Hartman. Williford refused to provide the requested schooling. 32. The Bradleys presented an evaluation from a psychologist, Dr. Zurkowski, that
6

Case 4:96-cv-01004-JMM Document 172 Filed 09/10/04 Page 7 of 14
David had school phobia and should not attend school. Williford continued to refuse to provide homebound instruction.
33. In February 1998 the Bradleys sought a due process hearing. 34. Williford charged Tom Bradley with truancy and had him arrested. 35. In March 1998 Tom Bradley was acquitted of the charges ofterroristic threatening and disorderly conduct. 36. The Court found Tom Bradley guilty of truancy and threatened to jail him if David was not in school the next school day. 37. At the due process hearing, the hearing officer ordered Williford to provide offsite instructions to David. Because Williford continued to claim it needed a further evaluation before accepting that David had school phobia based on his autism, the officer ordered two hours of instruction twice a week at the Fire Department with the special education resource room teacher. The instruction at the Williford Fire Station began April 1, 1998. 38. The school's evaluation by Dr. Seiler agreed with the two previous evaluations that David should be provided home-based instruction. The hearing officer directed it be provided by a teacher "trained in teaching autistic students." 39. Williford designated Lee Anne Hutchins as the home-bound instructor for 11 th grade, 1998-99, although she had no prior experience or training in teaching students with autism. She was qualified as an elementary grade teacher and was not certified or otherwise qualified to teach high school courses in Algebra I, American History or English. 40. Bradley filed another due process hearing in order to be reimbursed for speech therapy they had arranged and paid for David while he was out of school. Williford then agreed
7

Case 4:96-cv-01004-JMM Document 172 Filed 09/10/04 Page 8 of 14
to the reimbursements. 41. At the IEP meeting in August 2000 the Bradleys proposed that David be allowed
to attend Black Rock Technical College until age 21 in order to complete his education. David completed classes at Black Rock Technical College in December 2000.
42. David Bradley graduated in December 2000. 43. Williford was the local education agency responsible for creating and implementing David's IEP under the IDEA. 44. Arkansas submitted a State Plan to the United States Department of Education ("USDOE") for fiscal years 1994-1996. USDOE approved this plan and issued funding for that period. 45. Beginning in 1997, states were allowed to submit assurances rather than a State Plan. The assurances submitted by Arkansas since 1997 have been approved by USDOE as well and funding has continued for the State of Arkansas. 46. ADE was monitored by USDOE in November 1999 and January 2000 and found to be in compliance with the requirements of the IDEA. 47. A comprehensive system of personnel development ("CSPD") is addressed in the State Plan, approved by USDOE. The Plan sets forth the policy of the State for the adoption and dissemination of promising educational practices for teaching disabled children and explains how the policy is carried out in Arkansas. 48. In compliance with the policies set forth in the approved State Plan, the State offers training statewide, including child specific training within a specific school district, and maintains a collection of current resources on a variety ofteaching methods and disabilities.
8

Case 4:96-cv-01004-JMM Document 172 Filed 09/10/04 Page 9 of 14
49. ADE ensures that local education agencies throughout the State meet their responsibilities through monitoring procedures, complaint investigations and due process hearings.
50. ADE monitored Williford three times from 1994 to 2000. In 1994, Williford was found in substantial compliance in eleven out of thirteen issue areas. In 1997 and 2000, Williford was found in substantial compliance in thirteen of thirteen issue areas.
51. Plaintiffs filed numerous due process hearing requests against Williford to address David's IEP.
52. A hearing officer properly addressed each of the due process requests pursued by plaintiffs in a hearing.
53. Hearing officers have the authority and discretion to grant continuances at the request of a party and ADE cannot overrule the decision.
54. State Defendants were not responsible for the delays of any due process hearing decisions.
55. The hearing officer properly extended the 45-day timelines in plaintiffs' due process hearings.
56. Delays in the due process hearing decisions did not deny David FAPE. 57. State Defendants strive to ensure that 45-day timelines are met by training hearing officers on the 45-day requirement, assisting in scheduling hearings, if necessary, and reinforcing requirements through written correspondence. 58. The system utilized by ADE for providing impartial due process hearing systems, including impartial hearing officers, is set forth in the USDOE approved State Plan.
9

Case 4:96-cv-01004-JMM Document 172 Filed 09/10/04 Page 10 of 14
59. ADE does not employ full-time hearing officers, but rather contracts with individuals outside of the ADE and local education agencies (i.e., school districts) who meet specified professional qualifications (e.g., Juris Doctorate degree, experience in education sector, etc.).
60. Hearing officers are assigned to hearings on a rotational basis. 61. ADE regulations provide that a challenge may be made to the impartiality of the hearing officer in writing prior to the hearing. 62. No such challenge to a hearing officer was raised prior to any hearing involving plaintiffs and the education of their son and no objection to a hearing officer was raised during a due process hearing. 63. The right to compel and cross-examine witnesses is listed in the USDOE approved State Plan. 64. ADE has always. maintained the right to compel witnesses within its control, which includes ADE employees, school district employees, cooperative employees and employees of a grantee or sub-grantee. 65. Plaintiffs never requested that the ADE or the hearing officer compel the attendance of a witness to a due process hearing. 66. None of the alleged incidents set forth in paragraphs 44 and 49 ofthe complaint filed in Case No. 4:00-CV-00747 GTE occurring within the community of Williford were ever brought to the attention of State Defendants in any of the administrative complaints or due process hearing requests filed by plaintiffs. 67. State Defendants have no authority to control the actions of a community as
10

Case 4:96-cv-01004-JMM Document 172 Filed 09/10/04 Page 11 of 14
described in paragraphs 44 and 49 of the complaint filed in Case No. 4:00-CV-00747 GTE. 68. Arkansas' comprehensive system of personnel development complies with the
IDEA. 69. The State of Arkansas has proper procedures for the due process hearings in place. 70. State Defendants have provided impartial hearing officers for due process
hearings. 71. State Defendants did not contribute to the maintenance of a hostile environment
for the Bradley family in Williford and State Defendants had no authority to remedy the perceived hostile environment in Williford for the Bradley family.
72. The Williford School District developed and adopted individual education plans reasonably calculated to enable David to receive educational benefits.
73. The Court credits the testimony of Dr. Howard Knoff wherein following a review of David's test scores he opined that David made educational progress.
74. Williford provided appropriate training for its personnel in the implementation of the IEP's.
75. Williford provided David personalized instruction with sufficient support services to permit him to benefit educationally.
76. Williford provided David with a FAPE. 77. Plaintiff's failed to prove an objectively hostile education environment. Although the actions of the Williford superintendent were at times less than supportive, when examining the totality of the circumstances, the Court finds that Plaintiffs have failed to prove a hostile environment.
11

Case 4:96-cv-01004-JMM Document 172 Filed 09/10/04 Page 12 of 14

Conclusions of Law I. State Defendants did not violate the IDEA. 2. State Defendants did not violate 42 U.S.C. § 1983. 3. Williford School District did not violate the IDEA by failing to provide a free appropriate education in the least restrictive environment for David. 4. Williford School District did not violate the IDEA. 5. Williford School District did not discriminate against David on account of his disability. 6. Williford School District did not violate §504 of the Rehabilitation Act or the Americans with Disabilities Act.
Conclusion For these reasons, Judgment will be entered in favor of Defendants. Plaintiffs' complaint is dismissed with prejudice. IS SO ORDERED this~ day of September, 2004.

~VV1~~

atnesMMoody

-...5

United States District Judge

THIS DOCUMENT ENTERED ON

DOCKET SHEET IN COMPLIANCE

ql131 WITH
ON

RULE

5084ANBDYIOR:7?9~(a.) FnR.C&P

12

Case 4:96-cv-01004-JMM Document 172 Filed 09/10/04 Page 13 of 14
F I L E COP Y ti
UNITED STATES DISTRICT COURT Eastern District of Arkansas
U.S. Court House 600 West Capitol, Suite 402 Little Rock, Arkansas 72201-3325
September 13, 2004

* * MAILING CERTIFICATE OF CLERK * *
Re: 4:96-cv-0O1l004.

True and correct copies of the attached were mailed by the clerk to the

following:

press, file, post

W. Paul Blume, Esq. Attorney at Law 808 Martin Luther King Drive Little Rock, AR 72202-3631
Sherri L. Robinson, Esq. Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610
Max Lapertosa, Esq. Public Interest Law Center of Philadelphia 125 South Ninth Street Suite 700 Philadelphia, PA 19107
Michael Churchill, Esq. Public Interest Law Center of Philadelphia 125 South Ninth Street Suite 700 Philadelphia, PA 19107
Thomas K. Gilhool, Esq. Public Interest Law Center of Philadelphia 125 South Ninth Street Suite 700 Philadelphia, PA 19107
Luther Oneal Sutter, Esq. Harrill & Sutter, P.L.L.C. 310 Natural Resources Drive Post Office Box 26321 Little Rock, AR 72221-6321

Case 4:96-cv-01004-JMM Document 172 Filed 09/10/04 Page 14 of 14

9/13/04
Date:

James W. McCormack, Clerk
T Jones BY:

 
 Case 4:96-cv-01004-JMM Document 173 Filed 09/10/04 Page 1 of 3

EASTM~~~~R\&~SAS IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

SEP 1 02004

WESTERN DIVISION

DAVID BRADLEY, et at.

VS.

NO.4:96-CV-I004JMM .,,/

NO. 4:00-CV-00747 GTE

ARKANSAS DEPARTMENT OF EDUCATION, et at.

DEFENDANTS

JUDGMENT Pursuant to the Order entered on this date containing the Court's Findings of Fact and Conclusions of Law, Judgment is hereby entered for the Defendants and Plaintiffs' complaint is dismissed with prejudice.
IT IS SO ORDERED this ~ day of September, 2004.
~o;;~
United States District Judge

THIS DOCUMENT ENTERED ON
DOCKET SHEET IN COMPLIANCE WIT RULE 58 AND/OR~79F(Ra)
ON ct I DI} By-:"2"-J't'=->::::......-

173

Case 4:96-cv-01004-JMM Document 173 Filed 09/10/04 Page 2 of 3
ti UNITED STATES DISTRICT COURT Eastern District of Arkansas
U.S. Court House 600 West Capitol, Suite 402 Little Rock, Arkansas 72201-3325
September 13, 2004

* * MAILING CERTIFICATE OF CLERK * *
Re: 4:96-cv-01004.

True and correct copies of the attached were mailed by the clerk to the

following:

press, file, post

W. Paul Blume, Esq. Attorney at Law 808 Martin Luther King Drive Little Rock, AR 72202-3631
Sherri L. Robinson, Esq. Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610
Max Lapertosa, Esq. Public Interest Law Center of Philadelphia 125 South Ninth Street Suite 700 Philadelphia, PA 19107
Michael Churchill, Esq. Public Interest Law Center of Philadelphia 125 South Ninth Street Suite 700 Philadelphia, PA 19107
Thomas K. Gilhool, Esq. Public Interest Law Center of Philadelphia 125 South Ninth Street Suite 700 Philadelphia, PA 19107
Luther Oneal Sutter, Esq. Harrill & Sutter, P.L.L.C. 310 Natural Resources Drive Post Office Box 26321 Little Rock, AR 72221-6321

Case 4:96-cv-01004-JMM Document 173 Filed 09/10/04 Page 3 of 3

DDaattee:: 99//1133//0044

JJaammeess WW. . MMccCCoormrmaacckk, , cClelerrkk

BBYY: :

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 Case 4:96-cv-01004-JMM Document 179-2 Filed 05/03/06 Page 1 of 20

United States Court of Appeals ...
FOR THE EIGHTH CIRCUIT

No. 04-3520

MAY -3 2006
~~~-~MACK, CLERK

DEPCLERK

Thomas Bradley, as Natural Guardians •

of, and on behalfofDavid Bradley, a •

minor, individually and on behalf of •

themselves and all others similarly

•

situated; Dianna Bradley, as Natural •

~~'II.. C,.\100100 'f
1/1{)0 (;,II Do I]'/?

Guardians of, and on behalf of David •

Bradley, a minor, individually and on behalf ofthemselves and all others similarly situated,
Plaintiffs -Appellants,
v.
Arkansas Department ofEducation; Mike Crowley, individually and in his capacity as an employee ofthe Arkansas Department ofEducation; Williford School District 39; John Does, I - 10,
Defendants - Appellees
---~~~-----
David Bradley, and his parents and
next friend,
Plaintiff,
Thomas Bradley, individually and on behalfofall others similarly situated;

•
•
•
• •
• • •
• Appeal from the United States
• District Court for the • Eastern District ofArkansas.
*
• • • •
•
•
• • • • • • •

Case 4:96-cv-01004-JMM Document 179-2 Filed 05/03/06 Page 2 of 20 '

• 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 ofthe Department, *

as weU as individually; Diane Sydoriak, *

in her official capacity as Director, *

Speeial 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
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Case 4:96-cv-01004-JMM Document 179-2 Filed 05/03/06 Page 3 of 20
Before MURPHY, BOWMAN, and GRUENDER, Circuit Judges,
BOWMAN, Circuit Judge.
Thomas and Dianna Bradley, on behalfoftheir son David Bradley, appeal from thejudgment ofthe District Court,1entered 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 autism' 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. §§ 1400-149lo.' 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." Ss;haffer v.
'The Honorable James M. Moody, United States District Judge for the Eastern District of Arkansas.
'There was testimony at trial that it is likely that David's disability is highfunctioning autism or Asperger's Syndrome. According to the American Psychiatric Association, autism and Asperger's Syndrome are distinct conditions, although they share some ofthe same characteristics. Ammioo fm;hlatric Ass'n; Diainostic and Statistical Manual ofMental Disordet!l82-83 (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.
'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, Ill Stat. 37. So we cite post-1997 decisional law for legal propositions only ifsubstantive 1997 IDEA amendments are not implicated.
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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 oftrial, 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 ofhis 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 ofDavid'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
4At oral argument, the Court was advised that the Williford School District has been consolidated into a larger district and thus no longer exists.
'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) IDth 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.
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and made Written recommendations. The Bradleys called for another IEP meeting where the recommendations ofPadgett 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 ofthe 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 ofPadgett, 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 ofDavid'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 himselfand 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
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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 ofcompensatory 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 ofDavid's ninthgrade 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 ofthe 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 ofthese 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 managementplan was inadequate. Other issues included in-service training ofschool 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. § 140l(a)(l7).
'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.
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against the ADE, the Williford School District, and various individuals charging, inter alia, violations ofthe IDEA and the Rehabilitation Act.8
In Aprill997, near the end ofDavid'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 ofthe IDEA, which provides for maintenance ofcurrent educational placement during the pendency ofany 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
8This 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 ofEduc.. 189 F.3d 745 (8th Cir. 1999). Parts ofthat opinion (not relevant here) were vacated for rehearing by the Court en bane. Jim C. v. Ark. De.p't ofEduc., 197 F.3d 958 (8th Cir. 1999). The en bane 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 ofEduc.. 301 F.3d 952 (8th Cir. 2002).
9A transition plan should call for services that assist the disabled child in preparing for life after school. See 20 U.S.C. § 140l(a)(l9) (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.
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the parents otherwise agree. Li!Wt 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 I, 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 l, 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
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Case 4:96-cv-01004-JMM Document 179-2 Filed 05/03/06 Page 9 of 20

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. ofEduc. 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 municipaljudge 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 I and 29, 1997, the ADE received additional requests from Thomas Bradley for due process hearings. The first ofthese requests challenged the School District's refusal to pay for an assistive technology evaluation
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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 perfonned 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 ofthe IDEA.
On March l 0, 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 offsite 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 ofthe psychologist who had diagnosed David with school phobia and to check with that psychologist about getting a full evaluation ofDavid, 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
10Assistive 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).
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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 ofthe summer in 1999, David'·s.JEP 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 of2000 that David take some classes at a vocational-technical school, the Bradleys were interested. In the fall of2000, David began taking some remediation classes at the vo-tech school. The School District paid fortuition, 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.
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§ l412(a)(I)(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 ofthe Rehabilitation Act.
For their first IDEA issue, the Bradleys challenge a fmding 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 ofthe 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 ofstudents 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 y. Columbia 93 Sch. Djst., 217F.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' Briefat 46. To begin, the Bradleys specifically challenge the determination by a hearing officer that two ofthe issues Thomas Bradley raised in one of his requests for a due process
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hearing-teachertraining and appropriate computerized instruction for David-were not justiciable in such a hearing. The District Court made no findings or conclusions on this part ofthe 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 ofthe 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~ 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 ofthe litigation because we conclude that the Bradleys have asked the federal courts in their consolidated lawsuit to consider the appropriateness ofthe 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 ofDavid'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
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findings reviewed for clear error. Qill., 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' educationaljudgments." Mo. De.p't ofElementaty & Secondazy Educ. y, 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 ofthe 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 y. Mo. State Bd. ofEduc., 210 F.3d 954,958 (8th Cir. 2000). In none ofthe 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~ educational benefit to the student for whom it is designed." Qill, 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 fmding 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. denieq, 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
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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 ifhe 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 ~ensory 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 ofthe 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 ofDavid'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 ofthe 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.
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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 ofArkansas 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. ~Blackmon v. Sprinifield R-XII Sch. Djst., 198 F.3d 648, 658 (8th Cir. 1999). Ifthe plan is so designed, the federal courts "should not
intervene in these questions ofeducation policy." ililL 217 F.3d at 1037. We cannot
· say that the IEPs were inappropriate because of a fuilure oftraining.
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 ofthe 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 ofthe Rehabilitation Act." Findings of Fact and Conclusions of Law at 12 (conclusion oflaw 6). The necessary fuctual 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
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receives federal funding. 29 U.S.C. § 794(a). To make out a case ofretaliation 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. & Neudecker v. Boisclair Cotp., 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 y. Runyon, 23 5 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 ofa§ 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' .]3rief 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 ofhis 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 ofthe 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
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punishing Thomas Bradley for seeking to vindicate David's rights under the IDEA. See Sherman. 235 F.3d at410. 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 ifEvans did not meet his demands regarding David's education. Findings ofFact 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."
ld. 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. ~ Indep. Sch. Dist. No. 283, 88 F.3d at 562. Because the Bradleys cannot show that the challenged actions ofthe 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 ofretaliation brought under§ 504 of the Rehabilitation Act.
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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)(l4) (2000). Because the IDEA was enacted under the authority of the spending clause,~ U.S. Const. art. I, § 8, cl.l, 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 ofEducation (USDOE) "has met the requirements" ofa 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 trai'ning of personnel,
from 1994 onward have all been approved by the USDOE as in compliance with the
IDEA. See Findings ofFact and Conclusions ofLaw at 8-9 (factual findings 44-50). These findings are not clearly erroneous.
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We hold that the District Court properly dismissed all ofthe Bradleys' claims. The judgment is affirmed.
A TRUE COPY OF TH&JJ~.l_GL"AL M!Cit<\:EL E. GAl'fS, CtERK
UNITED STA'fES CQURT OF APPEALS
:~5tff0itft qa~
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 David BRADLEY and his parents and next friends Thomas..., 2000 WL 34542950...
2000 WL 34542950 (E.D.Ark.) (Trial Pleading) United States District Court, E.D. Arkansas.
David BRADLEY and his parents and next friends Thomas Bradley and Dianna Bradley, individually and on behalf of all others similarly situated, Plaintiffs, 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; and the Williford School District No.39, its Superintendent and Board, respectively, Bruce Evans, Clinton Madison, Rodney Despain, Jeff Goings, Don Coggins, and Eddie Gray and in
their official and individual capacities, Defendants.
C.A. No. 4-00-CV-00747 GTE. October 12, 2000.
Complaint-Class Action
I. INTRODUCTION
1. Despite the requirements of the Individuals with Disabilities Act, originally enacted as the Education for All Handicapped Children Act of 1975, Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act and the regulations thereunder, State and district defendants have each violated their duties to provide to David Bradley and to school-age young people who are similarly situated, the following:
1. A free appropriate public education (20 U.S.C. §§ 1412(a)(1) and (2));
2. An integrated public education (§ 1412(a)(5));
3. An education program reasonably calculated to enable the child to receive real educational benefits, including at least grade level to grade level educational progress Sch. Bd. of Hendrick Hudson v. Rowley, 102 S.Ct. 3034 (1982)) and which meets State’s education standards including but not limited to their standards requiring a certain number of hours of instruction per day and days per school year (§§ 1412(a)(1) and (2), 1401(8)(B) and (C);
4. The acquisition by state and by the district, and the dissemination to teachers, administrators, school board members and related services personnel of significant knowledge derived from education research and practice, and their adoption of promising education practices, materials and technologies (§ 1412(a)(14), 1413(a)(3), 1453(c)(3)(D) (viii); pre-1997: §1413(a)(3(B));
5. An individualized education program, including but not limited to, a statement of transition service needs, necessary since David was fourteen, that focuses on the child’s courses of instruction such as advanced placement courses or a vocation education program (§§ 1412(a)(4) 1414(d)(1)(A)(vii), as well as extracurricular and other non-academic activities (§ 1414(d)(1)(A)(vii)(II)).
6. Privacy and confidentiality (§ 1412(a)(8), 1417(c));
7. Full procedural safeguards (§ 1412(a)(5) including but not limited to:
(a) the opportunity to obtain an independent educational evaluation of the child at public expense (§§ 1412(a)(6) and 1415(d)(2)(A); pre-1997: § 1415(b)(A));
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(b) the right to present evidence and to confront, cross-examine, and to compel the attendance of witness (§ 1415(h)(2); 34 C.F.R. § 300-508(a)(2)) and successor regulations;
(c) the right to a prompt decision, not to exceed forty-five days from receipt of the request for a hearing 34 C.F.R. (§ 300-512(a) and its successor regulation);
(d) an impartial due process hearing (§ 1415(f)(1)); And State defendants have violated their duty to ensure that the requirements of the Disabilities Education Act are met by local education agencies (§ 1412(a)(11)).
2. The actions and inactions of defendants have wrongfully truncated and denied the effective education of David Bradley, have imposed enormous pain and expense upon him and his family, and have isolated him and his family from their school and school community from which they seek here injunctive, compensatory educational, and declaratory relief and damages.
3. This action is related to No. LR-C-96-1004. It arises from the same subject matter. It concerns continuing violations, events, and harms which have been the subject of Arkansas state due process hearings subsequent to those from which LR-C-96-1004 arose.
II. JURISDICTION AND VENUE
4. This being an action arising under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq.; Section 504, 29 U.S.C. § 794 etseq.; and the Americans with Disabilities Act, § 12161 et seq. as well as under 42 U.S.C. § 1983 to enforce the Constitution and laws of the United States, this Court has subject matter jurisdiction under 20 U.S.C. § § 1415(i)(3) and 1415(1) and under 28 U.S.C. §1331 and § 1343. Plaintiffs have exhausted their administrative remedies under 20 U.S.C. §1415. Plaintiff seek declaratory relief under 28 U.S.C. (§§ 2201, 2202), as well as prospective injunctive relief and an order for compensatory education against individual defendants in their official capacities, as well as against the State and local educational agencies. Plaintiffs also seek reimbursement of expenses, compensatory damages for economic loss and for pain and suffering as well as punitive damages against the State and local educational agencies and individual defendants in their individual capacities. Venue in this district is proper under 28 U.S.C. § 1391(b).
III. PLAINTIFFS
5. David Bradley is now nineteen years old. Since he was five, he has been identified as having autism. He is a person of large cognitive abilities and personal skills. During all of his school years since first grade, David Bradley has lived with his parents in the Williford School District and his education has been the responsibility of that district, and of the State of Arkansas.
6. Thomas and Dianna Bradley are the parents of David Bradley. They live at Route 1, Box 10A, Williford, Arkansas 72482.
7. David Bradley is a “qualified individual with a disability” within the meaning of the Americans with Disabilities Act, “ a qualified person with a handicap” within the meaning of Section 504, and “a child with disabilities” within the meaning of the Disabilities Education Act.
IV. DEFENDANTS
8. The Arkansas Department of Education and Williford School District 39 are the responsible state and local educational agencies, respectively, under the Disabilities Education Act. Each receives federal funds under that Act and other Acts of the United States. Each is a public entity within the meaning of Title II of the Americans with Disabilities Act. Each is sued for injunctive and compensatory relief and for damages. The violations of law complained of below are “so severe pervasive and
2

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objectively offensive” that they have denied and continue to deny “the equal access to an appropriate, integrated, and procedurally safeguarded education” which the three Acts are “designed to protect.” Davis v. Monroe County Bd. of Educ., 119 S.Ct. 1661, 1675 (1999). They constitute gross violations.
9. Raymond Simon, Diane Sydoriak, Marcia Harding, and Mike Crowley are officials and employees of the Arkansas Department of Education occupying, respectively, the following positions: Director of the Department; Associate Director, Special Education; Acting Associate Director, Special Education; and Administrator for Special Education Monitoring and Technical Assistance. Each is sued in his or her official capacity for injunctive relief. Each is sued individually for damages. The violations of law complained of below, each and all together, you so severe, pervasive and objectively offensive that they have denied and continue to deny the equal access to an appropriate, integrated and procedurally safeguarded education which the three Acts are designed to protect. They are gross violations of law. Each knew or should have known of them, and could have corrected them yet remainede] idle.” Ibid.
10. The Superintendent and Members of the Board of Education are, respectively, Bruce Evans and Clinton Madison, Rodney Despain, Jeff Goings, Don Coggins, and Eddie Gray. The further allegations made at ¶9 above as to Department officials are made here with respect to School District officials as if set forth here in their entirety.
V. CLASS ALLEGATIONS
11. Plaintiffs sue on behalf of themselves and two classes of persons similarly situated: (1) the class of all children school age with disabilities of and their families who have been, are being or in the future will be denied (a) their right to decision of their due process complaint within 45 days, (b) the opportunity to confront, to cross-examine and to compel the attendance of witnesses at due process hearings or (c) their right to an impartial hearing; and (2) the class of all children of high school, middle school or late primary school age who have been identified as having autism, asperger’s syndrome, or pervasive developmental disorder and who have high cognitive abilities but who have been, are being or in the future will be denied an education (a) which is both appropriate and integrated, as to both academic and extracurricular activities, (b) which provides for participation and progress in the general curriculum and (c) which utilizes promising and proven educational practices.
12. In each regard, State defendants have acted and failed or refused to act on grounds generally applicable to each of the classes, thereby making injunctive and declaratory relief applicable to the classes as a whole. Plaintiffs will fairly and adequately protect the interests of the classes.
13. The class members, in common, are (1) persons who have requested, or will request, impartial due process hearings but have experienced, or will experience, one or more of the impartial due process hearing violations suffered also by Plaintiffs here, and (2) persons with similar configurations of disabilities and ages who have not been, or will not be, provided an appropriate, integrated education, integrated extra curricular activities, participation and progress in the general curriculum or the benefit of promising and proven educational practices.
14. Plaintiffs’ counsel are experienced and competent to represent the class.
15. The classes as set forth above are proper for certification under Rule 23(b)(2) of the Federal Rules of Civil Procedure.
VII. THE BASIC PEDAGOGICAL FACTS
16. Developments in the training of teachers and in diagnostic and instructional procedures and methods have advanced, long since, to the point that State and local educational agencies can meet the special education needs of children with disabilities, including particularly those young people with autism, asperger’s syndrome, or pervasive developmental disorder.
17. Replicable research and experience has identified proven methods of teaching and learning for children with disabilities, including particularly young people with autism, asperger’s syndrome, or pervasive developmental disorder.
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18. If a state or district should identify, acquire, disseminate, choose among, and adopt and utilize proven, promising educational practices for the instruction of young people with autism, asperger’s syndrome, or pervasive developmental disorder, such young people can participate and progress in the general curriculum at least to grade level, in the regular educational environments with their peers, including successfully taking advanced-placement courses and vocational education programs and can secure the educational benefit of high expectation and quality teaching and learning.
VIII. STATE AND DISTRICT DEFENDANTS’ VIOLATIONS OF THE BASIC PEDAGOGICAL REQUIREMENTS OF THE ACT
19. Despite the requirements of Sections 1412(a)(14) and 1453(c)(3)(D)(vii) (formerly, before the 1997 Amendments, at § 1413(a)(3)(B)) which bind State defendants and the requirements of Sections 1413(a)(3) and 1453(C)(3)(D)(vii) which bind School District defendants, neither has identified, acquired, disseminated, chosen among, and adopted educational practices that have proven effective in the education of young people with configurations of disabilities such as David Bradley’s.
20. Neither the State’s current nor its preceding Plan for “its Comprehensive System of Personnel Development,” albeit required to do so since 1975, identifies, by name or otherwise, even one promising educational practice or proven method of teaching and learning, let alone for the effective instruction of young people with autism, asperger’s syndrome or pervasive developmental disorder, nor does the State’s “Plan” adopt any.
21. Neither in the implementation of their “Plan” for a “Comprehensive System of Personnel Development,” nor otherwise, have State defendants acquired, disseminated, or adopted such systematic knowledge as would enable School District defendants effectively to educate David Bradley.
22. Nor have School District defendants carried out their own, independent duty to do so.
22a. The point is not that defendants have not chosen a particular proven method of teaching and learning; rather, among the many available proven methods of teaching and learning, defendants have not chosen or used any method at all.
22b. Defendants’ omission and failure to do so-persistently and pervasively throughout the schooling of David Bradley since seventh grade-violate the Disabilities Education Act, §§ 1412(a)(14), 1413(a)(3), 1453(c)(3)(D), as well as the Section 504 and the ADA.
23. In part because of the aforesaid violations of their duties, State and district defendants have each failed to provide to David Bradley (in the case of the district) and failed to ensure the provision to him (in the case of the State defendants) of:
(a) an integrated education, i.e.; the education of David Bradley with non-disabled children, in the educational environments (academic and extracurricular) where non-disabled children are regularly educated;
(b) an appropriate education, i.e., one reasonably calculated to yield real educational benefits, across the general curriculum, grade level to grade level;
(c) an education which in duration, coverage and intensity meets the State own standards.
24. Instead, the “education” of David Bradley designed and imposed upon him by action (district defendants) and by default (State defendants) has:
(a) excluded him altogether from Williford’s classrooms and schools, thus isolating him entirely from his peers, let alone from learning and playing and growing with them;
(b) deprived him of instruction and hence learning in large parts of the high school curriculum provided to the general students and required by Arkansas State standards for a high school education;
(c) provided “home-bound” instruction for hours per days, and per week, and days per school year which are far less than the 4

David BRADLEY and his parents and next friends Thomas..., 2000 WL 34542950...
hours and days of instruction required by the Arkansas State standards themselves.
25. School personnel who have provide even that unlawfully truncated instruction which has been provided, however amiable and well-intentioned particular personnel may be, have not been professionally qualified, adequately prepared or supported to teach a person of David’s disabilities and potentials.
26. Such appropriate and integrated instruction as David Bradley has received-for example, courses in performance art and in computer drawing at Jonesboro, in which he excelled -has been at the initiative and the persistence of his parents and himself, and occurred only because they made the arrangements, drove him both ways, and themselves informed and supported the teachers and David in the teaching and learning, foregoing jobs, income and other opportunities and necessities.
27. Similarly such academic instruction as David Bradley has received “home-bound” has been with computer-based materials, in history and mathematics, identified by his parents, usually gotten by them, (including, in return for strong computer materials by the family appearing in advertisements by a national computer teaching and learning company) and more often than not used by them to teach David, not by the district assigned personnel.
28. In addition to their violations of §§ 1412(a)(14) and 1413(a)(3), State and district defendants, each and all, have violated and continue to violate the Disabilities Education Act, as well as Section 504 and the ADA, by denying David Bradley:
(a) an appropriate education (§§ 1412(a)(1) & (2) and 1413(a)(1))
(b) an integrated education (§§ 1412(a)(5) and 1413(a)(1);
(c) participation and progress in the general curriculum (§ 1414(d)(1)(A);
(d) sufficient hours and days of instruction, and sufficient subject matter coverage to meet State education standards (§ 1401(8)(B) & (C);
(e) transition plans) beginning at age 14 that focus on the child’s courses of study (and that secure (a), (b), (c) and (d) above) (§ 1414(d)(A)(1)(vii) and (3)(A) & (B)(i) & (v)).
XI. THE REQUIRED PROCEDURAL SAFEGUARDS AND DEFENDANTS’ VIOLATIONS THEREOF
29. The other inquiry-in addition to the substantive educational inquiry, pleaded above-required under the Disabilities Education Act, Section 504 and the ADA, is: has the State, and the district, complied with the procedurals safeguards set forth in the Act? Board of Education of the Hendrick Hudson, et al. v. Rowley, 102 S.Ct. 3034 (1982).
30. The Act emphasizes the participation of the parents in developing the child’s educational program and assessing its effectiveness. Recognizing that this cooperative approach would not always produce a consensus between school officials and parents, and that in any disputes the school officials would have a natural advantage, Congress incorporated a set of what it labeled “procedural safeguards” to insure the full participation of the parents and proper resolution of substantive disagreements. School Committee of the Town of Burlington v. Massachusetts Dept. of Education, 105 S.Ct. 1996, 2002 (1985).
31. The Act, § 1415, and its regulations, 34 C.F.R. § 300.512(a) and its successor require that the State education agency ensure that a due process hearing is held and a final decision is reached within 45 days of the receipt of the parents’ request for a hearing.
32. In No. LR-C-96-1004, the predecessor case before the Court to which the claims here are related, the Bradley family complained of a wrongful screening procedure used by the hearing officer which, among other things, resulted in final decision well after the 45 day limit.
33. Upon a complaint from the Bradley family to the United States Department of Education concerning that matter, as the 5

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papers appended to Arkansas Department of Education’s own Response to Plaintiffs’ Motion for Partial Summary Judgment and Counter-Motion for Summary Judgment, filed in LR-C-96-1004 on October 14, 1997 show, the United States Department found Arkansas’ delay to violate the no-more-than-45-day rule.
34. As those papers filed by the Arkansas Department of Education in LR-C-96-1004 also show, Diane Sydoriak, the Department’s Associate Director, Special Education, assured the United States that Arkansas recognized its 45 day obligation, would notify all hearing officers (again) to comply, and caused the federal office to conclude (Letter of May 9, 1997) “that all hearing officers in Arkansas will adhere to [the 45-day] policy.” (Exhs. 3 & 2 to ADE Motions).
35. Nonetheless, three of the five subsequent final decisions of due process hearings initiated by the Bradley family and underlying this action were rendered after the expiration of 45 days: One, case No. H-98-17, issued March 23, 1998, was 39 days overdue. Another, case No. H-98-22, issued September 9, 1998, was 138 days overdue. A third, case No. H-99-16 (sic), issued December 2, 1998, was 6 days overdue. In addition, decision of an administrative complaint, C-97-14, which has a limit of 60 days, was issued 7 days past the limit; and another, C-FY 96-18, 16 days past the limit.
36. These failures and defendants’ pattern of persistent failure to honor the 45 day limit violates 34 C.F.R. 300.512(a) and its successor regulation. Compare footnote 1 of the Court’s November 21, 1997 Opinion in No: LR-C-96-1004.
37. State defendants’ continue to fail to provide or to pay for independent evaluations: here, assistivetechnology evaluation (case No. H-98-14); independent comprehensive evaluation (case No. H-98-17); payment for psychiatrist appointment (H-98-22), in violation of § 1415(d)(2)(A) and 34 C.F.R. § 300.500 et seq. They continue to do so despite the districts’ failure itself to request a due process hearing, thus continuing to violate 34 C.F.R. § 300.506 and its successor regulation. Compare footnote 3 of the Court’s November 21, 1997 Opinion in No. LR-C-96_1004.
38. Throughout, State defendants fail to afford families cross examination rights and the right to compel the attendance of witnesses at due process hearings, in violation of 34 C.F.R. § 300.508(a)(2) and its successor. Compare footnote 2 of the Court’s November 21, 1997 Opinion in No. LR-C-96-1004.
39. Hearing officers who are generously compensated by the State are assigned, their appointments are renewed, and new assignments are made by State defendants or their agents, who themselves have an interest in the outcome(s) of due process hearings. Hearing officers include current employees of school districts, and former or retired school district employees, who cannot help but reflect, ‘this may be applied also to my district’ or ‘it may bind my old friends,’ ‘will they like it?’ Hearing officers include persons who are past, present, and future grantees or contractors of the Department who are selected by State defendants or their agents. There are many alternative hearing officer systems which do not raise partiality questions. The current system violates the impartiality requirement of § 1415(f)(1) and the Due Process Clause of the Fourteenth Amendment of the Constitution.
40. School districts have lawyers available to them, both to represent them in due process hearings and, where their lawyers do not formally appear, to advise them on their conduct of a due process hearing. The cost of school district lawyers is met through public funds, including State education funds, or by school district insurance policies. Such repeat-player counsel can and does develop considerable expertise, fluency and familiarity with due process hearings. In addition, State defendants, on information and belief, provide or defray the cost of systematic training for school district counsel. Families, in contrast, typically do not have lawyers available to them, let alone State trained or retainer-paid lawyers, except at great cost to themselves, often, as with the Bradley family, only by extraordinary stretch of family resources, sometimes, as with plaintiffs here, to the financial breaking point. This systematic difference of capacity between families and districts in due process hearings deprives such hearings of impartiality in violation of Section 1415(f)(1) and the Due Process Clause of the Fourteenth Amendment of the Constitution.
X. THE HARM DONE BY DEFENDANTS’ VIOLATIONS TO THE BRADLEY FAMILY
41. The serious, pervasive and persistent violations of the Act by State and district defendants which are set forth above and here below have deprived David Bradley of grade level educational benefit and instead have grievously delayed and diminished his preparation for employment and independent living causing him as well as his parents great pain and suffering
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and economic loss.
42. To the full extent that David Bradley’s extraordinary talents have flourished at all, it has been despite State and district defendants, in the teeth of their violations and the hostile educational environment they have generated and maintained, and by dint of the undertakings of a knowledgeable, persistent mother and father who, at great economic and personal cost and to the harm of their earnings, their careers and occupations, their retirement, and their community relationships, have sought to supply, and have supplied, some of the educational deficits imposed by defendants’ violations.
43. State and district defendants’ failure to provide an appropriate education to David Bradley and their failure to provide qualified, adequately prepared personnel, knowledgeable in and utilizing promising educational practices, to teach and to support him and defendants’ concomitant generation, maintenance, and failure to correct an educational environment hostile to David Bradley and to his parents caused him to become severely uncomfortable in school, fearful of being there, inattentive to learning and a significantly less productive student.
44. When David Bradley’s parents began proactively to challenge the inappropriateness and inadequacy of defendants’ “education” of him and to seek changes in his education program and related services and supports from teachers and responsible district officials and administrators through complaints to them and to responsible State educational officials and in State due process hearings, defendants generated, maintained, and failed to correct a hostile educational environment, and in the case of State defendants who knew or should have known of the aggravated circumstances in the district, failed to act to correct them or to ensure their correction and themselves participated in sustaining the hostile environment, including inter alia:
(a) convening public meetings where Williford residents and parents of other Williford children were invited, and encouraged, to complain about David Bradley’s presence in the school, the potential provision to him of a free appropriate public education, its supposed large cost to the district, and the supposed funding shortfalls and inadequate education thus supposedly visited upon other pupils, holding David Bradley and his parents up to public anger and hostility;
(b) contributing to, and, on information and belief, securing, newspaper articles reaching the entire Williford Community with the same assertions and the same effects;
(c) failing to correct the mistaken reports and even the quotations attributed to them which contained incorrect and inflammatory assertions and private, confidential information;
(d) posting and allowing to be posted publically in the school, and otherwise to be circulated, individual education programs and other private and confidential information concerning David Bradley, his disability and his education;
(e) tolerating, failing to correct and, at least by omission, encouraging the expression of ridicule, irritation and hostility by students and school personnel about, toward, and to David Bradley.
(f) tolerating, failing to correct, and, at least by omission, encouraging the isolation of David Bradley from school and from his fellow students, including those who had previously been his particular friends;
(g) indulging derision of the Bradley parents by members of the “school community”;
(h) charging Mr. Bradley and causing his arrest on charges of “terroristic threat” when he said he would sue school officials of which charges at trial, Mr. Bradley was found not guilty;
(i) charging Mr. Bradley and causing his arrest on truancy charges when David was too fearful to go to school and using that charge to impose inadequate and unlawful home-bound instruction and to exclude David from their schools;
(j) indulging the isolation of the whole Bradley family within the Williford community.
45. The statements of fact set forth in the attached article by Thomas Bradley, “Diary of A Dad Up Against the Four D’s” published in a special issue on Special Education by Mouth Magazine (May-June 2000) pp. 28-33, are incorporated herein as
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David BRADLEY and his parents and next friends Thomas..., 2000 WL 34542950...
if set forth here in their entirety.
46. When defendants failed to supply an appropriate educational program and related services and supports as well as qualified, adequately prepared personnel, leaving David without cues and other supports necessary to his engagement in learning, each of the Bradleys offered to, and did, themselves accompany him in school to supply the deficit, to support him, and to help him overcome his fear and discomfort, sometimes in classroom, sometimes by being nearby in the hallway.
47. Throughout this experience each of the Bradleys was met with hostility, by word, by gesture, and by expressed attitude; for example, one morning the bench they used in the hallway had been replaced by a toilet bowl labeled, for the Bradleys.
48. The defendants unauthorized disclosure of confidential information, data and records by defendants and their agents was contrary to the duties of State and local education agencies, and individual defendants and violated the Disabilities Education Act §§ 1412(a)(8), 1413(a)(1) and 1417(c) and the regulations thereunder, in particular 34 C.F.R. §§ 300.571,300.572 and 300.127(a) and 300.504(a)(b) (2000) and their predecessor regulations, as well as violating Section 504 and the ADA.
49. The hostile education environment generated, uncorrected and maintained by State and district defendants has deprived David Bradley of a free appropriate public education in violation of the Disabilities Education Act § 1412(a)(1), Section 504 and the ADA, and has deprived his parents of their rights to participate effectively in decisions concerning the design, delivery and evaluation of the education program delivered (or not) to their son in violation of § 1412(a)(4) and (6), 1414, and 1415, Section 504 and the ADA. Cf. Board of Educ. of Com. Consol. S.D. v. Illinois State Board of Education, 938 F.2d 712 (7th Cir. 1991).
50. Defendants’ actions constitute unlawful retaliation, coercion, intimidation, threat, and interference on account of the exercise by the Bradleys of their educational rights which are protected by the Americans with Disabilities Act, on account of their challenges to acts and practices made unlawful by the ADA and on account of their participation in investigations, proceedings and hearings required under the ADA, each and all in violation of the Americans with Disabilities Act, 42 U.S.C. § 12203.
51. In consequence of defendants’ actions and inactions:
(a) David Bradley has been deprived of his rights to a free and integrated public education, to participate and progress in the general curriculum, grade level to grade level, and to have the educational benefit of the acquisition, dissemination, choice among, and adoption and utilization of proven methods of teaching and learning, to a course of study and hours and days of instruction which meets Arkansas’ own high school standards, and to a carefully considered focus on courses of study including advanced-placement courses and a vocational education program, causing him the loss of timely, appropriate, grade level education, great pain and suffering and economic loss.
(b) David Bradley has been isolated from his school and age peers in the Williford School District and in the Williford community, causing him loss of social development, personal opportunity, including opportunities to contribute to his community, and causing him as well as his family great pain and suffering and economic loss;
(c) Thomas and Dianna Bradley have been isolated from the Williford School community as well as from the larger Williford community altogether, causing them, for example, to have to discontinue their ties to their church; subjecting them to death threats, the laceration of automobile tires, and public obloquy, and everyday to be unseen and unspoken to as they go about their daily rounds, causing them great pain and suffering.
(d) the Bradley have had, out of pocket, to pay lawyers fees (in one of the due process hearings before the Court in LR-C-96-1004), insurance costs, evaluation and other consultation costs, and the unreimbursed costs of supplying transportation, materials and educational opportunities not provided by defendants;
(e) the Bradleys have suffered the loss of the opportunity to enjoy Mr. Bradley’s retirement from United States Army Corps of Engineers and the necessity instead to earn additional income but the concomitant limitations imposed upon jobs and income by the necessity, imposed by defendants’ derelictions, to supply as much as they can (and more) of the education defendants have denied their son, causing Thomas and Dianna Bradley pain and suffering and economic loss.
8

David BRADLEY and his parents and next friends Thomas..., 2000 WL 34542950...
52. In consequence, plaintiffs seek under the Disabilities Act, 504 and the ADA, injunctive and declaratory relief, compensatory education, the reimbursement of out-of-pocket expenditures and compensatory and punitive damages.
XII. REQUEST FOR RELIEF WHEREFORE, plaintiffs respectfully request that this Court: 1. Determine that the action may proceed as a class action; 2. Declare State and district defendants to have violated in the particulars set forth above, the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act and the Americans with Disabilities Act as well as the Fourteenth Amendment of the Constitution; 3. Enjoin State and district defendants from each of their violations of the three Acts and the Constitution; particularly including but not limited to enjoining them from failing to acquire and disseminate significant knowledge of promising educational practices and proven methods of teaching and learning, from failing to choose among them and to adopt such promising and proven methods and practices for the education of David Bradley, and for the class of young people with autism, asperger’s syndrome, or pervasive developmental disability; 4. Order compensatory education of such a nature and content and duration as may, as near as possible, compensate David Bradley for his exclusion from school and the denial to him of a free appropriate and integrated public education and participation and progress in the general curriculum to at least grade level; 5. Order the reimbursement to the Bradleys of the out of pocket costs, including but not limited to the cost of due process hearing attorney fees, transportation, materials and evaluations; 6. Award plaintiffs compensatory and punitive damages; 7. Award plaintiffs reasonable attorney fees for the proceedings here and for the proceedings in the United States Court of Appeals for the Eighth Circuit necessary to vindicate this Court’s judgment and to establish for this Circuit that, consistent with the Constitution of the United States, the Disabilities Education Act may be enforced against the State of Arkansas and its Department of Education. 8. Grant such further relief as shall be just and proper.
9

 
 Case: 4:96-cv-1004 As of:03/13/2016 04:27 PM CDT 1 of 13
U.S. District Court Eastern District of Arkansas (Little Rock) CIVIL DOCKET FOR CASE #: 4:96−cv−01004−JMM

HLJ,TERMED

Bradley, et al v. Arkansas Education, et al Assigned to: Judge James M. Moody Demand: $0 Case in other court: 01−03367
E/D Arkansas, 4:00−cv−00747 1, 4:96−mc−00194 98−01010/98−01011 USCA8, :00−00001−03367 USCA8, :00−00001−08014 USCA8, :00−00098−01010 USCA8, :00−00098−01011 USDC E/D AR, LR−C−96−00257 Cause: 42:1983 Civil Rights Act Plaintiff

Date Filed: 12/13/1996 Date Terminated: 09/10/2004 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

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 unknown David Bradley

represented by Luther Oneal Sutter Sutter &Gillham, PLLC Post Office Box 2012 Benton, AR 72018 501−315−1910 Fax: 501−315−1916 Email: luthersutter.law@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Max Lapertosa Public Interest Law Center of Philadelphia 125 South Ninth Street Suite 700 Philadelphia, PA 19107 (215) 627−7100 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Churchill Public Interest Law Center of Philadelphia 125 South Ninth Street Suite 700 Philadelphia, PA 19107 (215) 627−7100 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas K. Gilhool Public Interest Law Center of Philadelphia 125 South Ninth Street Suite 700 Philadelphia, PA 19107 (215) 627−7100 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Dianna Bradley as Natural Guardians of, and on behalf of

represented by Luther Oneal Sutter (See above for address)

Case: 4:96-cv-1004 As of:03/13/2016 04:27 PM CDT 2 of 13

David Bradley, a minor, individually and on behalf of themselves and all others similarly situated

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Max Lapertosa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Churchill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas K. Gilhool (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Arkansas Department of Education
Defendant Mike Crowley individually and in his capacity as an employee of the Arkansas Department of Education
Defendant Williford School District 39

represented by Sherri L. Robinson UAMS Office of General Counsel 4301 West Markham Street Slot #860 Little Rock, AR 72205−7199 501−686−7694 Fax: 501−686−7736 Email: srobinson3@uams.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tim C. Humphries Arkansas State Board of Election Commissioners 501 Woodlane Suite 401 N Little Rock, AR 72201 (501) 682−1447 TERMINATED: 03/17/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sherri L. Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tim C. Humphries (See above for address) TERMINATED: 03/17/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Paul Blume Attorney at Law Post Office Box 3065 Little Rock, AR 72203 501−436−4833 Fax: 501−436−4992

Case: 4:96-cv-1004 As of:03/13/2016 04:27 PM CDT 3 of 13
Email: blumelawfirm501@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Defendant John Doe 1 − 10

Date Filed 12/13/1996 12/13/1996 12/13/1996 01/10/1997 01/10/1997 01/10/1997 01/13/1997 01/15/1997 02/19/1997
02/27/1997 03/03/1997
03/06/1997 03/27/1997 08/01/1997 08/01/1997 09/15/1997 09/15/1997 09/29/1997 09/29/1997 09/29/1997 09/29/1997

# Docket Text
1 ORDER by Judge James M. Moody granting motion to proceed in forma pauperis in misc case LR−M−96−194 (cc: all counsel) lej) (Entered: 12/19/1996)
2 COMPLAINT, summonses issued and returned to Atty lej) (Entered: 12/19/1996)
3 MEMO TO FILE regarding service of complaint lej) (Entered: 12/19/1996)
4 RETURN OF SERVICE executed upon defendant Arkansas Education on 12/27/96 (bkp) (Entered: 01/14/1997)
5 RETURN OF SERVICE executed upon defendant Mike Crowley on 12/24/96 (bkp) (Entered: 01/14/1997)
6 RETURN OF SERVICE executed upon defendant Williford School on 12/23/96 (bkp) (Entered: 01/14/1997)
7 ANSWER by defendant Williford School (bkp) Modified on 03/26/1997 (Entered: 01/14/1997)
8 ANSWER by Arkansas Education and Mike Crowley (bkp) (Entered: 01/16/1997)
9 SCHEDULING ORDER: court trial set for 9:15 10/6/97; discovery due 8/11/97; status report due 8/11/97; pretrial info sheet due 9/15/97 (cc: all counsel) (bmt) (Entered: 02/20/1997)
10 MOTION by plaintiffs to continue (bkp) (Entered: 02/28/1997)
11 AMENDED SCHEDULING ORDER (DOC): court trial set for 9:15 on 11/10/97 ; discovery due 9/15/97 ; status report due 9/15/97 ; pretrial info sheet due 10/20/97 (cc: all counsel) (bkp) (Entered: 03/04/1997)
12 MEMO TO FILE finding the motion to continue moot by amended scheduling order filed on 3/3/97 [10−1] (bkp) (Entered: 03/06/1997)
13 MEMO TO FILE removing this cause from the class action docket (bkp) (Entered: 03/28/1997)
14 MOTION by plaintiff to substitute attorney L. Oneal Sutter P.L.L.C. (bkp) (Entered: 08/01/1997)
15 ORDER by Judge James M. Moody granting motion to substitute attorney L. Oneal Sutter P.L.L.C. for pltfs [14−1] (cc: all counsel) (bkp) (Entered: 08/04/1997)
16 WRITTEN STATUS REPORT by plaintiffs (bmt) (Entered: 09/15/1997)
17 WRITTEN STATUS REPORT by State defts (2 days) (bkp) (Entered: 09/16/1997)
18 MOTION by pltf for partial summary judgment (bkp) (Entered: 09/30/1997)
19 BRIEF by pltfs in support of motion for partial summary judgment [18−1] (bkp) (Entered: 09/30/1997)
20 STATEMENT OF FACTS (Rule 29) by pltfs in support of motion for partial summary judgment [18−1] (bkp) (Entered: 09/30/1997)
21 MOTION by defts Mike Crowley and Arkansas Education to dismiss or for for summary judgment ; and to stay (bkp) (Entered: 09/30/1997)

Case: 4:96-cv-1004 As of:03/13/2016 04:27 PM CDT 4 of 13

09/29/1997 09/29/1997 09/30/1997 10/14/1997 10/14/1997 10/14/1997 10/14/1997
10/14/1997 10/16/1997
10/16/1997 10/16/1997 10/16/1997 10/20/1997 10/20/1997 10/22/1997 10/27/1997 10/27/1997 10/27/1997 11/07/1997 11/10/1997

22 BRIEF by defts Mike Crowley and Arkansas Education in support of motion to dismiss [21−1] or for summary judgment [21−2]; motion to stay [21−3] (bkp) (Entered: 09/30/1997)
23 STATEMENT OF FACTS (Rule 29) by defts Mike Crowley and Arkansas Education in support of motion for summary judgment [21−2] (bkp) (Entered: 09/30/1997)
24 NOTICE by defts of filing signed affidavit of Mike Crowley to be substituted for the unsigned copy attached to motion to dismiss or for summary judgment filed on 9/29/97 (bkp) (Entered: 10/01/1997)
25 MOTION by pltfs to extend time within which to file response to defts' motion to dismiss or for summary judgment and motion to stay (bkp) (Entered: 10/15/1997)
26 RESPONSE by defts Mike Crowley and Arkansas Education to motion for partial summary judgment [18−1] (bkp) (Entered: 10/15/1997)
26 COUNTER−MOTION by defts Mike Crowley and Arkansas Education for summary judgment and to stay (bkp) (Entered: 10/15/1997)
27 STATEMENT OF FACTS (Rule 29) by defts Mike Crowley and Arkansas Education in issue on pltfs' motion for partial summary judgment [18−1]; statement of material facts not in issue on defts' Arkansas Education and Crowley's counter−motion for summary judgment [26−1] (bkp) (Entered: 10/15/1997)
28 BRIEF by defts Mike Crowley and Arkansas Education in support of response to motion for partial summary judgment and in support of defts' counter−motion for summary judgment [26−1] (bkp) (Entered: 10/15/1997)
29 ORDER by Judge James M. Moody granting motion to extend time within which to file response to defts' motion to dismiss or for summary judgment and motion to stay to and including 10/16/97 [25−1] [21−1] [21−1] [21−2] [21−3] (cc: all counsel) EOD 10/16/97 (bkp) (Entered: 10/16/1997)
30 RESPONSE by pltfs to motion to dismiss [21−1], or for summary judgment [21−2], motion to stay [21−3] (bkp) (Entered: 10/17/1997)
31 BRIEF by pltfs in support of response to motion to dismiss or for summary judgment and to motion for stay [30−1] (bkp) (Entered: 10/17/1997)
32 RESPONSE by pltfs to statements of material facts not at issue [27−1] (bkp) (Entered: 10/17/1997)
33 PRETRIAL INFORMATION SHEET by plaintiffs (4 days) (bkp) (Entered: 10/21/1997)
34 PRETRIAL INFORMATION SHEET by defts Mike Crowley and Arkansas Education (2 days) (bkp) (Entered: 10/21/1997)
35 RESPONSE by pltfs to defts' counter−motion for summary judgment [26−1] (bkp) (Entered: 10/22/1997)
36 MOTION by pltfs to extend time in which to file trial brief (bkp) (Entered: 10/28/1997)
37 RESPONSE by deft Williford School to pltfs' motion for partial summary judgment [18−1] (bkp) (Entered: 10/28/1997)
38 BRIEF by deft Williford School in support of response to motion for partial summary judgment [37−1] (bkp) (Entered: 10/28/1997)
39 STATEMENT OF FACTS (Rule 29) by deft Williford School in support of response to motion for partial summary judgment [37−1] (bkp) (Entered: 11/07/1997)
40 CLERK'S MINUTES: HEARING on motions for summary judgment before Judge James M. Moody. Court will issue order upon review and decision. Ctrptr. Fant. (former empl) (Entered: 11/10/1997)

Case: 4:96-cv-1004 As of:03/13/2016 04:27 PM CDT 5 of 13

11/21/1997
12/05/1997 12/18/1997 12/19/1997 12/23/1997 01/08/1998 09/21/1998 09/25/1998 10/13/1999 10/13/1999
10/13/1999 10/19/1999 10/29/1999 10/29/1999 01/03/2000 03/10/2000 03/14/2000 03/17/2000 03/20/2000 03/23/2000

41 ORDER by Judge James M. Moody denying pltf's motion for partial summary judgment [18−1]; granting deft ADE and Crowley's motion to dismiss and rendering moot the alternative motion for summary judgment and motion to stay [21−1] [21−2] [21−3] and denying ADE and Crowley's motion for summary judgment [26−1] and granting motion to stay [26−2] (cc: all counsel) EOD 11/21/97 (bkp) (Entered: 11/21/1997)
42 MEMO TO FILE finding the motion to extend time in which to file trial brief moot because the trial date has been continued [36−1] (bkp) (Entered: 12/08/1997)
43 NOTICE of appeal by Arkansas Education, Mike Crowley from District Court decision [41−1] (appeal fees not paid) (2 certified copies to Clerk 8USCA), (cc: counsel) (dac) (Entered: 12/18/1997)
RECEIVED FILING FEE by defendants Mike Crowley, Arkansas Education in amount of $ 105.00 ( Receipt # 400 75457) (dac) (Entered: 12/19/1997)
44 NOTICE of cross− appeal by plaintiffs from District Court decision [41−1] (2 certified copies to Clerk 8USCA), (appeal fees not paid) (cc: counsel) (dac) (Entered: 12/29/1997)
DOCKETING LETTER: 8 USCA Number, 98−1010 as to appeal of Ark Dept of Ed et al and 98−1011 as to cross appeal of Thomas Bradley, et al; transcript due 2/24/98 (dac) (Entered: 01/08/1998)
45 MANDATE from 8 USCA dismissing the appeal of Thomas Bradley, et al on appellant's motion [44−1] (dac) (Entered: 09/22/1998)
46 AMENDED JUDGMENT (8 USCA) cross−appeal is dismissed on cross−appellant's motion (dac) (Entered: 09/25/1998)
47 Opinion (8USCA) (dac) (Entered: 10/13/1999)
48 MANDATE from 8 USCA affirming in part, reversing in part, the decision of the District Court and remanded for proceedings consistent with the opinion of this Court (10/7/99USCA8 Order, plaintiffs−appellees shall recover from defendants−appellants $237.80 as costs on appeal; order filed 10/13/99 (dac) (Entered: 10/13/1999)
49 ORDER (8 USCA), plaintiff's−appellees shall recover from defendants−appellants $237.80 as costs on appeal (dac) (Entered: 10/13/1999)
50 ORDER (8 USCA), On the Court's own motion, the mandate issued 10/6/99 is recalled for the reason that it was entered prematurely (dac) (Entered: 11/01/1999)
51 Opinion (8USCA) (dac) Modified on 11/01/1999 (Entered: 11/01/1999)
52 MANDATE from 8 USCA judgment of the district court is affirmed in part, reversed in part, and remanded to the district court for proceedings consistent with the opinion of this court (dac) (Entered: 11/01/1999)
53 ATTORNEY APPEARANCE by Thomas K Gilhool for Dianna Bradley and Thomas Bradley (former empl) (Entered: 01/04/2000)
54 SCHEDULING ORDER (DOC); trial is scheduled for 9:15 a.m. on 5/22/00 in Little Rock; discovery due 3/23/00; status report due 3/23/00; pretrial info sheet due 5/2/00 (cc: all counsel) (former empl) (Entered: 03/13/2000)
55 MOTION by defts Mike Crowley and Arkansas Education to substitute attorney Sherri L Robinson in place of Tim C. Humphries (former empl) (Entered: 03/15/2000)
56 ORDER by Judge James M. Moody granting motion to substitute attorney Sherri L Robinson in place of Tim C. Humphries for Arkansas Department of Education and Mike Crowley [55−1] (cc: all counsel) (former empl) (Entered: 03/20/2000)
57 MOTION by plaintiffs to continue (former empl) (Entered: 03/21/2000)
58 WRITTEN STATUS REPORT by defendants (former empl) (Entered: 03/24/2000)

Case: 4:96-cv-1004 As of:03/13/2016 04:27 PM CDT 6 of 13

03/24/2000
03/24/2000 10/05/2000 10/13/2000 10/13/2000 10/13/2000 10/17/2000 10/25/2000 10/30/2000 10/30/2000 10/30/2000 10/30/2000 10/30/2000 10/31/2000 11/08/2000
11/14/2000 11/20/2000
11/21/2000 11/21/2000 11/22/2000

59 AMENDED SCHEDULING ORDER (DOC); trial is rescheduled for 9:15 a.m. on 12/4/00 in Little Rock, AR; discovery due 10/5/00; status report due 10/5/00; pretrial info sheet due 11/14/00 (cc: all counsel) (former empl) (Entered: 03/24/2000)
Docket Modification (Utility Event) finding the motion to continue [57−1] moot due to entry of amended scheduling order. (mah) (Entered: 03/24/2000)
60 WRITTEN STATUS REPORT by Mike Crowley, Arkansas Education (former empl) (Entered: 10/06/2000)
61 MOTION by defendant Arkansas Education and defendant Mike Crowley for summary judgment (former empl) (Entered: 10/16/2000)
62 BRIEF by defendant Arkansas Education and defendant Mike Crowley in support of motion for summary judgment [61−1] (former empl) (Entered: 10/16/2000)
63 STATEMENT OF FACTS (Local Rule 56.1) by defendant Arkansas Education and defendant Mike Crowley in support of motion for summary judgment [61−1] (former empl) (Entered: 10/16/2000)
64 MOTION by Mike Crowley, Arkansas Education to withdraw consent to amend (former empl) (Entered: 10/18/2000)
65 OBJECTION by defendants Arkansas Department of Education and Mike Crowley to pltfs' jury demand (former empl) (Entered: 10/26/2000)
66 MOTION by plaintiffs to consolidate cases 4:96CV01004 and 4:00CV00747 (former empl) (Entered: 11/01/2000)
67 MEMORANDUM by plaintiffs in support of motion to consolidate cases 4:96CV01004 and 4:00CV00747 [66−1] (former empl) (Entered: 11/01/2000)
68 MOTION by plaintiff for change of schedule (former empl) (Entered: 11/01/2000)
68 RESPONSE by plaintiffs to motion to withdraw consent to amend [64−1] (former empl) (Entered: 11/01/2000)
69 MOTION by plaintiffs to extend time to respond to defts' mot for summary judgment and for possible cross−mot (former empl) (Entered: 11/01/2000)
70 ORDER by Judge James M. Moody granting motion to extend time on or before 11/13/00 to respond to defts' mot for summary judgment and for possible cross−mot [69−1] [61−1] (cc: all counsel) (former empl) (Entered: 11/01/2000)
71 ORDER by Judge G. T. Eisele granting motion to consolidate cases 4:96CV01004 and 4:00CV00747 [66−1]; 4:96CV01004 shall be designated as the lead case and all further pleadings should show both case numbers but will be docketed in the lead case only; cases will be handled by Judge James M. Moody (cc: all counsel) (bsm) Modified on 11/13/2000 (Entered: 11/09/2000)
72 MOTION by Ray Simon, Marcia Harding, Arkansas Education, Mike Crowley to extend time to file a responsive pleading (former empl) (Entered: 11/14/2000)
73 AMENDED SCHEDULING ORDER (DOC); trial is scheduled for 9:15 a.m. on 7/16/01 in Little Rock; discovery due 5/17/01; status report due 5/17/01; pretrial info sheet due 6/26/01; mtn filing ddl 5/27/01 (cc: all counsel) (former empl) (Entered: 11/20/2000)
74 ORDER by Judge James M. Moody granting motion to extend time up to and including 11/27/00 to file a responsive pleading [72−1] (cc: all counsel) (former empl) (Entered: 11/22/2000)
75 MOTION by plaintiffs to extend time to respond to State Defts' mot for summary judgment and to file cross−mot (former empl) (Entered: 11/22/2000)
76 ORDER by Judge James M. Moody granting motion to extend time to on or before 11/29/00 to respond to State Defts' mot for summary judgment and to file cross−mot [75−1] [61−1] (cc: all counsel) (former empl) Modified on 12/12/2000 (Entered: 11/22/2000)

Case: 4:96-cv-1004 As of:03/13/2016 04:27 PM CDT 7 of 13

11/26/2000
11/27/2000 11/27/2000 11/28/2000 11/29/2000 11/29/2000 11/29/2000 11/29/2000 11/29/2000 11/29/2000 11/29/2000
12/07/2000 12/07/2000 12/07/2000 12/07/2000 01/16/2001 01/16/2001 01/17/2001
01/19/2001
01/19/2001 01/19/2001 01/25/2001

Docket Modification (Utility Event) finding the motion for change of schedule [68−1] moot due to entry of amended scheduling order. (mah) (Entered: 11/26/2000)
77 MOTION by Ray Simon, Marcia Harding, Mike Crowley and Arkansas Education to dismiss (former empl) (Entered: 11/28/2000)
78 BRIEF by Ray Simon, Marcia Harding, Mike Crowley and Arkansas Education in support of motion to dismiss [77−1] (former empl) (Entered: 11/28/2000)
79 ORDER by Judge James M. Moody denying motion to withdraw consent to amend [64−1] (cc: all counsel) (former empl) (Entered: 11/29/2000)
80 MOTION by plaintiffs for partial summary judgment (former empl) (Entered: 11/30/2000)
81 BRIEF by plaintiffs in opposition to motion for summary judgment [61−1] (former empl) (Entered: 11/30/2000)
81 BRIEF by plaintiffs in support of motion for partial summary judgment [80−1] (former empl) (Entered: 11/30/2000)
82 STATEMENT OF FACTS (Local Rule 56.1) by plaintiffs in support of motion for partial summary judgment [80−1] (former empl) (Entered: 11/30/2000)
82 RESPONSE by plaintiffs to defts' statement of material facts [63−1] (former empl) (Entered: 11/30/2000)
83 REQUEST by plaintiffs for oral argument (former empl) (Entered: 11/30/2000)
84 CERTIFICATE OF SERVICE by pltfs to motion for partial summary judgment [80−1], motion response [81−1], brief [81−1], statement [82−1], response [82−1], request [83−1] (former empl) (Entered: 11/30/2000)
85 RESPONSE by Arkansas Education, Mike Crowley to motion for partial summary judgment [80−1] (former empl) (Entered: 12/08/2000)
85 REPLY by Arkansas Education, Mike Crowley to response to motion for summary judgment [61−1] (former empl) (Entered: 12/08/2000)
86 BRIEF by Arkansas Education, Mike Crowley in support of motion reply [85−1], motion response [85−1] (former empl) (Entered: 12/08/2000)
87 RESPONSE by Arkansas Education and Mike Crowley to request oral argument [83−1] (former empl) (Entered: 12/08/2000)
88 BRIEF IN OPPOSITION by plaintiffs to motion to dismiss civil action 4:00CV00747 [77−1] (former empl) (Entered: 01/17/2001)
89 REPLY and REPLY BRIEF by plaintiffs to response to motion for partial summary judgment [80−1] (former empl) (Entered: 01/17/2001)
90 MOTION by plaintiffs to extend time to file answer and brief to deft's mot to dismiss, reply brief to defts' answer to pltfs' mot for partial summary judgment and pltfs' mot for determination of class and in support thereof (former empl) Modified on 01/19/2001 (Entered: 01/18/2001)
93 ORDER by Judge James M. Moody granting motion to extend time to file answer and brief to deft's mot to dismiss, reply brief to defts' answer to pltfs' mot for partial summary judgment and pltfs' mot for determination of class and in support thereof [90−1] (cc: all counsel) (former empl) (Entered: 01/22/2001)
91 MOTION by plaintiffs for class determination (former empl) (Entered: 02/01/2001)
92 MEMORANDUM by plaintiff in support of motion for class determination [91−1] (former empl) (Entered: 02/02/2001)
94 OBJECTION by defts Ray Simon, Marcia Harding, Mike Crowley and Arkansas Education to motion for class determination (former empl) (Entered: 02/02/2001)

Case: 4:96-cv-1004 As of:03/13/2016 04:27 PM CDT 8 of 13

01/25/2001 02/07/2001
02/09/2001 02/14/2001 02/14/2001 02/23/2001 04/12/2001
04/24/2001 05/17/2001 05/18/2001 05/25/2001 05/25/2001 05/25/2001 06/08/2001 06/11/2001 06/14/2001 06/15/2001 06/18/2001 06/21/2001 06/22/2001

95 BRIEF by defts Ray Simon, Marcia Harding, Mike Crowley, Arkansas Education in support of motion response [94−1] (former empl) (Entered: 02/02/2001)
96 ORDER (DOC) scheduling oral arguments on the pending mots before the Honorable James M Moody, at 1:30 p.m. on Friday, February 23, 2001, Rm. 389, US Courthouse, 600 W Capitol, Little Rock [91−1] [80−1] [77−1] [61−1] (cc: all counsel) (former empl) Modified on 02/08/2001 (Entered: 02/07/2001)
97 MOTION by plaintiff for leave to file reply to objection to class determination by state defts (former empl) (Entered: 02/09/2001)
98 ORDER by Judge James M. Moody granting motion for leave to file reply to objection to class determination by state defts [97−1] (cc: all counsel) (former empl) (Entered: 02/14/2001)
99 REPLY by plaintiffs to response to motion for class determination [91−1] (former empl) (Entered: 02/14/2001)
100 CLERK'S MINUTES: HEARING on motions held before Judge James M. Moody. Rulings stated on the record and/or taken under advisement. (Ct. Rep. −− Carolyn Fant) (mah) (Entered: 02/23/2001)
101 ORDER by Judge James M. Moody granting in part and denying in part motion to dismiss [77−1]; granting in part and denying in part motion for summary judgment [61−1]; denying motion for partial summary judgment [80−1] (cc: counsel) (former empl) (Entered: 04/13/2001)
102 ANSWER by defts Ray Simon, Marcia Harding, Arkansas Education and Mike Crowley to complt (former empl) (Entered: 04/25/2001)
103 WRITTEN STATUS REPORT by Ray Simon, Marcia Harding, Arkansas Education, Mike Crowley (former empl) (Entered: 05/18/2001)
104 WRITTEN STATUS REPORT by plaintiffs (former empl) (Entered: 05/18/2001)
105 MOTION by defts Ray Simon, Marcia Harding, Mike Crowley and Arkansas Education for summary judgment (former empl) (Entered: 05/29/2001)
106 STATEMENT OF FACTS (Local Rule 56.1) by defts Ray Simon, Marcia Harding, Mike Crowley and Arkansas Education in support of motion for summary judgment [105−1] (former empl) (Entered: 05/29/2001)
107 BRIEF by defts Ray Simon, Marcia Harding, Mike Crowley, Arkansas Education in support of motion for summary judgment (former empl) (Entered: 05/29/2001)
108 ORDER by Judge James M. Moody that pltfs' motion for class certification is denied as to the substantive class and is held in abeyance as to the procedural class, pending a hearing [91−1] (cc: all counsel) (vjt) (Entered: 06/11/2001)
109 MOTION by plaintiffs to enlarge time to respond to defts' mot for summary judgment (former empl) (Entered: 06/12/2001)
110 ORDER by Judge James M. Moody granting motion to enlarge time until 6/21/01 to respond to defts' mot for summary judgment [109−1] [105−1] (cc: all counsel) (former empl) (Entered: 06/15/2001)
111 MOTION by plaintiffs to enlarge time to file a mot for reconsideration of the Court's June 8, 2001 Order (former empl) (Entered: 06/15/2001)
112 ORDER by Judge James M. Moody granting motion to enlarge time until 6/22/01 to file a mot for reconsideration of the Court's June 8, 2001 Order [111−1] (cc: all counsel) (former empl) (Entered: 06/18/2001)
113 RESPONSE by plaintiff to motion for summary judgment [105−1] (former empl) (Entered: 06/21/2001)
114 SECOND MOTION by plaintiffs to enlarge time to file a mot for reconsideration of the Court's June 8, 2001 Order (former empl) Modified on 06/28/2001 (Entered: 06/22/2001)

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06/27/2001 06/27/2001 07/03/2001 07/03/2001 07/03/2001 07/13/2001 07/13/2001
07/19/2001 07/23/2001 07/23/2001
07/24/2001
08/22/2001 09/14/2001 09/14/2001 09/18/2001 09/19/2001 09/21/2001 09/21/2001 09/24/2001

115 PRETRIAL DISCLOSURE SHEET by plaintiffs; estimated length of trial 12 days (former empl) (Entered: 06/28/2001)
116 ORDER by Judge James M. Moody granting motion to enlarge time until 6/29/01 to file a mot for reconsideration of the Court's June 8, 2001 Order [114−1] (cc: all counsel) (former empl) (Entered: 06/28/2001)
117 MOTION by plaintiff for reconsideration of the Court's June 8, 2001 Order denying certification of the substantive class (former empl) (Entered: 07/03/2001)
118 MEMORANDUM by plaintiffs in support of motion for reconsideration of the Court's June 8, 2001 Order denying certification of the substantive class [117−1] (former empl) (Entered: 07/03/2001)
119 REPLY by state defts Ray Simon, Marcia Harding, Arkansas Education, Mike Crowley to pltfs' response to motion for summary judgment [105−1] (vjt) (Entered: 07/05/2001)
120 MOTION by state defts Ray Simon, Marcia Harding, Arkansas Education and Mike Crowley for continuance of July 18, 2001 hearing (vjt) (Entered: 07/16/2001)
121 RESPONSE by state defts Ray Simon, Marcia Harding, Arkansas Education and Mike Crowley to pltfs' motion for reconsideration of the Court's June 8, 2001 Order denying certification of the substantive class [117−1] (vjt) (Entered: 07/16/2001)
122 WITNESS LIST submitted by plaintiffs (former empl) (Entered: 07/20/2001)
123 WITNESS LIST submitted by defendant Arkansas Education (former empl) (Entered: 07/24/2001)
124 ORDER granting motion for continuance of July 18, 2001 hearing [120−1]; motion for reconsideration of the Court's June 8, 2001 Order denying certification of the substantive class and motion for class determination are rescheduled for 9/19/01, at 9:00, Rm. 389 in Little Rock [117−1] [91−1] (cc: all counsel) (former empl) (Entered: 07/24/2001)
125 AMENDED SCHEDULING ORDER (DOC); trial is rescheduled for 9:15 a.m. on 10/22/01; discovery due 8/23/01; status report due 8/23/01; pretrial info sheet due 10/2/01; mtn filing ddl 9/2/01 (cc: all counsel) (former empl) (Entered: 07/24/2001)
126 WRITTEN STATUS REPORT by defts Ray Simon, Marcia Harding, Arkansas Education and Mike Crowley (former empl) (Entered: 08/23/2001)
127 MOTION by plaintiffs in limine to preclude testimony of defts' experts for refusal to produce expert reports purs to FRCP 26(a)(2) (former empl) (Entered: 09/17/2001)
128 MEMORANDUM by plaintiffs in support of motion in limine to preclude testimony of defts' experts for refusal to produce expert reports purs to FRCP 26(a)(2) [127−1] (former empl) (Entered: 09/17/2001)
129 ORDER by Judge James M. Moody denying defts' motion for summary judgment [105−1] (cc: all counsel) (former empl) (Entered: 09/18/2001)
130 CLERK'S MINUTES: HEARING on motions for class certification and to reconsider held before Judge James M. Moody. Court takes motions under advisement. (Ct. Rep. −− Carolyn Fant) (mah) (Entered: 09/19/2001)
131 ORDER by Judge James M. Moody granting oral motion for attorneys Michael Churchill and Max Lapertosa to appear pro hac vice for pltfs (cc: all counsel) (former empl) (Entered: 09/24/2001)
132 PRETRIAL DISCLOSURE SHEET by defendant Williford School; estimated length of trial 2 to 3 weeks (former empl) (Entered: 09/24/2001)
UTILITY EVENT: Add attorney(s) Michael Churchill, Max Lapertosa for plaintiffs (former empl) (Entered: 09/24/2001)

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09/26/2001 09/27/2001
09/27/2001 09/28/2001 10/02/2001 10/17/2001 11/05/2001 11/05/2001 12/13/2001 12/17/2001 03/21/2002 06/24/2002 11/04/2002 11/04/2002

133 RESPONSE by defts Ray Simon, Marcia Harding, Arkansas Education and Mike Crowley to motion in limine to preclude testimony of defts' experts for refusal to produce expert reports purs FRCP 26(a)(2) [127−1] (former empl) (Entered: 09/27/2001)
134 ORDER by Judge James M. Moody granting in part and denying in part motion for reconsideration of the Court's June 8, 2001 Order denying certification of the substantive class [117−1] and motion for class determination [91−1]; Court hereby certifies the following classes of individuals; (1) all school−age children with disabilities and their parents, guardians and next friends who have been, are being or will be denied (a) their right to a decision of their due process complt within 45 days (2) all high school, junior high school, middle school, or late primary school−age children, as well their parents, guardians and next friends who have been identified as having autism, Asperger's Syndrome, or Pervasive Developmental Disorder (PDD), or a disability with characteristics similar to autism, and who have strong cognitive abilities, but who have been, are being or will be denied an education which (a) is both appropriate and integrated, as to both academic and extracurricular activities; (b) provides for participation and progress in the general curriculum; and (c) utilizes promising and proven educational practices; pltf's motion to certify the procedural class of all school−age children with disabilities and their parents, guardians and next friends who have been, are being or will be denied the opportunity to confront, cross examine and compel the attendance of witnesses at the due process hearing or their right to an impartial hearing is denied (cc: all counsel) (former empl) (Entered: 09/28/2001)
135 NOTICE of appeal by defendants Arkansas Education, Mike Crowley from District Court decision [129−1] ( fees paid) (2 certified copies to Clerk 8USCA), (cc: counsel) (dac) Modified on 10/01/2001 (Entered: 09/28/2001)
136 ORDER by Judge James M. Moody denying motion in limine to preclude testimony of defts' experts for refusal to produce expert reports purs to FRCP 26(a)(2) [127−1] (cc: all counsel) (former empl) Modified on 10/01/2001 (Entered: 09/28/2001)
137 MOTION by defendant Arkansas Education for leave to appeal (dac) (Entered: 10/03/2001)
138 ORDER by Judge James M. Moody denying as moot motion for leave to appeal [137−1] (cc: all counsel) (dac) (Entered: 10/18/2001)
DOCKETING LETTER: 8 USCA Number 01−3367 (dac) (Entered: 11/05/2001)
DOCKETING LETTER: 8 USCA Number 01−8014; petition for permission to appeal pursuant to FRCvP23(F) has been submitted to the court (dac) (Entered: 11/05/2001)
139 TRANSCRIPT ( 1 volume) of proceedings for the following date: 9/19/01 hearing ( [135−1] ) (dac) (Entered: 12/13/2001)
140 MANDATE from 8 USCA the petition for permission to take an interlocutory appeal on the class−certification question is denied (dac) (Entered: 12/18/2001)
141 TRANSCRIPT ( 1 volume) of proceedings for the following date: 9/19/01 motions hearing ( [135−1] ) (dac) (Entered: 03/22/2002)
DOCKET NOTE: four volumes of original files and 1 vol transcript of 9/19/01 hearing forwarded to Clerk USCA8, per telephone request of Scott, Records Manager (dac) (Entered: 06/24/2002)
142 Opinion (8USCA) we hold that the district court erred in denying the school officials' motion for summary judgment on the basis of qualified immunity. We reverse the district court and remand the case for further proceedings consistent with this opinion (dac) (Entered: 11/04/2002)
143 MANDATE from 8 USCA reversing and remanding the Decision of the District Court [Appeal [135−1] (dac) (Entered: 11/06/2002)

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12/04/2002 12/04/2002 12/04/2002 12/24/2002 12/31/2002
12/31/2002 01/07/2003 01/13/2003 05/12/2003
07/29/2003 12/16/2003
12/16/2003 12/24/2003 12/29/2003 12/31/2003 01/06/2004 01/07/2004 01/12/2004 01/26/2004

DOCKET NOTE: 4 volumes of original files returned from USCA8 (dac) (Entered: 12/04/2002)
144 MOTION by defts Mike Crowley and Arkansas Education to dismiss (tjj) (Entered: 12/05/2002)
145 BRIEF by defts Mike Crowley and Arkansas Education in support of motion to dismiss [144−1] (tjj) (Entered: 12/05/2002)
146 MEMORANDUM by plaintiffs in opposition to motion to dismiss on behalf of state defts [144−1] (tjj) (Entered: 12/26/2002)
147 MOTION by defts Arkansas Department of Education, Ray Simon, Marcia Harding and Mike Crowley to strike pltfs' Memorandum in Opposition to Motion to Dismiss on Behalf of state defts (tjj) Modified on 01/13/2003 (Entered: 01/02/2003)
147 REPLY by defts Arkansas Education, Ray Simon, Marcia Harding, and Mike Crowley to pltfs' memorandum [146−1] (tjj) Modified on 01/13/2003 (Entered: 01/02/2003)
148 NOTICE by defendants Arkansas Education, Ray Simon, Marcia Harding and Mike Crowley of filing the high school transcript of David Bradley (tjj) Modified on 01/13/2003 (Entered: 01/08/2003)
149 RESPONSE by plaintiffs to motion to strike pltfs' Memorandum in Opposition to Motion to Dismiss on Behalf of state defts [147−1] (bmt) (Entered: 01/13/2003)
150 ORDER by Judge James M. Moody granting in part and denying in part defts' motion to dismiss; granted in that all claims for money damages are dismissed against the individual State defts', otherwise motion to dismiss is denied; [144−1]; defts' motion to strike pltfs' Memorandum in Opposition to Motion to Dismiss on Behalf of state defts [147−1] is denied (cc: all counsel) (tjj) Modified on 05/23/2003 (Entered: 05/13/2003)
151 FINAL SCHEDULING ORDER (DOC); court trial set for 9:15 am the week of 2/23/04 in Little Rock; discovery due 12/25/03; status report due 12/25/03; pretrial info sheet due 2/3/04 (cc: all counsel) (tjj) (Entered: 07/30/2003)
152 MOTION by defts Mike Crowley, Arkansas Education, Marcia Harding and Raymond Simon (Tom Courtway is the Interim Director since R. Simon is no longer with ADE) to narrow issues for trial , and to bifurcate trial on behalf of state defts (bsm) Modified on 12/18/2003 (Entered: 12/17/2003)
153 BRIEF by defts Mike Crowley, Arkansas Education, Marcia Harding and Raymond Simon in support of motion to narrow issues for trial [152−1] and to bifurcate trial on behalf of state defts [152−2] (bsm) (Entered: 12/17/2003)
154 MOTION by plaintiff to extend time to respond to motion of state defts to narrow issues for trial and to bifurcate trial (tjj) (Entered: 12/24/2003)
155 STATUS REPORT by state defendants (2 to 3 week trial) (tjj) Modified on 12/30/2003 (Entered: 12/30/2003)
156 ORDER by Judge James M. Moody granting motion to extend time to respond to motion of state defts to narrow issues for trial and to bifurcate trial [154−1] [152−1] [152−1] until 1/7/04 (cc: all counsel) (tjj) (Entered: 12/31/2003)
157 STATUS REPORT by plaintiffs (2 week trial) (tjj) (Entered: 01/07/2004)
158 RESPONSE by plaintiff to motion to narrow issues for trial [152−1] and motion to bifurcate trial on behalf of state defts [152−2] (tjj) (Entered: 01/07/2004)
159 REPLY by Mike Crowley, Arkansas Education to response to motion to narrow issues for trial [152−1] and motion to bifurcate trial on behalf of state defts [152−2] (tjj) (Entered: 01/13/2004)
160 ORDER by Judge James M. Moody denying motion to narrow issues for trial [152−1] and denying motion to bifurcate trial on behalf of state defts [152−2] (cc: all counsel) (tjj) (Entered: 01/26/2004)

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02/03/2004 02/06/2004 02/11/2004 02/11/2004 02/13/2004 02/18/2004 02/19/2004 02/23/2004 02/24/2004 02/25/2004 02/26/2004 02/27/2004 03/01/2004 03/02/2004 03/03/2004 03/04/2004 04/09/2004 04/20/2004 04/26/2004 09/10/2004

161 PRETRIAL DISCLOSURE SHEET by defts Mike Crowley and Arkansas Education; estimated length of trial 10 to 14 days (tjj) (Entered: 02/04/2004)
162 MOTION by plaintiffs in limine to preclude the testimony of deft ADE's proposed expert Dr. Howard Knoff (bmt) (Entered: 02/06/2004)
163 RESPONSE by defts Arkansas Education, Mike Crowley, Marcia Harding and Tom Courtway to motion in limine to preclude the testimony of deft ADE's proposed expert Dr. Howard Knoff [162−1] (bsm) (Entered: 02/12/2004)
164 BRIEF by defts Arkansas Education, Mike Crowley, Marcia Harding and Tom Courtway in support of response to motion in limine [163−1] (bsm) (Entered: 02/12/2004)
165 PRETRIAL DISCLOSURE SHEET by plaintiffs; estimated length of trial, 6 days (bsm) (Entered: 02/17/2004)
166 CLERK'S MINUTES: HEARING held before Judge James M. Moody on issues to be presented at trial. (Ct. Rep. −− Carolyn Fant) (mah) (Entered: 02/18/2004)
167 ORDER by Judge James M. Moody denying pltfs' motion in limine to preclude the testimony of deft ADE's proposed expert Dr. Howard Knoff [162−1] (cc: all counsel) (bsm) (Entered: 02/20/2004)
CLERK'S MINUTES: COURT TRIAL begun before Judge James M. Moody. Day 1. Plaintiff's proof begun. (AM Ct. Rep. −− Carolyn Fant) (PM Ct. Rep. −− Elaine Hinson) (mah) (Entered: 02/23/2004)
CLERK'S MINUTES: COURT TRIAL resumed before Judge James M. Moody, Day 2. Plaintiffs' proof resumed. (Ct. Rep. −− Elaine Hinson) (mah) (Entered: 02/24/2004)
CLERK'S MINUTES: COURT TRIAL resumed before Judge James M. Moody. Day 3. Plaintiff's proof resumed. (AM Ct. Rep. −− Elaine Hinson)(PM Ct. Rep. −− Carolyn Fant) (mah) (Entered: 02/25/2004)
CLERK'S MINUTES: COURT TRIAL resumed before Judge James M. Moody. Day 4. Plaintiff's proof continuing. (Ct. Rep. −− Elaine Hinson) (mah) Modified on 03/05/2004 (Entered: 02/26/2004)
CLERK'S MINUTES: COURT TRIAL resumed before Judge James M. Moody. Day 5. Plaintiff's proof concluded except for one issue. Defendants' proof begun. (Ct. Rep. −− Elaine Hinson) (mah) (Entered: 02/27/2004)
CLERK'S MINUTES: COURT TRIAL resumed before Judge James M. Moody. Day 6. Defendant's proof continuing. (Ct. Rep. −− Elaine Hinson) (mah) (Entered: 03/01/2004)
CLERK'S MINUTES: COURT TRIAL resumed before Judge James M. Moody. Day 7. Defendant's proof continuing. (AM Ct. Rep. −− Elaine Hinson)(PM Ct. Rep. −− Genie Power) (mah) (Entered: 03/02/2004)
CLERK'S MINUTES: COURT TRIAL resumed before Judge James M. Moody. Day 8. Defendant's proof continuing. (AM Ct. Rep.− Genie Power)(PM Ct. Rep. −− Elaine Hinson) (mah) (Entered: 03/03/2004)
168 CLERK'S MINUTES: COURT TRIAL resumed before Judge James M. Moody. Day 9. Defendants' proof concluded. Plaintiffs' rebuttal concluded. Court takes case under advisement. (Ct. Rep. −− Elaine Hinson) (mah) (Entered: 03/04/2004)
169 POST−TRIAL BRIEF filed by defendants (tjj) (Entered: 04/12/2004)
170 REPLY by plaintiff to post−trial brief [169−1] of state defts (tjj) (Entered: 04/20/2004)
171 REPLY by plaintiff to Williford's post−trial brief (tjj) (Entered: 04/27/2004)
172 FINDINGS OF FACT and Conclusions of Law by Judge James M. Moody state defts did not violate the IDEA; state defts did not violate 42 USC 1983; Williford School District did not violate the IDEA by failing to provide a free appropriate

Case: 4:96-cv-1004 As of:03/13/2016 04:27 PM CDT 13 of 13

09/10/2004
10/12/2004 10/20/2004 12/08/2004 01/14/2005 01/14/2005 02/22/2005 02/22/2005 05/03/2006 08/11/2006

education in the least restrictive environment for David; Williford School District did not discriminate against David on account of his disability; Williford School District Did not violate 504 of the Rehabilitation Act or the Americans with Disabilities Act; Judgment will be entered in favor of defts; pltfs' complaint is dismissed with prejudice (cc: all counsel) (tjj) (Entered: 09/13/2004)
173 JUDGMENT by Judge James M. Moody pursuant to the Order entered on this date containing the Court's Findings of Fact and Conclusions of Law, Judgment is entered for defts and pltfs' complaint is dismissed with prejudice (cc: all counsel) (tjj) (Entered: 09/13/2004)
174 NOTICE of appeal by plaintiffs from District Court decision [172−1], [173−2] (fees paid) (2 certified copies to Clerk 8USCA), (cc: counsel) (dac) (Entered: 10/13/2004)
175 MOTION by plaintiff Thomas Bradley for leave to appeal in forma pauperis (dac) (Entered: 11/19/2004)
176 ORDER by Judge James M. Moody denying motion for leave to appeal in forma pauperis [175−1] (cc: all counsel) (dac) (Entered: 12/08/2004)
177 TRANSCRIPTS ( 9 volumes) of proceedings for the following dates: 2/23−27/04 &3/1−4/04 trial ( [174−1] ) (dac) (Entered: 01/14/2005)
DOCKET NOTE: transcripts (9vols) forwarded to 8USCA (dac) (Entered: 01/14/2005)
178 TRANSCRIPT ( 1 volume) of proceedings for the following date: 2/18/04 pretrial hearing ( [174−1] ) (dac) (Entered: 02/22/2005)
DOCKET NOTE: transcript of 2/18/04 pretrial hearing forwarded to 8USCA (dac) (Entered: 02/22/2005)
179 MANDATE of USCA as to 174 Notice of Appeal filed by Thomas Bradley, Dianna Bradley. Judgment of the district court is affirmed in accordance with the opinion of this court. (Attachment: # 1 Opinion)(dac, ) (Entered: 05/04/2006)
180 Appeal Record Returned: 10 volumes of transcripts 174 Notice of Appeal (dac, ) (Entered: 08/11/2006)