Case 4:96-cv-00748-GTE Document 68 Filed 10/13/99 Page 1 of 22

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

FILED

U.f. DIJT"IO'f OOU!n'

EA6T!flN OIITfttCT A"lCAN8A6

No. 98-1010

Ot:f 1S 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;

*

*

·.

Plaintiffs - Appellees,

* *

United States of America,

*

*

Intervenor on Appeal,

*

*

V.

*

*

Arkansas Department of Education;

*

Mike Crowley. individually and in his *

capacity as an employee ofthe

*

Arkansas Department of Education;

*

*

Defendants - Appellants, *

*

Williford School District 39; John Does, *

1-10,

*

*

Defendants,

*

*

*

Advocacy Services, Inc.,

*

*

Amicus Curiae.

*

JAMES W. McCORMACK, CLERK By:_ _ _ _-::=~K'"""
OEP CLERK
Appeals from the United States District Court for the Eastern District of Arkansas.

Case 4:96-cv-00748-GTE Document 68 Filed 10/13/99 Page 2 of 22

No. 98-1830

Jim C, indilvidually 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 Appe:al,

*

*

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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Case 4:96-cv-00748-GTE Document 68 Filed 10/13/99 Page 3 of 22

Before BOWMAN, Chief Judge, 1 LOKEN, and KELLY, 2 Circuit Judges.

BOWMAN, Chief Judge.

In thes~~ 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 tlhe 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

District Court

-

.

denied

Arkansas's

motions

with

respect

to

the

IDEA

and,

in

Jim

C.,

§ 504 ofthe 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 emplloyee Mike Crowley, the local school district, and other unidenti:fied individual defendants, alleging violations of the IDEA and other state and federal statutes. The Bradleys' IDEA claim asserts that the ADE, Crowley,

1The Honorable Pasco M. Bowman stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the end of the 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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Case 4:96-cv-00748-GTE Document 68 Filed 10/13/99 Page 4 of 22
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 oLI\rkansas, 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 ofEduc., No. LR-C-96-ll004, slip op. at 4 (E.D. Ark. Nov. 21, 1997) (order denying motion to dismiss or for summary judgmt:nt). Arkansas appealed the denial of its motion to dismiss the 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. See 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 performance 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), l414(d) (West Supp. 1999).
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Case 4:96-cv-00748-GTE Document 68 Filed 10/13/99 Page 5 of 22
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 lkadley that the abrogation provision in the IDEA was a valid exercise of Congress's § 5 power. See id. at 5-6 (quo1ting Bradley, LR-C-96-1004, slip op. at 4). Judge Eisele also determined § 504 was a valid exercise of Congress's § 5 power. See id. at 7.4 Therefore, the District Court conc1uded 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 of a misnomer,
4Judge 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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Case 4:96-cv-00748-GTE Document 68 Filed 10/13/99 Page 6 of 22
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. ~ee Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199, 2204 (1999) [hereinafter Florida Prepaid]; Seminole Tribe, 517 U.S. at 54; see alsQ Idaho v. Coeur d'Alene Tribe ofldaho, 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, 76 F.3d 1437, 1438 (8th Cir. 1996) (quoting Pennhurst State Sch. & Hosp. v. Haldennan, 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 plaintiffs 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 Arkansa<; 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 a 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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Case 4:96-cv-00748-GTE Document 68 Filed 10/13/99 Page 7 of 22
Eleventh Anu:ndment immunity, defendant Crowley nevertheless may be enjoined from engaging in fhture conduct that is contrary to federal law.
III.
Turning first to the plaintiffs' arguments that federal courts have jurisdiction over IDEA claims brought 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. J[n 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 ADE'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 ofEllcventh 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 ofMaumelle, 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 of the IDEA may be brought against an unwilling state in federal court.
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A.
To determine 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. Ct. at 2205; Alsbrook, 1999 WL 521709, at *4; Mauney, 1999 WL 407763, at *3. 'Ibe first part of the Seminole Tribe test requires that a federal statute contain an "unequivocal expression" of Congress'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 of this Court and the .·. Supreme Court do not undermine this part of Mauney: both Florida Prepaid and Alsbrook conclude that abrogation provisions that essentially mirror§ 1403 satisfy the first part of the Seminole Trib~ 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); Alsbroc!k, 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' iimmunity). After examining these authorities, we believe Mauney's determination that § 1403 offers an unequivocal expression of Congress's intent to abrogate 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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Case 4:96-cv-00748-GTE Document 68 Filed 10/13/99 Page 9 of 22
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").
Legislation 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 PrepaiQ, 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) there 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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Case 4:96-cv-00748-GTE Document 68 Filed 10/13/99 Page 10 of 22

(3) not

mreocreeivtehaanpphraolpf orifattheeedchuicladtrieonnawlistehrdviiscaebsilwithieicshinwtohueldUnenitaebdleSttahteems dtoo

h(e4xa)vcelounfdueeldlmeeiqlnlutiioarlneitlyoy foftrfhooempcpthhoierldtuprneunibtlywi;citshchdoisoalbsiylisttieems inantdhewUillnnitoetdgSotathtersouagreh t(pfh5raoe)rmtteihcdehiurpaceavatiatinrineoggnamianslaunrpceyrcgoecucshlseafisulrsd1srwceehindtouhwoctliahtptheiroidornigpsaraleabeemirxlssip;teiwersiheotnhscreeodubigeshcaoabuuilstiettihetehs:eUpirrnedivtieseadnbtSitlthiatetiemess

a(ss6ryyc)ssttubeenemmdc,,aefutoaesfmcetteielnodief;ast[thaaegrnerdle]oaafcttek:dnoisffotarancdecedeqtuforaoftiemndsetshreveriivcriecrseesswiodiutehtnsicindeethatehndeppuaubtbltilhiccesisrcchhooowoonll

·. expense.

20 U.S.C. § 1400(b)(l)-(6) (1994); see also 189 (1982) (discussing these congressional

Board ofEduc. v. Rowley, 458 U.S. 176, findings); Mauney, 1999 WL 407763, at

*6 (same).

tttFiirdhhfrdnn(defrlaia1aoiooffaidtstrtfr9rmirtaifiomni8snCnedbdnuo5grgtisioaIaect:s)lenetnnil.nahapPmmttgbitmtbuMrelesreleoayertseeannspapa,fo.dskitttocarsosseiletbirctnreitdStufoyhoaoggwi,tedvncinojitleteehtdus1hdhiinrlfes1onerae,Citttte9nnhtssihCSvinidfeatoevySwityotoartntsi.nhhtitoltilrteoagaxhCaaolhestttartfectaif,e.taiotCditCelssshnliniaedlssonelsdasttuengaodicttdaben2bgehihfsiludg2isresoitotlernus0hpinontn,Estd7ehateliosehheeqretCda(ansoasumvsiitootwtanpse.trssunatlcedaeertwCtgsastPriivilttcucshenvliireeeetatlattogesrrhtub,tt,nstetemtuweo"tddiChoawCcroieenrasrtofnfonerheiaternce,o,mntoebgotnwgmotwLirrenhrlearfiheidChseestnvssiatyiprselsticiescasunonttghsuwtuhdgdniritdCsediroeeshideeioesCinnosef.bqsnnfttnnntiluasbetraonegi.tyriFilvf.tegrreti-fleevs.ne(fot4e')istsihidttwr7rhnnohsleisy3deatlndedhtaecsaaorfetictntUettrshieoaePapooalatd.tnsacmaSnrbretcseetttsis.otettkhlpa"hteinidhote4)tateroliu.iro3iynnteI,ftddhs2giDsCeoteoiie,rosrfdsoEnfewep4tpuinqp.hAusta4aicguaaudrt.dta5trhivaleeSertie-ttoendineene4esoust,dtseta6snt
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Case 4:96-cv-00748-GTE Document 68 Filed 10/13/99 Page 11 of 22
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 related to a legitimate state interest--and thus constitutional under Cleburne-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. Alsbroo1~, 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 Communitv School District v. Garrett F. ex rei. Charlene F., 119 S. Ct. 992 (1999), detennined 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 4077 63, at *11, we now must conclude that the IDEA extends beyond the power granted Congress by§ 5 ofthe Fourteenth Amendment. The IDEA, therefore, cannot be an appropriate exercise of Congress's § 5 power, and its abrogation provision is not valid. Se~ Alsbrook, 1999 WL 521709, at *5 (stating that, if legislation 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 Maur~, 1999 WL 407763, at *11. The Supreme Court's rec(!nt 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 waiver 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 Atnendm(~nt 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 tht:! 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 ofCongrt:~ss'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 if we 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 Mamg that Arkansas waived its immunity to suits arising under the IDEA by receiving IDEA funds, and because Arkansas conceded during oral argument that the IDEA was a valid exercise of Congress's spending power and that the state received funds under the IDEA.
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Case 4:96-cv-00748-GTE Document 68 Filed 10/13/99 Page 13 of 22
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 reinftorces 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 ofthe "free appropriate public education" standard. .S.ee 20 U.S.C.A. § 1415(a) (West 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 offitcial, 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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YEoUflo.feSuivc.neiga2n,l7tsh42t,0:oA92e7mUn9ej.oSn(i1.dn9maa8te9f1n)u5tt(u5sir-mte5at6mvi,niuog1nl5ait9thtyi,aot1naa6no6dsf-t6afie8tmed'(pesarolaElsloelewlavpwiernno)g;tshpaseAefceemtdiaveelernsaodlimnMcjeouinunstsretotiiutmvoremiivgru.ennlJoiietreyenfkadoionnsest,asstt4ena9'ots1et prevent "an award of attorney's fees ancillary 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
~aived

its own Eleventh Amendment immunity with respect to IDEA claims, it also 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 official-

capacity 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 immunity from

Graham, when Arkansas waived suits brought under the IDEA, the

its own Eleventh state also waived

Amendment 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 tht~ Bradleys' IDEA claims against Crowley and may provide any relief that the

IDEA authorizes.

nSoptecbieai7lnTSghceha.vBDariailsdatbl.elNeysof.mor1a,vk1ieo4n4laotFico.3lnadsim5o7ff4o,trh5ec7o9ImD(8pEteAhn.sCaitro..Srey1e9,o9r~ 8p);.uHnieTtiihvdoeemmdaapnmsonangv.evsR., oBdtaohmaerard,ge8os4f F.3d 1021, 1033 (8th Cir.l996).
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Case 4:96-cv-00748-GTE Document 68 Filed 10/13/99 Page 15 of 22
IV.
Next, we tum to Arkansas's contention that the Eleventh Amendment prevents the states 1J-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 daims brought under§ 504. Therefore, we apply the same analysis that we applied to the IDEA in Parts liLA and III.B of this opinion to determine 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 of intent. See 473 U.S. at 247. Congress responded by enacting an abrogation provision. now codified as 42 U.S.C. § 2000cl-7 (1994). See Lane v. Pcna, 518 U.S. 187, 198 (]996) (discussing the legislative history of § 2000d-7)_ This abrogation provision states:
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(a) General provision

(1) A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation A~ct of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of I 975, Title VI ofthe Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients ofFed(~ral 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 .. conclud•ed in Alsbrook and Mauney that abrogation provisions mirroring 42 U.S.C.
§ 2000d-7 adequately express Congress's intent to abrogate. Se~ Alsbrook, 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 !DENs 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.

111e second part of the Seminole Tribe test, as discussed ~upra in Part liLA, 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. The 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
-] 6-

Case 4:96-cv-00748-GTE Document 68 Filed 10/13/99 Page 17 of 22
not rely expressly on its § 5 power 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. Se~~ EEOC v. Wyoming, 460 U.S. 226,243 n.l8 (1983) (stating that Congress need not "recite the words 'section 5' or 'Fourteenth Amendment' or 'equal protection' for the constitutionality ofaction taken by Congress does not depend on recitals of the 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." ~:rawford v. Davis, 109. F.3d 1281, 1283 (8th Cir. 1997). Therefore, 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 congruity and proportionality, to remedy those transgressions. See Florida PreQaid, 119 S. Ct. at 2207; Boerne, 512 U.S. at 520.
When 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 J. 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 included 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
-17-

Case 4:96-cv-00748-GTE Document 68 Filed 10/13/99 Page 18 of 22
identify constitutional transgressions that make such a provision appropriate. The legislativ•e history of§ 2000d-7 instead reveals only that Congress sought to override the Supn:me Court's decision in Atascadero by providing an unequivocal expression of Congress's intent to abrogate the states' immunity. See, ~g,_., 132 Cong. Rec. S28622-24 (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 Atascadero). The legislative history apparently lacks any indication ofwhy Congress thought such abrogation was necessary or appropriate.
V/e again refrain from relying on Congress's failure to identify 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 of Congress's § 5 power. As noted supra in Part liLA, 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 ofthose that are protected by the Constitution from impaim1ent 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 detem1ine if§ 504 and the sections ofthe ADA relating to employment have been violated).8 The only difference
aCee"ipmldf.erFpuepmrc.eooRaesp.tn8eairRtodp§iaaneprtb1gyretyo0uopp4loqatur.rh3tuibiae3asolti(elneEciacfs)qoiepeund(pdu1adurbl9opacl9ramePiyct8rrius)oooeletng(nedd,racs"uuettqccwetihaoaudittenitiirhuooisCnnnnadgdl"miaspeuraerrsesbotscetaigthli.naripetandiiemeSdaRnsraesd)tAre.sdtsoeoWiruxmefppceqrpfreQueaooedilvsdrrPeeeiesraddaaresdltbtchyyhfaleuiohLtnfohacrdAvleeossee.nlDtstdhoatTEeipathttpApueerrton.siooopnevpneiSirnrradieeaealeegtdte,eubat~ luhpaprua"t. udiftbboretlelnn3hiiecsc4se, therefore, do not save § 504's abrogation provision.
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Case 4:96-cv-00748-GTE Document 68 Filed 10/13/99 Page 19 of 22
between the ADA and§ 504 is§ 504's application only to recipient'i of federal funds. See Randolph v. Rogers, 170 F.3d 850,858 (8th Cir. 1999) ("The ADA and[§ 504 of the] RA are 'similar in substance" and, with the exception of the RA's federal funding requireme111t, 'cases interpreting either are applicable and interchangeable."') (quoting Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998)). 111is 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.), cert. denied, 119 S. Ct. 58 (1998); ~lark 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. ~iee, ~.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 42 U.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.
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Case 4:96-cv-00748-GTE Document 68 Filed 10/13/99 Page 20 of 22
B. wSHsoTeptwupiAaF?fahtrprlh'ttao.eetdoher3iargeegr'vecdsstrerm.rehcWsmaisaprs1ratmepemeaaea8d(e:tor1~2Ce,eoctnm1f,ri'ratofsecoen1uEtux4iCE,qop9dsr5tlul4ott0ae1cce'(7insvt-c3lovri93ageUeoo)ned1inrmnnnstUme.ethSitt(chsedai.hes4.nisSniest'AnsaA.ts1hirastroamawmia(snftCsat1peehseire2c9iednenernlm48nieg:.etdnd71hrdau(m1ua;m)eriA1sPl9,n,nret)ee9tgswduAnhannt8penthsaptenr)eracivkeohnm§(mifaeawufmidfdnnome5rbpieedmssrnd0airumratgegr;4,uotnsturhu4ni(piabwocr2tl5ailryyeaiut)1onapyetssgiadiatapvUnhgrrctweaeePageeac.sndqSmadeieadsnu.rnpiaitinstintnatainsrtwiistthegncntcuEhtmuoo1gglotplaer-n7eeesffirt;dbvfmehnatoceiedectasgrtSdssnieetetrhoeotaraetataeCrnahrrhtmatlailioeatdAslnlefftnisgsmosSunmogtmptrnogcurteeAdhhteuusponcnseossbtnaod.dstodrrdrnfimiltbeeneiElesintpdegc&tervxetierint.etrpsaperhumtnaVHmrasaatotidleteitiimoiigsnnrsnnpssagfretmpigprtiainooewaneimiutgdgnifiaanevan.rdsltixi.iaahtvtifalmavtynS1eeihact.d4gere.et5es " have waived their immunity).
CsESsqtCtooooalahueotnttavochevhngtitoseeegar"nrenretSrcwtri~tseogoeochssiwcirnns'scvsaAtedsaionem,osimrmttapnansioanoesespyfdan,nn5ltncyhodsd0icdomomi4mpinuwwtpaleagurifisoesntmastispevshtitoli,eoetstn.ihrswcm.tos,he.otneotmheonpbhrfeamd.oeausfiatinpseiftnrtt"Ciiiedattrtotsneeysothanoerdtd.letasm'l)isrlwefn.SetiegrgonahqeeerTuaiuceepcrnthSeilheohCrcaeiacoewpitrpvoeairmteoeriillitnloevnreyiaegsensfnrg.cssh"edftoeufeiureurpbdaeScedlleecNtdeaseorctoomvuaraergatilruwehenllnnfisnnegsimueftzdYspnusie,einudniotsorta1tsrdrfotp.1tkasfiihsoe,o9ccOavrsanoniet.eSdsmnndo.CUeceotopbmClofnunouyatntiidlh.ftcgstCeivtehianrhdotoaeetfghenlnes2Ssiecs.dgdew"2toeraCm3eanrletia1eosiIdxmavlsd.sniyei..tsimsnritpt(co5Cragiiieein0ttngosniuq5sttoehldtheulnittireeUioohnsbnrginea.gfraeieS'stls;. 144, 167 ( 1992) (internal citation omitted).
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Case 4:96-cv-00748-GTE Document 68 Filed 10/13/99 Page 21 of 22

pfaeegdreesnorcanil'eSssfeducsintusidacoibhnnigla5i"st0i4etfhsra.oenmdSAeiDttesrEe2aa.9btriUSnoegg.Scat.atiCinoo.nni§n5p7d0r9oi4v4vip(idasruio)oa.hlni"biPdmiirtfsopfgeo"rrasaeenmnyotlvoyperrroa"lgyscortbialvermoiltyayod"rbciyasocndrtdieeviaftiisitnooyenndrseobocfrnelo'isavttdihanlatyget 5waSton0eay4eiivnfo2ecer9ldiutteUlsdhreea.ESlrl".eefCauvsl.ntledn§ooitffn7httg9hhA,4eeme(Rbvoe)epAn(neld.r)fma(uAtieno)nd.ntinsiW"gmouimtfnhursnetthaliatteyetseetddoeptpaorlaoltrvhctmielsaiesiomtnantstsse,a,'§sraigos5ieb0nnl4gicgmiuaentsai,donenodrsra§ttieon5ss0ctt4rohumaimftpieAtlnyrretkawcaleiinttiihsveaes§ss.

Congress's imposition of such conditions on a state violates the Constitution oecause it amounts to impermissible coercion: Arkansas is forced to renounce all

federal funding, including funding wholly unrelated to the RA, if it does not want to

comply with Arkansas, or

§ 504. any other

Congressional imposition state, a meaningful choice

of such a condition regarding whether to

does not give receive federal

..

fimding and waive reject funding and

its Eleventh Amendment immunity to suits retain its Elt;:venth Amendment immunity to

arising under such suits.

§

504

or

The condition§ 504 imposes on recipients offederal funds exceeds the ordinary

quid pro~ 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 to comply with legislate under

in the nature of a contract: in return for federal funds, the States agree federally imposed conditions. The legitimacy of Congress's power to the spending power thus rests on whether the State voluntarily and

knowingly accepts the terms ofthe 'contract."'). Therefore,§ 504 is not a valid exercise

ofCongre:ss'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-00748-GTE Document 68 Filed 10/13/99 Page 22 of 22 Court for dismissal of the claim on the basis of Arkansas's Eleventh Amendment immunity .
v.
rotpoAepocnrglfaoDacatsEiglhrneEalrdestieaimFvfgtmvafooserrii.oo;e.rnt'hulattWr§ahhrneetied5emsIAei0sDdrnarme4tEegnah§vcedsAaulneoeta5n,rdndiA0sdnmmse4eofrsorekttothrnoaoatnehtnfftneuetsiohttdmarhrhIetsdaDhemebbeweEaaurorRabsAnvipeiirnievsrhotbo,e9yagoycwd8bafew-itevtieli1thiioosda8ttelnhafi3Eunftsg0inirltgroeeartmtsoavnstoepruec'ittesnnAolhhyctdnEecehtsstploet,ieAuaosrxvrtpdmateteJoeeninniecnrndmttnisthpwwdiiraaAntemhitnrtmiim9heendc8jangheetS-nhtnc1tiudinidht0smssom1atfoAshm0noepeirrnsuiaCkonntndfar.idii'eodisntmdsyne9smcer.ma8slwrsiaa-us'r1iilssenmt8hasali3itplseyrt0sehed.oensaw,rfdpBtbtiieitttuonochhhttgnteeh
A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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 Case 4:96-cv-00748-GTE Document 75 Filed 03/22/00 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

JIM AND SUSAN C., Individually and as Parents and Next Friends of J.C.
V.

4 ·. q~ ~" 1 4 &./
4:99CV00921 GTE

-~~\•vlt:~~· L.LtRI
:~r --------------:--:-:::::
'JEP.C:LEF
PLAINTIFFS

ATKINS SCHOOL DISTRICT and ARKANSAS DEPARTMENT OF EDUCATION

DEFENDANTS

ORDER OF CONSOLIDATION On December 17, 1999, the Plaintiffs, who at the time were proceeding pro se, filed a "Notice of Related Case." 1 In that pleading, the Plaintiffs explained that this action, Case No. 4:99CY00921, is substantially similar to another action, Case No. 4:96CV00748, which is currently pending before this Court. The Plaintiffs are correct that the cases are virtually identical because in both actions Plaintiffs Jim and Susan C. allege that the Defendants deprived their son of a free appropriate public education pursuant to the Individuals with Disabilities Education Act ("I.D.E.A."), 20 U.S.C. § 1400 et. seq. In fact, the Plaintiffs concede that the only difference is that Case No. 4:96CV00748 also includes Arch Ford Education Services Cooperative as an additional defendant. Hence, this Court finds that these two cases should be consolidated pursuant to Fed. R. Civ. P. 42 because they involve common questions of law and fact.

1 Docket No. 2.

Case 4:96-cv-00748-GTE Document 75 Filed 03/22/00 Page 2 of 3 IT IS THEREFORE ORDERED THAT Case No. 4:99CV00921 be, and it is hereby,
consolidated \Vith Case No. 4:96CV00748, both of which are currently pending before this Court.
-cz;:; It is so ordered this 2.- 0 day of March, 2000.
UNITED STATES DISTRICT JUDGE

Case 4:96-cv-00748-GTE Document 75 Filed 03/22/00 Page 3 of 3
F I LE c0 p y
lob UNITED STATES DISTRICT COURT Eastern District of Arkansas U.S. Post Office & Court House 600 West Capitol, Suite 402 Little Rock, Arkansas 72201-3325
March 22, 2000
* * MAILING CERTIFICATE OF CLERK * *
Re: 4:96-cv-00748.
True and correct copies of the attached were mailed by the clerk to the following: BRENDA, PRESS, FILE
W. Paul Blume, Esq. Attorney at Law 808 Dr. Martin Luther King, Jr. Drive Little Rock, AR 72202-3631
Scott H. Peters, Esq. Attorney at Law 233 Pearl Street Council Bluffs, IA 51503
Mary Jane White, Esq. Attorney at Law Post Office Box 358 Waukon, IA 52172-0358
Thomas H. McGowan, Esq. Youngdahl, Sadin & McGowan 124 West Capitol Avenue, Suite 1805 Post Office Box 1088 Little Rock, AR 72203-1088
Tim C. Humphries, Esq. Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610
William Clay Brazil, Esq. Brazil, Adlong & Winningham 913 Oak Street Conway, AR 72032-4397

 
 Case 4:96-cv-00748-GTE Document 87 Filed 01/30/01 Page 1 of 10

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 98-1830EA

JAN j 0 2001
~~MES W McCORMACK, CLEF

Jim C, individually and as parent and next friend of J.C., and Susan C, individually and as parent and next friend of J.C.,
Appellees,
v.
United States of America,
Intervenor on Appeal,
Atkins School District, and Arch Ford Education Service Cooperative,
Defendants,
Arkansas Department of Education,
Appellant.

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

Submitted: January 14, 2000 Filed: December 22, 2000
Before WOLLMAN, Chief Judge, McMILLIAN, RICHARD S. ARNOLD, BOWMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, MURPHY, and BYE, Circuit Judges.

Case 4:96-cv-00748-GTE Document 87 Filed 01/30/01 Page 2 of 10
RICHARD S. ARNOLD, Circuit Judge, joined by WOLLMAN, Chief Judge, and McMILLIAN, HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.
Plaintiffs, parents of a child with autism, brought this suit against the defendant, the Arkansas Department of Education. They alleged that the defendant had failed to comply with its obligations under certain statutes, including Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The defendant moved to dismiss the suit, asserting sovereign immunity, as recognized by the Eleventh Amendment. The District Court1 denied the motion, holding that the abrogation provision of Section 504, 42 U.S.C. § 2000d-7(a)(l), was a valid exercise of Congress's power under Section 5 of the Fourteenth Amendment. On appeal, a panel of this Court reversed, holding that Section 504 could not be upheld as Section 5 legislation. Bradley v. Arkansas Department of Education, 189 F.3d 745, 756 (8th Cir. 1999). The panel then considered whether Arkansas had waived its sovereign immunity with respect to Section 504 by accepting federal funds. The panel held that there was no waiver, concluding that Section 504 was not a valid exercise of Congress's spending power because the conditions it placed on a State's receipt offedera1 funds were too broad and therefore coercive. Id. at 758. We granted plaintiffs' suggestion for rehearing en bane on the spending-power issue alone, vacating that portion of the panel's opinion and judgment. We hold that Section 504 is a valid exercise of Congress's spending power, and that Arkansas waived its immunity with respect to Section 504 suits by accepting federal funds. The judgment of the District Court, denying the State's motion to dismiss, will therefore be affirmed.
1The Hon. Garnett Thomas Eisele, United States District Judge for the Eastern District of Arkansas.
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Case 4:96-cv-00748-GTE Document 87 Filed 01/30/01 Page 3 of 10
Section 504 of the Rehabilitation Act prohibits "any program or activity" that receives federal financial assistance from discriminating against a qualified individual with a disability. 29 U.S.C. § 794(a). The statute, in relevant part, defines "program or activity" as:
all of the operations of-(I )(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or (B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
any part of which is extended Federal financial assistance.
29 U.S.C. § 794(b). Under this definition, the State itself as a whole is not a program or activity. Rather, as we have previously noted, "only the department or agency which receives [or distributes] the aid is covered." Klingerv. Dep't of Corrections, 107 F.3d 609, 615 (8th Cir. 1997) (quoting S. Rep. No. I 00-64, IOOth Cong., 2d Sess. 4 (1988), reprinted in 1988 U.S.C.C.A.N. (Legislative History) 3, 6.2 The acceptance of funds
2Klinger dealt with Title IX's definition of "program or activity," 20 U.S.C. § 1687, which is identical to the definition in Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(b). Both Title IX and Section 504 were amended by the Civil Rights Restoration Act of 1987, Pub. L. No. I00-259, 102 Stat. 28 (1988), to add this definition of "program or activity."
-3-

Case 4:96-cv-00748-GTE Document 87 Filed 01/30/01 Page 4 of 10
by one state agency therefore leaves unaffected both other state agencies and the State as a whole 3
The Rehabilitation Act requires States that accept federal funds to waive their Eleventh Amendment immunity to suits brought in federal court for violations of Section 504. 42 U.S.C § 2000d-7. Since Section 504 covers only the individual agency or department that accepts or distributes federal funds, this waiver requirement is limited in the same way. By accepting funds offered to an agency, the State waives its immunity only with regard to the individual agency that receives them. A State and its instrumentalities can avoid Section 504's waiver requirement on a piecemeal basis, by simply accepting federal funds for some departments and declining them for others. The State is accordingly not required to renounce all federal funding to shield chosen state agencies from compliance with Section 504.
The defendant argues that Section 504's waiver requirement exceeds Congress's spending power by placing overly broad and therefore coercive conditions on federal funds. We disagree. Congress is empowered to "lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." U.S. Canst. art. I,§ 8, cl. I. "Incident to this power, Congress may attach conditions on the receipt of federal funds ...." South Dakota v. Dole, 483 U.S. 203, 206 (1987). Specifically, Congress may require a waiver of state sovereign immunity as a condition for receiving federal funds, even though Congress could not order the waiver directly. College Savings Bank v. Florida
3lfthe entire state government were subject to Section 504 whenever any of its parts received federal funds, then subsection (b)(I)(B) would be superfluous; both the distributing and receiving state entities would be already covered under (b)(l )(A) whenever either received federal funds. Other circuits interpreting this definition of "program or activity" have come to the same conclusion. Lightboum v. County ofEI Paso, Texas, 118 F.3d 421, 427 (5th Cir. 1997); Schroeder v. City of Chicago, 927 F.2d 957, 962 (7th Cir. 1991).
-4-

Case 4:96-cv-00748-GTE Document 87 Filed 01/30/01 Page 5 of 10
With regard to the requirements of Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985), the Rehabilitation Act's waiver provision, 42 U.S.C. § 2000d-7(a)(l ), provides a clear expression of Congress's "intent to condition participation in the program[] ... on a State's consent to waive its constitutional immunity." See Lane v. Pena, 116 S. Ct. 2092, 2100 (1996); Little Rock School District v. Mauney, I83 F.3d 816, 831 (8th Cir. 1999). We hold, therefore, that Arkansas waived sovereign immunity, with respect to suits under Section 504 against the Department ofEducation, when it chose to participate in the federal spending program created by that Section.
The panel opinion took the position that the waiver required would cover all activities of the State, not just the activities of the department or departments receiving federal funds. As a matter of statutory interpretation, we disagree: for reasons we have given, Section 504's definition of "program or activity" is not that broad. We acknowledge that the waiver does cover all activities of the Department of Education, and not merely those activities specifically supported by Section 504 funds. We do not consider such a choice unconstitutionally "coercive." The State may take the money or leave it. Other than the vacated panel opinion in this case, we know of no authority holding any choice so coercive as to exceed the limits of the Spending Clause. Sovereign states are fully competent to make their own choice.
The judgment is affirmed.
BOWMAN, Circuit Judge, dissenting, joined by BEAM, LOKEN, and BYE, Circuit Judges.
I respectfully disagree with the Court's decision. I do so for two separate, independent reasons, either of which, in my view, requires reversal of the District Court. I state them briefly.
-6-

Case 4:96-cv-00748-GTE Document 87 Filed 01/30/01 Page 6 of 10
up for the loss of those funds if the State elects not to waive its Eleventh Amendment immunity with respect to Rehabilitation Act claims all lead to the conclusion that pressure has turned into compulsion and that the waiver given by the State is therefore unenforceable.
Second, as our Court held in a portion of the panel opinion not affected by the en bane proceedings in this case, § 504 of the Rehabilitation Act and its related abrogation clause do not abrogate the states' Eleventh Amendment immunity. That is so because the Rehabilitation Act imposes duties upon the states exceeding those commanded by the Fourteenth Amendment, and thus is beyond the power over the states given to Congress by§ 5 of that amendment. For the panel's complete analysis of this point, see Bradley v. Arkansas Department ofEducation, 189 F.3d 745, 754-56 (8th Cir. 1999). The question then becomes whether Congress, in the guise of Spending Clause legislation, can achieve indirectly what it cannot constitutionally achieve directly. That is, can Congress get its way by presenting the states with the Hobson's choice of either waiving their Eleventh Amendment immunity from § 504 claims or foregoing all federal funds to support various traditional state activities such as education, highways, and the like? Professor Lynn A. Baker has brilliantly captured the essence of this question:
So long as [Article I, which enumerates all the powers granted to Congress by the original Constitution] is not interpreted to grant Congress plenary power to regulate the states directly, the Tenth Amendment's reservation to the states of all powers not delegated to the federal government has content and significance. But if the Spending Clause is simultaneously interpreted to permit Congress to seek otherwise forbidden regulatory aims indirectly through a conditional offer offederal funds to the states, the notion of "a federal government of enumerated powers" will have no meaning.
-8-

Case 4:96-cv-00748-GTE Document 87 Filed 01/30/01 Page 7 of 10
Lynn A. Baker, Conditional Federal Spending After Lopez, 95 Colum. L. Rev. 1911, 1920 (1995) (footnote omitted). As Professor Baker noted, Justice O'Connor has sounded the same theme:
If the spending power is to be limited only by Congress' notion of the general welfare, the reality, given the vast financial resources of the Federal Government, is that the Spending Clause gives "power to the Congress to tear down the barriers, to invade the states' jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed." This, of course, ... was not the Framers' plan and it is not the meaning of the Spending Clause.
Dole, 483 U.S. at 217 (O'Connor, J., dissenting) (citation omitted) (quoting United States v. Butler, 297 U.S. 1, 78 (1936)).
For the majority of the Court in Dole, the proper way to limit the Spending Clause (besides applying the coercion test) is to require, among other things, that any conditions placed on federal grants to the states be related "to the federal interest in particular national projects or programs." Id. at 207 (quoting Massachusetts v. United States, 435 U.S. 444,461 (1978) (plurality opinion)). The Court found that this test was satisfied in Dole inasmuch as the condition imposed by Congress (raising the state's drinking age to twenty-one) was directly related to the federal interest in safe interstate travel, which the Court found to be "one of the main purposes for which [federal] highway funds are expended."2 !d. at 208.
The kind of finding made in Dole could not plausibly be made in this case. Here, the condition (waiver ofEleventh Amendment immunity with respect to Rehabilitation
2Justice O'Connor would have found the condition "not sufficiently related to interstate highway construction" and therefore would have held the condition invalid. Dole, 483 U.S. at 214; see id. at 218.
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Act claims) bears no direct relationship (indeed, not even a discernible relationship) to the purpose of most federal grants to the states for education. That purpose, broadly stated, is to improve the overall quality of education. Admittedly, fair, nondiscriminatory treatment for disabled persons is part of the total picture, but it is only a small part. Although it presumably would be permissible for Congress to condition the receipt of any grants it might make specifically for Rehabilitation Act purposes upon a waiver of state immunity from § 504 claims--a normal quid pro quo-it is not permissible to condition the receipt of other, unrelated federal grants for education upon such a waiver. Conditions on the receipt of federal funds always must "bear some relationship to the purpose of the 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) (citation omitted). Thus, because the condition imposed in this case is overbroad, going as it does to all federal funds received by the Arkansas Department of Education, no matter what the particular purpose of the funds, the State's waiver of its Eleventh Amendment immunity has not been validly exacted.
For either or both of the reasons outlined above, I would hold that plaintiffs' § 504 claim against the Arkansas Department of Education should be dismissed as barred by the Eleventh Amendment. Accordingly, I would reverse the decision of the District Court allowing the suit to go forward on this claim.
Over the past several years, the Supreme Court in a series ofcases has rigorously applied the constitutional prohibition against Congress's use of its Article I powers as a basis for abrogating the Eleventh Amendment immunity of the states. See Kimel v.
Eli.L Bd. of Regents, 528 U.S. 62 (2000) (holding that Age Discrimination in
Employment Act did not validly abrogate states' Eleventh Amendment immunity from individual suits because abrogation exceeded Congress's authority under § 5 of
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Fourteenth Amendment, and reiterating that no such authority exists under Article I); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coli. Sav. Bank, 527 U.S. 627 ( 1999) (holding that congressional attempt to abrogate states' sovereign immunity from patent infringement claims under Patent and Plant Variety Protection Remedy Clarification Act was invalid exercise of Article I commerce or patent powers and not justified under Fourteenth Amendment§ 5 enforcement powers); Coli. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Ex~m.~.Bd., 527 U.S. 666 (1999) (holding that Congress did not abrogate states' Eleventh Amendment immunity from suit under Trademark Remedy Clarification Act because Act identified no property right protected by Fourteenth Amendment, whose § 5 enforcement powers were only possible basis for purported abrogation); Seminole Tribe v. Florida, 517 U.S. 44 (1996) (holding, in seminal case, that Indian Gaming Regulatory Act could not abrogate states' sovereign immunity as exercise of Congress's power under Indian Commerce Clause because Article I powers could not circumvent Eleventh Amendment restrictions on Article III judicial power).
The Court's holdings in these cases reflect the rock-solid principle that Eleventh Amendment immunity trumps any exercise of the powers of Congress enumerated in the original Constitution; controlling weight must be given to the provision that became part of the Constitution later in time. [ am struck, however, by how easy it would be, if the majority of our Court has decided this case correctly, for Congress to overcome this limitation on its power. By resort to the spending power (another Article I power, by the way), Congress could achieve indirectly the same abrogation of Eleventh Amendment immunity it could not achieve directly. Congress could do this by the simple expedient ofcoupling an abrogation provision with a provision conditioning the states' receipt of any or all federal funds upon the states' waiver of Eleventh Amendment immunity with respect to whatever sorts ofclaims Congress might specify. Given the financial and political reality within which state governments struggle to fund their operations adequately, most ifnot all ofthe states would yield. The same scenario could unfold with respect to other kinds of conditions on the states' receipt of federal
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Case 4:96-cv-00748-GTE Document 87 Filed 01/30/01 Page 10 of 10
funds, with Congress achieving through the spending power ends it otherwise lacks the constitutional authority to pursue. Truly, the view of the Spending Clause taken by the majority of the Court in today's decision gives "power to the Congress to tear down the barriers, to invade the states' jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed." Butler, 297 U.S. at 78. It seems quite clear to me that the Framers never intended the Spending Clause to become an enabling provision for the otherwise unconstitutional exercise of federal power over the states. Yet this is precisely what today's decision ordains. If our Court will not take a hard look at the anomaly created by a "spending power i.iber alles" mentality, perhaps the Supreme Court will.
A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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 Case 4:96-cv-00748-GTE Document 101 Filed 04/27/01 Page 1 of 27

JIM AND SUSAN C., individually and as parents of J.C.

PLAINTIFFS

V.

4:99CV921 GTE

4:96CV748 GTE

ATKINS SCHOOL DISTRICT, ARCH FORD EDUCATIONAL SERVICE COOPERATIVE, and ARKANSAS STATE DEPARTMENT OF EDUCATION

DEFENDANTS

AMENDED ORDER

Jim and Susan C., individually and on behalf of their autistic son J.C., initiated these cases

pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et seq.,

section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and state law. Plaintiffs contend that

Defendants have failed to provide J.C. with "a free and appropriate education"as required by federal

and state law. The Plaintiffs and Defendant Atkins School District have filed cross motions for

summary judgment on the merits ofthe final administrative decisions in these cases. After a careful

review of the administrative records, the Court finds that the Defendant school district has provided

J.C. with an education program that satisfies the district's legal obligations. In addition, the Court

finds that the other Defendants should be dismissed from these cases.

I. STATUTORY BACKGROUND

Congress enacted the Individuals with Disabilities Education Act (the "IDEA") in 1975 after

finding that the educational needs of disabled children were being overlooked and unsatisfied. See

20 U.S.C. §§ 1400 et seq. Specifically, Congress found that, at the time of enactment, more than

one-halfof the children with disabilities in the United States did not receive appropriate educational

Case 4:96-cv-00748-GTE Document 101 Filed 04/27/01 Page 2 of 27

services and that one million ofthese children were excluded entirely from the public school system. 20 U.S.C. § 1400(c)(2)(B) and (C). Although originally designated the Education of the Handicapped Act (the "EHA"), the Education of the Handicapped Act Amendments of 1990 officially renamed the statute as the Individuals with Disabilities Education Act.
Because many cases describe the structure of the IDEA in great detail, the Court will only brielly emphasize the pertinent statutory sections. See, eg., Honig v. Doe, 484 U.S. 305 (1988). The IDEA requires the states, as a condition to receiving certain federal funds, to provide a "free and appropriate education" to all disabled students within theirjurisdiction. 20 U.S.C. § 1412(a)(l )(A).1 As part ofthis requirement, the states, through their school districts, must develop an "individualized education program," or IEP, for every child with a disability.'
As an additional condition to receiving federal funds, states must implement the IDEA procedural framework, which emphasizes parental involvement in the education process. This framework allows the parents or guardian of a disabled child to participate in meetings with respect to the child's educational status and placement and to object to any matter relating to the child's

A "free and appropriate education" is defined as special education and related services that: (I) have been provided at public expense, under the public supervision and direction, without charge, (2) meet the standards of the educational agency, (3) include an appropriate preschool, elementary, or secondary school education in the State involved, and (4) are provided in conformity with the
individualized education program developed in accordance with the statute. 20 U.S.C. §§ 140 I(8).

2

An "individualized education program" means "a written statement for each child with a

disability that is developed, reviewed, and revised in accordance with [the procedural requirements

set forth in the statute]" and includes various information, such as "the child's present levels of

educational performance" and "a statement of measurable annual goals. See 20 U.S.C.

1414(d)(l)(A)(i)-(viii). The IEP is prepared at a meeting among a qualified representative of the

local educational agency, the child's teacher, the child's parents or guardians, and, where appropriate, the child. See 20 U.S.C. § 1414(d)(l)-(2).

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I
status and placement, including a child's individualized education program. 20 U.S.C. § 1415(b)(I)(8). Whenever a parent complains about a matter relating to a child's education, the IDEA ensures that "the parents or guardian shall have an opportunity for an impartial due process hearing." 20 U.S.C. §§ 1415(f)( I). The IDEA also spells out the minimum due process protections to be provided at this hearing3 Finally, under the IDEA, any party aggrieved by the findings and decision rendered by a state educational agency shall have the right to bring a civil action in a federal district court. 20 U .S.C. § 1415(i)(2)(A).
The Plaintiffs also bring a claim under section 504 of the Rehabilitation Act, which prohibits programs receiving federal financial assistance from discriminating against otherwise qualified persons with a disability. See 29 U.S.C. § 794. 'Ibe regulations implemented under the Rehabilitation Act require elementary and secondary education programs receiving federal funds to "provide a free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's handicap." 34 C.F.R. I 04.33(a). These regulations also provide that the implementation of an individualized education program in accordance with the IDEA will satisfY a school's obligation to provide an appropriate education under§ 504 of the Rehabilitation Act. See 34 C.F.R. 104.33(b)(2).
II. FACTUAL BACKGROUND In 1994, when J.C. was six-years-old, he was diagnosed as severely autistic by a team of health professionals at the Dennis Developmental Center in Little Rock.' Because of his condition, J.C. was found eligible for special education by Atkins School District in the fall of 1995. As

3

These protections include the right to be accompanied and advised by counsel, the right to

present evidence and confront, cross examine, and compel the attendance of witnesses, the right to

a written record of the hearing, and the right to written findings of fact and decisions. 20 U.S.C. §

1415(h).

4

The hearing officer in the first due process hearing found that J.C.'s diagnosis was made

somewhat beyond the age range at which a child is usually diagnosed as autistic.

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required by the IDEA, the Plaintiffs and school personnel met in October 1995 to develop an IEP for J.C. Unfortunately, this process did not go smoothly for the parties. Indeed, the attempt to agree to an IEP sparked a dispute between the parents and the district that has lasted more than five years and resulted in almost constant litigation.
Basically, the disagreement between the Plaintiffs and the school district pertains to the methodology that the district has used to educate J.C. Since the Plaintiffs' initial meeting with school officials in the fall of 1995, the Plaintiffs have continuously requested that the district implement the Lmaas program, a program of intense behavorial intervention advocated by Dr. Ivar Lovaas for use with autistic children. Plaintiffs contend that this program should be the centerpiece ofJ.C.'s education and must be utilized 40 hours per week in order for J.C. to progress intellectually or socially. They further contend that the Lovaas program is the only method that has been "empirically proven" to help autistic children.
Despite their contentions regarding the Lovaas program, the Plaintiffs agreed to an initial IEP in October 1995 that incorporated only 19 hours per week of Lovaas training.' Initially, this training was conducted at the school by "Lovaas trainers" whom the parents selected - mostly graduate students attending an area college. The district reimbursed the parents for the cost of hiring these trainers at a rate of $5.00 per hour.6 The remainder of J.C.'s school week- about 16 hours- was spent in a special education program at the school; however, Plaintiffs used their own funds to

5

The agreement as to J.C.'s initiallEP was not easily achieved. The parties met on at least

three occasions before reaching the agreement.

6

Although most of the Lovaas trainers working with J.C. were graduate students, the district

contends that Mrs. C also listed herself as a Lovaas trainer and that she was reimbursed for some of

the time she worked with J.C. See Transcript I, p. 44.

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supplement J.C's Lovaas instruction so that he was receiving about 40 hours of such instruction each week. While at school, most ofJ.C.'s time was spent with Ms. Angela Ayres, a teacher's aide hired by the district to work one-on-one with J.C. Ms. Ayres was supervised by Ms. Jackie Rooke, who was then the district's special education teacher for grades K through two.' By all accounts, the initial IEP was a compromise between the Plaintiffs, who requested a 40-hour-per-week Lovaas program, and district officials, who did not think that the Lovaas program was a necessary component ofJeremy's education.'
In December 1995, the Plaintiffs notified the district that they were dissatisfied with J.C.'s IEP. In January 1996, they sent a letter to the district requesting several changes in the IEP, including 40 hours per week of Lovaas instruction, an increase in the reimbursement rate for trainers from $5.00 to $10.00 per hour, and financing for ongoing consultations with Lovaas professionals. In addition, the Plaintiffs also requested that J.C. receive Lovaas training in the home because the district did not have a proper area at the school in which to conduct the training! The district's IEP

7

Ms. Rooke also was responsible for ensuring that J.C. was progressing towards the goals

and objectives in his IEP.

8

See Opening Statement of Mr. Said Thomas, Transcript of Initial Due Process Hearing

(hereinafter "1996 Transcript"), at 30-45. At the time ofthe initial due process hearing, Mr. Thomas

was a special education supervisor employed by the Arch Ford Educational Service Cooperative, a

intermediate agency providing services to school districts according to region. Mr. Thomas was

assigned to work with the Atkins School District and also was the district's representative in the

1996 hearing. In his opening statement, Mr. Thomas claimed that district officials discussed the

Lovaas method with state consultants at Arch Ford and decided that the method was not "the

preferred way" to teach an autistic child. See 1996 Transcript, at 40. Mr. Thomas also stated that

district officials always believed that "a full day at school" was "appropriate" for J. C. !d. at 43. The

district agreed to fund about 19 hours per week ofinstruction in accordance with the Lovaas method

in order to compromise with the parents. /d.

9

At the initial due process hearing, Hearing Officer Anunel concluded that the district had

"not chosen a suitable site for implementation" ofthe Lovaas program because the area in which J.C.

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Case 4:96-cv-00748-GTE Document 101 Filed 04/27/01 Page 6 of 27

committee agreed to allow the Plaintiffs to transfer the Lovaas training site to their home. The
committee also agreed to increase the reimbursement rate for Lovaas trainers; however, the district agreed to an hourly rate of $7.50, rather than the requested hourly rate of $10.00. 10 The district
refused the remaining requests.
A. 1996 Due Process Hearing
In February 1996, the Plaintiffs requested an administrative due process hearing pursuant to
IDEA and sought implementation of the rejected IEP provisions. In a two-day hearing before Mr.
James Ammel, a hearing officer appointed by the Arkansas Departrnent ofEducation, Mr. and Mrs.
C argued that the district, by refusing to implement 40 weekly hours of Lovaas-based instruction,
had denied J.C. a free and appropriate education in violation of the IDEA. They also argued that the
school was obligated to implement the Lovaas technique and to pay for ongoing consultations with
Lovaas professionals. In addition to presenting their own testimony, Mr. and Mrs. C. presented 12
exhibits that were admitted into evidence and also called the following witnesses:
(I) Mr. Steve Shry, a licensed clinical psychologist and professor ofpsychology who helped put Mr. and Mrs. C in touch with graduate students interested in learning the Lovaas technique and working with J.C.; (2) Ms. Sarah McFarland, a graduate student and Lovaas trainer who worked with J.C.; (3) Ms. Rooke, the special education teacher for the district; and (4) Ms. Ayres, the district's aide who was hired to work with Jeremy at school.

was instructed was often noisy. See Initial Administrative Decision, No. H-FY96-29, at 9 (hereinafter "1996 Decision"). The hearing officer noted that the district had "announced plans to move the instructional site to a larger room and to partition that new room for the individualized instruction." !d. at 10. The hearing officer further ordered the district "to ensure a relatively quite environment to minimize the problem of distractibility to which the Student is prone to suffer." !d.

10

In his opening statement, Mr. Thomas informed the hearing officer that the district agreed

to increase the reimbursement rate for Lovaas trainers only to $7.50 because that was the rate of

compensation for the district's "one-on-one aides." See Initial Transcript, at 47.

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The primary thrust of Mr. and Mrs. C.'s arguments at the 1996 hearing was that the Lovaas method was the only instructional method that would, with any probability, benefit J.C. Mrs. C. testified that she learned of the Lovaas method while reading about autism and that her research caused her to believe that "there are no empirically effective treatments for autism other than the behavioral approach advocated by or developed by Doctor Lovaas." See 1996 Transcript, at 207. Mr. and Mrs. C testified that they were so impressed with what they read about the Lovaas method that they paid for Mr. Ron Leaf, a Lovaas proponent who had worked with Dr. Lovaas, to come to Little Rock and conduct a two-day seminar and training session in the Lovaas method-"
Two witnesses called by the Plaintiffs also spoke highly of the Lovaas method. Dr. Shry testified that he thought "the Lovaas method empirically has by far the best track record" and that 40 hours per week of Lovaas "seems to be the minimal level of intensity" needed to produce improvement in autistic children. See Initial Transcript, at 83. Lastly, Ms. McFarland testified that she had seen significant improvements in J.C. 's social responsiveness and language skills after using the Lovaas method with J.C. for about six months. When asked about the effectiveness of the Lovaas method, Ms. McFarland also made the following statements:
"In my experience I know how the Lovaas method has worked as a tool for me. I know how the different facets of it I find invaluable. I've never seen anyone else work with Jeremy that wasn't using Lovaas, so I don't know how they do it, but I don't think I could do it without that tool. I don't think I could get the response from him. So, I can't say, you know, where his improvement has come from. But in my experience I fmd [the Lovaas method) effective." See I996 Transcript, at 293.
Witnesses called by the school district disagreed with the parents' contention that Lovaas

11

The Plaintiffs emphasized that they invited J.C.'s teachers to come to the seminar but that

they declined.

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Case 4:96-cv-00748-GTE Document 101 Filed 04/27/01 Page 8 of 27

instruction was the only method that could successfully be used to teach an autistic child. These witnesses also testified that the instructional methods adopted by the Arkansas Department of Education (ADE) were in many ways similar to the Lovaas method. Ms. Maureen Bradshaw, an Arch Ford Coop consultant in charge of providing assistance to teachers working with autistic children, testified that the ADE had adopted a "combination of' approaches to teaching autistic students that was heavily influenced by the TEACCH method, a method of structured teaching advocated by researchers at the University of North Carolina at Chapel Hill." See 1996 Transcript, at 399-40 I. Ms. Bradshaw testified that the approach to teaching autistic students adopted by the ADE is in some ways similar to the Lovaas method of applied behavior analysis; however, she also testified that she "saw Lovaas as being more limited" than the ADE's approach. !d. at 411. Likewise, Ms. Betty Stockton, an education consultant who works with autistic students, testified that there are similarities between the Lovaas method of applied behavior analysis and the teaching methods adopted by the ADE. However, she testified that the Lovaas method overemphasized behavior modification at the expense of understanding the motivations behind an autistic child's behavioral problems. !d. at 464-65. In addition, Ms. Stockton testified that she thought Lovaas proponents often created the impression that the method could "cure" autism and, thus, she had concerns about how the method was marketed to parents of autistic children. !d. at 463-64.

12

The forn1al name for the TEACCH method is the Teaching and Education for Children with

Autism and Communication Handicap method. Ms. Bradshaw also mentioned the Behavior and

Communications /\ssociates, or BACA, method. Ms. Bradshaw testified that components of the

TEACCH and BACA methods were used to instruct teachers of autistic students at state-sponsored

workshops. See 1996 Transcript, at 399-403. Ms. Rooke testified that she attended two of these

workshops before working with Jeremy, and Ms. Ayers testified that she attended one such

workshop. See 1996 Transcript, at 143-44, 191.

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Case 4:96-cv-00748-GTE Document 101 Filed 04/27/01 Page 9 of 27

B. 1996 Administrative Decision
In a decision dated August 21, 1996, Hearing Officer Ammel ruled in favor of the school
district. He concluded that "[t]he IEP, in its original version and as revised, is reasonably calculated
to confer a meaningful educational benefit to [J.C.]" and, thus, meets the IDEA's requirements."
See 1996 Decision, at 5. He further concluded that the dispute between the Plaintiffs and the district
"boils down to nothing but a dispute about methodologies" and that, under Board ofEducation v.
Rowley, 458 U.S. 176 (1985), great deference is due to educators' chosen methodologies. Jd at 8.
In addition, Hearing Officer Ammel made the following comments regarding the Plaintiff's emphasis
on empirical testing:
First and foremost, it is noted that the Parents place an overriding, yet unwarranted emphasis on the fact that the Lovaas method for working with autistic students has been subjected to empirical studies ... while other equally-popular and acceptable methods have not similarly published such research. They argue that only such a method subjected to the rigors of similar research could possibly be considered to be prospectively calculated to confer a potential educational benefit. Neither any statutory or regulatory law nor interpretive cases have ever required that condition of empirical validation to enable a methodology to be acceptable as chosen by educators to achieve the goals and objectives in an IEP.

On September 20, 1996, Plaintiffs filed a complaint against Defendant Atkins School District

13

In so ruling, the officer made the following findings of fact:

(I) The Student does have a significant autism disability entitling him to special

education services;

(2) The District has complied with procedural requirements for development of

the Student's IEP;

(3) The adopted IEP has been appropriately implemented, although the element

of supervision by the special education teacher of the Lovaas-portion ofthat plan

was not totally satisfactory;

(4) The Student has admittedly demonstrated progress under the implemented

IEP;

(5) The instructional site within the District was not satisfactory.

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seeking a reversal of the hearing officer's decision. This case was randomly assigned to this Court and assigned the Case Number 4:96CV748GTE. lbe Plaintiffs subsequently filed an Amended Complaint and Application for Injunctive Relief in which they added Defendants Arch Ford Educational Service (Arch Ford) and the State Department of Education (ADE). In their Complaint, Plaintiffs assert that the Defendants "have violated J.C.'s substantive rights under IDEA," and they seek a reversal of the hearing officer's decision on both procedural and substantive grounds.14
This Court granted a continuance in the case and held all pending motions in abeyance while the ADE appealed this Court's rulings with respect to issues of Eleventh Amendment immunity. 15 The Eighth Circuit recently filed an en bane opinion in this case, making it ready for disposition.
C. 1999 Due Process Hearing After the 1996 due process hearing, the district continued to reimburse the Plaintiffs for 19 weekly hours of Lovaas instruction which were carried out in the Plaintiffs' home. Likewise, the

14 The Plaintiffs also seek an Order directing ADE to amend J.C's IEP and an Order directing Defendants to comply with 20 U.S.C. § 1413(a)(3)(A) & (B) and 34 C.F.R. § 300.382 by disseminating certain information regarding the Lovaas method of instruction. They also request various forms of damages.

15

On August 31, 1999, a panel of the Eighth Circuit Court of Appeals ruled that§ 504 of the

Rehabilitation Act was not a valid abrogation ofthe states' Eleventh Amendment immunity and that

the states did not waive their Eleventh Amendment immunity by accepting federal funds. Thus, the

Eighth Circuit concluded that the Eleventh Amendment barred Plaintiffs from asserting a claim

under § 504 against the ADE. The court also held that Arkansas waived its Eleventh Amendment

immunity with respect to claims arising under IDEA and, thus, Plaintiffs were free to pursue a claim

under IDEA against the ADE. See Jim C. v. Atkins School Dist., 1999 U.S. App. LEXIS 20831, No.

98-1830, (August 31, 1999).

On December 22, 2000, the Eighth Circuit, sitting en bane, reversed the panel and held that

the Eleventh Amendment did not bar the Plaintiffs' § 504 claims against the ADE. See Jim C. v.

Atkins School Dist., No. 98-1830EA (December 22, 2000) (en bane). Thus, the Plaintiffs are now

pursuing claims under § 504, IDEA and the Arkansas statutes implementing the IDEA's

requirements against all the Defendants.

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Plaintiffs continued supplementing, at their own expense, the amount of Lovaas instruction funded by the district so that J.C, was receiving about 40 hours of weekly Lovaas instruction. See 1999 Transcript, at 298-300. However, the Plaintiffs soon concluded that the additional training was too costly, and they discontinued the additional hours in August 1997. Thus, starting in August 1997, J.C. was receiving 19 hours of Lovaas instruction each week. I d. at 300-30 I. In August 1998, the Plaintiffs discontinued the Lovaas home-instruction altogether and began sending J.C. to school on a regular, full-day schedule. 16 Thus, starting in the 1998-99 school year, J.C. was not receiving any Lovaas instruction. Jd. at 301-02.
Unfortunately, the change in J.C.'s schedule did not improve relations between the Plaintiffs and the district, and in February 1999, the Plaintiffs requested a second due process hearing. The Plaintiffs contended that J.C. was entitled to ''a consistent, structured behavior modification program such as the Lovaas program" because he "has not progressed in his overall adaptive functioning in the past three years." 17 In a hearing in front of Ms. Pamela Walker, a hearing officer appointed by the Arkansas Department of Education, the parents argued that psychological testing showed that J.C. had failed to demonstrate any progress under the school district's instruction. '[be Plaintiffs also argued that this testing showed that J.C. had regressed after the discontinuation of the Lovaas instruction and, thus, proved that the district' program was inappropriate. In addition to seeking a determination that J.C. was entitled to 40 hours of weekly Lovaas instruction, the Plaintiffs also

16

Mrs. C. testified that she and her husband made the decision to discontinue the Lovaas

instruction and send J.C. to school full-time because of demanding schedules made more

burdensome by family illnesses. She also testified that they did not have the money to pay for a

consultation with a Lovaas professional and that such a consultation was needed in order to

successfully continue the instruction. See 1999 Transcript, at 301-02.

17

See 1999 Administrative Decision, at I.

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Case 4:96-cv-00748-GTE Document 101 Filed 04/27/01 Page 12 of 27

sought reimbursement for the Lovaas instmction they had previously funded. The Plaintiffs" main focus at the 1999 hearing was on several psychological tests conducted
sporadically over the course of four years. The first such test was given by medical professionals at the Dennis Developmental Center at the time J.C. was originally diagnosed as autistic- November 1994. This test, which was done when J.C. was six-years-old, showed that he was functioning at about a two-year-old level. The Plaintiffs compared the results of this test to the following Peabody Picture Vocabulary Tests (PPVTs) given to J.C. by Dr. Steve Shry, the same psychologist who

testified at the 1996 due process hearing: (TS1hh)reyapPtaePrsetVinfTtiseadedmtmhpaihtnaitsshitizeserteetdhsatitnsthhFoieswbtemedsattrwhyaat1sJ9g.9Ci6v.,ehnwaadhfetinemrJpJ.rC.Co.v. wehdaadstobseethveeennlreeavcneedlivooifnn3eg-5ahbmaolofu.nttD4h0sr..hours of weekly Lovaas instmction for about 5 months;

(ai2nd)sdtaimtiPcoPtniVoanlT.maDodnrm.thiSnshiosrytfetfreuesdntciiftniieoJdnuitnnhegat1sto9h9it6sh,atetasfhtteedrweJma.Cso.nthhsetarndatfreuedncecthitviaoetndJi.n9Cg.mahotandatnhgasagioneef dlLevo4evtlaoao7sf 39 to 42 months.

(aJ3.fC)te.arhPIa0Pd0VgmaTion:ne.t~dhdasmininniasdtthdeeriteLidooinvnaalAa5sutpgoruo7sgtmra1om9n9.t6hD,s sorh.foSfruhtnlryyctbtieoesfntoiifnriegedJs.otCht.ah'tsattehhiigeshtwethsatsbsfihrutonhwcdteaiodyntaihnnadgt at the age level of 47 to 49 months;

(4) a PPVT administered in December been deprived of Lovaas instmction for demonstrated that J.C. had regressed to

1998, when J.C. was 10 years four months. Dr. Shry testified the age level of33 months.

old that

and this

had test

The parents contend that these tests prove that J.C. was making significant educational progress that

was attributable to Lovaas instmction and that he subsequently regressed due to the absence of

Lovaas and the inadequacy of the district's educational program. The 1999 due process hearing included extensive testimony from two ofJ. C.'s teachers- Ms.

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Winifred Balch and Ms. Deborah Goode" - about both hls progress and the difficulties he encountered in school. Interestingly, J.C's teachers testified that they thought J.C. was progressing academically until late 1998, when they thought he began to regress both intellectually and socially. However, they did not attribute J.C's regression to any inadequacies in the district's program; instead, both teachers testified about what they considered to be peculiar and unhealthy changes in J.C.'s diet and medical condition. Ms. Balch and Ms. Goode testified that, around late 1998, they noticed that J.C. suddenly becmne preoccupied, if not obsessed, with food. 19 They also testified that Mrs. C. informed them that she had placed J.C. on a restrictive diet.20 The teachers testified that they became concerned about the health effects of J.C.'s diet after noticing that J.C. began to have a foul body odor, that his skin bccmnc a strange yellowish tone, and that he began drooling to such an extent that teachers working with him were required to wear gloves." In addition, Ms. Balch and Ms. Goode testified that they were concerned about the amount of medications Mrs. C. was giving to J.C., as well as the inconsistency with which these medications were given."

18

At the time of the 1999 hearing, Ms. Balch was a special education teacher at the district who

had worked with J.C. for about two years, and Ms. Goode was a speech pathologist for the district

who had worked with J.C. for about three years.

19

Ms. Balch testified that J.C. frequently searched for food in other people's belongings and

"will do anything for food." See 1999 Transcript, at 94-5. Ms. Goode testified that, sometime in the

fall or winter of 1998, J.C. began "perseverating on foods" and would "attack" and try to eat

anything he perceived as edible. !d. at 203-04.

20

Ms. Goode testified that J.C. 's teachers received instructions from Mrs. C. limiting what J.C.

could be given to eat and that a typical lunch for J.C. consisted of"a turnip and five boiled potatoes

with a glass of water." See 1999 Transcript, at 204, 207-08, 209-10.

21

See 1999 Transcript, at 100-01, 206

22

Ms. Balch testified that Mrs. C. began giving J.C. an inconsistent course of medications,

including Nystatin, starting in August 1998. She testified that J.C. would sometimes "throw a

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Mrs. C testified at length about the various changes in J.C's diet and behavior referred to by Ms. Balch and Ms. Goode. The first major change that Mrs. C. described occurred in January 1997, when she decided to put J.C. on "a pollutant and casein free diet," thereby eliminating all wheat and milk products from his diet.23 Mrs. C. testified that she thought this diet resulted in improvements in J.C.'s behavior and ability to learn. About the time she implemented the gluten- and casein-free diet, Mrs. C also "began treating [J.C.] for yeast" by putting him on a yeast-free diet and giving him the drug Nystatin24 Subsequently, in the spring of 1998, Mrs. C. placed J.C. on a diet she referred to as "Sara's Diet." Under this diet plan, Mrs. C. removed all, or at least most, "colored foods" from his diet.25 She also began giving J.C. several vitamin and nutritional supplements, including "digestive enzymcs."26 In addition, Mrs. C. testified that she had occasionally used a nine-volt battery to shock J.C. after learning that "a low electrical shock does not harm people or animals, but will kill parasites in the body."27

temper tantrum" when Mrs. C. came to school to give him medication. See 1999 Transcript, at 6366, 98-99. Ms. Goode testified that Mrs. C. appeared to be giving J .C. medicines and vitamin supplements in inconsistent dosages. See id. at 204.

23

See 1999 Transcript, at 341-42.

24

!d. at 346.

25

See 1999 Transcript, at 347-50. Mrs. C. admitted that no doctor recommended placing J .C.

on a "color free diet." !d. at 408.

26

See 1999 Transcript, at 351-52. Mrs. C testified that some of these supplements were

recommended by a medical doctor specializing in alternative medicine. She also testified that a

medical doctor in New Jersey advised her that J.C. needed certain supplements to "stabilize J.C.'s

biochemistry" because "he was in acidosis almost consistently." !d. at 351-52. Mrs. C also admitted

that she "kept [J.C.] out of school for three weeks or so" in January 1999 "in order to continue to

work with these supplements" and observe their effect on J.C.'s behavior. Jd at 357.

27

Jd at 370-71.

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After hearing Mrs. C's testimony relating to J. C.'s diet and medical regimen, Hearing Officer Walker ordered that J.C. undergo a complete medical evaluation at the Dennis Developmental Center. This examination took place on August 3, 1999,28 and the hearing was reconvened on October 14, 1999. At this time, Dr. Tyra Reid, a pediatrician and the medical director at the Dennis Developmental Center, testified that she was part of a team of medical professionals that evaluated J.C. She testified that "[o]verall [J.C.] is basically at about a two-year level" and, thus, had progressed minimally, if at all, since 1994. See 1999 Transcript, at 546. However, Dr. Reid also testified that a lack of progress "might have been predictable, statistically speaking, based on how he presented [at the Dennis Developmental Center] in 1994." I d. at 549. lnparticular, Dr. Reid cited J.C. 'sage at the time of diagnosis and his poor verbal skills as two of the reasons why his prognosis ~both at the time he was diagnosed and at the time of the hearing~ was "quite limited." ld29 She stated that she believed J.C. had a vitamin B-12 deficiency that could be interfering with his ability to learn and that the Sara's Diet that Mrs. C. had implemented for J.C. "would not be an adequate diet for sustained balance of nutrition." Id. at 566. She also opined that J.C.s "constant drive to get to food was so strong that it was getting in the way" of his ability to learn. I d. at 576.
D. 1999 Administrative Decision In a decision dated November 22, 1999, Hearing Officer Walker ruled that the school district

28

Testimony at the hearing established that the medical evaluation was delayed twice~ once

at the request of Mr. and Mrs. C. and once due to a scheduling conflict with the doctor in charge of

performing the evaluation.

29

Dr. Reid testified that two ofthe most important measures of an autistic child's potential are

the "IQ at diagnosis and the presence or absence ofverbal speech used communicatively." See 1999

Transcript, at 548. She also testified that based on those two factors as applied to J.C., his prognosis

would be "very guarded." !d. at 549.

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had met its burden of proving that J.C.'s IEP was reasonably calculated to offer him educational
benefits. See 1999 decision, Case No. H-99-32, at 2. The hearing officer relied on the testimony of
Ms. Balch and Ms. Goode and also relied extensively on the testimony and findings of Dr. Reid. In
addition, Hearing Officer Walker noted her own observations of J.C. during the hearing. In
particular, she noted that upon seeing his parents enter the room, "the child immediately rose, came
over to the parents, and began drooling and asking for food."30 The hearing officer also made the
following observations about the possible impact of the parents' decisions regarding J.C.'s health
and education:
The parents are seeking a cure for their son's autism. To that end they have tried diet restrictions, Nystatin to control 'yeast' that might be in the child's system, buzzes with a 9 volt battery to kill "parasites" that might be in his system. They have given him enemas to cleanse his system and then started him on a series of supplements. Yet they have not allowed their child to receive all the programs that the school provides. For some reason, the parents have declined a full year program, they have declined physical and occupational therapy. There is no way of knowing how well this child would have done this past year had the parents given the child an adequate diet, and had they allowed him to take part in physical and occupational therapy and the extended school year program offered by the school district.
See 1999 decision, at I 0-11.
The Plaintiffs filed their second complaint, Case No. 4:99CV921 GTE, against the school
district and the ADE on December 17, 1999. They seek reversal of the hearing officer's decision.
III. ANALYSIS
A. Standard of Review
Because courts are not trained educators, judicial review under the IDEA is limited. E.S v.

30

The hearing officer also noted that when she was introduced to J.C., he "looked in her hands

and in her pockets for 'some' and 'good"' and that his lunch that day consisted of"small potatoes,

raw turnips, and water." See1999 decision, at 10.

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Case 4:96-cv-00748-GTE Document 101 Filed 04/27/01 Page 17 of 27

Independent Sch. Dist., No. I96, 135 F.3d 566, 569 (8th Cir. 1998). Ibe Supreme Court has emphasized that a reviewing court's inquiry under the IDEA is limited to the following two issues:
First, has the State complied with procedures set forth in the Act? And second, is the individualized education program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? Board ofEducation v. Rowley, 458 U.S. 176, 206-07 (1982). 31 The State and local school district have the burden of establishing substantive and procedural compliance with the IDEA. Stein v. Independ. Sch. Dis/. No. 196, 135 F.3d 566 (8'" Cir. 1996). However, once a court has established that a child's IEP is reasonably calculated to ensure educational benefits and that the State and district have followed IDEA procedures, it can require no more. Rowley, 458 U.S. at 207. A reviewing court should make an independent determination of the aforementioned issues based on the prepondenmce of the evidence. See 20 U.S.C. §§ 1415(e)(2).32 Both the Supreme Court and the Eighth Circuit, however, have emphasized that courts, when reviewing administrative proceedings under the IDEA, should give "due weight" to the results of those proceedings. See Rowley, 458 U.S. at 206; Independent Sch. Dist. No. 283 v. S.D., 88 F.3d 556, 561 (8'" Cir. !996). In addition, the Supreme Court has emphasized that the IDEA "is by no means an invitation to the

31

In Rowley, the Court held that a student was not entitled to a qualified sign-language

interpreter in all of her academic classes because the services already provided by the school -

including a special hearing aid and additional tutoring- were sufficiently providing the student with

a "free and appropriate education." Board ofEducation v. Rowley, 458 U.S. 176, 206-07 (!982).

In so ruling, the Court held that the IDEA does not require States to "maximize the potential ofeach

handicapped child commensurate with the opportunity provided nonhandicapped children." Id. at

200. Instead, the Court emphasized that "Congress sought primarily to identifY and evaluate

handicapped children, and to provide them with access to a free public education." Id.

32

Section 1415(e)(2) of the IDEA states that a reviewing court "shall receive the records ofthe

administrative proceedings, shall hear additional evidence at the request of a party, and, basing its

decision on the preponderance of the evidence, shall grant such relief as the court determines is

appropriate." 20 U.S.C. §§ 1415(e)(2).

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Case 4:96-cv-00748-GTE Document 101 Filed 04/27/01 Page 18 of 27
courts to substitute their own notions of sound educational policy for those of the school authorities which they review'' Rowley, 458 U.S. at 206. Instead, once a court determines that the requirements of[the IDEA] have been met, questions of methodology are for resolution by the States." !d. at 208. This Court finds the following language of the Supreme Court particularly relevant to these cases:
In assuring that the requirements of the Act have been met, courts must be careful to avoid imposing their view ofpreferable educational methods upon the States. The primary responsibility for fonnulating the education to be accorded a handicapped child, and lor choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child. The Act expressly charges States with the responsibility of 'acquiring and disseminating to teachers and administrators of programs for handicapped children significant information derived from educational research, demonstration, and similar projects, and [of] adopting, where appropriate, promising educational practices and materials.' (citation omitted). In the face of such a clear statutory directive, it seems highly unlikely that Congress intended courts to overturn a State's choice of appropriate educational theories in a proceeding conducted pursuant to§§ 1415(e)(2).
Rowley, 458 U.S. at 207-08. The Court also notes that a panel of the Eighth Circuit recently decided a case remarkably
similar to these cases. In Gill v. Columbia 93 Sch. Dist., 217 F.3d 1027 (8'h Cir. 2000), parents challenged the local school district's decision not to implement 40 hours of weekly Lovaas instruction for their autistic child. The district court found that the school was providing an adequate educational program despite the absence ofLovaas instruction and, thus, was in compliance with the IDEA and Rehabilitation Act. In affirming the lower court's decision, the Eighth Circuit made the following statements:
Children with autism have difficulty in developing cognitive, linguistic, and social skills. Although early diagnosis and therapy improve the outlook for such children, autism experts have a variety of opinions about which type of program is best. Federal courts must defer to the judgment of education experts who craft and review a child's IEP so long as the child receives some educational benefit and is educated alongside his non-disabled classmates to the maximum extent possible.... Parents who believe that their child would benefit from a particular type of therapy are entitled to present their views at meetings of the child's IEP team, to bring along experts in support, and to seek administrative review. The statute set up this interactive process for the child's benefit. but it does not empower parents to make
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Case 4:96-cv-00748-GTE Document 101 Filed 04/27/01 Page 19 of 27

unilateral decisions about programs the public funds.
Gill, 217 F.3d 1027, 1038. With the foregoing principles in mind. this Court cannot conclude that either of the hearing
officers in these cases erred in finding that the school district has complied with the IDEA.33 B. 1996 Decision
The Court agrees with Hearing Officer Ammel's finding that the dispute leading to the Plaintiffs' initial request for a due process hearing was basically a dispute about methodologies. In fact, the following exchange between Mr. and Mrs. C. during Mrs. C's 1996 testimony indicates that the Plaintiffs' disagreement with school district officials rested solely on their decision not to implement the Lovaas program: (245)

33

On June 5, 2000, the Plaintiffs filed a motion to expand the administrative records in these

cases. Docket No. 81. The Defendants have not responded to this motion. Thus, the Court has

decided to grant the Plaintiffs' Motion to Expand the Record and, accordingly, has considered

Plaintiffs' Exhibits A through K as listed in that motion. The Court notes that one of the exhibits

referred to in this motion is the Clinical Practice Guideline, a publication sponsored by the New

York State Department of Health Early Intervention Program. See Clinical Practice Guideline:

Report ofthe Recommendations, Autism/Developmental Disorders, Assessment and Intervention

for Young Children, 1999. I his publication states that"(a]nti-yeast therapies, including the use of

oral anti-fungal medications and special diets, are not recommended for the treatment of autism in

children." ld. at 179. The publication also makes the following statements regarding diet therapies:

The use of special diets that eliminate milk-products, gluten products, or other

specific foods from the diet is not recommended for the treatment of autism in

children.... If food allergies are documented in a child using standard allergy

testing methods, then appropriate dietary changes or other treatment may be

needed, but this would be unrelated to the child's autism.

Jd. at 182. lhe publication also states that "administering high doses of any type of vitamin or trace mineral is not recommended as a treatment for autism in young children. Jd. at 180.
The proper focus of cases filed under the IDEA should be on the adequacy of a child's educational program. However, the Court is compelled to conclude that changes occurring in a child's home-life, including changes in the child's diet or medical regimen, are often intertwined with that child's educational program. Indeed, the quoted language from the Clinical Practice Guideline suggests the possibility that some ofthe changes in J.C. 's medical and diet regimens may not have been conducive to improving his academic performance.

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Q (Mr. C): Incidentally, goals were never much in dispute betweenA (Mrs. C): No. Q:- us and the other members of the IEP Committee, were they? A: Right. Q: It was the method? A: Right.
See 1996 Transcript, at 245.
As Hearing Officer Ammel emphasized, the Parents repeatedly referred to the Lovaas method of instruction as the only method subject to empirical research and published studies. In addition, the Plaintiffs made several references to the district's failure to specifically identify a particular instructional method that it was using with J.C. and to provide empirical research as to the method's efficacy. The Court agrees that the failure of the school district to provide such information does not constitute a violation of the IDEA. As Rowley instructs, once a school has established that it complied with IDEA and implemented an IEP that "is reasonably calculated to enable the child to receive educational benefits," a reviewing court's inquiry is at an end. In other words, a reviewing court can not delve into the issue of whether alternative educational programs or methods would be more likely to maximize a child's potentiaL34 Put simply, as long as school officials have acted reasonably and complied with the procedures of the IDEA. the choice of methodologies and techniques is lefi to the discretion of the educators.
After a thorough review of the administrative record, the Court concludes that the district adopted an educational program reasonably calculated to provide J.C. with educational benefits. The

34

Even if this Court had the authority to consider what methodology would maximize J.C.'s

potential, the Court would be unwilling to declare the Plaintiffs' choice ofmethods as the one most

likely to do so. Rather, based on its review of the entire record, the Court can find no basis to

disagree with the hearing officer's statement that the State's approach to teaching autistic children

-a blend ofmethodological principles- is probably better designed to deal with the individual needs

of a student. See 1996 Decision, at 7.

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Case 4:96-cv-00748-GTE Document 101 Filed 04/27/01 Page 21 of 27
IEP included goals and objectives in the areas of social/self-help skills, reading, math, language skills, and gross and fine motor skills, and, as mentioned, the Plaintiffs did not object to those goals and objectives. While at school, J.C. received one hour of weekly speech therapy and one-on-one instruction from a teacher's aide hired solely to work with him. Moreover, it is undisputed that both Ms. Rooke and Ms. Ayers attended workshops on teaching autistic children that were sponsored by the ADE. At the time of the 1996 hearing, the parties also agreed that J.C. had made noticeable progress since attending school. These facts, considered in light of the deference due to the hearing officer's findings, convince this Court that J.C.'s IEP was in compliance with the IDEA.
In addition, the Court agrees that the school district complied with IDEA procedures. This is not a case involving a school district that has overlooked a parent's willingness to be involved with a child's education. In fact, it is clear that Mr. and Mrs. C have had extensive involvement with school officials and teachers since they first began to consider enrolling J.C. in the Atkins School District. The Plaintiffs claim that the failure to include an "expert in autism" on J.C's IEP team constitutes a procedural violation of the IEP. However, the IDEA does not require that an "expert" in the field of the child's particular disability be included on the IEP team. See 20 U.S.C. § 1414(d)(l)(B). In addition, the Plaintiffs contend that the district violated IDEA procedures when -prior to the meetings of J.C.'s IEP team- district officials contacted consultants from the ADE to discuss autism and the challenges associated with teaching autistic students. However, testimony established, and the hearing officer specifically found, that any communications between district and state officials prior to IEP meetings with the Plaintiffs were for the purpose of obtaining "generic information" regarding autism. Such communications do not amount to a procedural violation of the IDEA. Indeed, this Court agrees with the hearing officer's conclusion that the district fully complied with the IDEA's procedural requirements when enacting and implementing J.C's IEP for the 1995-96 school year.
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Case 4:96-cv-00748-GTE Document 101 Filed 04/27/01 Page 22 of 27
I
C. 1999 Decision The Court also fully agrees with the conclusions of Hearing Officer Walker. The record of the 1999 proceedings certainly raises serious concerns about J.C.'s overall progress- or lack thereof -since the first administrative hearing in 1996. However, the Court cannot conclude that the district failed to meet its obligations under the IDEA Specifically, the Court finds that J.C.'s IEP was reasonably calculated to enable the child to obtain educational benefits. The Hearing Officer found, and this Court agrees, that J.C.'s IEP included goals and objectives very much like those recommended by Dr. Doreen Granpeesheh of the Center for Autism and Related Disorders recommendations that were introduced as Parents' Exhibit 5. See 1999 Decision, at 3. Moreover, the Plaintiffs do not dispute that the school district was providing everything that was recommended by the Dennis Developmental Center. The Plaintiffs do not agree that these recommendations are sufficient to provide their child with an appropriate education. However, the Court concludes that the district's compliance with the recommendations of medical experts such as those at the Dennis Developmental Center is strong evidence that J.C's IEP was reasonably calculated to ensure educational benefits. Perhaps most interesting about the Hearing Officer's decision is her conclusion that the tests relied upon by the Parents were inaccurately scored and, thus, do not establish that J.C. made dramatic gains under the Lovaas method only to regress once he was enrolled in school full-time. Hearing Officer Walker specifically found that the PPVT tests admitted into evidence established that J.C.'s "verbal understanding ha[d] steadily increased" from 1996 to 1999. The Plaintiffs do not address these findings but, instead, continue to insist that "[t]he only method which has produced developmental progress in this child" is the Lovaas method. See Plaintiffs Motion for Partial Summary Judgment, Docket No. 82, at~ 14. However, even when overlooking the Hearing Officer's factual findings with regard to the PPVT tests, the Plaintiffs still cannot establish that the school district has denied J.C. an appropriate education.

A,.._ -,.,-,A

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Case 4:96-cv-00748-GTE Document 101 Filed 04/27/01 Page 23 of 27
The extensive testimony regarding J.C.' s diet and medical condition convinces this Court that any regression in J.C.'s progress cannot be separated from the many changes in J. C.'s home life from January 1997 to the time of the hearing. As mentioned, Mrs. C. placed J.C. on a diet consisting largely of turnips, potatoes, cauliflower and breasts of chicken. J.C.'s teachers testified that, during the course ofthese diet changes, they noticed dramatic changes in J.C.'s behavior and health, as well as his ability to cooperate in class. After considering this testimony, as well as the testimony ofMrs. C., this Court finds that a lack of educational progress- assuming there is one- can reasonably be attributed to the many changes in J.C's home-life rather than to any inadequacy in his IEP.
Lastly, the Court does not find that the district failed to comply with IDEA procedures in the events leading up to and including the 1999 due process hearing. The Plaintiffs contend that they were denied due process because thel999 due process hearing was conducted by a hearing officer appointed by and paid for by the ADE. They contend that an alternative party should have selected a hearing officer because, at the time they requested the second due process hearing, they were involved in ongoing litigation with the ADE. This Court concludes that this contention is without merit. The IDEA provides that parents "shall have an opportunity for an impartial due process hearing, which shall be conducted by the State educational agency or the local educational agency, as determined by State law or by the State educational agency." 20 U.S.C. § 1415(f)(l). The only limitation on who may conduct such a hearing is found in§ 1415(f)(3), which provides that the hearing "may not be conducted by an employee of the State educational agency or the local educational agency involved in the education or care of the child." Moreover, Plaintiffs have cited no evidence ofbias on the part ofHearing Officer Walker and, after a thorough review ofthe record, this Court has found no such evidence.
Plaintiffs also contend that various actions ofHearing Officer Walker resulted in the denial of due process. This Court, however, again concludes that their arguments are without merit. The weight ofthe Plaintiffs' objections relates to the introduction of evidence concerning J.C.'s diet and
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Case 4:96-cv-00748-GTE Document 101 Filed 04/27/01 Page 24 of 27
the Hearing Officer's decision to order a physical evaluation at the Dennis Developmental Center. As an initial matter, the Plaintiffs' contend that the school should not have been allowed to submit any testimony or other evidence relating to J.C's diet and health because they failed to raise such a "defense" in their pleadings. However, the IDEA contains no formal pleading requirements and, moreover, the Court finds that the admission of such evidence did not result in unfairness to the Plaintiffs. In addition, the Court concludes that Hearing Officer Walker's decision to order a medical evaluation of J.C. did not violate the Plaintiffs' due process rights. Indeed, given the circumstances of this case, Hearing Officer Walker could not reasonably have been expected to make a decision without first obtaining information about the child's health from an unbiased and qualified source.
IV. CONCLUSION The Court is sympathetic to the Plaintiffs' attempt to obtain what they view as the best possible education for their child, and the Court also is understanding of their attempts to alleviate J.C.'s condition. However, after an extensive review ofthe administrative records in these cases and in light ofthe Eighth Circuit's recent decision in Gill, the Court concludes that the Defendant school district has implemented an educational program for J.C. that complies with the IDEA and§ 504 of the Rehabilitation Act. In addition, the Court concludes that the Defendants have complied with the procedural requirements of the IDEA. 1bus. the Court will grant the district's motion for summary judgment. In light ofthe Court's findings, the remaining Defendants should be dismissed from these cases."

35

In both of their Complaints, the Plaintiffs have contended that Defendant ADE violated the

IDEA by failing to implement effective procedures for the education of autistic children and by

frustrating the dissemination of information regarding the Lovaas method. After reviewing both

administrative records, the Court concludes that officials with the ADE carefully considered various

instructional methods and adopted in a reasonable manner a teaching method to be used with autistic

students. The IDEA requires nothing more. Thus, the Court concludes that the ADE did not fail to

meet its statutory obligations under the IDEA.

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Case 4:96-cv-00748-GTE Document 101 Filed 04/27/01 Page 25 of 27

IT IS THEREFORE ORDERED that Defendant Atkins School District's Motion for Summary Judgment'6 be, and it is hereby, GRANTED. Accordingly, Plaintiffs' motions for smnmary judgment" are DENIED and all other pending motions are DISMISSED AS MOOT.

IT IS FURTHER ORDERED that Plaintiffs' complaints be DISMISSED WITH PREJUDICE

as to all Defendants.

Dated

tills

Q 1

0'-
d1ly

of

April

200

I.

UNITED STATES DISTRICT JUDGE
THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE
OWNIT~ ji"~ Ry~~ 58 ANBDYIO~.H.~ ~~~~ ~--

36

Docket No. 89.

37

Docket Nos. 82, 41 and 15.

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Case 4:96-cv-00748-GTE Document 101 Filed 04/27/01 Page 26 of 27
F I LE c0 p y
bm UNITED STATES DISTRICT COURT Eastern District of Arkansas
U.S. Court House 600 West Capitol, Suite 402 Little Rock, Arkansas 72201-3325
April 30, 2001
* * MAILING CERTIFICATE OF CLERK * *
Re: 4:96-cv-00748.
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
Scott H. Peters, Esq. Attorney at Law 233 Pearl Street Council Bluffs, IA 51503
Mary Jane White, Esq. Attorney at Law Post Office Box 358 Waukon, IA 52172-0358
Thomas H. McGowan, Esq. Youngdahl, Sadin & McGowan 124 West Capitol Avenue, Suite 1805 Post Office Box 1088 Little Rock, AR 72203-1088
Sherri L. Robinson, Esq. Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610
Anita Perkins Leonard, Esq. Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610

Case 4:96-cv-00748-GTE Document 101 Filed 04/27/01 Page 27 of 27
William Clay Brazil, Esq. Brazil, Adlong & Winningham 719 Harkrider Suite 201 Conway, AR 72032
press post

Date:

James W. McCormack, Clerk BY:

 
 Case 4:96-cv-00748-GTE Document 102 Filed 04/27/01 Page 1 of 7

u ~Um~cPum
EASTERN PI$1'R1Ci ARKANSAS

IN THE UNITED STATES DISTRICT COURT APR 2 7 2001
EASTERN DISTRICT OF ARKANSAS

LITTLE ROCK DIVISION

~~~~

JIM AND SUSAN C.,

DE . CLERK

individually and as parents of J.C.

PLAINTIFFS

V.

4:99CV921 GTE

4:96CV748 GTE

ATKINS SCHOOL DISTRICT, ARCH FORD EDUCATIONAL SERVICE COOPERATIVE, and ARKANSAS STATE DEPARTMENT OF EDUCATION

DEFENDANTS

ORPER DENYING MOTION FOR RECONSIDERATION Currently before the Court is the Plaintiffs' "Motion Under Various Federal Rules of Civil Procedure to Reconsider the March 23, 2001 Order."' In an Order filed on March 23, 2001 and entered on March 26,2001, the Court granted the Defendant Atkins School District's Motion for Summary Judgment and dismissed the complaints' with prejudice as to all Defendants. The Plaintiffs now move "for additional findings of fact, alterations, amendments of the judgment and for a new trial or first trial upon the merits of the claims against Defendants Arch Ford Educational Service Cooperative and the Arkansas State Department of Education." For the reasons stated herein, the motion is DENIED. Plaintiffs purport to file their motion under three Federal Rules of Civil Procedure: "Rules 52(b), 59 and 60. All of these Rules allow the Court to amend or alter a decision after entry of judgment. Such relief, however, is generally only available when a manifest error of law or fact affects the correctness of the judgment. See Norman v. Arkansas Dep 't ofEduc., 79 F.3d 748, 750 (8th Cir. 1996); Mitchell v. Shala/a, 48 F.3d 1039, 1041 (8'h Cir. 1995). After reviewing the

Docket No. 96.

Case 4:96-cv-00748-GTE Document 102 Filed 04/27/01 Page 2 of 7

Plaintiffs' Motion. the Court will not depart from its decision other than to file an amended Order, attached hereto, that corrects the Court's inadvertent misstatement regarding this case's procedural history.'
The Court notes that the Plaintiffs' main objection with respect to the Court's decision to dismiss the case pertains to the dismissal ofthe Arkansas Department ofEducation("ADE") and the Arch Ford Educational Service Cooperative ("Arch Ford"). Initially, Plaintiffs' contend that the Court's order "errs in ruling to dismiss all Defendants at a time when there were not pending motions for summary judgment on file from all of the Defendants, most notably ADE." (Motion to Reconsider, at~ 3). However, at the time the Court issued its Order, there were, in fact, pending motions for summary judgment and/or motions for dismissal involving ADE with respect to both Complaints. On October 20, 1997 ADE filed a Motion to Dismiss and in the Alternative for Summary Judgment in Case No. 4:96CV00748. (Docket No. 35). In that motion, ADE expressly addressed the Plaintiffs' argument with respect to ADE's procedural obligations under IDEA. (See Docket No. 36, at 15-17). The Plaintiffs filed a response and a cross-motion for summary judgment on November 24, 1997. (Docket No. 41 ). In addition, ADE filed a motion to dismiss with respect to Case No. 4:99CV00921 onApril4, 2000. (Docket No. 77). The Plaintiffs filed a response to this motion on June 5, 2000. (Docket No. 79). Moreover, in reviewing the lengthy transcripts from the two due process hearings as well as the numerous exhibits submitted during and after those hearings,

2

In its previous Order, the Court misstated the holding of the Eighth Circuit en bane with

respect to issues of Eleventh Amendment immunity. As a result of the Eighth Circuit's en bane

opinion, the Plaintiffs were allowed to pursue their claims under § 504 of the Rehabilitation Act

against all Defendants. However, the Court emphasizes that its findings and conclusions with

respect to the adequacy of J.C. 's educational program defeat the Plaintiffs' claims under§ 504 as to

all Defendants.

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the Court had an extensive opportunity to consider the full array of issues raised by the parties. Thus, the Court concludes that is was well within its authority in dismissing the Complaints as to all Defendants.
The Plaintiffs also argue that the Court has failed to thoroughly consider its claim that the ADE has failed to comply with its procedural obligations under the IDEA. Specifically, the
Plaintiffs' contend that the ADE has failed to "acquir[e1 and disseminat[e1 to teachers and
administrators of programs for handicapped children significant information derived from educational research, demonstration, and similar projects, and [of] adopting, where appropriate, promising educational practices and material." Board ofEduc. v. Rowley, 458 U.S. 176, 207-08; see also 20 U.S.C. § 1453(c)(3)(D). The Plaintiffs also contend that the ADE "has engaged in an active campaign to frustrate the dissemination and implementation of ... ABA/Lovaas." In their Motion for Reconsideration, the Plaintiffs argue that the Court overlooked these contentions against the ADE.
Again, the Court disagrees with the Plaintiffs' view of its decision to dismiss these Complaints against all Defendants. The Court recognizes that the IDEA imposes obligations on both state educational agencies and local school districts. The Court also recognizes that the IDEA requires each state to adopt a comprehensive plan addressing its obligations under the IDEA including its obligation to disseminate information to instructors of disabled children and to adopt promising educational practices. However, the Court still concludes that the ADE did not run afoul of this obligation or any of its other responsibilities under the IDEA. In particular, the Court emphasizes that the Plaintiffs have not, at any time, alleged that the ADE failed to adopt a plan or to implement policies and procedures in furtherance ofits statutory obligations to disabled children.
-3-

Case 4:96-cv-00748-GTE Document 102 Filed 04/27/01 Page 4 of 7

Rather, the Plaintiffs' contention throughout both ofthe due process hearings has been that the ADE

has not adopted the particular behavioral modification program that they requested. Although the

IDEA guarantees parents ofa disabled child the opportunity to participate with educators in forming

an educational program for that child, it does not allow parents to dictate to schools the exact

methods and programs that will be implemented with respect to the child.

The Plaintiffs have not, despite ample opportunity, presented any evidence that the ADE has

"engaged in an active campaign to frustrate the dissemination and implementation" of the Lovaas

method. The Plaintiffs' assert that "the evidence concerning this issue resides within the discovery

files of Plaintiffs counsel in this case." They further assert that "this evidence discloses who, what,

when, where, why and how the ADE irrationally and unscientifically excluded any local district's

consideration of a promising methodology commenced by the U.S. Surgeon General and developed

11[ ,

with financial support from the U.S. Department of Health and the National Institutes of Health."

I

Although the Plaintiffs may possess evidence that would support their belief that the ADE acted to

"frustrate" the implementation of the Lovaas method, this Court has not seen such evidence and is

unwilling to allow the Plaintiffs to present further evidence at this late date.3

3

Indeed, even if the ADE somehow acted to "frustrate" the implementation of the Lovaas

method in school districts, the Court concludes that such actions would not constitute a violation of

the IDEA provided that the ADE had adopted an alternative method or methods of working with

students having disabilities similar to J.C.'s disabilities. The extensive administrative record

established that the ADE had adopted a comprehensive plan addressing its obligations under IDEA,

had formed a task force that considered the various challenges associated with teaching autistic

children, and sponsored teacher-training workshops for teachers working with autistic students.

In the Court's view, this evidence established that the ADE was complying with its statutory

obligations, and the Plaintiffs did not present evidence that suggested a basis for questioning this

conclusion. (See Order, Docket No. 94, at 8).

-4-

Case 4:96-cv-00748-GTE Document 102 Filed 04/27/01 Page 5 of 7

In conclusion, the Court finds that the ADE complied with its obligations under the IDEA.4

The Court further concludes that Plaintiffs have not stated a sufficient legal or factual basis for a

reconsideration ofthe Court's previous ruling. In particular, they have not identified a manifest error

that affects the correctness ofthe Court's previous Order. Thus, the Court will DENY the Plaintiffs'

Motion.

this~ fay IT IS SO ORDERED

of April 200 I.

UNITED STATES DISTRICT JUDGE
!!
;;

THIS DOCUMENT ENTERED ON

;:
i!

DOCKET SHEET IN COMPLIANCE

Wll!} RULE 58 AND/OR 79JY:FRCP
ON ~ 3:2 -0 I BY__,,,!'~~::..==::..

1:
1:
i!
I'
I
i i
I

II
I

,I

'I,;

4

Arch Ford is an intermediate educational agency that provides services to school districts

iI within Arkansas. The Court's conclusions with respect to that the ADE apply equally to Arch Ford. as well.

II

-s-

I!
II

Case 4:96-cv-00748-GTE Document 102 Filed 04/27/01 Page 6 of 7
F I LE c0 p y
bm UNITED STATES DISTRICT COURT Eastern District of Arkansas
U.S. Court House 600 West Capitol, Suite 402 Little Rock, Arkansas 72201-3325
April 30, 2001
* * MAILING CERTIFICATE OF CLERK * *
Re: 4:96-cv-00748.
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
Scott H. Peters, Esq. Attorney at Law 233 Pearl Street Council Bluffs, IA 51503
Mary Jane White, Esq. Attorney at Law Post Office Box 358 Waukon, IA 52172-0358
Thomas H. McGowan, Esq. Youngdahl, Sadin & McGowan 124 West Capitol Avenue, Suite 1805 Post Office Box 1088 Little Rock, AR 72203-1088
Sherri L. Robinson, Esq. Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610
Anita Perkins Leonard, Esq. Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610

Case 4:96-cv-00748-GTE Document 102 Filed 04/27/01 Page 7 of 7
William Clay Brazil, Esq. Brazil, Adlong & Winningham 719 Harkrider Suite 201 Conway, AR 72032
press

Date:

James W. McCormack, Clerk

BY:

~

I

 
 Case: 4:96-cv-748 As of:10/01/2015 12:53 PM CDT 1 of 8
DISC,HLJ,TERMED
U.S. District Court Eastern District of Arkansas (Little Rock) CIVIL DOCKET FOR CASE #: 4:96−cv−00748−GTE

C, et al v. Atkins Sch District, et al Assigned to: Judge G. Thomas Eisele Demand: $0 Case in other court: 8USCA, 98−01830 Cause: 20:1400 Civil Rights of Handicapped Child
Plaintiff

Date Filed: 09/20/1996 Date Terminated: 03/23/2001 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Jim C individually and as parent and next friend of J.C.

represented by Mary Jane White Attorney at Law Post Office Box 358 Waukon, IA 52172−0358 (319) 568−3551 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott H. Peters Attorney at Law 233 Pearl Street Post Office Box 1078 Council Bluffs, IA 51502 (712) 328−3157 Email: scott.peters@peterslawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas H. McGowan Provost &Umphrey, L.L.P. 1202 Main Street Suite 206 Little Rock, AR 72202 (501) 374−3655 Email: tmcgowan@provostumphrey.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Susan C individually and as parent and next friend of J.C.

represented by Mary Jane White (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott H. Peters (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas H. McGowan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Atkins School District

represented by W. Paul Blume Attorney at Law

Case: 4:96-cv-748 As of:10/01/2015 12:53 PM CDT 2 of 8

Post Office Box 3065 Little Rock, AR 72203 501−436−4833 Fax: 501−436−4992 Email: blumelawfirm501@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Arch Ford Education Service Cooperative

represented by William Clay Brazil The Shaw Firm 1315 Main Street Conway, AR 72034 501−327−4457 Email: bamo@conwaycorp.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Arkansas Department of Education

represented by Anita Perkins Leonard Attorney at Law 2009 Sandbrook Jonesboro, AR 72404 870−219−1561 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leigh Anne Yeargan Mitchell, Williams, Selig, Gates &Woodyard, P.L.L.C. 5414 Pinnacle Point Drive Suite 500 Rogers, AR 72758 479−464−5665 Email: lyeargan@mwlaw.com TERMINATED: 03/04/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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: 12/15/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

Case: 4:96-cv-748 As of:10/01/2015 12:53 PM CDT 3 of 8

09/20/1996 09/20/1996 09/20/1996 10/07/1996 10/21/1996 01/10/1997 01/10/1997 01/28/1997
01/29/1997 01/30/1997 01/31/1997 01/31/1997 02/03/1997 02/05/1997 03/17/1997 03/17/1997 04/23/1997
05/29/1997 06/02/1997 06/02/1997 06/06/1997 06/06/1997 06/16/1997 06/16/1997

1 COMPLAINT, summonses issued and returned to attorney; $120 filing fee paid−receipt #67820 (bfw) (Entered: 09/26/1996)
2 MEMO to file regarding service of complaint (bfw) (Entered: 09/26/1996)
3 MOTION by plaintiffs for attorney Mary Jane White to appear pro hac vice (bfw) (Entered: 09/26/1996)
4 ORDER (DOC) granting motion for attorney Mary Jane White to appear pro hac vice [3−1] (cc: all counsel) 10/7/96 (former empl) (Entered: 10/07/1996)
UTILITY EVENT: Add attorney Mary Jane White for pltfs (former empl) (Entered: 10/21/1996)
5 AMENDED complaint [1−1] by plaintiffs; adding Arch Ford Education and Arkansas Department of Education (bmt) (Entered: 01/10/1997)
6 MOTION by plaintiffs for attorney Scott H. Peters to appear pro hac vice (bmt) (Entered: 01/13/1997)
7 ORDER (DOC) granting motion for attorney Scott H. Peters to appear pro hac vice as co−counsel with Thomas H McGowan as attorneys for the pltf [6−1] (cc: all counsel) (former empl) (Entered: 01/30/1997)
8 ANSWER by defendant Arch Ford Education to amended complaint (former empl) (Entered: 01/31/1997)
9 ANSWER by separate defendant Arkansas Department of Education (former empl) (Entered: 02/03/1997)
10 RETURN OF SERVICE executed upon defendant Arch Ford Education on 1/16/97 (former empl) Modified on 02/06/1997 (Entered: 02/03/1997)
10 RETURN OF SERVICE executed upon separate defendant Arkansas Education on 1/17/97 (former empl) (Entered: 02/03/1997)
UTILITY EVENT: Add attorney Scott H Peters for pltfs (former empl) (Entered: 02/03/1997)
11 ANSWER by defendant Atkins Sch District (kjp) (Entered: 02/06/1997)
12 MOTION by pltfs to enlarge the record (administrative record &exhibits in separate binders (2)) (former empl) Modified on 03/19/1997 (Entered: 03/19/1997)
13 BRIEF by pltfs in support of motion to enlarge the record [12−1] (in separate folder) (former empl) (Entered: 03/19/1997)
14 ORDER by Judge G. T. Eisele granting motion to enlarge the record to include certain records filed with their motion as Supplemental Exhibit X [12−1] (cc: all counsel) (former empl) (Entered: 04/25/1997)
15 MOTION by plaintiff for partial summary judgment by appellate ruling (former empl) Modified on 11/18/1997 (Entered: 05/30/1997)
16 RESPONSE by deft Arkansas Education to motion for partial summary judgment [15−1] (bsm) (Entered: 06/03/1997)
17 STATEMENT OF MATERIAL FACTS in issue by deft Arkansas Education [16−1] (bsm) (Entered: 06/03/1997)
18 MOTION by deft Arch Ford Education for enlargement of time to respond to motion for partial summary judgment (bsm) (Entered: 06/06/1997)
19 BRIEF by deft Arch Ford Education in support of motion for enlargement of time to respond to motion for partial judgment [18−1] (bsm) (Entered: 06/06/1997)
20 MOTION by plaintiff to compel discovery responses by AFESC (former empl) (Entered: 06/16/1997)
21 PLAINTIFFS' ADVISE TO COURT &COUNSEL regarding ADOE'S statement of material facts &to compel answers to interrogatories 1 &2 (former empl)

Case: 4:96-cv-748 As of:10/01/2015 12:53 PM CDT 4 of 8

06/16/1997 06/18/1997
06/18/1997 06/18/1997 06/19/1997 06/23/1997 06/26/1997 06/26/1997 06/26/1997 06/27/1997
06/27/1997 07/30/1997
10/20/1997
10/20/1997
10/20/1997
10/20/1997 10/28/1997
11/04/1997 11/17/1997
11/24/1997

(Entered: 06/16/1997)
22 RESPONSE by plaintiff to motion for enlargement of time to respond to motion for partial summary judgment [18−1] (former empl) (Entered: 06/16/1997)
23 ORDER by Judge G. T. Eisele granting motion for enlargement of time until 06/23/97 to respond to motion for partial judgment [18−1] [15−1] (cc: all counsel) (former empl) (Entered: 06/19/1997)
24 RESPONSE by defendant Arch Ford Education to motion for partial summary judgment [15−1] (former empl) (Entered: 06/19/1997)
25 STATEMENT OF FACTS (Rule 29) by defendant Arch Ford Education in support of motion response [24−1] (former empl) (Entered: 06/19/1997)
26 RESPONSE by separate deft to motion to compel discovery responses by AFESC [20−1] (former empl) (Entered: 06/20/1997)
27 RESPONSE by deft Arkansas Education to motion to compel [21−1] (bsm) (Entered: 06/24/1997)
28 RESPONSE by deft to motion for partial summary judgment [15−1] (former empl) (Entered: 06/27/1997)
29 BRIEF by Atkins School District in support of response to motion [28−1] (former empl) (Entered: 06/27/1997)
30 STATEMENT OF FACTS by Atkins Sch District in support of response to motion [28−1] (former empl) (Entered: 06/27/1997)
31 SCHEDULING ORDER: (DOC) setting trial for 9:15 the week of 12/1/97; discovery due 10/6/97; status report due 10/6/97; pretrial info sheet due 11/10/97 (cc: all counsel) (former empl) (Entered: 06/27/1997)
32 MOTION by plaintiff to compel discovery responses by Atkins School District (former empl) (Entered: 06/30/1997)
33 ORDER by Judge G. T. Eisele granting pltf's motions to compel discovery [32−1] [20−1] [21−1]; deft will have until 8/15/97 to respond (cc: all counsel) (former empl) (Entered: 07/31/1997)
34 AMENDED SCHEDULING ORDER (DOC) trial set for 9:15 during the week of 3/9/98; discovery due 1/12/98; status report due 1/12/98; pretrial informaiton sheet due 2/16/98 (cc: all counsel) (former empl) (Entered: 10/20/1997)
35 MOTION by Arkansas Education to dismiss for lack of jurisdiction &in the alternative for summary judgment , for continuance pending an interlocutory appeal (former empl) (Entered: 10/21/1997)
36 BRIEF by Arkansas Department of Educaton's in support of motions to dismiss for lack of jurisdiction, for summary judgment &for continuance pending an interlocutory appeal [35−1] [35−2] [35−3] (former empl) (Entered: 10/21/1997)
37 STATEMENT OF FACTS by Arkansas Department of Education in support of motion for summary judgment [35−2] (former empl) (Entered: 10/21/1997)
38 NOTICE of change of address for attorney for pltfs by Mary Jane White to Post Office Box 358, Waukon, IA 52172−0358 (# 34 remailed to new address) (former empl) Modified on 10/28/1997 (Entered: 10/28/1997)
39 MOTION by pltfs to extend time to respond to Adoe's motion to dismiss for summary judgment (former empl) (Entered: 11/05/1997)
40 ORDER by Judge G. T. Eisele granting motion to extend time to respond to ADOE's motion to dismiss for summary judgment [39−1] [35−1] [35−2]; response due 11/25/97 (cc: all counsel) (former empl) (Entered: 11/18/1997)
41 RESPONSE by pltfs to motion to dismiss for lack of jurisdiction [35−1] and/or for summary judgment [35−2] and continuance pending an interlocutory appeal [35−3] (bkp) (Entered: 11/25/1997)

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11/24/1997 11/24/1997 11/24/1997 11/24/1997 12/05/1997 12/05/1997 12/09/1997
12/12/1997 12/12/1997 01/12/1998 01/16/1998 01/26/1998 02/13/1998 02/23/1998
03/02/1998 03/04/1998 03/12/1998 03/16/1998 03/30/1998

41 CROSS−MOTION by plaintiff for summary judgment (bkp) (Entered: 11/25/1997)
42 BRIEF by pltfs in support of cross−motion for summary judgment and response to ADOE's motion to dismiss and/or motion for summary judgment [41−1] (bkp) (Entered: 11/25/1997)
43 RESPONSE by pltfs to ADOE's statement of material facts [17−1] (bkp) (Entered: 11/25/1997)
43 STATEMENT OF FACTS (Rule 29) by pltfs in support of motion for summary judgment [41−1] (bkp) (Entered: 11/25/1997)
44 MOTION to substitute attorney Leigh Anne Yeargan in place of Tim C. Humphries as counsel for separate deft Arkansas Dept of Education (former empl) (Entered: 12/08/1997)
45 MOTION by Arkansas Education to extend time to respond to pltf's cross−motion for summary judgment (former empl) (Entered: 12/08/1997)
46 ORDER by Judge G. T. Eisele granting motion to extend time to respond to pltf's cross−motion for summary judgment until 12/12/97 [45−1] [41−1]; granting motion to substitute attorney Leigh Anne Yeargan in place of Tim C. Humphries as counsel for separate deft Arkansas Dept of Education [44−1] (cc: all counsel) EOD 12/9/97 (bmt) (Entered: 12/09/1997)
47 RESPONSE by separate deft Arkansas Department of Education to pltf's cross−motion for summary judgment [41−1] (former empl) (Entered: 12/16/1997)
48 RESPONSE by separate deft to pltf's statement of material facts not at issue for cross−motion for summary judgment [43−1] (former empl) (Entered: 12/16/1997)
49 SEPARATE DEFENDANT Arkansas Department of Education's status report (former empl) (Entered: 01/14/1998)
50 STATUS REPORT by Arch Ford Education (former empl) (Entered: 01/20/1998)
51 MOTION by separate deft Arch Ford Education Service Cooperative for continuance until the appeal has been decided (former empl) (Entered: 01/28/1998)
52 ORDER (DOC) granting oral motion for extension of time to file the pretrial information sheets &trial briefs; Pretrial Infomation Sheet due 2/25/98; Trial Brief due 2/25/98 (cc: all counsel) (former empl) (Entered: 02/13/1998)
53 MEMORANDUM OPINION &ORDER by Judge G. T. Eisele granting motions for continuance [51−1] [35−3]; motions for summary judgment are held in abeyance; granting in part, denying in part Arkansas Department of Education's motion to dismiss based on the Eleventh Amendment immunity; the remaining claims in Arkansas Department of Education's mot to dismiss immunity are held in abeyance [41−1] [35−1] [35−2] [15−1] (cc: all counsel) EOD 2/23/98 (former empl) Modified on 07/01/1998 (Entered: 02/24/1998)
54 MOTION by defendant Arkansas Education to substitute attorney Tim Humphries in place of Leigh Anne Yeargan (bmt) (Entered: 03/03/1998)
55 ORDER granting motion to substitute attorney Tim Humphries in place of Leigh Anne Yeargan for deft AR Education [54−1] (cc: all counsel) (bsm) (Entered: 03/05/1998)
56 NOTICE of appeal by defendant Arkansas Education from District Court decision [53−2] (appeal fees paid) (2 certified copies to Clerk 8USCA), (cc: counsel) (dac) Modified on 03/16/1998 (Entered: 03/16/1998)
57 AMENDED SCHEDULING ORDER: (DOC) Court trial set for 9:15 a.m. on 10/13/98; discovery due 8/18/98; status report due 8/18/98; pretrial info sheet due 9/22/98 (cc: all counsel) (bsm) Modified on 03/16/1998 (Entered: 03/16/1998)
DOCKET NOTE: original file forwarded to Clerk USCA8, per request of Joe Hagen (dac) (Entered: 03/30/1998)

Case: 4:96-cv-748 As of:10/01/2015 12:53 PM CDT 6 of 8

03/30/1998 08/18/1998 09/03/1998 09/17/1998 09/22/1998 09/22/1998
09/24/1998 09/24/1998
10/01/1998 10/23/1998 11/10/1998 11/10/1998 10/13/1999 10/13/1999
10/13/1999 10/18/1999 10/19/1999 10/29/1999 10/29/1999
12/06/1999

DOCKETING LETTER: 8 USCA Number 98−1830 ; court reporter's transcripts due 5/18/98; counsel to proceed on appendix (dac) (Entered: 03/31/1998)
58 WRITTEN STATUS REPORT by defendant Arkansas Education (dac) (Entered: 08/18/1998)
59 WRITTEN STATUS REPORT by defendant Arch Ford Education (dac) (Entered: 09/03/1998)
60 MOTION by defendant Arch Ford Education for continuance (kjp) (Entered: 09/21/1998)
61 MEMO TO FILE: finding the motion to dismiss for lack of jurisdiction moot [35−1] (former empl) (Entered: 09/23/1998)
62 ORDER by Judge G. T. Eisele ruling on the pending motions is hereby held in abeyance [41−1] [35−2] [15−1]; the Court will grant Arch Ford's motion for continuance by entering an amended shceduling order in the near future (cc: all counsel) (former empl) (Entered: 09/23/1998)
Docket Modification (Utility Event) finding the motion for continuance [60−1] moot due to entry of amended scheduling order. (mah) (Entered: 09/24/1998)
63 AMENDED SCHEDULING ORDER; Court trial set for 9:15 a.m. on 1/5/99 in Little Rock, AR; discovery due 11/10/98; pretrial info sheet due 12/15/98 (cc: all counsel) (bsm) (Entered: 09/25/1998)
64 WRITTEN STATUS REPORT by plaintiffs (former empl) (Entered: 10/01/1998)
65 MOTION by defendant Arch Ford Education to continue (dac) (Entered: 10/23/1998)
66 WRITTEN STATUS REPORT by defendant Arkansas Education (dac) (Entered: 11/12/1998)
67 ORDER by Judge G. T. Eisele granting motion to continue [65−1] (cc: all counsel) (dac) (Entered: 11/12/1998)
68 Opinion (8USCA) (dac) (Entered: 10/13/1999)
69 MANDATE from 8 USCA affirming in part, reversing in part the decision of the District Court and remanding for proceedings consistent with the opinion of this court [56−1] (USCA8 Order of 10/7/99− plaintiffs−appellees shall recover from defendants−appellants $237.80 as costs on appeal(order filed 10/13/99) (Original files remain in possession of Clerk USCA8) (dac) Modified on 10/13/1999 (Entered: 10/13/1999)
70 ORDER (8 USCA) plaintiffs−appellees shall recover from defendants−appellants $237.80 as costs on appeal (dac) (Entered: 10/13/1999)
DOCKET NOTE: 2 vols original files returned from Clerk USCA8 (dac) (Entered: 10/18/1999)
71 ORDER (8 USCA) on 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)
72 Opinion (8USCA) (dac) (Entered: 11/01/1999)
73 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)
74 LETTER/ORDER by Judge G. T. Eisele directing parties to submit a status report outlining views of the issues remaining for the Court to decide; the pltfs &Arkansas Department of Education should update their briefs to reflect any relevant changes in the law &to emphasize the issues remaining for consideration; separate defts Atkins &Arch Ford should update any filings regarding their opposition to the pltfs' motions; pltfs &separate defts should submit their positions on the necessity of a trial; status reports due no later than 1/3/00 (cc: all counsel) (former empl) (Entered: 12/07/1999)

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03/22/2000 03/23/2000 04/04/2000 04/04/2000 06/05/2000 06/05/2000 06/05/2000 06/05/2000
06/30/2000 07/24/2000 07/24/2000 12/07/2000 01/30/2001 01/30/2001 03/14/2001 03/14/2001 03/14/2001 03/16/2001 03/20/2001 03/23/2001
04/05/2001 04/09/2001 04/09/2001

75 ORDER by Judge G. T. Eisele Case consolidated with 4:99CV00748 (cc: counsel) lej) (Entered: 03/22/2000)
76 ANSWER by Atkins Sch District to first amended complt lej) (Entered: 03/24/2000)
77 MOTION by deft Arkansas Education to dismiss (bsm) (Entered: 04/05/2000)
78 BRIEF by deft Arkansas Education in support of motion to dismiss [77−1] (bsm) (Entered: 04/05/2000)
79 RESISTANCE by plaintiffs to motion to dismiss of separate deft Arkansas Department of Education [77−1] (bsm) (Entered: 06/06/2000)
80 BRIEF by plaintiffs in support of pltfs' resistance to Motion to Dismiss of separate deft Arkansas Department of Education [79−1] (bsm) (Entered: 06/06/2000)
81 MOTION by plaintiffs to enlarge the record [81−1] (bsm) (Entered: 06/06/2000)
82 MOTION by plaintiffs for partial summary judgment on IDEA claims against Atkins Schol District with additional Exhibits A−K (except E, available directly from publisher) (bsm) Modified on 06/06/2000 (Entered: 06/06/2000)
83 RESPONSE by deft Arch Ford Education to motion for partial summary judgment on IDEA claims against Atkins Schol District [82−1] (bsm) (Entered: 07/05/2000)
84 RESPONSE by deft Atkins Sch District to pltf's motion for partial summary judgment [82−1] (bsm) (Entered: 07/24/2000)
85 BRIEF by deft Atkins Sch District in support of response to pltf's motion for partial summary judgment [84−1] (bsm) (Entered: 07/24/2000)
86 MOTION by deft Arkansas Education to substitute attorney Sherri L. Robinson in place of Tim C. Humphries (bsm) (Entered: 12/08/2000)
87 Opinion (8USCA) (dac) (Entered: 01/30/2001)
88 MANDATE from 8 USCA judgment of the district court is affirmed (dac) (Entered: 01/30/2001)
89 MOTION by deft Atkins Sch District for summary judgment (bsm) (Entered: 03/15/2001)
90 BRIEF by Atkins Sch District in support of motion for summary judgment [89−1] (bsm) (Entered: 03/15/2001)
91 STATEMENT OF MATERIAL FACTS by Atkins Sch District for which no issues exist to be tried [89−1] (bsm) (Entered: 03/15/2001)
92 ATTORNEY APPEARANCE for Arkansas Education; attorney Anita P. Leonard (bsm) (Entered: 03/19/2001)
93 MOTION by deft Arch Ford Education for summary judgment of separate deft Arch Ford Education Service Cooperative (bsm) (Entered: 03/21/2001)
94 ORDER by Judge G. T. Eisele granting deft Atkins School District's motion for summary judgment [89−1], denying pltfs' motions for summary judgment [15−1] [82−1] [41−1], all other pending motions are dismissed as moot [93−1] [86−1] [81−1] [77−1] [35−2]; pltfs' complts are dismissed with prejudice as to all defts; terminating case (cc: all counsel) (bsm) (Entered: 03/26/2001)
95 NOTICE of filing petition for a writ of certiorari with Supreme Court #00−1488 (dac) (Entered: 04/05/2001)
96 MOTION by plaintiffs under various Federal Rules of Civil Procedure to reconsider the 3/23/01 Order (bsm) (Entered: 04/11/2001)
97 RESPONSE by deft Arkansas Education to pltfs' motions for reconsideration [96−1] (bsm) (Entered: 04/11/2001)

Case: 4:96-cv-748 As of:10/01/2015 12:53 PM CDT 8 of 8

04/09/2001 04/12/2001 04/27/2001
04/27/2001 04/27/2001 08/29/2001

98 BRIEF by deft Arkansas Education in support of response to pltfs' motions for reconsideration [97−1] (bsm) (Entered: 04/11/2001)
99 RESPONSE by deft Arch Ford Education to motion to reconsider 3/23/01 Order [96−1] (bsm) (Entered: 04/13/2001)
100 ORDER by Judge G. T. Eisele that Order of 3/26/01 granting deft Atkins School District's motion for summary judgment is amended by this Order to correct footnote 15 that described the procedural history of this matter; Court misstated the holding of the Eighth Circuit sitting en banc; this error does not alter the Court's conclusion (cc: all counsel) (bsm) Modified on 05/03/2001 (Entered: 04/30/2001)
101 AMENDED ORDER by Judge G. T. Eisele granting deft Atkins School District's motion for summary judgment as in Order of 3/23/01 (docket entry #94) (cc: all counsel) (bsm) (Entered: 04/30/2001)
102 ORDER by Judge G. T. Eisele denying pltfs' motion to reconsider the 3/23/01 Order [96−1] (cc: all counsel) (bsm) (Entered: 04/30/2001)
103 LETTER to court from Supreme Court, petition for a writ of certiorari is denied (dac) (Entered: 08/29/2001)

 
 197 F.3d 958 (1999)
JIM C., et al., Appellees, v.
ARKANSAS DEPARTMENT OF EDUCATION, Appellant.
No. 98-1830.
United States Court of Appeals, Eighth Circuit.
December 14, 1999.
ORDER
The petition of the United States of America for rehearing en banc is granted. This grant of rehearing en banc is limited to the spending clause issue raised by the petition. Those portions of the court's August 31, 1999, opinion and judgment covering the spending clause issue are vacated. The remainder of the court's opinion and judgment, including that portion of the opinion and judgment in Bradley v. Arkansas Dept. of Educ., 189 F.3d 745 (8th Cir. 1999) is unaffected by this order.
The clerk is directed to set this case on the court en banc's calendar for oral argument on Friday, January 14, 2000. The case will be assigned twenty (20) minutes per side.
Counsel should immediately forward twenty-one (21) copies of their previously-filed briefs and appendices for distribution to the court en banc.