Blackmon v. Springfield R-XII Sch. Dist.

• Decision Date: 17 September 1999
• Docket Number: R-XII,99-1288,Nos. 99-1163,s. 99-1163
• Citation: 198 F.3d 648
• Parties: (8th Cir. 1999) GRACE BLACKMON, A MINOR, BY AND THROUGH HER PARENT AND NEXT FRIEND, W.D. BLACKMON; W. D. BLACKMON; JULIE BLACKMON, APPELLEES, v. SPRINGFIELDSCHOOL DISTRICT, SPRINGFIELD, MO, AND ITS BOARD OF EDUCATION APPELLANT, MISSOURI COUNCIL OF ADMINISTRATORS OF SPECIAL EDUCATION (MOCASE), AMICUS CURIAE ON BEHALF, OF APPELLANT, MISSOURI FAMILIES FOR EFFECTIVE AUTISM TREATMENT; ST. LOUIS LEARNING DISABILITIES ASSOCIATION, AMICI CURIAE ON BEHALF OF APPELLEES. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 648

198 F.3d 648 (8th Cir. 1999)

GRACE BLACKMON, A MINOR, BY AND THROUGH HER PARENT AND NEXT FRIEND, W.D. BLACKMON; W. D. BLACKMON; JULIE BLACKMON, APPELLEES, v. SPRINGFIELD R-XII SCHOOL DISTRICT, SPRINGFIELD, MO, AND ITS BOARD OF EDUCATION APPELLANT, MISSOURI COUNCIL OF ADMINISTRATORS OF SPECIAL EDUCATION (MOCASE), AMICUS CURIAE ON BEHALF, OF APPELLANT, MISSOURI FAMILIES FOR EFFECTIVE AUTISM TREATMENT; ST. LOUIS LEARNING DISABILITIES ASSOCIATION, AMICI CURIAE ON BEHALF OF APPELLEES.

Nos. 99-1163, 99-1288

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: September 17, 1999

Filed: Dec. 2, 1999

Rehearing and Rehearing En Banc

Denied Jan. 25, 2000

Appeals from the United States District Court for the Western District of Missouri. [Copyrighted Material Omitted] Before McMILLIAN and Murphy, Circuit Judges, and Tunheim,¹ District Judge.

Tunheim, District Judge.

Grace Blackmon ("Grace") brought claims against the School District of Springfield, R-12 (the "School District") under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (the "IDEA"),² alleging that the individual education program ("IEP") offered to her by the School District was not reasonably calculated to provide her with a free, appropriate, public education. Grace's parents requested an impartial due process hearing for a determination of their claims pursuant to 20 U.S.C. § 1415(f). The administrative hearing panel determined that the IEP offered to Grace was appropriate, and further determined that the alternative IEP advocated by Grace's parents was inappropriate. The hearing panel also found that the School District committed no procedural violations in developing an IEP for Grace. Grace's parents appealed the hearing panel's decision to the United States District Court for the Western District of Missouri. The district court reversed the hearing panel's determinations on December 4, 1998 and ordered the School District to reimburse Grace's parents for their expenses in educating her. By Order dated January 6, 1999, the district court further awarded attorney's fees to Grace and her parents. The School District appeals from both of the district court's orders. We reverse.

I.

Grace is a minor child born July 12, 1993 who at all times relevant to these proceedings resided within the jurisdictional boundaries of the School District. Physicians have diagnosed Grace as suffering from a severe, diffuse, bilateral brain injury with hypotonic and autistic behaviors. The School District does not dispute that Grace is developmentally disabled and thus entitled to the protections and benefits of the IDEA.

When Grace was approximately fifteen months old, her parents enrolled her in a program designed to evaluate and treat her disabilities called the "First Steps" program. The "First Steps" program is operated by the Springfield Regional Center, a division of the Department of Mental Health, and is not in any way affiliated with the School District. Under this program Grace received speech and occupational therapy for four to five months, and received physical therapy for approximately ten months. Grace's parent's describe the program's approach as "traditional." Although Grace showed no significant improvement in fine motor skills based on the four to five months of occupational therapy she received, she made improvements in other areas, including significant progress in her gross motor skills.

Grace's parents were dissatisfied with her progress in the First Steps program and discontinued her enrollment on September 6, 1995. They thereafter enrolled her in an alternative program that they had been researching that is promoted by an organization called the Institutes for the Achievement of Human Potential (the "Institutes"). The Institutes advocates an intensive, home-based training program requiring individualized therapy taught by a child's parents for twelve hours per day. The Institutes's program centers around the theory that stimulation of the brain, by repetitious activity and increased supplies of oxygen and carbon dioxide, will facilitate its growth. The Institutes's methodology is controversial and has been criticized in a number of medical journals.

In order to enroll Grace in the program her parents traveled with her to Philadelphia where the Institutes is located. The Institutes conducted an evaluation of Grace and provided her parents with a plan for her development. The program requires Grace's parents to keep detailed records of her daily activities, and to travel to Philadelphia for an assessment once every six months. Between visits, Grace's parents provide her with individualized therapy for twelve hours per day based on techniques they have learned through the Institutes's literature and through training provided to them during visits to Philadelphia. Grace's communication and gross motor skills have improved significantly during her treatment under the Institutes's program, and her parents are satisfied with her progress.

When Grace was three years old, and thus old enough to receive benefits under the IDEA, her parents contacted the School District and requested that it pay for the cost of training her under the Institutes's program. The School District informed them that it would need to evaluate Grace before making a determination regarding her education placement. The School District thereafter scheduled an evaluation for Grace and provided her parents with a copy of the procedural safeguards for parents and children set forth under the IDEA, as required by 20 U.S.C. § 1415(d). The School District put together a team of six employees who evaluated Grace and observed her on two separate occasions. The evaluation included standardized testing, observing Grace at school and in the home for several hours, a review of Grace's medical records and other documents provided to the school by Grace's parents, and interviews with Grace's parents. At the Conclusion of the evaluation process, the School District produced a twenty-five page "diagnostic summary" of Grace's health, skills and abilities. Although Grace's parents disagreed with parts of the diagnostic summary, and although they were aware of their statutory right to request an independent evaluation of Grace, see 20 U.S.C. § 1415(b)(1), they did not seek an independent evaluation or request that the School District otherwise reevaluate her.

After completing Grace's diagnostic summary, the School District held a conference with her parents to review the diagnostic summary and to develop an IEP for her. Grace's parents and five School District employees attended the conference, which was held on December 10, 1996. Prior to the meeting, the School District prepared a proposed IEP for Grace with sections pertaining to Grace's "present level of performance" and "goals and objectives" tentatively completed. At the meeting, the School District went through each of these sections item-by-item with Grace's parents and asked them whether they agreed with the proposed statements. Grace's parents in general indicated their agreement.

The School District then engaged in a Discussion with Grace's parents about her appropriate placement. The School District indicated that it recommend Grace be placed in a "reverse mainstream" classroom³ and that she additionally receive individualized speech, occupational and physical therapies. In addition to this option, the School District also discussed with Grace's parents the possibility that the School District would provide Grace with in-home individualized training, as well as the proposal that Grace's parents advocated, namely, that the School District reimburse them for Grace's in-home training through the Institutes. The School District nevertheless rejected these options because they would not provide Grace with the ability to interact with other children.

When Grace's parents learned of the School District's recommendation they became upset and left the IEP meeting before a Discussion of Grace's placement could be completed. In a letter to the School District dated December 25, 1996, Grace's parents revealed that they were upset because the School District did not recommend the Institutes's program, stating:

[W]e thought the evaluators were simply going through the formalities before announcing that they thought our work with the Institutes was the ideal educational plan for Grace and we had their total support. . . . So, when the evaluators recommended the same program (we're pretty confident of this) for Grace they would have recommended before ever meeting us, we were totally outraged (and still are).

(Appellant's App., at 257.)

The School District provided Grace's parents with a written statement on December 11, 1996 confirming its decision to offer Grace education in a reverse mainstream classroom along with individualized speech, occupational and physical therapies. The School District further provided Grace's parents with another notice of the procedural safeguards under the IDEA. Subsequent efforts to resolve the differences between the School District and Grace's parents were unsuccessful. On December 20, 1996, the School District held an informal resolution conference with Grace's parents at its administrative offices that did not result in an agreement between the parties.

On January 3, 1997, Grace's parents exercised their rights under the IDEA to request an impartial due process hearing. In accord with Missouri state law, Mo. Rev. Stat. § 162.961, the hearing panel was comprised of three individuals with knowledge or training involving children with disabilities. Under the terms of the Missouri statute, the School District selected one member, Grace's parents selected another member, and the Missouri Department of Elementary and Secondary Education appointed an attorney to serve as the chairperson. Separate counsel represented both the School District and Grace's parents at...