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P.K.W.G. v. I.S.D. No. 11: US District Court : EDUCATION - district met IDEA obligations regarding student's IEP, etc.; who has burden of persuasion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
P.K.W.G., a minor child, by and
through his Parent and Natural
Guardian, Gwendolyn Gilmore,
Plaintiffs,
MEMORANDUM OPINION
v. AND ORDER
Civil No. 07-4023 ADM/AJB
Independent School District No. 11,
Anoka-Hennepin School District;
Anoka-Hennepin Board of Education;
Mark Sullivan, Chair and Executive
Officer; and Roger M. Giroux,
Superintendent, in their representative
capacities,
Defendants.
______________________________________________________________________________
Amy J. Goetz, Esq., School Law Center LLC, St. Paul, MN, argued on behalf of Plaintiffs.
Timothy R. Palmatier, Esq., Kennedy & Graven, Chartered, Minneapolis, MN, argued on behalf
of Defendants.
______________________________________________________________________________
I. INTRODUCTION
On February 28, 2008, the undersigned United States District Judge heard oral argument
on the Cross-Motions for Judgment on the Record of P.K.W.G. (the Student), a minor child,
by and through his parent and natural guardian, Gwendolyn Gilmore (the Parent) (collectively
Plaintiffs) and Defendants Independent School District No. 11, Anoka-Hennepin School
District; Anoka-Hennepin Board of Education; Mark Sullivan; and Roger M. Giroux
(collectively the District) [Docket Nos. 17 and 13]. Plaintiffs seek reversal of a decision by
Administrative Law Judge Linda F. Close (the ALJ), pursuant to the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. 1400-1487. The ALJ determined that the
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2
District complied with its obligations under IDEA by providing the Student a free appropriate
public education during the 2005-2006 school year. For the reasons set forth herein, Plaintiffs
Motion is denied and the Districts Motion is granted.
II. BACKGROUND
A. The IDEA
The IDEA requires a school district that accepts federal funds to provide disabled
children within its jurisdiction a free appropriate public education (FAPE). 20 U.S.C.
1400(d)(1)(A), 1412(a)(1)(A). To provide a FAPE, a school must formulate an
individualized education program (IEP) tailored to the disabled childs unique needs. 20
U.S.C. 1412(a)(4), 1414(d)(1)(A).
Parents who are dissatisfied with the substance or implementation of their childs IEP
may request a state administrative due process hearing before an independent hearing officer.
20 U.S.C. 1415(f); Minn. Stat. 125A.09 (2002). In Minnesota, a party may appeal the
hearing officers decision to either federal district court or the state court of appeals. 20 U.S.C.
1415(i)(2)(A); Minn. Stat. 125A.091, subd. 24.
B. Factual Background
The due process hearing in this matter was held on April 23 and 24, and May 16 and 17,
2007. The ALJs June 26, 2007, decision, which is attached as Appendix A, thoroughly sets
forth the relevant facts. Therefore, only a shorter account of the relevant facts is provided here.
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1 All references are to the exhibits listed in the Certified Inventory of the Administrative
Record [Docket No. 8].
3
1. The Students Education History Prior to the 2005-2006 School Year
The Student lives within the District with his mother and siblings. Ex. 73 at 0018.1 The
Student has an extensive history of behavior and learning problems. Dr. Richard Ziegler (Dr.
Ziegler), a neuropsychologist, has diagnosed the Student with Attention Deficit Hyperactivity
DisorderHyperactive Impulsive Type (by history); Reading Disorder/Dyslexia; Disorder of
Written Expression; Mathematics Disorder; and Oppositional Defiant Disorder. Id. at 0025.
In early elementary school, the Student was placed in a Level IV Emotional Behavioral
Disorders (EBD) program and he received homebound schooling beginning at age seven. Ex.
74 at A0416. By the fifth or sixth grade, while enrolled in the ECHO Program at Southwood
Elementary School, the Students behavior caused him to be physically restrained at times.
Ex. 73 at 0014.
In the fall of 2002, the Student transferred to the Explore Program at Eliot Middle School
for his seventh grade year. Ex. 74 at A0416. Because of poor attendance, behavior, and
progress, the Students IEP team switched him from full-day to half-day attendance. Id. During
his ninth grade school year in 2004-2005, the Students behavior included verbal and physical
abuse of students and teachers; throwing books, papers, and furniture when he was angry;
leaving the classroom and wandering about the school building; engaging in six to seven fights;
and engaging in inappropriate sexualized behavior, such as touching a female students chest and
making sexual comments and gestures. Ex. 73 at 0014, 0019; Ex. 77 at A0047. Staff at the
Explore program implemented police interventions, resulting in referrals of the Student to the
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juvenile justice system. Ex. 74 at A0416.
2. The Students Education at the Bell Center
In May 2005, the Parent requested a due process hearing. The matter was settled without
a hearing when the Parent and the District agreed to a new IEP for the Students tenth grade
2005-2006 school year. Ex. 46. The 2005-2006 IEP was developed based on a May 2005
independent educational evaluation by Dr. Ziegler and a June 2005 functional behavioral
assessment by Jan Ostrom (Ostrom), the CEO of Brih Design, an independent consulting firm
specializing in behavior analysis. Ex. 77; Ex. 113 at 502-03. The 2005-2006 IEP was the first
IEP that attempted to address the Students behavioral and learning disability issues. Ex. 113 at
369-71. The 2005-2006 IEP set goals and objectives for reading, writing, math, and social skills
development such as understanding boundaries and peer relationships. Ex. 46 at A0122-26. The
IEP called for individual and group counseling, music therapy, paraprofessional support, and
behavioral support. Id. at A0127-29. The IEP provided that the Student would receive these
services at the Bell Center, a Setting IV program in Coon Rapids, Minnesota, for students with
serious emotional and behavioral needs. Ex. 46; Ex. 115 at 911. The Students Parent consented
to the 2005-2006 IEP. Ex. 46 at A0116.
During the summer of 2005, the District provided the Student with extended school year
(ESY) services at the Bell Center. Ex. 115 at 920. The Student received one-and-a-half hours
of daily instruction during school days for six weeks. Id. The services consisted of academic
instruction, music therapy, and physical education. Id. at 920-21.
Dorothy Webb (Webb) was the Students case manager and teacher during the 2005-
2006 school year. Ex. 112 at 126-27. Webb was assisted in the classroom by two
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paraprofessionals. Id. at 118. The Student and six other students spent the majority of their day
in Webbs classroom. Id. at 119. Each student had a desk located in a central area with the other
students desks, and each student was also assigned a carrel where the student could sit alone.
Id. at 116.
Bell Center staff use a team approach to implement a students IEP. Id. at 129. The team
responsible for implementing the Students IEP included Program Supervisor Vickie Pitney
(Pitney), Webb, the two paraprofessionals, Behavior Intervention Specialist Julie Maass-
Hanson (Maass-Hanson), High School Lead Laura Hendricks, and Counselor Heather Brenden
(Brenden). Ex. 46 at A0137; Ex. 114 at 664, 672-73, 816. The team developed a behavior
intervention plan (BIP) to decrease the Students inappropriate verbal comments, social antics,
physical aggression, property destruction, sexualized behavior, and non-compliance with staff
requests. Ex. 46 at A0133-39. The BIP provided that [s]taff will use differential reinforcement
by attending to [the Student] when he is exhibiting desirable behaviors and by refrain[ing]
from attending to [the Student] when he is exhibiting less desirable behavior unless it is of safety
concern. Id. at A0135. When it was necessary to redirect the Student, staff was to do so
without discussing the Students behavior or engaging in a power struggle. Id. Additionally, the
BIP provided that the Student would have access to a smaller one-to-one learning environment
that he could go to when he became distracted or otherwise unable to meet expectations. Id. If
the Student wandered off, a paraprofessional would follow him and allow him to wander for ten
minutes as long as he did not cause a safety issue. Id. at A0136. If the Student presented a
safety issue or would not return to a designated area after ten minutes, he would be day-ended
(i.e. sent home). Id. at A0135. The Students IEP provided that his school day would end at
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1:25 p.m., one class period earlier than full day. Id. at A0131.
During the first quarter of the 2005-2006 school year, the Student was motivated and
performed beyond expectations. Ex. 112 at 193-94. The Students November 9, 2005, first
quarter report card reflected As in Self Improvement, Physical Education, and Math, a B in
Science, and a C in English. Ex. 48. The goal summary section of the accompanying progress
report reflected a range of eighty-four to ninety-five percent for the ten behavior goals listed in
the IEP: following directions; ignoring others; appropriate language; show respect; verbal
physical aggression; keep current; positive interaction; on-task; use good social skills; and
proper use of materials. Ex. 49.
As specified by the IEP, the Students Core team held monthly meetings in September,
October, and November 2005 with the Parent and the Student to review the Students academic
and behavioral performance. Ex. 46 at A0129; Exs. 50-52. During these meetings, the Parent
and the Bell Center staff communicated well and everyone was encouraged by the Students
performance. Ex. 112 at 45, 190-92. Based on the Students performance and the Students
desire to attend a full day of classes, the Core team and the Parent agreed that the Student would
attend a full day beginning in the second quarter. Ex. 53. After attending the first two Core
team meetings, Ostrom, the independent consultant, ceased attending because she believed she
was no longer needed. Ex. 113 at 541-42. She notified Bell Center staff that they should call her
if academic performance or behavioral issues occurred. Id. at 612.
During the second quarter, the Students academic performance and behavior began to
deteriorate. Ex. 112 at 211. His January 25, 2006, report card reflected a B in Math, a D+ in
Horticulture, Ds in Science and Art, and an F in English. Ex. 55. Webbs comments in the
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accompanying progress report note that the Student was frequently off task and disrespectful, he
frequently left class to go to the nurses office or the bathroom, and he did not complete his
homework assignments. Ex. 54. Despite these comments, the goal summary section of the
report card reflected only slight decreases in the percentages for the ten behavior goals. Whereas
the range of the November 9, 2005, goal summary was eighty-four to ninety-five percent, the
range of the January 25, 2006, goal summary was seventy-nine to ninety-three percent. Compare
Ex. 49 with Ex. 54.
The Students grades and behavior further deteriorated during the remainder of the 2005-
2006 school year. His February 27, 2006, progress report reflected Fs in all six of his classes.
Ex. 56. The comments section noted that the Student was engaging in oppositional behavior; he
was not following school rules; he was wandering; he was day-ended twice and he received
several in-school suspensions for not following school rules and for refusing to work in class.
Id. The range for his goal summary fell to sixty-one percent to eighty-three percent. Id. On
February 28, Bell Center staff revised the Students BIP to reflect the increasing behavior
problems. Ex. 61. The revised BIP did not include new interventions. Id.
The Students March 29, 2006, third quarter report card reflected a C, a C-, a D, and three
Fs. Ex. 58. The comments section noted that the Student had disrespected students and staff
by using unacceptable names and profanity when addressing them. Id. The Student had
refused to work or follow directions, he frequently wandered, and he often disrupted class. Id.
The Students May 22, 2006, progress report reflected that the percentages for his
behavioral goals had fallen to between forty-seven percent and sixty-five percent. Ex. 59.
Webbs comments noted that the Student had difficulty functioning in the self-contained
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8
classroom, he was extremely disruptive and unable to identify his wants or needs, and he often
used profanity and acted out. Id. The Students fourth quarter report card listed six Fs. Ex. 60.
The Students increasing behavioral issues were also reflected in behavior incident
reports and critical incident reports compiled by Bell Center staff. Staff documented 91 behavior
incidents for the Student in the first quarter, 103 incidents in the second quarter, 227 incidents in
the third quarter, and 304 in the fourth quarter. Ex. 85 at A0243. Additionally, Bell Center staff
compiled critical incident reports of situations where the Students behavior caused a safety
issue, a significant disruption of the learning environment, or resulted in a suspension from
school. Ex. 115 at 951. Staff documented one critical incident regarding the Student in the first
quarter, none in the second or third quarters, and five in the fourth quarter. Ex. 88.
Beginning in February 2006, the Bell Centers police liaison officer interacted with the
Student during some of his behavior incidents. The police liaison officer was present during
three incidents in February, three incidents in March, one incident in April, five incidents in
May, and two incidents in June. Ex. 115 at 967; Ex. 64 at C0118, C0160; Ex. 68 at C0007-08,
C0010, C0014, C0016-17; Ex. 71; Ex. 88 at B0123, B0137-39, B0143, B0148. Bell Center staff
requested the officers presence during two incidents in February and one incident in April. Ex.
68 at C0007-08, C0012. On the other occasions staff apparently did not request the officers
assistance but the officer was present in the location where the Student wandered and she
responded because she perceived safety issues. In February or March 2006, Pitney and Maass-
Hanson requested that the police liaison officer remove herself from the Students vicinity
whenever possible because the Student was intentionally seeking out the officer to provoke a
response and engage her in a power struggle. Ex. 114 at 841-42; Ex. 115 at 968. The officer
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9
agreed to remove herself unless she perceived a safety issue. Ex. 114 at 841-42. The officer
subsequently ignored many of the Students provocations. Id. at 811; Ex. 115 at 968.
Julie Maass-Hanson, the behavior interventionist at the Bell Center, met occasionally
with the Student during the first two quarters and more often in the third and fourth quarters as
the Students behavior deteriorated. Ex. 114 at 832-33. In the spring of 2006, Maass-Hanson
prepared a draft BIP. Ex. 114 at 849; Ex. 83. Based on data from the Students behavior
incidents, Maass-Hanson determined that the Bell Center staffs two most frequent methods of
interventionignoring negative behavior and redirecting the studentwere both as likely to
result in escalation of the behavior as they were likely to result in the negative behavior stopping.
Ex. 114 at 890. She testified that staff called the police liaison officer only when they believed
they could not safely control a situation. Id. at 837-38.
Heather Brenden, the social worker at the Bell Center, was the Students counselor. Id.
at 664, 670. Brenden spent time with the Student in the classroom and the gym, and she also met
with the Student weekly for one-on-one counseling. Id. at 672-74. Brenden felt she was unable
to develop a close bond with the student because she never learned about the Students home
life. Id. at 693. Brenden and Webb met informally to discuss issues regarding the Students
behavior, and staff met formally from time to time. Id. at 679-80.
During the school year, the Bell Center staff implemented interventions and adaptations
to address the Students deteriorating behavior and performance. Webb used a visual schedule
and sound field system in the classroom, but abandoned the sound field system when the Student
expressed his displeasure with it. Ex. 112 at 163-64. In February 2006, Webb spoke with the
Parent about having an advocate mentor the Student. Id. at 227. The Parent agreed and the
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2 Unfortunately, the effectiveness of a given intervention was unpredictable from one day
to the next. Ex. 114 at 680.
10
advocate, Kenny Maxey (Maxey), began meeting with the Student once a week. Id. at 228.
The Student and the advocate engaged in activities such as shootings hoops so that they could
develop a positive relationship. Id. at 228-29. The Student enjoyed these meetings and
eventually the Student and Maxey met twice a week. Id. at 228-32.
The staff used differential reinforcement, attempted to ignore negative behavior, and
redirected the Student and gave him space to make his own decisions, rather than engage in
power struggles. Ex. 114 at 683-84.2 Staff sought the Students views and allowed him to go to
a separate room for one-on-one instruction whenever he desired. Id. at 682-86. The staff added
physical education to the Students schedule. Id. at 800. In March 2006, the Bell Center staff
adjusted the Students schedule, with the Parents consent, so that he would start his day with
one-on-one instruction before entering Webbs classroom. Ex. 112 at 203, 235. In May 2006,
the staff moved the student from Webbs self-contained classroom to a mainstream schedule so
that he could experience more variety by moving among different classrooms. Ex. 114 at 734.
In February 2006, the Student began one-on-one after school tutoring for four hours per
week at the Sylvan Learning Center. Ex. 115 at 1117, 1134. Christel Petrowitsch
(Petrowitsch) worked with the Student on reading and math. Id. at 1117. Although the
Student sometimes refused to work, Petrowitsch testified that he did not demonstrate any
significant behavior problems. Id. at 1132. The Student did not attend Sylvan during the
summer of 2006, but he resumed in the fall. Id. at 1111-12. The District paid for the tutoring at
Sylvan Learning Center. Id. at 1123.
During the 2005-2006 school year, Bell Center Staff communicated with the Parent
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through telephone calls, progress reports, and meetings. Ex. 112 at 245-46. As previously
described, all parties were positively engaged during the first two quarters. However, at Core
team meetings in the third and fourth quarters, when the Students grades and behavior were in a
downward spiral, the Parent was less engaged, used negative body language, wore sunglasses,
and left meetings early. Ex. 114 at 859; Ex. 115 at 933-35. Contrary to December 2005 when
the Parent came to school and intervened to help the Student get focused, she did not follow up
on the Core teams suggestion in February 2006 that she make impromptu visits to the Bell
Center to observe the Student at school. Ex. 112 at 212-14; Ex. 115 at 946; Ex. 87. In March
2006, Webb spoke to the Parent about ESY classes for the summer. Ex. 112 at 215-16. The
Parent never responded to the ESY inquiry. Id. at 216.
The record reflects that the Parent became disengaged around February when the Student
began having encounters with the police liaison officer. Ex. 114 at 899. The Parent testified that
Bell Center staff should not have involved the police unless the Student jeopardized the safety of
others. Ex. 112 at 48-50. The Parent testified that she requested that Bell Center staff call her
first before involving the police. Id. at 50-51. Another cause of the Parents disengagement may
have been the February 2006 filing by the Bell Center of a truancy report with the Anoka County
Corrections Department. Exs. 66-67. Webb and Pitney believed that the Bell Center was
required by state law to record and report the Student as truant. Ex. 112 at 298; Ex. 115 at 1006.
3. The June 2006 IEP
In June 2006, the Bell Center team prepared a new IEP based on an updated functional
behavioral assessment and a comprehensive reevaluation conducted by Bell Center staff. Ex.
114 at 853-56; Exs. 80, 85. Although Webb and Pitney contacted the Parent to arrange an IEP
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meeting, the Parent failed to follow up on scheduling a meeting. Ex. 115 at 971. Bell Center
staff notified the Parent by telephone and by mail that a June 15 IEP meeting was scheduled. Ex.
90 at A0287-88. The Parent and the Student did not attend. Id. at A0309. Bell Center staff
revised the IEP and the BIP at the June 15 meeting. Ex. 90.
4. The Parents Request for a Due Process Hearing and Subsequent Events
The Student returned to the Bell Center for the 2006-2007 school year but the Parent
withdrew him after the Student was arrested on September 15, 2006. Ex. 115 at 981-85.
Officers arrested the Student after he disobeyed instructions to leave the lunch room, kicked
recycling bins, and resisted the police liaison officers attempt to place him in handcuffs. Id.
On September 20, 2006, Plaintiffs requested a due process hearing from the District. Ex.
1. Plaintiffs alleged a lack of appropriate evaluation, services, and placement, and they sought
an independent educational evaluation, an IEP that included placement in an individual tutoring
program, and compensatory education services. Id. The parties resolved most of these issues
before the hearing. As a result of the settlement, the District provided homebound tutoring and
continued to provide tutoring at Sylvan Learning Center. Ex. 74 at A0415. The unresolved
issue was whether the District should be required to provide compensatory education services
because of the shortcomings Plaintiffs alleged regarding the 2005-2006 school year.
The ALJ requested that Dr. Ziegler update his May 2005 neuropsychological
examination of the Student and asked Ostrom to update her June 2005 functional behavioral
assessment. Dr. Zieglers January 22, 2007, report attributed the Students declined functioning
in the 2005-2006 school year to:
(1) Bell Center staff failed to consult with Ostrom after the Students performance
began to deteriorate. Ostrom may have been able to provide unique insight
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because she had conducted the 2005 functional behavior analysis. Ostroms
presence on the Core team as an independent consultant might have increased the
Parents confidence.
(2) The Student perceived changes in how the staff treated him, but neither he nor his
mother effectively articulated the Students perceptions to the Bell Center staff.
(3) The level of trust declined between the Student, the Parent, and the Bell Center
staff. The Parent viewed the involvement of the police liaison officer as a
replay of the failures at the Explore Program. As a result, the Parents
confidence in Bell Center staff eroded and the Students motivation to perform
may have decreased when he perceived his Parents diminished trust.
(4) The Parent failed to follow through on Dr. Zieglers 2005 recommendation that
the Student receive psychiatric therapy or medication, and that the student receive
sexuality specific treatment to increase the Students awareness of sexually
appropriate boundaries.
Hrg. Ex. 74 at A0431-33. Dr. Ziegler recognized that Bell Center staff attempted numerous
interventions to improve the Students functioning and characterized these efforts as laudable.
Id. at A0430-A0431. Dr. Zieglers report noted that testing of the Student in January 2007
revealed improvements in the Students raw scores in all academic domains and on measures of
higher order receptive and expressive language, when compared to similar testing in May 2005.
Id. at A0433. While still lagging well behind his peers, the Students standard scores declined
slightly in reading but improved slightly in math, written expression, and language. Id. at
A0437; Ex. 113 at 487. Dr. Ziegler noted that test scores suggested that the student benefited,
at least to some degree, from the services that he received at Bell Center, from his homebound
tutoring, and from the tutoring . . . at Sylvan Learning Center[]. Ex. 74 at A0433.
Ostroms January 22, 2007, report found that the frequency and severity of the Students
behavioral incidents actually decreased during the 2005-2006 year at the Bell Center as
compared to the 2004-2005 year at the Explore program. Ex. 78 at A0443; Ex. 113 at 604. The
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large number of incidents reported by the Bell Center was due to its method of reporting the
ongoing behavior within a short time span as a series of separate incidents. Ex. 113 at 607.
Ostroms updated functional behavioral assessment identified two variables as responsible for
the decline in the Students behavior during the 2005-2006 school year. Ex. 78 at A0450-51.
First, Ostrom identified a lack of adequate communication and collaboration in supporting the
student. Id. at A0450. The Student was more likely to participate at school when his Parent
supports the educational efforts. Id. Collaboration between the Parent and the Bell Center staff
was undermined because the Student told his Parent stories about incidents that were
significantly different from the perceptions of the Bell Center staff. Id. Second, Ostrom
concluded that the presence and intervention of the police liaison officer may have contributed to
the Students deteriorating behavior. Id. at A0451. The Student was aware of and emboldened
by the history of litigation regarding police intervention. Id. As a result, the Student sought out
and taunted the police liaison officer. Id. Ostrom was concerned that the Student was taunting
the officer in an effort to negatively impact communication and collaboration between Bell
Center staff and his Parent. Id.
At the hearing, the ALJ heard the testimony of the Parent, Webb, Dr. Ziegler, Ostrom,
Brenden, Maass-Hanson, Pitney, and Petrowitsch. The ALJ concluded that the District satisfied
its procedural and substantive obligations under IDEA for the 2005-2006 school year.
Therefore, the ALJ found the Student was not entitled to compensatory education services. On
September 19, 2007, Plaintiffs timely initiated this action challenging the ALJs decision.
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III. DISCUSSION
A. Standard of Review
In a motion for judgment on the record brought pursuant to the IDEA, a district court
must review the state administrative record and grant such relief as it deems appropriate based
on the preponderance of the evidence. 20 U.S.C. 1415(i)(2); CJN ex rel. SKN v. Minneapolis
Pub. Sch., 323 F.3d 630, 636 (8th Cir. 2003). Although a district court should independently
determine whether the child has received a FAPE, it must give due weight to agency decisionmaking.
CJN, 323 F.3d at 636. IDEA does not require that a school either maximize a
students potential or provide the best possible education at public expense. Fort Zumwalt Sch.
Dist. v. Clynes, 119 F.3d 607, 612 (8th Cir. 1997). Rather, a school district satisfies its
obligations under the IDEA if: (1) it complies with the Acts procedural requirements and (2) the
IEP is reasonably calculated to enable the child to receive educational benefits. Bd. of Educ.
of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). A party
challenging the implementation of an IEP must demonstrate that the school authorities failed to
implement a substantial or significant portion of the IEP. Neosho R-V Sch. Dist. v. Clark, 315
F.3d 1022, 1027 n.3 (8th Cir. 2003) (noting distinction between a challenge to an IEP and a
challenge to the implementation of an otherwise appropriate IEP).
B. Burden of Persuasion
Consistent with Minnesota law, the ALJ placed the burden of persuasion on the District
during the due process hearing. Minn. Stat. 125A.091, subd. 16. The District argues this was
error under Eighth Circuit precedent. The Supreme Court has held that where state law is silent,
the burden of proof in a due process hearing under IDEA is properly placed on the party seeking
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16
relief. Schaffer v. Weast, 546 U.S. 49, 126 S. Ct. 528, 537 (2005). The Supreme Court did not
address whether a State could always place the burden on the school district, as Minnesota does
through Minn. Stat. 125A.091, subd. 16. The Eighth Circuit has held that Schaffer requires the
burden of proof in a due process hearing under IDEA to be placed on the party seeking relief
even in states that purport to place the burden always on school districts. M.M. ex rel. L.R. v.
Special Sch. Dist. No. 1, 512 F.3d 455, 458-59 (8th Cir. 2008); Sch. Bd. of Indep. Sch. Dist. No.
11 v. Renollett, 440 F.3d 1007, 1010 n.3 (8th Cir. 2006). Therefore, federal law preempts Minn.
Stat. 125A.091, subd. 16 to the extent it places the burden of proof in an IDEA due process
hearing always on the school district.
Placing the burden of proof on the incorrect party is reversible error unless the error
relates to an immaterial issue. M.M., 512 F.3d at 459 (quotation omitted). Here, the ALJ erred
in placing the burden of proof on the District but the error was harmless because the District
prevailed. Nevertheless, the District requests that the burden of persuasion be placed on
Plaintiffs for purposes of this Courts review. Given the strength of the Districts evidence, this
Court finds the outcome of its analysis is the same regardless of the placement of the burden of
persuasion.
C. Whether the District Complied With the IDEA
1. Alleged Procedural Violations
Plaintiffs allege that the District committed a number of procedural violations of IDEA
that denied a FAPE to the Student.
a. Progress Reports
Plaintiffs assert that the District committed a procedural violation of IDEA and analogous
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17
Minnesota law by failing to provide timely and adequate progress reports to the Parent. See Pls.
Mem. in Supp. of Mot. for J. [Docket No. 19] at 27-28; 20 U.S.C. 1414(d)1)(A)(i)(iii); Minn.
R. 3525.2810, subp. 1(A)(9). The ALJ concluded that the District provided timely and adequate
progress reports to the Parent. ALJs Decision at 27.
The record reflects Bell Center staff sent the Parent progress reports and report cards
twice per quarter. Exs. 47-49, 54-56, 58-60. In addition to listing the Students grades, these
reports documented the Students performance in the ten behavioral goals identified in the IEP,
and the reports included comments regarding the Students behavior. In addition to the report
cards and progress reports, Webb made at least sixty phone calls to the Parent regarding issues at
school. Ex. 62. Webb sent the Parent daily tracking sheets when the Parent requested them. Ex.
112 at 245. With the exception of December 2006, the Core team met each month from
September 2005 through May 2006. Ex. 115 at 926.
On this record Plaintiffs argument that the District did not provide timely and adequate
progress reports to the Parent during the 2005-2006 school year is rejected.
b. Use of Redirection
Plaintiffs next argue that the District failed to faithfully implement the 2005-2006 IEP
and BIP after the first quarter. To prevail on this claim Plaintiffs must demonstrate that the
District failed to implement a substantial or significant portion of the IEP. Neosho R-V Sch.
Dist., 315 F.3d at 1027 n.3.
Plaintiffs contend that Bell Center staff did not implement the positive behavioral
strategies identified in the BIP. Although Plaintiffs concede that the District appropriately
implemented the IEP during the first quarter, they argue that behavior incident reports from the
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18
first quarter show that the only intervention Bell Center staff employed was redirecting the
Student. Pls. Mem. at 9-10; Ex. 64 at 129-32. However, Plaintiffs overlook other reports from
the first quarter reflecting that Bell Center staff employed other interventions, such as time-outs,
ignoring the Students negative behavior, and allowing him to leave the classroom to receive
one-on-one services. Ex. 64 at 0020, 0022, 0026, 0028-29, 0034-35, 0042.
Additionally, Brenden and Maass-Hanson testified that throughout the 2005-2006 school
year, Bell Center staff used interventions such as differential reinforcement, ignoring negative
behavior, allowing the Student to leave the classroom and receive one-on-one services, sending
the Student to receive one-on-one services, and listening to the Students perspective on a given
situation. Ex. 114 at 677-89, 836-37. Pitney and Brenden testified that despite the use of these
interventions, redirection was often necessary and the staff followed the strategy outlined in the
BIP for redirecting the Student. Ex. 114 at 683; Ex. 115 at 1050.
Plaintiffs argue that other behavior code report spreadsheets are evidence that Bell Center
staff did not implement the interventions listed in the BIP. Pls. Mem. at 11 n.8. However, both
Ostrom and Brenden testified that Bell Centers records generally omitted proactive strategies
that were employed. Ex. 113 at 615; Ex. 114 at 755. Although better documentation of the
proactive strategies would be helpful, the Court finds based on all the evidence in the record that
the Bell Center staff adequately implemented the intervention strategies in the IEP and BIP.
c. Provision of One-On-One Services
Plaintiffs argue the District did not provide one-one-one instruction called for by the
2005-2006 IEP. Pls. Mem. at 15. The IEP stated that [the Student] needs access to a smaller
alternative learning environment for parts of the day for direct 1:1 academic instruction . . . when
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19
he is struggling to follow through on expectations or appears to be highly distracted. Ex. 46 at
A0135. The IEP directed that the Core team should increase the Students one-on-one services if
the frequency of problem behaviors increased. Id. at A0137. The IEP did not specify an amount
of one-on-one instruction the Student should receive.
Plaintiffs allege that Bell Center staff improperly reduced the Students level of one-onone
instruction during the first quarter. Pls. Mem. at 15-17. However, Plaintiffs citation to the
record does not support this allegation, and there does not appear to be testimony or
documentary evidence that the Bell Center reduced the Students one-on-one instruction time.
Id. at 16; Ex. 112 at 199. Plaintiffs also allege that Bell Center staff failed to increase the
Students one-on-one instruction when behavioral issues increased in subsequent quarters. Pls.
Mem. at 15-17. However, in March, Bell Center staff proposed that the Student begin his day
with one-on-one instruction and the Parent agreed. Ex. 112 at 235-236. Further, Brenden
testified the Student frequently received one-on-one instruction. Ex. 114 at 815.
On this record, the Court finds that the District provided one-on-one instruction
consistent with the terms of the 2005-2006 IEP.
d. Failure to Reevaluate the Student and to Revise the IEP
Plaintiffs also argue the District violated IDEA by failing to reevaluate the Student or
adequately review and revise the Students IEP. Pls. Mem. at 27. Regarding reevaluation, the
Court finds the record supports the ALJs conclusion that the District reevaluated the Student as
necessary. IDEA requires a school district to reevaluate a child if the district determines that the
educational needs of the child warrant a reevaluation. 20 U.S.C. 1414(a)(2)(A)(i). A
reevaluation must occur at least once every three years, but not more than once a year unless the
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20
parent consents. 20 U.S.C. 1414(a)(2)(B). Immediately prior to the Students enrollment at
the Bell Center, the District paid for an independent reevaluation of the Student in the summer of
2005. The District began a functional behavioral assessment in the spring of 2006. Ex. 85; Ex.
114 at 849-56. The District performed another reevaluation in June 2006. Ex. 80. Plaintiffs
contend that the District should have conducted a reevaluation in early 2006 because of the
Students deteriorating academic and behavioral performance. However, the Students learning
problems and behavioral issues were identified in the reevaluation that was completed
immediately prior to the 2005-2006 school year. On this record, the Court finds the frequency of
the Districts reevaluations did not violate IDEA.
Plaintiffs also argue the District did not adequately review and revise the Students IEP.
IDEA specifies a school district must review a childs IEP periodically, but not less frequently
than annually. 20 U.S.C. 1414(d)(4)(A)(i). A school district must revise an IEP as
appropriate to address circumstances such as a lack of progress. 20 U.S.C.
1414(d)(4)(A)(ii)(I). After reviewing the record, the Court finds the Plaintiffs have failed to
demonstrate that the District did not adequately review and revise the IEP. Although the
Students IEP was not formally revised during the 2005-2006 school year, the District made
several attempts to adjust the educational services within the framework of the existing IEP.
Some examples are the addition of a mentor advocate in February 2006, the increased
involvement of Maass-Hanson beginning in February 2006, the shift in March 2006 to begin the
Students day with one-on-one instruction, and the Students shift to a schedule with different
classrooms in May 2006. Given the success the Student experienced in the first quarter, and the
fact that the 2005-2006 IEP and BIP addressed the problematic behaviors that occurred in the
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21
last three quarters, it was entirely reasonable for the staff to work within the existing IEP. The
District did not violate IDEA by failing to modify the IEP during the 2005-2006 school year.
e. Referral to the Police Liaison Officer and Truancy Reporting
The ALJ determined that [t]he core of [Plaintiffs] case is [the] contention that the
Districts involvement of the police liaison deprived the Student of FAPE. ALJs Decision at
22. Based on the few incidents during which Bell Center staff requested assistance from the
police liaison officer, the Students repeated attempts to provoke the officer, and Pitney and
Maass-Hansons request that the Police Liaison officer try to avoid interacting with the Student,
the ALJ found that the District neither improperly utilized nor overutilized the police liaison
officer and other authorities. Id. at 22-24.
Plaintiffs respond that the use of police officers is not the core of their case, but is instead
a symptom of the Districts alleged failures to implement the Students IEP and BIP. Pls. Mem.
at 25. However, Plaintiffs continue to assert that the District overused police officers and
improperly referred the Student for truancy prosecution. Id. After reviewing the record, the
Court concurs with the ALJs conclusion that Bell Center staff did not overuse the police liaison
officer.
Regarding truancy prosecution, the District has argued that it was required by law to
report the Student when he missed too much class time due to his wandering and other
behaviors. Plaintiffs contend that Minnesota law does not require truancy reporting of a student
with behavioral disabilities that cause him to wander. Plaintiffs argue it was implicit in the
settlement that led to the 2005-2006 IEP that the District would not refer the Student for truancy
proceedings in juvenile court. However, the IEP does not explicitly prohibit truancy referrals.
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22
Although Ostrom was critical of the truancy referrals, this Court finds that the truancy referrals
did not amount to a substantial failure to implement the IEP. Ex. 113 at 627.
f. Failure to Consult With Brih Design
The 2005-2006 IEP stated that the Bell Center staff would include Ostrom in Core team
meetings. Ex. 46 at A0135. During the first quarter Ostrom decided her presence was
unnecessary for Core team meetings and told the Bell Center staff to call her if issues arose
regarding the Students behavior. Bell Center staff did not consult her again during the 2005-
2006 school year. While Dr. Ziegler testified that Ostroms presence may have been beneficial,
the ALJ correctly concluded that the failure to reinvolve Ostrom did not significantly impact the
Districts implementation of the IEP because the District had its own behavior specialist, Maass-
Hanson, who worked with staff members to implement the strategies specified by the BIP.
ALJs Decision at 26.
In summary, the Court agrees with the ALJ that the record does not support any of
Plaintiffs claims of procedural violations of IDEA.
D. Lack of Success
Plaintiffs also argue that the District did not provide a FAPE for the Student because the
Districts educational services for the Student failed to produce meaningful educational benefits
and progress in the general curriculum. However, the Supreme Court has held that IDEA only
requires that a school district design and implement an IEP that is reasonably calculated to
enable the child to receive educational benefits. Rowley, 458 U.S. at 206-07. The Eighth
Circuit has held that although academic progress is an important factor, IDEA does not
guarantee that the student actually make any progress at all. CJN, 323 F.3d at 642.
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23
The parties dispute whether the Student received any educational benefit from his 2005-
2006 year at the Bell Center. The District argues that the Student received an educational
benefit. The District relies on: (1) the Students good performance during the first quarter;
(2) the Students January 2007 standardized test results showing steady performance or small
improvements relative to his peer group in reading, math, written expression, and language; and
(3) Ostroms testimony that the frequency and severity of the Students behavioral incidents
decreased in 2005-2006 when compared with the 2004-2005 year in the Explore program.
Defs. Mem. at 25-27. In response, Plaintiffs argue that: (1) the Student regressed after the first
quarter, wiping out any gains he may have achieved; and (2) the test results could be attributable
to the tutoring services the Student received at the Sylvan Learning Center in the spring and fall
of 2006, as well as the homebound services the Student received in the fall of 2006.
The Court finds it is unnecessary to analyze whether the evidence supports the ALJs
determination that the Student demonstrated academic or behavioral progress as a result of the
services provided by the Bell Center. At oral argument, Plaintiffs counsel conceded that the
Students 2005-2006 IEP was appropriate and reasonably calculated to benefit the Student. This
Court has determined that the Districts implementation of the IEP did not violate IDEA.
Although it is unfortunate that the Students grades and behavior regressed after the first quarter
of the 2005-2006 school year, the District cannot be liable where both the IEP and the
implementation of the IEP complied with IDEA. See CJN, 323 F.3d at 642 (stating that IDEA
does not guarantee educational progress).
The Court finds that the Eighth Circuit precedents relied on by Plaintiffs are
distinguishable from the case at bar. Plaintiff relies on Independent School District No. 284 v.
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24
A.C., 258 F.3d 769, 777 (8th Cir. 2001), for the proposition that a school district must provide
services that address a disabled childs emotional and behavioral problems if those problems
would otherwise prevent the child from learning. Here, the Students 2005-2006 IEP and BIP
did address the Students emotional and behavioral problems, and this Court has concluded that
the District adequately implemented the IEP and the BIP. Plaintiffs also rely on Neosho R-V
School District, where the Eighth Circuit concluded that the IEP at issue did not appropriately
address [the childs] behavior problem. 315 F.3d at 1028. The case at bar is distinguishable
because Plaintiffs have conceded that the Students IEP and BIP were appropriate.
The Court concludes that the District committed neither a procedural nor a substantive
violation of IDEA during the 2005-2006 school year. Accordingly, the Student is not entitled to
compensatory education services. The Districts Motion for Judgment on the Record is granted,
and Plaintiffs Motion is denied.
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25
IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. P.K.W.G., a minor child, by and through his parent and natural guardian,
Gwendolyn Gilmores Motion for Judgment on the Record [Docket No. 17] is
DENIED; and
2. Defendants Independent School District No. 11, Anoka-Hennepin School District;
Anoka-Hennepin Board of Education; Mark Sullivan; and Roger M. Girouxs
Motion for Judgment on the Record [Docket No. 13] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: June 11, 2008.
Case 0:07-cv-04023-ADM-AJB Document 30 Filed 06/11/2008 Page 25 of 25
OAH 58-1300-17528-9
MDE #007-008H
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF EDUCATION
In the Matter of [Student]
v.
Anoka-Hennepin Independent School
District #11
FINDINGS OF FACT, CONCLUSIONS
OF LAW AND ORDER
A hearing was held in this matter before Administrative Law Judge Linda
F. Close on April 23, 2007 at Anoka-Ramsey Training Center, 11200 Mississippi
Blvd., Coon Rapids, MN. The hearing continued on April 24, 2007 and May 16-
17, 2007 at the same location.
Amy J. Goetz, School Law Center, 452 Selby Avenue, Second Floor East,
Saint Paul, MN 55102, appeared on behalf of [Student] (the Student) and
[Parent] (the Parent). Timothy R. Palmatier, Palmatier Law Office, 600 Twelve
Oaks Center Drive #642 B, Wayzata, MN 55391, appeared on behalf of Anoka-
Hennepin Independent School District #11 (the District). The parties filed posthearing
briefs which were received on June 7, 2007.
At the request of the Parent, the hearing was closed to the public. The
District called the following witnesses to testify:
[Parent], the Parent
Dorothy Webb, Special Education Teacher, Bell Center
Richard A. Ziegler, Pediatric Neuropsychologist,
University of Minnesota
Janice Ostrom, L.P., Certified Behavior Analyst, Brih Design
Heather Brenden, Social Worker, Bell Center
Julie Maass-Hanson, Behavior Specialist, Bell Center
Vickie Pitney, Program Supervisor, Bell Center
Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 1 of 27
In addition to testifying on behalf of the Student, the Parent called the
following witness:
Christel Petrowitsch, Director, Sylvan Learning Center
STATEMENT OF ISSUES
1. Did the District provide the Student with a free and
appropriate public education (FAPE) during the period September 21, 2004 to
September 20, 2006? This includes the following sub-issues:
Did the District implement and follow the Students individual education
plan (IEP) and its behavior intervention plan (BIP)?
Did the District fail to provide the Student and Parent with progress
reports?
Did the District fail to undertake new evaluations when the circumstances
warranted doing so?
Did the District fail to provide meaningful educational benefit to the
Student by failing to manage the Students behavioral problems?
2. Did the District violate State educational standards and the
Individuals with Disabilities Education Act (IDEA) by failing to implement positive
behavioral interventions?
3. Is the Student entitled to compensatory education services?
FINDINGS OF FACT
Background
1. The Minnesota Department of Education and the School District
received the Students request for a due process hearing on September 21,
2006. The same day, the Department appointed the undersigned to serve as the
independent hearing officer. Prehearing conferences were held on
September 26, 2006; October 24, 2006; November 20, 2006; December 22,
2006; February 9, 2007; and March 27, 2007. At the prehearing conference on
October 24, 2006, the undersigned ordered that the Students 2005 independent
educational evaluation be updated by Dr. Richard Ziegler, pediatric
neuropsychologist at the University of Minnesota, and that the Students 2005
behavioral assessment be updated by Ms. Jan Ostrom, certified behavior
analyst, Brih Design.
2
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2. The Student is a [ ]-year-old1 who lives within the District with his
mother and siblings.2 He qualifies for special education services under the
criteria for Emotional/Behavioral Disorder.3 He is diagnosed with Attention
Deficit Hyperactive DisorderHyperactive Impulsive Type (by history) (ADHD);
Reading Disorder/Dyslexia; Disorder of Written Expression; Mathematics
Disorder; and Oppositional Defiant Disorder.4
3. The Student has a significant history of behavior problems, which
include a suspension from the pre-school Head Start program. At age five, the
Student could not undergo cognitive testing due to his behavior problems.5 At
the age of seven, the Student was placed in a Level IV EBD program. In
December 1997, he began receiving homebound instruction.6 By the sixth
grade, when he was at the ECHO Southwood School, the Students behavior
caused him to be restrained.7 The Student transitioned from the ECHO program
to the Explore Program in the fall of 2002. Initially, he attended school full time
as a seventh grader. However, his attendance and progress were poor, and he
had behavior problems, so the IEP Team agreed to half-day attendance.8
4. The Student continued in the Explore Program through the 2004-05
school year, the Students ninth grade.9 As of the spring of 2005, the Student
engaged in verbal and physical abuse of students and teachers at school; threw
objects; wandered about the school building; and engaged in physical fights at
school.10 He also engaged in sexualized behavior, including touching a female
students chest, making sexual comments to female students, and gesturing in a
sexual manner.11 While the Student was still attending the Explore Program, the
District implemented police interventions, resulting in juvenile justice referrals.12
5. In May 2005, the Parent requested a due process hearing. This
matter was settled through the development of an IEP for the 2005-06 school
year, the Students tenth grade. The IEP development occurred after an
independent educational evaluation by Dr. Ziegler in May 2005,13 and a
functional behavioral assessment by Jan Ostrom in June 2005.14 Following their
evaluations, both Dr. Ziegler and Ms. Ostrom participated in the IEP
1 Date of birth, [ ].
2 Testimony of [Parent] at p. 96.
3 Ex. 1, p. 1.
4 Ex. 28, p. 13.
5 Ex. 28, p. 4.
6 Ex. 29, p. 2
7 Ex. 28, p. 1.
8 Ex. 29, p. 2.
9 Ex. 29, p. 2.
10 Ex. 28, p. 1.
11 Ex. 32, p. 4.
12 Ex. 29, p. 2.
13 Ex. 29.
14 Ex. 32.
3
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development.15 While prior IEPs had addressed the Students behavior issues,
they had not covered his learning disability, which had been documented by
Dr. Ziegler in 2003.16 The IEP for the 2005-06 school year included services
directed at the Students reading, writing and math deficiencies.17 The IEP called
for the Students placement at Bell Center, a Setting IV program for students with
serious emotional/behavioral needs.18 The Parent, who was represented by
counsel during the course of the IEP development, agreed to the 2005-06 IEP.19
6. During the summer of 2005, the District offered the Student
extended school year (ESY) services at the Bell Center. The ESY services were
designed to assist the Student in transitioning to the Bell Center by building
relationships with Bell Center staff. The Student received one and one-half hours
of instruction for six weeks. The services included music therapy, academic
instruction and physical education.20
Initial Success
7. The 2005-06 IEP, in addition to providing goals and objectives in
the academic areas of reading, writing and math, addressed the Students need
for social skill development, including understanding boundaries and peer
relationships.21 The IEP provided for individual and group counseling; music
therapy; paraprofessional support; behavioral support; and special
transportation.22 In developing the IEP, extensive discussion centered on
whether the Student should begin his school day in a classroom setting or in an
individual setting. The Student wanted to begin his day in the classroom, and the
decision ultimately favored the Students wishes.23
8. Dorothy Webb was the Students case manager and teacher for the
school year. At Bell Center, management of a Student is carried out through a
team approach.24 The team responsible for implementing the 2005-06 IEP
consisted of Webb; a behavior intervention specialist; a counselor;
paraprofessionals; Laura Hendricks, the High School Lead; and Vickie Pitney,
the Program Supervisor.25 The team developed a BIP to decrease negative
behaviors, including inappropriate verbal behavior, social antics, physical
aggression, property destruction, sexualized conduct and non-compliance with
staff requests. The BIP described positive behaviors to encourage and set forth
15 Testimony of Richard A. Ziegler, p. 369; Testimony of Janice Ostrom, pp. 523, 542.
16 Ex. 27, p. 7.
17 Test. of Ziegler, pp. 369-72.
18 Ex. 1; T. 911.
19 Ex. 1.
20 Testimony of Vickie Pitney, pp. 920-21.
21 Ex. 1.
22 Ex. 1.
23 Test. of Pitney, pp. 924-25.
24 T. 129.
25 Ex. 1, A0137.
4
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a number of interventions for staff to utilize.26 The Bell Center team received
training in the intervention techniques recommended by Ms. Ostroms June 2005,
functional behavioral assessment of the Student.27
9. Dorothy Webb was the Students teacher, as well as his case
manager. Ms. Webb has approximately thirty years of teaching experience. She
is licensed in EBD. She has worked in a hospital setting with students with
mental health issues. She has also taught students who were physically
aggressive or had committed felony crimes, including murder. She has helped
set up youth programs for street children in Minnesota and neighboring states.
Webb has undertaken extensive continuing education and has only two classes
left to become certified as a teacher for the learning disabled. She has studied
various reading and language programs and continues to learn new techniques
and strategies to help EBD students. With other Bell Center staff, she has been
trained in crisis prevention intervention (CPI).28
10. Webbs classroom is set up to be inviting and nurturing for her
students. Each student has a desk located with the other students and also a
carrel where the student can go to sit alone.29 For the 2005-06 school year, the
Student was also allowed to leave the classroom to go to Room 101 for one-onone
instruction when he wished. A paraprofessional would follow the Student to
Room 101 to provide assistance. The Student also received support services
there.30
11. During the 2005-06 school year, Webbs class consisted of seven
students who spent the majority of their day in her classroom. The classroom
had many visual aids such as blackboards and whiteboards to help the students.
Reading was tied to each part of the curriculum, which included discussion of the
weather, important historical events of the day, math problems, current issues
and other topics. In addition to Webb, the classroom was staffed by two
paraprofessionals.31
12. The District used a literary coach to help Bell staff select reading
strategies and resources.32 Webb utilized a variety of instructional tools to assist
the Student in written language skills,33 math,34 and social skills.35
26 Ex. 1.
27 Testimony of Dorothy Webb, pp. 129-30.
28 Test. of Webb, pp. 109-13.
29 Test. of Webb, pp. 116-17.
30 Test. of Pitney, pp. 923-24.
31 Test. of Webb, pp. 116-19.
32 Test. of Webb, pp. 113-14..
33 Tools included the Doors Program (T. 135-36), the Dolch Word List (T. 143), the Franklin
Speller (T. 137), and the Language! curriculum (T. 133).
34 Math instruction was geared to create high interest by using materials such as cooking
activities Oral Math Curriculum and Math Steps. T. 123-24 (Webb).
5
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13. During the first quarter of the school year, the Student attended
school from 8:15 a.m. to 1:25 p.m. This shortened the Students school day by
one period a day. For the first quarter, the Student received one hour per week
of homebound instruction. The goal was to increase the Student to a full school
day after the first quarter if the Student made progress.36 During the first quarter,
the Student performed beyond the expectations of the team. He was motivated
and stayed on track. He received three As, one B and one C on his first quarter
report card.37 The Student wanted to be in school for the full day. As a result of
the Students success, the team determined at the end of the first quarter to
place the Student on a full school day.38 The Parent agreed to this change in the
Students IEP.39
14. The Students BIP required the IEP team to hold a monthly meeting
with the Parent. In September and October 2005, Ms. Ostrom attended the
meetings. At some point during the fall, Ms. Ostrom believed her presence was
no longer necessary, and she ceased attending.40 When behavior problems
arose with the Student, Bell Center staff met as a team and reviewed the BIP for
solutions to address the problems.41
Declining Performance
15. The team began to notice a change in the Students progress
during the second quarter of the school year. By the time the quarter ended on
January 25, 2006, the Students grades had dropped to one B, one D+, two Ds,
and one F.42 Webbs comments for the quarter indicate that the Student was not
making a consistent effort; was frequently absent from the classroom; and did not
turn in homework.43
16. Throughout the 2005-06 school year, the Bell Center team revised
IEP adaptations to tailor them to the Students needs. Webb tried using a visual
schedule and a sound field system in her classroom. She abandoned those
adaptations because the Student really did not like either.44 On February 23,
2006, Webb discussed with the Parent adding an advocate to meet with the
Student.45 The purpose of the advocate was to help redirect the Student so that
35 Staff employed the Jackie Robinson Foundation materials, Kagen Strategies, the Restitution
Curriculum, and other strategies and materials. Test.of Webb, pp. 143-48, 150-51, 154;
Testimony of Heather Brenden, pp. 695, 700-02.
36 Ex. 1, A 0131; Test. of Webb, p. 125.
37 Ex. 3; T. 187, 194.
38 Ex. 6; Test. of Webb, p. 194.
39 Ex. 8.
40 T. 542.
41 Test. of Webb, pp. 175-76; Test. of Brenden, p. 679.
42 Ex. 10.
43 Ex. 9.
44 T. 163-64.
45 Test. of Webb, p. 227; Ex. 17.
6
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he would progress in the program. The Parent agreed, and the advocate, Kenny
Maxey, began meeting with the Student one a week. At some point, this
increased to twice a week. The Student looked forward to the meetings with
Maxey.46
17. On February 28, 2006, a revised BIP noted the Students
increasing behavior problems, including failure to follow staff directions,
inappropriate verbal behavior and some social antics. The interventions to be
used did not change from the prior BIP, however.47
18. The Students grades continued to drop during the school year. For
the third quarter, the Students marks were one C, one C-, one D and three Fs.
Webb noted that staff continued to work hard with the Student, but that the
Student refused to work.48 During the fourth quarter, the Student received six Fs
on his report card.49 During the fourth quarter, the Student completed a large
project which he presented to the student body for Minnesota History Day.50
Throughout the school year, the Student wrote reports including reports on
Galileo, John F. Kennedy, and Prince.51
19. The Students IEP called for individual and group counseling during
the school year. Heather Brenden, the social worker at Bell Center, was the
Students counselor. Brenden is a licensed social worker who has worked at Bell
Center for about 14 years. She holds a masters degree in social work and
psychotherapy.52 Initially, Brenden worked to build a relationship with the
Student by spending time with him in the classroom or gym. Brenden also met
with the Student weekly for one-on-one counseling.53 Despite the weekly
meetings, Brenden never felt she developed a close relationship with the Student
in that she learned little of the Students life at home.
20. Brenden worked with other team members when behavior issues
arose regarding the student. At times, Brenden and Webb spoke informally
about issues as they arose and at other times the team met formally to discuss
problems.54 Staff followed the BIPs plan for differential reinforcement. This
meant staff would give positive comments for pro-social conduct and refrain from
commenting negatively on inappropriate conduct. Team often attempted to
redirect the Student and give him space. Staff adopted a neutral tone in
46 In September 2006, the Parent directed that Maxey have no further contact with the Student.
The Parent indicated that Maxey and the Student had nothing in common. Test. of Webb, pp.
226-31.
47 Ex. 16.
48 Ex. 13.
49 Ex. 15.
50 Test. of Brenden, p. 733. The Student presented on [ ]. His presentation included [ ].
51 Test. of Webb, p. 265.
52 Test. of Brenden, pp. 664, 668.
53 Test. of Brenden, pp. 672-74.
54 Test. of Brenden, pp. 679-80.
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discussing problems and listened to his views about a given situation. Staff also
allowed the Student to go to a separate room for one-to-one instruction whenever
the Student wanted that.55
21. Julie Maass-Hanson is a behavior specialist at the Bell Center.
She served as the behavior interventionist on the Bell Center team for the
Student. In addition to being a behavior interventionist, she is licensed as an
EBD teacher.56 Maass-Hanson trains staff in CPI, specifically describing the
stages of crisis and how to respond to each.57 She holds a bachelors degree in
psychology and a masters degree in education policy and administration.
Currently, she is studying for her licensure as a principal and director of special
education.58
22. Maass-Hansons role at Bell Center is, in part, to oversee the
tracking of student behavior. She developed a tool for tracking and measuring
behavior that was implemented during the 2005-06 school year.59 Behavior
tracking at Bell Center is more detailed at Bell Center compared to other schools
because of the high ratio of teachers to students, which allows closer tracking of
behavior.60
23. Maass-Hanson had occasional interactions with the Student during
the first part of the school year. Beginning in February 2006, the Students
behavior changed. At that point, Maass-Hanson was called into team meetings
to collaborate on how to intervene, and she intervened directly herself. She used
the BIP as a reference for what type of intervention to employ. She used
differential reinforcement unless the behavior escalated to the point where
stronger interventions were required. Maass-Hanson believes that police liaison
intervention was used appropriately when staff felt they might not be able to
control a situation in a safe manner.61
24. Out of the teams frequent meetings about the Students declining
performance came a number of interventions and adaptations that were tried as
the school year progressed. The Students schedule was changed to add
physical education, because the Student could experience success with that.
Staff also involved the Student with a dance troupe activity. Staff moved the
Student from a self-contained classroom to a mainstream schedule.62 The team
55 Test. of Brenden, pp. 682-86.
56 Testimony of Julie Maass-Hanson, p. 820.
57 Test. Maass-Hanson, pp. 823-24.
58 Test. Maass-Hanson, pp. 825-26.
59 See Ex. 19.
60 Test. Maass-Hanson, p. 831.
61 Test. Maass-Hanson, pp. 832-36.
62 Mainstream at Bell Center refers to a schedule where the student moves from one classroom
to another rather than remaining a self-contained classroom. Test. of Webb, pp. 257-58.
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also started the Student in a quiet, one-to-one setting, added the mentor
described above, and altered the amount and timing of music therapy.63
Increasing Behavior Problems/ Police Liaison Interventions
25. As the school year progressed, the Students performance declined
and his behavior deteriorated. Bell Center staff code students behavior
incidents. During the first quarter, staff noted 91 behavior incidents for the
Student and, during the second quarter, 103. Staff documented 227 incidents
the third quarter and 304 the fourth.64
26. In addition to coding behavior incidents, Bell Center team members
complete a critical incident report when safety is an issue; when an incident is
disruptive to the learning environment; or when an out of school suspension
occurs.65 The Students school record contains one critical incident report for the
first quarter, none for the second, and five for the third and fourth quarters.66 The
incidents occurred on September 19, 2005;67 April 5, 2006;68 April 26, 2006;69
May 25, 2006;70 June 2, 2006;71 and June 7, 2006.72
27. The record references the presence of the police liaison during
behavior incidents on the following occasions:
2/6/2006: Staff called the police liaison when the Student refused to
leave the room.73
2/14/2006: Staff called the police liaison when the Student was
wandering the halls and refused to go to Room 101.74
2/16/2006: The student raised his fist to the police liaison. It does
not appear from the record that staff had called the officer to
intervene. 75
63 T. 255-56; Ex. 29, A0422.
64 Ex. 40. Ostrom testified that Bell Center documents behavior on a miniscule basis. She
expressed concern about the Centers detailed data collection methodology, which allows a
single incident occurring over a twenty-five minute to be recorded up to 16 times. Test. of Ostrom,
p. 607.
65 Test. of Pitney, p. 951.
66 Ex. 25, 43.
67 Ex. 43, B0100 ([ ] The Student didnt cease playing when directed to do so. [ ]).
68 Ex. 43, B0123 (the incident is described in the next paragraph of these findings).
69 Ex. 43, B0129 (the Student disrupted another class and was suspended).
70 Ex. 43, B0137 (the incident is described in the next paragraph of these findings).
71 Ex. 43, B0143 (the incident is described in the next paragraph of these findings).
72 Ex. 43, B0148 (the incident is described in the next paragraph of these findings).
73 Ex. 23, C007. According to Pitney, February was the first time during the 2005-06 school year
that the police were called to intervene. Test. of Pitney, p. 967.
74 Ex. 23, C0010.
75 Ex. 23, C0008.
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3/6/2006: The Student lay on the floor in the hallway. The police
liaison asked the student to get up, but he did not. It does not
appear from the record that staff had called the officer to
intervene.76
3/13/2006: The Student told the police officer to shut the f---- up.
It does not appear from the record that staff had called the officer to
intervene in any behavioral incident.77
3/21/2006: The Student called the officer pig, which comment was
documented by staff. It does not appear from the record that staff
had called the officer to intervene in any behavioral incident.78
4/5/2006: For a period of 20 minutes, the Student refused to follow
directions to remove headphones and to go to Room 101. Staff
called the police liaison, who accompanied the student to the
liaison office, where he was charged with disorderly conduct.79
5/4/2006: The Student referred to the police liaison, who was
apparently in the area, as an asshole. The Student made oinking
sounds in the officers presence. It does not appear from the
record that staff had called the officer to intervene, merely that the
officer observed and documented the conduct.80
5/5/2006: The Student used inappropriate language in the hallway
and the officer reminded him about appropriate language. It does
not appear from the record that staff had called the officer to
intervene in any behavioral incident.81
5/18/2006: The police liaison observed the Student swearing in the
hall and being verbally inappropriate. It does not appear from the
record that staff had called the officer to intervene, merely that the
officer observed and documented the conduct.82
5/24/2006: The Student told the officer to shut the f--- up. It does
not appear from the record that staff had called the officer to
intervene in any behavioral incident.83
76 Ex. 19, C0160.
77 Ex. 26, B0117.
78 Ex. 23, C0010.
79 Ex. 43, B0123.
80 Ex. 23, C0014.
81 Ex. 19, C0118.
82 Ex. 23, C0016.
83 Ex. 23, C0017.
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5/25/2006: The Student interrupted other students by knocking on
classroom doors, throwing keys against the wall, swearing and
refusing requests to cease. The police liaison was in the area and
prevented the Student from entering a specific area. The Student
threatened the officer verbally and called her names, which the
officer ignored. The student was very angry. The students
conduct continued to escalate and the police officer called for
backup. Eventually the Student was permitted to leave the school
building. It does not appear from the record that staff called the
officer to intervene, but the officer did remain.84
6/2/2006: An incident began when the Student was in the gym for
the graduation ceremony. The Student refused requests for him to
pull his pants up so his underwear would not show. Staff attempted
to persuade the Student to remove to another room. Because the
public was in the building, the police liaison did not want the
Student wandering the halls. She entered the room where the
Student was, and they exchanged words. Eventually, the officer
escorted the Student off school property. It does not appear from
the record that staff called the officer to intervene.85
6/7/2006: The Student was assigned in-school suspension for
making a racial slur. The Student refused to comply and walked
through the halls tearing down posters, swearing, and banging on
classroom doors. Staff asked other staff to assist in the situation.
The Student heard this and remarked that he knew how to get
suspended by simply finding the police liaison. The Student left the
building and was not allowed to return. It appears that the police
liaison monitored the Student from inside the building, but did not
have contact with the Student. It does not appear from the record
that staff called the officer to intervene when other staff were called
to assist.86
9/16/2006: Staff requested the Student to leave the cafeteria
because the Student had been wandering into a classroom with his
lunch. Staff asked the police liaison for assistance. The Student
became unruly, left the cafeteria, threw a juice carton violently so
that it exploded onto the wall, and kicked recycling bins, causing
one to careen across the hall. The Student resisted arrest and the
officer called for back up. The Student resisted the officers who
came as back up. The Student was suspended for 5 days.87
84 Ex. 43, B0129.
85 Ex. 43, B0143.
86 Ex. 43, B0148.
87 Ex. 43, B0162-63.
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28. At some point during February or March 2006, Pitney and Maass-
Hanson discussed with the police liaison their concern that the Student was
seeking out the liaison to engage her in a power struggle. They requested the
officer to handle such situations by removing herself from the Students vicinity.
The officer agreed she would do that unless school safety was at risk. After the
conversation, the officer ignored many of the Students derogatory statements to
the officer.88 During the May 26 incident described above, the officer decided at
one point to leave the area, having ignored the Students name-calling and
negative behaviors. However, she concluded there was a safety risk, and she
did remain near the student.89
29. The Parent has been concerned about the use of police
interventions in the Students behavior.90 She does not believe that the police
should intervene in an incident unless the Student actually hits someone.91
Communication with the Parent
30. Bell Center staff maintained contact with the Parent through
telephone calls, progress reports, and meetings.92 At the beginning of the school
year, the Parent was engaged and cooperative. As the Students progress
declined, the Parent became less engaged at team meetings. She attended
monthly meetings, but did not participate. She adopted different body language,
wore sunglasses during the meetings, and left meetings early. The Student was
present at some of these meetings and observed this behavior.93
31. Meetings included monthly Core Team meetings with the Parent.
Ms. Ostrom attended the September and October meetings. The Student was
doing well at that time, so Ms. Ostrom believed she was no longer needed.94
The team continued to meet monthly without her. At the February 17, 2006,
team meeting, the team discussed the BIP. Staff had called the police liaison
twice in February to intervene with the Student.95 The team discussed changing
the BIP to reduce the Students freedom to wander, which had been allowed
under the earlier BIP. The Parent agreed to a change to limit where the Student
88 Test. of Pitney, p. 968.
89 Ex. 43, B0138.
90 Test. of Gilmore, p. 103.
91 Test. of Gilmore, p. 64.
92 Test. of Webb, p. 245. Exhibit 17 is Webbs telephone log relative to the Student. It reflects
more than sixty calls relating to the Student. Most of these were from Webb to the Parent. At
one point, the Parent wanted to see the Students tracking sheets, and these were sent home
daily. Test. of Webb, p. 245.
93 Test. of Pitney, pp. 933-35.
94 Test. of Webb, p. 196.
95 T. 201-02.
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could be when he left the classroom.96 On February 28, 2006, the BIP was
revised, although there is no evidence the Parent ever signed it.97
32. On March 15, 2006, there was a re-entry meeting because the
Student had either been suspended or day-ended. The team recommended
having the Student start his day in Room 101, where he would be given one-onone
instruction. Behavioral incidents were escalating and the team thought the
one-on-one start might help the Student get back on track.98 The team met with
the Parent and the Student to discuss the proposal. The Student objected
initially, but ultimately the team, Parent, and Student agreed to this modification
in the Students schedule.99
33. Several times during the school year, the team invited the Parent to
observe during the school day. Early in the school year, the Parent attended
meetings. In December 2005, she came to school to intervene with the Student
to get him back on track.100 The decline in the Parents participation began
during the third and fourth quarters. At the February 3, 2006 team meeting, the
team discussed having the Parent come for impromptu visits. Early in the year,
the Parents intervention by phone had been helpful. The team felt impromptu
visits might help.101 There is no evidence that the Parent ever made impromptu
visits. In March, Webb spoke with the Parent about beginning to plan for ESY.
The Parent did not commit to sending the Student to school during the summer,
and Webb followed up with the parent. The Parent never did respond to Webb
about the proposed ESY plans.102
June 2006 Evaluation
34. During the spring of 2006, the Bell Center behavior specialists
undertook an updated functional behavioral assessment (FBA). The assessment
gathered information about the Students behavior from all staff and examined it
in detail.103
35. In June 2006, the District undertook a comprehensive re-evaluation
of the Student. The prior evaluation had been conducted in May 2005. Since the
prior evaluation, the Student had developed significant behavior problems,
especially those that surfaced during the second half of the school year. The
June 2006 evaluation added to the school record the results of speech testing, a
96 Test. of Maass-Hanson, p. 851.
97 Ex. 16.
98 T. 202-03
99 Ex. 12.
100 Test. of Webb, pp. 212-14.
101 T. 946; Ex. 42.
102 Test. of Webb, pp. 215-16.
103 Test. of Maass-Hanson, pp. 853-56; Ex. 40.
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psychosexual evaluation, a functional behavioral assessment and transition
information.104
36. In June 2006, the Bell Center team prepared a new IEP following
the evaluation and the FBA. The Student provided input about his needs during
the evaluation process. His descriptions of his needs were more precise than
they had been previously.105 In the new IEP, the team ascribed the Students
escalated negative behaviors to his avoidance of academic tasks and his
masking of skills deficits. The updated IEP differed from the prior IEP in that it
addressed transition issues and the Students needs relating to transition. The
Students reading objectives were heightened; math objectives were increased in
difficulty and made more specific; academic performance objectives were made
more complex; new objectives were set for the behavioral goals; a
postsecondary objective relating to the Students self-awareness of his disability
was stated; a jobs and training objective to require acquisition of job skills was
set; and several community participation goals were added.106
37. Webb and Pitney both called the Parent to arrange for the
participation of the Parent and Student in a re-evaluation IEP meeting. The
Parent did not return Webbs calls. Pitney discussed with the Parent the
importance of having a meeting, because the District wanted to provide extended
school year (ESY) services during the summer. The Parent promised several
times to contact Pitney to confirm a meeting time. Ultimately, Pitney informed the
Parent by telephone and mail that the meeting would take place on June 15,
2006. Neither the Parent nor the Student attended the meeting.107
38. When the team met on June 15th, members again discussed the
decline in the Students academic and behavioral performance over the course of
the 2005-06 school year. The team concluded that the Student should continue
on a full-day schedule in the coming year. The team also determined to provide
music therapy, one-on-one academic skills work, and physical education. The
Student had done well with these services the prior summer.108
39. As part of the re-evaluation process, the team also revised the BIP,
which had been revised in February 2006 when the Students negative behaviors
began to escalate.109 The BIP described in detail behavioral incidents during the
past school year. Like the prior BIP, it emphasized differential reinforcement as a
strategy. Highlights of the revised BIP included: setting number, duration, and
location limits on the Students time-outs or self periods; prohibiting wandering
104 Ex. 35.
105 Test. of Pitney, pp. 974-75.
106 Ex. 45.
107 Ex. 45.
108 Ex. 45.
109 See Ex. 16.
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in the halls to seek out staff; permitting calls to the Parent or Kenney Maxey; and
calling the Parent to report successes as well as setbacks.110
40. The IEP and BIP were sent to the Parent. She did not sign the
revised documents, and the Student did not avail himself of ESY services. The
Parent told Webb that the Parent would not force the Student to go to summer
school.111
Sylvan Learning Center
41. In approximately March of 2006, the Student began to work with
educators at Sylvan Learning Center. The Student stayed in the program until
summer break and resumed in October 2006. Christel Petrowitsch is his teacher
at this time. Petrowitsch is the center director at Sylvan Learning Center, and
she teaches occasionally. She began working at Sylvan in 2004, upon
graduation from college. She holds a bachelor of arts degree in elementary
education.112
42. In the spring of 2005, Sylvan worked with the student on reading
and math only.113 At that time, the Student would bring in his homework from
Bell Center. He is not currently at Bell Center so he does not do that now.114
The Student sometimes refuses to work at Sylvan, but there has never been a
behavior problem with him there.115 At the time of the hearing, the Student was
attending Sylvan six hours per week. This was an increase from four, because
the Student had missed so many hours previously.116 The director believes the
Student has been making progress at Sylvan.117
Results of Independent Evaluations
43. In an Order issued on November 20, 2006, the Administrative Law
Judge appointed Richard S. Ziegler, Ph.D. to conduct an update of his June 2005
neuropsychological exam of the Student and appointed Janice L. Ostrom to
conduct an update of her June 2005 functional behavioral assessment.
44. Dr. Ziegler submitted his updated evaluation on January 22,
2007.118 The evaluation was the third he had conducted on the Student,
previous evaluations having been completed in the fall of 2003 and June 2005.
Dr. Ziegler is a staff pediatric neuropsychologist at the University of Minnesota
110 Ex. 45.
111 T. 975-77 (Pitney).
112 Testimony of Christel Petrowitsch; pp. 1110-11.
113 Test. of Petrowitsch, p.1117 ().
114 Test. of Petrowitsch, p.1120.
115 Test. of Petrowitsch, pp. 1132-33.
116 Test. of Petrowitsch, p.1134.
117 Test. of Petrowitsch, p.1127.
118 Ex. 29.
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Medical School and an Assistant Professor of Pediatrics, Neurology, Biophysical
Sciences and Medical Physics.119
45. In preparing his report, Dr. Ziegler reviewed his earlier reports;
interviewed educators, the Student and his Parent; and conducted tests, during
which time observations of the Student were made. The tests assessed the
Students attention and executive functioning;120 academic achievement;
linguistic competence; fine motor/visual motor skills; and behavioral and
emotional functioning. The executive functioning and behavioral and emotional
functioning portions of the testing consisted of parent and teacher completion of
assessment tools.121
46. Dr. Ziegler found that the Student initially succeeded at Bell Center,
but that his functioning declined substantially after the first quarter. Dr. Ziegler
noted that Bell Center staff attempted numerous interventions to address the
decline and found these efforts laudable. He attributed the decline to the
following:
Bell Center staff failed to re-involve Ms. Ostrom when behavior
problems became significant. The IEP behavior plans of July 2005
and February 2006 both referenced her role as a consultant. After
November 2005, staff did not consult with her.
When staff re-evaluated the Student in July 2006, they failed to
qualify him for speech-language services for the 2006-07 school
year, although testing indicated that need.
The Student perceived changes in how he was treated by staff,
though neither he nor his mother articulated this to Bell Center
staff.
Trust between the Student and the Parent and Bell Center staff
declined. This followed from the involvement of the police liaison
in behavioral interventions and the Parents perception that this
was a re-play of the Students prior, failed educational setting at
the Explore Program.
Bell Center staff saw the Parent as diminishing her involvement in
the Students program.
The Parent had failed to follow through with recommended
individual psychiatric therapy and/or medication for the Student.
119 Ex. 30.
120 Executive functioning includes the individuals ability to plan, be flexible, generate information,
control impulses, and remember. Ex. 29, p. 14.
121 Ex. 29, pp. 14-16.
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The Parent had failed to follow up on recommended sexualityspecific
treatment.122
47. The academic testing during the evaluation revealed that the
Students raw scores had improved in all academic domains and on measures of
higher order receptive and expressive language. Dr. Ziegler concluded that the
Student had benefited from the services he had received at Bell Center, and
during homebound and Sylvan Learning Center tutoring.123
48. Dr. Ziegler expressed concern that the Student, despite academic
progress, has not bridged the achievement gap relative to his peers and
continues to need intensive academic intervention. He concluded that the
Student does not do well in the classroom and is more apt to make progress
through homebound, one-on-one education services.124 He also recommended
the Parent seek individual therapy for the Student and another medication
consult to address the Students significant attention and impulsivity problems.
He further recommended that the Student receive speech-language therapy as a
related service. Finally, Dr. Ziegler recommended social skills training and basic
social interaction skills to allow him to obtain and maintain employment. The
report does not explain how social interaction skills would be taught if the student
is confined to one-on-one education services.125
49. Dr. Zieglers conclusion that the Student does better in a one-onone
education setting contravenes the evidence that the Student flourished
during his first quarter at Bell Center when he attended school in a classroom
with six other students.
50. Ms. Ostrom submitted her updated functional behavioral
assessment on January 22, 2007.126 Ms. Ostrom met with and interviewed
educators, the Parent and the Student, and she observed the Student during
homebound instruction. She reviewed a large number of school records,
including critical incident reports, notices of suspension, IEPs, meeting notes and
other records pertinent to her assessment.127
51. Ms. Ostrom found that the variables that influence the Students
behavioral profile were basically unchanged from her June 2005 assessment.
These variables include the Students compromised self-esteem; his deficits in
social and self-sufficiency skills, as well as language skills; his mental health and
medication issues; the presence of noise and activity in the educational
122 Ex. 29, pp. 16-19.
123 Ex. 29, pp. 19-20.
124 Dr. Ziegler recommended a change in the Students homebound instructor, whom he found to
be overly-negative in his assessments of the Student. Ex. 29, p. 20.
125 Ex. 29, pp. 19-20.
126 Ex. 33. The cover letter to the report is dated 2006, but Ms. Ostrom corrected this on the
record. Test. if Ostrom, p. 535.
127 Ex. 33, pp. 1-2.
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environment; the Students variable responses to requests made of him and his
response to perceived denial of his requests to others; the Students being
reinforced by social altercation, rather than positive social opportunities; and the
futility of punishment or perceived punishment to avoid social antics and aberrant
behaviors.128
52. Ms. Ostrom examined the services and supports provided during
the 2005-06 school year and described how those influenced problematic
behaviors. She found the following:
The Bell Center team lengthened the Students school day during the
second quarter in order to recognize and reinforce the positive
performance during the first quarter. The class added to the Students
schedule placed him with an unfamiliar group of students. However,
Ms. Ostrom could not conclude that either of these was a discerning
variable.
The Bell Center team made many efforts to communicate and
collaborate with the Parent. Despite the existence of notes of phone
calls and reports to home, communication decreased over the course
of the school year.
The Bell Center team was proactive in its efforts to manage the
Students behavioral profile. In one such effort, the team acquiesced in
the Students request to have a rotating schedule. This intervention,
however, may actually have contributed to the Students wandering the
halls later in the school year.
The Bell Center team provided the Student with a multicultural advisor,
Kenny Maxey. Ms. Ostrom questioned the wisdom of the Parents
decision to terminate this relationship, which offered the Student an
opportunity to work through his inappropriate verbal behavior towards
statements of race.
Police intervention came to be used more frequently over the course of
the school year. Ms. Ostrom found that the use of police intervention
was warranted, given the behaviors the Student exhibited, including
wandering the hallways, swearing, opening classroom doors and not
responding to requests of interventionists. Ms Ostrom noted, however,
that utility of an intensive intervention such as use of police should be
identified as a reactive strategy and discussed on the BIP.
In February 2006, the Student was reported as truant. Ms. Ostrom
noted that a truancy actions motivational value is limited because it is
128 Ex. 33, pp. 7-8.
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not contemporaneous with the problematic behavior. She stated that
the Bell Center team should list this strategy on the BIP as a reactive
strategy to decrease the frequency of leaving and wandering
behaviors.129
53. Ms. Ostrom identified two variables as likely responsible for the
Students decline in the second and following quarters. First, direct
communication and collaboration with the Parent faded as the year progressed.
Ms. Ostrom noted, as she did in 2005, that the Student is more participative
when the Parent supports the educational efforts. The Student is inclined to tell
stories about incidents that are significantly different from staff perceptions, which
has a negative impact on staff. Ms. Ostrom referenced her earlier report about
the Students desire to avoid responsibility for academic tasks. She encouraged
the Parent and the Bell Center team not to honor the Students efforts to avoid
responsibility.130
54. The second variable identified by Ms. Ostrom as contributing to the
Students decline is the presence and intervention of the police liaison officer.
Ms. Ostrom saw this variable as having a two-fold effect on the Students
behavior. First, because of a past history of litigation over the use of police
intervention, the Student, as his behaviors escalated, made threats about what
he would do if the police intervene. Second, the Student increasingly sought out
and taunted the police liaison with a view to being suspended. Ms. Ostrom saw
this as the Students attempt to negatively impact collaboration and
communication on the educational team.131
55. Ms. Ostrom outlined a number of behavior support strategies
geared to the Students behavioral profile and made several recommendations,
including the following:
Institute educator communication and collaboration with the
Student and Parent. Ostrom again noted the Students propensity
to disrupt communications by causing the Parent to doubt the
efficacy of the educational plan. She suggested frequent facilitated
Core team meetings with the Parent, working toward the goal of
team self-governance.
Place the Student in a highly structured educational environment in
which the day is ended if redirects exceed a pre-set number.
Structure the educational environment to allow a room in which the
Student may separate.
129 Ex. 33, pp. 8-10.
130 Ex. 33, pp. 10-11.
131 Ex. 33, p. 11.
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Present work so that the Student does not remain at one task for
more than fifteen or twenty minutes.
Incorporate transitional and functional living skills into the Students
program.
Reinstate the use of a multicultural advisor.
Use differential social reinforcement, meaning that the team should
attend to the Students positive behaviors and ignore the negative
ones, so that the Students desire for social attention is not met
through inappropriate behavior.
Involve a mental health therapist to work with the Student on
mental health concerns.
Follow up with previous recommendations for therapeutic support
relative to the Students inappropriate sexualized behavior.132
56. At the start of the hearing, the Parties provided to the
Administrative Law Judge voluminous documents. From these, the Parties
introduced fifty-five exhibits of which fifty-two exhibits were received. The District
had marked for identification two exhibits, numbered 49 and 50, which were not
received. The Parent had marked for identification exhibit 53, which was not
received. These three exhibits have been sealed. The Administrative Law
Judge has retained those documents that were not introduced. At the close of
the appeal period, the Administrative Law Judge will destroy the sealed records
and those records that were never introduced.
Based on the foregoing Findings of Fact, the Administrative Law Judge
makes the following:
CONCLUSIONS OF LAW
1. This matter is properly before the Administrative Law Judge
pursuant to 34 C.F.R. 512 and Minn. Stat. 125A.091, subd. 12.
2. This decision was not rendered within 45 days from the date on
which the Department received the Parents request for hearing. Extensions
were granted for good cause shown and with agreement of the Parties.
3. The Student is a child with disabilities as defined in Minn. Stat.
125A.02 and 20 U.S.C. 1401 (3) who is entitled to special education services
132 Ex. 33, p. 12-16.
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appropriate to his needs pursuant to the IDEA and its regulations and Minn. Stat.
ch. 125A and its pertinent Minnesota rules.
4. The District was the district of the Students residence during the
period September 21, 2004 to September 20, 2006. The District had the primary
responsibility for providing an appropriate program of special education for the
Student.
5. The burden of proof is on the District to show by a preponderance
of the evidence that it is complying with the law and offered or provided a FAPE
to the child.133
6. A program of education offers a FAPE as required by IDEA when
the school district complies with the procedures set forth in federal and state law
and provides an IEP that is reasonably calculated to provide some educational
benefit to the student.134
7. The District complied with procedures set forth in federal and state
law by implementing and following the Students IEP and its accompanying BIP;
providing the Student and Parent with progress reports; and undertaking new
evaluations when the circumstances warranted doing so.
8. The District has shown by a preponderance of the evidence that it
provided the Student a meaningful educational benefit. The District offered a
program that could achieve educational benefit, and the Student actually did
achieve educational benefit as shown in independent testing.
9. The District has shown, by a preponderance of the evidence, that it
followed the Students BIP and revised it as behavioral problems increased in
February 2006. The District implemented positive behavioral interventions to the
extent reasonable and did not violate State educational standards and IDEA by
utilizing the police liaison when necessary.
10. A school district must provide compensatory educational services
when the hearing officer finds that it has not offered or made available FAPE in
the least restrictive environment and the child has suffered a loss of educational
benefit.135 Because the Student failed to show FAPE was denied or that he
suffered a loss of educational benefit, he is not entitled to compensatory
education.
11. Any Finding of Fact more properly characterized as a Conclusion of
Law is adopted as such.
133 Minn. Stat. 125A.091, subd. 16.
134 Board of Educ. of the Hendrick-Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 206-07
(1982); Bradley v. Ark. Dept. of Educ., 45 IDELR (8th Cir. 2006).
135 Minn. Stat. 125A.091, subd. 21.
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Based on the Findings of Fact and Conclusions of Law, and for the
reasons set forth in the accompanying Memorandum, incorporated herein:
ORDER
IT IS HEREBY ORDERED THAT:
1. The Students complaint is dismissed.
2. The Students request for compensatory educational
services is denied.
Dated this 26th day of June 2007
_s/Linda F. Close_____________
LINDA F. CLOSE
Administrative Law Judge
Reported: Kirby A. Kennedy & Associates, four volumes
NOTICE
Under Minn. Stat. 125A.091, subd. 24, a party may seek review of this
decision in the Minnesota Court of Appeals or in Federal District Court,
consistent with federal law. A party must appeal to the Minnesota Court of
Appeals within 60 days of receiving the hearing officers decision.
MEMORANDUM
The Parents complaint claims substantive and procedural violations of
IDEA and state law. While the District might have handled some situations
differently, its overall provision of services to the Student did not violate federal or
state law.
PROVISION OF A MEANINGFUL EDUCATIONAL OPPORTUNITY
A. Use of the Police Liaison
The core of the Parents case is her contention that the Districts
involvement of the police liaison deprived the Student of FAPE. The case is built
on two flawed premises: first, that police involvement was factually unwarranted
22
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and second, that police involvement was intended as an intervention strategy.
From these faulty underpinnings, the Parent concludes that the Student was not
provided with a meaningful educational opportunity because police intervention
taught the Student nothing. The ALJ rejects the Parents contention.
The facts do not support either that the Bell Center team inappropriately
utilized the officer or that it over utilized the officer. As set forth in Finding of Fact
24, the record references fifteen occasions, beginning in February 2006 and
ending in September 2006, when the liaison had contact of any sort with the
Student. On six of these occasions, the contact consisted of the Students
baiting the officer. On five others, it appears that staff did not ask the officer to
intervene and the contact was inconsequential. On only four occasions is it clear
that staff asked the officer for assistance.
Significantly, as soon as the Students negative behavior pattern emerged
in February 2006, Pitney spoke with the police liaison about the differential
reinforcement strategy found in the Students BIP. The officer agreed to abide by
that strategy butalso significantlythe officer made clear that her role was to
maintain safety. Thus, she would ignore the Students negative comments and
behaviors, but only if safety were not an issue. From this it must be inferred that,
on those few occasions when the officer had an actual encounter with the
Student, she had made a judgment that safety demanded her presence and
involvement. Particularly in the September 2006 incident, it was clear the
Student was violent and was creating a dangerous situation in the school.136
The Parent attempts to reinforce the argument that the District over
utilized the police liaison by asserting that the Student has not had any police
problems in the community environment. The record reveals otherwise. At
hearing, the Parent admitted the Student had been charged with trespassing
when he entered an apartment complex where he did not belong.137 Initially, the
Parent said that the trespassing incident was the Students only brush with
police. On further cross examination, she admitted that the police had also
picked the Student up for curfew violation. Moreover, the Parent denied having
called Webb on February 22, 2006, trying to locate the Student. The Parent
reported to Webb that the Student had gone out on Monday night and stayed out
all night. The Parent had not seen the Student since Tuesday night.138 This
evidence gives the lie to the Parents argument that the Students behavior in the
community has never raised safety concerns.
The Parent further argues that police interventions violate State mandates
to use positive approaches to behavior problems and should be prohibited
136 See Ex, 43, B0162.
137 Test. of [Parent], pp. 61-62.
138 Test. of Webb, pp. 249-50.
23
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because they lack any educational value.139 The District, however, does not
maintain that police intervention is intended to teach the Student. As Pitney
testified [police intervention] may or may not teach [the Student] anything, but
that is not the purpose. The purpose is for safetyemotional or physical
safety.140 Bell Center staff actually involved the police liaison infrequently. More
often than not, it was the Student who sought out the liaison, aware that trouble
might ensue. To her credit, the officer avoided confrontations and ignored the
Students overtures up to the point when safety became an issue.141 The
Parents argument that state law mandates that safety be ignored in favor of a
policy of positive reinforcement simply cannot be credited.
Ms. Ostroms most recent report aptly sums up what has really happened
in this case. Her report states:
Over the years there have been discussions, including
litigation, to address the use of police officers as
interventionists in the educational environment. This
emphasis has implicated the behavioral profile two-fold. First
the student may threaten the actions of the police liaison as
his behaviors are escalating.More concerning, however
possible, is that [the Student] may taunt to gain the actions of
the officer in efforts to impact communication and
collaboration on the educational team.142
Thus, notwithstanding the Students admitted difficulties in gaining insight into his
own behavior, he appears to be, at some level, well aware of how to interfere
with the critically-important collaboration between educators and the Parent.
B. Progress on Academic and Behavioral Goals
The Parent argues that the Districts failure to effect any academic
progress and to address the Students emotional and behavioral problems with
non-police interventions deprived the Student of a meaningful educational
opportunity. Again, the argument is factually unsupportable. The Parent insists
that the hearing officer attribute that progress to the Students work at Sylvan. To
do so would require that the record evidence of the Students success at Bell
Center be ignored.143 During his first quarter at Bell Center, there can be no
argument that the Student progressed. And even during the quarter in which the
Student was least successful, from a behavioral point of view, he presented a
139 Minn. R. 3525.0850 encourages the use of positive approaches to behavioral interventions.
The objective of any behavioral intervention must be that pupils acquire appropriate behaviors
and skills.
140 Test. of Pitney, p. 1074.
141 Test. of Pitney, p. 968.
142 Ex. 33, p. 11.
143 Dr. Ziegler was unwilling to assume all progress occurred as a result of any one of the three
teaching sourcesBell Center, homebound, or Sylvan. T. 387.
24
Case 0:07-cv-04023-ADM-AJB Document 30-2 Filed 06/11/2008 Page 24 of 27
major project to the entire student body. The team recognized the multiple tasks
that went into the project. As Dr. Ziegler reported, since his previous testing of
the Student, the Student has shown academic improvement across the board.144
As to the Students progress on his emotional and behavioral goals, the
record demonstrates progress. It is an oddity of this case that, despite the
seemingly large numbers of behavioral incidents, the severity of the Students
behavior actually improved over his prior program. As Ms. Ostrom observed,
Bell Center records behavior in tiny increments, which makes the number of
incidents seem much higher there. However, Ostrom found that the frequency of
physical aggression, sexualized behavior and property destruction decreased at
Bell Center as compared to the Explore program.145 She reached the conclusion
that the severity and frequency of behaviors had decreased by reviewing the
content of incident reports.146
The Parents argument about educational opportunity being denied is just
not supported by the facts.
PROCEDURAL COMPLIANCE WITH IDEA
IEP Implementation and Revision
The Parent argues that the District violated IDEA by failing to implement
the BIP as written and failing to revise it as needed. This argument ignores the
testimony and exhibits presented by the District at hearing. The team met
monthly with the Parent to discuss the Students academic and behavioral
progress.147 Discussion was had about whether the Students plan needed
revision. Changes were made in the IEP148 and in the BIP as circumstances
indicated.149 When behavior problems arose, the team used the BIP as its
blueprint for how to proceed.150 Staff was trained in the strategies Ostrom
recommended, especially in differential reinforcement.
The Parent correctly notes that the BIP called for the District to consult
with Ostrom and that it failed to re-involve her when the Students behavior
deteriorated. In fact, Ostrom participated only in the first two team meetings
during the 2005-06 school year. When problems surfaced in February, Maass-
Hanson, the Districts own behavior expert, began to be involved. But Ostrom
was not consulted. On reflection, it probably could have been helpful for Ostrom
to facilitate team meetings with the Parent as the Students behavior strained the
education team relationship.
144 Ex. 29, p. 19.
145 Test. of Ostrom, p. 604.
146 Test. of Ostrom, pp. 606-9.
147 Ex. 5, 6, 7, 8, 37.
148 Ex. 38.
149 Ex. 16.
150 Test. of Webb, pp. 174-76.
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However, the law does not demand strict compliance with every syllable of
an IEP. For a denial of FAPE to occur, the school district must have materially
failed to implement the IEP, meaning that the services provided fell significantly
short of those required in the IEP.151 Only a showing of substantial or significant
failure to implement an IEP will prove a denial of FAPE.152
The failure to re-involve Ostrom did not cause services to fall significantly
short of what the IEP required. The District had its own behavior specialists, who
immediately became involved when it was necessary. Maass-Hanson teamed
with other staff, they reviewed the BIP together, and made genuine efforts to
solve behavior problems according to the provisions of the BIP.153 Moreover, as
previously discussed, the IEP and its BIP were revised throughout the school
year when it was warranted.
151 Van Duyn v. Baker Sch. Dist., 481 F.3d 770, 780 (9th Cir. 2007)
152 Slama v. Ind. Sch. Dist. No. 2580, 259 F.Supp.2d 880 (D. Minn. 2003).
153 Test. of Webb, pp. 170-76; Test. of Maass-Hanson, pp. 676-85.
26
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Progress Reports
The Parent maintains that the District also failed to comply with the
procedural requirements of IDEA by failing to make progress reports. The record
thoroughly refutes this argument. Bell Center staff held monthly meetings with
the Parent, as discussed above; made in excess of 60 calls to her;154 provided
report cards and progress reports; sent home tracking sheets daily at the
Parents request;155 and invited the Parent to make impromptu visits.156 Staff
also invited the Parent to visit the classroom to enhance her understanding of the
Students performance and how behavioral issues were addressed.157
Evaluations, Review and Revision of the IEP
The Parent objects that the District failed to undertake evaluations during
the last three quarters, even though circumstances warranted it and failed to
meaningfully review and revised the IEP at the end of the school year. The
evidence is otherwise.
At the end of the first quarter, the District made changes to the IEP to
provide for a longer school day.158 In February 2006, the District began another
FBA and developed a revised BIP due to the developing behavior problems with
the Student.159 At the end of the School year, the District conducted a
comprehensive review and undertook revision of the IEP in light of new
information. The IEP incorporated information from the past school year and,
importantly, ESY was offered. ESY was the opportunity for the Student to get
back on track with his behavior. Unfortunately, the Parent never responded to
the Districts offer.
The record simply does not support these or any of the Parents other
claims of procedural violations of IDEA. Because the District provided the
Student with a FAPE and complied with the procedural requirements of IDEA and
state law, there is no basis for compensatory educational services.
L. F. C.
154 T. 246-48; Ex. 17, 18.
155 Test. of Webb, p. 245; Ex. 19.
156 Test. of Pitney, p. 946; Ex. 42.
157 Test. of Webb, pp. 212-13; Ex. 42.
158 Ex. 8.
159 Ex. 16.
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