K.S. was a 16 year-old biracial student who was diagnosed with Asperger
Syndrome, obsessive compulsive disorder, mood disorder, adjustment
disorder, and Tourette's syndrome. These diagnoses significantly affected
K.S.'s communication, socialization, and behavior. In addition, K.S. had a full
scale IQ of 123, excelled in math and science, successfully took several
advanced placement classes, and was involved in extracurricular activities
including show choir, the school musical, and volleyball.
As a result of her diagnoses, K.S. was identified as an individual with a
disability under the IDEA, and received special education and related
services under an individualized education program (“IEP”) during her
freshman and sophomore years. She participated in an autism spectrum
disorder (ASD) program, was provided with a one-on- one paraprofessional
for the entire school day, could return to the ASD classroom any time during
the school day, and also could use the ASD classroom to take tests in a quiet
environment. Despite her social difficulties, K.S. was able to stay in the
general education setting most of the day and ranked near the top ten
percent of her class.
K.S. was raped during the 2011-12 Christmas break. K.S.'s mental health
providers recommended getting her back into a routine as quickly as
possible. K.S. returned to class in January 2012 and participated in the
school’s junior high show choir. Due to the circumstances, K.S.’s mother
agreed to postpone the annual IEP review scheduled for January. An interim
IEP was put in place that included several additional accommodations to
ease K.S.'s transition back to school after the rape. The interim IEP was
reaffirmed in February. The parties planned to conduct a full IEP review in
September 2012 after everyone had a better understanding of how K.S. had
recovered from her traumatic experience.
K.S. experienced several difficulties in the spring semester. She reported
that a student held a knife to her throat and threatened to cut her. The
matter was investigated, and the student was admonished. Later that
spring, K.S. slapped a student and used foul language because the student
tapped her to get her attention. An IEP meeting was held in May, and
wording was added to the IEP to add paraprofessional support for K.S.’s
extracurricular activities. The next setback for K.S. occurred when she was
not selected for varsity or junior varsity show choir, scoring 62nd out of 100
girls.
K.S.’s bat-shit- crazy mother filed a civil rights lawsuit against the school
district, claiming K.S. was excluded from the show choir because of her
disability and race. In an attempt to end the dispute, the district offered to
place K.S. in the junior varsity show choir. The mother rejected the offer. A
hearing was held, and the district court rejected the mother’s request for a
temporary restraining order and preliminary injunction. The district court
found there was no evidence that the decision regarding show choir had
anything to do with K.S.'s disability or race. Nonetheless, in an effort to
resolve the case before it proceeded to IDEA litigation, the school again
offered to reinstate K.S. to the junior varsity show choir. The mother again
refused the offer.
K.S. last attended school May 18, the day the show choir results were
publicized, and she eventually took her final exams off-campus. K.S.
attended every volleyball summer conditioning session in June, July, and
August, during which she got along well with coaches and students.
An IEP meeting was held on August 16. K.S.’s mother spent most of the
meeting presenting information to support her claim that K.S. must be
placed in the varsity show choir. The mother insisted that K.S.’s
participation in varsity show choir was a necessary prerequisite to attend
school in the fall. However, the IEP team determined that K.S.'s needs for
social skills, physical activities that reinforce skills, consistent routines,
regular schedule, and challenging academic courses could be met in ways
other than her being placed in the varsity show choir.
The mother withdrew K.S. from the public school and filed a due process
complaint seeking tuition reimbursement for placement at a private school.
The administrative law judge found in favor of the school district, and the
mother appealed to the Eighth Circuit.
The court indicated that in order to get reimbursement for a private
placement, two requirements must be established: that the school failed to
provide a FAPE; and that the private school is an “appropriate” placement
within the meaning of the IDEA. In addition, the school is not required to
provide an optimal experience for a student with a disability, but instead
must simply provide the student with a FAPE consistent with the IEP.
The mother claimed that the district did not conduct a genuine review in
August 2012 to address K.S.'s needs for the upcoming school year,
essentially claiming that the district “recycled” the old IEP. The court
rejected this claim. The court said that the IDEA does not require officials to
revise the IEP on an annual basis; they simply must review it. Additionally,
the school district had not neglected its duties. Despite the parties agreeing
to postpone the annual review until the fall of 2012, the IEP was reviewed in
February and reviewed and revised in May to address concerns that had
arisen.
The mother argued that the emotional changes that K.S. underwent from
January 2012 to August 2012 required more than minor changes to the IEP.
The school district responded that the IEP team worked closely with K.S.'s
medical team and implemented the team's recommendations and advice
that K.S. remain in as consistent a routine as possible during the aftermath
of the rape. The school district also pointed out that the real reason that
K.S. withdrew from school was due to the show choir decision.
The mother also argued that he court must find in her favor “because she
presented a consensus of medical and psychological experts at the due
process hearing, while the school only presented district employees such as
the paraprofessional, the special education director, and the principal.” The
court said: “The district employees did not attempt to give inappropriate
medical testimony about K.S.; instead, they offered professional
observations based upon actual and ongoing contact with K.S. regarding her
educational and social performance in a variety of school settings.” The
court rejected her request to rule in her favor “simply based on the sheer
number of experts she compiled compared to the district.”
The court was not fooled by the mother’s attempt during the appeal to focus
on the content of the IEP and whether the district was meeting K.S.’s needs
with the IEP. The court noted that the mother spent a “substantial portion”
of the August IEP meeting advocating that K.S. be placed in varsity choir
rather than advocating for any specific substantive changes to the IEP. “[I]t
is abundantly clear from reading the entirety of the administrative record
that [the mother]’s focus, until the time she unilaterally pulled K.S. from the
district, was getting K.S. into show choir—and not just any show choir, as
the district made an unconditional offer in July 2012 to place K.S back into
the [junior varsity] show choir. The case was litigated in federal district
court in a quest for a TRO, and at the school district level, with the nearly
singular focus that K.S.'s educational needs could only be met by placing her
in the Happiness show choir.”
The court found that because the IEP advanced by the district was providing
K.S with “some educational benefit” as of August 2012 when the mother
unilaterally removed her from the district, the mother failed to prove that
the district was not providing K.S. a FAPE at that time. “Given all of the
opportunities and resources available to K.S. via the IEP and other
extracurricular activities at Kennedy, we find that the district's refusal to
override the show choir audition process and unilaterally require the show
choir director to place K.S. in the Happiness show choir did not deny K.S. a
FAPE.”