K.R. v. Killeen Indep. Sch. Dist.

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K.R. AND J.R., AS NEXT FRIENDS OF H.R., A MINOR, Plaintiffs, v. KILLEEN INDEPENDENT SCHOOL DISTRICT, Defendant.

No. 6:20-CV-00195-ADA-JCM

United States District Court, W.D. Texas, Waco Division

April 19, 2022

THE HONORABLE ALAN D ALBRIGHT UNITED STATES DISTRICT JUDGE

ORDER AND REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

JEFFREY C. MANSKE UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), FED. R. CIV. P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the United States Magistrate Judge are Defendant Killeen Independent School District's Motion for Judgment on the Administrative Record or Alternative Motion for Summary Judgment (“Defendant's Motion for Judgment,” ECF No 22), Defendant's Motion to Re-Urge (ECF No. 27) Defendant's Second Motion to Re-Urge (ECF No. 32) Defendant's Third Motion to Re-Urge (ECF No. 40), Plaintiffs' Motion for Judgment on the Record (“Plaintiffs' Motion for Judgment,” ECF No. 41), Defendant's Motion to Strike Plaintiffs' Motion for Summary Judgment (ECF No. 42), Plaintiffs' Motion to Strike Defendant's Reply (ECF No. 48), and all responses and replies thereto. For the following reasons, the Court RECOMMENDS the following: that Defendant's Motion for Judgment be GRANTED; that Plaintiffs' Motion for Judgment be DENIED; that Defendant's Motion to Re-Urge be GRATED IN PART and DENIED IN PART; that Defendant's Second Motion to Re-Urge be DENIED AS MOOT; and that Defendant's Third Motion to Re-Urge be DENIED AS MOOT. The Court ORDERS that Defendant's Motion to Strike Plaintiffs' Motion be DENIED; and that Plaintiffs' Motion to Strike Defendant's Reply be DENIED.

I. BACKGROUND

Plaintiff H.R. is a minor who previously attended school within the jurisdictional bounds of Defendant Killeen Independent School District. Administrative Record at 0358. After moving to the United States from Puerto Rico, H.R. enrolled with Defendant at Trimmier Elementary School at the beginning of the 2014-2015 school year for pre-kindergarten. Id. During this school year, H.R. exhibited aggressive behavior, hyperactivity, difficulty focusing, and difficulty socializing. A.R. at 0373. H.R. was completing grade-level work, turned in most of his homework, and did not have an absenteeism issue at this time. A.R. at 0367.

In November 2014, Defendant completed a Full and Individual Evaluation (“FIE”) as well as a Psycho-educational Evaluation of H.R. See A.R. at 0358-74; 1277-94. The evaluations revealed that H.R. did not meet Texas Education Agency (“TEA”) guidelines for a child with a Specific Learning Disability, autism, speech impairment, or cognitive disability. A.R. at 0372-74. Defendant then referred H.R. to be assessed further under Section 504 of the Individuals with Disabilities Education Act (“IDEA”) to determine his qualification for accommodations and modifications under the statute. A.R. at 0374.

In a psychological evaluation dated April 3, 2015, H.R. was diagnosed with Attention Deficit/Hyperactivity Disorder (“ADHD”), Combined Presentation, and Oppositional Defiant Disorder (“ODD”). A.R. at 1301-03. The report noted that H.R. displayed some characteristics of autism, but this was insufficient evidence to support a formal diagnosis. Id.

For the 2015-2016 school year, H.R. was enrolled in kindergarten at Peebles Elementary. A.R. at 0376. In August 2015, Defendant conducted a new FIE at the request of H.R.'s parents after the parents submitted two Other Health Impairment (“OHI”) Physician's Reports indicating H.R. had ADHD. Id. In September 2015, H.R.'s Admission Review Dismissal Committee (“ARDC”) completed the FIE and found H.R. eligible under the TEA guidelines as a student with OHI based upon ADHD. A.R. at 0382.

Upon further psychological evaluation and the submission of medical records from the previous summer, a November 2015 FIE reported that H.R. was eligible as a student with Emotional Disturbance (“ED”) and OHI based upon ADHD. A.R. at 0395-97. The medical records revealed that during the summer of 2015, H.R. was admitted to the Metroplex Behavioral Health Center with a diagnosis of Axis I: Psychotic Disorder/Not Otherwise Specified, autism, ODD, and ADHD. A.R. at 0386.

In October 2015, Defendant completed a Functional Behavior Assessment (“FBA”) and found three challenging behaviors to be improved. A.R. at 1344-48. Throughout this time, H.R. displayed aggressive outbursts where he hit teachers and students, destroyed things, and became so out of control that other students had to be removed from the classroom. Id. While H.R. appeared to be able to perform the academic work assigned to him, he often refused, acted out, and became distracted to the point of not finishing his assignments. Id.

In January 2016, H.R. transferred to a Positive Behavior Support (“PBS”) classroom at Ira Cross Elementary. See A.R. at 1349. H.R.'s aggressive and self-harming behavior continued during this time. A.R. at 1349-1437 (restraint records). Defendant completed a Review of Existing Evaluation Data (“REED”) of H.R. in May 2016, which revealed that H.R. did not need further evaluation of his cognitive abilities, speech and language communication, health, vision, hearing, and motor skills. A.R. at 1438-43. During this school year, the ARDC updated H.R.'s Behavior Intervention Plan (“BIP”) to address his challenging behaviors and requested a new autism evaluation. A.R. at 1451-53.

During the 2016-2017 school year, H.R. was enrolled in first grade at Ira Cross Elementary. His aggressive and self-injuring behaviors continued during this time to the extent that school staff physically restrained H.R. multiple times. A.R. at 1454-56. In January 2017, a new FBA was completed to target H.R.'s behaviors and included a new BIP. Id.

In March 2017, an outside physician conducted an Independent Educational Evaluation (“IEE”) and recommended that H.R. be found eligible for autism, emotional disturbance, and OHI based upon ADHD. A.R. at 0401-46. While the ARDC met in May 2017 to review the IEE, the ARDC did not adopt the recommendation and continued H.R.'s primary disability as ED and secondary disability as OHI. A.R. at 0447-50.

During the 2017-2018 school year, H.R. was enrolled in second grade at Ira Cross Elementary. A.R. at 1464. Again, H.R.'s disruptive and aggressive behaviors continued. A.R. at 1510-12.

During the 2018-2019 school year, H.R. was enrolled in third grade at Sugar Loaf Elementary. H.R.'s ARDC met in August 2018, completed a REED, and continued his eligibility as a student with ED and OHI. A.R. at 0713, 0718. The ARDC developed his IEP for the school year, as well as a Behavior Support and Intervention Plan (“BSIP”). A.R. at 0719-33. While H.R.'s aggressive and destructive behaviors continued during this year, both the ARDC and H.R.'s father reported improvement in H.R.'s countenance and behavior. A.R. at 1737-39.

As the result of a mediation between the ARDC and H.R.'s parents, the ARDC adopted the IEE recommendation of eligibility for autism in its November 2018 meeting. A.R. at 1884. Autism became H.R.'s primary disability, followed by ED as his secondary disability and OHI as his tertiary disability. A.R. at 0891. H.R.'s IEP for this time period included the addition of an autism supplement as well as an updated BIP addressing H.R.'s disruptive behaviors, aggression, and authority defiance. A.R. at 0892-0901, 0908-14. The ARDC reached consensus at the November 2018 meeting. A.R. at 0926.

On January 11, 2019, an incident occurred where H.R. punched his teacher in the genitals and kicked her. A.R. at 0240. H.R. then scratched and punched another staff member and attempted to attack her with a pencil. Id. Following this incident, Defendant charged H.R. with physical assault on staff with serious bodily injury. A.R. at 1169. Defendant later found that this incident met the criteria for Disciplinary Alternative Education Placement (“DAEP”) at a campus-level conference. A.R. at 1147. Following the conference, the ARDC conducted a Manifestation Determination Review (“MDR”) to determine whether the incident was a manifestation of H.R.'s disabilities. A.R. at 1169. The MDR committee ultimately found that the incident was not a manifestation of H.R.'s disabilities, that the incident was not caused by or substantially related to H.R.'s disabilities, and that the incident was not a result of Defendant's failure to implement H.R.'s IEP. Id. Following the MDR's decision, H.R.'s parents unilaterally placed H.R. in private school at Oak Creek Academy. See A.R. at 1543.

H.R.'s parents K.R. and J.R. requested a due process hearing under the IDEA, arguing: (1) Defendant failed to provide H.R. a free appropriate public education (“FAPE”) in the 2018-2019 school year; (2) Defendant failed to conduct proper evaluations including an appropriate FBA; (3) Defendant failed to provide H.R. an appropriate BIP; (4) Defendant failed to provide school staff proper training for H.R.'s IEP and BIP; (5) Defendant violated K.R. and J.R.'s procedural rights by failing to provide ARDC documents in their native language of Spanish; (6) Defendant discriminated against H.R. and K.R. in the process of the MDR ARDC; (7) Defendant failed to conduct a proper MDR and the MDR decision was erroneous; (8) Defendant failed to use the proper definition of “serious bodily injury” in the MDR and DAEP decisions; (9) Defendant improperly decided that H.R.'s DAEP placement was proper; (10) Defendant violated 34 C.F.R. § 300.530 in removing H.R. from his current placement to...