                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1915
                         ___________________________

Ron Parrish, Parents of L; Lauren Parrish, Parents of L; Victor Craig, Parents of A;
Laura Craig, Parents of A; Casey Laws, Parents of G; Chastidy Laws, Parents of G;
                           Rachelle Siverly, Parent of S

                       lllllllllllllllllllllPlaintiffs - Appellants

                                           v.

                            Bentonville School District

                        lllllllllllllllllllllDefendant - Appellee

 Michael Poore, District Superintendent; Tanya Sharp, District Executive Director
   Student Services; Rebecca Powers, Bentonville School Board; Travis Riggs,
   Bentonville School Board; Rudy Upshaw, Bentonville School Board; Wendi
 Cheatham, Bentonville School Board; Willie Cowgur, Bentonville School Board;
Grant Lightle, Bentonville School Board; Maureen Bradshaw, District SPED Coordinator

                             lllllllllllllllllllllDefendants

         Arkansas Department of Education; Johnny Key, Commissioner

                       lllllllllllllllllllllDefendants - Appellees
                                       ____________

                     Appeal from United States District Court
                for the Western District of Arkansas - Fayetteville
                                 ____________
                            Submitted: February 14, 2018
                                Filed: July 24, 2018
                                   ____________

Before LOKEN, BENTON, and ERICKSON, Circuit Judges.
                           ____________

ERICKSON, Circuit Judge.

       Child L, Child A, Child G, and Child S are all children who attended
elementary school for varying lengths of time in the Bentonville School District
(District). Each child has been diagnosed with autism. The children allege the
District denied them a free appropriate public education (FAPE) as required by the
Individuals with Disabilities Education Act (IDEA). The claims on appeal fall under
the IDEA, 42 U.S.C. § 1983, based on the right to bodily integrity and equal
protection, § 504 of the Rehabilitation Act, and Title II of the Americans with
Disabilities Act.1 The parents, on behalf of their children, appeal the district court’s2
seventy-seven page decision granting the District’s and the Arkansas Department of
Education’s motions for summary judgment. We affirm.

I.    BACKGROUND

      A single complaint initiated this action on behalf of four different children with
four different sets of facts. The court will briefly identify pertinent background
information on each child.




      1
        Other claims had been dismissed by the district court in an earlier order, which
is not on appeal.
      2
      The Honorable P.K. Holmes, Chief Judge, United States District Judge for the
Western District of Arkansas.

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      1.     Child L

       Child L was diagnosed with autism when he was in kindergarten. He was
enrolled in the District from kindergarten until third grade. Child L received services
pursuant to the IDEA. The District provided services to Child L under an IEP.
During Child L’s third grade year, his behavior substantially worsened. A behavior
support plan was created that identified specific methods the District would use to
address Child L’s misbehavior. In addition, the District decided to conduct a
functional behavior assessment, which outlined Child L’s recurring behavioral issues.

      Child L exhibited a variety of attention seeking behaviors, which primarily
stemmed from disagreements with another student. In an attempt to respond to these
behaviors, the District outlined several curriculum modifications to address Child L’s
misbehavior, including that Child L would go out for a separate recess to avoid
contact with the particular student who appeared to be an instigator in Child L’s
behavioral outbursts.

       In addition, the behavior support plan was reviewed and modified to address
Child L’s ongoing needs. Specifically, the plan provided: (1) he was to be placed
across the room and facing away from the child that triggered his aggressive behavior
(change in space); (2) he would be provided with a visual timer to indicate changes
in schedule (change in instructional materials); (3) he would be provided research-
based methods such as applied behavior analysis, picture exchange methods, or story-
based intervention (change in curriculum); (4) his functional routines in the class
would be modified (change in curriculum); (5) he would be given a sensory diet
(change in curriculum); (6) he would be allowed quiet time after recess and would
have the opportunity to listen to calming music and sleep until he awakened (change
in curriculum); and (7) he would have a designated time each day to work with his
special education teacher on social skills (change in curriculum).

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       Despite multiple programming conferences and attempts to manage Child L’s
recurring misbehavior, from December 2012, until the time the parents withdrew
Child L from the District, Child L exhibited behavioral outbursts that ranged from
mild disruptions to acts of aggression that resulted in physical harm to several District
employees.

      2.     Child A

       Child A’s mother observed early in A’s life that he was not progressing at the
same rate as his twin sister. Before being enrolled in the District, a doctor noted that
Child A exhibited “high intellectual abilities” but struggled with self-regulation, peer
relationships, and social reciprocity. Child A was enrolled in the District from
kindergarten through second grade.

        Child A received services pursuant to the IDEA. The District provided Child
A with education under an IEP, which contained academic goals, instructional
modifications, supplemental aids, and supports to assist Child A in receiving a FAPE.
As part of the IEP, the District provided Child A with a paraprofessional staff member
for all of Child A’s general education activities. The IEP noted that Child A exhibited
“physically aggressive behaviors towards staff and other students.” The District
prepared a behavior support plan to address these behaviors.

       Between January and March 7, 2013, Child A behaved aggressively on nine
separate occasions. The behavior included hitting; spitting; throwing objects,
furniture, school supplies, and books; yelling; biting; pushing walls and objects;
scratching; pulling and ripping out hair; head-butting; pulling clothing; attempting to
insert spit into an electrical outlet; disrobing; attempting to choke himself by putting
a finger down his throat; running around the room; banging on doors and glass;
pushing over cabinets; throwing furniture; tearing the back end off cabinets; dumping
out containers; ripping handles off closed shelves; kicking computer monitors, chairs,

                                          -4-
and desks; and urinating on the carpet. The hearing officer concluded that the District
first addressed this misbehavior through use of the interventions contained in the IEP,
but when these methods proved ineffective the District applied CPI holds3 and would
transport Child A to a separate environment.

       At a programming conference in March 2013, the District decided a functional
behavioral analysis needed to be completed and the behavioral support plan revised.
Between March 8, 2013, and May 30, 2013, Child A behaved aggressively on at least
eight separate occasions, including swinging his arm at a teacher, pushing over
bookshelves, and attempting to harm another student. The District continued to resort
to the intervention techniques contained in the IEP and behavior support plan, but
eventually Child A would need to be restrained and transported to a different
environment for the safety of himself and others.

       For second grade, Child A’s parents consented to placement in a different
elementary school within the District that operated on a traditional school year
calendar, whereas the previous school operated on a year-round calendar with long
periodic breaks. In the spring semester of second grade, Child A started arriving late
to school and was being checked out of school early. Child A’s parents then withdrew
A from the District.

      3.     Child S

      Child S attended elementary school in the District during his second grade year.
The District educated Child S in accordance with an IEP that was developed under the
procedures outlined in the IDEA. During Child S’s enrollment in the District, the




      3
        A CPI hold was described by the hearing officer as “a hold where staff,
standing behind A, holds his wrists so that A’s arms are wrapped around him.”

                                         -5-
District also relied upon behavior plan documents, input from a psychologist, and a
crisis plan to manage Child S’s education and behavior.

       IEP documentation from April 25, 2013, indicated that Child S refused to do
work and follow directions. Child S’s refusal to work escalated to physical aggression
at least once per day, and Child S would spend an average of one hour per half-day
in the recovery setting for de-escalation.

       From the period of August 21, 2012, to September 28, 2012, a behavior support
plan documented that Child S exhibited 28 episodes of physical aggression, 16
episodes of verbal aggression, 27 episodes of refusing to work, and 21 episodes of
attempting to leave. This amounted to a total of 92 episodes regarding behavioral
issues during an approximate one month period. The behavioral issues ranged from
throwing chairs and running around to kicking, punching, scratching, and head-butting
staff members.

     The crisis plan authorized the District to use physical restraint as a last resort
when Child S presented a danger to himself or others. The District used various
methods of restraint for Child S.

      When Child S’s mother learned that the District was requesting that Child S be
placed in therapeutic day treatment, the mother withdrew Child S from school and
moved Child S to live with Child S’s aunt in California.

      4.     Child G

     Child G attended elementary school in the District during his second grade year.
His diagnoses include Pervasive Developmental Disorder, Attention Deficit
Hyperactivity Disorder, and Not Otherwise Specified. The District’s evaluations
showed Child G to exhibit average cognitive functioning, normal pragmatic skills, and

                                         -6-
average achievement composite scores on education achievement testing. Child G’s
qualifying educational diagnosis for services was autism.

      Child G’s parents placed Child G in a private school and relocated away from
the District when they believed Child G started exhibiting fear, anxieties, and school
avoidance behaviors.

II.   DISCUSSION

       On appeal, the parents re-raise their claims and argue that the district court erred
as a matter of law in finding the District provided a FAPE in the least restrictive
environment, erred in dismissing Child S and Child G’s claims for failure to exhaust,
and abused its discretion in excluding Dr. Howard Knoff’s expert report. We find no
error or abuse of discretion.

      A.      IDEA Claims

      The parents of Child L and Child A seek review of final administrative orders
that followed due process hearings conducted by the Arkansas Department of
Education. The parents of Child S and Child G withdrew from the District and never
exhausted the administrative procedures set forth in 20 U.S.C. § 1415. Because of the
procedural differences, the claims of Child L and Child A are considered collectively
and the claims of Child S and Child G are considered collectively.

                       Review of Child L and Child A’s Claims

       In an IDEA case where there are no procedural issues, the statute authorizes
judicial review of the state hearing officer's “determination of whether the child
received a [FAPE].” 20 U.S.C. § 1415(f)(3)(E)(i). “Because judges are not trained
educators, judicial review under the IDEA is limited.” Pachl v. Seagren, 453 F.3d

                                           -7-
1064, 1068 (8th Cir. 2006) (quoting E.S. v. Indep. Sch. Dist., No. 196, 135 F.3d 566,
569 (8th Cir. 1998)).

       A FAPE “consists of educational instruction specially designed to meet the
unique needs of the handicapped child, supported by such services as are necessary
to permit the child ‘to benefit’ from the instruction.” Bd. of Educ. of Hendrick
Hudson Cent. Sch. Dist., Westchester Cty v. Rowley, 458 U.S. 176, 188–89 (1982).
Whether a school district provided a child with a FAPE is reviewed de novo. I.Z.M.
v. Rosemount-Apple Valley-Eagan Pub. Sch., 863 F.3d 966, 970 (8th Cir. 2017).
“The reviewing court ‘must give due weight to the outcome of the administrative
proceedings.’” Id. (quoting T.F. v. Special Sch. Dist. of St. Louis Cty., 449 F.3d 816,
818 (8th Cir. 2006). “On appeal, district court factual findings ‘are binding unless
clearly erroneous.’” Id. (quoting Gill v. Columbia 93 Sch. Dist., 217 F.3d 1027, 1035
(8th Cir. 2000)).

       In this case, the district court meticulously reviewed the entire record before the
hearing officer, provided a thorough summary of the evidence, developed the record
where the hearing officer’s decision was deficient, and relied on the hearing officer’s
credibility determinations when there was conflicting testimony. The district court
granted the District’s motions, concluding the record showed no violation of the
IDEA. More specifically, the court found that: (1) the District took reasonable steps
to train its teachers; (2) the District did not use physical force and seclusion in a way
that denied Child L or Child A a FAPE; (3) the District held programming
conferences and informal meetings to propose, implement, modify, and communicate
interventions regarding misbehavior and academic progress as well as goals and
objectives; (4) the District’s implementation and collection of data arising from
behavior intervention plans complied with the IDEA; (5) the strategies used by the
District, even if not perfect, complied with the IDEA; (6) the parents did not raise a
genuine issue for trial on whether the District failed to educate their children in the
least restrictive environment; and (7) after fully developing the record on whether the

                                           -8-
parents of Child L were given a meaningful opportunity to participate in the
modification of Child L’s IEP and behavior plans, there was no actionable IDEA
violation raised by either Child L or Child A.

       With regard to the § 1983 claims for violation of bodily integrity and equal
protection, the district court found there was no cited instance of restraint used by the
District that could be deemed unreasonable and no identification of a similarly
situated student who was treated differently. As to the § 504 Rehabilitation Act and
ADA claims, the court found that the parents of Child L and Child A failed to show
the District acted in bad faith or with gross misjudgment.

       Here, the district court, like the hearing officer before, concluded that the
District had provided Child L and Child A with a FAPE. After carefully reviewing
the claims, the entire record, the arguments of the parties, the decisions of the hearing
officer, and the decision of the district court, we conclude that the record supports the
district court’s findings and conclusions that the parents have failed to demonstrate
an actionable IDEA claim, a claim under § 1983, a claim under § 504 of the
Rehabilitation Act, or a claim under the ADA. The District’s IEPs and behavior
intervention plans included detailed strategies to address the children’s behavioral
problems and contained evidence that the children were progressing academically.
The District’s strategies, while they might have been imperfect, complied with the
IDEA. See M.M. v. Dist. 0001 Lancaster Cty. Sch., 702 F.3d 479, 487 (8th Cir. 2012)
(quoting CJN v. Minneapolis Pub. Sch., 323 F.3d 630, 639 (8th Cir. 2003)) (“It is
‘largely irrelevant’ if the school district could have employed ‘more positive behavior
interventions’ as long as it made a ‘good faith effort’ to help the student achieve the
educational goals outlined in his IEP.”).

       The claims under the ADA and the Rehabilitation Act are similarly
unsupported. The parents failed to present evidence of bad faith or gross misjudgment
sufficient to proceed with their alleged ADA and § 504 violations. See I.Z.M., 863

                                          -9-
F.3d at 973 (repeating that “where alleged ADA and § 504 violations are based on
educational services for disabled children, the plaintiff must prove that school officials
acted in bad faith or with gross misjudgment.”) (quotation and citation omitted).
Additionally, the record is devoid of evidence that the District used physical force or
seclusion in a manner that denied the children a FAPE. Also, the parents failed to
present any evidence that the District treated Child L and Child A differently than
other similarly situated children. Under the circumstances presented here, the district
court properly granted summary judgment on Child L and Child A’s claims.

                       Review of Child S and Child G’s Claims

       “This court reviews de novo whether exhaustion of administrative remedies was
required.” J.M. v. Francis Howell Sch. Dist., 850 F.3d 944, 947 (8th Cir. 2017)
(citations omitted). The gravamen of both Child S and Child G’s claims seek to
redress the denial of a FAPE. Child S’s mother did not file an IDEA due process
complaint, request a due process hearing, or engage in the exhaustion procedures
under the IDEA. Rather, she moved her child out-of-state and then commenced this
action. Similarly, Child G’s parents did not file an IDEA due process complaint,
request a due process hearing, or engage in the exhaustion procedures under the
IDEA. They relocated with Child G to another state and then commenced this action.

       Because they seek relief available under the IDEA in the form of denial of a
FAPE, Child S and Child G’s claims are subject to exhaustion, barring an applicable
exception. J.M., 850 F.3d at 950. The three exceptions are “(1) futility, (2) inability
of the administrative remedies to provide adequate relief, and (3) the establishment
of an agency policy or practice of general applicability that is contrary to law.” Id.
(quotation and citation omitted). None of the exceptions apply in this case.

       The parents assert that they meet the futility exception because they moved out
of state. Their assertion is unsupported by any precedential authority. The district

                                          -10-
court properly granted summary judgment on Child S and Child G’s claims for failure
to exhaust their administrative remedies.

      B.      Exclusion of Expert Report

       This court reviews a district court's exclusion of expert testimony for an abuse
of discretion, and its findings of fact for clear error. Taylor v. Cottrell, Inc., 795 F.3d
813, 816 (8th Cir. 2015).

        The Appellants argue that the district court abused its discretion when it
excluded Dr. Howard Knoff’s expert report on the grounds that the report was not
timely disclosed and the untimely disclosure was not harmless or substantially
justified. The court’s scheduling order stated that discovery must be completed by
March 8, 2016, which was then extended until August 2, 2016. Dr. Knoff was
disclosed as a potential expert witness on February 8, 2016. No report was disclosed
prior to the initial close of discovery. One day before the extended discovery deadline
of August 2, 2016, Dr. Knoff’s report was disclosed.

       A district court’s exclusion of evidence is reviewed “for a clear and prejudicial
abuse of discretion.” Wegener v. Johnson, 527 F.3d 687, 690 (8th Cir. 2008). “We
will reverse only if the district court’s ruling was based on ‘an erroneous view of the
law or a clearly erroneous assessment of the evidence’ and affirmance would result
in ‘fundamental unfairness.’” Id. (quoting Davis v. U.S. Bancorp, 383 F.3d 761, 765
(8th Cir. 2004)). We find the district court’s election of exclusion as a remedy was
within the bounds of its discretion in this case. The failure to disclose the report in a
timely manner was neither substantially justified nor harmless. If the court had not
excluded the report, it would have been necessary to grant a continuance and further
disrupt the court’s trial calendar.




                                           -11-
       The Appellants argue that the district court abused its discretion because
exclusion was tantamount to dismissal of Child L and Child A’s § 1983 claim and
disability discrimination claims. This argument is especially unavailing in this case
because an examination of the expert report reveals it lacked sufficient substance to
materially impact the district court’s analysis. The report contained pages of general
information about the statutes giving rise to the claims and then formed conclusory
opinions with virtually no specifics or detail about the District’s alleged failures. A
district court does not abuse its discretion in excluding a conclusory, non-specific
report. Under these circumstances, we affirm the district court’s exclusion of Dr.
Knoff’s expert report.

III.   CONCLUSION

      Upon review of the record and the deference afforded in these types of cases,
we agree with the district court that Child L and Child A failed to establish a
cognizable claim under the IDEA, § 1983, § 504 of the Rehabilitation Act, or the
ADA. The district court properly dismissed Child S and Child’s G’s claims for failure
to exhaust administrative remedies. The district court did not abuse its discretion in
excluding Dr. Knoff’s expert report.

       The judgment of the district court is affirmed.
                      ______________________________




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