United States Court of Appeals
For the Eighth Circuit
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No. 12-2848
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W.K., Parent and Next Friend C.K., a minor; E.K., Parent and Next Friend C.K., a minor
lllllllllllllllllllll Plaintiffs - Appellants
v.
Harrison School District
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Western District of Arkansas - Harrison
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Submitted: June 5, 2013
Filed: June 14, 2013
[Unpublished]
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Before BYE, ARNOLD, and SHEPHERD, Circuit Judges.
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PER CURIAM.
W.K. and E.K, as parents and next friends of C.K., appeal the district court’s1
order affirming an Arkansas Department of Education hearing officer’s final order in
1
The Honorable P. K. Holmes, III, Chief Judge, United States District Court for
the Western District of Arkansas.
an action arising under the Individuals with Disabilities Education Act (IDEA). Upon
careful consideration of appellants’ arguments for reversal,2 we affirm. See K.E. ex
rel. K.E. v. Indep. Sch. District No. 15, 647 F.3d 795, 804 (8th Cir. 2011) (whether
disabled student received free and appropriate public education is mixed question of
law and fact, and this court reviews de novo district court’s ultimate determination,
although district court’s factual findings are binding unless clearly erroneous); see
also 20 U.S.C. §§ 1400(d)(1)(A), 1401(9) (defining free appropriate public
education).
As the district court initially observed, the effect of the Harrison School
District’s (HSD’s) procedural error in failing to provide proper notice before the
meeting of September 2, 2010, was mitigated because W.K. and E.K. knew before the
meeting that C.K.’s aggressive behavior and the safety of HSD staff would be issues
on the agenda, and thus they were provided some level of participation in the
meeting. See Sch. Bd. of Indep. Sch. Dist. No. 11 v. Renollett, 440 F.3d 1007, 1011
(8th Cir. 2006) (in determining that school district provided free appropriate public
education, noting that individualized educational program should be set aside only
if procedural inadequacies compromised student’s right to appropriate education,
caused deprivation of educational benefits, or seriously hampered parents’
opportunity to participate in formulation process). We find no clear error in the
district court’s determinations that C.K.’s placement was not decided before the
September 2 meeting, and that W.K. and E.K. were given multiple opportunities after
September 2 to meet with HSD and work out placement for C.K. See Fort Osage R-1
Sch. Dist. v. Sims ex rel. B.S., 641 F.3d 996, 1005 & n.6 (8th Cir. 2011) (rejecting
parents’ contention that individualized educational program was procedurally
defective, because school district predetermined educational program, including
placement, without considering their concerns or evidence of student’s needs, and
2
We do not consider the issues appellants have expressly or otherwise waived.
See Freitas v. Wells Fargo Home Mortg., Inc., 703 F.3d 436, 438 n.3 (8th Cir. 2013).
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finding no clear error in district court’s factual findings: school district willingly
listened to parents’ concerns, consistently considered outside medical evidence,
ordered further testing based on evidence, and drafted individualized educational
programs to reflect and at least partially incorporate evidence and parents’ concerns);
Blackmon ex rel. Blackmon v. Springfield R-XII Sch. Dist., 198 F.3d at 648, 657 (8th
Cir. 1999) (nothing in IDEA or its regulations prohibits school district from coming
to individualized educational program meeting with tentative recommendations
prepared in parents’ absence). Accordingly, we agree that W.K. and E.K. failed to
establish that HSD had not offered C.K. a free appropriate public education after
September 2, 2010, and thus they were not entitled to receive reimbursement for
placement of C.K. in a private educational institute. See Blackmon, 198 F.3d at 661.
The judgment of the district court is affirmed.
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