SPED Show Choir

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


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


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