United States District Court, D. Colorado
ENDREW F., a minor, by and through his parents and next friends, JOSEPH & JENNIFER F., Petitioners,
DOUGLAS COUNTY SCHOOL DISTRICT RE 1, Respondent.
MEMORANDUM OPINION AND ORDER
T. BABCOCK, JUDGE
matter involves the review of a decision of the Office of
Administrative Courts denying Petitioner's claim under
the Individuals with Disabilities Education Act (the
“IDEA”), 20 U.S.C. §§1400 and 34 C.F.R.
§§300.500, et. seq. Petitioner, Endrew F.,
through his parents, Joseph and Jennifer F., sought
reimbursement for private school tuition and transportation
costs from Respondent, Douglas County School District RE 1
(the “District”) pursuant to 20 U.S.C.
§1412(a)(10)(C)(ii) and 34 C.F.R. §300.148(c). The
initial Administrative Courts Agency Decision, issued by an
Administrative Law Judge (“ALJ”) following a due
process hearing, concluded that Petitioner and his parents
were not entitled to reimbursement on the basis that the
District provided him a free appropriate public education
(“FAPE”) as is required by the IDEA. On September
14, 2014, I affirmed the ALJ's Agency Decision.
Endrew F. v. Douglas Cty. Sch. Dist. RE 1, No.
12-CV-2620-LTB, 2014 WL 4548439 (D. Colo. Sept. 15,
2014)(unpublished). The Tenth Circuit affirmed in an opinion
dated August 25, 2015. Endrew F. ex rel. Joseph F. v.
Douglas Cty. Sch. Dist. Re-1, 798 F.3d 1329 (10th Cir.
Aug. 25, 2015).
appealed and the United State Supreme Court granted
certiorari. On March 22, 2017, the Supreme Court
ruled that the legal standard used by the Tenth Circuit to
assess whether a school district has provided a FAPE -
whether the student's individualized education program is
calculated to confer an educational benefit that is merely
more than de minimis - is not sufficient under the
substantive obligation set forth in the IDEA. The Supreme
Court articulated a new standard; specifically that a FAPE is
an education “reasonably calculated to enable a child
to make progress appropriate in light of the child's
circumstances.” Endrew F. ex rel. Joseph F. v.
Douglas Cty. Sch. Dist. RE-1, U.S., 137 S.Ct. 988, 999,
197 L.Ed.2d 335 (Mar. 22, 2017). The Court ruled that this
standard is “markedly more demanding” than the
merely more than de minimis test applied by the
Tenth Circuit. 137 S.Ct. at 1000. As a result, the Supreme
Court vacated the Tenth Circuit opinion and the case was
remanded for further proceedings.
remand the Tenth Circuit vacated its prior opinion, and
remanded to this court “for further proceedings
consistent with the Supreme Court's decision” on
August 2, 2017. Endrew F. v. Douglas Cty. Sch. Dist.
RE-1, 694 Fed.Appx. 654 (10th Cir. Aug. 2,
2017)(unpublished). I subsequently ordered and received full
supplemental briefing from the parties. After consideration
of the parties' briefing, as well as oral arguments
presented to the Court on February 7, 2018, and for the
reason stated, I REVERSE the ALJ's Agency Decision and
rule that Petitioner and his parents are entitled to
reimbursement of their private school placement from the
District pursuant to 20 U.S.C. §1412(a)(10)(C)(ii) and
34 C.F.R. §300.148(c).
order to receive federal funds to assist in educating
children with disabilities under the IDEA, a State must,
among other conditions, provide a FAPE to all eligible
children. 20 U.S.C. §1412(a)(1). A FAPE includes both
special education (defined as “specially designed
instruction . . . to meet the unique needs of a child with a
disability”) and related services (defined as the
support services “required to assist a child . . . to
benefit from” that instruction). 20 U.S.C.
§§1401(9), (26) & (29). Such services are
provided in conformity with the child's individualized
education program (“IEP”). 20 U.S.C.
is the means by which special education and related services
are “tailored to the unique needs” of a
particular child as it is “the centerpiece of the
statute's education delivery system for disabled
children.” Endrew F. v. Douglas Cty., supra,
137 S.Ct. at 999-1000 (citing Board of Ed. of Hendrick
Hudson Central School Dist., Westchester Cty. v. Rowley,
458 U.S. 176, 181, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982);
Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98
L.Ed.2d 686 (1988)). The IEP procedures emphasize
collaboration among parents and educators and require careful
consideration of the child's circumstances. 20 U.S.C.
Reimbursement for Private Tuition
relevant here, the IDEA provides for the reimbursement from a
public school district when parents decide to enroll their
child in a private school, without the consent of the school
district, under certain circumstances. Parents are entitled
to such reimbursement if: (1) the school district violated
the IDEA; and (2) the education provided by the private
school is reasonably calculated to enable the child to
receive educational benefits. Thompson R2-J Sch. Dist. v.
Luke P., ex rel. Jeff P., 540 F.3d 1143, 1148 (10th Cir.
2008). “If the parents of a child with a disability . .
. enrolls the child in a private elementary school or
secondary school without the consent of or referral by the
public agency, a court or a hearing officer may require the
agency to reimburse the parents for the cost of that
enrollment if [it] finds that the agency had not made a free
appropriate public education available to the child in a
timely manner prior to that enrollment.” 20 U.S.C.
§1412(a)(10)(C)(ii); see also 34 C.F.R.
§300.148(c). In this case, the sole issue is whether
Petitioner and his parents have met their burden to prove
that the District violated the IDEA by failing to provide
Petitioner with a FAPE.
Standard for Determining FAPE
determine whether a FAPE was provided, the Court must ask
whether the IEP sets out an educational program that was
“reasonably calculated to enable [him] to receive
educational benefits.” Endrew F. v. Douglas Cty.,
supra, 137 S.Ct. at 996 (quoting the standard
articulated in Bd. of Educ. v. Rowley, supra, 458
U.S. at 207). The standard for determining whether an IEP is
reasonably calculated to enable a student to receive
educational benefit was defined by the Supreme Court in this
case. In Endrew F. v. Douglas Cty., the Court
rejected the Tenth Circuit law (as previously applied in the
case) holding that a FAPE required only a determination that
the child's IEP was calculated to confer an
“educational benefit [that is] merely . . . more than
de minimis.” 137 S.Ct. at 992. Rather, the
Supreme Court ruled that “[t]o meet its substantive
obligation under the IDEA, a school must offer an IEP
reasonably calculated to enable a child to make progress
appropriate in light of the child's circumstances.”
Id. at 999.
Burden of Proof
the administrative record is fixed, as here, the District
Court conducts a “modified de novo”
review in that it “evaluate[s] the record, and
determine[s] whether a preponderance of the evidence
indicates that the ALJ decision should be reversed.”
Jefferson County Sch. Dist. R-1 v. Elizabeth E., 798
F.Supp.2d 1177, 1184 (D. Colo. 2011), aff'd, 702
F.3d 1227 (10th Cir. 2012). The parties challenging the IEP
bear the burden of persuasion to show it was deficient.
Tyler V. ex rel. Desiree V. v. St. Vrain Valley Sch.
Dist. No. RE-1J, 2008 WL 2064758 (D. Colo. May 12,
2008)(unpublished)(citing Schaffer ex rel. Schaffer v.
Weast, 546 U.S. 49, 62, 126 S.Ct. 528, 163 L.Ed.2d 387
extensive recitation of the facts and the administrative
record, including a summary of the educational records,
Petitioner's IEP, and the testimony presented to the ALJ,
is set forth in my previous order in this case. Endrew F.
v. Douglas Cty. Sch. Dist. RE 1, 2014 WL 4548439 (D.
Colo. Sept. 15, 2014)(unpublished).
was diagnosed with autism at 2 years of age, and was later
also diagnosed with Attention Deficit/Hyperactivity Disorder
(“ADHD”). It is undisputed that he is eligible
for services under the IDEA. Petitioner attended school
through second grade at Heritage Elementary, and then moved
to Summit View Elementary for third and most of fourth grade,
both District schools. In May of 2010, at the end of his
fourth grade year, Petitioner's parents decided to
withdraw him from Summit View and enroll Petitioner at the
Firefly Autism House (“Firefly, ” previously
known as the Alta Vista School), a private school that
specializes in the education of children with autism. It is
undisputed that Petitioner has been able to access education
at Firefly where he is making academic, social and behavioral
progress. Petitioner's parents believe that he stopped
making meaningful educational/functional progress during
second grade year, which continued until he withdrew from
Summit View prior to his fifth grade year.
and his parents argue that the final IEP presented by the
District in November of 2010 was not reasonably calculated to
provide him with a FAPE, as it was not substantively
different than his prior IEPs that failed to evidence
progress on his educational/functional goals and, in turn,
had failed to provide an appropriate education in the past.
Moreover, despite his maladaptive and disruptive behaviors
that prevented his ability to access education, the District
failed to conduct a functional behavioral assessment,
implement appropriate positive behavioral interventions,
supports or strategies, or develop an appropriate Behavior
Intervention Plan (“BIP”). Therefore,