United States District Court, D. Colorado
A. BRIMMER United States District Judge.
matter is before the Court on plaintiff's Verified
Complaint [Docket No. 1], plaintiff's Opening Brief
[Docket No. 18], Defendant Cheyenne Mountain School District
12's Motion for Summary Judgment [Docket No. 26],
Defendant Cheyenne Mountain School District 12's Request
for Telephone Status Conference [Docket No.
Plaintiff appeals the State of Colorado, Office of
Administrative Courts' decision dismissing her claims
that Defendant Cheyenne Mountain School District 12 (the
“District”) failed to provide her minor son,
R.S., with a free appropriate public education
(“FAPE”). Plaintiff's claims arise under the
under the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400 et seq.
The Court has subject matter jurisdiction under 28 U.S.C.
§ 1331 and 20 U.S.C. § 1415(i)(3)(A).
a school-age child with disabilities. He has been diagnosed
with several conditions that result in academic challenges
for him. The primary disability identified in R.S.'s
Individualized Education Plans (“IEP”) is autism
spectrum disorder. R. at 39, 74. R.S. has also been diagnosed
with attention deficit hyperactivity disorder
(“ADHD”) and hypotonia. R. at 27.
a resident of the Falcon School District 49. R. 391, ¶
2. In 2013, under Colorado's Public Schools of Choice
Law, Colo. Rev. Stat. § 22-36-101 et seq. (the
“School Choice law”), R.S. applied to attend the
Cheyenne Mountain Charter Academy (the “Academy”)
for the 2013-14 school year. R. at 392, ¶ 5. The Academy
is located in the District). Id. When they accepted
R.S., the Academy and the District were both aware that R.S.
had an IEP that had been developed while he was attending
school in Falcon School District 49.
after the start of the 2013-14 school year, when R.S. was
enrolled in kindergarten, the Academy determined the
R.S.'s preexisting IEP was insufficient to meet his
needs. R. at 392, ¶ 6. With the permission of R.S.'s
parents, the Academy reevaluated R.S. and developed a new
IEP, dated November 7, 2013 (the “November 2013
IEP”). Id.; R. at 22. The November 2013 IEP
included a behavior intervention plan (“BIP”) and
stated that R.S. “needs intensive support for
instruction and supervision for safety throughout his day
which will be provided by special education staff and/or
paraprofessional on an individual and small group
basis.” R. at 45, 53.
early 2014, Ward Barr, the Academy's Principal, had
concerns about whether the Academy would need to hire
additional staff to provide one-on-one support to R.S. during
the 2014-15 school year, which would be R.S.'s
first-grade year. R. at 392, ¶ 10. Under Mr. Barr's
interpretation of the School Choice law, the Academy was not
required to re-enroll a student if it would have to hire
additional staff. Id. Mr. Barr scheduled a meeting
to address this issue. Id., ¶ 11. On February
28, 2014, R.S.'s special education teacher, Richard Tran,
sent an email to plaintiff inviting her to attend the
meeting. R. at 393, ¶ 12. Mr. Tran's email stated
that the purpose of the meeting was to “discuss the
next steps in preparation for [R.S.'s] first grade
year.” Docket No. 25-1 at 48.
meeting occurred on the morning of March 12, 2014. R. at 393,
¶ 13. Mr. Barr, Mr. Tran, and Ms. Smith attended, as
well as Karen Higgins, the District's Director of Special
Education, and Amy Stephens, R.S.'s kindergarten teacher.
R. at 393, ¶ 13. At the meeting, Mr. Barr told Ms. Smith
that R.S. “continued to require one-on-one support to
access general education and a high level of adult
prompting” and that, under the School Choice law, the
District could “deny enrollment to students from
another school district if additional staff would need to be
hired.” Docket No. 25-1 at 49. Ms. Smith was also told
that the Academy planned to “decrease the level of
adult prompting to see if [R.S.] could more independently
access the general setting and remain safe.”
Id. Academy staff also told Ms. Smith that the IEP
team was concerned that R.S. was becoming dependent on
prompting by his adult helper and that data would be
collected to determine “if the level of prompting
needed [by R.S.] could be decreased.” Id.; R.
at 393, ¶ 14. Confronted with this, Ms. Smith
“expressed concerns that her child would be kicked
out” of the Academy. Docket No. 25-1 at 49. The group
“tentatively set” a meeting for April or May 2014
to “review [the] IEP, BIP, and data collected.”
March 18, 2014, Ms. Smith sent an email objecting to the plan
to reduce R.S.'s prompting. R. at 393-94, ¶ 18. Ms.
Higgins responded to this email and called Ms. Smith to
explain that an aide would remain with R.S., but the aide
would “fade” the amount of prompting by gradually
reducing the frequency of prompting to determine whether the
level of prompting needed by R.S. could be reduced. R. at
394, ¶¶ 19-20.
the plan to fade prompting of R.S. was implemented, it
quickly became apparent that R.S. was dependent on the
prompts and would not respond to his teachers'
instructions without prompting from his aide. R. at 394,
¶ 22. Therefore, the Academy ceased attempts to reduce
the level of prompting provided to R.S. Id.
1, 2014, an IEP Team meeting was held for R.S. R. at 394,
¶ 25. The IEP team discussed the results from the plan
to reduce prompting and developed a new IEP for R.S. (the
“May 2014 IEP”). Id. The May 2014 IEP
In order to access the general education curriculum, [R.S.]
requires continual redirection/prompting and frequent breaks
to support sustained attention to academic tasks. [R.S.]
requires intensive one-on-one paraprofessional support for
academic Instruction, transitions, and to ensure his safety
throughout the entire day. Paraprofessional support is needed
at all times whenever [R.S.] is not receiving direct services
from special education staff[.]
R. at 73, § 13. R.S. completed the school year at the
Academy under the May 2014 IEP, and he received extended
school year services into the summer of 2014. R. at 395,
¶¶ 26, 28.
Smith sought to re-enroll R.S. at the Academy for the 2014-15
school year. R. at 395, ¶ 29. However, on May 22, 2014,
Colin Mullaney, the Academy's executive director, sent a
letter denying R.S. enrollment. Id. He stated that,
under the School Choice law, the Academy could deny
enrollment to an out-of-district student if the school did
not have staff to support that student and that the Academy
“would need to hire additional staff to meet
[R.S.'s] IEP.” R. at 76. On that basis, Mr.
Mullaney stated that the District was denying R.S. enrollment
in the Academy. Id.
16, 2014, R.S.'s parents filed a civil rights complaint
against the District. R. at 3-6. They alleged four IDEA
violations, which were summarized by the Administrative Law
Judge (“ALJ”), Robert N. Spencer, as:
1. Failure to Appropriately Evaluate: Petitioners
alleged that, at the IEP meeting of November 7, 2013, the
School District failed to adequately assess and evaluate
[R.S.'s] disabilities or adequately consider his need for
physical therapy and ABA therapy.
2. Failure to Appropriately Supervise: Petitioners
alleged that the School District failed to provide the level
of supervision required by the IEP, resulting in [R.S.] being
“trapped” in a bathroom, being unable to
participate in field trips, and becoming “prompt
3. Failure to Provide Appropriate Goals and
Assessments: Petitioners alleged that [R.S.'s] IEP
failed to include appropriate goals to address identified
concerns. The goals that were established allegedly failed to
meet CDE standards and proper methodology was not employed to
meet the goals. Furthermore, Petitioners alleged that the
School District failed to inform them of [R.S.'s]
progress in these goals as required by the IEP, and that
several goals were subsequently eliminated without
explanation. Finally, they alleged that the IEP was deficient
because it did not explain why [R.S.] could not participate
in regular assessments given to his classmates, but instead
provided unjustified accommodations in mode and duration of
4. Inappropriate Re-evaluation Leading to Denial of
Enrollment: Finally, Petitioners claimed that [the
Academy] decided to re-evaluate [R.S.] in March 2014 without
providing the legally required prior written notice and
without their informed consent.
R. at 389-90 (emphasis original). R.S.'s parents also
clarified that they did not “seek to resolve any issue
pertaining to [the Academy's] decision fo refuse
readmission to our disabled son.” R. at 5, n.1.
August 1, 2014, the District filed a notice of insufficiency
and motion to dismiss the complaint as unsupported by the
evidence. R. at 9-20. On August 6, 2014, the ALJ issued an
order finding the complaint sufficient, but he reserved
judgment on the motion to dismiss. R. at 86-89. On August 19,
2014, the ALJ, without notifying the parties that he intended
to do so, converted the motion to dismiss into a motion for
summary judgment, found no genuine issue of material fact on
the first three alleged IDEA violations, and granted summary
judgment on those allegations. R. at 126-31.
September 17, 2014, the ALJ held a due process hearing on the
remaining, fourth allegation. R. at 390. On September 23,
2014, the ALJ issued a written decision, finding that the
“undisputed evidence . . . was that [R.S.] was never
denied the paraprofessional support required by his IEP, that
he suffered no loss of educational benefit as a result of the
fading plan, and that he did make significant progress during
his kindergarten year both socially and academically.”
R. at 399. The ALJ, therefore, dismissed the complaint.
Id. This appeal followed.
INDIVIDUALS WITH DISABILITIES IN EDUCATION ACT
IDEA provides students with disabilities the right to a FAPE
designed to meet their needs. See 20 U.S.C. §
1400(d)(1)(A). The determination of whether a FAPE has been
provided turns in large part on the sufficiency of the IEP
for each disabled child. See, e.g., A.K. v.
Alexandria City Sch. Bd., 484 F.3d 672, 675 (4th Cir.
2007) (“A school provides a FAPE by creating an [IEP]
for each child.”). Challenges to the adequacy of an IEP
can take two forms, i.e., arguments that the IEP was
procedurally deficient or that it was substantively
deficient. See Urban v. Jefferson County Sch. Dist.
R-1, 89 F.3d 720, 726 (10th Cir. 1996). Here, the
plaintiff has not challenged whether her child's IEPs
were substantively deficient, but rather focuses on the
District's compliance with IDEA procedures in creating
and implementing the November 2013 IEP and in creating the
May 2014 IEP.
is “hardly self-defining.” Thompson R2-J
School Dist. v. Luke P., ex rel. Jeff P., 540 F.3d 1143,
1148 (10th Cir. 2008). “To 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.”
Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist.
RE-1, 137 S.Ct. 988, 999 (2017). To determine whether a
FAPE was provided to plaintiff during the 2013-2014 school
year, the Court “must ask . . . whether [the] . . . IEP
was ‘reasonably calculated to enable [him] to receive
educational benefits.'” Thompson, 540 F.3d
at 1148-49 (quoting Bd. of Educ. v. Rowley, 458 U.S.
176, 207 (1982)). “If the IEP was so calculated, the
school district can be said to have provided a FAPE; if not,
then not.” Id. at 1149.