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Smith v. Cheyenne Mountain School District 12

United States District Court, D. Colorado

May 9, 2018

MICHAEL SCOTT SMITH, Plaintiff,
v.
CHEYENNE MOUNTAIN SCHOOL DISTRICT 12, Defendant.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          KATHLEEN M TAFOYA UNITED STATES MAGISTRATE JUDGE.

         This matter is, in effect, an administrative appeal. It comes before the court by way of complaint, filed by pro se Plaintiff Michael Scott Smith on January 3, 2017. Since that time, Plaintiff has filed an opening brief, dated July, 26, 2017.[1] Defendant Cheyenne Mountain School District 12 has filed a response, dated March 12, 2018. (Doc. No. 39.) A reply was filed on March 26, 2018. (Doc. No. 43.) The Administrative record (“AR”) has also been conventionally filed in this case in the form of a CD Rom.[2] (Doc. No. 27.) For ease of reference, the administrative decision of ALJ Tanya T. Light, dated October 3, 2017, is attached in Schedule A.

         INTRODUCTION

         This case involves action brought under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq. challenging the administrative decision of ALJ Tanya T. Light. Plaintiff alleges that his child, R.S., has been denied relief under the statute.

         Under the statute's provisions, states that receive federal educational assistance must establish “policies and procedures to ensure” that “free appropriate public education” (“FAPE”) is available to disabled children. See 20 U.S.C. § 1412(a)(1)(A). Its purpose, therefore, is to ensure “that all children with disabilities have access to FAPE designed to meet their unique needs.” Murray v. Montrose County School District RE-JJ, 51F.3d921, 927 (10th Cir. 1995) (quotations and alterations omitted). To fulfill this purpose, an individualized education program (“IEP”) is the basic mechanism through which each child's individual goals are achieved. Id. The statute sets forth detailed procedures through which an IEP is to be developed. Id. The IEP is a detailed written document that describes the student's educational goals for an academic year and establishes a plan to achieve those goals. Id.

         Notwithstanding the vast array of provisions (and the acronyms that come with them), it is safe to say that the statute is one of the more complex in the federal system-not just its review and regulatory requirements, but its procedural and substantive provisions that create liability and relief. See generally, Daniel W. Morton-Bentley, The Rowley Enigma: How Much Weight is Due to IDEA State Administrative Proceedings in Federal Court?, 36 J. Nat'l Ass'n Admin. L. Judiciary 428, 434, 467 (2016) (“The IDEA's judicial review provision is not a model of clarity . . . its multilayered administrative and judicial review procedure is predisposed toward confusion.”).

         In addition to the legal complexities, the parties have navigated a thorny procedural history-tethered to cases adjudicated by U.S. District Court Judge Phillip A. Brimmer. See, e.g., 14-cv-2651. It is now before this court on separate, but related issues-as follows:

1. Whether the Administrative Law Judge (“ALJ”) erred when she allowed Defendant to determine the extent of the harm it caused when it violated R.S.'s right to a FAPE, and to then determine the remedy for its own violation.
2. Whether the ALJ erred when she held that compensatory education was unavailable as a remedy in the absence of educational regression.
3. Whether the ALJ erred when she peremptorily eliminated private school placement as a potential remedy.

         Wedded to the third issue is Defendant's affirmative defense-to wit, Defendant argues that res judicata applies based on a preliminary injunction issued by Judge Brimmer in an earlier case and affirmed by the Tenth Circuit.

         The court is persuaded by Plaintiff's position on the first issue-i.e., the ALJ wrongly delegated power to an educational agency-warranting remand. Because the second issue is tied to the first, it, too, requires further factual development by the ALJ to determine what compensatory education (if any) to which M.S. is entitled. Separately, the third issue also sways in favor of Plaintiff. Being a question of law-res judicata-the issue provides for ease of disposition; ever more so when the defense was a non-starter to begin with. The prior decision that Defendant relies upon was set in the preliminary injunction context. There is no final decision to preclude Plaintiff's case. The defense is rejected. Each of the issues before the court, therefore, will require remand and further factual development to assess the appropriate relief.

         BACKGROUND

         On March 10, 2016, the Colorado Department of Education, Exceptional Student Services Unit, received a due process complaint filed by Plaintiff on behalf of his minor son, R.S., alleging that Defendant violated 20 U.S.C. §§ 1400 - 1482 and the Colorado Exceptional Children's Educational Act (“ECEA”), 1 CCR 301-8, by failing to provide him with FAPE. Plaintiff alleged that Defendant denied R.S. FAPE when it denied his enrollment at the Cheyenne Mountain Charter Academy (“CMCA”) in 2014.

         The ALJ found for Plaintiff on the liability issue-i.e., denial of FAPE-from at least August 13, 2014 through October 16, 2014. Relevantly, on page 10 of the ALJ's October 3, 2016 decision, the ALJ stated:

         The ALJ concludes that Respondent did not provide FAPE to R.C.V.S. between August 13, 2014 and October 16, 2014. Accordingly, the ALJ ORDERS as follows:

Respondent shall re-test R.C.V.S.'s early literacy skills through the DIBELS test, or a test of Respondent's choosing that assesses the same or similar early literacy skills as the DIBELS test if Respondent believes the DIBELS test is no longer appropriate due to the passage of time. If R.C.V.S.'s scores are below benchmark levels, Respondent, in coordination with the IEP team, shall decide what compensatory services are necessary in order to improve R.C.V.S.'s scores up to benchmark levels and will implement those services accordingly. If R.C.V.S.'s[3]scores are at benchmark levels, then nothing more is required of the District.

(See Schedule A at 10)[4] (emphasis added). Defendant then filed a Motion for Clarification on October 7, 2016, noting that R.S. had taken several DIBELS tests since the fall of 2014 and that after the initial DIBELS assessments that were administered upon his return to school in October 2014, he received scores above benchmark levels on his next three DIBELS assessments. (AR at 666-676.)

         After reviewing the Motion for Clarification, ALJ Light issued an Order on October 27, 2016, finding that Defendant had purportedly complied with the October 3, 2016 decision and that nothing further was required. (AR at 516.)

         Having exhausted all administrative remedies, Plaintiff now appeals the October 3, 2016 decision and the subsequent October 27, 2016 order that flowed from it.

         STANDARD ...


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