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Steven R.F. v. Harrison School District No. 2

United States District Court, D. Colorado

July 26, 2018

STEVEN R.F., a minor, by and through his mother, CARRIE FERNANDEZ, Plaintiff,
v.
HARRISON SCHOOL DISTRICT NO. 2, and various of its elected and appointed representatives in their official capacities, Defendant.

          ORDER

          R. Brooke Jackson United States District Judge.

         This matter is before the Court on review of the Colorado Office of Administrative Courts' ("COAC") findings and decisions in favor of defendant Harrison School District No. 2 ("the District") on the grounds that the District had provided plaintiff Steven R.F. with a free appropriate public education. Steven, by and through his mother Carrie Fernandez, seeks reversal of the COAC's decision. For the reasons stated herein, the Court REVERSES the COAC s decision.

         I. BACKGROUND

         This is a dispute about whether the District violated the Individuals with Disabilities Education Act ("IDEA") by failing to provide Steven with a free appropriate public education. Steven is an autistic child who lives in the District. Steven has been attending the Alpine Center ("Alpine"), a private out-of-district treatment and education center for individuals with autism, since 2013. This case arose from the District's decision in 2016 to move Steven out of Alpine.

         A. The Individuals with Disabilities Education Act.

         Before summarizing the factual background of Steven's case, it is helpful to provide a brief overview of the IDEA'S relevant provisions. The purpose of the IDEA is "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for future education, employment, and independent living. 20 U.S.C. § 1400(d)(1)(A). To receive federal funding under the IDEA, states must ensure all eligible students receive a free appropriate public education, or "FAPE." Id. § 1412(a)(1).

         A particular child's FAPE must be tailored to his or her unique needs, so the Act mandates that each child have an individualized education program, or "IEP." Id. § 1401(14). The IEP is a written document providing the child's present levels of educational performance, his annual goals, the method by which the child's progress toward his goals will be measured, and a description of specific education and related services to be provided to the child. Id. § 1414(d)(1)(A)(i). The IEP must also include the projected date for the beginning of the services, "and the anticipated frequency, location, and duration" of those services. Id. § 1414(d)(1)(A)(i)(VII). A child's IEP is prepared at a meeting between a representative of the local educational agency, the child's teacher and parents, and, where appropriate, the child. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 181-82 (1982). A child's IEP must be reviewed and revised at least annually. 20 U.S.C. § 1414(d)(4)(A).

         The Supreme Court has established a two-pronged test to determine whether a school district has offered a FAPE. Rowley, 458 U.S. at 206-07. First, the district must have complied with the procedures set forth in the IDEA. Id. Second, the IEP developed through those procedures must meet a substantive standard: it must be "reasonably calculated to enable [the] child to make progress appropriate in light of the child's circumstances." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2007). If the district satisfies both prongs, it has complied with the IDEA'S requirements. Rowley, 458 U.S. at 207.

         Even when a district has committed a procedural violation in its provision of a FAPE, however, a court assessing a complaint about such a violation must base its decision "on substantive grounds based on a determination of whether the child received a free appropriate public education." 20 U.S.C. § 1415(f)(3)(E)(i). A procedural violation rises to the level of a substantive deprivation of a FAPE only if the violation (1) impeded the child's right to a FAPE; (2) significantly impeded the parent's opportunity to participate in the decision-making process; or (3) caused a deprivation of educational benefits. Id. § 1415(f)(3)(E)(ii).

         In addition to establishing the procedural and substantive requirements for the provision of a FAPE, the IDEA also requires that state and local educational agencies "shall establish and maintain procedures ... to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a [FAPE] by such agencies." 20 U.S.C. § 1415(a). Parents of handicapped children must be notified of proposed changes to their child's educational placement or in the provision of their child's FAPE. Id. § 1415(b)(3) Parents must also be permitted to bring a complaint about "any matter relating to" the evaluation and educational placement of their child. Id. § 1415(b)(6)(A).

         When such a complaint is received, "the parents or the local educational agency involved in such complaint" must be afforded an opportunity for an impartial due process hearing conducted by the state or local educational agency. Id. § 1415(f). Assuming that that hearing is held before a local educational agency, a party aggrieved by the resulting decision may appeal to the state educational agency. Id. § 1415(g). Thereafter, "[a]ny party aggrieved by the findings and decision" of the state hearing has "the right to bring a civil action with respect to the complaint... in a district court of the United States, without regard to the amount in controversy." Id. § 1415(i)(2)(A).

         B. Factual Background.

         Steven is an autistic child born in 2004. ECF No. 2 at 7. Before Steven was placed at Alpine in June 2013, he had attended a variety of schools in the District where he had not demonstrated any progress in academics or behavior. Id. at 4. In contrast, while at Alpine Steven's behaviors improved, and he began making academic progress for the first time. Id; R. 30. Alpine is a non-profit "licensed day-treatment and day-habilitation center providing research based educational and behavioral services and supports" to individuals with autism. ECF No. 2 at 4.

         In April 2014, after Steven's first year at Alpine, the District attempted to change his placement to the School of Excellence ("SOE"). Id. Steven's mother and several other parents of children subject to the District's 2014 decision filed a complaint with the Colorado Department of Education asserting that this decision violated the IDEA. R. 105-35. The State Complaints Officer who reviewed this complaint reversed the District's decision to change the students' placement, finding that the District had violated the IDEA in its decision-making process. R. 131-32. The first state complaint decision ordered that Steven's placement remain at Alpine, required the District to submit a proposed corrective action plan to the Department of Education to address its violations, and prohibited any changes to Steven's or the other students' placements until after the corrective action had been taken.[1]R. 134.

         The first state complaint decision also contained several placement procedures designed to prevent future violations by the District. In particular, the District was prohibited from changing Steven's placement until (1) it conducted a comprehensive evaluation of Steven; (2) staff members from any proposed new placement observed Steven at Alpine to understand his educational and behavioral functioning; and (3) the District convened an IEP meeting facilitated by a neutral facilitator "not employed by the School District" that complied with all the procedural requirements of the IDEA, particularly those that the District had violated. Id.

         In 2015, the year after the first state complaint decision was issued, Steven's IEP was again reviewed, and his placement at Alpine remained unchanged. However, when Steven's IEP was reviewed again the following year in a meeting begun on March 29, 2016 and concluded on April 5, 2016, the District decided-based on a majority vote-to change his placement from Alpine to SOE. R. 451-54. The IEP meeting was facilitated by Amy McFall (nee Spayd), a District-employed psychologist. R. 219. No. one from SOE was present at the meeting, nor had any SOE staff or teacher observed Steven at Alpine prior to the District's decision to change Steven's placement. R. 28 at 10.

         The final summary of the IEP meeting reflects that the team determined that Steven required a separate school, meaning one which exclusively serves handicapped children, which is the most restrictive category of placement options. R. 452. In deciding on a separate school rather than a placement where Steven would spend less than 40% of his time in general education the team "decided that Steven required more individualized instruction and 1:1 adult supervision and instruction." R. 453. The team considered three placement options before deciding on SOE: Alpine, the Roundup School, and SOE. R. 452.

         SOE is a separate public school located in the District's catchment area. R. 30, 222. However, SOE is operated by the Pikes Peak Board of Cooperative Educational Services rather than by the District, so it is considered an out-of-district school. R. 222. It is comprised of at least four programs, two of which are appropriate for autistic students: the Communication and Learning Program ("COLA") and Learning Independence by Educating Responsible Trustworthy Youth ("LIBERTY"). R. 29, 222, 634. Although the District concluded that Steven's placement would be changed to SOE, it did not specify which of the SOE programs Steven would attend. R. 453. The record reflects that at the end of the IEP meeting, no one present knew whether Steven was being placed at COLA or at LIBERTY, Steven's mother included. R. 901, 942, 995, 1042, 1080, 1343, 1351-52. Steven's mother was upset at the outcome of the meeting, as she did not feel that Steven would be well-served at SOE. R. 31.

         The day after the IEP meeting, then-District Coordinator of Special Programs Amy Lloyd[2] reached out to the Assistant Principal at SOE to ask whether SOE had room for Steven. R. 331. Ms. Lloyd indicated that Steven would "need to be in either the COLA or Liberty [sic] programs." Id. The Assistant Principal indicated that she would "like to review the IEP to determine possible placement," R. 337, and the two discussed scheduling a meeting and a tour of SOE for Steven's mother. R. 336.

         In the meantime, Steven's mother filed her second state complaint with the Colorado Department of Education on May 5, 2016, alleging that the 2016 IEP decision violated the IDEA and the first state complaint decision. R. 25. She noted that the IEP meeting had been conducted by a District employee in direct violation of the first state complaint decision's requirement that any IEP meeting be facilitated by a neutral facilitator "not employed by the District," and that no representative from any proposed future placement had observed Steven at Alpine prior to the District's decision to change his placement. R. 25; see also R. 134. She also alleged that the District had failed to make a specific offer of placement, failed to base its decision on Steven's individual needs, and predetermined its decision to change Steven's placement. Id.

         On May 16, 2016 Ms. Lloyd reached out to Steven's mother to schedule a meeting with SOE "to discuss a transition for Steven," R. 92, but Steven's mother's attorney declined the invitation on the basis of the pending state complaint. R. 91. On June 30, 2016 the State Complaints Officer issued her decision on Ms. Fernandez's second complaint, finding that the District had again violated the IDEA in the 2016 IEP meeting. R. 35. The second state complaint decision found that the District had violated the express terms of the first state complaint decision, that its decision to change Steven's placement was not based on his individual needs and was predetermined, and that the District had failed to make a sufficiently specific offer of placement to put Steven's mother on notice of what was being proposed. R. 35-37.

         Following the second state complaint decision, the District filed a due process complaint with the Colorado Department of Education. R. 2. The District alleged that the State Complaints Officer had selectively interviewed Steven's mother and Alpine staff without interviewing District staff members on the IEP team. R. 4. Moreover, the District argued that the complaint process had not afforded the District the opportunity to engage with the process, including by cross-examining witnesses. Id. Moreover, the District alleged several errors on the part of the State Complaints Officer in reaching her decision. R. 4-9. The District requested that the Administrative Law Judge ("ALJ") Robert Spencer find that the District had made a timely offer of FAPE. R. 225. The ALJ decided in the District's favor that it had made a timely offer of FAPE, and that any procedural violation did not deprive Steven of FAPE or an educational benefit or deprive his mother of her right to participate in the decision. R. 233.

         In response to the ALJ's decision, Steven and his mother filed the present complaint before this Court seeking a de novo review of the administrative record and asking that the Court find that the 2016 IEP denied Steven the FAPE to which he is entitled. ECF No. 2 at 15. Moreover, Steven requests that the Court award his mother reimbursement for the educational services she provided him at Alpine during the 2016-17 school year. Id. Finally, he seeks a declaration that the District violated his rights under Section 504 of the Rehabilitation Act. Id. The parties have fully briefed the issues before the Court. ECF Nos. 28-30.

         II. STANDARD OF REVIEW

         '"[J]udicial review in IDEA cases differs substantially from judicial review of other agency actions, in which courts generally are confined to the administrative record and are held to a highly deferential standard of reviews.'" Murray v. Montrose Cnty. Sch. Dist. RE-IJ, 51 F.3d 921, 927 (10th Cir. 1995) (internal citation omitted). "A district court applies a modified de novo standard in reviewing a hearing officer's decision under the IDEA." L.B. ex rel. K.B. v. Nebo Sch. Dist, 379 F.3d 966, 973 (10th Cir. 2004). Pursuant to this standard, the Court "looks at the record of the administrative proceedings and decides, based on a preponderance of the evidence, whether the requirements of the IDEA are met." Id. at 973-74. In conducting this review the Court must give "due weight" to the hearing officer's findings of fact, "which are considered prima facie correct." Id. "The district court's proceedings must maintain the character of review and not rise to the level of a fife novo trial." Id.

         III. ...


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