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Matthews v. Douglas County School District Re 1

United States District Court, D. Colorado

October 4, 2018



          Marcia S. Krieger Chief United States District Judge.

         THIS MATTER comes before the Court on the Plaintiff's Complaint (# 1), the Plaintiff's Opening Brief (# 51), the Defendant's Response (# 52), and the Plaintiff's Reply (# 53). Upon consideration of the arguments presented in light of the Administrative Record (#45), the Administrative Law Judge's decision is affirmed.


         The Court has jurisdiction over an appeal from a final decision of the Colorado Office of Administrative Courts under 20 U.S.C. § 1415(i)(2)(A). This case concerns compliance with the Individuals with Disabilities Education Act (IDEA).[1]

         II. BACKGROUND[2]

         The Plaintiffs are the parent and stepparent (the Parents) of J.U., who was a 16-year-old sophomore at Legend High School in Parker, Colorado, at the time of the Administrative Law Judge's (ALJ) decision. He has been diagnosed with Tourette Syndrome, dyslexia, and ADHD. His most recent Independent Education Plan (IEP) that is pertinent to this appeal identifies a primary disability as intellectual and a secondary disability as “Other Health Impairment”.

         A. December 2013 IEP

         Prior to 2013, J.U. resided, attended school and received special-education services in Arizona. He arrived in the Colorado for the 2013-2014 academic year, and was evaluated for disabilities by the Defendant Douglas County School District in September 2013.[3] The evaluation found that J.U. required special-education services to treat a specific learning disability, but not an intellectual disability. J.U.'s parents disagreed with the results of the evaluation, and consequently the District reevaluated him in November 2013. This evaluation concluded that J.U. also had an intellectual disability. Based on the evaluations, J.U.'s December 2013 IEP included nine specific, measurable goals in core academic subjects as well as social/emotional wellness and communication goals, academic achievement updates, informal assessments, occupational therapy updates, and parent input. Pertinent to the matter at hand, the IEP stated a goal of J.U. being able to read at ¶ 2nd-grade level with 80% proficiency.

         B. March 2014 IEP

         In March 2014, the IEP was reviewed with an eye to J.U.'s participation in summer break extended-school-year (ESY) services. This IEP was substantively identical in all respects to the December 2013 IEP, but despite its purpose, it did not state what summer services would be provided, or when or how they would be provided. Ms. Matthews signed the IEP, confirming that she had received special procedural safeguards.

         There is nothing in the record that indicates J.U.'s Parents requested summer services or they advised the District that no summer services would be needed. But it is clear that J.U. did not stay in Colorado during the 2014 summer break, and instead returned to Arizona to spend the break with his father. As a consequence, he received no ESY services from the District.

         In September 2014, when J. U. returned to Colorado, his Parents had his reading skills and abilities evaluated by Corey Pollard, a learning specialist at Children's Hospital. Ms. Pollard administered a battery of tests that assessed J.U.'s verbal comprehension, concept formation, and visual matching skills in very low percentiles. Ms. Pollard issued an independent educational examination report (the Report), in which she recommended using reading “programs structured in the Orton-Gillingham approach, with a tutor qualified in working with intellectually disabled students”.[4] Megan Malone, J.U.'s special-education teacher, received Ms. Pollard's Report in October 2014, after which she contacted Ms. Pollard about how to best help J.U.

         In November 2014, Mr. Matthews insisted that the District incorporate the Report's findings and employ the Orton-Gillingham approach to J.U.'s reading program beginning in January 2015. Ms. Malone scheduled a meeting for December 17 to discuss a plan and asked Judy Jordan, the District's special-education coordinator, to find a reading curriculum that incorporated Orton-Gillingham. Ms. Jordan advised Ms. Malone that the Orton-Gillingham approach was used in the Wilson Reading Program and that the District had both the Wilson Reading Progam and a Wilson trainer.

         J.U., his Parents, Ms. Jordan, and Ms. Malone were present at the December 17 meeting. Ms. Pollard participated by phone. Mr. Matthews presented what he alleged were the District's violations of the IDEA: (1) the District had been aware of J.U.'s limited progress in reading for over a year and had not considered any alternatives; (2) the District had predetermined that J.U. did not qualify for an alternative reading program; and (3) the District had been provided the Report but had not considered it. Mr. Matthews acknowledged that the District had no obligation to adopt the Report or implement a specific reading program, but he maintained that the District was obligated to implement some alternative program and had failed to do so. J.U.'s Parents asked him to read from a Colorado Driver's manual at the meeting but he was unable to do so. Ms. Jordan suggested the Wilson Reading Program that incorporated the Orton-Gillingham approach because the District had experience with it.[5] Ms. Pollard stated that the Wilson Program was appropriate for J.U., but emphasized that to be effective someone would have to be trained in using it. Ms. Malone stated that she would receive training in it. J.U.'s Parents and Ms. Jordan understood that Ms. Malone would begin using the Wilson program with J.U. once school resumed in January 2015.

         Ms. Malone did not obtain training in the Wilson program during the Christmas break and thus did not begin using Wilson with J.U. when school resumed in January. Indeed, Ms. Malone did not inquire as to whether the District had a Wilson starter kit until January 22. In response, Ms. Jordan again gave Ms. Malone the contact information for the District's Wilson trainer, and by January 29, Ms. Malone had received Wilson training, was engaged in online training as well, and had found two educational assistants who had Wilson training. She began using the Wilson program with J.U. on January 31.[6]

         C. March 2015 IEP

         A meeting to construct a new IEP was scheduled for March 9, but because the Parents had not received a draft IEP in sufficient time before the meeting, they filed a due-process complaint against the District. Among other things, they complained that they required such documentation at least 10 days beforehand. The IEP meeting began on March 9, but because the Parents were not present, it was discontinued. A proposed IEP was retained to allow for input from the Parents at a later date.

         It appears that collaboration between the parties devolved thereafter. The District made entreaties to schedule another IEP meeting. The Parents would not meet without both the draft IEP, all correspondence among teaching staff concerning J.U., and his test results. Ultimately, the District scheduled an IEP meeting for May 21. It provided notice to the Parents on May 11 and a draft of the IEP on May 13. Two days before the meeting, Ms. Matthews informed the District that she and Mr. Matthews could not meet because (1) they had not received J.U.'s records and (2) the meeting was scheduled during her shift as a District bus driver. On May 19, Mr. Matthews asked to review J.U.'s file. The District responded that J.U.'s reading assessments and draft IEP comprised the substantive records, that any request to view J.U.'s file should be submitted using a specific form, and that their request to see correspondence among teaching staff would be processed through the District's legal office.

         The IEP meeting was held on May 21 out of concern that it would be too difficult to meet once school was out for the summer. The Parents did not attend. Interestingly, however, a progress report from March 31 showed that J.U. had progressed in reading using the Orton-Gillingham approach embodied in the Wilson Reading Program. The new draft IEP stated that the Report's recommendations “will be incorporated into the accommodations and services” for J.U. On May 26, the District informed Mr. Matthews that the meeting occurred, and advised that the Parents could request an IEP meeting at any time, but if another meeting with them present did not occur before June 4, the draft IEP would be finalized. The IEP was finalized on June 4 or 5.

         D. Hearing Before the ALJ

         The ALJ held an evidentiary hearing on the Parents' due-process complaint, then issued findings of fact and conclusions of law. The ALJ found that all of J.U.'s IEPs were reasonably calculated to guarantee some educational benefit to J. U.Specifically, the ALJ found (1) that in 2013, District had not predetermined J.U.'s qualification for an alternative reading program; (2) that with regard to the 2013 IEP, the District was under no obligation to consider the Report by a date certain, implement any specific alternative reading program, or adopt specific reading programs insisted upon by the Parents; (3) that the Parents' had a misplaced belief that Orton-Gillingham was a particular reading program, as compared to an approach to reading instruction used in a variety of reading programs; (4) that the Wilson program incorporated the Orton-Gillingham approach, and by implementing it, the District considered and implemented the Report's recommendations; and (5) that the December 2014 meeting was not an IEP meeting. The ALJ noted that designation of particular teaching methodologies or curricula such as the Wilson program are not typically included in IEPs, and that nothing in the IDEA requires school districts to choose specific programs or methodologies. The ALJ acknowledged the Parents' frustration with the District's delay in implementing the Wilson program in early January 2015, but found that the Parents failed to present any credible evidence that the one-month delay of J.U.'s instruction using Wilson deprived him of a free appropriate public education (FAPE).

         Addressing the Parents' allegations of procedural IDEA violations, the ALJ found that (1) the District failed to timely provide the Parents with J.U.'s records, but that such failure did not amount to the District failing to include the Parents in the IEP meetings; (2) implementing the Wilson program did not trigger the IDEA's notice requirements, and even if it did, J.U.'s Parents presented no evidence that any lack of notice impaired his right to a FAPE; and (3) the record is unclear whether the Parents were denied procedural safeguards, but even so, J.U.'s Parents failed to establish that any such failure impeded J.U.'s right to a FAPE.


         The Parents seek review of the ALJ's decision. They identify six issues - two substantive and four procedural violations of the IDEA.

1. Was the 2014 IEP reasonably calculated to enable J.U. to make progress appropriate in light ...

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