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C.W. v. Denver County School District No. 1

United States District Court, D. Colorado

September 25, 2019

C.W., a minor, by and through his parents B.W. and C.B., Plaintiff,
v.
DENVER COUNTY SCHOOL DISTRICT NO. 1, Defendant.

          OPINION AND ORDER ON ADMINISTRATIVE APPEAL AND ON MOTION FOR SUMMARY JUDGMENT

          MARCIA S. KRIEGER SENIOR UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court on the parties’ Cross Motion for Summary Judgment (## 56, 57), their Responses (# 58, 59), and their Replies (# 60, 61). Upon consideration of the arguments presented in light of the Administrative Record (# 29), the Administrative Law Judge’s decision is reversed, the Plaintiff’s Motion is granted, in part, and the Defendant’s Motion is granted, in part.

         I. JURISDICTION

         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) and over claims presenting a federal question under 28 U.S.C. § 1331.

         II. BACKGROUND[1]

         Though the parties have a lengthy history of disputes over the educational services at issue in this case, the Court only recounts the facts relevant to the limited issue on appeal.[2]

         Plaintiff C.W. is a minor child enrolled in the Defendant Denver County School District (the District). He has tested as a highly gifted and talented student, but suffers from a number of disabilities, including an autism spectrum disorder, obsessive compulsive disorder, generalized anxiety disorder, Ehlers-Danlos Syndrome, Tourette’s disorder, an eating disorder, encopresis, and a sleep disorder, all of which entitle him to special education and related services.

         In conformance with the Individuals with Disabilities Education Act (IDEA), [3] a team comprised of C.W.’s parents and District personnel assessed C.W.’s needs. Due to the severity and complexity of his disabilities, beginning in 2012, they determined that the least restrictive environment for his public education was at his home. Consequently, his October 2012 Individual Educational Plan (IEP) recommended educational placement at his home. By the end of the 2015–2016 academic year, however, after the extended medical absence of his in-home teacher, C.W. could only maintain focus for 10 to 15 minutes and could not tolerate 20 hours of instruction per week.[4]

         C.W.’s IEP team convened an IEP meeting in July 2016. It proposed home instruction to start, transitioning to attendance at Morey Middle School, a magnet school for gifted students. District personnel expressed concerns at the meeting that C.W. was not progressing in home instruction such that a “more clinical approach such as day treatment” might be warranted, after which C.W. could return to home instruction. (# 29 at 234.) The Parents opposed this suggestion.

         Bryan Sanchez was assigned as C.W.’s home teacher in August 2016. Things started out positively; C.W. attended two extracurricular clubs at Morey. But C.W. only went a few times and by October, he refused to go. Mr. Sanchez tried various instruction techniques to get C.W. to focus, but he had a difficult time getting C.W. off his iPad to engage in instruction.

         In October, the IEP team met to discuss C.W.’s planned transition into school-based instruction. The Parents stated they were having difficulty getting C.W. to come out of his room or wear pants, and that they did not think he could attend school. At the meeting, the District received authorization from the Parents to conduct social, emotional, motor, and health evaluations, as well as occupational and physical therapy evaluations, but apparently they were never performed.

         As the year went on, C.W. began refusing to come downstairs for instruction, and even when he did, he refused to work at the table, could not wear pants, shut down if he was not interested, or complained of hunger, headaches, or fatigue. Of 67 visits by Mr. Sanchez to C.W.’s home, C.W. was not ready 58 times. As a result, Mr. Sanchez was not able to engage C.W. for 10 hours of home instruction even though his work schedule allowed for it. C.W.’s willingness to engage in anything academic declined in his estimation. Another teacher who had worked with C.W. in previous years noticed the same resistance to instruction, noting that C.W. appeared to act like a different child. Multiple teachers had to leave the house without working with C.W. because he took so long to come downstairs.

         When faced with these challenges, the District modified the rules governing home instruction to include a requirement that C.W. sit at a table and wear shorts or pants. The modified rules also provided that a teacher was to leave and mark C.W. as a No Show if he took longer than 15 minutes to come downstairs. The rules were sent to the Parents on February 6, 2017, with a note that the modifications were not meant as punishment, but to ensure C.W. was able to receive instruction.

         The District ultimately convened an IEP meeting on February 10 to address the foregoing challenges. At the meeting, all of C.W.’s providers agreed he was regressing. District personnel expressed concern that C.W.’s disabilities were so severe that instruction at his home was no longer tenable. The team initially discussed day treatment as an option, but decided against it because it would be too stressful for C.W. on top of logistical difficulties getting him to treatment. Over the Parents’ objection, the team determined that C.W.’s designated placement should not be his home and instead should be a residential-treatment facility.

         Upon consideration of C.W.’s parents’ complaint and evidence presented at a hearing, an Administrative Law Judge (ALJ) held that the District had violated the IDEA during the 2014– 2015, 2015–2016, and 2016–2017 academic years, and awarded unspecified compensatory relief. But the ALJ found that the 2017 IEP was reasonably calculated to provide C.W. with a free appropriate public education (FAPE). The ALJ agreed with the IEP team because C.W. could not attend public school and was regressing in his abilities while receiving home instruction. The ALJ noted that day treatment was not an option because of stress and logistics, but also that it had become virtually impossible for the District to provide home instruction to C.W. The District having considered and tried multiple options to fulfill its obligation to C.W., the ALJ held that a residential facility was the most appropriate placement to receive the services he needs. Because the District had yet to find an appropriate residential facility for C.W., the ALJ also held that the District would owe C.W. additional compensatory services for the time spent finding an appropriate facility.

         C.W.’s parents now bring several claims. In its first claim for relief, the Amended Complaint (# 16) seeks review and reversal of the ALJ’s determination pursuant to 20 U.S.C. §1415(C). The second claim alleges that the District’s past and present actions violate § 504 of the Rehabilitation Act of 1973. The third claim alleges that the District’s past and present actions violate Title II of the Americans with Disabilities Act. The fourth claim alleges that the District’s actions (not circumscribed by time or otherwise described) violate the Equal Protection Clause of the Fourteenth Amendment to the Constitution. The parties have filed cross motions for summary judgment on all claims (## 56, 57).

         III. ADMINISTRATIVE APPEAL

         The Court’s standard of review in IDEA cases is less deferential than it is to other administrative decisions. See Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1149 (10th Cir. 2008). The Court applies a “modified de novo” standard, independently reviewing the administrative record and rendering a decision by a preponderance of the evidence. See id.; Murray v. Montrose Cty. Sch. Dist. RE-1J, 51 F.3d 921, 927 (10th Cir. 1995). The Court must, however, give “due weight” to the administrative decision’s findings of fact, “which are considered prima facie correct.” L.B. v. Nebo Sch. Dist., 379 F.3d 966, 974 (10th Cir. 2004).

         States receiving federal funds for education must, among other things, provide a free appropriate public education (FAPE) to all eligible children. 20 U.S.C. § 1412(a)(1). A FAPE includes special-education instruction and related services to assist in the child’s benefit from instruction. 20 U.S.C. § 1401(9), (26), & (29). Such instruction and services are memorialized in the child’s individualized education program (IEP), which is to be developed in a collaborative process involving both parents and educators. 20 U.S.C. §§ 1401(9)(D), 1414. “The IEP is a written statement that sets forth the child’s present performance level, goals and objectives, specific services that will enable the child to meet those goals, and evaluation criteria and procedures to determine whether the child has met the goals.” Ass’n for Cmty Living v. Romer, 992 F.2d 1040, 1043 (10th Cir. 1993). The IEP is the means through which special education and related services are “tailored to the unique needs” and circumstances of a particular child - “the centerpiece of the statute’s education delivery system for disabled children.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1 (Endrew II), 137 S.Ct. 988, 999 (2017).

         A FAPE has both substantive and procedural components. The Court determines whether the district complied with the IDEA’s procedural requirements and whether the IEP developed by those procedures is substantively adequate. Bd. of Educ. v. Rowley, 458 U.S. 176, 206–07 (1982). If a district meets both substantive and procedural requirements, it “has complied with the obligations imposed by Congress and the courts can require no more.” Id. at 207. To “meet its substantive obligation under the IDEA, a school must offer an ...


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