United States District Court, D. Colorado
C.W., a minor, by and through his parents B.W. and C.B., Plaintiff,
DENVER COUNTY SCHOOL DISTRICT NO. 1, Defendant.
OPINION AND ORDER ON ADMINISTRATIVE APPEAL AND ON
MOTION FOR SUMMARY JUDGMENT
S. KRIEGER SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.
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
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.
conformance with the Individuals with Disabilities Education
Act (IDEA),  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.
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.
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
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
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.
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.
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
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.
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,
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).
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).
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