Murray By and Through Murray v. Montrose County School Dist. RE-1J

• Citation: 51 F.3d 921
• Decision Date: 04 April 1995
• Docket Number: 93-1474,RE-1J,Nos. 93-1466,s. 93-1466
• Parties: 99 Ed. Law Rep. 126, 9 A.D.D. 999 Tyler MURRAY, by and through his parents and next friends, John and Myrna MURRAY, Plaintiff-Appellant, Cross-Appellee, v. MONTROSE COUNTY SCHOOL DISTRICT, a School District of the State of Colorado, Defendant-Appellee, Cross-Appellant. Center for Law and Education, Inc.; Disability Rights Education and Defense Fund; National Association of Protection and Advocacy Systems; Colorado Developmental Disabilities Planning Council, Amici Curiae.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 921

51 F.3d 921

99 Ed. Law Rep. 126, 9 A.D.D. 999

Tyler MURRAY, by and through his parents and next friends John and Myrna MURRAY, Plaintiff-Appellant, Cross-Appellee, v. MONTROSE COUNTY SCHOOL DISTRICT RE-1J, a School District of the State of Colorado, Defendant-Appellee Cross-Appellant Center for Law and Education, Inc.; Disability Rights Education and Defense Fund; National Association of Protection and Advocacy Systems; Colorado Developmental Disabilities Planning Council, Amici Curiae.

Nos. 93-1466, 93-1474.

United States Court of Appeals Tenth Circuit.

April 4, 1995.

Rehearing Denied May 8, 1995.

Michael W. Breeskin (Chester R. Chapman and Kristin A. Kutz with him on the briefs), The Legal Center Serving Persons with Disabilities, Denver, CO, for appellant/cross-appellee.

Susan S. Schermerhorn (Gerald A. Caplan and Alexander Halpern with her on the

briefs), Caplan and Earnest, Boulder, CO, for appellee/cross-appellant.

Maura J. Kelly, Kathleen B. Boundy, and Kathleen Noonan, Center for Law and Educ., Cambridge, MA, on the brief for The Center for Law and Educ. and the Disability Rights Educ. and Defense Fund, amici curiae.

William P. Bethke, Denver, CO, on the brief for the Colorado Developmental Disabilities Planning Council, amicus curiae.

Stewart R. Hakola, Michigan Protection & Advocacy Service, Marquette, MI, on the brief for the National Ass'n of Protection and Advocacy Systems, amicus curiae.

Before ANDERSON and McWILLIAMS, Circuit Judges, and BROWN, ^* District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

Plaintiff and appellant Tyler Murray, by and through his parents and next friends John and Myrna Murray, appeals from the dismissal of his action under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. Secs. 1400-1485, against the Murray County School District, in which he challenged the District's decision to move him from his neighborhood school in Olathe, Colorado, to a school with a program for children with severe disabilities. The District cross-appeals the district court's earlier denial of a previously filed motion for summary judgment. For the following reasons, we affirm.

BACKGROUND

Tyler Murray ("Tyler") is a twelve-year-old boy with multiple disabilities due to cerebral palsy. His disabilities include significant mental and physical impairments, as well as speech difficulties. ¹ Tyler lives in Olathe, Colorado, approximately five blocks from Olathe Elementary School.

In late 1987 and in early 1988, Tyler was tested in anticipation of his commencing kindergarten in the fall of 1988. Olathe Elementary offers basic services to disabled children with "mild to moderate" ("M/M") needs. It offers these services through its two resource teachers, as well as through paraprofessionals and itinerant specialists. ² When Tyler began kindergarten at Olathe, and until early 1991, the school was not fully accessible to children with disabilities like Tyler's. It is now fully accessible. Another school, Northside Elementary School, located in Montrose, some ten miles from Olathe, has a specific program, implementing the Colorado Effective Education Model ("CEEM"), for children with "severe/profound" needs ("S/P"). It is fully accessible to disabled children. It is one of six elementary schools in Colorado implementing CEEM. Northside also contains regular education classrooms which serve nondisabled children.

In April and October of 1988, a multi-disciplinary staffing team at Olathe met to develop an individualized education program ("IEP") for Tyler, as the IDEA requires for each child with disabilities. See 20 U.S.C. Secs. 1401(a)(18), 1414(a)(5). ³ The staffing The required annual review of Tyler's IEP occurred in May 1989, at which needs and goals were established for first grade. ⁴ Tyler remained at Olathe in the regular first grade classroom with five hours served in the resource room, one to two hours of speech and language therapy, and one and one-half hours of occupational therapy per week.

team determined that Tyler's IEP could be implemented at Olathe. Tyler was in the regular kindergarten class at Olathe for the full two and one-half hour school day, with two to four hours per week of speech and occupational/physical therapy. As of February 1989 he began spending one and one-quarter to three and three-quarters hours per week in the resource room instead of the regular classroom.

In January 1990 Tyler's IEP was reviewed because the staff at Olathe were concerned that he was not progressing as well as expected, and that his current educational placement might be inappropriate. His time in special education services was increased, and his curriculum was modified.

Tyler had surgery in July 1990, and spent six weeks in a cast, which caused him to regress in certain areas and made it difficult for him to meet his IEP goals during that time period.

At a meeting in August 1990, between the Murrays, Donald Binder, the Director of Student Services for the District, and others, District personnel suggested that the CEEM program at Northside might be a more appropriate placement for Tyler. The Murrays expressed their strong preference that Tyler remain at Olathe, where his sibling and neighborhood friends attended school.

At a triennial review held on November 27, 1990, Tyler's IEP was carefully reviewed and modified, and the staffing team discussed alternative placements, comparing the benefits of Olathe and Northside. ⁵ At that time, Tyler was in second grade, but his academic level was determined to be kindergarten in some areas, and beginning first grade in others. Appellant's App. Vol. I at A-0044; Vol. IV at A-0730. His greatest area of strength was in social skills and interaction.

The staffing team was polled, and the Olathe psychologist, one of the resource teachers, the Olathe school principal, Tyler's regular classroom teacher at Olathe, and Mr. Binder all voted to place Tyler at Northside. Mr. Binder testified that the reasons for recommending placement at Northside were that the severe needs program was more appropriate for Tyler and that Olathe was not physically as accessible as Northside. Tyler's parents, his occupational therapist, his physical therapist, and his speech therapist all voted to have Tyler remain at Olathe. It is apparently undisputed that all members of the staffing team, and Tyler's parents, agreed on the needs, goals, and objectives contained in the IEP and that Tyler should spend most of his time outside the regular classroom setting.

On December 13, 1990, Mr. Binder sent the Murrays a letter indicating the District's intent to move Tyler to Northside, effective January 7, 1991, and informing the Murrays of their right to challenge that decision in a due process hearing. ⁶ The Murrays requested such a due process hearing before an independent hearing officer ("IHO"), as permitted by the IDEA, 20 U.S.C. Sec. 1415(b)(2), as well as an independent educational and psychological evaluation of Tyler.

Following Tyler's evaluation by Dr. Sally Rogers, the staffing team reconvened in March 1991, along with Dr. Rogers, and prepared an addendum to Tyler's IEP, which made some clarifications and added some goals and objectives, primarily academic. ⁷ Nonetheless, the same majority of the team voted for placement at Northside, with the addition that the Olathe social worker also recommended placement at Northside. The Murrays continued to express their strong preference that Tyler remain at Olathe.

Because the matter remained unresolved, the due process hearing took place on March 25-27, 1991. The IHO determined that Olathe was providing an appropriate education for Tyler. The District appealed that decision to an administrative law judge ("ALJ"), who reversed the IHO's decision, holding that Tyler had not achieved any meaningful educational progress at Olathe and that Northside was the appropriate placement for him.

The Murrays thereafter filed a complaint in district court challenging the ALJ's decision. See 20 U.S.C. Sec. 1415(e)(2). The District moved for summary judgment on November 22, 1991, which the district court denied on April 14, 1992. On August 11, 1992, the District moved to dismiss the complaint in part or for partial summary judgment, and the Murrays moved for partial summary judgment. On October 21, 1993, the district court granted the District's motion, affirmed the ALJ's decision, and dismissed the Murrays' claim.

The Murrays filed a notice of appeal from the dismissal of their claims, and the District filed a cross-appeal from the district court's denial of its November 22, 1991, motion for summary judgment. The Murrays have filed a motion to dismiss the cross-appeal, on the ground that the District, as the ultimately prevailing party, lacks standing to appeal an interlocutory order against it. Tyler has remained at Olathe throughout this entire period. He was evaluated in November of 1993, and the staffing team determined at that time that his IEP could be implemented at Olathe. ⁸

DISCUSSION

I. IDEA

"The IDEA is a comprehensive statute enacted to ensure that all children with disabilities have access to 'a free appropriate public education ... designed to meet their unique needs.' " Association for Community Living, 992 F.2d at 1042-43 (quoting 20 U.S.C. Sec. 1400(c)); see also Board of Educ. v. Rowley, 458 U.S. 176, 181, 102 S.Ct. 3034, 3038, 73 L.Ed.2d 690 (1982); Beard v. Teska, 31 F.3d 942, 950 (10th Cir.1994). The IEP is the basic mechanism through which that goal is achieved for each disabled child. See 20 U.S.C. Sec. 1401(a)(20); see also Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 597-98, 98 L.Ed.2d 686 (1988). The IDEA contains both extensive procedural requirements designed to ensure that an IEP is properly developed for each child and that parents or guardians have significant involvement in the educational decisions involving their children, as well as substantive requirements designed...