Urban by Urban v. Jefferson County School Dist. R-1, R-1
| Citation | 89 F.3d 720 |
| Decision Date | 16 July 1996 |
| Docket Number | D,R-1,No. 95-1111,95-1111 |
| Parties | 110 Ed. Law Rep. 1069, 5 A.D. Cases 1135, 17 A.D.D. 854 Gregory G. URBAN, by Ronald and Janice URBAN, Plaintiff-Appellant, v. JEFFERSON COUNTY SCHOOL DISTRICTefendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
William R. Baesman, Littleton, Colorado (Kevin M. Baird, Gorsuch, Kirgis, L.L.C., Denver, Colorado, with him on the briefs), appearing for the Plaintiff-Appellant.
Alan J. Canner (Gerald A. Caplan, Alexander Halpern, and Susan S. Schermerhorn, with him on the brief), Caplan & Earnest, Boulder, Colorado, for the Defendant-Appellee.
Before TACHA, McKAY, and JONES, * Circuit Judges.
Gregory Urban ("Gregory") has multiple disabilities that include severe retardation and delays in speech and motor skills. Jefferson County School District ("the District") refused to place him at the high school of his choice. By and through his parents Ronald and Janice Urban, Gregory brought this action for injunctive relief pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1485, the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and 42 U.S.C. § 1983. The district court dismissed two of Gregory's eight claims for failure to exhaust administrative remedies, granted summary judgment in favor of the District on the remaining claims, and denied Gregory's request for attorney's fees. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.
The IDEA provides federal money to state and local agencies for the education of disabled children. The Act guarantees all disabled children between the ages of three and twenty-one access to "a free appropriate public education which emphasizes special education and related services designed to meet their unique needs...." 20 U.S.C. § 1400(c). It also creates an "obligation to educate disabled children in the 'least restrictive environment' in which they can receive an appropriate education." Murray v. Montrose County Sch. Dist. RE-1J, 51 F.3d 921, 926 (10th Cir.) (citing 20 U.S.C. § 1412(5)(B)), cert. denied, --- U.S. ----, 116 S.Ct. 278, 133 L.Ed.2d 198 (1995). In order to implement these goals, the IDEA requires the state to provide each disabled child with an individualized education program (IEP). An IEP is a written statement of (1) the child's present performance level, (2) the goals and instructional objectives to be attained, (3) the specific educational services to be provided, (4) the child's needed transition services, (5) the projected dates for initiation and completion of such services, and (6) the criteria and procedures to be used to assess progress toward the instructional objectives. 20 U.S.C. §§ 1414(a)(5), 1401(a)(20). The part of the IEP at issue in this case is the statement of transition services--activities that help the student move from school to a post-school environment. 20 U.S.C. § 1401(a)(19).
The IDEA places special emphasis on parental participation in the development of the IEP, requiring written parental notification of any change of or refusal to change the "identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child...." 20 U.S.C. § 1415(b)(1)(C). Parents are also entitled to bring a complaint on any matter relating to the evaluation or placement of their child and to seek an impartial due process hearing after bringing a complaint. 20 U.S.C. § 1415(b)(2).
Gregory and his family moved to Evergreen, Colorado in November 1991, just before Gregory turned eighteen years old. School district officials placed Gregory in Golden High School and scheduled a special education conference to develop his IEP. Gregory's parents consented to this placement believing that it would last only until the end of the school year. Gregory attended Golden High School, however, until he was twenty-one, the age at which he became ineligible for services under the IDEA. Had he not been disabled, Gregory would have attended Evergreen High School.
At Golden High School, Gregory participated in the Challenge Program and P.E. Plus. The Challenge Program was designed to provide education and support services to children with severe disabilities. As part of the program, Gregory participated in job site training known as "shadowing," in which he performed light cleaning at a Pizza Hut in Golden and delivered newspapers for the Golden Transcript. P.E. Plus was an adaptive physical education program. Neither the Challenge Program nor P.E. Plus was available at Gregory's neighborhood high school in Evergreen.
School officials held the initial conference to develop Gregory's IEP on February 14, 1992. Gregory's IEP recommended that the Challenge Program at Golden High School would constitute placement in the least restrictive environment for him. Gregory's parents were not present at the conference because they could not take time off from work. They subsequently sought a hearing before an Impartial Hearing Officer (IHO), arguing that the District violated Gregory's right to a free appropriate public education by (1) assigning Gregory to a school other than the one which he would have attended had he not been disabled and (2) failing to assess Gregory's need for, make IEP provision for, and provide transition services. The parties resolved other matters by stipulation prior to the hearing.
The IHO determined that the District failed to provide Gregory with a free appropriate public education because his IEP had not provided a statement of transition services. Consequently, the IHO ordered the IEP team to reconvene and create a new IEP that provided for transition services. The IHO found that Gregory had a limited ability to generalize, in that he could not readily transfer skills from the environment in which he learned them to other similar environments. Based on this finding, the IHO decided that the statement of transition services in the new IEP must be "predicated" on Gregory's limited ability to generalize, and that such transition services must include experiences in his post-school environment in Evergreen, rather than in Golden. The IHO further decided that Gregory should be placed in the Challenge Program only after consideration of all available options in Evergreen and only if the IEP required such a placement. However, the IHO did find that aside from the lack of a statement of transition services and without reference to the least restrictive environment question, Gregory was receiving an appropriate education in the Challenge Program, and that the program provided Gregory with educational benefit. The IHO did not decide whether Gregory's least restrictive environment was at Evergreen High School or Golden High School because such a determination could only be made by reference to a complete IEP. Finally, the IHO found that Gregory's parents had not given their informed consent to the IEP because they were not present when school officials met to create it. The IHO directed the District to schedule the meetings to create a new IEP at times when Gregory's parents could attend.
The District appealed several aspects of the IHO's decision to an Administrative Law Judge (ALJ), as permitted by 20 U.S.C. § 1415(c). The District did not appeal the IHO's order to create a new IEP. Gregory's parents cross-appealed, requesting that the ALJ require the District to place Gregory at Evergreen High School. The ALJ deferred to the IHO's findings of fact, and made additional findings after hearing evidence. Like the IHO, the ALJ ordered school officials to reconvene a new IEP meeting. The ALJ rejected the argument that Gregory was entitled to placement at Evergreen High School as a matter of law. The ALJ noted, however, that the District should consider whether services available in Evergreen could be used for Gregory's IEP, and should specifically identify Gregory's post-school environment when determining Gregory's need for transition services. The ALJ also affirmed the IHO's conclusion that the District must hold new IEP meetings at times that accommodated Gregory's parents' work schedules. The ALJ held that the IHO erred when she concluded that transition services must be focused on Evergreen, because such determinations are properly made by the IEP committee. The ALJ also held that the IHO erred when she decided that Gregory's transition services must be "predicated" on his limited ability to generalize, to the extent that "predicate" implies the sole basis for the transition services, because such a directive is beyond the authority of administrative review.
Pursuant to the ALJ's order, the District convened a number of meetings, in which Gregory's parents participated, to develop a new IEP for Gregory. This new IEP, completed on May 4, 1993, again assigned Gregory to the Challenge Program at Golden High School. Prior to that date, on April 27, 1993, Gregory filed this action in the district court. The district court denied Gregory's motion for a preliminary injunction that would have required the District to place Gregory in Evergreen High School. The court granted the District's motion to dismiss Gregory's sixth and eighth claims for lack of subject matter jurisdiction due to Gregory's failure to exhaust administrative remedies.
The District then moved for summary judgment on the remaining claims. Gregory moved for summary judgment on his seventh claim and requested attorney's fees. The district court granted summary judgment to the District, denied Gregory's motion, and denied Gregory's request for attorneys fees. Urban v. Jefferson County Sch. Dist. R-1, 870 F.Supp. 1558 (D.Colo.1994). In its summary judgment order, the court concluded that Gregory was receiving a free appropriate public education at Golden High School, and noted that Gregory has no right, as a matter of...
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