Chavez v. Board of Educ. of Tularosa

• Decision Date: 17 November 2008
• Docket Number: No. CIV. 05-0380 JB/RLP.,CIV. 05-0380 JB/RLP.
• Citation: 614 F.Supp.2d 1184
• Parties: Simon and Beverly CHAVEZ, on behalf of their minor son, Matthew Chavez, Plaintiffs, v. BOARD OF EDUCATION OF TULAROSA MUNICIPAL SCHOOLS; the New Mexico Public Education Department; and Veronica Garcia, Secretary of the NMPED in her individual and official capacity, Defendants.
• Court: U.S. District Court — District of New Mexico

614 F.Supp.2d 1184

Simon and Beverly CHAVEZ, on behalf of their minor son, Matthew Chavez, Plaintiffs, v. BOARD OF EDUCATION OF TULAROSA MUNICIPAL SCHOOLS; the New Mexico Public Education Department; and Veronica Garcia, Secretary of the NMPED in her individual and official capacity, Defendants.

No. CIV. 05-0380 JB/RLP.

United States District Court, D. New Mexico.

November 17, 2008.

Opinion Denying Motion to Amend Judgment February 21, 2009.

Opinion Denying Clarification February 21, 2009.

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Gail Stewart, Laurel Nesbitt, Steven Grabber Attorney at Law, P.A., and Tara Ford, Pegasus Legal Services for Children, Albuquerque, NM, for the Plaintiff.

Gerald Coppler, Coppler & Mannick, P.C., Santa Fe, NM, for Defendant Board of Education of Tularosa Municipal Schools.

Andrew S. Montgomery, Jeffrey J. Wechsler, Montgomery & Andrews, P.A., Santa Fe, NM, for Defendants New Mexico Public Education Department and Veronica Garcia.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Plaintiffs' IDEA Brief in Chief, filed August 23, 2006 (Doc. 84); (ii) Plaintiffs' Supplemental IDEA Brief, filed October 30, 2008 (Doc. 173)("Plaintiff's Supp. Brief"); (iii) Defendant NMPED's Pre-Hearing IDEA Answer Brief, filed October 4, 2006 (Doc. 92); and (iv) NMPED's Post-Hearing IDEA Brief, filed November 3, 2008 (Doc. 181)("Defendant's Supp. Brief"). The Court held a two-day evidentiary hearing on whether to supplement the record on July 25, 2008 and August 1, 2008. The primary issues are: (i) whether the Administrative Appeal Officer ("AAO") erred by failing to exercise jurisdiction over claims against the New Mexico Public Education Department ("NMPED")¹; (ii) whether the NMPED had a duty under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-82, to make certain that the Tularosa Municipal Schools, and if not Tularosa Schools, then the NMPED provided educational services to Matthew Chavez; and (iii) whether equitable relief should include reimbursement for Matthew Chavez' mother's efforts; injunctive, declaratory, and compensatory education, and systemic relief to ensure, across the State of New Mexico, an adequate continuum of alternative placements for Matthew Chavez as a student with autism. Because the AAO should have exercised jurisdiction over the claims against the NMPED during the administrative process, and because the NMPED was required to make certain that educational services were provided to Matthew Chavez, the Court finds that the NMPED denied Matthew Chavez a Free and Appropriate Public Education ("FAPE"). The Court declines to order systemic relief. The Court also finds that the remedies that Mr. Chavez and Ms. Nelson seek—compensatory education, $80,000.00, and an order that the NMPED install a hotline—are inappropriate. The Court finds that the harm that the NMPED caused, while real, is not amenable to a court-fashioned remedy.

FACTUAL BACKGROUND

The following facts are relevant to the Plaintiffs' claim against the NMPED under the IDEA. Matthew is a sixteen-year-old public-school student who qualifies for receipt of special education based on autism. See First Amended Complaint ¶ 6, at 2-3, filed May 2, 2005 (Doc. 5)(stating that Matthew was twelve-years-old in 2005). Matthew, a high-functioning autistic student, has been eligible for special-education services beginning in preschool and continuing since that time. See Exhibit 1 to Memorandum of Defendant New Mexico Public Education Department in Support of Motion for Summary Judgment, filed August 24, 2006 (Doc. 81)("Memo. in Support of Motion for Summary Judgment"), Decision of the Due Process Hearing Officer, Findings of Fact ¶ 2, at 7 (dated November 17, 2004) ("DPHO"). Matthew is capable of functioning academically at grade level. See DPHO, Finding of Fact ¶ 37, at 13. He also enjoys interaction with his peers. See DPHO, Finding of Fact ¶ 53, at 15. Matthew, however, "has difficulty attending schools, does not do well with transitions and change, needs clear structure and visual support in the school environment, and regresses behaviorally and academically when he misses school, all characteristics associated with the diagnosis of autism. TR 59, 61, 79, 165, 191, 336, 463, 466-467, 694, 899." DPHO Finding of Fact ¶ 3, at 7. At all relevant times, Matthew has been a physically large boy, and his parents have been unable to physically redirect him since the end of his fifth-grade school year. See DPHO Finding of Fact ¶ 29, at 12.

Matthew's parents wanted him to attend school. See DPHO Finding of Fact ¶ 31, at 12. From 2003 until the spring of 2006, Matthew was enrolled in the Tularosa Municipal Schools. See id. Tularosa Schools had, however, no self-contained classrooms dedicated to instructing students such as Matthew Chavez apart from nondisabled students in the elementary or middle schools during the relevant years. See DPHO Finding of Fact ¶ 54, at 15. Moreover, the Tularosa Schools never placed a child in a residential treatment center during the special-education director's tenure with Tularosa Schools. See DPHO Finding of Fact ¶ 51, at 15.

Matthew's 2002-2003 school year was "successful." July 25 Tr. at 92:9-11 (Nelson). See Petitioner's Exhibits, DPH Record, Tab 7, Letter from Simon and Beverly Chavez re: Request for an I.E.P. Meeting at 4 (dated September 10, 2003)("Last year was an exceptional school year for our son. He attended school regularly and benefited greatly both academically and socially by his inclusion.")("IEP Request Letter").

Tularosa Schools had an educational program in place for Matthew during the 2003-2004 and 2004-2005 school years. See DPHO Findings of Fact ¶¶ 14, 26, 28, 36 ¶ 52, at 10, 12-13 & 15. During parts of 2003-2004 and 2004-2005 school years, Matthew refused to attend school. See DPHO Findings of Fact ¶¶ 17, 20, 27, at 10-12; Exhibit 2 to Memo. in Support of Motion for Summary Judgment, Decision of the Administration Appeal Officer at 3 (dated March 4, 2005) (adopting the findings of fact of the DPHO Decision)("AAO Decision"). Matthew's "school aversion as manifested by his refusal to attend school [was] directly related to his disability of autism." DPHO Finding of Fact ¶ 61, at 16.

A dispute arose between Matthew's parents, Plaintiffs Simon and Beverly Chavez, and Tularosa Schools over whether Tularosa Schools was obligated to cross the threshold of the home to provide services in the parents' home to ensure that Matthew attended school. See DPHO Findings of Fact ¶¶ 24, 32 & 33, at 11, 13. Tularosa Schools placed Matthew in full-inclusion classes for his sixth-grade, 2003-2004, school year. In September of 2003, Matthew began to refuse to go to school. Regarding Matthew's resistance to attending school, Matthew's mother, Ms. Nelson, testified:

He would not get out of bed. He urinated in bed because he wouldn't get out to go to the toilet. He wouldn't eat. He wouldn't get dressed. When we would put his shirt on him physically, he would take it off and throw it. When we would force the shoe on his foot, he would kick it off. And if we were in the way, too bad, we got kicked. He would not walk out the door. We tried to physically walk him out the door. We could not. I tried bribing him. I told him if he would go to school, after school, we'd go to the mall and he could pick out a new game. I can't afford that. I can't buy him games every day to get him to school.

He wouldn't go. So as a consequence, he wasn't allowed to watch TV. His behaviors were huge. He was turning over our kitchen table. He was throwing chairs. He was hitting me, pinching me, twisting skin. My husband tried to hold him down to hold him back.

Transcript of Proceedings, Due Process Hearing at 989:4-25 (dated September 23, 2004)("DPHO Tr."). See DPHO Finding of Fact ¶ 20, at 11 ("Student refused to go to school after September 5, 2005 even though his family tried to bribe and `walk him.' Student urinated in his bed, refused to eat and get dressed, turned over the family table and hit his parents.").

Matthew's parents requested an Individualized Education Program ("IEP") meeting, and one was held on September 16, 2003. At the IEP meeting, Mr. Chavez and Ms. Nelson requested a plan by which someone would come into their home to help them get Matthew to school. See Petitioner's Exhibits, DPH Record, Tab 6, September 16, 2003 IEP at 2-3. Tularosa Schools made clear its position that, while it would provide transportation as a related service, it would not assign staff to go into the home to get Matthew to school. See DPHO Finding of Fact ¶ 24, at 11. Tularosa Schools did not take any steps to determine why Matthew was refusing to go to school, nor did it develop any interventions or provide homebound services. See DPHO Findings of Fact ¶¶ 25 & 35, at 12-13. Tularosa Schools did not provide an IEP, BIP, homebound program, or any other educational or related service to Matthew after October 2003. See DPHO Finding of Fact ¶ 41, at 14 and citations therein. Mr. Chavez and Ms. Nelson informed the NMPED of this dispute in an "informal letter of complaint." Petitioner's Exhibits, DPH Record, Tab 7, Letter of Complaint at 10-11. In that letter, Mr. Chavez and Ms. Nelson stated that Matthew refused to attend school and that Tularosa Schools refused to help them get him to school. See id. at 10. The letter also states that Matthew was dis-enrolled from school. See id. at 11.

Tularosa Schools consulted with Duane Ellis, a state employee at the NMPED, regarding Matthew's refusal to go to school, and Ellis provided copies of cases in which school districts were not required to cross the threshold of a home, thereby lending SEA validation to Tularosa Schools' failure to provide any education. See DPHO Tr. at 228-229 (Dembrowsky). In addition to the NMPED affirming Tularosa Schools'...