Cross v. N.M. Pub. Educ. Dep't

• Citation: 621 F.3d 1275
• Decision Date: 08 October 2010
• Docket Number: Nos. 09-2063, 09-2064.,s. 09-2063, 09-2064.
• Parties: Simon CHAVEZ and Beverly Chavez, on behalf of their minor son, M.C., Plaintiffs-Appellants/Cross-Appellees, v. NEW MEXICO PUBLIC EDUCATION DEPARTMENT, Defendant-Appellee/Cross-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

621 F.3d 1275

Simon CHAVEZ and Beverly Chavez, on behalf of their minor son, M.C., Plaintiffs-Appellants/Cross-Appellees,
v.
NEW MEXICO PUBLIC EDUCATION DEPARTMENT, Defendant-Appellee/Cross-Appellant.

Nos. 09-2063, 09-2064.

United States Court of Appeals,Tenth Circuit.

Oct. 8, 2010.

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Tara Ford of Pegasus Legal Services for Children, Albuquerque, N.M. (Gail Stewart of Steven Granberg, P.A., Albuquerque, N.M., with her on the brief), for Plaintiffs-Appellants/Cross-Appellees.

Jeffrey J. Wechsler of Montgomery and Andrews, P.A., Sante Fe, N.M. (Stephen S. Hamilton and Sharon T. Shaheen of Montgomery and Andrews, Sante Fe, N.M., with him on the brief), for Defendant-Appellee/Cross-Appellant.

Before GORSUCH, McKAY, and CUDAHY, ^* Circuit Judges.

CUDAHY, Circuit Judge.

This case is about the role of the New Mexico Public Education Department

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(NMPED) in a high-functioning autistic child's education. That child, M.C., was educated at home for 18 months as his parents, Simon Chavez and Beverly Nelson, and Tularosa Municipal Schools (Tularosa), their local school district, attempted to resolve their differences regarding M.C.'s education through the administrative proceedings of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-82 (2000). Although we will recount some of the factual and procedural background, NMPED's responsibilities to M.C. are based on several issues of statutory and regulatory interpretation and, therefore, we will not spend long on the details of the administrative proceedings which largely addressed the dispute between M.C.'s parents and Tularosa, not a party to this appeal.

I A

The IDEA's overarching purpose is to ensure that children with disabilities receive a free appropriate public education (FAPE) that “emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.” 20 U.S.C. § 1400(d)(1)(A) (2000). Because IDEA was enacted pursuant to Congress's Spending Clause powers, the Supreme Court has cautioned that any conditions on a state's acceptance of federal funds must be set out “unambiguously.” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 295-96, 126 S.Ct. 2455, 165 L.Ed.2d 526 (2006); but see Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 534, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007) (“Our determination that IDEA grants to parents independent, enforceable rights does not impose any substantive condition or obligation on States they would not otherwise be required by law to observe.”). The IDEA places a variety of obligations on state education agencies (SEA), like NMPED, and on local education agencies (LEAs), like Tularosa.

The IDEA mandates procedures to resolve the inevitable conflicts among students, parents, LEAs and SEAs. The centerpiece of the IDEA is the student's individualized education program (IEP). 20 U.S.C. § 1401(11) (2000). A team of specialists and educators must develop for each student covered by the IDEA an IEP to guide his education. “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 in Colo. v. Romer, 992 F.2d 1040, 1043 (10th Cir.1993). If they are unhappy with the outcome, the student's parents may file a complaint to challenge the IEP through a due process hearing which, in New Mexico during the relevant time period, began with a hearing before an impartial Due Process Hearing Officer (DPHO) and concluded with an appeal to an Administrative Appeal Officer (AAO). 20 U.S.C. § 1415(g) (2000); NMAC 6.31.2.13(I)(16) (2000).

M.C. was enrolled at Tularosa Middle School in the fall of 2003 for his sixth-grade year. Tularosa's middle school had no self-contained classrooms for students like M.C., and so it placed M.C. in a classroom with non-disabled students, accompanied by an aide. Thereafter, M.C. began refusing to go to school. Later in September of 2003, his parents requested an IEP meeting. At the meeting, the parents noted the problems they had convincing M.C. to leave his house for school and asked Tularosa to send someone to their home to help them. Tularosa refused to modify M.C.'s IEP to send staff to enter their

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home and to “walk” (essentially, to carry) M.C. out the door, because it claimed that such a service was outside its purview, although Tularosa did agree to provide transportation from M.C.'s home to school. Even though M.C. was not in school, Tularosa sent him homework until late September, when it dropped him from the rolls. M.C. did not attend school at Tularosa from October 2003 until the close of the administrative proceedings involving Tularosa and the parents.

The parents took some steps to notify NMPED about their troubles with Tularosa. In late September 2003, the parents mailed NMPED an “informal letter of complaint” in which they explained that Tularosa refused to modify M.C.'s IEP and that it had stopped sending homework home. The parents explained to NMPED “[w]e understand that in writing this letter that we are still keeping our complaint at the local level.” App. at 2145. They requested no direct action from NMPED beyond “look[ing] forward to hearing from” it, and they informed NMPED that they were home schooling their child until the situation was addressed because M.C. was dropped from school. See id. at 2146. The parents also followed up with a phone call in which Ms. Nelson spoke with Duane Ellis, the Special Education Bureau parent liaison. Ms. Nelson requested the forms for a due-process hearing from NMPED, and she remembers discussing her letter, which had not yet arrived. Ellis discussed the matter with Tularosa and provided some caselaw in support of Tularosa's position that it had no obligation to cross the threshold of the parents' home but also suggested alternative solutions, including consultation with the Southwest Autism Network Clinic (SWAN) or other school districts about providing education in the home. ¹ Ellis claims that he was not aware from the parents that M.C. was not being provided any education and, had he been so aware, he would have contacted Tularosa that day to explain that it needed to address the situation.

The parents took several actions to try to return their son to an educational environment prior to initiating a due-process hearing about M.C.'s education. The parents had M.C. evaluated by SWAN in December 2003. The IEP team met again in March 2004 to consider the preliminary evaluation, but declined to offer M.C. the residential placement the parents requested.

In May 2004, the parents filed a due process complaint against Tularosa and NMPED for violations of the IDEA and the Rehabilitation Act. NMPED appointed a DPHO to hear their claims. ² NMAC 6.31.2.13(I)(6)(a) (2000). NMPED claimed it was not properly before the DPHO, who agreed, and NMPED refused to accept the parents' claims against NMPED. After an evidentiary hearing, the DPHO found that Tularosa had denied M.C. a FAPE during the 2003-04 and 2004-05 school years because it failed to amend his IEP to address his refusal to attend school. Tularosa and the parents appealed to an AAO, appointed by NMPED. The parents challenged the DPHO's decision to exclude NMPED from the administrative proceedings and certain

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aspects of the remedy, and Tularosa contested the determination that it had denied M.C. a FAPE. In a March 2005 decision, the AAO generally affirmed the DPHO's decision and agreed that Tularosa had failed to provide M.C. educational services since October 2003. She ordered Tularosa to provide services to M.C. and noted that, “[o]nly if [Tularosa] is unable to comply with this order, will it become clear that [Tularosa] is unable to serve [M.C.] effectively.” AAO's Dec. 15 (Mar. 4, 2005), A.R. 330. The AAO agreed with the DPHO that NMPED should not be part of the administrative proceedings. Importantly for this appeal, the AAO held that “[a]t this time, it appears that [Tularosa] can implement the remedy ordered by the [AAO] for [M.C.].” Id. at 15. NMPED did not challenge any of the findings made in the administrative proceedings against Tularosa. Chavez v. Bd. of Educ. of Tularosa Mun. Sch., 614 F.Supp.2d 1184, 1194 (D.N.M.2008).

M.C. returned to school in the summer of 2005 and remained there through the end of the summer of 2006 when M.C. and his parents moved to Albuquerque. Eventually the state reimbursed Tularosa approximately $146,000 of the $165,000 it cost to educate M.C. while implementing the AAO's order.

The parents filed a complaint in the district court alleging claims against both Tularosa and NMPED, requesting equitable relief, including reimbursement for the efforts of M.C.'s mother to keep M.C. at grade level while he was out of school, and seeking injunctive, declaratory and compensatory education, including systemic relief to ensure across New Mexico proper monitoring of children with autism and an adequate continuum of alternative placements for M.C. Tularosa settled with the parents, was dismissed from the case and is therefore not part of this appeal. As for NMPED, the parents alleged that it was directly responsible for the provision of education to M.C., pursuant to 20 U.S.C. § 1413(h)(1) and 34 C.F.R. § 300.360. 1st Am. Compl. ¶ 19. In addition, they alleged that NMPED failed to offer appropriate placements for M.C. and other children with autism. Id. at ¶¶ 52, VII.9. Lastly, they alleged that NMPED failed to enforce the IDEA by supporting Tularosa's refusal to develop an appropriate program for M.C. Id. at ¶¶ 21, 44.

The district court eventually held that NMPED denied M.C. a FAPE by failing to provide direct services to M.C. as required by the IDEA, 614 F.Supp.2d at 1213, but declined to intervene in the...