J.T. v. Denver Pub. Schs.
| Decision Date | 30 January 2023 |
| Docket Number | Civil Action 21-cv-01227-NYW-STV |
| Parties | J.T., on behalf of her minor child, A.R., Plaintiff, v. DENVER PUBLIC SCHOOLS, Defendant. |
| Court | U.S. District Court — District of Colorado |
This matter is before the Court on Plaintiff's First Amended Complaint [Doc. 17] and Plaintiff's Amended Opening Brief (“Opening Brief”) [Doc. 30]. Plaintiff J.T appeals the decision of the State of Colorado, Office of Administrative Courts, wherein the administrative law judge (“ALJ”) concluded that Defendant Denver Public Schools (“Defendant” or the “School District”) did not violate the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C §§ 1400 et seq. For the reasons that follow, the decision of the ALJ is respectfully AFFIRMED.
20 U.S.C. § 1401(9). “A school district satisfies its obligation to provide a FAPE to a disabled child ‘by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.'” Jefferson Cnty. Sch. Dist. R-1 v. Elizabeth E. ex rel. Roxanne B., 798 F.Supp.2d 1177, 1180 (D. Colo. 2011) (quoting Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 203 (1982)), aff'd, 702 F.3d 1227 (10th Cir. 2012).
The IDEA's central mechanism to ensure that all eligible children receive a FAPE is its requirement that the state create an individualized education program (“IEP”) for each eligible student. Patrick G. by & through Stephanie G. v. Harrison Sch. Dist. No. 2, 40 F.4th 1186, 1190 (10th Cir. 2022); see also 20 U.S.C. § 1401(14). An 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.” Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Schs., 565 F.3d 1232, 1236 (10th Cir. 2009) (); see also Ellenberg, 478 F.3d at 1268 ( that an IEP is typically “[p]repared at meetings between a representative of the local school district, the child's teacher, the parents or guardians, and, whenever appropriate, the disabled child”).
“To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 399 (2017). If the student is “fully integrated in the regular classroom,” the child's IEP should be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Id. at 401; see also Rowley, 458 U.S. at 204. If the child is not fully integrated into the general education setting, the student's IEP “must be appropriately ambitious in light of [her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom.” Endrew F., 580 U.S. at 402.
The Supreme Court has recognized that “crafting an appropriate program of education requires a prospective judgment by school officials,” and “[a]ny review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal.” Id. at 399. In Endrew F., the Supreme Court declined to “attempt to elaborate on what ‘appropriate' progress will look like from case to case,” as “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Id. at 403-04. The Supreme Court cautioned that courts are not to substitute their judgment for the expertise of school officials:
[D]eference is based on the application of expertise and the exercise of judgment by school authorities. The [IDEA] vests these officials with responsibility for decisions of critical importance to the life of a disabled child. The nature of the IEP process, from the initial consultation through state administrative proceedings, ensures that parents and school representatives will fully air their respective opinions on the degree of progress a child's IEP should pursue. By the time any dispute reaches court, school authorities will have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement. A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.
Id. at 404 (citations omitted). “Th[e] absence of a bright-line rule . . . should not be mistaken for ‘an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.'” Id. (quoting Rowley, 458 U.S. at 206).
“If a child's parents and school cannot agree on an IEP, the IDEA establishes formal procedures for resolving the disagreement.” Elizabeth B. by & through Donald B. v. El Paso Cnty. Sch. Dist. 11, No. 16-cv-02036-RBJ-NYW, 2019 WL 3774119, at *5 (D. Colo. Aug. 12, 2019), aff'd, 841 Fed.Appx. 40 (10th Cir. 2020). Parents who believe a school is violating the IDEA may file a due process complaint with their state educational agency alleging a violation of the IDEA. 20 U.S.C. § 1415(b)(6). If the matter is not resolved within 30 days, the parents are entitled to a due process hearing, after which a hearing officer will issue a “determination of whether the child received a free appropriate public education.” 20 U.S.C. § 1415(f)(1), (3)(E). If the parents remain unsatisfied with the outcome of the hearing, they may appeal the administrative decision in state or federal court. 20 U.S.C. § 1415(i)(2).[1]
A.R. was born in 2010. [R. at 484].[3]At all relevant times, A.R. was educated by the School District. [Id.]. In May 2015,[4] A.R. was evaluated for special education and deemed eligible for an IEP based on a “developmental delay.” [R. at 699, 703]. A.R. continued to qualify for special education after subsequent evaluations in May 2017 and March 2019. [R. at 703-04].
Second Grade. In May 2017, A.R. was again evaluated by the School District. [R. at 494 509]. The report gave A.R. a cognitive score in the below-average range and identified that A.R. struggles in the area of working memory and has decreased focus, attention, and endurance, which “impact her greatly in the general education classroom and in her small group opportunities.” [R. at 508]. A.R.'s academic scores “show[ed] significant deficits in reading and math.” [R. at 509].
A.R. began second grade in 2017 at Ellis Elementary and was given an IEP dated October 26, 2017 (the “2017 IEP”). [R. at 510]. The 2017 IEP describes A.R.'s parents as “very happy” with A.R.'s improvement that past year. [R. at 515]. The 2017 IEP provided that A.R. was to spend between 40% and 79% of her time in the general education classroom, [R. at 510], and explained that A.R. “[would] benefit from services being provided inside the [general] classroom as they will allow for collaboration between classroom staff and service providers, and will increase peer modeling opportunities.” [R. at 525]. More specifically, A.R. was to spend approximately 48% of her time within the general education classroom and 52% outside of that setting, [Id.], which amounted to approximately 16.75 weekly hours in the special education setting. [R. at 524]. The IEP also demonstrates that two other placement options were considered for A.R.: spending at least 80% of her time in the general education classroom and spending less than 40% of her time in the general education classroom. [R. at 525]. The 2017 IEP explains that these options were rejected because A.R. would benefit both from small group instruction outside of the classroom and peer modeling and interaction with peers. [Id.].
The 2017 IEP listed objectives for A.R.'s progress in reading, mathematics, self-determination, language, and physical motor skills. [R. at 515-20]. Progress reports throughout A.R.'s second grade year indicate that A.R met her goals in mathematics, [R. at 529-30], made progress on her goals in self-determination, [R. at 531-32], and made progress on her language and physical motor goals. [R. at 533-35]. Additionally, A.R. met some of her goals in reading and made progress on others. [R. at 527-29, 535-37]. J.T. testified at the due process hearing that the beginning of A.R.'s second grade year was “great,” but that she...
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