Kimble v. Douglas Cnty. Sch. Dist. Re-1

• Decision Date: 25 February 2013
• Docket Number: Civil Action No. 12–cv–0465–WJM–MEH.
• Parties: Janet KIMBLE, as Parent and Legal Guardian of B.K., a minor, and Tyrone Kimble, as Parent and Legal Guardian of B.K., a minor, Plaintiffs, v. DOUGLAS COUNTY SCHOOL DISTRICT RE–1, Defendant.
• Court: U.S. District Court — District of Colorado

925 F.Supp.2d 1176

Janet KIMBLE, as Parent and Legal Guardian of B.K., a minor, and Tyrone Kimble, as Parent and Legal Guardian of B.K., a minor, Plaintiffs,

v.DOUGLAS COUNTY SCHOOL DISTRICT RE–1, Defendant.

Civil Action No. 12–cv–0465–WJM–MEH.

United States District Court,

D. Colorado.

Feb. 25, 2013.

Richard Lawrence O'Meara, Murray, Plumb & Murray, Portland, ME, Michael Wayne Breeskin, Arc of Denver, Inc., Denver, CO, for Plaintiffs.

Robert Sherman Ross, Douglas County School District, Castle Rock, CO, for Defendant.

ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

WILLIAM J. MARTÍNEZ, District Judge.

This matter is before the Court on a Motion for Summary Judgment (“Motion”) (ECF No. 15) by Plaintiffs Janet Kimble and Tyrone Kimble (collectively “Plaintiffs”). Plaintiffs bring a claim against Defendant Douglas County School District RE–1 (“Defendant”) under Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and Title II of the Americans with Disabilities Act (“ADA”), alleging that Defendant failed to provide educational accommodations for their minor daughter, B.K. For the reasons set forth below, the Motion is denied.

I. BACKGROUND

The following facts are undisputed. ( See ECF No. 14 at 7–12.)

Plaintiffs are the parents and guardians of B.K., a minor with a qualifying disability under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; and Title II of the ADA, 42 U.S.C. §§ 12131–12134. (ECF No. 15 at 1–2.) Defendant is the local public school district where B.K. is enrolled and is responsible for compliance with the legal requirements of both Section 504 and the ADA. ( Id. at 2.) Prior to the events giving rise to this lawsuit, Defendant had found B.K. eligible to receive special education and related services under the IDEA and had developed Individualized Education Programs (“IEPs”) for her, pursuant to the IDEA. ( Id.) Plaintiffs initially consented to the provision of special education and related services to B.K. under the IDEA, which included various educational accommodations and modifications. ( Id. at 2–3.)

In May 2010, Plaintiffs received a copy of the IEP proposed by Defendant for the following school year, which differed from previous IEPs Defendant had developed for B.K. ( Id. at 3.) On May 19, 2010, in response to the IEP offer, Plaintiffs formally revoked their consent to the continued provision of special education and related services for B.K. ( Id.) Plaintiffs confirmed their decision by certified letters sent to the principals of both the elementary school B.K. would be leaving at the end of the school year, and the middle school she would be entering and attending for the following year. ( Id. at 3–4.) By letter dated May 21, 2010, the Director of Special Education for the school district replied that, due to Plaintiffs' revocation of consent for special education and related services under the IDEA, B.K. had become a general education student who “may receive those accommodations available to non-disabled children,” and that a “Section 504 plan is a plan for a student with a disability; here, [B.K.]'s Section 504 plan would be her IEP. [Plaintiffs'] revocation of consent, therefore, also revokes consent for those servicesthat would be offered under Section 504.” ( Id. at 4.)

On July 13, 2010, Plaintiffs submitted a written request to Defendant by e-mail for a meeting at the middle school pursuant to Section 504 to develop “a 504 plan, which may designate assistive technologies and additional curriculum augmentations.” ( Id.) On August 4, 2010, Defendant convened a “Section 504 meeting” for B.K. ( Id.) At that meeting, Defendant and Plaintiffs agreed that B.K. qualified as a student with a disability under Section 504. ( Id. at 5.) However, the Section 504 plan Defendant offered was to “implement the services as identified in the May 19, 2010 IEP.” ( Id.) Plaintiffs did not accept the Section 504 plan because it contained the same special education and related services that Plaintiffs had rejected as part of the IEP under the IDEA. ( Id.)

During their attempt to obtain accommodations for B.K.'s 2010–2011 school year under Section 504, Plaintiffs received numerous e-mails from the Principal and Assistant Principal of the middle school, all indicating that B.K. could not receive disability-based accommodations in her mainstream classes due to Plaintiffs' revocation of consent for services under the IDEA. ( Id.) The e-mails stated that, because Plaintiffs had “revoked consent for implementation of IDEA services and ... [were] not in agreement with the Section 504 team's recommendation that those services be reinstated, B.K. is a general education student”; that an “IEP was written that would allow access to assistive technology and accommodations to support her learning,” but Plaintiffs had “revoked [B.K.'s] right to receive special education services”; and that “for [B.K.], the educational needs, services, accommodations etc. set forth in her proposed IEP constitute her Section 504 plan. [Plaintiffs'] revocation of consent, therefore, also revoked consent for those Section 504 services and accommodations.” ( Id.)

On February 23, 2012, Plaintiffs filed a complaint alleging violations of Section 504 and Title II of the ADA. (ECF No. 1.) After agreeing with Defendant that no dispute of fact existed to prevent the case from being decided upon summary judgment (ECF No. 14 at 13–14), Plaintiffs filed the instant Motion (ECF No. 15). Defendant filed a Response Brief in Opposition to the Motion. (ECF No. 17.) Plaintiffs then filed a Reply. (ECF No. 18.) Although Defendant filed no cross motion for summary judgment, its arguments and its request for fees in its Response in effect assert that it should receive summary judgment on these claims. ( See ECF No. 17.)

II. LEGAL STANDARD

Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if, under the relevant substantive law, it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir.2001). An issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.1997). In analyzing a motion for summary judgment, a court must view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). In addition, the Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. See Houston v. Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir.1987).

III. ANALYSIS

Plaintiffs argue that Defendant discriminated against B.K. by refusing to provide her with educational accommodations under Section 504 and Title II of the ADA once Plaintiffs had revoked consent for special education and related services under the IDEA. (ECF No. 15 at 12–13.) Defendant argues in response that Plaintiffs' rejection of the aids, services, and accommodations in the IEP relieved it of its obligation to provide those services under Section 504 and the ADA. (ECF No. 17 at 12.) Because Plaintiffs' claims require interpretation of Defendant's obligations under three overlapping statutes, the Court will first review the interrelationship between those statutory obligations, and then will apply the statutes in the instant case.

A. Statutory Background

The IDEA “imposes obligations on the states to provide certain [educational] benefits [to disabled children] in exchange for federal funds.” Ellenberg v. N.M. Military Inst., 478 F.3d 1262, 1274 (10th Cir.2007); see also20 U.S.C. § 1412(a). The main purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education [“FAPE”] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A); see Garcia v. Bd. of Educ. of Albuquerque Pub. Sch., 520 F.3d 1116, 1129 (10th Cir.2008); Sytsema v. Acad. Sch. Dist. No. 20, 538 F.3d 1306, 1312 (10th Cir.2008) ( “The FAPE concept is the central pillar of the IDEA statutory structure.”). The terms “special education” and “related services” have specific definitions encompassing particular services that a school must offer to provide to qualifying students. See34 C.F.R. §§ 300.34(a), .39(a).

“The primary tool in assuring that a [FAPE under the IDEA] is provided to all eligible children with disabilities is the requirement that the state create an individualized education plan (“IEP”) for each disabled child.” Miller v. Bd. of Educ. of Albuquerque Pub. Sch., 565 F.3d 1232, 1236 (10th Cir.2009). “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); see also20 U.S.C. § 1414(d)(1)(A).

Prior to implementation of an IEP for a child with a disability, a school district must “seek to obtain informed consent from the parent of such child before providing special education and related services to the child.” 20 U.S.C. § 1414(a)(1)(D)(i)(II). Without such consent, the school district may not provide special education...