L.B. ex rel. K.B. v. Nebo School Dist., 02-4169.
| Decision Date | 11 August 2004 |
| Docket Number | No. 02-4169.,02-4169. |
| Citation | 379 F.3d 966 |
| Parties | L.B., and J.B., on behalf of K.B., Plaintiffs-Appellants, v. NEBO SCHOOL DISTRICT; Nebo Board of Education; Collin Allan, as President of Nebo Board of Education; Utah State Office of Education; Steven O. Laing, Ed.D., as State Superintendent of Public Instruction; Mae Taylor, as State Director of Services for At Risk Students, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Appeal from the United States District Court for the District of Utah, 214 F.Supp.2d 1172, Dale A. Kimball, J.
COPYRIGHT MATERIAL OMITTED
Gary S. Mayerson, Mayerson & Associates, New York, NY, for Plaintiffs-Appellants.
Brent A. Burnett, Assistant Attorney General (Mark L. Shurtleff, Utah Attorney General, Alain Balmanno, Peggy E. Stone, Assistant Attorneys General, with him on the brief), Salt Lake City, UT, for Defendants-Appellees.
Before EBEL, Circuit Judge, BRORBY, Senior Circuit Judge, and MURPHY, Circuit Judge.
Plaintiffs-Appellants L.B. and J.B. are the parents of K.B., a child who was diagnosed with autism spectrum disorder in 1997. After several meetings and the establishment of K.B.'s individualized education program ("IEP"), which is required by the Individuals with Disabilities in Education Act ("IDEA"), the Nebo School District ("Nebo") offered to place K.B. in the Park View Special Education Preschool ("Park View") starting in the fall of 1998. Although Nebo considered the mainstream setting of Appellants' choice, Nebo offered Park View1 as the only school placement that it thought appropriate for K.B.
Park View is populated mainly by disabled students, but includes thirty to fifty percent typically developing children ("typical children") who are present for the full length of the preschool classes. These typical children interact with the disabled children. Nebo offered to increase the ratio of typical children at Park View to accommodate Appellants' concerns. Although K.B. functions academically at a higher level than most of the disabled children at Park View, various skill levels were taught at the school that could have met many of K.B.'s needs and goals.
In addition to the Park View placement, Nebo offered to provide K.B. with a few hours per week of speech and occupational therapy and eight to fifteen hours per week of Applied Behavioral Analysis ("ABA"). Both parties agree that ABA was an appropriate method to teach K.B. during the relevant time period. Nebo concedes that K.B. needed some level of ABA to make academic progress. The parties disagree, however, about how much ABA was required. Nebo argues that eight to fifteen hours per week of ABA programming, in addition to ten classroom hours per week at Park View, would have sufficed to meet K.B.'s needs. Appellants, on the other hand, argue that the IEP goals could not have been met with anything less than forty hours per week of ABA programming.
Appellants declined the Park View placement offer and kept K.B. in a mainstream private preschool where K.B. was progressing successfully with the use of a supplementary aide and at-home ABA program. K.B. received thirty-five to forty hours per week of ABA instruction ("intensive ABA program"), which included ten classroom hours per week at the mainstream private preschool. Despite subsequent IEP meetings, Nebo never offered to pay for K.B.'s supplementary aide or to fund her intensive ABA program in full.
In December 1999, Appellants requested an administrative due process hearing to seek reimbursement for the cost of K.B.'s intensive ABA program2 and supplementary aide. Appellants requested reimbursement for their expenditures from October 2, 1997 through the end of K.B.'s 1999-2000 preschool year. The due process hearing was held in March, May, and July of 2000.
Hearing officers preside over due process hearings. At the relevant time, persons interested in becoming due process hearing officers could present their candidacy by signing up for training. Utah's hearing officer selection process is designed to avoid appointing hearing officers who might be or appear to be biased. The Utah State Board of Education's ("USBE") list of eligible hearing officers consists of private attorneys, county attorneys, an attorney from the Administrative Office of the Courts, retired university professors, retired school district employees, as well as current school district employees and attorneys. The record shows that from 1998 until K.B.'s hearing in 2000, Utah parents and disability-advocates had expressed concerns that USBE's list of hearing officers appeared to favor school districts, and that certain hearing officers were more often chosen to preside over hearings than others.
At the time relevant to this appeal, the hearing officers underwent training before they were allowed to preside over due process hearings. The trainers were attorneys who represented both school districts and parents, although most trainers represented school districts. Hearing officers were trained to be impartial. When initially assigned a case, the hearing officers were specifically asked if they could be impartial in that particular case and were not selected if they could not be impartial.
The hearing officer who presided over K.B.'s due process hearing was Dr. Steven Hirase.3 Hirase is an assistant superintendent in the Murray School District. Hirase does not work for the Utah State Office of Education ("USOE"). At the relevant time, Hirase was married to a woman who worked in the Jordan School District, which is the same school district that employed Nebo's autism expert witness, Melisa Genaux. Despite this connection, there is no evidence that Hirase's wife and Genaux had ever worked together. In fact, Appellants do not even allege that the women knew each other.
Appellants moved to disqualify Hirase. Hirase denied the motion and presided over K.B.'s due process hearing. Hirase concluded that the 1998-1999 and the 1999-2000 IEP provided K.B. with a free and appropriate public education ("FAPE") in a least restrictive environment (sometimes referred to as "LRE").
Appellants then filed a complaint in the United States District Court for the District of Utah, seeking review of Hirase's decision and alleging, inter alia, both procedural and substantive violations of the IDEA. The substantive IDEA claim was premised on the theory that K.B. was denied a FAPE in a least restrictive environment. The procedural IDEA claim was premised on the theory that K.B. was denied an impartial hearing because Hirase was biased. Appellants also argued that they could not secure an impartial hearing officer because the USBE's list of hearing officers was "aligned with the interests of school districts." Appellants sought compensatory damages to reimburse them for their expenditures on K.B.'s supplementary aide and intensive ABA program, as well as costs and attorneys' fees. No claim was made for the private preschool's tuition.
The parties filed cross-motions for summary judgment. The district court affirmed Hirase's decision and granted summary judgment to Nebo. In doing so, the district court reasoned that the Park View placement was the LRE for K.B. and that Appellants were not entitled to reimbursement under the IDEA for the 1997-1998 incomplete IEP.4 The district court also concluded that Hirase was not biased against K.B. in violation of the IDEA's procedural safeguards or the Due Process Clause of the Fourteenth Amendment. L.B. and J.B. appeal.
Exercising jurisdiction pursuant 28 U.S.C. § 1291, this court affirms in part and reverses in part the district court's grant of judgment to Nebo. It grants judgment in part to Appellants and remands this case to the district court for further proceedings consistent with this opinion.
In October 1997, Appellants requested that Nebo pay only for K.B.'s speech and occupational therapy. Nebo provided these services in Appellants' home. During the 1997-1998 school year, Nebo also placed K.B. on a waiting list for Park View.
In the fall of 1998, Appellants placed K.B., at their own expense, in a private preschool populated exclusively by typical children.5 On October 10, 1998, after K.B. had already started private preschool, J.B. requested that Nebo pay for K.B.'s intensive ABA program and supplementary aide. Appellants never asked Nebo to pay for tuition at the private mainstream school.6 At an IEP meeting on October 28, 1998, Appellants once again asked only that Nebo pay for K.B.'s intensive ABA program and supplementary aide. Although Appellants generally agreed with the goals of Nebo's proposed IEP, they expressed their disagreement with Nebo's proposal to place K.B. at Park View for ten hours per week and with Nebo's offer to pay for only eight hours per week of one-on-one ABA services.7 In November 1998, Appellants again told Nebo that they were dissatisfied with the Park View placement offer and that they felt K.B. would regress if she did not have an intensive ABA program in addition to her mainstream preschool. Appellants noted their desire to have the preschool portion of the IEP take place in a setting with all typical children.
In January 1999, Appellants sent Nebo a letter indicating their intent to file for a due process hearing. Thereafter, Nebo increased its offer to fifteen hours per week of one-on-one ABA, but continued to offer Park View as the school placement. In May 1999, Appellants accepted Nebo's offer to pay K.B.'s private tutors for fifteen hours of one-on-one ABA per week, and to continue paying for speech and occupational therapy, without prejudice to their claim that this was insufficient.
In December 1999, Nebo sent its autism specialist, Melisa Genaux, to observe K.B. once at her mainstream preschool and twice at her home ABA program. Based on her observation of K.B. at preschool, Genaux opined that K.B. sought too much reassurance from her aide and...
To continue reading
Request your trial
-
G.B. v. Tuxedo Union Free Sch. Dist.
...nondisabled children to the maximum extent appropriate.” See Newington Bd. of Ed., 546 F.3d at 121; accord L.B. ex rel. K.B. v. Nebo Sch. Dist., 379 F.3d 966, 976 (10th Cir.2004); Oberti, 995 F.2d at 1215; Daniel R.R., 874 F.2d at 1048. In applying the first prong, a court should consider (......
-
Miller ex rel. S.M. v. Bd. Educ., Albuq. Pub. Sch.
...court proceedings "must maintain the character of review and not rise to the level of a de novo trial." L.B. ex rel. K.B. v. Nebo Sch. Dist., 379 F.3d 966, 974 (10th Cir.2004). Ms. Miller has not given us any basis for concluding that the district court abused its discretion in refusing to ......
-
G.A. v. River Vale Bd. of Educ.
...L., 102 F.3d 895, 901 (7th Cir.1996); E.M. v. Pajaro Valley Unified Sch. Dist., 652 F.3d 999, 1004 (9th Cir. 2011); L.B. v. Nebo Sch. Dist., 379 F.3d 966, 974 (10th Cir.2004); Walker Cnty. Sch. Dist. v. Bennett, 203 F.3d 1293, 1298-99 (11th Cir. 2000); Andersen v. Dist. of Columbia, 877 F.2......
-
Nathan M. v. Harrison Sch. Dist. No. 2
...constitutes the LRE is a substantive issue that may be capable of repetition but evading review. See L.B. ex rel. K.B. v. Nebo Sch. Dist. , 379 F.3d 966, 975 n.13 (10th Cir. 2004) ("The IDEA’s substantive provisions are violated if: (1) the school district fails to provide a child with a FA......
-
Individuals With Disabilities Education Act - the Right 'idea' for All Childrens' Education
...89 F.3d 720 (10th Cir. 1996); Murray v. Montrose County Sch. Dist. RE-1J, 51 F.3d 921 (10th Cir. 1995). 69. See L.B. v. Nebo Sch. Dist., 379 F.3d 966 (10th Cir. 2004) adopting the analysis set forth in Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036 (5th Cir. 1989). While the 10th Circuit ......
-
Articles Juvenile Law
...supra note 14 at 51. 32. 20 U.S.C. § 1400(c)(5)(A). 33. 34 C.F.R. § 300.114(a); CRS § 22-20-108. 34. L.B. and J.B. v. Nebo School Dist., 379 F.3d 966, (10th Cir. 2004). 35. 20 U.S.C. § 1412(a)(5); Chapman, supra note 23 at 13. 36. 34 C.F.R. § 300.114(a). 37. 20 U.S.C. § 1414(d)(1)(A). 38. S......
-
Finding the Least Restrictive Environment for Preschoolers Under the Idea: an Analysis and Proposed Framework
...to dismiss the complaint). 142. Id. at *9. 143. Id. at *9 n.16. 144. Id. 145. See id. 146. See L.B. ex rel. K.B. v. Nebo Sch. Dist., 379 F.3d 966 (10th Cir. 2004); T.R. ex rel. N.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572 (3d Cir. 2000); Bd. of Educ. of LaGrange Sch. Dist. v. Ill. State......
-
Toward true equality of educational opportunity: unlocking the potential of assistive technology through professional development.
...R-1 Sch. Dist., 813 F.2d 158 (8th Cir. 1987); Ronker v. Walter, 700 F.2d 1058 (6th Cir. 1983); L.B. ex rel. K.B.v. Nebo Sch. Dist., 379 F.3d 966 (10th Cir. 2004). See also Stacey Gordon, Making Sense of the Inclusion Debate Under IDEA, 2006 BYU EDUC. & L.J. 189, 199-210 (2006), for a re......