Miller ex rel. S.M. v. Bd. Educ., Albuq. Pub. Sch.

Decision Date11 May 2009
Docket NumberNo. 06-2345.,No. 06-2344.,06-2344.,06-2345.
Citation565 F.3d 1232
PartiesLeslie MILLER, Plaintiff-Appellant/Cross-Appellee, and Jack Miller, on behalf of their minor child, S.M., Plaintiff, v. BOARD OF EDUCATION OF the ALBUQUERQUE PUBLIC SCHOOLS, Defendant-Appellee/Cross-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Gail Stewart of Steven Granberg, P.A., Albuquerque, NM, for Plaintiff-Appellant/Cross-Appellee.

Andrea K. Robeda (Michael L. Carrico with her on the briefs) of Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, NM, for Defendant-Appellee/Cross-Appellant.

Before BRISCOE, GORSUCH, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Plaintiff-Appellant/Cross-Appellee Leslie Miller, on behalf of her son, S.M., filed suit under the Individuals with Disabilities Education Act ("IDEA"), alleging the inadequacy of the findings and remedy received under IDEA's administrative process for the failure of the Albuquerque Public School District ("APS") to provide appropriate reading instruction and accommodation of S.M.'s reading disabilities. She also filed discrimination claims stemming from the same issues under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. The district court held that the administrative remedy was adequate and granted summary judgment for APS on her discrimination claims. Ms. Miller appeals the district court's dismissal of her case and its ruling on attorney's fees and costs. APS cross-appeals, challenging the district court's denial of its motion to amend its answer to assert a counterclaim relating to the propriety of certain educational expenses that it was ordered to pay in the administrative proceedings. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

I. BACKGROUND
A. Individuals with Disabilities Education Act

The IDEA, 20 U.S.C. §§ 1400 et seq.,1 "is a spending statute that imposes obligations on the states to provide certain benefits in exchange for federal funds." Ellenberg v. N.M. Military Inst., 478 F.3d 1262, 1274 (10th Cir.2007). One of its core purposes is to "ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs." 20 U.S.C. § 1400(d)(1)(A).

The primary tool in assuring that a free, appropriate public education ("FAPE") is provided to all eligible children with disabilities is the requirement that the state create an individualized education plan ("IEP") for each disabled child. Ass'n for Cmty. Living in Colo. v. Romer, 992 F.2d 1040, 1043 (10th Cir.1993); see 20 U.S.C. § 1412(a)(4) (instituting IEPs). "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." Romer, 992 F.2d at 1043. IEPs must be reviewed at least annually and revised as appropriate. 20 U.S.C. § 1414(d)(4). For the special education and related services provided to a student to constitute a FAPE, they must be "provided in conformity with the [IEP]." Id. § 1401(8)(D).

In order to support Congress's goal to "mainstream" disabled children, the IDEA provides that such students must be educated "[t]o the maximum extent appropriate ... with children who are not disabled" in a "regular educational environment." 20 U.S.C. § 1412(a)(5)(A) (detailing the meaning of the statutory right to the "least restrictive environment"). Disabled students may only be removed from the regular classroom setting "when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." Id.; see Ellenberg, 478 F.3d at 1268.

When parents believe their child is not being provided a FAPE in the least restrictive environment, they are given "an opportunity to present complaints with respect to any matter relating to the ... educational placement of the child, or the provision of a free appropriate public education to such child." 20 U.S.C. § 1415(b)(6). After filing a complaint, they are entitled to an impartial due process hearing. Id. § 1415(f). If that hearing is held before a local education agency such as a school board, "any party aggrieved" by the resulting decision may appeal to the state education agency. Id. § 1415(g). Once state administrative procedures are exhausted, "[a]ny party aggrieved by the findings and decision" may file a civil action in state or federal court. Id. § 1415(i)(2); see Ellenberg, 478 F.3d at 1269-70.

B. Educational Background

S.M. has qualified for special education since the first grade because of severe reading disabilities. In 2002, after attending private school for a number of years, he enrolled at Cleveland Middle School in the APS system for sixth grade. S.M.'s IEP for sixth grade provided that he would attend two regular education classes: physical education and band. It also provided that he be placed in special education for other subjects, although his special education class frequently joined regular education social studies and science classes. His special education teacher provided reading instruction using two reading programs, both of which employed Orton-Gillingham approaches.2 His IEP also stated that APS would provide access to Kurzweil, a computer program designed to assist the reading disabled by reading aloud any scanned text. A speech language pathologist assisted him in using it.

S.M.'s initial IEP for seventh grade placed him in a resource room with a special education teacher for reading and language arts. That special education teacher also was responsible for S.M.'s instruction in math, which was taught in full inclusion with a regular education class. His remaining classes were regular education. Kurzweil also was made available to S.M. After three weeks of this placement, S.M. was removed at the request of his parents.

Under a revised IEP, he was placed in a self-contained classroom with a team teaching approach. A special education teacher taught reading, language arts, and social studies, while the team teacher taught math and science. His reading instruction involved one of the Orton-Gillingham programs that had been used in sixth grade. His revised IEP also called for APS to provide "books on tape," audio-book versions of his class textbooks, as a modification to enable S.M. to succeed in the general education environment. It appears that although S.M. enjoyed audio-books that were played for the whole class, he resisted using them on his own. In March 2004, S.M.'s parents (i.e., the Millers) arranged for private reading instruction from an Academic Language Therapy ("ALT") Therapist. S.M.'s parents then instructed his special education teacher at APS to refrain from giving reading instruction. His parents also purchased WYNN software, a computer program that scans printed texts and reads them aloud, to enable S.M.'s access to school textbooks.

Although S.M. was initially placed in a self-contained classroom at the beginning of eighth grade, once a new IEP was developed he joined regular education classes for social studies, math, and literature, along with two electives. For his remaining classes, he received specialized instruction in a resource room. His IEP reiterated his need for Kurzweil "or like" software and stated that it would be made available in his teacher's room. Admin. R. at 132, 142. The IEP also noted "[l]iterature books on tape to be ordered." Id. at 142. However, S.M.'s resource room teacher was not yet certified, was teaching special education on waiver, only had minimal training with any Orton-Gillingham approach, and used a different reading program. APS continued to be on notice that S.M.'s parents were rejecting the reading instruction provided by the school district; further, S.M.'s parents asked APS to allow the private instructor to provide ALT during the school day, but APS refused.

C. Prior Proceedings
1. Administrative Hearings

In October 2004, while S.M. was in eighth grade, his parents filed a request for a due process hearing against APS on his behalf. They asserted that S.M. had not received FAPE for the sixth, seventh, and eighth grades. The Due Process Hearing Officer ("DPHO") concluded that the Millers failed to carry their burden on either their claim that S.M. was not mainstreamed to the extent possible in the sixth, seventh, and eighth grades, or their claim that S.M.'s reading instruction was not reasonably calculated to confer meaningful educational benefit in the sixth and seventh grades. The DPHO observed that the Millers sought to use the hearing to discuss "broad, systemic and philosophical issues" about APS's "system for placing reading disabled students, or lack thereof." Admin. R. at 27-28. The DPHO concluded that "review of a District-wide system is beyond the purview of this DPHO." Id. at 28.

However, the DPHO did partially rule in the Millers' favor, concluding that the teacher providing specialized instruction in the eighth grade was not qualified to teach reading to S.M. This, the DPHO held, was a denial of FAPE because placement with this teacher was not reasonably calculated to confer meaningful educational benefit. The DPHO ordered APS to reimburse the Millers for the cost of the WYNN software, required that a laptop computer be provided to S.M. to accommodate use of both the Kurzweil and WYNN programs, and held APS liable for the costs of ALT for the eighth grade (or at least until APS complied with the terms of the decision).

APS appealed this decision, and the Millers filed a cross-appeal. The Administrative Appeal Officer ("AAO") agreed with most of the DPHO's conclusions. The AAO found that the DPHO did not err in excluding testimony about an...

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