Thompson R2-J School v. Luke P., ex rel. Jeff P.
| Decision Date | 29 August 2008 |
| Docket Number | No. 07-1304.,07-1304. |
| Citation | 540 F.3d 1143 |
| Parties | THOMPSON R2-J SCHOOL DISTRICT, Plaintiff-Appellant, v. LUKE P., by and through his parents and next friends, JEFF and Julie P., Defendants-Appellees. National School Boards Association; Colorado Association of School Boards; Colorado Boces Association; Colorado Boards of Cooperative Educational Services Association; Colorado Special Education Directors Consortium; Autism Speaks, Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before BRISCOE, GORSUCH, Circuit Judges, and PARKER, Senior District Judge.*
Jeff and Julie P. contend that the Thompson R2-J School District failed to provide their autistic son Luke with the educational services guaranteed to him by the Individuals with Disabilities Education Act ("IDEA") because of the difficulty he experiences in generalizing skills learned in the school setting to the home and other environments. They also assert that, given the severity of some of the manifestations of Luke's disability, only a private residential school can provide Luke with an adequate education. Having withdrawn Luke from the public school he attended in order to enroll him in a private residential program, the family now seeks reimbursement of Luke's tuition costs from the school district. Because every factfinder to have assessed this case has found that Luke was making progress in the public school environment on the educational goals individually formulated for him by the school district and his parents, we are constrained to reverse.
Born in 1994, Luke was diagnosed with autism at the age of two.1 When he entered kindergarten at Niwot Elementary School in Colorado's St. Vrain Valley School District in the Fall of 2000, Luke began receiving special educational services from that school district in accordance with the provisions of IDEA. See 20 U.S.C. § 1400 et seq. IDEA is a federal statute aimed at helping states provide disabled children with a free and appropriate public education ("FAPE"). Central to IDEA is the requirement that local school districts develop, implement, and annually revise an individualized education program ("IEP") calculated to meet the eligible student's specific educational needs. See id. § 1414(d). In addition, IDEA specifies that disabled children should be educated in the "least restrictive environment," meaning that, "[t]o the maximum extent appropriate," disabled children should be educated in public school classrooms alongside children who are not disabled. Id. § 1412(a)(5)(A).
In accordance with these requirements, Luke's special education teacher at Niwot Elementary, Margaret Wilson, led the effort in formulating an IEP for Luke and working with him through his kindergarten and first grade years. Luke's IEPs for kindergarten and first grade included objectives relating to communication skills, self care (including toilet training), independence and motor skills, social interaction and play skills, and academic functioning. They also specified that Luke would split time between the general classroom and a special education classroom.
Ms. Wilson's evaluations indicate that Luke made significant progress and achieved many of his IEP goals during the time she worked with him, see Impartial Hearing Officer's ("IHO") Decision at 4-5; Administrative Law Judge's ("ALJ") Decision at 4, though she also reported that Luke, like many other autistic children, had difficulty generalizing skills, or, in other words, "apply[ing] the skill[s] to different people or different environments," Answer Br. at 42; see IHO Decision at 4. Luke's difficulty in generalizing the skills he learned in school to the home is borne out by discrepancies revealed in an adaptive behavior skills test that was administered to Luke both in the classroom and in his home. See IHO Decision at 4.
In the Fall of 2002, Luke's family moved to Colorado's Thompson R2-J School District, and Luke enrolled in second grade at Berthoud Elementary. In anticipation of the transfer, the special education teacher at Berthoud visited Niwot and communicated with Ms. Wilson, as well as Luke's parents, in order to make plans for a smooth transition. A new IEP was adapted from the IEPs that had been developed at Niwot, and Luke continued to make progress on his goals and objectives during his second grade year.
Despite the apparent progress at school during his kindergarten through second grade years, Luke's life away from school during the same time paints a much different picture, as his autism manifested itself in various behavioral problems that were especially severe at home. Luke was unevenly tempered, often displaying inappropriate and sometimes violent behavior at home and in public places such as grocery stores and restaurants. He developed various sleep problems — going to bed at odd hours, waking up frequently at night, and refusing to sleep in a bed. Luke also developed a habit of intentionally spreading his nighttime bowel movements around his bedroom. In addition, although Luke became toilet trained at school by the time he was in first grade, he was not able to transfer this skill to the home and other settings away from school.
Understandably, these behaviors took a tremendous toll on Luke's family. Worried that, without intervention, Luke's behavior would become only more dangerous as he continued to grow physically, the family began looking into residential placement options. Through research on the Internet, they discovered the Boston Higashi School ("BHS"), which specializes in education of children with autism. Students enrolled in the residential program at BHS live at the Boston campus for 44 weeks out of the year and are supervised 24 hours a day by BHS educators and staff. ALJ Decision at 7. Luke's family, along with Ms. Wilson, who kept in touch with the family and retained an interest in Luke's education, visited the BHS campus in late Fall 2003 and filled out an application for Luke's admission during the visit.
At around the same time, Luke's family asked Diane Osaki, an occupational therapist who runs a private day school for autistic children, as well as Ms. Wilson, to observe and assess Luke while at school. Ms. Osaki observed Luke at Berthoud Elementary for a three hour period, interviewed Luke's parents, and reviewed charts and video footage of Luke. She reported a number of concerns in the school's work with Luke, including the facts that staff sometimes unknowingly reinforced Luke's unwanted behaviors, that Luke had made little or no progress on many of his goals and objectives, and that Luke had "[g]reat difficulty generalizing skills taught in one environment to natural daily living routines." Osaki Report, R. Vol. V. at 864. Ms. Osaki also expressed concern that Luke had "increase[d] the strength and number of challenging and unwanted behavior[s]" and that, since transferring to Berthoud Elementary, Luke had apparently regressed in certain respects. Id. Ms. Osaki did, however, note many areas in which Luke was improving and stated that "throughout his early education, Luke has made good progress in all areas of development." Id. Ms. Osaki recommended, among other things, "12 month programming to reduce the risk of regression," increased consistency in training of school staff, and additional parent training. Id. at 866. For her part, Ms. Wilson met with Luke and administered the Autism Diagnostic Observation Schedule test. She reported to Luke's parents that some skills that Luke had previously mastered during his time working with Ms. Wilson at Niwot Elementary were diminished or were no longer present. See Wilson Letter, Dec. 11, 2003, R. Vol. V. at 858.
On December 16, 2003, Luke's parents met with his teachers and other school officials for an IEP review meeting. At the meeting, the parents presented a list of goals they had developed based on recommendations from Ms. Osaki and asked that the goals be included in Luke's IEP for 2004. They also stated, however, that they felt the goals were not attainable at Berthoud Elementary and that the only appropriate placement for Luke would be a residential program tailored to autistic children, such as that offered by BHS. The school district officials expressed openness to revising Luke's IEP to include the parents' proposed goals and to working with Ms. Osaki to improve their special education program. But they also expressed their belief that the proposed goals were attainable at Berthoud Elementary and that residential placement was not necessary. At the meeting's conclusion, the school district officials stated that they planned to revise Luke's IEP and then submit a new draft to the parents.
Two days after the IEP meeting, on December 18, BHS accepted Luke's application for enrollment. The next day, on December 19, counsel for Luke's family sent the school district a letter stating that the family intended to remove Luke from Berthoud Elementary, enroll him at BHS, and, pursuant to 20 U.S.C. § 1412(a)(10)(C)(ii), seek from the school district reimbursement of the costs of Luke's education at BHS. Luke officially enrolled as a residential student at BHS on January 12, 2004.
On January 15, 2004, the school district sent to Luke's family a revised, final IEP for 200...
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