Parents v. Harrison Sch. Dist. No. 2

PATRICK G., by and through his parents and next friends, Stephanie G. and Daniel G., Plaintiff, v. HARRISON SCHOOL DISTRICT NO. 2, Defendant.

Civil Action No. 17-cv-01034-MSK-KLM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

October 2, 2020

Judge Marcia S. Krieger

OPINION AND ORDER ON ADMINISTRATIVE APPEAL

THIS MATTER comes before the Court pursuant to Plaintiff's appeal of the decision of an Administrative Law Judge ("ALJ") and request for attorney fees (# 1). Upon the Court's consideration of the parties' arguments (# 27 - # 29) and supplemental briefing (# 30 - 33, # 35 - 38, # 51 - 54) presented in light of the Administrative Record (# 20), this appeal is DISMISSED as moot.

I. JURISDICTION

The Court has jurisdiction over an appeal from a final decision of the Colorado Office of Administrative Courts under 20 U.S.C. § 1415(i)(2)(A) and over claims presenting a federal question under 28 U.S.C. § 1331.

II. BACKGROUND¹

Though the parties have a lengthy history of disputes over the educational services at issue in this case, the Court only recounts the facts relevant to the limited issue on appeal.²

Plaintiff Patrick is a minor child enrolled in the Defendant Harrison School District # 2 (the District). Patrick has been diagnosed with an autism spectrum disorder and speech delay, both of which entitle him to special education and related services. (# 20 at 152-153).

In 2013, when Patrick was 12 years old, he moved to Colorado Springs from Pennsylvania. His mother met with District personnel. In conformance with the Individuals with Disabilities Education Act ("IDEA")³, the District placed Patrick at Alpine, a private behavioral facility in Colorado Springs (# 20 at 153-154). In April 2014, Patrick's IEP team convened, and the District proposed moving Patrick from Alpine to an unspecified public school for the following school year. (# 20 at 155). Patrick's parents and the parents of three otherchildren⁴ who were similarly situated filed a joint complaint with the Colorado Department of Education. The State Complaints Officer ("SCO") ruled in favor of the parents and prohibited the District from changing the students' school placement until it fulfilled a number of IDEA requirements. Thus, Patrick remained enrolled at Alpine. (# 20 at 154-155).

In April of 2015, the District informed Patrick's parents that it needed to conduct the IDEA required triennial review of Patrick's educational needs and eligibility to receive special education services. Patrick's triennial review occurred in October and November 2015 and included a comprehensive battery of assessments conducted by District employees at Alpine. (#20 at 155-159).

Patrick's IEP team met in both January and May 2016, discussed the evaluations and weighed the advantages and disadvantages of moving Patrick's placement from Alpine to Mountain Vista, a public school. (# 20 at 160-164). The team determined that Patrick should be placed at Mountain Vista where he would receive specialized, small-group, social and academic instruction in the special education classroom and where he would have access to a general education classroom to practice social skills. (# 20 at 163-164). Patrick's mother opposed this placement.

On May 20, 2016, the District discontinued its payments to Alpine. Patrick continues to attend Alpine; his tuition payments are covered by his parents' insurance provider, TRICARE. The parents pay a $35 monthly premium to TRICARE. (# 20 at 166-167).

Patrick's parents filed a due process complaint seeking to have Patrick remain at Alpine and receive reimbursement for such placement after May 2016. (# 20 at 167). Upon consideration of the complaint and evidence presented at a hearing, an Administrative Law Judge (ALJ) held that the District's 2016 IEP offered Patrick a FAPE and thus, after May 2016, the District was not required to bear the cost of Patrick's attendance at Alpine. For times prior to May 2016, the District was directed to reimburse Patrick's parents for the $35 monthly insurance premiums and any other amounts they expended for Patrick's tuition and additional services.⁵ (#20 at 175).

Patrick's parents now bring two claims - one for review and reversal of the ALJ's "adverse" determination pursuant to 20 U.S.C. §1415(C) and one for attorney fees and costs pursuant to 20 U.S.C. § 1415(i)(3)(B)(i)(I). (# 1).

After this appeal was fully briefed, the Court requested supplemental briefing from the parties in light of the 10^th Circuit's recent decisions in Stephen R.F. ex rel. Fernandez v. Harrison Sch. Dist. No. 2, 924 F.3d 1309, 1310 (10^th Cir. 2019) and Nathan M. ex rel. Amanda M. v. Harrison Sch. Dist. No. 2, 942 F.3d 1034, (10^th Cir. 2019). In those cases, the Tenth Circuit determined that similar IEP challenges from parents - who had children enrolled at Alpine and opposed the Harrison School District's decisions to place their children at other schools - were moot because the alleged IDEA violations were not capable of repetition absent review.

III. LEGAL STANDARDS

States receiving federal funds for education must, among other things, provide a free appropriate public education (FAPE) to all eligible children. 20 U.S.C. § 1412(a)(1). A FAPE includes special-education instruction and related services to assist in the child's benefit from instruction. 20 U.S.C. § 1401(9), (26), & (29). Such instruction and services are memorialized in the child's individualized education program (IEP), which is to be developed in a collaborative process involving both parents and educators. 20 U.S.C. §§ 1401(9)(D), 1414. "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 v. Romer, 992 F.2d 1040, 1043 (10th Cir. 1993). The IEP is the means through which special education and related services are "tailored to the unique needs" and circumstances of a particular child — "the centerpiece of the statute's education delivery system for disabled children." Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1 (Endrew II), 137 S. Ct. 988, 999 (2017).

A FAPE has both substantive and procedural components. The Court determines whether the district complied with the IDEA's procedural requirements and whether the IEP developed by those procedures is substantively adequate. Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982). If a district meets both substantive and procedural requirements, it "has complied with the obligations imposed by Congress and the courts can require no more." Id. at 207. 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'scircumstances." Endrew II, 137 S. Ct. at 999.

For children not "fully integrated in the regular classroom and not able to achieve on grade level", the IEP "must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom." To be reasonably calculated to accomplish a particular objective requires "a prospective judgment by school officials [and] contemplates that this fact-intensive exercise will be informed not only by the expertise of school officials, but also by the input of the child's parents or guardians." Review of an IEP considers the question of whether the IEP is reasonable, not whether it is ideal. Id. at 999-1000.

The IDEA does not require that an IEP "provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded to children without disabilities." The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created. Id. at 1001.

IV. DISCUSSION

In light of recent 10^th Circuit decisions Steven R.F. and Nathan M., the Court first addresses the threshold issue of mootness to determine whether it has subject matter jurisdiction over this case.

1. Mootness

The Court's jurisdiction under Article III extends only to "actual ongoing controversies." Honig v. Doe, 484 U.S. 305, 317 (1988); see McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996) ("[T]he existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction."). If an actual controversy ceases to exist at any stageof litigation, the case has become moot and should be dismissed. Fischbach v. N.M. Activities Ass'n, 38 F.3d 1159, 1160 (10th Cir. 1994) ("Generally, the actual controversy between the parties 'must exist at [all] stages of appellate or certiorari review, and not simply at the date the action is initiated.' " (quoting Roe v. Wade, 410 U.S. 113, 125 (1973)).

There are, however, exceptions to the mootness doctrine. The four generally recognized exceptions are: (1) the plaintiff continues to have secondary or collateral injuries even after resolution of the primary injury; (2) the issue is deemed a wrong capable of repetition yet evading review; (3) the defendant voluntarily ceases an alleged illegal practice, but is free to resume it at any time; or (4) the action is a properly certified class action suit. See Riley v. INS, 310 F.3d 1253, 1256-57 (10th Cir. 2002). Relevant here is the second exception which applies to "certain cases [that] appear technically mooted, [but] are in reality live controversies because they will recur and again evade review." Nathan M., 942 F.3d at 1040. "The capable-of-repetition, yet evading review exception applies in exceptional situations when (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party would be subjected to...