KATHLEEN M. TAFOYA, Magistrate Judge.
This matter is, in effect, an administrative appeal. It comes before the court by way of complaint, filed by pro se Plaintiff Michael Scott Smith on January 3, 2017. Since that time, Plaintiff has filed an opening brief, dated July, 26, 2017.
This case involves action brought under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. challenging the administrative decision of ALJ Tanya T. Light. Plaintiff alleges that his child, R.S., has been denied relief under the statute.
Under the statute's provisions, states that receive federal educational assistance must establish "policies and procedures to ensure" that "free appropriate public education" ("FAPE") is available to disabled children. See 20 U.S.C. § 1412(a)(1)(A). Its purpose, therefore, is to ensure "that all children with disabilities have access to FAPE designed to meet their unique needs." Murray v. Montrose County School District RE-JJ, 51F.3d921, 927 (10th Cir. 1995) (quotations and alterations omitted). To fulfill this purpose, an individualized education program ("IEP") is the basic mechanism through which each child's individual goals are achieved. Id. The statute sets forth detailed procedures through which an IEP is to be developed. Id. The IEP is a detailed written document that describes the student's educational goals for an academic year and establishes a plan to achieve those goals. Id.
Notwithstanding the vast array of provisions (and the acronyms that come with them), it is safe to say that the statute is one of the more complex in the federal system—not just its review and regulatory requirements, but its procedural and substantive provisions that create liability and relief. See generally, Daniel W. Morton-Bentley, The Rowley Enigma: How Much Weight is Due to IDEA State Administrative Proceedings in Federal Court?, 36 J. Nat'l Ass'n Admin. L. Judiciary 428, 434, 467 (2016) ("The IDEA's judicial review provision is not a model of clarity . . . its multilayered administrative and judicial review procedure is predisposed toward confusion.").
In addition to the legal complexities, the parties have navigated a thorny procedural history—tethered to cases adjudicated by U.S. District Court Judge Phillip A. Brimmer. See, e.g.,14-cv-2651. It is now before this court on separate, but related issues—as follows:
Wedded to the third issue is Defendant's affirmative defense—to wit, Defendant argues that res judicata applies based on a preliminary injunction issued by Judge Brimmer in an earlier case and affirmed by the Tenth Circuit.
The court is persuaded by Plaintiff's position on the first issue—i.e., the ALJ wrongly delegated power to an educational agency—warranting remand. Because the second issue is tied to the first, it, too, requires further factual development by the ALJ to determine what compensatory education (if any) to which M.S. is entitled. Separately, the third issue also sways in favor of Plaintiff. Being a question of law—res judicata—the issue provides for ease of disposition; ever more so when the defense was a non-starter to begin with. The prior decision that Defendant relies upon was set in the preliminary injunction context. There is no final decision to preclude Plaintiff's case. The defense is rejected. Each of the issues before the court, therefore, will require remand and further factual development to assess the appropriate relief.
On March 10, 2016, the Colorado Department of Education, Exceptional Student Services Unit, received a due process complaint filed by Plaintiff on behalf of his minor son, R.S., alleging that Defendant violated 20 U.S.C. §§ 1400-1482 and the Colorado Exceptional Children's Educational Act ("ECEA"), 1 CCR 301-8, by failing to provide him with FAPE. Plaintiff alleged that Defendant denied R.S. FAPE when it denied his enrollment at the Cheyenne Mountain Charter Academy ("CMCA") in 2014.
The ALJ found for Plaintiff on the liability issue—i.e., denial of FAPE—from at least August 13, 2014 through October 16, 2014. Relevantly, on page 10 of the ALJ's October 3, 2016 decision, the ALJ stated:
(See Schedule A at 10)
After reviewing the Motion for Clarification, ALJ Light issued an Order on October 27, 2016, finding that Defendant had purportedly complied with the October 3, 2016 decision and that nothing further was required. (AR at 516.)
Having exhausted all administrative remedies, Plaintiff now appeals the October 3, 2016 decision and the subsequent October 27, 2016 order that flowed from it.
"Judicial review in IDEA cases differs substantially from judicial review of any other agency action, in which courts generally are confined to the administrative record and are held to a highly deferential standard of review."
"Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors." See Florence County Sek Dist. Four v. Carter, 510 U.S. 7, 15 (1993). The prerequisite of a "compensatory education award [is] a simple finding that a child has received an inappropriate education." See MC. ex rel. J.C. v. Central Regional Sch. Dist., 81F.3d389, 397 (3rd Cir. 1995).
The parties do not dispute liability. What is in dispute is Plaintiff's relief—being, the manner in which the specific relief for R.S. is to be determined. Critically, there is little factual analysis by the ALJ that underscored the decision not to grant relief on October 27, 2016, despite the ALJ finding Defendant liable under the statute two weeks earlier.
Plaintiff challenges the ALJ's decision for not adhering to her statutory duty to tailor relief to R.S. after finding that Defendant was liable under the statute. Plaintiff contends that the ALJ allowed Defendant "to [1] determine the extent of its harm to R.S., [2] the method of determining that harm, and [3] the appropriate remedy for that harm." (Doc. No. 30 at 13.) In short, Plaintiff contends that R.S.'s relief was wrongly delegated to individuals expressly barred from `standing in the shoes' of the ALJ. The court agrees. The relevant case law fortifies this view. Elucidation of each case confirms as much.
The first is Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). There, the hearing officer awarded the student in question 810 hours of compensatory education to remedy the school district's denial of a FAPE for four and a half years. 401 F.3d at 518. He also vested the student's IEP team with the power to reduce or discontinue compensatory services if and when the IEP team determined that the student either no longer needed or was no longer benefitting from the compensatory education. Id. Specifically, "[t]he team's decision that [the student] no longer needs or is not benefitting from this award of compensatory education services will terminate this award." Id. at 520. The district court affirmed. Id. at 526. On appeal, the District of Columbia Circuit reversed the district court's ruling—holding that hearing officers may not authorize IEP teams to reduce or discontinue awards of compensatory education. Id.
In reversing the district court decision, the District of Columbia Circuit reasoned that the "IDEA due process hearings `may not be conducted by an employee of the State educational agency or the local educational agency involved in the education or care of the child.'" Id. (citing 20 U.S.C. § 1415(f)(3)). An IEP team, in contrast, is statutorily required to include a representative of the local educational agency. 20 U.S.C. § 1414(d)(1)(B)(iv). Since the IEP team was delegated power to reduce or terminate the compensatory award initially set by the hearing officer, the court held that "the IEP team would in effect exercise the officer's powers." Reid, 401 F.3d at 526. Stated another way, "while the IEP team certainly must monitor [the student's] progress and coordinate compensatory relief with his current IEP, a delegation that permits the team to reduce or terminate his awarded amount of compensatory education exceeds the statute's bounds." Id. at 527.
Further, the District of Columbia Circuit held that the fact that the IEP team was comprised of nonemployees, including the student's mother, did not change the court's ultimate conclusion because "under the statute, the hearing officer may not delegate his authority to a group that includes an individual specifically barred from performing the hearing officer's functions." Id. at 526.
The next case, Bd. of Educ. of Fayette Cty. v. L.M., 478 F.3d 307, 317-18 (6th Cir. 2007), piggy-backs on Reid's reasoning. Specifically, the Sixth Circuit held that the ALJ violated the statute because instead of requiring a certain number of hours of compensatory education, the ALJ ordered the student's IEP team to determine the type and duration of compensatory services the student was to receive. Id. In adopting Reid, the Sixth Circuit further stated that division between the hearing officer duties and the IEP "creat[es] a clean and clear separation by barring altogether an IEP team's power to terminate a compensatory-education award." Id. This conclusion was drawn irrespective of whether the student was enrolled in the school or not. Id. ("T.D. is not currently enrolled in the School District, so the possibility of the School District exerting an undue influence in his particular case is not great, but we decline to approve a practice that might have such an impermissible effect in the future.")
In M.S. ex rel. J.S. v. Utah Schools for Deaf and Blind, 822 F.3d 1128 (10
Id. at 1136. The Tenth Circuit concluded, however, "that the passage of time and additional developments might bear significantly on the issue of M.S.'s placement." Id. To help mitigate this concern, it was noted that the statute allows for the presentation of additional evidence at the request of a party and empowers the district court to "grant such relief as [it] determines is appropriate." 20 U.S.C. § 1415(i)(2)(C)(ii).
These cases are dispositive of the issue here—particularly the Tenth Circuit's recent M.S. decision. The reason is two-fold. First, each case parallels with the present. The common thread running through each is the outsourcing of the ALJ's duty to a third-party in violation of the statute. The provisions of the statute provide that a hearing officer conducting a hearing "shall, at a minimum not be an employee of the State educational agency or the local educational agency involved in the education or care of the child; or a person having a personal or professional interest that conflicts with the person's objectivity in the hearing." 20 U.S.C. § 1415)3)(A). Under the statute, "the hearing officer may not delegate his authority to a group that includes an individual specifically barred from performing the hearing officer's functions." Reid, 401 F.3d at 526 (emphasis added).
In this case, the ALJ erred in delegating her authority to individuals barred under the statute. The ALJ did so by mandating that Defendant re-test R.S., permitting Defendant to "choos[e]" the test if Defendant "believe[d]" the previous test was no longer appropriate. (See Schedule A at 10). And then, if the scores were below benchmark, Defendant was mandated to "coordinat[e] with the IEP team . . . to decide what compensatory services [were] necessary." Id.
Although some degree of commonsense underscores aspects of the ALJ's decision, it is at odds with the statute itself. Indeed, in this case, the ALJ not only erred by delegating the compensatory services to the IEP team (which squares with the abovementioned cases), but the ALJ erred by affording Defendant the scope to `pick and choose' the testing methods that determined compensation—affording Defendant broad power beyond what is contemplated by the statute. This gave Defendant "undue influence on the delegated decision" because those testing methods (and its choice) were wedded to the compensatory award. M.S., 822 F.3d 1135; see also Reid; 478 F.3d at 318 (same). As such, because the ALJ failed to mandate the tests that R.S. would take—and because the award was to be determined by an IEP team in contravention of prevailing case law—the court recommends that the case be remanded for further factual development and implementation.
A second reason further reinforces Plaintiff's position. Nowhere in Defendant's brief does it address the fact that it was Defendant, not the ALJ, who could `pick and choose' the testing methods relevant to R.S.—being a wrongful delegation of the ALJ's duty. Granted, the Tenth Circuit's M.S. decision focused on the delegation to the IEP team; rather than the school district itself, but the decision more broadly held that any delegation to an educational agency is inconsistent with the statute. M.S., 822 F.3d 1135-6 ("Allowing the educational agency that failed or refused to provide the covered student with a FAPE to determine the remedy for that violation is simply at odds with the review scheme set out" in the IDEA.). This is particularly true where, as here, the student is still enrolled in the school that caused the violation. Id.
Still, even if the Tenth Circuit did not hold what it did (nor Reid and L.M.), it is difficult to disavow the plain meaning of the statute that bars a state or local "agency" from being involved in the work of the hearing officer. 20 U.S.C.A. § 1415)3)(A). Because of this, and since Defendant has failed to meaningfully rebut Plaintiff's argument, the ALJ's deficiencies cannot be revived. Cf. Bancoult v. McNamara, 227 F.Supp.2d 144, 149 (D.D.C. 2002). Remand is, therefore, warranted.
In sum, it is critical to appreciate that what Plaintiff is challenging in this case is the wrongful delegation of power to an educational agency.
As foreshadowed earlier, the second issue before the court is so entwined with the first that they travel together. The ALJ found that Defendant is liable under the statute, but has not afforded any relief to compensate for Plaintiff's loss. Indeed, the evidence that formed the bases for denying R.S.'s relief stems from a wrongful delegation of power as addressed above. Given that remand is warranted for this wrongful delegation of power (and that further factual development will flow from such remand), it follows that compensatory education can be determined upon reconsideration (if any).
To be sure, however, the court expresses no opinion as to whether Plaintiff will be successful before the ALJ when this issue is reconsidered. The court does not intend by this opinion to suggest the result that should be reached on remand; rather, the court encourages the parties, as well as the ALJ, to consider the evidence and the issues anew.
Plaintiff contends that ALJ Light peremptorily denied the possibility of private school placement as a remedy because that remedy was sought in a prior case—specifically: Smith v. Cheyenne Mountain Sch. Dist. 12, No. 14-02651-PAB-CBS, 2014 WL 5315033, at *1 (D. Colo. Oct. 17, 2014), order clarified, No. 14-CV-02651-PAB-CBS, 2015 WL 4979773 (D. Colo. Aug. 20, 2015) (Brimmer J.).
In Smith, R.S.'s mother sought injunctive relief in the United States District Court for the District of Colorado, requesting, inter alia, that Cheyenne Mountain School District be ordered to fund the private school placement. Judge Brimmer denied that preliminary request; and, instead held that the statute's stay-put provisions required Defendant to maintain R.S.at Cheyenne Mountain Charter Academy. See Re Smith, 2014 WL 5315033, at *3; see also 20 U.S.C. § 1415(j). Judge Brimmer's decision was subsequently affirmed in Smith v. Cheyenne Mountain Sch. Dist. 12, 652 F. App'x 697, 698 (10th Cir. 2016).
A claim is barred by claim preclusion if four elements are met: (1) a final judgment on the merits in the prior suit; (2) the prior suit involved the same parties or their privies; (3) identity of the cause of action in both suits; and (4) a full and fair opportunity to litigate the claim in the prior suit. Plotner v. AT & T Corp., 224 F.3d 1161, 1168 (10th Cir.2000); King, 117 F.3d at 445; Satsky, 7 F.3d at 1467.
The doctrine of res judicata is "intended to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, prevent inconsistent decisions, and encourage reliance on adjudication." Satsky v. Paramount Communications, Inc., 7 F.3d 1464, 1467 (10th Cir. 1993). "Res judicata, or claim preclusion, precludes a party or its privies from relitigating issues that were or could have been raised in an earlier action, provided that the earlier action proceeded to a final judgment on the merits." King v. Union Oil Co. of Calilf., 117 F.3d 443, 445 (10th Cir. 1997) (citing Lowell Staats Mining Co., Inc. v. Philadelphia Elec. Co., 878 F.2d 1271, 1274 (10th Cir. 1989)). More specifically, "[w]here a second suit between the same parties or their privies is on the same cause of action, the final judgment in the prior action is conclusive as to all matters which were actually litigated as well as those which could have been litigated." Spence v. Latting, 512 F.2d 93, 98 (10th Cir. 1975)
Fatal to this affirmative defense from the onset is that there is no final judgment upon which to anchor Defendant's position. The decision upon which Defendant relies was set in the context of a preliminary injunction. While the merits of the case are assessed for the purposes of relief, that assessment is made at the onset of the proceedings. A preliminary injunction order, by its very nature, cannot form the basis of a res judicata claim. Courts have held that such orders are not a final determination on the merits. See Watrous v. District Court of the United States for the District of Colorado, the Tenth Circuit held that "the denial of [a] preliminary injunction [is] not an adjudication of the ultimate rights in controversy. It [is not] conclusive on the court or the rights of the plaintiffs at a subsequent hearing." 207 F.2d 50, 58 (10th Cir. 1953); Tobacco Co. v. Engida, 611F.3d1209, 1217 (10th Cir. 2010) (injunction decision "is not equivalent to actual success on the merits."); see also Hunter v. Atchison, T. & S. F. Ry. Co., 188 F.2d 294, 299 (7th Cir. 1951) ("The decision of the trial court on granting the motion for preliminary injunction will not estop either of the parties on the trial of the case on its merits, nor would any determination of those questions by this court on appeal be binding on the trial court nor upon either of the parties in considering and determining the merits of the controversy."); see also Mesabi Iron Co. v. Reserve Mining Co., 270 F.2d 567, 570 (8th Cir. 1959) (a TRO ruling "may not be invoked as res judicata"); Cf. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990) ("`[D]ismissal . . . without prejudice' is a dismissal that does not `operat[e] as an adjudication upon the merits,' and thus does not have a res judicata effect." (citation omitted)).
In sum, Defendant's res judicata defense is misplaced. In rejecting the defense, however, it is important to note that this recommendation does not address the substantive issue of private placement of R.S. in favor of Plaintiff, a matter which the ALJ must address and resolve on remand.
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (stating that a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); One Parcel of Real Prop., 73 F.3d at 1059-60 (stating that a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (holding that cross-claimant had waived its right to appeal those portions of the ruling by failing to object to certain portions of the magistrate judge's order); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (holding that plaintiffs waived their right to appeal the magistrate judge's ruling by their failure to file objections).
ALJ Light's October 3, 2016 decision and the subsequent October 27, 2016 order that flowed from it. These documents are found in the Administrative Record. (Doc. No. 27 at 505-516.)
On March 10, 2016, the Colorado Department of Education ("CDE"), Exceptional Student Services Unit, received a due process complaint filed by Scott and Ramona Smith ("Complainants" or "Parents") on behalf of their minor son, R.C.V.S., alleging that Cheyenne Mountain School District 12 ("Respondent") violated the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1482, ("IDEA"), under its implementing regulations at 34 C.F.R. § 300.511, and the Colorado Exceptional Children's Educational Act ("ECEA"), 1 CCR 301-8, by failing to provide him with a free appropriate public education ("FAPE"). Specifically, Parents allege that Respondent denied R.C.V.S. FAPE when it denied his enrollment at the Cheyenne Mountain Charter Academy ("CMCA") for the 2014-2015 school year. In their due process complaint Parents requested private school placement and compensatory education for their son.
The due process complaint was forwarded to the Office of Administrative Courts ("OAC") and assigned to Administrative Law Judge ("AU") Tanya T. Light for a n impartial due process hearing. The hearing was convened in accordance with 20 U.S.C. § 1415(f), and held in Colorado Springs, Colorado on August 29, 2016, and by telephone on August 30, 2016.
R.C.V.S. was represented by his father, Scott Smith. Respondent was represented by Wm. Kelly Dude of Anderson, Dude & Lebel, P.C. At hearing, the ALJ admitted into evidence Complainants' exhibits 11, 12, 13 (the handwritten portion of Exhibit 13 is not admitted into evidence), 14, 15, 16, 28, 29, and 37, and Respondent's exhibit H. The proceedings were digitally recorded and a court reporter was present.
Whether Respondent failed to provide R.C.V.S. FAPE as required by the IDEA when CMCA did not permit him to enroll, and if so, whether Respondent should be required to provide R.C.V.S. private school tuition or compensatory education.
1. R.C.V.S. is an 8 year old boy (date of birth January 3, 2008) who has been identified as having Autism Spectrum Disorder. in or around the fall of 2013, Complainants removed R.C.V.S. from enrollment in his school district of residence, Falcon School District 49, and enrolled him in CMCA, which is in the Cheyenne Mountain School District 12.
2. CMCA now goes by the name The Vanguard School ("Vanguard"), and is a public charter school serving grades K through 12.
3. R.C.V.S. attended kindergarten at Vanguard during the 2013-2014 school year.
4. On May 1, 2014, Vanguard personnel and Complainants developed an Individualized Education Program ("IEP") for R.C.V.S. The IEP listed CMCA as R.C.V.S's school of attendance. Exhibit 12. The IEP called for R.C.V.S. to receive oneon-one paraprofessional support throughout the entire school day when he was not receiving direct services from special education staff. Id.
5. The May 1, 2014 IEP states that the special education and related services would be "provided in accordance with the Cheyenne Mountain Charter Academy school calendar." Exhibit 12, p.19.
6. On May 22, 2014, Vanguard's executive director sent Complainants a letter stating that there was a lack of teaching staff at Vanguard to appropriately educate R.C.V.S.; that Vanguard would need to hire additional staff in order to meet R.C.V.S.'s IEP requirements; and, as a result, Vanguard was denying his enrollment for the 2014-2015 school year in reliance on C.R.S. § 22-36-101(3).
7. On July 16, 2014, Parents filed a due process complaint, case number EA 2014-0018, alleging that Respondent: 1) failed to appropriately evaluate R.C.V.S; 2) failed to appropriately supervise him; 3) failed to provide appropriate goals and assessments; and 4) inappropriately re-evaluated him leading to denial of enrollment. Parents specifically stated that the refusal to allow R.C.V.S. to enroll in CMCA for the 2014-2015 school year was not an issue they were raising in the July 16, 2014 due process complaint.
8. The May 1, 2014 IEP was the IEP in place at the time Parents filed case number EA 2014-0018.
9. On August 4, 2014, Parents filed a Motion for Preliminary Injunction and Finding of Contempt in case number EA 2014-0018 seeking a "stay put"
10. The first day of the 2014-2015 school year at Vanguard was August 13, 2014. Exhibit 16. Vanguard did not allow R.C.V.S. to enroll in part in reliance on the ALJ's denial of Parent's Motion for Preliminary Injunction and Finding of Contempt. Therefore, R.C.V.S. did not begin school at Vanguard on August 13, 2014.
11. Parents did not enroll R.C.V.S. in any other school at the beginning of the 2014-2015 school year.
12. On September 23, 2014, the AU dismissed case EA 2014-0018 after hearing on the merits.
13. On September 24, 2014, Parents filed a Verified Motion for Temporary Restraining Order and Preliminary Injunction in the United States District Court for the District of Colorado, case number 14-CV-02651, requesting an order requiring Respondent to fund private school placement for R.C.V.S. or, in the
14. On October 17, 2014, Judge Philip A. Brimmer ordered that R.C.V.S.'s current educational placement was CMCA for purposes of case number EA 2014-0018, and that Respondent maintain his educational placement there during the pendency of EA 2014-0018 and through any appeals. Judge Brimmer denied Parents' request for private school funding, and Parents appealed the denial to the Tenth Circuit Court of Appeals.
15. Parents enrolled R.C.V.S. at CMCA, now Vanguard, and he began attending classes on or around October 17, 2014. R.C.V.S. was still attending Vanguard as of the date of the hearing in this case.
16. On March 10, 2016, Parents filed the present due process complaint and Respondent timely answered.
17. On March 30, 2016 and April 25, 2016, Respondent and Parents filed cross motions for summary judgment respectively. The parties filed lengthy responses and replies, and attached as exhibits numerous pleadings, orders, and transcripts from other cases involving the parties, including but not limited to case numbers EA 2014-0018 and 14-CV-02651. Much of what was filed and alleged in this case concerned matters already decided or on appeal elsewhere.
18. On June 8, 2016, after review of the filings and exhibits and after prehearing conferences with the parties, the undersigned issued an order stating that the only issue raised by Parents in the current due process complaint that was new
19. Vanguard offers half and full day kindergarten. R.C.V.S. attended full day kindergarten in the 2013-2014 school year.
20. Vanguard's school year is divided into four quarters that are called "terms." R.C.V.S. was able to attend and complete the fourth term of kindergarten at Vanguard before being dis-enrolled. He did not attend any of the first term of first grade, but started attending first grade partway through Vanguard's second term in October of 2014.
21. Vanguard's grading system utilizes "E, G, N, and U" for grades, and "3+, 3, 3-, 2+, 2, 2-, 1+, 1, and 1-" for "standards." Some subjects receive letter grades and some receive numbered standards. The letter grades have the following equivalents: E=A; G=B; N=C; and U=D. The numbered standards have the following equivalents: 3 = excellent; 2 = Satisfactory; and 1 = Needs Improvement.
22. The following grid compares R.C.V.S.'s grades or standards from the last term of kindergarten (Exhibit 28) to the second term of first grade (Exhibit 29), after he missed the first term of first grade.
23. In History, R.C.V.S.'s grades and standards improved after the second term. He received an N+ in the third term of first grade and an N—in the fourth
>24. R.C.V.S.'s May 2014 1EP does not specifically provide him with services in history.
25. In Math, R.C.V.S. received an E—and "at grade level" in the third and fourth terms of first grade.
26. R.C.V.S.'s May 2014 IEP does not specifically provide him with services in math.
27. Elizabeth Wilson, R.C.V.S.'s first grade homeroom teacher, taught his grammar, poetry, and science classes and had him in her spelling and math groups. She credibly testified that she could not tell that he had not been in school for two months, nor did she notice that he was significantly behind.
28. Cheyenne Mountain School District 12's Director of Special Education, Karen Higgins, credibly testified that it is not uncommon for students with and without special needs to have grades that are lower in the fall than the previous spring even when they do not miss two months of school like R.C.V.S. did.
29. By the fourth term of first grade R.C.V.S. was at or above grade level in all subjects. Exhibit 29. Ms. Wilson testified that she had "no qualms" about recommending R.C.V.S. to advance to second grade.
30. Comments from teachers on R.C.V.S.'s first grade report card indicated he was progressing in all areas. Id.
31. In the Spring of 2014 R.C.V.S. was given the Dynamic Indicator of Basic Early Literacy Skills ("DIBELS") test to evaluate his reading skills. The "benchmark" score is the level at which it is hoped students will be achieving. In the spring of 2014 R.C.V.S.'s scores were:
32. On October 27, 2014, after returning to Vanguard, R.C.V.S.'s DIBELS scores were:
33. Eight days later, on November 4, 2014, he was tested again, and his scores were:
34. Thus, R.C.V.S.'s LNF score decreased from the end of kindergarten to the second term of first grade from 25 to 20 after missing approximately two months of school. His PSF score decreased from 44 to 13, and then increased to 40, which is the benchmark. His NWF-CLS significantly decreased from 70 to 33, then to 37, which is above the benchmark of 28.
35. Ms. Higgins credibly testified that had R.C.V.S. been in school for the two months he was out she would have expected his DIBELS scores to be higher.
36. Vanguard places students in homogeneous groups in reading, math, and spelling based on where they score in achievement tests. This practice is called achievement grouping. R.C.V.S. was placed in some of the higher achievement groups at the end of kindergarten. His placement may have changed when he returned to Vanguard, but the evidence in the record is neither reliable nor persuasive that his placement changed for the worse, or if it did, that the change resulted from missing the first term of first grade.
37. There are no documented concerns of the IEP team in R.C.V.S.'s November 2014 IEP that he was in need of compensatory services due to missing the first term of first grade.
38. In the Service Delivery Statement of R.C.V.S.'s November 5, 2015 IEP, it states "Services will continue to be provided at the Vanguard Elementary School so long as the mother's appeal of ALJ Spencer's due process decision assigned case number 14-CV-02651 remains pending." Exhibit H, p.23.
Although the IDEA does not explicitly assign the burden of proof, Schaffer v. Weast, 546 U.S. 49, 58 (2005) places the burden of persuasion "where it usually falls, upon the party seeking relief." See also Thompson R2-J Sch. Dist. v. Luke P., 540 F.3 d 1143, 1148 (10th Cir. 2008) (stating that "[t]he burden of proof . . . rests with the party claiming a deficiency in the school district's efforts"). Complainants therefore bear the burden of proving by a preponderance of the evidence that Respondent violated its obligations under IDEA by failing to provide R.C.V.S. FAPE.
The purpose of the IDEA 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). FAPE is defined as follows:
A school district satisfies the requirement for FAPE when, through the IEP, it provides a disabled student with a "basic floor of opportunity" that consists of access to specialized instruction and related services that are individually designed to provide educational benefit to the student. Bd. of Educ. v. Rowley, 458 U.S. 176, 201 (1982). The school district is not required to maximize the potential of the disabled child, but must provide "some educational benefit." Id. at 199-200. "Some progress" toward the student's educational goals is all the IDEA requires. Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d at 1150-52.
It is determined that a school district has provided a disabled student with FAPE when demonstrable evidence from the student's educational records establishes that the student made some measureable progress on the goals and objectives in his or her IEP. Id. Progress such as "achievement of passing marks" and "advancement from grade to grade" can be sufficient to demonstrate that the requisite educational benefit has been conferred. Rowley at 207, n. 28.
When, as here, a student is enrolled in a public charter school, the local school district through which the school is chartered bears the responsibility to develop, implement, and revise 1EPs calculated to meet the student's specific educational needs. 20 U.S.C. §§1413(a)(5) and 1414(d). Courts have held that the school listed in the student's IEP is the dispositive factor when determining a student's "then-current educational placement of the child" pursuant to the IDEA's "stay-put" provision. 20 U.S. § 1415(j); Erickson v Albuquerque Pub. Schools, 199 F.3d 1116, 1121 (10th Cir. 1999).
On October 17, 2014, Judge Brimmer determined that Vanguard was R.C.V.S.'s current educational placement for purposes of stay put for the duration of case EA 2014-0018. As of August 13, 2014, case EA 2014-0018 was open and pending. Moreover, the school placement listed in the IEP in place as of August 13, 2014 was Vanguard, and Vanguard remained listed as R.C.V.S.'s placement at least through his November 2015 IEP. Thus, his educational placement pursuant to both his IEP and Judge Brimmer's order for the time period at issue in this case — August 13, 2014 through October 17, 2014, was always Vanguard. The very definition of FAPE mandates that special education and related services be provided "in conformity with the individualized education program required under section 1414(d) of this title." 20 U.S.C. § 1401(9). Vanguard did not provide R.C.V.S. any special education or related services from August 13, 2014, the first day of the school year, until October 17,
As explained above, it is clear that Respondent violated the IDEA and failed to provide R.C.V.S FAPE when he was not permitted to enroll at Vanguard at the beginning of the 2014-2015 school year and thus received no special educational services whatsoever. That fact is troublesome. The new issue Parents alleged in this due process complaint is that R.C.V.S. regressed academically as a result of Respondent's actions. However, the persuasive evidence in the record is that there was little to no regression in R.C.V.S.'s level of academic achievement as evidenced by his grades. In the subjects that could be fairly compared from the last term of kindergarten to the second term of first grade, R.C.V.S.'s grades went down in only two subjects, and in those two subjects his grades were back to where they had been in kindergarten, prior to the FAPE denial, by the third term. In the remainder of his comparable subjects his grades remained the same or improved. While it is true that R.C.V.S.'s grades were lower for one term in two subjects, as will be discussed below, the purpose of compensatory education is to put a student in the place he or she would have been had the deprivation not occurred. Reid ex rel. Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005). Concerning R.C.V.S.'s grades, he is already back to where he was prior to the denial, and thus the ALJ concludes that no compensatory educational services are warranted for any regression R.C.V.S. experienced as evidenced by his grades for his deprivation of FAPE.
On the other hand, R.C.V.S.'s DIBELS scores were markedly lower on October 27, 2014 than they had been in the spring of his kindergarten year, and Ms. Higgins credibly testified that she would have expected them to be higher had he been in school those two months. The scores did somewhat improve just eight days later, but the NWF-CLS score remained markedly lower than it had been in the spring of R.C.V.S.'s kindergarten year. Although his scores were at or above benchmark levels, the ALJ concludes that R.C.V.S. did suffer regression in his early literacy skills as a result of Respondent's violation of FAPE as evidenced by his markedly lower DIBELS scores, specifically the NWF-CLS score.
When school districts fail to provide FAPE, district courts shall "grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C)(iii). The Tenth Circuit has held that compensatory education is an appropriate award, and its purpose is to "vindicate[] the student's substantive right to receive a FAPE and compensate[ J for a past deprivation of educational opportunity rather than a deprivation of purely procedural rights." Garcia v. Board of Educ. of Albuquerque Public Schools, 520 F.3d 1116, 1125 (10th Cir. 2008). The goal of compensatory education is to place the student back where he or she would have been had the school district provided the appropriate services. Reid ex rel. Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005).
The All concludes that it is appropriate to grant R.C.V.S. equitable relief in order to address his regression as evidenced by his DIBELS scores and to place his early literacy skills back to where they would have been prior to the FAPE denial.
The ALJ concludes that Respondent did not provide FAPE to R.C.V.S. between August 13, 2014 and October 16, 2014. Accordingly, the All ORDERS as follows:
Respondent shall re-test R.C.V.S.'s early literacy skills through the DIBELS test, or a test of Respondent's choosing that assesses the same or similar early literacy skills as the DIBELS test if Respondent believes the DIBELS test is no longer appropriate due to the passage of time. If R.C.V.S.'s scores are below benchmark levels, Respondent, in coordination with the IEP team, shall decide what compensatory services are necessary in order to improve R.C.V.S.'s scores up to benchmark levels and will implement those services accordingly. If R.C.V.S.'s scores are at benchmark levels, then nothing more is required of the District.
This decision is the final decision of the independent hearing officer, pursuant to 34 CFR §§ 300.514(a) and 515(a). In accordance with 34 CFR § 300.516, either party may challenge this decision in an appropriate court of law, either federal or state.
This matter is before the Administrative Law Judge (AU) upon Respondent's Motion for Clarification of Order and Request for Order Confirming Compliance With It, filed on October 7, 2016. No response to the motion has been filed. Based on a review of the motion and the attachments to the motion it is hereby ordered that:
1. The AU finds that Respondent School District has complied with the October 3, 2016 Final Agency Decision with respect to any additional testing.
2. Nothing further is required of the School District with respect to the October 3, 2016 Final Agency Decision.
