FILED
United States Court of Appeals
Tenth Circuit
August 29, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
THOMPSON R2-J SCHOOL
DISTRICT,
Plaintiff - Appellant,
v.
LUKE P., by and through his parents
and next friends, JEFF and JULIE P.,
Defendants - Appellees.
---------------------------------------------
No. 07-1304
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.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 05-cv-2248-WDM-CBS)
W. Stuart Stuller (Alyssa C. Burghardt with him on the briefs), of Caplan and
Earnest LLC, Boulder, Colorado, for Plaintiff-Appellant.
Jack D. Robinson of Spies, Powers & Robinson, P.C., Denver, Colorado, for
Defendants-Appellees.
Kathleen Sullivan, Colorado Association of School Boards, Francisco M. Negrón,
Jr., National School Boards Association, Alexandria, Virginia, and Darryl
Farrington, Semple, Miller, Mooney & Farrington, P.C., Denver, Colorado, filed
an amici curiae brief in support of Plaintiff-Appellant.
Gary S. Mayerson, Director, Autism Speaks, Federal Legal Appeals Project,
Mayerson & Associates, New York, New York, filed an amicus curiae brief in
support of Defendants-Appellees.
Before BRISCOE, GORSUCH, Circuit Judges, and PARKER, Senior District
Judge. *
GORSUCH, Circuit 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 Having withdrawn Luke from the public school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
*
The Honorable James A. Parker, Senior District Judge, United States
District Court for the District of New Mexico, sitting by designation.
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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.
I
A
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
1
As did the district court, we omit Luke’s surname in deference to the
family’s privacy.
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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.
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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
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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
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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
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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 2004. The IEP proposed by the school district incorporated virtually
all of the goals requested by the parents, but it called for continued placement at
Berthoud Elementary rather than the residential placement requested by the
parents. Luke’s family rejected the IEP, and Luke remained enrolled at BHS.
B
In due course, the family sought an IDEA due process hearing in the
Colorado Department of Education, pursuant to 20 U.S.C. § 1415, petitioning for
a determination that the school district’s IEP failed to provide Luke with a FAPE;
that a residential placement was necessary for Luke; and that the school district
should reimburse the family for Luke’s education expenses at BHS. Following a
five-day hearing, the impartial hearing officer (“IHO”) held in favor of the
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family, finding that, while the “evidence in general . . . suggest[s] that [Luke]
made some progress in public school prior to [his removal], due to his inability to
generalize his learning experiences at school to home and community
environments, [Luke] was not able to apply this progress in those other contexts.”
IHO Decision at 14. On this basis, the IHO held that a residential placement was
necessary for Luke and that the school district was obliged under IDEA to pay the
costs of that placement.
On appeal before the Colorado Office of Administrative Courts, an
Administrative Law Judge (“ALJ”) agreed with the IHO that, although Luke “had
achieved nearly a quarter of the goals and objectives in his IEP[,] . . . was making
slow [but] steady progress toward others[,] . . . . [and] overall . . . was advancing
in his goals at school[,] [t]he problem remained . . . [that Luke] was unable to
transfer any of his learned skills and use them in environments outside of school.”
ALJ Decision at 8.
In response to these adverse decisions, the school district brought suit in
federal district court, seeking review and reversal of the ALJ’s and IHO’s
judgments. The district court, however, ultimately agreed with the administrative
decisions that Luke’s generalization deficiency warranted his placement in a
residential program, and that the school district must reimburse the family for the
residential placement costs at BHS. The school district now appeals.
II
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Pursuant to Congress’s direction, to obtain reimbursement for private
tuition at BHS Luke’s parents must show, at a minimum, that the school district
violated IDEA and that the education provided by BHS is reasonably calculated to
enable Luke to receive educational benefits. L.B. ex rel. K.B. v. Nebo Sch. Dist.,
379 F.3d 966, 978 (10th Cir. 2004); 20 U.S.C. § 1412(a)(10)(C)(ii). In turn, our
precedent indicates that Luke’s parents can show a violation of IDEA in one of
two ways. They can either show that the school district failed to provide Luke
with a free and appropriate public education; or they can show that, despite the
school district’s provision of a free and appropriate public education, it failed to
provide that education, to the maximum extent appropriate, in the least restrictive
environment. 2 Nebo, 379 F.3d at 975 n.13; 20 U.S.C. § 1412(a)(5).
Beginning with their initial request for a due process hearing before an
IHO, Luke’s parents have confined themselves to alleging the first type of
violation – contending that the school district failed “to provide Luke [P.] with a
2
The school district contends that Luke’s parents must also show that BHS
is the least restrictive environment in which Luke can receive educational
benefits, citing to us Carlisle Area Sch. v. Scott P., 62 F.3d 520, 536-37 (3d Cir.
1995); Kerkam v. Superintendent, D.C. Pub. Schs., 931 F.2d 84, 86 (D.C. Cir.
1991); DeLullo v. Jefferson County Bd. of Educ., 71 F. Supp. 2d 554, 559 (N.D.
W.Va. 1998). But see Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d
755, 770 (6th Cir. 2001). We have no need to pass on this argument, however,
because the parents’ claim in this case falters on the antecedent question whether
the school district violated IDEA.
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free and appropriate public education.” R. Vol. II at 240. 3 The burden of proof in
such a challenge rests with the party claiming a deficiency in the school district’s
efforts, here Luke’s parents. See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49,
62 (2005); Johnson v. Indep. Sch. Dist. No. 4 of Bixby, 921 F.2d 1022, 1026
(10th Cir. 1990). In what follows, we first outline the contours of what a FAPE
requires and then assess the two arguments Luke’s parents advance for finding
that the school district in this case failed to provide one.
A
How do we know when a school district has or has not provided a disabled
student with a FAPE? To be sure, the term is hardly self-defining. Fortunately,
however, the statute and Supreme Court afford some additional direction,
indicating that we must ask, more specifically, whether Luke’s December 2003
IEP was “reasonably calculated to enable [him] to receive educational benefits,”
Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982); see also Garcia v. Bd. of Educ.
of Albuquerque Pub. Schs., 520 F.3d 1116, 1125 (10th Cir. 2008). If the IEP was
3
In a single sentence in their brief on appeal, Luke’s parents might
possibly be understood to argue that, even if the school district provided Luke a
FAPE, it did not do so in the least restrictive environment. Answer Br. at 54.
Under our controlling precedent, this suggestion, “appearing only in a fleeting
sentence” in an appellate brief, is too inadequately developed to be meaningfully
addressed and is deemed waived. United States v. Martinez, 518 F.3d 763, 768
(10th Cir. 2008).
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so calculated, the school district can be said to have provided a FAPE; if not, then
not. 4
The Supreme Court has further explained that this standard is not an
onerous one. “Congress did not impose upon the States any greater substantive
educational standard than would be necessary to make . . . access meaningful. . . .
[T]he intent of the Act was more to open the door of public education to
handicapped children on appropriate terms than to guarantee any particular level
of education once inside.” Rowley, 458 U.S. at 192. 5 So, for example, the Court
found no support in the text or history of the Act for the proposition that Congress
sought to guarantee educational services sufficient to “maximize each child’s
potential.” Id. at 198. Instead, we are told, Congress sought only to require a
“‘basic floor of opportunity,’” id. at 200, aimed at providing individualized
services sufficient to provide every eligible child with “some educational
benefit,” id. (emphasis added). We are also reminded that the “primary
4
We generally also must inquire whether the school district has complied
with the procedural requirements of IDEA. See Rowley, 458 U.S. at 206-07.
Here, however, that question is not at issue before us because Luke’s family does
not dispute the propriety of the process used by the school district in formulating
Luke’s December 2003 IEP.
5
Rowley involved an analysis of IDEA’s statutory precursor, the Education
of the Handicapped Act, but the same textual language has survived to today’s
version of IDEA. Compare Rowley, 458 U.S. at 187-89 (quoting EHA
definitions) with 20 U.S.C. § 1401(9), (26), (29) (current IDEA definitions).
Indeed, the Supreme Court has recently cited approvingly Rowley’s discussion of
the meaning of FAPE in Winkelman ex rel. Winkelman v. Parma City Sch. Dist.,
127 S. Ct. 1994, 2000-01 (2007).
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responsibility for formulating the education to be accorded a handicapped child,
and for choosing the educational method most suitable to the child’s needs, was
left by the Act to state and local educational agencies in cooperation with the
parents or guardian of the child.” Id. at 207. From this direction, we have
concluded that the educational benefit mandated by IDEA must merely be “more
than de minimis.” Urban ex rel. Urban v. Jefferson County Sch. Dist. R-1, 89
F.3d 720, 727 (10th Cir. 1996). Finally, because the question before us is not
whether the IEP will guarantee some educational benefit, but whether it is
reasonably calculated to do so, our precedent instructs that “the measure and
adequacy of an IEP can only be determined as of the time it is offered to the
student . . . . Neither the statute nor reason countenance ‘Monday Morning
Quarterbacking’ in evaluating the appropriateness of a child’s placement.”
O’Toole ex rel. O’Toole v. Olathe Dist. Schs. Unified Sch. Dist. No. 233, 144 F.3d
692, 701-02 (10th Cir. 1998).
In assessing whether Luke’s parents have carried their burden of
establishing that his December 2003 IEP fails to meet these standards, we apply a
somewhat unique standard of review. “Unlike the deferential review typically
afforded to administrative adjudication of statutory claims, Congress requires
district courts to apply a modified de novo standard when reviewing agency
disposition in the IDEA context.” Garcia, 520 F.3d at 1125; 20 U.S.C.
§ 1415(i)(2)(C). Specifically, the district court must (1) receive the record of the
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administrative proceedings, (2) hear additional evidence at the request of a party,
and (3) base its decision on the preponderance of evidence. 20 U.S.C.
§ 1415(i)(2)(C). “At the same time, though the statute specifies that review is de
novo, the Supreme Court has interpreted the requirement that the district court
receive the administrative record to mean that ‘due weight’ must be given to the
administrative proceedings, the fact findings of which are ‘considered prima facie
correct.’” Garcia, 520 F.3d at 1125. We apply these very same principles in our
own review of the district court’s judgment. Id. “Thus, we actually apply a
modified de novo review, which entails an independent review of the evidence.”
T.S. v. Indep. Sch. Dist. No. 54, 265 F.3d 1090, 1093 (10th Cir. 2001); Nebo, 379
F.3d at 974 (“[T]he district court conducted a bench trial on the administrative
record which this court reviews de novo, applying the same IDEA standard that
was employed by the district court.”). 6
6
Although Luke’s parents urge us to review the district court’s factual
findings for clear error, citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F.,
118 F.3d 245, 252 (5th Cir. 1997), this court has already rejected application of
the clear error standard and, of course, one panel of this court cannot overrule the
decision of a prior panel. Erickson v. Albuquerque Pub. Schs., 199 F.3d 1116,
1120 n.6 (10th Cir. 1999). We recognize, though, that, while we are bound to
apply a modified de novo standard of review, our rule represents the distinct
minority position among circuit courts, see, e.g., Light v. Parkway C-2 Sch. Dist.,
41 F.3d 1223, 1229 (8th Cir. 1994); Oberti v. Bd. of Educ., 995 F.2d 1204, 1220
(3d Cir. 1993); Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1310 (9th Cir.
1987). Our modified de novo approach also runs counter to the general standard
of review suggested in Fed. R. Civ. P. 52(a). En banc reconsideration of our
standard of review may well be appropriate at some point. In this case, however,
the standard of review is not dispositive. As discussed below, see Part II.B.2, the
(continued...)
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B
Luke’s parents contend that his December 2003 IEP was not reasonably
calculated to provide him with educational benefits primarily because it failed to
address adequately his inability to generalize functional behavior learned at
school to the home and other environments. The ability to generalize, Luke’s
parents insist, is “fundamental,” Answer Br. at 43, and without it “learning does
not exist,” id. at 42. Absent the ability to generalize skills learned at school,
particularly basic self help and social skills, they submit Luke’s education is
effectively worthless. And the only setting in which Luke is certain to improve
his generalization skills, his parents maintain, is a residential setting not provided
for in the challenged IEP. The school district responds that, as a matter of law,
generalization across settings is not required by IDEA so long as Luke can be said
to be making some progress in school, and cites cases from the Eleventh and First
Circuits, as well as various district courts, so holding. 7 We are constrained to
6
(...continued)
tribunals that have previously considered this case all found that Luke was
making some progress, and so whether we apply a modified de novo review or
afford greater deference to findings of prior factfinders, the outcome would be the
same. Our disagreement with the district court that ably and carefully considered
this matter is limited solely to the legal question what consequences follow under
IDEA’s terms from its factual findings.
7
See Devine v. Indian River County Sch. Bd., 249 F.3d 1289 (11th Cir.
2001); Gonzalez v. Puerto Rico Dept. of Educ., 254 F.3d 350 (1st Cir. 2001); JSK
v. Hendry County Sch. Bd., 941 F.2d 1563 (11th Cir. 1991); San Rafael
Elementary Sch. Dist. v. Cal. Special Educ. Hearing Office, 482 F. Supp. 2d 1152
(continued...)
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agree with the school district and our sister courts. Though one can well argue
that generalization is a critical skill for self-sufficiency and independence, we
cannot agree with appellees that IDEA always attaches essential importance to it.
1
In support of their argument about the essential legal importance of
generalization skills, appellees point to and rely heavily on language in the Act’s
statements of purpose indicating that Congress sought to help prepare disabled
students for self-sufficient “independent living.” See 20 U.S.C. § 1401(34); 20
U.S.C. § 1400(c)(1) (referring to “our national policy of ensuring equality of
opportunity, full participation, independent living, and economic self-
sufficiency”). Luke’s parents submit that without an assurance that students will
be able to generalize skills from the school environment to the home – whether
learning how to sit quietly, following directions, or otherwise – the sort of self-
sufficiency and independence Congress expressly wished for disabled persons like
their son will always be beyond reach.
While we are sympathetic to Luke’s parents’ desire to see their child thrive,
the difficulty with their argument is that Congress did not provide in IDEA a
guarantee of self-sufficiency for all disabled persons, and the most authoritative
arbiter of congressional intent has already reached this conclusion. In Rowley, the
7
(...continued)
(N.D. Cal. 2007), D.B. v. Ocean Twp. Bd. of Educ., 985 F. Supp. 457 (D.N.J.
1997); Hall v. Shawnee Mission Sch. Dist., 856 F. Supp. 1521 (D. Kan. 1994).
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Supreme Court expressly considered and rejected the notion that “self-
sufficiency” is “the substantive standard which Congress imposed on the States.”
458 U.S. at 201 n.23. The Court explained that “[n]oticeably absent from the
language of [IDEA] is any substantive standard prescribing the level of education
to be accorded handicapped children.” Id. at 189 (emphasis added). Rather,
while the promotion of self-sufficiency was surely among Congress’s purposes in
enacting IDEA, the Court explained that Congress proceeded to select a rather
particular means for advancing that purpose – a statutory scheme focused on and
limited to enhancing disabled students’ access to public education. See id. at 192;
id. at 201 n.23 (“We thus view these references in the legislative history [to the
concept of self-sufficiency] as evidence of Congress’s intention that the services
provided handicapped children be educationally beneficial, whatever the nature or
severity of their handicap.”).
Specifically, Congress mandated that the States provide “individual
education programs” for all eligible disabled students, but then left the content of
those programs entirely to local educators and parents, requiring only that they
include “a statement of measurable annual goals, including academic and
functional goals, designed to meet the child’s needs that result from the child’s
disability to enable the child to be involved in and make progress in the general
education curriculum” and meet the child’s “other educational needs.” 20 U.S.C.
§ 1414(d)(1)(A)(i)(II). In other words, Congress established procedures to
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guarantee disabled students access and opportunity, not substantive outcomes.
See Rowley, 458 U.S. at 192; see also Dixie Snow Huefner, Judicial Review of the
Special Educational Program Requirements Under the Education for All
Handicapped Children Act: Where Have We Been and Where Should We Be
Going?, 14 Harv. J. L. & Pub. Pol’y 483, 495 (1991) (discussing how IEPs do not
guarantee particular outcomes because “[i]f the IEP were a contract obligating the
school to achieve the specified goals and objectives, districts would set the most
minimal of goals”). Congress further prescribed that IEPs should generally be
addressed to and carried out in the least restrictive environment available –
usually the public school classroom. 20 U.S.C. § 1412(a)(5)(A). And while not
mandating what their content should be, Congress emphasized the need for a
careful and open process in the creation of IEPs: “We think that the
congressional emphasis upon full participation of concerned parties throughout
the development of the IEP . . . demonstrates the legislative conviction that
adequate compliance with the procedures prescribed would in most cases assure
much if not all of what Congress wished in the way of substantive content in an
IEP.” Rowley, 458 U.S. at 206. So, as the court in San Rafael aptly explained,
“participation in the education process under the IDEA[] is the vehicle [Congress
chose] for assisting individuals in achieving the goal of independence – [the Act]
is not a guarantee that all children will achieve that level of independence.” 482
F. Supp. 2d at 1161. To the extent that a child’s problems pertain only outside
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the educational realm, then, “other resources [not IDEA] must be looked to.”
Gonzalez, 254 F.3d at 353 (internal citation omitted).
Our reading of the Act on this score is in harmony with the holdings of
other circuits who have reached this question before us. In Gonzalez, a family
claimed, much as here, that while their autistic son, Gabriel, might have been
making modest academic progress at school, placement in a private residential
program was necessary because he was not generalizing skills learned at school
and his tantrums at home made him a potential safety threat. Without discounting
the struggles Gabriel’s parents faced, the First Circuit held that IDEA was not
designed “to remedy a poor home setting or to make up for some other deficit not
covered by the Act.” Gonzalez, 254 F.3d at 353 (internal citation omitted).
Similarly in Devine, the Eleventh Circuit rejected private placement for an
autistic student, holding that “generalization across settings is not required to
show an educational benefit,” and that school districts must do no more than
provide an IEP that enables the student to “mak[e] measurable and adequate gains
in the classroom.” 249 F.3d at 1293. See also L.G. ex rel. B.G. v. Sch. Bd. of
Palm Beach County, 255 F. App’x 360, 365-67 (11th Cir. 2007) (denying claim
by parents for reimbursement of residential placement costs where child was
making progress in classroom but not generalizing the progress outside of
school); San Rafael, 482 F. Supp. 2d 1152, D.B., 985 F. Supp. 457; Hall, 856 F.
Supp. 1521; Terry Jean Seligmann, Rowley Comes Home to Roost: Judicial
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Review of Autism Special Education Disputes, 9 U.C. Davis J. Juv. L & Pol’y 217
(2005) (discussing rise of autism rates and IDEA cases); see Brief of Amici
Curiae Colorado Association of School Boards et al. (arguing that self-sufficiency
is not the substantive standard imposed by IDEA).
While we hold that generalization skills need not always be included in,
and progress on such skills is not necessary to ensure, a compliant IEP, we remain
mindful that the Supreme Court has cautioned against “establish[ing] any one test
for determining the adequacy of educational benefits conferred upon all children
covered by the Act.” Rowley, 458 U.S. at 202. For this reason, we note that at
least one other court has suggested that in some instances difficulty generalizing
skills may be so severe that it prevents a student from receiving any educational
benefit. See Gonzalez, 254 F.3d at 353. In such situations, our sister court held,
an IEP “must address such problems in some fashion, even if they do not warrant
residential placement.” Id. As discussed below, however, because the student
before us was indisputably making some progress, we need not reach this question
today. 8
8
Luke’s family cites to us a number of district and state court cases in
which district courts held that residential placement was appropriate. But in each
instance the student’s generalization deficiencies or regression tendencies were so
severe that they essentially prohibited any learning or progress on the student’s
IEP goals. See Ash v. Lake Oswego Sch. Dist. No. 7J, 766 F. Supp. 852 (D. Or.
1991); S.C. ex rel. C.C. v. Deptford Twp. Bd. of Educ., 248 F. Supp. 2d 368, 376-
80 (D.N.J. 2003); Drew P. v. Clarke County Sch. Dist., 676 F. Supp. 1559, 1561
(M.D. Ga. 1987); Cremeans v. Fairland Local Sch. Dist., 633 N.E.2d 570, 579-80
(continued...)
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2
In this case, we simply cannot say that, as of December 2003, Luke’s
generalization difficulties precluded him from making some progress at Berthoud
Elementary. Critically, every single factfinder in this case found that Luke was
progressing on his existing IEP goals in public school. By way of example, the
IHO determined that “the evidence in general and the December 16, 2003, IEP in
particular suggest that Luke made some progress in public school prior to that
date.” IHO Decision at 14; see also id. at 6 (“[T]he succession of IEPs developed
for [Luke] during his kindergarten through second grade years reveal no highly
remarkable difficulties with his special education in public schools.”); id. (“[A]t
school . . . [Luke] seemed to make adequate progress.”). The ALJ similarly found
that “[d]uring kindergarten through his second grade year at Berthoud, [Luke]
made progress with his special education and was meeting many of the goals and
objectives in his IEPs.” ALJ Decision at 4. Finally, the district court found that
“a comparison of his third grade IEP and kindergarten IEP demonstrates that Luke
progressed in several areas,” Dist. Ct. Op. at 7, and held that the IHO’s and ALJ’s
findings that “Luke made some progress on the goals contained in [his IEPs] . . .
is supported by a preponderance of the evidence on the record.” Id. 9
8
(...continued)
(Ohio App. 1993).
9
Although Luke’s family contends that any factual findings indicating that
(continued...)
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Such past progress is, of course, not dispositive of the controlling question
whether, going forward, the December 2003 IEP was reasonably calculated to
confer some educational benefit, but it does strongly suggest that, modeled on
prior IEPs that had succeeded in generating some progress, the December 2003
IEP was reasonably calculated to continue that trend. Moreover, given IDEA’s
emphasis on the importance of the process by which IEPs are created, see supra
Part II.B.1, the fact that the school district incorporated into the new IEP virtually
every one of the substantive goals recommended by Luke’s parents and their
experts – many of which expressly relate to improving Luke’s generalization
skills – is telling. 10 This is not the usual IDEA dispute where the student and
9
(...continued)
Luke was making progress in school are clearly erroneous in light of alleged
regression in some areas, these findings are well-supported by the record and we
perceive no contrary facts to rebut the prima facie presumption of correctness that
these findings are owed under our modified de novo review standard. After all, as
the ALJ noted, Luke had “achieved nearly a quarter of the goals and objectives in
his IEP and [] was making slow [but] steady progress toward others.” ALJ
Decision at 8. Moreover, the ALJ specifically determined that a report
documenting the alleged regression upon which the family seeks to rely was
“evidence of his inability to generalize, not necessarily conclusive proof that he
had lost skills he had previously learned.” Id. at 7. Even the family’s own
witness, Ms. Osaki, stated in her report to the family – just shortly before the
family withdrew Luke from Berthoud Elementary – that “throughout his early
education, Luke made good progress in all areas of development.” Osaki Report,
R., Vol. V. at 864.
10
For example, the school district included as an objective that Luke
“demonstrate understanding/use of size, spatial and quantity concepts” and that he
be able to “generalize use of concepts to novel activities.” R. Vol. IV, at 704.
Similarly, the IEP called for Luke to “spontaneously indicate the need to use the
(continued...)
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parents allege that their concerns have gone unheeded or unaddressed in the IEP
process. 11 Indeed, both the IHO and the ALJ found the December 2003 IEP to
represent a “monumental and genuine effort on the part of the District to improve
[Luke]’s performance in a number of areas affected by his autism.” ALJ Decision
at 8; see also IHO Decision at 20. Affording due weight to the findings of the
IHO, ALJ, and district court that (i) Luke was making some educational progress,
and (ii) his December 2003 IEP was generated in a manner that represented a
monumental and genuine effort to continue such progress, we believe these
findings compel, as a matter of law, the conclusion that the school district met its
IDEA obligations in this case.
These tribunals reached a contrary judgment in this case only because, in
their judgment, “whatever educational progress Luke made . . . was meaningless
if there was no strategy to ensure that those skills would be transferred outside of
10
(...continued)
bathroom once per day, with generalization to all environments.” Id. at 706. The
school district also included a comprehensive behavior support plan, designed to
address many of the negative behaviors that Luke engaged in at school and at
home. See id. at 714-16.
11
To be sure, Luke has made significant strides at BHS, and BHS may well
provide a superior education to the one available in the public school system. But
Congress simply did not guarantee children “a potential-maximizing education,”
Rowley, 458 U.S. at 197 n.21, and in evaluating Luke’s IEP we are not entitled to
give weight to his subsequent success in private school, see O’Toole, 144 F.3d at
701-02.
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the school environment.” D. Ct. Op. at 16. 12 For reasons we have explained,
however, this conclusion rests on a legal error. No educational value or goal,
including generalization, carries special weight under IDEA. The fact that, by the
admission of every factfinder in this case, Luke was making some educational
progress and had an IEP reasonably calculated to ensure that progress continued
is sufficient to indicate compliance, not defiance, of the Act. In this respect, we
think our case bears a certain resemblance to Rowley. There, the Supreme Court
confronted a challenge to a school district’s decision to deny a deaf student a sign
language interpreter. Pursuant to her IEP, the student received the use of a
hearing aid and some individualized instruction. Rowley, 458 U.S. at 184. In
rejecting a claim by the student’s parents that she was also entitled to a sign
language interpreter, the Supreme Court did not question that an interpreter would
be of great assistance, but explained that the student was making some progress
without one, and that some progress was all the Act required. Id. at 210. The
Court so held, moreover, over a dissent that – like the three prior tribunals in this
case – would have found that “[t]he Act requires more” than simply that a student
receive “some benefit.” Id. at 214-15. The difficulties Luke faces in the
classroom and at home are no doubt considerably greater in scope and severity
12
See also ALJ Decision at 8 (“The problem remained . . . that despite his
progress at school, [Luke] was unable to transfer any of his learned skills and use
them in environments outside of school.”); IHO Decision at 21 (“[Luke] will
derive no benefit at all from attaining goals and objectives in school if he cannot
replicate any of his accomplishments anywhere else.”).
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than those faced by the student in Rowley. But the legal principle outlined there
by the Supreme Court controls equally here: a school district is not required to
provide every service that would benefit a student if it has found a formula that
can reasonably be expected to generate some progress on that student’s IEP goals.
C
Even if progress on generalization skills is not an inescapable component of
all IEPs under federal law, Luke’s parents suggest, alternatively, that Colorado
law guarantees such progress. And because “[s]tate standards that impose a
greater duty to educate disabled children, if they are not inconsistent with federal
standards, are enforceable in federal court under the IDEA,” Fowler v. Unified
Sch. Dist. No. 259, 128 F.3d 1431, 1438 (10th Cir. 1997) (internal quotation
omitted); 20 U.S.C. § 1407 (requiring state regulations to conform to federal law,
but allowing the possibility for state regulations not required by federal law), the
family asks that we hold the school district to the purportedly higher standard
required by Colorado law.
As it happens, however, the state regulations cited by Luke’s parents
simply specify that the “delivery system” by which the state provides special
education services “shall include . . . those services which enhance cognitive,
communicative, physical and social-emotional development and teach students the
skills critical to compensate for their disability. . . . [and] those services which are
necessary to teach students to function independently or interdependently in
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current and future environments including school, home, employment and the
community.” 1 Colo. Code Regs. § 301-8, 2220-R-5.03(4) (2005). Far from
giving any substantive definition to the sort of education that must be provided to
every student on an individual basis, let alone guarantee generalization skills are
addressed, these regulations merely specify some of the various services that
special education programs should make available as a general matter. The very
same regulation, in an earlier section, actually defines “appropriate education” in
terms that very much reflect the statutory text of IDEA and comport with
Rowley’s holding that the educational benefits conferred under IDEA are highly
individualized rather than standardized in any substantive way. See id. § 5.01(2)
(“‘Appropriate’ education shall be the provision of educational services that meet
the individual needs of children with disabilities as identified on the
individualized educational programs (IEPs).”). We thus discern no educational
standard imposed by state law that would guarantee the generalization of skills
for all children. 13
* * *
We sympathize with Luke’s family and do not question the enormous
burdens they face. Our job, however, is to apply the law as Congress has written
13
It appears that shortly after this case was briefed the Colorado
Department of Education enacted changes to the state regulations in question.
Neither party, however, has filed any documents with the court attempting to
claim the benefit of any change, and so we treat any such arguments as waived.
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it and the Supreme Court has interpreted it. Though IDEA is certainly evidence
that Congress intends that States, acting through local school districts, provide
assistance to disabled students and their families, the assistance that IDEA
mandates is limited in scope. The Act does not require that States do whatever is
necessary to ensure that all students achieve a particular standardized level of
ability and knowledge. Rather, it much more modestly calls for the creation of
individualized programs reasonably calculated to enable the student to make some
progress towards the goals within that program. The findings of every factfinder
in this case indicate that this standard has been met here. For this reason, we are
constrained to reverse the district court’s judgment and remand for further
proceedings not inconsistent with this opinion.
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